The Contractor Portal is a new OFCCP platform where covered federal contractors and subcontractors must certify whether they are meeting their requirement to develop and maintain annual Affirmative Action Programs (AAPs). The portal allows multiple users from individual organizations to register, manage records, and certify each of their establishments and functional/business units.1
On March 31, 2022, contractors will be able to utilize the certification feature in the portal to certify their AAP compliance. And, by June 30, 2022, existing contractors must certify whether they have developed and maintained an affirmative action program for each establishment and/or functional unit, as applicable. With the deadline to certify drawing near, does your company have its Affirmative Action Program in place and are you taking the necessary steps to certify?
In 2016, the U.S. Government Accountability Office (GAO) conducted a study that found that many federal contractors were not meeting their affirmative action obligations. It discovered that close to 85 percent of evaluated contractor establishments did not submit their AAP within 30 days of OFCCP’s request. As a result of this study, the OFCCP in 2018 proposed an online portal that enabled contractors to register and annually certify their compliance for each of their locations.2
This is clearly an area of concern as a basic compliance matter, but it goes beyond that as well. Not having AAPs in place also means that these companies’ workforces don’t have the benefit of these plans and the opportunities they provide. In addition, these companies may not have been taking a systemic look at diversity, equity, inclusion, and accessibility (DEIA) in their workplaces, which is definitely a best practice.
According to federal regulation 41 CFR § 60-2.10, “an affirmative action program is a management tool designed to ensure equal employment opportunity. A central premise underlying affirmative action is that, absent discrimination, over time a contractor’s workforce, generally, will reflect the gender, racial and ethnic profile of the labor pools from which the contractor recruits and selects.”3
In short, it means a contractor provides employment opportunities to all applicants and employees, regardless of their race, color, religion, sex, sexual orientation, gender identity, national origin, disability or status as a protected veteran.
Contractors that meet certain jurisdiction thresholds have an obligation to develop and maintain written Affirmative Action Programs (AAPs). Executive Order 11246 and Section 503 of the Rehabilitation Act of 1973 require federal contractors and subcontractors that hold a covered contract of $50,000 or more and employ 50 or more employees to develop and maintain Affirmative Action Programs (AAP) under each authority. Also, the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRA) of 1974 requires federal contractors with at least 50 employees and contracts of $150,000 or more to develop an AAP under VEVRAA.4
One of the basic components of being a federal contractor is having an AAP. Companies should take this requirement seriously. Companies that don’t register with the Portal and certify their AAP status risk being at heightened risk of being reviewed and potentially losing out on federal contracts.
It’s important for federal contractors and subcontractors to take steps now to certify before the June 30th deadline, because this gives companies time to ensure everything is in order. Taking the time to ensure that your company is certified is not only part of ensuring proactive compliance, it will also prevent potential problems down the road.
The OFCCP Contractor Portal has extensive support from the contractor community, stakeholders and bipartisan support from both political parties since it was developed during a Republican administration and launched during a Democratic administration. Because of this support, the Portal’s functionality will likely only continue to grow, ultimately benefiting the workforce who will receive greater access and opportunity.
Footnotes:
1. Office of Federal Contract Compliance Programs: OFCCP Contractor Portal
2. U.S. Government Accountability Office: Equal Employment Opportunity: Strengthening Oversight Could Improve Federal Contractor Nondiscrimination Compliance
3. National Archives Code of Federal Regulations Part 60-2 – Affirmative Action Programs
4. Office of Federal Contract Compliance Programs: Jurisdiction Thresholds and Inflationary Adjustments
