The deadline for federal contractors and subcontractors to certify compliance with the affirmative action regulations in the OFCCP Contractor Portal was June 29, 2023.  Leading up to the deadline, many contractors experienced technical issues in registering and certifying on the portal. 

OFCCP released a statement on June 30th stating that

OFCCP will consider a contractor’s registration and/or certification timely if the contractor has a pending request for assistance as of June 29, 2023.

The communication further stated that while the Help Desk is currently working through the open help desk tickets,

the deadline to certify compliance has not been extended. 

OFCCP directs any contractor or subcontractor that has not registered, certified, or submitted a help desk ticket should do so “as soon as possible.”  The Help Desk is still open to assist contractors and subcontractors with the registration and certification process.

We continue to monitor developments with the Contractor Portal and will provide updates as new information becomes available. If you have questions, please contact the Jackson Lewis attorney with whom you regularly work or a member of the Affirmative Action, OFCCP and Government Contract Compliance Group to discuss.

On March 20, 2023, the Office of Federal Contract Compliance Programs (OFCCP) announced that it will re-open the Contractor Portal on March 31, 2023. Once open, covered federal contractors and subcontractors must certify that they have developed and maintained AAPs before the June 29, 2023, deadline.

In a change from last year that should benefit the contractor community going forward, OFCCP will require contractors to provide its “AAP Coverage Period.” This new information will allow OFCCP to shift away from requiring certification by all contractors at the end of June each year and move to a rolling deadline based on a contractor’s AAP plan year.

In its announcement, OFCCP reiterated that contractors who do not certify by the June 29th deadline would have a greater chance of an audit. This is no idle threat. As we saw with OFCCP’s latest CSAL list, the agency selected contractors for audit that did not complete the annual certification in 2022.

Covered federal contractors and subcontractors that did not certify last year should register on the Contractor Portal as soon as possible. New federal contractors and subcontractors will have 120 days from entering a covered contract to prepare written AAPs – according to existing regulations – and 90 days from then to register and certify in the Portal. According to OFCCP’s recent announcement, the Contractor Portal will remain open after June 29th to account for these new contractors.

Last year, contractors encountered many technical difficulties trying to register and certify. Hopefully, OFCCP has worked out these “kinks” with the Portal. Nevertheless, we highly recommend contractors start the certification process as early as possible in case of unforeseen challenges.

We continue to monitor developments with the Contractor Portal and will provide updates as new information becomes available. If you have questions, please contact the Jackson Lewis attorney with whom you regularly work or a member of the Affirmative Action, OFCCP and Government Contract Compliance Group to discuss.

OFCCP’s regulations were designed for the typical private sector contractor.  As a result, higher educational institutions, particularly colleges and universities, often struggle with fitting their “round pegs” processes into the “square holes” that OFCCP designed.  OFCCP’s Contractor Portal is no exception.

The Portal identifies employer establishments based on EEO-1 Reports filed from 2018.  But higher educational institutions file Integrated Postsecondary Education Data System (IPEDS) Reports, not EEO-1 Reports.  This disconnect left many educational institutions to apply their best judgement to define its establishments when registering in the Portal—and increased the burden on these contractors when creating new accounts within the Portal.

Perhaps to address such issues, on August 25, OFCCP issued updated guidance that better fit its requirements to higher educational institutions’ processes.  Under this new guidance, higher educational institutions should register in the Portal using their IPEDS Unit Identification, rather than the unit identifier from an EEO-1 Report.

The Agency has also updated its Contractor Portal User Guide with a new “Educational Institutions Registration” section and nine new “Figures” to assist educational institutions in the Portal’s administrative process.

OFCCP has also issued a new FAQ to assist educational institutions navigate the process:

4. How do educational institutions register in the Contractor Portal?

Educational institutions register using their Integrated Postsecondary Education Data System (IPEDS) unique identification number (UNITID or IPEDS ID) and Employer Identification Number (EIN). Educational institutions may develop a single AAP or multiple AAPs, depending on their organizational structure. To account for these flexibilities and possible variations in AAP development, educational institutions will certify compliance for all AAPs associated with their 6-digit IPEDS ID.

Interestingly, this procedural guidance also reinforces other substantive guidance for educational institutions.  For example, this new FAQ confirms the guidance from OFCCP’s Educational Institutions Technical Assistance Guide and campus-like setting guidance that campus environments may appropriately be considered separate establishments—therefore, permitting multiple AAPs to cover a single campus.

As a result, educational institutions may want to consider whether their operations would support—and their organizational objectives may strategically benefit from—developing multiple affirmative action programs and certifying each separately in OFCCP’s Portal.

If you have any questions about this new guidance or strategic approaches to educational institution affirmative action planning, please contact a member of our Affirmative Action Compliance, OFCCP and Government Contractor Practice Group.

It’s been a busy morning for government contractors!  As the NILG 2022 National Conference in Boston, Massachusetts was coming to a close and EEOC was releasing the NAS study on the EEO-1 Component 2 pay data collection tool, OFCCP was communicating with contractors about the OFCCP Contractor Portal.

In an e-mail communication, OFCCP provided a number of clarifications and additional information about the portal.

First, the Agency confirmed

OFCCP has not extended the June 30 deadline. Contractors that have not yet registered and certified whether they are in compliance with their AAP obligations should do so as soon as possible.

Second, OFCCP warned that

[c]ontractors that have not certified will be more likely to appear on OFCCP’s scheduling list than those that have certified their compliance with AAP requirements. Contractors that have not certified compliance include those that have not utilized the Portal to certify whether they are meeting their AAP requirements, as well as those contractors that have certified they have not developed or maintained an AAP.

Additionally, the notice reported, as reported by OFCCP Director Jenny Yang during her NILG National Conference keynote speech, that

contractors that have not certified compliance by September 1, 2022, will be included on a list provided to federal agency contracting officers. The purpose of this list is to enable contracting agencies to notify contractors of their certification obligations, thereby assisting OFCCP in securing compliance.

OFCCP continues to offer technical assistance for contractor who have not yet certified.  OFCCP offers a user guide and frequently asked questions and directs contractors to contact the OFCCP Contractor Portal Technical Help Desk  or call 1-800-397-6251 with any questions.

The June 30, 2022 deadline is quickly approaching for covered supply and service federal contractors and subcontractors to certify in the Contractor Portal they have developed and maintained AAPs.  This week, OFCCP added an option allowing bulk upload and modification of establishments and functional affirmative action plan (FAAP) business units.

Notably, OFCCP limits this functionality to contractors with 100 or more establishments or FAAP business units:

Companies with 100 or more establishments or functional/business units may request to have their establishments or functional/business units modified or uploaded in bulk by using the Bulk Upload/Modification Template.

Also notable is that this option is not self-executing.  Rather, any contractor wishing to use the bulk option must complete the data template and “Email the completed Bulk Upload/Modification Template as an attachment to OFCCPAppsSupport@dol.gov. In the subject line enter ‘Bulk Upload/Modification Request’.”  The contractor must also request bulk upload on company letterhead and include contact information for a responsible company representative.

OFCCP will then notify the contractor by email when the upload is complete, at which point the contractor must, “Register the Parent Company again using the ‘Identifiers Known Path’” and then check for and remove any establishments that have closed since the contractor filed its 2018 EEO-1 Report.  Even though those establishments will not appear in the bulk upload template, OFCCP will not remove them from the Portal.

Thus, while the bulk upload/modification option is more cumbersome than it might be, it may still offer some efficiencies to contractors with 100 or more establishments or FAAPs.

In support of this option, OFCCP has offered:

We will continue to provide updates and insights as we learn of them.

 

The 2021 EEO-1 Component 1 reporting period is currently underway.  Most employers with 100 or more employees (and most federal contractors with 50 or more employees) must submit their 2021 EEO-1 Component 1 Report by Tuesday, May 17, 2022.  In past years, for various reasons, the EEOC has extended this deadline to permit additional time, sometimes, like last year, extending the deadline many times.  The EEOC’s Frequently Asked Questions on EEO-1 Reporting suggest  we should no longer expect extended reporting periods.

A new FAQ explains that EEOC will permit employers to submit their EEO-1 Reports after the May 17, 2022 deadline—during what EEOC is calling the “failure to file” phase, stating

All filers who have not submitted and certified their mandatory 2021 EEO-1 Component 1 Report(s) by the Tuesday, May 17, 2022 published deadline will receive a notice of failure to file instructing them to submit and certify their data AS SOON AS POSSIBLE, and NO LATER THAN TUESDAY, JUNE 21, 2022. This additional time, through Tuesday, June 21st, 2022, will be available to ALL filers who have not submitted and certified their 2021 EEO-1 Component 1 Report(s) by the May 17, 2022 published deadline.

The FAQ goes on to warn:

Please be advised that AFTER the June 21, 2022 deadline passes, NO additional 2021 EEO-1 Component 1 Reports will be accepted, and eligible filers will be out of compliance with their mandatory 2021 EEO-1 Component 1 filing obligation.

Despite this potential extra time, the official submission deadline remains May 17.

So to ensure compliance employers should continue to prepare their reports with urgency.  But this additional breathing room will come as welcome news for employers that are unable to submit in the next two weeks.

OFCCP’s second Directive under the leadership of Director Jenny Yang addresses audit practices and rescinding four Directives issued by former OFCCP Director, Craig Leen.  This Directive comes on the heels of another new Directive 2022-01-Pay Equity Audits and a notice of the Agency’s intention to rescind a Leen-era regulation – Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination.

The more notable aspects of Directive 2022-02 – Effective Compliance Evaluations and Enforcement, include:

  • Elimination of Extensions of Audit Submission Deadlines in all but “Extraordinary” Circumstances: 

If you’ve gotten used to extra time for the often-heavy lift of retrieving and preparing AAP data for submission, those days are gone.  “Where a contractor needs additional time, OFCCP may grant an extension” but now it will only be for “extraordinary circumstances.” Examples of extraordinary circumstances include, but are not limited to:

  1. Extended medical absences of key personnel;
  2. Death in the immediate family of key personnel;
  3. Localized or company-specific disaster affecting records retrieval such as a flood, fire, or computer virus;
  4. Unexpected military service absence of key personnel; and
  5. Unexpected turnover or departure of key affirmative action official.”
  • Elimination of 45-Day Scheduling Delay after CSAL: 

While OFCCP states it will continue to issue CSALs and disclose its audit selection methodology, “OFCCP may begin scheduling contractors upon the publication of the CSAL.”  While the apparent intent of the CSAL is to provide advance notice, those who are scheduled for an audit on the heels of a new CSAL do not receive that benefit under this new Directive.

  • Access to Witnesses: 

OFCCP may decide to no longer going to rely on contractors for assistance in scheduling employee interviews.  Rather, OFCCP establishes in this directive

OFCCP may directly contact [employees] without the contractor serving as an intermediary.

OFCCP asserts that this step is necessary “[t]o ensure witnesses are comfortable communicating with OFCCP without the fear of reprisal…”

During these investigations, OFCCP states it will request that contractors provide the agency with unredacted contact information such as telephone numbers, mailing addresses, email addresses, and even social security numbers for these individuals.  The Directive does not address the lengths the Agency will go to ensure this information is kept secure.

  • Contractor Portal “Certification” Means “Complete” AAPs:

The Directive also takes the opportunity to address the newly minted obligation for contractor certification in the newly developed OFCCP Contractor Portal. Notably, OFCCP’s Supporting Statement for the Contractor Portal states that certification entails:

  1. Entity has developed and maintained affirmative action programs at each establishment, as applicable, and/or for each functional or business unit.  See 41 CFR Chapter 60.

The Contractor Portal is now live for certification and the required certification recites the above language.  However, the new Directive appears to attempt to clarify, if not expand, the meaning of certification in the new Directive:

Through DIR 2022-02, OFCCP clarifies that when covered contractors use OFCCP’s Contractor Portal to register and annually certify compliance with their AAP obligations, they are certifying that they have developed and maintained complete AAPs.

The endnote to this sentence states: “For further details on the complete AAP components and obligations, see 41 CFR part 60-2, subpart B; 41 CFR part 60-300, subpart C; and 41 CFR part 60-741, subpart C.”

In addition to the foregoing, the Agency has rescinded four Directives that provided specific guidance for transparency and certainty in the OFCCP audit process, while vaguely reaffirming “its commitment to providing transparency, efficiency, and clarity…” without providing much substance or issuing revised guidance on how it intends to carry out that commitment.

While the Agency has removed these Directives from the Agency’s Directive website, they are available in archives.

The bottom line for covered federal contractor is that the current OFCCP administration is taking a more hardline approach to enforcement.  While federal contractors are in favor of effective and efficient audits, it seems the current administration feels many of the advancements of the prior administration do not fit with or assist their enforcement agenda.

Directive 2022-02: Effective Compliance Evaluations and Enforcement issued March 31, 2022 is intended to

strengthen OFCCP compliance evaluations and reduce delay by promoting the timely exchange of information

It also sets a number of expectations for contractor conduct and compliance during reviews, rescinding a number of previous Directives that set out transparency and expectations and timelines for submission of information – commonly known as previous OFCCP Director Craig Leen’s Four Pillars.

Per OFCCP this new Directive:

  • updates agency policies regarding the scheduling of contractors for compliance evaluations, including enhancing the agency’s neutral scheduling procedures to reach a broader universe of federal contractors, and eliminating delays in scheduling.
  • establishes contractors’ obligations regarding timely submission of Affirmative Action Programs (AAPs) and support data, supplemental information, and access to employees, applicants, and other witnesses.
  • increases contractor accountability through the Contractor Portal, by makes stating that when covered contractors use OFCCP’s Contractor Portal to annually certify compliance with their AAP obligations, contractors are certifying that they have developed and maintained complete AAPs in compliance with OFCCP’s requirements.

This new directive explicitly rescinds:

  1. DIR 2018-06Contractor Recognition Program (Aug. 24, 2018);
  2. DIR 2018-08Transparency in OFCCP Compliance Activities (Sept. 19, 2018);
  3. DIR 2020-02Efficiency in Compliance Evaluations (Apr. 17, 2020);
  4. DIR 2021-02Certainty in OFCCP Policies and Practices (Dec. 11, 2020)

While the Agency has removed these Directives from the Agency’s Directive website, they are available in archives.

We are unpacking this new directive and will be back with further details.

OFCCP’s contractor portal is new for everyone, and we are all learning how to use it.

But it presents a unique and interesting inflection point for higher education employers.

Let us explain . . .

OFCCP uses EEO-1 reports to identify the scope of potential contractor establishments for audit.  Because higher education contractors do not file EEO-1 reports, OFCCP has less visibility into those institutions and more importantly, less access to the data used to select contractors for audit.  As a result, the Agency has fewer higher education ping pong balls to draw from in its annual audit selection “lottery.”  It also results in OFCCP sending audit letters to often obscure divisions of a university that house the specific departments that entered into the federal contracts—and not more common addresses for a campus.

The contractor portal, however, might open the door to change higher education audit selection. Why is that? 

When registering for the portal, contractors (including colleges and universities) must identify each of their establishments to OFCCP.  They must disclose each establishment’s headcount, and they must certify that each establishment is covered by an affirmative action program.  These disclosures provide OFCCP with direct (and current) information on how a university sees its workforce.  They provide “better” addresses for audit selection.  And they can shed light on a university’s affirmative action program and workforce – which gives OFCCP “better” data to leverage to focus their higher education selections for audit.

What does that mean? With the certification deadline on the horizon, higher education contractors have a choice.

On one hand, they may report to OFCCP that they have a single establishment—the entire campus.  This will suggest to OFCCP that the campus has one affirmative action plan and that an audit will include every campus employee.  Simply put, if selected this will likely be a large audit, covering the entire system and all that a large-scale OFCCP audit entails.

On the other hand, consistent with OFCCP’s Technical Assistance Guide, a campus employer may conduct OFCCP’s fact-based assessment to determine whether its campus environment can support multiple establishments.  If it can, the employer may prepare a separate affirmative program for each establishment.  This targeted approach can focus affirmative action analyses and efforts, instill more ownership over plan results with decentralized leaders, and create less potential risk should an audit arise.

Why does this matter?  Well, the workforce within each establishment would include more similarly situated employees—and provide more meaningful insights for Department Chairs.  The hiring, promotion, termination, and compensation decisions for a single establishment will generally be made by a smaller number of common managers.  And because OFCCP considers workforce size in selecting contractor establishments for audit, any individual establishment would include fewer employees and, thus, may be less likely to be selected for audit than an overall campus.

Okay, how?  OFCCP’s guidance explains that some campus employers may have multiple buildings or schools that each can properly constitute separate establishments.  And therefore, each would appropriately be covered by a separate affirmative action plan.  In both its Educational Institutions Technical Assistance Guide and FAQs, OFCCP instructs that in making this assessment contractors should consider the following factors:

  • What is the function of the building, and how do the employees in the building interact with employees in other buildings?
  • Are employees across different buildings part of the same organizational unit, such as department, division, section, branch, group, job family, or project team?
  • Are the hiring, compensation, and other personnel decisions handled separately at each building or are those functions consolidated across the entire contractor or across multiple buildings on one campus?
  • Does each building handle its own recruitment or is that function consolidated across multiple buildings?
  • Do the buildings recruit from the same labor market or recruiting area?
  • To what extent are other human resources and Equal Employment Opportunity compliance functions operationally distinct for each building or group of buildings?
  • To what extent are other human resources and Equal Employment Opportunity compliance functions operationally distinct for each building or group of buildings?

Under this Agency guidance, if the factors balance such that different schools or colleges are sufficiently separate, a campus employer may prepare separate plans for each establishment on campus.  Even so, we have seen inconsistent responses in audits for employers who have relied on it.  In some instances, OFCCP has expected a single plan for the whole campus and pushed back, requiring a broader plan for audit.  In others, OFCCP has accepted the more limited submission without raising any questions.  Agency priorities can shift over time, so things may change.

But for now, one thing is clear:  the Contractor Portal will give educational institutions the opportunity to tell OFCCP how they believe their AAPs should be structured and how OFCCP should select its establishments for audit.   So, it is wise to think about it now—before certification.

For more information on the OFCCP contractor portal, please register here for our March 16, 2022 webinar, Navigating the OFCCP Contractor Portal: Registration and AAP Certification.

OFCCP’s Contractor Portal, which will be used for certifying AAP development, as well as for uploading documents and data during a compliance review, opened for registration (not AAP certification) on February 1.  If you’ve tried to register as a federal contractor or subcontractor at the OFCCP Contractor Portal, you may have encountered some “challenges.”  We have.

For example:

  • EEO-1 Company Number:  the system told us that the pre-populated employer company identification was associated with another employer.  Turns out, the company number is only the first six digits for Portal registration, not the complete seven digits that appear in your 2018 EEO-1 report.  OFCCP clarified this point this week in a mass e-mail:
    • Enter only the first six digits of the 2018 EEO-1 identifiers when completing the fields “Headquarter/Company Number” and “Establishment/Unit Number.” Each identifier you enter must be a six-digit number. If an EEO-1 identifier has more than six digits, enter only the first six digits of the number.
    • Enter EEO-1 identifiers from the 2018 EEO-1 report only. The Contractor Portal’s registration process is configured to work only with information from the 2018 EEO-1 report. At this time, no other versions of the EEO-1 report are supported.
  • DUNS number:  we found that to register, we needed a “0” as the first digit in the DUNS.  Without the “0,” we received an error message with no guidance as to how to correct the issue.
  • Establishment Information:  when we attempted to modify Establishment information, we encountered an error regarding the Company Number, without any guidance.  However, when we deleted the pre-populated Company Number, we were able to edit the Establishment information.

It appears that there will be challenges to Contractor Portal registration and that OFCCP will provide guidance as it becomes aware of the issues.  Likewise, as we encounter issues or tips, we will supplement this blog.  Stay tuned!