After years of waiting, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) finally announced on December 2, 2021, the opening of its long anticipated Affirmative Action Program Verification Interface online portal (Portal). As we previously reported in our July 13, 2021 alert, covered federal contractors and subcontractors (contractors) will be required to use the Portal to annually certify whether they have developed and maintained an affirmative action program (AAP) for each establishment and/or functional unit as applicable. The OFCCP’s notice further indicates that contractors may use this secure portal to submit their AAP(s) during compliance evaluations/audits.
According to the announcement, contractors will be able to register to access the Portal on February 1, 2022. It further indicates the OFCCP will send emails to contractors that it has email information for to invite them to register. To register, contractors will have to create a Login.gov account using an email and a secure password. They will also need to enter their Employer Identification Number (EIN), EEO-1 Headquarter/Company Number and Establishment/Unit Number. If a contractor does not know its EEO-1 identifiers, it will be required to enter its EIN, Legal Business Name, DUNS Number and NAICS Code.
Contractors will not be able to use the Portal to certify their AAP compliance until March 31, 2022, and will only have until June 30, 2022, to submit their certification.
To assist contractors in determining whether they need to register with the Portal and submit an annual certification, the OFCCP also published Frequently Asked Questions (FAQs). The FAQs specifically provide that only supply and service contractors who hold a contract of $50,000 or more and have 50 or more employees are subject to this new requirement. As such, construction contractors (who are not also supply/service contractors) are not currently required to register with the Portal or provide an annual certification. The FAQs provide guidance on other topics, such as data security measures, to reassure contractors that their information will be appropriately safeguarded.
Moving forward, it is likely that the OFCCP will use the Portal to determine whether contractors have been flouting their AAP obligations and to justify stern penalties for non-compliance. Those could include, but are not limited to, placing contractors under onerous conciliation agreements, seeking back pay and interest awards and initiating debarment proceedings.
Based on the fast approaching deadlines, covered contractors should immediately determine whether they are required to prepare an AAP. Contractors should not delay, because creating an AAP is not a routine paperwork exercise. Rather, it involves gathering substantial data regarding a business’s employment practices and performing a number of complex statistical analyses that can be very time consuming and labor intensive.
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