June 2020 HR Professionals Magazine by Cynthia Thompson

Volume 10 : Issue 6

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HR Strategies for Returning to Normal After COVID-19

2020

Guide to

Super Lawyers

Employers Guide for Returning to the Workplace

Polices to Create or Update Before

Return to Work

Stephanie Hawkins, SPHR

President, MT|SHRM

HR Implications of the COVID-19 Recession

Post COVID-19 Total Reward Strategies

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2020

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Bringing Human Resources & Management Expertise to You

Q1 real GDP shows a decrease at an annual rate of 4.8%. www.HRProfessionalsMagazine.com Editor Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher

The Thompson HR Firm, LLC Art Direction

Park Avenue Design Contributing Writers William Carmichael Lymari Cromwell Brad Federman Donna K. Fisher Davidson French Julie Henderson Blair and Bruce Johanson Joel Lee Kisha Molliere Steven A. Nigh Greg Siskind Casey Sword Cristie Travis Sushma Tripathi Bryan Wolbert

Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine.com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2020 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.

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Features

5 note from the editor 6 Stephanie Hawkins, SPHR, President, MT | SHRM 8 HR Implications of the COVID-19 Recession 30 Book Look: UnLeashed! By Frances Frei and Anne Morriss

HR Strategies for Returning to Normal After COVID-19

10 Tips for Maintaining Organizational Agility and Business Resiliency During Changing Times 12 Compensation and Total Rewards Strategies Post COVID-19 Pandemic Crisis 14 Reopening Means Reinvesting in Leadership 16 Reinventing Your Workforce; HR’s Post-Shutdown Options 20 Employer’s Guide for Returning to the Workplace 22 Policies to Create or Update Before Employees Return to Work 39 Disruption the Catalyst for Change 42 Daily Pay Study Shows On-Demand Pay Saves Average User $1000 Per Year

Employment Law

17 Solving Problems for Businesses and Employers 21 Coronavirus Resources on FordHarrison.com 26 Spotting FMLA Fraud and Stopping it in Its Tracks 32 2020 Guide to Super Lawyers in Labor & Employment Law 32 Ogletree Deakins 34 Bass, Berry & Sims 35 Wimberly Lawson 36 Littler 37 Siskind Susser PC 38 FordHarrison 40 Healthcare Worker Immigration Reform

Educational Programs for HR Professionals 7 Excellence Through Leadership in Peachtree City July 16-17 35 Expatriate Foundation HRCI & SHRM Certification Courses 48 WGU – Online. Nonprofit. Surprisingly Affordable

Employee Benefits

18 A Great New Way to Significantly Reduce Your Health Benefit Expenditure 24 Open Enrollment Considerations in Light of COVID-19 25 Benefits Expertise to Help Manage Costs, Mitigate Risk and Engage Employees 27 Thank You, Healthcare Providers! 28 Employees with Diabetes & Obesity are at Higher Risk for Severe Illness if They Contract COVID-19 29 Take the Leapfrog Group Survey

Industry News

3 SHRM Annual Conference & Expo in Chicago June 20-23, 2021 23 The University of North Alabama & Shoals SHRM Present 25th Annual North Alabama Human Resources Management Conference August 11 43 SHRM-Memphis 2020 Legal Day August 11 44 SHRM-Atlanta SOAHR Conference August 3-4 45 36th Annual KYSHRM Conference in Louisville August 24-25 46 SHRM Test from Home July issue features Top Educational Programs for HR Professionals and Updates on Employment Law and Employee Benefits Plus the Latest on HR Management and the Coronavirus Pandemic Deadline to reserve space June 15

a note from the editor

The June issue is one of my favorites because we feature the Guide to Super Lawyers in Labor and Employment Law from Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, North Carolina and Tennessee. As HR professionals we work with these attorneys every day. This is an opportunity to spotlight them, and to say thank you for all they do for HR professionals. We could not do our jobs without them! If you are looking for legal assistance, look no further than this Guide. You will find the perfect attorney to help you with all employee relations and other legal issues. Remember to call on them during these changing times for guidance related to returning workers who were furloughed or laid off. You may also need guidance on calling remote workers back to the office. There are so many issues HR professionals face with the returning workforce, such as: • Employees who refuse to return due to fears of contracting the disease • Remote workers who want to continue to work from home • Employees who refuse to return to work because they are making more money on unemployment • Employees with disability issues • Workplace safety assessments

We are excited to feature a fellow Tennessean on our June cover! I know you will enjoy reading Stephanie Hawkins’ career profile on Page 6. She is currently President of MT | SHRM in Nashville. Stephanie has many years of volunteer service for SHRM, previously serving as programs director for the chapter and programs chair for the 2017 Tennessee SHRM state conference. Stephanie began her career with Gallagher in 2011 as a business consultant. In 2018 she took on the role of benefits consulting and is now area vice president of HR and benefits consulting. We are also featuring HR strategies for returning to normal after COVID-19 in this issue. We have an Employers Guide for Returning to the Workplace by Davidson French and Lymari Cromwell with Bass, Berry & Sims that is a must read! You don’t want to miss the article by Casey Sword with the SHRM Research Team on HR implications of the COVID-19 recession. Blair and Bruce Johanson have provided an excellent article on post COVID-19 total rewards strategies. Donna K. Fisher with Ogletree Deakins has written a fantastic article on polices you need to create before return to work. There is also an exciting article by Brad Federman on reinvesting in leadership when reopening. This issue is chock full of information on how to safely return to work after COVID-19. We hope you will find our June issue very helpful! If you are like me, you are probably longing for the return of our SHRM state conferences and the SHRM national conferences. We were disappointed to learn the 2020 SHRM Annual Conference & Expo originally scheduled for June 28-July 3 in San Diego was cancelled. However, we can look forward to the 2021 SHRM Annual Conference & Expo in Chicago next year. See Page 3 for details. We have lots of news on many of the SHRM state conferences in the Southeast in this issue. Watch our Facebook and LinkedIn posts for the latest updates. Be sure to also follow me on Twitter @cythomps for updates as well. Watch your email for our monthly complimentary webinar sponsored by Data Facts that will be on June 25. You will earn 1.00 SHRM PDC and 1.00 HRCI credit. If you are not currently receiving our monthly email invitation, you can subscribe on our website at www.hrprofessionalsmagazine.com.

Stay healthy and safe!

• Taking employees’ temperature when entering the workplace We hope you will keep this Guide as a handy reference to use as needed. If you notice your attorney featured, please congratulate them on this prestigious honor.

cynthia@hrprosmagazine.com @cythomps

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on the cover

Stephanie

HAWKINS

Photo by Montgomery Lee Photography

Stephanie holds a bachelor’s degree in business management from Lipscomb University, where she graduated cum laude and was awarded the Murray J. Martin award for top business management major.

Stephanie Hawkins, SPHR

Stephanie became president of MT|SHRM in January 2020 after serving as president-elect for two years. While president-elect, she championed a member survey by partnering with an HR analytics professor at Lipscomb University. The survey results gave MT|SHRM actionable data that is currently being used to improve the member and prospective member experience. Prior to that, Stephanie served as programs director for the chapter and programs chair for the 2017 Tennessee SHRM state conference. Stephanie believes in the power of HR education and works to ensure that members have information to bring to their jobs that day and also be prepared for the future of how we work. In addition, Stephanie organized the CapABILITY Career Expo in 2015 and 2016, a job fair for people with disabilities. Stephanie decided to pursue a career in HR after a brief stint in banking. She had quickly realized that she would like to be the one at career fairs doing the recruiting. Through the years, she progressed through various HR generalist and HR leadership roles in the manufacturing and healthcare industries. Most notably, Stephanie worked at BlueCross BlueShield of Tennessee for seven years. In 2011, she began her career at Gallagher, a business consulting, risk management, and insurance firm. She worked as an HR consultant from 2011 until 2017 where she supported clients with organizational structure reviews, performance management and compensation projects, employee relations consulting, and affirmative action plans. In 2018, Stephanie was asked to move into a benefits consulting role so that her vast HR experience could be utilized to design an ideal benefits and rewards package. Today, she is area vice president of HR and benefits consulting with Gallagher. She supports both fully insured and self-funded clients in managing their benefits plans. She believes it is important to communicate a company’s benefits package in a way that meets employees where they are; she is passionate about viewing benefits in the context of her clients’ culture and entire rewards package. Stephanie invites you to connect with her on LinkedIn: https://www.linkedin.com/in/stephaniehawkinssphr/.

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July 16 & 17, 2020

Exclusive conference rate of $129 per night (not including taxes) ends 06/15/20. Visit https://tinyurl.com/SHRP-2020

Thursday, July 16th 8:oo AM - 5:00 PM

“Adjusting to the New Normal - Employment Law Update 2020” (Greg Hare)

Friday, July 17th 8:oo AM - 11:15AM

Early Bird Rates End 5/31/20

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HR Implications of the COVID-19 Recession By CASEY SWORD

NEWS FLASH: There is no debate over the possibility of an impending recession. It’s soon to be the reality— that is, if it isn’t already. A recession is classified by two quarters of negative growth in GDP. Right now, the Bureau of Economic Analysis’ advance estimates for the first quarter of real GDP show a decrease at an annual rate of 4.8 percent. What’s more, the International Monetary Fund is projecting that the American economy will contract by about 6 percent in 2020. These indicators are coupled with grim realities for U.S. businesses and employees alike: US employers cut 20.5 million jobs from mid-March to mid-April, first-time jobless filings now total a staggering 33 million, and the nation’s unemployment rate has risen to nearly 15 percent. This is a stark contrast from the record lows in unemployment and record highs in expansions enjoyed just before COVID-19 hit U.S. shores. That’s what happens when 316 million people are ordered to stay at home. All things considered, the US economy is not going to come out of this unscathed. 8

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However, not all recessions look the same. While this recession has similar characteristics to others, it was not caused by a steady decline in economic growth. It is unique in that it was caused by COVID-19, leading to rapid changes in demand as states were placed on lockdown. Now the biggest concern is how everything will pan out. Federal Reserve Chairman Jerome Powell, once optimistic about a short recovery, stated in mid-May that we could witness a “prolonged recession and weak recovery.”

So, what now? Can we just go shopping? Although many are eager to get things back up and running, others are unwilling to take any risks in what’s considered a tradeoff between saving lives and saving livelihoods. With stay-at-home orders slowly being lifted, it is unlikely that we will see flocks of people rushing to hair salons right away. The COVID-19 haircut might be here to stay. Ready or not, employees will eventually return to work and worksites (if they haven’t already). SHRM Research found that more than half of US employers expect furloughed salaried workers to be recalled within three months. And while many remote employees will start trickling back into their offices, others may choose to stay fully or partially remote long after COVID-19 is gone.

The reabsorption of employees back into the workplace will not be an easy feat, and HR will be at the forefront of these efforts. Staying up to speed in such a volatile environment will be a tremendous but necessary requirement for a successful transition back to work. What follows is by no means an exhaustive list but things to consider as we maneuver our way out of this. Let’s start with the shifting legal landscape. Government policies are changing as employers decide when and how to bring their employees back to work. It’s therefore unsurprising that more than 55 percent of employers report challenges in understanding new regulatory changes and how those changes impact their organizations. While employers are looking for guidance, legislators are still figuring out what to do. For instance, legislators are currently split on whether to provide employers with immunity from coronavirus-related lawsuits when they reopen their worksites. Simultaneously keeping employees safe, adhering to federal and state laws and guidelines, and running a profitable business will be difficult. A frequently changing landscape such as this demands a swift response from HR. Another concern for HR is a potential increase in employment discrimination lawsuits and EEOC actions. HR should be prepared to answer questions like: Who should we phase in first? What about employees recovering from positive diagnoses of COVID-19, or employees caring for family members who have tested positive? Are we doing everything we can keep our employees and customers safe? Additionally, HR professionals are being thrust right in the middle of important business decisions—some of which may not be well-received by employees being called back to the worksite. Consider this: On May 13, Tesla warned the company’s California employees that if they are called back to work but choose to stay at home due to COVID-19 concerns, they could risk losing their unemployment benefits. This leaves many employees feeling as if they must choose between their health and their paycheck. Employers and the HR profession need to take care when deciding and communicating return-to-work policies and include internal and/or external counsel when planning decisions and communications. Rather than enforce policies that may not be inclusive, consider accommodating employees’ needs case-by-case where at all possible. If not, be prepared for a backlog of discrimination claims.

not forget how they were treated during this time. Already, morale is low: 2 in 3 employers say that maintaining employee morale has been a challenge at their organizations. HR needs to consider all the cost-savings tactics available to them, and balance supporting employees with the needs of the business. What benefits are essential versus expendable? Where can funds be recovered in personnel management, engagement, or productivity-focused changes? Just because we might see a decline in hiring doesn’t mean HR should give up the fight. Attracting and—possibly most importantly—retaining talent will always be a business imperative. Now is a crucial time for reskilling and upskilling when preparing organizations to respond to future shocks. We’ve heard it all before: The future of work will be characterized by automation and AI, and there is a desperate need for more technical skills. Workers who do not lose their jobs will likely take on extra duties that require different skillsets. Those who lose their jobs should be equipped with the skills needed to hit the ground running. It would be a disservice to discontinue initiatives that serve to upskill employees— particularly during an economic downturn when they might need it the most. And finally, COVID-19 has put stress not only on the economy, but on employees’ mental health. SHRM Research shows that between 22 and 35 percent of employees report experiencing symptoms of depression often, and as many as 2 in 3 are experiencing depressive symptoms at least sometimes. Nearly 40 percent of employees haven’t done anything to cope with these symptoms. It will be important to prioritize mental health in benefits packages and remind employees of these offerings. One third of employers have experienced a notable increase in request for information about Employee Assistance Programs (EAPs). Consider retaining any enhanced EAP offerings put in place during stay-at-home orders. In addition, offer mental health resources such as licensed counselors on call, meditation platforms, and virtual education programs. Long story short: HR doesn’t have time to ponder whether or not there will be a recession because in many ways, it’s already here. It’s time to stop focusing on the COVID-19 pandemic alone and begin to prepare for the economic hardship that follows. This is an opportunity for HR to step up and prove their worth to their organization as stewards of their business, particularly as the economic recovery from COVID-19 continues to impact work long after the virus is contained.

While 68 percent of U.S. employers have no plans or expectations for further layoffs, this could very well change in a sustained recession. Employers will have to reassess their cost-saving mechanisms to keep their businesses afloat. Many will see no option but resorting to job elimination. Be mindful that employees will

Casey Sword

Research Specialist Society for Human Resource Management casey.sword@shrm.org shrm.org www.HRProfessionalsMagazine.com

Tips for Maintaining Organizational Agility and Business Resiliency During Changing Times

By SUSHMA TRIPATHI

The current landscape presents the opportunity for employers to review and/or enhance business continuity planning, workforce well-being and employer brand / reputation management. Today's landscape continues to present new challenges for business leaders who must balance the interests of customers and the safety and well-being of their staff. Given the current environment, many businesses are facing lulls and spikes in customer volume and labor needs. As a result, some are adjusting and transforming their current business models to support the needs of their communities and the marketplace.

Now more than ever, organizations are becoming agile. As a result, HR and payroll are under pressure to deliver results in a rapidly changing work environment. Teams, departments, and business units must be nimble as they continually shift gears and pivot. Along the way, it's important to provide decisive and empathetic leadership, as well as clear, timely communications.

Staying Agile in a Transforming World

Agile payroll practices refer to the ability of the payroll department to perceive and respond to change rapidly. This includes people, process and technology. The key question you must ask yourself is: "does your payroll department have the right tools, skills, policies and practices needed to be agile?"

Right now, employers are looking for guidance and best practices. So, the question is -how do you become agile? First, you must define what agile means for your organization. If your company were better able to move swiftly and adapt to change, what would you do differently? Would you… • Do a better job of listening to customers? • Redesign the customer relationship? • Use new technology or service model? • Innovate versus adapt? With these questions in mind, employers must consider how the outcomes will be impacted. The answers need to be specific and relevant to your business. Employers also need to understand the barriers and enablers. Meaning, what prevents you from being agile today? • Is it organizational skills and capabilities? • Lack of collaboration and communication? • Rigid policies and practices? • Maintenance of legacy products and services? • Or is it budgetary constraints? Organizations also need to consider what aspects of your workplace culture needs to change and what stays the same. This is complex, and in order to do all of this, you need to start evaluating your business strategy against the market environment. Assess Your Organizational Capabilities The current landscape presents the opportunity for employers to review and/or enhance business continuity planning, workforce well-being and employer brand / reputation management. That means this is a good time to assess your organizational capabilities, HR and payroll practices, tools technology and skillsets. HR and payroll are more mission critical than ever. Regardless of market dynamics, workers rely on accurate and timely payroll. 10

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Agile Payroll Practices

The right culture and skills can make a huge difference and can inspire confidence, eliminate mistakes, and help boost productivity. Employers should focus on the decisions they can make now that will improve their relationship with their employees and customers today and in the future. If you anticipate that your company needs to alter or modify product or service offerings, consider communicating that to your customers as early as possible. There is no one type of culture that is distinctively "agile." There are specific behaviors that can inhibit or promote open collaboration and agility. For example, • Is it common in your organization to set clear goals and expectations? • Are roles and responsibilities clearly defined? • Are psychological safety and dependability valued at your organization? • Are diverse points of view welcome? • Do employees trust leadership decisions and actions? • Is there intolerance for mistakes or questions regarding a supervisor's direction? It is better to emphasize simple, basic behaviors and eliminate unproductive processes, rather than trying to teach people how to be agile. The bottom line is that organizational agility requires personal stability. Your employees need to have clear direction and need to know what is expected of them. At the end of the day, it is vital to focus on the outcomes you want and make small adjustments in phases.

What We're Hearing, Tips for Practitioners During changing times like these, organizations are concerned with the emotional and physical well-being of their employees. This includes the ability to keep their employees connected to the workplace, all while keeping their business running smoothly. For HR and Payroll departments, it's a little different – people need to be paid, have access to their health benefits, and manage their time information. This includes: • Providing access to policies and procedures, including having your employee handbook online. • Supporting accurate time capture and absence management tools to help employees' access and manage their time accurately. If you are using paper and manual processes, make sure you maintain traceability and store all documentation appropriately. • Maintaining benefits eligibility especially when you change employee from full-time to part-time status, and when your part time employees' hours flex up or down. If your employees lose eligibility for coverage, make sure you offer them COBRA coverage. • Encouraging direct deposit for employees and offer pay cards as an option for unbanked or underbanked employees. • Providing access to self-service tools to manage work-life virtually and leverage technology to improve employee and manager experience. Remember to leverage mobile capabilities, when appropriate, for example, W-2s, pay statement, clocking in and out, requesting leave, checking your PTO balance etc.; encourage self-service wherever possible. • Offering direct deposit enrollment access, and access to wage statements and W-2s electronically. • And, communicating to keep employees in the know. As you can see, organizational agility and business resiliency is key. And, we believe that organizations that are viewed as doing the right thing by their employees will earn priceless capital in the form of strengthened employer brand and employee loyalty.

Sushma Tripathi, VP

Strategic Advisory Services ADP Sushma.tripathi@adp.com

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Compensation and Total Rewards Strategies Post COVID-19 Pandemic Crisis By BLAIR and BRUCE JOHANSON

After completion of Mercer’s 2020 US Compensation Monthly Pulse Survey, the following statement was made about post COVID-19 pandemic compensation and total rewards management strategies. “The runway for this crisis is likely to be long and the impact uneven, which will result in a lot of complexity around managing pay and rewards, both across workforce segments and across locations,” said Mary Ann Sardone, Partner and US Talent Solutions Leader at Mercer. Mercer offered the following three bulleted recommendations for human resources and compensation professionals that are front-line managers for employee-related issues associated with the pandemic crisis. We would like to add our insights and comments related to Mercer’s recommendation.

■ T ake action to prepare for worst-case scenarios – not just for employee rewards and workforce composition changes, but also for actions that influence career development. For some organizations, the runway for this crisis as mentioned in Mary Ann’s comment may be long and uneven, for other organizations the runway may not exist any more due two months of federal and state forced closed door regulations, and yet, for other essential businesses in retail food and goods, medical care and medications, shipping and home delivery, the crisis has tested their ability to keep up with demand and supply dynamics. For worst-case scenario planning and decision-making, we recommend short-term and long-term action plans. Short-term action plans will focus on immediate employee rewards and workforce compensation changes to bring the business back online if it has been closed due to the COVID-19 virus pandemic or to bring employees back into the business or organization facilities after two months of remote work and/ or alternating on-site staff coverage at public and private entities. Some of our clients are city governments, and they closed access to city halls to reduce the risk of virus spreading and they sent non-essential employees home to work remotely or to work flexible work schedules to handle on-site departmental needs. We have several banking clients that closed access to public lobby banking services but kept teller windows open to handle daily financial transactions. For the short-term, human resource and compensation professionals will be working to help their businesses and organizations return to new post pandemic operational norms. Staffing will be the most immediate issue with some employees staying on FMLA leave to take care of 12

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themselves or children due to school closings and other pandemicrelated health issues. In addition, staffing will be impacted by employees who have enjoyed working remotely so much that they have decided to terminate their employment so they can work for other organizations that offer remote or home employment since the two months of forced remote social distancing has proven equal or greater productivity by its remote workforce. Flexible work schedules and part-time to full-time evolving work progression decisions will be made as organizations return to full-time operations and workloads. Also, some employees may decide to stay on unemployment coverage until the end of 2020 based on favorable unemployment compensation. We have handled several calls from clients during the past few months asking about compensation decisions for 2020 and 2021. The consensus of the phone calls to date is taking on a conservative, let’s wait and see approach for employee pay increases. Employers impacted negatively by the COVID-19 pandemic crisis that have not made 2020 employee pay adjustments will delay increases in employee pay, and they will re-evaluate 3rd or 4th quarter pay adjustments based on how quickly revenues return to pre-pandemic levels. Business sectors that basically closed down or minimized their services inclusive of restaurants, entertainment, travel and non-essential goods manufacturing will be happy to regain pre-pandemic operations and not worry with merit, market or COLA increases until 2021. A recent International Monetary Fund (IMF) blog article written by Gita Gopinath and titled “The Great Lockdown: Worst Economic Downturn Since the Great Depression,” predicts that U.S. Year over Year 2020 GNP will be -6% and the World’s GNP will drop to -3%. Based on a March 17, 2020 Society of Human Resources (SHRM) article written by Stephen Miller, CEBS, “… most U.S. companies appear to be taking a wait-and-see approach to adjusting their compensation programs.

■ Have plans in place to provide HR support for these scenarios as well as the programs ready for support, such as severance, outplacement and re-boarding. There are some employees that cannot wait to return to their offices or work areas as social distancing requirements are lifted. Some are happily working at their places of business and glad that remote working or days of unemployment have passed. These employees were not comfortable working from home based on family, pet and honey-do distractions. Parents became extended teacher aids due to school closings associated with the COVID-19 virus.

Human Resource and total rewards professionals need to be ready for, if not already addressing, requests from employees that want to continue working remotely or who have decided to seek employment with firms that support remote or home-based jobs. Post pandemic staffing fluidity will cause a period of outflows and back-filling inflows due to changing working conditions. As mentioned in Mercer’s article, severance, outplacement and re-boarding programs will address shortterm staffing strategies during the upcoming 3rd quarter and this period could extend into the 4th quarter of this year. During this time of upheaval, we are seeing some organizations that are laying off employees due to lack of business and at the same time, increasing salaries for top performers and key occupations that will sustain and grow the business coming out of the pandemic. Human Resources can be a key partner to the department heads of their organization and assist them to implement a logical and strategic plan to address essential workforce needs with a focus on the future goals and desired outcomes. Human Resources needs to be in the driver seat during this transition time to ensure objective and non-biased thinking and actions to ensure the best results of who stays and who goes.

■ Shrink decision-making and process execution timelines related to compensation planning processes to remain agile. Agile compensation planning processes to decrease decision-making and process execution timelines as recommend by the Mercer Survey are accomplished by narrowing down the number of key decisionmakers and being prepared with post-pandemic recommendations

based on current trends and regulations. The CEO, CFO, COO, CHO and Chief Counsel for larger organizations and the Business Owner, Director of Finance, HR Director, Chief of Staff or Operations and Outside Legal Counsel for smaller organizations represent the core leadership team for responsive and agile total rewards short-term and long-term decisions. There is a tendency to throw out the strategic plan when severe events occur. However, a thorough strategic plan should include contingencies for such times as we are in to assist with critical decisions around compensation, benefits, employee count, operations, etc. The core leadership team needs to lean into the long-term plan and make current day decisions that support the future and be ready to resume business as the pandemic declines and the economy improves. One last thought. When crisis occurs, some Boards of Directors will try to micromanage and direct company leadership to reduce employee costs through employee layoffs, giving no pay increases, stopping incentive bonus plans, suspending 401(k) company contributions, etc. Management should be one step ahead of the Board and present three levels of severity: minimal, probable, and worst case to implement based on how the crisis is going to impact the organization. This will ease the stress level of the Board and also keep them from knee-jerking responses to a present crisis.

Blair and Bruce Johanson Principle Partners DBSquared www.dbsquared.com

DBSquared combines proven technology and seasoned expertise to help bring your total compensation management into perspective. We provide: DBCompensation® (built on the proven Job Evaluation and Salary Administration Program JESAP™ methodology) is a stateoftheart HR compensation management software application that efficiently combines internal knowledge and expertise with pertinent market information to streamline your compensation strategy and policies. Ultimately simple and elegant, DBCompensation is easily integrated into your business strategy and HRIS environment. Our proven methodology and process combined with thorough and intuitive software development ensure you'll never look back.

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By BRAD FEDERMAN

It is time to reopen the workplace. Let's celebrate! Not so fast,

first there is plenty of work to be completed. Policies need to be reviewed, processes revamped, assessments completed. You will have to plan for many things including a potential second and third wave. Employees will need special training; offices must be redesigned, and you will require resources that you've never needed before. In the midst of all of that it is easy to forget one of the most important things – your people. • Almost 70% of employees say COVID-19 is the most stressful time of their professional career. • 94% of employees have noted lost productivity due to COVID-19 stress. • What is even more alarming is the stark 21% increase of new prescriptions for anti-depressants, anxiety and insomnia medications.

The core reasons for this stress:

Those concerns will not disappear once the reopening begins. In fact, many will remain, some will change or evolve creating new stress, and others will increase in severity. This is a time when we need real people leadership. We need to recognize that many organizations will look more like psychological trauma centers. In the next several months, we will need to: • Anticipate mental health challenges • Help employees cope with stress • Remain flexible regarding employees balancing family and work • Recognize their fears and safety concerns • Acknowledge the severe financial strain many of our employees are under

• Financial security concerns • Health and wellbeing risks

CEO's must now become Chief Empathy Officers. We must remember what other people have done during a crisis.

• Family welfare responsibilities

CEO's must now become Chief Empathy Officers. 14

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These 3 leaders exemplify crisis leadership:

We need to be bold and fearless going forward.

Imran Yousuf was 24 when he was working as a bouncer at the Pulse night club the night of the attack. He saw people frozen in terror next to a closed door that could have led them to safety. But no one was moving. Yousef leaped up putting himself at risk of being shot in order to open the door and get people out. He saved between 60 and 70 people. Leaders pay attention to others during a crisis.

gunman boarded her school bus and shot her. She woke up 10 days later in a hospital in Birmingham, England and continues to be an activist. Leaders stand for something.

At 3:24 p.m. Flight 1549 was cleared for takeoff from LaGuardia airport. Less than a minute after departure Captain Sully radioed air traffic controllers that he was 700' and climbing to 5000'. A few moments later he radioed, “Mayday, Mayday, Mayday. This is cactus 1549. Hit birds. We've lost thrust in both engines. We all know the ending. Somehow he kept his cool and everyone made it out alive. Great leaders do not pass stress on to others. Great leaders cope with stress in order to help others.

We need to be bold and fearless going forward. Our ability to maintain composure and be future- focused will be the key. Our employees want to know we are heading somewhere worthwhile. We will need to manage expectations along the way so our people are less scared and frustrated. We will make mistakes, but we cannot be afraid to make mistakes. We must get back up, brush ourselves off, and push forward. Above all else we must allow our people to grieve. To let go of what they knew before in order to create something new now.

Confidence and courage transcend age and generations. Malala demonstrates that to us. She loved school, but everything changed when the Taliban took control over her village. The extremists banned many things including a girl’s ability to go to school. Four years later she decided to resist the Taliban order and return to school. She spoke out publicly on behalf of girls and their right to learn. She knowingly became a target. In October 2012 on a way home from school a masked

Brad Federman, CEO

PerformancePoint LLC bfederman@performancepointllc.com www.performancepointllc.com

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Reinventing Your Workforce; HR’s Post-Shutdown Options By JULIE HENDERSON

It’s all over the news. States are opening back up after the COVID-19 shutdown shuttered millions of businesses over the past months. Employers and employees alike feel everything from hope to trepidation at the thought of getting back to work. What does that mean for your organization, and your workforce? While you are free to open (depending on your location and your type of business), there are many questions to answer about bringing your employees back. Going back to work doesn’t mean business as usual. Many of us question if we will EVER see the workplace return to pre-pandemic functioning (shaking hands, sharing lunch space, sitting side by side in a closed meeting space, etc). Through these formidable obstacles, however, HR possesses a unique opportunity to reinvent their company’s workforce for the long-term good. You just need to be smart in the way you do it. Here are four points to ponder in your quest to reinvent your workforce into a better, higher-functioning, more efficient animal.

Say Goodbye to Low Performers There’s no better time than now to make sure your workforce consists primarily of A-players. Your organization’s survival may depend on it! Whether your company is bringing back 100% of employees-or only a fraction-in the beginning, weigh each one’s performance and “opt-out” of putting low-producing staff back on the payroll. Use this time to wipe your slate clean and move forward with a more effective, higher performing team, even if this means there are some new faces on it.

Decide on Flexible Working Options As annoying as it is, the term “new normal” is spot on in explaining the challenges businesses face. HR may never see another time that they can more easily or thoroughly shake up their company’s inner workings. This may mean a greater number of staff permanently works from home, a larger chunk of sales comes from online offerings, more employees being cross trained to handle multiple jobs, a greater dependence on marketing than ever before, or something else. Regardless of how your company plans to progress, the game plan for what this means to employees should be clear and measurable as they start returning to work.

Build Relevant Perks Packages As HR sheds low performers and looks for stronger candidates to take their places, they must consider what will make these top-tier catches want to work there. It may not be the same answer as it would have been pre-pandemic. For example, childcare is a huge deal since many daycares and summer camps are still not opened yet. Adding assistance for employees to hire a family member or close friend to babysit, or offer on-site care, could be the 16

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difference in landing an A-player or not. Office safety will undoubtedly play a large role in an applicant’s decision. Where cubicles were never looked upon as a health hazard before, they may be now. Being able to offer spread out, well-ventilated workspaces could make or break your hiring efforts. Getting creative in your company’s perks is a smart move in maintaining an engaged, happy workforce.

Create A Re-Screening Program Whether you’re hiring new people or bringing former employees back, don’t assume all is well with them. They could have engaged in dangerous or illegal behavior while they were off work that employers need to know about. That’s why HR should consider re-screening employees before they’re re-hired. An important thing to check is drug use. Perform a drug screening that’s in compliance with your company’s drug policy and follow the set procedures. If they operate a motor vehicle for work, also order a motor vehicle records search to uncover any violations or license expirations that occurred while they were gone. A third item to look at is their recent criminal history. Pull a criminal records search in the county where they live to see if there are recent convictions present. (Note: Review their original signed authorizations and if the language wasn’t evergreen, request that they sign a fresh one before you screen them). Hopefully all of your team members behaved themselves while they were furloughed, but re-screening them gives you additional insurance that protects your workplace and mitigates your risk. As companies begin bringing employees back on board it may feel like we are making up the rules as we go. This might be true to an extent, but it doesn’t have to be all bad. There are opportunities for HR to re-shape policies and teams and emerge even better than it was pre-pandemic. With proper planning and strategic thinking, HR can make the post-pandemic workforce even better and higher functioning than the one before it.

Julie Henderson

Vice President of Sales Data Facts, Inc. jhenderson@datafacts.com

SOLVING PROBLEMS FOR BUSINESSES AND EMPLOYERS

The focus of our practice at Wimberly Lawson Wright Daves & Jones, PLLC is primarily on Labor & Employment law and Workers’ Compensation, together with General Liability defense, for businesses and professionals, insurers, and governmental entities. We have offices in Knoxville, Morristown, Cookeville, and Nashville, Tennessee, and serve clients both nationally and internationally. Our attorneys use a number of preventive and cost-effective methods to maximize employee benefit dollars as well as avoid costly legal problems. We also present educational seminars on a wide variety of topics, including critical issues for employers regarding the current COVID19 situation. The Firm has been recognized for various coveted rating awards including: • U.S. Top Ranked Law Firms by Fortune Magazine; • Best Law Firms by U.S. News & World Report; and • Martindale Hubbell Peer Review Rated Award by Martindale-Hubbell. Knoxville 865-546-1000

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A Great New Way to Significantly Reduce Your Health Benefit Expenditure By JOEL LEE

The work of human resource professionals has never been easy. Consistently and equitably balancing business imperatives with human capital investment opportunities requires initiative and a balanced perspective on how to make things work in a resource constrained corporate budget. On one hand, they seek to build a well-trained, well-compensated and personally secure workforce deeply motivated to making the business successful. On the other hand, they are charged with doing that even as HR budgets get tighter every year. Healthcare costs grow relentlessly forcing difficult trade-offs in building talent, in creating strong cultures and in improving competencies within the company. Every human resource professional knows that what happens outside the workplace can often be a direct threat to the performance of individual staff but have little bandwidth or budget that can be allocated to influencing the environment outside. FEDlogic was established five years ago with a dual purpose in mind – to offer support for working families at no-cost by connecting them with the right federal and state benefits and to offer those benefits to employees while reducing their employer’s health benefit costs. FEDlogic experts have held federal and state government positions specializing in Medicare, Medicaid, Social Security and programs for the disabled. FEDlogic experts advocate for employees and their families to secure public benefits perfectly tailored to their needs. By finding options for workers that offer better health coverage at a lower cost to the employee, FEDlogic reduces the insurance cost borne by the employer. By helping workers build more stable lives, the company benefits by having more reliable and better focused employees. By connecting workers with more effective and more affordable healthcare coverage, employers can significantly reduce their overall health benefit expenditure.

Take a look at a few cases where FEDlogic has been especially valuable: • Employees or their spouses are eligible for Medicare at costs to them that are below their cost for the employer-sponsored health plan; and many times provide better coverages • Workers or their dependents who are faced with a disabling condition from an accident, illness, or a cancer diagnosis may be eligible for federal health coverage and disability benefits • Low wage-earning families may find their state’s Medicaid program allows them or their dependent children to qualify for health benefits even if one or both parents are working • An employee or dependent who develops end stage renal disease can quickly get on Medicare- providing much needed relief to that family from a financial and health coverage perspective all while saving the employer as much as $250,000 a year • Employees and their spouses are educated to maximize their Social Security retirement, spousal, children, and widow benefits. 18

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Frank Cardenas, the founder and CEO of FEDlogic, learned early on about the value of supportive federal programs. When his immigrant parents found that his older sister, Alex, was not progressing the way she should as an infant, they struggled to understand why. With little knowledge on available benefit programs, along with difficult language barriers, Frank’s parents struggled implement Social Security Disability Insurance. Once they were finally able to apply, it allowed Alex to continue her progress with financial support and training services that made all the difference to his family. From that early experience Frank understood how critical federal programs could be for families. He went to law school and began work at the Social Security Administration as a Senior Adjudicator and Congressional Liaison. It was there he learned the real sweep and power of federal programs. He also learned how difficult it was to advocate for families within the constraints of federal rules. It was with this in mind that he and his wife Elizabeth, founded FEDlogic, a mission-based company that offers federal and state benefit advocacy and education. It is a solution that FEDlogic believes every employer should consider both to help their workforce but also to reduce their health insurance expenses. Today, the company and its team of experts have more than 300 clients in dozens of industrial sectors from banking to accounting, from transportation to health care. FEDlogic is endorsed by the Tennessee Hospital Association and has partnered to provide navigation to their network of hospitals in Tennessee and nationally. Every one of FEDlogic’s clients has experienced a return on investment in their first year of implementation. So confident is the company in the value of its service that it guarantees if it fails to produce a positive ROI, it will provide the services at no charge for the second year.

FEDlogic works with best-in-class employers and their HR departments to recognize how and when to help a family in crisis or through a life transition. Once a company has implemented service and informed it’s employees of their new benefits available through FEDlogic, participation by the employee is strictly voluntary. When an employee calls into FEDlogic, an expert is assigned, and a phone consultation is arranged. That expert looks at each individual situation to determine any programs available that may provide better assistance, lower cost, or provide more coverage. The experts educate the employee on those benefits available to them, and if the employee decides to move forward, they are helped every step of the way from initial application through final disposition on an unlimited basis. Some of the most enthusiastic supporters are health benefit brokers. They have found in FEDlogic a partner who can help by significantly reducing health insurance costs and at the same time helping workers and their families. Anita Blackmer, FEDlogic’s Business Development Officer, has had first-hand experience as a former benefits consultant. She explains, “Prior to joining [FEDlogic], I found employees needed assistance and the practical help in understanding federal and state benefits. The bonus for me is that by finding better coverage for themselves or family members, my clients spent significantly less money on healthcare and could offer a richer benefit plan to all of their employees. It was a true win-win for my clients and their workforce.” When the COVID 19 pandemic was creating huge disruptions to the workplace, the FEDlogic team stepped up and worked with clients to help furloughed employees file for unemployment compensation both to support those families and to better ensure the employees would be available for recall when the pandemic recedes. One hospital client with 12,000 employees was faced with sudden and dramatic furloughs. Within days the FEDlogic team was on the ground and within three weeks had conferred with nearly 1000 workers and their families and helped them navigate through state unemployment, federal stimulus benefits, and other COVID 19 relief support.

“FEDlogic is here to help support families when they need help the most,” said Founder Frank Cardenas, “…whether that is helping them in understanding their Medicare and retirement benefits, if they have been affected by a major illness and need help, or if they are lower income and need other healthcare options besides that of their employer – FEDlogic will always be there to help these individuals. Families gravitate to those service providers who advocate for them, who don't pressure them into anything, who don't have a sale to make to them – which is why FEDlogic’s engagement from our corporate clients has been so high.”

For more information visit www.fedlogicgroup.com or contact Anita Blackmer, Chief Business Development Officer, at 615-948-3648 or by email at anita@fedlogicgroup.com.

NAVIGATING FEDERAL & STATE BENEFITS

What’s good for your employees is good for you.

Best in class employers care about the wellbeing of their workforce and know that doing the right thing can be good for all. FEDlogic reduces healthcare costs for you and your employees by carefully navigating complex federal and state programs.

Expert and compassionate support for families includes: • Medicare Enrollment • Social Security Retirement • Social Security Disability • Medicaid, Marketplace & COBRA Navigation • Unemployment Benefits

Talk with us to find out how we can help your employees and your business.

Learn more at FEDLogicGroup.com Contact Anita Blackmer anita@fedlogicgroup.com www.HRProfessionalsMagazine.com

Employerâ&#x20AC;&#x2122;s Guide for

Returning to the Workplace By DAVIDSON FRENCH and LYMARI CROMWELL

This article is an abbreviated version of an article published by Bass, Berry & Sims on April 28, 2020. To access the full article, including frequently asked questions relating to returning employees to the workplace, visit https://www.bassberry.com/news/employers-guide-for-returning-to-the-workplace/.

the U.S. economy reopens in the coming weeks and months, employers are faced with the challenge of bringing employees back to work to a workplace that is drastically different from the one that existed just weeks ago. While states and cities will have unique requirements and conditions with which employers must comply, they will largely rely on the constantly evolving guidance provided by the Centers for Disease Control (CDC), Occupational Safety and Health Administration (OSHA), and the Equal Employment Opportunity Commission (EEOC). It will be crucial for employers to comply with the most recent guidance from the CDC, OSHA, public health agencies, and the EEOC as they bring employees back to work and re-open businesses.

OSHA Guidance on Preparing the Workplace

Below is a general overview of current guidance from the EEOC, OSHA and CDC concerning workplace safety, followed by frequently asked questions regarding the return of employees to the workplace in the era of COVID-19.

Employers should consult the CDC recommendations (summarized below) for returning employees to work, as well as the following:

The EEOC and COVID-19

1. Require employees to practice social distancing at work (e.g., staying at least 6 feet apart, limiting the number of occupants in offices and/or elevators, requiring office doors to remain closed when occupied, closing lunch and break areas, restricting occupancy and spacing, etc.).

The EEOC has stated that the non-discrimination laws that it enforces (e.g., the Americans with Disabilities Act (ADA)) should not interfere with or prevent employers from following the guidance and suggestions from the CDC and state and local public health agencies. The EEOC has also issued guidance for the interpretation and enforcement of the ADA and the Rehabilitation Act in light of COVID-19. Significant points are summarized below: 1. Employers may ask employees about virus-related symptoms and may require employees to submit to temperature testing. Employers may also require employees to report a COVID-19 diagnosis to the employer.

OSHA requires employers to comply with existing safety and health standards and regulations promulgated by OSHA or by a state with an OSHA-approved state plan, including the Actâ&#x20AC;&#x2122;s General Duty Clause, which requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. OSHA recently issued a thorough set of advisory recommendations and guidelines for employers to consult when preparing workplaces for the effects of COVID-19.

2. Staggered arrival and departure times and/or work hours. 3. Closing certain stalls/urinals in the restroom to create adequate distance between individuals. 4. Limit one person to a vehicle, if possible. 5. Install high-efficiency filters and increase ventilation rates in the workplace.

2. Employers may choose to administer COVID-19 testing to employees before they enter the workplace. Employers should ensure that the tests are accurate and reliable. Testing is rapidly changing, so employers should check for updates regarding the efficacy of any testing mechanism that they choose to use. Employers may wish to consider the incidence of falsepositives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

6. Designate one person to clock employees in and out of work or record their arrival and departure times if clocking in would otherwise require employees to be in close contact with each other or to touch the same equipment. Forbid sharing of headsets, refrigerators, microwaves, computers, tools, etc.

3. Employers may require employees with COVID-19 to leave the workplace and/or present medical certification proving fitness for duty before returning to work.

8. Install glass or plexiglass barriers where people have to meet to talk and exchange documents or materials (i.e., at secretarial work stations, customer service desks, etc.).

4. Employers may delay start dates and/or withdraw job offers if an applicant tests positive for COVID-19 and/or has COVID-19 symptoms. The job offer should only be withdrawn if the employer needs the employee to start work immediately.

New COVID-19 Poster from OSHA

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7. Prop open doors to reduce touching of handles.

OSHA has issued a poster listing steps all workplaces can take to reduce the risk of exposure to coronavirus. The poster highlights 10 infection prevention measures every employer can

implement. While posting this poster is not mandatory, it may assist the employer in showing that it took good-faith steps to comply with OSHA’s workplace safety requirements. Good Faith Efforts to Comply with OSHA Standards In guidance issued on April 16, OSHA stated that it will evaluate whether an employer made good faith efforts to comply with applicable OSHA standards by thoroughly exploring all options to comply. An employer should be able to demonstrate a good faith attempt to meet the applicable requirements as soon as possible following the re-opening of the workplace. Where the employer cannot demonstrate its good faith efforts to comply, a citation may be issued. OSHA has also emphasized that the most current CDC guidance should be consulted in assessing potential workplace hazards and evaluating the adequacy of an employer’s protective measures for workers.

CDC Guidance on Workplace Health and Safety

2. If it has been more than seven days since the person who is sick visited or used the facility, additional cleaning and disinfection are not necessary. 3. For electronics – such as tablets, touch screens, keyboards, remote controls, and ATMs – consider using wipeable covers. If there are no manufacturer’s instructions for cleaning and disinfecting electronics, use alcohol-based wipes or sprays containing at least 70% alcohol and dry the surfaces thoroughly. 4. Employers should develop policies for worker protection and provide training to all cleaning staff on-site before assigning cleaning tasks (including when to use personal protective equipment (PPE); what PPE is necessary; how to properly put on, use, and take off PPE; and how to properly dispose of PPE). 5. Ensure workers are trained on the hazards of the cleaning chemicals used in the workplace per OSHA’s Hazard Communication Standards. 6. Comply with OSHA’s standards on bloodborne pathogens, including proper disposal of regulated waste and PPE.

The CDC has issued a significant amount of guidance regarding how businesses and employers should respond to the pandemic. Some key points are as follows:

Davidson French, Member Bass, Berry & Sims jfrench@bassberry.com www.bassberry.com

1. If an employee was present at the job site within 48 hours of testing positive, employers should follow the CDC’s cleaning and disinfecting guidelines. Cleaning staff should clean and disinfect all areas used by the ill person, especially frequently touched surfaces.

Lymari Cromwell, Counsel Bass, Berry & Sims lymari.cromwell@bassberry.com www.bassberry.com

Coronavirus Resources on FordHarrison.com FordHarrison is closely monitoring the spread of Coronavirus and associated federal and state legislation and we remain committed to ensuring the health and welfare of our clients, employees, and communities while continuing to provide our clients with the highest quality service as well as resources related to the pandemic.

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Policies to Create or Update Before Employees Return to Work By DONNA K. FISHER

As businesses start to reopen, now is the time to review your employee handbooks to determine what new policies to create or update to address the impact of COVID-19. Create a Safety Protocols Policy

While governmental authorities and local health departments will mandate many of the safety requirements, employers should develop their own written policy on safety protocols. These policies should address screening procedures, steps to take if an employee is symptomatic or tests positive for COVID-19, whether face coverings or personal protective equipment (PPE) will be required, and other controls implemented to reduce the risk of transmission among employees. Not only is it important to educate employees on the measures they can take to ensure a safe workplace, but it is also critical to inform employees of the steps the employer is taking to promote workplace safety. The policy should identify a COVID-19 coordinator or coordinators tasked with overseeing the implementation of the safety protocols, keeping up-to-date on federal, state and local requirements, and answering employees’ questions about the safety measures. In addition to the COVID-19 coordinator, the policy should inform employees to whom they may take any complaints or concerns about coronavirus safety. Communicating expectations and addressing employees’ concerns are powerful tools for risk avoidance during the COVID-19 crisis. Create a Temporary Policy on Paid Leave

Employers with fewer than 500 employees who are subject to the Families First Coronavirus Response Act (FFCRA) should create a temporary policy effective from April 1, 2020 to December 31, 2020 to address paid leave under the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). Both Acts apply to full-time and part-time employees. Employees are eligible for leave under EPSLA from the start of employment, but EFMLEA imposes a 30 calendarday eligibility requirement. Full-time employees may use up to 80 hours of EPSLA leave, while part-time employees may use the number of hours they work, on average, over a two-week period. An employee is due 100% of the required rate of pay—capped at $511 per day or $5,110 in total—for leave hours taken because the employee: • Is subject to a federal, state, or local quarantine or isolation order related to COVID-19; • Has been advised by a health care provider to self-quarantine related to COVID-19; • Is experiencing COVID-19 symptoms and is seeking a medical diagnosis. 22

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An employee is due two-thirds of the required rate of pay—capped at $200 per day or $2,000 in total—for leave hours taken because the employee: • Is caring for an individual subject to a federal, state, or local quarantine or isolation order related to COVID-19, or who has been advised by a health care provider to self-quarantine due to COVID-19 concerns; • Is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services. Employees caring for a son or daughter whose school or place of care is closed (or child-care provider is unavailable) due to COVID-19 may be eligible for leave under both EPSLA and EFMLEA. EFMLEA gives employees up to 12 workweeks of job-protected leave with continuation of health insurance. The initial two weeks of EFMLEA are unpaid, although employees may use applicable paid sick leave under EPSLA or accrued paid time under their employer benefits package. The remaining ten weeks are paid at two-thirds the employee’s regular rate of pay. For employers covered under the Family & Medical Leave Act (FMLA), EFMLEA adds a new reason for leave under FMLA, not more weeks. An employee who has already used 12 weeks of FMLA leave is not able to use EFMLEA leave. Temporary paid leave policies should include any employee notice requirements and the documentation required to support the need for leave. Policies should have a non-retaliation provision assuring employees there will be no retaliation for using leave under the FFCRA. Update Your Americans With Disabilities Act Policy

Because COVID-19 symptoms are of short duration, it typically will not be considered a disability under the Americans With Disabilities Act (ADA), as amended. Underlying health conditions and complications from COVID-19, however, may qualify as ADA disabilities. Guidance issued by the Equal Employment Opportunity Commission (EEOC) allows employers to screen employees entering the workforce for COVID-19 symptoms during this pandemic. If employees show symptoms, they may be sent home and required to present a fitness for duty note before returning to work.

If an employee requests an accommodation for a medical condition that is not obvious or already known but puts the employee at higher risk for severe illness from COVID-19, an employer may ask questions and request medical documentation to determine if the employee has a “disability” as defined by the ADA and whether the employee’s disability necessitates an accommodation. As with any request for accommodation, employers must engage in the interactive process. If an employee does not request an accommodation, an employer cannot prevent the employee from working solely because the employee has a disability that the Centers for Disease Control and Prevention (CDC) has identified as placing someone at higher risk. Under the ADA, employers cannot prohibit employees from working unless the employee’s disability poses a “direct threat” to the health of the employee that cannot be eliminated or reduced by reasonable accommodation (absent undue hardship), which is a high standard to meet. Create or Update a Work from Home Policy

The coronavirus crisis has made working from home more acceptable to employers. If your business is conducive to telework, consider creating or updating a work from home policy. Decide whether the policy will be temporary in response to the pandemic or will offer an ongoing level of flexibility for employees. Whether temporary or long-term, work from home policies should contain provisions setting forth the eligibility requirements to work from home and the employer’s expectations for employees who work remotely. Before allowing employees to work from home, employers must determine if the work can be performed from a remote location without jeopardizing

the overall quality and quantity of the work. Work from home policies should outline the conditions necessary to work from home, including such factors as operational and financial feasibility, the ability to access needed documents and equipment, and the ability to protect company data, trade secrets and confidential information. Work from home policies must address measures to ensure cybersecurity. Most employee-owned personal computers lack important malware and encryption protections making them vulnerable to hacking. Employers must decide whether all work is to be performed only on company-owned equipment or whether personal devices may be used. If the latter, policies must protect the employer’s ability to remove all company data from personal devices. Allowing employees to work from home can be an accommodation for those employees with underlying health conditions who are at greater risks from COVID-19. As employers navigate the changed work environment, working from home may provide the best protection for employees as long as it does not adversely affect business operations.

Donna K. Fisher, of Counsel

Ogletree Deakins Memphis donna.fisher@ogletree.com www.ogletreedeakins.com

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Open Enrollment Considerations in Light of COVID-19 By KISHA MOLIERE

For many employers, the spread of COVID-19 required that onsite company operations be suddenly shifted to teleworking due to social distancing. While much has been written about the operational challenges brought on by the pandemic, it is important that we not overlook the impact social distancing may have on this year’s upcoming annual benefits enrollment. Below, we have compiled a list of considerations and tips to help you move forward with your open enrollment, even with stay-at-home orders in place.

The Importance of Keeping Current Employee Contact Information It has always been best practice to keep your employees’ contact information up to date. Unfortunately, many businesses had not, and were subsequently left ill prepared to communicate with employees when “Stay-Athome” style orders were enacted. Developing a strategy to collect and periodically update this information is a must moving forward. Consider letting annual enrollment play a role in this strategy by: • Requiring employees to log into your benefit administration (ben admin) system each year. There are many advantages to mandating that your employees review and sign off on their benefit elections, inclusive of them being able to review and confirm their current contact information. • H aving your ben admin vendor to set the contact information screen as required for new hires and each enrollment period, and require employees to confirm their information before proceeding to elect their benefits. Tip: If you allow employees to make contact information changes in your ben admin system, be sure to extract those changes and update them in your payroll/HRIS system as well.

Altered Methods of Benefits Communication/Education In the past, your company may have printed and handed out benefit booklets at group meetings in the conference or break rooms. Your employees may have even had one-on-one meetings with HR or enrollment counselors. Unfortunately, these options may not be available for this year due to social distancing. Now more than ever, your employees will need to understand the features of their benefits package (including medical, disability and EAP). You’ll need to 24

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develop a strategy to communicate and educate them with social distancing in mind. Consider a combination of the following: • Mail – While this is always an option, it may be cost prohibitive to mail benefit booklets to your entire population. Consider sending post card enrollment reminders instead, with some other methods of communication as well. • Email – If you have been diligent with securing and updating valid email addresses for your employees, this may be an affordable way to send benefit information. • Video/Conference Calls – Establishing video/conference calls, using tools such as WebEx, to conduct group meetings with your employees is a great option that allows you to present the information as you normally would. Tools such as Skype can help facilitate one-on-one virtual meetings with employees to answer their specific benefit questions. • Uploading Benefit Booklets – Uploading your benefit booklet to your company intranet and/or ben admin software can be an extremely cost efficient way to share the information. Tip: You’ll want to ask if your ben admin software allows you to post booklets specific to different employee populations (if applicable) since benefits, contributions and/or eligibility may differ amongst employees of different locations, classes, lengths of service, etc. • Embedding Company or Broker recorded videos – Find out if your ben admin software allows embedded videos in the user interface. If so, consider recording (or having your broker to record) your open enrollment meeting, and integrate it into the enrollment experience. • Decision Support Tools – If you are making major changes to your health insurance benefits (such as adding High Deductible Health Plans), consider utilizing a decision support tool during this open enrollment to assist your employees in their benefit decisions. Inquire whether your current ben admin platform has this technology, and if so, if there are additional costs to activate it. If not, consider stand-alone tools provided by companies such as Jellyvision. • Call Center Capabilities – Your ben admin vendor and/or broker may have relationships with call centers that can handle benefits education

telephonically. This could substitute nicely for employees accustomed to one-on-one enrollment sessions.

Challenges for Benefits Enrollment Many employees are accustomed to completing paper election forms and then submitting them to HR for electronic processing. Others may be familiar with selfenrollment through the company’s ben admin portal, but have always done so via onsite, company computers. Neither of these may be possible this year. The following options can help overcome these hurdles: • Employee Self-Service – Does your ben admin software have an employee selfservice feature that you aren’t utilizing? If so, this is the time to speak with your vendor about what is involved in standing this feature up. Also, is the site “mobile responsive”? In other words, if employees don’t have access to home computers, can they access and enroll on the site via their smartphone/tablet? • Mobile Apps – Does your ben admin software have a mobile app that allows for benefits enrollment? If so, this can be very beneficial for remote employees without access to a computer and/or strong internet connection. Tip: Inquire about push notifications, as this could supplement your benefits communication strategy. • Call Center Enrollment Support – As referenced above, speak with your ben admin vendor and broker to see if they have arrangements with a call center that could handle enrolling employers via phone. If so, are all calls recorded and are conversations documented in the employee’s ben admin record? What are the costs? Tip: Speak with your broker about offsetting call center costs with worksite benefit enrollments. Taking action on the above will set you up for a successful open enrollment, even with social distancing measures in place!

Kisha Moliere

Benefits Administration Practice Leader McGriff Insurance Services Kisha.Moliere@McGriffInsurance.com

Benefits expertise to help manage costs, mitigate risk and engage employees. Strong Carrier Partnerships Innovative Solutions Financial Analytics and Underwriting Valuation Services

Benchmarking Compliance Retirement Plan Consulting Benefits Administration Technology Insurance Placement Strategic Advice Human Resources Advisory Flex and COBRA Plan Administration Communications Regulatory Updates Local Support National Resources Actuarial Valuations and Analysis Employee Engagement Clinical Wellness Benefit Plan Design Strategy

You have our word on it. To learn more, visit McGriffInsurance.com and select Employee Benefits, or call 1-877-682-8510.

Gone Fishin’ (Or Golfing, Or to the Gym):

Spotting FMLA Fraud and Stopping it in Its Tracks By STEVEN A. NIGH

I. FMLA Abuse: Tough to Stop, Even When You Can Spot It Employees who abuse Family and Medical Leave Act (FMLA) leave often pose thorny problems to human resources professionals. Consider the employee who requests intermittent leave, but always uses it at the most “convenient” times, like Fridays or the day after a “big game.” Or consider the employee whose FMLA certification states that he needs two days off per month, but always seems to need four days off per month. You might know in your gut that FMLA abuse is occurring, but hesitate to discipline or discharge because doing so might trigger an FMLA interference or retaliation claim. This article covers some of the options employers can use to ferret out and stop FMLA abuse. Note that although some of these strategies may be helpful for combating leave abuse relating to COVID-19 issues, this article is not intended to specifically cover the amendments to the FMLA spurred by the COVID-19 pandemic. The FMLA issues covered here cropped up before the pandemic and will continue after it passes.

II. One Approach: Requesting Recertification The FMLA’s regulations contain a built-in option for combating FMLA fraud: the recertification process. Typically, an employer may request recertification no more often than 30 days. But there are some situations when the regulations specifically allow the employer to request recertification more frequently than that. These situations include an employee requesting an FMLA extension; the circumstances described by the previous FMLA certification changing significantly; or the employer receiving information that “casts doubt” on the employee’s reason for the certification, or its continuing validity. Would the scenarios above allow the savvy human resources professional to request recertification? They probably would. The employee whose certification says he needs two days off per month, but always takes four? That would likely qualify as “changed circumstances” that permit a recertification request. What about the employee who always uses FMLA at “convenient” times, such as to nab long weekends or follow his college hoops team (during times when we had college hoops)? That leave pattern likely “casts doubt” on the employee’s stated need for leave. Be careful, though, in any potential FMLA fraud situation about automatically jumping to the conclusion that 26

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the employee is abusing leave. Employers are best-positioned to make defensible decisions when they can articulate the details as to why the employee’s leave usage was suspicious. What does requesting recertification provide the employer? For one, it allows the employer to notify the employee’s healthcare provider of the suspicious leave pattern and ask the provider if the health condition and duration of leave are consistent with the leave pattern. Some healthcare providers will refuse to affirm that the employee’s leave pattern is consistent with their health condition. In that case, the employer may deny leave within the parameters of the inconsistency. For example, if the employee is taking four days per month off, but the healthcare provider only affirms the need for two days, then the employer need only grant the two days of leave per month. Even if the healthcare provider supports the employee’s absence pattern, the employee will at least know that the employer is keeping an eye out for appropriate FMLA use. Finally, some employees feel like “the jig is up” when recertification is requested, and simply refuse or fail to complete the recertification paperwork. This is a basis for denying any FMLA leave moving forward.

III. Recertification Didn’t Stop the Fraud: What Else Might Work? Many human resources professionals think of discipline or discharge when the words “employee” and “fraud” are used in the same sentence, and with good reason. But they might hesitate to discipline or discharge an employee who is currently on FMLA leave or recently returned from leave because of the likelihood of interference and retaliation claims. But where necessary, are discipline and discharge allowed in FMLA abuse situations? The answer is a firm “maybe.” Many courts permit employers to use an “honest belief ” defense to FMLA claims, in which the employer can argue that it disciplined or discharged an employee because the employer honestly believed he or she was abusing FMLA leave, even if that ultimately turns out not to be the case. However, keep in mind that this is a defense that has developed across individual court cases, so its winning potential varies from case to case. Additionally, even though the courts have not prescribed exactly what employers must do to prevail with this defense, the consensus seems to be the more investigation prior to discipline, the better. Again, that means do not jump to conclusions: take the time to review the active FMLA

certification, the employee’s attendance records, and any communications from the employee about the reasons for or timing of leave days. Once you have all the facts you can gather from “behind the scenes,” get the employee’s side of the story. This might yield a good reason for the employee’s absence pattern, and in turn, the opportunity to keep a productive employee. It also might yield a story that is demonstrably false, in which case the employer will feel more comfortable cutting ties.

IV. Closing Thoughts FMLA fraud can be tricky to spot and trickier to correct. Some ill-intentioned employees are smart about how and when they use their leave—the court cases even include stories of employees ditching private investigators just like in the movies! But human resources professionals have options:

• Pay attention! Someone (in HR or management) should

LCYFFL00420

be watching for suspicious leave patterns. In any kind of discrimination or retaliation case, including FMLA retaliation, the employer makes its litigation life more difficult by allowing misconduct for a period of time and then “all of a sudden” disciplining or discharging an employee for that misconduct. This step is especially important and sometimes overlooked when an employer uses a third-party administrator for its FMLA leave programs. You won’t be able to correct an abuse you don’t know about!

• Remember the Recert. Employers can request recertification,

even more often than 30 days, when the circumstances underlying the leave request change, or the employer receives information that casts doubt on the employee’s need for leave or pattern of leave usage. The recertification request is a relatively safe approach, as it is built into the FMLA’s regulations.

• “Just the facts, Ma’am.” If you’re thinking of using the honest

belief defense, make sure you get your facts first! The best honest belief defense is one that is grounded in facts that are proven true, but if you turn out to be wrong, you want to be able to show a court that you investigated thoroughly and gave the employee a fair shake.

The guidelines above will help you deal with many FMLA abuse situations. But each of these situations is highly individualized and often complicated, so it is a good idea to call counsel for assistance.

Steven A. Nigh, Associate Littler Charlotte Office snigh@littler.com www.littler.com

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Employees with Diabetes & Obesity are at Higher Risk for Severe Illness if They Contract COVID-19 By CRISTIE TRAVIS

It is clear that your employees with diabetes and obesity are at higher risk for severe illness if they contract COVID-19. Almost 50% of those hospitalized with COVID-19 have obesity and almost 30% have diabetes. In addition, those with obesity and diabetes are at higher risk for hypertension and cardiovascular disease which are also top underlying conditions associated with hospitalization. Conditions present in adults hospitalized with coronavirus adult patients in US

Almost 50% of those hospitalized with COVID-19 have obesity and almost 30% have diabetes.

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You can support your employees and improve the effectiveness of your health benefits by taking the following actions:

Share the CDC recommendations for actions those at risk can take to help lessen the severity of illness with your employees: See the full-list here. (https:// bit.ly/36vG1RT) Highlights include: reduce trips to pharmacy by keeping an extra supply of medications at home; be sure influenza and pneumococcal vaccinations are up to date; for those with diabetes, monitor your blood sugar regularly, take your temperature daily, and monitor weight since weight loss may be a sign of high blood sugar; those with severe obesity (BMI 40+) should continue to take medication for underlying conditions (such as hypertension) as prescribed.

Remind your employees of their benefits such as personal health coaching, diabetes disease management programs, advocacy and navigation support, telehealth, and nurse advice lines. Both the CDC and American Diabetes Association stress that effectively managing diabetes reduces the likelihood of severe illness.

Consider first dollar coverage for diabetes (and other chronic conditions) medications, tests, and screenings now IRS-approved for high deductible health plans. Removing the financial barriers to needed care, which can be steep in a high deductible health plan, can help your employees better manage their diabetes. See the IRS expanded list here. (https://bit.ly/2zT3HTP)

Participate in MBGH's 2020 focus on obesity and diabetes! MBGH employer members and members of our Health Benefits Peer Roundtable and Health & Well Being Peer Roundtable are eligible to participate. Special projects include working with NCQA on using data to drive strategies; implementing a comprehensive obesity benefit; identifying and filling gaps in benefits and wellbeing programs for those with diabetes; and more.

Cristie Travis, CEO

Memphis Business Group on Health ctravis@memphisbusinessgroup.org www.memphisbusinessgroup.org

Employers: Your Voice Will Help us Advocate for Better Value From Your Health Plan The nonprofit Leapfrog Group is surveying employers on how well their health plan helps employees secure quality health care for themselves and dependents. Provide your input to this national report for health plans. Access the survey here: www.leapfroggroup.org/employersurvey

Your participation is free and confidential.

HR MAG DRAFT to specs_employersurvey.indd 1

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UNLEASHED! BY WILLIAM CARMICHAEL

be candid, the word ‘unapologetic’ in the sub title was a provocation for me. Like waving the proverbial red handkerchief

as we thought. Fortunately, Frie and Morriss also provide solutions. To quote our authors, “Again, leadership, at its core, isn’t about you. It’s about how effective you are at unleashing other people.”

in front of a bull, how dare the authors use such an enticing catch word! Enticing or not, Unleashed: The Unapologetic Leader’s Guide to Empowering Everyone Around You by Frances Frei and Anne Morriss is a must-read. It approaches the topic of leadership in today’s uncertain milieu from an entirely new perspective and does so with wit, candor, and an unflinching dose of reality. This is as a refreshing and honest look at leadership today that I have read in some time. And for those of us who dare to lead, it is a wake-up call.

IT’S NOT ABOUT YOU! Very early in Unleashed, a startling reality took hold that was hauntingly accurate. Anyone who has ever spoken in front of an audience knows all too well the nervousness that can take hold and especially when we are new to making a presentation. And the reason? Somehow, we allow the presentation to be about us rather than about the message we want to present. This same foible can apply to us when we lose sight of the true purpose of why we wanted to lead others in the first place. Here is where years of teaching leaders how to become better leaders becomes so pertinent as authors Frei and Morriss explain the ten warning signs of how leaders simply “get in their own way” and the solutions they advise for eliminating self-distraction. Although we never like to look at our own faults, I will freely admit ownership to several of the signs presented! Another question our authors pose early in the book focuses on leadership as a perception. Yes, leadership does matter . . . but to whom? Here, Unleashed doesn’t pull any punches. It lays bare many misconceptions we as leaders have about ourselves. That maybe, just maybe, we are not as effective of a leader

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THE ABSENT LEADER Unleashed has an interesting dichotomy to it but with a singular message; that leadership must have a presence even when that leader is absent. True enough, strategy and culture does matter but so does trust, love, and belonging. This contrast is affirmed by our author’s practical definition of leadership as, “leadership is about empowering other people as a result of your presence- and making sure that impact continues into your absence.” Many examples of this are given throughout the book but none more impactful as trust, love, and belonging being a tangible leadership currency. Frei and Morriss also offer a different worldview on leadership. They argue that popular leadership advice too often glosses over the most important thing we can do as a leader: build others up. Again, really effective leadership isn't about you. It's about how effective you are at empowering other people—and making sure this impact endures even in your absence. As Frei and Morriss show through inspiring stories from “ancient Rome to present-day Silicon Valley, the origins of great leadership are found, paradoxically, not worrying about your own status and advancement, but in the unrelenting focus on other people's potential.” I was also intrigued by the author’s comments regarding the importance of leadership authenticity and organizational reliance upon best practices. Oh, by the way, the ‘unapologetic’ comment I opened with refers to defying those instinctive tendencies that make us less effective as leaders.

STRUCTURE AND LAYOUT Unleashed: The Unapologetic Leader’s Guide to Empowering Everyone Around You contains four elements that make it an excellent read;

One, written in two parts, each of its six chapters purposefully stands on its own. By that, I mean there is much each topic has to teach us and not just as leaders, but as caring individuals. For example, in Chapter 2’sTrust, Frei and Morriss discuss the phenomenon called the Common Informational Effect, which honestly, I was not familiar with but now can see its impactful relevance when building team dynamics. And in Chapter 4’s- Belonging, where our authors creatively review the four steps every Human Resource Professional, as well as organizational leader for that matter, should commit to.

Legal Challenges are Coming at HR Professionals from Every Direction

Two, there is a logical flow of topics, ideas, suggestions, and diagrams that readers will appreciate. Also beneficial are the Questions for Reflection which conclude each chapter. And without all the technical jargon that can often render leadership books problematic, Unleashed contains sensible concept relevance and immediate application. Three, the leadership problems discussed throughout the book quickly become real, relatable, and most importantly, resolvable with the action steps our authors make available. Lastly, Frei and Morriss do not shy away from controversial subject-matter; the boss’s inappropriate humor, LGBT issues- commonly referred to as “queering” issues. Here, our authors make it very clear that being proactive has its advantages and that there are real solutions.

WHO WILL BENEFIT MOST FROM THIS BOOK? Organizational leaders and managers at all levels. Human Resource Professionals

That’s Why Rainey Kizer Makes Your Business Our Concern As the issues facing HR executives become more frequent, challenging, and complex each year, you need a law firm that provides advice invidualized for you specific needs. This is why you should know the employment law attorneys at Rainey, Kizer, Reviere & Bell, PLC. For over 40 years, our AV-rated firm has advised businesses, non-profit organizations and government agencies on all aspects of employment law. To learn more, please call.

ABOUT THE AUTHORS:

Frances Frei is a professor at Harvard Business School. She recently served as Uber’s first senior vice president of leadership and strategy. Anne Morriss is the executive founder of The Leadership Consortium, a leadership accelerator that works to build inclusive executive teams and elevate diverse leaders to senior leadership roles.

Memphis

Nashville

901.333.8101

615.613.0442

Jackson

Chattanooga

731.423.2414

423.756.3333

William Carmichael, Ed.D

Professor | Strayer University William.carmichael@strayer.edu www.strayer.edu

Tennessee does not certify specialists in the area of employment law.

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2020 GUIDE

SUPER

LAWYERS

IN LABOR & EMPLOYMENT LAW HR Professionals Magazine congratulates 2020 Super Lawyers! Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations. We are presenting the 2020 Super Lawyers in Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, North Carolina and Tennessee. Special thanks to our sponsors and contributors!

Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. Premier client service, as outlined in the firm’s Client Pledge, is one of the firm’s top priorities and a cornerstone of its core values. U.S. News – Best Lawyers® “Best Law Firms” has named Ogletree Deakins a “Law Firm of the Year” for seven consecutive years. In 2019, the publication named Ogletree Deakins its “Law Firm of the Year” in the Employment Law – Management category. Ogletree Deakins has more than 850 attorneys located in 53 offices across the United States and in Europe, Canada, and Mexico. The firm represents a diverse range of clients, from small businesses to Fortune 50 companies. www.ogletree.com BIRMINGHAM Gordon L. Blair devotes a substantial portion of his practice to general litigation, regularly representing colleges and universities, contractors, healthcare providers, manufacturers and retailers in personal injury, construction, tort, and contract litigation. However, the majority of Blair's practice is focused on the representation of employers in workplace related matters, ranging from administrative proceedings to federal litigation. He routinely counsels employers on day-to-day employment decisions, conducts training seminars, and works to develop effective workplace policies and procedures. Blair lectures to human resources personnel and related groups on topics such as the Family and Medical Leave Act and the Alabama Workmen’s Compensation Act.

T. Scott Kelly provides practical solutions for federal contractors and subcontractors across the United States to comply with the ever-changing affirmative action obligations imposed by doing business with the federal government. He advocates on behalf of his clients in compliance evaluations and administrative enforcement actions triggered by the United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). Kelly assists manufacturing, transportation, construction, food processing, hospitality, healthcare, and financial institutions with creative solutions for preparing, managing, and defending their affirmative action programs and related matters, including jurisdictional analyses and preventative strategies.

Brian R. Bostick has practiced exclusively in the area of labor and employment law in the Birmingham area since 1997, and has been with Ogletree Deakins since 2000. He has considerable experience representing employers in employment-related litigation in federal and state courts. He has defended employment lawsuits pending before each of the federal districts in Alabama, the Alabama Supreme Court, the Eleventh Circuit Court of Appeals and the United States Supreme Court. He has also successfully represented employers before numerous administrative agencies such as the Equal Employment Opportunity Commission, the Department of Labor, and the Mine Safety and Health Administration.

Peyton Lacy, Jr. has decades of experience in labor and employment law. He graduated with a J.D. degree from the University of Alabama in 1965, where he served as editor-in chief of the Alabama Law Review and a member of the Farrah Order of Jurisprudence. In addition to a traditional labor law practice, Lacy defends individual and class employment litigation cases in both federal and state court, handles traditional labor law matters for employers including negotiation and arbitration, and counsels employers on preventive measures in both areas.

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James A. Patton, Jr. is a shareholder in the Birmingham, Alabama office of Ogletree Deakins and a member of the firm’s Affirmative Action/OFCCP Compliance Practice Group. He focuses his practice on assisting federal contractors and subcontractors to comply with legally-mandated employment and reporting obligations, as well as defending compliance reviews and enforcement proceedings brought by the Office of Federal Contract Compliance Programs (OFCCP) and the United States Department of Labor (USDOL). In addition to focusing on affirmative action compliance, he has spent more than twenty years advising companies on a variety of workplace.

James C. Pennington is the Managing Shareholder and a founding member of the Birmingham Office of Ogletree Deakins. For more than two decades, he has represented employers in a wide range of labor and employment law matters, including administrative agency charges, federal and state court litigation, union campaigns and collective bargaining. He helps employers avoid workplace disputes by providing management training and developing defensive documentation such as effective employee handbooks, dispute avoidance and resolution policies, and drug and alcohol testing policies and procedures. He is known for helping employers navigate through the intersections of disabilities and leave laws.

MEMPHIS Thomas L. Henderson is a shareholder in the Memphis office. He has represented management in employment and labor relations matters for over 30 years. He has served as lead counsel in numerous jury trials in state and federal courts across the nation. His trial experience includes defending state and federal discrimination and harassment lawsuits, class actions, FMLA claims, ERISA and benefit claims, trade secret and unfair competition matters, and related state law claims. He also handles NLRB elections and unfair labor practice proceedings.

NASHVILLE Keith Frazier represents management in the area of labor and employment law, with an emphasis on employment litigation, including collective actions under the FLSA and the ADEA. Frazier has been counsel in over 20 jury trials, and he has experience trying collective actions in federal court before a jury and in an arbitration setting. He has also handled over 40 arbitrations arising under collective bargaining agreements. In 2005, Keith was elected to the Firm’s Board of Directors and served until 2011. He also served a three year term on the Firm’s Board from 2014 until 2017.

Jonathan O. Harris is Managing Shareholder of the firm’s Nashville offce. He represents management in a wide variety of employment-related matters. In addition to defending single-plaintiff lawsuits, he also represents employers in class and collective actions. He has handled countless EEOC charges and defended employers in lawsuits brought by the EEOC, including matters where the agency has asserted systemic claims on behalf of multiple claimants. He is a frequent speaker on topics relating to all types of employment issues, and he works with clients on preventive strategies to avoid discrimination, retaliation and other employment claims.

Timothy A. Palmer is a shareholder who works in both the Nashville and Birmingham offces, and is a founding shareholder of the Birmingham offce. He is an experienced litigator who focuses his practice on both employment litigation and general civil litigation in state and federal courts. His practice focuses on the defense of employment litigation including discrimination claims, defense of personnel actions, and defense of employee benefit disputes. He is a frequent speaker for the Alabama Bar Institute on Continuing Legal Education, where he has lectured on jury selection procedures and employment litigation.

Jennifer S. Rusie is a shareholder in the firm’s Nashville office who represents management in the area of labor and employment law with an emphasis on employment litigation, including cases involving Title VII, the ADAAA, ADEA, FMLA, FLSA, common law wrongful termination, and restrictive covenants. Additionally, approximately half of Jennifer’s practice is devoted to Title III of the ADA – both architectural issues and website accessibility. In addition to representing and counseling employers in labor and employment matters, Jennifer represents companies in general litigation matters. Jennifer has extensive experience investigating and litigating issues of sexual harassment in the workplace.

William S. Rutchow is a shareholder in the firm’s Nashville offce who currently concentrates his practice in three areas: Workplace Safety and Health, Unfair Competition/Trade Secrets, and Employment Litigation. He also has experience in commercial litigation, personal injury litigation, and NLRB proceedings. Rutchow is a member of the firm's Ethics Committee, the Unfair Competition and Trade Secrets Practice Group, the Workplace Safety Practice Group, the Traditional Labor Law Practice Group and the Litigation Practice Group. He is a frequent author and speaker on employment-related topics.

Elizabeth S. Washko is a shareholder in the Nashville offce and co-chair of the firm’s Pay Equity Practice Group. She represents management in a wide variety of employment matters, at the agency level and in litigation. She has experience defending employers in FLSA collective actions, pay discrimination cases (individual plaintiff and class/ collective actions) and conducting proactive pay audits and pay equity analyses. She has served as lead counsel in jury trials in state and federal courts. Washko also conducts training on employment issues, drafts and reviews employment policies and agreements, and conducts harassment and other types of investigations for employers.

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ATLANTA Margaret H. Campbell is a shareholder in the Atlanta offce and has practiced employment, litigation, and labor law at Ogletree since 1981. An all-around labor and employment lawyer, Meg is particularly recognized for her experience in complex class and collective action litigation, whistleblower investigations and litigation including Sarbanes-Oxley and Dodd-Frank cases, appellate practice, and restrictive covenant law. She has litigated single plaintiff, multi-plaintiff, and class and collective action jury and non-jury cases in federal and state courts around the country.

Craig Cleland defends employers in litigation—including class and collective actions—and counsels them in risk management and compliance. He is the former Chair and Co-Chair of the Firm’s Class Action Practice Group. He is also an Adjunct Professor of Law at Georgia State University College of Law, where he teaches Complex Litigation. He has been recognized as a BTI Client Service All-Star three times—one of a small number of employment lawyers in the U.S. who “combine exceptional legal expertise with practical advice, business savvy and creative, effective solutions.”

Homer L. Deakins, Jr. was Managing Shareholder of Ogletree from 1985-2000. He has extensive experience in all aspects of labor relations law and has handled some of the largest and most highly publicized union elections in the United States on behalf of employers. This includes representing management in two major union elections in foreign owned automobile assembly plants in the United States, where the company won those elections by large margins. He also has created and participated in highly sophisticated labor relations training programs for management personnel and has a wealth of experience in guiding employers through challenging labor-related issues.

Gregory J. Hare is Managing Shareholder of the Ogletree Deakins Atlanta office and has been an employment lawyer at Ogletree his entire career, ever since 1991. He assists companies with human resources and employment related litigation matters, including wrongful termination claims, sexual harassment, employment discrimination, employment contracts, trade secrets, and non-compete agreements. He advises clients on a wide range of human resources topics, such as employee discipline and discharge, severance planning, independent contractor classifications, wage payment, family and medical leave, disability law, military leave, joint employment issues, affirmative action and reductions in force.

At Bass, Berry & Sims, positive human relationships and interactions drive business success. Our Labor and Employment team works with public and private companies across a variety of industries, ranging from Fortune 500 companies to small locally owned businesses. As experienced litigators, the team defends employment cases and works with employers to avoid litigation on the front end through day-to-day counseling and HR training. Our attorneys are regularly involved in matters involving discrimination, retaliation, wrongful discharge, non-competes, FMLA, wage and hour, defamation, employee misclassification and a myriad of other traditional labor issues.

Tim Garrett of Bass, Berry & Sims helps employers solve complex issues related to all aspects of labor and employment law, providing in depth counseling and developing creative solutions to underlying business issues. He is an experienced trial lawyer, defending employers of all sizes in employment litigation claims across the country. Tim has been recognized by Mid-South Super Lawyers for many consecutive years (2006-2019), along with Best Lawyers in America® and Chambers USA. This recognition paired with his experience has earned him a national reputation for counseling employers through the maze of complex employee issues.

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Wimberly Lawson Wright Daves & Jones PLLC, with offices throughout Tennessee, has a defense practice focusing primarily on Labor and Employment Law, Workers’ Compensation, Immigration, and General-Liability/Commercial-Defense claims on behalf of businesses, management, insurers, and governmental entities. The Firm is a successor to the Labor Law practice of the former Mitchell, Clarke, Pate, Anderson & Wimberly, which was founded in 1948 and known for its connections to “Gone with the Wind” and the Mitchell family. Wimberly Lawson consistently strives to deliver the highest level of legal services in a timely, cost-effective, and ethical manner. The Firm is known for its well-proven approach to preventive maintenance, and for its extensive litigation practice which includes proceedings and trials involving all levels of State and Federal courts and government agencies.

Fredrick R. Baker is a Member in the Cookeville, Tennessee, office of the Firm. His practice includes an emphasis in workers’ compensation defense and employment discrimination, as well as ADA and FMLA compliance. Fred is Editor of the Tennessee Workers’ Compensation Handbook (M. Lee Smith Publishers), and Legislative Co-Chair of Upper Cumberland SHRM. He is Tennessee’s representative for the National Workers’ Compensation Defense Network. Fred has an AV Preeminent® Rating from Martindale-Hubbell, and is also listed in The Best Lawyers in America® in the field of Workers’ Compensation Law/Employers, and in Mid-South Super Lawyers in the area of Workers’ Compensation.

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At Littler, we understand that workplace issues can’t wait. With access to more than 1,500 employment attorneys in over 80 offices around the world, our clients don’t have to. We aim to go beyond best practices, creating solutions that help clients navigate a complex business world. What’s distinct about our approach? With deep experience and resources that are local, everywhere, we are fully focused on your business. With a diverse team of the brightest minds, we foster a culture that celebrates original thinking. And with powerful proprietary technology, we disrupt the status quo – delivering groundbreaking innovation that prepares employers not just for what’s happening today, but for what’s likely to happen tomorrow. For over 75 years, our firm has harnessed these strengths to offer fresh perspectives on each matter we advise, litigate, mediate, and negotiate. Because at Littler, we’re fueled by ingenuity and inspired by you. MEMPHIS

CHARLOTTE

Office Managing Shareholder and Traditional Labor Practice Group Co-Chair, Tanja L. Thompson dedicates her practice to representing companies in traditional labor law. National Fortune 500 companies as well as local employers across various industries, such as manufacturing and healthcare, seek her expertise in remaining union-free and in managing their union-represented workplaces. Union-free efforts include campaigns, comprehensive union vulnerability assessments, human relations audits, communication strategies, and positive employee relations training.

Jerry H. Walters Jr. has practiced management-side employment and labor law exclusively since 1997 and provides litigation and counseling services on a wide variety of employment and labor issues. He represents employers and management in employment discrimination, harassment, retaliation, and wrongful discharge cases, among others. Jerry also has special expertise in defending collective and class actions involving FLSA and state wage and hour claims, as well as traditional labor matters. He has successfully handled cases before federal and state courts, the Equal Employment Opportunity Commission, the United States Department of Labor, and other administrative agencies.

Jonathan E. Kaplan has devoted his entire career to representing management clients exclusively in all areas of labor relations, employment law, and human resources management. His practice spans litigation, training, and consulting, in which he has handled matters in more than 40 states and Canada. Jonathan practices extensively before the NLRB across the country, and also has been admitted specially to practice before the state courts in California, Florida, Illinois, Indiana, Kentucky, Michigan, New York, and Ohio.

Paul E. Prather represents management exclusively in all areas of employment and labor relations, including state and federal employment litigation and in administrative proceedings before the National Labor Relations Board, the Equal Employment Opportunity Commission and the United States Department of Labor.

NASHVILLE For over 35 years, Eric Stevens has provided his clients a common-sense approach to employment, representing employers in administrative investigations, employment litigation, and labor relations matters with a focus in the healthcare and financial institution industries. He represents both union and non-union employers, assisting clients with compliance and litigation avoidance.

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ATLANTA Leslie Dent is an experienced trial lawyer who has successfully tried cases ranging from individual discrimination matters to complex wage and hour class actions. She represents employers in class and collective actions involving off-the-clock claims, challenges to exempt status and other wage-related claims, as well as Rule 23 class actions alleging discrimination claims. Leslie counsels and represents employers on a broad range of employment law issues, including discrimination, harassment, retaliation, and leave laws. She has extensive experience conducting and supervising internal investigations and defending whistleblower and retaliation claims, including Dodd Frank and False Claims Act claims.

L. Traywick Duffie represents corporate clients in a broad range of employment and labor law, including employment litigation, union organizing, wage and hour and Employee Retirement Income Security Act matters. He has successfully defended numerous class and collective matters and countered union organizing campaigns in more than 40 states.

Daniel E. Turner counsels and represents employers in all aspects of litigation in employment law issues, including discrimination, harassment, retaliation, wage and hour, and leaves of absence. Serving as lead counsel in more than 70 class and collective actions throughout the country, he has litigated cases under Title VII and Section 1981 of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Fair Labor Standards Act (FLSA), and various wage and hour laws. Dan's extensive litigation practice also includes state law tort, contract, restrictive covenant claims, and various types of civil rights litigation. He has jury and non-jury trial experience in both federal and state courts.

BIRMINGHAM Janell Ahnert's practice encompasses all facets of employment law, specifically in representation of management in both employment counseling and employment litigation. Janell handles a variety of employment law matters in state and federal courts and has broad experience defending employers accused of harassment and discrimination in federal court. She has litigation and counseling experience in numerous areas of employment law, including issues involving wage and hour claims, harassment, discrimination, and whistleblowing.

Charles A. Powell has represented employers throughout the Southeast against employment discrimination and harassment, non-competition and wage and hour litigation lawsuits for more than 23 years. He has a strong record of successfully defending employers against various employment and labor law claims.

Office Managing Shareholder Jay D. St. Clair has represented clients in employment and labor law matters for more than 30 years, including discrimination, harassment and retaliation claims; labor management relations; wage and hour regulations; and occupational safety and health.

LEXINGTON LaToi D. Mayo has advised, counseled and defended employers in regard to labor and employment matters for over 18 years. Most recently, LaToi has developed extensive skills in enforcing employment related arbitration agreements, defending and managing wage and hour class actions and advising employers on state and federal wage and hour compliance issues. She also routinely assists employers with respect to diversity, discrimination, and leave issues. She works frequently with hospitality and service related groups, manufacturers, health care facilities, financial institutions and local city governments.

Siskind Susser PC is one of the largest immigration law firms in North America. Headquartered in Memphis, TN, our attorneys have experience handling all aspects of American immigration and nationality law. Siskind Susser also assists clients with immigration matters outside the US. We work with many of the world’s top immigration specialists, and we assist companies and individuals with all manner of immigration law issues, including cases before the government.

Ari J. Sauer represents corporate and individual clients in all areas of U.S. immigration law. Mr. Sauer assists businesses to obtain visas, permanent residence and citizenship for their employees and their families. Mr. Sauer also assists U.S. citizens and Permanent Residents with sponsoring their family members for immigrant and nonimmigrant visas, as well as assisting individuals to become US citizens. Mr. Sauer regularly answers questions on immigration law in his blog, The Immigration Answer Man.

Greg Siskind is a founding partner of Siskind Susser, PC – Immigration Lawyers and has been practicing law since 1990. Greg began practicing law when he was 22 after receiving his bachelor’s degree from Vanderbilt University and his law degree from the University of Chicago. Greg was the first immigration lawyer ever photographed for the cover of the American Bar Association Journal and he has been interviewed by more than 100 publications including USA Today, The Wall Street Journal, The New York Times, Time, NPR’s All Things Considered, National Law Journal, Forbes, Modern Healthcare.

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FordHarrison is a labor & employment firm with nearly 200 attorneys in 29 offices, including three affiliate firms. The firm has built a national legal practice as one of the nation's leading defense firms with an exclusive focus on labor law, employment law, litigation, business immigration, employee benefits and executive compensation. Through its global practice group and membership in the global employment law firm alliance, Ius Laboris, FordHarrison provides clients that have multinational operations with a broad range of services related to labor and employment law in over 50 countries throughout the world. FordHarrison is committed to our FH Promise, a set of principles that guides our firm in the delivery of legal services and client communications. For more information on FordHarrison, visit fordharrison.com. To learn more about Ius Laboris, visit iuslaboris.com. MEMPHIS

ATLANTA

Louis P. Britt III – Partner | Louis Britt is the regional managing partner for FordHarrison's Memphis, Nashville and Dallas offices. He concentrates his practice on employment litigation and advice, representing private and public employers in a broad range of employment matters. Louis handles employment discrimination and harassment cases (Title VII, ADA, ADEA and FMLA), wage/hour matters, enforcement and defense of restrictive covenants contained in employment agreements, and employment-related torts. He is experienced in complex and class action litigation, and has tried cases in state and federal courts across the country. Louis has extensive experience in public sector representation in both litigation and collective bargaining.

Patricia G. Griffith – Partner | Patricia Griffith concentrates her practice on employment litigation, including individual and class action discrimination and harassment cases, employment contracts, wage/hour claims, and other employment-related actions. She tries cases in federal and state courts and before administrative agencies and arbitrators. Patricia has substantial jury and class certification experience. She is adept at mediating disputes, reducing the likelihood of protracted litigation, and serves as an arbitrator for the State Bar of Georgia and private parties. Patricia serves on the Board of Directors for the Atlanta Shakespeare Company, and is a past Chair.

Herbert E. Gerson – Of Counsel | Herb Gerson focuses his practice on managing all areas related to traditional labor and employment issues both local and international. He devotes much of his practice to counseling clients on avoiding employment discrimination claims and developing a positive work environment. Herb has written numerous articles on labor and employment matters, is a frequent speaker on labor and employment matters and co-chaired the Labor and Employment Committee of the Litigation Section of the American Bar Association. Herb is a graduate of Leadership Memphis.

CHARLOTTE Julie K. Adams – Partner | Julie Adams concentrates her legal practice on the representation of management in labor and employment law matters and represents employers in the retail, hospitality, technology, manufacturing and healthcare industries, among others. She has represented clients in state and federal courts, and has handled administrative charges before state and federal administrative agencies including the Equal Employment Opportunity Commission, the U.S. Department of Labor, the North Carolina Department of Labor, the North Carolina Industrial Commission, and the North Carolina Employment Security Commission. She is also adept at counseling employers to reduce the risk of potential litigation and provides advice on the business and legal ramifications of day-to-day employment decisions Angela B. Cummings – Partner | Angela has exclusively practiced employment law on the side of management for twenty years. She litigates federal and state court cases arising under Title VII, the ADA, the ADEA, the FMLA, the FLSA, Sarbanes-Oxley, and other federal and state employment laws. Angela also successfully represents employers in arbitrations, mediations and conciliations. Angela has experience trying both federal and state court cases before juries. She also routinely represents employers in arbitrations, mediations and conciliations. Angela has experience trying both federal and state court cases before juries. She also routinely represents employers in arbitrations, mediations and conciliations. Angela successfully handles state and federal administrative agency charges and complaints (including those filed with the EEOC, USDOL and NCDOL). 38

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Jeffrey D. Mokotoff – Partner | Jeff Mokotoff has a broad employment law practice including drafting and litigating executive, arbitration and non-compete agreements, as well as litigating collective and class actions in state and federal courts. He is Co-Chair of FordHarrison’s Non-Compete, Trade Secrets and Business Litigation practice group, and established the firm’s Non-Compete News newsletter. Jeff also Chairs FordHarrison’s relationship as the sole US member of the global employment law firm alliance, Ius Laboris. Ius Laboris is the leading international employment law practice combining the world’s foremost employment, labor and pension law firms with nearly 1400 legal practitioners in over 50 countries. Frederick L. Warren III – Partner | Rick Warren handles all aspects of labor and employment law, including traditional labor law, employment litigation, wage and hour matters and workplace safety and serves as the co-chair of the firm’s restaurant practice group. He litigates cases before federal and state courts and administrative agencies throughout the country. He defends both individual and class action cases and has substantial jury trial experience. Rick also handles numerous mediations and arbitrations. He devotes a significant part of his practice to preventive law and advising clients how to avoid/resolve labor and employment disputes and litigation.

NASHVILLE Mark E. Stamelos – Partner | Mark Stamelos represents businesses on their employment issues, including trade secret, non-compete and restrictive covenant disputes as well as defending employers against harassment, discrimination and retaliation claims. Mark is the office managing partner for FordHarrison’s Nashville office. He has successfully obtained and defeated temporary restraining orders, preliminary injunctions and permanent injunctions for clients involved in the technology, healthcare, securities and financial services, transportation, automotive, electronics and advertising sectors. Mark also has litigation, arbitration, counseling and jury and bench trial experience involving defending claims under state and federal law of unlawful discrimination and harassment, “whistle-blower” retaliation claims, wrongful termination claims and wage and hour claims.

Disruption the Catalyst for Change By BRYAN WOLBERT

COVID-19 caused a massive disruption in our daily lives and businesses. Some are calling it ‘The Big Reset’. Companies reduced to skeleton staff or moved largely to remote work. How we live and do business has changed along with our priorities. The pandemic - whether we like it or not - is a catalyst for change, and this time can and should be used to transform and align your human assets.

Think, a rapidly growing management consulting firm that works closely with middle-market companies and their executives, is seeing its strategic hiring business flourish even in the midst of pandemic. Bryan Wolbert, Executive Vice President and Chief Operating Officer of the Baltimore-based firm answers a few questions that have been on the minds of hiring managers across the nation.

While remote work is the norm in many industries – it’s new for some companies. It is possible with today’s technology for workers to be just as productive remotely as when they are in the office. Some key things to think about when shifting the workforce to remote are making sure you have the technology in place that will enable your team to be effective but also enable folks to continue to be engaged with each other. One example of this is reliable video conferencing software. Not only is face to face important when doing business – it’s important to make sure our employees don’t lose the human element they love about the workplace – don’t be afraid to hold video happy hours – we’ve done so very successfully with both clients and employees. Security is also a key concern when shifting to a full remote workforce. Do you have the right protections in place when your entire staff is using home networks that you don’t control or really know anything about? The right, secure VPN software will help with this. Bottom line – a remote workforce doesn’t have to be scary – but if you’ve never done it, leverage the experience of those who have, and it may even boost productivity!

Q: The pandemic caused a disruption to businesses that was unavoidable, disruption is needed to spark change, do you think HR teams will take this opportunity to strategically align their human assets?

Q: With constrained budgets but pressure to return business to pre-pandemic productivity, are there benefits for businesses to consider contractual staff vs. permanent?

This is an excellent time for HR Directors and hiring managers to look at their current workforce plan to assess current operational state with future needs as recovery takes place. Are the overarching business objectives clear? Have these objectives been communicated to staff so they can align their goals? Do your current employees have the skill sets needed to grow into future roles of the organization? These are all things that should be investigated and considered to optimize your talent pool.

No two businesses are the same therefore what works well for one may not work for the other during this recovery period. However, businesses hit hardest may consider contractual staff to offload the benefit burden, increase flexibility, and tap into a highly qualified talent pool that can be brought on quickly often with less red tape. Many organizations are currently operating under a hiring freeze, this often pertains to permanent hires and not contractual or temporary employees. For organizations needing resources without the ability to permanently hire, contractual hiring may be the loophole HR Directors can use to get over the hump.

Think started strategic hiring to find the right high-caliber employees for its own consulting teams. Now through the strategic hiring division, 75% of our candidate recommendations are hired. We attribute this success to a rigorous vetting process making intelligent hires that strategically align with the overall business objectives of the open role.

Q: What are the benefits of strategically aligning your staff with business future growth?

Many times when hiring, especially when using an outside agency, a challenge is that hiring is short-sighted and doesn’t take into account both what is needed currently in a role and where we think that role will go in the next 1, 2, 5 years. To strategically align a hire with this type of forethought and planning, it’s important to work with experts who understand the skills and aptitude to not only handle the current need but to map a clear path to the more strategic goal for a role.

Q: Even before the pandemic, many workplaces were considering flexible work schedules. What do businesses need to consider when transitioning to remote work?

The bottom line here is that you’ve been disrupted by COVID and your staff doesn’t look like it looked 60 days ago – you may not be able to rebound on your own and you cannot trust that to the traditional, commoditized staffing industry. Think has made its name managing the toughest projects and organizational challenges for clients of all sizes across many industries. When it’s time to figure out your strategy for hiring in the wake of COVID it is this level of expertise and experience that will assure defined role(s) and candidates that meet your need. Learn more about us at thinksi.com.

Bryan Wolbert, Executive Vice President & Chief Operating Officer Head of the Think Strategic Hiring Group bwolbert@thinksi.com Phone: 410.624.7216 www.HRProfessionalsMagazine.com

After 15 Years (and a Pandemic),Will 2020 Bring

Health Care Worker Immigration Reform?

It The estimated green card wait for doctors from India is an astonishing 15 to 20 years. 40

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By GREG SISKIND

took a global pandemic, but it looks like after 16 years, Congress is serious about passing legislation to address the dysfunctional health care worker immigration system. There are several bills gaining traction and, in this issue, I’ll look at a few of them including the changes they would bring and their odds of passing. The move by Congress to address front line health care workers in the COVID-19 crisis has precedent literally from the front lines. In every war since the World War I, the United States has granted immediate citizenship to foreign soldiers who fought with the US military. President Trump has compared himself to a wartime President, the Surgeon General has called this time our “Pearl Harbor” moment and Dr. Fauci has referred to health care workers as “warriors”. So, the idea of providing people who are risking their lives to protect Americans with immigration benefits isn’t novel. As of the writing of this article, there are three legislative efforts aimed at benefiting health care workers. The one that has been around the longest is Senate Bill 948 (HR 2895 in the House). The bill is titled the Conrad State 30 and Physician Access Reauthorization Act and it is focused specifically on doctors from abroad (referred to commonly as international medical graduates or “IMGs”). Versions of this bill have been introduced in prior sessions of Congress and it is not specifically focused on COVID-19. Rather, it’s addressing the long-term physician shortage in the US and ensuring that health shortages areas across the US have access to IMGs who are critical to ensuring access to enough doctors. Rural areas of the US have benefited from the J-1 waiver program for American-trained IMGs for decades. But the program is hampered by a number of problems. The bill addresses many of those. First, it makes the Conrad 30 J-1 program permanent. This program allows all 50 state health departments to sponsor up to 30 IMGs per year to come work for a minimum of three years in their state’s shortage areas (often rural towns and inner-city neighborhoods). Doctors are incentivized because they can bypass the normal requirement to leave the US for at least two years upon completion of their residency or fellowship training. The bill also expands the number of Conrad slots to 35 and it provides various technical fixes to ensure IMGs and their employers can more easily comply with the program requirements.

The bill Conrad 30 bill also fixes another major problem. A high percentage of IMGs are from India (more than 30% by some estimates). Under our rules for getting green cards, a specific allotment is made available for each of various employment-based green card categories including one for doctors (the EB-2 category). Within each of these categories, there’s a limit of 7% on how many of the green cards can go to a particular country’s nationals in a given year. That’s a massive problem for Indians, including Indian doctors. The estimated green card wait for doctors from India is an astonishing 15 to 20 years. A lot of doctors simply are giving up on getting permanent residency and many are leaving the US (something that was rare in the past). The Conrad bill would allow physicians who work for 5 years in an underserved area to bypass the green card quotas.

The politics are tricky when it comes to physician immigration. There’s general bipartisan support, but pro-immigration bills are not moving individually in this Congress. The only way legislation is likely to pass is as part of a larger bill – like a COVID relief package. The House bill passed on the 15th has been described as “dead on arrival” by Senate Republicans as well as the President. But there will likely be growing pressure on the Senate to move a bill. And if that happens, it is possible they will include their own health care immigration provisions – likely the HWRA and/or the Conrad 30 bill. If the Senate should pass a COVID bill, it will have to reach a compromise with the House, including whether to include health care worker immigration language. It is quite possible that the concepts included in the various bills will be blended since they largely complement each other.

The Conrad bill currently has near even bipartisan co-sponsorship (8 Democrats and 8 Republicans in the Senate and 51 Democrats and 45 Republicans in the House).

Should Congress pass health care worker immigration legislation, it will be the first time any pro-immigration legislation has passed in 15 years. And, of course, President Trump would need to sign the legislation. However, it is likely that with a proposal involving in excess of a trillion dollars, immigration provisions with relatively strong bipartisan support are not likely to derail signing the bill.

Another bill that is gaining traction is S.3599, the Healthcare Workforce Resiliency Act (the “HWRA”), a bipartisan bill sponsored by some Senate heavyweights. The lead co-sponsors are Senator David Perdue (R-GA) and Senator Richard Durbin (D-IL). Senator Durbin is the ranking Democrat on the Immigration Subcommittee and the Republican Chair of the Subcommittee, Senator Jon Conryn of Texas, recently signed on as a co-sponsor as well. S.3599 is relatively narrow in its scope. It provides green cards for 25,000 nurses and 15,000 physicians who are currently waiting in green card backlogs. While the Conrad bill would help physicians participating in the Physician National Interest Waiver program, there are 1000s of doctors who would not qualify under that bill and the Conrad bill doesn’t cover nurses. The House recently introduced a bipartisan bill with the same language. Finally, on May 15th, the House passed the HEROES Act, a $3 trillion, 2000-page COVID-19 relief bill, that has an immigration section that includes a completely different set of proposals addressing physician immigration. The House bill provides some green card relief to doctors including a clearing out of doctors who have completed their physician national interest waiver service time as well as a separate section providing 12,000 green cards for doctors, health care workers and medical researchers engaged in the diagnosis, treatment and prevention of COVID-19. The bill has the Conrad 30 program expansion noted above as well as a number of short-term fixes specifically designed to address problems created by the pandemic. For example, rules for providing telemedicine by IMGs are relaxed as are restrictions on moving to COVID-19 hot spots. And employment authorization documents are available to health care workers doing COVID-related work. Each of these proposals essentially addresses different problems in the health care immigration system. The Conrad 30 bill focuses on system issues with physician immigration and is designed to address problems that will exist long after the pandemic is behind us. HWRA likely clears out multi-year green card backlogs for doctors and nurses that have taken years to build. And the HEROES bill attacks short-term issues related to COVID as well as rewarding health care workers who have been on the front lines of COVID with green cards.

Greg Siskind

Siskind Susser PC Immigration Lawyers gsiskind@visalaw.com www.visalaw.com

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DailyPay Study Shows On-Demand Pay Saves Average User $1,000 Per Year, Helps Make Ends Meet

https://bit.ly/DailyPayPD Key findings of first-of-its-kind quantitative study and analysis shows: ● Use of service results in over $1,000, on average, annual savings for workers ● Daily pay benefit substantially decreases reliance on overdraft, payday loans and late fees ● Users are 20x more likely to make large monthly payments, confirming prior academic research As governments across the country are trying to prop up companies and ensure corporate liquidity, concerns are rising about the financial health of the average American worker. Concerned about ensuring liquidity for workers on Main Street during this crisis, DailyPay, the leading on-demand pay provider, just announced a first-of-its-kind quantitative report that analyzes how worker access to liquidity impacts their financial health. “This is a groundbreaking initiative to finally solve the mystery of exactly how and how much on-demand pay impacts the average worker’s bottom line,” said Jeanniey Mullen, Chief Innovative Officer at DailyPay. “DailyPay is excited to release these results to help inform stakeholders, regulators and the average American just how important it is to help workers struggling to live paycheck to paycheck.” The study results, which were taken from surveys of over 1,500 workers using the service, contain multiple key findings. First, the study sought to determine whether on-demand pay is, in fact, being used as a replacement for alternative, more predatory financial solutions, like overdraft fees, late fees and payday loans. 42

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“While each experience is unique, through user reports on amounts saved, we estimate that the average worker saves about [$99] per month by having access to an on-demand pay service,” said Matt Kopko, Vice President of Public Policy at DailyPay. “Our study determined this number by asking workers how much they were spending on things like overdraft fees, late fees and payday loans before and after using DailyPay. Controlling for users who have had access to the service for a considerable people of time, the savings are substantial.” Second, the survey asked people how much they have to continue to rely on financial stopgaps, like late fees and overdrafts, to make ends meet. Before access to services like DailyPay, almost 70% of people had to resort to overdraft and late fees to make ends meet. After having access to the service, that number plummets to just 26%. This means that over half of all people who were previously using these punitive products no longer have to do so at all and, across the board, the frequency of using those products goes down after having access to DailyPay. Heavy users of predatory alternatives were also those most likely to benefit. Before using DailyPay, over 40% of respondents reported that they were charged an overdraft or late fee at LEAST once a month. After using DailyPay, that number plummets to less than 10%. This means that more than 3 out of 4 people who were regularly incurring late fees or overdraft fees no longer do so because of services like DailyPay. “The fact that our service so clearly helps those most in need keep meaningful money in their pockets really validates our mission,” said Jason Lee, CEO of DailyPay. “We are in the business of giving people financial freedom, and to see an exhaustive survey like this confirm the extent of how much this service is improving people’s lives really motivates us to focus and keep growing.”

On-Demand Pay and Living Paycheck to Paycheck In a world where more people are living paycheck to paycheck, and where gig work is on the rise, some in media and policy circles have begun asking whether daily access to pay helps or hurts long-term financial wellness. The leading academic research on this issue, from Columbia University, studied payday spending habits and reached important conclusions. In the study called, “The Liquid Hand-to-Mouth,” Columbia University Professor, Michaela Pagel, and her co-author confirmed through data the intuitive experience everyone has on payday — the urge to “splurge.” The study confirmed that, across the board, people “splurge” on payday, and unfortunately, those least likely to afford it splurge the most; low-income people splurge over 3x as a portion of their income compared to higher income groups. DailyPay’s study is consistent with these findings. While 85% of respondents said having access to DailyPay makes them more able to pay large monthly expenses like rent, utilities, auto payments, etc., only 4% said it makes them less able. So by a margin of over 20:1, working Americans know that constant access to their earnings makes them better able to pay their bills on time, and less likely to splurge. In addition, approximately 75% of users say that having access to their pay daily reduces their financial stress.

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