Beginning in early 2022, federal contractors and subcontractors that are required to create and maintain written affirmative action plans or programs (AAP) will now also be required to certify compliance through a new secure online contractor portal developed and monitored by the US Department of Labor's Office of Federal Contract Compliance Programs (OFCCP). Until now, there has never been any certification or verification process nor any requirement to provide AAPs to OFCCP, except in the case of a government audit.
Why Now?
This has actually been many years in the making. In 2016, a GAO report criticized OFCCP's compliance efforts and lack of mechanism to monitor, collect or certify AAPs. In response, OFCCP has spent the past three-plus years announcing and working on a new information collection and verification process and portal; its plan was finally approved by OMB on August 31, 2021.
What Will the Portal Be Used For?
The portal will serve two functions. First, it will provide a secure method of annually certifying compliance with AAP requirements. At this point, it is not clear what the "certification" will actually look like. Second, it will provide a secure method of submitting AAPs to OFCCP during audits or compliance evaluations. Use of the portal (which is required) will not exempt contractors from being selected for OFCCP compliance evaluations or audits.
Which Contractors Must Use the Portal?
Service and supply contractors that are required to develop and maintain AAPs. Pursuant to Executive Order 11246 and Section 503 of the Rehabilitation Act of 1973, federal government contractors and subcontractors that hold a contract of $50,000 or more and employ 50 or more employees must comply with equal employment and affirmative action requirements, including developing and maintaining written AAPs.
Additional AAP requirements also apply for contracts of $150,000 or more under the Vietnam Era Veterans' Readjustment Assistance Act of 1974.
1OFCCP is not currently requiring certification of compliance by contractors that are only construction contractors and not also supply and service contractors.
When Must Contractors Start Using the Portal?
Starting February 1, 2022, covered contractors and subcontractors may register for access to the portal. OFCCP will also send emails to covered contractors inviting them to register. Contractors may begin certifying compliance using the portal on March 31, 2022, By June 30, 2022, existing contractors must have certified compliance (e.g., that they have developed and maintained appropriate AAPs). New federal contractors must develop their AAPs within 120 days, and must register and certify compliance in the portal within 90 days of developing the AAPs.
Where is the Portal?
Contractors may access the portal here.
OFCCP has also published preliminary FAQs here, and has promised to provide updated information and resources in the upcoming months.
Next Steps?
All federal contractors that are subject to AAP requirements should review and ensure that they are in compliance or will be in compliance as soon as possible. We will continue to monitor and report on new developments and updated information from OFCCP.
*Jessica Nejberger contributed to this Advisory. Ms. Nejberger is a graduate of the George Mason University School of Law and is employed at Arnold & Porter's Washington, DC office. Ms. Nejberger is admitted only in Virginia. She is not admitted to the practice of law in Washington, DC.
Footnote
1 Additional AAP requirements also apply for contracts of $150,000 or more under the Vietnam Era Veterans' Readjustment Assistance Act of 1974.
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