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Volume 11 : Issue 4

TM

www.HRProfessionalsMagazine.com

Ending Age Discrimination in Employment

Talent Management and Recruiting Issue Hiring for Diversity

COVID-19

One Year Later

Andy

Wainwright, Chair

First 100 Days

Tennessee SHRM Strategic Leadership Conference April 30

Under Biden

Steps to Create a Diversity, Equity and Inclusion Strategy


Keeping up with changing laws is a full-time job, and you’ve already got one. EMPLOYERS AND LAWYERS, WORKING TOGETHER Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. The firm has more than 900 lawyers located in 53 offices across the United States and in Europe, Canada, and Mexico.

www.ogletree.com BIRMINGHAM OFFICE

MEMPHIS OFFICE

420 20th Street North Suite 1900 Birmingham, AL 35203 205.328.1900

International Place, Tower II 6410 Poplar Avenue Suite 300 Memphis, TN 38119 901.767.6160


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Features

4 note from the editor

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

The Thompson HR Firm, LLC Art Direction

Park Avenue Design Contributing Writers J. Austin Baker Sarah Belchic Ashley Cuttino Harvey Deutschendorf Tracy Duberman Brad Federman Rosalia Fiorello Susan Hanold Murray Harber Julie Henderson David Jones Dennis Koerner Joel Lee Dan Norwood Jennifer Robinson Bhuvana Raghunathan Stacey Stewart Mark Trocinski

5 Profile: Andy Wainwright, Chair of Tennessee SHRM Strategic Leadership Conference 7 Save the Date for our April Webinars!

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. ©2021 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.

16 “No Poach” Penalty: Criminal Charges from DOJ 33 Stay Up to Date on the Latest HR Law Blog

27 Why Should Employers Be Concerned About Obesity?

34 The First 100 Days for Employers Under the Biden Administration

37 Working Boomer Advocate

36 Reaping the Triple Benefits of Ending Age Discrimination in Employment

44 SHRM’s Johnny C. Taylor, Jr. Named Professional Society CEO of the Year

Talent Management and Recruiting

6 State of the Art Compensation Management

12 Avoiding Immigration-Related Discrimination in Hiring 14 Forget Work Life Balance: Find Your Sway 18 Insights for Hiring Diversity 20 Steps for Creating a Diversity, Equity, and Inclusion Strategy 22 Is Your Background Screening Process Fair and Compliant? Take our Quiz! 30 How to Instantly Reward Employees for a Job Well Done 32 University of Memphis Center for Workplace Diversity and Inclusion 38 Advancing Women Leaders

Contact HR Professionals Magazine:

Employment Law

46 How Leaders Can Use Emotional Intelligence to Connect with all Employee Types 47 Introducing the Next Innovation in App-Based Drug Screening

Employee Benefits

10 Guide to Benefits Administration: Integrating and Managing 3rd Party Solutions 24 Compliance Tips for Employers Considering a Move to Self-Funded Major Medical 26 Obesity is a Critically Important Health Issue 28 The New American Rescue Plan May Help Employers & Employees Reduce Health Care Costs 35 Living Your Best Life Means Having Life Insurance

42 One Year In: The Pandemic’s Impact on Employers and Their New Normal

Top Educational Programs for HR Professionals 23 Best of Leadership Summit 2021 33 Affordable Online SHRM Certification Exam Prep Class Begins April 12 48 WGU Tennessee $10,000 Scholarship Opportunity

Industry News 8 SHRM-Memphis Hybrid Legal Conference April 20 9 11th Annual Tennessee SHRM Strategic Leadership Conference April 30 in Nashville 40 WT SHRM 11th Annual HR & Employment Law Spring Conference in Jackson – May 20 41 2021 Alabama SHRM State Conference and Exposition in Birmingham May 4-5 45 SHRM 2021 Workplace Policy Virtual Conference April 19-21 May Issue features Updates on New Employment Legislation and Employee Benefits And the Latest on HR Management and the Pandemic Deadline to reserve space April 15 www.HRProfessionalsMagazine.com

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a note from the editor April is always an exciting month because there are always lots of excellent spring SHRM conferences and events happening. We are especially excited about April 2021, as we have several “live” conferences following a pandemic year of virtual conferences. We are looking forward to covering the SHRM-Memphis Legal Conference on April 20 and the 11th Annual Tennessee SHRM Conference in Nashville on April 30. Stay tuned for Facebook “live” interviews from these two conferences! We will also have full photo coverage of both in our May issue. We are honored to feature Andy Wainwright, Chair of the Tennessee SHRM Strategic Leadership Conference, on our cover. Andy is currently serving as the Professional Development Chair for TN SHRM and on the Board of Directors for Middle Tennessee SHRM as the immediate Past President. He is also Vice President, HR Partnerships, with CareerCurve in Nashville. Our focus this month is talent management and recruiting. We have many fantastic articles on hiring for diversity, ending age discrimination in hiring, and ending immigration discrimination hiring. There are also excellent articles on work life balance, advancing women leaders, and how leaders can use emotional intelligence with all types of employees.

We are loving our Thursday webinars with HRCI and SHRM credits! We hope you are enjoying them as well. In April we have five webinars all with exciting hot topics for HR professionals. See our “Save the Date for our April Webinars” on page 7 for the details. You will have the opportunity to earn 10 recertification credits on Thursdays in April. My April complimentary webinar sponsored by Data Facts will be April 29 at 2 PM CDT. The topic will be the Role of Culture in Engagement. Mark your calendar for 2 PM CDT and join us! You will earn 1.00 SHRM PDC ad 1.00 HRCI recertification credit. Watch for your email. If you are not currently receiving an email invitation, please subscribe to our digital subscription on our website.

cynthia@hrprosmagazine.com

Congratulations, Andy!

Your CareerCurve colleagues applaud your service to Tennessee SHRM and your leadership of the 11th Annual Tennessee SHRM Strategic Leadership Conference!

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Andy

on the cover

WAINWRIGHT

Conference Chair,

2021 Tennessee SHRM Strategic Leadership Conference Andy is an international transplant who now lives in Nashville. A native of New Zealand, he spent his first sixteen years growing up in India where his parents were missionaries. After attending college in the UK, he has called Tennessee home for the last 25 years. He previously lived in Memphis and moved to Nashville in 2008. Andy is serving as the Conference Chair for the 2021 TN SHRM Strategic Leadership Conference, held in Nashville on April 30th, 2021. Due to the ongoing COVID-19 pandemic, the conference for the first time will be produced both for in-person attendees as well as streamed/ recorded for remote participants. His current role as Professional Development Chair for TN SHRM follows his volunteer leadership roles on the Board of Directors for with Middle Tennessee SHRM (MT|SHRM). Andy currently serves on the Board of Directors for MT|SHRM as immediate Past President. Serving up to 1500 members, MT|SHRM is currently the 6th largest SHRM affiliated chapter in the US. He also served on the MT|SHRM board as President (2018/2019), President Elect (2016/2017), Marketing Director (2015), and Programs Director (2013/2014). Additionally, he served as Conference Chair for the TN SHRM State Conference in Nashville in 2017. The conference recorded the highest ever attendance for a Tennessee SHRM State conference with 1200+ attendees. He attributes this as partially due to the conference managing to secure Tennessee hero Quarterback Peyton Manning as a keynote speaker! During his tenure with MT|SHRM, he has helped drive the strategy, vision, and growth of the chapter. Andy is committed to serving the needs of all members, and fulfilling MT|SHRM’s mission: to support, educate, and connect the diverse membership who are all, in some capacity, connected to the HR profession. Whether an HR practitioner, third party provider, student, consultant, legal advisor, or business leader wearing multiple hats, MT|SHRM is the professional association to support all needs. Andy is quick to note that an organization this size and scope cannot function without the many dedicated people who make things happen on a daily basis. He often says that Tennessee truly is the Volunteer state, with MT|SHRM’s success largely due to the 160+ volunteers who work tirelessly as committee members, volunteers, Chairs and board members. And of course, MT|SHRM’s secret weapon: the incredible staff members, without whom the organization would not be able to function. Andy previously held VP Finance and Membership Board roles with the Memphis Chapter of ATD (formerly ASTD). Focusing on Outplacement, Leadership Coaching and Development, Talent Management, Andy has successfully steered large and high-profile talent management projects for his clients. Projects are often multi-year strategic initiatives requiring careful execution and an ongoing, demonstrated return on investment. His broad experience has allowed him to function as a trusted partner with corporate clients, who benefit from his business acumen and ability to offer strategic advice around best practices in talent management. While technology and process have their place, Andy believes in the power of people, relationships, trust, and accountability. Connect with Andy on LinkedIn: www.linkedin.com/in/andywainwright/. 

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State of the Art Compensation Management Blair and Bruce Johanson have careers in the human resources field and management administration for over 35 years each with specialization in employee compensation programs. Blair and Bruce have implemented several personalized Job Evaluation and Salary Administration Programs for organizations within the public and private sectors. Founded in 2005, DB Squared, LLC, is dedicated to providing a software tool that will increase the productivity of Human Resource staff, improve employee morale and the return for compensation dollars of the organization. JESAP (Job Evaluation and Salary Administration Program) is a program custom-developed by the Johanson Group in 2001. The program is modeled after the firm's proprietary JESAP methodology and job valuing algorithm, which originated in 1985.

Blair R. Johanson Blair R. Johanson, the firm’s president, has over 35 years of business operations experience with a focus on strategic planning, budgeting, hospital and physician management, and marketing and human resource management. Prior to joining Johanson Group, Blair was employed by Pendulum Practice Management Company, Physicians Resource Group, Inc., and Charter Medical Corporation. As a senior vice president, regional operations vice president and hospital administrator, he provided development and operations leadership for numerous physician practices and hospitals. He graduated with a master’s degree in business administration and B.S.B.A. degree in personnel administration from the University of Arkansas at Fayetteville.

Bruce E. Johanson Bruce E. Johanson, a principal officer/partner of the firm, has served in a management capacity in various corporate and non-corporate positions since 1979. Those positions included five years of experience with two major multinational corporations, several years of instructing in various disciplines at the university level, and over 30 years as a management consultant to a diverse client group throughout the United States. He has experience in areas of international business with small, medium and large corporations. Bruce joined Johanson Group in 1986 and served as President of the firm from 1988 until 2000. He received his B.S.B.A. in personnel management in 1978 and his M.B.A. in 1979, both from the University of Arkansas at Fayetteville.

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

Helping clients envision new possibilities is a talented consultant's greatest asset. At Johanson Group, our combined 65 years of experience in all facets of business management enable us to offer the insight and direction that produce meaningful results. We've helped organizations face the management challenges that come with a rapidly expanding staff and customer base. We also assist new business ventures map out their company's future, both strategically and operationally. Our signature approach is to listen and fully understand your company so that we can then partner with you to realize your own unique vision.

www.johansongroup.net info@johansongroup.net 6

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DBDescriptions™ job descriptions software is the cornerstone of an efficient and aligned organizational design. Whether you need one job description or two hundred our database of descriptions has exactly what you need to adapt or create tailored descriptions for your business; all easily accessed through an intuitive web­based application. Utterly simple and efficient.

www.dbsquared.com info@dbsquared.com


SAVE THE DATE for our

April Webinars!

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April 1 at 2 PM CDT

Edward H. Trent

The Evolving World of Sex Discrimination

Attorney

Earn 1 HRCI Business Credit (pending) and 1 SHRM PDC

Speaker Edward H. Trent Sponsored by Wimberly Lawson

April 8 at 2 PM CDT

Jim Trujillo, CFP®, CCFS®, PPC®

DOL Dojo: Sharpening Your Fiduciary Skillset

Financial Advisor

Earn 1 HRCI Business Credit (pending) and 1 SHRM PDC

Speaker Jim Trujillo, CFP®, CCFS®, PPC® Sponsored by ARGI

April 15 at 2 PM CDT

Inclusive Hiring: How Recruiting Untapped Talent Will Benefit Your Company Earn 1 HRCI Business Credit (pending) and 1 SHRM PDC Speakers are Sam Hanna, Jeff Vayda, and Darryle Jones Sponsored by CEO Works

April 22 at 2 PM CDT How to Hire for Diversity Earn 1 HRCI Business Credit (pending) and 1 SHRM PDC

Speakers are Dennis Koerner, PhD, and Cindy Ogden Sponsored by ITN, LLC

April 29 at 2 PM CDT HR Competencies – Leadership & Navigation Earn 1 HRCI Business Credit (pending) and 1 SHRM PDC

Sam Hanna

Center for Employment Opportunities

Jeff Vayda

Broadwy Personnel

Darryle Jones Volunteers of America

Dennis Koerner, PhD

President and CEO, ITN, LLC

Cindy Ogden

President, Fuel it

Cynthia Y. Thompson

The Thompson HR Firm and HR Professionals Magazine

Speaker Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Sponsored by Data Facts

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Guide to Benefits Administration: Integrating & Managing Third-Party Solutions By AUSTIN BAKER

Benefits Administration is an HR process that actively manages the interactions with a multitude of vendors. This process is highly customized from one company to another by comparison. Because of the complexity and administrative burdens of these highly customized HR operations, there are many third-party vendors that can be tasked with outsourcing the management of these functions. Understanding the nuances and areas of expertise for these multitudes of thirdparty party vendors is in and of itself a daunting task. Implementing and utilizing, as well as communicating successfully with employees about the technology and virtual platforms that can accompany these various vendors, is a balancing act for successful Benefits Administration. Years of experience working in and with a full spectrum of third-party vendors across the Insurance and Benefits Administration landscape has painted enough of a roadmap to help simplify the process in broad scope with the following Four Keys: Key One: Educate the Team Understanding the Complexity of the Vendor Landscape Many organizations have moved to a managed solution, that is one that manages not only the underlying technology system, but also integrates communications and interactions with the system. Create a process to educate the entire internal team that will be having any interactions or taking on roles that facilitate your organization’s relationship with a potential or existing third-party vendor. In order to establish a foundation for internal support and utilization of thirdparty solutions, it is essential to educate your team on the operational challenges of managing this entire employee experience with complex and nuanced HR technology from ‘hire to retire,’ as well the demands of balancing ongoing HR functions and vendor interactions such as;

10

• • • • • •

New hire onboarding Life event management Q&A helpdesk management Open Enrollment Communications, internal & external Compliance support

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Key Two: Understand the Benefits How Third-Party Vendors Can Benefit an Organization

Key Three: Develop your Process Project Management for High Level HR Performance

The ability to outsource cumbersome and time-consuming HR tasks in order to free up internal organizational resources is an obvious benefit of selecting a third-party vendor to manage select HR functions. But there are a multitude of additional advantages to your organization that come with the careful selection of an appropriately outsourced partner. A few of those include:

A top-tier Benefits Administration and Enrollment company should have well-defined services, service descriptions and project plans. This does not however preclude your internal team from doing the same to match and manage this project. An early project-management ‘must’ is to identify a dedicated team member in your organization who is solely responsible for leading the internal efforts involved in introducing and adapting to a vendor-managed solution, and establishing internal processes and timelines for tasks and goals.

• Improved scalability: by shifting tedious duties and HR services to your new partner, your internal HR team is relieved of the administrative burden of tasks that consume valuable time and resources, giving them the bandwidth to focus on strategic objectives that contribute to organizational growth and development. •  Decreased costs: there is a waste factor when it comes to costs and organizational efficiency that is mitigated when you bring in a specialized third-party vendor, whose primary function is a niche area of HR services. Handing off the duties of some of the more cumbersome HR services  streamlines your processes  reduces unnecessary expenses  creates additional room in your budget to pursue growth-oriented objectives. •  Standardized processes: third-party vendors should be experts in their respective areas. They should come to you with detail-oriented processes that require far less time and effort to implement internally, and their purpose is to shoulder the workload that would otherwise weigh down the productivity of your internal team. •  Mitigated risks: compliance is key when it comes to HR, and increasingly so in a changing landscape of regulations and government oversight. Trusting a thirdparty vendor to oversee the box-checking and documentation processes to keep your organization in compliance reduces the pressure and risk you could otherwise face. Additionally, a third-party whose primary responsibility is to stay current on changing compliancy regulations can help ensure your organization avoids the financial burden of penalties and fines that could come as unpleasant and unexpected expenses to your organization. Experienced professionals who are well-versed in the nuances of evolving laws and regulations can be an invaluable asset for protecting the integrity and legal compliance of your organization.

Once you have assigned your internal responsibilities and designated a leader accordingly, the next step it is to get that leader to identify what processes, people, and systems will need to be coordinated, in order to correctly align the roles of your internal project team with those of the vendor. Keeping the project plan current and on track by matching the leaders and other vendors appropriately for the most efficient coordination and internal communications is a key goal for success in management of third-party vendor relationships. Key Four: Your Third-Party Vendor Checklist Identifying the Criteria for Evaluating and Choosing Your Best Partner Every organization needs a process to help choose and manage the right vendors. When it comes to Benefits Administration and Enrollment, look to this checklist to help you make the right decision.  Look for a successful vendor track record in the following areas:  Diversity of services  Successful track record in relevant areas  Combination of virtual and in-person resources  Experience scaling services for growth  Focus on compliance  Relationships with multiple benefits providers  Simplified transactional HR processes  Clear and consistent communication processes  Customized solutions designed to fit your organizational needs  Timely responses to questions and information requests HRO Partners can help evaluate and streamline HR Benefits Administration enrollment and services for your organization; for a demo of our products and to find out more, visit hro-partners. com or call 1-866-822-0123.

Austin Baker, President, HRO Partners, LLC.

abaker@hro-partners.com  http://www.linkedin.com/in/jaustinbaker 


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11


Avoiding Immigration-Related Discrimination in Hiring By DAVID JONES and MARK TROCINSKI

The Biden Administration signaled early on an intent to provide additional protections for immigrant workers from unlawful discrimination. Employers should note, however, that there are provisions in the Immigration and Nationality Act, as well as Title VII of The Civil Rights Act of 1964, which already provide substantial protections to immigrant workers. The fear of civil and criminal liability for violating the employment authorization verification requirements mandated by the Immigration and Nationality Act, as well as attempting to comply with other federal regulations such as the Export Administration Regulations or International Traffic in Arms Regulations, may lead an employer to take actions during its hiring practices that could result in a discrimination charge.

Discrimination Under The Immigration And Nationality Act (INA) The Immigration Reform and Control Act of 1986 (IRCA) created an employer sanctions system requiring all employers in the U.S. to verify the identity and employment authorization of all employees hired on or after November 6, 1986 through the proper and timely completion of a Form I-9 (Employment Eligibility Verification). IRCA also created provisions barring certain immigration-related employment practices—namely, discrimination based on citizenship and immigration status and national origin at the time of hire or termination and during the employment eligibility verification process. These provisions are enforced by the Department of Justice Immigrants and Employee Rights Section ("IER"). Citizenship Status Discrimination The Immigration and Nationality Act (INA) protects US Citizens, Nationals, Lawful Permanent Residents (LPRs) and Asylees / Refugees from discrimination based on immigration status. Employers may not treat protected individuals differently based on immigration status. For example, deciding not to hire LPRs or preferring US citizens over LPRs is unlawful discrimination. The only exception to this rule is national security. Positions that require US citizenship for security clearances can lawfully be restricted to US citizens. Even in those situations, however, blanket policies requiring US citizenship can still be discriminatory. 12

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Individuals who have a status other than US Citizen, US National, LPR or Asylee / Refugee are not protected by citizenship status discrimination laws, and employers are permitted to ask certain questions in order to determine the immigration status of an individual before making a hiring decision. IER provides guidance on what questions are and are not lawful in the hiring process and has stated that employers may ask applicants if they “now or will in the future, require immigration sponsorship.” Employers also may elaborate on what is meant by that question. Once an applicant answers in the affirmative, the employer may ask additional questions to ascertain the individual’s immigration status and may choose not to hire someone for reasons related to that status. In other words, it is not necessarily unlawful discrimination not to hire someone who is on a visa, for example, as long as the non-protected immigration status is truly the actual reason for the decision. National Origin Discrimination National origin discrimination refers to discrimination based on an individual’s place of birth, country of origin, ancestry, native language, perception of looking or sounding foreign, or any other national origin indicator. Choosing not to hire someone or treating an applicant differently based on any of these reasons is unlawful discrimination. A policy of applying additional screening or not hiring Latinos due to concerns about possible work eligibility issues, for example, is unlawful. Employers are permitted to ask whether an applicant will be able to show employment authorization at the time he or she begins work, so any concerns about an applicant’s work eligibility can be addressed individually through the I-9 process. All work-authorized individuals are protected from national origin discrimination – i.e. it does not matter if the individual has a status other than US Citizen, US National, LPR or Asylee / Refugee, he or she is covered under national origin discrimination. Unfair Documentary Practices During Employment Eligibility Verification Unfair documentary practices during the employment eligibility verification process, which refers to the I-9 and E-Verify processes, include actions such as requiring too many or specific I-9 documents, improperly rejecting I-9 documents, forcing an employee to complete an I-9 or go through E-Verify when not required and the like. While such practices are a violation regardless of an individual’s immigration status or national origin, unfair documentary practices often overlap with both


of those. For example, requiring LPRs to always present their “green card” for the I-9 would be both an unfair documentary practice as well as citizenship status discrimination. Similarly, requiring Latinos to present more or different documents in the I-9 process would be both an unfair documentary practice as well as national origin discrimination.

Title VII Of The Civil Rights Act Of 1964 (“Title VII”) Title VII protects employees and job applicants from employment discrimination on the basis of race, color, religion, sex, and national origin. The definition of “employee” under Title VII is broad and extends its protections regardless of employees’ citizenship status or authorization for work. As with the INA, national origin discrimination under Title VII involves treating employees or applicants unfavorably because they are from a particular part of the world, because of their accent or ethnicity, or because they are perceived to be from a particular part of the world or have a certain ethnic background. Title VII prohibits discrimination in the terms and conditions of employment, which includes hiring, firing, pay, job assignment, promotions, and benefits. Title VII also protects employees from national origin harassment. Examples of harassment can include derogatory comments about one’s national origin, accent, or ethnicity. For harassment to be illegal, it must rise to the level of severe or pervasive, which means isolated incidents are not actionable. Though the Title VII protections extend to non-citizens and undocumented workers, the recovery of damages is not the same

for undocumented workers. More specifically, back pay, front pay, and reinstatement are not available to undocumented workers because they are unauthorized to work.

Conclusion To avoid claims of discrimination with respect to hiring, the employer’s work starts with the application itself. On the application, employers should only inquire as to whether the applicant is authorized to work in the U.S. and avoid questions about national origin and citizenship. The same applies at the interview phase. Further, employers must avoid using I-9s as a screening tool. It is a good practice not to ask an applicant to complete an I-9 form until after the applicant has been offered and accepted the job offer.

David Jones, Regional Managing Partner and Immigration Partner Memphis Fisher Phillips djones@fisherphillips.com www.fisherphillips.com

Mark Trocinski, Immigration Attorney

Memphis Fisher Phillips mtrocinski@fisherphillips.com www.fisherphillips.com

Innovative, Nimble & Always Evolving Fisher Phillips is a national labor and employment law firm representing employers in labor, employment, civil rights, employee benefits, and immigration matters. Our lawyers are joined by more than 400 attorneys in 36 offices and we are continuing to expand. Our range of experience enables us to bring efficient and practical solutions to today’s labor and employment problems. fisherphillips.com 1715 Aaron Brenner Drive, Suite 312 | Renaissance Center | Memphis, Tennessee 38120 Atlanta Baltimore Boston Charlotte Chicago Cleveland Columbia Columbus Dallas Denver Detroit Fort Lauderdale Gulfport Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis Nashville New Jersey New Orleans New York Orlando Philadelphia Phoenix Pittsburgh Portland Sacramento San Diego San Francisco Seattle Tampa Washington, DC Metro Woodland Hills

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Forget Work Life Balance: Find Your Sway By BRAD FEDERMAN

Stop trying to find work-life balance. It rarely exists. The scales will always become out of balance because the world never stands still. The world around you is always changing. New expectations, challenges, stressors and more are constantly around the next corner. Balance is fleeting. It is an outdated concept that should be left in the scrapyard. Even with all of the attention given to work-life balance, 65% of employees report that workplace stress has caused various difficulties in their lives. Work–life balance is known as the equilibrium between personal life and work life. Equilibrium is defined as a state of rest or balance due to the equal action of opposing forces. First and foremost, when have you experienced equal action of opposing forces when it comes to work and personal life? The success of work-life balance also rests on the idea that a portion, a good portion, of our work-life balance is within our control. Of course our actions, decisions and choices are within our control. However each of us has obligations and our choices do have consequences. We will always be faced with the impact of our choices. For some those consequences are reflected in a loss of employment, tattered relationships, divorces and more. We are all seduced by the concept of work-life balance. Who wouldn’t be? The idyllic notion that we can live in this comfortable steady place is alluring. Yet life does not work that way. Life is a bit like a rollercoaster. We experience twists, turns, ups and downs. We come across unexpected proverbial bumps in the road. Every time we encounter the unexpected, the uncertain, or the overwhelming; balance gets thrown out the door. The unfortunate consequence is that we have held up balance as ‘real’ and ‘attainable.’ We have placed balance on a pedestal and created frustrations and problems in the wake. We know the phrase “Life happens” and when it does, work-life balance can be in direct conflict.

No judgement The purpose of sway is to create ease and reduce stress. Getting angry, frustrated only wastes time and uses up mindshare. Children struggle with transitions and so do many adults. However, adults can’t afford to struggle with transitions. Adults must learn to be agile and not let their emotions get the best of them. Just sway and figure things out. Quality over quantity People often measure work-life balance in terms of time. Time is a low value measure. Sway is about quality as a measure. Am I present in the moment? Those that can focus and “Be here now” do better work, are more productive, and develop stronger relationships. Choice over balance While balance is not attainable, choices are within your control. Focus on what you can control. Balance is based on forces that are outside of your control and in many cases, your influence. However you can be creative, brainstorm and make decisions that reflect you and your priorities. Know your noble goal/purpose If you have identified your life’s purpose, managing decisions and choices is easier. For instance, my noble goal is “To inspire others to discover and live their possible.” I spend my time and energy doing things that support that purpose. When I lose sight of my purpose in my daily life I lose motivation and recognize that I need to return to my purpose. Mindfulness over stress

Another problematic glitch with work-life balance as a concept is that it starts with the notion that two aspects of our life are in conflict. The view that we live two separate lives is a misnomer. We do not live a work life and a personal life. We live one life with multiple aspects. Ironically we even oversimplify those aspects. I know very few people that can identify one single personal life aspect. Even within our personal lives we hold multiple proprieties and endure role conflict. In truth, our lives are much more complex and rich than we tend to describe with theories that oversimplify.

Finding ways to manage the challenging moments is paramount. Practice mindfulness and develop your emotional intelligence. People who are self-aware and maintain a sense of calm sway more productively than others. Learn to meditate in short spurts, have a playlist that helps you get through difficult moments, utilize a person as a coach, or find a way that works for you.

What are we to do?

Self-empathy is important. Do not judge yourself. Everyone struggles at times. You are not alone. So be kind to yourself. Provide yourself with a bit of grace. It is difficult to be there for others if you are unable to be there for yourself. Part of work-life sway is to sway to meet your own needs and not just the needs of your boss, organization, family and others.

We need to approach our difficulties with a new metaphor. I prefer the concept of work-life sway. Sway means move or cause to move slowly or rhythmically backward and forward or from side to side. It refers to the constant shifting based on the rhythm of life. Work-life sway is more like surfing or sailing. We can’t control the waves, wind or the weather, but we can learn to sail the ocean. Sailing uses the energy from the wind to propel the boat through the water. Sailing does not fight the wind. Sailing does not see conflict in the wind. Sailing sees the force as something that can be leveraged. Captains have been known to use a wet finger, wind in their face, a tuft of yarn or line, reading the sails, and reading the waves to determine how to approach the current situation. A skilled sailor does not see themselves as detached from the climate and the sea. They see themselves as a part of it, as interconnected. We should take the same approach when it comes to work-life sway. Read the situation First we should notice when we are swaying or need to sway. Read the situation and be intentional in your swaying efforts. What does the situation call for? It means being flexible. You may need to sway toward a work issue and recognize that you will sway back to the personal as soon as the issue is resolved. Recognize intention matters otherwise the waves of change will push you around and you will not make progress. Chance is not a strategy. 14

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Self-care

The concept of work-life sway recognizes that nothing lasts forever. Music has stayed with us over the generations, but the style has changed. Same with dance styles. Those that have remained relevant have changed with the times. Artists like Elton John and the Rolling Stones have stayed front and center when other acts have come and gone. The sway should be a tool that helps you shift and cope with the changes in your life. The sway helps you remain relevant, productive and successful in your whole life over the long haul. Find your sway and learn to sail the choppy seas.

Brad Federman, CEO

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


“No Poach” Penalty: Criminal Charges From DOJ By ROSALIA FIORELLO

On January 7, 2021, the U.S. Department of Justice (“DOJ”) issued a press release wherein a federal grand jury returned a two-count indictment charging Surgical Care Affiliates LLC (“SCA”), for agreeing with competitors not to solicit senior-level employees. This is the DOJ’s first-ever criminal charges alleging a group of employers agreed not to hire away each other's senior-level employees. According to the press release, SCA, one of the largest outpatient providers in the United States, entered into agreements with competitors not to poach each other's executive talent, in violation of federal antitrust law. SCA allegedly conspired with a Texas health care company not to solicit each other's executives. The press release indicated that SCA allegedly reached a similar deal with a Colorado company between 2012 and 2017. To read the DOJ’s full press release, visit https://www.justice.gov/opa/pr/health-care-company-indicted-labormarket-collusion. As evidence of the above-mentioned alleged agreements, the indictment details various emails between SCA and unnamed co-conspirators, including, for example, an email in which one co-conspirator’s CEO emailed its employee the following statement: “I had a conversation with [SCA’s CEO] re people and we reached agreement that we would not approach each other’s proactively.” Another email cited in the indictment was directed from a co-conspirator to SCA’s CEO, “Just wanted to let you know that [recruiting company] is reaching out to a couple of our execs. I’m sure they are not aware of our understanding.” The indictment further contains allegations of the impact of the agreement. Of note, the indictment alleges that a Human Resource employee at one company emailed a recruiter, advising the recruiter that a candidate looked great but that she, “can’t poach her” because the candidate worked for SCA. To read the indictment in full, visit https://www.justice.gov/opa/press-release/file/1351266/download. In general, no-poach agreements involve an agreement with another company not to compete for each other’s employees, such as by not soliciting or hiring them. No-poach agreements are “naked” if they 16

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are not reasonably necessary to any separate, legitimate business collaboration between the employers. A wage-fixing agreement on the other hand, involves an agreement with another company regarding employees’ salary or other terms of compensation, either at a specific level or within a range. Naked no-poach and wage-fixing agreements are per se unlawful because they eliminate competition. Specifically, no-poach agreements make it difficult for employees to negotiate better terms of employment for themselves. Legal competition amongst employers helps both employees and potential employees compete for higher wages, better benefits, and other relevant terms of employment. Moreover, market competition among employers aids consumers. Simply put, a more competitive workforce may generate better goods and services for the general public. The SCA indictment should not come as a surprise to those closely following the DOJ’s intent to proceed criminally against no-poach and wage-fixing agreements. In October 2016, the DOJ ran a public campaign warning companies about no-poach agreements and the efforts federal antitrust agencies have taken to enforce actions against employers that have agreed not to compete for employees. The campaign resulted in a publication titled, Antitrust Guidance for Human Resource Professionals. The Guidance outlines an individual likely is breaking the antitrust laws if they, 1) agree with individual(s) at another company about employee salary or other terms of compensation, either at a specific level or within a range (so-called wage-fixing agreements), or 2) agree with individual(s) at another company to refuse to solicit or hire that other company’s employees (so-called “no poaching” agreements). Keep in mind it does not matter whether the no-poach is informal or formal, written or unwritten, spoken or unspoken; it still violates federal law as there may be evidence that could lead to an inference that the individual has in fact agreed to do so. See, https://www.justice.gov/ atr/file/903511/download.


After the October 2016 publication, in 2018, the Antitrust Division (“Division”) filed a civil antitrust lawsuit against Knorr-Bremse AG and Westinghouse Air Brake Technologies Corp. The Division also simultaneously filed a civil settlement. The 2018 complaint alleged the above-mentioned companies and a third company, Faiveley, reached naked no-poach agreements spanning from 2009 until at least 2015, in violation of Section 1 of the Sherman Act.

See https://www.justice.gov/atr/division-operations/division-updatespring-2018/antitrust-division-continues-investigate-and-prosecuteno-poach-and-wage-fixing-agreements. It is imperative for companies to raise awareness that improper agreements in the labor market could expose them to criminal charges. The Sherman Act of 1890 was the first major federal law passed with the purpose of ensuring competition across and within industries. Today, a violation of the Act carries a maximum $100 million dollar penalty. The fine may be increased to twice the gain derived from the crime or twice the loss suffered by victims if either amount is greater than the statutory maximum.

The 2018 settlement was a first-of-its-kind and contained several provisions intended to terminate each defendant’s no-poach agreements and prevent future violations. It included a broad injunction prohibiting each of the defendants from entering or maintaining no-poach agreements among themselves and with other employers. Under the terms of the settlement, these provisions would be enforced for seven years. The agreement also consisted of an affirmative obligation to cooperate in any Division investigation of other potential no-poach agreements between the defendant and any other employer and a requirement that each defendant affirmatively notify its U.S. employees and recruiters and the rail industry at large of the settlement and its obligations. Finally, there was also a provision designed to improve the effectiveness of the decree and the Division’s future ability to enforce it. The press release issued on April 10, 2018 by the DOJ warned marketplace participants, “the Division intends to zealously enforce the antitrust laws in labor markets and aggressively pursue information on additional violations to identify and end anticompetitive no-poach agreements that harm employees and the economy.”

Familiarity with the 2016 Guidance, proper compliance programs, and regular training within your company are imperative to determine whether your company has potential anticompetitive hiring practices and procedures currently in place. If Human Resource professionals have questions regarding whether particular conduct or workplace practices violate the antitrust laws, they should consider seeking legal advice.

Rosalia Fiorello, Attorney

Wimberly Lawson Wright Daves & Jones, PLLC Nashville, Tennessee office rfiorello@wimberlylawson.com

SOLVING COVID-19 ISSUES FOR EMPLOYERS FOR OVER 40 YEARS, Wimberly Lawson Wright Daves & Jones PLLC has earned the trust of employers – businesses owners, managers and H.R. professionals, insurers, and governmental entities – by providing up-to-the-minute, relevant and informative legal counsel in the areas of Labor & Employment Law, Workers’ Compensation, and General Liability. WITH COVID-19 presenting unprecedented challenges and increased liability exposure for employers, our attorneys offer powerful and practical solutions by combining in-depth experience with leading-edge understanding of the new laws, employee issues, and unique questions affecting businesses and management in these difficult times. TO LEARN MORE ABOUT HOW WE CAN HELP YOU, including individualized training and management seminars, please call us at (865) 546-1000, email attorney Howard Jackson at hjackson@wimberlylawson.com, or visit our website at www.wimberlylawson.com.

• • • • • • • • • •

Testing & Quarantine Employee Leave Requests Mandatory Vaccines Updates for Employer Policies Terminations, Layoffs, and RIF Work From Home Issues Wage & Hour Issues Workers’ Comp Claims under COVID-19 General Liability increased exposure under COVID-19 And more …

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17


Insights for Hiring Diversity

8 Steps to Success and EEOC Compliance By DENNIS W. KOERNER, PH.D.

Introduction In the ideal world of hiring, participants such as recruiters, hiring managers and everyone else involved in the hiring process would be perfectly aligned. After all, everyone has the same goal: to get the perfect candidate who accepts the offer, and meets or exceeds the expectations of the job. Unfortunately, the many different participants in the hiring process have different perspectives, different job expectations and different people values. When recruiters, hiring managers and interviewers aren’t on the same page in every step of the hiring process, wasted time, high expenses and poor results soon follow. So, what is the answer? In this article, we’ll explore exactly how you can create a structured hiring process that (1) Clearly defines job expectations, (2) Relates applicant attributes to job benchmarks (3) Informs interviewers of their bias tendencies, (4) Creates a structured interview process and (5) Uses data to provide insights and improve your hiring results.

Why is this important? The vast majority of people don’t actively discriminate in hiring decisions. But we are all human an we all have inherent biases. The steps outlined below will provide you with a check list for reducing or elimiDiversity Insights nating unintended bias and resulting discrimination.

Step 1: Know the Law Diversity Insights Let's started understanding the law. Hiring to build a workforce has Step 1:get Know theby Law two major responsibilities: (1) Hiring the right person for the job and (2)

• Review the job tasks and responsibilities • Review the competencies necessary to perform the tasks and responsibilities • Identify the competencies that are required upon entry • Obtain confirmation of competencies from SMEs • Conduct a job analysis if one does not exist Once completed, you can summarize your job expectations by creating a "Workforce Selection Factor Guide." The Workforce Selection Factor Guide will include the job description and all critical factors related to the job such as; specific skills, prior experience, education, personal traits, competencies and general mental abilities. Let the ITN Precision Hiring platform provide you with an automated and data-based approach to hiring.

Step 3: Create a Job Benchmark Now that you have your job attributes and related performance metrics defined, its time to benchmark them. Job Benchmarking is the process of creating a point of reference against which a particular job may be compared or assessed. The first step we take is to round up your Subject Matter Experts (SME’s) who understand the job. This group of experts then work to identify the key accountabilities for the job being benchmarked. Once the key accountabilities are identified the SME's take the assessments and skills tests that will be used to evaluate job applicants. The scores of the SME's are then aggregated to a mean value which is use as a standard to measure against. Essential job requirements and associated benchmarks are typically divided into two types: technical or behavioral. Technical requirements are specific skills, knowledge, or experience necessary for the position. Behavioral requirements are how a person needs to act to be successful. An example might be a job requirment for a person who is outgoing, self-motivated and well-organized.

Diversity Insights

Let's get started by understanding the law. Hiring to build a workforce has two Complying with regulations set forth by the U.S. Equal Employment major responsibilities: (1) Hiring theMeeting right person job andis(2) Opportunity Commission (EEOC). these for twothe objectives noComplying easy with regulations set forthis by the U.S. Equal Employment Opportunity task.  Especially important to ensure that the myriad of people involved in Commission (EEOC). these with two EEOC objectives is no easy task. Especially your hiring process areMeeting in compliance regulations for protected classes.  is to ensure that the myriad of people involved in your hiring process important are in compliance with EEOC regulations for protected classes.

Assessments and Skills ITN offers an extensive library of Workforce SelectionTesting Factors for most positions as well as a complete library of Assessments and Skills Tests. Assessments and skills test are an exceptionally good way to obtain objective Assessments and Skills Testing insights about your job applicants. They remove much of misinformation Assessments andour skills testand are the an shading exceptionally good way to obtain objective associated with biases of applicant provided information.

EEOC regulations make it illegal during andindividual employment decisions to discriminate against someone on the basishiring of several characteristics. discriminate against someone on the basis of several individual characteristics. It is therefore important that any who is conducting an interview (1) Is trained It is therefore important that any who is conducting interview (1) Is trained in the principles of conducting an interview, and (2)an Clearly understands EEOC in thelaw principles of conducting an interview, and (2) Clearly understands EEOC and its protected classi�cations. law and its protected classifications. EEOC Protected Classes  EEOC Protected Classes

Tell us about your skill testing needs. We have ainformation. library of associated with ourassessment biases and and the shading of applicant provided over 100 skills tests and assessments of all types.  Our platform allows to Tell us about your assessment and skill testing needs. We have a libraryyou of over mix and match test modules.  All skills tests and assessments are online and 100 skills tests and assessments of all types. Our platform allows you to mix mobile device friendly.

Step 2: Understand Who to Hire

Findingthe theright righttalent talent isisdif�cult difficultto tosay say the the least. least. The �inding Theuse useof oftesting testingand andassessments provide insights and confidence that will and and money in assessments provide insights and con�dence thatsave will you savetime you time your efforts to efforts hire andtobuild a more diverse organization. money in your hire and build a more diverse organization.  

EEOC regulations make it illegal during hiring and employment decisions to

In the "No Bias" Hiring approach the ideal candidate is defined by the business ITN, LLC | www.itnhire.com | 901.646.6236 3 to the job. To be impartial in your needs and the performance measures Page related hiring process, where possible, you should establish performance measures that are objective, and numerical. Once job measures are in place the next step in the process is to develop job expectations for applicants based on your performance measures. Critical to this task is to have a holistic view of the competencies and attributes needed for job success. Here is a recommended planning approach to take. 18

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insights about your job applicants. They remove much of misinformation

and match test modules. All skills tests and assessments are online and mobile device friendly.

Learn More: www.itnhire.com/assessments Learn More: www.itnhire.com/assessments

Step 4: Prepare Your Interview Questions Once the job description hasITN, been along with key attributes and benchLLCdefined | www.itnhire.com marks, it is time to reflect the job needs as6interview questions. Page There are two types of interview questions that you should consider (1) Online


Organization Bias Assessment Interview Questions and (2) In-person Interview Questions. Online interview questions should be: 1. Short and usually multiple choice questions that address basic qualifications 2. Identify the attributes and qualities required for the job. In-person Interviews should be: 1. Reflective of the job and tied to competencies identified through the job analysis 2. Open-ended 3. Clear and concise

Would you like to know if your organization has collective bias tendencies, Organization Bias Assessment especially unconscious or implicit biases? Unconscious biases are social Would you like to know if your oforganization collective biasoutside tendencies, stereotypes about certain groups people thathas individuals form their especially unconscious or implicit biases? Unconscious biases are social stereoown conscious awareness. Everyone holds unconscious beliefs about various types and about certaingroups, groupsand of people that individuals form tendency outside their social identity these biases stem from one’s to own conscious awareness. Everyone holds unconscious beliefs about various social organize social worlds by categorizing.  

and identity groups, and these biases stem from one’s tendency to organize social worlds Result: by categorizing. Sample Implicit Bias Decision Tree Sample Result: Implicit Bias Decision Tree

When providing interview questions, all job candidates should recieve the same questions and answers should be noted for review. Types of Interview Questions Role Specific Questions - Ask what factors would affect your course of action for a job related challenge. Based on the premise that people will act according to their beliefs. Operational Questions - Ask for descriptions, details, observations and/or insights of people, objects, processes and/or events of conditions related to the job. Situational Questions - Present realistic job scenarios or dilemmas and ask how applicants would respond. Based on the premise that people’s intentions are closely tied to their actual behavior Behavioral Questions - Draw from a candidate’s actual behavior during past experiences (which demonstrate job-related competencies). Based on the premise that the best predictor of future behavior on the job is past behavior. Step 5: Know Your Results Essential to the interview process is capturing your insights in a meaningful way that can be communicated to others. One of best and easiest ways to accomplish this is with an Interview Scorecard. The interview scorecard is the summary list of skills, traits and qualifications that your job applicants will need to have in order to be successful in the upcoming role. The attributes are what the interview process will be designed to test and verify for each candidate. As each job candidate is interviewed, their qualifications relative to job needs are scored. Scoring scales are typically established by the SME's. The SMEs determine how applicants at each proficiency level might respond and then assign a corresponding score. Scores for each applicant interview item are then totaled and compared after the interview. Differences between interviewer scores are noted as points of discussion. Step 6: Standardize Your Hiring Process One of the key principles of hiring is to treat every job applicant in the same way. Unfortunately, it is incredibly common for hiring managers to lack a standardized, consistent hiring process. Hiring managers often create their own interviews and tests that help them determine the best candidates for their open positions. This lack of control allows for more bias and thus more room for error. Standardizing the hiring process leads to better quality hires and increased productivity. A great way to standardize your hiring process is throught the use of an applicant tracking system. These online platforms are highly capable of standardizing and automation almost every step of your hiring process. To learn more visit us at www.itnhire.com or send us an email to request a free trial.

Step 7: Measure Your Biases Most of us would not say we are biased. We consider ourselves to be objective fair-minded individuals. But the truth is many well-intentioned individuals are often influenced by their unconscious biases. Our unconscious biases come from direct experiences we have had with people, events, and situations as well as through indirect experiences learned through stories, books, media and culture. These hidden biases can impact us in a variety of ways, especially when it comes to interviewing and

To assess an organization's implicit bias, we give each member of your organization a an questionnaire. Theimplicit questionnaire organized by demographics, job To assess organization's bias, we is give each member of your specifics, personal experience, The teamquestionnaire bias, managerisbias and overall organization a questionnaire. organized by perceptions of organization�ob bias. Our team of data experts useteam databias, analytics and bias machine demographics, speci�cs, personal experience, manager and learning models to summarize and find insights fordata biasexperts types, and overall perceptions of organization bias. data  Our team of usegroups. data Your aggregated group learning data is then compared internally and to data national norms. analytics and machine models to summarize adn �nd insights for bias types, and groups.   Your aggregated group data is then compared Step 8: Train Your Hiring Managers internally and to national norms. Hiring is one of the most important jobs in a company. When we hire someone, we are determining their future and the future of the company. Yet most ITN,formal LLC | www.itnhire.com  managers have not undergone hiring training. This is a critical deficiency Page 12 and especially important to the avoidance of unlawful practices. If you are looking to train and align your hiring teams on how to hire better talent and comply with the law we are here to help. We offer both live instructor training and online interview training courses. To learn more about hiring manager training, visit us at www.itnacademy.com/ interview-training or send us an email to request a free trial.

ITN Academy The ITN Academy provides a comprehensive online training program for hiring managers. In this course, you will learn the fundamental principles of hiring and interviewing, how to create criteria to hire by, develop excellent interview questions, review resumes, conduct each interview, and capture interview results. Our courses are cloud based so that you can learn anytime and anywhere and at your own pace. Conclusions We created this article imagining an ideal situation where recruiters, hiring managers and everyone else involved in the recruiting process was trained, in agreement and understands the law. Our goal is that your company hiring practices will be structured in a way to help you make easy, data-driven hiring decisions rather than relying on the untrained instincts of your hiring teams. We hope that we have made the case that not only is it possible, but there is a blueprint for you to follow and achieve success. Most importantly, the process is based on objective data and insights. The process removes personal biases to open the doors to a more diverse and inclusive organization, not to mention one that complies with the law. We welcome any of your feedback and are happy to lend our expertise. Ensuring Success Let ITN be your partner to help improve your hiring practices. Our company has the hiring platforms, skills testing, assessments, training expertise and services to ensure that your hiring managers meet their hiring objectives while fully complying with their legal obligations.

hiring. Because of our biases we may make some inappropriate or even bad selection choices. As you interview job candidates, follow the plan and beware of your potential bias pitfalls. www.HRProfessionalsMagazine.com

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Steps for Creating a Diversity, Equity and Inclusion Strategy By SUSAN HANOLD

• The assessment helps to identify what may be adversely impacting results and helps to determine what priorities and strategic objectives we want to address. •  The scorecard, which can be called an analysis and is designed to keep the focus on DEI year-round, can be used as a tool to hold teams accountable for change. We created a maturity model with a series of questions that are asked of the key stakeholders and the executive sponsor. ----Where are you on your journey?

Diversity. Equity. Inclusion. These efforts are critical for companies and make a difference in people’s lives, careers, and communities. In January’s issue of HR Professional Magazine, I shared Diversity would be a top talent discussion for companies.

It’s critical to identify where your organization is in its DEI journey. Companies must first begin by assessing their progress and gaining greater transparency into the current state of their workforce demographics.

----Why the focus?

By having access to accurate, meaningful data, you can understand where your company is today then set targets for diversity and inclusion.

Organizations that are committed to advancing diversity, equity and inclusion (DEI) perform better and are well-positioned to attract and retain employees. Employees are increasingly demanding greater action from employers in advancing DEI within the workforce and continue to pay close attention to culture and social responsibility. In response, businesses are turning to their human capital management partners to help them identify opportunities and establish a plan for progress and ongoing transparency. ----What has changed? Global racial and social injustice and the pandemic’s unequal impact has prompted companies to focus more intently on DEI and employer social responsibility. With this greater focus, more companies are asking how they can create a better worker experience. According to ADP data, employers increasingly sought data insights on the racial and cultural demographics of their workforce accounting for a 74% increase in searches. Employers increased searches for gender-based demographics by 42%. With greater data transparency comes accountability. DiversityInc has seen an uptick in the number of businesses seeking partners to close the gaps in their workforce. There has been a noted increase in requests for DEI consulting and training support. ----Where can companies start? Today’s global labor force continues to be faced with challenges around shifting demographics, competition to hire diverse candidates, skill shortages and employee turnover. As a global company, ADP and its associates embody an inclusive culture that extends beyond the traditional employee engagement approach. We believe the best ideas thrive in an inclusive environment that values diverse perspectives. To support our clients, we’ve developed programming and toolsets to help them address gaps in their workplaces and create an environment in which everyone can reach their full potential. Many companies have the best intentions for DEI but don’t know where to start. They can lack the right data, resources, and strategy.

----What measures are critical? The second step to a successful DEI program is developing an action plan with measurable objectives. Aside from having the right data, it’s also important that your DEI program aligns with your company’s mission and strategic goals. It is important to have executive support at the top level. Having resources and best practices can help gain buy-in with leaders and managers, and drive their behaviors. ----How do you track progress? The final components to a successful DEI program are executing on a plan and tracking its progress while optimizing and improving over time. Accessible communication benefits all audiences by making information clear, direct, and easy to understand. You can evaluate success by re-visiting workforce data and sending out surveys to your employees.

DEI strategies don’t just improve your business… they change lives. By assessing your progress and putting a tailored strategy in place, you can take tangible steps toward meaningful progress.

ADP® Strategic Advisory Services offers a combination of strategy and advisory services that helps organizations promote an inclusive culture, drive engagement and accelerate performance. • The diversity maturity model provides a snapshot of a client’s current DEI efforts, including identifying what programs, policies and practices are in place to support diversity initiatives. 20

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Dr. Susan Hanold, ADP

Vice-President Strategic Advisory Services


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Is Your Background Screening Process Fair and Compliant? TAKE OUR QUIZ

By JULIE HENDERSON

Companies running background checks on potential employees want to ensure they are well-qualified and not a danger to the workplace, the clients, and the brand. However, employers can’t just screen candidates without adhering to the FCRA standards (the entity governing consumer report usage). Think your process passes muster? Take our quiz and see if you’re on the right track or heading for disaster!

QUIZ Award your company 3 points for every “almost always” answer, 2 points for “sometimes” and 1 point for “almost never”. 1. Our company has and follows a written background screening policy.

SCORING RESULTS Find your section below to see how compliant your background screening process IS or IS NOT. 69-56 points: Fair and Relevant Rock Star Your organization puts a top priority on following the current laws and regulations of hiring and it shows. Your background screening process is consistently fair and relevant to your job applicants and your policy is well-documented. Don’t let your team get lax! Make sure you continue educating yourself and your team on how to keep your process fair and relevant so you can maintain your high level of compliant standards. After all, the rules change quite often. 55-43 points: A Good Start but Not There Yet

7. Everyone involved in our hiring process knows and follows the laws in the cities and states we operate in.

Some of your processes are great, but others are lacking. It’s time to delve into how you conduct background screening on your job applicants and plug the holes that are not fair or relevant. Write a detailed policy if you don’t have one already, educate everyone involved in the hiring process about the requirements, and periodically review they are following it. With a little extra effort, you can improve your score and be a rock star of compliant procedures in no time!

8. Our background screening vendor adjudicates adverse findings to make sure they are accurate before sending them to us.

42 points and under: Cruising for Some Suing

2. Our company decides what type of background checks we pull based on the job position. 3. We screen every applicant who applies for the same job the same way. 4. All our applicants must sign an Authorization allowing us to run a background check on them. 5. Our hiring managers are educated on our policies and are given a written guide during their training. 6. We always send out Pre-Adverse and Adverse Action letters if we decide to not hire a person based in part or totally on information we find in the background check.

9. We screen our top executives in a different way than we screen our lower-level employees. 10. Our company provides written disclosures to the applicant that a background check may be performed during the screening process. 11. Our company follows the requirements set forth by the FCRA when using consumer reports. 12. Our company is aware that the FTC has implemented requirements regarding the proper disposal of confidential consumer information and we follow these requirements.

Tally up your responses in this section. SECTION 1 TOTAL:—————

In the second section of this quiz, give yourself 3 points for every “No” and 1 point for every “Yes” answer. 1. We only screen applicants who we don’t know, or who we have a bad feeling about. 2. During the interviewing process we ask our applicants about their previous salaries. 3. We regularly pull a credit report on our applicants, regardless of the job position they are seeking. 4. Our application has the question “have you ever been convicted of a felony” on it. 5. We automatically rule out anyone with a felony at the beginning of our hiring process. 6. If we find bad information in a background check, we avoid asking the applicant about it because it may embarrass him/her. 7. We look at a person’s social media profiles before we hire them, but don’t tell them we are going to do so.

Unfortunately, your background screening practices are not as thorough, consistent, or streamlined as they should be regarding fairness or relevancy. This sets your company up to get sued for discriminatory and unfair hiring practicing and could cost you dearly. The news is always reporting multi-million dollar awards to job applicants who weren’t fairly screened. It’s time to do some serious work on your processes. Write a screening policy for each job position, make sure everyone is following the required authorization and adverse actions requirements, and screen everyone consistently. Becoming more knowledgeable of laws and regulations regarding the hiring process is essential in protecting your company and executing a fair and relevant screening program. A compliant background screening process takes dedication and execution because it’s not set it and forget it. Fortunately, with the right amount of training and oversight, you can have peace of mind that your practices stand up to the FCRA requirements and your company is protected from being sued.

8. If we find bad information on their background report, we just never contact the applicant again. 9. We send the Adverse Action notices out less than five days. 10. Our company gets rid of all of our background screening documents after 2 years. 11. I have sent in background requests on my neighbors and/or friends to see if they have a criminal record.

Add up your responses in this section. SECTION 1 TOTAL:—————

Now add both totals for your FINAL SCORE.——————

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Julie Henderson

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


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Compliance Tips for Employers Considering a Move to SelfFunded Major Medical By STACEY STEWART

Is self-funding your major medical starting to sound enticing? You’ve heard it might help you control plan cost and save money plus give you more flexibility in plan design. All good things! Just keep in mind that moving to self-funding also means taking on greater responsibility in most aspects of the plan, from compliance to plan operations and beyond. Here are some tips from a compliance perspective to help keep you on the straight and narrow. Ensure Your Stop-Loss Will Be There When You Need It One of the first things that comes to mind when folks think about selffunding is…what happens if we have a really big claim or a bunch of claims that add up to more than we expected? That’s where stop-loss insurance comes in. It is designed to help you handle these budget-busting events. Most folks understand the importance of getting stop-loss - it’s a no brainer. But not everyone takes the time to review all the contracts and other documentation that comes along with it. If you want to ensure stop-loss is there when you need it, you need to carefully review the service agreement and other documentation so you understand your obligations and the provider’s expectations. For example, providers base stop-loss coverage on the terms of the major medical plan document, which tells them who is eligible for coverage, when benefits begin/end and what benefits are available. They may need other documentation to clarify coverage, such as your leave policy. If you do not timely provide these items or fail to keep them updated for plan changes, then stop-loss may deny claims based on their determination that an individual was ineligible for the coverage. Set Yourself Up for Success…from a Fiduciary Duty and Fiduciary Liability Perspective An ERISA-covered employer should always be mindful of fiduciary duties under ERISA. However, self-funding really “ups the ante” for compliance with fiduciary duties. For example, ERISA generally requires (among other things) that plan fiduciaries act prudently in hiring and monitoring plan providers and ensure fees are reasonable. One way you can set yourself up for success is by making sure your vendor agreements do not unduly restrict the ability to discharge fiduciary duties under ERISA. Carefully review and negotiate agreements with plan service providers to ensure they allow such access to data as is needed to monitor and evaluate the provider’s performance and fees. Pay special attention your ASO/TPA, stop-loss provider and pharmacy benefit manager agreements where the potential for this issue to arise is particularly high. Also, this might be a good time to consider adding fiduciary liability coverage. Fiduciary liability insurance can protect the plan fiduciaries if a breach of fiduciary duty occurs. This insurance differs from a fidelity bond which protects the plan (not the fiduciaries) against losses caused by acts of fraud or dishonesty.

Form 1095-B to plan participants every year and file a Form 1094-B with the IRS (along with copies of the 1095s). ALEs that sponsor self-funded health plans use IRS Forms 1095-C and 1094-C to report to plan participants and the IRS, respectively. While ALEs must report on these forms regardless of their health plan’s funding status, moving to self-funding means you now must include additional information about covered individuals in Part III of the 1095-C. In any event, you want to think through the additional reporting obligations that arise in the move to self-funding. Take steps to ensure you can gather the information needed and complete the reporting in a timely fashion. That may mean you need to engage an ACA reporting vendor or find a workable ACA reporting solution. If you already have an ACA reporting vendor or other solution in place, you may need to reevaluate and perhaps change the arrangement. This can involve additional administrative time, fees and the like so it’s a good idea to start the process as early as possible. Don’t Forget to Factor in PCORI Fees Speaking of fees…self-funded health plan sponsors are subject to an additional fee used to fund the Patient Centered Outcomes Research Institute – referred to as a “PCORI fee.” PCORI fees are generally based on the number of lives the plan covers, and there are different methods you can use to calculate the fee. It’s important to take the time to figure out which method produces the lowest fee as it can vary significantly based on calculation method. PCORI fees will cease to apply to plan years ending after September 30, 2029. Do these fees sound familiar? Perhaps you previously paid PCORI fees for an HRA offered with your fully insured plan. If so, never fear…the fee won’t double. If the HRA only covers folks in the self-funded major medical plan, then the PCORI fee is based on covered lives in that plan. However, if an HRA covers anyone outside of the major medical, then an additional PCORI fee applies for those lives. Self-Funding Means Greater Obligations under HIPAA The move to self-funding often significantly increases HIPAA privacy and security compliance obligations. This is because the carrier bears the HIPAA privacy responsibility for most fully insured plans. While all fully insured plans must comply with the HIPAA security rules, to do so is less burdensome for those plans with limited access to PHI. Start by assessing your plan’s current compliance with these HIPAA rules to help you determine what additional action is needed to comply with the full range of HIPAA requirements for self-funded plans. Many plans will need, among other things, an updated security risk analysis and HIPAA privacy and security procedures as well as to develop and distribute a HIPAA notice of privacy practices and institute workforce training. Sound overwhelming? Don’t despair! There are plenty of vendors, law firms and other advisors who can help you bring your plan into compliance. Self-funding major medical comes with many advantages; however, don’t let the potential for dollar savings blind you to additional compliance obligations. Take the time to think through how the change affects compliance. Okay, maybe it’s not the most appealing part of the move, but just take it one step at a time and seek the help of your trusted advisors when you need it. You got this!

Be Prepared for Additional ACA Reporting Obligations Small employers who are not applicable large employers (ALEs) under Affordable Care Act (ACA) rules need not worry about ACA reporting with a fully insured plan. That changes when you decide to self-fund the group health plan. Self-funded plan sponsors that are not ALEs must provide a 24

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Stacey Stewart, JD

Senior Employee Benefits Compliance Officer stacey.stewart@mcgriff.com www.mcgriff.com


Most brokers say they have all the answers.

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© 2021, McGriff Insurance Services, Inc. All rights reserved. McGriff Insurance Services, Inc. is a subsidiary of Truist Insurance Holdings, Inc.


Obesity is a Critically Important Health Issue for Employers By MURRAY L HARBER

Obesity can affect a person’s overall health and daily performance in negative ways by adding more health risks that contribute to other related medical issues, which use up needed financial resources due to high total healthcare costs. As a result, obesity is an important economic and clinical health concern for all aspects of our society, different communities across the Southeast, and especially for the many employers doing business in the Southeast. Obesity in the United States continues to be a growing concern in all age levels as rates rise year after year. For employers, obesity and its comorbidities can be a burden to its health plan, to its employees, their engagement, and its organization’s health. Our recent efforts in working through the COVID-19 pandemic has heightened the awareness of health risks, specifically metabolic health issues such as chronic weight management and obesity in general as areas of focus for health improvement. A few years ago, an expert made a statement that due to the obesity epidemic in our children, they would have a lower life expectancy than their parents. This is startling. Knowing that our children will live life with a chronic disease that could shorten their life. Employers who are including preventative obesity care and weight management programs within your employee health and wellbeing program can help to improve the overall health of the population and reduce the negative aspect of poor health. Employers can do the same within your employer-sponsored health plan as part of a comprehensive health management effort that can also reduce absence or improve productivity. Making sure you as an employer are able to promote what your plan offers in each part of the health risk reduction continuum is critical in the success of the efforts. It makes sense, and has been proven for too many years, that well designed, comprehensive employer health programs can save money over time with immediate cost savings can come from implementing effective disease management programs. Such obesity management programs can mitigate health plan waste and improve health outcomes. A recent multi-employer study showed that obesity levels are associated with higher costs, as weight increases so does direct and indirect costs (Ramasamy A et al. J Occup Environ Med. 2019;61(11):877886.). They quote an at weight person costs are around 11k and those at obesity three level costs 28K, a 1.5 increase in direct and indirect cost. Employees who are overweight usually have more absences, show reduced presenteeism and productivity, and have other co-morbidities such as depression, 26

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arthritis, and possible other health concerns. The aim is to be a supportive employer who provides resources to help employees and their families with resources to help them with their weight management journey.

ACTION STEPS The goal of any employer should be to offer a variety of proven work environment and policy supports with employee benefits that give access to promoting value-driven healthcare, health improvement programs, and specifically in weight management/chronic disease concerns. The US Preventive Services Task Force recommends worksite programs intended to improve diet and/or physical activity behaviors based on strong evidence of their effectiveness for reducing weight among employees. [www. communityguide.org]. Employers can have a profound impact on an employee’s lifestyle choices by providing options and opportunities for healthy choices while also providing employee benefits and discounts to programs and services. Employers’ health plans should include access for all options with access to properly supervised Weight Management, use of Anti-Obesity Medications, as well as clinical management programs should Bariatric Surgery be required. For Everyone

themselves, a health plan, employer, and their community. As an individual accumulates health risks, their chances of getting a chronic disease such as obesity, diabetes, and heart disease are drastically increased. These chronic diseases are key drivers within employers’ group health plan and should be addressed to mitigate a migration of an emerging cost to one of the largest costs. It is recommended that people in secondary and tertiary stages to strive to lose 10% of your body weight as it has been shown to help people feel better, have a sense of accomplishment, drastically reduces other health risks, slow or reverse chronic disease progression. Some of the specific employers opportunities to take action include the following. • Promote programs and services available through your health plan offerings regularly, not just once a year. • Provide more targeted employee benefits for weight management such as a Medical Weight Management Program which uses a physician-led care team to educate and guide through an approach which could include the use of appropriate supplements, Anti-Obesity Medications (AOMs), and related efforts that may avoid bariatric surgery.

In the area of primary prevention or preventative services, employers can provide employees and their family members a variety of resources for selfcare, healthcare, lifestyle modification, and support to navigate the healthcare system. Offering a supportive workplace culture with recommendations for the remote worker that encourage proper posture, ergonomics, healthy breaks, healthy snacks/hydration, stretching, taking walks, and other health activities which can help in building a foundation of supports.

• Review and update how tertiary care would include bariatric surgery for weight loss to manage complex chronic conditions causing life’s threatening issues and quality of life concerns with patients. Bariatrics have been shown to reverse chronic disease where people get off their medications, their joint health improves, and their mental health improves to where their health status improves and quality of life advances.

Discounts with local community businesses that encourage healthy lifestyle choices are key to engaging employees and family members. Common discount programs include local fitness centers, fitness subscriptions, smoothie shops, therapeutic massage, and food/supplementbased weight management programs. Most plans today have access to tele-health providers, and some can have access to an onsite clinic where a clinical team of health professionals can help and support what works personally to support interest in weight loss for the apparently healthy individual as well as overweight or obese individual member in a plan.

In summary, obesity and its associated chronic metabolic, cardiac, or some oncology diseases reduce life span, quality of life, and increases lifetime health care costs. Covid-19 has heightened awareness as those with obesity risk factors are more likely to get COVID-19 and have worse symptoms, and in the youth more likely at risk to die. Employers could be offering a comprehensive list of weight management supports, resources, and programs for employees and their families.

For those at Risk and with Medical Conditions There still is a “Covid-19 hangover” of impacts for those with existing medical conditions or recovering from a virus infection. The more health risks a member has the higher cost they are to

Murray L Harber, Executive Director

Mississippi Business Group on Health and Co-Chair, WellSpent


Why should employers be concerned about obesity? A recent multi-employer study showed that obese adults can cost up to 2.5 times more in total costs compared to those at normal weight ranges.* Employers can provide a culture which supports health and wellbeing and offer employee benefits that engage employees into comprehensive weight management programs and clinical services at little to no cost to the employee. Visit epicouncil.org to learn more.

INITIATIVE

*Source: Ramasamy A et al. J Occup Environ Med. 2019;61(11):877-886.


The NEW AMERICAN RESCUE PLAN May Help Employers & Employees Reduce Health Care Costs By JOEL LEE

On March 11th, President Biden recently signed the American Rescue Plan (ARP) into law with the goal of advancing a wide range of policy agendas. The plan’s most publicized provisions addresses COVID-19 vaccinations and economic stimulus, but some of its most important and long-lasting effects will be on the healthcare system. Just what does the ARP provide for in health insurance and how might those provisions impact healthcare benefits offered by self-insured employers? Just as importantly, what does the Plan do to improve health benefits for workers and their families, and how can health benefit plan administrators capitalize on these new measures? To learn more about these implications I spoke with Frank Cardenas, President and CEO of FEDlogic, a company founded six years ago to help people maximize federal benefits for themselves and their families. SHRM: What do you see as the most important provisions of the American Rescue Plan from the viewpoint of workers and self-insured employers? Cardenas: There are three big items that ARP tackles and each will have potentially huge ramifications for employers and employees alike. The first is a dramatic change to COBRA. COBRA as originally designed to offer a worker who had left or lost a job to remain on the employer’s health benefit plan for up to 18 months. However, that continuation of coverage historically came at a high cost for the worker. Once on COBRA, the displaced worker would not only pay their share of the monthly benefit cost but would also bear the employer’s share. For an average worker the monthly cost of family coverage would skyrocket from $300 to $1500 or more. For most the cost was simply more than they could afford after losing their source of income. Only those with very high and predictable monthly healthcare expenses remained insured through COBRA. Studies have shown that workers who lost their job were more likely to go without health insurance than purchase COBRA coverage. 28

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SHRM: So COBRA rules change dramatically helping workers and employers both with the difficult transitions that come with losing a job. You said there were three key provisions. What else changes? Cardenas: The Biden Administration has emphasized plans to expand and improve the Affordable Care Act. The American Rescue Plan has expanded available subsidies through insurance exchanges. Now these subsidies are available for individuals and families earning less than 400% of the federal poverty level. For a family of four that is right around $100,000 per year. In addition, no one who purchases insurance on an exchange will need to pay more than 8.5% of their annual income on premiums. Suddenly, healthcare coverage bought on Obamacare exchanges can rival employer-sponsored plans in coverage and costs. Just as importantly, the ARP opens enrollment in Obamacare for 3 months – extending open enrollment through mid-May so people who are facing dislocation (or who are weighing their options) will not need to wait for the standard open enrollment in the Fall.

SHRM: What is the third provision that you think may have impact on employer sponsored health coverage? Cardenas: The bill provides for even greater incentives for the 12 states who have not expanded Medicaid and do so by bumping the federal share of all Medicaid costs by 5%. I live in Tennessee where the state has not expanded Medicaid as allowed by the Affordable Care Act. The percent federal subsidy would rise from 66.1% to 71.1% and result in and additional $1.7 billion over two years. This does not include the roughly $1.5 billion annually the state would bring in by expanding Medicaid coverage. Many low wage workers, even when fully employed, may earn less than 133% of federal poverty (just under $50,000 a year). For those workers and families, Medicaid can offer benefits that are better than employer-sponsored plans with zero premiums and zero deductibles.

SHRM: So you’ve outlined the benefits for workers and families who are looking for affordable healthcare coverage under ARP. What opportunities does it offer for self-insured employers?


Cardenas: These expanded coverage options present solid opportunities for employers and we’ve built FEDlogic to help both employees and their employers capitalize on these benefits. Our first mission is to help families. I know from my own experience how difficult it can be for people especially those at the lowest end of the economic spectrum to find benefits when they need them. At FEDlogic, we’re here to help. But often the help we provide employees has dramatic benefits for their employer, too. Employers today want to be considered among the best places to work in their industry. A hallmark of one of these best-in-class employers is the level of concern and commitment they have for the people who work for them. An employer who wants to work with employees to find the best configuration of health benefits, is one that earns trust, loyalty and commitment. In our work with large employers we have found that many times, the things that help workers and their families provide strong reward for the employer, both non-monetarily but also monetarily. We have found a great many workers who qualify for Medicare and the benefits of Medicare far exceed the employer’s health plan. By moving those workers to a Medicare health plan that is cheaper and better, we reduce the employer’s cost of providing benefits.

subsidy helps make the Silver Plan more affordable than their employers plan with comparable coverage. For others, we’ve helped identify Social Security Disability coverage for families dealing with serious disease or accidents. In all of these examples, employers have seen a significant reduction in cost that improves their profitability and allows them to look at a more generous comp and benefit plan. With the expansion of federal health benefit plans under the American Rescue Act, the opportunities have grown exponentially – which is really exciting because it opens up more possibilities for employers and employees.

SHRM: If our readers are interested in learning more about how FEDlogic can help their company and their employees what can they do? Cardenas: We’d love to hear from them and offer a complimentary evaluation to see how we can save their company money while helping their workforce. For inquiries contact Anita Blackmer, Chief Operating Officer, at 615-948-3648 or by email anita@fedlogic.com.

We have not only moved individuals to Medicare but also to Medicaid when the employee is a lower wage worker. We have helped some enroll in ACA plans where the

Joel Lee

CEO and Senior Partner Lee Strategies

NAVIGATING FEDERAL & STATE BENEFITS

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

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

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

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

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

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How To Instantly Reward Employees For A Job Well Done By BHUVANA RAGHUNATHAN

Sometimes a pat on the back just doesn't cut it. There are those special moments when an employee jumps in to take a shift for a sick coworker or when a customer acknowledges an associate for going above and beyond the call of duty. As an employer, those are the moments you relish and take pride in. Sometimes, you want to show your gratitude with more than just a simple thank you.

The research shows employees who receive regular small rewards are 8 times more likely to be engaged in their work.

But, rewarding those employees financially is never as easy as it should be. A recent edition of Deloitte CFO Insights illustrated the power that a dynamic and transparent awards program can have on employees. The research shows employees who receive regular small rewards are 8 times more likely to be engaged in their work. Sadly, only 8% of those polled said their organization’s rewards program is “very effective” in retaining talent, while only 6% said it was “very effective” in attracting talent, and a mere 3% said it was effective in motivating talent. Those miniscule numbers reveal an area that is not being properly addressed, yet it can have a transformative effect on companies.

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A robust rewards program can boost employee engagement and that, in

Today, our employees live in a world where

turn, has a direct effect on employee retention — an area that can cost

they expect instant everything in their lives

companies millions of dollars in recruiting and onboarding costs.

via their phones. The instant gratification

However, rewarding an employee with an on-the-spot financial bonus can

conveys a sense of gratitude and reaffirms

be quite a challenge for your payroll and finance teams.

their value to the organization.

of receiving a bonus can be profound. It

The solution to an effective rewards program can be found with the simple press of a button. As part of its award-winning platform, DailyPay, the recognized gold

It’s a way of saying thank you — in a most rewarding way.

standard in the on-demand pay industry, has created REWARD — a solution that gives managers the ability to instantly and effortlessly incentivize their staff with on-the-spot payments for everything from bonuses for exemplary work to special incentives for picking up additional shifts. In a time when the bond between employer and employee has been frayed because of layoffs, shift reductions and extensive new work protocols, REWARD by DailyPay gives HR executives and field managers the power to mend those relationships in a meaningful way. Plus, there is no extra work for the payroll team, and it's the easiest, most compliant way to distribute and track rewards. This is a win-win for everyone.

Bhuvana Raghunathan

Head of Enterprise Product, DailyPay

www.HRProfessionalsMagazine.com

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A comprehensive resource for human resource management to rely on for the most up-todate policies and best practices to manage workplace diversity and promote inclusion. The Center for Workplace Diversity and Inclusion (CWDI) serves as a catalyst for enhancing understanding of workplace diversity and inclusion issues and applying evidence-based diversity and inclusion practices in organizations. CWDI offers consulting services and partners with organizations to help foster a diverse and inclusive environment in your organization or business. For more information, please contact Dr. Enrica N. Ruggs, director, Center for Workplace Diversity & Inclusion, assistant professor of Management, Fogelman College of Business and Economics enruggs@memphis.edu | 901.678.4551

• Workshops and seminars to help organizations maximize diversity and increase inclusion • Development and administration of organizational diversity audits and climate surveys • Training evaluations and assessments to ensure maximum value is realized from current trainings • Assessment of selection and talent management systems to uncover ways to strategically improve diversity management • Trainings (e.g., unconscious bias training, ally training) geared toward ensuring an organizational climate that fosters inclusion and allows all employees to thrive

memphis.edu/fcbe/cwdi An initiative of the Fogelman College of Business & Economics. An Equal Opportunity/Affirmative Action University

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The First

100 Days

for Employers Under the

Biden Administration

By JENNIFER ROBINSON and SARAH BELCHIC

The impacts of a new presidential administration are always a topic of conversation. This is especially so within the first one hundred days, where the newly elected president and his administration begin to demonstrate those sentiments and positions that will be present over the next four years. President Biden has made commitments to focus on pressing issues including the COVID-19 pandemic, workers’ rights, and social justice. There are, however, certain pursuits of the new administration that employers should be aware of. Those include the effort to raise the federal minimum wage, the push to prohibit pre-dispute arbitration agreements, and sweeping legislation to amend the National Labor Relations Act.

require employers to place themselves under a hiring freeze or, in the alternative, reduce their workforce. Employers may also consider what roles and jobs they can reasonably outsource – which may decrease labor cost and allow the employer to meet the demand of increased wages. Regardless, it is important to recognize that an increase in minimum wage is on the horizon under the new administration and employers should develop a strategy that best suits their business and work environment.

Abolition of Arbitration Efforts to Raise the Federal Minimum Wage

The Biden administration has made it clear that raising the federal minimum wage is a top priority. It has been eleven years since the federal minimum wage was raised to its current value of $7.25, and the effort to increase the minimum wage has appeared on many fronts. Although it has recently become clear that the increase in minimum wage will not be included in the American Rescue Plan – the most recent COVID-19 relief bill – identical versions of the Raise the Wage Act of 2021 have independently been introduced in the Senate and House. The act would amend the Fair Labor Standards Act to gradually increase the federal minimum wage from $7.25 to $15.00 over a five-year period. As drafted, the bill would increase the minimum wage this year to $9.50; $11.00 in 2022; $12.50 in 2023; $14.00 in 2024; and then, $15.00 in 2025. Thereafter, the minimum wage would index to median wages. Additionally, two Republican senators have released their own proposal – the Higher Wages for American Workers Act. Under this plan, the federal minimum wage would gradually rise to $10.00 by 2025, then be adjusted for inflation every two years. This plan would also implement a slower, “phase-in” process for small businesses. Although less aggressive than the Raise the Wage Act, the release of the Higher Wages for American Workers Act indicates some level of bipartisanship on this issue under the current administration. Additionally, many states have already raised or have voted to raise state minimum wages above the federal level, such as Florida, California, Connecticut, Illinois, Maryland, Massachusetts, New Jersey, and New York. While there are overall benefits businesses can expect from an increase in minimum wage, (e.g., with more disposable income, the population will gain more spending power, which can result in an increase in both demand and business for employers), employers should consider analyzing their workforce and pay policies before any minimum wage act passes to assess difficulties they may encounter. For example, employers will want to consider how much of that minimum wage increase can reasonably be passed along to its consumers, clients, and customers. Additionally, the increase in minimum wage could 34

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In response to certain social movements (e.g., the #MeToo Movement) and after the United States Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), in which the Court held that class and collective action waivers in arbitration agreements are lawful under the NLRA, there has been a significant effort to minimize the use of arbitration to resolve disputes. The abolition of arbitration agreements has been a major point for President Biden as he has committed himself to expanding workers’ rights – including workers’ ability to litigate disputes in court. In past congressional sessions, several legislative efforts to nullify mandatory, pre-dispute arbitration agreements have been introduced, and may be reintroduced during the current session. Those include the Forced Arbitration Injustice Repeal Act, the Restoring Justice for Workers Act, and the Ending Forced Arbitration of Sexual Harassment Act. These bills range from invaliding a wide array of pre-dispute arbitration agreements, to invaliding only those agreements requiring arbitration of sex discrimination disputes. Although no action on these bills has yet been taken, they are indicative of a rising sentiment that mandatory, pre-dispute arbitration agreements in employment contracts should be prohibited. As such, employers should be prepared to address their mandatory arbitration agreements should any antiarbitration bill become law.

The Protect the Right to Organize Act

One of the most expansive pieces of legislation that the new administration is supporting is the Protect the Right to Organize Act. The PRO Act’s stated purpose is to expand unionization, enhance remedies for unfair labor practices, safeguard the right to strike, and permit “fair share” union dues. Overall, the PRO


Act would effect over 50 changes to the NLRA – many of which would impact all private sector employers regardless of whether their workers are unionized. One such impact is that state “right to work” laws – laws that prevent employees from being compelled to join unions or pay dues as a condition of their employment – would be overturned, permitting agreements that require all employees within a bargaining unit to pay dues to a labor organization as a condition of employment. Additionally, the PRO Act would drastically increase the NLRA’s coverage. For example, the PRO Act would codify the “ABC” test for determining whether an individual is an independent contractor. Under the ABC test, a worker would be considered an “employee,” and therefore covered by the NLRA, unless the hiring entity demonstrates certain facts. Similarly, the PRO Act would narrow the definition of “supervisor,” meaning that employers would not be able to rely on those individuals to exercise certain employer rights under the NLRA. The PRO Act would also expand the scope of “joint employer.” For example, those employers that contract with staffing agencies could be considered a “joint employer” under the new act. The PRO Act would also generally limit employers’ actions. For example, employers would be required to turn over employees’ personal contact information prior to an election or to allow employees to use employer electronic systems to organize and engage in protected activities. Additionally, the PRO Act would require employers to disclose payments made for labor relations advice and services they receive from their attorneys.

LCYFFL0118

Further, much like the efforts mentioned above, the PRO Act would restrict the application of arbitration agreements. Specifically, it would prohibit any attempt to enter into or enforce an agreement in which an employee waives their right to collective or class action, overruling the Supreme Court’s decision in

Epic Systems. Yet, the PRO Act would compel parties bargaining for an initial collective bargaining agreement to submit to mediation, and eventually binding arbitration, should they not reach an agreement within 90 days of the parties commencing negotiations. Finally, the PRO Act would expand penalties for violations of the NLRA by including civil penalties for non-compliance, which could be enforced via civil action in federal court and by applying penalties to the employer’s individual directors and officers. As employers look forward and past the first one hundred days of President Biden’s administration, employers should remain aware of these efforts and be prepared to evaluate and revise their policies, practices, procedures, and agreements as they pertain to these topics.

Jennifer Robinson

Office Managing Shareholder Nashville, TN jenrobinson@littler.com (615) 383-3374

Sarah Belchic

Associate Nashville, TN sbelchic@littler.com (615) 383.3273

SFBLI.COM www.HRProfessionalsMagazine.com

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Reaping The Triple Benefits of Ending Age Discrimination In Employment By DAN NORWOOD

The Age Discrimination in Employment Act of 1967 was passed under President Lyndon B. Johnson The Civil Rights Act of 1964, which prohibited discrimination in employment based on race, color, sex, national origin or religion did not prohibit age discrimination in employment. While efforts were made in Congress that year to also make age an unlawful basis of discrimination in the Act, that effort failed. It was not until three years later that age discrimination was declared illegal in the Age Discrimination in Employment Act of 1967. When President Lyndon Johnson signed that law into effect, he said its purpose, like our other discrimination laws, was to “gain a triple benefit — for the employer who gets the best employees to do a job — the employee who gets equal opportunity to get hired for the best job – and for our country that gets the most successful companies and citizen employees.” Today there are 75 million Baby Boomers who were born between 1946 and 1964 and almost thirty million of them are still in the workforce. An AARP report projects that by 2022 nearly 35% of workers will be age 50 or older. Many of those older workers will continue to work into their 70's. America has made great progress over the past half century towards attaining our goal of ensuring equal employment opportunities for all Americans. Our most recent efforts to continue working towards this goal are called “diversity and inclusion” programs. Unfortunately, though, a 2015 PricewaterhouseCoopers survey of CEOs in 77 countries found that, while 64 percent had a diversity and inclusion strategy at their company, only 8 percent of those plans included age. Clearly, just like we have made remarkable progress in ending discrimination against non-whites, females and the disabled, we need to now do more to make similar progress in ending discrimination against our older citizens who are still working or who desire to continue working. Age Discrimination in Employment Is Rampant in America Today and Older Americans Know It A 2018 AARP report said that 3 in 5 older workers said they have seen or experienced age discrimination in the workplace and 76% said they see age discrimination as a hurdle to finding a new job. Many employers apparently do not understand that workers have this perception because they continue to include outright discriminatory language in job postings, like ads seeking “recent college graduates.” The Ease of Proving Pretext in Age Discrimination in Hiring Cases and The High Cost of Age Discrimination in Hiring Proving the reason an employer gives for not hiring an older applicant is a pretext is often easy. For example, one case I handled involved a 72-year-old long-haul truck driver who was working for a trucking company at the time he applied for a job with another trucking company because it paid more. After he did not get hired, he called the recruiter and asked him why he was not hired and was told the reason was that the company hired applicants who were better qualified. He spontaneously asked the recruiter how anyone could have been better qualified than him because he was currently working as a driver and had five million safe driving miles during his fifty-year driving career! After a lawsuit was filed, personnel records revealed the company had hired eight new drivers, all under thirty-five years old. Since none of them had near his experience or good record, the company paid my client $120,000.00 in a confidential settlement to end the case. 36

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Another example of how easy it is to prove an employer’s claimed reason for not hiring an older applicant is a pretext or sham is found in the last jury verdict I won against an employer for age discrimination in hiring. The case is Dennis Vawter v. E. I. Du Pont De Nemours and Company. The verdict, which was appealed by the company and affirmed on appeal, reveals how hard it is for an employer to hide its real reason for not hiring an older applicant. The plaintiff in the DuPont case applied for a Chemical Operator position at a DuPont’s chemical plant after he lost the Chemical Operator job he had held for 37½ years at Velsicol Chemical Corporation prior to that company closing its Memphis plant. He was 59 years old when he applied for the DuPont position. Out of 421 applicants, DuPont’s managers interviewed 34 and hired 12 to become Chemical Operators. Notably, one of the individuals hired was almost twenty years younger than Mr. Vawter and had also worked at Velsicol, but only for two years compared to his 37½ years. All of the eleven other individuals who were hired were much younger than Mr. Vawter and four of them had never worked in a chemical plant. Finally, the high cost of getting caught discriminating against older applicants in hiring is revealed in the DuPont case. The case was brought in state court under the Tennessee Human Rights Act because, unlike the ADEA, that law allows the jury to award not just lost pay and benefits but also compensatory damages for mental distress, humiliation and embarrassment, and loss of enjoyment of life caused by the discrimination. The jury awarded Mr. Vawter $100,000.00 in compensatory damages. More importantly, the judge also awarded him front pay for a period of three years totaling $112,120.00, plus his attorneys fees totaling $96,000.00. This verdict sends a clear message that an employer that allows its management to engage in age discrimination in hiring should expect to pay a large sum for its wrongdoing. A Broader Diversity Inclusion Program Must Be the Goal Unfortunately, too many employers that engage in ageism in their hiring still fail to understand that older workers possess a depth of skills and knowledge that is worth paying for. Failing to end ageism hurts employers who, as a result, may be hiring the “second best” person for a job. As a SHRM Foundation Executive Briefing


stated: “To reap the benefits of a productive age-diverse workforce, organizations need to move beyond outdated and limiting beliefs about older workers.” Any human resources professional who fails to upgrade their employer’s Diversity and Inclusion Program to include ending ageism will not only miss the opportunity to hire the “best” person for every job but will also risk their employer having to pay the high cost of being found guilty of age discrimination in hiring. Ending Age Discrimination in Hiring and The Role of the Courageous Human Resources Professional The main way to end discrimination in hiring is to enforce our laws prohibiting discrimination in employment based on age. The First Enforcer for all of our employment discrimination laws is not, as many assume, our state and federal employment discrimination agencies. Neither is it Plaintiff employment lawyers, like me.. The First Enforcer is the competent and courageous human resources professional working on the front lines of the hiring process at a public or private employer. That human resources professional must never forget that his or her duty is to the enterprise, not to the individual managers or executives who may want to engage in unlawful discrimination. They must have the courage to tell those individuals they cannot engage in such discrimination. If that human resources professional fails to do so, then discrimination may raise its ugly heads during the hiring process. By showing such courage, not only will the time and major expenses that come with discrimination lawsuits be avoided, but the human resources professional will be ensuring that the enterprise is hiring the “best” person for a job. Admittedly, showing such courage carries a risk. While I call myself the Working Boomer Advocate because I am mainly focused on being an advocate for victims of age discrimination, sometimes I have to call myself the Human Resources Professional

Advocate. One such case I handled a few years ago was for the Human Resources Manager of a trucking company who had been directed by the company’s Vice President not to hire any drivers over age fifty because she believed they were more likely than younger drivers to miss work due to health problems. Knowing that to follow such a directive would constitute unlawful age discrimination, this courageous Human Resources Manager disobeyed the directive and hired a 58-year old applicant who had an excellent twenty-five year driving record, Unfortunately for her, this older driver had a heart attack on the job one month later and died. When the Vice President who had instructed her not to hire anyone over age 50 learned that this older driver had been hired contrary to her instructions, she fired her on a shallow pretext. Soon after I filed a retaliatory discharge lawsuit, a settlement was reached. Remembering this story always reminds me of the critical role human resources professionals continue to play in helping citizens, employers and our country be able to reap the triple benefits promised with the passage of the Age Discrimination in Employment Act in 1967.

Dan M. Norwood, Attorney

Working Boomer Advocate dan@workingboomeradvocate.com

Working Boomer Advocate Attorney Dan Norwood 254 Court Ave Memphis, TN 38103 901.834.9292 workingboomeradvocate.com

“Focused on fighting age discrimination in employment” Best Lawyers

Super Lawyers

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Advancing Women Leaders By TRACY DUBERMAN

As we celebrate women's history, we reflect on current efforts to advance women leaders. While more than 90% of companies report a commitment to gender parity according to Diversity Practice Inclusion Index, the data reveals relatively equal gender representation up until the senior manager level - where male representation jumps 16% and female representation falls 14%. At The Leadership Development Group (TLD Group) we believe diverse leadership is a critical component for organization’s looking to accelerate growth. As HR professionals it is important to draw attention to gaps that exist within your leadership pipeline and the potential negative organizational implications that may follow if the gaps are not addressed. A discrepancy between the prevalence of women in the talent pipeline and absence of equal representation in advanced leadership roles, highlights the need for organizations to consider the strategic, structural, and cultural components potentially impacting diversity. The underrepresentation of women in leadership roles is not just a representation of inequality, it is also bad for business. Diversity Research by MIT1 has tied diversity in the workplace to increased performance in terms of bottom-line. Forbes2 found equal gender representation could increase the bottom line 41%. However, equal gender representation at the top of the house has yet to become a reality.

Considerations for Change Huffington post article, Time to Get with It: Creating Successful Women’s Leadership Programs,3 calls attention to the leadership gender gap. Beyond hiring or promoting more women for leadership roles, diversity and inclusion initiatives, they argue, should include solutions aligned with a more expansive and holistic leadership development approach. Best practices to expand women’s leadership development include two critical areas of focus: Sponsorship & Mentorship. Including women in succession planning requires current leaders to be actively engaged in mentoring (i.e., offering mentees’ advice and support) and sponsoring (i.e., actively investing in protégé career success) high potential women. Sponsorship has been found to be a particularly effective strategy for expediting a high potential leader’s career trajectory.4 Sponsorship provides protégé’s with greater access to advancement opportunities. Inclusion of sponsorship and mentorship in women’s leadership development programs offer an impactful and competitive advantage for fixing leaky pipelines and showcasing high potential female talent that exists within an organization. 38

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Cultural Change. Attention to culture is crucial for effectively implementing diversity solutions. A Harvard Business Review5 article which surveyed women working in Science, Technology, Engineering, and Mathematics (STEM) revealed how expectations and assumptions on gender stereotypes are systemic challenges and barriers to authentic collaboration.. Women’s leadership development programs need alignment with and reinforcement from organizational diversity strategies to build a culture of diversity to eradicate barriers like gender stereotypes. 1 http://news.mit.edu/2014/workplace-diversity-can-help-bottom-line-1007 2 https://www.forbes.com/sites/learnvest/2014/12/22/why-gender-diverse-work-teams-are-themost-productive-andprofitable/#37a5dd526baf 3 https://www.huffingtonpost.com/entry/time-to-get-with-it-creating-successful-womensleadership_us_595e4260e4b08f5c97d06775 4 https://hbr.org/2014/02/make-yourself-sponsor-worthy 5 https://hbr.org/2015/03/the-5-biases-pushing-women-out-of-stem

In a recent interview with Medical Economics6 internist and American College of Physicians (ACPT) President, Ana Maria Lopez discussed the power of collaboration as an opportunity to address gender equality in medicine. Lopez highlights the advancement of women in medicine with gratitude for those who paved the way. Addressing the inequality issues still at hand, Lopez spoke of how focusing on women’s leadership development is not just about women; but rather about sharing perspectives and learning from one another.

Building Leadership Capacity To build an adequate pipeline of women leaders for the future and ensure diversity and inclusion at all levels, organizations across should consider a multidimensional approach which tracks metrics. Consider the following: • Targeted Assessment & Coaching for Women Leaders: Offer individual executive coaching to high potential female leaders to enhance their overall leadership capabilities and build the capacity to respond constructively to diversity and inclusion challenges through self-advocacy. • Diversity Coaching for Sponsors: Invest in individual and


group ‘sponsorship coaching’ for managers and executive leaders to learn and support one another in sharpening sponsorship efficacy. Being an effective sponsor, in and of itself, requires skill in challenging, stretching, showcasing, and promoting up-and-coming female leaders. Be sure to involve the organization’s lead for succession planning in any sponsorship coaching programs to ensure that sponsors can openly discuss their female protégés and advocate for them. • Embed in Onboarding Processes: Move from traditional approaches to onboarding to one that includes sponsors to advocate for the new leader’s success. Vetting a leadership development plan with a new leader’s sponsor embeds diversity as a cultural value. • Talent Management: Be sure to include diversity competencies in your organization’s talent management processes. Set clear targets for assessing, selecting, developing, and promoting female leaders at all levels within the organization. • Elevate the Development of Female Leaders: Create a women’s leadership academy focused on high potential female executives with the expressed objective of development for inclusion in the next level role. Integrate a sponsor-protégé component into the program to enhance the protégé’s visibility and consideration for promotion. Organizations who invest in building the pipeline of women leaders receive tremendous value. By and large, women shatter groupthink, improve communications dynamics, and reinvigorate companies in ways that make them more competitive. Research shows companies with a critical mass of top-team gender diversity enjoy significantly better financial performance. Building the pipeline of women leaders at all levels takes time, resources, and great attention. However, if organizations want to reap the rewards of

gender parity, they need to make the commitment now or risk losing their competitive advantage. Long term the answer is an integrated talent management strategy and development of a diverse leadership pipeline. 6 Medical economics (October 10, 2018) Internist Ana Maria Lopez: Opportunities for action. Medical Economics Staff

Tracy Duberman, PhD, President & CEO

The Leadership Development Group 973.722.4480 tduberman@tldgroupinc.com www.tldgroupinc.com

Tracy Duberman, PhD is the founder of The Leadership Development Group (TLD Group) Inc., and co-author with Bob Sachs, PhD of From Competition to Collaboration: How Leaders Cultivate Partnerships to Deliver Value and Transform Health. Tracy has been recognized as an expert on leadership across various sectors, and speaks on ecosystem leadership, innovation in talent development, and effective succession planning.

About Us The Leadership Development Group is a global talent development consulting firm for leaders, teams, and organizations. Our solutions include executive, leadership assessment and coaching, organizational development consulting, and group leadership academies designed to engage and empower leaders to take on challenges and position their organizations for success. TLD Group’s worldwide faculty of over 400 organizational development practitioners, coaches, academicians, and consultants with deep expertise in leadership development offer targeted insights and deliver highly impactful results.

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Join us for an informative day where we will delve into critical issues facing human resources, including:  Competitive Advantage: Recruitment and Selection – Review all the legal aspects of the hiring process, from posting the position to making the job offer and everything in between.  Winning the FMLA Race – Learn essential best practices related to administering the Family Medical Leave Act in your workplace.  New Challenges for Employee Engagement and Retention – Join a panel discussion about effective strategies for engaging and retaining employees in a post-pandemic environment.  Collecting Medals: Case Studies – An interactive discussion of recent employment law cases and the application of relevant concepts and HR strategies.  Lighting the Torch: A Legal Update – Explore recent changes in employment law and regulations at both the Federal and State levels. Will include an interactive game to test your understanding. Registration Fee: (Lunch is included)

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One Year In:

U

Undoubtedly, the past year presented employers with unprecedented challenges. Employee safety, mass shut downs, remote work, return to work protocols, and basic business survival have been top of mind for employers since the COVID-19 pandemic hit with full force in March 2020.

In the last year, more than 30 million Americans have become unemployed and eligible for unemployment. According to the Department of Labor (DOL), in the last year, more than $144 billion in unemployment benefits have been provided to American workers in need. The average duration of unemployment of an American employee during the pandemic is 15.55 weeks. Despite this statistic, many jobs have been permanently lost due to the pandemic. According to the monthly DOL jobs report, more than 4 million people have been unemployed for six months or more. Those who are long-term unemployed account for 41 percent of all currently unemployed people in the United States. This is a level of long-term unemployment not seen since the height of the Great Recession. Low-income workers, people of color, and women have been disproportionately impacted by the pandemic job losses. Since the peak on the pandemic, the unemployment rate has slowed but not all sectors of the economy have recovered equally. It is estimated that as many as 10 million jobs may be permanently lost. It is also no surprise that the leading sector of job loss is in the leisure and hospitality industry. Other hard hit sectors of the economy include mining and oil extraction, travel and transportation, construction, the motion picture and music industry, personal services, manufacturing, and self-employed jobs. The survival of many businesses during the pandemic hinged on the programs and tax incentives provided by the federal government. The Paycheck Protection Program is credited for providing a lifeline to over 5 million companies. The most recent reports from the Small Business Administration indicate the agency has processed more than 1.1 million loan forgiveness applications totaling $100 billion, with millions of additional applications for forgiveness pending. The impact of the pandemic has affected employers in dramatically different ways, not only based on industry, but also due to the area of the country in which the business operated. State differences in closure orders have had a vastly different impact on workforces. One key factor in workforce impact has been school closures. The Bureau of Labor Statistics estimated in 69.9 percent of married families with children, both parents worked outside of the home. In total, 72.3 percent of women with children work outside of the home. The closure of schools and the use of virtual learning has drastically impacted working parents, particularly women who typically bear the weight of childcare. 42

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The Pandemic’s Impact on Employers and Their “New Normal” By ASHLEY CUTTINO

The Vaccines Have Arrived.

With the arrival of multiple vaccines, there is hope that the end of the pandemic is near. Many states are now lifting pandemic closure orders partially, and in some states completely. There is also momentum to vaccinate teachers and reopen schools across the country. The lifting of closure orders allows those areas of the country and industries that have not reopened to begin the re-opening process.

What’s Next: The “New Normal”

Reality tells us that life post-pandemic will not return to normal. Many lessons have been learned during the pandemic. Business have been forced to rethink and re-evaluate operations from top to bottom. How work is done has changed, in some ways, forever. The “new normal” provides an opportunity to apply the lessons learned to operational functions that, in turn, benefit the employer and employees in the future.

Return to Work: Safety is the Number One Priority.

An employer’s number one priority upon the return to work is providing a safe work environment for employees and other individuals who enter their premises. The Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) have provided clear guidelines for how to re-open safely. An employer’s first job is to develop a plan for re-opening that is compliant with the CDC and OSHA guidelines. It is critical for employers to continue to evaluate the guidelines as they continue to change and evolve with the pandemic. An essential piece of any safety plan is communication with the workforce. Ensuring management and employees know and understand the safety plan in place is essential for successful re-opening.

Remote Work: The Wave of the Future.

Post pandemic, many employers intend to allow employees to continue to work remotely on a full or part-time basis. If the employee lives in a jurisdiction that is different from the workplace, employers need to consider tax and other financial implications applicable to the remote worker. This includes the impact of a


business nexus with certain states, workers compensation insurance, and unemployment insurance. Employers should also develop a long-term strategy for remote work. When the pandemic hit, remote work was thrust upon businesses and workers around the country. Employers and employees have proven it can be done. Short-term remote work versus permanent remote work require different ways of thinking. If permanent remote work is allowed, the organization should evaluate aspects of long-term remote work such as data privacy, technology used to monitor work efficiency, work product, work hours, development of a plan for the retention of work culture, and training management on how to evaluate and manage remote workers.

Legal Challenges are Coming at HR Professionals from Every Direction

Job Evolution.

During the pandemic, many employers eliminated positions and consolidated job responsibilities. Employers must now again evaluate if the newly created roles and responsibilities will remain or return to pre-pandemic levels. Employers should use this opportunity to review worker classification to ensure compliance comply with wage and hour rules related to an employee’s exempt versus nonexempt status.

Impact on Diversity & Inclusion and Job Candidate Pools.

In companies where remote work continues, one added benefit is the ability to increase job candidate pools to include individuals living further away from the physical location of the company. A more diverse candidate pool can result in an increase in diverse hires leading to more diverse and inclusive workforce, a key goal of many companies today.

The Future Cost of the Pandemic.

The ultimate costs to employers resulting from the pandemic is still unknown. For one, litigation against employers related to COVID-19 is increasing. Resolving the wave of employment based COVID-19 litigation will have a direct cost to employers. Employers should be aware of the changes that may be required in unemployment in the future. Currently, 21 states have outstanding loans from the federal government to assist with unemployment payments. These loans total more than $51 billion. All state funds will have to evaluate what actions are required to restore unemployment fund balances after the pandemic. Like after the last recession, this may include increases in unemployment rates for employers, reduction of future benefits, or some combination thereof. As the country turns the corner on the pandemic, so do employers. The key to successful re-opening is to focus on employees. Employees are the greatest asset of any company. Retaining and re-employing individuals while ensuring safety and company culture will be a determining factor in which companies thrive in our new, post-pandemic normal versus those that do not ultimately survive the pandemic. Ashley Cuttino is the co-chair of the COVID-19 Litigation Practice Group and a shareholder with Ogletree Deakins, an international labor and employment law firm representing management. Contact Ashley by email at ashley.cuttino@ogletree.com.

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

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SHRM’s Johnny C. Taylor, Jr.

Named Professional Society CEO of the Year Johnny C. Taylor, Jr., SHRM-SCP, SHRM President and CEO, was named Professional Society CEO of the Year by CEO Update for his work towards fostering workplace innovation, securing a seat at the policy table for the HR professionals, creating more equitable workplaces, and elevating the HR profession. This year's Association Leadership Awards recognized Taylor, Jr.'s accomplishments including the Together Forward @Work initiative, a call to action for racial equity in the workplace, providing HR professionals with resources that enabled their organizations to effectively navigate the pandemic, and advancing federal policies that benefit the world of work, workers and the workplace. Being in the people business, Taylor, Jr. is a sought-after expert and voice of all things work, known for charting the way forward through both crisis and uncertainty. He connects ideas to the HR profession and is sparking conversations about the future of work. Under Taylor, Jr.'s leadership, SHRM has increased appreciation for the role that continues to experience transformative change and spurred innovative thinking. The members of SHRM are better equipped and prepared to face the most daunting challenges facing organizations. "If 2020 has taught us anything, it's the importance of leading with empathy and fostering workplace cultures where people can bring their most authentic selves to the office. When we have empathetic people managers, HR and workplaces, we have an opportunity to make an impact that will be felt in homes and communities—and around the world," said Taylor, Jr. "In a time of challenge and change, I'm honored to accept this award and will continuously strive to help build a better world of work that works for all." CEO Update, a leading publication for executives and association news, launched the Association Leadership Awards in 2014 to honor individuals who have demonstrated exceptional leadership skills throughout their career.

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How leaders can use emotional intelligence to connect with all employee types By HARVEY DEUTSCHENDORF

A lot of time, effort and resources have been spent on recent years by organizations in efforts to find ways to motivate employees in order to get them to increase their performance. From foosball to sambuca fountains to games rooms there is constantly something new that organizations are trying to get people to stay. The major problem with blanket perks and benefits is that when it comes to employees, one size doesn’t fit all. Every employee is different and what motivates and drives one may not work for another. There are also numerous personality tests that are done during staff retreats. Valuable information regarding staff can be obtained from these. Unfortunately, there is often no follow up and the information is forgotten shortly after the retreat. Whether someone is highly extroverted, introverted, likes to work alone or loves to be part of a team, leaders who take the time, interest and effort to get to know their employees are well positioned to get their best effort.

Here are some ways leaders can get to know their people at a deeper level: While personality tests are often carried out during retreats as fun, team building exercises, they can be beneficial if used to try and understand employees and leverage their individual styles. The major benefit is that they can be an opening for emotionally intelligent leaders to learn more about their people. The caveat is that the leader must make it perfectly clear that all styles are equal, welcome and will lead to a stronger team and organization. The person who hates to be micromanaged and enjoys working alone, has just as an important role as the extrovert who loves attention and wants to be surrounded by others. Leaders can follow up after the tests to see how their employees see these traits playing out in the workplace. It is also an opportunity for leaders to get to know their people on a deeper personal level. An area to explore would be their favorite parts of the job as well as the parts that they dread the most. To get their staff to be more open and build the trust that is needed for their staff to share, leaders need to model the behavior they are seeking. They can start by being honest, open and transparent about their own traits, likes, dislikes and how they best like to be approached. In my book, The Other Kind of Smart, www.theotherkindofsmart.com, there are examples of how leaders were able to build trust and sharing. It is crucial that leaders who are able to fully engage all types of staff learn how to become excellent listeners. The fifth of Stephen Covey’s Seven Habits of Highly Effective People is “Seek first to understand, then to be understood.” Most people listen to respond, rather than to hear what is really being said. Emotionally intelligent leaders continuously strive to listen to understand. Large numbers of staff and new members continuously being onboarded make it more difficult for leaders to learn about individual preferences and get to know their people at a deeper level. Leaders can use portions of staff meetings to share personal information. To do this they need to take the lead, take some risk and be open and vulnerable with their own sharing. Staff should never feel that they have to share more than they are willing to or comfortable with. In order to keep track of preferences of a 46

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lot of staff, especially ones that have not been there long, leaders can record relevant information that they can use to make to help them slot people into teams and assign work. As work needs to be done, deadlines met and new projects are taken on, it will not always be possible to put people in areas that they prefer and will take advantage of their skill sets. For example, a particular employee is very independent and productive, but prefers to work alone. The organization takes on a new project that needs all hands-on board working closely as a team. Knowing that this person works better and prefers to work alone the leader approaches him/her and first acknowledges his/ her preference but is told that the project needs his input during this time. By first acknowledging the person’s preference, the chances of getting their buy in to the project go up substantially. Giving recognition is another area that it becomes important to know someone’s preference. The loud extrovert who loves attention may welcome public recognition while the introvert may be very uncomfortable and prefer to be recognized privately. This is an area that an emotionally intelligent leader needs to get right as recognition given in the wrong manner could defeat the purpose and turn the receiver off. If the leader isn’t sure they could check with coworkers, past employers or anyone that knows the person well. Everyone loves to be recognized and appreciated for who they are and the unique attributes and skills they bring to work. Leaders who make the effort to go the extra mile to do this will be rewarded with increased loyalty, less absenteeism and a happier, more productive workplace.

Harvey Deutschendorf is an emotional intelligence

expert, internationally published author and speaker. To take the EI Quiz go to theotherkindofsmart.com. His book THE OTHER KIND OF SMART, Simple Ways to Boost Your Emotional Intelligence for Greater Personal Effectiveness and Success has been published in 4 languages. Harvey writes for FAST COMPANY and has a monthly column with HRPROFESSIONALS MAGAZINE. You can follow him on Twitter @theeiguy.


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A $10,000 scholarship opportunity. You’re ready to go further. WGU Tennessee is ready to help you get there. WGU offers more than 60 respected bachelor's and master's degree programs, 100% online. • ACBSP-accredited degree programs • HR Program fully aligned with SHRM curriculum • Flat-rate tuition between $6,450 and $7,600 per year For eligibility visit tennessee.wgu.edu/tennk

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Profile for Cynthia Thompson

April 2021 Issue of HR Professionals Magazine  

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