The U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP) has a new directive to ensure that federal contractors have prepared a written affirmative action program (AAP) and that the program is being updated annually.
Directive 2018-07 establishes a program to ensure that federal contractors are complying with their AAP obligations. The OFCCP enforces EO 11246, Section 503 and VEVRAA, which prohibit contractors and subcontractors from discriminating on the basis of race, color, religion, sex, sexual orientation gender identity, national origin, disability, or status as a protected veteran. In addition, these laws require federal contractors to take steps to ensure equal employment opportunity in their employment processes.
The new directive was prompted by a U.S. Government Accountability Office (GAO) report that “expressed concern” that OFCCP did not have a process in place to ensure that qualifying federal contractors had developed an AAP within 120 days of signing a contract or that these plans were being updated annually.
The new directive, “establishes a program for verification of compliance by all contractors with AAP obligations. This verification would initially take the form of OFCCP review of a certification, followed by potential compliance checks, and could later take the form of annual submission of AAPs to OFCCP for review.”
The new directive will see OFCCP develop a comprehensive program to verify that federal contractors are complying with AAP obligations on a yearly basis, including:
Development of a process whereby contractors would certify on a yearly basis compliance with AAP requirements.
Inclusion of a criterion in the neutral scheduling methodology increasing the likelihood of compliance reviews for contractors that have not certified compliance with the AAP requirements.
Compliance checks to verify contractor compliance with AAP requirements.
Requesting proffer of the AAP by contractors when requesting extensions of time to provide support data in response to a scheduling letter.
Development of information technology to collect and facilitate review of AAPs provided by federal contractors.
The OFCCP believes this new initiative will help to identify contractors that fail to comply with their obligations in creating equal employment opportunities and could be an effective way to identify violators of OFCCP authorities and obligations.
The OFCCP plans to prepare a campaign around the new directive in which they will encourage federal contractors to “seek compliance assistance” with their AAPs. Contractors that fail to provide their AAP compliance data could be subject to audits performed by the OFCCP using data provided by the GSA.
The new directive does not create new legal rights or requirements or change current legal rights or requirements for contractors. However, contractors should consider this new guidance as they review their hiring processes and EEO reporting requirements.