April issue 2 by Cynthia Thompson

Volume 5 : Issue 4 TM

www.HRProfessionalsMagazine.com

ARSHRM

MSSHRM

20th Annual HR Conference & Expo May 11-13 in Biloxi

Conference & Expo April 8-10 in Hot Springs

Kathleen

McComber,

MA, SPHR SHRM-SCP, CCP

New

FMLA Reg on

ARSHRM

Professional Development Director

Same Sex Benefits

TPMA

How Your Bonus Plan May Create

Annual Conference April 14-16 Gatlinburg, TN

Overtime Pay Liability

Navigating

Healthcare Reform is Getting Tougher

JUST PUT IT ON THE COMPANY CARD…NOBODY WILL NOTICE.

YOU’RE REALLY SHOWING OFF YOUR BEST ASSETS TODAY.

THEY’RE WORRIED ABOUT OVERTIME. I’M JUST WORKING OFF THE CLOCK.

I NEVER WEAR THE SAFETY GOGGLES. THEY LEAVE A MARK.

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 www.laborlawyers.com

ATLANTA BALTIMORE BOSTON CHARLOTTE CHICAGO CLEVELAND COLUMBIA

COLUMBUS DALLAS DENVER FORT LAUDERDALE GULFPORT HOUSTON IRVINE

KANSAS CITY LAS VEGAS LOS ANGELES LOUISVILLE MEMPHIS NEW ENGLAND NEW JERSEY

NEW ORLEANS ORLANDO PHILADELPHIA PHOENIX PORTLAND SAN ANTONIO SAN DIEGO

SAN FRANCISCO TAMPA WASHINGTON, D.C.

Bringing Human Resources & Management Expertise to You

67%

of employees say they get too little positive feedback from their boss www.HRProfessionalsMagazine.com Editor

Cynthia Y. Thompson, MBA, SPHR Publisher

The Thompson HR Firm HR Consulting and Employee Development Art Direction

Park Avenue Design Contributing Writers

Bruce E. Buchanan Charlie Cartwright Dale Conder Harvey Deutschendorf Renee S. Frazier Murray L. Harber Tom Hayes Mary Moffatt Helms Jimmy Hinton Chris Menard Matthew C. Myrick Gregory J. Northen Ricky Reynolds Elizabeth Darby Rehm Blake Rogers Charles Sims, Jr. Cristie Upshaw Travis Kathy Tuberville 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 Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©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: Kathleen McComber, MA, SPHR, SHRM-SCP, CCP 10 New FMLA Reg on Same Sex Benefits 14 How am I Doing? Why Praise and Feedback Matter 18 Navigating Healthcare Reform is Getting Tougher 20 Best Practices for Protecting Employee Data in the Age of Cyber Security Issues 26 Unintended Consequences: How Your Bonus Plan May Create Overtime Pay Liability 30 How to Develop a Culture of Health for Successful Workplace Wellness Programs

WEB EXCLUSIVES HTTP://HRProfessionalsMagazine.com /Exclusives

Departments

16 Employee Retirement – What are My Retirement Planning Options? 22 Employee Benefits – Control Benefits Costs with Voluntary Coverage 24 Employment Law – Employee Use of Prescription and Over the Counter Drugs 28 Emotional Intelligence – 7 Habits of Highly Resilient People 29 Wellness – Employers Embrace Population Health Management 32 Tanja L. Thompson Named Office Managing Shareholder of Littler Memphis 33 EEOC – Job Restructuring as an Accommodation 34 Immigration – OCAHO Finds Company Did not Retaliate Against Employee

Industry News 6 8 12 25

ARSHRM HR Conference & Expo in Hot Springs on April 8-10 Preview of MSSHRM 20th Annual HR Conference & Expo in Biloxi May 11-13 Tennessee Personnel Management Association Conference in Gatlinburg on April 14-16 WTSHRM 5th Annual Human Resources & Employment Law Conference in Jackson on May 6

Next Issue Highlights of ARSHRM HR Conference & Expo in Hot Springs Highlights of SHRM Employment Law & Legislative Affairs Conference March 23-25 in Washington DC Highlights of TPMA Conference in Gatlinburg on April 14-16 www.HRProfessionalsMagazine.com

a note from the Editor

are excited to be the official media sponsor for the

Attention MSSHRM friends, it’s time to register for the

ARSHRM HR Conference & Expo in Hot Springs

20th Annual Human Resource Conference and Expo

on April 8-10! Keynote speakers include Jim Knight

at the beautiful Beau Rivage in Biloxi May 11-13. I am

on Wednesday speaking on “Culture That Rocks!”;

delighted to be presenting a Pre-Conference Workshop

Ann Rhoades, Thursday Keynote, speaking on “Built

on May 10 approved for 3.00 HRCI Business Credits and

on Values”; and Hallerin Hilton Hill, Friday Closing Keynote, speaking on “The

3.00 SHRM PDCs. I hope you will make plans to join me

Wisdom Advantage.” I am honored to be a

for the Workshop!!

concurrent speaker at the Conference on Wednesday

and

Thursday

If you are unable to attend these excellent conferences,

speaking

on “HR Strategies to Increase Your

you can follow me on Twitter @cythomps as I will be

Organizations’ Bottom Line,” which is

tweeting from both conferences about the exciting events

pre-approved for 1.00 HRCI Business

and speakers. We will also be providing daily updates on

Credit and 1.00 SHRM PDC. See page

Facebook and LinkedIn.

7 for the Conference Agenda. It is also horse-racing season. As an avid fan, I am

Special thanks to SHRM-Memphis and Memphis HR

also looking forward to the Arkansas Derby

professionals who attended Strategic Leadership for HR

Day at Oaklawn on April 11!

Executives on March 3 at the Crescent Club! Watch your email for our next seminar. As always please join us for

We are also honored to be the official media sponsor for the Annual Tennessee

our monthly complimentary HRCI virtual event sponsored

Personnel Management Association Conference in Gatlinburg April 14-16.

by Data Facts on Thursday, April 23. Watch your email

Congratulations to Richards Stokes, Executive Director; and Alan Jones,

for your invitation! If you are not currently receiving our

Conference Chair, on putting together an outstanding Conference for the HR

monthly invitation, you can subscribe on our website at

directors and managers of the public sector and government agencies in

www.hrprofessionalsmagazine.com.

Tennessee. I am looking forward to speaking at the Past President’s Luncheon on April 16. Then on to Keeneland in Lexington, KY for the horse races there. Lexington is also the home of the Bluegrass SHRM Chapter and I hope to see some of our KYSHRM friends there. I will be speaking at the St. Lucie HR Association in Florida on Thursday, April 23. My topic will be an “Overview of the SHRM Employment Law and Legislative Conference” held in Washington DC in March. We look forward to seeing our WTSHRM friends in Jackson at the Carl Grant Center at Union University on May 6 for the 5th Annual Human Resources & Employment Law Conference co-sponsored by the Law Firm of Rainey, Kizer, Reviere & Bell, PLC.

P Conference Program Information

Cynthia Y. Thompson | Editor cynthia@HRprosMagazine.com www.HRProfessionalsMagazine.com

General Information

When: April 14th – 16th, 2015

P General Information Information o 3 Pillars of HRProgram Certificate Program When: April 14th –General 16th, 2015 P Conference Information Conference Program Information Where: Park Vista Hotel: April 14th – 16th, 2015 o Webinar – Healthcare Reform Best When Pre-conference activities Pre-conference activities

John Register—Hurdling Adversity: The Power of Inspiration—Wednesday Morning Mega Session! www.HRProfessionalsMagazine.com

AFFILIATE

Practices WhenHotel : April 14 – 16 , 2015 Pre-conference activities Where: Vista o 3 Pillars of HR CertificatePark Program Gatlinburg, TN 37738 Sessions o 3 Conference HR Certificate Program Where: Park TN Vista Hotel o of Webinar – Healthcare Reform Best « Gatlinburg, 37738 705oPillars Cherokee Orchard Road “The Heart and Soul of Leadership” : Park per Vista Hotel o Webinar –toHealthcare Reform Best The Where rate is $83.00 night. One Bedroom Suites Road 705 Cherokee Orchard o “A Call Practices Urgency: 21st Century Orchard Road are available705 for Cherokee $285 per night. Two Bedroom Practices Gatlinburg, TN 37738 Leadership Competencies” Conference Sessions Suites are also available TN for $375.00 Gatlinburg, 37738 per night. Conference o “Labor & Employment LawSoul Update” o Sessions “The Heart and of Leadership” King Suites andThe Family Suites are available upon st o “Leading Technology Trends Driving rate is $83.00 per night. o “The Heart and Soul of Leadership” o “A Call to Urgency: 21 Centuryrequest for $183.00 per night. Reservations One Bedroom Suites Human Resources”21st Century The rate isare $83.00 per night. Oneper Bedroom available for $285 night. Suites Two Bedroom o “A Call to Urgency: Leadership Competencies” should be made by March 20th, 2015 to get the o "Strategies to Increase an are available for are $285 peravailable night. Two Bedroomper night. Suites also for $375.00 Leadership Competencies” conference rate. In order to best serve our o “Labor & Employment Law Update” Organization's Bottom Line" Suites you areKing alsomake available for $375.00 Suites andreservations Family Suites are night. available upon attendees, can your by per o “Labor & Employment Law Update” Panel o Discussions “Leading Technology Trends Driving KingtheSuites and Family Suites available upon calling hotel directly. The$183.00 on-line are booking request for per night. Reservations o “What’s at the Heart of Employee o “Leading Technology Trends Driving Human Resources” coderequest is “PMA”. for $183.00 per bynight. Engagement?” should be made March Reservations 20th, 2015 to get the Human o Resources” "Strategies to Increase an o “Heart Healthy Government Operated should beconference made by March 2015 to theserve our rate. 20th, In order to get best o "Strategies to Increase anBottom Line" Telephone: Organization's (800) 421-7275 Clinics” conference rate. In order to best serve our Organization's BottomWorks” Line" www.tnipma.orgattendees, you can make your reservations by Panel o “The Art ofDiscussions Wellness attendees, you 03/01/2015 can your reservations by booking Registration: OPENING calling the make hotel directly. The on-line Panel Discussions o “What’s at the Heart of Employee calling thecode hotel directly. The on-line booking is “PMA”. o “What’s atEngagement?” the Heart of Employee code is “PMA”. Engagement?” For More Information o “Heart Healthy Government Operated Telephone: (800) 421-7275 o “Heart Healthy Government Operated Clinics” Telephone: (800) 421-7275 Alan Jones, Conference Chair at (865)342-3062; www.tnipma.org Clinics”o “The Contact Art of Wellness Works” or www.tnipma.org Registration: OPENING 03/01/2015 o “The Art of Wellness Works” Richard Stokes, Executive DirectorRegistration: at (615)532-4956. OPENING 03/01/2015 th thRoad 705 Cherokee Orchard

Kathleen on the cover

McCOMBER

KATHLEEN McCOMBER, MA, SPHR, SHRM-SCP, CCP Kathleen is currently the Assistant Vice Chancellor for Human Resources for the University of Arkansas for Medical Sciences in Little Rock, Arkansas. She joined UAMS in June, 2002. Prior to that, she was Corporate Vice President of Human Resources for Edgewater in Fayetteville, AR. for five years, helping with the acquisition of 44 companies to form Staffmark later becoming Edgewater. Prior to this position she held

She holds a B.S. in Education from the University of

various executive human resources positions at Acxiom Corporation, Express Human Resources and M.M. Cohn.

Arkansas and an M.A. in

In her current position, she is responsible for the human resource campus function in the

Management from Webster

UAMS Medical Center, which employs over 3500, as well as campus responsibility for

University. She is on the faculty

the operations function that includes compensation, HRIS, recruitment, organizational

of the University of Arkansas

development, employee relations, affirmative action, immigration, compliance, benefits,

for Medical Sciences in the

employee services, and performance management for 11,000 employees.

College of Public Health and Webster University teaching leadership and human resource classes at the graduate level,

Ms. McComber has over 30 yearsâ&#x20AC;&#x2122; experience in the human resource profession and has done extensive work in the areas of compensation, benefits, employee relations, performance leadership, diversity and organizational development twenty-five of those at the senior level in the organization.

including a graduate class on Violence in the Workplace.

She is a member of the Central Arkansas Human Resource Association and the Society for Human Resource Management (SHRM), where she was on the national board for seven years, having served as Chair in 1998. She is certified as a SHRM-SCP with SHRM. Kathleen holds a lifetime certification from the Human Resource Certification Institute as a Senior Professional in Human Resources and has served a four-year term on their national board. She served six years on the SHRM Foundation Board where she served as Chair in 2003. She also holds a certification from World at Work as a Certified Compensation Professional. ď Ž www.HRProfessionalsMagazine.com

John Register—Hurdling Adversity: The Power of Inspiration—Wednesday Morning Mega Session!

Jim Knight—Culture that Rocks! Wednesday Keynote!

Ann rhoades—Built on values Thursday Keynote! Hallerin Hilton hill—the wisdom advantage Friday closing keynote!

S AVE

THE

D ATE —A PRIL 6-8, 2016

R OGERS

2015 ARKANSAS SHRM HR CONFERENCE & EXPO CONFERENCE AT-A-GLANCE ARSHRM15 - TUESDAY, April 7, 2015

4:00 p.m. ‐ 6:00 p.m.

Attendee Registration – Convention Center Registration Booth

ARSHRM15 - WEDNESDAY, April 8, 2015

7:00 a.m. ‐ 5:00 p.m.

Attendee Registration – Convention Center Registration Booth Labor Relations Recruitment

Employee Development 8:00 a.m. ‐ 9:15 a.m.

You Are Important, You Are Needed, and You Are Necessary

Feeding the OFCCP Tiger

Their Way or the Highway ‐ HR Assessments for Success

Minnie Lenox Room 203/204

Tim Orellano Room 207

Lori Kleiman Room 208

Mega Session: Hurdling Adversity ‐ The Power of Inspiration ‐ John Register—Rooms 207/208/209

9:30 a.m. ‐ 10:45 a.m. 10:45 a.m. ‐ 11:30 a.m.

Exhibit Hall ‐ Hot Springs Convention Center, Hall A

11:30 a.m. ‐ 1:30 p.m.

Opening Keynote Session—“Culture That Rocks" ‐ Jim Knight Hot Springs Convention Center, Horner Hall Business Strategy

1:45 p.m. ‐ 3:00 p.m.

HR Strategies to Increase Your Organization's Bottom Line Cynthia Thompson Room 203/204

Paul Hickman Room 209

Recruitment

The SuperHerRo of Actionable Change Management

Effective Pre‐Employment Screening

Robert Magri Room 203/204

Troy Redstone Room 207

Andrew Dale Room 208

Paul Hickman Room 209

Safety

Labor Relations

Exhibit Hall ‐ Hot Springs Convention Center, Hall A How to be a Workplace Safety Superhero

Employee Engagement

Employee Relations

Strategic Enforcement Plan: Making Your Organization's Leaders Into EEOC's Roadmap to its Enforcement and a Hero to Drive Employee Loyalty Litigation Efforts Debra Finney Room 207

Violence in the Workplace ‐ A Personal Experience

Kyle Killingsworth Room 208

Kathleen McComber Room 209

Luncheon Keynote & Chapter President Recognition—"Built on Values" ‐ Ann Rhoades Hot Springs Convention Center, Horner Hall

12:00 Noon ‐ 1:45 p.m. 1:45 p.m. ‐ 2:15 p.m.

Employee and Labor Relations

Closing of the Exhibit Hall ‐ Hot Springs Convention Center, Hall A Employee Relations Business Strategy

Employee Relations

Ask‐An‐Attorney Panel

Multi‐Generational Workplaces

The SuperHerRo of Actionable Change Management

Violence in the Workplace ‐ A Personal Experience

Labor Panel Room 203/204 Employee and Labor Relations

Jason Hudnell Room 207 Labor Relations

Andrew Dale Room 208 Labor Relations

Kathleen McComber Room 209

Ask‐an‐Attorney Panel Labor Panel Room 203/204

5:15 p.m. ‐ 7:00 p.m. 7:00 p.m. ‐ 9:30 p.m.

9:15 a.m. ‐ 12 Noon

Effective Pre‐Employment Screening

How Toilet Paper, Cookies & Ice Cream are the Kryptonite of the Super Heroes in HR

Robert Magri Room 203/204

8:00 a.m. ‐ 9:15 a.m.

Recruitment

Beyond Tactical HR: Linking Talent Strategy to the Business Strategy

How to be a Workplace Safety Superhero

9:45 a.m. ‐ 10:45 a.m.

4:00 p.m. ‐ 5:15 p.m.

Kyle Killingsworth Room 209

Attendee Registration – Convention Center Registration Booth Business Strategy Business Strategy HR Strategies to Increase Your Beyond Tactical HR: Linking Talent Organization's Bottom Line Strategy to the Business Strategy Cynthia Thompson Tony Hawk Room 207 Room 208 Continental Breakfast ‐ Exhibit Hall ‐ Hot Springs Convention Center, Hall A Workforce Planning Business Strategy

Safety

2:30 p.m. ‐ 3:45 p.m.

Feeding the OFCCP Tiger

ARSHRM15 - THURSDAY, April 9, 2015

7:45 a.m. ‐ 8:30 a.m.

10:45 a.m. ‐ 12 Noon

Employee Engagement Making Your Organization's Leaders Into a Hero to Drive Employee Loyalty

Tony Hawk Troy Redstone Room 207 Room 208 The Daily Planet Reception in the Exhibit Hall ‐ Hot Springs Convention Center, Hall A Dinner on Your Own Tweet‐up Late Night Reception with DJ at the Austin Hotel

8:00 a.m. ‐ 12 Noon

8:30 a.m. ‐ 9:45 a.m.

Recruitment Their Way or the Highway ‐ HR Assessments for Success

How Toilet Paper, Cookies & Ice Cream are the Kryptonite of the Super Heroes in HR

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

7:00 a.m. ‐ 8:15a.m.

Labor Relations

Tim Orellano Lori Kleiman Room 207 Room 208 Exhibit Hall ‐ Hot Springs Convention Center, Hall A Workforce Planning Business Strategy

3:00 p.m. ‐ 4:00 p.m.

4:00 p.m. ‐ 5:15 p.m.

Strategic Enforcement Plan: Paging Aquaman: Employers are EEOC's Roadmap to its Enforcement and Drowning in Regulations Litigation Efforts Debra Finney Michael Lotito Room 207 Room 208 The Gotham City Reception ‐ Hot Springs Convention Center Horner Hall Dinner on Your Own or Meet and Greet Dinners (Pre‐Registration Required)

Room 209

ARSHRM15 - FRIDAY, April 10, 2015

Employee Development

Labor Relations

Employee Relations

You Are Important, You Are Needed, and You Are Necessary

Paging Aquaman: Employers are Drowning in Regulations

Multi‐Generational Workplaces

Minnie Lenox Room 207

Michael Lotito Room 208

Jason Hudnell Room 209

Brunch Closing Keynote, Arkansas SHRM Awards & Intro to 2016—"The Wisdom Advantage" ‐ Hallerin Hilton Hill Hot Springs Convention Center, Horner Hall

Sessions highlighted in Green are Business (formerly Strategic Management) Approved by HRCI

Schedule subject to change. As of 3/12/2015 www.HRProfessionalsMagazine.com

AFFILIATE

20th ANNUAL HUMAN RESOURCE CONFERENCE & EXPO The 20th Annual Human Resource Conference & Expo will be held in Biloxi, Mississippi from May 11 - 13, 2015 at the Beau Rivage in beautiful Biloxi, MS. This year's theme focuses on 20/20 HR Vision. The conference begins Monday afternoon with a Pre-Conference Workshop “Strategic Leadership for HR Executives.” Tuesday morning begins with an Opening General Session at 8:00 a.m. featuring Dr. Frances Lucas, Professor of Practice for the Human Capital Development Program at USM. Both days are packed with information-filled breakout sessions, networking opportunities, and quality time spent with exhibitors who offer the latest resources for Human Resource Professionals and their organizations. Luncheon Speaker Matt Jones is a world class professional speaker and author who is committed to inspiring audiences and delivering strategies to help organizations thrive in the midst of adversity and excel to new heights of performance. Matt is currently the author of five books with more to come in the future. Attendees, will receive a FREE copy of Matt’s book “Life is a Marathon.” Closing SpeakerJennifer McClure has provided workshops and training for leadership, human resources and talent acquisition teams at a variety of organizations – including Fortune 100 clients. Jennifer brings perspective and prior experiences as a Human Resources executive in privately held and Fortune 500 companies, as well as experience as an Executive Recruiter and Executive Coach. Attendance at the 20th Annual Human Resource Conference and Expo will offer up to 6 recertification credits for the Certified Human Resource Professional. The Conference ends at Noon on May 13th.

This program has been submitted for General recertification credit hours toward PHR, SPHR, and GPHR recertification through the HR Certification Institute. For more information about certification or recertification, please visit HR Certification Institute at http://www.hrci.org. Past conferences have been approved for up to 6.0 hours of General re-certification. 8

www.HRProfessionalsMagazine.com

I’M

THAN MY JOB. I’M THE

HR teaches you to give feedback with EMPATHY.

FACE OF THE COMPANY.

My SHRM membership helps me examine HR situations as more than black or white. Local meetings and online forums provide an outlet for feedback, so I know I’m approaching issues with honesty and compassion. Online tools like sample policies and documentation templates help me put forth the best guidelines for our organization. With SHRM, I’m a better HR practitioner and a better person.

Get more at shrm.org/more

Kristen Medlin

15-0145-KRISTEN/HRPro

Administrative Director of Human Resources Member since 2007

15-0145 HRPro AD - Kristen White_FNL.indd 1

3/6/15 4:40 PM

www.HRProfessionalsMagazine.com

SAME-SEX UPDATE!

BY JEFF WEINTRAUB

DOL’s New Rule Requiring Employers to Allow FMLA Spousal Leave to Lawfully Married Same-Sex Spouses

While there have been a number of federal-sector cases declaring sexual orientation to be a protected category under the federal employment statutes, a couple of recent federal-court private-sector cases holding that it is unlawful gender stereotyping under Title VII for an employer to fire a lesbian employee for failure to conform to a female stereotype, a number of private-sector sexual-orientation lawsuit settlements, a number of declarations by federal agencies that bar sexual-orientation discrimination against employees of the respective agencies, and a number of plaintiffs’ victories in state-law cases (in states protecting sexual orientation), no federal court in a private-sector case, in spite of EEOC’s recently clarified opinion that gender identity is protected under Title VII, has yet declared that Title VII’s sex-discrimination provisions protect sexual orientation—on the other hand, there have been hundreds of federal-court decisions establishing that the “sex” referred to in Title VII’s protections refers to biological sex (the status of being male or female), not to sexual preference. Will this change? Possibly, although it is perhaps more likely that such a change in the very essence of Title VII would come from new Congressional legislation, such as the Employment Non-Discrimination Act (ENDA) bill. Meanwhile, same-sex issues arise in contexts outside of just Title VII—for example, in the benefits arena: FMLA, ERISA, etc. In February, the DOL published its final rule relating to what constitutes a “spouse” under the FMLA. You may recall from our last discussion on the subject that, after the Windsor Supreme Court decision requiring the feds to defer to the states’ definitions of “spouse,” a number of federal agencies began to hold forth with regard to benefits available as to

www.HRProfessionalsMagazine.com

same-sex partners. For example, as Courtney Leyes wrote in the June 2014 issue of this Magazine last year: In August 2013, the Internal Revenue Service ruled that same-sex couples who were legally married in states that recognize same-sex marriage will be treated as married for federal income tax purposes, regardless of whether same-sex marriages are permitted in the state in which they live or work. Additionally, same-sex spouses will no longer be taxed on health and medical coverage for their spouses regardless of what state the employee resides or works. This rule went into effect on September 16, 2013. *** [Also in September 2013], the DOL issued new guidance stating that Employee Retirement Income Security Act (ERISA) retirement benefits will be available to same-sex couples who were married in one of the […] states currently recognizing same-sex marriage, regardless of the couples’ current state of residence. As to the above health-benefits issue, under DOMA, employer health coverage that was offered to a same-sex spouse had been imputed as income and taxed; now, under the IRS ruling, same-sex spouses who were married legally in a state will no longer be taxed on health and medical coverage for their spouses, regardless of what state the employee resides or works in. Similarly, as to the retirement-benefits issue, DOL’s new guidance means that ERISA retirement benefits will be available to same-sex couples who were married in one of the states currently recognizing same-sex marriage, regardless of the couples’ current state of residence. So, legally married same-sex couples, no matter where they live (including in Tennessee and Mississippi), will be able to access their partner’s pension in the event of the partner’s death, just as in heterosexual marriages; for example, a Mississippi same-sex couple can go to New York, get legally married, return to Mississippi, and have ERISA protections—if one of the partners dies, then the other partner may be able to require the deceased partner’s employer to pay death benefits to the other partner rather than to, for example, the deceased partner’s parents. Agree with these rules or not, they will be relatively easy for employers to understand.

DOL CONVERTS FMLA LEAVE BENEFITS TO THE RULE OF CELEBRATION After Windsor, DOL initially had announced that FMLA benefits would be available only to legally married same-sex spouses who resided in states that had legalized same-sex marriage. This was known as the “state of residence” rule, which meant that the employee could utilize FMLA leave for his/her partner only if the same-sex couple lived in a state recognizing same-sex marriage. This somewhat different spin on what other federal agencies had been stating, apparently was based on the fact that the FMLA itself deferred to the state’s definition of what constituted a spouse. The DOL’s new, final rule, which goes into effect March 27, 2015, changes the playing field yet again. The new rule states that, regardless of where a lawfully married same-sex couple lives, the employee’s same-sex spouse will be covered for purposes of FMLA leave. For example, let’s say a same-sex couple resides in Tennessee, which does not recognize same-sex marriage. The couple travels to Pennsylvania (which recognizes same-sex marriage) and gets legally married. The couple returns to Tennessee. The Tennessee employer must allow the employee to take job-protected, unpaid leave to take care of his/her partner (a “spouse” under Pennsylvania law) with a serious health condition. Thus, for deciding who is a spouse for FMLA purposes, the DOL is adopting the rule of the “state of celebration,” requiring only that the same-sex couple have been legally married. When a Mississippi same-sex couple engages in a marriage ceremony in Mississippi, the employee will not have FMLA protections for his/her

partner under the new rule; when a Mississippi same-sex couple legally marries in New York, the employee will have FMLA protections for his/her spouse when they return to Mississippi. The new rule now is similar to the IRS and DOL rules applicable to other employee-benefits laws. However, a number of other postWindsor issues remain, some relating to employment, some not. For example, access to social security benefits, benefits for spouses of veterans, and copyright benefits still is denied, since federal laws on these subjects depend on the state of residence to define marriage. In addition, since these are federal laws rather than simply federal regulations, they will be more difficult for proponents to change. Basically, the position of the Obama administration is that no federal benefit should be denied to a lawfully married same-sex couple based on the state of residence. The Supreme Court is set to decide this year the issue of what has been described as “marriage equality”—this decision, when it comes, likely will alter the same-sex landscape once again. Tanco et al. v. Haslam et al. is one of the cases before the Supreme Court—this Tennessee case was filed by, among others, prominent Memphis attorney Maureen Holland. The Supreme Court decided on January 16 to review the only federal Court of Appeals ruling against same-sex marriage rights; this may be a sign that the Supreme Court is ready to end the current controversy. Previously, the Court had refused to review appellate opinions that deemed bans on same-sex marriage to be unconstitutional. By reviewing the Sixth Circuit decision that upheld such bans, the Supreme Court may be suggesting that same-sex marriage should be a guaranteed right. In preparing this article, I asked Attorney Holland about the upcoming arguments before the High Court—she stated, "We're hopeful the Supreme Court will rule in our clients' favor so that the marriages of same-sex couples will be recognized and treated equally in Tennessee, and that all couples can enjoy the same protections and stability that marriage offers." The Court will examine two questions in the upcoming case, which consolidates four cases involving marriage restrictions in Kentucky, Michigan, Ohio, and Tennessee. The first question asks whether states must license same-sex marriages, and the second asks whether they simply must recognize same-sex marriages lawfully performed in other states. That 2d construction means the justices might require recognition of other states’ marriages but not force states to issue their own licenses for same-sex marriage. The Court’s decision likely will impact workplace issues as well.

WHAT SHOULD EMPLOYERS DO NOW? So, what should Tennessee and Mississippi employers do for now? You should review your FMLA policy to make sure it does not conflict with the new DOL rule that requires employers to allow spousal FMLA leave for legally married same-sex couples. Some Mid-South employers may object to the new rule, but, if nothing else, the new rule brings a small measure of consistency to the web of new benefits rules applicable to employees in same-sex relationships. Footnote: On March 26, a Texas federal judge ordered the Department of Labor to stay application of its final rule extending FMLA rights to legally married same-sex couples regardless of their state of residence. Stay tuned!

Jeff Weintraub Managing Partner, Fisher & Phillips, LLP jweintraub@laborlawyers.com www.laborlawyers.com www.HRProfessionalsMagazine.com

HR PROFESSIONALS QUARTERLY SEMINARS

Highlights from Strategic Leadership for HR Executives March 3rd at the Crescent Club in Memphis

Ashley Pace, Christine Ferris, and Brad Owens with Lockton presented HR Strategies for ACA Reporting and Workforce Analytics. Lockton Memphis was the presenting sponsor. Ashley and Brad are partners in Lockton Companies, LLC. Christine is an HR Consultant for Lockton.

Jeff Weintraub with Fisher Phillips presented a 2015 Survival Kit for Employees in a Post-Rational Labor and Employment World. Jeff is Regional Managing Partner for the Memphis office of Fisher & Phillips LLC.

Cynthia Y. Thompson, MBA, SPHR, SHRM-SCP presented 10 Steps to Enhance Your Executive Leadership Skills. She is Editor | Publisher of HR Professionals Magazine and the Founder and Principal of The Thompson HR Firm LLC.

SHRM members and HR professionals in Memphis enjoyed the presentations and earned 3.00 HRCI Business Credits and 3.00 SHRM PDCs. A wine and cheese reception followed the seminar.

APPROVED

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3.00 STRATEGIC BUSINESS CREDITS

Littler Nashville Invites You to Save the Date A Littler Breakfast Briefing – OFCCP Roundup Tuesday, May 12, 2015 Registration & Breakfast: 7:30 a.m. – 8:00 a.m.

4 Executive Orders 3 Proposed Regulations

Program: 8:00 a.m. – 9:30 a.m. Location: Envision Conference Center 9010 Overlook Boulevard Brentwood, TN 37027 This program is complimentary. Breakfast will be served. This program is designed for in-house counsel and HR professionals. CLE credit pending approval. PHR/SPHR credit has been approved. For direct registration, special accommodations and questions, please contact Kellie Nurko at knurko@littler.com or 973.848.4752.

2 Final Regulations A Presidential Memorandum, a Directive, a New Audit Scheduling Letter, and a Partridge in a Pear Tree This practical discussion, led by Littler Washington, DC shareholder and co-chair, OFCCP Practice Group, Alissa Horvitz, and Littler Nashville shareholder, Eric Stevens, will summarize the laws and regulatory actions facing government contractors and subcontractors since February 2014 and will include recommendations for compliance. To be discussed: • Raising the minimum wage to $10.10

• Fair pay & safe workplaces

• Non-Retaliation for disclosure of compensation

• Data compensation collection tool

• Sexual orientation, gender identity, sex discrimination

• New audit scheduling letter and itemized listing

littler.com • Littler Mendelson Littler Nashville • 333 Commerce Street, Suite 1450, Nashville, TN 37201 • 615.383.3033 Littler Memphis • 3725 Champion Hills Drive, Suite 3000, Memphis TN 38125 • 901.795.6695

ABOUT LITTLER: Littler is the largest global employment and labor law practice with more than 1,000 attorneys in over 60 offices worldwide. Littler represents management in all aspects of employment and labor law and serves as a single source solution provider to the global employer community. Consistently recognized in the industry as a leading and innovative law practice, Littler has been litigating, mediating and negotiating some of the most influential employment law cases and labor contracts on record for over 70 years. Littler is the collective trade name for an international legal practice, the practicing entities of which are separate and distinct professional firms.. For more information, please visit www.littler.com.

How Am I Doing?

Why Praise and Feedback Matter to Workplace Safety and Productivity By DR. CHARLIE CARTWRIGHT

Praise and feedback are essential catalysts for all good things in the employer/employee relationship. They help day-to-day work remain aligned with company goals, inspire and motivate employees, build trust and accountability, encourage empathy, and create mutual respect. Conversely, their absence can generate apathy, increase employee turnover, stifle productivity, erode customer loyalty, and sabotage competitiveness.

Although communication is understood to be among the top interpersonal or “soft” leadership skills essential for fostering good employer/employee relationships and positively impacting business outcomes, two-thirds of employees say they have too little interaction with their boss, according to a recent Leadership IQ study.1 Specifically, praise and feedback are critical but often overlooked pieces of the communication puzzle, with 67 percent who say they get too little positive feedback from their boss, and 51 percent who say they get too little constructive feedback. From the perspective of insurance and risk management, regular praise and feedback can translate into a host of positive outcomes, such as: • The ability to gain buy-in for workplace health and safety programs. • A reduction in the frequency of accidents and injuries. • Improved employee relations. • Shorter lost time duration when there are injuries.

The absence of praise and feedback can generate apathy, increase employee turnover, stifle productivity, erode customer loyalty, and sabotage competitiveness.

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In fact, how people feel about their company and their level of satisfaction with their work can impact just about every line item on a P & L statement. Keep in mind that your people may not care about your goals until you care about theirs. Is this important to the bottom line? You bet it is! A Harris Interactive survey found that 81 percent of employees say they’re motivated to work harder when their boss shows appreciation for their work2—a statistic that sounds like increased productivity to me. What about turnover? The same study reported that 53 percent of employees say they would stay longer at their company if they felt more appreciation from their boss. Similarly, a 2012 survey by the American Psychological Association found that one-half of all employees intended to search for new jobs because they felt undervalued.3 In a 2006 research study, Margaret Greenberg and Dana Arakawa of the University of Pennsylvania found that managers who provided frequent recognition and encouragement saw a 31 percent increase in productivity.4 A 2011 Gallup survey found that employees who received regular praise were more productive, loyal, engaged, safe, and received higher customer satisfaction scores than those who did not.5 Gallup also found that managers who gave little or no feedback to their workers failed to engage 98 percent of them; 40 percent of those employees reported that they were very unhappy—a problem that Gallup estimates costs employers between $440 and $550 billion annually.6 According to Gallup, the top 25 percent of teams (or the best-managed) reported nearly 50 percent fewer accidents, 41 percent fewer quality-defects, and significantly lower health care costs compared to the bottom 25 percent of teams (or the worst-managed).7 Although praise and feedback are closely related, for the purposes of this paper, praise is defined as recognition of a meaningful contribution or a job well done, whereas feedback includes giving employees information concerning how they are doing and guidance in order to better perform their duties. Feedback also may include more general input about his/her role, a particular project, a related business issue, or the company’s performance overall. Clearly there is an important point where praise and feedback intersect. Most employees don’t simply want to know how well they are doing at their jobs. They want to know how what they are doing fits into the overall goals of the department and company, what they can or should be doing differently, and the kinds of impact they are making. In fact, according to a Harvard Business Review survey, 70 percent of respondents ranked “having a clear understanding of how their job contributes to strategy” as the second-most important driver of engagement along with “senior leadership continually updating/communicating strategy.” About the same number ranked “business goals communicated company-wide and understood” as the third-most important driver.9

Research from Wichita State University found the top five motivating factors in the workplace to be praise-related yet scarcely ever used by managers.8 From among those employees surveyed:

81%

76%

58%

78%

92%

seldom or never received public praise.

seldom or never received written thanks from their manager.

rarely or never received praise from their manager.

rarely or never received a promotion due to exceptional performance.

rarely or never participated in a meeting designed to build morale.

Still, according to Leadership IQ, 53 percent of employees say that when their boss does praise excellent performance, the feedback does not provide enough useful information to help them repeat it.1 Explains researcher and bestselling author Tom Rath, “…If you want people to understand that you value their contributions and that they are important, the recognition and praise you provide must have meaning that is specific to each individual.”

In the absence of feedback, people will fill in the blanks with a negative. They will assume you don’t care about them or don’t like them. -Pat Summit Interestingly, Gallup reports that employees respond better to negative feedback than to no feedback at all— those receiving predominantly negative feedback from their manager are 20 times more likely to be engaged than those receiving little or no feedback.10 The legendary Tennessee Lady Vols basketball coach Pat Summitt probably put it best: “In the absence of feedback, people will fill in the blanks with a negative. They will assume you don’t care about them or don’t like them.” This is great counsel coming from a leader and coach who won 1,098 college basketball games and eight national championships spanning four decades. In the absence of praise and feedback, employees start to wonder (and often aloud): “Am I valued here? Does my employer respect me and my work? Should I continue to work this hard if my efforts go unnoticed because no one cares anyway?” If managers don’t communicate effectively, employees will surely craft their own narrative. So what can leaders do about closing the praise and feedback gap so that employees don't automatically fill in the blanks with negatives? Don’t wait until the next performance review. Especially in today’s challenging post-recession environment where job security seems tenuous for many, employees crave even more frequent and greater amounts of feedback. Continuous, everyday communication is essential for telling employees what you are thinking, letting them know how they are doing, and providing suggestions for improvement. The cost is negligible, and the action is as simple as having a conversation. This type of communication must become part of a company’s everyday business practice in addition to more formalized mechanisms for praise and feedback. In other words, it must become a part of the company culture. Especially when it comes to people, companies may need to focus less on larger programs that can unintentionally make simple, highly effective actions overly complicated, and instead reinforce the basics of good, honest communication.

HOW TO GET STARTED Having trouble finding the right words? Some leaders have difficulty expressing praise or knowing how to provide constructive feedback. A 2014 Leadership IQ study finds that 81 percent of leaders avoid giving tough feedback because they’re afraid the recipient will respond badly.11 There are ways to overcome this. The following is a list of best practices that you can begin implementing today. Be thoughtful. However, don’t agonize over saying exactly the right thing. You will be pleased with the response you receive from being consistently genuine, sincere, and speaking from the heart. Be specific. Give constructive, fact-based feedback that employees can use. The reason for providing feedback is to help improve poor performance or reinforce what employees are doing well so that they can replicate it. Make it two-way. Ask open-ended questions about the employee’s thinking, perspective, and progress on current projects, etc. Then provide input. The key here is to let them do most of the talking. Schedule time. Make it a part of your regular daily or weekly plan. Schedule time to check in, provide feedback, or acknowledge the work of one or two people on your team. By making this a habit, your people will know it is coming. They will begin to look forward to it and will be prepared with useful information for you as well. Share the praise. Make it a point to acknowledge an individual’s effort or progress in front of peers or other leaders to shine a spotlight on the employee’s accomplishments. Newsletters, social media, and intranet sites are excellent vehicles for sharing. Shoot them a text. A properly timed and worded text message has the power to move mountains! Send a personal note. Handwritten notes of thanks when someone completes a project, makes a client presentation, wins new business, or represents the company publicly in some capacity are a great way to acknowledge a job well done! Finally, reflect on all of this, consider your actions, and then forget about trying to follow the advice— simply let its message be reflected in your ongoing interactions with employees. Over time, without much forethought or planning, you'll find that praise and feedback become a natural part of your leadership style, as well as a boon to a more productive, profitable, and positive work environment.

REFERENCES 1 Leadership IQ, Washington, DC (2009). 2 Harris Interactive, Rochester, NY (2013). 3 Stress In The Workplace. American Psychological Association, Washington, DC (2012). 4 Greenberg, M. H. and Arakawa, D. (2006). Optimistic Managers & Their Influence on Productivity & Employee Engagement in a Technology Organization. University of Pennsylvania, Philadelphia, PA. 5 Gallup, Inc., Washington, DC (2011).

6 Gallup, Inc., Washington, DC (2009). 7 State of the American Workplace, Employee Engagement Insights for U.S. Business Leaders, Gallup, Inc. (2013). 8 Wichita State University. 9 The Impact of Employee Engagement on Performance, Harvard Business Review. (2013). 10 Gallup, Inc., Washington, DC (2009). 11 Leadership IQ, Washington,DC (2014).

Ashley Pace

Lockton’s Memphis Office 901 757 6902 apace@lockton.com

Brad Owens

Lockton’s Memphis Office 901 757 6901 Bowens@lockton.com

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Individual retirement accounts are available to virtually any wage earner at any salary, up to certain income limits. They are funded completely by individual contributions. IRAs are usually held in an account with a bank, brokerage firm, insurance company, mutual fund company, credit union, or savings association. They provide either a lump-sum payment or periodic withdrawals upon retirement. There are two basic types of IRAs: traditional and Roth. Contributions to traditional IRAs may be tax deductible and are taxed upon withdrawal, whereas contributions to Roth IRAs are not tax deductible but qualified withdrawals are tax-free.

What Are My

Retirement Planning Options? By CHARLES SIMS, JR

here are a variety of retirement planning options that can meet your needs. Your employer funds some; you fund some. Bear in mind that, in most cases, early withdrawals before age 59½ may be subject to a 10% federal income tax penalty. The latest date to begin required minimum distributions is usually April 1 of the year after you turn age 70½. In most cases, withdrawals are taxed as ordinary income. This list describes 10 of the most common planning options.

A defined benefit pension normally provides a specific monthly benefit from the time you retire until you die. This monthly benefit is usually a percentage of your final salary multiplied by the number of years you’ve been with the company. Defined benefit pensions are usually funded completely by your employer. A money purchase pension provides either a lump-sum payment or a series of monthly payments. The size of this benefit depends on the size of the contributions to the plan. Your employer normally funds money purchase pension plans, although some will allow employee contributions. Your employer may fund a profit-sharing plan; employee contributions are usually optional. Upon your retirement, you will normally receive your benefit as a lump sum. The company’s contributions — and thus your retirement benefit — may depend on the company’s profits. If a profit-sharing plan is set up as a 401(k) plan, employee contributions may be tax deductible. A savings plan provides a lump-sum payment upon your retirement. Employees fund their own savings plans, although employers may also contribute. Employees may be permitted to borrow a portion of vested benefits. If a savings plan is set up as a 401(k) plan, employee contributions may be tax deductible. Under an employee stock ownership plan (ESOP), an employer periodically contributes company stock toward an employee’s retirement plan. Upon retirement, employee stock ownership plans may provide a single payment of stock shares. Upon reaching age 55, with 10 or more years of plan participation, you must be given the option of diversifying your ESO account up to 25% of the value. This option continues until age 60, at which time you have a one-time option to diversify up to 50% of the account. Tax-sheltered annuities or 403(b) plans are offered by tax-exempt and educational organizations for the benefit of their employees. Upon retirement, employees have a choice of a lump sum or a series of monthly payments. These plans are funded by employee contributions, and these contributions are tax deductible. 16

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Self-employed plans were specifically designed for selfemployed people. They are funded completely by wage-earner contributions and provide either a lump-sum payment or periodic withdrawals upon retirement. Self-employed plans have the same investment opportunities as IRAs. Contributions to self-employed plans are tax deductible within certain generous limitations. No distinction is generally made between pension, profit-sharing, and other retirement plans established by corporations and those established by individual proprietors and partnerships. In the past, the term "Keogh plan" or "H.R. 10 plan" was used to distinguish a retirement plan established by a self-employed individual from a plan established by a corporation or other entity. However, self-employed retirement plans are now generally referred to by the same name that is used for the particular type of plan, such as a SEP IRA, SIMPLE 401(k), or selfemployed 401(k). Simplified employee pensions, or SEPs, were designed for small businesses. Like IRAs, they can provide either a lump-sum payment or periodic withdrawals upon retirement. Unlike an IRA, the employer primarily funds a SEP, although some simplified employee pensions do allow employee contributions. SEPs are usually held in the same types of accounts that hold IRAs. Employee contributions — in those SEPs that allow them — may be tax deductible. Savings Incentive Match Plans for Employees, or SIMPLE plans, were designed for small businesses. They can be set up either as IRAs or as deferred arrangements — 401(k)s. The employee funds them on a pre-tax basis, and employers are required to make matching contributions. Principal and interest accumulate tax deferred. The information in this article is not intended to be tax or legal advice, The Sims Financial Group, Inc does not provide tax advice. This information may not be relied on for the purpose of avoiding any federal tax penalties. You are encouraged to seek tax or legal advice from an independent professional advisor. The content is derived from sources believed to be accurate. Neither the information presented nor any opinion expressed constitutes a solicitation for the purchase or sale of any security.

Charles Sims, Jr President/CEO The Sims Financial Group, Inc csims@SimsFinancialGroup.com www.SimsFinancialGroup.com

Retirement Services for Today’s Realities

Effective retirement plans must address the changing expectations of employees, the uncertain nature of today’s financial markets and the always-evolving regulatory environment. Stephens Retirement Services will partner with you to develop a customized retirement solution, including asset management, regulatory compliance and administration*, that addresses today’s realities. With $4.1 billion in assets under management and decades of experience in retirement services, we will ensure that your retirement plan is as easy to manage as it is valued by your employees. To learn more, call us at 800-292-2770, email us at stephensretirementservices@stephens.com, or visit us at stephenscapitalmanagement.com *Administration is provided through an outsource partner.

CAPITAL MANAGEMENT • INVESTMENT BANKING PRIVATE WEALTH MANAGEMENT • INSURANCE • RESEARCH SALES & TRADING • PUBLIC FINANCE • PRIVATE EQUIT Y STEPHENS INC. • MEMBER NYSE, SIPC

@Stephens_Inc

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Navigating Health Reform Is Getting Tougher

Understand the shared responsibility and employer penalty rules – This is the “biggie” for 2015 for companies with 100 or more employees. If a company is considered an applicable large employer (ALE) and does not offer health coverage that is affordable and provides minimum value to full-time employees (and dependent children), it is subject to a penalty if any full-time employee receives a government subsidy for health coverage through the federal exchange. These rules were set to take effect on Jan. 1, 2014, but were delayed until this year. Companies with 50 or more employees will have to comply with these rules in 2016. Determine full-time status – If you’re a large employer as described above, it is more important now than ever to correctly identify full-time employees, to offer them coverage and to report on them each year. This is a rather simple description of a much more complicated task. Part-time and seasonal employees have to be considered in the equation, along with different measurement periods for determining full-time status. You’ll want to break out the calculator and probably make some bar graphs for this one.

By TOM HAYES

here was a time in the not-too-distant past when, as a business owner or CEO, your primary daily concerns were running an operation, taking care of customers, and managing a workforce in hopes of achieving a healthy bottom line. Doing these things well meant you might choose to offer your workforce health insurance as part of their compensation package. Times have changed and so have your obligations as an employer. Employee benefits have moved from the category of nice-tohave to must-have and failure to do so could have a negative impact on that healthy bottom line. Where employee benefits and compensation previously occupied a bullet point on page two of your annual business plan, this line item now requires its own compliance strategy, a task force, additional accounting staff, and outside consultants to predict, project and prepare for the impact of the ever-morphing law known as the Affordable Care Act.

This legislation is complicated and difficult to understand for even professionals trained to understand it. Moreover, it is harder to comply with a law that continues to be rewritten, revised and parts repealed on a seemingly monthly basis. It is, without question, regulated and, while companies scramble to stay within the swim lanes, the government agencies charged with enforcing it are adding enforcers en masse. As with other employment, discrimination and health-related laws, such as FMLA, ADA and HIPAA, someone is going to be the poster child for non-compliance and find himself punitively fined and publicly flogged in the national media. This will, no doubt, be the year mistakes are made. While companies were given a political reprieve this past year with key provisions of the law, “Pay or Play” is in play for 2015. While many large employers took the extra time to prepare, some are either just now figuring out the numerous compliance aspects required or will figure them out too late. Failing to plan in this case will truly be planning to fail. As a simple guide, these three things should be on the top of your “to-do” list in 2015: 18

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Consider plan design changes – If your current plan is grandfathered, meaning minimal changes have been made since the law was enacted in 2010, you may want to keep it that way. Grandfathered plans are exempt from some of the ACA’s mandates, which can add additional costs to your health plan. If your plan is non-grandfathered, you will want to consider the cost-sharing limits when making changes. While the annual deductible limit was repealed in 2014, the out-of-pocket maximum still applies and cannot exceed $6,600 for employee-only coverage and $13,200 for family coverage. If you have an HSA-compatible, highdeductible plan, the maximum is even lower. Additional changes for 2015 include higher contribution limits for Flexible Spending Accounts (FSAs). The limit has been raised this year from $2,500 to $2,550. Self-insured plans will continue to pay fees to a transitional reinsurance program in 2015 with these funds earmarked to help stabilize premiums in the individual exchange market. While these fees are slated to end in 2016, plans will pay $44 per enrollee per year in 2015. There is an exemption for plans that do not use a third-party administrator for claims and enrollment. With many of these regulations and reporting provisions, there are numerous caveats, exemptions and details within details that every employer should explore carefully. If your company doesn’t have a compliance plan to navigate this regulatory minefield, you should get one. Now.

Tom Hayes Employee Benefits Practice Leader Regions Insurance Group tom.hayes@regions.com www.regionsinsurance.com

Have Questions? Let’s talk. When it comes to securing the right answers to comply with the Affordable Care Act, who you ask can be every bit as important as what you ask. Let the ACA-trained professionals of the Regions Insurance Client Resource Team provide the guidance you need to steer your organization in the right direction.

Tom Hayes

Katrina McKinney

Employee Beneﬁts Practice Leader tom.hayes@regions.com 479-684-5259

Sales & Marketing Coordinator katrina.mckinney@regions.com 205-264-7177

www.regionsinsurance.com

The Coverage You Need. The Guidance You Trust.

Find Regions Insurance offices in these states: Alabama, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, South Carolina, Tennessee and Texas ©2015 Regions. Regions Insurance is an affiliate of Regions Bank. Products and services are offered by Regions Insurance, Inc., and underwritten by unaffiliated insurance companies.

BEST PRACTICES

For Protecting Employee Data In The Age Of Cybersecurity Issues By MARY MOFFATT HELMS

Consider the following scenario: Your newest Assistant in Human Resources arrives to work Monday morning and is somewhat surprised to see the office door (typically closed and locked) slightly ajar. Resolving to remind the custodial staff to close and lock the door after each cleaning, the new Assistant logs on to the computer, and notices the email account is open. Presuming it was simply a failure to close it out after a hectic Friday afternoon, the Assistant fails to notice a series of outgoing emails in the “outbox.” Only days later does the Assistant realize these emails contained sensitive employee information and were sent to an outside, unknown recipient.

I. Cybersecurity Issues - Likely Here to Stay News of cyber-attacks, security breaches and loss of employee information has been around for several years, and it seems that news of such incidents is now announced almost weekly. In 2006, Fidelity Investments reported the theft of an employee laptop which contained personal information on 196,000 current and former Hewlett-Packard Co. workers; the Fidelity employee had apparently left the computer in a rental car while in a restaurant. Even inadvertent loss of employee data can have dire consequences, such as for IBM in 2007 when tapes containing unencrypted sensitive employee information fell out of a vehicle while being transported. In 2008, someone stole a laptop from Starbucks Corporation, which contained unencrypted names, addresses and Social Security numbers of approximately 97,000 employees. While theft of employee data is not necessarily new, the more recent cyber-attacks on Sony, Target, and most recently health insurance giant, Anthem Inc., bring increased attention to the issues of cybersecurity and the vulnerability of employee information held by employers.

II. Applicable Laws and Increased Government Focus A number of laws are already in place to protect personally identifiable information. The Health Insurance Portability and Accountability Act (29 U.S.C. §1181 et seq. and 42 U.S.C. § 1320d et seq.) (“HIPAA”) applies to certain covered entities regarding certain health-related information. 20

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Although a full discussion of HIPAA is beyond the scope of this article, the HIPAA breach notification rule requires covered entities and their business associates to provide notification following a breach of unsecured protected health information. The Fair and Accurate Credit Transactions Act (15 U.S.C. § 1601 et seq.) (“FACTA”) requires financial institutions to take certain steps to protect consumer credit information. FACTA amended the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) (“FCRA”), to require certain safeguards to protect information in or from consumer reports, such as criminal background checks that include information regarding credit worthiness, credit standing, character, general reputation, personal character or mode of living. FACTA requires employers who use such information to properly dispose of it by taking “reasonable measures to protect against unauthorized access to or use of the information.” The U.S. Government has seen its share of cybersecurity issues and on February 25, 2015, President Obama directed the Director of National Intelligence to establish the “Cyber Threat Intelligence Integration Center” (“CTIIC”), which will focus on issues regarding malicious foreign cyber threats and incidents affecting U.S. national interests. The CTIIC will provide integrated analysis of intelligence related to such threats or incidents in order to coordinate these efforts with the U.S. Government agencies, as well as private sector entities.

Demonstrating both Congressional and Presidential commitment to this issue, the National Cybersecurity Protection Act of 2014 (Pub.L. 113-282 (2014)) (“NCPA”) was enacted in December 2014, requiring federal agencies to notify individuals affected by a data breach “as expeditiously as practicable and without unreasonable delay” after discovery. In furtherance of his personal commitment to the issue, President Obama called for a national data breach notification law and a consumer privacy bill of rights to protect individual identity in his State of the Union Address on January 20, 2015.

III. Pro-Active Measures and Recommendations

Forty-seven states, the District of Columbia, Guam and Puerto Rico have enacted data breach notification statutes; leaving only Alabama, New Mexico, and South Dakota without such a law.

2. Identify a team to address security issues within the

In early 2014, the Kaiser Foundation Health Plan, Inc. settled a suit brought by the California Attorney General (AG), wherein the AG alleged that Kaiser violated state breach notification law by its unreasonable delay in advising affected individuals after learning that a hard drive containing personal information of Kaiser employees was sold at a thrift store. California v. Kaiser Found. Health Plan, Inc., No. RG14711370 (Cnty. Alameda Super. Ct. Jan 24, 2014). Without admitting liability, Kaiser agreed to pay $150,000 in penalties and costs, and agreed to non-monetary terms such as employee training, review and updating of encryption and related policies, and conducting related periodic audits with reports to the AG's office. Multi-state employers should become familiar with the state laws where they operate as the laws vary widely from state to state.

3. Consider encrypting data containing sensitive employee or

Employers are increasingly being sued by employees whose personal information has been compromised as the result of a security breach. For example, with two lawsuits already pending, on January 2, 2015, a third Class Action Complaint was filed against Sony seeking “actual damages” for injuries resulting from the data breach which allegedly compromised the personally identifiable information of thousands of Sony employees. Rodriguez v. Sony Pictures Ent., Inc., No. 2:15-cv0014, U.S. District Court, Central District of California. According to the Complaint, the information released included “social security numbers, names, birth dates, addresses, passport and visa information, salary information, private medical documents and information and other sensitive information.” The claim further alleges that an earlier security audit performed on Sony’s system revealed “serious gaps in Sony’s monitoring of data systems,” and that Sony failed to secure the sensitive data despite “multiple warnings from independent auditors and experts,” thereby breaching its duty to exercise reasonable care in maintaining IT security procedures, infrastructure, personnel and protocols, and by failing to dispose of sensitive employee information that it no longer needed. Although the Sony cases are in the early stages, and liability, if any, has certainly not yet been determined, the allegations in these lawsuits provide insight into public expectations regarding maintaining security of sensitive employee information. Such cases against companies experiencing data security breaches will continue to evolve and will be watched as possible harbingers of employer liability for employee data security issues.

Clearly, employers should take steps to address possible cybersecurity incidents before they occur and protect sensitive company and employee information. Some recommendations in this regard include the following:

1. Create an Incident Response policy and update existing Internet Usage, Social Media, Confidentiality, Information Security, Document Retention/Destruction and related policies; make sure these policies include a statement that there should be no expectation of privacy in the company electronic systems, which may be monitored for company data security purposes. organization (including IT as well as one officer or manager to have primary responsibility for overseeing compliance with the relevant policies.) customer information.

4. Conduct a risk assessment to assess internal system vulnerabilities and to gain an understanding of the company’s use, storage, and location of sensitive data.

5. Evaluate the potential impact of a compromise of sensitive information to the company, its employees or customers and how the risks could be reduced; for example, discontinue use/ storage of employee Social Security numbers for identification.

6. Don’t fail to consider data in mobile devices, phones, and laptops, whether company or employee-owned; require unique passwords to these devices and limit access only to employees.

7. Consider cybersecurity insurance, which may cover expenses related to management of a data breach incident. Cybersecurity policies typically cover losses arising from business interruption, destruction of data and property, and reputational harm, but may also cover losses that a company causes to its customers and others, such as harms arising from the exposure of personally identifiable information through a data breach. For more information, see the July 2014 Cybersecurity Insurance Event Readout Report, issued by the U.S. Department of Homeland Security, at www.dhs.gov/publication/ cybersecurity-insurance.

8. Train employees/managers on applicable policies; train managers regarding cybersecurity risks. Include training on appropriate content of emails and other company communications, and use of a professional tone at all times.

9. Limit access to sensitive data only to those individuals with a true need to know.

10. Keep software, firewalls, virus protection systems and operating systems up to date, engaging outside professionals to conduct periodic audits; follow recommendations from the audits, or at least be prepared to explain if not followed.

Mary Moffatt Helms, Attorney Wimberley Lawson mhelms@wimberlylawson.com www.wimberlylawson.com www.HRProfessionalsMagazine.com

Control benefits costs with voluntary coverage Hospital confinement indemnity insurance helps bridge the financial gap caused by today’s higher-cost health plans

BY B LAKE ROGERS, JIMMY HINTON, CHRIS MENARD and RICKY REYNOLDS

You’ve probably heard the line about the three most important words in real estate being “location, location and location.” In workplace benefits today, those three words are surely “cost, cost and cost.” If you’re like most human resource professionals, controlling benefits costs is one of your top priorities. At the same time, you face strong pressure to offer a competitive benefits program that will attract and keep top talent, and with good reason. Benefits are a major factor when employees decide between positions at different firms. And you’ll dig deep into the company coffers to replace a worker wooed away by your competition: The cost of hiring and training a new employee can range from $4,000 to $40,000 (executiveboard.com, September 2012). Reluctant to stop offering benefits such as health insurance, many employers have turned to cost-sharing to keep premiums down. But this strategy is putting many of America’s workers in serious financial jeopardy. The Kaiser Family Foundation reports one in three Americans struggle to pay medical bills — despite the fact that 70 percent of those who do are insured. How can this be? According to Kaiser, cost sharing is one of the primary contributors to medical debt among the insured. The average annual deductible under job-based health plans exceeded $1,200 for an individual last year. And that’s about three times what many families can come up with. A recent Federal Reserve report found only 48 percent of Americans would be able to completely cover a hypothetical emergency expense of just $400 without selling something or borrowing money. Sure, your costs have gone up, but so have your workers’: Employees’ share of health care costs have increased 150 percent over the last 10 years, now totaling about $5,000 a year (Aon Hewitt Health Care Survey, 2013). One solution to this seeming conundrum is offering your employees voluntary benefit plans designed to help bridge their financial exposure. Products such as hospital confinement indemnity plans can help offset the cost of hospitalization and some of the most common out-of-pocket expenses associated with a hospital stay. Some plans also offer additional coverage for health screenings, outpatient surgery and diagnostic procedures.

What to look for Some key features to look for in this type of coverage include: • Exempt from health care reform. Most hospital confinement indemnity plans are exempt from the market requirements in health care reform legislation. • Flexible underwriting. These plans are often offered on a guaranteed-issue basis and waive pre-existing conditions when participation requirements are met. • Higher benefit levels. Look for benefit levels that stay in line with health care costs nationwide and with increasing deductibles and out-of-pocket expenses. • Flexibility. You can tailor a plan to meet your company’s needs and choose the options your employees will value most. • Employer- or employee-paid. You can pay all or part of the premiums or allow your employees to pay the premiums. • No lifetime maximum. There’s no lifetime limit on payments made to employees. • Situs state issue. Does your company have locations in multiple states? This feature provides consistency in all employees’ plans. • Benefits aren’t tied to major medical claims. Employees can use the plan’s benefits any way they choose, including nonmedical expenses such as day care, groceries and utility bills. • Benefits are paid regardless of other coverage employees may have. Voluntary plans pay in addition to existing coverage employees already own. If you’re looking for a solution to rising benefits costs yet want to offer a strong benefits plan that helps protect your employees against financial exposure, look into hospital confinement indemnity insurance.

Blake Rogers Tennessee territory sales manager, Colonial Life & Accident Insurance Company tblakerogers@coloniallife.com or 615-696-6672

Jimmy Hinton Mississippi territory sales manager, Colonial Life & Accident Insurance Company jhhinton@coloniallife.com or 601-326-2954

Chris Menard Kentucky territory sales manager, Colonial Life & Accident Insurance Company cmenard@coloniallife.com or 502-272-9664

Ricky Reynolds Arkansas territory sales manager, Colonial Life & Accident Insurance Company rcreynolds@coloniallife.com or 501-246-8979

Crunching the numbers: how it adds up Here’s how it works. First, you increase the deductible for your health plan or the coinsurance amount to lower your major medical premium. Then you offer your employees a voluntary hospital confinement indemnity plan to help with their increased out-of-pocket expenses. They can also use the benefits for nonmedical expenses such as child care, travel and accommodations for treatment, or even mortgages and car payments. You can pay the premium for this new coverage yourself or allow employees to pay the premium. Either way, the total cost for both plans is usually less than the previous health plan alone. 22

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ABOUT COLONIAL LIFE Colonial Life & Accident Insurance Company is a market leader in providing financial protection benefits through the workplace, including disability, life, accident, cancer, critical illness and hospital confinement indemnity insurance. The company’s benefit services and education, innovative enrollment technology and personal service support more than 80,000 businesses and organizations, representing more than 3 million of America’s workers and their families. For more information, visit www.ColonialLife.com, www.facebook.com/coloniallifebenefits, www.twitter.com/coloniallife and www.linkedin.com/company/colonial-life.

Employee Use of Prescription and Over-the-Counter Drugs While at Work By E LIZABETH DARBY REHM and MATTHEW C. MYRICK

We have all read the myriad warnings on prescription medications and over-thecounter drugs, advising us that a particular medication may make us dizzy, drowsy, affect our alertness or reaction time, or warning us to avoid operating machinery or driving. Advancements in medicine have given people with various health conditions better access to prescription drugs which can help them lead productive lives when used properly, but increased access has also resulted in a dramatic increase in the abuse of prescription drugs, including opioids and central nervous system depressants. This abuse has resulted in more emergency room visits and deaths during the last decade. Because of the increase in prescription drug use and abuse and the side effects of prescription and over-the-counter medications, employers are increasingly faced with unique challenges under the Rehabilitation Act, ADA and various state disability discrimination laws — specifically, how to deal with an employee whose lawful use of a medication interferes or could interfere with his ability to perform his job duties. Employer Drug and Alcohol Policies. While many employers maintain drug and alcohol policies which prohibit the use, sale, and possession of illegal drugs, including prescription drugs obtained by an employee without a prescription, such policies often fail to or do not adequately address an employee’s use of legally prescribed and over-the-counter drugs that may affect an employee’s ability to perform his or her job duties or potentially expose an employee or others to harm. The Department of Labor developed the following model language relating to prescription and over-the-counter drug use for employers to consider including in their drug and alcohol policies: Prescription and over-the-counter drugs are not prohibited when taken in standard dosage and/or according to a physician's prescription. Any employee taking prescribed or over-the-counter medications will be responsible for consulting the prescribing physician and/or pharmacist to ascertain whether the medication may interfere with safe performance of his/her job. If the use of a medication could compromise the safety of the employee, fellow employees or the public, it is the employee's responsibility to use appropriate personnel procedures (e.g., call in sick, use leave, request change of duty, notify supervisor, notify company doctor) to avoid unsafe workplace practices. The illegal or unauthorized use of prescription drugs is prohibited. It is a violation of our drug-free workplace policy to intentionally misuse and/or abuse prescription medications. Appropriate disciplinary action will be taken if job performance deterioration and/or other accidents occur. See http://www.dol.gov/elaws/asp/drugfree/drugs/screen22.asp

(ADA) advises that although asking every employee what prescription drug medications the employee is taking would generally not be job-related and consistent with business necessity, under limited circumstances an employer could “demonstrate that an employee’s inability or impaired ability to perform essential functions [based on lawful prescription drug use] will result in a direct threat.” The Guidance recognizes an employer could require employees whose duties affect “public safety,” such as police officers who carry weapons or airline pilots, to report prescription drugs that could affect their ability to perform their duties without posing a direct threat. Most likely, employers may lawfully require employees other than those holding positions affecting public safety to notify the employer of prescription drug use that could affect their ability to perform their job. But before implementing or revising a drug policy to include limitations on the use of lawfully prescribed medications and over-the-counter drugs, employers should require human resources to work carefully with management to determine which positions, if any, should be covered by a prescription or over-the-counter drug policy. While asking employees who operate heavy equipment whether they take medications that can affect motor skills is arguably job-related and consistent with business necessity, asking a secretary or receptionist is likely prohibited. The Department of Transportation’s (“DOT”) Drug and Alcohol Guidelines state that employees using prescribed medications must meet the following minimum standards to perform safety-sensitive functions: 1. The medication must be prescribed for the employee by a licensed medical practitioner; 2. The treating/prescribing medical practitioner must make a good faith judgment that use of the prescribed drug at the prescribed or authorized dosage is consistent with the safe performance of the employee’s safety sensitive duties; 3. The substance is being used at the prescribed or authorized dosage; and 4. If being treated by more than one medical practitioner, at least one of the treating or prescribing practitioners is aware of all the employee’s prescribed medications and has determined that the use of the medication is consistent with the safe performance of the employee’s duties. See What Employees Need to Know about DOT Drug and Alcohol Testing, http://www.dot.gov/sites/dot.dev/files/docs/ODAPC%20EmployeeHandbook%20En.pdf. Employers other than those governed by DOT regulations may want to consider adopting some of these same requirements for employees performing dangerous work that may be affected by the use of certain prescription medications. What Should an Employer Do if an Employee is Taking Medications that May Pose a Direct Threat? Employers must remember their obligations to accommodate employees under the Rehabilitation Act, ADA and various state disability discrimination laws. Rearranging job duties, providing leave time while an employee is on a particular medication and transferring an employee to a vacant position may all be good options. Reasonable accommodation is not one size fits all, and employers should seek help from their own doctors, and the employee’s doctors in determining whether a reasonable accommodation exists.

Analyzing Your Company’s Needs. While the above language is probably sufficient for many employers, employers with Department of Transportation (“DOT”) safety-sensitive employees or employers with employees performing high-risk duties may need policies that impose more comprehensive obligations on employees taking prescription or over-the-counter drugs. Employers are rightfully cautious about any inquiry into whether an employee is taking prescription drugs. Indeed, the Rehabilitation Act, the ADA and state disability laws prohibit asking disability-related questions, such as whether an employee uses prescription drugs, unless the questions are both job-related and consistent with business necessity. The EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act 24

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Elizabeth Darby Rehm The Kullman Firm edr@kullmanlaw.com www.kullmanlaw.com

Matthew C. Myrick The Kullman Firm mcm@kullmanlaw.com www.kullmanlaw.com

You’re invited to attend the

5th Annual

Human Resources & Employment Law Spring Conference

May 6, 2015 8 a.m. to 3:30 p.m. Union University Carl Grant Event Center 1050 Union University Dr. Jackson, TN 38305

Presented by: THE WEST TENNESSEE SOCIETY FOR HUMAN RESOURCE MANAGEMENT In coordination with: THE LAW FIRM OF RAINEY, KIZER, REVIERE & BELL, P.L.C.

Join us for an informative day where you will explore crucial HR compliance topics including: -

Case Studies of Recent Employment Law Cases The Pre-Employment Process: Background and Reference Checks, Physicals, and Testing FLSA Compliance – Exempt vs Non-Exempt, Interns, Training Time, and More Understanding EEOC/THRC and Responding to a Charge Exploring the Anatomy of an Employment Lawsuit

Lunch is provided. Take advantage of our impressive showcase of HRrelated exhibitors. Door prizes and more. Registration Fee:

$75 for WTSHRM Members $100 for non-WTSHRM Members Join WTSHRM for only $25 at: wtshrm.shrm.org/join wtshrm.shrm.org/events

The registration deadline is May 1, 2015. Register early as seating is limited. You may pay by check or credit card. Questions: eamicone@raineykizer.com This program has been submitted to provide up to 5.5 recertification credit hours through HRCI and SHRM.

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�

Unintended Consequences:

How Your Bonus Plan May Create Overtime Pay Liability By GREGORY J. NORTHEN

As the economy continues to improve and the potential for employee mobility increases, many employers are either

considering or beginning to utilize bonus plans for a variety of purposes, including employee performance or attendance

incentives, employee retention or purely to reward workers. Bonus pay continues to be an important facet of employee

relations and recruiting, and effective use of these benefits

will likely boost your companies’ overall welfare. However, improper bonus calculations can create a potential for liability for unwary employers under the Fair Labor Standards Act (FLSA). This article addresses important considerations in establishing or revising your company’s bonus plan and the potential impact on overtime pay. The FLSA’s Regular Rate. The FLSA mandates that employees must be paid for all hours worked at their regular rate of pay for all hours worked under 40 in a workweek. An employee’s regular rate of pay is determined by adding all hours worked in a workweek and dividing it by the total amount of pay the employee received for that work. If any overtime pay is required for hours exceeding 40 in the workweek, then that overtime premium pay (1½ times hourly rate) must also be included in the regular rate calculation. Thus, any change to total amount of compensation an employee earns in a week may affect the employee’s regular rate of both hourly pay and overtime pay. Bonus Pay Under the FLSA. For this analysis, it is critical to determine whether a current or proposed bonus plan is a “discretionary” bonus or a “non-discretionary” bonus. This is because the FLSA requires 26

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that non-discretionary bonus pay is considered to be an employee’s wages that must be calculated into an employees’ regular rate of pay. If a bonus payment is completely discretionary, then it is not considered wages and therefore does not affect an employee’s regular rate of pay. The FLSA establishes that a “discretionary bonus” is one where both the fact that payment is to be made and the amount of the payment are determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement or promise causing the employee to expect such payments regularly. Many employers intend to offer discretionary bonuses yet, because the employer “does not retain discretion both as to the fact of payment and to the amount until a time quite close to the end of the period,” many times such bonuses would be considered non-discretionary. FLSA regulations provide that “non-discretionary” bonuses are those bonuses that are “announced to employees to induce them to work more steadily or more rapidly or more efficiently or to remain with the firm … and are regarded as part of the regular rate of pay.” Attendance bonuses, individual or group production bonuses, bonuses for quality and accuracy of work, bonuses contingent upon the employee's continuing in employment until the time the payment is to be made and the like fall within this category. Thus, these payments are wages and must be included in the calculation of an employee’s regular rate of pay for increases to overtime. The FLSA allows for bonuses to be paid weekly, monthly or annually, at the employer’s choosing. However, if a non-discretionary bonus is paid other than weekly, then the employer is still required to adjust its employees’ payrolls to reflect any bonus pay, retroactively, and to increase the amount of both hourly and overtime pay for each employee receiving the bonus payments. In these circumstances, if the total amount of the bonus can be allocated to the particular workweeks in which the bonus pay was earned,

then the employer must adjust each employee’s regular rate of hourly and overtime pay for those weeks by increasing the total amount of compensation earned for that pay period. In many cases, this specific allocation of bonus pay earnings cannot be ascertained by an employer. There, the FLSA allows for “other reasonable and equitable methods of allocation.” For example, the particular facts may show that it would be reasonable to assume that the bonus pay at issue was earned for each week worked during the applicable period. If so, then the employees must receive, in addition to the bonus payment, an additional amount of compensation for each workweek that he or she worked overtime during the period, which is equal to a rate of one-half of the increased hourly rate of pay allocable to the bonus for that week multiplied by the number of statutory overtime hours worked during the week. For visual learners, consider this formula:

Legal Challenges are Coming at HR Professionals from Every Direction

STEP 1: Total Bonus ∕ Number of Weeks in Bonus Period = $A (weekly bonus amount); STEP 2: $A ∕ Number of Hours Worked in Each Week = $B (increased weekly regular rate of pay); STEP 3: $B ∕ 2 = $C (increased overtime rate of pay); and STEP 4: $C x Number of Overtime Worked Each Week = $D (extra overtime pay owed). In the foregoing formula, “D” represents the amount of increased overtime pay that will be required for each workweek that an employee eligible for bonus pay will be owed as increased overtime compensation, which must be computed for every employee in every week. Notably, there will be no increased pay for weeks where an employee works no overtime. Again, this analysis assumes that the bonus pay is non-discretionary, as discussed above. Failure to pay these amounts to employees will likely be identified in instances where a former or disgruntled employee chooses to consult an employment attorney and/or the local Department of Labor office. Exemptions. Of course, exceptions to the overtime pay adjustment rules exist because it would be too simple otherwise, right? Bonus plans that provide for bonus pay as a percentage of employees’ total earnings in a particular period do not require any re-computation of employees’ rates of pay so long as the total earnings include both straight time hours worked and overtime hours worked, if any. In addition, the FLSA exempts genuine gifts to employees, profit-sharing, thrift and savings plans, and other irrevocable contributions to bona fide benefit plans. Each of these exemptions is governed by various FLSA regulations. In conclusion, prudent employers will consider the purposes for which they propose a bonus plan, if any, and evaluate the impact such pay may have on employees’ overall compensation. Once again, bonus plans utilized properly may be a boost for your company’s overall performance. Ignoring the obligations imposed by such plans under the FLSA, however, may end up creating many unintended consequences.

That’s Why Rainey Kizer Makes Your Business Our Concern As the issues facing HR executives become more frequent, challenging, and complex each year, you need a law firm that provides advice individualized for your specific needs. This is why you should know the employment-law attorneys at Rainey, Kizer, Reviere & Bell PLC. For over 30 years, our AV-rated firm has advised businesses, nonprofit organizations, and government agencies on all aspects of employment law. To learn more, please call.

r a i n e y k i z e r . c o m

Memphis 901-333-8101 Gregory J. Northen, Associate Cross, Gunter, Witherspoon, & Galchus, P.C. gnorthen@cgwg.com www.cgwg.com

Jackson 731-423-2414

T e n n e s s e e d o e s n o t c e r t i f y s p e c i a l i s t s i n t h e a r e a o f e m p l o y m e n t l a w .

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Look for a positive take away from every situation

7 Habits of Highly Resilient People By HARVEY DEUTSCHENDORF

“ The greatest glory in living lies not in never falling, but in rising every time we fall.” ~Nelson Mandela~ Success is seldom a straight road; it almost always involves many detours and dead ends. It takes tenacity and determination to keep going, but those that do will eventually reach their destination. For example, Thomas Edison failed over 1000 times but continued on despite being ridiculed by the media and those around him. What is it about those that refuse to quit long after most would have given up that makes them different? There are a number of attributes that consistently stand out amongst those who tenaciously follow their own path in life.

Have a highly developed sense of self People who are able to develop a strong sense of who they are and what matters to them are much better able to resist external influences that will keep many people from reaching their potential. They are able to draw strength from within and therefore less likely to be influenced by what others think of them. This strong inner strength helps them deflect criticism, alienation, ridicule and other factors that everyone who forges their own path, inevitably faces. While they do make strong connections with others they have powerful internal filters that allows them to block out and ignore information they don’t find useful or of benefit to them. They are internally driven and believe that they are the best person to know and decide what is best for them.

When things don’t go according to plan, resilient people look for the learning in the situation and the lesson they can take away. They don’t view failure as final, rather a necessary learning step that will take them further along the path. Instead of taking setbacks personally, they are seen as an inevitable part of the learning process and mentally prepare themselves to deal with them. Resilient people do not lose the lesson when they fail to achieve their objectives. They are mentally prepared for setbacks and expect the goals that they set will require a lot of time effort and therefore lose little enthusiasm or confidence when things don’t go according to plan.

Take a long term view Resilient people are prepared for the long haul, fully realizing that anything worth achieving will be difficult and will take a great deal of time, effort and persistence. Despite not seeing any immediate results of their efforts, they are keenly aware that what their lives will look like in the future will be determined by their efforts today. Their strong sense of the future motivates them to take action even when they see no immediate benefit and don’t feel very motivated in the moment.

Have highly developed sense of purpose Whether it is a belief in a higher power, a strong sense of purpose, or a great sense of humor, resilient people have sources of strength they can rely on to get them through difficult situations. This decreases their sense to belong and rely upon others for motivation. They see their lives beyond the everyday routine and strongly feel the need to follow their own vision. Their motivation is intrinsic and they cannot be easily dissuaded from their chosen path by others.

Don’t get frightened by uncomfortable thoughts or not having the answers Most people believe that not knowing how to do something and not being able to, are one and the same thing. Highly resilient people don’t let not knowing how to do something stop them. They believe that they will find a way. They have faith in their ability to overcome whatever obstacles are in their path. Expecting to find new situations uncomfortable and difficult, they are willing to accept this as part of the process.

Selective in whom they look to for guidance and inspiration

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www.bakerdonelson.com THIS IS AN ADVERTISEMENT. Ben Adams is Chairman and CEO of Baker Donelson and is located in our Memphis office, 165 Madison Avenue, Suite 2000, Memphis, TN 38103. Phone 901.526.2000. ©2015 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

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Highly resilient people don’t suffer fools. It’s not that they never look to others for guidance and direction, it’s that they are very selective in who they chose to follow. They look for mentorship in people who have achieved greatly and whom they admire. Once they have found the people they chose to follow, they soak up all the information, guidance and inspiration they can by reading their books and listening to their spoken messages for insight.

Find healthy ways to recharge and nurture themselves Resilient people are no less susceptible to pressures and life’s stressors than anyone else, but they have developed healthy coping mechanisms they know can be counted on. Whether it is meditation, exercise or an all-encompassing hobby, they have proven methods that allow them to recharge their energy and get back into pursuing their passion. Personal growth and development for them is not a passing interest or flavor of the month, it is a way of life.

Harvey Deutschendorf Emotional Intelligence Expert, Speaker, and Author of The Other Kind of Smart Harvey.eiguy@shaw.ca www.theotherkindofsmart.com Twitter@theeiguy

Employers Embrace Population Health Management By MURRAY L. HARBER

The issue of managing an employer’s health costs is not a new concern; however their approaches to addressing the issues are evolving. The leading employers across the south and US have been dropping costshifting strategies for building employer health management initiatives for their workplaces which are showing great results. The next evolution employers are investigating is to create a population health approach which looks at data to help stratify their population and engage employees and their family members into appropriate health behaviors and value-based healthcare. Human Resources professionals are now spending more time creating meaningful employer benefits and the next step is population health. No matter if you are self-insured or fullyinsured, knowing the key drivers of your health plan can help you design your plan to provide more value and offer appropriate programs. It starts with really understanding your health plan data and zeroing in on the key drivers of cost.

Population Health The Institute for Health Technology Transformation has a model for Population Health that includes planning, data collection, stratification, patient engagement, team-based interventions, and outcomes measurement. Employers looking to make real changes in cost should and need to embrace this strategy to target the highest cost conditions and promote healthy behaviors to health plan participants as well as ensure quality care is occurring at the provider level. When you look at your data, you stratify your population into three levels of focus – primary, secondary, and tertiary. Primary prevention focuses on keeping the healthy people healthy by encouraging healthy behaviors and good consumer choices. Secondary prevention is all about preventing conditions by reducing risk factors through effective programming and resources alignment. Tertiary prevention is a focus on effective condition and case management as to reduce the high cost of poor quality care and waste.

An Employer’s Perspective Southern Farm Bureau Life Insurance Company is moving toward a Population Health Management approach. Their efforts to build an employer health management strategy has been effective in keeping the rise in cost minimal and has actual leveled off over the past few years. Now, they are taking the next step by working on their population health strategy to gain even greater results for the 75% of their costs which occur in the healthcare marketplace.

‘‘

In trying to balance the cost of providing health insurance and protect the investment that both the company and employees have in health care, we are expanding our vision in the way we manage our population’s health. This vision will lead us to providing quality care by using data analysis and predictive modeling to enhance our health and wellness programs and therefore plan participant’s outcomes. Our partnership with Southern Health Network and Medical Analysis will be proactive in coordinating the best care with our eye on efficient cost control to enhance the focus on strong clinical results, individual accountability and transparency.” Billy Sims, VP of Human Resources, Southern Farm Bureau Life Insurance Company

Other employers, such as Hol-Mac Corporation is Bay Springs, MS are moving toward a Population Health Management model as well. Maury Hull, VP of Human Resources of Hol-Mac, says “As a self-funded health plan, we provide many tools and focused opportunities such as convenient access to health care which drives positive employee engagement”.

Power of Partnership Employers are beginning to integrate traditionally separated benefits programs by leveraging the value of partnership to reduce waste and improve the effective utilization and delivery of health-related programs and services. For example, the Southern Farm Bureau Life Insurance’s initiative is bringing together several quality vendors for their population health system. The partners include Southern Health Network, Medical Analysis, and Premier Medical Group. Southern Health Network has its roots in providing effective diabetes management for employers using data analytics and is expanding its model for comprehensive population health management. Medical Analysis has long been providing quality on-site clinical care to employers such as Viking Range, Beau Rivage and now with Southern Farm Bureau Life Insurance. Premier Medical Group has some of the state’s leading Internal Medicine physicians, which will direct care for chronic conditions and complicated case management. The power of this collaboration is in the value created from partnership.

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Our recent partnership with Southern Health Network will advance our services through cutting edge population health management. These types of initiatives are changing the way health care is delivered using effective data analytics and resource alignment for improved health outcomes.” Todd Garlington, VP of Development, Medical Analysis New models of health care are appearing as employers are seeking answers to the growing cost of providing health insurance as an employee benefit. To optimize the value of investment, they must continue to create effective employer health management strategies at the workplace while also building greater value into their health plans through comprehensive population health management. Human Resources professionals are quickly learning the best ways to craft their health benefits strategy by reading HR Professional’s Magazine and attending learning opportunities on these topics.

Murray L. Harber Executive Director Mississippi Business Group on Health murraylynnharber@gmail.com www.msbgh.org www.HRProfessionalsMagazine.com

How To Develop a Culture of Health For Successful Worksite Wellness Programs By CRISTIE UPSHAW TRAVIS, DR. KATHY TUBERVILLE and RENEE S. FRAZIER

here is considerable debate about whether worksite wellness programs are effective in improving health and in reducing health benefit costs. Supporters argue that if employees are healthier they are less likely to develop chronic diseases that are linked to lifestyle choices. Skeptics counter that many worksite wellness approaches actually increase costs and don’t deliver on the promise of reducing health benefit cost trends. Both of these viewpoints can be correct, especially if the issue is effective execution of worksite wellness programs. If worksite wellness programs are implemented merely as cost control measures laid on top of, or even integrated into, health benefits and are not a reflection of a core value of the organization, then they are likely to be less effective. When these same programs are wrapped within a culture of health they become a part of the fabric of the organization and engage employees more effectively.

What is a Culture of Health? “A culture of health is viewed as one in which individuals and social entities (e.g., households, organizations) are able to make healthy life choices within a larger social environment that values, provides, and promotes options that are capable of producing health and wellbeing for everyone regardless of background or environment. In short, the healthy choice becomes the valued and easy choice” (Robert Wood Johnson Foundation, 2014).

What would your organization look like if you had a culture of health? • Your organization would have policies, programs, and benefits that promote and support the health of your employees. • Employees would be proactive in making choices that lead to a healthy lifestyle. • Good health would be evident across all of your operating divisions, locations, and job positions. • You would have a present, able, and productive employee workforce all contributing to a “healthy bottom line”. • Your employee turnover rate would be low. • Your finances would be less burdened by excessive and unwarranted health care spending.

How Do Employers Create a Culture of Health? If you accept that a culture of health is beneficial, the question is how do you create such a culture? Here are suggested steps: 1. Get CEO and leadership commitment. The CEO and senior leaders are the face and voice for the organization and need to “talk the talk” about the importance of health to the organization, its employees, and it’s bottom line; they can provide the financial and human resources needed to implement policies and programs; and they need to “walk the walk” by being first in line at health fairs, actively participating in worksite challenges, eating healthy at business meetings. 2. Select a road map to guide your efforts. Having an evidence-based road map that incorporates the key policies, programs and benefits that you need to support the health of your employees will help you address all of the key components and drive deeper toward a culture of health. The American Heart Association Fit Friendly Worksite, the CEO Cancer Gold Standard, and Healthier Tennessee’s Small Starts @ Work program are all free to use and provide clear direction through implementation checklists. 30

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3. Select easy to implement and sustainable approaches. Many of the highly impactful options you have under these programs are easy to implement, such as a healthy meetings/event policy. Others can be combined into one action, such as an employee newsletter that offers tips on healthy eating AND physical activity. Some are “one and done” such as mapping out a walking route. Each of the programs listed in #2 require annual renewal which helps you stay on track and spur innovation and expansion.

Are Others Creating Cultures of Health? The great news is that across Memphis and Shelby County many organizations are creating cultures of health.

Supporting Employers The Memphis Business Group on Health (MBGH), in support of Healthy Shelby and Healthier Tennessee, helps employers create and sustain these cultures of health across Memphis and Shelby County through their CEO Culture of Health initiative. Each of the three suggested steps are incorporated into the initiative and MBGH provides complimentary technical assistance to get employers started by selecting a program and identifying which of the options are easiest for them to implement. According to Cristie Upshaw Travis, “60 area CEOs, with over 66,000 employees, have already signed a commitment to create and sustain a culture of health and we are engaging new employers all the time. By working together across the community at the same time, it becomes easier for employers to adopt cultures of health because everyone else is doing it too!” To learn more go to www.memphisbusinessgroup.org/ ceo-culture-of-health.

Developing Leaders Focusing on the fact that capturing leadership support is the first step, students in the Fogelman College of Business and Economics (FCBE) at the University of Memphis are experiencing an innovative introduction to the culture of health while they pursue their undergraduate studies in business. Dean Rajiv Grover lays out his vision this way, “If our students can better understand the importance of health and become more personally accountable, they will ultimately influence others to be more focused on the benefits of healthy lifestyles and will make our community healthier.” The Fogelman Fit program, which started in 2010, includes exercise programs between classes; encourages students to move more through frequent point of decision reminders such as “take the stairs” posters, hung by the elevators; and the Avron B. Fogelman Professional Development Center and Campbell Clinic co-sponsored “Walk for Health” and nutrition seminar. Personal fitness and health is a criterion for students who aspire to earn their Complete Professional Program certification. Under the direction of Dr. Charles Pierce, Management Department Chair, Managing Employee Wellness was added to the Human Resources Management curriculum in fall 2012. Pierce indicates, “This course is important to our curriculum as our students will soon be HR managers and need to understand the legal, programmatic, and financial implications of wellness programs in today’s organizations. We are also seeing a career focus for our students in this area of Human Resource Management and want to expose them to this growing area of our discipline.” Dr. Kathy Tuberville developed the course and partners with

industry professionals across the area to bring the practitioner perspective to the students as well as the academic aspect of developing and managing employee wellness programs. “We start the course with a health assessment, as employees would do in an actual organization, which is an “eye-opener” for most students.” Each week, there is a focus on individual accountability in addition to a broad spectrum of course topics including the legal, financial, and program development aspects of the course. The final project is a wellness fair that the students develop with external vendors and present to students in the FCBE. “Our students are learning first-hand how to change personal health habits while learning the importance of leading their employees of the future to engage in a culture of health.” Managing Employee Wellness has been successful in its first four semesters with strong student evaluations and industry participation.

Redesigning the Community Environment The Common Table Health Alliance (CTHA) knows that businesses implementing a culture of health need to have suppliers that also “get it” and can meet their needs for healthy products and services. The CTHA Preferred Choice program recruits food service providers, such as caterers and cafeterias, to offer smarter and lower calorie options. The use of menu labeling and smaller portion sizes creates transparency and gives employers the information they need to order food for their organization’s meetings and events. Renee Frazier, CEO of CTHA, puts it this way, “Using the Preferred Choice Program, employers are designing food supplier contracts with a focus on health. Making sure all catered events meet the Preferred Choice standards of 500-calorie or less entrées, 100-calorie or less snacks, and menu labeling of all catered food.” CTHA recognizes that suppliers need a successful business model in order to invest in providing healthy options. As employers create a culture of health they are helping to create that much needed demand which in turn creates more businesses that support health. The initial list of Preferred Choice caterers and cafeterias will be announced in May so check it out at www.commontablehealth.org.

The Preferred Choice program is an example of redesigning the community’s infrastructure and environment to support and even grow a culture of health. Other examples of Memphis-area activities include the City of Memphis’ Complete Streets program and their focus on increasing bike lanes; the Mid-South Regional Greenprint which supports community health and wellness through their planned use of green spaces across the area; and the Urban Land Institute-Memphis’ focus on creating walkable and healthy neighborhoods and business corridors. CTHA works across the area to connect these organizations and their work to increase community-wide effectiveness.

Call to Action Can you see now why having a culture of health, supported by a culture of health in your community, lays a foundation for more effective worksite health and wellness programs? Create and sustain this culture and worksite wellness programs support that culture and are not just laid on top of your cost control efforts.

Cristie Upshaw Travis, MSHA CEO, Memphis Business Group on Health ctravis@memphisbusinessgroup.org

Dr. Kathy Tuberville Department of Management— Fogelman College of Business and Economics University of Memphis K.Tuberville@memphis.edu

Renee S. Frazier, MHSA CEO, Common Table Health Alliance reneefrazier@commontablehealth.org

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Littler’s Tanja L. Thompson Named Office Managing Shareholder of the Memphis Office T N

Thompson serves as a co-chair of Littler’s Labor Management

(January 5, 2015) – Littler, the

Relations Practice Group. Her practice focuses on representing

world’s largest employment

companies in the area of traditional labor law. She advises her

and labor law practice repre-

clients, which range from national Fortune 500 companies to

senting management, has appointed Tanja L. Thompson as office

local employers across various industries, in remaining union-free

managing shareholder of its Memphis, TN office.

and in managing their union-represented workplaces. She has

M E M P H I S ,

“Since the formation of Littler’s Memphis office three years ago, Littler’s name recognition has been enhanced throughout

successfully represented companies throughout the country in union organizing campaigns and NLRB litigation.

Memphis and the greater Southeast, and the office is a leading

“I am pleased to step into the managing shareholder role for

labor and employment practice in the region,” said Tom Bender

Memphis,” added Thompson. “The office has flourished since

and Jeremy Roth, co-managing directors of Littler. “In addition,

its inception and I am eager to further enhance our footprint

Tanja is an exceptional lawyer, and we are excited that she will be

throughout the region.”

leading our efforts in Memphis. Her reputation and strong ties to the city’s legal and business communities will be key as we look to further expand Littler’s presence in the region.”

SISKIND SUSSER PC Tennessee’s Largest

Active in the professional community, she is a member of the American Bar Association (ABA), the Tennessee Bar Association, the Memphis Bar Association and the CUE’s Labor Relations Advisory Committee. She is an immediate past co-chair of the Committee on the Development of the Law Under the National Labor Relations Act, Labor and Employment Law Section of the ABA; a former president of the Alumni Chapter of the University of Memphis School of Law and a former barrister in the Leo

Business & Employment

Bearman, Sr. American Inn of Court. She also is a Co-Editor-

Immigration Practice

in-Chief of Bloomberg BNA’s labor law treatise, The Developing Labor Law. Thompson has been recognized for her career achievements

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by Super Lawyers magazine, the Labor Relations Institute and Martindale-Hubbell. She received her J.D. from the University of Memphis School of Law and her B.A. from Rhodes College.

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ABOUT LITTLER Littler is the largest global employment and labor law practice, with more than 1,000 attorneys in over 60 offices worldwide. Littler represents management in all aspects of employment and labor law and serves as a single-source solution provider to the global employer community. Consistently recognized in the industry as a leading and innovative law practice, Littler has been litigating, mediating and negotiating some of the most influential employment law cases and labor contracts on record for over 70 years. Littler Global is the collective trade name for an international legal practice, the practicing entities of which are separate and distinct professional firms. For more information visit: www.littler.com.

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Job Restructuring and Reasonable Accommodation Under the ADA By DALE CONDER, JR.

Debra Kauffman worked four days a week as one of two hairdressers at the Mason Point nursing home. Two days out of her four-day workweek, Kauffman brought the wheelchairbound residents from their rooms to the Mason Point beauty parlor, did their hair, and returned them to their rooms. The other two days, she mostly fixed the hair for residents who could come to the beauty parlor on their own. And she worked in the laundry, cleaned the nursing home’s bird cages, and delivered breakfast trays. But after 29 years, Ms. Kauffman had a hysterectomy to correct a prolapsed bladder. Her surgery involved the removal of her uterus, and the reconstruction of her bladder. The surgeon put a mesh lining in her abdomen to hold her bladder in place. Eight weeks after Ms. Kauffman’s surgery her doctor allowed her to return to work, but he placed a 20-pound limit on her ability to push. The wheelchair-bound residents whom she transported ranged in weight from 75 to 400 pounds. The doctor did not realize that Ms. Kauffman’s job included pushing the residents in their wheelchairs. Once the doctor learned about this aspect of Ms. Kauffman’s job, he told her that she could not do this any longer; otherwise she would tear the mesh lining loose, and this would require more surgery. Ms. Kauffman and her doctor told the employer that she could no longer push the wheelchairs. Ms. Kauffman asked the nursing home’s administrator if another employee could push the wheelchair-bound residents to and from the beauty parlor. Unfortunately for the employer—and Ms. Kauffman—the nursing home’s administrator rejected Ms. Kauffman’s request. And he told her, “we just don’t allow people to work with restrictions, and you have a restriction on here . . . . [A]s long as you’ve got the restriction we can’t employ you.” The administrator testified that the nursing home couldn’t accommodate Ms. Kauffman because an accommodation would require the nursing home to hire another employee to push the patients’ wheelchairs and that was a hardship on the employer. Ms. Kauffman also asked if she could transfer to the work in the laundry. But the administrator rejected this request without consideration. Ms. Kauffman’s request for other employees to transport the residents to the beauty parlor is an example of job restructuring. And job restructuring is an accommodation that employers must consider if the restructuring involves non-essential elements of the job. As a result of the administrator’s refusal to accommodate Ms. Kauffman’s disability, she quit. But before the nursing home hired a replacement, other employees—not newly hired employees—assisted the remaining hairdresser with transporting the wheelchair-bound patients to the beauty parlor.

Where did the administrator go wrong? The fundamental error that underlies this case was the employer’s failure to engage in the interactive process. When an employee seeks a disability-related accommodation, the employer must engage in the interactive process to determine the appropriate accommodation under the circumstances, and whether that accommodation would constitute an undue burden on the employer. But here the accommodation issue never got beyond Ms. Kauffman’s two requests and the administrator’s out-of-hand rejections. The administrator should have asked Ms. Kauffman how much time she devoted to transporting the residents, and he should have sought relevant information from other employees. With the information, he could have made an informed decision as to whether Mason Point could accommodate Ms. Kauffman without undue hardship. His failure to engage in this process led him to make uninformed decisions that forced Ms. Kauffman to quit. And the fact that the nursing home used other employees

to transport residents until it hired Ms. Kauffman’s replacement belied the administrator’s opinion that to accommodate Ms. Kauffman would have been an undue burden because this would require hiring another employee. The well-documented interactive process could have made all the difference in this case. By accumulating information regarding the transportation-ofwheelchair-bound-residents issue, the administrator could have supported the conclusion that transportation was an essential function of Kauffman’s job. If so, job restructuring would not have been required. Or if the administrator concluded that it was an undue burden to accommodate Ms. Kauffman, he would have had documentation to support his conclusion. But as it stands there was conflicting testimony as to whether transportation was an essential function; therefore, the district court erred in deciding it was an essential function of the job because conflicting testimony on a material issue cannot be resolved at the summary-judgment stage. The only thing about which there was no conflict was Mason Point’s failure to engage Ms. Kauffman in the interactive process. And the result is that the appellate court reversed the district court’s order granting the nursing home’s summary-judgment motion; this will lead to more litigation and more cost to the nursing home.

Conclusion To avoid ending up in the position of Mason Point, employers should: • Have and follow job descriptions that detail job functions; • When an employee is disabled, the employer should engage in, and document, the interactive process; • Using the job description and evidence acquired as part of the interactive process determine what are the essential functions of the job; • This enables the employer to make an informed decision as to whether job restructuring is an option; and • Following these steps will go a long way toward reaching the right conclusion, or at least a defensible conclusion.

Dale Conder, Jr., Attorney Rainey, Kizer, Bell & Reviere PLC dconder@raineykizer.com www.raineykizer.com www.HRProfessionalsMagazine.com

OCAHO Finds Company Did Not Retaliate Against Employee By BRUCE E. BUCHANAN

The Office of Chief Administrative Hearing Officer (OCAHO) recently found an employer did not unlawfully retaliate against its former employee. See Odongo v. Crossmark, Inc., 11 OCAHO no. 1236 (2014). Odongo presented an Employment Authorization Document (EAD) when she was hired by Crossmark as a project administrator. She renewed it the next year. Her next EAD was scheduled to expire on March 8, 2013.

Termination and Employee’s Response Starting 90 days in advance, Crossmark generated periodic notices to Odongo reminding her that her EAD was expiring on March 8, 2013. On March 7, Crossmark met with Odongo and stressed the need for a new EAD by the next day or she would be terminated and, if so, she should clean out her desk and return all company assets. Odongo responded her manager and company were “clueless about immigration law” and she intended to report Crossmark to USCIS to get help and training for the company. On March 8, after not receiving her EAD card, the company provided Odongo with a termination form, and she cleaned out her desk, turned in company assets, and left. Between March 9 and March 14, Crossmark sent several text messages to Odongo concerning outstanding client matters. (Crossmark provided evidence that it had previously taken similar actions with other terminated employees and later paid her $60.68 for her time.)

Employee Engages in Protected Activity? On March 12, Odongo received a text message from the USCIS that her new EAD had been approved, and she provided this information to Crossmark. (A text or approval notice is insufficient for an employer to accept as a valid EAD. The employer must receive the actual EAD card.) On the same date, Odongo sent another text message to Crossmark stating she had called “the Washington D.C. Immigration Office” and “they have an attorney on staff for worker rights who will call me back…Crossmark HR really needs education on immigration matters.” Later, Odongo called and said she was going to “contact DOJ”. Two days later, Odongo texted Crossmark to ask about applying for the project administrator position. After going online and seeing the job had been filled, she texted her former supervisor and stated the job had been “mysteriously filled after I told you I would contact DOJ about the way I was treated.”

In her complaint, Odongo asserted she was not actually terminated because after March 8 she was not scheduled to work again until March 12 (the day she received notification of her EAD renewal), and she continued to perform work for Crossmark until March 14 by responding to emails. Additionally, Odongo asserted she engaged in protected activity when she told her supervisors that “Crossmark needed training in immigration issues”, she was going to report Crossmark to USCIS; and when she told her supervisor she would be contacting DOJ.

Employer’s Defense Crossmark responded the HR employee who decided to terminate Odongo had no information that she had possibly engaged in protected activity. Furthermore, the work-related contacts with Odongo after her termination were minimal, she was paid for this time, and other terminated employees had received the same contacts. Finally, Crossmark asserted it had to terminate Odongo on March 8 because her EAD expired. Crossmark provided evidence that it had terminated 80 employees for expiration of their EAD. Crossmark also argued the decision to terminate Odongo, if her EAD was not renewed, was made in February 2013, well before any potential protected activity.

OCAHO’s Decision OCAHO found that Odongo’s statements -- that she was going to report Crossmark to USCIS, Crossmark was “clueless about immigration law” and she was going to report Crossmark to the DOJ are unprotected because there was no mention of discrimination or of OSC. OCAHO also found Odongo’s termination was a direct result of her no longer having a valid EAD, was consistent with Crossmark’s past practice, and is required under federal immigration law. OCAHO also dismissed Odongo’s argument that her answering emails after March 8 meant she was not terminated. OCAHO stated this does not establish Odongo was on the payroll, especially in light of the fact that she returned company items and received her final pay check.

Take Away This case is a classic example of how to handle an employee with an expiring EAD and it shows the importance of timing in a retaliation claim. If the protected activity is after the adverse employment action, then it cannot be unlawful retaliation.

Employee’s Charge and Complaint On March 26, Odongo filed a charge with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), which is within the Department of Justice (DOJ), alleging she was subjected to discrimination and retaliation. On May 14, OSC sent Odongo a letter advising her that she had the right to file a complaint. Odongo did so on June 28. 34

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Bruce E. Buchanan, Attorney Siskind Susser P.C. bbuchanan@visalaw.com www.visalaw.com

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