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  3. Hearing of March 16, 2016 - Public Input into the Proposed Revisions to the EEO-1 Report
  4. Written Testimony of Emily J. Martin National Women's Law Center General Counsel and Vice President for Workplace Justice

Written Testimony of Emily J. Martin National Women's Law Center General Counsel and Vice President for Workplace Justice

Hearing of March 16, 2016 - Public Input into the Proposed Revisions to the EEO-1 Report

Thank you very much for the opportunity to provide this testimony on the Equal Employment Opportunity Commission's (EEOC) proposal to require large employers to submit summary compensation data as part of the annual EEO-1 reporting process. The National Women's Law Center (the Center) has worked for over 40 years to advance and protect women's equality and opportunity-with a focus on women's employment, education, income security, health, and reproductive rights-and has long worked to remove barriers to equal treatment of women in the workplace, particularly those that suppress women's wages.

The National Women's Law Center strongly supports the proposal to collect pay data from employers pursuant to the EEO-1 in order to guide allocation of EEOC's enforcement resources, in coordination with the Office of Federal Contract Compliance Programs (OFCCP) of the Department of Labor. Collecting compensation data through the EEO-1 will promote the critically important goals of improving enforcement of pay discrimination laws and increasing voluntary employer compliance with those laws. We also make some suggestions for strengthening the proposal to ensure achievement of these goals.

I. The Proposed Addition to the EEO-1 Will Help Identify And Address Pay Discrimination, A Crucial Factor in the Gender Wage Gap.

The Center strongly supports EEOC's proposal to revise the EEO-1 to add a second component enabling collection of compensation data from private employers and federal contractor workplaces. Such a component will play an important role in uncovering and combating pay discrimination. Women working full time, year round continue to confront a stark wage gap, typically making only 79 percent of the median annual wages made by men working full time, year round.1 The wage gap is even worse for women of color: African American women and Latinas typically make only 60 percent and 55 percent, respectively,2 and Native American women make only 59 percent,3 of the wages white, non-Hispanic men typically make for full-time, year-round work. This wage gap has remained stagnant for nearly a decade.4 Women are still paid less than men in nearly every occupation,5 and studies show that even controlling for race, region, unionization status, education, experience, occupation, and industry leaves as much as 38 percent of the pay gap is unexplained.6 A range of factors contributes to the pay gap, including pay discrimination between employees of different genders who are doing the same job.7

Yet pay discrimination remains difficult to detect in the first instance. About 60 percent of workers in the private sector nationally are either contractually forbidden or strongly discouraged from discussing their pay with their colleagues.8 Because pay often is cloaked in secrecy, when a discriminatory salary decision is made, it is seldom as obvious to an affected employee as a demotion, a termination, or a denial of a promotion. Employees are discouraged from gathering information that would suggest that they have experienced pay discrimination, and which undermines attempts to challenge such discrimination and reduce the gender wage gap. Punitive pay secrecy policies and practices allow this form of discrimination not only to persist, but to become institutionalized. Consequently, government enforcement and employer self-evaluation are critical to combat compensation discrimination. Collecting and making publicly available compensation data from private employers and larger federal contractors would greatly assist both these strategies.

The revised EEO-1 will help EEOC and OFCCP tackle discrimination by private employers and large federal contractors. First, this data collection will empower the agencies to target their limited enforcement resources toward more detailed oversight of those employers who are most likely to be engaging in pay discrimination. This will greatly enhance the effectiveness and efficiency of EEOC's and OFCCP's pay discrimination enforcement efforts. In addition, other forms of unlawful gender and race discrimination can manifest as gaps in compensation. For example, if hiring discrimination keeps women out of higher paying jobs in a company, or harassment systematically pushes women out of male-dominated, highly paid jobs, the result may be gender pay gaps within the firm. If African American employees, for example, are scheduled for fewer work hours, this also would be reflected in pay gaps. Collecting compensation data allows for more targeted enforcement of a range of antidiscrimination protections.

Second, both the process of responding to the data collection tool and the more effective and targeted approach to enforcement that the tool permits will spur more employers to proactively review and evaluate their pay practices and address any unjustified disparities between employees. By incentivizing and facilitating such employer self-evaluation, the revised EEO-1 Report will increase voluntary employer compliance with discrimination laws. Employees and employers alike will benefit from the elimination of discrimination in pay practices absent litigation or other formal enforcement mechanisms, which can be expensive and time-consuming.

II. The EEO-1 Report Is the Appropriate Vehicle for Collecting Pay Data.

The decision to collect this pay information through the EEO-1 and to share it across agencies minimizes the compliance burden for regulated employers and directly responds to concerns previously raised by the employer community. When OFFCP previously proposed collecting compensation data from federal contractors through a separate tool on a different reporting schedule from the EEO-1,9 employer representatives urged in the strongest terms that instead the agencies coordinate their data collection through use of a single, unified instrument.10 The proposed EEO-1 revision accomplishes this goal, avoiding duplication of effort or wasted costs for either employers or enforcement agencies.

By utilizing the long-established EEO-1 job categories, reliance on the EEO-1 also allows reporting of pay data without requiring employers to master and implement new methods of categorizing job titles within their workplace. Instead, employers can make use of existing systems by which they associate job titles with EEO-1 job categories, thus simplifying reporting. Use of the EEO-1 categories, rather than an employer's own job titles or job classification system, will also facilitate the consistent comparison of pay disparities in each job category among employers in a given industry and geographic area and will facilitate analysis of compensation data for entire industries. This will help EEOC and OFCCP to develop a better understanding both which of industries have the most significant pay disparities, as well as which employers within each industry have the largest pay gaps, and to target enforcement resources accordingly. In addition, it will enable EEOC and OFCCP to better assess the extent to which sex-based compensation discrimination affects women's entry into non-traditional industries, and more generally to better understand the relationship between gender segregation in the workforce and pay discrimination.

Use of the EEO-1 also enables the calculation and comparison of compensation data by gender within racial/ethnic groups, and by racial/ethnic groups within genders. The substantial pay gaps experienced by women of color compared to their white, non-Hispanic male and female counterparts demonstrate that unequal pay is a problem that has both gender and racial/ethnic dimensions. Importantly, use of the EEO-1 will capture these interacting impacts.

Most importantly, reporting of compensation data by gender and racial/ethnic groups within each of the ten job categories from the EEO-1 will allow EEOC and OFCCP to identify firms with racial or gender pay gaps within each job category that significantly diverge from their industry and regional peers for potential further detailed assessment. The EEO-1 categories are relatively broad, and a single category will typically comprise many jobs and occupations. Some have objected that as a result the pay gap measured in a particular EEO-1 job category for a particular employer will not strictly measure disparities in pay for "equal work" in many instances. This objection ignores the fact that the EEO-1 was never intended to act as an instrument precise enough to establish or prove violations of law without more investigation. Rather, what the EEO-1 has done and what compensation data collection will strengthen its capacity to do is to establish gender and racial patterns within these job categories in the aggregate, thus allowing identification of firms that sharply depart from these patterns for further analysis. In this way, the revised EEO-1 Report will provide EEOC and OFCCP a critical tool for focusing investigatory resources to identify pay discrimination within equivalent jobs, and will also flag deviations from compensation patterns that may be driven by other forms of discrimination that shut women or people of color out of higher-paying roles within a given job category.

Use of the EEO-1 as a reporting tool will also facilitate analysis of compensation data both company-wide and within each employer's establishment, given that a separate EEO-1 report must be filed for each physical location in a multi-establishment company. Company-wide analysis will help to draw attention to potential systemic discrimination that can affect many workers across an organization and enable meaningful analysis of the company's pay practices even where the number of workers at each individual establishment is relatively small. On the other hand, establishment-level analysis will ensure that individual establishments that engage in pay discrimination cannot evade detection if the company as a whole has pay that is closer to equal.

III. W-2 Pay Is the Best Readily Available Measure of Compensation for Data Collection Purposes.

We support the incorporation of a data tool into the EEO-1 that provides a true picture of employees' compensation, which necessarily includes pay that exceeds base salary.11 Requiring employers to report total W-2 earnings will provide a comprehensive picture of disparities in worker compensation. Moreover, since employers already collect and report W-2 wage data pursuant to federal law, inclusion of this information in the revised EEO-1 Report will impose a minimal additional burden.

A. W-2 Earnings Provide a Comprehensive Picture of Compensation

The Center agrees with EEOC and the conclusions of the independent pay pilot study (Pilot Study)12 that of compensation measures considered, the W-2 provides the most comprehensive picture of earnings, with a minimal associated burden for employers. The National Academy of Sciences' EEOC-commissioned study (NAS Study)13 and the subsequent Pilot Study considered both the compensation definitions used by the Bureau of Labor Statistics' Occupation Employment Statistics (OES) and by the W-2, among others, as a compensation measure for EEOC pay data collection, because these measures are the most widely known to employers and include various forms of compensation data. The OES compensation definition includes base rate of pay, hazardous duty pay, cost of living allowances, guaranteed pay, incentive pay, tips, commissions and production bonuses.14 But it excludes certain important categories of compensation such as overtime pay, severance pay, shift differentials and nonproduction, year-end and holiday bonuses.15 Although supplemental elements such as bonuses are often only a small part of employee compensation, they are increasingly important; in management and business and financial operations, for example, bonuses account for more than 11 percent of cash compensation, and in healthcare shift differentials are a large part of compensation.16

The W-2 definition, in contrast, includes all earned income, including supplemental pay components (such as overtime pay, shift differentials, and nonproduction bonuses) and therefore offers a more comprehensive picture of earnings than the OES.17 This comprehensive picture is critical because although compensation discrimination may manifest in workers' base salaries, it may also occur through discrimination in other less frequently measured forms of compensation such as bonuses,18 commissions,19 stock options, differential pay and opportunities for overtime. For instance, even when base salaries between comparable male and female workers are equal in a given company, overall compensation could be significantly disparate between the genders based on the discriminatory, discretionary allocation of compensation types such as bonuses and stock options.20 In fact, "female and minority employees have been virtually locked out of wealth-creating opportunities in most companies."21 Studies show than men receive stock options and bonuses at a rate twenty to thirty times than of women.22 Studies also indicate that compensation for men consists of 85 percent salary and 15 percent stock options, profit sharing, and other bonuses, while compensation for women consists of 91 percent salary and 9 percent stock options, profit sharing, and other bonuses.23

For all these reasons, the base rate of pay is not an appropriate alternative measure of compensation for the purposes of the revised EEO-1 Report. The base rate of pay is an employee's initial rate of compensation, excluding extra compensation such as for overtime, bonuses, or an increase in the rate of pay. It changes only when a job changes or to adjust for shift differentials; by itself it does not reflect the total earned income of an employee at any given time.24 While some employers might easily be able to report base rate of pay, if it is the compensation data currently captured by HRIS systems,25 it is not a dynamic or complete picture of an employee's compensation and would not serve the purposes of the EEO-1 Report. Data about base pay alone cannot capture instances where other types of compensation-such as stock options and bonuses-drive gender-based disparities in compensation, and would permit employers that discriminate using other forms of compensation to evade detection. Conversely, collecting data on W-2 pay will help root out disparities across the spectrum of take-home compensation. Accordingly, the Center supports using a measure of earnings that collects as many forms of compensation as possible.

B. Reporting W-2 Earnings and Hours Will Not Be Unduly Burdensome For Employers

Requiring covered employers to report W-2 data in addition to the already-required ethnicity, race and gender of employees will not be unduly burdensome. First, federal law already requires employers to maintain and generate the information in W-2 forms that will be required for the revised EEO-1.26 HRIS experts consulted for the Pilot Study reported that most major payroll software systems are preprogrammed to compile the data for generating W-2 forms. This led the Pilot Study to conclude that employers using such software to generate W-2 forms could report the proposed data with minimal additional burden.27

Second, while it is true that W-2 earnings data usually are generated at the end of the calendar year and the revised EEO-1 will require W-2 data to be reported in October, earnings information for employees is available to employers on a year to date basis, as the Pilot Study noted. Employers could use payroll reports to generate the necessary data, especially if they have automated payroll systems, with few additional complications.

IV. Reporting of Total Hours Worked Will Greatly Enhance the Usefulness of the Pay Data Collected.

EEOC's proposal to collect the total number of hours worked by the employees included in each EEO-1 pay band will allow the calculation and comparison of mean compensation both per person and per hour for each gender and racial/ethnic group within each job category. As the Pilot Study recognized, collection of total hours worked by each employee in addition to wages is critical to an analysis of pay differences.28 Collecting this data will allow OFCCP and EEOC to account for pay differences due to variation in the number of hours worked among employees in a pay band, sharpening pay comparisons both between different groups in an employer's workforce and between different employers. Collection of total hours worked also will permit an analysis that accounts for periods of unemployment or less than full-time work, including part-time, temporary and seasonal work. This is especially important since women constitute two-thirds of part-time workers in the U.S.,29 and almost half of all temporary workers.30

Hours worked data is also available to employers. Employers must keep records of hours worked for all employees not exempt from the Fair Labor Standards Act.31 With regard to the collection of total hours worked by exempt employees, EEOC suggests use of an estimate of 40 hours per week for full-time, salaried exempt workers. The Center supports this approach in those instances where an employer does not collect actual hours worked or have a different standard full-time workweek. The 40-hour workweek is a widely accepted definition32 and is a reasonable approximation of full-time work, with the understanding that not all full-time salaried exempt employees work precisely 40 hours per week.33 The proposal appropriately seeks to minimize the burden on employers by not requiring them to collect additional data where they do not already.

On the other hand, where an employer does track exempt employees' hours, or requires some standard number of hours per of work per week for an exempt employee other than 40 hours, the employer should report that number. Indeed, the Pilot Study noted that most payroll systems maintain the total hours worked by each employee, so reporting such information would impose a minimal burden on employers that use those systems. In other instances, employers may not track exempt employees' hours, but may require a standard number of hours other than 40 for full-time employees (e.g., 37.5 or 45) or a standard number of hours for part-time employees. For example, while employers may not track actual hours worked by some exempt part-time employees, employers typically have some assumptions regarding how many hours a part-time schedule entails when they set salaries. Employers should report that number if they do not track actual hours worked. In the absence of either an alternative standard relied on by the employer or actual data regarding hours worked by exempt employee, employers should rely on the assumption of a full-time 40-hour workweek. This suggestion is also responsive to critiques from employers, who objected to OFCCP's 2014 proposal34 that contractors use across-the-board estimates of hours worked by exempt employees by reporting 2080 hours annually worked for all full-time, salaried exempt employees, and 1080 hours annually worked for all part-time employees; this alternative approach would permit employers who collect more detailed data or who rely on other definitions of full-time or part-time in their workforce to report more precise calculations.

V. The Pay Data Collection Should Be Strengthened Further.

The compensation data collected by the proposed revised EEO-1 Report will fill an important gap in the information currently available to EEOC and OFCCP, enhancing the enforcement of discrimination prohibitions. However, we urge EEOC to strengthen the effectiveness of the pay data collection further in a few key ways:

  • The Center urges EEOC to extend the requirement to submit Component 2 of the EEO-1 to federal contractors that have between 50 to 99 employees and are otherwise required to submit the EEO-1.35 The heightened importance of ensuring that recipients of public funds do not discriminate in pay practices justifies collecting compensation data from these smaller entities.
  • The Center urges EEOC to require employers to report their pay data using additional, narrower pay bands. We support the decision to collect compensation data by counting and reporting the number of employees from each demographic group in each identified pay band, as a means of reporting that minimizes the burden on the employer while still capturing reliable and useful data. We also agree that in order to be useful, pay data must be collected in a larger number of bands than used by the EEO-4, as the EEO-4 includes all pay of $70,000 or more in a single band, thus rendering invisible any pay disparities experienced by employees earning $70,000 or more annually. The OES pay bands are a distinct improvement over the EEO-4 bands, in that the OES pay bands go up to $207,999, with the final pay band including all pay of $208,000 or above. However, even the OES pay bands will be unable to provide data on pay disparities for employees earning more than $208,000. Data show that women up and down the income scale experience pay gaps compared to their male counterparts, including in highly paid roles such as attorneys, executives, and surgeons.36 We therefore urge EEOC to add additional pay bands to collect pay data at least between $208,000 and $300,000. We also note that the top OES pay bands cover extremely wide pay ranges of $34,839 and $44,199. In order to provide more meaningful information regarding pay disparities, reflecting the EEO-1's distinct purpose, we urge that pay data be collected in more narrow pay ranges, with no single pay band covering a range of more than 20 percent of the lowest salary captured by that band, allowing for more granular analyses.
  • Whether the EEO-1 ultimately relies on OES pay bands or a modified version of the OES pay bands, it is critical that these bands be regularly adjusted (either by continuing to track the OES or by adjusting for changes in inflation and the employment distribution) in order to provide the most relevant data.
  • In addition to the EEO-1 Report revision, we urge EEOC to move forward in revising the EEO-5 form to collect compensation data from public elementary and secondary school districts and to update the EEO-4 form to collect compensation data from state and local governments using the same pay bands ultimately utilized for the EEO-1. Because pay discrimination is not limited to a particular sector of the economy, compensation data collection should not be so limited.

IV. EEOC and OFCCP Must Ensure That Pay Discrimination Is Not Insulated From Review Because It Is Commonplace Within An Industry.

The success of the collection of pay data in helping end pay discrimination depends on EEOC's and OFCCP's consistent incorporation of the data's predictive information into their ongoing decisions about where to target enforcement. This focus will not only increase the effectiveness of enforcement activities in rooting out discrimination, but also enhance the incentives for employers to engage proactively in self-evaluation of their pay practices and improve their compliance with equal pay standards. We therefore commend and strongly support the proposal to establish industry-level standards for pay disparities, use deviation from these standards to identify potential pay discrimination, and determine which employers to prioritize for investigation. However, given the persistence of gender and racial pay gaps across the economy, being above or close to an industry standard does not demonstrate an absence of pay discrimination exists within an employer's workforce. The Center therefore also urges the agencies to affirm that while deviation from industry standards will be incorporated into decisions about conducting and prioritizing enforcement activities, other important considerations can and will come into play. For example, in some instances, enforcement attention may be appropriately focused on entire industries with the sizeable gender pay gaps (rather than just the worst performing employers within those industries).

V. Making Industry-Level Summaries of Compensation Data Available to the Public Is an Essential Complement to the Compensation Data Collection.

The Center strongly supports the plan to make aggregate data gathered from the revised EEO-1 reports available to the public. Making these data available to the public can promote employer compliance with equal pay standards in a number of important ways. With these aggregate data in hand, workplace equality advocates can more efficiently direct their own enforcement, outreach and public education activities to industries or regions where pay disparities are most egregious. Individual employees can find out if they are working in an industry or region where they are more at risk of experiencing pay discrimination, and be prompted to investigate further to ensure that they are being treated fairly. They also can better understand pay trends with their region and industries, thus empowering them to seek and negotiate fair pay. And making these aggregate data public will facilitate and incentivize voluntary employer compliance with equal pay protections, by providing benchmarks that employers can use to evaluate their own pay practices and to publicly promote their successes in achieving pay equity.

We further urge EEOC to not only provide average pay disparities by occupational category in given industries and/or regions, but also other relevant information such as the range of pay disparities. Unequal pay is a ubiquitous phenomenon in many industries and regions, and even the average performers within a group may still have problems with pay discrimination in their workforces. We therefore should be encouraging employers, in conducting self-evaluations of their pay practices, to strive to be even better than the average among their peers.

VI. The Proposed Data Collection Will Not Be Unduly Burdensome for Employers.

Federal law already requires contractors to maintain much of the information that would be required under the revised EEO-1. Employers must generate W-2 forms for their paid employees37 and keep records of hours worked for all employees not exempt from the Fair Labor Standards Act.38 The relevant universe of employers is already required to submit EEO-1 reports that include information by gender, race/ethnicity, and job grouping categories.39

The burden that compiling and reporting this largely pre-existing information pursuant to the proposed rule will impose on employers is therefore minimal, particularly given that HRIS software developers can be expected to quickly create systems for automatic collecting and reporting of these data. In comparison, great benefits will accrue for employees and employers because of this proposed rule. As discussed above, these data will be crucial to enhancing the effectiveness of enforcement activities on behalf of employees that are victims of pay discrimination and other forms of discrimination reflected in compensation. Further, the reporting requirement may actually reduce the ultimate burdens of enforcement on law-abiding employers because it will improve EEOC's and OFCCP's ability to direct their investigatory efforts toward employers most likely engaged in pay discrimination.40

In sum, the National Women's Law Center urges EEOC in the strongest possible terms to adopt the proposed revisions to the EEO-1 Report and to do so swiftly, to ensure this data collection begins in 2017. We have not seen any significant progress in closing the gender pay gap in this country in approximately a decade. Women cannot afford to keep waiting for change, nor can the families depending on women's earnings. The powerful enforcement tool proposed by EEOC promises to make a real difference in closing the pay gaps that have shortchanged women for far too long.

1 NAT'L WOMEN'S LAW CTR., THE WAGE GAP IS STAGNANT FOR NEARLY A DECADE 1 (2015), available at https://nwlc.org/wp-content/uploads/2016/09/Wage-Gap-Stagnant-2016-3.pdf[THE WAGE GAP IS STAGNANT]

2 Id.

3 NAT'L WOMEN'S LAW CTR., THE WAGE GAP BY STATE FOR NATIVE AMERICAN WOMEN (2015), available at https://nwlc.org/wp-content/uploads/2015/12/Native-Women-State-by-State.pdf.

4 THE WAGE GAP IS STAGNANT at 1.

5 Hegewisch, A. & Matite, M., The Gender Wage Gap by Occupation, INST. FOR WOMEN'S POLICY RESEARCH (2013), available at http://www.iwpr.org/publications/pubs/the-gender-wage-gap-by-occupation-2

6 Blau, F. D. & Kahn, L.M, The Gender Wage Gap: Extent, Trends and Explanations, NAT'L BUREAU OF ECONOMIC RESEARCH (Jan. 2016), available at http://www.nber.org/papers/w21913.pdf.

7 Id.; see NAT'L WOMEN'S LAW CTR., FIFTY YEARS AND COUNTING: THE UNFINISHED BUSINESS OF ACHIEVING FAIR PAY (2015), available at https://nwlc.org/wp-content/uploads/2015/08/final_nwlc_equal_pay_report.pdf.

8 INST. FOR WOMEN'S POLICY RESEARCH, PAY SECRECY AND WAGE DISCRIMINATION (2014), available at http://www.iwpr.org/publications/pubs/pay-secrecy-and-wage-discrimination-1/at_download/file

9 U.S. Department of Labor, Office of Federal Contract Compliance Programs, Non-Discrimination in Compensation; Compensation Data Collection Tool, Advanced Notice of Proposed Rulemaking, 76 Fed. Reg. 49398 (Aug. 10, 2011); U.S. Department of Labor, Office of Federal Contract Compliance Programs, Government Contractors, Requirement to Report Summary Data on Employee Compensation, Notice of Proposed Rulemaking, 79 Fed. Reg. 46561 (Aug. 8, 2014).

10 See SAGE COMPUTING, INC., EEOC SURVEY SYSTEM MODERNIZATION WORK GROUP MEETING 2 (Mar. 2012), available at

EEOC Survey System Modernization Work Group Meeting (PDF)

; see also, e.g., Equal Employment Advisory Council, Comments on the Office of Federal Contract Compliance Programs' Proposed Requirement to Report Summary Data on Employee Compensation (Jan. 5, 2015);  Society for Human Resource Management and the College and University Professional Association for Human Resources, Comment on Advanced Notice of Proposed Rulemaking Related to Non-Discrimination in Compensation 3-4 (Oct. 11, 2011).  

11 Under the Equal Pay Act compensation is similarly defined broadly: the term "wages" includes all payments made to [or on behalf of] an employee as remuneration for employment. The term includes all forms of compensation irrespective of the time of payment, whether paid periodically or deferred until a later date, and whether called wages, salary, profit sharing, expense account, monthly minimum, bonus, uniform cleaning allowance, hotel accommodations, use of company car, gasoline allowance, or some other name. Fringe benefits are deemed to be remuneration for employment. . . . [V]acation and holiday pay, and premium payments for work on Saturdays, Sunday, holidays, regular days of rest or other days or hours in excess or outside of the employee's regular days or hours of work are deemed remuneration for employment and therefore wage payments that must be considered in applying the EPA. 29 C.F.R. § 1620.10.

12 SAGE COMPUTING, INC., FINAL REPORT (Sept. 2015), available at

pay-pilot-study.pdf

[PILOT STUDY].

13 NATIONAL RESEARCH COUNCIL OF THE NATIONAL ACADEMIES, COLLECTING COMPENSATION DATA FROM EMPLOYERS (2012), available at http://www.nap.edu/catalog/13496/collecting-compensation-data-from-employers [NAS STUDY]. The NAS Study reviewed the wage definitions in the Occupational Employment Statistics survey (OES) and the National Compensation Survey (NCS) and concluded that the OES definition should be considered for use because it was widespread, and because of a substantial overlap in the employers who report data to the OES and EEOC. NAS STUDY at 58.

14 NAS STUDY at 56.

15 Id.; PILOT STUDY at 7.

16 PILOT STUDY at 7 n.16.

17 Id. at 7, 8. While reported W-2 wages include taxable benefits and pre-tax deductions driven by an individual employee's choices - such as mass transit and parking stipends/elections, 401(k) or retirement account contributions, and deferred compensation - these optional elements likely would not constitute a large enough part of compensation for most workers so as to create a disparity for the purposes of enforcement, nor is there reason to believe that men and women, or individuals of different races, would consistently make different choices in this regard and thus create gender or race pay disparities.

18 See King v. Univ. Health Care Sys., 645 F.3d 713 (5th Cir. 2011) (upholding a jury's conclusion that the employer violated the EPA when it failed to pay plaintiff anesthesiologist a bonus that it paid her male colleague).

19 See Bence v. Detroit Health Corp., 712 F.2d 1024, 1027 (6th Cir. 1983) (finding a compensation disparity under Equal Pay Act where the employer paid higher commission rate to males than females, even though total remuneration was substantially equal).

20 See MERCER, GENDER EQUITY REPORT (Nov. 2015), available at https://www.imercer.com/uploads/Aust/pdfs/Marketing/gender_pay_executive_summary.pdf (survey of Australian companies finding that women receive lower variable reward/incentive pay despite receiving the same performance ratings as their male counterparts; males who only partially met their objectives received bonuses that were 35 percent larger (as a percentage of employment cost) than their female counterparts).

21 Mehri, C. & Eardley, E., 21st Century Tools for Advancing Equal Opportunity: Recommendations for the Next Administration 7, AMERICAN CONSTITUTION SOCIETY (2008), available at https://www.acslaw.org/wp-content/uploads/old-uploads/originals/documents/Mehri%20FINAL.pdf.

22 Alyssa Lebeau, The New Workplace Woman: "Are We There Yet?," BUSINESS WOMAN, Fall 2001.

23 Id.

24 PILOT STUDY at 8.

25 Id.

26 26 C.F.R. § 31.6051-1

27 PILOT STUDY at 8, 101. The Pilot Study acknowledged that some companies may need to make a one-time capital investment to write a software program to import data from payroll programs into the HRIS system. PILOT STUDY at 8.

28 See id. at 42-43, 59.

29 U.S. DEP'T OF LABOR, WOMEN'S BUREAU, Women of Working Age, Chart 22 (2015), https://www.dol.gov/agencies/wb/data/latest-annual-data/working-women (last visited Mar. 8, 2016).

30 Nicholson, J., Issue Brief: Temporary Help Workers in the U.S. Labor Market, U.S. DEP'T OF COMMERCE ECONOMICS AND STATISTICS ADMIN. (July 2015), available at https://www.commerce.gov/sites/default/files/migrated/reports/temporary-help-workers-in-the-us-labor-market.pdf.

31 29 C.F.R. § 516.2.

32 Although the Fair Labor Standards Act's overtime requirements do not apply to the exempt workers at issue here, the overtime rule does establish a useful benchmark of a 40-hour workweek as a standard measure of full-time work. 29 U.S.C. § 207(a).

33 A 2014 Gallup poll of full-time, salaried workers indicated that of the workers surveyed, 37 percent worked 40 hours a week, and 59 percent worked 41 hours or more per week. The average workweek of the employees surveyed was 47 hours. GALLUP, WORK AND EDUCATION POLL (2014), available at http://www.gallup.com/poll/175286/hour-workweek-actually-longer-seven-hours.aspx. See U.S. DEP'T OF LABOR, BUREAU OF LABOR STATISTICS, THE EMPLOYMENT SITUATION - FEBRUARY 2016, Table B-2 (Mar. 4, 2016), available at http://www.bls.gov/news.release/empsit.t18.htm (average weekly hours and overtime of all employees on private nonfarm payrolls in February 2016 was 34.4 hours).

34 U.S. Department of Labor, Office of Federal Contract Compliance Programs, Government Contractors, Requirement to Report Summary Data on Employee Compensation, Notice of Proposed Rulemaking, 79 Fed. Reg. 46561 (Aug. 8, 2014).

35 41 C.F.R. § 60-1.7.

36 U.S. CENSUS BUREAU, 2014 AMERICAN COMMUNITY SURVEY, Table 1 (Full-Time, Year-Round Workers and Median Earnings in the Past 12 Months by Sex and Detailed Occupation: 2014) (2016), available at https://www.census.gov/data/tables/time-series/demo/industry-occupation/median-earnings.html.

37 26 C.F.R. § 31.6051-1.

38 29 C.F.R. § 516.2.

39 41 C.F.R. § 60-1.7.

40 Also, ensuring equal pay for female and minority workers can be good for businesses in terms of increasing consumer spending power and promoting employee satisfaction, productivity and retention. See, e.g., Access to Justice: Ensuring Equal Pay with the Paycheck Fairness Act, Hearing on S. 84 Before the S. Comm. On Health, Education, Labor & Pensions, 113th Cong. (statement of ReShonda Young, Operations Manager and Corporate Vice President, Alpha Express, Inc. & Founder and Owner, Popcorn Heaven), available at http://www.help.senate.gov/imo/media/doc/Young5.pdf; Hartmann,H., Hayes, J. & Clark, J., How Equal Pay for Working Women would Reduce Poverty and Grow the American Economy 1, INST. FOR WOMEN'S POLICY RESEARCH (2014), available at http://www.iwpr.org/publications/pubs/how-equal-pay-for-working-women-would-reduce-poverty-and-grow-the-american-economy/ (finding that the U.S. economy would have produced additional income of more than $447 billion in 2012 if women received pay equal to their male counterparts); Scott, D., McMullen, T. & Royal, M., Reward Fairness: Slippery Slope or Manageable Terrain? 2, WORLDATWORK, (2011), available at https://ecommons.luc.edu/cgi/viewcontent.cgi?article=1127&context=business_facpubs.