OFCCP Will Open Portal for Certification of Compliance Soon

Allen Smith, J.D. By Allen Smith, J.D. March 4, 2022
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U.S. Department of Labor headquarters

​Federal contractors' certification of compliance on the Office of Federal Contract Compliance Programs (OFCCP) Contractor Portal starts March 31, and contractors can take steps now to prepare to comply.

They can register now through June 30—the deadline for certifying—noted Joanna Colosimo, SHRM-SCP, vice president of workforce equity and compliance strategy and principal consultant for DCI Consulting in Washington, D.C.

Priority Steps

Colosimo noted that organizations should identify their main point of contact for the portal.

The first person who registers will be the company's administrative user, so this is an important decision, she said. "Who will have access to all of the company locations and the ability to create other users?" Colosimo asked.

In addition, organizations should consider how they want to set up their users and determine who is certifying for each establishment.

Furthermore, because the OFCCP is using the establishment-based data for organizations as of the 2018 EEO-1 filing, organizations will need to carefully consider what may have changed since that filing and how they will handle changes in establishments, she said.

Organizations that may have experienced significant mergers, acquisitions, divestitures and spinoffs since the 2018 EEO-1 filing may not want to use the prepopulation feature during their registration process in the contractor portal. It may be administratively burdensome for them to notify the OFCCP of structural changes rather than ensuring the correct establishments are being loaded into the contractor portal system manually, Colosimo said.

Some contractors that have attempted to register in the portal encountered errors. The OFCCP clarified in frequently asked questions that contractors should enter only the first six digits of the headquarter/company number and establishment/unit number information. "This has helped alleviate some of the trouble for contractors during the registration process," she said.

"Most importantly, organizations will want to ensure they have an active affirmative action plan and program in place for all required establishments or [functional affirmative action plans], along with other facets of OFCCP compliance," such as required job listings and equal employment opportunity taglines, before they certify, Colosimo said.

Other Steps

All supply and service federal contractors and subcontractors that meet the jurisdictional thresholds for affirmative action program coverage must certify compliance, said Roselle Rogers, SHRM-SCP, vice president of diversity, equity and inclusion at Circa in Milwaukee. These are contractors with a single contract valued at $50,000 or more and at least 50 employees.

Construction contracts are not covered. Nonetheless, if a construction company has a supply and service contract that requires an affirmative action program, it must certify, she said.

Employers should find out whether their company or establishments have any federal contracts or subcontracts, Rogers said. This will help them determine their contractor status and affirmative action coverage.

Assuming Government Accountability Office findings are correct that many contractors and subcontractors do not have affirmative action programs in place, the OFCCP Contractor Portal "is anticipated to lead to a large expansion of affirmative action in employment," said Craig Leen, an attorney with K&L Gates in Washington, D.C.

Contractors should check if there are affirmative action programs in place for each location with 50 or more employees, Rogers said. "If not, they will need to start developing one and have to do so before June 30 in order to be able to certify compliance," she said.

Rogers emphasized that the requirement is to develop and maintain an affirmative action program. Contractors should be implementing their affirmative action programs, keeping records, tracking and measuring progress to goals, identifying problem areas and action steps, and updating their affirmative action programs every year, she noted.

Remaining Questions

Questions remain about the portal, including whether it might be a precursor to the agency eventually requiring all contractors to submit their affirmative action plans and supporting data electronically, Rogers said.

"Currently, the OFCCP does not have full visibility into the size of the subcontractor segment. This certification requirement will make subcontractor companies step forward and identify themselves and expand the agency's enforcement reach," she predicted.

It is unclear how long it will take the OFCCP to help a contractor in closing establishment record information for closed establishments or sites that are no longer part of the parent company since the 2018 EEO-1 filing data, Colosimo said. "For large, complex organizations that have constant changes, this may take a long time to shore up establishments that are no longer active," she said.

"Contractors whose establishments have significantly changed, have gone through a merger or acquisition, file EEO-1 reports for multiple legal entities, or have functional affirmative action programs may want to delay registering until the OFCCP provides further guidance," said Beth Ronnenburg, SHRM-SCP, president of Berkshire Associates in Columbia, Md.

Companies will need to e-mail the OFCCP Contractor Portal help desk to mark establishments as closed. "This is likely to be a very time-consuming process both for contractors and the OFCCP," she said.

For employers that prepare affirmative action plans on a functional basis, there remain other questions, according to Alissa Horvitz, an attorney with Roffman Horvitz in McLean, Va.

If the OFCCP uses the 2018 EEO-1 filing to prepopulate the contractor portal with a list of establishments from employers that filed 2018 EEO-1s, will functional affirmative action plan preparers have to contact the OFCCP to erase the establishments and enter their own list of functional affirmative action plans one by one?

What about supply and service federal contractors that don't file EEO-1s, such as educational institutions or state or local governments? "Will they have to enter their establishments into the list by hand too?" Horvitz asked.

One thing seems likely: The OFCCP Contractor Portal may "elevate in importance the timely completion of annual affirmative action plan obligations for supply and service contractors," she said.

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