WHAT? HUH? EARTH to SPACE!
Shirley really did (and does) exist and she really did (and her Rule still does) require all covered federal Government contractors to have “AAP Establishments” for under 50 employees where that situation arises (which is more and more: Shirley was prescient). [That’s a word, too, and worth 10 points in Scrabble because of that big start with the three-point “p”…but where are you going to get that many letters? But, maybe you could fall back to “present”?]
Then, while OFCCP drove off the cliff during the Trump OFCCP as to this issue, it then crashed and burned at the bottom of the canyon during the Biden OFCCP. The Biden OFCCP made the same mistake and “pre-populated” the OFCCP AAP Verification Portal (trying to be helpful: good customer service instincts) for contractors with their “AAP Establishments” as reported on the contractor’s 2018 EEO-1 reports, but only for those contractor establishments with 50 or more employees. Now, OFCCP did not say that, or publish that information about the limits of its pre-population (because OFCCP did not view this as a “limitation”). Remember, too, the SAM certification questions (you better know what that is by now)–which OFCCP asks you to certify (for a second time now for your company) in the OFCCP AAP Certification Portal–require you to certify all your AAPs, (meaning: including your AAPs with fewer than 50 employees, if you have any).
So, many contractors noticed this “50 or more employees in the establishment” limitation on OFCCP’s pre-population of their AAP Establishments and asked OFCCP to pre-populate all their AAPs, including those AAP Establishments with fewer than 50 employees (since they knew Shirley’s Rule…and many know Shirley: she’s still very active in the AA community). Did OFCCP really misunderstand its own Rule, again for the second time in four years? Yes, it did. This is just the latest result of the erosion of institutional knowledge that OFCCP has suffered over the last 15 years. (But, that is a different Blog.) OFCCP Portal handlers told inquiring contractors orally (until they became overwhelmed and no longer answered the phones) and then advised, via e-mails, those contractors which continued to push the “under 50 employees” issue, that contractors did not have to create “AAP Establishments” in the OFCCP AAP Verification Portal for establishments with fewer than fifty employees because contractors did not have to develop AAPs for establishments with fewer than fifty employees.
Finally, enough inquiring contractors eventually got it through the heads of the OFCCP Portal wranglers that OFCCP had it wrong. (And this is exactly why Congress requires Rulemaking when federal agencies propose to impact the public: it is for the agency to help get it right, not to be just a bump in the road for the federal agency to either run over or ignore).
So, Walla! Suddenly, in the closing weeks of the AAP Verification Portal Project (after many contractors had declared themselves done and had moved on), OFCCP did a high-speed 180-degree turn:
- without fanfare;
- with nothing stating it was changing position (in those words to allow people to understand a shift in policy/interpretation of Rule had occurred: I know it is embarrassing, but the agency needs to call out its error, correction, and the needed contractor course change desired/required to make sure contractors internalize the agency’s otherwise too-quiet message of a needed contractor behavior change…and agency lawyers should be advising OFCCP, at any rate, that the agency needs the clear call-out to correct the legal record);
- without offering an apology; and
- without even publishing an explanation as to why the agency had taken contractors on another OFCCP AAP Verification Portal roller-coaster ride. (This would have gone so far, especially since many, many contractors and AAP vendors had already been privately describing the OFCCP Verification Project as a “challenge,” but not in that politically correct language.)
So, the way OFCCP chose to announce this last-minute major policy change was to publish THE FAQ (which suddenly quietly popped up three weeks ago, most FAQ watchers estimate). It is Portal FAQ #10 (and OFCCP has just followed up with its latest and final, thus far, Portal FAQ (#12), which is now a companion to #10):
“10. Do I have to include my establishment in the Contractor Portal if it has fewer than 50 employees?
It depends on whether the establishment maintains a separate AAP. If the establishment has fewer than 50 employees and maintains an AAP only for those employees, it must be included in the Contractor Portal. See 41 CFR 60-2.1(d)(2) (describing which employees should be covered in an AAP). If the establishment has fewer than 50 employees and does not maintain an AAP only for those employees, the contractor does not need to list the establishment in the Contractor Portal.”
“12. What do I do when an establishment’s headcount falls below 50 employees?
If an establishment with fewer than 50 employees still maintains its own AAP, update the headcount to match the AAP. If an establishment has fewer than 50 employees and the contractor chooses to incorporate the employees into a different AAP per the regulations at 41 CFR 60-2.1(d)(2), edit the status from “open” to “close” and update the employee headcount to zero.”
There is no OFCCP FAQ yet, or any written OFCCP communication to the public, advising the contractor community about the pushback of its certification “deadline,” or to what later date OFCCP will push back the deadline. Rather, OFCCP is trying to play off the current chaotic environment as “normal” by saying in some quarters that the “popularity” of its recently innovated “bulk upload” process has unexpectedly overwhelmed OFCCP Portal wranglers. (The “bulk upload” was a good idea and is a method to quickly load (via an Excel spreadsheet) a contractor’s AAP Establishments missing from the OFCCP Verification Portal after OFCCP’s “pre-population” effort resulted in a “short pour” of the Portal’s pre-population deliveries—because OFCCP misunderstood Shirley’s Rule). Indeed, many contractors had been waiting for weeks already for even small bulk uploads of AAP establishments EVEN BEFORE OFCCP released FAQs 10 and then 12 and alerted contractors very quietly about this new “requirement” (to OFCCP and the Verification Portal project now heading into the home stretch). Those FAQs set off a stampede among those relatively few contractors which actually pay attention to OFCCP’s website and troll it daily to find new pieces of information hidden in plain sight. However, most federal contractors either missed FAQ #10 or missed its importance, including many AAP vendors and law firms which were also unaware (until DirectEmployers Members were informed)…which is why I am writing this Blog…to get the word out more broadly.