The United States Department of Labor’s (DOL) Office of Federal Contract Compliance Programs’ (OFCCP) Contractor Portal opened on April . All eligible federal contractors must log in and certify their compliance with statutory affirmative- action requirements. The portal will remain open only until July 1 and all OFCCP certifications must be completed by that date.

FAQs for accessing the portal and completing the certification may be found on the DOL’s website. Contractors should evaluate as soon as possible whether they are required to prepare an affirmative action plan (AAP). Supply and service contractors that employ at least 50 people and have a contract with a federal agency or department valued at $50,000 or more must develop and maintain an annual AAP.  An FAQ page on affirmative action plans is available here. Information on sample affirmative action plans is available here.

Completing the required certification on a timely basis is important because contractors that fail to certify their compliance may risk being chosen for a compliance evaluation. There are significant penalties for noncompliance, which may include:

• Preventing the employer from acquiring federal contracts (known as debarment
• Blacklisting in the Federal Register so that other employers cannot do business with the offending employer in connection with federal work
• Awards of back pay and reinstatement to victims of discrimination in employment
• Suspension or cancellation of existing federal contracts
• Recommendations for civil actions by the Equal Employment Opportunity Commission (EEOC) or Justice Department or for criminal actions by the Justice Department.

If an employer is debarred or blacklisted, it can bring itself into compliance with the affirmative- action laws and petition the Secretary for reinstatement as an eligible contractor.

Affirmative-action requirements ensure that applicants and employees of federal contractors have equal employment opportunity without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran.

New Benchmark for Veteran Hiring

The OFCCP also recently adjusted the hiring benchmark for veterans under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). Employers subject to the VEVRAA include federal contractors or subcontractors with contracts worth $150,000 or more. More information on this law is available by clicking on this link.

The new benchmark rate of 5.2% is down from last year’s 5.4% and took effect March 31. The percentage is used for contractors to compare the percentage of veterans represented in their workforce year-over-year to assess the effectiveness of their recruitment efforts.

Contractors may choose to use either the federally published 5.2% or establish their own benchmark using the five-factor method, which takes into consideration factors such as the number of veterans in the labor force in the state in which the contractor is located.

Any federal contractor or subcontractor subject to this law may determine its own benchmark by clicking on the link here.

US Department of Labor Issues Final Rule to Clarify Rights to Employee Representation during OSHA Inspections

The U.S. Department of Labor has published a final rule clarifying the rights of employees to authorize a representative to accompany an Occupational Safety and Health Administration (OSHA) compliance officer during an inspection of a workplace.

The Occupational Safety and Health Act gives the employer and employees the right to authorize a representative to accompany OSHA officials during a workplace inspection. The final rule clarifies that workers may authorize another employee to serve as their representative or select a non-employee. For a non-employee representative to accompany the compliance officer in the workplace, it must be reasonably necessary to conduct an effective and thorough inspection.

The rule further clarifies that a non-employee representative may be reasonably necessary based upon skills, knowledge or experience. Thus, a non-employee’s qualifications may include knowledge or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills to ensure an effective and thorough inspection. OSHA regulations require no specific qualifications for employer representatives or for employee representatives who are employed by the employer.

The rule becomes effective on May 31.

AIM members may call the AIM HR Helpline at 800-470-6277 with questions about unemployment or any other human-resource matter.