It is “that time” again, apparently. On March 31, 2023 the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) will open the “Contractor Portal” and allow contractors to begin certifying their compliance with the agency’s affirmative action requirements. Contractors will have until June 29, 2023 to complete their certification.
The certification process appears to be the same as in 2022. The OFCCP has not updated the Contractor Portal User Guide since August, 2022. Unfortunately, other important guidance documents—namely registration and certification infographics and the all-important Frequently Asked Questions—do not track change dates, so those documents could have been updated without notice. However, BCGi has compared the current OFCCP FAQ page to previous iterations using archives and has not yet come across any substantive changes.
As contractors gear up for the OFCCP’s AAP Verification Initiative (AAP-VI), it is worth considering once again the extent to which your organization “owns” the certification data or wants to. And how your organization certifies this year might depend on how your organization certified last year.
BCGi’s advice remains the same for organizations that are qualifying federal contractors that do prepare annual AAPs as required:
- Create a profile in the Contractor Portal for each Employer Identification Number (EIN) under your organization’s umbrella (or all umbrellas);
- For each EIN, click on in to whatever locations the OFCCP populates for you (create just one headquarters location if necessary for this) and check the first box for each establishment; and
- Certify that the information you provided is accurate.
Despite some clumsy wording in the OFCCP’s FAQs, you are not certifying that the OFCCP-populated data accurately reflects your AAP structure unless you edited that data last year (or you edit it this year).
First-time “certifiers” should read our earlier blog that fleshes out the reasons for this approach in more detail. Also, be proactive and don’t wait for an “invitation” from the OFCCP. Read that earlier blog post, go to the Contractor Portal armed with all of your organization’s EINs, create profiles if necessary, and certify. Failure to do so can have consequences (like a quick trip to Audit Town).
For returning “certifiers,” it is unclear what you will find when you next log in to the Contractor Portal. You might find whatever data and information you left there last year regarding your various locations. The OFCCP could try again with more recent EEO-1 data, replacing any work that might have been done last year. Or the agency could try a combination of both, using more recent EEO-1 data to “enhance” what they have in the system from last year.
Remember, if you edited/updated the location data the OFCCP provided last year based on 2018 EEO-1 data, and the agency doesn’t add to, change, or “enhance” that data in any way, that data and its integrity now belong to you, and keeping it complete and accurate as of the time of filing each year is now your organization’s responsibility. You are still under no obligation to correct any false assumptions the agency might make and present to you.
And all “certifiers” should be thinking about certification as the building of a contractor database for the OFCCP, and how you want to be listed in that database. Differences between EEO-1 and AAP structure are now in the spotlight with an agency that doesn’t seem to understand that in many instances those two things should not be the same. But perhaps now more than ever it is important to align your EEO-1 filing and AAP structures, not to one another, but with your organization’s legal positions regarding separate entities. Trying to claim that Company X is legally sufficiently separate from Company Y to avoid OFCCP scrutiny will not pass muster if Company Y files EEO-1 reports on behalf of Company X (or vice versa).
Perhaps not surprisingly, BCGi has a little more to say on the subject, so if you are into getting “into the weeds,” you can read on here .
If you have questions, concerns, or just want to chat about the OFCCP’s AAP-VI certification requirement, or any other EEO/AA matter, feel free to drop us a line here at BCGi@Biddle.com.