Federal Register, Volume 76 Issue 106 (Thursday, June 2, 2011)

[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