OFCCP announced yesterday, March 20, 2023, that the Contractor Certification Portal will open in ten days. Contractors have until June 29, 2023 to certify that they are in compliance with OFCCP’s affirmative action and non-discrimination regulations.
New contractors: Per OFCCP’s regulations, new supply and service contractors have 120 days from receiving a federal contract (prime or subcontract) to develop their affirmative action plans (AAPs) or functional affirmative action plans (FAAPs). Once the AAPs are in place, new contractors have an additional 90 days to register and certify compliance through the Contractor Portal. OFCCP will keep the Portal open to accommodate new contractors throughout the year.
Existing Contractors: All existing supply and service prime contractors and subcontractors required to prepare AAPs or FAAPs must certify compliance by June 29, 2023.
Key Points to Keep In Mind:
- Contractors will need to report their plan date(s) as part of their 2023 certification. OFCCP has alerted contractors to one change in its certification feature for 2023: contractors will now be required to provide the start date of their AAP coverage period for each establishment when certifying. OFCCP has not yet updated the Contractor Portal landing page for the 2023 certification period, but intends to post a pre-recorded webinar to the Portal by March 29, 2023 that will demonstrate how contractors can enter their establishment and/or functional/business unit’s AAP start date and certify compliance through the Portal.
- Those contractors who fail to timely certify are more likely to be selected for a compliance review. Indeed, OFCCP’s most recent scheduling list is intended to be comprised entirely of contractors who did not certify compliance in 2022.
- OFCCP takes the position that if one establishment holds a covered federal contract, all affiliated establishments are also subject to the agency’s jurisdiction. In other words, OFCCP assumes that all affiliated locations and entities of a covered contractor are a single entity. Contractors who are not certain whether all of their locations and/or entities are required to certify should contact their FordHarrison counsel before registering.
- The certification requirement applies to both prime contractors and subcontractors. Employers who are not sure if they are federal subcontractors should check their current contracts for the required EEO/Affirmative Action flow down clause. If the clause is included, employers should immediately seek legal counsel to determine whether they are indeed covered subcontractors and, if so, take steps to come into compliance with OFCCP requirements prior to the close of the certification period.
- Construction contractors are exempt from registration and certification again this year. But, construction contractors are not exempt from review. Indeed, OFCCP recently announced a re-launch of its nearly dormant Mega Construction Program. While supply and service contractors are preparing for certification, construction contractors should undertake a review of their compliance programs in preparation for a possible deep-dive review.
What information is needed for Registration?
Contractors that have not yet registered on the Contractor Portal should do so as soon as possible. Instructions for registering are available on the Contractor Portal landing page. It appears those contractors that previously registered will be able to use their existing registration information to access the Portal and certify this year.
Stay tuned for more information.
Final Thoughts
Contractors must take the registration and certification process seriously. Those contractors that fail to register are more likely to be scheduled for review. If an employer is not sure whether, or the extent to which, it is a covered prime or subcontractor, seek legal counsel before deciding whether to register.
Looking ahead to certification, contractors should review their AAPs and compliance programs generally to confirm they are in compliance with all of OFCCP’s regulations. Your FordHarrison attorney can conduct a baseline assessment to confirm compliance, and, as needed, can assist you in augmenting your compliance programs prior to the close of the certification period.
If you have any questions regarding the registration process and whether you are required to register, please contact the authors of this Alert, Consuela Pinto at cpinto@fordharrison.com or Nancy Holt at nholt@fordharrison.com. Of course, you can also contact the FordHarrison attorney with whom you usually work.