For more than 50 years federal contractors have had an obligation to create and maintain written affirmative action plans. But many such contractors may not be aware of their legal obligations to do so. The government, through its Office of Federal Contract Compliance Program (OFCCP), is responsible for the enforcement of the federal government's federal contractor programs. Last year the OFCCP for the first time required federal contractors to certify that they had written affirmative action plans. There is an online portal for federal contractors to certify such plans, and this year the portal opened on March 31, 2023.
Covered contractors and subcontractors are obligated to certify the existence of their affirmative action plans by June 29, 2023. The portal will remain open past June 29, 2023 so contractors can continue to certify. New contractors have 120 days to develop their plans.
The OFCCP has taken the position publicly that companies that fail to timely certify their written affirmative action plans will be an enforcement priority for OFCCP audits of their employment practices and contractor compliance programs. Written affirmative action plans usually don't get reviewed by the OFCCP except when they are conducting an audit.
Under Executive Order 11246 and Section 503 of the Rehabilitation Act of 1973, a Federal contractor must develop an affirmative action program (AAP) if it has 50 or more employees and at least one contract of $50,000 or more with the Federal government. Affirmative action is defined by OFCCP regulations as the obligation on the part of the contractor to take action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or other protected factors. Practically speaking, this requires employers to make records of the sex, race, and ethnicity of those who apply for employment as well as those who are actually employed, and to be able to justify their representation in the workforce by comparison with statistics in their geographic area. Annual reports are supposed to be made to OFCCP demonstrating compliance with these regulations.
This article is part of our May 2023 Newsletter.
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