UPDATED February 18, 2021: The portal is now open and can be accessed on DFEH’s pay data reporting homepage along with the guide, template, and example.

UPDATED February 3, 2021: The DFEH has released a User Guide, reporting Template, and reporting Example. The portal will be available on February 16, 2021.

SB 973, enacted on September 30, 2020, requires private employers of 100 or more employees (with at least one employee in California) to report pay and demographic data to the Department of Fair Employment and Housing (DFEH) by March 31, 2021 and annually thereafter. The DFEH recently has updated its FAQs to provide more details about the reporting process and has indicated it will further provide a User Guide and reporting Template by February 1, 2021.

The information that eligible employers must report includes two components:

  1. The number of employees by race, ethnicity, and sex in ten different job title categories: (A) Executive or senior level officials and managers, (B) First or mid-level officials and managers, (C) Professionals, (D) Technicians, (E) Sales workers, (F) Administrative support workers, (G) Craft workers, (H) Operatives, (I) Laborers and helpers, and (J) Service workers; and
  2. The number of employees by race, ethnicity and sex, whose annual earnings fall within each of the pay bands used by the U.S. Bureau of Labor Statistics in the Occupational Employment Statistics survey (the current ranges may be found on page 4 here).

Employers must choose the single pay period between October 1 and December 31 of the “Reporting Year” (the prior calendar year) that will serve as their “Snapshot Period.”

Highlights from the updated guidance are as follows:

Required content

  • Employers should report employees’ sex according to three categories: female, male, and non-binary.
  • A temporary services employer must report on the workers that it places on assignment at other companies if those workers are the “employees” of the temporary services employer (that is, on the payroll of the temporary services employer).
  • California’s pay data reporting requirement only applies to employers that file EEO-1 reports.
  • Employers may submit a federal EEO-1 Report to the DFEH to satisfy their obligation only if the EEO-1 Report “contain[s] the same or substantially similar pay data information.” Cal. Gov’t Code § 12999(g). No EEO-1 Report filed with the U.S. Equal Employment Opportunity Commission (EEOC) for Reporting Year 2020 will satisfy this standard since the EEO-1 survey is not currently collecting pay data.

Calculating pay and hours worked

  • Employers should not annualize earnings for employees who did not work the entire Reporting Year.
  • Employers must include paid time off in the hours worked calculation, unlike the federal EEO-1 Component 2 collection from 2017 and 2018 in which the EEOC required employers to exclude time on paid leave when calculating hours worked.
  • When employers create their snapshot and assign employees to a particular pay band, employers should use Form W-2’s Box 5 (Medicare wages and tips) for reporting pay.

Multi-establishment employers

  • A California employer with multiple establishments must report on all of its establishments, including those with fewer than 50 employees.
  • A multiple-establishment employer’s headquarters is a distinct establishment reported in the same manner as other establishments.
  • For the pay data reports due to the DFEH by March 31, 2021, employers should utilize the same establishments that they use for their EEO-1 reports and assign employees to the establishment where the employer reports the employee for EEO-1 purposes.
  • Employers with multiple establishments must report all of their establishment-level data in a single report. They must include their employees assigned to California establishments and/or working within California. Multiple-establishment employers may report non-California employees.
  • If employees telework from a residence in California, but are assigned to an establishment outside of California, an employer’s report must include establishments outside of California if any employee at that establishment is working from California during the Snapshot Period. For an establishment outside of California, the employer has two options: 1) to report only those employees teleworking from California and who are assigned to a single establishment outside of California or 2) to report all employees assigned to that establishment outside of California.

We will continue to monitor the DFEH updates to the pay data reporting process. For further information on the reports due in less than 90 days (i.e., on March 31, 2021), please contact Tony Oncidi or Kate Gold in Proskauer’s Los Angeles office.

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.

Photo of Michelle Lappen Michelle Lappen

Michelle Lappen is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She assists clients in a wide range of labor and employment matters in a variety of industries, including entertainment, financial services, and…

Michelle Lappen is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She assists clients in a wide range of labor and employment matters in a variety of industries, including entertainment, financial services, and technology.

Michelle earned her J.D. from Columbia Law School, where she was an articles and submissions editor for the Columbia Journal of Law & the Arts. During law school, she also was a teaching fellow for the Advanced Negotiation Workshop and advocated for state and federal legislation as a clinical student in the Columbia Law Health Justice Advocacy Clinic.