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[Federal Register Volume 76, Number 106 (Thursday, June 2, 2011)]
[Proposed Rules]
[Pages 31892-31895]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-13629]

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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: Notice of proposed rulemaking.

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[[Page 31893]]

SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or 
``Commission'') proposes to extend 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: Written comments must be received on or before August 1, 2011. 
Pursuant to 42 U.S.C. 2000e-8(c), a public hearing concerning these 
proposed changes will be held at a place and time to be announced.

ADDRESSES: Send written comments by mail to Stephen Llewellyn, 
Executive Officer, Executive Secretariat, Equal Employment Opportunity 
Commission, 131 M Street, NE., Suite 6NE03F, Washington, DC 20507. 
Written comments of six or fewer pages may be faxed to the Executive 
Secretariat at (202) 663-4114. (There is no toll free FAX number.) 
Receipt of facsimile transmittals will not be acknowledged, except that 
the sender may request confirmation of receipt by calling the Executive 
Secretariat staff at (202) 663-4070 (voice) or (202) 663-4074 (TTY). 
(These are not toll free numbers.) In lieu of sending written comments, 
comments may be submitted to EEOC electronically on the Federal 
eRulemaking Portal: http://www.regulations.gov. After accessing this 
Web site, follow its instructions for submitting comments.
    All comments received will be posted without change to http://www.regulations.gov, including any personal information you provide. 
Copies of the received comments also will be available for inspection 
in the EEOC Library by advance appointment only, from 9 a.m. to 5 p.m., 
Monday through Friday except legal holidays. Persons who schedule an 
appointment in the EEOC Library and need assistance to view the 
comments will be provided with appropriate aids upon request, such as 
readers or print magnifiers. To schedule an appointment to inspect the 
comments at the EEOC Library, contact the EEOC Library by calling (202) 
663-4630 (voice) or (202) 663-4641 (TTY). (These are not toll free 
numbers.)

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. Title II of GINA's 
coverage 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. In the current 
rulemaking, EEOC is proposing to amend its recordkeeping regulations to 
add references to GINA. Neither EEOC's existing recordkeeping 
regulations nor this proposal requires creation of any documents. The 
proposed change would impose the same record retention requirements 
under GINA that are imposed 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.
    The EEOC proposal does not impose any reporting requirements under 
GINA, but reserves the right in the future to issue reporting 
regulations as may be necessary to accomplish the purposes of GINA.
    Persons wishing to present their views orally should notify the 
Commission of their desire to do so in writing no later than July 5, 
2011 with a request to Stephen Llewellyn, Executive Officer, Executive 
Secretariat, Equal Employment Opportunity Commission, 131 M Street, 
NE., Suite 6NE03F, Washington, DC 20507. The request should include a 
written summary of the remarks to be offered.

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

    These proposed changes to EEOC's existing regulations contain 
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 one year, and the only 
new requirement is that they retain 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 is submitting to the Office of Management and 
Budget a request for approval of these information collection 
requirements under section 3507(d) of the Act. Organizations or 
individuals desiring to submit comments for consideration by OMB on 
these information collection requirements should address them to Chad 
Lallemand in the Office of Information and Regulatory Affairs, Office 
of Management and Budget, 725 17th Street, NW., Room 10235, New 
Executive Office Building, Washington, DC 20503 or by e-mail to Chad_A._Lallemand@omb.eop.gov.
    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

[[Page 31894]]

disclosed to the EEOC during an investigation are protected from public 
disclosure by the confidentiality provisions of sections 706(b) and 
709(e) of Title VII. EEOC has issued recordkeeping regulations under 
Title VII and the ADA which require all covered entities to maintain 
all employment and personnel records they make or keep for a period of 
one year and all records relevant to a Title VII or ADA charge until 
the charge is resolved. The proposed revision will extend these same 
requirements to records relevant to a GINA charge.
    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 requirement in 29 CFR part 1602 currently must retain 
all personnel or employment records made or kept by that employer for 
one year, 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 proposed rulemaking would require 
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 899,580 employers 
subject to the recordkeeping requirement in Part 1602. The currently 
approved Title VII and ADA recordkeeping requirement in Part 1602 
imposes a total burden on covered employers in the aggregate of 
approximately 16,002 hours, which represents the aggregated time that 
must be spent by all new firms taken together to ensure that their 
record maintenance systems comply with EEOC's recordkeeping 
requirements. 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. Established firms bear no burden under this 
analysis, because their systems for retaining Title VII and ADA records 
are already in place.
--Retention of Records When Charge Is Filed: For firms that have 
recordkeeping systems in place, the fact that a Title VII or ADA 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 proposed change. As stated above, 
established firms bear no burden because their systems for retaining 
employment records under Title VII and ADA records are already in 
place. The burden imposed upon new firms created after the proposed 
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. 
Consequently, the aggregate burden for new firms of establishing a 
compliant recordkeeping system remains at 16,002 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 
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 10 
minutes to set up its recordkeeping system to comply with EEOC 
regulations). Assuming that 200 GINA charges will be filed and using a 
burden estimate of 10 minutes per charge, the annual aggregate burden 
would increase by only about 33 hours. This estimated increase is most 
likely higher than the actual burden because approximately 75 percent 
of all charges filed under GINA in the last fiscal year were also filed 
under the ADA. In other words, employers would have been required to 
maintain the records relevant to 75 percent of the GINA charges under 
the existing recordkeeping requirements because those records were 
relevant to ADA charges.

    Pursuant to the Paperwork Reduction Act of 1995, and OMB regulation 
5 CFR 1320.8(d)(1), the Commission solicits public comment to enable it 
to:
    (1) Evaluate whether the proposed collection of information is 
necessary for the proper performance of the Commission's functions, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the Commission's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.

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 satisfy the requirements of the amended regulation by 
altering the employer's record retention system to retain 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. 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

[[Page 31895]]

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.

List of Subjects in 29 CFR Part 1602

    Administrative practice and procedure, Equal Employment 
Opportunity.

    For the Commission.

    Dated: May 25, 2011.
Jacqueline A. Berrien,
Chair.

    Accordingly, part 1602 is proposed to be amended as follows:

PART 1602--RECORDKEEPING AND REPORTING REQUIREMENTS UNDER TITLE 
VII, THE ADA, AND GINA

    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.

    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:
     Sec.  1602.14;
     Sec.  1602.21(b);
     Sec.  1602.28(a);
     Sec.  1602.31.

[FR Doc. 2011-13629 Filed 6-1-11; 8:45 am]
BILLING CODE 6570-01-P
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