On March 20th, the Department of Labor (DOL) issued its annual notice that the Office of Federal Contract Compliance Programs (OFCCP) Contractor Portal for certification of contractor affirmative action program compliance will be open beginning on March 31, 2023. The OFCCP is the DOL agency responsible for ensuring those who do business with the federal government are complying with the legal requirement to take affirmative action and not discriminate on the basis of race, color, sex, sexual orientation, gender identity, religion, national origin, disability, or status as a protected veteran.
According to the notice, “[c]overed federal contractors and subcontractors must use the Contractor Portal to certify, on an annual basis, whether they have developed and maintained an AAP [(Affirmative Action Program)] for each establishment and/or functional/business unit, as applicable.” Certification is required by June 29, 2023, for all current contractors. New contractors have 120 days to develop their AAPs and are required to register and certify compliance via the Portal within 90 days of developing their AAPs; for this reason, the Portal will remain open this year after the June 29 certification date.
As a reminder, a “covered” contractor or subcontractor — one that is required to develop and maintain an AAP — includes any business that has 50 or more employees and a contract with a federal agency or department of $50,000 or more (for Plans under Executive Order 11246 (addressing minorities and women) and Section 503 of the Rehabilitation Act of 1973 (Section 503) (addressing persons with disabilities)), and/or $150,000 or more (for Plans under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) (addressing protected veterans)).
According to the DOL, those contractors who fail to certify by the June 29 deadline will be “more likely to appear on OFCCP’s scheduling list” for a compliance audit. Copies of the compliance scheduling lists (CSALs) can be accessed here. The FY2023 CSAL for Supply & Service contractors contains 500 business sites. It is strongly recommended that all federal contractors and subcontractors carefully review the CSALs when released to determine whether your business is likely to be subject to an OFCCP audit this year. If an audit is likely, then a review of the latest Audit Scheduling Letter and Itemized Listing will provide you with the list of information that the OFCCP will request in conducting its desk audit review.
Should you have any questions on federal contractor compliance requirements, please reach out to your Foley & Lardner LLP contact who will be able to direct you to our attorneys who regularly counsel clients on these matters.