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Volume 4 : Issue 4 TM

2014 AR SHRM Conference -HR in the Land of OZ

Resistance to Change and What to Say

SHRM Talent Management Conference & Exposition in Nashville April 28-30


Burns, SPHR

NLRB Revives

Director of AR SHRM State Council

“Quickie Election” Rules

Convergence – Risk and Human Resources


Health Care Reform





What you don’t hear can still hurt you. The things employees say when you’re not around can cause legal troubles for you. Fisher & Phillips provides practical solutions to workplace legal problems. This includes helping you find and fix these kinds of employee issues before they make their way from the water cooler to the courthouse.

1715 Aaron Brenner Drive • Suite 312 • Memphis, TN 38120 • 901.526.0431






Bringing Human Resources & Management Expertise to You

47.9% of employees leave due to organizational change Editor

Cynthia Y. Thompson, MBA, SPHR Publisher

The Thompson HR Firm HR Consulting and Employee Development Art Direction

Park Avenue Design Contributing Writers

Harvey Deutschendorf Latosha Dexter Judith Devries Thomas Dunlap Tannera Gibson Matt Ginn Michael Gnatek Murray L. Harber Kristi H. Johnson Jeff Kortes Geoffrey Lindley Arnold E. Perl Brandon D. Pettes Shane Pike Jennifer Riley Ari Sauer Cammie Scott Christy Showalter Frank Strenk Anthony Venegas Jeff Weintraub Board of Advisors

Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR John E. Megley III, PhD Terri Murphy Susan Nieman Robert Pipkin Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to 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. ©2011 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.

Features 4 note from the editor


5 Profile: Michele Burns 6 2014 AR SHRM Conference Schedule

HTTP:// /Exclusives

7 Meet the AR SHRM State Council 8 Arkansas Legislative Update 9 HR in the Land of OZ - Keynote Speakers 14 Resistance to Change and What to Say 16 Employers Investing in Employees’ Health and Healthcare

18 Law Degree Not Required, But Legal Knowledge Necessary in Today’s HR World 22 Convergence – Risk and Human Resources 24 Introducing a Better Way to Track Employee Absences 28 NLRB Hits Reset Button: Revives “Quickie Election” Rules

Departments 11 EEOC: Religious Garb and Grooming Practices in the Workplace 20 Health Care Reform: What to Expect in 2015 26 Retaliation: What Constitutes Protected Activity? 30 NLRB: Not-so-nice Guys Don’t Always Finish Last 32 EQ: Self-Actualization 33 Public Employee Spotlight: A Facebook “Like” and Freedom of Speech 34 Retention: Research on Why Employees Leave 35 Relocation: Relocating Techies: The HR Dilemma 37 Immigration: What HR Managers Should Know About TN Visas for Canadians & Mexicans 38 Recruiting: Niche Job Sites Help Reach Highly Technical Prospects

Industry News 4 MS SHRM State Conference May 6-8 in Biloxi

Next Issue Highlights from the TPMA Annual Conference in Murfreesboro Highlights from the 2014 AR SHRM Conference – HR in the Land of OZ Highlights from the 2014 SHRM-Memphis Half Day Legal Seminar


a note from the Editor

Just a reminder about the SHRM Talent Management Conference & Exposition in Nashville at the Gaylord Opryland Hotel in Nashville on April 28-30! This conference is designed specifically for recruiters and talent management professionals and will give you the tools you need to move your human capital strategies to the next level. Keynote speakers include Marcus Buckingham, Cy Wakeman, and Margaret Heffernam, all best-selling authors. Visit our website, and click on the Leaderboard ad to register.

We are delighted to be the official media outlet for the 2014 AR SHRM Conference in Fort Smith. This year’s theme is “HR in the Land of OZ.” The Conference is at the beautiful Fort Smith Convention Center. You will find the Conference Schedule conveniently located on Page 6 of this issue. Other highlights from the Conference include our cover featuring Michele Burns, Director of the AR SHRM State Council. We couldn’t resist this photo of Michele in sequins, which reminds us of Dorothy’s ruby slippers! In addition to meeting Michele on Page 5, you can also meet more of the AR SHRM State Council members on page 7. Thomas Dunlap, Director of the AR SHRM State Legislative Affairs has provided a Spring 2014 Legislative Affairs Update on page 8. I am honored to be speaking at a Rise and Shine concurrent session on Thursday morning from 7:00 AM to 8:15 AM. Please set your alarm and join me in the Hot Springs/St. Louis Room for “When Monkeys Fly – Strategies to Reduce Your Compensation Expense.” You will earn 1.25 HRCI Strategic Business credit for this session. If you miss the Rise and Shine session, you can join me in the afternoon concurrent session from 2:15 PM to 3:30 PM in the same room. Employment Law is the focus of our April issue. We are bringing you the latest from the EEOC about “Religious Garb and Grooming in the Workplace” by Jeff Weintraub and Jennifer Riley, which I know you will enjoy. Latosha Dexter and Geoffrey Lindley provided a “Public Employer Spotlight” on First Amendment Rights and Social Media. We are also excited about two articles featuring NLRB hot topics. One of the feature articles by Arnold Perl and Brandon Pettes is the latest update on the NLRB reviving the “Quickie Election” rules. Tannera Gibson’s article, “Not-so-nice Guys Don’t Always Finish Last,” discusses Section 7 of the NLRA and a key NLRB opinion on civility (negative attitude) policies.

We look forward to seeing our MS SHRM friends at the 2014 MS SHRM Conference & Expo at the Beau Rivage in Biloxi on May 6-8. I hope you will join me for a pre-conference workshop on May 6 called “Unmask Your Super Power as a Strategic HR Leader in 2014.” There will be three sessions, Session I – Strategies to Increase Your Executive Presence as a Powerful HR Leader, Session II – Powerful Strategic Communication for HR Executives, and Session III – The Power of HR Metrics – Strategies for Aligning HR With Business Results. 3.00 HRCI Strategic Business Credits are pending for this special pre-conference workshop. Click on the slider on our website to register for the Conference. I hope you will also join us on March 25 at 2 PM for our monthly webinar sponsored by Data Facts. This month’s topic is “Strategic Performance Management – 360 Degree Feedback.” Let me know if you are not receiving our monthly webinar invitation, and we will be happy to add you to our subscriber list. Enjoy the Spring conferences!

Cynthia Y. Thompson | Editor

Sign up for our RSS News Feed to receive up to the minute HR Alerts on changing legislation affecting our workforce.


Michele burns on the cover


Michele Burns, SPHR Director of AR SHRM State Council

Michele Burns currently serves as the State Council Director for the Arkansas SHRM State Council. She is passionate about the field of Human Resources and has been actively involved in the field of Human Resources both as an HR professional and as a volunteer serving in various positions including ARSHRM Arkansas State Council Director Elect, State Council Chapter Advocate Director, Certification Chair, WAHRA (Western Arkansas Human Resource Association) President, President Elect, Treasurer, and Certification Chair.

Michele is certified by the Human Resources Certification Institute as a Senior Professional in Human Resources Management (SPHR). Additionally, she is certified by World at Work (formerly the American Compensation Association) as CCP (Certified Compensation Professional), CBP (Certified Benefits Professional), and GRP (Group Remuneration Professional). Michele holds a Masters Degree in Human Resource Development from Webster University.

Michele is employed as a Compensation Professional at the University of Arkansas where she is responsible for helping to create compensation solutions for the campus. Her responsibilities include compensation surveys, job analysis and turnover reports and other research studies. She provides advice, training, and support to the University community, as appropriate, on standard compensation issues including the extra compensation and concurrent employment process. She is a specialist in the areas of compensation and benefits. During her human resources career, which has spanned over twenty years, she has worked both as a generalist and as a Compensation and Benefits Specialist/Manager and as a Human Resource Manager for Lloyd Flanders Inc., Twin Rivers Foods, Superior Bank, Arvest Bank and Sparks Health System. Michele has taught courses with the John Brown University Advance Program in Fort Smith and with the Fort Smith campus of Webster University. She has instructed college level courses in Human Resources Management; Legal Issues, Introduction to Research, Introduction to Organizational Management, Principles of Management and Leadership, Organizational Communications; Integrative Strategies in Marketing and Written Communications. Michele is an articulate one-on-one communicator and group presenter, with an extensive background as a human resource generalist in both union and non-union settings. Previously, she has presented as a concurrent speaker at the 2001 and 2005 Arkansas Human Resources State Conference and Expo. ď Ž


2014 AR SHRM



Attendee Registration – Convention Center Registration Booth Concurrent Sessions

8:00 a.m. - 5:00 p.m.

8:15 a.m. -9:30 a.m.

Employee and Labor Relations “Same Tiger – Different Tail": Strategies for the New Affirmative Action Regulations Tim Orellano Memphis/Tulsa

Cultural Competence Twitter 101: Going Social in the Land of Oz Tara Mauk Arthur Hot Sprin gs/St. Louis

10:45 a.m. - 11:30 a.m.

Mega Session: Making Your Message Magical: 8 Steps to High-impact Communications - LaFern Batie Dallas/Little Rock Opening of the Exhibit Hall - Fort Smith Convention Center, Hall B/C

11:30 a.m. - 1:30 p.m.

“Hide Your Goat: Strategies to Stay Positive When Negativity Surrounds You" - Steve Gilliland

9:30 a.m. - 10:45 a.m.

Opening Keynote Session Fort Smith Convention Center, Hall A

Concurrent Sessions Employee and Labor Relations 1:45 p.m. - 3:00 p.m.

Developing an ADR Program for Your Company to Minimize Litigation Scotty Shivel y Memphis/T ul sa

3:00 p.m. - 4:00 p.m. Employee and Labor Relations 4:00 p.m. - 5:15 p.m.

Developing an ADR Program for Your Company to Minimize Litigation Scotty Shivel y Memphis/T ul sa

5:15 p.m. - 6:30 p.m. 6:30 p.m. - 8:00 p.m. 8:00 p.m. - 11:00 p.m.

Compensation and Benefits Workfo rce Planning and Employment Follow the Yellow Brick Road or What's Behind the Curtain? Find and Use Market Pay Studies More Inter-generational Knowledge Capture Effectivel y and Transfer B l air Johanson Judith T avano L ittl e R ock Dal l as Exhibit Hall - Fort Smith Convention Center, Hall B/C Concurrent Sessions Strategic Business Management Compensation and Benefits Establishing Retirement Plan Drive Business Success with Workplace Governance: It's as Easy as Following the Flexibility Yellow Brick Road T odd Hughes Cassidy Neal -Solis L ittl e R ock Dal l as Kansas Reception in the Exhibit Hall - Fort Smith Convention Center, Hall B/C Dinner on Your Own Tweet-up Late Night Reception with DJ at Holiday Inn Hotel

Employee and Labor Relations Do They Really Have a Brain? Social Media and Anti-Social Behavior Anthony Byergo Hot S prings/St. Louis

Employee and Labor Relations Do They Really Have a Brain? Social Media and Anti-Social Behavior Anthony Byergo Hot S prings/St. Louis

ARSHRM14 - THURSDAY, April 10, 2014 Attendee Registration – Convention Center Registration Booth Rise & Shine Concurrent Sessions

8:00 a.m. - 11 a.m.

7:00 a.m. - 8:15a.m.

Strategic Business Management Drive Business Success with Workplace Flexibility Cassidy Neal -Solis Memphis/Tulsa

7:45 a.m. - 8:30 a.m.

8:30 a.m. - 9:45 a.m.

Workforce Plannin g & Emplo yment A Scarecrow, a Tin Man, & a Cowardly Lion walk into an HR department. Could one of them reall y be a Fl ying Monkey? S heil a Moss Memphis/T ul sa

9:45 a.m. - 10:45 a.m. Workforce Plannin g & Emplo yment 10:45 a.m. - 12 Noon

Strategic Business Mana gement When Monkeys Fly-Strategies to Reduce Your Compensation Expense Cynthia Thompson Hot Sprin gs/St. Louis Continental Breakfast - Exhibit Hall - Fort Smith Convention Center, Hall B/C Concurrent Sessions Human Resource Development Cultural Competence Preparing your Leadership for the Future

Mastering Yourself to Overcome The Wizard of Oz

S cott K iefer Jim Corter L ittl e R ock Dal l as Exhibit Hall - Fort Smith Convention Center, Hall B/C Concurrent Sessions Human Resource Development Cultural Competence

Compensation and Benefits Establishing Retirement Plan Governance: It's as Easy as Following the Yellow Brick Road T odd Hughes Hot S prings/S t. L ouis

Compensation and Benefits

A Scarecrow, a Tin Man, & a Cowardly Lion walk into an HR department. Could one of them really be a Flying Monkey?

Preparing your Leadership for the Future

Mastering Yourself to Overcome The Wizard of Oz

Follow the Yellow Brick Road or Find and Use Market Pay Studies More Effectively

S heil a Moss Memphis/T ul sa

S cott K iefer L ittl e R ock

Jim Corter Dal l as

B l air Johanson Hot S prings/St. Louis

Luncheon Keynote & Chapter President Recognition "What Eagles Dare – The Critical Difference Between Managing and Leading" - Margaret Morford

12:00 Noon - 1:45 p.m.

Fort Smith Convention Center , Hall A

1:45 p.m. - 2:15 p.m.

2:15 p.m. - 3:30 p.m.

3:45 p.m. - 5:00 p.m.

5:00 p.m. - 6:00 p.m. 6:00 p.m. - 9:00 p.m.

Closing of the Exhibit Hall - Fort Smith Convention Center, Hall B/C Concurrent Sessions Employee and Labor Relations Human Resource Development Workforce Planning and Employment Strategic Business Mana gement What's Behind the Curtain? When Monkeys Fly-Strategies to Reduce Avoiding the Wicked Witch of the West: ID Theft in the Workplace Inter-generational Knowledge Capture Your Compensation Expense Ask-an-Attorney Panel and Transfer Craig Love Labor Panel Judith T avano Cynthia Thompson Memphis/T ul sa L ittl e R ock Dal l as Hot S prings/S t. L ouis Concurrent Sessions E mpl oyee and L abor R el ations E mpl oyee and L abor R el ations Compensation and B enef its The Form I-9 ……… Avoiding the Wicked Witch of the West: Health Care Reform in the Land of Oz “I didn’t know that ….” Ask-an-Attorne y Panel L abor P anel Dave B asham Cammie S cott Memphis/T ul sa L ittl e R ock Dal l as Hot S prings/S t. L ouis Lollipop Guild Reception - Fort Smith Convention Center Rotunda Dinner, Arkansas SHRM Awards Ceremony & Entertainment, Becky Bee - Fort Smith Convention Center, Hall A

ARSHRM14 - FRIDAY, April 11 2014 Concurrent Sessions

8:30 a.m. - 9:45 a.m. Memphis/T ul sa 9:45 a.m. - 12 Noon

Human Resource Development ID Theft in the Workplace Craig L ove L ittl e R ock

Employee and Labor Relations E-Verify: Form I-9 ’s Companion Dave B asham Dal l as

Compensation and Benefits Health Care Reform in the Land of Oz Cammie S cott Hot S prings/S t. L ouis

Brunch Closing Keynote & Intro to 2015 "Influencing People You Have No Authority Over" - Garrison Wynn Fort Smith Convention Center, Hall A

Sessions highlighted in Green are Strategic Business Management Approved by HRCI


as of 3/14/2014


ARSHRM State Council State Director Michele Burns, SPHR, CCP, CBP, GRP

State Director – Elect Donna Merriweather, SPHR

Chapter Advocate Director Cathleen Hoffman, SPHR

Secretary/Treasurer Jean Madden

Governmental Affairs Director Steve Schulte, SPHR

Professional Development Director Stephanie Amerson, PHR

Core Leadership Director Holley Little

Communications and Award Director, Social Media Director Tara Mauk Arthur, PHR

At-Large Director Cassidy Boyd, PHR

General Legal Counsel Wayne Young

2014 ARSHRM State Conference Co-Chair Eric Garvin

2014 ARSHRM State Conference Co-Chair Jim A. Harris, Jr., PHR

State Legislative Affairs Director Thomas Dunlap, PHR

Federal Legislative Affairs Director Susan King Meadors, PHR




Legislative Affairs Update –Spring 2014 By Thomas Dunlap, PHR

As statewide HR professionals converge on Ft. Smith for the annual ARSHRM State Conference, there continues to be a need to monitor the legislative landscape for potential changes that impact the profession. Fortunately, the State Legislature will be idle, having just completed their limited fiscal session in March. Unfortunately, the U.S. Congress has pretty well moved from governing into full time campaigning, and the bare knuckle match to see who will control the U.S. Senate in 2015 is well underway. If you’re not convinced of that, just watch a little evening television over the next few days. The Arkansas General Assembly convened in February for the purpose of considering annual budget bills, which generally doesn’t present a risk to HR interests. In order for non-budget legislation to be introduced, a resolution must be approved by a two-thirds majority in both chambers. The fiscal session is held during even number years, or what you might consider to be the offseason of the State Legislature. The overwhelming focus of this year’s Fiscal Session was the appropriation for the Medicaid expansion, what we now call the “Private Option”. The Affordable Care Act (A.C.A.) provides federal dollars to expand Medicaid to 138% of the federal poverty level, which would enroll just over 200,000 Arkansans. One of the big outcomes in the 2012 Supreme Court decision on the A.C.A. was that States could decide whether to go along with this Medicaid initiative. The 2013 Legislature narrowly authorized the expansion as long as the coverage was available through private companies, but now in 2014 they would also have to approve the funding to administer the expansion. This would require a two-thirds majority in both Chambers, and with a durable Republican majority in the Legislature, there were no guarantees it would pass. The appropriation cleared the Senate first, when Senator Jane English negotiated her swing vote around a new statewide workforce education and training initiative. The changes include additional money and resources for Workforce Services and two year colleges to directly target the skills gap for Arkansas specific job needs. While not much is known yet about this initiative, there will definitely be an HR interest in how this program is deployed statewide in 2015. Moving on to the House of Representatives, a series of votes failed to reach the two thirds requirement even after rifle shot amendments were made to appease a few holdouts. Finally, the appropriation passed the morning after the candidate filing deadline, when it became safe for members to hold their nose and vote without drawing a primary opponent later this year. It would be easy to dismiss the Medicaid expansion as a bystander issue to the HR profession, but that is simply not the case. First, there is the economic impact of uncompensated care on the health care system that drives up costs for group health plans, followed by workforce considerations for smaller and more rural health care providers who might not be able to make payroll without a healthy Medicaid program. But a more significant issue that didn’t receive much attention during the General Assembly’s appropriation debate is that employers are responsible for their employees who enter the Exchange and receive a subsidy for coverage. Employers will pay a penalty when that occurs (starting 2015), and the Medicaid expansion was designed to be a penalty free zone for employees below 8

138% of the federal poverty level. A failed expansion, private option or not, removes the safe harbor for employers and sends those uncovered individuals into the Exchange where a penalty could be assessed. That would mean a new tax on employers estimated to be as much as $27-40 million dollars statewide. ( files/pdf/MedicaidChoices_TaxSurprises.pdf ) Other issues brewing for the Spring 2015 General session include the new Social Media law passed last spring, or Act 1480. ARSHRM recently met with the Arkansas Department of Labor and the original bill sponsor, Rep. Nate Steel, to advocate technical corrections to the Act that will maintain the password protection for the employee or prospect, but allow everyone to be friends again. ARSHRM is also monitoring a ballot initiative to raise the minimum wage in Arkansas to $8.50 by 2017. Supporters must collect over 60,000 signatures by July for this to appear on the statewide ballot in November. Zooming out to the Federal level, most of the HR related action will take place in the regulatory arena. Congress appears to be irrevocably broken in 2014, but we can expect a few gotcha votes to occur that opponents can use for campaign commercials. Much of that activity will be for stagecraft, and not have long term HR implications. Instead of dealing with a distracted Congress, the White House advances their agenda through the Cabinet level agencies. We saw a huge HR issue erupt on March 13th from the Department of Labor, where FLSA regulations may be adjusted to require overtime pay for several million employees currently under the executive or professional exemption. This would involve raising the salary test well above the current amount of $455 per week, and it is unclear yet what the new test will be, and whether this will come from a proposed rule or by Executive Order. Fortunately for attendees, more developments to these issues and a few answers to unresolved questions will be available at the April ARSHRM Conference. HR professionals who stay informed of public policy initiatives and can apply them to their organization’s business strategy become more valuable every day. See you in Fort Smith!

Thomas Dunlap, PHR, Director AR SHRM State Legislative Affairs

HR IN THE LAND OF OZ KEYNOTES Hide Your Goat —Steve Gilliland Goat— Every day, you and your organization are being robbed of the opportunity to perform at peak performance. Who is the thief? Negativity! Not only do problem employees underperform, they make it difficult for everyone else to do their jobs effectively as well. In this eye-opening session, Steve Gilliland shares the secrets of not allowing people to get your goat.

What Eagles Dare – The Critical Difference Between Managing and Leading Leading— —Margaret Morford Are you worried about future talent shortages and turnover in your organization? Are you constantly concerned about retention and productivity? As the labor pool shrinks, employees will examine more carefully the organization for which they are willing to work and the people for whom they are willing to go the extra mile. More and more the type of management that exists within an organization will become the deciding factor for whether that organization will be able to retain its current employees and attract new ones. This presentation differentiates leadership skills from management characteristics and reveals the eight behaviors individuals must develop in order to become leaders in their own organization as well as create other leaders for that organization. This information will revolutionize your thinking about leadership and the way people need to be managed for the future.

Influencing People You Have No Authority Over Garrison Wynn A great idea rarely wins out on its own merit. Sound, well-structured logic regularly loses out to mediocre ideas from people who really know how to influence. This enlightening, research-based session delves into the human condition, revealing that the true key to influence is not intelligence or logic, but an understanding of what people really value. Through a collaborative toolkit, this program delivers the tips and strategies you need to make people see the value of your ideas so you're well positioned to gain agreement.

MEGA SESSION! Making Your Message Magical: 8 Steps to High-impact Communications—LaFern K. Batie, MBA, SPHR What must you do to make a positive impact and improve your effectiveness in your most difficult, uncomfortable and sometimes emotionally charged conversations? How do you approach situations such as: asking for opportunities, addressing dissatisfaction, navigating "no", responding to disrespectful behavior and asking for support? Based on proven business approaches, sound communications effectiveness techniques and applied positive psychology principles, this interactive experience challenges you to think and respond differently when conflict becomes an obstacle to serving your internal and external clients. This session helps business leaders and professionals gain techniques to promote ideas, foster teamwork and facilitate productive conversations for organizational success.


Owen Brennan’s family-owned restaurant serves original, unique New Orleans style recipes cajun, creole and French cuisine By Becky Baker-Crucifixio

Owen Brennan’s….it may not be located in New Orleans, but it is a heck of a lot closer for those of you who need a dose of that famous New Orleans food fix. Owen Brennan’s, a family owned and operated restaurant, has been a part of Memphis for over 24 years! That’s right. . . for over 24 years Owen Brennan’s has been serving unique New Orleans style recipes, many of which are original New Orleans - Cajun, Creole and French cuisine. Brennan’s has won many culinary awards including Memphis Magazine’s # 1 Best Sunday Brunch for the last 18 years straight. Memphis Magazine’s 2007 edition Restaurant Guide just awarded Brennan’s 4 awards including #1 Gold award for “Best Sunday Brunch; Silver Award

Memphis Magazine’s says, “Owen Brennan’s has dished out one of the most decadent Sunday Brunches in town.” “Mardi Gras may have Fat Tuesday; but thanks to Owen Brennan’s every Sunday is “Fat Sunday” around here.” The Lannie McMillan Jazz Trio plays its unique blend of jazz music every Sunday from 10 am to 2:30 pm Brunch. New Brunch seating times are from 9:30 am – 2:30 pm. Do not forget Mardi Gras is Tuesday, March 4th. The party starts at 4 pm til ? We will have Hurricane Drinks for $5 and 3 wines by the glass for $6. Come early to get the best seat. Jazz music from 6-9 pm, beads and more beads.

$6 by the glass and $5 Hurricanes served in the cocktail area only from 4:30 to 6:30 pm. Come to the place to see and be seen. Unique food and French Quarter ambiance can be found at Owen Brennan’s. Step Out of Memphis and Into New Orleans. . .enjoy Oysters Bienville, Muffuletta Cakes, Turtle Soup, Crawfish Etoufee, Shrimp & Grits, Pasta Jambalaya, Creole “Hand Carved Steaks,” Bananas Foster, or Jackson Square Bread Pudding just to name a few. Come enjoy our new vegetarian and gluten free entrees. Plus there is a long list of New Orleans favorites from which to choose. Brennan’s is the best place to relax and enjoy a romantic dinner. With many unique menu items and a long list of wines, you can leave the stress behind as

Austin and Page Baker

Lannie McMillan with sax in hand

Awarded 2013 Best Bloody Mary in the state of TN in a contest sponsored by Absolut Vodka Owen Brennan’s fabulous Sunday brunch is a delicious tradition for locals and out-of-towners

for “Best Bloody Mary’s; #1 Gold award for the “Best Mimosas; and a Silver award for the “Most Happening Happy Hour.” Now that is impressive….4 awards by Memphis Magazine Reader’s Poll. Other awards include Best Power Lunch and “Most Profitable Business Lunch. Brennan’s has also won awards for “Best Patio,” “Best Seafood,” “Best Place for a Rehearsal Dinner” and “Best Ambience & Atmosphere.” Owen Brennan’s won #1 Best Bloody Mary in the entire State of Tennessee for 2013 in a contest sponsored by Absolut vodka.


Jim Baker, owner of Owen Brennan’s enjoys one of his numerous wine selections

Bridal luncheons, rehearsal dinners, business meetings, birthdays, anniversaries, graduations, even engagements. . . Owen Brennan’s is the perfect place to celebrate. Or Owen Brennan’s can bring the party to you with their complete catering service.

you “Step Out of Memphis and Into New Orleans.”

And we only get better with age. . . Brennan’s has again become the destination spot once again for its widely known and famous “Wednesday cocktail hour.” During the month of March we are offering 3 wines for

Visit to find out what Brennan’s is all about. Laissez Les Bonnes Temps Roulez! (LES BONS TEMPS ROULE) (which means “Let the Good Times Roll”)

You don’t have to go all the way to New Orleans for all that great food and fun . . . Owen Brennan’s is located right here in Memphis at 6150 Poplar Avenue “Poplar & Ridgeway” next to Oak Hall in the Regalia shopping center.

Grooming Practices Religious Garb and in the Workplace: FAQs by the EEOC By Jeff Weintraub and Jennifer Riley

The number of religious-discrimination charges filed with the Equal Employment Opportunity Commission (“EEOC”) continues to rise, with over 3,700 being filed in 2013 – more than twice the number filed 15 years ago. The EEOC recently issued guidance on religious garb and grooming practices in the workplace, stating, “In most instances, employers are required by federal law to make exceptions to their usual rules.” Issued on March 6, 2014, the new guidance answers questions about legal responsibilities of employers under federal employmentdiscrimination law as it pertains to the religious dress and grooming of employees; an accompanying fact sheet provides basic information about how federal law applies to religious dress and grooming practices.

What is the law that relates to religious dress and grooming in the workplace? Title VII of the Civil Right Act of 1964 prohibits employers with at least 15 employees from discriminating, harassing, or retaliating in employment based on religion. Employers are prohibited from treating employees differently in recruitment, hiring, terminating, promoting, training, or assigning job duties on the basis of religious practices or beliefs. Certain exceptions exist when the employer is a religious organization—for example, religious employers are permitted to give preference to members of their own religion. Title VII also prohibits workplace harassment or retaliation for requesting accommodations in light of religious practices or for participating in or filing discrimination complaints. Additionally, secular employers may not segregate employees based on religion. Further, Title VII extends these same protections to those employees who have no religious beliefs. Title VII defines religion very broadly and protects all aspects of religious observance, practice, and belief. It does not limit religion to those “traditional” organized religions such as Christianity, Judaism, or Islam, but may also include religious beliefs that are not part of a formal church or sect. Beliefs may be “religious” under Title VII even if they are not followed by all others in the same sect, denomination, or congregation. The religious practices and beliefs need not be based on theistic beliefs in order to be protected; however the belief must be “sincerely held.”

What sorts of actions are prohibited by employers when based on religion? Secular employers cannot take any action based on religiously discriminatory preferences, whether they are real or perceived, be they those of co-workers, clients, employers, or customers. The EEOC states that, even if an employer is losing business because of the opinions and preferences of its customers, it can be unlawful religious discrimination for an employer to take adverse action based on customer preference. For example, a manager cannot lawfully terminate an employee because that employee wears a turban as part of his religion and as a result the employer loses some customers who do not approve of such beliefs.

Similarly, a non-religious employer cannot limit, segregate, or classify employees based on religion. Even if the employer fears that customers may have a biased response to a particular religious garb or grooming, the employer may not assign employees to non-customer-contact positions because of customer preference. For example, the employer may not reassign an employee from a front-counter position to a warehouse position simply because the employer fears the customer’s reaction to the employee’s religiously mandated headscarf. Additionally, employers may not automatically refuse to accommodate an applicant's religious garb or grooming practice even if garb or practice would violate the employer's appearance or dress policy; rather, Title VII requires the employer, once aware that a religious accommodation is needed to address an employee’s sincerely held religious belief, to make an exception to allow the religious garb or practice, unless the exception would be an undue hardship on the employer. Employers also are prohibited from retaliating against employees who have requested religious accommodation or who have engaged in other protected activities, such as filing a charge under Title VII.


Title VII requires an employer to make reasonable accommodations for an employee's religious beliefs or practices, unless to do so would constitute an undue hardship on the employer's operation of its business.

An employer must not permit harassment based on religion to occur in the workplace. Religious harassment occurs when an employee is subjected to unwelcome statements or conduct based on religion, where the conduct is so frequent or severe that it creates a hostile or offensive work environment, or where the conduct leads to a tangible employment action, such as demotion or termination. Harassment may include offensive remarks or verbal or physical mistreatment that is motivated by the victim's religious beliefs or practices. An employer may be liable for harassment by co-workers and third parties where the employer knew or should have known about the harassment and failed to take prompt and appropriate corrective action. An employer can be liable for harassment by its supervisor if the harassment results in a tangible employment action, such as the harassment victim being fired or demoted.

When and what accommodations must be made? Title VII requires an employer to make reasonable accommodations for an employee's religious beliefs or practices, unless to do so would constitute an undue hardship on the employer's operation of its business. The EEOC states that, in most instances, employers must make exceptions to their usual rules to permit applicants and employees to follow religious dress and grooming practices. Some examples of acceptable accommodations include allowing an employee to cover the religious attire or item at work, if such covering is permitted by the religious belief, or making an exception to a uniform policy. An employer may refuse to grant an accommodation so long as there is a legitimate and actual undue hardship to the employer’s business. Courts have described undue hardship, as it relates to religious accommodations, as a “more than de minimis” cost or burden on the operation of the employer’s business. This standard is lower than that which courts require under the Americans with Disabilities Act, and, thus, a religious accommodation might be found to pose an undue hardship for something as minimal as imposing more than ordinary administrative costs. An employer cannot simply assume there would be an undue hardship, but where the employee’s religious practice actually poses an undue hardship on the operation of the business, an employer may bar an employee's religious dress or grooming practice based on workplace safety, security, or health concerns. For example, some religions mandate facial hair, but some types of workplace respirators are less effective when there is a substantial beard. The EEOC provides a wealth of examples regarding levels of accommodation: if a restaurant employer has a policy, based on health concerns, that hair be worn “short and neat,” it would be a reasonable accommodation to allow an employee who wears his/her hair long for religious reasons to wear the hair pinned up or in a ponytail; where an employer has a policy requiring male employees to be clean-shaven in order to maintain a sterile working environment, an employer may allow an employee with facial hair as a religious observance to wear a face mask. In both of these examples, the safety and health goals still can be met without undue hardship by providing reasonable accommodations. Where an employer refuses an accommodation due to actual health or safety issues, it is necessary that evidence actually exist that would establish the safety or health concern. For example, if a company drafts a safety policy excluding any and all headgear, including religious head coverings, because these interfere with security 12

personnel identifying the employee, the employer runs the risk of failing to comply with Title VII. The employer should consider that some headgear does not obstruct identification of the individual. Further, temporary removal of the headgear for the sake of brief employee identification may also be considered as an accommodation. Dress-code requirements in place merely to maintain the company’s “image” or marketing strategy may be insufficient to demonstrate that making an exception would be an undue hardship.

What can employers do to play it safe from accusations of religious discrimination, harassment, and retaliation? Employers may be able to prevent employment actions that would otherwise violate Title VII by ensuring that management and staff are trained about religious discrimination, retaliation, and harassment. Management should be trained to not make employment decisions based on assumptions regarding an employee’s or applicant’s religion (of course, managers should refer such issues to the company’s HR professionals). The EEOC makes it clear that an employer’s failure to hire an applicant because of its perception that a particular garb or grooming practice is religious in nature, absent proof of undue hardship, will subject the employer to liability for failure to accommodate, even though the employer had no actual knowledge or explicit notice from the applicant that the garb or grooming was religious. Harassment in the workplace is best avoided by clear and effective employment policies that prohibit ethnic and religious slurs and related offensive conduct. Employees should be aware of harassment policies, and there should be methods in place for an employee to report harassment in the workplace without fear of retaliation. When determining what if any accommodations for religious garb or grooming should be made to a practice or policy, the employer should look at the purpose of the practice or policy, to determine whether the goals of the company still may be satisfied in other ways. This will help determine whether actual and legitimate safety or health concerns may be avoided or whether an undue hardship would result.

Jeff Weintraub Managing Partner, Fisher & Phillips, LLP

Jennifer Riley Paralegal, Fisher & Phillips, LLP

You Don’t Need Training Wheels. That’s What We’re For. We know HR can be tricky. That’s why CGWG offers employment law training programs specially designed for employers and HR professionals to help you avoid bumps in the road. Join the CGWG team for an all-new training program, “Same-Sex Marriage and Employment: What You Need to Know Now.” This program explores how recent rulings regarding same-sex marriage potentially impact the following HR-specific issues: Cafeteria Plans Health Insurance ERISA

COBRA HIPAA 401(k) Plans

Pension Plans FMLA Medicare and Social Security

DATE : Tuesday, May 20, 2014 8:30 a.m. - 10:00 a.m. LOCATION : CGWG Little Rock COST : $40.00 per attendee RSVP : To register, email or call 501-371-9999 Please visit to see other scheduled training programs.

CGWG is an HRCI Approved Provider.

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Calvin J. Colbert VP of Challenger, Gray & Christmas Business Issues in Your Organization that Need a Coach? Call Calvin Colbert, Vice President at 877-207-7035 or CalvinColbert@ChallengerGray.Com to learn more about Challenger Business and Executive Coaching.


By Judith Devries

Resistance to Change and What to Say

hat do you say to a colleague paralyzed by organizational change? What do you say when a teammate can’t move forward, is nostalgic about the past and hostile about the future? I figure we can all use this, so I’m sharing my answers with you.

The biggest mistake we make in this situation is to respond to hostility with hostility. Your teammate is being overly-emotional about change, even more reason for you to dial down the emotion in your reaction to them. Start with the right mindset, ask some great questions to figure out what’s going on and help your teammate reframe the situation. If necessary, give them some clear feedback and if all else fails, stay clear. Remember:  s with most delicate situations on teams, your default reaction should A be curiosity. Be curious, not judgmental. Negative reactions to change tend to come from fear and discomfort. Remember that. Try to identify the source of those emotions.


“I have noticed when the boss starts talking about our new roles, you provide examples of why they won’t work. How do you see this playing out?” “What are some of the scenarios you are thinking about when we talk about the integration of our new acquisition?” Your teammate is not making a rational argument against the change, they’re experiencing an emotional reaction and trying to justify with rational-sounding points.

Loss of control

If your teammate gives you clues their concern is a loss of control, help them refocus on what they can control.

“From your perspective, this feels like a loss of control, what are the things you can be in control of in the new world? Are there minor changes you could recommend to improve the structure?”

Loss of competence

If the underlying issue is your teammate’s fear that they will no longer be good at their job, help them think through their options.

“What do you think it will take to be successful in this new world? What past experiences can you draw on? What are some of your options for building your skills and experience in this area?”

When to switch to feedback


If you have been empathetic and tried to understand their concerns and it hasn’t created any change, you might need to help your teammate with some more direct feedback.

“When the boss is talking about the implementation of the new structure and you make comments about why it won’t work without offering solutions, you are seen as a naysayer and your valid points carry less weight. How can you present a more balanced view so your concerns are heard?”

If your teammate’s concerns are less about real loss of control or competence and more about the queasy feeling of low confidence, draw on past experience to reassure them.

Simply changing your own mindset and thinking about your teammate less as a “whiner” and more as someone having difficulty, will make your teammate feel more comfortable. If you ask great questions and listen for what’s at the heart of the problem, you will be able to help your teammate reframe the situation and to move forward. If those strategies don’t work, you owe it to your teammate to give him some direct but kind feedback about the impact of their behavior.

“This feels like a huge change right now. We’ve had other significant changes in the past you have maneuvered through. What helped you navigate the change then?”

If you’ve done those things and the person’s nostalgic view of the past endures—disengage. Don’t get sucked in. Now it’s the role of the team leader to make the right decisions for the future of the team. 

Loss of confidence

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After 113 years of trusted service, our firm has earned a reputation for strength and stability. Yet we’re also known for keeping pace with the rapidly changing trends, requirements and responsibilities that impact our HR clients on a day-to-day basis. Our comprehensive approach is just one of the many ways we raise the bar higher.

113 years of history & 67 attorneys & 2 locations & 33 practice areas & hundreds of jury trials & countless successful results for our clients | Attorneys At LAw (L to r) Lee Muldrow, neemah esmaeilpour, troy Price, Jane Kim, John Lile, John Davis, Michelle Kaemmerling, stuart Jackson, David Jones | not pictured: Delanna Padilla, regina young


Employers Investing in Employees’ Health and Healthcare By Murray L. Harber and Matt Ginn

When discussing your personal health and health care, what better word could be used to describe the care you receive other than “Quality?” The quality of your health and the health care you receive is an important factor to each individual’s quality of life. Employers have begun to recognize this, and are playing a major role in investing in their employees’ health and accessibility to effective health care. The health of employees is vital to a company’s success as it relates to productivity, presenteeism and overall quality of work. Employees spend a majority of their week at their respective place of employment, so it only makes sense for employers to invest in their well-being. A Mississippi company leading the charge in this area is Southern Farm Bureau Life Insurance Company (SFBLI) in Jackson. SFBLI has always provided competitive benefits for their employees; however, in 2007, they implemented concentrated efforts to invest in their employees’ health and the health of their families. A coordinated health and wellness program, an onsite health clinic, and a value based benefit design show proven ways that SFBLI is investing in employee health. Billy Sims, Vice President of Human Resources at SFBLI said: In my 30+ years working with HR/Benefits it has never been more critical to balance the quality of care and the value/cost of health insurance. Too often in the past we have strictly looked at the cost and rise in premiums, without balancing the wellness and long term health of our employees. By looking at a more holistic balancing of costs, quality and wellness we are doing things that will have a positive long term effect for our employees. These things have to be done the right way with a focus on changing the culture, knowing the things that make a difference (disease management, case management, good communication) and having a champion internally to keep the focus going forward, along with externally having the right TPA that is engaged in your goals and focus.

An Avenue for Quality Improvement Investing in employee health and health care is a decision each company has the ability to invest in. Until recently, employers have had a challenging time understanding and ensuring their role as a valuable player in the health care market. Employers want to protect their investment at any level, and their employees’ health is no different. Research shows us that a healthy employee is a happy employee, an at-work employee, a productive employee, and an employee who incurs fewer expenses in health care. According to Dr. Tommy Prewitt, Director of the Healthcare Delivery Institute (HDI) at HORNE LLP, a regional accounting and health care consulting firm, "Healthcare is rapidly moving to a system that emphasizes better quality at lower cost. It makes sense for employers to engage the work force through incentives to stay healthier." HDI’s Advanced Training Program is training providers and health professionals to improve quality in the health system by teaching how to identify key quality improvement areas and how to address them with effective solutions. Employers are beginning to drive employees to health care providers who get the best outcomes in managing health care. 16

Hospitalist and SFBLI’s Medical Director, Dr. Dave Duddleston, stated: Physicians and other medical providers have been slow to adopt outcome improvements for a variety of reasons: inadequate training, inadequate data and inadequate time. In addition, there have been few incentives for change of this nature. However, we are now in an age of great innovation in the delivery of medical care and there are opportunities to participate locally and meaningfully. Through data analysis including comprehensive claims assessment, medical leaders can re-engineer the medical visit and align the goals of the patient, the employer-payer and the carrier and aim for better outcomes. It may be possible, for instance, to identify a small pool of high risk plan members, and then tailor a program of medical care and corporate wellness resources to reduce or prevent expensive and painful medical encounters. Physicians are good learners and can adapt enthusiastically when the right tools are provided to them. Employers are customers of health care at the end of the day, and they should be treated as such. Treating health as a commodity is a trend in employer health and, with concentrated efforts, employers and employees can improve health, reduce the need for expensive health care services, and optimize their investment in the health care system.

A Solution For Mississippi Companies To help facilitate this notion of employers investing in their employees’ health and health care, The Mississippi Business Group on Health (MSBGH) is developing a powerful network of Mississippi businesses to create and share these very solutions. The MSBGH is an employer-led coalition in Mississippi that assists change in employer health and health care quality. The coalition’s aim is to offer learning opportunities that boost the level of knowledge of best practices and evidence-based strategies such as value-based insurance designs. They are also fostering change in making data more transparent and useable so health plan administrators, health care providers, and employers can make more informed decisions on communications and program offerings. In 2014, the MSGBH will offer four main meetings throughout the year where members will discuss a variety of topics including how to select and evaluate your consultants and providers of services and how to design a quality health plan and employer health management program. MSBGH will again partner with Mississippi College to offer the 5th Annual Health Care Reform Summit towards the end of the year. They will also hold “Think Tanks” around the state for members to discuss solutions to common employer and health system issues such as employee wellness, pharmacy benefits, data analysis, and onsite solutions to name a few. Employers can now be a more visible player in the health care arena and the MSBGH will be collaborating with others in the industry including medical providers, hospitals, health plans, and other associations to continue this development.

Murray L. Harber Executive Director Mississippi Business Group on Health

Matt Ginn Corporate Communication Program Development Coordinator

Conducting Lawful Investigations: An Interactive Program for Internal Investigators To defend against charges of harassment and discrimination, the EEOC opines that “...Whoever conducts the investigation should be well-trained in the skills that are required for interviewing witnesses and evaluating credibility...”.1 Further, employee lawsuits increasingly focus on the quality of the organization’s investigations, and many courts have made it clear that an effective, unbiased investigation is one of the best weapons against liability in employment litigation. This comprehensive workshop will provide the skills necessary to conduct effective internal investigations that produce objective results and withstand scrutiny in subsequent litigation. Using a comprehensive hands on approach, participants build “real life” skills by learning how to: • • • •

Take a complaint Develop an investigation plan Interview witnesses Reach a conclusion

Working through a case study culled from actual litigation, participants will practice all of these skills with the aid and guidance of expert attorney-facilitators.

Who Should Attend? In-house counsel, human resources professionals, and other professionals who deal with workplace investigations.

Cost $55 per attendee. A 10% discount will be given to multiple attendees from the same organization. 1

Equal Employment Opportunity Commission, “Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors”

Tuesday, April 29, 2014 Registration and Breakfast: 8:00 am – 8:30 am Program (Lunch Provided): 8:30 am – 2:00 pm Location: Marriott Memphis East 5795 Poplar Avenue Memphis, TN 38119 For more information on how to register please contact Kellie Nurko at CLE credit is pending approval. PHR/SPHR credit has been approved.

To maximize participation and ensure a dynamic experience, attendance will be limited to 50 participants. We encourage you to register early, as registration will be on a first-come, firstserved basis. • Littler Mendelson, P.C. 3725 Champion Hills Drive, Memphis, TN 38125 • 901.795.6695

Law Degree Not Required, But Legal Knowledge Necessary in Today’s HR World By Christy Showalter

“What do you mean you are not going to be using your law degree?” After years of law school and endless hours studying for the bar exam, my mother was, not surprisingly, disappointed that I was declining a position as an attorney with a national law firm to return to my pre-law school position as a manager of human resources. While she had handled HR responsibilities for more than 30 years, what she did not fully understand was that I was going to be using my law degree … albeit in an arguably less traditional way.

Never be afraid to ask questions and learn from others’ experiences. If a peer recently completed a government audit – maybe for OSHA, ERISA or immigration compliance – call and ask how the process worked and what policies you may need to change to be compliant. By being aware of the numerous employment regulations and learning from experience, whether your own or someone else’s, you can begin to mitigate employment-related risk for your organization.

As HR professionals, we are now bombarded with more than 50 categories of regulations that affect every aspect of the employment relationship. Amidst the sea of legal acronyms – from FMLA, ADAAA and NLRA to ERISA, COBRA and PPACA – everything in HR involves a potential legal issue including recruitment, compensation, benefits management, policy development and employee relations.

Prepare for the Worst

As the employment climate has grown more complex, it has fallen largely on HR to become the employment law experts – a significant change from the more task-oriented world of HR in which my mother worked. What excites me the most, however, is that we are uniquely situated to represent the interests of not only our employees, but also our organizations, helping develop a culture and strategy to recruit and retain the best employees while proactively managing risk to protect the organization from employmentrelated liability. So, do you now have to be an attorney to be successful in the field of HR? Absolutely not! It may, however, be helpful to think like an attorney, while still retaining the empathy and care for employees that likely drew you to this profession in the first place. To best protect your employees and your organization, you must stay educated, prepare for the worst and not be afraid to ask for help.

Stay Educated The number of employment-related statutes can be overwhelming, not to mention the additional layers of regulatory guidance, advisory opinions and court decisions. Often, however, it is not even the regulations of which we are aware that keep us awake at night; rather, it is the worry of learning of a new policy months after it has been passed or of the questions we did not know to ask. And, never fear – your employees are certainly being educated. Technology has ensured that employees have easy access to information regarding policies that impact their employment, including apps to track FLSA compliance as well as provide OSHA assistance. Detailed guidance regarding employers’ obligations under family and medical leave and healthcare reform is at their fingertips. How many of us have had an employee inform us that we are not following the letter of the law? Don’t you want to be the one developing proactive policies and training your employees? Short of going to law school, there are numerous opportunities for HR practitioners to stay educated. Don’t rely on just one single source of information – take advantage of all of the resources that are available: participate in local HR associations; network with other HR professionals; read trade journals and newsletters; subscribe to HR-related blogs; attend seminars conducted by local law firms; partner with business associates committed to keeping you educated; and get certified! 18

As you gain additional knowledge, you can really start thinking like a lawyer … by always preparing for the worst. While some may see this as cynicism, a key element of the risk-management process is to assume that every decision could lead to a lawsuit and to prepare accordingly. One thing that law school teaches you is to analyze an issue from every angle and to anticipate the impact, consequences and arguments from each perspective. Now, this does not mean that you let the fear of a lawsuit drive the decisionmaking process; you must always balance the needs of the organization with the goal of treating people fairly. It does, however, mean that you have evaluated the alternatives and risks of each issue and are prepared to defend your course of action before finalizing a decision. Attorneys often go through a mental checklist of all possible regulations that could come into play with a particular action. For example, if you are considering terminating benefits for an employee who is out of work due to a work-related injury, have you evaluated your obligations under not only workers’ compensation laws but also FMLA, ADA, COBRA, PPACA, contract law and your own policies? By making an effort to evaluate decisions from all angles – including your employee’s, your organization’s and even a judge’s or jury’s – you can save a significant amount of time and expense down the line.

Don’t Be Afraid to Ask for Help When you are feeling overwhelmed or do not know the next question to ask, seek help. Even the most experienced attorneys cannot specialize in every area of the law; they seek help through associations with others who have established competencies in a particular area. In a field such as human resources, where there are many diverse specialties, it is often necessary to get an attorney’s or consultant’s perspective on an issue to ensure that you have the information needed to develop an effective and proactive strategy. Partner with business associates who are competent and able to give you guidance when needed – or even when you didn’t know it was needed. So, while I am not engaged in the practice of law, the ever-changing legal environment of HR has certainly encouraged me to put my law degree to use. By staying educated, preparing for the worst, and not being afraid to ask for help, I still think like an attorney and enjoy helping organizations mitigate employment-related risks. Even my mother would be proud.

Christy Showalter, JD, MBA Senior Human Resource Consultant Regions Insurance, Inc.


FOR SUCCESSFUL BENEFITS MANAGEMENT Monitoring changes with today’s employee benefit laws can be overwhelming for even the most seasoned HR professionals. And, with more than 50 categories of regulations, nearly every aspect of the employer-employee relationship is impacted. Regions Insurance is able to assist you each step of the way in navigating today’s benefits rules, while helping you manage and protect your organization’s growth, profitability and people.


Tom Hayes Employee Benefits Practice Leader 479-684-5259

Katrina McKinney Sales & Marketing Coordinator 205-264-7177

Find Regions Insurance offices in these states: Alabama, Arkansas, Georgia, Indiana, Louisiana, Mississippi, South Carolina and Tennessee


Health Care Reform: 2015 Employer Shared

Cammie will present Health Care Reform in the Land of OZ on Thursday afternoon.

Responsibility Rules


By Cammie Scott

any HR professionals who work in the benefits arena have an added responsibility of keeping up with the ever changing rules and regulations of Healthcare Reform. This year, there have been 2 major updates that employers should be aware of: Final Rules for the Employer Shared Responsibility and the ability to keep current plans until 2016.

Health Care Reform, the Affordable Care Act (ACA), Patient Protection and Affordable Care Act (PPACA) or Obamacare, whatever you choose to call the law, requires that certain employers either offer employees health insurance or be subject to a penalty. This is referred to as the “Employer Shared Responsibility”, “Employer Mandate” or the “Pay or Play” rules. The rules were originally set to begin in 2014, but were delayed and are now set to begin in 2015 with some phase in provisions or transitional relief in 2015. Here is an overview taken from the IRS Q&A on the Employer Shared Responsibility rules that were issued in February 2014. For 2015, if an employer with at least 100 full-time employees (including full-time equivalents) does not offer “minimum essential” and “affordable” coverage – or offers coverage to fewer than 70% of its full-time employees (and their dependents) – the employer will owe an Employer Shared Responsibility fee IF one of their employees purchases a health plan through the exchanges and receives a federal tax credit or subsidy. 20

Reading, not to mention complying, with any government regulations can be tricky. First, for 2015, the fees apply only to employers with 100 or more full time equivalents (FTEs). To determine the number of FTEs a company has, they need to add the number of full time employees, those who work over 30 hours per week, and then add the number of hours worked by part time employees evaluated on a full time equivalent basis. Help can be found at the IRS webpage Second, the employer is subject to the fee if they no not offer minimum essential, affordable coverage to at least 70% of full time employees. • I n loose terms, minimum essential coverage means that the coverage will cover 60% of the anticipated medical expenses. This is an actuarial calculation. If you are fully insured, the carrier will do the calculations and make sure your plan is in compliance. If you are fully insured, you will need to work with your Broker, Consultant or TPA to make sure your plan is in compliance.

2014 AR SHRM

• T  o be deemed affordable, the employee’s cost of coverage cannot be greater than 9.5% of their box 1 W-2 earnings. It does not matter if they elect to cover dependents and the cost is greater than 9.5%. There are actually 3 different safe harbor methods of calculation.

For example, if you had 4 employees that qualified for subsidies during January, then you would calculate the penalty as follows:

• I n order to cover 70% of full time employees, you must begin by determining who is eligible for coverage. As of today, a full time, benefit eligible employee is 30 hours per week. A time and attendance tracking system is more important than ever so you can document who is and who is not eligible for coverage. In 2016 the number will increase to 95% of full time employees. The reduction to 70% is designed to allow employers who offer coverage to employees who work 30 -35 hours per week time to transition to the new definitions.

$3,000/12 months = $250/employee per month $250 X 4 employees who qualified for a subsidy = $1,000 penalty for January

Third, the Employer Shared Responsibility fee is equal to the number of full-time employees the employer employed for the month (minus 80) multiplied by 1/12 of $2,000, provided that at least one full-time employee receives a premium tax credit/subsidy for that month. It is conceivable that employers with very highly compensated employees may not owe a penalty as none of their employees may qualify for a subsidy. For most employers, this is not a risk they are willing to take.


To determine if and how much of a penalty you may owe for 2015, you must determine the following: Do you have over 100 Full Time Equivalent employees? In 2016, the provision is expanded to employers with 50-99 FTE employees. If you employed 100 or more full time equivalents on average during the preceding calendar year, then you are an applicable large employer for the current calendar year. You are not subject to the fee in 2015 if: a. You employed fewer than 100 full-time employees on average during the previous calendar year, or b. You employed more than 100 full time employees no more than 120 days during the previous calendar year due to a seasonal workforce.


Do you offer insurance that meets the “minimum essential coverage” rules? Minimum essential coverage is the minimum amount of health insurance coverage an applicable large employer must offer to avoid paying the maximum fee. Each employee must have the ability to enroll in the coverage through an eligible employer-sponsored plan which is: a. Any fully insured coverage offered in the small or large group market within a State including small business exchanges. b. Any self insured plan meeting the minimum actuarial values c. Coverage under a grandfathered health plan or d. A qualified government plan such as Medicare


Is the coverage “affordable”? An applicable large employer that offers minimum essential coverage to at least 70% of full-time employees may still be required to pay a penalty if the coverage is not “affordable” for one or more employees. An employer’s coverage is considered unaffordable for any full-time employees who, in a given month, enroll in a health plan offered through their state exchange and are eligible to receive federal assistance. Employees are only eligible for federal assistance, a subsidy, through the exchange if they are required to pay more than 9.5% of their W-2 income.

If one or more full-time employees receive a subsidy for the purchase of health insurance through an exchange in a given month, the employer must pay a monthly penalty based on the number of employees that receive assistance. The annual per employee penalty for not offering affordable coverage to employees is $3,000. To get the monthly amount, simply divide by 12 and multiply by the number of employees who receive a subsidy during the month. The penalty is capped at a maximum of $2,000 per full-time employee per year.


I f you do not offer coverage at all, the penalty is $2,000 per employee minus the first 30 employees. No, none of this is easy and none of it is standardized. The second major issue for 2014 is the bulletin issued by the Obama administration on March 5, 2014 that offers the state insurance commissioner the option to allow: • Small groups and individuals enrolled in coverage purchased between March 2010 and December 2013 (non-grandfathered coverage) to continue renewing that coverage through September 2016. • N  on-grandfathered employer groups with 51-100 eligible employees who would be defined as small groups effective January 1, 2016, and required to purchase coverage that meets ACA requirements to continue purchasing/renewing large group coverage through September 2016.

On March 6, 2014, the Arkansas Insurance Department issued Bulletin 6-2014 allowing for the adoption of these transitional provisions in Arkansas at the insurance carriers discretion. This means that each carrier can decide if they want to allow groups to keep their current coverage or require them to move to one of the metallic level plans. In 2013, many small employers changed their renewal dates to allow them to keep their current plans through the end of 2014. This will allow them an additional 2 years with those plans and for groups that did not change renewal dates they will now have the option of keeping their current plan or changing to the new ACA compliant plans. Each group should review their options at each renewal. This is a changing time in the benefits industry. This is not the time to turn a blind eye to what is going on and hope that everything will work itself out. This is the time for true professionals to step up and take the lead in guiding their organizations in developing new strategies for benefits that will position them for maximum impact and growth.

Cammie Scott, President CK Harp & Associates


The Convergence of Risk and Human Resources By Michal Gnatek and Frank Strenk, Lockton

For more information on Lockton, please contact Ashley Pace in Lockton’s Memphis office. 901 757 6902

From our work with clients, it is often apparent that despite working on the same management team, Risk Managers and HR/Employee Benefits professionals do not necessarily cross paths on a frequent basis. Exceptions to this broad generalization can include the handling of workers’ compensation claims, the occasional Business Travel Accident query, the dreaded New York State Disability Bond Notice and the annual call to get the Fidelity Bond (Crime) policy information to complete the IRS Form 5500 for the health and welfare plans. This internal bifurcation of disciplines is not restricted to the client either. Visit an insurance broker’s office and you may see the Employee Benefits team segregated from the Commercial Insurance and Management Liability groups. Depending on the agency, the Employee Benefits team could even be located on a different floor or in a separate building. The time has come to recognize the value in establishing a robust cross-disciplinary dialogue to address the convergence of risks to the enterprise which know no such departmental boundaries. This pivot from looking at the “work environment” as a loss trigger to “employee well-being” represents a major shift in how companies can reduce their workers’ compensation expenses.

Workers’ Compensation Perhaps the most immediate return on investment for Risk/HR convergence is workers’ compensation. The only three-word “buzz phrase” bandied about in insurance conversations without accompanying action as often as “Enterprise Risk Management” is “Integrated Disability Management.” We posit that as the employee or “human capital asset” becomes more vital to the health of the business, Risk Management and Human Resources need to be looking at medical/ disability plans and workers’ compensation programs not as annual renewals that must come in below trend or under budget, but as total employee care. Insurers and brokers are taking advantage of data-mining tools to create more robust analytics in an effort to better understand current loss portfolios and even to predict future claim trends. This quantum leap represents a paradigm shift in how companies should be looking at their claims data. In lieu of the traditional process of having regular claim file reviews drive safety or loss control efforts by retrospectively analyzing loss trends (e.g., slips, trips, and falls, or poor lifting techniques), forward-thinking underwriters and brokers are using “predictive modeling” methods to identify the human element (i.e., comorbid factors such as obesity, diabetes, hypertension) 22

component. This will not only reduce lost-time duration but also potentially prevent future claims by integrating risk control with an overall corporate wellness initiative. This pivot from looking at the “work environment” as a loss trigger to “employee well-being” represents a major shift in how companies can reduce their workers’ compensation expenses. Because corporate HR and Employee Benefits professionals have been using these tools as part of their own program performance analysis, Risk Managers would benefit from working more closely with Human Resources to gain deeper insight into the overall health of their workforce. In addition to collaborating on these cutting-edge claims and loss control tools, it would benefit Risk Managers to work more closely with HR and Benefits since much of the care and feeding for workers’ compensation claims rests with that team from first report of injury (although company nurses sometimes assume this role for larger or industrial companies) through return-to-work. These HR professionals are also the individuals responsible for coordinating disability benefits. The potential blurring of lines between workers’ compensation and short and long-term disability benefits has reopened the dialogue regarding the efficacy of integrated disability programs. “Risk Managers would benefit from working more closely with Human Resources to gain deeper insight into the overall health of their workforce.” “Once thought to be the exclusive domain of IT, cybersecurity has now rightfully evolved into an enterprisewide responsibility where Finance, IT, Legal, Risk, and Human Resources must work together.”

Cyber According to Verizon’s 2013 Data Breach Investigations Report, approximately 14 percent of the threat actors identified as responsible for cybersecurity attacks in 2012 were internal, meaning that they “. . . come from within the victim organization. Insiders are trusted and privileged. ” This represents a 10 point increase over 2011, where only 4 percent of incidents were carried out by insiders. While this may seem like an insignificant percentage compared with the outsider threat, Risk Managers should keep in mind that many breaches or privacy events perpetrated by outsiders actually occur at the hands of either unwitting or careless employees. When examining the potential cybersecurity threats and vulnerabilities facing their organizations, Risk Managers are increasingly aware of the significant roles that initial employee vetting and internal training play in mitigating not only the potential “bad actor” scenarios, but also the lack of appropriate cybersecurity hygiene practiced by employees, such as the use of thumb drives or forwarding sensitive corporate information to personal or home e-mail accounts. Once thought to be the exclusive domain of IT, cybersecurity has now rightfully evolved into an enterprisewide responsibility where Finance, IT, Legal, Risk, and Human Resources must work together. As such, Cyber Liability underwriters are increasingly interested in not only how sensitive or proprietary information is handled by employees, but how employees are acquired and trained on a regular basis. Human Resources can provide the needed window into Cyber and Privacy risk mitigation.

Employment Practices Liability A natural nexus for Risk and Human Resources may be found when looking at Employment Practices Liability (EPL). Employment-related claims such as wrongful termination, sexual harassment, and discrimination require a close working relationship amongst HR, Legal, and Risk. Without a strong and robust collaboration in these three disciplines, EPL claims can quickly escalate out of control.

made up of senior executives representing various critical functions. This includes Finance, HR, Legal, Risk Management, Operations, Compliance, Supply Chain, and others. The committee is charged with establishing a process for on-going risk management across the entire organization. Risks are identified, assessed, prioritized, and measured. Risk owners are identified, and mitigation strategies designed and implemented. The risk owners are held accountable, and a process of continuous evaluation and communication is employed. Ultimately, this enterprise approach to managing a company’s business risk becomes a part of the operational culture and is imbedded into the strategic planning process.

Conclusion The era of the siloed and matrixed organization may be going the way of the fax machine. We believe that the overall health of an enterprise’s risk management strategy is heavily dependent upon a foundation of cross-disciplinary collaboration between Human Resources and Risk Management. While we may be in the age of “The Internet of Things,” where information is king, the common thread to making data work for the benefit of the company is the employee. The care and feeding of those employees is paramount to ensuring the long-term vitality of any organization. About Lockton and the authors For more information on strengthening your employee benefits and P&C insurance programs, contact Ashley Pace in Lockton’s Memphis office. 901 757 6902 Michal Gnatek is a client executive and Frank Strenk is an enterprise risk management expert for Lockton. Lockton is the world’s largest privately held insurance broker.

Ashley Pace

Human Resources is often the first line of defense when discovering incidents that could give rise to EPL claims. Claims of hostile work environments or potential discrimination usually find their way to HR first. Inside counsel (if applicable) is typically then put on notice in the event that either an EEOC complaint or demand letter may be forthcoming. Legal would likely contact outside labor counsel for assistance. And finally, either HR or Legal may make that phone call to the Risk Manager to inquire about getting insurance to pay for whatever legal expenses, settlement, or judgment may ensue as a result. The expectation of Employment Practices Liability insurance working as intended is almost entirely predicated upon proactive and open communication throughout the claims process among all stakeholders. While the link between HR and Risk for Employment Practices Liability matters is mostly reactive in nature, it is vital that a strong rapport exist between the two departments so that EPL claims can be handled more smoothly and expeditiously.

Enterprise Risk Management (ERM) One way companies are breaking down these barriers and silos is through the implementation of cross-functional Enterprise Risk Management (ERM) processes. Many companies have formed formal ERM Committees

We’re the Resource in Human Resources Customized management training Compliance audits Policy and strategy analysis Litigation defense Immigration services Labor negotiation ALABAMA • FLORIDA • GEORGIA • LOUISIANA • MISSISSIPPI • TENNESSEE • TEXAS • WASHINGTON, D.C.

Risk Managers would benefit from working more closely with Human Resources to gain deeper insight into the overall health of their workforce. THIS IS AN ADVERTISEMENT. Ben Adams is Chairman and CEO of Baker Donelson and is located in our Memphis office, 165 Madison Avenue, Suite 2000, Memphis, TN 38103. Phone 901.526.2000. ©2014 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC


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Working Together in Mississippi Ogletree Deakins lawyers in Jackson, Mississippi work closely with Human Resource professionals, business executives, and inhouse counsel to anticipate, prevent and resolve legal issues in the workplace. Our experience and knowledge of our clients’ industries and legal challenges enable us to serve their interests effectively and efficiently.

We remain committed to providing our clients with an insider’s view of the workplace issues of the day. With more than 650 attorneys in more than 40 offices located in the United States and Europe, the firm combines local knowledge and strength with national resources.

Jackson office attorneys L-R: Timothy Lindsay, Robin Banck Taylor, Kristi Haskins Johnson, Bert Ehrhardt 100 Renaissance • 1022 Highland Colony Parkway, Suite 200 • Ridgeland, MS 39157 • 601.360.0995 LAW FIRM OF THE YEAR Litigation – Labor & Employment LAW FIRM OF THE YEAR Employment Law - Management

Retaliation : What Constitutes

Protected Activity?


By Kristi H. Johnson

etaliation continues to be a leading source of concern for employers across the country. For the fourth consecutive year, retaliation claims are the leading category of charges before the Equal Employment Opportunity Commission (EEOC). In 2013 alone, retaliation claims comprised 41.1% of all charges with 38,539 separate retaliation claims before the EEOC.

Too often it is the case that retaliation becomes the “tail that wags the dog.” An otherwise defensible claim which can be readily explained on the facts and welldefended under the law is run aground by an overly zealous manager who takes it upon himself to address the situation with a complaining employee. Even well-meaning actions taken during the pendency of an employee complaint can be made to look sinister in the course of a plaintiff’s description of retaliation. Retaliation provisions are contained in Title VII, the Age Discrimination in Employment Act, the Family and Medical Leave Act, the Americans with Disabilities Act, and the National Labor Relations Act, among others. Training and a careful eye toward the complaint process will provide you with the tools necessary to avoid these claims. Historically, retaliation has been viewed by the EEOC as some of the most serious misconduct by employers. The fundamental approach of most discrimination laws is for employees to enjoy unfettered access to remedial measures. Thus, an employee must be protected in his or her ability to engage in protected activity or opposition to an illegal employment practice. Employees, who threaten to file charges, complain pursuant to an employer’s internal reporting procedures, or oppose a supervisor’s order or practice they believe to be illegally discriminatory, usually are protected from retaliation. The chief question in many retaliation cases is whether an employee has engaged in “protected activity” giving rise to protection from retaliation. Title VII prohibits employers from retaliating against an employee because s/he has “opposed any practice made an unlawful employment practice by this [title]” (i.e., opposed discrimination) or “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this [title].” These are known as the “opposition” and “participation” clauses of Title VII. The distinction between the two clauses is important because the level of statutory protection can differ. 26

The “opposition” clause can provide broader protection than the “participation” clause by including conduct outside EEOC charges and court proceedings such as informal, internal discrimination complaints. Unlike the “participation” clause, protected “opposition” must be based on the employees’ reasonable, good-faith belief that they are opposing an unlawful employment practice. The EEOC Compliance Manual identifies examples of a broad range of activities that constitute “opposition”: (1) “[t]hreatening to file a charge or other formal complaint alleging discrimination”; (2) “[c] omplaining to anyone about alleged discrimination against oneself or others” such as a “complaint or protest about alleged employment discrimination to a manager, union official, co-worker, company EEO official, attorney, newspaper reporter, Congressperson, or anyone else”; (3) “[r]efusing to obey an order because of a reasonable belief that it is discriminatory” i.e., that “the order requires him or her to carry out unlawful employment discrimination” or the reasonable belief that “the order makes discrimination a term or condition of employment”; or (4) “[r]equesting reasonable [disability] accommodation or religious accommodation.” Despite the EEOC’s expansive view of what constitutes protected “opposition,” it remains an open issue whether employee gripes, grumblings, or instances of letting off steam to a lower level supervisor constitute protected opposition. For instance, generalized complaints about one’s pension or about staffing cut backs cannot a claim of retaliation for opposing age discrimination. The “participation” clause is construed broadly to apply when individuals file formal discrimination charges with the EEOC or other enforcement agencies, when they communicate allegations and evidence to these agencies, and when they assist or participate in agency investigations and court proceedings. The “participation” clause can provide broader protection than the “opposition” clause when courts hold that it protects individuals even when they have unreasonable beliefs about the merits of their charge or lawsuit or when their participation is in bad faith, malicious, or defamatory. The practical differences in employee protection arising from the two clauses are important to remember. Employees engaged in activities in “opposition” to an allegedly unlawful practice may be terminated if their complaint is not based on a good faith, reasonable belief that the employer’s activity was prohibited by statute and brought in a reasonable manner. This includes complaints of general workplace activity not related to Title VII discrimination or complaints which involve gratuitous disclosure of a company’s confidential information. This also includes complaints by employees who refuse to perform reasonably-assigned work. This may even include complaints where an employer has a good faith belief that comments made in the course of its internal investigation of a complaint were false and fabricated. Employees, who actively are “participating” in the administrative (e.g., EEOC) or judicial (e.g., court) process, however, generally may not be terminated even if their participation involves allegations made falsely or in bad faith or gratuitous disclosures of confidential company information.

Kristi H. Johnson, Attorney Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

provide union organizers with private contact information of all voters in violation of workers’ privacy rights. In a press release accompanying the announcement of the recent proposed rule change, Board Chairman Pearce said, “[u]nnecessary delay and inefficiencies hurt both employees and employers” and that the “proposals are intended to improve the process for all parties, in all cases.” The hearing on the proposed rules is set for April 10-11, 2014, in Washington, D.C.

NLRB Hits Reset Button: Revives“ Quickie Election”Rules By Arnold E. Perl and Brandon D. Pettes

On February 25, 2014, the National Labor Relations Board (“NLRB” or “the Board”) once again issued a Notice of Proposed Rulemaking to implement organized labor’s much sought after “quickie election” rule changes, which dramatically shorten the time allowed for holding an election following the date a union files a petition with the NLRB. The Board first proposed these rule changes in December 2011. The quickie election rule would compress the median time allotted for holding an election from 38 days to 10-21 days. In response to the publication of the rule, the Board received 65,958 written comments and heard from 66 individuals (including co-author Arnold Perl, representing the Tennessee Chamber of Commerce & Industry). Business groups vigorously opposed the new rule, which would make it much easier for unions to win elections by hindering employers’ ability to fully communicate with their employees before they vote. The NLRB’s proposed overhaul of its election procedures in 2011, which had been in place for years, was never implemented because it was struck down by a federal court in Washington, D.C. Significantly, the federal judge based his decision not on the rules’ merits, but on procedural grounds. Although three board members are required to constitute a quorum, only two members participated in adopting them. By failing to rule on the merits, the judge left the door open for the NLRB to try again.

A NEWLY-CONFIRMED BOARD REISSUED THE PROPOSED UNION ELECTION RULE CHANGES. The Board is operating today, for the first time since August 21, 2003, with a full complement of five Senate-confirmed members. The reissued proposed rule changes are protected from a similar procedural challenge since a full slate of five Board members participated in the process this time. The three Democratic members of the Board voted to proceed with the promulgation of the new rules, while the two Republicans dissented. Unlike the 2011 changes that were struck down, the new quickie election rule changes brought back elements that had been taken out of the earlier final rule, including the requirement that employers 28

Not surprisingly, the decision by the Board to resurrect and expand its previously issued controversial rules has met with harsh criticism. The House Committee on Education and the Workforce reacted immediately to this new development, holding a hearing on March 5, 2014, entitled “Culture of Union Favoritism: The Return of the NLRB’s Ambush Election Rule.” According to the official press release issued by the Committee, members discussed how a proposed rule by the NLRB would undermine the long-standing rights of not only employers, but employees as well. Committee Chairman John Kline (R-MN) asserted that this “ambush election rule” would “stifle employers’ free speech and cripple workers’ free choice.” Kline added that, in promulgating its proposed rule changes, the current Board seeks to “tear down” a fair election process “that provides workers time to consider the facts, hear from employers, consult with their close friends, family members and co-workers as they try to make a fully informed decision” in favor of an “ambush election scheme that is meant to empower union bosses by jamming workers and silencing employers.”

WHY THE PRESSING NEED TO CHANGE THE RULES NOW? The Board’s overhaul of its election procedures should be viewed in the context of the Employee Free Choice Act of 2009. In the early days of the Obama administration, the unions’ first priority was “card check” legislation. Under card check, organized labor would be allowed to take away the employees’ democratic right to vote and become their bargaining representative solely by collecting a majority of employees’ signatures on union authorization cards. When a Democratic controlled majority in the U.S. Senate refused to pass card check legislation, unions turned to the NLRB, seeking to implement the quickie election option by administrative fiat. The NLRB’s proposed changes come at a time when union elections are being conducted more efficiently than ever before in the Board’s history, and unions are winning some 65% of these elections. The business community has cited the

high union success rate in NLRB-administered elections as evidence that the current procedures are fair and not in need of revision. The Board has dismissed such arguments, deeming the high union success rate as “irrelevant to the question of whether its representation case procedures are fulfilling their statutory purpose as fully and efficiently as possible.” By reissuing its originally proposed quickie election rule changes, the Board seems determined to push through a major overhaul in its election procedures at the expense of employer free speech rights.

THE BOARD’S PROPOSED RULES ARE A TRAP FOR THE UNWARY EMPLOYER. Consider the advantage labor would have under the new quickie election rules. Legally, unions can conduct covert organizing efforts without any notice requirement to the employer. Once a union has gained maximum support, it would be allowed to call for a vote, secure an immediate election, and thereby run roughshod over employer rights. As expressed by the U.S. Chamber of Commerce regarding the 2011 rule changes, union election petitions “catch many if not most employers off guard and ill-prepared to immediately respond.” Since the proposed rules would make it far easier for organized labor to successfully organize employees, it is reasonable to expect the 65% union win rate under the current rules to escalate.

QUICKIE ELECTIONS SIMPLY DO NOT COMPORT WITH FUNDAMENTAL FAIRNESS. As discussed in the recent hearing of the Education and the Workforce Committee, in 1959 then Senator John F. Kennedy advocated for a 30-day period between the filing of a union petition and an election. It was his sincere belief that a waiting period is “an additional safeguard against rushing employees into an election where they are unfamiliar with the issues.” This critique is especially true when employees in many cases have been hearing solely from union organizers for weeks or months leading up to an election.

tional infringement upon free speech and due process rights. However, employers cannot be certain that the judicial outcome will be as favorable as before. Remember: the 2011 rules were struck down on procedural, not substantive grounds.

WHAT SHOULD EMPLOYERS DO? HOPE FOR THE BEST BUT PREPARE FOR THE WORST! Because the proposed rules have significant monetary and legal implications for employers, employers must prepare for them by evaluating their readiness to confront covert union organizing drives followed by quickie elections. Awareness is especially vital since union organizing can be expected to become more aggressive in anticipation of operating in a more supportive legal environment. As a result, employers must maintain a heightened readiness by reviewing their policies and procedures, reevaluating communication strategies with employees, and providing additional training of front-line supervisors to better equip them to confront the challenges that lie ahead.

Arnold E. Perl, Partner Glankler Brown

Brandon D. Pettes, Associate Glankler Brown

The Board has touted its self-proclaimed “high standards” for rules governing representation elections. In a landmark decision, the Board emphasized that “[i]n meeting these high standards, the opportunity for both sides to reach all the employees is basic to a fair and informed election….” Such would not be the case under the proposed new rule changes. Because employers would have only a short time to communicate with their employees, employees will be ill-informed and deprived of adequate time to hear both sides before casting one of the most important votes of their working lives. Congress entrusted the Board with determining necessary rules for conducting union elections fairly. Fundamental fairness requires, at a minimum, that employers be afforded an adequate opportunity to address the disadvantages of unionization and that employees be afforded a balanced view of the issue in order to make an informed decision regarding their work destinies. Pending the outcome of the Board’s current rulemaking process, both an employer’s free speech rights and an employee’s right to free choice hang in the balance.

JUDICIAL CHALLENGES TO THE PROPOSED RULES ARE ANTICIPATED. If the Board proceeds to pass its misguided rule changes as expected, an immediate new round of judicial challenges is certain. It can be expected that business groups will again seek to enjoin the Board from enforcing its rule changes on the grounds that they violate the National Labor Relations Act, exceed the Board’s statutory authority, and represent an


Not-so-nice Guys Don’t Always Finish Last: Restrictions on Employer Civility Rules?

By Tannera Gibson

The National Labor Relations Board (NLRB) is tasked with protecting an employee’s right to engage in concerted activity under Section 7 of the Nation Labor Relations Act (The Act). Specifically, the Act states:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities. . . The language “and to engage in other concerted activities” has been broadly interpreted by the NLRB and has made it especially difficult for employers to draft lawful civility policies. Recent NLRB decisions have made it clear that the Board will closely examine any policy that prohibits employees from making damaging comments about their employers. The line that the NLRB has drawn between an appropriate civility policy and an inappropriate civility policy is so fine it’s quite difficult to distinguish. That fine line between an employer’s right to expect its employees to act professionally and responsibly and those employees’ right to engage in concerted activity is highlighted in the following recent opinions:

Key NLRB Opinions on Civility (Negative Attitude) Policies Karl Knauz Motors Decision NLRB Case No. 13–CA–046452 On September 28, 2012, the NLRB upheld an ALJ’s decision finding that Karl Knauz Motors, Inc. did not violate the Act when it terminated an employee for negative Facebook postings about the company. However, the NLRB found, in a split 2-1 decision, that the company's civility policy violated Section 7 of the Act. The civility policy was deemed unlawful in part and too far-reaching. The policy stated:

Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership. The NLRB determined that the second half of the policy was unlawful because employees could reasonably construe its broad prohibition against disrespectful conduct and language that injures the 30

dealership as encompassing Section 7 activity, such as employees' protected statements that object to their working conditions. (The Board reasoned that the first section of the rule was positive and aspirational). Specifically, the NLRB considered Facebook postings made by one of the company’s car salesmen. During a meeting held to discuss a company sales event, the car salesman and another employee complained to management that food selected for the event—hot dogs, cookies and chips— was insufficient, and argued that higher-quality food should be served. The car salesman also discussed the food issue with other sales people after the meeting, and eventually posted pictures of the event on Facebook, along with comments ridiculing company management. Shortly thereafter, the car salesman also posted pictures of an accident involving a customer at another company-owned dealership, along with sarcastic comments. He was terminated after the company learned of the postings. The ALJ determined, and the NLRB agreed, that the salesman’s postings regarding the sales event were protected as concerted activity because he had discussed his issues with other employees, and because the event could have impacted his pay. The salesman’s postings regarding the customer’s accident, however, were not discussed with another employee and were in no way connected to his terms of employment. It was, therefore, proper to terminate the salesman based on his postings regarding the accident.

Copper River of Boiling Springs, LLC Decision, NLRB Cases 10–CA–085934, 10–CA– 088882, and 10–CA–087199 On February 18, 2014, the NLRB held that the Copper River Grill properly terminated an employee for violating a civility rule prohibiting employees from “displaying a negative attitude that is disruptive to other staff or has a negative impact on guests.” Prior to termination, the employee said “F--- Copper River” within the earshot of guests, and also told customers, “I don’t like this place. The managers are stupid. I don’t know why I have to cover up my tattoo. It’s not offensive.” The NLRB upheld the restaurant’s policy in a 2-1 vote, where the dissenting Board member opined that an employee would reasonably interpret the rule’s “negative attitude” language to include a prohibition against discussing negative feelings regarding terms and conditions of employment. The Board members who voted to uphold the

rule stated that the rule’s obvious purpose was to prevent incivility to employees and guests and found it absurd to argue that such a rule could not be applied to employees who make such vulgar, derogatory statements about the company in the presence of other employees and guests.

The Boeing Co. Decision NLRB Case No. 19-CA-088157 (2013) (Advice Memorandum) The NLRB examined the Boeing Co.’s code of conduct and found that the following language did not violate the NLRA:

Employees will not engage in conduct or activity that may raise questions as to the company's honesty, impartiality, reputation or otherwise cause embarrassment to the company. The NLRB reasoned that because this language appeared within the company’s Ethical Business Conduct Guidelines, which included prohibitions against bribery and insider trading, reasonable employees should understand that the language targets illegal and unethical acts rather than protected concerted activity.

What Is an Employer to Do? It is difficult to find the distinction between the language outlawed in the Karl Knauz Motors decision (“No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership”) and the language upheld in the Copper River of Boiling Springs, LLC decision (“negative attitude that is disruptive to other staff or has a negative impact on guests”), but it is a prime example of the many shades of gray in the NLRA. The language held to be lawful in the Boeing Co. decision, however, appears to indicate a trend toward permitting employers to prohibit disparaging activity where it’s clear that those prohibitions do not extend to protected concerted activity. While employer hands have not been completely tied, it is imperative that when drafting a civility policy, an employer asks the following questions about the activity it seeks to prohibit:

Could the activity be considered concerted? The activity would require two or more employees acting together to improve wages or working conditions. The action of a single employee may be considered concerted if he or she includes co-workers before taking action, or acts on behalf of other workers.

Would the activity benefit other employees? Will the improvements in employment terms benefit employees other than the employee taking action? Is the action simply based on a personal gripe, which is not protected? After asking these questions, employers should strongly consider reviewing their civility policies with legal counsel to ensure that they are in line with the NLRB’s most recent decision, and may even want to define “protected concerted activities” within the policy and include language that would restrict application of the policy to those activities.

Tannera Gibson, Attorney Burch, Porter & Johnson PLLC


Self-Actualization By Harvey Deutschendorf

“This is the greatest time in history to be alive. This is the dawn of a new generation, the fully creative human being….the health seeking, prosperity attracting, relationship blessing and world transforming man and woman… the highest intelligence on earth.” ~ Marianne Williamson ~


hen we think of the term self-actualization, the name of Abraham Maslow usually springs up. Maslow’s theory was that all people lived according to a hierarchy of needs. Once lower level needs were met, they moved on to a higher level. The lower levels comprised of the basic needs of food, shelter and clothing followed by the need for safety. After that, he theorized, we move on to emotional needs such as love, respect and belonging. At the top of the pyramid was self-actualization, which we were only able to strive for once all of our needs below that level had been met. Self-actualization was seen as the highest level of human qualities such as the ability to form deep friendships, a sense of humor, independence and autonomy. It is viewed as the ultimate in human experience. Many consider this a level that humans can never reach, however, it gives us a goal to strive towards.

Consequences of Ignoring Your Dreams While Maslow is usually associated with self-actualization, there was actually an organismic theorist named Kurt Goldstein who coined the term, referring to the concept as the motive for us to reach our potential. Simply put, self-actualization means completely maximizing our abilities in all areas of our lives. While it seems straight forward, this is difficult to assess accurately and honestly for numerous people. Many who have lived their lives in accordance with other’s definitions of success and how others wanted them to live their lives, have a difficult time thinking of what it is they wanted from their lives. Their own thoughts, dreams and aspirations have been pushed down deeply into their subconscious minds. They don’t ever go away and the consequences of ignoring our own dreams and wishes always comes back to haunt us. Fresh out of college in my first career as a social worker, I was employed for a time in a palliative care unit within a hospital. Thrown into the job without any training, I was terrified, not knowing what to say to people who only had weeks, perhaps days or even hours to live. As it turns out, I didn’t have to say very much, my role was to listen. With little time left, all of these people were eager to talk, to share their stories and I may have been the only one they were able to share their final words. I heard stories from people who had lived their lives and sought after their goals and dreams. They were, on the whole, at peace with themselves and ready to let go. Sadly, I also heard from a lot of patients who had not followed their own paths and were filled with regrets, wishing they had lived their own dreams. The experience left me with profound memories. Whenever I find myself trying to talk myself out of doing something that I really want to do, but find myself afraid, I mentally bring myself back to this experience.

We Need Strong Healthy Relationships Many people view success strictly in terms of financial well-being, viewed in terms of career and business accomplishments. There are a couple of reasons for this. Our society places a high value upon accumulating material wealth and it is the easiest form of success to measure. While money can enhance our freedom, expand our options in life, give us a strong sense of achievement and self-regard, it does not, in itself, lead to more happiness and a sense of self-satisfaction in life. A great deal of research has shown that it is the strength and quality of relationships with others that have the greatest bearing on how much joy and happiness we will experience in life. Many people who have acquired a great deal in their lives are still unhappy and miserable due to their inability to develop strong healthy relationships. 32

As I mentioned earlier, many people have difficulty determining what they really want in life as they are so used to following others and settling for what others think they should do or be. As humans we seem to have an unlimited capacity for deluding ourselves, for letting out intellect override and justify what we are doing instead of what we really desire. Our only true source of determining what we really want is our emotions or feelings. If we are doing what we really want, we should feel uplifted, motivated, excited and happy. If our feelings are out of sync with what we are doing, and it doesn’t feel good, we are likely doing something that someone else decided was right for us.

The Right Path to Self-Actualization In his book “Flow: The Psychology of Optimal Experience,” Mihaly Csikszentmihalyi talks about a state of consciousness that we reach when we are totally absorbed in what we are doing. This state, which he calls “flow” allows us to transcend our everyday problems and worries and feel that we are moving towards reaching our abilities. Czikszentmihalyi claims that we do not reach this ultimate state by chance, but by taking on tasks that are challenging, but not above our abilities. For me, it was times when I was writing “The Other Kind of Smart” and suddenly realized that a large amount of time had passed and it was early in the morning. Think of a time when you became so engrossed in something challenging that you forgot about time and everything else going on around you. Ask yourself what you can do that you are really good at, a passion that you can totally master. What challenges you in a way that is totally absorbing and requires everything that you have? These times will give you strong indicators that you are on the right path to self-actualization.

Harvey Deutschendorf Emotional Intelligence Expert, Speaker, and Author of The Other Kind of Smart Twitter@theeiguy

Public Employer Spotlight A Facebook “Like”

and Freedom of Speech

cases involving written speech have been much easier for the courts to analyze under historical principles. However, it was just a matter of time before a court was required to determine whether actions, other than written communication, on Facebook, LinkedIn or any other social media site are protected “speech.” What constitutes “speech?” Is an employee’s “like” on a Facebook page considered speech? What about a retweet? If so, is it entitled to First Amendment protection?

Is a Facebook “Like” Speech? In Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013), former employees of the Sheriff’s office filed suit against the Sheriff claiming that he terminated their employment in violation of their First Amendment right to freedom of speech and association. They claimed that the Sheriff learned of their support for his opponent in the November 2009 election when they engaged in certain activities, including “liking” his opponent’s Facebook page. When the Sheriff won the election, he chose not to retain the plaintiffs as employees. The District Court granted the Sheriff’s motion for summary judgment stating: ”Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection.”

By Latosha Dexter and Geoffrey A. Lindley


or public employers, managing the numerous laws that govern treatment of employees can be a daunting task. In today’s society, the task becomes even more complex as the proliferation of technology and the resultant ease of accessibility to once private information presents a myriad of new issues. First Amendment litigation is just one area that, because of technological advances, requires public employers to adopt a new viewpoint. Traditionally focused on verbal speech of public employees, the advent and popularity of social media is changing the game. Public employers now must consider whether online speech has First Amendment implications.

What does the First Amendment require? In order to be considered for First Amendment protection, (1) the employee’s speech must be about a matter of public concern; (2) the speech must be made by the employee as a private citizen and not pursuant to his or her official duties; and, (3) the free-speech interest must trump the employer’s interest in maintaining an efficient workplace. These principles have guided First Amendment analysis for years with little variation. However, the analysis has traditionally involved the usual understanding of what is meant by “speech.” Webster’s defines speech as “the communication or expression of thoughts in spoken words.” Therefore, employer action has typically been in response to something an employee said. But what about social media? How does the new surge in internet speech or expression affect the analysis? Not surprisingly, there have been a number of recent cases where social media has been implicated in the First Amendment realm. The

The Fourth Circuit Court of Appeals disagreed. Recognizing the mechanics of a Facebook “like”, the Court noted that the employees’ action in liking the opponent’s Campaign Page qualified as speech. “On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement.” The Court also believed that liking the Campaign Page qualified as symbolic expression which has long been viewed as protected. "It is the Internet equivalent of displaying a political sign in one's front yard, which the Supreme Court has held is substantive speech."

Lessons for Public Employers This decision was not really a surprise. However, it emphasizes the need for public employers to be diligent in how they handle social media. First, a public employer should create, maintain, and regularly update a social media policy. The policy should address the employer’s expectations of its employees with regard to social media but should not be overly broad. Second, a public employer should be mindful of what social media activities it can and cannot legally monitor. A good rule of thumb is that if an employee’s social media page/activity is not public, then management needs written permission from the employee to view it. There should also be a computer-use policy that defines and restricts the personal use of government-owned computers and related equipment. Finally, a public employer should train its supervisors/ managers in how to handle situations involving social media so that they know what to do if they become aware of an offending post, etc.

Geoffrey A. Lindley Partner Rainey, Kizer, Bell & Reviere PLC

Latosha Dexter, SPHR Of Counsel Rainey, Kizer, Bell & Reviere PLC


Why Employees Leave

By Jeff Kortes

Why do employees leave an organization? The answers are often complex and numerous. Most employees leave for more than one reason. Understanding the trends that are taking place is crucial as you build your employee retention strategy. NPA, the worldwide recruiting network, conducted a survey of its member recruiters asking them about more than 400 placements that were made in 2012 to understand what drives employees to leave their current employers. The survey is different in that data was provided by the search firms that recruited the employee from their employer so they have unique insights into what were the motivators that enticed the employee to consider another job. Professional recruiters have a unique relationship with their candidates as they develop a bond with them during the recruitment process. This insight can be invaluable in understanding employee motivations for leaving. When surveying its member recruiters, NPA broke the reasons down into three separate categories. The reasons/categories were organizational factors, personal factors and job-specific factors that caused a person to leave their job. In many cases, the person leaving had reasons in multiple categories. A summary of the survey is as follows:

• Organizational reasons had the largest impact on candidate motivation for seeking and accepting new employment as reported by recruiters. 47.9% of the respondents mention at least one organizational item as the cause to change employers • Job-specific reasons were the second most frequent referenced category driving employee change. 41.5% of the respondents mentioned at least one job-specific item • Personal reasons were cited in only 10.6% of the responses • Compensation was mentioned in just 5.3% of responses Several key areas were cited as reasons for changing jobs. They included:

• Seeking growth and challenge • Unsatisfactory career progression • Job stability When looking at the detail of the results, many of the items were things that an organization could act on in order to impact its retention. For 34

instance, job stability. In many cases organizations are not necessarily unstable but, instead, failure on the part of the organization to adequately communicate how the organization is doing can create a climate of uncertainty that prompts an individual to consider employment elsewhere. Another area similar to this was the area of direction or strategy concerns. This is an area that an organization is very often able to address by articulating what the vision is for the future and how the organization is working to fulfill that vision. Challenge is another area that an employer can have a significant impact on. Consciously looking for ways to provide an employee with challenging assignments such as projects and redefining jobs can eliminate the need to go elsewhere to obtain challenge. Employers that often feel as if they have no ability to impact their retention need to think again. There is a lot that can be done that does not cost the organization money. This is a an extremely positive situation because as the war for talent intensifies over the course of the next five years with an improving economy and retirement of baby boomers, employers will need to take proactive steps to address the concerns that employees have if they wish to retain them. To obtain a copy of the entire survey, go to,

Jeff Kortes

Human Asset Management LLC

Relocating Techies:

The HR

Dilemma By Mark Anthony Venegas

The other difficult thing, according to Abhijeet Khadilkar, co-founder of San Jose’s, is that though a lot of high-tech cities offer many great avenues for a better quality of life, tech people do not think that they have a good work/life balance to enjoy these advantages. “Because our work bleeds into our lives and our lives bleed into our work, the two need to be integrated,” he said. So tech employee housing needs to be designed for both working and living. Things techies need are adequate home office space and reliable Internet access, separate from their living quarters. They also prefer in-building workout facilities and close proximity to restaurants. These can be huge conveniences and time savers. But of course, all of these “bonuses” can be very difficult to find in one rental unit, especially for those not “in the know” about the market.

The Answer: Corporate Relocation Specialists The world’s best-known tech companies have the budgets and power to find the world’s top talent, no matter where they live, and move them to close to home. This also goes for well-funded tech startups – those who have the money will hire the best, no matter where they currently reside. But new-hire relocation – especially to tech capitals like San Francisco/Silicon Valley, New York, Washington DC, Seattle, Boston, Los Angeles and Chicago -- is an especially stressful task for corporate HR departments, not to mention the employees themselves.

Staggering Competitive Rental Markets Everyone knows what a hassle moving is – especially to an unfamiliar city. And most of the world’s tech capitals are intimidating, mind-numbingly competitive places to try to find any rental, let alone nice ones with great amenities and proximity to everything that makes them world-class towns. It’s obvious that anyone starting a new, highly challenging tech position needs to be job focused from day one, with as little distraction and stress as possible. But despite the higher compensation they’ll most likely receive in their new jobs, relocating techies are astounded with housing prices in some major tech cities. For example, New York is known for its sky-high rents. More than three times the national average, Manhattan’s average rental price is about $3,800. Better but still nose-bleed high, the San Francisco Bay Area’s average rental cost is also outrageous. A one-bedroom, new unit in a desirable neighborhood such as San Francisco’s Marina can fetch up to $3,500 a month. Washington, DC’s one bedrooms in Georgetown can go for up to $2,800. Boston ranks in at about $2,700, for a one-bedroom in Beacon Hill. Chicago’s one bedrooms in sought-after neighborhoods such as the Gold Coast get snapped up for about 2,700. Seattle is considerably better, but still high. Average rent for a Capitol Hill one bedroom is $2,200 a month. In nice neighborhoods of Los Angeles, such as Santa Monica, one bedrooms generally go for about $2,000 plus. All of those price tags are going to be quite shocking for new hires from smaller towns or outside the US. And as one would imagine, sticker shock is not conducive to job-start productivity.

The Techie Relocation Blues Any HR professional will tell you that having the “cost-of-living talk” with new hires is quite excruciating, as people are often not ready to adapt to the housing costs, despite their usually higher new salaries. Add to that the stress and hassle of applying for rentals and risking your luck in unknown neighborhoods…doesn’t sound like fun, does it? Especially if you’re not even from the US. Plus, although not every tech employee fits this stereotype, engineers, web developers and other IT types are generally not known for their adventurous, flexible and outgoing natures. Being alone in a new, big city is intimidating for anyone, especially an introvert.

Studies have shown that companies and HR professionals who offer housing assistance to new hires relocating for work tend to have lower turnover costs, as well as substantial boosts in morale, productivity and loyalty. And though many companies cannot afford to provide total relocation packages for new hires, they can offer housing referrals or corporate relocation specialists to help their new employees streamline their housing processes. Expert local real estate sources can find them the perfect, tech-oriented work/life space, take care of all the details – such as credit checks, rental applications and lease signings – and even help with unpacking boxes, setting up utilities, stocking fridges and giving neighborhood tours. In addition, fast and furious are key to landing good rentals – for any tenant. And most tech companies need their staff to get to work ASAP – there’s simply no time for apartment shopping. Plus hiring a rental team can avoid a lot of added costs. The new hires coming from overseas or other parts of the US do not have to fly in and spend a lot of money on airfare, hotels, food, transportation and more prior to moving. And the world’s top tech companies – such as Google, Microsoft, Apple, IBM, Intel, and HP – wouldn’t be where they were without having sharp founders and staff who knew what was best for the quickest growth. These companies know their priorities – and seamlessly relocating staff is just a worrisome extra burden that could better be handled by someone else. So savvy HR professionals at tech companies -- and really, any other type of business that wants to relocate employees -- are turning their housing headaches over to expert help. Since the rental process differs in every city, a helping hand from corporate relocation specialists just makes things a lot less stressful for everyone involved. And productivity can start skyrocketing from day one on the job.

Mark Anthony Venegas SF Dream Rental and Sales Team


What HR Managers Should Know About the TN Visa for Canadians and Mexicans By Ari Sauer The TN nonimmigrant visa was created after the passage of the North American Free Trade Agreement (NAFTA) treaty in 1993.   The agreement eased trade restrictions between Canada, the US and Mexico, and called for some new immigration rules. 

Eligibility for the TN Visa – General The TN visa is available for employees in specific professional occupations. Each listed profession has its own minimum requirements that the employee must meet in order to be eligible to apply for the TN. These are the professional occupations and the education, experience and licensure requirements for each occupation: GENERAL PROFESSIONALS: Economist; Landscape Architect; Mathematician (including Statistician); Range Manager/Range Conservationist; Research Assistant (working in a post-secondary educational institution); Social Worker; Sylviculturist (including Forestry Specialist); Urban Planner (including Geographer); Vocational Counselor – Requires a Baccalaureate or Licenciatura Degree. Computer Systems Analyst; Graphic Designer; Industrial Designer; Interior Designer; Technical Publications Writer – Requires a Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Certificate and three years experience. Architect; Engineer; Forester – Requires a Baccalaureate or Licenciatura Degree; or state/provincial license Land Surveyor – Requires a Baccalaureate or Licenciatura Degree; or state/ provincial/federal license. Accountant – Requires a Baccalaureate or Licenciatura Degree; or  C.P.A., C.A., C.G.A., or C.M.A. Lawyer (including Notary in the province of Quebec) - Requires a L.L.B.; J.D.; L.L.L.; B.C.L.; or Licenciatura degree (five years); or membership in a state/ provincial bar. Librarian – Requires a M.L.S.; or B.L.S. (for which another Baccalaureate or Licenciatura Degree was a prerequisite). Disaster relief insurance claims adjuster (claims adjuster employed by an insurance company located in the territory of a Party, or an independent claims adjuster) – Requires a Baccalaureate or Licenciatura Degree and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims; or three years experience in claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims Hotel Manager – Requires a Baccalaureate or Licenciatura Degree in hotel/restaurant management; or Post-Secondary Diploma or Certificate in hotel/restaurant management and three years experience in hotel/restaurant management. Scientific Technician/Technologist – Requires possession of (a) theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology,  or physics; and (b) the ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of those disciplines to basic or applied research. Management Consultant - Baccalaureate or Licenciatura Degree; or equivalent professional experience as established by statement or professional credential attesting to five years experience as a management consultant or five years experience in a field of specialty related to the consulting agreement

MEDICAL/ALLIED PROFESSIONALS: Physician (teaching or research only) – Requires M.D. or Doctor en Medicina; or state/provincial license. Dentist—Requires D.D.S.; D.M.D.; Doctor en Odontologia or Doctor Cirugia Dental; or state/provincial license. Veterinarian – Requires D.V.M.; D.M.V.; Doctor en Veterinaria; or state/provincial license. Psychologist; Registered nurse – Requires state/provincial license; or Licenciatura Degree. Nutritionist; Recreational Therapist – Requires Baccalaureate or Licenciatura Degree. Dietitian; Occupational Therapist; Pharmacist; Physiotherapist/Physical Therapist – Requires a Baccalaureate or Licenciatura Degree; or state/provincial license. Medical Laboratory Technologist (Canada)/Medical Technologist (Mexico and the United States) – Requires a Baccalaureate or Licenciatura Degree; or PostSecondary Diploma or Certificate and three years experience. SCIENTISTS: Agriculturist (including Agronomist); Animal Breeder; Animal Scientist; Apiculturist; Astronomer; Biochemist; Biologist; Chemist; Dairy Scientist; Entomologist; Epidemiologist; Geneticist; Geochemist; Geologist; Geophysicist; Horticulturist; Meteorologist; Pharmacologist; Physicist; Plant Breeder; Poultry Scientist; Soil Scientist; Zoologist - The requirement for all these positions is a relevant Baccalaureate or Licenciatura Degree. TEACHERS: Including teachers at the College; Seminary; and University level - The requirement for all these positions is a relevant Baccalaureate or Licenciatura Degree. Use caution when applying for a TN for an employee as a management consultant. Because this category is too often used as a catch-all for positions that are not listed, the government scrutinizes applications in this category more closely to make sure that the person will actually be a consultant.

The benefits of the TN visa Unlike other visas, like the H-1B, the TN is not subject to an annual cap. Therefore TN visas are available throughout the year. There is no requirement to get USCIS approval prior to applying for the TN. So a TN can be obtained quickly. Canadians are not required to apply for a visa at the consulate and can apply at the border crossing or airport. Mexicans are still required to apply for a visa at the appropriate US consular post. TN status can be extended in the US. TN visas can be renewed indefinitely, as long as the employee continues to meet all requirements for the visa. The TN does not have a requirement to pay a particular prevailing wage, like the H-1B visa has. There is no requirement to maintain a separate records file for TN employees, like the H-1B visa has. The spouse and children of a TN employee are eligible to come to the US in TD status.

Drawbacks of the TN visa The TN visa is not a “dual intent” visa. This means that a person on a TN visa cannot pursue permanent residency (a green card) without some risk to their TN status. Experience cannot be used as a substitute for the degree requirement, where a degree is required. A TN visa can be denied if the Department of Labor certifies that there is a strike or other work stoppage, the resolution of which would be adversely affected by the admission of the TN employee. Self-employment is not permissible on a TN visa, but the TN visa holder can work for a company in which they have an ownership interest, even a controlling interest. Spouses of TN employees on TD visas are not eligible for work authorization, though children in TD status are allowed to attend school in the US.

Ari Sauer, Immigration Lawyer Siskind Susser PC


Turn to niche job sites to reach highly technical prospects,

diversify your workforce

By Shane Pike

By some labor reports, the Shelby County and Northern Mississippi unemployment rates are higher than other parts of the country, yet there is some good news coming out of Tennessee and Mid-South area. According to the Tennessee Department of Labor & Workforce Development, the unemployment rate in Tennessee slipped below 8 percent in December 2013. That was the first time it had done so since April 2013. Various chambers of commerce and economic development groups are working ardently to create job opportunities and diversify the local job market which, historically, has been dominated by healthcare, tourism and logistics.

High Demand. Low Supply. These concerted economic development efforts and an overall growing demand for technologyfocused jobs, create both an opportunity and a challenge for area human resources executives looking to fill more narrowly-focused, specialized positions. As the job Mid-South’s job market improves and, moreover, continues to evolve, one of the primary challenges facing human resource executives and internal hiring managers is to make sure they are retaining top talent in their organizations. Equally important is taking the necessary steps to attract fresh talent. While both of these elements always have been critical components, attracting talent can sometimes be more problematic for human resources executives during times of economic prosperity. This challenge is magnified in job markets not known to be hotbeds of employment growth.

A Monster Challenge While technology and online job sites have, in many ways, simplified the hiring process, many companies have found that a “one size fits all” approach to online recruiting has not really streamlined their hiring processes at all. In fact, it has often generated more paperwork and required more time. One of the first major online job sites was launched in 1994, and a lot of time and effort was spent convincing companies that online recruiting was the way to go. After all, businesses and consumers were moving every other aspect of our lives online – from booking flights to finding dates to even making major purchases. As a result, virtually all recruiting has moved online in the last 20 years. At the same time, job boards have gradually inched their prices upward – together – because they could. The fewer big job boards there are, the less price competition you see. Thus, the price to advertise any open position has increased to the point where human resources professionals no longer experience the same fantastic return on investment on job postings as they once did. The result is that companies, including many companies in the Memphis/Northern Mississippi, are beginning to flee the large job boards en masse. Sometimes companies are moving to niche boards to more narrowly focus their candidate pool. In other instances, organizations are leaving job boards altogether because they no longer deem them as an effective vehicle for reaching qualified candidates. 38

Go Better. Not Broader. While completely abandoning job sites may be overreaching, the fact remains that human resources executives and internal corporate recruiters clearly need a better and different strategy for reaching qualified job candidates. This is especially true for highly specialized jobs where the prospect pool will be small and the demand high. In case you had any doubt about the demand for these positions consider this: software developer landed the top spot on the U.S. News & World Report’s “Best Jobs of 2014” list. Computer systems analyst was number two on the list. The best way to use job boards today for hardto-find positions, such as engineers, is to employ a low-cost, high-coverage approach. In other words, give all your jobs constant exposure where these highly-skilled candidates will find them when they decide to look for a job. Anecdotally, many organizations see more movement and interest when the economy appears to be on the upswing, but there’s no way to time it. Industry-specific job sites are typically more cost effective than large general sites like Monster. com. More niche sites also may eliminate the time it takes to weed out the large number of candidates. Human resources professionals can use that extra time and savings seeking out the right candidates for those hard-to-fill positions.

The Search for Strategy The bottom line is that classified advertising is not the only approach organizations should take to reach those hard-to-find employees. This tactic doesn’t produce the desired results, and, moreover, it can be costly. In those situations, classified advertising is merely the foundation for a more strategic effort. As the area makes strides in hitting its economic development goals and reaching IT candidates who may historically looked for jobs in other major markets, corporations, small businesses and government entities want to make sure they are taking a results-driven approach to their hiring efforts. The positive outlook for companies today – aside from a more stable economy – is that a more strategic and narrowlyfocused approach is available - enabling them to streamline their recruiting processes and attract the right talent at the right time.

Shane Pike, CEO

April 2014 issue  
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