If you are a federal contractor employer, you have a lot of reporting to do, and the schedule for your various federal reporting requirements keeps changing, which is not conducive to how most Human Resources departments like to operate. But the time to file annual EEO-1 reports and to certify AAP compliance is upon us.

EEO-1

Ever since the EEOC suspended the “Component 2” pay data reporting obligation, EEO-1 reporting has pretty much gone back to normal. We file the familiar “Employer Information Report – Standard Form 100” that we are all used to (with no compensation component), but we do it in the Spring of the year following the reporting year because of that now defunct Component 2.

Confused? Don’t be. It is now 2024, but you be filing your “2023” reports based on a 2023 snapshot. Wrap your head around that and you will be fine.

The EEO-1 portal is scheduled to open on Tuesday, April 30, and the deadline for submitting the actual reports (or data) will be Tuesday, June 4.

Most importantly for BCG clients, the EEOC has finally released the data specifications for those who file via electronic “upload.”

There do not appear to be any significant changes from last year, so your existing queries and macros should still function.

Both the data specifications and the 2023 Instruction Booklet are available here.

AAP-VI

It goes by many names, but the official one is the “Affirmative Action Program Verification Initiative,” and it is federal contractors’ annual obligation to confirm to the OFCCP that they are, in fact, preparing AAPs “as applicable.” Don’t get me started.

The OFCCP still does not have the authority to require anyone to update their location data in the AAP-VI Contractor Portal. And the agency still does not tell you that and instead implies heavily that doing so is a requirement when it is not. If you have updated your location data in the past, or you do so this year, you arguably create an obligation to maintain the completeness and accuracy of that data going forward.

When you certify the information provided is complete and accurate, under threat of penalty for perjury, keep in mind that you are only certifying that information you provided is complete and accurate, not any information the OFCCP put before you and may have asked about without the authority to do so.

The agency has provided updated instructions and some “one-pager” guidance documents.

Somewhat appropriately, the OFCCP’s Contractor Portal is set to open this year on Monday, April 1. Contractors will then have until Monday, July 1 to finalize their certification(s).

All the instructions and guidance documents, as well as a link to the Portal can be found here.

Intersection Between EEO-1 and AAP-VI

The OFCCP relies heavily on prior-year EEO-1 data to prepopulate location information in the Portal for new contractors. You are then instructed to use their “dashboard” feature to “update Establishment or Functional/Business Unit details or create new Establishment or Functional/Business Unit records.” Trouble is, they never mention that you are actually under no obligation to do that whatsoever.

The OFCCP absolutely needs detailed information regarding contractors’ AAP structures, but lacks the regulatory authority to collect that information. They had an opportunity when creating the Contractor Portal and getting the information they would collect through it approved by the Office of Information and Regulatory Affairs. But bafflingly, they did not actually receive authority to require contractors to provide information regarding their AAP structure. In fact, the OFCCP didn’t even ask for that authority.

Instead, they created a platform that requires contractors to certify their AAP compliance (the only piece of information the OFCCP got proper authorization to collect) by location (or function). They then tried to turn a “them problem” (lack of location information) into a “you problem” by instructing you to update the EEO-1 location data to match your AAP structure. They even appear to threaten you with federal prosecution if you fail to do so!

Note that in most instances your EEO-1 filing structure and your AAP structure should be different, a fact that the OFCCP conveniently ignores. But what federal contractors are quickly finding out is that their life tends to be easier the closer those two structures match. Because unless and until someone is willing to step up and challenge the OFCCP’s AAP-VI reporting scheme in court, the rest of us are looking for ways to go along to get along.

If you are a Biddle client, your consultant will already be working with you on a strategy for EEO-1 filing and AAP verification, taking the interactions between the two into account. If you are not a Biddle client and you want some guidance here, our consultants are standing by.

If you have questions about this or any other OFCCP-related matter, please feel free to reach out to us at BCGi@Biddle.com.