As we enter the second cycle of OFCCP affirmative action certification requirements, supply & service contractors will continue to be expected to certify that they have prepared and maintained affirmative action programs for each of their establishments.
We are still awaiting the announcement of this year's deadline for certification, but here's what we know so far.
This blog will be updated as we learn more from OFCCP.
Berkshire has learned that in December 2022, OFCCP submitted a non-material change request to OMB seeking approval to add a field to the contractor portal that would capture the contractor’s “AAP year start date” for each establishment or functional unit. The justification for the request is increased flexibility for both the agency and the contractor community by permitting the verification period to align with the AAP year. OMB did approve the request which OFCCP expects will not add to the original reporting burden estimated at 18 minutes. The timeline for implementation of this change has not been announced nor has the number of days past plan date the contractor will have to complete certification. We will update here as this unfolds.
As of today, OFCCP has made no mention of what the timeline for 2023 verification will be. Until we know more, Berkshire encourages our clients with outstanding plans to submit data to us as soon as possible. A representative will contact you shortly to secure your data.
Today OFCCP released a statement that the Contractor Portal Technical Help Desk is actively responding to all open help desk tickets and will remain open to assist contractors who have not yet registered or certified. Those contractors who contacted the OFCCP for assistance prior to the June 30 deadline will be considered to have met the deadline. All contractors who have not yet certified are encouraged to complete the certification process as soon as possible. The portal remains open and although the June 30 deadline was not extended a new date of September 1 was announced. Anyone not certified by this date will be included on a list provided to federal agency contracting officers so that they can notify contractors of their certification obligations.
As anticipated, the agency confirmed that audit scheduling lists are more likely to include contractors who have not certified or those who certified they do not have a compliant affirmative action program.
Read the full statement at https://content.govdelivery.com/accounts/USDOLOFCCP/bulletins/3258c0f. To register, certify or get assistance with the portal, visit https://www.dol.gov/agencies/ofccp/contractorportal.
On March 31, 2022, OFCCP opened the certification portion of the Contractor Portal. In addition, they conducted a 45-minute webinar which walked attendees through the certification process and addressed commonly asked questions. OFCCP did not answer any questions from attendees during the webinar but encouraged attendees to submit questions through the contractor portal via the following link- https://contractorportal.dol.gov/contact. If you missed the March 31 webinar, OFCCP is conducting the same webinar on April 7th and you can register at https://usdolevents.webex.com/usdolevents/j.php?RGID=r15e43a96a1e196e93c157a3ee1406dc3
In addition to the webinar, OFCCP also released the following compliance assistance materials:
- Updated Users Guide which has additional sections related to certification. There were no changes or additional guidance provided in the Registration & Records Update section.
- One-Page Certification Guide
- Additional FAQs addressing certification and updating records
These materials can be found either through links directly on the contractor portal page (https://contractorportal.dol.gov/) or through a different page on OFCCP’s website (https://www.dol.gov/agencies/ofccp/contractorportal).
Please note that a common issue when registering with your 2018 EEO-1 identifiers is that companies should only use the first 6 characters of that identifier. Unfortunately, the error message received does not make it clear that your EEO-1 identifier is what is causing the registration to fail. OFCCP has added this information to their FAQs, but it has not been addressed in the User’s Guide, One-Page Registration Guide or in their ‘How to Register with Known Identifier’ video.
There are a few new FAQs that may be of interest to contractors. OFCCP provides additional information about how to handle subsidiaries as well as provides an example of how a contractor’s plan date influences which AAP they should be certifying and when.
Lastly, OFCCP addresses how a contractor should handle mergers/spin-offs/acquisitions that are not reflected in the 2018 EEO-1 reports. Unfortunately, the answer provided seems to create more confusion. OFCCP first let contractors know that they are able to ‘add establishments that have been acquired and can request a ‘closed’ status for establishments that they no longer hold’. However, the answer goes on to say ‘The system does not have a place to note acquisitions and divestitures. When a contractor acquires or divests itself of an establishment, the contractors involved in the exchange are responsible for ensuring Contractor Portal access for the contractor acquiring the establishment to allow continued certification of compliance with the AAP requirements.’ This second statement appears to contradict the first and seems to suggest that a contractor may need to do more than just add and/or close the impacted establishments. Hopefully, OFCCP will clarify this FAQ in the upcoming days.
Overall, the actual certification process is very straightforward. Most contractors will likely be able to certify compliance after review of the how to video and the one-page certification summary document. Contractors whose organizations have undergone significant corporate reorganization or merger or acquisition activity since 2018 may still want to wait to certify unless they have an AAP plan date of April 1 – June 30.
Join our webinar on April 14 at 2 p.m., as Berkshire’s President Beth Ronnenburg will provide a timely overview of the newly implemented registration and certification process.
OFCCP is hosting a webinar on March 31, 2022 at 2:00 p.m. EST on the certification process for the new Contractor Portal. The Contractor Portal will allow multiple users from an individual organization to each register, manage records, and certify establishments.
During this webinar, OFCCP will cover:
- An overview of the OFCCP Contractor Portal
- A demonstration on how your company can certify compliance through the OFCCP Contractor Portal
- Answers to common questions received
To attend the webinar on March 31, 2022, you can register here. Due to high demand, an encore presentation of the webinar has been added. If you are unable to attend due to capacity or scheduling, you may register for the live encore presentation on April 7.
Contractors can also submit questions to the OFCCP Contractor Portal Technical Help Desk or call 1-800-397-6251 with any questions.
The OFCCP’s Contractor Portal registration is live as of February 1st! OFCCP hosted a webinar to demonstrate the Contractor Portal registration process and held a brief Q&A. Here are some key takeaways from the informational session:
- Invitations to register will be sent to the individual identified as the company contact for the 2018 EEO-1 reports.
- ALL supply and service contractors and subcontractors, including universities and those with FAAP agreements, are required to register even without an invitation.
- Construction contractors that are not also supply and service contractors are not required to register or certify their AAP at this time and should not register in the Contractor Portal.
- The Contractor Portal meets federal security requirements and requires users to login using 2-factor authentication.
- Contractors can choose to pre-populate their 2018 EEO-1 parent company information and establishments by entering EIN, HQ/Company Number, and Establishment/Unit Number. Contractors can also register with just an EIN number.
- Contractors will have the ability to edit and add establishments. Requests to close establishments due to mergers, acquisitions, etc., must be submitted to the Help Desk.
- OFCCP recommends the Admin User role be assigned to someone at the parent company or headquarters establishment who has the authority to add other company users to the portal.
- When certifying, contractors will verify they have developed and maintained an AAP as of the date they are certifying. For example, a contractor with a June 1 plan date could certify on the basis of the June 1, 2021 AAP if the actual date they certify is on or before May, 31, 2021. If the contractor certifies on or after June 1, 2022, it is certifying that it has developed a June 1, 2022 AAP.
We will continue to share information and helpful tips as we learn more about this process.
OFCCP is hosting a webinar on February 1, 2022 at 2:00 p.m. EST on the registration process for the new Contractor Portal. The Contractor Portal will allow multiple users from an individual organization to each register, manage records, and certify establishments.
During this webinar, OFCCP will cover:
- The mission of OFCCP
- An overview of the Contractor Portal
- A demonstration on how your company can register and update records on the platform
- A question and answer session
To attend the webinar on February 1, 2022 at 2:00 p.m. EST register using this WebEx link.
You can also contact OFCCP with any questions and/or comments about the Contractor Portal at OFCCPAppsSupport@dol.gov.
In response to an informal help desk inquiry, OFCCP recently answered a series of questions about the new verification process that shed more light on how the system will work.
The timeline for the 2022 certification process calls for contractors to register for access to the new portal beginning February 1, 2022, and to certify compliance between March 31 and June 30, 2022. What we know is that contractors will also be submitting their 2021 EEO-1 reports to the EEOC in the same time period, with the EEO-1 filing report window tentatively opening April 12, 2022 and closing on May 17, 2022 this year.
Unfortunately, it does not appear that the pre-populated information in the OFCCP’s Contractor Portal will align with a contractor’s most recent EEO-1 reports, or even its 2020 EEO-1 Reports. Instead, in response to a question from a contractor about the information that will be pre-populated in the Contractor Portal, the OFCCP recently stated:
Currently the 2018 version of the EEO-1 report is being used as the base data for pre-populating the employers establishment information in the Contractor Portal during the registration process.
What exactly does this mean? For some contractors, it may mean that a contractor representative will need to manually update the pre-populated establishment data in the OFCCP’s system before being able to certify compliance. This could include updating information about new or closed establishments, as well as possibly adding or deleting establishments that were impacted by merger, acquisition or other corporate activity since the 2018 EEO-1 reports were filed. For some contractors, this process may be quite cumbersome and time consuming so contractors should factor this possibility into their certification project plan.
In response to the informal help desk inquiry, OFCCP also confirmed the following:
- Large contractors will be able to use a “Select All” check mark to certify compliance for multiple entities/establishments.
- The Contractor Portal will not be a publicly-searchable database. According to the OFCCP, when a registered user logs in, they “will be presented with the "Certification Status" of all establishments/business units” that fall under the parent company of the registered user.
The OFCCP took another step today towards requiring annual AAP certifications by federal contractors and subcontractors. In August, the Office of Management Budget approved OFCCP’s request to require federal contractors to certify, on an annual basis, the development and maintenance of their affirmative action programs (“AAPs”). On December 2, 2021, the OFCCP announced a timeline for the first required certification, including release of an online Contractor Portal which federal contractors must use for the certification process. This portal will also be used in audits for the submission of AAPs to OFCCP.
The OFCCP intends to send an email to contractors who have updated/available information to invite them to register, once open. The timeline for 2022 is as follows:
- February 1, 2022: Existing contractors may start registering for access to the new portal.
- March 31, 2022: Certification feature will be available for contractors to certify AAP compliance.
- June 30, 2022: Deadline for contractors to certify for each establishment and/or functional unit, as applicable.
The OFCCP has also created a Contractor Portal Landing Page as well as Frequently Asked Questions (FAQ’s). Included on the contractor portal landing page are sections for How-To-Videos and User Guide and References. Both of these sections show as “Coming Soon”. The FAQs currently include two sections: general and registration. The general section answers questions about what the portal is, why OFCCP requires its use, who has to use it, where contractors can find resources on developing AAPs, whether using the portal will exempt a contractor from compliance evaluations (the answer is “No”), and describes measures taken to ensure security of information submitted. Then, the registration section shows a series of six questions/answers regarding the how, when and who of gaining access and users for the portal. What the web page has NOT published is a view of the contractor information in the portal or the required certification or AAP upload pages.
As more information becomes available about the OFCCP’s AAP verification process, we will post it here. For now, all contractors should ensure that their annual AAPs are timely prepared so that they can certify compliance by the deadline. Contractors with plan dates near the verification deadline, such as contractors who utilize a June 1 plan date, should consider early certification (i.e., between March 31 and May 31, 2022).
OFCCP’s Affirmative Action Program Verification Interface, which will require federal contractors to certify that they have affirmative action programs in place for covered establishments, was approved by the Office of Management and Budget (OMB) on August 31, 2021. As part of the approval, two user guides - Admin Guide; Federal Contractor User Guide – were also released. These guides provide detailed information about how federal contractors will certify their affirmative action compliance.
OFCCP’s verification website, is not yet live, but contractors will have 90 days to certify their compliance once the verification portal is available. We will provide more detailed information about this development over the coming days as we digest the new user guides. In the meantime, now is the time to ensure that your organization can certify that it has a current affirmative action program for all covered establishments.