In September 2020, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) made a formal request to the Office of Management and Budget (OMB) for approval of a new information collection request (ICR) to collect and monitor Affirmative Action Plans (AAP), and will soon require federal contractors and subcontractors to regularly certify that they have compliant AAPs. OFCCP recently posted on its website a new page titled “Affirmative Action Plan Verification Interface” and indicated that it was “Coming Soon.” The page further explains “Affirmative Action Plan Verification Interface (AAVI) is a secure web based interface created to improve communication and the transfer of Affirmative Action Plan data, between Federal Contractors and the Office of Federal Contract Compliance Programs.”

OFCCP’s compliance practices have been criticized in the past. In 2016, GAO published results of a study evaluating OFCCP outreach, assistance, and guidance efforts to assist contractors in complying with the requirements it enforces. GAO found that in 2015, 85% of evaluated contractor establishments did not submit their AAPs within 30 days of OFCCP’s request and were granted extensions in some cases. It also found that OFCCP processes did not ensure that all contractors were complying with their obligation to complete and annually update AAPs. As a result, GAO recommended that OFCCP develop a mechanism to monitor AAPs from covered federal contractors on a regular basis. GAO specifically suggested that such mechanisms could include electronically collecting AAPs and contractor certification of annual updates.

Pursuant to OFCCP’s formal request AAVI will require federal contractors to select one of the below responses to fulfill its annual certification requirement:

  1. The contractor has developed and maintained affirmative action programs at each establishment, as applicable, or for each functional or business unit.
  2. The contractor 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.
  3. The contractor became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs.

Existing contractors will have 90 days to comply with the certification requirement 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 have developed their AAPs. After the initial certification year, OFCCP will set a date by which all existing contractors must renew their annual certification. Failure to comply may result in sanctions including: publication of the names of contractors or unions which have failed to comply; enforcement proceedings; cancellation, termination, or suspension of a contract; and restrictions on a contracting agency’s ability to enter into further contracts with any noncomplying contractor.

To prepare for the implementation of the AAVI program, federal contractors and subcontractors should review whether any current contracts or subcontracts trigger AAP requirements. Contractors should take immediate steps to develop a compliant AAP or, if an AAP is already in place, should ensure that the AAP has been updated.