OFCCP Affirmative Action Verification Interface Has Arrived and The Time to Certify Is Fast Approaching

Though most federal contractors have been centered on compliance with COVID-19 vaccination mandates (as mentioned right here and here), it’s essential to take a second to take a look at one other compliance matter associated to equal employment alternative obligations. On 2 December 2021, the Workplace of Federal Contract Compliance Packages (OFCCP) introduced it’s transferring ahead with an Affirmative Action Program (AAP) Verification Interface (Contractor Portal) to facilitate receipt of certifications verifying compliance. The Contractor Portal will present a mechanism for lined federal contractors and subcontractors to certify yearly whether or not they have complied with their obligations to develop and keep AAPs for every institution or useful unit,1 as relevant. Additional, the Contractor Portal will set up a safe technique for contractors scheduled for compliance evaluations to submit their AAPs to OFCCP.

As background, affirmative motion necessities assist make sure that candidates and staff of federal contractors have equal employment alternative with out regard to their race, colour, faith, intercourse, sexual orientation, gender identification, nationwide origin, incapacity, or standing as a protected veteran. Coated federal contractors that fulfill sure thresholds are required to develop and keep AAPs on an annual foundation. Extra particularly, federal contractors that maintain a contract of US$50,000 or extra and make use of 50 or extra staff are required to develop and keep AAPs pursuant to Government Order 112462 and Part 503 of the Rehabilitation Act of 1973.3 Federal contractors with no less than 50 staff and a contract of US$150,000 or extra have further AAP obligations below the Vietnam Period Veterans’ Readjustment Help Act of 1974.4 Coated contractors should develop an AAP inside 120 days of the graduation of the contract and replace the AAP yearly. These obligations apply to federal subcontractors as nicely.

The Contractor Portal was initiated within the Trump administration by way of OFCCP Directive 2018-07, which was in response to a U.S. Authorities Accountability Workplace (GAO) suggestion, and then by way of an info assortment request submitted for discover and remark by way of the Workplace of Administration and Funds (OMB). The Biden administration has since continued this program, with OMB approving the data assortment request on 31 August 2021. Provide and service contractors and subcontractors who meet sure jurisdictional thresholds are required to use the Contactor Portal to register and certify their AAP compliance. Nonetheless, registration with the Contractor Portal isn’t required presently for building contractors who are usually not additionally provide and service contractors, as building contractors are usually not presently topic to annual certification.

A part of the impetus for the Contractor Portal stems from a 2016 GAO Report that discovered the OFCCP “has no process for ensuring that the tens of thousands of establishments that have signed a qualifying federal contract have developed an AAP within 120 days of the commencement of the contract, or updated it annually.”5 Additional, the report discovered that in 2015, an estimated 85% of lined federal contractors might not have been in compliance with the AAP obligation.6

Starting 1 February 2022, present lined contractors and subcontractors might register to achieve entry to the Contractor Portal. Coated federal contractors and subcontractors may also obtain an e-mail, to the extent e mail contact info is out there to OFCCP, inviting them to register. As of March 31, 2022, federal contractors and subcontractors may have entry to the certification function within the Contractor Portal to start the compliance course of. Present contractors and subcontractors should confirm compliance for every institution (for conventional establishment-based AAP packages) or line of enterprise (for Practical Affirmative Action Packages) by 30 June 2022. Newly-covered contractors may have 120 days to develop their required AAP(s), and should register and certify compliance within the Contractor Portal inside 90 days of growing their AAP(s).

It’s probably {that a} failure to comply will lead to some type of enforcement motion by OFCCP, both by way of an elevated likelihood of audit (through the use of verification as a part of the scheduling standards) or by way of direct enforcement motion similar to a present trigger discover. Notably, failure to adjust to AAP obligations can in the end lead to debarment and cancellation of federal contracts. Likewise, a false certification can lead to severe civil and prison penalties. It can be crucial for contractors and subcontractors to take the requirement critically and be sure that they’ve all the things in place to certify compliance no later than 30 June 2022.

Coated contractors and subcontractors must be conscious that verification by way of the Contractor Portal won’t forestall them from being audited subsequently. Due to this fact, lined contractors shouldn’t solely certify, but additionally proceed to keep their AAPs in an audit-ready situation.

In the end, contractors and subcontractors with compliance packages in place ought to find a way to certify simply by way of the Contractor Portal, though they need to seek the advice of with counsel as to the certification requirement itself to verify they’ve complied with all OFCCP rules in place. People who should not have a compliance program as required below relevant federal rules want to use the interval earlier than 30 June 2022 to develop an AAP(s) and put together to certify, and must also seek the advice of with counsel as quickly as attainable.

1 The implementing rules for Government Order 11246 permit federal provide and service contractors to develop AAPs which are primarily based on a enterprise operate or enterprise unit reasonably than AAPs primarily based on lined contractor institutions. These useful AAPs allow the contractor to consider whether or not its affirmative motion insurance policies for a useful or enterprise unit, as an alternative of a specific institution, are ample to guarantee equal employment alternative for candidates and staff.

2 Government Order 11246 requires affirmative motion and prohibits federal contractors from discriminating on the premise of race, colour, faith, intercourse, sexual orientation, gender identification, or nationwide origin. Contractors are additionally prohibited from discriminating in opposition to candidates or staff as a result of they inquire about, talk about, or disclose their compensation or that of others, topic to sure limitations. (https://www.dol.gov/agencies/ofccp/executive-order-11246/as-amended) (final visited 2 December 2021)

3 Part 503 prohibits federal contractors and subcontractors from discriminating in employment in opposition to people with disabilities and requires that employers take affirmative motion to recruit, rent, promote, and retain these people.

4 The Vietnam Period Veterans’ Readjustment Help Act is a regulation that prohibits federal contractors and subcontractors from discriminating in employment in opposition to protected veterans and requires that employers take affirmative motion to recruit, rent, promote, and retain these people.

5 See US GAO, Report 16-750Equal Employment Alternative: Strengthening Oversight Might Enhance Federal Contractor Nondiscrimination Compliance (2016).

6 Id.

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