Recently, the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) published a notice soliciting comments on its September 2020 proposal to obtain approval from the Office of Management and Budget (OMB) to implement the Affirmative Action Program Verification Interface (AAP-VI). 85 FR 56635 (Sep. 14, 2020). AAP-VI is a data management portal that will assist with OFCCP compliance evaluations. It is designed to assist OFCCP with ensuring covered federal contractors comply with their affirmative action obligations as OFCCP can only perform compliance evaluations on a limited number of federal contractors.
OFCCP administers and enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRRA). The Executive Order and the laws prohibit covered federal contractors from engaging in employment discrimination and require these contractors to provide equal employment opportunities regardless of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran. Depending upon the type of company, company size, and contract value, covered federal contractors are required to implement affirmative action plans (AAPs). These AAPs are reviewed by OFCCP as part of its compliance evaluations.
Under OFCCP’s proposal, covered federal contractors will be required to annually certify their compliance with their AAP requirements. Specifically, contractors will have to certify that:
1. The entity has developed and maintained affirmative action programs at each establishment, as applicable, or for each functional or business unit;
2. The entity has been party to a qualifying federal contract or subcontract for 120 days or more and has not developed and maintained affirmative action programs at each establishment, as applicable; or
3. The entity became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs.
According to the proposal, existing contractors will be given 90 days to comply with the certification requirements once it takes effect. New contractors and existing contractors who become subject to AAP requirements after the effective date will have 90 days after they develop their AAPs to certify. Contractors have 120 days to develop their AAPs once they become subject to AAP requirements.
In addition, AAP-VI would allow contractors who have a scheduled compliance evaluation to securely upload their AAPs to the portal.
The proposal comes in response to the Government Accountability Office’s (GAO) 2016 report – Equal Employment Opportunity: Strengthening Oversight Could Improve Federal Contractor Nondiscrimination Compliance. The report found that OFCCP historically conducts evaluations for about 2% of the federal contractor establishments annually through its compliance evaluations and complaint investigations. GAO recommended that OFCCP develop a mechanism to monitor AAPs from covered federal contractors on a regular basis.
Persons who wish to comment on the notice can submit their comments by November 13, 2020.