Annual OFCCP Federal Contractor Compliance Certifications Due by June 29

In 2022, the Office of Federal Contractor Compliance Programs (OFCCP) opened a portal for covered federal contractors (and subcontractors) to certify that they have a compliant affirmative action program. According to the OFCCP, the objective of the portal was (and remains) to ensure that all covered contractors are meeting their compliance obligations and covered federal contractors must certify their compliance annually. The 2023 certification window is now open and will remain open through June 29, 2023. Companies with federal contracts or subcontracts should consider whether they are required to provide an annual certification through the portal.

A company is covered by the OFCCP’s annual certification requirement if it: (1) provides services and supplies (not construction) to the federal government or one of its agencies (or that provides services and supplies to such contractor that are necessary to complete the federal contract); (2) has 50 or more employees; and (3) has a contract (or subcontract) valued at $50,000 or more.

When using the portal, covered contractors will make one of three certifications for each of its establishments (i.e., locations or facilities):
 

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

If a contractor chooses option three, it has 90 days from the completion of the affirmative action program to update their certification. If the contractor has a current affirmative action plan, it will need to enter the start date of the plan.

In 2022, the OFCCP indicated that, if a covered contractor did not certify its compliance, one or more of the following steps could occur:
 

• The non-certifying company’s information will be sent to the local OFCCP Compliance Officer who will personally contact the company and tell the company that it must certify; and/or
• The non-certifying company will be placed on the next list of compliance audits; and/or 
• The non-certifying company will be unable to bid on future federal contracts. 

Whether the OFCCP will or can implement some of these steps is unclear. We recommend that contractors consult with counsel about their certification requirements. 

If you have questions about the OFCCP certification portal or any other affirmative action compliance questions, please contact Tami A. Earnhart, or any other member of our Workplace Solutions Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.