As many Bloggers have trumpeted in recent weeks, last Thursday, June 30 was OFCCP’s self-proclaimed “deadline” for covered federal Government contractors and “subcontractors” to “certify” their compliance with OFCCP’s Affirmative Action Program requirements. Well, OFCCP CHANGED ITS CERTIFICATION “DEADLINE” LAST WEEK. V-E-R-Y quietly. Shush…do not tell anybody…unless they ask. OFCCP HAS NOW DELAYED THE CERTIFICATION DEADLINE PAST JUNE 30…INDEFINITELY. NO NEW CERTIFICATION DEADLINE, YET. News to follow.

What Happened? Well, two things happened.

FIRST, OFCCP came to the astounding conclusion (in the last four years and continuing until about three weeks ago as I discuss below) that Shirley Wilcher never happened and that contractors did NOT have to prepare Affirmative Action Plans for contractor establishments containing fewer than 50 employees. (Of course, Director Wilcher worked for almost eight years as Director of the OFCCP during the Clinton Administration to publish a Final OFCCP Rule as she was leaving office requiring contractors to place every employee in an AAP, regardless of the size of the employee headcount in the contractor’s establishment).

The old OFCCP Rule Shirley replaced used to say, before 2000 when Shirley successfully took her major overhaul of OFCCP’s Executive Order 11246 Rules to Final, that contractors had to develop Job Groups within Executive Order 11246 AAPs only for “major” Job Groups (meaning of fifty or more). (See Firestone Synthetic Rubber & Latex Co. v. Marshall, 507 F. Supp. 1330 (E.D. Tex. 1981). Ethics alert: David A. Copus, Esq. and I successfully tried that case for Firestone and resolved several major Minority and Female AAP construction issues which had baffled the contractor community for about a decade, including this 50-employee issue as to Job Group construction).  So, Shirley reversed the old (AAPs only if over 50 employees) Rule which had sprung up by publishing a proper Final Rule following a journey through the proper Administrative Procedure Act Notice and Comment process.

Here is what Shirley’s Rule says (the one which is still in effect today 22 years later) at 41 CFR Section 60-2.1(d):

“(d) Who is included in affirmative action programs. Contractors subject to the affirmative action program requirements must develop and maintain a written affirmative action program for each of their establishments. Each employee in the contractor’s workforce must be included in an affirmative action program. Each employee must be included in the affirmative action program of the establishment at which he or she works, except that:… .” [yellow-highlighting added]

In Shirley’s World, size did not matter. You had to have an AAP for every employee, even if there were only two employees in it. And, that was what all that language further in Shirley’s Rule was trying to explain about the right and license of federal contractors to just willy-nilly (yeah, this is actually a real phrase…not just lawyer talk: see Oxford Dictionary: won’t help you in Scrabble, though: not enough “l”s in the game….but think about “wily” to dump that 4-point “w”) on their own without the approval of OFCCP or notice to OFCCP to “consolidate” (or “aggregate”) smaller AAPs with “under fifty employees in headcount” into any other AAP with which you wanted to mate it.

So, there was never any misunderstanding of this or confusion about a contractor’s duty (since 2000) to develop AAPs for establishments with fewer than 50 employees until October 5, 2018, when the Trump OFCCP stubbed its toe. But before the anti-Trump/pro-Biden OFCCP guys and gals get too excited that you have another angle to bang on the Trump guys, just wait. There is plenty of blame to go around to satisfy the pro-Trump/anti-Biden guys and gals, too, because the Biden OFCCP stubbed the same toe four years later, as you will soon see.

What has OFCCP been saying Shirley’s Rule means?

OFCCP got off on the wrong foot on this issue first in the Trump Administration when the then OFCCP Director published a proposed Directive on October 5, 2018, seeking comments on the new Directive OFCCP was proposing as to “Functional Affirmative Action Plans” (“FAAPS”). After extolling the virtues of such Plans, OFCCP’s proposed Directive then explained what would happen if the contractor elected NOT to have a FAAP (and here is exactly where OFCCP first drove off the cliff):

“In the absence of an approved FAAP agreement, the regulations require contractors to develop, implement, and maintain separate AAPs for each physical location or establishment with 50 or more employees.” (see the last sentence of para 5 of the proposed OFCCP Directive…and they did not think anybody reads all this drivel valuable information!)

WHAT? HUH? EARTH to SPACE!

Shirley really did (and does) exist and she really did (and her Rule still does) require all covered federal Government contractors to have “AAP Establishments” for under 50 employees where that situation arises (which is more and more: Shirley was prescient). [That’s a word, too, and worth 10 points in Scrabble because of that big start with the three-point “p”…but where are you going to get that many letters? But, maybe you could fall back to “present”?]

Then, while OFCCP drove off the cliff during the Trump OFCCP as to this issue, it then crashed and burned at the bottom of the canyon during the Biden OFCCP. The Biden OFCCP made the same mistake and “pre-populated” the OFCCP AAP Verification Portal (trying to be helpful: good customer service instincts) for contractors with their “AAP Establishments” as reported on the contractor’s 2018 EEO-1 reports, but only for those contractor establishments with 50 or more employees. Now, OFCCP did not say that, or publish that information about the limits of its pre-population (because OFCCP did not view this as a “limitation”). Remember, too, the SAM certification questions (you better know what that is by now)–which OFCCP asks you to certify (for a second time now for your company) in the OFCCP AAP Certification Portal–require you to certify all your AAPs, (meaning: including your AAPs with fewer than 50 employees, if you have any).

So, many contractors noticed this “50 or more employees in the establishment” limitation on OFCCP’s pre-population of their AAP Establishments and asked OFCCP to pre-populate all their AAPs, including those AAP Establishments with fewer than 50 employees (since they knew Shirley’s Rule…and many know Shirley: she’s still very active in the AA community). Did OFCCP really misunderstand its own Rule, again for the second time in four years? Yes, it did. This is just the latest result of the erosion of institutional knowledge that OFCCP has suffered over the last 15 years. (But, that is a different Blog.) OFCCP Portal handlers told inquiring contractors orally (until they became overwhelmed and no longer answered the phones) and then advised, via e-mails, those contractors which continued to push the “under 50 employees” issue, that contractors did not have to create “AAP Establishments” in the OFCCP AAP Verification Portal for establishments with fewer than fifty employees because contractors did not have to develop AAPs for establishments with fewer than fifty employees.

Finally, enough inquiring contractors eventually got it through the heads of the OFCCP Portal wranglers that OFCCP had it wrong. (And this is exactly why Congress requires Rulemaking when federal agencies propose to impact the public: it is for the agency to help get it right, not to be just a bump in the road for the federal agency to either run over or ignore).

So, Walla! Suddenly, in the closing weeks of the AAP Verification Portal Project (after many contractors had declared themselves done and had moved on), OFCCP did a high-speed 180-degree turn:

• without fanfare;
• with nothing stating it was changing position (in those words to allow people to understand a shift in policy/interpretation of Rule had occurred: I know it is embarrassing, but the agency needs to call out its error, correction, and the needed contractor course change desired/required to make sure contractors internalize the agency’s otherwise too-quiet message of a needed contractor behavior change…and agency lawyers should be advising OFCCP, at any rate, that the agency needs the clear call-out to correct the legal record);
• without offering an apology; and
• without even publishing an explanation as to why the agency had taken contractors on another OFCCP AAP Verification Portal roller-coaster ride. (This would have gone so far, especially since many, many contractors and AAP vendors had already been privately describing the OFCCP Verification Project as a “challenge,” but not in that politically correct language.)

So, the way OFCCP chose to announce this last-minute major policy change was to publish THE FAQ (which suddenly quietly popped up three weeks ago, most FAQ watchers estimate). It is Portal FAQ #10 (and OFCCP has just followed up with its latest and final, thus far, Portal FAQ (#12), which is now a companion to #10):

“10. Do I have to include my establishment in the Contractor Portal if it has fewer than 50 employees?

It depends on whether the establishment maintains a separate AAP. If the establishment has fewer than 50 employees and maintains an AAP only for those employees, it must be included in the Contractor Portal. See 41 CFR 60-2.1(d)(2) (describing which employees should be covered in an AAP). If the establishment has fewer than 50 employees and does not maintain an AAP only for those employees, the contractor does not need to list the establishment in the Contractor Portal.”

“12. What do I do when an establishment’s headcount falls below 50 employees?

If an establishment with fewer than 50 employees still maintains its own AAP, update the headcount to match the AAP. If an establishment has fewer than 50 employees and the contractor chooses to incorporate the employees into a different AAP per the regulations at 41 CFR 60-2.1(d)(2), edit the status from “open” to “close” and update the employee headcount to zero.”

There is no OFCCP FAQ yet, or any written OFCCP communication to the public, advising the contractor community about the pushback of its certification “deadline,” or to what later date OFCCP will push back the deadline. Rather, OFCCP is trying to play off the current chaotic environment as “normal” by saying in some quarters that the “popularity” of its recently innovated “bulk upload” process has unexpectedly overwhelmed OFCCP Portal wranglers. (The “bulk upload” was a good idea and is a method to quickly load (via an Excel spreadsheet) a contractor’s AAP Establishments missing from the OFCCP Verification Portal after OFCCP’s “pre-population” effort resulted in a “short pour” of the Portal’s pre-population deliveries—because OFCCP misunderstood Shirley’s Rule). Indeed, many contractors had been waiting for weeks already for even small bulk uploads of AAP establishments EVEN BEFORE OFCCP released FAQs 10 and then 12 and alerted contractors very quietly about this new “requirement” (to OFCCP and the Verification Portal project now heading into the home stretch). Those FAQs set off a stampede among those relatively few contractors which actually pay attention to OFCCP’s website and troll it daily to find new pieces of information hidden in plain sight. However, most federal contractors either missed FAQ #10 or missed its importance, including many AAP vendors and law firms which were also unaware (until DirectEmployers Members were informed)…which is why I am writing this Blog…to get the word out more broadly.

How Long Will OFCCP Extend the AAP Certification Deadline?

Nobody knows, not even OFCCP at this point. OFCCP may just do whatever it wants and develop new instructions whenever the agency has an itch to either shout or publish an FAQ to calm the riot. OFCCP could restate the deadline to any time it wishes, at any time it wishes, in OFCCP’s view.

Remember, none of this Portal went through Rulemaking, and it is all illegal anyway as I have previously written at the outset of this Portal journey plagued by procedural irregularity and design errors. But the right answer should be: “as long as it takes for contractors to reasonably overcome the OFCCP Verification Portal’s many technical upload problems.” My best guess is that OFCCP will declare that new reposed certification deadline to be either the end of the calendar year 2022 (I had to add 2022 since many would argue this certification deadline “pause” may go into 2023) or the end of Fiscal Year 2022 (which ends September 30, 2022). OFCCP will push hard, I suspect, for a September 30, 2022, Verification Portal certification end date. This is because OFCCP (like most federal agencies) likes to think, plan, and budget by “Fiscal Year.” OFCCP is also anxious to start using the Portal AAP Establishment listings as a pool from which to select audit targets, especially as to “covered” federal Government “subcontractors” (which OFCCP is largely unable to identify, but for the subcontractors’ Portal confessions of OFCCP jurisdiction).

But let’s do some modeling, even albeit with uncertain assumptions. OFCCP reports in recent years that there are annually (it changes a bit each year) about 25,000 federal Government contractors covered by all three sets of OFCCP’s Rules. If only one-third of those contractors have AAP Establishments with fewer than fifty employees, there are then over 8,000 contractors currently trying to update their AAP establishments in OFCCP’s AAP Verification Portal (or soon will be doing so after they finish reading this Blog).

I do not have many clients without AAP Establishments with fewer than fifty employees. At the same time, I have many contractor clients with thousands of AAP establishments with fewer than fifty employees. My “gut” tells me that likely more than half of covered federal Government contractors have AAP establishments with fewer than 50 employees. (OFCCP would be wise to check EEO-1 reports now to get a more precise sense of that potential volume even though “EEO-1 Establishments” are not one-on-one correlations with “AAP Establishments”…because of, ironically, another part of Shirley’s Rule.) But most federal contractors likely have fewer than half a dozen AAP Establishments with less than 50 employees. If that is correct, those contractors could avoid the wait in the OFCCP “Bulk Upload” line and just manually upload into the OFCCP Verification Portal on their own their limited number of missing AAP Establishments. On the other hand, I wonder how many contractors are now caught in the lurch and do NOT have any AAPs for their under 50 employee Establishments in reliance on OFCCP’s erroneous 2018 public written statement and OFCCP’s oral advice since late 2018 that contractors need NOT develop AAPs for contractor Establishments containing fewer than 50 employees.

They Told You So

Of course, the MANY leaders of the Affirmative Action Community who previously said they had warned OFCCP months ago to extend the Portal certification deadline because OFCCP had not anticipated many technical filing problems and things were not going well, has now doubled, Ha-Ha! Suddenly, everybody is a critic, and a far-sighted one at that. The mob has grown into an army of critics. But it is not flattering to be an “I told you so.” But you were all right. You may now be self-satisfied. Move on.

FAQs are what lawyers call “sub-regulatory” guidance and do not have the binding force and effect of law (they are not properly perfected “Legislative-type Rules” which have the binding force and effect of law). Sub-regulatory statements of a federal agency nonetheless bind the agency (OFCCP in this case) since these are the OFCCP Director’s instructions to her OFCCP employees as to how they (OFCCP employees) are to proceed. They reveal to the regulated community how the agency will think about a particular issue. Unfortunately, though, by the way, OFCCP has fallen into the very poor habit, with FAQs in particular, to write them as instructions to contractors (as though they were Legislative-Type Rules with the binding force and effect of law), as opposed to OFCCP writing them as statements about how OFCCP will proceed in response to posed questions.

Conclusion

Know that you have more time to stand in line at the AAP Verification Portal “bulk upload” gate to get in and expand the number of your “AAP Establishment” pages. [It was SO unfortunate OFCCP chose to use a four-year-old EEO-1 list to pre-populate and to not read its Rules, and to not go to Rulemaking, but c’est la vie]…several of the many gripes contractors have about the OFCCP Portal project. (Now there is a Scrabble rules fight to have: are foreign expressions now adopted into everyday English-language discourse in the U.S. ineligible for use in the game because they are not “American” words…or do you avoid the rules fight and just play the much more difficult Scrabble multi-simultaneous language version?  UGH. I hate that, especially when playing Europeans who all seem to speak five languages or more while I am still struggling with my native English)!

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.