Pay Data Reporting


Under California legislation enacted on September 30, 2020 (Senate Bill 973) private employers of 100 or more employees (with at least one employee in California) must report certain pay and other data to the Department of Fair Employment and Housing (DFEH) by March 31, 2021 and annually thereafter. For the online California Pay Data Reporting Portal, user guide to the portal, and the template that employers can use to create their reports, visit the California Pay Data Reporting page. Below, please find answers to frequently asked questions. Please write to paydata.reporting@dfeh.ca.gov to pose additional questions not answered below.

I. INTRODUCTION

Why does California require large employers to report pay data to DFEH?

(11/02/2020) In SB 973, the California Legislature required employers of 100 or more employees to report to DFEH pay and hours-worked data by establishment, job category, sex, race, and ethnicity (hereinafter “pay data”). In enacting this legislation, the Legislature found that “[d]espite significant progress made in California in recent years to strengthen California’s equal pay laws, the gender pay gap persists, resulting in billions of dollars in lost wages for women each year in California. Pay discrimination is not just a women’s issue, but also harms families and the state’s economy. In California, in 2016, women working full time, year round made a median 88 cents to every dollar earned by men, and for women of color, that gap is far worse. Although there are legitimate and lawful reasons for paying some employees more than others, pay discrimination continues to exist, is often ‘hidden from sight,’ and can be the result of unconscious biases or historic inequities.”

By creating a system by which large employers report pay data annually to DFEH, the Legislature sought to encourage these employers to self-assess pay disparities along gendered, racial, and ethnic lines in their workforce and promote voluntary compliance with equal pay and anti-discrimination laws. In addition, SB 973 authorized DFEH to enforce the Equal Pay Act (Labor Code section 1197.5), which prohibits unjustified pay disparities. The Fair Employment and Housing Act (Gov. Code § 12940 et seq.), already enforced by DFEH, prohibits pay discrimination. Employers’ pay data reports will allow DFEH to more efficiently identify wage patterns and allow for effective enforcement of equal pay or anti-discrimination laws, when appropriate. DFEH’s strategic vision is a California free of discrimination.

Where is California’s pay data reporting requirement codified in law?

(11/02/2020) The pay data reporting requirement is contained in Government Code section 12999. In addition, DFEH intends to issue regulations implementing this statute consistent with DFEH’s existing regulations (California Code of Regulations, Title 2, Division 4.1).

Will an employer’s pay data be publicly available?

(11/02/2020) Government Code 12999(i) prohibits DFEH, the Division of Labor Standards Enforcement (DLSE), and their staff from making “public in any manner whatever any individually identifiable information obtained pursuant to their authority under this section prior to the institution of an investigation or enforcement proceeding by [DFEH and/or DLSE] under Section 1197.5 of the Labor Code or Section 12940 involving that information, and only to the extent necessary for purposes of the enforcement proceeding. For the purposes of this section, ‘individually identifiable information’ means data submitted pursuant to this section that is associated with a specific person or business.”

In addition, Government Code section 12999(j) provides that “any individually identifiable information” (defined above) submitted to DFEH shall be considered confidential information and not subject to disclosure pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1).”

May DFEH publish reports based on data aggregated from multiple employers?

(11/02/2020) Pursuant to Government Code section 12999(k), “[DFEH] may develop, publish on an annual basis, and publicize aggregate reports based on the data obtained pursuant to their authority under this section, provided that the aggregate reports are reasonably calculated to prevent the association of any data with any individual business or person.”

How long will DFEH keep employers’ pay data?

(11/02/2020) DFEH “shall maintain pay data reports for not less than 10 years.” Gov. Code § 12999(l).

How will DFEH keep the data submitted by employers secure?

(11/02/2020; updated 01/15/2021) DFEH takes data security and privacy very seriously. DFEH’s pay data reporting system uses end-to-end encryption for transmission and storage of all employer-submitted data. The system is housed in a secure government cloud environment that meets FedRAMP and NIST Federal and State requirements for data protection. For more information, see FAQ “Will an employer’s pay data be publicly available?”

Does the federal government already collect pay data from large employers?

(11/02/2020) In SB 973, the California Legislature explained: “Recognizing that pay discrimination is difficult to detect and address, the Obama Administration announced a proposed revision to the Employer Information Report (EEO-1) to include the reporting of pay data by gender, race, and ethnicity beginning in 2018. However, in August 2017, the Trump Administration put a halt to the implementation of this new rule.” Following a federal court ruling, the U.S. Equal Employment Opportunity Commission (EEOC) was ordered to and did collect these data for 2017 and 2018. Since then, the EEOC has stopped collecting these data.

II. FILING REQUIREMENTS

Will DFEH’s pay data reporting system be similar to the one used by the EEOC to collect EEO-1 Component 2 data?

(11/02/2020) To ease reporting by employers, DFEH is endeavoring to create a system that closely resembles the EEOC’s system to the extent permitted by state statute.

What is the deadline for employers to submit their pay data report(s) to DFEH?

(11/02/2020; updated 04/01/21; updated 06/30/2021) The deadline for filing a pay data report with DFEH is annually on March 31. For reports due by March 31, 2021, the deadline has passed to obtain an enforcement deferral period (see FAQ “May an employer receive a deferral period to file its pay data report after the March 31 deadline?”).

May an employer receive a deferral period to file its pay data report after the March 31 deadline?

(04/01/2021) The deadline to submit a pay data report for calendar year 2020 was March 31, 2021. Between February 16 and March 31, 2021, DFEH granted employers’ requests to have until April 30, 2021 to file their reports (known as an “enforcement deferral period”). DFEH is no longer considering such requests. If you missed the March 31, 2021 filing deadline and did not obtain an enforcement deferral period, you must file your report immediately to avoid DFEH taking further action to ensure compliance. DFEH may seek a court order requiring an employer to comply with California’s pay data reporting requirements and shall be entitled to recover the costs associated with seeking the order for compliance. Gov. Code § 12999(h).

(02/03/2021; updated 03/16/2021) The deadline for filing a pay data report with DFEH is annually on March 31. Gov. Code § 12999(a). If DFEH has not received a required report by the deadline, DFEH “may seek an order requiring the employer to comply with [California’s pay data reporting] requirements and shall be entitled to recover the costs associated with seeking the order for compliance.” Gov. Code § 12999(h). In light of the COVID-19 pandemic and the newly required pay data reporting under California law in 2021, DFEH will consider an employer’s request that DFEH defer seeking an order for compliance with respect to a report due by March 31, 2021. To request that DFEH defer seeking such an order for compliance (known as an “enforcement deferral period”), an employer must fill out DFEH’s online request form before March 31, 2021, providing the reason for the request and other required information. DFEH will not consider requests submitted through any other method, such as email or phone. Nor will DFEH consider a request submitted by a third party on behalf of an employer, such as a Professional Employer Organization (PEO); the employer itself must submit the request, and any approved enforcement deferral period will apply only to that employer. To request a deferral period, please follow the link to the deferral request page. An employer that is granted such a deferral will have through April 30, 2021 to file its report with DFEH. Deferral periods will not be granted beyond April 30, 2021. Employers are advised to not expect that DFEH will, in future years, similarly defer seeking an order for compliance.

How do employers submit their pay data reports to DFEH?

(11/02/2020; updated 01/15/2021; updated 06/30/2021) SB 973 was enacted on September 30, 2020. In December 2020, DFEH awarded an offer to OnCore Consulting LLC to provide the necessary IT infrastructure for California’s pay data reporting system, including a secure online California Pay Data Reporting portal. In January 2021, DFEH awarded an offer to National Opinion Research Center (NORC) to consult on this project. NORC constructed and ran the EEO-1 Component 2 collection for the EEOC.

DFEH’s California Pay Data Reporting portal is available at https://pdr.dfeh.ca.gov. A user guide for the portal and a report template (including detailed instructions and examples) are also available. To file, an employer will register and then submit their pay data report either by uploading an Excel using DFEH’s template (suggested method), a .CSV file using the instructions in the user guide, or by using the portal’s fillable form. The portal, user guide, and Excel template can be accessed at The portal, user guide, and template can be accessed at www.dfeh.ca.gov/paydatareporting.

Employers must use the online portal to submit their reports. DFEH will not accept reports by email or hard copy.

Multiple-establishment employers must report all of their establishment-level data in a single report. Multiple-establishment employers do not report consolidated data. That is because a multiple-establishment employer must report on all of its establishments, including those with fewer than 50 employees, in the same manner, because Government Code section 12999 does not differentiate between establishment size. In other words, DFEH does not permit employers to submit what is known in the federal EEO-1 survey as a “Type 6” list of establishments of fewer than 50 employees. So as to reduce the potential for confusion, DFEH has slightly updated some answers in these FAQs to reflect the fact that multiple-establishment employers will be submitting a single report containing all establishment-level data and will not submit consolidated data.

Are there standard forms that employers should use to submit their pay reports to DFEH?

(11/02/2020; updated 01/15/2021) This question is answered in the FAQ “How do employers submit their pay data reports to DFEH?”

Must employers submit their pay data reports in a particular electronic file format?

(11/02/2020; updated 01/15/2021) This question is answered in the FAQ “How do employers submit their pay data reports to DFEH?”

What are the penalties for employers who fail to file?

(11/02/2020) “If [DFEH] does not receive the required report from an employer, the department may seek an order requiring the employer to comply with these requirements and shall be entitled to recover the costs associated with seeking the order for compliance.” Gov. Code § 12999(h).

III. REQUIRED CONTENT

What is the “Reporting Year”?

(11/23/2020) A pay data report shall “cover[] the prior calendar year, which, for purposes of this section, shall be referred to as the ‘Reporting Year.’” Gov. Code § 12999(a). For example, a pay data report submitted to DFEH in 2021 will contain pay and hours-worked data from calendar year 2020 for employees employed during the Snapshot Period; 2020 is the Reporting Year.

What is the “Snapshot Period”?

(11/23/2020; updated 02/02/2021) The “Snapshot Period” is a single pay period between October 1 and December 31 of the Reporting Year. Gov. Code § 12999(b)(3). Employers are free to choose the single pay period between October 1 and December 31 of the Reporting Year that will serve as their Snapshot Period. As explained more below, the Snapshot Period is used by employers to identify the employees to be reported on in the pay data report submitted to DFEH. See Gov. Code §§ 12999(b)(3) & 12999(b)(4).

Some employers have noted that they have different pay periods (e.g., some employees are paid bi-weekly and some are paid monthly) and have asked for guidance on how to pick their Snapshot Period. It is important to understand the purpose of the Snapshot Period. The Snapshot Period is not the period of time for calculating an employee’s pay or hours worked (see Parts IV and V below for more information). Instead, the Snapshot Period is used by an employer only to identify its employees who must be reported on in the employer’s pay data report; an employer must pick a fixed period of time to identify the employees to be reported on because an employer’s employees will usually change over the course of the year. Importantly, when identifying the employees to be reported on, it does not matter whether an employee was paid during the Snapshot Period; it only matters whether the employee was employed during the Snapshot Period.

For example, assume an employer has the same 200 employees for all of October 2020, and 100 employees are paid bi-weekly and 100 employees are paid monthly. Assume further the employer picks October 1 to October 15 as its Snapshot Period. For its pay data report, the employer would report on all 200 employees because they were all employed by the employer during the Snapshot Period, even if 100 of them did not receive pay in the Snapshot Period selected.

Which employers are required to submit pay data reports to DFEH?

(11/23/2020) Under Government Code section 12999(a), a private employer that has 100 or more employees (anywhere in the U.S. as long as it has one employee in California) and who is required to file an annual Employer Information Report (EEO-1) pursuant to federal law shall submit a pay data report to DFEH. An employee is “an individual on an employer’s payroll, including a part-time individual, whom the employer is required to include in an EEO-1 Report and for whom the employer is required to withhold federal social security taxes from that individual’s wages.” Gov. Code § 12999(m)(1).

An employer has the requisite number of employees if the employer either employed 100 or more employees in the Snapshot Period chosen by the employer or regularly employed 100 or more employees during the Reporting Year. “Regularly employed 100 or more employees during the Reporting Year” means employed 100 or more individuals on a regular basis during the Reporting Year. “Regular basis” refers to the nature of a business that is recurring, rather than constant. See Cal. Code Regs., tit. 2, §§ 11008(d)(1) & 11008(d)(1)(A). For example, in an industry that typically has a three-month season during a calendar year, an employer that employed 100 or more employees during that season regularly employed the requisite number of employees and would be required to file a pay data report to DFEH, if the employer is also required to file an EEO-1 Report.

Employees located inside and outside of California are counted when determining whether an employer has 100 or more employees. See Cal. Code Regs., tit. 2, § 11008(d)(1)(C). For example, an employer that had 50 employees inside California and 50 employees outside of California during the Reporting Year would be required to submit a pay data report to DFEH. An employer with no employees in California during the Reporting Year would not be required to file a pay data report with DFEH.

Part-time employees, including those who work partial days and fewer than each day of the work week, are counted the same as full-time employees. For example, for counting purposes, an employer has 100 employees when 60 individuals work every day and 40 individuals work alternate days to fill 20 positions, and there are no more than 80 individuals working on any working day. Employees on paid or unpaid leave, including California Family Rights Act (CFRA) leave, pregnancy leave, disciplinary suspension, or any other employer-approved leave of absence, are counted. See Cal. Code Regs., tit. 2, § 11008(d)(1)(B).

Consistent with federal EEO-1 filing requirements, an employer with fewer than 100 employees is required to file with DFEH if the company is owned or affiliated with another company, or there is centralized ownership, control or management (such as central control of personnel policies and labor relations) so that the group legally constitutes a single enterprise, and the entire enterprise employs a total of 100 or more employees.

What is a “private” employer? If our company is publicly-traded on a stock market, are we a required to comply with California’s pay data reporting requirement?

(02/04/2021) For purposes of Government Code section 12999, a “private employer” refers to any employer that is not a government employer. Regardless of whether the employer is publicly-traded, a private employer is required to comply with California’s pay data reporting requirement if it has the threshold number of employees (inside and outside of California), at least one employee in California, and is required to file an EEO-1 Report. For more information, see FAQ “Which employers are required to submit pay data reports to DFEH?”

When determining whether an employer has 100 or more employees, does the employer count temporary workers provided by a staffing agency or independent contractors?

(11/23/2020) For purposes of pay data reporting to DFEH, Government Code section 12999(m)(1) defines “employee” to mean “an individual on an employer’s payroll, including a part-time individual, whom the employer is required to include in an EEO-1 Report and for whom the employer is required to withhold federal social security taxes from that individual’s wages.” If any temporary worker provided by a staffing agency or any independent contractor meets this definition of “employee,” then that individual is counted.

Is an organization that files a federal EEO-3 Report (formerly known as the Local Union Report), EEO-4 Report (formerly known as the State and Local Government Report), or EEO-5 Report (formerly known as Elementary-Secondary Staff Information Report), and does not file an EEO-1 Report, subject to California’s pay data reporting requirement?

(01/07/2021) No. California’s pay data reporting requirement only applies to employers that are required to file EEO-1 Reports. Gov. Code § 12999(a).

I did not file an EEO-1 Report in 2020 because the EEOC postponed the EEO-1 survey last year. Does that mean I do not need to file a pay data report with DFEH?

(02/17/2021) No. A private employer that meets the threshold number of employees (see FAQ “Which employers are required to submit pay data reports to DFEH?”) is subject to California’s pay data reporting requirement if it is required to file an annual EEO-1 Report pursuant to federal law. Gov. Code § 12999(a). In determining whether an employer is required to file an annual EEO-1 Report, the question is not whether the employer actually filed such a report or when the employer filed it. Thus, an employer must file a California pay data report with DFEH for Reporting Year 2020 (by March 31, 2021) if the employer is subject to EEO-1 reporting requirements under law, regardless of whether and when the employer actually files its federal report.

Are there different types of pay data reports?

(11/23/2020; updated 01/15/2021) Whether a single-establishment employer or multiple-establishment employer, each employer will submit a single pay data report to DFEH.

Multiple-establishment employers must report all of their establishment-level data in a single report. Multiple-establishment employers do not report consolidated data. That is because a multiple-establishment employer must report on all of its establishments, including those with fewer than 50 employees, in the same manner, because Government Code section 12999 does not differentiate between establishment size. In other words, DFEH does not permit employers to submit what is known in the federal EEO-1 survey as a “Type 6” list of establishments of fewer than 50 employees.

Further, for California pay data reporting, a multiple-establishment employer’s headquarters is a distinct establishment reported in the same manner as other establishments.

For more information about how an employer creates and submits their report, see FAQ “How do employers submit their pay data reports to DFEH?”

May a parent company submit a pay data report covering its subsidiaries?

(02/10/2021) Generally, California’s pay data report is purposefully designed to cover a single employer, its component establishments (if it has more than one establishment), and its employees who are assigned to those establishments. For a parent company and subsidiaries that are required to file with DFEH (see FAQ “Which employers are required to submit pay data reports to DFEH?”, among others), the parent company may – but is not required to – submit a pay data report covering itself and its subsidiaries only if the companies constitute a single legal entity. In such a filing, the parent company would be the “employer” in Section I of the report, and Section II would cover all of the parent company’s and subsidiaries’ establishments and employees being reported on (with the applicable FEIN and SEIN provided in the clarifying remarks field for each row).

Alternatively, the parent company and subsidiaries may each submit its own pay data report. In such a filing by a subsidiary, for example, the subsidiary would be the “employer” in Section I of the report (and the parent company would be identified in the specified fields in Section I), and Section II would cover the establishments and employees of the subsidiary.

If a parent company and its subsidiaries do not constitute a single legal entity, each separate company must file a separate report.

What information must be contained in a pay data report?

(11/23/2020; updated 01/15/2021) DFEH’s portal, user guide, and template specify the required information, which includes but may not be limited to:

  1. For each establishment, during the Snapshot Period, the number of employees by race, ethnicity, and sex in each of the following ten job categories: Executive or senior level officials and managers; First or mid-level officials and managers; Professionals; Technicians; Sales workers; Administrative support workers; Craft workers; Operatives; Laborers and helpers; and Service workers.
  2. For each establishment, during the Snapshot Period, the number of employees by race, ethnicity, and sex, whose annual earnings fall within each of the pay bands used by the United States Bureau of Labor Statistics in the Occupational Employment Statistics survey. For purposes of establishing the numbers to be reported under this paragraph (2), the employer shall identify the total earnings during the Reporting Year, as shown on the Internal Revenue Service Form W-2 Box 5, for each employee in the Snapshot, regardless of whether the employee worked for the full calendar year.
  3. For the entire Reporting Year, the total number of hours worked by each employee plus the hours the employee was on any form of paid time off for which the employee was paid by the employer (such as vacation time, sick time, or holiday time).
  4. The Reporting Year and the dates of the Snapshot Period selected by the employer.
  5. The employer’s name, address, headquarters’ address (if different), California and federal Employer Identification Number, North American Industry Classification System (NAICS) code, Duns and Bradstreet number, number of employees inside and outside of California, number of establishments inside and outside of California, and whether the employer is a California state contractor. If applicable, the name and address of the employer’s parent company or parent companies.
  6. For a multiple-establishment employer’s establishments, each establishment’s name, address, number of employees, and major activity.
  7. Any clarifying remarks.
  8. A certification that the information contained in the pay data report is accurate and prepared in accordance with Government Code section 12999 and DFEH’s instructions, and the name, title, signature, and date of signature of the certifying official.
  9. The name, title, address, phone number, and email address of someone who can be contacted about the report.

Should an employer’s pay data report only include their California employees or all employees?

(11/23/2020; updated 01/15/2021) As explained above, an employer is required to file a pay data report with DFEH if the employer has 100 or more employees (inside and outside of California), is required to file an EEO-1 report, and has at least one employee in California. See previous FAQ “Which employers are required to submit pay data reports to DFEH?”

When reporting to DFEH, employers must include their employees assigned to California establishments and/or working within California, and employers may include their other employees. Thus, DFEH expects that a single-establishment employer in California will include on its pay data report all employees (including any employees outside of California) whether or not teleworking.

Similarly, DFEH expects that a multiple-establishment employer with establishments only in California will include across its establishment-level data in its report all employees (including any employees outside of California) whether or not teleworking.

For multiple-establishment employers with establishments inside and outside of California, the employer: (A) must report to DFEH on its California establishments, all of its employees assigned to those establishments (including any employees outside of California) whether or not teleworking, and any other California employee (including those teleworking from California but assigned to an establishment outside of California); and (B) may report to DFEH on its establishments and employees not covered by (A). DFEH is providing employers with these options because one option may be less burdensome for employers than the other in light of federal EEO-1 reporting.

For example, if an employer has one establishment in California with 50 employees (with three workers telecommuting from Nevada during the Snapshot Period) and one establishment in Nevada with 50 employees (with three workers telecommuting from California during the Snapshot Period), the employer would submit a report with: (1) establishment-level data for their California establishment that covers all 50 employees, including those teleworking from Nevada; and (2) establishment-level data for their Nevada establishment that covers either only the employees teleworking from California or all 50 employees assigned to the Nevada establishment.

If employees telework from a residence outside of California, but are assigned to an establishment in California, should they be included on the pay data report?

(11/23/2020) Yes. See previous FAQ “Should an employer’s pay data report only include their California employees or all employees?”

If employees telework from a residence in California, but are assigned to an establishment outside of California, should they be included on the pay data report?

(11/23/2020; updated 01/15/2021) Yes. 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’s reporting would cover either only those employees teleworking from California and who are assigned to a single establishment outside of California or all employees assigned to that establishment outside of California. DFEH is providing employers with these options because one option may be less burdensome for employers than the other in light of EEO-1 reporting.

For example, if an employer has 100 employees assigned to an establishment in Oregon (five of whom are teleworking from California during the Snapshot Period) and 100 employees assigned to an establishment in Arizona (five of whom are teleworking from California during the Snapshot Period), the employer would submit a report with: (1) establishment-level data for the Oregon establishment that covers either the five employees teleworking from California or all 100 employees at the establishment; and (2) establishment-level data for the Arizona establishment that covers either the five employees teleworking from California or all 100 employees at the establishment.

Should employees assigned to an establishment in California but who work at client sites outside of California be included in the employer’s pay data report?

(11/23/2020) Yes. Please see previous FAQ “Should an employer’s pay data report only include their California employees or all employees?”

Must employers report on employees who were employed during the Snapshot Period even if they were no longer active employees by December 31st of the Reporting Year?

(11/23/2020) Yes. Even if an employee resigned or was terminated before December 31 of the Reporting Year, the employee should be reported on if the employee was employed during the Snapshot Period.

Should an employer’s pay data report include an employee who is on leave during the Snapshot Period?

(02/25/2021) For California pay data reporting, an employee is defined as “an individual on an employer’s payroll, including a part-time individual, whom the employer is required to include in an EEO-1 Report and for whom the employer is required to withhold federal social security taxes from that individual’s wages.” Gov. Code § 12999(m)(1). Any person who meets this definition – including those on paid or unpaid leave – must be included in the employer’s pay data report (assuming the employee works in California or is assigned to a California establishment). For more information about which employees must be reported on, see Part III of these FAQs. For more information about the Snapshot Period, see FAQ “What is the ‘Snapshot Period’?”

Should an employer’s pay data report include an employee who works in California but reports to an establishment in a U.S. territory or outside of the United States?

(02/25/2021) For California pay data reporting, an employee is defined as “an individual on an employer’s payroll, including a part-time individual, whom the employer is required to include in an EEO-1 Report and for whom the employer is required to withhold federal social security taxes from that individual’s wages.” Gov. Code § 12999(m)(1). Any person who meets this definition must be included in the employer’s pay data report (assuming the employee works in California or is assigned to a California establishment). For more information about which employees must be reported on, see Part III of these FAQs.

If an employee lives in California but physically works at an establishment outside of California, does the employer need to report that employee?

(02/25/2021) No, unless the employee works in California. For example, if such an employee regularly teleworks from California, the employee must be included in the pay data report. For more information, see FAQs “Should an employer’s pay data report only include their California employees or all employees?” and “If employees telework from a residence in California, but are assigned to an establishment outside of California, should they be included on the pay data report?”

Does a temporary services employer report on the temporary staff that they place on assignment at other companies?

(01/07/2021) In addition to reporting on its permanent employees, 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 employers. Government Code 12999(m)(1) defines “employee” to mean “an individual on an employer’s payroll, including a part-time individual, whom the employer is required to include in an EEO-1 Report and for whom the employer is required to withhold federal social security taxes from that individual’s wages.” Thus, a temporary services employer must report to DFEH on those workers assigned to client employers but who are on the payroll of the temporary services employer and who are required to be included on the temporary services employer’s EEO-1 Report.

How should employers assign employees to a job category?

(11/23/2020; updated 02/04/2021) Employers should assign each employee to one of the ten job categories listed in previous FAQ “What information must be contained in a pay data report?” and in Government Code section 12999(b)(1). All jobs are considered as belonging in one of these ten categories. For consistency with federal EEO-1 reporting, employers should follow the EEO-1 Job Classification Guide or other guidance issued by the EEOC on job classification.

Which pay bands should an employer use?

(11/23/2020) Even though California has a higher minimum wage than is established under federal law, employers’ pay data reports must utilize the pay bands established by the U.S. Bureau of Labor Statistics (BLS) in the Occupational Employment Statistics survey, which currently are:

  1. $19,239 and under
  2. $19,240 – $24,439
  3. $24,440 – $30,679
  4. $30,680 – $38,999
  5. $39,000 – $49,919
  6. $49,920 – $62,919
  7. $62,920 – $80,079
  8. $80,080 – $101,919
  9. $101,920 – $128,959
  10. $128,960 – $163,799
  11. $163,800 – $207,999
  12. $208,000 and over

How should employers report employees’ race and ethnicity?

(11/23/2020; updated 02/04/2021) For consistency with federal EEO-1 reporting, employers should follow the EEOC’s longstanding instructions for race and ethnicity identification. Specifically, employers must report employees according to these seven race/ethnicity categories:

  • Hispanic/Latino
  • Non-Hispanic/Latino White
  • Non-Hispanic/Latino Black or African American
  • Non-Hispanic/Latino Native Hawaiian or Other Pacific Islander
  • Non-Hispanic/Latino Asian
  • Non-Hispanic/Latino American Indian or Alaskan Native
  • Non-Hispanic/Latino Two or More Races

DFEH recognizes the limitations of these categorizations, but is initially adopting these from the EEO-1 survey for consistency with federal reporting and to ease reporting burden on employers. Employee self-identification is the preferred method of identifying race/ethnicity information. If an employee declines to state their race/ethnicity, employers must still report the employee according to one of the seven race/ethnicity categories, using — in this order — current employment records, other reliable records or information, or observer perception.

How should employers report employees’ sex?

(11/23/2020; updated 02/04/2021) Under the Gender Recognition Act of 2017 (Senate Bill 179), California officially recognizes three genders: female, male, and non-binary. Therefore, employers should report employees’ sex according to these three categories. Employee self-identification is the preferred method of identifying sex information. If an employee declines to state their sex, employers must still report the employee according to one of the three sex categories, using current employment records or other reliable records or information such as an employee’s own pronoun. Unlike the EEO-1 Component 2 data collection from 2017 and 2018, DFEH requires employers to report non-binary employees in the same manner as male and female employees.

May an employer submit a federal EEO-1 Report to DFEH to satisfy its obligation under Government Code section 12999?

(11/23/2020; updated 01/15/2021) Yes, but only if the EEO-1 Report “contain[s] the same or substantially similar pay data information required” by Government Code section 12999. Gov. Code § 12999(g). Because the EEO-1 survey is not collecting pay data at this time, no EEO-1 Report filed with the EEOC for Reporting Year 2020 will satisfy this standard.

Some employers have inquired whether they are permitted to submit reports to DFEH using the scripts/programs they developed for the EEO-1 Component 2 collection from 2017 and 2018. DFEH has endeavored to build a reporting system that closely resembles the EEO-1 Component 2 collection in order to ease burden on employers. However, as explained in these FAQs, the California requirements differ in certain ways from the EEO-1 Component 2 collection from 2017 and 2018. Therefore, employers must use DFEH’s template or the fillable form on DFEH’s portal to create and submit their reports.

How do I know if an employer is a contractor with the state of California?

(03/29/2021) An employer is a state contractor if it has a contract with the state of California, which is information that each individual employer would have. The terms “state contract” and “contractor” are defined in the California Code of Regulations as follows:

  • “Contract” or “state contract” means all types of agreements, regardless of what they may be called, for the purchase or disposal of supplies, services, or construction to which a contract awarding agency is a party. It includes awards and notices of award; contracts of a fixed-price, cost, cost-plus-a-fixed-fee, or incentive type; contracts providing for the issuance of job or task orders. It also includes supplemental agreements or contract modifications with respect to any of the foregoing.
  • “Contract awarding agency” or “awarding agency” means any department, agency, board, commission, division or other unit of the State of California, which is authorized to enter into state contracts.
  • “Contractor” means any person having a contract with a contract awarding agency or a subcontract for the performance of a contract with such an agency.

See Cal. Code Regs., tit. 2, § 11100(e) – (g).

IV. PAY

What measure of pay should employers use to assign employees to the appropriate pay band?

(01/07/2021; updated 02/01/2021) In addition to identifying the job category, race, ethnicity, and sex of each of its employees in the Snapshot Period, the employer assigns those employees to the appropriate pay bands within each job category. For more information about the pay bands employers should use, see FAQ “Which pay bands should an employer use?”

To identify the particular pay band in which to count an employee, the employer “shall calculate the total earnings, as shown on the Internal Revenue Service Form W-2,” for each employee in the Snapshot, for the entire Reporting Year. Gov. Code § 12999(b)(4). For the purposes of the pay data reports due to DFEH by March 31, 2021, employers must use “W-2 Box 5 – Medicare wages and tips” for the entire Reporting Year. However, if any employee has wages not reported in Box 5, as may be the case for an H-2A visa holder for example, use W-2 Box 1 for that employee and note this in the associated remarks field.

Unlike the federal EEO-1 Component 2 collection from 2017 and 2018, in which the EEOC required employers to use W-2 Box 1, DFEH is generally requiring W-2 Box 5.

May an employer use the “federal proxy” for calculating the hours worked by exempt employees who do not keep records of their hours?

(02/25/2021) As explained in the FAQ “How are employees’ total hours worked calculated?”, employers may use a proxy methodology for calculating the hours worked by exempt employees who do not keep records of their hours. As also explained in that FAQ, employers are to calculate such an employee’s total hours worked by multiplying the total number of days actually worked plus the total number of days on any form of paid leave for which the employee was paid by the employer (such as vacation time, sick time, or holiday time), by the average number of hours worked per day by the employee.

To identify the average number of hours worked per day by a particular employee, DFEH does not expect an employer to retroactively track the employee’s hours. Instead, DFEH expects the employer to make a reasonable estimation based on available information. A reasonable estimation may be 8 hours per day for a full-time employee and 4 hours per day for a part-time exempt employee. Therefore, DFEH’s approach is not inconsistent with the EEOC’s approach in the EEO-1 Component 2 collection from 2017 and 2018. In that collection, the EEOC permitted employers to “report a proxy of 40 hours per week for full-time exempt employees and 20 hours per week for part-time exempt employees, multiplied by the number of weeks the employees were employed during the EEO-1 Component 2 reporting year.”

Should employers calculate and report annualized earnings for employees who did not work the entire Reporting Year?

(01/07/2021) No. The employer must use the W-2 Box 5 income of an employee, regardless of whether the employee worked the full calendar year. Employers should not annualize an employee’s earnings if they did not work the entire Reporting Year. For example, if an employee started work on July 1, 2020 with an annual salary of $100,000 and her 2020 W-2 Box 5 income is $50,000, the employee should be counted in the pay band encompassing $50,000, not $100,000.

If an employee’s W-2 is corrected, what should an employer do?

(01/07/2021) If an employee’s W-2 is corrected before the employer submits its pay data report to DFEH, the employer should report the corrected W-2 information. If an employee’s W-2 is corrected after the employer submits its pay data report to DFEH, and the correction would put the employee in a different pay band than originally reported or would otherwise require a correction on the employer’s pay data report, the employer should promptly submit a corrected pay data report to DFEH, identifying the corrected cells and explaining the correction in the remarks field(s).

V. HOURS WORKED

How are employees’ total hours worked calculated?

(01/07/2021; updated 02/02/2021) In addition to identifying the job category, pay band, race, ethnicity, and sex of each of its employees in the Snapshot Period, the employer calculates the total hours worked by each of those employees.

When calculating the total hours worked of a non-exempt employee for the purposes of the pay data reports due to DFEH by March 31, 2021, employers should utilize timesheets (or other records) to calculate the actual hours worked by the employee plus the hours the employee was on any form of paid time off for which the employee was paid by the employer (such as vacation time, sick time, or holiday time). “Non-exempt” employees are covered by orders of the California Industrial Welfare Commission and/or the federal Fair Labor Standards Act (FLSA).

When calculating the total hours worked of an exempt employee for the purposes of the pay data reports due to DFEH by March 31, 2021, employers should utilize either timesheets (or other records) to calculate the actual hours worked by the employee plus the hours the employee was on any form of paid time off for which the employee was paid by the employer (such as vacation time, sick time, or holiday time), if such records are maintained. Otherwise, employers should calculate each exempt employee’s total hours worked by multiplying the total number of days actually worked during the Reporting Year plus the total number of days on any form of paid leave for which the employee was paid by the employer (such as vacation time, sick time, or holiday time), by the average number of hours worked per day by the employee. If the employer records some exempt employees’ hours worked but does not record other exempt employees’ hours worked, the employer may report the actual hours worked for the tracked employees and may use a proxy for those whose hours are not tracked. “Proxy” refers to the number of hours calculated from the formula detailed above for calculating an exempt employee’s hours when the employee does not keep timesheets (or other records). Using the proxy formula requires the employer to calculate an exempt employee’s hours worked individually. Therefore, there is not necessarily one set proxy for all full-time employees or all part-time employees (e.g., 2,080 hours for full-time employees and 1,040 hours for part-time employees).

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, DFEH is requiring employers to include time during which the employee was on any form of paid time off for which the employee was paid by the employer, because such pay will be included on the employee’s W-2.

Should employers calculate and report annualized hours for employees who did not work the entire Reporting Year?

(01/07/2021) No. Employers should not annualize the hours worked for employees who did not work the full Reporting Year. For example, if a full-time exempt employee (who does not maintain records of her hours) worked on average 8 hours per day, worked for 98 days, and took 2 days of paid sick leave during the Reporting Year, the employer would calculate and report the employee’s hours by multiplying 8 by 100 (800 hours).

What does an employer do after calculating the total hours worked and collecting other required information of each employee in the Snapshot?

(01/07/2021) Once an employer has identified the job category, pay band, hours worked, race, ethnicity, and sex of each of its employees in the Snapshot Period, the employer counts the number of employees within each establishment (or, the establishment for single-establishment employers) with the same job category, pay band, race, ethnicity, and sex, and aggregates the hours worked by this group of like employees. If an employee does not share the same job category, pay band, race, ethnicity, or sex of any other employee in the establishment, the employer would report a count of 1 and that employee’s total hours worked alone.

For more information about how employers should report these data to DFEH, see FAQ “How do employers submit their pay data reports to DFEH?”

VI. MULTIPLE-ESTABLISHMENT EMPLOYERS

What does “establishment” mean? What does it mean for an employee to be “assigned to” an establishment?

(01/07/2021; updated 01/15/2021) Government Code section 12999(m)(2) defines “establishment” to mean “an economic unit producing goods or services.” For the purposes of the pay data reports due to DFEH by March 31, 2021, employers should utilize the same establishments that they use for their EEO-1 reports. DFEH recognizes that the federal EEO-1 approach to establishments may not reflect all modern work arrangements, but DFEH is initially adopting the federal EEO-1 approach for consistency with federal reporting and to ease the reporting burden on employers. For California pay data reporting, a multiple-establishment employer’s headquarters is a distinct establishment reported in the same manner as other establishments.

For the purposes of the reports due to DFEH by March 31, 2021, employers should assign employees to the establishment where the employer reports the employee for federal EEO-1 purposes, for consistency with federal reporting and to ease the reporting burden on employers. To the extent employers need additional guidance, DFEH advises employers to assign employees to the establishment that the employee formally reports to during the Snapshot Period. If an employee reports to more than one establishment during the Snapshot Period, employers should assign the employee to the establishment that the employee reports to for the majority of their work.

Because employers are required to report to DFEH on all employees assigned to California establishments and/or working within California (see FAQ “Should an employer’s pay data report only include their California employees or all employees?), an employer may not avoid reporting on employees working in California by assigning them to an establishment outside of California.

How should employers with more than one establishment report their pay data?

(01/07/2021) This question is answered in the FAQs “Are there different types of pay data reports?”, “What information must be contained in a pay data report?”, “Should an employer’s pay data report only include their California employees or all employees?”, and “If employees telework from a residence in California, but are assigned to an establishment outside of California, should they be included on the pay data report?”, among others.

If an employer has two establishments in California and two establishments outside of California, does the employer need to submit a pay data report for all four establishments?

(01/07/2021) This question is answered in the FAQs “Should an employer’s pay data report only include their California employees or all employees?” and “If employees telework from a residence in California, but are assigned to an establishment outside of California, should they be included on the pay data report?”

If a California employer has multiple establishments – some with 50 or more employees and some with fewer than 50 employees – does the employer only report for establishments with 50 or more employees?

(01/07/2021) No. Such an employer must report on all of its establishments, including those with fewer than 50 employees, in the same manner, because Government Code section 12999 does not differentiate between establishment size.

How should an employer report on an employee who, during the Reporting Year, started out in one California establishment and ended the year in a different California establishment?

(01/07/2021) The employer should report the employee according to their establishment in the Snapshot Period. The employer should not split up this employee’s pay or hours by establishment.

How should an employer report on an employee who, during the Reporting Year, started out in a California establishment but, during the Snapshot Period, was assigned to an establishment outside of California?

(01/07/2021) If this employee was working within California during the Snapshot Period, the employer is required to report to DFEH on this employee even though the employee is assigned to an establishment outside of California. If this employee was not working from California during the Snapshot Period, the employer may, but is not required to, report to DFEH on this employee.

How does an employer report employees who are entirely remote?

(02/10/2021) For an employee who is entirely remote, follow the guidance in FAQ “What does ‘establishment’ mean? What does it mean for an employee to be ‘assigned to’ an establishment?” to identify the appropriate establishment for the employee. If that guidance does not produce an answer for a particular employee, report the employee at the employer’s headquarters, recalling that for California pay data reporting, a multiple-establishment employer’s headquarters is a distinct establishment reported in the same manner as other establishments.

VII. PROFESSIONAL EMPLOYER ORGANIZATION (PEO) / Human Resource Outsourcing Organization (HRO)

A PEO usually files the EEO-1 Report for my company (“client employer” from the PEO’s perspective). Can my PEO prepare and submit my company’s California pay data report, too?

(02/01/2021; updated 02/10/2021) While it is the client employer’s responsibility to comply with Government Code section 12999 and to certify the accuracy of its own company’s pay data report, a PEO may prepare and file a pay data report with DFEH on behalf of a client employer. However, an official of the client employer, not from the PEO, must certify the accuracy of the report.

The answer would be the same for a variation of this question concerning an HRO.

May a PEO submit a pay data report to DFEH that covers more than one employer?

(02/01/2021; updated 02/10/2021) No. DFEH will not accept any pay data report that covers more than one employer. Therefore, a PEO may not submit a pay data report that covers more than one employer, including the PEO itself. If subject to California’s pay data reporting requirement itself, the PEO’s own report would only cover the PEO and its own establishments and employees.

The answer would be the same for a variation of this question concerning an HRO.

For the EEO-1 survey, our PEO submits multiple client employers’ reports as a single combined report. Is this permissible in the California pay data reporting system?

(02/01/2021; updated 02/10/2021) No. See previous FAQ “Can a PEO submit a pay data report to DFEH that covers more than one employer?”

The answer would be the same for a variation of this question concerning an HRO.

My company recently changed from one PEO to another PEO. Which PEO should prepare the pay data report for my company?

(02/01/2021; updated 02/10/2021) It is the client employer’s responsibility to comply with Government Code section 12999 and to certify the accuracy of its pay data report. The client employer is in the best position to determine which PEO, if either, can prepare an accurate report for the full Reporting Year. If neither PEO is able to prepare an accurate report for the full Reporting Year, the client employer is not excused from its obligations under Government Code section 12999.

The answer would be the same for a variation of this question concerning an HRO.

If a PEO is only contracted with a portion of a client employer, would the PEO be responsible for filing a pay data report for the entire client employer?

(02/01/2021; updated 02/10/2021) It is the client employer’s responsibility to comply with Government Code section 12999 and to certify the accuracy of its pay data report. If the client employer’s PEO cannot prepare an accurate report that covers all of the client employer’s establishments and/or employees that need to be reported on, the client employer is not excused from its obligations under Government Code section 12999.

The answer would be the same for a variation of this question concerning an HRO.

My company is an HRO and we process payroll for a number of clients – both under our FEIN as well as under the clients’ FEINs in some circumstances. We have many smaller clients (below the 100 employee threshold) that we process payroll for under our (the HRO’s) FEIN. Is our HRO required to file for any of our clients?

(02/10/2021). No. It is the client employer’s responsibility to comply with Government Code section 12999 and to certify the accuracy of its pay data report.

For a client employer that is subject to California’s pay data reporting requirement (see FAQ “Which employers are required to submit pay data reports to DFEH?”, among others), the client employer’s pay data report must include its employees required to be reported on, even if some or all of those employees were paid under the HRO’s FEIN.

A client employer that uses an HRO’s FEIN for payroll purposes is not required to file if the client employer is otherwise not subject to California’s pay data reporting requirement (for example, because the employer does not meet the threshold number of employees).

An HRO that is subject to California’s pay data reporting requirement (see FAQ “Which employers are required to submit pay data reports to DFEH?”, among others) must include its own employees in its pay data report.

The answer would be the same for a variation of this question concerning a PEO.

VIII. ACQUISITIONS, MERGERS, AND SPINOFFS*

*Relates only to lawful organizational changes registered with California or other government authority

In August 2020, our company, which had 75 employees inside and outside of California, acquired another company with 50 employees outside of California. Are we required to file a pay data report and, if so, for which employees and establishments?

(02/01/2021) Yes. See previous FAQ “Which employers are required to submit pay data reports to DFEH?” To determine which establishments and employees to report to DFEH, see previous FAQ “Should an employer’s pay data report only include their California employees or all employees?”, among others.

For Reporting Year 2020, this employer is not required to combine pay and hours-worked data from both before and after the acquisition, but the employer may do so. In other words, the employer can report pay and hours worked: either for the full Reporting Year by combining both companies’ data from before and after the acquisition, or post-acquisition. In either option, the employer must be consistent with how pay and hours-worked data are reported. If pay from both before and after the acquisition are reported, report hours-worked data from both before and after the acquisition. But, if pay is only reported for the period after the acquisition, report hours-worked data only for the period after the acquisition. And, note and explain the approach taken in the remarks field(s).

The answer would be the same for a variation of this question concerning a merger.

Our company acquired another company in July 2020, but we do not have access to the acquired company’s pay data?

(02/01/2021) Assuming this employer is subject to California’s pay data reporting requirement (pre- or post-acquisition), for Reporting Year 2020 the employer may report pay and hours-worked data from only after the acquisition, ensuring that both the pay and hours-worked data are post-acquisition. And, note and explain the missing data in the remarks field(s).

The answer would be the same for a variation of this question concerning a merger.

My California company is a January 2021 spinoff of another company. Our former parent company is the owner of our employee’s data from 2020. Which company is responsible for the spinoff’s pay data report covering 2020?

(02/01/2021) Assuming the former parent company is subject to California’s pay data reporting requirement, the former parent company’s pay data report submitted to DFEH in 2021 (covering Reporting Year 2020) would include all of that company’s employees during the Snapshot Period, including any employees now working for the spinoff. In 2022, assuming the spinoff is subject to California’s pay data reporting obligation, the spinoff would file a pay data report covering its employees.

IX. Technical Issues

My Excel Pay Data Report did not upload and/or validate, what could I have done wrong?

(6/30/2021) Here are a few of the common errors.

  • Make sure your data is entered into the Excel tab “Pay Data Report” and NOT the “Example – Single Establishment” tab or the “Example – Multi-Establishment” tab.
  • Job Category must be a value selectable from the dropdown. For example: 8 – Operatives.
  • Race/ethnicity/sex must be selectable from the dropdown. For example, example: C20 – Non-Hispanic/Non-Latino – Female – Black or African American.
  • Pay band must be a value selectable from the dropdown. For example: 7 – $62,920 – $80,079.
  • Hours must be entered as whole numbers. For example: 1214 and NOT 1214.34.

My .CSV Pay Data Report did not upload correctly, what could I have done wrong?

(6/30/2021) Here are a few of the common errors.

  • Make sure the data do NOT include commas.
  • Job Category must be a value selectable from the dropdown in the online Portal. For example: 8 – Operatives.
  • Race/ethnicity/sex must be selectable from the dropdown in the online Portal. For example: C20 – Non-Hispanic/Non-Latino – Female – Black or African American./li>
  • Pay band must be a value selectable from the dropdown in the online Portal. For example: 7 – $62,920 – $80,079.
  • Hours must be a whole numbers. For example: 1214 and NOT 1214.34.

Communication Center: 800-884-1684 (voice), 800-700-2320 (TTY) or
California's Relay Service at 711 | paydata.reporting@dfeh.ca.gov