OFCCP’s contractor portal is new for everyone, and we are all learning how to use it.

But it presents a unique and interesting inflection point for higher education employers.

Let us explain . . .

OFCCP uses EEO-1 reports to identify the scope of potential contractor establishments for audit.  Because higher education contractors do not file EEO-1 reports, OFCCP has less visibility into those institutions and more importantly, less access to the data used to select contractors for audit.  As a result, the Agency has fewer higher education ping pong balls to draw from in its annual audit selection “lottery.”  It also results in OFCCP sending audit letters to often obscure divisions of a university that house the specific departments that entered into the federal contracts—and not more common addresses for a campus.

The contractor portal, however, might open the door to change higher education audit selection. Why is that? 

When registering for the portal, contractors (including colleges and universities) must identify each of their establishments to OFCCP.  They must disclose each establishment’s headcount, and they must certify that each establishment is covered by an affirmative action program.  These disclosures provide OFCCP with direct (and current) information on how a university sees its workforce.  They provide “better” addresses for audit selection.  And they can shed light on a university’s affirmative action program and workforce – which gives OFCCP “better” data to leverage to focus their higher education selections for audit.

What does that mean? With the certification deadline on the horizon, higher education contractors have a choice.

On one hand, they may report to OFCCP that they have a single establishment—the entire campus.  This will suggest to OFCCP that the campus has one affirmative action plan and that an audit will include every campus employee.  Simply put, if selected this will likely be a large audit, covering the entire system and all that a large-scale OFCCP audit entails.

On the other hand, consistent with OFCCP’s Technical Assistance Guide, a campus employer may conduct OFCCP’s fact-based assessment to determine whether its campus environment can support multiple establishments.  If it can, the employer may prepare a separate affirmative program for each establishment.  This targeted approach can focus affirmative action analyses and efforts, instill more ownership over plan results with decentralized leaders, and create less potential risk should an audit arise.

Why does this matter?  Well, the workforce within each establishment would include more similarly situated employees—and provide more meaningful insights for Department Chairs.  The hiring, promotion, termination, and compensation decisions for a single establishment will generally be made by a smaller number of common managers.  And because OFCCP considers workforce size in selecting contractor establishments for audit, any individual establishment would include fewer employees and, thus, may be less likely to be selected for audit than an overall campus.

Okay, how?  OFCCP’s guidance explains that some campus employers may have multiple buildings or schools that each can properly constitute separate establishments.  And therefore, each would appropriately be covered by a separate affirmative action plan.  In both its Educational Institutions Technical Assistance Guide and FAQs, OFCCP instructs that in making this assessment contractors should consider the following factors:

• What is the function of the building, and how do the employees in the building interact with employees in other buildings?
• Are employees across different buildings part of the same organizational unit, such as department, division, section, branch, group, job family, or project team?
• Are the hiring, compensation, and other personnel decisions handled separately at each building or are those functions consolidated across the entire contractor or across multiple buildings on one campus?
• Does each building handle its own recruitment or is that function consolidated across multiple buildings?
• Do the buildings recruit from the same labor market or recruiting area?
• To what extent are other human resources and Equal Employment Opportunity compliance functions operationally distinct for each building or group of buildings?
• To what extent are other human resources and Equal Employment Opportunity compliance functions operationally distinct for each building or group of buildings?

Under this Agency guidance, if the factors balance such that different schools or colleges are sufficiently separate, a campus employer may prepare separate plans for each establishment on campus.  Even so, we have seen inconsistent responses in audits for employers who have relied on it.  In some instances, OFCCP has expected a single plan for the whole campus and pushed back, requiring a broader plan for audit.  In others, OFCCP has accepted the more limited submission without raising any questions.  Agency priorities can shift over time, so things may change.

But for now, one thing is clear:  the Contractor Portal will give educational institutions the opportunity to tell OFCCP how they believe their AAPs should be structured and how OFCCP should select its establishments for audit.   So, it is wise to think about it now—before certification.

For more information on the OFCCP contractor portal, please register here for our March 16, 2022 webinar, Navigating the OFCCP Contractor Portal: Registration and AAP Certification.