The OFCCP has added a new feature to the Contractor Portal where federal contractors are required to verify their compliance with the OFCCP’s affirmative action regulations (as applicable). The new “bulk upload/modification” feature allows contractors to provide the OFCCP with information regarding their actual AAP structure by uploading a file with the information, as opposed to more manually modifying the 2018 EEO-1 data that the OFCCP “helpfully” pre-loaded into the system.
This is where we remind everyone that updating the EEO-1 data that the OFCCP presents to you is not required.
As we previously noted, the OFCCP is only authorized by OMB to require contractors to certify whether or not they are in compliance “as applicable.” Because the OFCCP was inconsistent in the materials submitted to OMB for approval, there is some question as to whether or not the agency is actually authorized to require contractors to certify for each establishment or for the organization as a whole.
The OFCCP is not, however, authorized to require contractors to actually provide information about their AAP structure indicating the physical locations for which they actually prepare AAPs. And the agency is steaming ahead with establishment-level certification, which creates a conundrum for the OFCCP (but not necessarily for you).
Since the OFCCP cannot require contractors to provide information about their AAP structure, in order for them to require certification on the establishment level, the system was loaded with the most recent EEO-1 reporting data available, which is from 2018. Even if the EEO-1 data were “fresh,” it would still not likely represent the AAP structure for the majority of federal contractor employers because the “rules” for when an establishment must report its own EEO-1 and when an establishment must have an AAP are different.
So contractors are stuck working with four-year-old EEO-1 data and the OFCCP would really, really like you to update that data to reflect your current AAP structure. Up to now, that process can be extremely cumbersome for larger, more complex contractor employers, so the OFCCP has just made that ask a lot easier.
But you are not required to update that data at all, and in most instances, BCGi recommends that you do not.
The OFCCP is reminding everyone that providing false information to the federal government is a crime. But here’s the thing—no one provided 2018 EEO-1 reporting data to the OFCCP for these purposes. And the agency assuming that your 2018 EEO-1 reporting structure is the same as your 2022 AAP structure does not create an obligation on your part to correct their erroneous assumption. Once you start updating that data, though, an obligation to provide complete and accurate information arguably arises. Up until then, though, you have not taken any “ownership” of that data and what it might or might not say about your AAP structure.
If the OFCCP wants to require contractors to provide information about their AAP structure, they should update their regulations and submit a new information collection request to the Office of Management and Budget.
As it stands, contractors are required to click into each establishment presented to them in the Contractor Portal, based on that 2018 EEO-1 data, and check a box corresponding to whether or not the contractor prepares AAPs at that location “as applicable.”
Those two little words do a lot of work here. For one, you may legitimately not prepare an AAP for a particular EEO-1 reporting location, and that is fine. As noted, the rules are different for EEO-1 reporting and AAPs. So the location in question might still exist, might still belong to your organization, but not have an AAP, so the AAP requirements do not apply to that location (we are assuming that any employees at such a location are included in an AAP elsewhere, as required).
But the location the OFCCP presents might no longer be in operation. It may not exist. It may not even be associated with your organization anymore. You can still click in and confirm compliance “as applicable.”
Some organizations might have their own reasons for voluntarily providing AAP structure information to the OFCCP. Large, complex organizations with lots of merger and acquisition activity, divestitures, reorganizations, restructurings, and/or complicated subsidiary relationships, joint ventures, etc. might find the OFCCP easier to deal with when provided with a clearer picture here.
But do not be fooled by the OFCCP’s tactics into believing that you are required to reconcile their establishment information with your actual locations and AAP structure. And unless it is in your interest to do so, consider whether or not it is in your best interest to provide information to a federal law enforcement agency that you are not required to provide.
If you have questions about the OFCCP’s AAPVI or any other contractor compliance issue, feel free to contact us at BCGi@Biddle.com.