All covered contractors must certify during this short window, confirming that the contractor currently meets its AAP obligations as of the date of certification.
On February 1, 2022, the U.S. Department of Labor’s Office of Federal Contractor Compliance Programs (OFCCP) officially launched its new contractor certification portal. Covered federal government contractors and subcontractors are required to use the contractor portal to register and certify that they are meeting the requirement to develop and maintain annual affirmative action plans (AAPs) pursuant to Executive Order 11246, Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). Under those laws, supply and service contractors and subcontractors with 50 or more employees and a qualifying government contract or subcontract (valued at $50,000 or more under EO 11246 and Section 503; $150,000 or more under VEVRAA) must develop and maintain AAPs within 120 days of the commencement of a contract, and must update their AAPs annually. Contractors with functional AAPs also are required to certify compliance.
Covered contractors currently can register in the contractor portal, and contractor certification opens March 31, 2022. The deadline for covered contractors to certify compliance with their AAP obligations is June 30, 2022. All covered contractors must certify during this short window, confirming that the contractor currently meets its AAP obligations as of the date of certification. For example, if a contractor’s AAP year is January 1 to December 31, the contractor would need to have developed its 2022 AAPs to be able to certify compliance. However, if a contractor’s AAP year date falls during the certification period, the timing of the contractor’s certification becomes more important. For example, if a contractor with a plan year of May 1 to April 30 certifies before May 1, 2022, it would certify compliance as to its May 1, 2021, AAPs―but a certification on or after May 1 would certify compliance as to its May 1, 2022, AAPs. New covered contractors must certify their compliance within 90 days of developing their AAPs.
Through the contractor portal, contractors will certify as to one of three possible options:
- The entity has developed and maintained an AAP at each establishment, as applicable, or each functional/business unit;
- The entity has been party to a qualifying contract for 120 days or more and has not developed and maintained an AAP at each establishment; or
- The entity became a contractor or subcontractor within the last 120 days and therefore has not yet developed an AAP.
Certification through the contractor portal will not exempt a contractor from OFCCP’s compliance evaluations. However, contractors that fail to timely certify their compliance will be “more likely” to be selected for compliance evaluations. Contractors scheduled for compliance evaluations also will be able to use the portal to upload their AAPs during a compliance evaluation.
Registration is now open and contractors can use this lead time to complete their registration. Contractors will then return to their account each year for annual certifications. For 2022, the contractor portal pre-populates with information from the contractor’s 2018 EEO-1 report. This capability is available for contractors who register using their headquarter/company number or establishment/unit number from the EEO-1. Contractors who instead register with their federal EIN will need to enter their registration information manually.
Because the contractor portal follows the EEO-1 scheme and adopts the EEO-1 definition of “parent company,” OFCCP strongly recommends the same parent company that submits EEO-1 reports also handle the initial registration for the contractor portal, even if the parent entity does not submit AAPs on behalf of the subsidiary. Upon registration, the parent entity will then invite additional users as “nonadmin” accounts, designating access to the appropriate establishments or functional/business units that should be managed by that invited user. Nonadmin user access will be limited to their assigned establishments or functional/business units.
OFCCP has issued FAQs that include troubleshooting information and an overview of the contractor portal’s security features. The agency also published a user guide and launched a technical help desk to assist contractors with the registration and certification process.
What This Means for Employers
As noted above, all covered contractors are required to certify AAP compliance in the contractor portal by the June 30, 2022 deadline. Meeting this requirement is even more important in light of OFCCP’s indication that noncompliant contractors are more likely to be scheduled for compliance evaluations. Further, because of potential complications surrounding registration by the parent company from the 2018 EEO-1 report, contractors would be wise to begin registration early to allow sufficient time to resolve any technical issues with help from OFCCP. Finally, contractors with AAP plan dates that fall in the March 31 to June 30, 2022, certification window should proactively plan when they will certify compliance and ensure that certification covers the correct plan year.
For More Information
If you have any questions about this Alert, please contact Christopher D. Durham, Meredith Gregston, Jenna M. Decker, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in 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.