[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