The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has announced that federal contractors and subcontractors will have between March 31 and June 29, 2023 to certify their compliance with Affirmative Action Program (AAP) obligations through its online contractor verification portal.

As noted in our December 3, 2021 alert, covered contractors are required to certify the status of their AAP, including whether or not they have developed an AAP or that they are a new contractor and still within the 120-day period to create an initial AAP. New contractors have 120 days to create an AAP and must register and certify through the portal within 90 days of same. The portal is open past the June 29, 2023 deadline for new contractors to certify compliance or to update their certification after developing their AAP. Additionally, contractors must now provide the start date of their AAP coverage period when completing the certification.

Based on the fast-approaching deadline, contractors should immediately determine whether they are required to prepare an AAP. Pursuant to applicable OFCCP regulations, supply and service contractors that employ at least 50 employees and have a contract with a federal agency or department valued at $50,000 or more annually must have an AAP. Companies that have a subcontract with a prime contractor and meet these criteria also must have one.

Where these jurisdictional thresholds are met, contractors should ensure they have a current AAP because certifying they do not – or by not completing the certification at all – will increase the likelihood of an OFCCP audit.

Creating an AAP is not a routine paperwork exercise and 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, so prudent contractors will prepare their AAPs before the verification deadline closes.

The OFCCP has issued FAQs to help contractors understand the portal and certification process.

Businesses that are unsure if they are a covered contractor or subcontractor should seek the assistance of counsel to determine if they are required to prepare an AAP and/or file an annual certification through the portal.

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