Affirmative Action certification information for federal contractors
OFCCP’s Certification requirement will impact every employer with 50 or more employees who is a federal contractor or subcontractor.
This requirement is the outcome of a 2016 finding by Government Accountability Office’s (GAO) 2016 report – Equal Employment Opportunity: Strengthening Oversight Could Improve Federal Contractor Nondiscrimination Compliance.
GAO’s findings included:
- OFCCP has no database or way of identifying contractors and subcontractors.
- The same employers are being audited over and over.
- GAO issued requirements that OFCCP remedy these issues.
Affirmative Action Verification
In response, OFCCP published a requirement for employers to certify their contracting status and AAP compliance, which also creates a database of employers subject to OFCCP regulations.
Employers are required to identify themselves as contractors and to certify that they have preparedaffirmative action programs using the new secure Contractor Portal.
OFCCP will use this information for scheduling audits and for expanding its database of knowncontractor employers.
Three Certification Questions
The certification will require employers to select one of three responses:
- The employer has developed and maintained affirmative action programs at each establishment, See 41 CFR Chapter 60.
- The employer has been party to a qualifying federal contract or subcontracts for 120 days or more and has not developed and maintained applicable affirmative action programs at each establishment, as applicable. See 41 CFR Chapter 60. (According to OFCCP, a “yes” answer to #2 will likely initiate a compliance audit.)
- The employer became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action See 41 CFR Chapter 60.
Employer Declaration Statement
The final step requires the reporting employer representative to affirm that the information being submitted is true and accurate by selecting the checkbox for the Declaration Statement.
“I certify that the information that has been provided as a part of our Affirmative action plan (AAP) certification is true and correct to the best of my knowledge.
I also understand that any attempt to refuse to submit an AAP certification, alteration or falsification of required records or information and any substantial or material violation or the threat of substantial or material violation may result in the institution of administrative or judicial enforcement proceedings. [CFR 60 1.26, CFR 60-300.65, CFR 60-741,65]
I also understand that I will not be able to edit my Affirmative Action Plan(s) after I click the submit button.”
The Declaration Statement is very important. If an employer makes a false certification, this could be a violation of federal contract regulations and become a serious legal matter. The risks of a falsecertification are significant. Fines under the False Claims Act can include potential penalties of $5,000‐10,000 per violation, potential forfeiture of the entire contract amount and potential debarment.
The Future Use of the AAP Interface
In the future: OFCCP plans to use the portal for secure exchange of compliance and audit information.
OFCCP maintains that employers will benefit from a secure interface over the OFCCP’s current-reliance on transferring sensitive employee data by email. There is considerable discussion and concern about how the secure contractor portal might be used in addition to collecting certifications and transmitting data during the audit process.
OFCCP’s Contractor Portal Timeline
- On February 1, 2022, contractors and subcontractors began registering for access to the portal.
- On March 31, 2022, contractors and subcontractors will be able to utilize the certification feature in the portal to certify their AAP compliance for all three required AAPs (women and minorities, disabilities and protected veterans).
- By June 30, 2022, existing contractors and subcontractors must certify whether they have developed and maintained an affirmative action program for each establishment and/or functional unit.
- As with all OFCCP regulations, this certification process applies to employers as both contractors and subcontractors. Some employers are both contractors and subcontractors at the same time, for different projects or
- The determination of a company’s status as a contractor or subcontractor typically requires coordination between human resources and procurement/contracting departments, along with advice from corporate legal counsel.
- Time is short, particularly for employers who do not have a current AAP.
- Each employer must designate a corporate representative to manage the registration and certification process.
- If an employer does not certify, or is unable to answer ‘yes’ to certification, OFCCP has indicated that the employer may be scheduled for a compliance.
- Annual certification will be required.
- OFCCP used the 2018 EEO-1 data for each corporation to “populate” the corporation and its locations.
- During the registration process, multi-location employers will need to adjust for changes in locations that have opened or closed.
- OFCCP has added a Contractor Portal website you can find here.
- It includes several tools about the registration and certification process. Reviewing all of them prior to registration is recommended:
- Frequently Asked Questions (FAQs)
- Rollout Timeline
- User Guide and References
A Future Use of the Portal?
- In the future, the OFCCP plans to use the portal for secure exchange of compliance and audit information.
- OFCCP maintains that employers will benefit from a secure interface over the OFCCP’s current reliance on transferring employed data by email. There is considerable discussion and concern about how the secure contractor portal might be used in addition to collecting certifications and transmitting data during the audit process.