Bloomberg Law
Free Newsletter Sign Up
Login
BROWSE
Bloomberg Law
Welcome
Login
Advanced Search Go
Free Newsletter Sign Up

New Affirmative Action Plan Checks Launched for Contractors (2)

Dec. 2, 2021, 2:36 PMUpdated: Dec. 2, 2021, 11:59 PM

Companies that do business with the federal government will be required to certify the existence of workplace affirmative action plans regardless of whether they are selected for an audit, the U.S. Labor Department’s contractor watchdog office announced in a policy rollout Thursday.

The Office of Federal Contract Compliance Programs created an online portal, known as the Affirmative Action Plan Verification Interface, for contractors to attest that they have developed and maintained their plans. Registration for the “Contractor Portal” is scheduled to begin Feb. 1, 2022, with the certification period planned to run from March 31 through June 30.

Rollout of the portal, first reported by Bloomberg Law, creates a new level of data submission for federal contractors.

“OFCCP will be able to use contractors’ annual certification response as an additional criterion for the agency’s neutral scheduling process, so that contractors who certify they are not in compliance will be more likely to be scheduled for a full compliance review,” DOL spokesman Edwin Nieves said in an emailed statement.

“Using this criterion in scheduling will help OFCCP achieve its strategic goal of enforcing the law effectively and maximizing the use of its resources by focusing on contractors more likely to be out of compliance,” he added.

Affirmative action plans describe how contractors recruit and employ women, minorities, certain veterans, and workers with disabilities, and set placement goals.

Certification Requirement

Existing agency regulations require contractors that meet certain employee and contract-value thresholds to create and maintain the written plans within 120 days of entering into a federal contract, and they must be reviewed annually.

Under prior policy, businesses that hold federal contracts would verify through the government’s System for Award Management that they have an affirmative action plan in place. The OFCCP, which enforces anti-bias and affirmative action rules among government contractors, generally wouldn’t review the plan unless a business was being audited.

This new development would require contractors to certify compliance with affirmative action plan requirements. Contractors selected for audit also can submit their plans through the online contractor portal.

The agency’s regulations don’t judge contractors based on whether they reach their affirmative action goals, but rather by “the nature and extent of the contractor’s good faith” efforts and “the appropriateness of those activities” to address equal employment opportunity challenges.

Contractors that haven’t developed or maintained an AAP, will be cited by the OFCCP for a violation of its regulatory obligations and may be referred for enforcement, Nieves said.

Unknowns Persist

There are still a lot of unknowns with this portal and how it will work, said T. Scott Kelly, co-chair of Ogletree Deakins’ affirmative action/OFCCP compliance practice. “We are inching towards understanding what this requirement is actually going to impose on contractors, but this doesn’t really provide any clarity.”

Given all the other new requirements contractors are putting in place right now, such as vaccine mandates, Kelly said there is “relief that there’s this phased-in timeline.”

It’s also unclear how the agency would know if a company hasn’t certified its affirmative action plan.

If a contractor hasn’t certified the existence of its plan, it could go to the top of the agency’s auditing list, said Matthew Camardella, co-lead of Jackson Lewis P.C.'s affirmative action, OFCCP, and government contract compliance practice.

The OFCCP could also recommend that procurement officers check this new database before awarding a contract, said David Cohen, co-chair of the Institute for Workplace Equality, a federal contractor group specializing in compliance. “If that happens, verification would serve as a pre-award review and it could hurt its ability to get contracts.”

—With assistance from Paige Smith

(Updated with Labor Department comments starting in fourth paragraph.)

To contact the reporter on this story: Shira Stein in Washington at sstein@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com