October 2017 issue

Volume 7 : Issue 10

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www.HRProfessionalsMagazine.com

Highlights of

Profiles of Our Top Labor and

Employment Law

2017 KYSHRM

Conference in Louisville August 29-31

Attorneys

Evaluating Your Healthcare Key Performance Indicators

On the Horizon: Federally Mandated Paid Leave

Rebecca Harmon,

SHRM-CP, PHR, MBA TNSHRM State Council Director

Ding Dong the New EEO-1 Report is Dead!

D E S U C O F S E E Y O L P E BENEFIT M N O E H P IT E W K E K TE RIS

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WEB EXCLUSIVES HTTP://HRProfessionalsMagazine.com /Exclusive

Bringing Human Resources & Management Expertise to You

Americans are spending 17 cents out of every dollar on Healthcare. www.HRProfessionalsMagazine.com Editor

Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher

The Thompson HR Firm, LLC HR Consulting and Employee Development Art Direction

Park Avenue Design Contributing Writers

David Ankeny Austin Baker Mary E. Buckley J. Bruce Cross Frank L. Day Jeanne J. Fisher Stewart Gott Stuart Jackson Jennifer S. Kiesewetter Lisa S. Lewis Carolyn McNairy Kerstin Nemec Tim Norwood Gary Peeples Robin Shea Jennifer Sims Jason Susser Antonio D. Williams Board of Advisors

Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR Terri Murphy Susan Nieman Robert Pipkin Ed Rains Michael R. Ryan, PhD 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. ©2017 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.

Features 2 Eliminate Distractions and Mitigate Risk with One Employee Benefit 4 note from the editor 5 Profile: Rebecca Harmon, SHRM-CP, PHR, MBA, 2017 TNSHRM State Council Director 22 Busting the Myths of Fingerprinting During the Hiring Process 24 Executive Presence: Best Practices for Grooming the Next Generation of Leaders

Employee Benefits

12 Navigating the Requirements of the ACA 14 The Double Edged Sword of “Automated” 401(k) 26 Evaluating Your Healthcare Key Performance Indicators 28 A Lesson Learned from the Healthcare Debate 43 MSBGH & MS School of Business 8th Annual Healthcare Summit 44 403(b) Plans Under Scrutiny – What Does This Mean for Your Retirement Plan?

Employment Law

10 Are You Ready for a Union Campaign?

17 Register for the 2017 Wimberly Lawson Labor & Employment Law Update Conference in Knoxville November 2-3 18 On the Horizon: Federally Mandated Paid Leave 20 The Battle of the Heavyweights – Title VII v. the NLRA 21 2017 Memphis Chamber HR Legal Summit 30 NLRB Expected to Flip Under President Trump: What That Means for Employers 42 Judge Richard Posner’s Retirement and His Influence on Labor and Employment Law 46 Ding Dong the New EEO-1 Report is Dead!

48 The Federal and State Marijuana Conundrum 50 The H-2B Option to Temporary Labor Shortages

Our Top Labor and Employment Law Attorneys Listed in Chambers USA 32 Ogletree Deakins 33 The Kullman Firm 34 Fisher Phillips 35 FordHarrison 36 Bass Berry Sims 37 Wright, Lindsey & Jennings LLP 38 Cross, Gunter, Witherspoon & Galchus, P.C. Burch, Porter & Johnson, PLLC 39 Baker Donelson 40 Littler Mendelson, P.C.

Industry News

6 Highlights from the 2017 KYSHRM Conference in Louisville 8 2017 SHRM-Mempis HR Excellence Awards 16 Register for the 2017 SHRM Georgia State Conference in Brunswick October 8-10 29 8th Annual WTSHRM Human Resources & Employment Law Fall Conference in Jackson November 1

November Issue

Emphasis on Employee Benefits Planning and Compliance Labor and Employment Law Updates Highlights of the 2017 ARSHRM ELLA Conference in Little Rock September 13-14 Highlights of the HRMidsouth Conference in Nashville October 1-4 Highlights of the 2017 SHRMGA State Conference in Brunswick Octobere 8-10 Deadline to reserve space October 10

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a note from the Editor

It was great fun conducting a Facebook live interview with the KYSHRM State Council.

You can view it on our Facebook page.

The fall conference season is here! We kicked it off in Louisville with the 33rd Annual KYSHRM Conference August 29-31. What a fantastic conference it was! We have the highlights for you on Page 6 and 7. We introduced Facebook live interviews at this conference so that you could join us in case you were unable to attend. If you missed them, you can go to our Facebook page to view them, or you can go You Tube. My YouTube Channel is Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR. You will find video interviews with Laura DeFazio, President of Louisville SHRM, who was on our August issue cover, The KYSHRM State Council, and the keynote speakers.

If you would like to receive notifications of our live videos from the SHRM HRMidsouth Conference in Nashville October 1-4 and the SHRMGA Conference in Brunswick October 8-10, all you have to do is Like our Facebook page. Once you Like our Facebook page, you will receive instant notification of each live video as it begins. You will feel like you are at the conference with us!

We also conducted Facebook live interviews in Little Rock at the 16th Annual ARSHRM Employment Law and Legislative Affairs Conference September 15-16! And what an honor to meet Governor ASA Hutchinson and interview him about his accomplishments and goals for the State of Arkansas since he took office in January 2015.

It is always a pleasure to hear Mike Aitken, SHRM VP Government Affairs, present The Washington Outlook and share an update on HR Public Policy. Mike also provided an update on the SHRM Advocacy Team in Arkansas and across the country. If you visit our Facebook page or our YouTube Channel, you can hear interviews with Jill Hilton, SHRM-SCP, SPHR, Chair of the 2017 ELLA Conference; Cathleen Hoffman, SHRM-SCP, SPHR, Director of ARSHRM; and

What a pleasure to meet Jessica Perry, SHRM SVP of Publishing and Media at the KYSHRM Conference. Jessica is the publisher of HR Magazine.

Page 16 for the SHRMGA Conference at a Glance. We will also have highlights of these excellent SHRM State Conferences in our November issue.

It's a pleasure to have Rebecca Harmon, SHRM-CP, PHR, MBA, on our October cover. Rebecca is the 2017 TNSHRM State Council Director. You can read about her HR career and her outstanding accomplishments on Page 5. We are excited to bring you our Top Labor and Employment Law Attorneys listed in Chambers USA as we do each October beginning on Page 32. If you see your favorite attorney in this issue, be sure to congratulate them on this outstanding honor! There is an excellent article on Page 26 from Antonio Williams with Regions Insurance on "Evaluating Your Healthcare Key Performance Indicators." Jeanne Fisher with ARGI Financial Group discusses "The Double Edged Sword of "Automated 401(k) on Page 14. There is also a fantastic article by Carolyn McNairy with TASC on "Navigating the ACA." And in case you thought the NLRB was slowing down, you need to think again. Check out "Are You Ready for a Union Campaign?" on page 10 by Frank Day with FordHarrison. This issue is packed with information you need to know to effectively lead your organization as a key HR professional.

Watch your email for notification about our October webinar sponsored by Data Facts. It will be on October 26. Please mark your calendar and plan to join us from 2 PM to 3 PM. If you are not receiving our email notifications about our complimentary monthly webinars, please visit our website, www.hrprofessionalsmagazine. com, and subscribe to our digital issue to be added to our email distribution list.

the keynote speakers from the conference as well. We will have the highlights of this excellent conference in our November issue.

Be sure to follow us on Facebook for the SHRM HRMidSouth Conference & Exposition in Nashville October 1-4 and the SHRMGA State Conference in Brunswick October 10-12. We are hoping to catch an interview with Peyton Manning, former NFL quarterback for the Indianapolis Colts and University of Tennessee quarterback.

Please see page 9 for the HRMidSouth Conference at a Glance and

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Cynthia Y. Thompson, MBA, SCP, SPHR cynthia@hrprosmagazine.com www.hrprofessionalsmagazine.com Twitter @cythomps 901.598.0123

Rebecca on the cover

HARMON

REBECCA HARMON, SHRM-CP, PHR, MBA 2017-2018 TNSHRM State Council Director Rebecca received her BA in

Rebecca Harmon is the 2017-2018 TN SHRM State Council Director. She has been a member

Psychology from the University of

of TNSHRM State Council since 2008 serving as Director-Elect, Membership Chair, Certifica-

Tennessee-Knoxville in 1994 and

tions Chair and College Relations Chair. She has been a member of the Tennessee Valley Human

her MBA in 2002, also from the University of Tennessee-Knoxville.

She was the recipient of the 2016 TN Valley HR Professional of the Year, TN SHRM HR Excellence Award 2008, 2008 Knoxville’s 40 under 40, Key Leader for DeRoyal

Resource Association in Knoxville since 1997 where she has served as Program Chair, President Elect, President and Past President. In addition, Rebecca has served on four State Conference Planning Committees.

Rebecca is the Chief Administrative Officer for medical device manufacturer DeRoyal, headquartered in Powell, TN. With 20 years of leadership experience, Rebecca provides strategic direction and operational support for Human Resources, Quality & Regulatory and Information Technology.

Prior to becoming Chief Administrative Officer, Rebecca was Vice President of Human Resources and led the global human resources practice for the organization including human capital

Award 2008, and was featured

management, compensation and benefits, organizational change, legal compliance, payroll, and

member in the 2017 April issue of

training and development in five US states and five countries supporting 2000 employees.

HR Magazine.

She is currently serving on the Advisory Board for University of Tennessee-Knoxville College of Management and is a Leadership Development Coach for the University of Tennessee-Knoxville Professional MBA Program. Rebecca is also Board Chair for East TN Technology Access Center that provides adaptive devices and toys for children and adults with disabilities. She was appointed

by TN Governor Bill Haslam to serve on the Department of Human Resources Board of Appeals in 2014 and is an Advisory Member for WillisTowersWatson Human Capital Practice. ď Ž

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HIGHLIGHTS

1 1 2017 KYSHRM State Council

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2 Lynn Ingmire, SHRM-SCP, SPHR, Chair, 2017 KYSHRM State Council, welcomed attendees to the 33rd Annual KYSHRM Conference in Louisville.

3 (L-R) Trasee Whitaker, recipient of the 2017 Lyle Hanna Spirit Award; Beth Davisson, 2016 recipient; and Lyle Hanna, President of Hanna Resources Group. 4 Dr. Terri Rowland, Program Director/Clinical Assistant Professor with the University of Louisville, Delphi. 5 Mary Kelly, President of Productive Leaders, Inc., was the keynote speaker on Wednesday, August 30, at 8:45 AM. Her topic was “Master Your World: 10 HR Strategies to Improve Your Productivity, Profits and Communications.”

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6 Cathy Fyock, SHRM-SCP, SPHR, The Business Book Strategist, (center) was the playwright of “And Other Duties as Assigned,” presented on Tuesday, August 29, at 4 PM during a general session. 7 Scott Lesnick, President, Successful Business Solutions, was the keynote speaker at the 12:00 PM general session on Thursday, August 31. His topic was “Great HR Leaders: Implementing the Never Give Up Perspective.”

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8 8 The KYSHRM Volunteers with Chair, Carolyn Flinn (back row second from the left).

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9 Jessica Perry, SVP of Publishing and Media for SHRM in Alexandria, VA. Jessica is the publisher of HR Magazine. 10 KYSHRM State Council members presented the grand prize check for $2500 to Kristin Mastin at the close of the conference. 11 Jeanne J. Fisher, CFP®, CPFA, Financial Advisor and Retirement Plan Specialist with ARGI Financial Group, spoke on the DOL Fiduciary Rule on Tuesday, August 29.

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12 (L-R) Aaron Miller and Cynthia Knapek with the Leadership Louisville Center, presented “Millennial Talent” on Wednesday, August 30.

13 Aaron Jennings, Business Development Manager with Ultimate Software at the Exhibit Hall. 14 Lauren Johnson, Partner at McGregor & Associates, spoke on “The ACA – Where Are We Now?” on Wednesday, August 30.

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15 Fun on the Belle of Louisville Wednesday, August 30. 16 Over 600 HR professionals attended the 2017 KYSHRM Conference. www.HRProfessionalsMagazine.com

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A Night of Excellence…Celebrating the Stars of HR !!

Join SHRM-Memphis as we honor the best and the brightest in HR at the

2017 SHRM-Memphis HR Excellence Awards Tuesday, November 14, 2017 Memphis Bioworks Foundation 20 South Dudley Street 5:30 – 8:00 pm

A gala evening of celebration, recognizing the 2017 nominees and winners of the following: George Mabon HR Executive of the Year Award HR Emerging Leader Award Memphis HR Champion Award HR Lifetime Achievement Award HR Student of the Year Award Registration is now open…tickets are only $50 through November 6! To register, please visit the SHRM-Memphis Website at www.shrm-memphis.org.

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Are You Prepared for a Union Campaign?

The Mid-South Has Seen a Recent Uptick in Union Activity

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By FRANK L. DAY JR.

fter years of relative quiet, union activity has become a “hot topic” in the Mid-South as there has been an increase in the number of petitions filed for union representation. Union elections have been sparse for the past several years. However, statistics relating to union organizing activity published by the National Labor Relations Board (NLRB) for

Region 15, which includes Arkansas, Louisiana, Mississippi, Southern Alabama, and West Tennessee, confirm that the Mid-South has seen a recent flurry of union election activity. In addition to the widely followed Nissan election in Canton, Mississippi, which was one of the most contentious of modern times, many other elections have taken place in West Tennessee, cities across Arkansas, and throughout the region.

Of all of the recent elections, the stakes were the highest at Nissan where the United Automobile Workers’ (UAW) waged a years-long campaign aimed at gaining a foothold in the South. The voting unit consisted of all 3,718 full-time and regular part time production and maintenance employees. Bernie Sanders, Danny Glover, and other politicians and celebrities supported the UAW, which based its campaign message on the civil rights movement and had racial overtones.

Nissan also waged an aggressive campaign of its own that was supported by Mississippi politicians, who championed the message that unions interfere with economic development. Ultimately, the UAW’s efforts came up short. Sixty percent of Nissan’s employees voted against the union, but the UAW has vowed that the fight is not over. The UAW has filed multiple unfair labor practice charges against Nissan based on allegations that Nissan’s campaign against the union violated the National Labor Relations Act. These charges have not yet been resolved by the NLRB. The NLRB data confirms that unions are not only targeting companies with large potential bargaining units, but the current union strategy also includes focusing on micro-units. Unlike the UAW’s efforts at Nissan which effectively targeted all employees at the plant, a micro-unit is a subset of employees who make up less than the total number of non-supervisory employees at a facility. The members of a micro-unit typically work in one specific department, and unions target these smaller groups of employees with the understanding that it is easier to win a majority vote from a subset of employees than all employees at a plant as a whole.

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The NLRB data reflects that many of the recent union elections involved micro-units.

A recent union election in Jackson, Mississippi involved a voting unit of only 10 shop employees and a single garage employee, excluding all administrative employees, sales employees, guards, watchmen, office employees, clerical employees, rental representatives, telephone operators, and supervisors as defined by the NLRA. Another election in Memphis included a micro-unit of only 18 employees who work in the quality control department of a company.

The smallest micro-unit involved in a recent election involved only 6 employees.

The most success seen by the Unions in elections involve micro-units. In the last four months, unions have prevailed in roughly 50 percent of elections in Region 15, but they have had limited success when attempting to persuade larger bargaining units to accept union representation. The average size of units that recently voted in favor of union representation is just 31 employees, and the largest single unit to vote in favor of a union was a group of 82 production employees, operators, and material handlers in Memphis.

Although the uptick in union activity in the Mid-South has resulted in some union victories, the biggest wins in Region 15 have all gone to management. The NLRB data

from the last four months shows that unions lost every election that involved a voting unit larger than 100 employees. Furthermore, the average size of the units that voted with management and against a union for this four month period is 268 employees. While the large Nissan voting unit brought up this average, the calculation also accounts for 10 separate micro-units of less than 15 employees, which also influenced the average the other way.

Why the uptick in union elections? One likely reason could be the Trump administration. After the Trump administration’s nominees to the NLRB are confirmed by the Senate, the board will have a Republican majority. This Republican majority is widely expected to roll back many Obama era rulings that made it easier for unions to organize. One such decision dating back to 2011, known as Specialty Healthcare, made it possible for unions to organize micro-units. The Specialty Healthcare decision abandoned years of precedent and permitted unions to define smaller sub-units of their own choosing, which would help them gain a presence within a company where a majority of workers would reject union representation. With the possibility that the NLRB may soon declare micro-units inconsistent with the NLRA, unions have good reason to move forward with plans to organize micro-units before the Republican majority can overrule Specialty Healthcare.

a petition. This rule made it possible for unions to “ambush” employers with an election at a time before many employers were prepared to respond. Most labor attorneys expect the Trump administration’s appointees to the NLRB to undo the “quickie” election rule, but such action by the NLRB may be unnecessary because of legislative action.

Congressional Republicans recently introduced a bill known as the Employee Rights Act, which would negate the “quickie” election rule if it is adopted. These developments give unions good reason to file petitions for representation while they can still benefit from pro-union Obama administration rules.

What should employers do now? At the very least, employers should ensure that their managers have received training that will enable them to recognize union activity. Also, employers should have a plan of action in place that can be followed in the event that a petition is filed.

When faced with a petition for representation, those employers who have taken at least some steps to prepare are in a much better position than those that have not. Although unions have been in decline for decades, they are here to stay, and it is a threat that all employers, large and small, should take seriously.

In 2014, the NLRB also adopted what became known as the “quickie” election rule, which significantly reduced the time period for an employer to prepare and campaign against a union from 42 days to as few as 13 days. In short, the Obama era NLRB made it possible for a union election to occur only 13 days after the date that the union filed

Frank L. Day Jr., Counsel FordHarrison fday@fordharrison.com www.fordharrison.com

A Corporate Balancing Act: Business Need vs. Legal Risk Wednesday, November 1, 2017 Every good HR professional knows that some HR risks are worth taking while others are not.

This interactive session focuses on the balance between business need and legal compliance and will be entirely scenario-based, using videos and other tools.

Morning Program:

Registration & Breakfast: 8:00 a.m. - 8:30 a.m.

Program: 8:30 a.m. - 9:30 a.m.

Afternoon Program:

Registration: 3:45 p.m. - 4:00 p.m.

Program: 4:00 p.m. - 5:00 p.m.

Happy Hour: 5:00 p.m. - 5:30 p.m.

Location:

Littler Memphis | 3725 Champion Hills Drive | Suite 3000 | Memphis, TN 38125 For registration, please contact Claire Krummenacher at ckrummenacher@littler.com.

www.HRProfessionalsMagazine.com

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Navigating the Requirements of the Affordable Care Act (ACA)

By CAROLYN MCNAIRY

Just when we thought we had all the requirements figured out, health care could change … forcing new challenges and new decisions in the sea of compliance.

Employers and plan sponsors need to prepare for significant changes whether ACA is repealed, replaced or repaired. It is highly likely that certain key ACA provisions will be rolled back such as: • Requirement to offer coverage to adult children up to age 26; • Requirement that insurers offer coverage on individual market regardless of pre-existing conditions; • Repeal of the Cadillac Tax; and • Repeal of the employer mandate.

Regardless any changes, employers must continue to comply with the current requirements of the ACA including: • Report on Forms 1094 and 1095; • Avoid employer mandate penalties under Section 4980H; and • Avoid market reform penalties under Section 4980H.

Who must comply?

All Applicable Large Employers (ALEs) averaging at least 50 or more full-time employees (FTEs) -- including equivalents; variable hour, part-time and seasonal -- during the preceding calendar year.

- ALEs with 50-99 FTEs (received penalty transition relief ) until 2016 provided they did not reduce their workforce or eliminate or reduce health coverage between February 9 and December 31, 2014 (certification of these provisions was required).

- Organizations that qualify as an aggregate group are looked at as a single employer. That means that employees of all companies within the same aggregate group must be lumped together to determine the ALE status for the entire aggregate group.

What is considered a Full-time Employee?

A full-time employee is any employee who averages at least thirty (30) hours of service per week or 130 hours per calendar month. It is the responsibility of employers to monitor service hours and determine which employees meet the definition of full-time employee.

All employees who meet the definition of full-time employees must have an offer of health coverage made to them (and their dependents) to avoid potential penalties.

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What are the rules of “Play or Pay” (Employer Shared Responsibility Mandate)?

Certain ALEs must offer full-time employees (and dependents) health coverage that is both “affordable” and “of minimum value” to avoid potential penalties under the Play or Pay rules.

An ALE may be liable for penalties under the Play or Pay rules if at least one of its full-time employees receives a government subsidy for coverage purchased under a government Exchange

The Two Reporting Requirements (Mandates) 1. Individual Mandate: IRS Section 6055 requires all health plans (Individual coverage or fully and self-insured group coverage) to annually report to IRS and individuals (enrolled employees) if coverage constitutes “minimum essential coverage” regardless of size.

(All employers with Group Health Plans and Individuals with individual policies.

Self-Insured Plans Non-ALE (less than 50 Employees) must submit the following IRS Forms: • 1094-B – Transmittal form (summary page) provided by Plan Sponsor to the IRS summarizing coverage and # of 1095-Bs • 1095-B – Individual employee/insured forms provided by Plan Sponsor along with 1094-B to the IRS; 1095-B also provided to the employees to be filed with individual tax return.

Self-Insured Plans ALE (50 Employees+) must submit the following IRS Forms: • 1094-C – Transmittal form (summary page) provided by Plan Sponsor to the IRS summarizing coverage and # of 1095-Cs • 1095-C – Individual employee/insured forms provided by Plan Sponsor along with 1094-C to the IRS; 1095-C also provided to the employees to be filed with individual tax return.

2. Play or Pay Mandate: IRS Section 6056 requires only ALEs (employers with 50 or more full-time and full-time equivalent employees) to report to the IRS and to full-time employees to assist with enforcement.

• 1094-C – Transmittal form • 1095-C – Provided by ALE to the IRS and provided to the employee Clarification: For Self-Insured ALEs, the same forms (1094-C and 1095-C) are required for both the Individual Mandate and “Play or Pay “Mandate; however, the ALE is required to produce/ file only one set of these forms to meet both filing requirements, [Individual Mandate (6055) & Play or Pay Mandate (6056)].

Deadline dates for reporting*: • January 31: Form 1095-B/C; statements to employees

• March 31: Form 1094-B/C, Form 1095-B/C o Employers with more than 250 W2s o Must be filed electronically • February 28: Form 1094-B/C, Form 1095-B/C - filing via paper o Employers with less than 250 employees • March 31: Form 1094-B/C, Form 1095-B/C - filing electronically o Employers with less than 250 employees *Dates were extended for the 2015 filing deadlines.

Non-Filer Penalties The IRS assesses penalties for failing to file returns on time, failing to include all required information and filing incorrect information (IRC Section 6721 and IRC Section 6722).

The penalty for not filing with the IRS generally was $250 per return in 2015 & increased to $260 per return for 2016 and going forward.

The penalty for providing an incorrect statement to employees/enrollees was the same: $250 for 2015 & now $260 for each erroneous statement.

Since there are separate penalties for returns filed with the IRS and for statements furnished to individuals, filing failures could easily result in double penalties. Note: the above penalty amounts are subject to indexing, and reflect the penalties for returns and statements due in 2016 and 2017.

IRS Enforcing Compliance Since January 2017, the IRS has been contacting certain entities identified as “non-filers” to determine if they were required to file for 2015 calendar year. They send a letter referred to as “Request for Employer reporting of offers Health insurance coverage (Forms 1094C and 1095C)”and only allow 30 days to respond.

“The IRS expects that the letters informing ALEs that filed Forms 1094-C and 1095-C of their potential liability for an employer shared responsibility payment for the 2015 calendar year (with reporting in 2016) will be issued by December 31,2017.”

A huge number of employers will be penalized if they do not file any late filings due in 2018 for 2017. Don’t let it be you.

Until there is a repeal, replace, or repair, ACA is still the law and you must navigate requirements wisely and well.

Carolyn McNairy, Compliance Services Vice-President TASC Online carolynm@tasconline.com www.tasconline.com

ARE YOU STRUGGLING TO NAVIGATE THE COMPLEX RULES AND PENALTIES OF THE

ACA EMPLOYER REPORTING MANDATE With TASC at the helm it’s smooth sailing.

The Affordable Care Act is still the law and the employer mandate cannot be ignored. If you haven’t filed the required ACA Reporting forms for 2015 or 2016, you are subject to penalty fines. TASC is ready to help with your late filings as well as your current 2017 filing with our ACA Employer Reporting offering.

Rely on an expert for all your ACA compliance needs!  ALE Determination

 Completion of Required IRS Forms

 Health Plan Assessment

 Filing and Distribution Assistance

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 Collection of Employee and Health Coverage Info

Contact TASC today to get on track with ACA and protect your organization.

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The DoubleEdged Sword of “Automated” 401K

By JEANNE J. FISHER

N

ot too long ago, Defined Benefit Plans were the average American’s retirement. In just two or three short generations, businesses and governments have discovered these plans put too much liability and responsibility on the employer. The industry over-corrected by transitioning to Defined Contribution Plans like 401(k)s, 403(b)s and 457s. These common retirement plans rely on the individual participant’s decision-making.

Employees must decide to participate in the plan, how much to defer, how they want their deferral taxed, which funds to invest in, and how to manage the account once they leave their employer. Each decision is a challenge in and of itself, but combined they create a daunting hurdle that the average participant must overcome.

The industry has worked to address this problem by “automating” the 401k as much as possible. The goal has been to simplify and automatically implement employee participation. The most powerful advantage of the auto features are their ability to overcome the greatest challenge most American’s face – inertia. Simply put, it is much easier to do nothing, than it is to do something.

The classic comparison of organ donation rates exemplifies how human behavior differs when they are forced to “opt out” of a program as opposed to “opt in”. According to The Atlantic, in America, organ donation is an optional program with rates that hover around 45%. In Austria, who has a presumed consent program, the participant rate is 99% (Ryan Denu, December 2nd

2012, Organ Donation: To Opt In Or Opt Out).

The benefits of automated plan design features have been widely documented, but plan sponsors should be cognizant of any unintentional consequences.

Auto Enrollment What has quickly become one of the most common features of 401(k) plans, this type of enrollment automatically withholds deferrals from a participant’s paycheck, unless they take steps to officially opt out of the plan. Research conducted by Vanguard found that auto-enrollment of new employees increased the participation rate to 91% in those plans studied.

Plan sponsors can choose when participants are eligible for auto enrollment and at what rate the deferrals start. No doubt, auto-enrollment has had an obviously positive effect on participation rates, but there are a few things plan sponsors should consider.

First, auto enrollment rates (normally around 3-6%) are significantly lower than what the average American needs to be saving towards retirement.

Even the historical 10% savings goal is now being stretched to a more aggressive 15%. Auto enrollment at such a low rate creates a false security that plan participants are saving enough for retirement.

Secondly, almost every plan auto-enrolls via pre-tax deferrals. Often the most under-appreciated option in 401k plans, post-tax or roth deferrals are generally the better option for most 401k participants. Roth deferrals are favorable for younger, low income employees but can be beneficial to older, higher-income employees as well. Individuals should consult with a personal financial planner before deciding what is best for them. Unfortunately, the automatic enrollment takes that decision away from the participant before they have the ability to fully vet the consequences. Fortunately for many, platforms have started identifying this issue and are working towards a solution. John Hancock, for example, has introduced Dynamic Auto Enrollment™, a solution designed to automatically categorize participant deferrals as pre-tax or roth based on the participant’s income on file.

Auto-Escalation

…auto enrollment rates (normally around 3-6%) are significantly lower than what the average American needs to be saving towards retirement. Even the historical 10% savings goal is now being stretched to a more aggressive 15%.

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Plan sponsors can further automate the process by automatically increasing participant deferrals on an annual basis. For example, each anniversary you can elect to increase participant deferral rates by 1% until you cap out at 6%. Auto-escalation has also proven to positively impact deferral rates of those who don’t take the time to increase savings rates as they age or receive promotions.

Auto-escalation is vulnerable to the same weaknesses as auto-enroll. The rate increases are often not enough each year, with a long time horizon (years to be exact) needed before participant deferrals increase any meaningful amount. Also, the additional deferral is always implemented as a pre-tax deferral.

Target Date Funds If a participant does not have elections on file they are placed in the Qualified Default Investment Fund which are most often Target Date Funds. I have very few reservations about such funds.

They can be very beneficial to a dis-engaged investor and intense competition has really compressed expense ratios. The greatest selling point is the Glide Path and automatic reduction of risk over time. The primary caveat is that investors need to understand the target date’s intended Glide Path. A Target Retirement 2020 fund could still have a relatively aggressive asset allocation if the glide path is designed to take the participant ‘through’ retirement, instead of just ‘to’. In my personal experience, retirees view retirement as a hard stop date. When facing such a monumentous decision, the typical investor’s risk tolerance is substantially lower and most soon-to-be retirees don’t want the short-term volatility that is inherent in a diversified portfolio. This is true even if the “through retirement” glide path is better long term. The important lesson here, is that advisors have simple yet thorough conversations with participants nearing retirement.

important to note that neither of these actually happen unless the participant is non-responsive. They are designed to simplify administration and keep costs down across the plan and are wholly justified. That said, it’s very important the participant understands the long-term cost of cashing out their 401k balances. According to Bureau of Labor Statistics, in 2014 the average tenure of a 25-34 year old was only 3 years. If the retirement plan has a 1 year eligibility requirement, it’s highly likely most participants will be affected by this auto feature. Even if the balance is small, retirement savings in your 20s becomes the seed money for your financial independence in 40 years. Cashing out with penalty, or leaving a trail of orphaned rollover IRAs is not the most efficient way to nurture and grow your nest egg.

Automatic plan design features in 401(k)s and other retirement plans can be a powerful tool for guiding better participant decisions. Unfortunately, each feature has its own set of risks. Advisors who specialize in employersponsored retirement plans can provide clarity to both plan sponsors and participants about these common plan design features.

Respective services provided by ARGI Investment Services, LLC, a Registered Investment Adviser, ARGI CPAs and Advisors, PLLC, ARGI Business Services, LLC, and Advisor Insurance Solutions. All are affiliates of ARGI Financial Group.

Auto Cash-Out and Auto Rollover The automatic features extend to when a person terminates employment. Auto cash out forces terminated participants to actually “cash out” of the plan. Participants receive a check in the mail for their remaining account balance. For any balances greater than $1000 and less than $5000, the auto rollover feature automatically rolls the participant’s account to an IRA. It’s

44% OF EMPLOYEES

WORRY

ABOUT FINANCES DURING WORK HOURS.*

Jeanne J. Fisher, CFP®, CPFA ARGI JeanneFisher@argi.net www.argi.net

ARGI is now a part of the Kentucky Chamber’s Power Buy Member Savings Program, helping you provide financial clarity for your employees at a special member rate. Services include: Corporate Benefits Education Business Retirement Plan Services Comprehensive Financial Planning Outplacement & Transition Financial Services

WWW.ARGI.NET/KYCHAMBER Respective services provided by ARGI Investment Services, LLC, a Registered Investment Adviser, ARGI CPAs & Advisors, PLLC, ARGI Business Services, LLC, and Advisor Insurance Solutions. All are affiliates of ARGI Financial Group. *Statistic from PWC Employee Financial Wellness Survey, 2015 Results

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The 2017 SHRMGA State Council Executive Committee Welcomes You!

2017 SHRMGA State Council Director Rushe Hudzinski-Sero, MBA, SHRM-SCP, SPHR, GPHR

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State Council Director-Elect Paula Powell-Kitchens, SHRM-CP, PHR

2017 SHRMGA State Conference Co-Chair Brad Patterson, MBA, SHRM-SCP, GPHR

SHRM Certification Director Judy Spencer, MBA, SHRM-SCP, SPHR

Communications Chair Cheri Sales, SHRM-SCP, SPHR

Government Affairs Sara Lamar, Attorney at HunterMaclean

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Past State Council Director and Membership Director Sally Roberts, MBA, SHRM-SCP, SPHR

Industry Certification Chair Secretary Craig Southern Susan Courtland, SHRM-SCP, PHR

Workforce Readiness Director SHRM Field Services Director Ron Williams, SHRM-CP, PHR Dorothy Knapp, SHRM-SCP

Hurry – Last chance to register!

On the Horizon:

Federally Mandated Paid Family Leave

By LISA S. LEWIS

Paid family leave, as legislative policy, is trending. Indeed, support for some form of federally required paid family leave, in particular, has swelled to the point where it’s now probably wise for employers to skip the question of “if,” treat it as one of “when,” and focus on the “what and how.” This article briefly looks at some sources that may be helpful in answering the last question— what federally mandated paid family leave might look like and how it may be implemented.

State Paid Family Leave Laws Currently On the Books

States are often said to act as testing grounds for policies to be adopted at the federal level.

If true in the context of paid family leave, then employers can look to the state laws requiring such leave to get a preview of what they might reasonably expect to see in a federal framework.

Currently, three states—California, New Jersey, and Rhode Island—offer paid family leave. Further, New York, Washington, and the District of Columbia have enacted paid family leave laws that will be phased in over the next few years. Here are some of the basic features of these state laws. i. Method and Source of Funding – Social Insurance Model Each of the state family leave plans are administered through the state’s disability insurance program, which pays replacement wages to employees during their leave. As a result, employers do not have to pay employees’ salaries while the employees are on leave. The states’ programs distinguish between leave for an employee’s own medical care or disability—which includes pregnancy but not bonding with a child after birth—and family care leave, which covers bonding with a new child after birth, adoption, or foster care. The source of funding depends on the type of leave taken.

Family care leave in California, Rhode Island, New York, and New Jersey is or will be funded exclusively by employee-paid payroll taxes; in Washington, family leave will be funded jointly through employee and employer payroll contributions. Leave for an employee’s own disability is exclusively employee funded in California and Rhode Island, but is dually funded (by the employee and employer) in New Jersey, New York, and Washington. The District of Columbia’s program will be funded by employers only, regardless of the type of leave taken. ii. Coverage - Private Employers of Any Size Unlike with the FMLA and its state law equivalents, the state paid family leave laws enacted thus far uniformly cover all private sector employees, regardless of size. To ease the potential burden on small businesses, Washington, the only state where family leave (in addition to disability leave) is dually funded by the employee and employer, exempts employers with 50 or fewer employees from the employer contribution. None of the other laws contain similar exemptions. iii. How Much Leave The maximum amount of paid family (not disability) leave an employee may take under the state laws varies from four to 12 weeks: Rhode Island offers four weeks, California and New Jersey offer six weeks; D.C. will offer eight weeks; Washington will offer 12 weeks; and New York will start with eight weeks in 2018 and gradually increase to 12 weeks by 2021. Further, employees are not 18

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required to take their family leave all at once.

California, New York, D.C. and Washington allow leave to be taken in one-day increments, and New Jersey allows for incremental leave with an employer’s approval. iv. How Much Money Each state uses a slightly different method to calculate the amount of “wage replacement” benefits paid to employees while on family leave. In general, however, the weekly benefit rate is 50-70% of an employee’s weekly wage, up to a maximum amount set by the state each year. For example, this year in California, the typical weekly benefit is 55% of a worker’s weekly wage, up to a maximum weekly benefit of $1,173. v. Employee Eligibility Requirements The employee eligibility requirements likewise vary from state to state but generally, the laws require a minimum amount of time worked or money earned during a qualifying period.

For example, in New Jersey, an employee must have worked 20 calendar weeks in covered New Jersey employment or earned at least 1000 times the state minimum wage during the 52 weeks preceding the leave. In California, an employee must have earned at least $300 from which deductions were withheld during a 12-month base period prior to the leave.

In addition to state laws, another source for answers to the “what-to-expect” question of federally mandated leave is, of course, the federal government itself. To that end, the remainder of this article focuses on the proposals from players within the federal government.

Paid Family Leave Proposals at the Federal Level

It’s an oft-repeated bit of trivia: The United States is the only developed country that does not guarantee some form of paid family leave.

The Trump administration and legislators from both parties have expressed a desire to shed that distinction. Their proposals vary significantly but nonetheless provide a glimpse of the potential foundations from which a final policy might emerge. i. President/ Ivanka Trump’s Plan In his budget proposal to Congress earlier this summer, President Trump called for the establishment of a national paid parental leave program, a cause that has been heavily promoted by his daughter, Ivanka Trump.

The Trump plan would require all employers

to offer six weeks of leave to both mothers and fathers after the birth or adoption of a child and would be administered through state unemployment insurance programs.

Despite the significant publicity the Trump plan has received, the proposal itself is light on specifics. For example, it does not include details on eligibility requirements or benefit calculations but states only that leave would be administered through state unemployment programs. Currently, each state administers its own unemployment insurance program within guidelines established by federal law. Despite the federal parameters, states enjoy significant discretion in determining eligibility requirements as well as the amount of benefits and the length of time they are available to claimants. If paid family leave benefits are administered with the same discretion as unemployment benefits, eligibility for family leave could vary significantly state to state under the president’s plan. On the other hand, it’s possible that the plan would require greater uniformity in the administration of family leave benefits than with unemployment benefits. Without clarification on this point, the plan is subject to interpretations that yield significantly different leave programs.

In any event, the proposal seems unlikely to go anywhere. Even as an outline, it has faced resistance from both parties, as either doing too much or too little. Further, to date, the Trump proposal has yet to find a legislative sponsor willing to push it as a bill. Legislators from both parties have, however, introduced their own proposals this year. ii. The FAMILY Act

tax of up to 0.2 percent with an equal employer match. The fund would be administered by a new federal Office of Paid and Family Leave.

Under the FAMILY Act, an individual does not need to be currently employed to receive benefits; rather, to be eligible, an individual must have some earned income from employment in the-12 month period immediately preceding his or her application for benefits. iii. The Strong Families Act From across the aisle, Senator Deb Fischer (R-NE) introduced the Strong Families Act, which would give a tax credit to incentivize employers to offer up to 12 weeks of paid family and medical leave. The proposal is a substantial departure from the Trump plan, the FAMILY Act, and the state leave laws, all of which employ a government-run insurance fund financed by payroll taxes to pay replacement wages to employees on covered leave. Further, unlike those plans, employer participation under the Strong Families Act would be optional: the act merely seeks to encourage employers to provide paid family leave but does not require them to do so. Additionally, unlike the FAMILY Act, only individuals who are employed and otherwise eligible for FMLA leave would be eligible to receive paid family leave under an employer’s policy.

In sum, federally mandated paid family leave is on the horizon. For employers who are curious as to what the law will entail and what it may mean for them, there are plenty of places to look.

Lisa Scatamacchia Lewis, Associate

The FAMILY Act, introduced by Senator Kirsten Gillibrand (D-NY), would provide benefits dually funded through an employee-paid payroll

Ogletree Deakins - Memphis lisa.lewis@ogletreedeakins.com www.ogletreedeakins.com

GO CONFIDENTLY. Bass, Berry & Sims listens and responds with creative yet practical counsel. We stay on pace with the complex and rapidly evolving employment landscape, connecting your dynamic human resources needs to proactive strategies.

Relationships, reliability, and respect – at the center of our Labor & Employment and Employee Benefits practices.

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Centered to deliver. bassberry.com

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Battle of the Heavyweights:

Title VII v. NLRA

By STUART JACKSON

Just like it’s in style these days for superheroes to battle each other on the big screen, two big employment laws are coming to blows – Title VII of the Civil Rights Act of 1964 (and the obligation of an employer to enforce ideals related to equal employment opportunities) and the National Labor Relations Act (NLRA) (and the right of an employee to engage in protected concerted activity).

I write . . . to convey my substantial concern with the too-often cavalier and enabling approach that the [NLRB’s] decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes. Those decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace. *** Conduct that is designed to humiliate and intimidate another individual because of and in terms of that person’s gender or race should be unacceptable in the work environment.

To be clear, I don’t think anyone on the 8th Circuit panel believes Runion is “innocent” – the two judges responsible for the majority opinion are just saying the NLRB did not abuse its discretion in making the ruling (a very deferential standard).

About the time the 8th Circuit issued the Cooper Tire decision, a situation was about to blow up at Google. Now-former employee James Damore distributed to his coworkers a memo on gender issues in the tech industry. The memo, entitled “Google’s Ideological Echo Chamber," contained statements like:

The fight has been brewing for a while. But, on August 8, 2017, the 8th Circuit entered the fray when it issued a split decision in favor of the National Labor Relations Board (NLRB) in Cooper Tire & Rubber Company v. NLRB, No. 16-2721. Here’s the background – Cooper Tire fired a guy named Anthony Runion for his conduct on a picket line. Specifically, Runion yelled at replacement workers (many of whom were African-American) brought in during a lockout, “Hey, did you bring enough KFC for everybody?” and “Hey anybody smell that? I smell fried chicken and watermelon.” Runion’s union filed a grievance under the collective bargaining agreement and filed an unfair labor practice charge with the NLRB. The arbitrator upheld the discharge under the collective bargaining agreement, but an administrative law judge (ALJ) found that Cooper Tire violated the NLRA when it fired Runion. The NLRB upheld the ALJ’s decision, leading Cooper Tire to petition the 8th Circuit to review the case.

Stating “[o]ne of the necessary conditions of picketing is a confrontation in some form between union members and employees” and “[i]mpulsive behavior on the picket line is to be expected,” two of the three judges on the 8th Circuit panel deferred to the NLRB’s ruling, in part because they did not believe Runion’s comments singled out a specific person. Despite Cooper Tire’s argument that it had “the legal obligation under Title VII to apply its lawful policy prohibiting harassment to racist statements,” the two judges believed Cooper Tire was “under no legal obligation to fire Runion” and that its “obligations under Title VII do not conflict with Runion’s reinstatement.”

The dissenting judge on the panel wasn’t buying the other two judges’ argument, stating “[n]o employer in America is or can be required to employ a racial bigot.” Making the point that the NLRA does not protect the exercise of racial bigotry, the judge pointed to the “ambiance created by Runion at the Cooper Tire work site,” where a number of African-American employees worked and quoted a judge’s comments in another case from the D.C. Circuit: 20

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Women, on average, have more: Openness directed toward feelings and aesthetics rather than ideas. Women generally also have a stronger interest in people rather than things, relative to men (also interpreted as empathizing v. systemizing). These two differences in part may explain why women relatively prefer jobs in social or artistic areas . . . .

Neuroticism (higher anxiety, lower stress tolerance). This may contribute to the higher levels of anxiety women report on Googlegeist and to the lower number of women in high stress jobs.

This memo got all over some of Damore’s colleagues (both male and female).

Generalizations can be a dangerous thing — in fact, Damore’s generalizations got him fired for “perpetuating gender stereotypes.” While most employers want to foster a workplace that allows open discussion of issues, most employers also want to avoid being labeled a company that allows or encourages any type of openly racist or misog-

ynist views or behavior. Here are some of the comments made by Google’s CEO Sundar Pinchai in response to Damore’s memo; you can see how he attempts to walk the fine line between Title VII and the NLRA:

Opinion; Shocked When Employees Don’t Feel Safe Speaking Up” at https://www.inc.com/suzanne-lucas/google-firesemployee-for-expressing-an-opinion-s.html.

First, let me say that we strongly support the right of Googlers to express themselves, and much of what was in that memo is fair to debate . . . .

However, portions of the memo violate our Code of Conduct and cross the line by advancing harmful gender stereotypes in our workplace. . . . To suggest a group of our colleagues have traits that make them less biologically suited to that work is offensive and not OK. It is contrary to our basic values and our Code of Conduct, which expects “each Googler to do their utmost to create a workplace culture that is free of harassment, intimidation, bias and unlawful discrimination.”

I’m betting the ideals that form the basis of Title VII and an employer’s need to protect itself from discrimination and harassment claims will, in general, prevail over a person’s ability to make statements that could be seen as racist or sexist. However, any future decisions on the Title VII v.

NLRA issue undoubtedly will be heavily dependent on the specific circumstances of each case.

Google took exception to certain, specific statements in Damore's memo, and opted to fire him. He’s now filed a charge with the NLRB, claiming his statements were protected concerted conduct under the NLRA, even though his statements could be seen as an affront to the ideals expressed in Title VII (and other EEO laws).

Yes, private employers may be between a rock and a hard place on this issue, but when it comes down to it, what would you rather face – a single claim under the NLRA or the potential for several discrimination claims under Title VII that point to statements openly made by co-workers of the plaintiffs? My guess — making sure one complies with Title VII wins out.

*** Where do things go from here? One has to expect that the full 8th Circuit will be asked to review the Cooper Tire case, although that case won’t end the battle. And don’t expect that the Google case will go away anytime soon.

If you’d like to read two interesting points of view on this issue, try these out: Cynthia Lee’s article entitled “I’m a woman in computer science. Let me ladysplain the Google memo to you” at https://www.vox.com/platform/amp/ the-big-idea/2017/8/11/16130452/google-memo-women-tech-biologysexism, and Suzanne Lucas’ article entitled “Google Fires Employee for Expressing

William Stuart Jackson, Partner Wright Lindsey Jennings wjackson@wlj.com www.wlj.com

2017 SU

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The Gig Economy and Employment Laws Trump Administration Outlook • Immigration Update Discrimination & Harassment • Diversity in the Workplace Fair Labor Standards Act

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Healthcare are two of them, but there are others. These can vary by state. If your company falls under this regulation, it's important to choose a reliable fingerprinting company with a robust number of available locations.

Other Background Screening Products Should Still Be Used

Busting the Myths of Fingerprinting During the Hiring Process

S

By STEWART GOTT

mart Human Resource professionals and hiring managers know they can’t take today’s applicants at face value. There may be unsavory and illegal behavior hiding behind that bright smile and polished resume. That’s why the majority of employers use some degree of background screening to make their hiring decisions. Some employ a criminal search, while others use several screening reports, drug screening, and assessment testing to help reach their decisions.

Fingerprinting is another screening option that helps employers gain additional information on the job candidates background and past behavior. A person’s fingerprints are unique to them, so this process can offer employers information about the job candidate that they may not be able to uncover any other way.

What is fingerprinting?

This process typically involves job candidates making an appointment with an on-site facility, and physically driving there and submitting their fingerprints into a system. They are run through a database search, and the results are sent back to the employer. The information gleaned from fingerprinting can be used, along with the results of the other background screening reports, to determine a job seeker’s fit or lack thereof with the company.

Just like with any background screening tool, there are some thoughtful considerations employers should make before adding fingerprinting into the mix. Here are a couple of points you need to be aware of when thinking about using fingerprinting for background screening.

Fingerprinting May Be Required Some industries are regulated and are required by state or federal governments to fingerprint job candidates before hiring. Banking and 22

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It's a common misconception that fingerprinting for background screening uncovers everything an employer needs to know about a job seeker. This is not the case. There may be holes in the information fingerprinting returns.

A few of these are: Outcomes of arrests. Getting arrested doesn't automatically mean the person gets convicted.

According to the EEOC guidance, Employers can’t deny employment due to an arrest record alone.

Incomplete or outdated information. The FBI doesn’t receive all convictions. Although a state database may have information related to a criminal conviction, they may not report immediately nor be required to report at all to the FBI. This can affect job seekers unfairly.

Arrests don’t always include fingerprints.

Certain states and municipalities may choose to not to fingerprint. Other states or counties may fail to report records to the FBI. In these cases, fingerprinting a job applicant won’t turn up anything, which could leave employers making decisions on incomplete information Employers cannot access the FBI database unless authorized by a federal, state or local law. - This limitation means that most employers must rely on commercial background check companies for accurate data.

Employers who take action on fingerprinting results alone could be missing important information which could cause them to hire unqualified or dangerous candidates! This can cause all sorts of issues, from workplace violence, lack of proper customer support, to embarrassing press and even potentially costly litigation. The solution to this issue is to make certain when you fingerprint job candidates, you also conduct other searches like criminal records searches and employment and education verifications. When used together as an entire screening process, the combination of these searches will provide a clear, reliable picture of the candidate.

If employers need to use fingerprinting for background screening, what should they look for in a provider?

❶ Number of locations. Think about it: If you have an applicant who needs to get fingerprinted, do they want to have to drive an

hour to the fingerprinting location? NO! Long driving requirements may end up weeding out great candidates, or holding up your hiring process because the candidate keeps procrastinating on going. Make it as easy as possible to fingerprint job candidates. Choose a company with a variety of centrally-located places that are open many hours a day. If the potential vendor can't tell you how many fingerprinting locations they offer, look somewhere else.

❷ Turn times. Fingerprinting for background screening is often the factor that holds up the entire hiring process! While you don't have control over when the candidate chooses to be fingerprinted, you can ask your vendor how long it takes them to return results. Request documented turn times so you can work them into your decision-making process.

❸ Technology considerations. Communicating electronically through platforms the employer already uses is key to a seamless, trouble-free system. Ask how results are returned, and whether or not the fingerprinting provider is able to integrate with current systems. The easier it is to contact the candidate, move progress along, and receive results, the less stressful and more effective the process will be.

❹ Fingerprinting credentials. Fingerprinting for background screening demands accuracy and reliability. Ask the vendor where their information comes from, and make certain they are approved in the states you do business, and are an FBI channeler, if applicable. Knowing the returned information is true and accurate is crucial for fingerprinting specifically, and background screening in hiring decisions in general.

With more employers hiring this year than in the recent past, it's important they maximize the chances of choosing the best, most qualified employees for their open positions, and extend an offer as fast as possible or risk losing the job seeker to another position. Whether you are in an industry that requires you to fingerprint job candidates, or are simply choosing to add this solution to your overall screening process, take these points into consideration when implementing fingerprinting into a complete employment screening procedure. Be sure you choose a vendor partner that will enhance the accuracy and efficiency of your screening process, and assist in painting a clear, thorough picture of the job candidate.

Stewart Gott National Account Executive sgott@datafacts.com www.datafacts.com

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I’m not sure what to call that missing secret sauce I think maybe it’s something a little different for all of us, but over time I began to piece it together painfully and slowly by failing my way forward.

I wish I had known then what I know now, but sometimes lessons like these can only be learned with time and experience and persistence.

Executive Presence: Best Practices for Grooming the Next Generation of Leaders

By AUSTIN BAKER

So, what is executive presence anyway?

A study done by Work Life Policy identified 3 key factors, one of which was the clear core characteristic.

I

will never forget… I was 18 years old and ready to set the world on fire, I had just begun my future as an entrepreneur by starting an employee benefits company. I thought I knew everything there was to know about the world of benefits as well as business. So, I decided I would begin my journey by calling literally every business I could look up in the phone book. My only other idea and goal was to set some meetings. Maybe not a ground-breaking plan for success but I was sure I would succeed through good old fashioned determination. Unfortunately, as it turns out, I was so bad at making cold calls that it took me probably a thousand dials to get my first appointment! I was told, “No," too many times to count. But I had my will and my determination so I told myself, those “no’s” just meant, “not right now.”

Eventually, I walked into my first appointment. I was ready. I had done my research on the company, I had printed out everything I could find on said company, and I had all of this research clasped in my hands in a brown paper hanging folder in case they asked me a question that I needed to look up. I was…at least I thought I was…prepared. At the time, I had one suit and two ties and I looked like I was about 15 years old. But I had my research ready and on that day of my meeting I decided to wear my red power tie…so I knew they were going to be impressed. When I arrived, I sat down in this executive’s office, after getting a strange look from his assistant as she ushered me in. Looking back, I think she wanted to stay just to see what was about to happen. Finally, the executive looked at me and said, “how did you get in my office?” I knew the meeting could only go up from there.

So, I went back to the drawing board and started reading every book I could find on presentation skills, dressing for success, communicating with confidence, and the art of selling. While all these books were very helpful to my education and success it was not until a mentor entered my life (that was not my father, a family member, or a teacher) that everything I had been doing and learning was finally brought into focus. My mentor was able to guide me in practical, real world settings how to better present myself and command confidence in my day to day interactions. However, it would still take some time and many failures before I truly became comfortable in my own skin.

24

Recently our firm HRO Partners hosted a panel event on the topic of Executive Presence.

We were fortunate enough to have a panel of individuals from diverse and varying backgrounds in Executive Coaching, HR Leadership and even Economic Development/Political Consulting.

Aside from a great panel that engaged in a deep and meaningful conversation we were also fortunate to have an involved audience that asked some thought provoking questions as well as additional perspective.

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67% of people surveyed said that Gravitas was hands down the core characteristic.

So, what is gravitas?

The survey broke it down like this: 77% Confidence- Grace under Fire 70% Acting Decisively and Showing Teeth 64% Integrity and “speaking truth to power” 60% Demonstrating Emotional Intelligence 57% Burnishing Reputation 52% Projecting Vision

Beyond Gravitas- Communication Skills & Appearance are the second and third of the core characteristics and defining factors of executive presence.

Well I don’t think it takes calculus to add up those percentages and realize that it adds up to way more than 100%.

Ultimately it is the combination of these skill sets that keeps you from being the guy walking into an executive’s office with a brown Pendaflex file not knowing any better.

Another survey of 268 executives said “Executive Presence” makes up about 25% of what it takes to get promoted and more that 60% of those individuals said that sounding uneducated and dressing inappropriately both work against your success.

This plays into the first survey that told us Communication Skills and Appearance make up 2/3’s of what is considered Executive Presence.

Austin Baker One other study sites Relationship Management and Authenticity as additional factors that make up a person’s Executive Presence. In the past I, have known of organizations that when a new person was on-boarding, the organization would put them through a boot camp of sorts which relied heavily on these two factors. Ultimately, I believe this practice has been abandoned and now days we find the factors of Executive Presence have become the unspoken rules to success.

The MILE program, that I helped cofound at the University of Memphis trains on many of these factors through formal mentorship interactions. No longer does someone have to discover the map to success for themselves, or wait until they are lucky enough for a mentor to enter their lives. Through the MILE program, our young professionals entering the workforce and many of our organizations, are paired with successful members of our community that can help guide them along.

Now 10 years later we have trained over 2,400 individuals that are making a difference in the communities they live in and the organizations they work for. Executive Presence can be taught and learned whether it be a formal mentorship program or training. Companies should consider adding this topic to their internal leadership programs and they will see results.

ABOUT THE AUTHOR Austin Baker is the President of HRO Partners a Human Resources Consulting and Benefit Administration and Enrollment Firm. HRO Partners is a fast-growing provider of Benefit Enrollment Solution that works with many strategic vendor partners such as Colonial Life & Accident Insurance Company who is a market leader in providing financial protection benefits through the workplace, including disability, life, accident, dental, cancer, critical illness and hospital confinement indemnity insurance.

Colonial Life’s benefit services, innovative enrollment technology and personal service support more than 80,000 businesses and organizations, representing more than 3 million of America’s workers and their families. For more information, call Baker at 1-866822-0123, visit www.hro-partners.com or connect with the company at www.facebook.com/hropartners, http://www.linkedin.com/in/jaustinbaker or http:// twitter.com/jaustinbaker

The Executive Presence Panel (L-R) Andre Dean, President of Dean & Associates, LLC; Angela Copeland, Career Coach and Founder at Copeland Coaching, Ashley Pennington, Vice President of Human Resources & Organization Development at The ServiceMaster Company, and Austin Baker.

Attendees at the Executive Presence

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DISCOVER

Evaluating Your Healthcare Key Performance Indicators START WITH REVENUE IN MIND…

By ANTONIO WILLIAMS

Healthcare Expenditure Continues to Eat Away at Employer Revenue THE RISING TIDE OF HEALTHCARE COST

According to the Department of Commerce’s Survey of Current Business, Americans are spending $0.17 out of every dollar on healthcare. Recent studies also indicate that the United States ranks number one worldwide in the highest total health expenditure as a share of GDP. Considering how high U.S. healthcare cost has risen in ten-year intervals since 1980, consultants must continually remind their clients how critically important it is to optimally manage this expense in a long-term manner.

So how do employers deal with the rising tide of healthcare costs? How can businesses keep their operations profitable in a world that is volatile, uncertain, complex and ambiguous? Well, as Bob Johansen from the Institute for the Future said, “The kind of strategy that works is to be very clear about where you are going, but flexible in how you get there.”

HEALTHCARE COST VS. EMPLOYER ANNUAL PROFITABILITY TARGETS

Employers have growth goals and financial targets they set out to hit utilizing their most valuable resource - the employee. Productivity is top of mind as they hire the best talent to empower their organization and achieve the maximum results, but for many employers, those results are being offset by year-over-year volatility in healthcare cost.

As corporate strategies get implemented, many companies aren’t even noticing that several key healthcare decision factors are also getting shifted around. Not to mention, the structure of their composite Per Employee Per Year (PEPY) metric is becoming more dynamic.

The major question is: As different organizational changes are happening year-over-year within your company, is the underlying structure of your reporting easily adaptable to emerging situations? There is a fine balance between customization and simplicity that can really put employer-groups in control of the next three to five years.

TAKE CONTROL OF YOUR DATA

Offering differentiated benefits while simultaneously controlling cost is a huge challenge employers face in an increasingly global and rapidly-changing economy. The key is to take control of your healthcare data, alter your paradigm as needed, and rethink strategy in ways that matter en route to meeting larger business objectives specific to your organization.

When companies restructure and more complexity is added from seemingly unrelated business goals, clear vision around heathcare strategy becomes crucial. Organizations have to be looking at Key Performance Indicators (KPIs) through the right lens in order to capitalize on information. One of the most important steps in laying out strategy is establishing new frameworks which cut down any ambiguity found in current data visualizations.

One Size Doesn’t Fit All BENEFITS PHILOSOPHY & THE PULSE OF YOUR ORGANIZATION

So many employer-groups are receiving canned reports from their insurance carriers as well as their consultant which are not focused on the company’s strategic priorities. These reports may show interesting metrics around utilization, (cost per visit, cost per script, etc.) but many employer-groups are still asking, “So what?”

“What does this mean to our business and how can we use this in the context of our desired outcomes?”

Simplification of KPIs is crucial when delivering measurable results that achieve agreed upon outcomes. This in itself is what positions employer-groups for future opportunities. When data is broken down in the right ways, it becomes easier to tell if quality and insight are being delivered.

Once the basic metrics are defined, then begins a cyclical process of discover, design and deliver.

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Demographic, economic and clinical characteristics of a group are changing constantly. Things like age, gender and average dependents per employee are shifting as organizations operate on interrelated decisions.

Though some of these decisions may seem minor and completely unrelated to healthcare expenditure, they actually could be very crucial turning points. Good reporting, will help delineate, for example, whether absolute costs are growing because the population is growing, or the cost per member is growing.

Ensuring your benefit program supports your business goals starts at the basic measuring points selected to evaluate your program’s performance. Conduct an annual program assessment using benchmarks to see how similar organizations compare. Knowing this will allow you to better define what value means to you and adapt your healthcare reporting to your larger business goals.

DESIGN

In setting your healthcare strategy, there is always an opportunity to make program changes (plan cost sharing, new wellness components, alternative contribution strategies, etc.). It is good practice to always ask your broker/consultant to provide you a number of alternative design and pricing strategies so you can see the administrative and financial impact of making certain changes.

Design changes outcomes so it is very important to design with intent. The design of a program with all of its provisions will have a direct impact on utilization, cost, and employee satisfaction so a good question to ask at each renewal is, “Why is this better than the alternative?” See your employees’ perspective at the point of service when they know the plan provisions they have been selecting again and again at open enrollment.

Three key questions are: 1.) “What are their personal goals in selecting this plan among the choices we made available to them?”

2.) What are our goals in providing those particular benefit options?

3.) Are we steering people in the right direction?

DELIVER

At the end of each plan year (or before the new year), it is effective to meet with your consultant to review the past year’s activity, performance, and key milestones achieved. Revisit those strategies and objectives that were set so you can decide on the coming year’s priorities and opportunities.

Major deliverables and accomplishments are reflected in the year-over-year trends in KPIs, so establishing relevant metrics in your reporting format is crucial in the early stages of your cycles. The way companies evaluate healthcare KPIs heavily informs their strategic look ahead.

Antonio D. Williams Senior Financial Analyst Regions Insurance, Inc. antonio.williams@regions.com

Do employee benefit laws remind you of alphabet soup?

Regions Insurance is here to provide meaningful solutions that best support your organization’s goals. Our employee benefit advisors and law-trained professionals can help develop the right plan of action and break down all the confusing laws and regulatory acronyms so you’re not left staring at a bowl of alphabet soup.

Tom Hayes Employee Benefits Practice Leader tom.hayes@regions.com 479-684-5259 www.regionsinsurance.com

The Coverage You Need.

The Guidance You Trust.

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Find Regions Insurance offices in Alabama, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, South Carolina, Tennessee and Texas ©2016 Regions. Regions Insurance is an affiliate of Regions Bank. Products and services are offered by Regions Insurance, Inc., and underwritten by unaffiliated insurance companies.

A Lesson Learned from the Healthcare Debate Are You Overlooking the Most Viable Option for Your Employees?

By K ERSTIN NEMEC and TIM NORWOD AS AN HR PROFESSIONAL, you wear two important hats when it comes to health insurance. Your responsibilities include crafting a comprehensive benefits program for all employees at a cost your company’s overall budget can sustain. While managing your budget, you are also charged with structuring a plan with various ranges of premium and out of pocket coverage costs, so that your employees can afford and actually use their coverage.

For many of you, open enrollment is on the horizon, and you are reminded how difficult your quest is to obtain high quality health care coverage at the most economical price for your company and your employees.

What works? What doesn’t? While there are many strategies to maximize cost savings, most involve shifting costs to the employee through increased deductibles, decreased coverage, skyrocketing out of pocket costs, and unaffordable premiums.

The recent national health insurance debate taught us a great deal about national health issues, and employers should turn this information into an opportunity. A key lesson learned was the value of state sponsored health plans such as Medicaid and the safety net it provides to over 20% of Americans for their health insurance coverage. State plans have changed tremendously over the past two decades and have become a mainstream option for coverage, very similar to what Medicare has become for Americans 65 and over.

With over 70 million Americans insured by Medicaid and the heated debate around healthcare over the past 6 months, Congress and Americans were forced to re-evaluate its perception and value of this program. Employers, especially those who rely on hourly workers to successfully run their business, should recognize why it makes sense to offer state sponsored health plans education and enrollment assistance to these employees. Fifty-nine percent (59%) of the US workforce are hourly workers and even more astonishing is that most US workers (60%), earn $35,000 or less annually. Employers that want to drive loyalty and engagement need to develop member centric options that need to include meaningful choices that meet the diverse needs of its workforce To evaluate whether state sponsored plan offerings makes sense for your company, each employer should evaluate their employee demographic and understand the differences in coverage and cost between private insurance and state health insurance.

A recent analysis by the Commonwealth Fund Biennial Health Insurance Survey 2016 (How Medicaid Enrollees Fare Compared with Privately Insured and Uninsured Adults), reflects the following findings: • The level of access to health care that state sponsored coverage provides is comparable to that afforded by private insurance.

• Adults with state coverage reported better care experiences and higher 28

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preventive services than those who had been uninsured during the year.

• State plan enrollees have fewer problems paying medical bills and fewer cost related access problems than either the privately insured or the uninsured.

These findings appear to validate the quality of care received by recipients. State sponsored healthcare is most often provided through a private managed care plan at a private hospital or doctor’s office, as most states contract out their Medicaid plans to managed care companies. They are the same insurers that are providing private insurance to many employers such as United Healthcare, Amerigroup, WellPoint, and Kaiser. Many states do not even refer to the plans as Medicaid anymore since they are privately run and give the enrollees network options like private coverage. You can check out quality rankings in your state from the National Committee for Quality Assurance (www.ncqa.org).

But what about the financial comparison of the cost of preventive care and treating illness while saving employees from private premiums, not to mention unaffordable deductibles and out of pocket costs?

There really is no comparison to private insurance, bottom line is state health insurance is a more affordable option. In most states, there is: • No (or very low) premium.

• No charge for coverage, no deductibles or out of pocket maximum limits, and small co-pays for certain services.

• Coverage is generally available to the entire family, which provides needed health coverage for low-income adults and children.

• Coverage includes medical, prescription drugs, and generally vision and dental.

• With very low upfront costs, your valuable employees will have access to coverage AND use it.

State health plans are not a one size fits all band-aid. Eligibility is based on household income and size and varies by state. Most likely 10-20% of an hourly workforce population will qualify, but generally those who do qualify are the employees who need it most.

And many of these employees are the backbone of your operation, and will value the enhanced financial stability you will provide through these plans quality care.

As you look ahead to the Fall, Open Enrollments, and your 2018 budget and benefits planning, consider researching and possibly piloting a program to add State Sponsored Health Plan education and enrollment services to your benefits. These services give employees a consumer-driven experience by helping them find the right plan for their pocketbook, and as a company you’ll benefit from healthier and engaged employees, and reduced insurance costs.

Kerstin Nemec President Med-Enroll, Inc.

Tim Norwood Executive Vice President Med-Enroll, Inc.

You’re invited to attend the

8th Annual

Human Resources & Employment Law Fall Conference November 1, 2017 Wednesday

8 a.m. to 4:00 p.m.

Union University Carl Grant Event Center 1050 Union University Dr. Jackson, TN 38305

Presented by: THE WEST TENNESSEE SOCIETY FOR HUMAN RESOURCE MANAGEMENT In coordination with: THE LAW FIRM OF RAINEY, KIZER, REVIERE & BELL, P.L.C. Pitch your tent and pull up a log to join us for an informative day where we will explore solutions to HR challenges including: Adventures Await! - Training and Mentoring Employees – A panel of HR administrators and attorneys will discuss innovative approaches to developing employees through training and mentoring.

Happy Trails: Age in the Workplace - Learn how to effectively and efficiently manage the generational issues and age-related employee challenges.

2017 Legal Update – A Field Guide - A survey of new laws and regulations, as well as recent changes to federal and state employment laws.

Campfire Stories - Employment Case Studies - An interactive discussion of recent employment law cases and the application of relevant concepts and HR strategies.

Joint Employment/Independent Contractors - Hear employment attorneys discuss guidelines for special employment relationships and traps that HR professionals should look to avoid.

Lunch is provided. Explore our impressive showcase of HR-related exhibitors. Door prizes and more.

Registration Fee:

$100 for WTSHRM Members $125 for non-WTSHRM Members Join WTSHRM for only $25 at: wtshrm.shrm.org/join

Register Now!

wtshrm.shrm.org/events

The registration deadline is Thursday, October 26, 2017. Register early as tent sites are limited.

You may pay by check or credit card. Questions: eamicone@raineykizer.com This program has been submitted for 6 recertification credit hours through HRCI and SHRM.

www.HRProfessionalsMagazine.com

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NLRB expected to “flip” under President Trump:

What that means for employers

BY ROBIN SHEA, PARTNER

Most employers were delighted when “lone dissenter” Philip Miscimarra was named Chairman of the National Labor Relations Board by President Trump. Chairman Miscimarra was frequently a voice of reason on Board decisions that often gave short shrift to the legitimate needs of employers.

Then, almost as quickly, employers were disappointed to hear Chairman Miscimarra announce that he would not be seeking reappointment to the Board when his term expires on December 16, 2017. (The Chairman said that he was leaving because he had three children going to college, which seems to mean that private practice will be more “tuition-friendly” than government work.)

There is no word on who will be nominated to take Chairman Miscimarra’s place, but based on the Board nominations the President has made so far, the outlook is encouraging for employers, their counsel, and for Human Resources professionals.

When President Trump took office, the five-member Board had only three members: Mark Gaston Pearce, a Democrat who was NLRB Chairman under President Obama, Lauren McFerran, also a Democrat, and now-Chairman Miscimarra, the lone Republican.

This summer, the President nominated two Republicans to fill the vacant slots on the Board: William Emanuel, a shareholder in the Los Angeles Office of the management-side law firm Littler Mendelsohn, and Marvin Kaplan, counsel to a Commissioner on the Occupational Safety and Health Review Commission.

Mr. Kaplan’s appointment was confirmed by the Senate in August, giving the NLRB an equal number of Democrats and Republicans. The Senate has yet to vote on Mr. Emanuel, but he is expected to be confirmed. If and when Mr. Emanuel is confirmed, the Board will have a Republican majority – at least, until Chairman Miscimarra leaves.

Meanwhile, Richard Griffin, current General Counsel for the NLRB, will be leaving in November 2017 when his term expires.

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According to news reports, President Trump’s nominee will be Peter Robb, a management-side labor attorney with the firm of Downs Rachlin Martin, PLLC, in Vermont. Before going into private practice, Mr. Robb was a staff attorney with the NLRB, and he also served as counsel to Robert P. Hunter, a Republican Board member who served during the Reagan Administration.

In short, although Chairman Miscimarra’s announced departure may be a “blip in the flip,” in the not-too-distant future, employers can look forward to a Board that will be predominantly Republican and more even-handed than the Board has been under Obama Administration. Here are some of the specific areas where employers can expect change.

More latitude for employee handbooks and employer policies It is no secret that the NLRB has cracked down on employee handbook rules and employer policies in recent years, forcing employers to walk a tightrope to attempt to ensure that the policies would not be interpreted as interfering with employees’ Section 7 rights under the NLRA. Recent NLRB panels have found that employers may not maintain broad rules that require employees to treat other employees and management with respect, demonstrate loyalty, or maintain a positive work environment by communicating in a manner that is conducive to effective working relationships.

Additionally, under current rules, employers are not allowed to maintain broad rules that prohibit offensive communications or arguments between co-workers.

These prohibitions stem from the Obama Board’s application of a “reasonably construe test.” Under that test, any handbook rule or employer policy that can reasonably be construed to limit employees’ Section 7 right to engage in protected concerted activity for the purpose of collective bargaining or other mutual aid or protection, is unlawful interference that violates Section 8(a)(1) of the NLRA. This is so even if the rule or policy does not explicitly restrict activities protected by Section 7, was not adopted in response to Section 7 activity, and had never been applied to restrict Section 7 activity.

The test has significantly limited employers’ ability to draft handbook rules and other policies to manage their working environments.

Based on a dissent by Chairman Miscimarra in the case of William Beamont Hospital, we would expect a Republican-majority Board to evaluate and balance “(i) the potential adverse impact of the rule on NLRA-protected activity, and (ii) the legitimate justifications an employer may have for maintaining the rule.”

(Emphasis in original.)

Presumably, with such a test in place, employers could once again strive to maintain a harmonious work environment through handbook rules and other policies that are conducive to employee work environments and productivity.

Direct liability of employers with only remote or potential control In recent years, the Board under the Obama Administration took an expansive approach to finding joint employment. Under the new Browning-Ferris standard, “employer” status may be found to exist for an entity that may indirectly – or even potentially – control employees, without any evidence of actual or direct control. Given the countless types of business structures and relationships, many employers are rightly concerned that the Browning-Ferris standard will subject them to “employer” obligations and potential liability with respect to employees with whom they have no contact, and over whom they have no control.

Chairman Miscimarra dissented in Browning-Ferris. With a Republican Board, the Browning-Ferris joint employer standard may be overturned.

“The right to change policies” means the right to change policies A third battle in the NLRB arena involves the effect of management-rights provisions in collective bargaining agreements. For example, in Graymont PA, a management rights provision gave the employer the right to unilaterally “adopt and enforce rules and regulations and policies and procedures.” However, when the employer changed some work rules, and attendance and progressive discipline policies, a panel of the Board found that the employer did not have the right to change those policies because they were not specifically mentioned in the management rights provision. Thus, the panel majority found, there was no “clear and unmistakable” waiver of the employer’s obligation to bargain with the union before making the changes.

In a strongly-worded dissent, Chairman Miscimarra commented that “no reasonable person reading this language could conclude that [the employer’s] right of unilateral action extended to rules, regulations, policies and procedures concerning some matters but not others.” He noted that a management rights provision can be general, yet simultaneously “clear and unmistakable.”

It seems likely that employers soon may no longer have to, in Chairman Miscimarra’s words, “spell out every detail of life in an industrial establishment” in order to retain the right to make policy changes authorized by a management rights provision. Instead, general waiver language that “clearly and unmistakably” provides that the employer has the right to change policies and procedures is likely to suffice.

In Chi LakeWood Health, employees’ job descriptions explicitly stated that they were responsible for supervising other employees. Nevertheless, the Board discounted that evidence and concluded that the employees in question did not, in fact, possess supervisory authority and thus did not have “supervisor” status.

In a dissent, Chairman Miscimarra outlined the following considerations that he would take into account when determining whether workers were “supervisors” or “employees”: “(i) the nature of the employer’s operations; (ii) the work performed by undisputed statutory employees; and (iii) whether it is plausible to conclude that all supervisory authority is vested in persons other than those whose supervisory status is in dispute.” Using this framework in the future, we would expect for mid-level supervisors in traditional settings to be excluded from the definition of “employee” – an outcome with both legal and practical benefits for employers facing union campaigns.

Class action waivers in arbitration agreements A fifth area where employers can expect change is on the issue of whether class action waivers by employees in arbitration agreements are valid and lawful. The Obama Board followed the rule of D.R. Horton and its progeny, finding that such agreements are invalid and unlawful.

Some U.S. Courts of Appeal agree with the Board, and others disagree. The U.S. Supreme Court has granted certiorari in three cases to decide whether the Board rule in D.R. Horton is correct.

Chairman Miscimarra’s view on the issue is clear. In a dissent in Murphy Oil (one of the cases before the Supreme Court), he vehemently opposed the D.R. Horton approach as an overreach of NLRB power, stating, “In today’s decision, my colleagues treat our statute as the protector of ‘class’ action procedures under all laws, everywhere.”

Conclusion Once the President gets a Republican majority on the Board, we expect that there will be changes and reversals of NLRB decisions in a number of areas. We also anticipate that the Board will begin to apply the NLRA more even-handedly, and in a fashion that serves the interest of employees, employers, and unions, making the NLRB more-neutral territory for all involved.

Supervisors Another area in which the Board under President Obama has pushed to tilt the playing field to unions’ advantage is in the classification of workers as “employees,” who are within the protection of the NLRA, as opposed to “supervisors,” who are outside the law’s protection.

Robin Shea, Partner Constangy, Brooks, Smith & Prophete, LLP RShea@constangy.com www.constangy.com www.HRProfessionalsMagazine.com

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Top Labor and Employment Law Attorneys LISTED IN CHAMBERS USA

HR Professionals Magazine congratulates our top labor and employment law attorneys from Tennessee, Alabama, Georgia, Kentucky, Arkansas, and Mississippi listed in the 2017 Chambers and Partners Guide.

For details about Chambers and Partners research, please visit their website, www.chambersandpartners. com. This list is not exclusive and represents the firms who responded to our inquiry.

Ogletree Deakins Ogletree Deakins is a labor and employment law firm 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 six consecutive years. Ogletree Deakins has 850 attorneys located in 52 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.

ALABAMA

GEORGIA

Peyton Lacy, Jr. has four decades of experience in labor and employment law.

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.

Meg Campbell is a shareholder in the Atlanta office 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 expertise and 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. Meg has litigated single plaintiff, multi-plaintiff, and class and collective action jury and non-jury cases in federal and state courts around the country.

James 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.

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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 twice—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 Deakins is Chairman Emeritus of Ogletree Deakins.

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.

MISSISSIPPI Tim Lindsay is routinely sought by clients to provide legal advice and offer guidance in avoiding potential problems and costly litigation in the labor and employment arena. In litigation, Tim has defended employers against claims involving state and federal employment laws with a high success rate for over 30 years. To Tim, representing management in labor and employment disputes is more than a professional career choice; it is a personal passion to which his practice has been dedicated for years.

Robin Taylor’s practice focuses on defending employers and management in employmentrelated disputes, including disputes involving allegations of discrimination, harassment, retaliation, wrongful discharge, failure-to-accommodate, FMLA interference, non-competition and non-solicitation covenants, trade secret, and other related state and common-law claims. Robin also represents employers in labor arbitrations, union elections, and proceedings before the National Labor Relations Board. Robin graduated cum laude from Tulane Law School, where she was a member of Phi Delta Phi. Robin attended college at Belhaven College and graduated magna cum laude with a Bachelor of Science in Psychology.

TENNESSEE Keith Frazier, a former member of the Ogletree Deakins Board of Directors, 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 in both state and federal courts, and he has experience trying collective actions in federal court before a jury and in an arbitration setting. Frazier has also handled over 40 arbitrations arising under collective bargaining agreements.

Liz Washko is the Managing Shareholder of the Nashville office and the co-chair of the firm’s Pay Equity practice group. Washko represents management in employment matters at the agency level and in litigation, including discrimination, harassment, retaliation, FMLA, and FLSA cases. Washko has particular experience defending employers in FLSA collective actions and conducting pay audits and pay equity analyses. Washko has served as lead counsel in jury trials in state and federal courts. In addition to her administrative agency and litigation practices, Washko conducts training on employment issues, drafts and reviews employment policies and agreements, and conducts investigations for employers.

The Kullman Firm The Kullman Firm has exclusively represented management in labor and employment matters since 1946, including matters relating to Title VII, the ADA, ADEA, FMLA, FLSA, OSHA, ERISA, COBRA, OFCCP, NLRA, WARN and other federal and state employment laws.

The Firm represents clients in a wide range of industries, which provides it with a sound understanding of the general business practices of a vast array companies. With this experience, the Firm is able to provide proactive legal advice to help clients achieve their business goals while complying with applicable law.

Ernest R. Malone, Jr. has represented management exclusively for 40 years in labor and employment law.

He advises management in the employment dimensions of strategic planning, the development and administration of employment practices, policies, mergers, acquisitions, and divestitures, compliance with employment and anti-discrimination laws, union organizing and NLRB elections.

Samuel Zurik, III is experienced in representing employers in a wide range of employment matters. He concentrates his practice in defending employers in employment litigation and arbitration of employment claims, including all categories of alleged discrimination and harassment, Fair Labor Standards Act/wage-hour litigation, wrongful termination, whistleblower, and breach of contract. Mr. Zurik has acted as lead counsel on complex disputes, including SarbanesOxley whistleblower claims before the Office of Administrative Law Judges; collective actions under the Fair Labor Standards Act; and class-based discrimination claims and pattern and practice claims prosecuted by the Equal Employment Opportunity Commission. Mr. Zurik has defended claims in 49 states.

Howard S. Linzy has been lead counsel in a large number and variety of NLRB representation and decertification elections, union organizing drives, and contract negotiations for companies in units ranging from a few employees to several thousand employees.

He is an experienced trainer of managers and supervisors in the fundamentals of employee relations and in providing advice on compliance with employment discrimination laws, Wage and Hour regulations, matters before the NLRB, and the employment aspects of mergers, acquisitions, and sales.

Taylor B. Smith - Mr. Smith has 50 years of experience in the practice of law. He is a Fellow of the American College of Trial Lawyers and is listed in The Best Lawyers in America®. He also has been identified as a Mid-South Super Lawyer by Mid-South Magazine, and he is one of only two lawyers in Mississippi meriting the rating of “Star Individual” in Chambers and Partners.

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Fisher Phillips Fisher Phillips is one of the largest labor and employment law firms in the country with more than 350 attorneys in 32 offices nationwide, including Tennessee, Florida, Georgia, Kentucky and Mississippi. Some of the most talented and experienced attorneys come to the firm to handle challenging cases involving workplace issues faced by employers and HR professionals. Fisher Phillips attorneys specialize in all areas of labor and employment law and have the experience and resolve to achieve your desired results in court, with employees and unions, and with competitors.

LOUISVILLE Tom Birchfield is the managing partner of the Louisville office, which he helped open for the firm in 2009.

Prior to 2009, he was the chairperson of the labor and employment practice group of a large regional law firm.

Tom has represented employers exclusively for over 25 years in federal and state courts and before various administrative agencies throughout the nation. Tom assists employers with their employment practices liability prevention efforts by conducting training, counseling, reviewing and revising policies and preparing severance agreements. Tom also represents companies in collective bargaining, arbitrations and proceedings before the National Labor Relations Board.

Cynthia Blevins Doll is a partner in the Louisville office and has 25 years of labor and employment experience.

She represents employers in employment litigation of all types in the federal and state courts, and she counsels them on compliance with the law in such areas as Family and Medical Leave Act (FMLA), employment discrimination, Americans with Disabilities Act (ADA), Title VII, wrongful termination, asbestos premises liability, wage and hour issues, reductions in force and sexual and racial harassment. Cynthia frequently litigates non-compete and trade secret disputes and also assists clients in their prevention efforts by conducting employee training and preparing handbooks and policies for the workplace.

Ray Haley III is a partner in the Louisville office and has practiced labor & employment law for more than 35 years. He represents employers in a variety of industries including healthcare, manufacturing, transportation and rehabilitative services. Ray’s representation of clients involves defense of all forms of civil rights and wrongful discharge claims in state and federal courts, as well as arbitration of labor disputes. He regularly advises clients concerning compliance with virtually all employment-based state and federal mandates, union related matters and state and federal wage and hour advice and litigation.

Jeff Savarise is a partner in the Louisville office and chair of the firm’s automotive manufacturing practice group.

Jeff has served Toyota manufacturing’s national outside labor and employment counsel for over 20 years. Jeff practices exclusively in the areas of labor and employment law on behalf of employers, where he handles cases in a number of state and federal jurisdictions. He also provides a variety of preventative maintenance and employment training programs especially geared to the automotive industry. Jeff received the “Distinguished Alumni Award” given to alumni of the University of Akron Law School who have demonstrated significant achievement in the field of law and have made significant contributions to their community.

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Laurel Cornell is a partner in the firm's Louisville office. Her practice involves representing employers in litigation of employment disputes involving Title VII, the Kentucky Civil Rights Act (KCRA), the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), as well as related tort and contract claims. She also has extensive experience advising and representing employers in administrative actions across the country. Laurel is the former vice chair and chair of the Louisville Bar Association's Labor & Employment Section. While in law school, she was a member of the Kentucky Law Journal.

MEMPHIS Jay Kiesewetter is senior counsel in the Fisher Phillips Memphis office, where he devotes his practice to representing clients in the traditional areas of labor relations and employment law. He counsels employers in all aspects of union-free management and advises non-union companies facing union organizing activity. Jay represents employers in unfair labor practice and representational proceedings before the National Labor Relations Board and the United States Courts of Appeal. In addition, he works with companies that have unions to improve union-management relations and represents management in contract negotiations, arbitrations and labor disputes.

Jeff Weintraub is the managing partner of the Fisher Phillips Memphis office. He is a trial attorney who has represented employers in more than 59 jury and bench trials in employmentharassment/discrimination and retaliatory discharge lawsuits. Jeff handles EEOC charges, wage and hour cases, non-compete cases, and labor cases in all courts and agencies, various Courts of Appeals and the U.S. Supreme Court. Jeff was selected for HR Executive’s 2017 Top 100 Most Powerful Employment Lawyers, and Best Lawyers in America for 20 years. Additionally, Jeff is a member of the Chairman’s Circle and Chairman of the Small Business Council of the Greater Memphis Chamber.

FordHarrison FordHarrison is a U.S. labor & employment law firm with more than 200 attorneys in 29 offices, including four affiliate firms. The firm is committed to adhering to the FH Promise, a set of principles that guides how the firm delivers legal services and works with its clients.

FordHarrison attorneys represent employers in labor, employment, immigration and employee benefits matters, including litigation. 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 49 countries throughout the world. For more information on FordHarrison, visit fordharrison.com. To learn more about Ius Laboris, visit iuslaboris.com.

TENNESSEE Louis P. Britt, III, Regional Managing Partner of FordHarrison’s Memphis, Nashville, and Dallas offices, concentrates his practice on employment litigation and advice, representing private and public employers in a broad range of employment matters. He 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.

He received his JD from Tulane University Law School. He is also listed in The Best Lawyers in America.

Herbert E. Gerson is the practice leader of FordHarrison’s Global Legal Services practice group and 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. He earned his JD from Emory University School of Law and is licensed to practice in Georgia and Tennessee. He is a Fellow of the College of Labor and Employment Lawyers and a Fellow of Litigation Counsel of America.

Herb was named an Eminent Practitioner by Chambers USA and is also listed in The Best Lawyers in America.

GEORGIA Geetha N. Adinata leads FordHarrison’s Business Immigration practice group. She concentrates her practice on all facets of business immigration and I-9 and E-Verify compliance. She works with local, national, and multinational companies to develop strategies to meet their short-term and long-term needs for foreign workers. She handles the full spectrum of temporary work visa options and permanent visa options for foreign workers, and offers clients high-level strategic advice on immigration related issues. Geetha is a member of the Georgia Asian Pacific American Bar Association and the American Immigration Lawyers Association. She earned her JD from the University of Florida College of Law.

Patricia G. 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. She 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. Patricia earned her JD from the University of Georgia School of Law. She is also listed in The Best Lawyers in America.

John L. Monroe, Jr. has represented employers in the litigation and arbitration of virtually every type of claim that may arise out of the employment relationship. These claims include employment discrimination and harassment, breach of contract, unfair competition, misappropriation of trade secrets, claims arising under state and federal wage and hour laws and family medical leave laws, employment/business torts, claims involving minority shareholder rights and business "divorces". He is a member of the firm's Executive Committee and serves as the managing partner of the firm's Atlanta office. John earned his JD from the University of North Carolina School of Law. He is also listed in The Best Lawyers in America.

Frederick L. Warren handles all aspects of labor and employment law, including traditional labor law, employment litigation, wage and hour matters and workplace safety. 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. He earned his JD from the University of Georgia School of Law. He is a fellow of the College of Labor and Employment Lawyers and is also listed in The Best Lawyers in America.

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Bass, Berry & Sims

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.

Bill Ozier of Bass, Berry & Sims has practiced for more than 40 years as a labor and employment attorney. Bill has been recognized by Mid-South Super Lawyers for the past ten years and earned national praise including more than 30 consecutive years of recognition in Best Lawyers in America® and top-tier rankings in Chambers USA for his “longstanding expertise in discrimination, harassment and retaliation disputes. One client enthuses: ‘He’s one of the best lawyers I’ve ever worked with. He does brilliant work really quickly and he does it well.’” (from Chambers USA 2017).

Bill's ability to provide practical employment advice while remaining mindful of the cost/benefit considerations for the business has resulted in numerous long-term client relationships. Bill represents a wide variety of clients – including a number of Fortune 500 companies – from a broad scope of industries, including manufacturing, distribution, retail, education and healthcare.

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. His work has ranged from defending a major university during a significant wage and hour collective action involving thousands of employees to the successful defense of a major healthcare provider in a gender discrimination/retaliation case. In addition, Tim has served as nationwide labor and employment counsel for the largest nonprofit dialysis company in the U.S. Tim has been recognized by Mid-South Super Lawyers for the past ten years, along with Best Lawyers in America® and Chambers USA for many consecutive years. 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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Bob Horton – As chair of Bass, Berry & Sims’ Labor & Employment Practice Group, Bob Horton represents management in all areas of labor and employment law. Bob's practice consists primarily of counseling clients regarding employment issues and defending companies against all manner of employment claims throughout the U.S. Bob has substantial jury trial experience and has obtained defense verdicts in discrimination and retaliation lawsuits across the country. With a robust non-compete practice, Bob has assisted employers in drafting non-compete agreements on a state by state basis, enforcing non-compete agreements by way of obtaining injunctive relief, and defending the company and new employees against claims of breach of non-compete agreements with prior employers. Bob assists numerous public companies and executives in the negotiation of employment agreements, as well as executive departures and subsequent issues that arise from equity grants in various forms.

Wright, Lindsey & Jennings LLP

Wright Lindsey Jennings' Labor and Employment team has management-oriented practices addressing all aspects of the employee/ employer relationship. The team has extensive experience litigating and arbitrating employment and civil rights claims, in addition to state law claims. Our attorneys defend clients in multi-plaintiff, collective action and class action lawsuits, as well as Department of Labor and EEOC investigations. WLJ's team provides advice and counsel to clients regarding a variety of day-to-day matters, such as employment agreements and disciplinary issues, and represents clients in labor arbitrations, union elections and contract negotiations. Despite our collective litigation and arbitration experience, we place a premium on preventing employee claims that could lead to administrative investigations and litigation. We do this in part by offering employee and manager training on a variety of issues and by providing free educational resources to our clients through quarterly newsletters, employment law luncheons and website articles.

Stuart Jackson heads up Wright Lindsey Jennings' Labor and Employment Team. He advises employers on compliance with civil rights laws and developing personnel policies, employment agreements and covenants not to compete. Jackson also defends employers in federal and state court litigation and appeals involving claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act and the Arkansas Civil Rights Act. Jackson is recognized by The Best Lawyers in America©, Chambers USA “Leader in their Field” and Mid-South Super Lawyers, and has an AV® Preeminent™ Peer Review Rating through Martindale-Hubbell.

Lee J. Muldrow has been engaged in general litigation and workers’ compensation defense in Little Rock for more than thirty years. His litigation practice primarily involves a wide variety of insurance defense cases, including copyright, trademark and trade dress litigation. His workers’ compensation practice entails representing employers, self-insured companies and insurance carriers. Muldrow is listed in The Best Lawyers in America© in the areas of “Worker’s Compensation Law” and “Health Law,” Chambers USA and Mid-South Super Lawyers.

He has also received an AV® Preeminent™ 5.0 out of 5 Peer Review Rating through Martindale-Hubbell.

John D. Davis concentrates his Little Rock practice in the areas of labor and employment law and workers’ compensation. He spends a considerable amount of his time advising clients in connection with a variety of employment-related matters, including terminations, severance agreements, wage and hour issues, union avoidance, union negotiations, arbitrations, personnel policies and compliance with federal, state and local employment laws. Davis has received an AV® Preeminent™ 5.0 out of 5 Peer Review Rating through Martindale-Hubbell, and is listed among The Best Lawyers in America©, Chambers USA and Mid-South Super Lawyers.

Jane A. Kim’s practice centers on defending employers in state and federal court litigation involving claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act and the Age Discrimination in Employment Act. Kim also advises and provides training to employers on compliance with civil rights law. Kim is recognized by Chambers USA as a "Leader in Their Field" and has been listed in Mid-South Super Lawyers since 2013. Kim chairs Wright Lindsey Jennings’ Committee on Associates, and was named to the inaugural Arkansas Business list of "Women to Watch" in Central Arkansas.

Michelle M. Kaemmerling’s practice focuses on employment and commercial litigation in state and federal court, including appeals. She has also represented a number of defendants in employment and consumer class action lawsuits.

In addition to her litigation practice, Kaemmerling regularly advises employers regarding compliance with state and federal employment laws and develops personnel policies, employment agreements, covenants not to compete and other employment-related contracts. Kaemmerling has been recognized

by Mid-South Super Lawyers since 2009 and as a “Leader in their Field” by Chambers USA.

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Cross, Gunter, Witherspoon & Galchus, P.C.

Burch, Porter & Johnson, PLLC

Chambers USA has named Cross, Gunter, Witherspoon & Galchus, P.C. (CGWG) a leading Labor and Employment law firm in the state of Arkansas with a "Band 1" ranking for the thirteenth consecutive year.

CGWG’s team of attorneys provides innovative and unique solutions for today’s fast-paced and evolving legal environment. We are a female majority owned law firm and we have been repeatedly recognized for our family friendly and work life balance initiatives. Respect for employees and an emphasis on work-life balance are hallmarks of our business and we use our experience to help clients meet their diversity goals and mandates.

The Labor & Employment attorneys at Burch, Porter & Johnson have extensive experience representing management in litigation in both state and federal court, as well as counseling and advising regarding a wide range of employment-related issues. From its inception, the firm’s focus has been on client service – providing specialized expertise, value, responsiveness and practical solutions to address our clients’ needs. Clients have counted on the firm’s experience, its commitment to service, and its tradition as a leader in business and community affairs for more than a century.

Missy McJunkins Duke practices in the areas of labor and employment law, education law, and school district litigation. Ms. Duke was appointed by former Arkansas Governor Mike Beebe as Special Associate Justice of the Arkansas Supreme Court and as a member of the Arkansas Advisory Committee to the United States Commission on Civil Rights. The Arkansas Supreme Court appointed her to the Arkansas State Board of Law Examiners and the CLE Board. Ms. Duke is active in the community, currently serving on multiple boards in Little Rock. She was named an Arkansas Business 40 Under 40 in 2011 and is also listed in Mid-South Super Lawyers, Chambers USA and Best Lawyers in America.

Jef Feibelman received the highest Chambers ranking in the field of general commercial litigation in the 2017 edition of Chambers USA. He was also named as Best Lawyers® 2016 Litigation – Securities "Lawyer of the Year" in the Memphis area. Mr. Feibelman engages principally in the litigation, arbitration or mediation of complex commercial matters. He has litigated substantial claims involving fraud, breach of contract, misappropriation of trade secrets, breach of non-compete and confidentiality agreements, shareholder and partnership disputes, and business dissolution and valuation controversies. He joined Burch, Porter & Johnson as a member in 1977 and served as managing partner from 2007-2010.

Carolyn B. Witherspoon practices in the areas of labor and employment defense, transportation law and government law. Ms. Witherspoon is a member of the prestigious Union Internationale des Avocats, an international society of legal professionals recognized before the United Nations; and also serves as an arbitrator for the Court of Arbitration or Sport. Ms. Witherspoon is a 2005 recipient of the Charles L. Carpenter Memorial Award from the Arkansas Bar Association and is listed among the top lawyers in the nation by Mid-South Super Lawyers, Chambers USA, and Best Lawyers in America, and was named to the Mid-South Super Lawyers Top 50 list of attorneys in Arkansas. She is also a Fellow in the College of Labor and Employment Lawyers.

J. Bruce Cross practices in the areas of labor and employment defense law. Mr. Cross served as Chairman of the National Legislative Committee of the Associated Builders and Contractors of America. He is a recipient of the 2017 Albert Nelson Marquis Lifetime Achievement Award and is one of the Who’s Who Legal’s Top 100 Labor and Employment Lawyers, the only one in Arkansas. Mr. Cross is listed among the top lawyers in the nation by Mid-South Super Lawyers, Chambers USA, and Best Lawyers in America, and was named to the Mid-South Super Lawyers Top 50 list of attorneys in Arkansas. He is also a Fellow in the College of Labor and Employment Lawyers.

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Lisa Krupicka made her debut in the 2016 edition of Chambers USA, earning her rank as a leading Labor & Employment attorney in Tennessee. She has also been named as Best Lawyers® 2017 Employment Law-Management "Lawyer of the Year" in the Memphis area. She joined Burch, Porter & Johnson in 1987, and focuses on advising and representing employers on a variety of employment-related matters, including training, wage and hour issues, labor relations, employee discipline and termination, and compliance with the accessibility requirements of Title III of the Americans with Disabilities Act. Her litigation experience includes claims for race, sex, age, disability, religious and age discrimination, and benefits claims, as well as wage and hour class actions.

Baker Donelson Baker Donelson's labor and employment attorneys are spread across all of the Firm's 23 offices from Texas to Florida, up through Washington, D.C. and Maryland. Backed by more than 750 lawyers and public policy advisors, the attorneys offer litigation defense services for administrative and court proceedings at the federal and state level, advice on pre-litigation strategies to reduce legal risks, policy analysis and drafting, compliance audits, management training and labor negotiation. We are part of a Firm culture that promotes diversity, inclusion and a sincere appreciation for creative approaches to problem solving, and we apply those same principles to our client relationships. We are proud to have been listed among FORTUNE magazine's "100 Best Companies to Work For" for eight consecutive years, something few other law firms have attained. Many of our offices consistently rank as a Best Place to Work in their cities and states, as well.

Angie Davis is a shareholder in Baker Donelson's Memphis office and is vice chair of the Labor & Employment Practice Group. She partners with employers on all aspects of employment issues, from day to day counseling, handbooks and policy/ procedure manuals, to high level investigations and defense of claims involving discrimination and/or harassment. She defends clients in both federal and state courts and in matters pending before the EEOC and the NLRB, and has received numerous no cause findings from the EEOC for employers. Listed in Chambers USA since 2016 as a leading labor and employment lawyer.

J. Randall Patterson is a shareholder in Baker Donelson's Jackson, Mississippi office. He represents employers before the EEOC and other administrative agencies, as well as in state and federal court. He also advises employers on policies and procedures, reductions in force, wage and hour issues, employee handbooks and general employment issues. Mr. Patterson is experienced in ERISA litigation, antitrust and white-collar criminal defense.

Listed in Chambers USA: America's Leading Business Lawyers since 2007.

Brooks Eason is a shareholder in Baker Donelson's Jackson office, and has served for nearly 25 years as lead outside counsel in employment litigation for a naval shipyard in Pascagoula, the largest employer in Mississippi. He has also represented shipyards in Gulfport, Mississippi, and New Orleans, Louisiana.

Mr. Eason has successfully defended employers in class and collective actions and individual suits asserting claims for discrimination on the basis of race, gender, age, religion and disability, for sexual and racial harassment, and for violations of the Fair Labor Standards Act. Listed in Chambers USA: America's Leading Business Lawyers since 2007.

M. Kim Vance represents management in every aspect of labor and employment law out of Baker Donelson's Nashville office. She defends companies in employment litigation; presents in-house management training programs to reduce employment related legal risks; counsels management clients through auditing human resources policies and practices; and develops pre-litigation strategies to improve available defenses. She has represented management clients in State and Federal Courts and in defense of administrative proceedings. Listed since 2008 in Chambers USA: America's Leading Business Lawyers.

David Gevertz is an employment lawyer in Baker Donelson's Atlanta office. He vigorously defends organizations accused of violating discrimination, wage and hour, whistleblowing, privacy and benefits laws. He also litigates employment contract and restrictive covenant disputes, and he routinely leads sensitive internal investigations and reductions in force. Mr. Gevertz also represents financial, housing, testing, and hospitality-based institutions sued for violating public accommodations, fair housing, fair testing and fair lending laws. Listed in Chambers USA: America's Leading Business Lawyers since 2009.

Edward R. Young practices in Baker Donelson's Memphis office, but he has a nationwide practice representing public and private management in all phases of labor relations and employment law, including litigation, union avoidance and collective bargaining. He has over 40 years’ experience representing clients in state and federal courts on issues dealing with EEOC, NLRB and the U.S. Department of Labor. He has litigated matters in more than 20 states and in Canada. Listed since 2008 in Chambers USA: America’s Leading Business Lawyers.

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Littler Mendelson, P.C. Littler is the largest global employment and labor law practice, with more than 1,300 attorneys in over 75 offices worldwide. Littler represents management in all aspects of employment and labor law and serves as a single source solution provider to the global employer community.

Consistently recognized in the industry as a leading and innovative law practice, Littler has been litigating, mediating and negotiating some of the most influential employment law cases and labor contracts on record for over 75 years. Littler Global is the collective trade name for an international practice, the practicing entities of which are separate and distinct professional firms. For more information, visit: www.littler.com.

TENNESSEE Jonathan E. Kaplan is a shareholder in Littler’s Memphis office. He 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. He also is a frequent speaker before management and legal groups and has published numerous articles on labor and employment issues.

Lisa A. Lichterman is a shareholder in Littler’s Memphis office. She represents management clients in both state and federal employment litigation as well as administrative proceedings before state and federal agencies. Lisa regularly works with employers to determine the legal, as well as the practical, impact of employment decisions and to develop proactive policies and procedures to improve employee morale, strengthen relationships between management and employees, and ensure compliance with employment and labor laws. Lisa also regularly conducts employee and supervisory training programs in various employment law areas.

Paul E. Prather is a shareholder in Littler’s Memphis office. He 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. With more than 30 years of success in defense litigation, including jury trials, he is a frequent lecturer and author for management and legal groups on labor and employment law issues.

Tanja L. Thompson is office managing shareholder in Littler’s Memphis office and co-chair of the firm’s Traditional Labor Practice Group. She dedicates her practice to representing companies in the area of traditional labor law. National Fortune 500 companies as well as local employers across various industries, such as manufacturing, healthcare, and services, seek her expertise in remaining union-free and in managing their union-represented workplaces. Her union-free efforts include campaigns, comprehensive union vulnerability assessments, human relations audits, communication strategies, and union avoidance and positive employee relations training.

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Michael S. Moschel is a shareholder in Littler’s Nashville office. Michael brings notable on-theground experience to his traditional labor work, with distinctive strength in the healthcare and federal contracting industries. He negotiates significant labor contracts and represents employers before the National Labor Relations Board (NLRB) and the Department of Labor (DOL). He regularly advises clients regarding compliance with the National Labor Relations Act (NLRA) and federal government contractor labor laws, regulations and executive orders, including obligations under the McNamara-O’Hara Service Contract Act (SCA) and the Davis-Bacon Act.

Jennifer B. Robinson is office managing shareholder in Littler’s Nashville office and co-chair of the firm’s Food & Beverage Industry Group.

She has been the lead defense attorney in nearly 40 wage and hour class and/or collective actions involving claims of misclassification, overtime and minimum wage violations, and missed meal and rest breaks. She also counsels, trains and conducts audits for clients to ensure compliance with federal and state wage and hour laws. In addition to her wage and hour practice, Jennifer defends employers in single and multiplaintiff lawsuits involving claims of discrimination, harassment, failure to accommodate and breach of contract.

C. Eric Stevens is a shareholder in Littler’s Nashville office. He has over 30 years of experience representing clients - focusing on healthcare and financial institutions - in labor relations and employment litigation. He represents both union and non-union employers, providing counseling to avoid litigation as well as defending clients in both court and administrative proceedings. Eric regularly speaks to industry groups and business roundtables on new developments in the law and issues that can directly affect their operations. He provides training on discrimination, harassment, wage and hour and related topics for private employers, public employers and governmental entities.

KENTUCKY Jay Inman represents employers throughout Kentucky and Tennessee in a full range of labor and employment law matters arising under federal, state, and local laws.

He provides advice, counsel, and training for employers of all sizes, and he has assisted clients with administrative agency investigations and charges, as well as represented clients at various stages of litigation, including trial and, if necessary, appeal.

Jay’s industries of emphasis include education, healthcare, hospitality, and manufacturing. Jay has obtained favorable results for clients in federal and state courts and before the Equal Employment Opportunity Commission, Kentucky Commission on Human Rights, and Kentucky Labor Cabinet.

LaToi Mayo is a shareholder in the Lexington Office. She has advised, counseled and defended employers in regard to labor, employment and immigration matters for the past 16 years. She has successfully litigated single plaintiff discrimination and wage and hour claims as well as class and collective actions in both state and federal court. LaToi has also successfully handled investigations and charges on employer’s behalf before administrative agencies like the Department of Labor, EEOC, and NLRB and similar state agencies. Working most frequently with manufacturers, health care facilities, and local city governments, LaToi has notable experience in enforcing and/or advising clients on arbitration agreements, restrictive covenants and wage and hour compliance issues. LaToi routinely presents at seminars, focusing on labor, employment and immigration topics for a variety of professional organizations in Kentucky. She also provides training for managers, supervisors and general workforce and provides compliance counseling.

Lisa "Lee" A. Schreter is a shareholder in Littler’s Atlanta office. She is co-chair of the Wage and Hour Practice Group and former chairperson of Littler's Board of Directors. She focuses on representing employers in complex class and collective actions involving overtime and other wage-related claims and specializes in helping employers to develop forward-thinking compliance measures that reduce wage and hour disputes and other employment-related issues. She also represents and counsels management clients in connection with all other types of labor and employment matters arising under federal and state laws such as the Fair Labor Standards Act, the Equal Pay Act, the Service Contract Act and state law wage and hour requirements.

Daniel Turner is a shareholder in Littler’s Atlanta office. He 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 50 class and collective actions throughout the country, he has litigated cases under the Title VII and Section 1981 of the Civil Rights Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act 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.

ATLANTA

ARKANSAS

Leslie A. Dent is a shareholder in Littler’s Atlanta office.

She 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.

Eva C. Madison is a shareholder in Littler’s Fayetteville office. She represents and advises employers of all sizes in all aspects of employment law, primarily focusing on employment litigation, ranging from single-plaintiff cases to multiple-plaintiff, class, and collective action cases. Practicing in state and federal courts and before the U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor, and the Arkansas Department of Labor, she has handled matters involving race, gender, national origin, religion, disability, and age discrimination and harassment under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Arkansas Civil Rights Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and the Arkansas Minimum Wage Act.

L. Traywick Duffie is office managing shareholder of Littler’s Atlanta office. He 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.

He has successfully defended single plaintiff, multiple plaintiff and class action litigation involving, race, age, sex, pregnancy, disability, retaliation, ERISA, whistleblowing, covenants not to compete and state law contract claims.

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Judge Richard Posner’s Retirement and His Influence on Labor and Employment Law Judge Richard Posner 7th Circuit Court of Appeals

By GARY PEEPLES

Judge Richard Posner surprised (nearly) everyone by, on Friday, September 1, 2017, announcing that he would be retiring outright as of the next day. It would require a library’s worth of books to catalog the ways in which Judge Posner has shaped the law over his thirty-five years as a judge on the United States Court of Appeals for the Seventh Circuit. This article is a modest attempt at discussing Judge Posner’s influence on labor and employment law.

With all due respect to (the late) Justice Antonin Scalia and Judge Frank Easterbrook, also of the Seventh Circuit, Judge Posner is the best writer who’s ever served as a federal judge. Every article about Judge Posner ought to begin with an example of his opinion writing style, which is accessible, informal, sharp, and (often) witty. Below is an example from a 1988 case (AquaChem, Inc. v. NLRB) involving permanent replacement workers who were hired during a strike: Even if the result were correct, the method of reaching it would be awful. It depends on a balancing test the outcome of which cannot be known in advance and which therefore leaves at sea both the employer, who cannot know what offers it can make to permanent replacements, and the replacement workers themselves, who cannot know what offers made to them are valid.

The role of the replacement worker is fundamental in contemporary labor relations.

The panel’s decision muddies that role, unsettles the law, buries the rights of management and labor alike in uncertainty and confusion. We should rehear the case en banc.

(Posner, J., dissental).

Turning now to Judge Posner’s influence on labor and employment law, his most famous opinion in this area is a recent one, namely, his concurring opinion in Hively v. Ivy Tech Cmty.

Coll. of Ind. The case—which attracted a huge amount of media coverage—involved an openly lesbian adjunct professor at an Indiana community college. According to the plaintiff, she was repeatedly denied promotions because of her sexual orientation. The question before the Seventh Circuit (sitting en banc) was whether discrimination on the basis of sexual orientation violates Title VII’s prohibition on sex discrimination.

Judge Posner’s concurrence is worth reading. Unlike the majority opinion, which goes out of its way to emphasize the commonalities between discrimination on the basis of sex (which is plainly prohibited by Title VII) and sexual orientation discrimination, Judge Posner in his concurring opinion concedes that Congress didn’t have sexual orientation in mind when they passed Title VII. Judge Posner instead argues that Title VII should be treated as a floor for common law (i.e., judge-initiated) development. Likening Title VII to the Sherman Act (a statute that judges have had no problem expanding over time), Judge Posner contends that as societal views evolve in America, so too should federal courts’ interpretation of Title VII’s scope. He writes: “Failure to adopt [an emerging interpretation of the word “sex”] would make the statute anachronistic, just as interpreting the Sherman Act by reference to its nineteenthcentury framers’ understanding of competition and monopoly would make the Sherman Act anachronistic.” Well put.

Judge Posner has never hesitated to criticize federal agencies. Although his primary targets (at least recently) have been the Social Security Administration and its administrative law judges, Judge Posner has also criticized the National Labor Relations Board (NLRB) and, in 42

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particular, its cavalier approach to precedent and stability. Below are some of Judge Posner’s remarks on the NLRB from a 2000 lecture on labor law: There is one constant in my experience with the “old” labor law, and that is the very poor quality of the decision of the National Labor Relations Board. The problem is independent of the party in power. It expresses itself in part in the extraordinary mode of opinion writing that is customary for the Board, and that is to adopt the administrative law judge’s opinion and merely indicate disagreement in footnotes. But more distressing than this methodological quirk is the irresponsible attitude of the Board toward its own precedents and the lack of any curiosity about the practical consequences of its doctrines.

Amen. Although Judge Posner offered these remarks in 2000, they proved to be prescient.

In a recent Eighth Circuit case (Cooper Tire & Rubber Co. v. NLRB), the NLRB’s total lack of regard for the practical effects of its decisions was on display. The Eighth Circuit in Cooper Tire affirmed the NLRB’s position that Section 7 of the National Labor Relations Act permits lockedout employees to shout racial slurs at AfricanAmerican replacement workers. That’s absurd and it illustrates precisely what Judge Posner was talking about in his 2000 lecture.

Judge Posner, at least for the first two decades or so of his judicial career, often worked economic analysis into his opinions and his other writings (books, law review articles, etc.). This focus on economics sometimes led to statements that, without context, seemed controversial. For example, in his 1995 book Aging and Old Age, Judge Posner questioned whether federal legislation was necessary to protect older workers from discrimination in employment: Even apart from competitive pressures for rational behavior, which are considerable in private markets, the people who make employment policies for corporate and other employers and most of those who carry out those policies about hiring or firing specific workers are at least 40 years old and often much older. It is as if the vast majority of persons who established employment policies and who made employment decisions were black, federal legislation mandated huge transfer payments from whites to blacks [here Judge Posner is alluding to the transfer payments from the young to the old that occur as a result of Social Security], and blacks occupied most high political offices in the nation. It would be mad

in those circumstances to think the nation needed a law that would protect blacks from discrimination in employment.

Employers—who have a direct financial stake in correctly evaluating the abilities of their employees and who for the most part are not young themselves—are unlikely to harbor either serious misconceptions about the vocational capacities of the old (so it is odd that employment should be the main area in which age discrimination is forbidden) or a generalized antipathy toward old people.

A bold position indeed! Judge Posner has never been afraid of asking controversial questions or changing his mind (his concurrence in Hively is an example of that). In that respect, Judge Posner has put into practice Justice Frankfurter’s long-ago observation that “wisdom too often never comes, and so one ought not to reject it merely because it comes late.”

Judge Posner’s devotion to his cats (first Dinah and now Pixie, who according to Judge Posner might run for President in 2020) is legendary.

And, in the context of employment discrimination, Judge Posner revealed his playful side in Shager v. Upjohn Co., a 1990 case involving alleged age discrimination by a seed company. In that case, the plaintiff argued (in part) that although the so-called “Career Path Committee” terminated his employment the committee had been dominated by the influence of the plaintiff’s supervisor, who (allegedly) wanted to get rid of older workers like the plaintiff. Here is how Posner described the background of the case, complete with a reference to the fable involving a monkey, a cat, and chestnuts in a dying fire: Lehnst’s [i.e., the plaintiff’s supervisor’s] influence may well have been decisive. The committee’s deliberations on the question whether to fire Shager were brief, perhaps perfunctory; no member who was deposed could remember having considered the issue. A committee of this sort, even if it is not just a liability shield invented by lawyers, is apt to defer to the judgment of the man on the spot. Lehnst was the district manager; he presented plausible evidence that one of his sales representatives should be discharged; the committee was not conversant with the possible age animus that may have motivated Lehnst’s recommendation. If it acted as the conduit of Lehnst’s prejudice—his cat’s-paw—the innocence of its members would not spare the company from liability.

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The cat’s paw doctrine was later adopted by the Supreme Court in a 2011 case, Staub v. Proctor Hospital (that case, incidentally, came from the Seventh Circuit too). Judge Posner accordingly deserves credit for the apt allusion and for the development of this procedural corner of employment law.

Judge Posner will remain important to future generations of lawyers for a number of reasons. For one thing, Judge Posner’s opinions, particularly those involving contracts, make up about half of the casebooks that law students use. Judge Posner’s contributions to labor and employment law aren’t as well-known as his contributions to other areas of the law (the economic analysis of law as it relates to torts is the most prominent example), but his contributions to labor and employment law are significant. We employment lawyers will miss him.

W W W. B U S I N E S S . M C . E D U / H E A L T H - C A R E - S U M M I T

W W W. B U S I N E S S . M C . E D U / H E A L T H - C A Gary S. Peeples, Attorney Burch, Porter & Johnson, PLLC gpeeples@bpj.com www.pbj.com www.HRProfessionalsMagazine.com

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403(b) Plans Under Scrutiny in the Courts: What Does this Mean for Your Retirement Plan?

By JENNIFER S. KIESEWETTER

B

etween August 9 and August 17, 2016, twelve university 403(b) plans were sued in federal courts across the country – extending from California to New York – by Jerome Schlichter, the first attorney to sue for excessive fees against university plans. Universities targeted were Yale, New York University, Columbia, Cornell, University of Pennsylvania, Duke, Johns Hopkins, Vanderbilt, Northwestern, University of Southern California, and Massachusetts Institute of Technology.

Other schools to follow, sued by other attorneys on similar bases since August 2016, were University of Chicago, Princeton, Washington University and Brown University. All cases are still pending, and are primarily in early stages of litigation.

Why the legal onslaught against these prestigious universities? Why are 403b plans being drug into the litigious light?

What is a 403(b) Plan?

A 403(b) plan – which is named for Section 403(b) of the Internal Revenue Code – is a retirement plan for certain employees of public schools, employees of certain tax-exempt organizations, and certain ministers. These plans are often referred to as TSA plans, or tax-sheltered annuity plans.

These plans are made up of individual, self-directed accounts for participants, which can be invested in annuity contracts through insurance companies, custodial accounts invested in mutual funds, or retirement income accounts set up for church employees (which can then be invested in either annuities or mutual funds). Often these plans have multiple vendors based on the structure of annuities and /or custodial accounts, which then separately recordkeep their own investment options under their individual contracts.

Section 403(b) plans often allow employee contributions and/or employer contributions, similar to a 401k plan. Private entities fall under ERISA governance. Government plans and certain church and other 501(c)(3)s that have limited employer involvement may be exempt from ERISA.

Summary of Claims The class action claims brought against these plans are similar to those brought against 401k plans in excessive fee cases beginning approximately a decade ago – perhaps by no coincidence by the same law firm, 44

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Schlichter, Bogard & Denton out of St. Louis. The claims generally against the plans fall to the following: • Excessive fees for recordkeeping services; having multiple recordkeepers, leading to excessive fees and inefficiencies • No bidding process for recordkeepers • Maintaining a “dizzying array” of investment options (in some cases hundreds of options) • Failure of fiduciaries to select investments with reasonably lower fees when available • Failure to select, evaluate and monitor investments • Failure of the plan fiduciaries to monitor the plan’s other fiduciaries • Retaining historically underperforming investments These claims, the complaints allege, fall squarely under breach of fiduciary duties – such as the duty of prudence and loyalty -- under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). Further, the complaints allege that these failures have caused participants to suffer millions of dollars in losses in retirement savings, and further seek damages to make the participants whole.

The Defense In most cases, the universities have filed motions to dismiss claiming that plaintiffs have failed to state claims against them for breach of fiduciary duty. Further, many universities have also asserted failure to establish standing in that the plaintiffs have failed to show injury.

The universities, in general, asserted that the plaintiffs’ claims are nothing but speculation. Specifically, defendants stated that plaintiffs’ failed to address the decision-making process that would suggest imprudence. Further, the plaintiffs’ failed to state that any participants were confused by the choice of investment options or failed to identify which funds underperformed. The universities stressed the high level of intelligence of its participants and stated that active choice was preferred.

Many universities stated that by law, and function, Section 403(b) plans operate differently than other plans due to their investments – annuities. Defendants argued that a multi-recordkeeper approach is the normal approach in the 403(b) world as the probability of finding one recordkeeping vendor to keep assets held by unrelated mutual funds or annuity products would be low, if not impossible.

In May 2017, two universities received partial victories to their motions to dismiss. Emory University received dismissal victory on the following claims: • Plan fiduciaries acted imprudently by offering too many investment options • Various claims based on damages incurred more than 6 years ago due to alleged imprudence • Investing in TIAA mutual funds created an alleged prohibited transaction because TIAA is a plan recordkeeper All other claims were allowed to proceed.

Duke University received dismissal victory on the following claims: • Investing in TIAA mutual funds created an alleged prohibited transaction because TIAA is a plan recordkeeper • Plaintiff’s allegation of breach of duty to monitor • Claim regarding “locked in” allegations pertaining to certain annuity products and their alleged imprudence All other claims were allowed to proceed.

How Will This Affect Your Retirement Plan?

With the recent excessive fee litigation bringing 403(b) plans into the fold, plan sponsors should take a step back and perform some internal due diligence on their retirement plans. Participants are becoming more educated on how retirement plans operate. The law is changing with respect to fiduciary guidance. The agencies are auditing. And Jerry Schlichter is suing.

Plan sponsors need to not only review documents, but review governance and operational procedures, including: • Who is a fiduciary and what are those duties • Delegation of fiduciary duties • Reviewing and documenting changes to investment policy statements • Processes to select, maintain and replace investments • Processes for determining number and diversity of investments • Processes to select, monitor and review third party service providers and other plan fiduciaries • Processes to determine reasonableness of fees • Processes for prudent documentation Plan sponsors must always act solely in the best interest of the plan’s participants and beneficiaries and for the exclusive purpose of providing benefits and defraying reasonable expenses of administration. This high level of fiduciary duty is one that must be revisited often – not just every now and again. Going through this review process at least annually will help keep plan sponsors loyal to their participants, and out of the courtroom. Or at least with a good defense if served with a complaint.

Jennifer S. Kiesewetter, Esq. Kiesewetter Law Firm, PLLC jkiesewetter@kiesewetterfirm.com www.kiesewetterfirm.com

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Ding Dong the New EEO-1 Report Is Dead!

Office of Management and Budget Stays the New EE0-1 Report

By MARY E. BUCKLEY, J. BRUCE CROSS, and DAVID ANKENY

Let’s start with the really important bits: 1. Employers do not have to put compensation data of any kind on the 2017 EEO-1.

2. Employers have until March 31, 2018 to file the 2017 EEO-1.

3. Employers should use the snapshot date, December 31, 2017, or a reasonable proximally.

4. Employers can use the old EEO-1 form.

At this point, there is no further reading required. The “need-to-know” information has been provided. However, for those who want more than a quick seventy word answer, it is advised to first, pause here and breathe a sigh of relief. It would have been a headache to comply with the new EEO-1 reporting requirements; no question. Done, gone, good riddance. As they sang it in Oz, it filled the folks of Human Resources with terror and with dread till one fine day from D.C., a house fell on its head and the Office of Management and Budget pronounced it dead! So, despite the collective sigh of relief heard round HR departments, it is still worth reviewing why this new EEO-1 report arose in the first place; why it went away; whether it was a good idea; and the likelihood something like it will be seen again someday.

Where Did It Come From And Why? The Department of Labor’s Office of Federal Compliance Programs (“OFCCP”) is the watch dog of federal contractor compliance with affirmative action and anti-discrimination law. It is believed that it was the OFCCP that primarily pushed for the EEO-1 changes. A recent ground swell of dissatisfaction with enforcement of discrimination in compensation, particularly the gender gap, emerged from the Obama era OFCCP under Director Patricia Shue. It was one of her stated goals to enforce the law of compensation discrimination. Director Shue would cite the gender gap as evidence of gender discrimination.

Director Shue’s effort was not the first time the Agency pushed to enforce equal pay and shrink the practice of pay discrimination. The OFCCP, in fact, has a checkered past with pay discrimination. Its efforts could be characterized with that famous line, “the road to hell is paved with the best intentions.” As an example, when Charles James was Director of the OFCCP during the G.W. Bush presidency, he tried to address the ineffectiveness of the OFCCP policy. His administration promulgated “Standards and Guidelines” for the OFCCP and federal contractors to follow, auspiciously to catch the “evil doers.” The flaw with the well intentioned “Standards and Guidelines” was that it only bound the OFCCP and not federal contractors, which proved to be as ineffective as the previous policy, in that it not only caught very few “evil doers” but caused an era of never ending audits.

Director Shue quickly did away with the “Standards and Guidelines.” Her rational for de-implementation being that the OFCCP manpower allows audits for only a small fraction of federal contractors, which is currently less than 5%. So, instead of continuing on with ineffective and seemingly ceaseless audits, the OFCCP needed and so created a way to scout the contractor community for likely targets of pay discrimination. If you are the OFCCP wanting to peek at the hands of federal contractors, the EEO-1 is your huckleberry. There really is nothing else. Federal contractors, with more than 50 employees, prepare affirmative action plans annually, but need not submit them to the OFCCP. The OFCCP only sees the affirmative action plans of those it audits. So, the OFCCP decided to gather compensation data through the EEO-1. It was a bold move and it met with a great deal of resistance, but in the end, the OFCCP along with EEOC prevailed. The regulations, one of which required 46

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federal contractors to submit summarized tax reporting based compensation data, were finalized September 29, 2016. Thus the 2017 EEO-1, was born.

Who Killed It And Why? The backdoor to the White House, or known better by its formal name, the Office of Management and Budget (“OMB”) enforces the Paperwork Reduction Act (“PRA”).

The OMB must approve regulatory changes to ensure the burden is justified under the PRA guidelines. To withstand the PRA, the utility of the regulation has to outweigh the burden. If it does not, then it will not be implemented. One might suspect this was a political issue. Certainly, the issue has polarized politically, but regardless of the politics at play, the OMB weighed the potential and burdens against the utility to be served, and found the new EEO-1 utility did not justify the burden. In other words it was “weighed in the balance and found wanting.”

The burdens that employers faced under the new EEO-1 were great. At a glance, this can be seen from the “snapshot” fact that the form went from being two pages to eight pages long. Substantively, the new EEO-1 required, for the first time, that employers with more than 100 employees and federal contractors to include, on the EEO-1, twelve pay bands of tax reported wages, summarized by race, gender, and EEO-1 category for all full time and part-time employees.

The headcount of employees was previously mandated, but the new form required that it be broken down by race/ ethnicity and gender categories within the twelve pay bands within each EEO-1 job group, which would be based on the individual 2017 W-2 data. Further, it required the total of all hours worked for employees within each pay band within each job group by race/ethnicity and gender.

Accordingly, the OFCCP revised its total estimated annual burden hour cost in 2017 and 2018 for those contractors that will complete and submit only Component 1 (contractors with 50-99 employees) to $1,872,792.41, and the total estimated annual burden hour cost in 2017 and 2018 for employers and contractors that will complete both Components 1 and 2 to $53,546,359.08.

This would be a huge time burden and high cost for most employers, whether a large or small multi-establishment company. Even for employers with one establishment companies, the burden would be significant in one sense because of time and the other sense retrieving the data.

Employers would have had to “mine” electronic data from multiple systems to satisfy the mandatory reporting requirement of the EEO-1 report. After a successful retrieval of the required data for both full-time and part-time employees during the stated period, the data would have to be summarized by category and then the complex matrix of races, genders, EEO-1 codes, and pay range groups would have to be populated.

Further, if companies had to comply with supplying the new data, the recommendation was that employers conduct a privileged (i.e. with an attorney’s assistance to ensure the work was covered by attorney-client privilege) compensation analysis to determine if pay differences were because of legitimate factors such as, seniority, time in job, etc., and, if not, then employers would have to find and correct those before the data was submitted at the end of 2017.

Employers would also need to review and revise job descrip-

tions to be better able to determine under which of the EEO-1 job categories each position should be reported. Review and revision of job descriptions would be necessary to prevent an employer’s data from being skewed because employees were included in the wrong job groups.

In theory, for a big ask--and make no mistake, this was a big ask--there should have been a big reward. There are businesses whose primary work is to regularly analyze compensation for federal contractors. Lighthouse Compliance Solutions contributor, David Ankeny, is in the business of analyzing federal contractors’ compensation. Lighthouse and businesses like it know how to spot potential discrimination. Those businesses know what employers and/or the federal government needs to detect discrimination.

The new, now, thankfully defunct, EEO-1 did not have it. It would have been of little value in detecting discrimination. The means far exceeded the ends and the new Report could not be justified.

Did it make sense for the Agency to obtain discrimination indicators on the EEO-1 or any document for that matter? Somewhat but, in reality, it cannot be obtained by numbers. Income can be affected by numerous things regardless of sex or race that could cause a false positive for pay discrimination. Employee benefit plans can affect the W-2 statement as well as IRA’s. Individual choices with regard to benefits and IRA contributions would change the numbers. Another example would be stock options. A male employee may exercise the option to purchase stock in one year, while the female employee exercises the option in a different year, because stock options are not taxed until exercised, the pay data for these employees would look different on their W-2 forms even though they had the same options and received the same salary.

Further, compensation is motivation. Motivation is complex. It is not something that can be seen merely by numbers. There are no shortcuts, no clever models. Lots of factors exist. After all, motivation is different for everyone. Bottom line, it’s a waste of employer and Agency resources to look for indicators of pay discrimination merely from numbers.

Is It Likely To Ever Come Back?

Unlike the wicked witch from the Land of Oz, who is definitely not coming back, the answer is “possibly.” The OFCCP has demonstrated time and time again that it will continue its efforts to weed out pay discrimination.

However, the various methods employed to reach its goal, like the DuBray Methods, salary grade analyses, cohorts and standard deviations, “Standards and Guidelines” and no guidelines, Directive 307, EO Surveys, and now, a new and improved EEO-1 report all fail to achieve the end result. As Albert Einstein put it “the definition of insanity is doing the same thing over and over again, but expecting different results.” Despite that logic, depending upon who is President, expect another similar future effort. In the meantime, employers should focus on analyzing their compensation practices on an annual basis to make sure that its employees are being paid in a non-discriminatory manner. It can be done, but just not by the pay numbers alone.

Mary E. Buckley, Associate Cross, Gunter, Witherspoon & Galchus, P.C. mbuckley@cgwg.com www.cgwg.com

J. Bruce Cross, Director Cross, Gunter, Witherspoon & Galchus, P.C. bcross@cgwg.com www.cgwg.com

David Ankeny, President and CEO Lighthouse Compliance Solutions dankeny@lightbeacon.com www.lightbeacon.com www.HRProfessionalsMagazine.com

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The federal and state marijuana conundrum

By JENNIFER SIMS

The first recorded account of marijuana usage for medicinal purposes is traced back to Emperor Shen Neng of China in 2737 B.C. From there, the drug’s popularity as a medicine spread throughout the eastern hemisphere.

But states within the United States have been slow to follow suit, with California being the first to legalize medical marijuana in 1996.

T

oday, twenty-nine states have comprehensive medicinal marijuana programs, and many others allow the use of cannabidiol, the non-psychoactive component of cannabis which contains no THC. Federal law, however, still prohibits the use of marijuana, even where it is allowable under state law. Along with the likes of heroin and ecstasy, marijuana remains on the list of Schedule 1 drugs under the Federal Controlled Substances Act, despite recent efforts to declassify it. This listing essentially means that Congress has decided that marijuana has no medicinal value.

The use of cannabis for medicinal purposes presents significant challenges to employers, particularly in those states where marijuana use for medicinal purposes is legal. Not only must employers be concerned with how the use of medicinal marijuana reconciles with their drug testing and drug-free workplace policies, they must also ensure their compliance with both federal and state laws, even when those laws may seemingly conflict with one another.

The Americans with Disabilities Act (ADA), a federal statute, prohibits employers from discriminating against a person on the basis of disability “in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” The ADA generally does not afford protection to persons engaged in illegal drug use.

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The ADA outlines steps that an employer may take with respect to illicit drug use without violating the ADA. Employers may engage in drug testing in order to ensure that persons who have previously participated in drug rehabilitation programs are no longer engaging in the illegal use of drugs. Employers may prohibit the illegal use of drugs at the workplace. Employers may also hold an employee who engages in the illegal use of drugs to the same qualification standards for employment or job performance and behavior that the entity holds other employees, even if the unsatisfactory performance or behavior is related to the employee’s drug use.

Given the prohibition against marijuana use under federal law and these rights under the ADA, an employer who adheres to the ADA should be shielded from liability for terminating an employee based upon his use of marijuana for medicinal purposes, right? After all, the United States Constitution provides that “the Laws of the United States . . . shall be the supreme Law of the Land . . .”

Consider the following circumstance: Employer recruits an individual, who, following state law, uses a synthetic form of marijuana for a diagnosed disorder from which she suffers.

Employer and applicant are located in a state that allows the use of medicinal marijuana and that bars employers from firing or refusing to hire a

person who uses medicinal marijuana. Employer, who has a zero tolerance approach to drug use, extends an offer of employment contingent upon Applicant passing a pre-employment drug test. Applicant notifies Employer that she uses medicinal marijuana, but only after work, such that she should never be impaired at work. Applicant takes the required pre-employment drug test and tests positive for cannabis. Employer rescinds Applicant’s job offer.

This very situation was recently litigated by a federal court in Connecticut. Noffsinger v. SSC Niantic Operating Co., 2017 WL 3401260 (D. Conn. Aug. 8, 2017). After the applicant filed suit against the prospective employer under Connecticut’s Palliative Use of Marijuana Act (PUMA), the prospective employer sought to have the case dismissed, arguing that three federal statutes, including the ADA, preempted PUMA. The court refused to dismiss the case, finding that the federal laws did not preempt PUMA and that the “ADA does not preclude the States from regulating employers who discriminate against employees who engage in the medicinal use of drugs in compliance with state law.”

In doing so, the court recognized several important principles for employers to consider. First, the ADA prohibits the use of drugs at the workplace. Because the ADA does not prohibit the use outside of the workplace, it likely was not meant to regulate non-workplace activity and does not prohibit the States from allowing such use. Second, though the ADA refers to and contemplates employers’ use of drug testing, it does so only to clarify that that drug testing is not a violation of the ADA. In other words, while the ADA does not prohibit drug testing of applicants or employees, it also does not encourage or authorize such testing. Finally, though the ADA allows employers to hold illegal drug users to the “same qualification standards” as non-drug using employees, the drug test itself is not a “qualification standard.”

The Noffsinger decision establishes that the employment of an illegal drug user is not prohibited by Federal law. If allowed to stand, it may have far-reaching consequences, including serving as persuasive guidance to other courts addressing the relationship between the ADA and state laws allowing for marijuana use for medicinal purposes.

In states where medicinal marijuana is legal, employers should also be cognizant of the extent to which they are required to accommodate an employee who uses cannabis for medicinal purposes. The ADA requires an employer to provide reasonable accommodations to any disabled employee so the employee can perform the essential duties of his job.

A Massachusetts state court interpreting state discrimination law (and not the ADA) recently found that an employer’s obligation to provide a reasonable accommodation under Massachusetts law may extend to an employee’s off-site use of medicinal marijuana, even where federal

law prohibits such use. In doing so, the court rejected the employer’s argument that the accommodation of medicinal marijuana usage was per se unreasonable because marijuana use is prohibited by federal law.

While there remains a great deal of uncertainty as to the interplay between the ADA and state medicinal marijuana laws, employers can be certain of a few things. Given the influx of states that have approved the use of medicinal marijuana, there will most certainly be an increase in litigation involving employees’ rights to use medicinal marijuana laws. In turn, it is likely that employers’ obligations will become clearer as more judicial decisions are rendered.

In this ever-evolving area of the law, employers are reminded that it is critical that they ensure compliance with both state and federal laws regarding disability discrimination, state laws regarding marijuana use, state drug testing laws, and state and federal leave laws.

Jennifer Sims, Of Counsel The Kullman Firm – Columbus Office jds@kullmanlaw.com www.kullmanlaw.com

Your Resource for Legal Innovation and Inspiration Customized Management Training Compliance Audits Policy and Strategy Analysis Litigation Defense Global Mobility Labor Negotiation www.bakerdonelson.com THIS IS AN ADVERTISEMENT. Ben Adams is Chairman and CEO of Baker Donelson and is located in our Memphis office, 165 Madison Avenue, Suite 2000, Memphis, TN 38103. Phone 901.526.2000. ©2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

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employers analyzing the risk/reward of spending money on immigration to resolve their workforce shortages, the cap and absent returning worker program can be deterrents. However, creating a plan and executing it with experienced H-2B professionals can still be extremely beneficial.

The H-2B Option to Temporary Labor Shortages

By JASON SUSSER

A constant question and complaint in the immigration world: “Why doesn’t the US have a temporary worker program?”

Well, we kind of do. While far from perfect, The H-2B visa program was created for US employers to hire non-agricultural workers on a temporary basis (H-2A is available for temporary agricultural workers). Unfortunately, navigating the H-2B system is easier said than done.

Nationals from dozens of countries are eligible for the program. However, there is a statutory cap of 66,000 H-2B visas per year, with 33,000 allotted to workers beginning their employment between October 1 and March 31, and 33,000 allotted to those beginning between April 1 and September 30. The cap is a critical issue, since according to the Office of Foreign Labor Certification (OFLC), 4,500 H-2B applications for approximately 82,100 positions were filed in January 2017 for the April 1 start date. Under previous law, the returning worker program allowed returning H-2B workers to be exempt from the 66,000-person cap.

Unwilling to save the returning workers program in 2017, the Trump administration instead opted to release a rule allowing for a one-time increase of 15,000 H-2B visas for the fiscal year ending September 30. For

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A common misconception exists that the H-2B program can only be used by construction and landscaping companies. This myth stems in part from the facts. In the beginning of 2017, 49.7% of H-2B visas went to landscaping and grounds keeping workers. However, the H-2B program requires that the position be temporary but not necessarily unskilled. While many H-2Bs go to landscapers and concrete finishers, some smart practitioners are securing temporary visas for sales reps and, in some cases, even nurses.

A temporary need boils down to a date or event that will end the employer’s need for the supplemented workforce. For a position to qualify as temporary it must be considered seasonal, peakload, intermittent, or a one-time occurrence. It is easy to see how a landscaping company can show that its work is inherently seasonal. Further, companies servicing ski resorts or cruise ship ports can generally show huge seasonal spikes in their payrolls and profits to justify the need for most of their workforce during those seasons.

Other employers may be able to prove a peakload when there is a need to supplement an already existing staff with additional temporary workers for a particular time period up to 9 months. In this case, peakload temporary workers are not becoming part of the regular operations like seasonal workers, but are supplementing the staff due to a temporary need.

Intermittent employment is available for employers who only occasionally need additional employees to make some jobs or contracts feasible. One-time occurrence is the only category of temporary need that is available for more than 9 months in a calendar year, as up to three years can be requested. In certain situations, employers may be able to prove that they have not needed temporary workers in the past and should not need them in the future, but due to present circumstances they are needed at this time.

The H-2B process can be broken down into four steps. First, the employer must obtain a prevailing wage determination, which determines what the minimum wage employees in the chosen position are entitled to. The petitioner must then prove the temporary labor shortage to the Department of Labor using a trimmed down version of the labor certification recruitment process. This process proves to DOL that there are not enough US workers who are able, willing, qualified, and available for the open positions. Next, employers and their counsel must submit petitions for the nonimmigrant workers to USCIS. Lastly, the foreign national worker must go to the Consulate or Embassy for processing of the visa itself.

This process has tight filing deadlines, only adding to the confusion.

Having said that, many employers are missing opportunities to supplement their workforce with much needed staff legally authorized to work. Any employer with a labor shortage who is either gambling with unauthorized workers or passing up opportunities due to their depleted workforce should speak to an immigration professional and set up a plan well in advance for defining their temporary need and pursuing H-2B.

Nashville 615.647.6006 Jason Susser, Attorney Siskind Susser PC jsusser@visalaw.com www.visalaw.com 50

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Assessments | Credit Reports | Criminal Records Search | Drug Screening | I-9 & E-Verify | MVR | Verification Services

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