AAP Verification Is a Go: At long last, on August 31, 2021, the Office of Management and Budget (OMB) approved the new system that the Office of Federal Contract Compliance Programs (OFCCP) developed for federal contractors to submit affirmative action programs (AAPs). The Affirmative Action Program Verification Interface (AAP-VI) is designed to provide covered federal contractors a method of entering, tracking, and submitting AAPs for review by OFCCP. Few details are known at this point, but we expect OFCCP’s AAP-VI webpage to be updated soon with more information. Contractors can expect OFCCP to announce additional compliance obligations in the near future. In the meantime, federal contractors can find preliminary information on AAP-VI procedures in OFCCP’s previously published “Federal Contractor User Guide” and “Admin Guide.”
Dollars and Sense? OFCCP has published a notice in the Federal Register on September 2, 2021, indicating its renewed interest in the U.S. Equal Employment Opportunity Commission’s (EEOC) 2018 EEO-1 Component 2 pay data reports. The notice, entitled “Rescission of Notice of Intention Not to Request, Accept or Use Employer Information Report (EEO-1) Component 2 Data, November 25, 2019” reflects OFCCP’s intention to evaluate the 2018 Component 2 reports to “improve OFCCP’s ability to efficiently and effectively investigate potential pay discrimination” and to assist OFCCP in selecting federal contractors for compliance evaluations. The notice states that “OFCCP is rescinding its previously issued [November 2019] notice, which stated that OFCCP did not intend to request, accept, or use EEO-1 Component 2 data.”
OFCCP provides no additional detail about how the 2018 EEO-1 Component 2 reports (reflecting federal contractors’ summary 2016 and 2017 pay data) can provide meaningful information for either enforcement or compliance review scheduling in 2021 and beyond. In fact, OFCCP can only review 24 months of data prior to the receipt of a compliance evaluation scheduling letter; thus, it is unclear how OFCCP can use these outdated pay data reports in new OFCCP compliance evaluations. Presumably, OFCCP will bootstrap its new position on collecting the 2018 EEO-1 Component 2 data collection to leverage the agency’s plan to gather pay data (that the EEOC or OFCCP collects) for future compliance evaluations. Finally, federal contractors that do not release EEO-1 reports may also want to be wary of this new OFCCP position, as 2018 Component 2 pay reports in OFCCP’s possession could be subject to Freedom of Information Act (FOIA) requests.
Ogletree Deakins will continue to provide updates concerning AAP verification developments as additional information becomes available and will post updates to the firm’s Affirmative Action / OFCCP blog. Important information for employers is also available via the firm’s webinar and podcast programs.