OFCCP ISSUES NEW CERTIFICATION REQUIREMENT FOR AFFIRMATIVE ACTION PROGRAMS FOR COVERED FEDERAL CONTRACTORS
Employers who have obligations under federal nondiscrimination and affirmative action programs now have a new certification requirement. The Office of Federal Contract Compliance Programs (“OFCCP”) recently rolled out a new Contractor Portal wherein covered federal contractors and subcontractors are to register and certify their compliance with affirmative action program (“AAP”) requirements.
Federal contractors and subcontractors have from March 31, 2022, to June 30, 2022, to certify their AAP compliance through the new portal. After the initial certification through the portal, covered federal contractors and subcontractors must complete the certification on a yearly basis. Any new contractors will have 120 days to develop their AAPs and must certify compliance through the portal within ninety (90) days of developing their AAPs.
There will be three certification options that can be chosen:
- Entity has developed and maintained affirmative action programs at each establishment, as applicable, and/or for each functional or business unit;
- Entity 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; or
- Entity became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs.
Of note, at this point in time the OFCCP is not requiring contractors to upload AAPs to the portal during the certification process.
Which federal contactors and subcontractors are required to comply with the new OFCCP certification requirement? According to the Department of Labor’s (“DOL”) website, supply and service contractors who meet OFCCP’s jurisdiction thresholds are required to certify AAP compliance through the portal.
More specifically, pursuant to Executive Order 11246 and Section 503 of the Rehabilitation Act of 1973 contractors with at least 50 employees and at least one contract worth $50,000 or more must develop AAPs, and pursuant to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”) contractors with at least 50 employees and a contract worth $150,000 or more must develop AAPs. Contractors that are exclusively construction contractors are not required to register for or use the portal. However, contractors that are both construction contractors and also service and supply contractors will be required to certify compliance through the portal.
Covered federal contractors and subcontracts should take the time to become knowledgeable about the new certification requirement and its implications. OFCCP has stated a failure to timely certify compliance will result in a higher likelihood that a covered contractor will be selected for compliance evaluations or audits. As mentioned above, all covered contactors are required to certify by June 30, 2022, and OFCCP recommends registering for the new portal and completing certification as soon as possible. The OFCCP has provided additional FAQs and guidance on its contractor portal website, to assist covered contactors with complying with the new requirement and using the new portal.
Looking for assistance with affirmative action compliance? We can help! We help member organizations determine their compliance obligations and assist in preparing and implementing an action-oriented Affirmative Action Plan. Our AAP program is designed to painlessly guide you through the process to ensure that you are in compliance with all applicable federal regulations.
How do we help?
- Assistance in preparing and implementing an Affirmative Action Plan, including providing data collection and compilation support, and guidance on appropriate EEO designations.
- Drafting plan narratives (women, minorities, veterans, and individuals with disabilities) and completing a statistical utilization analysis.
- Identifying potential problems and recommending appropriate corrective actions to ensure your organization remains compliant.
- Ongoing compliance assistance with preparation of annual plan updates.
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