Publication

15 April 2024

Reminder: AAP Certification Window for Federal Contractors Now Open, and OFCCP Continues to Keep a Close Eye on AI

The OFCCP’s Contractor Portal, where federal contractors must satisfy their annual AAP verification requirement, opened on April 1, 2024.  Federal contractors must certify the status of their AAPs for each establishment and/or functional/business unit by July 1.

A contractor’s failure to certify its AAP compliance increases the risk that it will be selected for a future OFCCP enforcement audit.

OFCCP also released updated FAQs for the portal.  The agency recommends contractors contact the Portal Help Desk for answers to a number of questions, including those involving EEO-1 numbers and registering new entities.

OFCCP’s FAQs also continue to instruct contractors they need not certify establishments with fewer than 50 employees if a separate AAP is not prepared for that establishment.  (Employees in such establishments still need to be included in an AAP, however — just not a separate AAP for that establishment.)

To help federal contractors navigate the portal, OFCCP has also published a User Guide, and How-To Videos.

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In other news, OFCCP recently re-emphasized its resolve to keep a close eye on contractors’ use of AI by co-signing an April 4 joint statement by multiple federal agencies (including the Department of Justice and Equal Employment Opportunity Commission) on the risks of AI.  The agencies’ joint statement highlighted three potential risk areas:

  • Bad Data (or good data used badly): Datasets can be unrepresentative or imbalanced, causing discriminatory outcomes; datasets can also be accurate yet have the result of perpetuating historical inequities, especially when data becomes correlated with protected classes.
  • Black Boxes: For many users of automated systems, the system’s internal workings are not clear (in some cases, they’re even unclear to the developer of the tool), which makes it especially challenging to know whether an automated system is treating individual applicants or employees fairly.
  • Flawed or Inappropriate Assumptions: An automated system may be designed for a context different than that for which it is used, leading to design assumptions that are flawed or inappropriate for a given employer’s use of the tool.

To facilitate the agency’s efforts to identify discrimination related to AI and other automated systems, OFCCP recently updated its compliance review process to require contractors to provide documentation on their policies, practices or systems used to recruit, screen and hire employees, including the use of AI or automated systems for those purposes.

If you have any questions about any of the above, or need assistance preparing your affirmative action plan, please don’t hesitate to contact the authors.