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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 is the co-lead of the firm’s OFCCP Compliance team and a member of the firm’s Labor & Employment practice group. Tracey is an experienced trial lawyer, defending clients against claims of discrimination, harassment, and retaliation and other related claims before administrative agencies and state and federal courts.

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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?

Employer-Sponsored Health Plans

On Friday, June 24, in Dobbs v. Jackson Women’s Health Organization,  the United States Supreme Court overruled Roe v. Wade and held that the United States Constitution does not protect a woman’s right to terminate her pregnancy.

After Dobbs, some employers are considering adding or altering abortion-related benefits provided under their employer-sponsored group health plans, including coverage for travel related-expenses.  Although it is currently unclear whether and to what extent employers may offer those benefits without potentially violating applicable state law, below are some immediate action items and considerations for employers:

Airline Cargo Supervisor

In a unanimous 8-0 decision, in Southwest Airlines Co. v. Saxon, the U.S. Supreme Court (Court) held that airline cargo ramp supervisors that assist with loading and unloading cargo constitute a class of workers engaged in foreign or interstate commerce and are exempt under the from the scope of the Federal Arbitration Agreement (FAA). Justice Thomas authored the opinion on behalf of the Court (Justice Barret was recused from the case) and set forth a two-part analysis that (1) defined the relevant “class of workers” and (2) determined whether the class of worker is “engaged in foreign or interstate commerce.”

Remote Worker Eligibility

Not surprisingly, simple solutions to complex issues are often elusive. Yet on rare occasions, the solution is in plain sight. Doubtful? For employers struggling with the issue of a remote employee’s eligibility for job-protected leave under the federal Family and Medical Leave Act (FMLA), there is a very simple answer. And, unlike the analysis we discussed in our commentary about wage and hour issues for remote employees, the answer does not depend on the location of the remote employee.