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On August 31, 2021, the Office of Management and Budget (OMB) published its approval of the OFCCP’s Affirmative Action Program Verification Interface (‘AAVI’). It has been a long time coming. A 2016 General Administration Office (GAO) study concluded that federal contractors should be required to verify that they create their mandated Affirmative Action Plans (AAPs). The OFCCP developed verification plans that went through public ‘notice and comment’ in 2019 and again in 2020.

The OMB approval links to a .pdf ‘Federal Contractor User Guide’, which sheds light on what the AAVI program might entail. The document outlines how to establish an AAVI electronic account, how to upload Affirmative Action Plans (AAPs), and how to certify that your employer maintains an AAP for each ‘establishment’, that is, each of a contractor’s physical work locations.

Full Plan Upload: To Be or Not to Be?

A few years ago, there was significant contractor concern that verification might entail an annual upload of all AAPs. Contractors did not want to upload reams of business-sensitive information covering their entire operation. We will have to see, but from the User’s Guide, it does not appear that AAVI requires a full upload. Instead, a ‘Certification Portal’ will ‘allow’ contractors to upload AAPs – presumably for locations under audit. (How secure the information will be, how confidential the information will remain in the face of Freedom of Information requests… these remain open questions.) Once uploaded, the plans will be tracked in the OFCCP’s electronic ‘Case Management System’.

The User Guide details how to log both ‘parent company’ and establishment-specific information. It is unclear whether the contractor must create a record for each establishment it maintains, and if so, how. Manually creating such records will be a significant task for large contractors. (The OPM notice also includes a link to a pdf ‘OFCCP AAVI Admin Guide’, apparently for the OFCCP’s AAVI users. This guide references EEO-1 data imports. Could this auto-populate establishment detail? It’s not likely, but let’s hope so!)

Verification: Questions Abound

AAVI will require that contractors verify one of the following

  • It has established and maintained affirmative action programs at each establishment, as applicable. See 41 CFR Chapter 60.
  • It has been party to a qualifying federal contract or subcontract for 120 days or more and has not developed and maintained applicable affirmative action programs at each establishment, as applicable. See 41 CFR Chapter 60.
  • It became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs. See 41 CFR Chapter 60.

The certification language is essentially unchanged from what the OFCCP proposed in ‘notice and comment’. At that time, contractors had lots of questions. As of now, the questions remain unanswered.

Who should do the certification? Anybody, or an official with responsibility for the program?

How are large contractors with hundreds if not thousands of AAPs to answer if one plan is in development, or has just expired? Is the fact that the contractor had a valid AAP and is creating a new one enough to say it has ‘established and maintained’ its program…?

What are the consequences when a contractor certifies that a plan is ‘not developed’?

The OFCCP proposed that contractors would have 90 days ‘once the requirement takes effect’. Will the 90-day period be extended, as contractors requested? Did the clock start on August 31, 2021?

The OFCCP’s proposal stated that after the initial certification year, the Agency will set a date by which all existing contractors must renew their annual certification. What will that date be?

Get Ready!

One thing is certain. The OFCCP’s verification website says ‘coming soon’. If your employer is a federal contractor and has not paid sufficient attention to your AAP requirements, it is high time. Consider starting with the resources in Circa’s recent ‘prep your plan’ blog.

Circa will update you on AAVI requirements as information becomes available.

Author

Paul McGovern
Managing Partner
Praxis Compliance

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