With the change in power in Washington D.C., as well as a number of recent, high-profile national events shaping discussions about diversity and inclusion, it should come as no surprise that there has been a recent emphasis on compliance with affirmative action hiring mandates. As a result, contractors doing business with the federal government are likely to face enhanced reporting requirements for affirmative action compliance.
Affirmative Action Plans (AAPs)
Currently, any business that holds a federal contract is required to create an affirmative action program (AAP) for every work site at which work is performed pursuant to that federal contract. These AAPs are required to be updated annually, but until now, the United States Department of Labor (DOL) has only reviewed a contractor’s AAPs when the contractor has been selected for an audit. As a result, many affirmative action proponents have long believed that there is widespread non-compliance with federal requirements for the hiring of minorities, people with disabilities, women, and military veterans.
Affirmative Action Plan Verification Interface
However, recently, DOL’s Office of Federal Contract Compliance Programs (OFCCP) posted a new webpage identified as the “Affirmative Action Plan Verification Interface.” The site is described as a “secure web based interface created to improve communication and the transfer of Affirmative Action Plan data, between Federal Contractors and the Office of the Federal Contract Compliance Programs.” At present, the site indicates that additional content is “coming soon.”
Although OFCCP has offered little in the way of formal comment regarding plans for the new website, it is clear from the description of the site’s purpose that the agency is moving in a direction that will require federal contractors to submit their full AAPs and annual updates for all job sites through the online portal.
This new approach by DOL raises a number of concerns for federal contractors. While compliant contractors have an incentive to have those who skirt the rules removed from the field of competitors, substituting time-intensive data collection in place of simple annual compliance verification will add significant administrative costs, especially if these contractors are not equipped to maintain contemporaneous data associated with changes in their workforce. Contractors must also be wary of the form in which their AAPs are submitted, as there is very little guidance from OFCCP as to how affirmative action data will be evaluated once received.
How will this affect employers with federal contracts?
In addition to the burden of submitting actual AAPs in lieu of simple verifications, federal contractors must also consider how to protect sensitive employee data from disclosure when it is collected for purposes of AAP updates and transmission. It is possible that employee information could be compromised during electronic submission, or accidentally disclosed once in the possession of OFCCP. This creates the risk that an employee whose information was compromised could seek to hold the employer responsible for the disclosure, even though that employer was merely trying to comply with DOL’s requirements.
While there is no timetable for implementation of these expected changes in affirmative action compliance verification, employers should be proactive in preparing for more stringent reporting requirements. Federal contractors should work with their attorneys and human resources professionals to craft and update AAPs in accordance with DOL requirements, while also protecting employee data from inadvertent disclosure.