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Tracey O'Brien

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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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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.

Remote Work

In the last quarter of 2021, 69% of the 2.050 employees surveyed by Global Workplace Analytics and Owl Labs reported working remotely during the pandemic. One third of employees expressed a strong preference for continuing to work remotely, including changing jobs if necessary. Clearly with help from technology, working remotely is rapidly becoming the new normal for many employees. In response to employee preferences in a tight labor market, employers are pivoting to incorporate remote work into their business models. The pivot can morph into a legal hurdle, though when an employee’s remote work location is outside the state in which the employer is located (employer’s home state).

Most individuals are familiar with online video games such as FIFA, Minecraft, Fortnite or maybe, Last of Us permitting players to play and communicate with others online while seated at their Xbox or PlayStation consoles. Augmented Realty (AR) games, such as Pokémon-GO, superimpose a digital setting into the players’ own real environment, incorporating virtual components into the real world and increasing the level of physical activity.