March 30, 2022 is the deadline for federal contractors, including subcontractors, to register in OFCCP’s recently launched Contractor Portal. Beginning March 31, contractors will have until June 30 to verify compliance with the OFCCP’s affirmative action and non-discrimination regulations.
Why is OFCCP requiring contractors to verify compliance?
A 2016 report by the General Accounting Office (GAO) outlined a number recommendations for improvements to the OFCCP’s process for selecting contractor establishments for review. In doing so, the GAO identified a number of concerns:
- OFCCP did not have a comprehensive list of covered prime and subcontractors;
- the majority of contractors scheduled for review required extensions to submit a response to the standard scheduling letter indicating that they were not preparing AAPs for all establishments annually;
- OFCCP reviewed only a small fraction of covered contractor establishments each year and;
- of the limited number of establishments reviewed, only 2 percent of audits resulted in adverse findings.
In response to these findings, GAO recommended, among other actions, that “OFCCP develop a mechanism to monitor AAPs from covered federal contractors on a regular basis. Such a mechanism could include electronically collecting AAPs and contractor certification of annual updates.” OFCCP’s newly launched Compliance Verification process is a direct response to GAO’s recommendation.
Who must register?
All supply and service prime contractors and subcontractors required to prepare AAPs or FAAPs must register by March 30. OFCCP takes the position that if one establishment holds a covered federal contract, all affiliated establishments are also subject to the agency’s jurisdiction. In other words, OFCCP assumes that all affiliated locations and entities of a covered contractor are a single entity. Contractors who are not certain that all locations and entities are required to certify should contact their FordHarrison counsel before registering.
Additionally, in many cases, employers do not know that they are covered federal subcontractors unless they are working on or delivering product to a federal property. Employers should check their contracts for the required EEO/Affirmative Action flow down clause. If the clause is included, employers should immediately seek legal counsel to determine whether they are indeed covered subcontractors and, if so, take steps to come into compliance with OFCCP requirements prior to the close of the certification period.
Construction contractors are exempt from registration and certification – at least for now. They are not, however, exempt from review. OFCCP is prepared to launch a series of construction reviews in response to the new infrastructure bill. We will provide additional updates on this topic in a future legal alert.
What information is needed for Registration?
Contractors need only their Employer Identification Number and 2018 EEO-1 headquarters and establishment numbers to complete the registration process. OFCCP prepopulated the portal with information from contractors’ 2018 EEO-1 filings. Thus far, some contractors that have attempted to register have reported technical issues with the initial log-in process, which appear to relate to the OFCCP’s use of 2018 data to populate the portal and the many changes in personnel that have occurred during the pandemic.
If your organization has undergone significant changes in the past three years, consider manually entering establishment information rather than relying on the prepopulated data. Additionally, if you have FAAPs, instead of or in addition to establishment-based AAPs, or if you did not file an EEO-1 in 2018, you must manually enter the required information.
For step-by-step instructions for registering, go to the OFCCP Contractor Portal.
Where do Contractors Register?
Contractors can register at ContractorPortal.DOL.GOV.
When is the Registration Deadline?
Current contractors must register no later than March 30, 2022. Depending on the number of covered establishments and/or FAAPs, the registration process could take a considerable amount of time. Given that thousands of prime and subcontractors will be accessing the registration portal over the next six weeks, contractors should begin the registration process as soon as possible.
Final Thoughts
Contractors must take the registration and certification process seriously. Those contractors that fail to register are more likely to be scheduled for review. If an employer is not sure whether or the extent to which it is a covered prime or subcontractor, seek legal counsel before deciding whether to register.
Looking ahead to certification, contractors should review their AAPs and compliance programs generally to confirm they are in compliance with all of OFCCP’s regulations. Your FordHarrison attorney can conduct a baseline assessment to confirm compliance, and, as needed, can assist you in augmenting your compliance programs prior to the close of the certification period.
If you have any questions regarding the registration process and whether you are required to register, please contact the authors of this Alert, Nancy Holt at nholt@fordharrison.com, or Erica Johnson at ejohnson@fordharrison.com. Of course, you can also contact the FordHarrison attorney with whom you usually work.