Notably, the certification requirement only applies to supply and service contractors and subcontractors.

On December 2, 2021, the U.S. Department of Labor (DOL) announced that a new portal for supply and service federal contractors to verify certain affirmative action obligations will open in 2022. By way of background, in September 2016, the Government Accountability Office prepared a report outlining the compliance oversight of DOL’s Office of Federal Contract Compliance Programs (OFCCP) and areas for oversight improvement. One of the recommendations was to develop a mechanism to monitor affirmative action programs (AAPs) from covered federal contractors on a regular basis. According to the report, OFCCP conducts evaluations for about 2 percent of federal contractor establishments through its compliance evaluations.

In order to increase compliance, in September 2020, OFCCP requested the Office of Management and Budget (OMB) to approve a new information request providing the collection and monitoring of AAPs through an online platform, also referred to as the verification interface or contractor portal. In August 2021, the OMB approved OFCCP’s information collection request and authorized establishing the contractor portal. Now, OFCCP has announced its schedule for the contractor portal.

• On February 1, 2022, contractors may begin registering for access to the portal. OFCCP also will send an email to each covered federal contractor over which it has jurisdiction and whose email information is available in its system inviting them to register.
• On March 31, 2022, contractors will be able to utilize the certification feature in the portal to certify their AAP compliance.
• By June 30, 2022, existing contractors must certify whether they have developed and maintained an AAP for each establishment and/or functional unit, as applicable.

Notably, the certification requirement only applies to supply and service contractors and subcontractors. Construction contractors and subcontractors (who do not also have covered supply and service contracts) are not required to certify AAP compliance. Both contractors with establishment AAPs and functional AAPs are required to certify compliance.

In addition to requiring contractors to certify that they are meeting their requirement to develop and maintain annual AAPs, the portal provides an ostensibly secure method for contractors to upload their AAPs and other documents during an OFCCP audit.

In connection with its announcement, OFCCP unveiled the contractor portal landing page, which includes a set of frequently asked questions. In the coming months, OFCCP also will be publishing “how to” videos and a user guide for federal contractors subject to the certification requirement.

What This Means for Employers

While not an onerous or otherwise difficult obligation in and of itself, the new annual certification requirement raises the stakes for AAP compliance. A covered contractor or subcontractor who certifies that they have prepared and updated annual AAPs, but have not actually done so, could be subject to liability under the False Claims Act. In addition, contractors and subcontractors who do not certify compliance could jeopardize their ability to successfully bid on federal contracts, and failure to certify compliance also could increase the chances of being selected for an OFCCP audit.

Accordingly, contractors should promptly take steps to ensure that they are in compliance with the requirement to prepare and update their annual AAPs so that they are able to accurately certify compliance by June 30, 2022, and annually thereafter.

For More Information

If you have any questions about this Alert, please contact Christopher D. Durham, Meredith Gregston, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are in regular contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.