Redstone Government Consulting Blog | Human Resources (3)

This video and article are the first of a two-part series where we provide an overview of the Department of Labor (DoL) position on independent contractor classifications. This series presents a mock audit to give you a first-hand perspective of the types of questions that DoL investigators ask with regard to the all too common issue of whether or not your workers are properly classified under the law. We will provide "red flags" that are often key to the final determination of Department of Labor, and how to address them.

In the previous blog of this series, we focused on the requirements of federal government contractors (prime and subcontractors) who meet the basic threshold requirements (specific dollar thresholds and fewer than 50 employees). As we progress in this series on OFCCP and Affirmative Action Requirements, we begin to dive into OFCCP’s expectations of a contractor’s Affirmative Action Program (AAP). As a reminder, contractors are required to have an AAP when meeting the dollar thresholds mentioned above and have an employee count of 50 or more.

The last blog in this series focused on who (what) OFCCP is, what they require of contractors of various sizes and why compliance is important. Now we want to provide a bit more clarity as to what these requirements are and later in the series, how those requirements impact your processes and policies.

As mentioned in a previous blog, OFCCP’s Contractor Portal, we are kicking off a blog series related to OFCCP and Affirmative Action requirements for contractors of all sizes. We begin this series by laying the groundwork of who (or what) OFCCP is and what affirmative action is. This series will focus on supply and service contractors; however, construction contractors may also find it helpful. Regardless of the type of contractor, our HR Team is available to assist with all of your OFCCP compliance and Affirmative Action Program (AAP) needs.

What is it?

The Office of Federal Contract Compliance Programs (OFCCP) Affirmative Action Program Verification Interface (AAP-VI), or “Contractor Portal” is a new platform to be used by covered government contractors (prime and subcontractors) to:

• Annually certify that they are complying with the requirement to develop and maintain annual Affirmative Action Plans (AAP).
• Upload Affirmative Action Plans and other requested materials during an OFCCP compliance evaluation.

The Federal Contractor vaccine mandate has been halted nationwide by Federal Judge Stan Baker of the United States District Court for the Southern District of Georgia. A preliminary injunction was issued today, December 7, 2021, ordering the federal government to temporarily stop enforcement of the COVID vaccine mandate for federal contractors.

The Office of Federal Contract Compliance Programs (OFCCP) has announced that their new Contractor Portal will be going live in 2022. The Portal will require contractors to certify, on an annual basis, whether they have developed and maintained an affirmative action program for each establishment and/or functional unit, as applicable.

DoD Inspector General Audit on Whistleblower

We issued a blog in May 2021 addressing the Department of Justice, Inspector General. The IG found that DOJ contracts did not comply with the whistleblower requirements to include whistleblower clauses in the contract, disseminate the rights and protections in writing to employees, and include required information in confidentiality agreements/statements to employees. We indicated we would not be surprised to see the DoD IG pick up on this area and review DoD Contractors.

In January of this year (2021), we told you that the United States Department of Labor (DOL) under the Trump administration announced a final rule clarifying the standard for whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). This rule reaffirmed the “economic reality” test as the primary factor for determining employee status. The final rule was published in the Federal Register on January 7, 2021 and the Rule was set to have an effective date of March 8, 2021.

Whistleblower claims are on the rise with alleged violations of health and safety laws as well as fraud and abuse under the CARES Act due to the pandemic. Employers need to ensure they are familiar with the whistleblower laws and their responsibilities under government contracts.