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Tracey O'Brien

Tracey focuses on assisting federal contractors, including healthcare, life sciences and education clients, in compliance with employment laws and regulations.

She co-leads the firm's OFCCP and affirmative action compliance team, which uses data analytics to assess federal contractors’ employment and personnel processes and compensation systems for compliance with OFCCP regulations. She strategically designs and prepares written affirmative action plans using a bifurcated approach that provides clients with additional confidential analyses and narratives protected by the attorney-client privilege. She further assists clients with other OFCCP obligations, including implementation of outreach and recruitment efforts in conjunction with placement goals, applicant tracking issues, review of job descriptions, and other support and guidance to ensure compliance and minimize the risk of the liability in the event of an audit.

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On March 19, 2025, the U.S. Department of Justice (DOJ) Office of Public Affairs issued a press release announcing two technical assistance documents jointly released by the U.S. Equal Employment Opportunity Commission (EEOC) and the DOJ. The stated purpose of the technical assistance is to encourage whistleblowers to file discrimination charges with the EEOC relating to unlawful diversity, equity, and inclusion (DEI) programs or practices or, in the case of state and local government employees, with the Department of Justice. It provides employees with instructions on how and where to file a claim of DEI related discrimination, along with descriptions of the types of DEI-related programs and activities that may constitute unlawful DEI under the current Administration’s policies. For employers, the technical guidance offers insight into the types of DEI activities that will be targeted by the Administration.

U.S. Supreme Court, in Viking River Cruises, Inc. v. Moriana

On June 29, 2023, in a 6-3 decision authored by Chief Justice Roberts, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the U.S. Supreme Court (“Court” or “Supreme Court”) held that college and university race-conscious admission decisions at Harvard University and the University of North Carolina violate the Equal Protection Clause of the 14th Amendment (“the Harvard-UNC Decision”). The specifics of the race-conscious admissions process used by these higher education institutions and the Supreme Court’s opinion is more fully discussed in Husch Blackwell’s recent post, Supreme Court Prohibits Consideration of Race in College Admissions. The majority and concurring opinions, though, have prompted speculation about the decision’s potential impact on federal contractors subject to affirmative action obligations to provide equal employment opportunities to minorities and women under Executive Order 11246 as well as on employers that have voluntarily adopted diversity, equity, and inclusion (DEI) initiatives. While the Harvard-UNC Decision addressed racial preferences as opposed to affirmative action to ensure equal employment opportunities, the decision provides federal contractors and private employers with some guideposts for lawful implementation of affirmative action and DEI practices.

Veteran Hiring Benchmark Decreased to 5.4%

OFCCP released the national annual veteran hiring benchmark effective March 31, 2023, which measures the national percentage of veterans in the civilian labor force. Federal contractors are required to compare their percentage of hires who are protected veterans in each establishment on a facility-wide basis to the annual veteran hiring benchmark to measure the effectiveness of outreach and recruitment of veterans for employment. The national annual veteran hiring benchmark was decreased from 5.5% to 5.4% as of March 31, 2023. If a federal contractor has elected to calculate an individualized hiring benchmark using state-level availability of veterans, OFCCP has also updated state-level availability data.

Husch Blackwell attorney Tracey O’Brien has posted about the March 31 OFCCP recission of the Trump administration’s Final Rule, Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption. The OFCCP refers to this recission as a return to “longstanding policy in place for more than 17 years to determine applicability of the religious…

The Office of Federal Contract Compliance Programs (OFCCP) has made several announcements, including Directives, Notices, and Proposals in their quest to embark on initiatives that significantly impact federal contractors’ affirmative action obligations. These changes contemplate substantive changes to regulations and existing interpretations of the regulations but are cloaked in terminology such as “guidance” and a proposal to OMB to renew data collection. Many of these initiatives obligate regulated parties to undertake additional significant compliance burdens under the threat of enforcement actions. This blog post, part 1, will discuss two of the changes and the resulting challenges faced by federal contractors: 1) OFCCP’s new interpretation of federal contractors’ obligation to evaluate compensation systems as described in Directive 2022-01 and 2022-01 Revision 1, and 2) the contractor portal. Other changes will be addressed in Part 2 of this series.

Key Points

  • On October 13, 2022 the Department of Labor (DOL) published a notice of proposed rulemaking advising that it intends to alter the test used to distinguish “independent contractors” from employees under the Fair Labor Standards Act (FLSA).
  • The proposed rule will rescind the 2021 Independent Contractor Rule and replace it with a multifactor, totality-of-the-circumstances test that will likely cause an increase in the number of workers classified as employees.

On August 1, 2022, the California Court of Appeals issued an opinion that will put a stop to website accessibility discrimination cases against online-only businesses brought pursuant to the state’s Unruh Act. The case, Martinez v. Cot’n Wash, Inc., clarified that websites standing alone are not places of public accommodation under Title III of the Americans with Disabilities Act (ADA).

Key Point

  • Federal contractors and subcontractors who filed Type 2 EEO-1 Reports for the years 2016-2020 are advised that the Office of Federal Contract Compliance Programs (OFCCP) intends to release the data from such filed EEO-1 Reports unless they file written objections asserting Freedom of Information Act (FOIA) objections by no later than September 19, 2022

On July 19, 2022, in the decision, Mothering Justice et al., v. Dana Nessel et al. (Nessel), the Michigan Court of Claims (Court)  held that in 2018 the Michigan Legislature unconstitutionally amended two voter-initiatives, the Earned Sick Time Act, PA 338, and the Improved Workforce Opportunity Wage Act (IWOWA), PA 337, by amending the proposals in the same legislative session that the Legislature enacted the two initiatives. The Legislature’s tactic of adopting and amending the voter initiatives subverted the constitutional protections against “legislative interference with the People’s constitutional right of initiative.” The Court’s holding nullified the amendments to the initiatives, 2018 Public Act (PA) 368 (IWOWA) and 2018 PA 369 (renamed as the Paid Medical Leave Act), and reinstated the original, more expansive terms of PA 338 and PA 337.

Communication Syles

In a world radically changed by the COVID-19 pandemic, the way we communicate in the workplace has been permanently altered with the integration of online communication platforms. Effective communication is essential to human functioning, including within the context of organizations and business entities. But the common workplace communication method changed swiftly when communication technologies replaced in-person communication that once typified office settings. While the integration of online communication platforms was a major contributor to the survival of many businesses, is it possible that these same communication platforms have the potential to exacerbate underlying differences among a diverse and remote workforce leading to increased employment litigation?