[Federal Register Volume 77, Number 23 (Friday, February 3, 2012)]
[Rules and Regulations]
[Pages 5396-5398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2420]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1602
RIN 3046-AA89
Recordkeeping and Reporting Requirements Under Title VII, the
ADA, and GINA
AGENCY: Equal Employment Opportunity Commission.
ACTION: Final rule.
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SUMMARY: The Equal Employment Opportunity Commission (EEOC or
Commission), through this final rule, extends its existing
recordkeeping requirements under title VII of the Civil Rights Act of
1964 (Title VII) and the Americans with Disabilities Act (ADA) to
entities covered by title II of the Genetic Information
Nondiscrimination Act of 2008 (GINA), which prohibits employment
discrimination based on genetic information.
DATES: Effective Date: April 3, 2012.
FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal
Counsel, (202) 663-4668, or Erin N. Norris, Senior Attorney, (202) 663-
4876, Office of Legal Counsel, 131 M Street NE., Washington, DC 20507.
Copies of this notice are available in the following alternate formats:
large print, Braille, electronic computer disk, and audio tape.
Requests for this notice in an alternative format should be made to the
Publications Center at 1-(800) 699-3362 (voice), 1-(800) 800-3302
(TTY), or (703) 821-2098 (Fax--this is not a toll free number).
SUPPLEMENTARY INFORMATION: On May 21, 2008, President George W. Bush
signed the Genetic Information Nondiscrimination Act of 2008 (GINA)
into law. Title II of GINA protects job applicants, current and former
employees, labor union members, and apprentices and trainees from
discrimination based on their genetic information. The coverage in
title II of GINA corresponds with that of title VII of the Civil Rights
Act of 1964, as amended, covering employers with 15 or more employees,
employment agencies, labor unions, and joint labor-management training
programs, as well as federal sector employers. Title II became
effective on November 21, 2009. EEOC has issued interpretive
regulations under GINA (See 75 FR 68912). Further, EEOC issued a final
rule implementing changes to its administrative and procedural
regulations in a separate notice found at 74 FR 63981. On June 2, 2011,
EEOC proposed to amend its recordkeeping regulations to add references
to GINA and sought public comment (76 FR 31892). EEOC received only one
comment, from an association of state credit unions. The comment
expressed support for the proposed changes. Accordingly, the Commission
has decided to adopt its proposed changes as its final rule. The final
rule does not require the creation of any documents or impose any
reporting requirements. It imposes the same record retention
requirements under GINA that apply under Title VII and the ADA, i.e.,
any records made or kept must be retained for the period of time
specified in the Title VII and ADA regulations
Regulatory Procedures
Executive Orders 12866 and 13563
The Commission has complied with the principles in section 1(b) of
Executive Order 12866, Regulatory Planning and Review, as supplemented
by Executive Order 13563, Improving Regulation and Regulatory Review.
This rule is not a ``significant regulatory action'' under section 3(f)
of the Order 12866, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of the Order.
Paperwork Reduction Act
This final rule contains information collection requirements
subject to review and approval by the Office of Management and Budget
under the Paperwork Reduction Act. It is estimated that the public
recordkeeping burden will not increase significantly as a result of the
amendments because all employers affected by them are already required
to retain all personnel or employment records that they make or keep
for a specified period of time, and the only new requirement is that
they retain any of those records relevant to a charge of discrimination
filed under GINA until the charge is resolved. As required by the
Paperwork Reduction Act, the Equal Employment Opportunity Commission
has submitted to the Office of Management and Budget a request for
approval of these information collection requirements under section
3507(d) of the Act.
Collection title: Recordkeeping under Title VII, the ADA, and GINA.
OMB number: 3046-0040.
Description of affected public: Employers with 15 or more employees
are subject to Title VII, the ADA, and GINA.
Number of respondents: 899,580.
Reporting hours: Not applicable.
Number of forms: None.
Federal cost: None.
Abstract: Section 207 of GINA, 42 U.S.C. 2000ff et seq.,
incorporates the powers, procedures, and remedies found in section 709
of Title VII. Section 709(c) of Title VII, 42 U.S.C. 2000e-8(c),
requires the Commission to establish regulations pursuant to which
employers subject to the Act shall preserve certain records to assist
the EEOC in assuring compliance with the Act's nondiscrimination in
employment requirements. Any of the records maintained which are
subsequently disclosed to the EEOC during an investigation are
protected from public disclosure by the confidentiality provision in
section 709(e) of Title VII. EEOC has previously issued recordkeeping
regulations under Title VII and the ADA which require all covered
entities to preserve all employment and personnel records that they
make or keep for a specified period of time, and to preserve all
records relevant to a Title VII or ADA charge until the charge is
resolved. This revision extends these same
[[Page 5397]]
requirements to entities covered by GINA.
Burden statement: This recordkeeping requirement does not require
reports or the creation of new documents; it merely requires retention
of documents that the employer has already made or kept, and the burden
imposed by these regulations is therefore minimal. An employer subject
to the existing requirements in 29 CFR part 1602 currently must retain
all personnel or employment records made or kept by that employer for
the period specified in the regulations, and must retain any records
relevant to charges filed under Title VII or the ADA until final
disposition of those matters, which may be longer than one year. This
rulemaking requires employers to also retain documents relevant to
charges filed under GINA until final disposition of those charges.
Existing Burdens Prior to Change
--Establishing Recordkeeping System: There are approximately 899,580
employers subject to the recordkeeping requirement in Part 1602.
According to our prior calculations, the previously approved Title VII
and ADA recordkeeping requirement in Part 1602 imposed a total burden
on covered employers in the aggregate of approximately 16,002 hours,
which represented the aggregated time that had to be spent by all new
firms taken together (an estimated 96,013 covered firms per year) to
ensure that their record maintenance systems complied with EEOC's
recordkeeping requirements. For the current approval process, we used
more recent data on the number of new firms (an estimated 94,910 per
year), which decreased the total burden to 15,818 hours. Based on the
fact that these regulations do not require employers to create any
records and do not impose any reporting requirements, but merely
require employers to maintain the records that they do create, we
estimate that it would take each new firm ten minutes or less to
comply. A summary of the recordkeeping requirements covered by this
notice, which covered entities may use to familiarize themselves and
their staffs with EEOC's recordkeeping requirements, is available at
http://www.eeoc.gov/employers/recordkeeping_obligations.cfm.
Established firms bear no burden under this analysis, because their
systems for retaining personnel and employment records are already in
place.
--Retention of Records When Charge is Filed: For firms that have
recordkeeping systems in place, the fact that a charge is filed should
not impose any additional burden, because we assume that employers set
up their recordkeeping systems in such a way as to ensure that records
related to a charge are retained in accordance with EEOC regulations.
Effect of Proposed Change on Existing Burdens
--Establishing Recordkeeping System: There will be no increase in the
existing burden as a result of this regulatory change. As stated above,
established firms bear no burden because their systems for retaining
personnel and employment records are already in place. The burden
imposed upon new firms created after the regulatory change becomes
effective would be the same as the burden shouldered by new firms prior
to the change because it will take no longer to set up a recordkeeping
system to retain records relevant to Title VII, ADA, and GINA charges
than it did to set up a recordkeeping system to retain records relevant
to Title VII and ADA charges. As a result of the above-mentioned
decrease in the number of new firms, we estimate that the aggregate
burden for new firms of establishing a compliant recordkeeping system
decreased to 15,818 hours.
--Retention of Records When Charge is Filed: The only employers who may
be subject to an increased burden are those existing firms that become
parties to charges filed under GINA and must therefore ensure that
relevant records are retained until the final disposition of the GINA
charges. We estimate that an employer that is a party to a GINA charge
will need less than ten minutes to ensure that its previously existing
system of retaining records pertinent to charges filed under Title VII
and the ADA is revised to retain records relating to charges filed
under GINA (based upon our estimate that a new firm would need ten
minutes to ensure that any recordkeeping system it maintains complies
with EEOC regulations). Assuming that 200 GINA charges will be filed,
that each charge is filed against a different employer, and using a
burden estimate of ten minutes per charge, the annual aggregate burden
would increase by only about 33 hours to 15,851.
Regulatory Flexibility Act
Title II of GINA applies to all employers with fifteen or more
employees, approximately 822,000 of which are small firms (entities
with 15-500 employees) according to data provided by the Small Business
Administration Office of Advocacy. See Firm Size Data at http://sba.gov/advo/research/data.html#us. We estimate that there will be 200
new charges filed under GINA per year. We estimate that typical human
resources professionals will need to dedicate no more than ten minutes
per charge to ensure that the employer's existing record retention
system retains any personnel documents relevant to a charge of
discrimination under GINA until the resolution of the matter. We
further estimate that the median hourly pay rate of an HR professional
is approximately $46.40. See Bureau of Labor Statistics, Occupational
Employment and Wages, May 2009 at http://www.bls.gov/oes/current/oes113049.htm. Therefore, the cost of spending ten minutes per charge
would be approximately $7.73 (one-sixth of $46.40). Even assuming that
every one of the estimated 200 GINA charges is filed against a small
business, EEOC does not believe that a cost of approximately $7.73 per
charge will be significant for the impacted small entities. Further, if
each of the 200 GINA charges was filed against a different small
entity, 200 affected firms out of 822,000 is not a substantial number
of small firms. Accordingly, the Commission certifies under 5 U.S.C.
605(b) that this rule will not have a significant economic impact on a
substantial number of small entities because any burden it may impose
on business entities is minimal. For this reason, a regulatory
flexibility analysis is not required.
Unfunded Mandates Reform Act of 1995
This final rule will not result in the expenditure by State, local,
or tribal governments, in the aggregate, or by the private sector, of
$100 million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Congressional Review Act
This action does not substantially affect the rights or obligations
of non-agency parties and, accordingly, is not a ``rule'' as that term
is used by the Congressional Review Act (Subtitle E of the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)).
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
[[Page 5398]]
List of Subjects in 29 CFR Part 1602
Administrative practice and procedure, Equal Employment
Opportunity.
Dated: January 30, 2012.
For the Commission.
Jacqueline A. Berrien,
Chair.
Accordingly, part 1602 is amended as follows:
PART 1602--RECORDKEEPING AND REPORTING REQUIREMENTS UNDER TITLE
VII, THE ADA, AND GINA
0
1. The authority citation for part 1602 continues to read as follows:
Authority: 42 U.S.C. 2000e-8, 2000e-12; 44 U.S.C. 3501 et seq.;
42 U.S.C. 12117; 42 U.S.C. 2000ff-6.
Sec. Sec. 1602.14, 1602.21, 1602.28, 1602.31 [Amended]
0
2. Amend part 1602 by removing the words ``title VII or the ADA'' and
adding in their place the words ``title VII, the ADA, or GINA'' in the
following places:
a. Sec. 1602.14.
b. Sec. 1602.21(b).
c. Sec. 1602.28(a).
d. Sec. 1602.31.
[FR Doc. 2012-2420 Filed 2-2-12; 8:45 am]
BILLING CODE 6570-01-P