ATTENTION FEDERAL CONTRACTORS OR SUBCONTRACTORS: Time’s Up, Act Now! Certify Your Affirmative Action Plan Compliance

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Julian Fowler

June 29, 2022

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) is charged with ensuring that employers doing business with the federal government comply with the laws and regulations that protect against discrimination.  After the U.S. Government Accountability Office found that the “OFCCP had no process for ensuring that the tens of thousands of establishments that have signed a qualifying federal contract have developed an [Affirmative Action Program (“AAP”)] within 120 days of the commencement of the contract, or updated it annually,” the OFCCP launched its Affirmative Action Program Verification Interface (AAP-VI), referred to as the “Contractor Portal,” to improve communication and the transfer of AAP data between federal contractors and the OFCCP.

If you are an existing federal supply and service contractor or subcontractor that holds a contract of $50,000 or more and employs 50 or more employees, then June 30, 2022, is the deadline for you to certify via the Contractor Portal that you have developed and maintained AAPs pursuant to Executive Order 11246 (which prohibits discriminatory employment decisions based on race, color, religion, sex, sexual orientation, gender identity, or national origin) and Section 503 of the Rehabilitation Act of 1973 (which prohibits discrimination in employment against individuals with disabilities). Also, if you are a contractor that has at least 50 employees and a contract of $150,000 or more, you must certify that you have developed an AAP pursuant to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (which prohibits discriminating in employment against protected veterans).  While existing contractors should certify by June 30, 2022, the portal will remain open to allow for late registration.  New contractors have 120 days after entry into their first covered federal contract to develop an AAP, and they must register and certify compliance through the Contractor Portal within 90 days of developing the AAP.  After contractors complete their initial certification, the OFCCP will set a date by which they must renew their annual certification.

Through the Contractor Portal, contractors are required to certify one of the following for each establishment or functional/business unit[1]:

 

  1. It has developed and maintained affirmative action programs at each establishment, as applicable, and/or for each functional or business unit.
  2. It has been party to a qualifying federal contract or subcontract for 120 days or more and has not developed and maintained affirmative action programs at each establishment, as applicable.
  3. It became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs.

Contractors and subcontractors that fail to timely certify may end up on the OFCCP’s audit selection scheduling list as compared to contractors and subcontractors who have timely certified their AAP compliance through the Contractor Portal.  Additionally, failure to comply with the OFCCP’s regulations could result in debarment, which could mean the loss of a federal contract.

For more information about the OFCCP’s Contractor Portal and certification requirements, you can visit https://www.dol.gov/agencies/ofccp/contractorportal, which includes a Frequently Asked Questions guide.

[1] An establishment refers to a facility or unit that produces goods or services, such as a factory, office, store, or mine.  Whereas, a functional/business unit is not generally defined by physical location, and refers to a component within an organization that operates autonomously in the ordinary course of the organization’s business, potentially spanning several different establishments.

 
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