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November 3, 2020, the presidential election, is not the only referendum date you should be thinking about. OFCCP asks that you “vote” by November 13 on plans for an “Affirmative Action Program Verification Interface.”

And kudos to OFCCP for presenting three options for plan verification. As announced in the Federal Register of September 14, 2020, and detailed in the OFCCP’s notice and comment “supporting statement,” your choice may determine whether federal contractors are required to either upload your entire annual plan onto a new OFCCP platform, or to merely certify that your plan is “in the can,” without a plan upload requirement.1

Background to plan verification

Affirmative Action plan verification has been coming since the 2016 Government Accountability Office (GAO) report on OFCCP operations. The GAO noted that the OFCCP audits only 2% of 24,000 federal contractors per year. GAO expressed concern that some of the remaining 23,500 or so contractors may be “free riders” whose non-compliance goes undetected.
In 2018 the OFCCP issued Directive 2018-07, informing us that plan verification was on the way – and warning that “entities that do not verify plan creation will be more likely to be scheduled for audit.” So, keep in mind that plan verification, in whatever form adopted, is a game changer.

Contractor Options

Which brings us to the “options” OFCCP outlined in its comment request. Among other things, the OFCCP would like to know whether you support:

  • Annual plan “certification” without upload (Option 1)
  • Annual plan certification AND UPLOAD (Option 2)
  • Certification every two years without upload (Option 3)

Before “voting” you should consider the possible consequences of each option. For example, if upload is required (Option 2), once OFCCP has all that information, what is it going to do with it? The government has been hacked before, so it is possible that your data will not be secure (notwithstanding the Agency’s assurances – see fn.1).

Once uploaded, your plan is “set in stone” for all time. Your annual plan is diagnostic; the plan you submit in response to an audit request should be defensive. It is perfectly legitimate to fine-tune your desk audit submission. So, especially if you are responsible for a large program with multiple establishments, do you want to upload your perhaps somewhat rough-edged annual plan?

You can’t just create your plans and hit verify. You’ll need input from all over HR and approval from legal and senior leadership before you press that button. Let’s face it, verification is going to be a detail-ridden, uphill grind. Do you want to do this annually, or every two years?

The supporting statement relates that OFCCP expects contractors to verify within 90 days of the requirement going into effect. It continues, “After the initial certification year, OFCCP will set a date by which all existing contractors must renew their annual certification.” What will this date be? Will OFCCP expect verification within 90 days of the start of your plan year? Is 90 days enough time to assemble stable data, scrub data, update organization detail, review your census codes, titles, recruiting areas, etc., etc., and secure all necessary approvals? How much time is enough? Let the Agency know what you think.

When you comment, you are free to identify yourself or your company, or to remain anonymous. But exercise your mandate, “vote” on verification – click here.


1The “Interface” referred to in the proposal is the “AAP-VI” electronic data upload system that, whatever form of verification the OFCCP finalizes, the agency is putting in place. A substantial portion of the OFCCP’s supporting statement is given over to technical detail on this electronic portal, to convince the technically minded that uploaded data will remain secure. If OFCCP opts for “check the box” plan certification, it will likely expect contractors to use the portal to upload plans under review.

 

Author

Paul McGovern
Managing Partner
Praxis Compliance

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