DOL Announces Affirmative Action Compliance Portal
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Department of Labor Announces Affirmative Action Program Portal for Government Contractors  

Key Details: On December 2, 2021, the Office of Federal Contract Compliance Program (OFCCP), a segment of the Department of Labor (DOL), announced the start of the long-awaited Affirmative Action Program Verification Interface (or Portal). This Portal was created as a result of Report 16-750, titled “Equal Employment Opportunity: Strengthening Oversight Could Improve Federal Contractor Non-Discrimination Compliance”.

It was found that the “OFCCP has no process for ensuring that the tens of thousands of establishments that have signed a qualifying federal contract have developed an AAP (Affirmative Action Program) within 120 days of the commencement of the contract or updated it annually.” Thus, the Portal was created to ensure covered contractors and subcontractors are held accountable for developing and maintaining an annual AAP.

What is the Affirmative Action Program?

The AAP applies to covered federal contractors and subcontractors and requires taking steps in the recruitment and advancement of qualified minorities, women, persons with disabilities, and covered veterans. The purpose of this program is to ensure fair access to employment opportunities for all individuals. Affirmative Actions include developing training programs and conducting outreach. These actions should be written policies that are documented, filed, and updated annually. Non-construction contractors and subcontract employers who have 50 or more employees and at least one contract that exceeds $50,000 are required to develop written AAPs. Companies whose sole coverage comes from construction contracts or federally assisted construction contracts are not required to develop an AAP, but they must comply with 16 specific affirmative actions outlined in the equal opportunity construction contract clause.

Basic program requirements also note that each contractor and subcontractor must require each non-construction subcontractor to develop and maintain a written affirmative action program for each of its establishments if it has 50 or more employees and has a subcontract of $50,000 or more.

For a more detailed description of affirmative action program applicability and requirements, please review 41 CFR Part 60-2.

Who Needs to Use the DOL Affirmative Action Portal?

Non-construction contractors and subcontract employers who have 50 or more employees and at least one contract that exceeds $50,000 are required to develop written AAPs. Covered contractors and subcontractors are obligated to use the Portal to register and certify AAP compliance. At this time, contractors that are only construction contractors are not required to use the portal.

Note: The Affirmative Action Program Verification Interface portal does not replace the separately established Employment Information Report (EEO–1) filing requirements. The EEOC collects workforce data from employers with more than 100 employees (a lower threshold of 50 employees applies to federal contractors). Employers meeting the reporting thresholds have a legal obligation to provide the data; it is not voluntary. For more information check the EEO-1 reporting FAQ provided by the DOL and review details of the requirement on the EEOC’s website.

DOL Affirmative Action Portal Timeline and Registration

Beginning February 1, 2022, contractors and subcontractors can start registering for Portal access by creating a login by following the instructions in the DOL contractor portal FAQ. The OFCCP recommends registration as soon as possible. It is important to note that new contractors will have 120 days to develop their AAPs upon commencement of a contract, and they must certify their compliance in the Portal within 90 days of AAP development.

Starting March 31, 2022, certification features in the Portal will become available, and existing contractors are required to certify whether they have developed and maintained an AAP by June 30, 2022.

Contractors and subcontractors are encouraged to register and certify their AAPs by the due dates highlighted above to remain compliant. Noncompliance may invite audits, create liability claims, and inhibit a contractor’s ability to bid on future contracts.

Resources for Contractors

The DOL has created a Sample Affirmative Action Programs page to provide contractors with illustrative examples of AAPs that meet the OFCCP’s regulatory requirements. Note that these AAPs should only be used as an example, contractors should aim to customize their programs to reflect their business.

Conclusion

Federal government contractors and subcontractors who were originally required to document an AAP are now required to submit materials and certifications to the Portal. Prior to the February 1, 2022, registration date, contractors and subcontractors should:

  • Prepare all necessary documentation for registration.
  • Understand the timeline and when certifications are required to be developed and maintained in the Portal.
  • Review all contracts to determine if the AAP is a requirement.
  • Perform a self-assessment to determine if Affirmative Action is currently being taken.
  • Ensure all Affirmative Actions are documented in written policies.
  • Update written AAP policies annually.

As the newly announced Portal brings about another layer of certification and documentation tracking, it is now more important than ever to understand the requirements under the AAP and to begin thinking about the registration process and other due dates. Contractors are encouraged to thoroughly review their AAP requirements and to determine if internal controls and policies are in place to maintain compliance. For more assistance, please contact Ryan & Wetmore by clicking below.

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