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OFCCP Contractor Portal Open for Registration and Certification

on Wednesday, 13 April 2022 in Labor & Employment Law Update: Sarah M. Huyck, Editor

On December 2, 2021, the OFCCP announced the roll-out of its Contractor Portal. This online Portal will be used for two purposes:

  1. For covered federal contractors and subcontractors to certify, on an annual basis, whether they have developed and maintained an affirmative action program (“AAP”) for each establishment.
  2. For covered contractors to securely submit their AAPs (and other requested information) to the OFCCP during compliance evaluations (aka, “audits”).

Because these obligations relate to the preparation of AAPs, the reporting obligation only applies to “supply and service” federal contractors/subcontractors who have 50 or more employees, and hold a federal contract/subcontract in excess of $50,000 (for gender/race obligations and disability obligations) or $150,000 (for veteran obligations). For this reason, if an organization is considered a “federal contractor” for other reasons (such as related to the Federal Contractor Vaccine Mandate), but does not otherwise have to comply with the affirmative action laws, these obligations are inapplicable. Construction contractors also are exempted from the certification requirement.

The OFCCP has issued step-by-step instructions via a User Guide, how-to videos, and FAQs to assist contractors with registration and explain how to submit the certification. With regard to registration, note that the OFCCP has based its system on known identifier numbers from the 2018 EEO-1 report. If the contractor did not file a 2018 EEO-1 report, it can still register by using its Employer Identification Number (“EIN”). In such situations, the contractor would follow the instructions for “Identifiers Not Known Path” in the OFCCP Contractor Portal User Guide. 

Once registered, contractors must certify compliance with the following AAP components:

  • The Executive Order 11246 AAP contents, including required annual analyses, described in Subpart B or 41 CFR 60-2;
  • The VEVRAA AAP contents, including required annual analyses, described in Subpart C of 41 CFR 60-300; and
  • The Section 503 AAP contents, including required annual analyses, described in Subpart C of 41 CFR 60-741.

Specifically, contractors must attest to one of the following options:

  1. It has developed and maintained affirmative action programs at each establishment, as applicable, and/or for each functional or business unit. See 41 CFR Chapter 60
  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. See 41 CFR Chapter 60.
  3. It became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs. See 41 CFR Chapter 60.

Contractors who select Option 3 will have 90 days from the development of their AAPs to access the Portal and update their certification. 

Contractors must also sign the following declaration:

The contractor represents that:

I attest that this Affirmative Action Program (AAP) certification is true and correct to the best of my knowledge.  I understand that the penalty for making false statements with respect to this certification is prescribed in 18 U.S.C. 1001.

__  I affirm this declaration

Importantly, contractors do not have to upload any part of their AAPs during the certification process. The certification process only requires the contractor to select one of the three responses on AAP creation/maintenance.

The OFCCP will likely use contractors’ responses to prioritize contractor establishments for audit. With that in mind, an entity which selects Option 2 is more likely to be selected for audit. The flip side, however, is not true, as the OFCCP’s FAQs make clear that selecting Option 1 will not exempt a contractor from an audit.

Notably, contractors do not need to move up their AAP plan dates to comply with the certification requirements. Rather, a contractor must certify that it has a current AAP relative to its specific plan date. Therefore, in most cases, whether the contractor certifies compliance related to its 2021 AAP or its 2022 AAP, will depend upon when the contractor submits the certification and when their plan becomes due.

  • Example 1: Let’s assume a contractor’s plan date begins on June 1, 2022. This means that every year, they analyze their workforce as of June 1. If the contractor submits the certification on May 1, 2022 (before the 2022 plan comes due), the contractor would certify that the 2021 AAP (i.e., the one from last year) is current. If, however, the contractor waits until after June 1, 2022 to certify, it would have to certify compliance of its 2022 AAP because it is now past the plan date. The reality is that in that situation, the contractor may have to rush to get the 2022 plan data together to be able to affirmatively certify compliance by June 30, 2022 when the Portal window closes. With that in mind, when a contractor submits the certification in this scenario is going to be a key strategic decision.
  • Example 2: Let’s assume a contractor’s plan date begins on August 1, 2022 (which is after the Portal window closes). In that case, the contractor would certify that its 2021 AAP is current, as its 2022 plan would not come due during the window.

For those contractors who use Baird Holm to assist with their affirmative action plan compliance, it is extremely important to provide your AAP data to us as soon as possible, particularly if your plan date falls between January 1 and June 30. The clock, as they say, is ticking!

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