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Volume 3 : Issue 8 TM

Get More Bang for Your Benefits Bucks Jerks in the Workplace: The Legal Risks Created by Bullying

The Key to Effectively Communicating Wellness Incentive Programs

Let’s Talk About



Professionals in Employee Benefits

Whitney Allen PHR

Benefits Administrator Garver in Little Rock, AR



If you have employees, you have a reason to call us.

1715 Aaron Brenner Drive • Suite 312 • Memphis, TN 38120 • 901.526.0431 ATLANTA BALTIMORE BOSTON CHARLOTTE CHICAGO CLEVELAND COLUMBIA





Bringing Human Resources & Management Expertise to You The Tennessee Suicide Prevention Network reports that people of working age (20-64) account for 80% of all suicide deaths in Tennessee. Editor

Cynthia Y. Thompson, MBA, SPHR Publisher

The Thompson HR Firm HR Consulting and Employee Development Art Direction

Park Avenue Design Contributing Writers

Harvey Deutschendorf Latosha Dexter Voss W. Graham Mary C. Hamm Whitney C. Harmon Ben Harrington Jimmy Hinton Joann Coston-Holloway Kristi H. Johnson J. Randy Jones Jeff Kortes Ricky Reynolds Blake Rogers Dennis A. Stull Courtney Leyes Tomlinson Donna Tosches John W. Walsh Board of Advisors

Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR John E. Megley III, PhD Terri Murphy Susan Nieman Robert Pipkin Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2011 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.

Features 4 Note from the Editor 5 Profile: Whitney Allen PHR 6 HR Professionals in Employee Benefits 7 COPD: How Tennessee Employers Can Mitigate the Costs 12 Get More Bang for Your Benefits Buck 14 The Cost of Remaining Silent About Suicide in the Workplace 19 Strategic Messaging: The Key to Effectively Communicating Wellness Incentive Programs

Web Exclusive: Fear – An Employee Retention Nightmare By Jeff Kortes

Departments 10 EEOC: Let’s Talk About Sex(ts) – High Tech Sexual Harassment 20 Employee Relations: Why and Where to Conduct an Internal Investigation 22 Employee Relations: Jerks in the Workplace: The Legal Risks Created by Bullying 24 Diversity: ERGs – Adding Business Value 27 ADA: How Important are the Essential Functions of a Job? 28 Leadership: Future Organizations Will Use Shared Leadership 28 EQ: Five Ways to Spot an Emotionally Intelligent Leader 30 Retaliation: The Supreme Court Rejects Lower Causation Standard for Retaliation Claims

Industry News 4 2013 Tennessee SHRM Conference & Exposition 4 2013 AR SHRM Employment Law and Legislative Conference

Next Issue Preview of TN SHRM Conference & Exposition and the 2013 AR SHRM ELLA Conference


a note from the Editor


he focus of this issue is employee benefits and I am extremely proud of the articles and the sponsors who came together to make this one of our best issues ever! I know many of you are struggling with how to develop and communicate your organization’s benefits strategy for 2014. You will find this issue full of helpful advice and tips to help you with these challenges.

We will be presenting more in-depth information on employee benefits strategies during September and October as we present our quarterly seminar series, Strategic Leadership for HR Executives in Memphis, Little Rock, and Jackson, MS. We will keep you posted on the dates and venues. Be sure to follow us on Twitter @cythomps and Like us on Facebook (facebook/ hrprofessionals for upcoming details. I will also keep you posted on my LinkedIn page. If you are not currently connected, I invite you to connect and stay informed. As always, we keep an eye on what’s happening in the world of employment law and employee relations. Our goal is to help you find ways to prevent and resolve employee relations’ issues and prevent expensive litigation. We have many dedicated employment law attorneys who contribute monthly to this cause. We invite you to contact them should you find yourself in a situation that might require the expertise of an employment law attorney.

This month we are excited to announce a web exclusive by Jeff Kortes, “Fear . . an Employee Retention Nightmare.” Jeff explains a systematic communications strategy that will increase your employee retention and shut down the negative influences of the internal grapevine. See the green conversation bubble in the right column of Page 3 to access this very informative article. We look forward to seeing our Tennessee SHRM friends in Nashville at the 2013 TN SHRM Conference at the Gaylord Opryland Hotel & Convention Center September 15-18. Go to to register now. We will be traveling to the 2013 AR SHRM Employment Law and Legislative Conference at the Marriott in Little Rock September 18-19 and look forward to seeing our AR SHRM friends there. Register at We will bring you an exciting preview of both events in our September issue.

Cynthia Y. Thompson | Editor

2013 Tennessee SHRM Conference on the way to sell-out.


On September 15-18, Human Resources, Talent Management, Organizational Development, Compensation, Benefits, Learning, HRIS and Legal professionals from across the State will gather at Gaylord Opryland Hotel in Nashville for the 21st Annual Tennessee SHRM Conference & Exposition.

In addition, participants will have the opportunity to see and learn about new products and services from more than 150 companies exhibiting in more than 40,000 sq. ft. providing “best practices” to the challenges facing businesses like yours, while networking with nearly 1,250 professional leaders and industry experts.

The 3-day State Conference features an expanded educational agenda with more than 60 technical and educational sessions pre-approved for more than 21 HR Certification Institute sessions covering current business challenges in the areas of: • Strategic HR Management • Organizational Culture • Talent Acquisition & Staffing • Total Rewards – Compensation & Benefits • Employment Law & Legislation

But most importantly, attending this conference will allow participants to enhance their professional development, gain knowledge to deliver practical business solutions to their organization, stay abreast of current legal and legislative developments, and maximize the return on the investment their organization makes in its people—their most valuable asset.

For more information, or to register now, go to

Whitney ALLEN on the cover

Whitney Allen, PHR Benefits Administrator Garver in Little Rock, AR

Whitney Allen serves as the benefits administrator for Garver, an engineering, planning, and environmental services consulting firm. She is responsible for day-to-day employee benefit administration and works as the liaison for employees’ claims resolution for 350 employees across 17 different offices in the region. Whitney’s career began in the health insurance industry, where she frequently worked with the human resources departments of her clients. During her constant exposure to HR, Whitney recognized an opportunity to use her health insurance expertise as an HR professional by taking the job at Garver. Whitney chairs the Central Arkansas Human Resource Association’s committee on monthly programs. She is a member of the Society for Human Resource Management, an organization that has since bestowed upon her a Professional in Human Resources certification. Whitney also holds a Bachelor of Science and Master of Business Administration from John Brown University. Whitney is part of a fast-paced department with one of Arkansas's top-ranked employers, where benefits include access to an on-site wellness center and a flexible work schedule that allows employees the opportunity to use the center often. With the company's focus on healthy living and work-life balance, Whitney is able to merge her insurance experience with her on-boarding duties as she introduces new employees to Garver's great benefits. Allen has enjoyed her transition from medical insurance to human resources, and is thankful to be putting her education to use while helping people. 


HR Professionals in


Janie Warner, SR HR Advisor Regions Insurance Little Rock, AR

Janie Warner is a native Arkansan, having grown up Blytheville, Arkansas. After college, she met and married her career military husband and they began their world travels. Eventually, they settled in the Little Rock, Arkansas area as Janie continued her career in Human Resources. Janie began her HR career as a physician recruiter and has now worked in the field of Executive Management and Human Resources for more than 25 years. Janie currently serves corporate employee benefits clients as a Senior HR Advisor for Regions Insurance in Little Rock. As leader of the Regions Client Resource Team that includes four senior-level HR and law-trained professionals, she partners with clients to assist their HR staff in all areas of employee life cycle issues including regulatory compliance, policy development, training and benefits. Before joining Regions Insurance, Janie served as Vice President for Arkansas Federal Credit Union as well as Chief Administration Officer for ABC Financial Services, Inc. As a member of the adjunct faculty of Embry Riddle Aeronautical University she taught classes in the areas of HR Management, Organizational Development and Labor Relations. Janie is also a nationally recognized speaker and member of Carpenter Speakers Bureau (California) presenting to various industry groups across the country in the areas of Volunteer Board Governance, Executive Management, Leadership, Ethics and Human Resources. Ms. Warner earned a Bachelor of Arts degree in psychology from Evangel University (Springfield, Missouri) and a Masters degree in Human Resources Management from Golden Gate University in San Francisco.

Janie and her (now retired) husband have two grown children and a brand new granddaughter who is the light of their lives. 6

Chris Woolbright, PHR, CEBS

Consultant | Lockard and Williams Pascagoula, MS Chris Woolbright is a consultant with Pascagoula, MS based Third Party Administrator and Insurance Brokerage Firm, Lockard and Williams Insurance Services. He specializes in self-insured employee health plans and voluntary employee benefits. Chris became involved with SHRM in 2008 when he moved to the MS Gulf Coast. In 2009 he volunteered to be the communications chair with the local SHRM chapter, The Gulf Coast Human Resources Association. In 2010 he was elected as the vice president of the chapter and in 2011 he was elected President of the Gulf Coast Human Resources Association. Chris is currently the Revenue Generation chair for the Mississippi State Council of SHRM and remains very active with his local chapter. Chris attended Mississippi State University and received a B.S. in Political Science in 2005. Chris received his PHR certification in 2010. He also holds the CEBS, Certified Employee Benefit Specialist, designation awarded by the International Foundation of Employee Benefit Plans. In 2013 Chris was recognized as a Fellow with the IFEBP for his ongoing commitment to the employee benefits field.

Lisa K. Smith Director of Benefits | Human Resources AutoZone, Memphis, TN Lisa has 22 years of HR professional experience, with special focus on benefits design, strategy, compliance, merger and acquisition, program management, wellness and administration. She graduated from Florida State University in April 1988 with a Bachelor of Science degree majoring in English with an emphasis in Business. After graduating, she worked as an underwriter for Prudential Insurance Company in Jacksonville, Florida. It was then that she realized my passion for the health insurance industry. Some of her major accomplishments include programs aimed at smoking cessation in alliance with the American Cancer Society (ACS), weight loss and healthy babies. In developing the partnership with ACS, Lisa was invited to be the speaker at the American Cancer Society Leadership Conference, Atlanta, Georgia to speak with others about success with the Quitline Services and incentives around the program they developed. She is a member of the Greater Memphis Employee Benefits Council (GMEBC), Retail Industry Leaders Association (RILA), Retail Business Group (RBG) and the International Foundation of Employee Benefit Plans (IFEBP). In her current role at AutoZone, Lisa has the opportunity to truly make a difference. It has really allowed her to feel valued and show what she can bring to a company as a partner and Subject Matter Expert (SME). Lisa says she has truly changed the reputation and service level of the department. As with her previous director roles, Lisa heads the development and management of the entire benefits platform.


The rate of prevalence of COPD in Tennessee is 8.7 percent – the third highest in the country. Kentucky has the highest rate at 9.3 percent, while the lowest in the contiguous 48 states are Minnesota and Washington, both at 3.9 percent. Currently, the disease affects women at almost two times the rate of men (11.6 percent vs. 6.7 percent). Also, the lower a person’s income, the more likely they are to have COPD. The rate of prevalence for those making under $15,000 per year is over 19 percent, more than double the average rate of prevalence for Tennessee.

Financial Wellness Program By adding the Waddell & Reed Financial Wellness Program to your benefits package you could potentially:

• • • •

Decrease turnover Increase productivity Enhance company culture Increase participation in the company retirement plan

Financial wellness can potentially pay significant dividends to the health of your company and the quality of your employees. Let us show you how. MEMBER SIPC

Jerry Milligan, MBA 6060 Poplar Avenue Memphis, TN 38119 (901) 685-2700



Helping Tennessee Breathe Easier


By John W. Walsh


the Costs


How Tennessee Employers Can Mitigate





hronic obstructive pulmonary disease (COPD) is a progressive lung disease that affects 24 million Americans – with nearly 70 percent of this population being under the age of 65. Its symptoms include increased breathlessness, frequent coughing, wheezing, tightness in the chest, and constant clearing of the throat, all of which are frequently dismissed as signs of aging, allergies or bad colds. While smoking is the primary risk factor for COPD, exposure to second-hand smoke or pollutants and genetic factors also play a role. For HR directors, it’s important to know that COPD affects individuals at the peak of their earning and spending power – and triples employers’ health costs compared to employees without COPD. A symptomatic, undiagnosed employee may result in higher claims costs and significant productivity losses compared to an employee who has been diagnosed and is properly managing the condition. COPD causes almost as much disability as stroke, and more disability than diseases such as cancer and heart disease. For a misdiagnosed employee, what begins as an occasional sick day caused by frequent colds and respiratory infections may evolve into weeks of dealing with greater disability, leading to reduced productivity and higher medical costs due to long-term chronic illness. In 2010 the U.S. spent $29.5 billion in direct healthcare expenditures, with additional costs not captured in claims due to under-diagnosis and misdiagnosis.

The Behavioral Risk Factor Surveillance System (BRFSS) data for Tennessee showed that: • Less than 70 percent of adults with diagnosed COPD had received spirometry, a simple breathing test that is the gold standard for COPD diagnosis. • Over 60 percent of adults with any stage of diagnosed COPD said it negatively affected the quality of their lives. • 11.7 percent of adults, more than 57,000 people, with COPD were hospitalized or had an emergency room (ER) visit at least once in the last 12 months. Most of those ER visits could have been prevented with early diagnosis and proper treatment and management regimens. Other significant data included: • In 2011 there were over 20,000 hospital discharges for COPD. These hospital stays had an average length of 4.2 days and average costs of over $20,000 per stay for principal diagnosis. Costs for hospital stays among people 45-64 were higher than people over 65. • Almost 50 percent of people in Tennessee currently smoke or have a history of smoking. • Workers in mining, auto production, and farming – some of Tennessee’s major industries – have shown an increased risk for developing COPD.

How to Avoid Productivity Losses and Higher Healthcare Costs COPD is causing avoidable losses of productivity and higher than necessary healthcare costs. HR directors are well positioned to help mitigate financial costs and improve the quality of life for employees living with COPD. To begin, it’s important to consider COPD-related education and incentives, develop strategies for leveraging current health plans, engage at-risk employees and facilitate behavioral change. Educate Learn about COPD by accessing tools to better understand the full impact and implications of the disease in the workplace. The COPD Foundation has created an employer toolkit ( employertoolkit) with a calculator that employers can use to estimate how much COPD costs them and the potential savings that could result from better management. Disease education can teach patients how to prevent or lessen the frequency and severity of acute exacerbations of COPD (a flare-up), thereby decreasing sick days and increasing productivity while at work. Individuals who fail to seek treatment for their flare-ups from their primary care physicians are more likely to be admitted to the hospital. Also, incomplete recovery from flare-ups may be one of the main reasons for faster lung function decline, which may speed up the pace of declining productivity, and lead to premature retirement. Incentivize Advocate a benefit plan with employee incentives – a lower cost premium share and lower out-of-pocket costs – for tests, treatments and prescriptions in exchange for following COPD preventive care and taking medication as indicated. Leverage Determine if the employee health plan includes coverage for COPDrelated care, such as pulmonary rehabilitation services, spirometry and disease management programs. Spirometry is important for avoiding a misdiagnosis and understanding the severity of the disease. Encourage employers to capitalize on health plan data that pinpoints gaps in care, and establish goals for continued improvement of the plan’s existing support services, including its ability to identify members who would benefit from coaching or self-management tools. Plans should also adopt and test strategies that improve uptake and effectiveness, such as communications through social media. 8

Engage Support and engage employees by providing information about COPD and its management. For example, provide a COPD Information Line postcard to connect them to support and education resources, and observe COPD Awareness Month every November, using resources such as those developed by the COPD Foundation and the National Heart Lung and Blood Institute. Identifying employees at risk for COPD is an important step in managing healthcare costs. Employees can answer five easy questions online to see if they are at risk at More than 2.7 million Americans have assessed their risk for COPD this way. Also, an on-site COPD screening day enables employees to receive peak flow and spirometry screening. Many adults who have COPD are misdiagnosed with asthma. Therefore, getting the right diagnosis and the appropriate treatment is critical. HR directors can play a key role in encouraging employees to identify COPD symptoms and seek the medical care they need. Facilitate The company should consider offering tobacco cessation programs, which have a high 25 percent success rate. Asking participants in a workplace tobacco cessation program if they have COPD provides the counselor with information they can use to individualize the quit approach. Furthermore, stopping smoking is the only proven method that slows the rapid rate of lung function decline. Smoke-free policies, such as limiting smoking to an area away from the building or prohibiting smoking on the worksite, protect employees from the harmful effects of second-hand smoke.

Improving Care is an Imperative COPD patients nationwide often don’t receive the care they need. A study in the journal Chest reports that COPD patients receive recommended care only about half of the time. Worse, delivery of proper care that could prevent hospitalization is severely lacking. The same study found that recommended care was provided at a higher rate for disease exacerbations than for routine care. As with chronic diseases like diabetes, when COPD patients receive poor quality care there is a corollary increase in complications related to their disease. Increased complication rates have a direct relationship to increased cost of care. Given that the average COPD patient only receives half of the care that is recommended, there is a huge opportunity to improve the quality of COPD care delivered. Such improvements can reduce the overall number of COPD complications and in turn reduce the costs associated with COPD.

Going Forward To begin the process of reducing COPD’s economic burden, HR directors must access COPD-related resources and expertise, which is critical for analyzing the status of the company wellness programs relative to COPD outcomes, facilitating the integration of tailored screening and education strategies, and helping define measurable health outcome goals to increase productivity and lower costs. Fortunately, COPD is treatable after diagnosis, and individuals with the disease can lead full and productive lives. So, companies have everything to gain by offering wellness programs that encourage early screening to facilitate earlier diagnosis. Education and health management can lessen the frequency and severity of COPD flare-ups, resulting in fewer workdays missed, reductions in hospital claims, and increased productivity at work.

John W. Walsh

President and Co-Founder of the COPD Foundation

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Harassment xu al Se

Let’s Talk About


– High Tech Sexual Harassment By Courtney Leyes Tomlinson


nthony Weiner. Brett Favre. Tiger Woods. Ken Kratz, a District Attorney from Wisconsin. Your workplace? You may be asking yourself what does a former United States Congressman accused of tweeting his private parts, a former professional football player accused of sending sexual texts to a game day hostess, a professional golfer accused of sending sexual texts to various paramours, and a D.A. who admitted to sending over 30 sexually explicit text messages to a domestic abuse victim have to do with your workplace? Everything. Because Anthony Weiner, Brett Favre, Tiger Woods, or Ken Kratz, in a figurative sense, could be your employee.

A New Era of Technology We live in an age when technology is changing daily. Apple introduces a new iPhone, iPod, or iPod seemingly everyday. There are thousands of applications for your smart phone. Your grandmother first bought a laptop, then a smart phone, and now even has a Facebook account. She’s even begun texting! Your employees can now be reached anywhere, anytime, and by anyone as people become more dependent than ever on their mobile and smart phones. Now, virtually every mobile phone has a built-in camera, video recorder, and audio recorder. Landlines are becoming a technology of the past. Employees surf social networking sites such as Facebook, Twitter, MySpace, and Pinterest while at work using company property. Employees with mobile phones can send a message within a matter of seconds. The point I am trying to make? Although the new developments in phone, internet, and mobile technology are truly ground-breaking, the developments create risks for you as an employer never before imagined.

“Sexts” and “Sexting” With the advent of new technology, a new liability with respect to sexual harassment law has emerged – the “sext.” “Sexts” or “sexting” has been coined to refer to the act of sending or receiving sexually explicit messages, videos, or photos, and courts are now recognizing sexually explicit text messages, social network messages, and emails as forms of what is now being called “texual harassment.” There are a number of 10

problems with sexting and other forms of social network communication for human resources professionals, namely that it can occur surreptitiously, in a matter of seconds, can occur outside of the workplace, and yet still be considered severe and pervasive workplace harassment. Not being vigilant can be costly. Just ask the New York Police Department. The NYPD is currently being sued by one of its police officers for $30 million in damages related to some inappropriate sexts sent by her supervisor. Specifically, the supervisor deluged her with photographs of his genitals and other suggestive sexts such as “I wish I was was strapped to ur leg after seeing you in those tights. LOL.” Or ask a large electronics store chain. This chain just settled a sexting case for $2.3 million with the Equal Employment Opportunity Commission in August, 2012. In that suit, a supervisor frequently sent one of his subordinates sexually explicit text messages propositioning her and commenting on her body. Both the employee and another supervisor who reported the harassment were fired. Or ask a California-based producer of gourmet food products. This company just settled with the EEOC for $535,000.00 based on the sexual harassment claims of four employees. These claims were premised, in part, on a supervisor’s “sexting” them. Other significant recent lawsuits in the news include a lawsuit in Oregon brought by a former fitness club employee because she was fired for complaining about a number of sexually charged text messages she received from her supervisor, a Florida waitress suing a large restaurant chain because she claims she was sent explicit text messages and pictures from her supervisor, and a Louisiana waitress at a breakfast chain suing her employer because her manager alleged texted her a photograph of his genitals and threatened to stab her if she reported him. As evidenced above, it is more difficult for employers to defend cases in which an employee alleges sexual harassment by a supervisor rather than by a co-worker. If an employee alleges that the employee was subjected to a hostile work environment based on sexts sent by a co-worker, the employer is only liable if the employer knew or should have known about the textual harassment. However, in cases when an employee alleges textual harassment by a supervisor, an employer can escape liability under what is known as the Faragher/Ellerth defense,

named for the Supreme Court cases that established the defense. An employer can raise this defense so long as no tangible employment action, such as discharge or demotion, occurs as a result of the textual harassment. To establish the affirmative defense under Faragher/ Ellerth, the employer must prove: (1) “that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior"; and (2) "that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Ind., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). However, if a tangible employment action does occur, like in the examples discussed above, the employer would not be able to rely on the Faragher/Ellerth affirmative defense. Then, liability could be imputed to the employer, regardless of whether the employer was aware of the conduct. This is concerning, especially in light of both the immediacy and surreptitiousness associated with communicating electronically. In other words, a supervisor could be harassing one of your employees right under your nose.

What Should Employers Do? In spite of the above, you can limit your company’s liability under current “textual harassment” law. First, make sure you have clear electronic communications policies in place. Secondly, train your supervisors and employees on the use of electronic communications, including those communications on social network sites and those communications outside of the workplace and on their own personal devices. Make sure you have a sexual harassment policy in place and update it to address electronic harassment. This harassment policy should state that harassment (electronic or otherwise) based on sex is prohibited; if your employees suffer or observe electronic harassment they must report it; harassment and retaliation against anyone in connection with a complaint will result in discipline, up to and including termination; and sending sexually suggestive/explicit messages and pictures via email, text messages, and other social networking sites is forbidden, no matter when the messages are sent - on or off the clock.

text or email message, these messages are still company property and can be recovered by you. Further clarify that emails and text messages sent from a person account to a co-worker’s (or subordinate’s) personal or company account are covered by the company’s anti-harassment policy. Likewise, iterate that any cyber communications such as posting on a co-worker’s/subordinate’s Facebook wall either on or off the clock can still be investigated by you as potential harassment because of the professional connection between the two individuals. Take allegations of sexual harassment or sexting seriously. Do not be the next employer in the news. Conduct a prompt and thorough investigation of the allegations. Because of the permanence of electronic communications, make sure you obtain copies of the subject “sexts” and other electronic communications if possible. Take appropriate action upon the conclusion of the investigation. If you do what is outlined above – revise your policies to reflect the changing harassment law; train your supervisors and employees on your policies; and promptly and fully investigate all allegations of sexual harassment, including taking appropriate action at the conclusion of the investigation, then you have taken the reasonable steps to protecting your employees and your company against the Brett Favres, Anthony Weiners, Tiger Woodses, and Ken Kratzes.

Courtney Leyes Tomlinson, Attorney Fisher & Phillips LLP

Update your company’s electronic communications policy. Edit this policy to reflect what is permissible conduct when using companyissued devices such as mobile phones, lap tops, etc. and what is not. Include a privacy statement informing your employees there is no expectation of privacy in the use of company-issued electronic devices and that such devices may be monitored in compliance with applicable law. Additionally, notify your employees that they can be disciplined for inappropriate use of electronic communications, company property, etc., up to and including termination. Review your company’s record retention and data storage policies. Do your policies include the collection, storage and retention of text messages? If they do not, you may want to consider including text messages in the policy. Train your employees on the above policies. In addition to having these policies in place, you should communicate and reinforce these policies frequently through training, email updates, yearly policy acknowledgments, etc. In these trainings, remind your employees that everything digital leaves a footprint. Even though they may delete a









Get More Bang from Your Benefits Buck

Why a good communications strategy is a profitable investment in your employee benefits program By B lake Rogers, Jimmy Hinton and Ricky Reynolds

If your company is like most employers, it’s investing a significant amount of money in something you think is really valuable: workplace benefits for your employees. But is this investment returning a good yield — in other words, are you getting your money’s worth? Unless employees understand and appreciate the benefits their employers are providing, the answer is “probably not.” But there’s a simple solution to help ensure you get blue chip returns on your benefits investment: benefits communications.

The benefits environment is changing The benefits landscape has changed significantly in recent years. Some of the driving factors include: • A graying workforce. In 2010, the number of employees in their 50s and 60s was the largest on record, according to the Bureau of Labor Statistics. But the first of 77 million Baby Boomers turned 65 in 2011, which means more of this generation will soon be retiring. Changes like these will require employers to replace older workers with a younger workforce to make up for the loss of talent and tenure. • The recession. Workers say benefits have taken on greater importance since the recession. A 2011 survey showed 82 percent of employees say they’re more interested in knowing what their insurance benefits cover and how they work. And 74 percent say they’re more aware of what benefits they have — and don’t have — at work. • Health care reform. Provisions of the Affordable Care Act are starting to take effect. Among them are higher incentives for participation in wellness programs and the launch of health insurance exchanges in late 2013. Employees will look to their employers for even more information and guidance as the marketplace changes. These changes are forcing employers to carefully evaluate their current benefits and search for ways to improve or maintain them without increasing costs.

Employees must understand their benefits to appreciate the value of your investment The vast majority of workers don’t understand the value of the benefits they now have. Benefits today account for more than 30 percent of employee compensation, according to a March report from U.S. Bureau of Labor Statistics. Yet few employees know what it actually costs employers to provide benefits — health insurance in particular. A 2011 LIMRA study showed that even though 60 percent of employees thought they knew they cost of their medical insurance, only 15 percent could actually provide a reasonable estimate. Employees who understand their employer’s benefits investment are more likely to be satisfied with their workplace. A 2011 Unum survey showed more than four out of five workers who rated their employee benefits education highly also rated their benefits packages positively and said their workplace was an excellent or very good place to work. And employees who value their benefits packages are three times more likely to believe their employer cares about their well-being. Not knowing the true value of benefits can have serious consequences for companies. First, with an improving economy and expanding opportunities, workers are more likely to look for new jobs when they don’t fully appreciate their existing benefits. Second, employers shell out more money in training and recruiting to replace dissatisfied workers who leave their jobs. And companies that don’t effectively communicate the value of their benefits packages aren’t getting the credit they deserve. 12

Improve communication without additional investment A Colonial Life-Harris Interactive poll earlier this year of employees whose employers offer benefits affirmed several tactics that could help employees better understand their workplace benefits. These practical tips will help you improve benefits communication at your company: • Provide benefits information employees can access at home or work. Employees rarely make benefits decisions alone. Rather, they often want to discuss and make benefits choices with their families. Relying solely on workplace communication tools such as group meetings and the company intranet isn’t enough. Complement electronic communication at work with printed brochures or web-based resources that outline your benefit offerings, their purpose and their cost. • Provide benefits information that is easier to understand. Simplify the use of insurance and benefits jargon in your communications so the message is better understood. Use concrete, real-life examples to illustrate your points whenever possible. • Provide an opportunity to talk with a benefits expert on company time. A 2012 study by the Society for Human Resources Management showed only one in four employers offer this option, yet employees who participate in one-to-one counseling sessions overwhelmingly report being satisfied with the process. Post-enrollment surveys by Colonial Life show 97 percent of employees who participated in a personal counseling session say it improved or significantly improved their understanding of their benefits. • Provide benefits information more frequently. Communicating employee benefit choices once a year at annual enrollment simply isn’t enough. Companies should look for opportunities to communicate their benefits packages throughout the year as part of an overall communication strategy. • Provide benefits information more personalized to employees’ needs. Older employees nearing retirement have different benefits than younger, unmarried workers. Employees with dependent children living at home need different benefits than workers without children. A one-size-fits-all approach to communication won’t work with a diverse workforce. Many companies offer employee-paid voluntary benefits to give employees greater choice and the opportunity to customize their benefits packages to better meet their individual needs. Even without a hefty benefits education budget, you can greatly expand your benefits communication efforts by tapping into resources from benefits providers. Some carriers offer communication services at no cost in exchange for meeting individually with employees during enrollment. These partners can communicate your core benefits package, along with any voluntary products you’ve chosen to offer employees.

Maximize your benefits return Offering an attractive menu of benefits without a solid communications strategy puts your company’s investment at risk. Maximize your investment by improving the way you deliver benefits communication to your employees.

Blake Rogers Tennessee Territory Sales Manager Colonial Life & Accident Insurance Company

Jimmy Hinton Mississippi Territory Sales Manager Colonial Life & Accident Insurance Company

Ricky Reynolds Arkansas|Oklahoma Territory Sales Manager Colonial Life & Accident Insurance Company

Burch, Porter & Johnson PLLC

Labor and Employment Law Group î ľ

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We are privileged to enjoy a close relationship with our business clients who know that the firm’s members are always available to provide advice on important and sensitive employment decisions, to defend them in litigation when the need arises, and to ensure that their human resources function remains in compliance with all legal requirements.

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The Cost of Remaining Silent About Suicide in the Workplace By Donna Tosches and Ben Harrington


uicide is not a subject often discussed in the workplace; however, every business is impacted by suicide. Not talking about it does not diminish the pain or reduce the impact. In fact, by remaining silent, we miss an important opportunity to help reduce the negative impact that a death by suicide has on the healthy functioning of the workplace and the business financial bottom line. Suicide Deaths The statistics may be surprising. The Centers for Disease Control and Prevention (CDC) tracks US mortality rates including deaths by suicide. In 2010 (the most recent year for which data is available), 38,364 suicides were reported, making suicide the 10th leading cause of death for Americans. In that year, someone in the country died by suicide every 13.7 minutes. In 2009, more Americans died by suicide than from motor vehicle trafficrelated injuries. The American Foundation of Suicide Prevention ( further reports that in 2010, the highest suicide rate (18.6%) was among people 45 to 64 years old. The Tennessee Suicide Prevention Network ( reports that people of working age (ages 20-64) account for 80% of all suicide deaths in Tennessee.

The Emotional Impact of Suicide Family, friends and coworkers – the entire community is impacted by the loss of a loved one by suicide. Given this great impact, people still seem reluctant to deal with suicide directly. Some of this avoidance may stem from the stigma of mental health issues. People don’t know how to talk about it and what to do. Grief is complex and the loss associated with death by suicide heightens the intensity and impact. Often loved ones experience denial, shock, guilt, anger and depression. Supportive people are often at a loss for how to help. But taking the “head in the sand approach” about mental health in general, and suicide in particular, is far too common and too costly. The Financial Burden of Suicide In addition to the emotional impact of suicide; there is a huge financial burden as well. Many people in the workplace struggle with depression. Depression is the #1 risk factor for suicide. People who are of working age are the largest age group who attempt and die by suicide. It is important to highlight that for every one completed suicide there are 25 non-fatal suicide attempts. Some of these attempts may need significant medical intervention which directly impacts health care costs.

The following is an analysis of suicide attempts requiring intervention in TN Emergency Departments over a three year period by the Tennessee Department of Health. This table highlights that the largest group (@30 %) is commercially insured – either employed with commercial insurance or a dependent on the benefit plan. 2007 Suicide Attempts by Principal Source of Insurance (n=10,749) Free Care % Medicare % Comm. Ins. % Self Pay % TennCare % Inpatient Metros 1.4 18.9 35.4 18.9 24.1 Regions 0.2 20.5 24.6 21.0 31.4 Emergency Room Metros 0.8 7.2 26.0 30.8 31.2 Regions 0.2 10.4 26.5 25.2 33.1 Total Inpatient+ER Metros 1.1 11.3 29.3 26.6 28.7 Regions 0.2 13.6 25.9 23.9 32.5

Unknown % 1.3 2.3 3.8 4.6 2.9 3.9

2008 Suicide Attempts by Principal Source of Insurance (n=11,231) Cover TN % Free Care % Medicare % Comm. Ins. % Inpatient Metros 0.2 0.7 15.8 32.4 Regions 0.1 0.3 21.6 24.9 Emergency Room Metros 0.1 0.7 7.2 25.4 Regions 0.2 0.4 9.6 27.2 Total Inpatient+ER Metros 0.2 0.7 10.4 28.0 Regions 0.1 0.4 14.0 26.3

Self Pay % 21.6 24.5 29.9 26.6 26.9 25.9

TennCare % 28.0 26.5 33.1 32.4 31.2 30.2

Unknown % 1.2 2.1 3.4 3.7 2.6 3.1

2009 Suicide Attempts by Principal Source of Insurance (n=11,216) Cover TN % Free Care % Medicare % Comm. Ins. % Self Pay % Inpatient Metros 0.1 1.0 18.7 32.7 25.4 Regions 0.2 0.6 21.2 25.1 27.1 Emergency Room Metros 0.4 1.1 7.2 29.6 30.3 Regions 0.4 0.5 9.6 25.0 29.5 Total Inpatient+ER Metros 0.3 1.0 11.2 30.7 28.6 Regions 0.3 0.5 13.5 25.1 28.7

TennCare % 21.4 21.6 30.0 30.7 27.0 27.6

Unknown % 0.8 4.3 1.4 4.3 1.2 4.3

Suicide attempts are costly, including healthcare costs of nearly $10,000 each PLUS work loss cost of $9000 each for the employee or family per attempt. Each attempt can cost a business through their insurance / self-insurance $18-19,000. (Source: Suicide Prevention Resource Center). These costs are direct health care costs associated with emergency department admissions and other expenses incurred at medical – surgical hospitals. These costs do not include any mental health costs. This cost estimation does not factor co-workers who are grieving the loss of someone who dies by suicide and as a result need time off or who struggle with common issues of decreased concentration, decreased sleep, stress and resultant decreased productivity. National Strategy for Suicide Prevention The Office of the US Surgeon General and the National Action Alliance for Suicide Prevention has teamed together to create goals and objectives for a National Strategy for Suicide Prevention. The goals and objectives seek to create supportive environments that will promote the overall health of the population and reduce the risk for suicidal behavior. The National Strategy specifically targets employers as critical stakeholders in suicide prevention and in the appropriate response to the impact of suicide in their workforce. The highest suicide rate is among working adults. There is an opportunity to provide employees with appropriate education and resources for suicide prevention and intervention. 14

Why Offer Suicide Prevention in the Workplace In the effort to promote wellness in the workplace, it is essential to include mental health. It is not just the right thing to do but it is financially wise as well. Clear guidelines on the dissemination of prevention materials, reinforcement of the resources available to employees and steps to intervene can save the employer money and their most valuable asset – the employee. Most people spend more time with their coworkers than they do with their families. It is a community. The workplace provides a sense of belonging which is a protective factor against suicide risk. There is an inherent responsibility to provide the community with the information it needs to promote healthy functioning. In addition, a leader or coworker may be able to pick up on changes in a colleagues’ behavior and seek appropriate help. The Partnership for Workplace Mental Health reports only 15% of employers train supervisors how to recognize mental health or substance abuse concerns in the workplace, and fewer still train the supervisor how to intervene and motivate employees to use their health and EAP benefits which can restore health and productivity. If there has been a tragic loss by suicide, acknowledging the loss in a sensitive and effective manner while highlighting the benefits that are available to employees is a positive first step. Just having the resource “available” is not really enough. Employers have to promote the resources with employees to increase their use. Available Resources The Action Alliance for Suicide Prevention has designed a comprehensive blueprint for workplace suicide prevention. Your Employee Assistance Program is the perfect partner with business and Human Resource Professionals to implement these strategies. task-force/workplace/cspp. This is a process of incorporating Mental Wellness into the Wellness strategies of the business. It has already demonstrated the enormous cost of ignoring these issues and there are documented effective strategies for saving lives and saving money. If your workplace is dealing with the aftermath of a suicide, there are concrete

guidelines that can help. The Manager’s Guide to Suicide Postvention in the Workplace is free and available on line at managers-guide-to-postvention-in-workplace. Again, a strong partnership with mental health experts such as an EAP or local mental health facilities can assist in implementing these strategies. A Current Opportunity - National Suicide Awareness and Prevention Week The National Suicide Awareness and Prevention week is September 8-14th which surrounds World Suicide Prevention day, September 10. Employers can use this event as an opportunity to promote mental health in their workplace as well as share information with employees about suicide prevention. The American Association for Suicide Prevention (; the American Association of Suicidology (, the Suicide Prevention Resource Center ( and the Tennessee Suicide Prevention Network ( are all excellent places to find material to share with employees. Additional resources about mental health in the workplace may be found at: or at the Mental Health Association of East Tennessee at 865-584-9125 or

Donna Tosches, LCSW, CEAP Director of the Methodist LeBonheur Healthcare Employee Assistance Program

Ben Harrington, MA Ed Executive Director of the Mental Health Association of East Tennessee

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

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

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

Bullying and Harassment in the Modern Workplace: The developing intersection between employment law and employee behavior

This highly interactive session is designed to equip you to judge and teach appropriate workplace behavior and to take proactive steps to avoid both unnecessary workplace disruptions and legal claims. We will examine and answer the following questions: • What does “bullying” really mean? • When does “bullying” become illegal harassment? • Who’s doing the bullying? • Who’s being bullied? • Why is it currently on the rise? • When does the employer become responsible to be the behavior police? • How is the law responding to the issue? • And, what can you do to “bully-proof” your organization?

Littler Mendelson speakers: Paul E. Prather, Shareholder Elizabeth S. Rudnick, Shareholder

Friday, September 20th, 2013 Registration and Breakfast: 8:00 am – 8:30 am Program: 8:30 am – 10:00 am For more information on how to register please contact Kellie Nurko at This program is complimentary and seating is limited. • Littler Mendelson, P.C. 3725 Champion Hills Drive, Memphis, TN 38125 • 901.795.6695

While many individuals are motivated to take care of themselves and their health, most don’t! Over two thirds of American’s are overweight/ obese, 20% of Americans smoke and >35% have three or more significant risk factors. Most Americans take better care of their cars than themselves. American’s aren’t unhealthy because they don’t have facts. Information is important, but I always tell people that “if information and education changed health behaviors, we would be a county of skinny, exercising, unstressed Americans.” The basic fact is that “people need motivation to change and achieve”! Wellness incentives are the latest strategy to come to the forefront in terms of getting employees engaged. AON Hewitt just reported in a study of 800 employers in the US that 83% of the companies surveyed offer employees incentives for participating in their wellness programs. Research shows us that engagement in wellness programs with no incentives may result in dismal numbers as low as 2% to 10%, but can be significantly increased with a combination of well timed cash and impact on health benefits, producing engagement rates up to 75% to 95%. Here’s where there is still research to be done. The link between incentives and behavior change needs more study. Right now we still believe that with better engagement, the better your chances of positively impacting your employees’ health status. With the advent of the latest ACA legislation, employers now have at their fingertips, support to use incentives to encourage individuals to make changes. Beginning January 1, 2014, employers can incent employees up to 30% of the cost of their annual health plan to make changes. Many employers are now faced with the important decision “do I use carrots or sticks”? Right now only about 10% of the employers offering incentives are using sticks, while 60% are seriously looking at it as a strategy over the next three to five years.

1) The program must embraced by top leadership as a core company value. No program can be effective if the leadership is not committed to its success. Leadership must be vocal and visible. Leading by example, participating in programs, encouraging and rewarding those who do participate is key to the success of any wellness program. Wellness needs to be a part of the culture and mission of the organization.

2) There’s a meaningful “What’s in it for me?” and that value is clear and understandable…

When constructing your wellness plan, make sure you involve employees in the development of the program. Most people will tell you, “the devil many times, in the details.” The “how” you do it is as important as the “what” you do. Listening to employees is one key that helps ensure success. Construct goals that are achievable. Clearly define the steps to participate. Complex programs can be confusing. Keep it simple.

3) Consider a “softer start” before moving to contingent/ achievement based rewards.

When planning new programs, you may consider more of a phased in/soft start approach to get employees involved. For many employers making your year one focus all about rewarding participation may be the best strategy. Use year one as an adjustment year with your goal to simply get people excited about the program. You can then implement health risk achievement and contingent rewards over time. Giving employees more lead time to participate and understand will help engage more people initially and keep them engaged longer.

4) The program must be meaningful for employees at all levels, from managers to the “front line”.

You wellness program should be designed to be “inclusive”. Don’t set goals too high from day one. A BMI target of 30 will engage more people that a BMI target of 26 which for most may seem unreachable. Having short term intermediate goals (i.e. 10 pound in a year) will also keep more people involved.

5) Finally, communicate, communicate, and then communicate some more! Every organization has both formal and informal communication mechanisms. Get creative with both electronic and bulletin board materials. Hit every meeting you can with short concise messages of how people can participate and deadlines. Your goal has to be to ensure that everyone in the organizing fully understands what the program entails, program goals, deadlines, and the steps employees must take to participate.

J. Randy Jones, MPH, CHES Director Wellness Program Strategies Lifesigns/The Prevention Group



People Need Motivation to Change

If you are a company thinking about implementing incentives, there are some important keys to keep in mind. Meaningful wellness initiatives with high participation and year-over-year progress depend heavily on buy-in from top to bottom, and buy in requires the best possible communication. Incentives, recognition and penalties must be well communicated and understood. An effective worksite culture of health and corresponding messaging of values must reach all employees. Communication strategies must be tailored to culture and workforce demographics, but must generally communicate the following:


Unfortunately, not all programs successfully impact the health of their employees. One of the most intensive debates on the effectiveness of wellness programs is their true impact on health behavior change. While numerous studies support the fact that wellness programs are having a positive impact on their workforce health status, many employers are concerned that if they are to “dip their toe” into the wellness pool, how best can they guarantee positive results. In his book Zero Trends, Dee Edington refers to specific target numbers important to the success of worksite wellness programs. One important number is “participation” or what some call engagement. His states by engaging a minimum of 70% to 80%, the likelihood of success becomes much greater, referring to this concept as “herd immunity”. He’s convinced that if programs are not consistently engaging >70%, changes need to be made.


Successful Wellness Programs: Better Engagement


Wellness programs have now become a significant part of the corporate culture here in the US. The Rand Study released this year reported 92% of employers with >200 employees offered some type of wellness program.


By J. Randy Jones


The KEY to Effectively Communicating Wellness Incentives Programs


Strategic Messaging:


Emplo Relations yee

Why and When to Conduct

By Kristi H. Johnson

an Internal Investigation

Human resources investigations have become more important for reasons of personnel management, productivity, and litigation risk avoidance. The range of matters that are the subject of investigations has become broader. The benefits of conducting a proper investigation and the potential liability for mistakes during investigations are great. Investigations help resolve workplace conflict and can be decisive in determining who to discipline or terminate. Some investigations are required by law. Other investigations can lay the groundwork for a successful defense or can result in liability in employment litigation. Flawed investigations can make an employer appear callous or retaliatory. Proper investigations, though, can help portray the company in a favorable light to a jury. Unfortunately, jury decisions are influenced more by how jurors feel about the employer than the technicalities of whether the employer has violated a law.

Importance of Internal Investigations Internal investigations have taken on greater importance in recent years with new laws such as the Ledbetter Act and Sarbanes-Oxley. Courts and administrative agencies are placing a higher premium on employers implementing prompt and effective investigative mechanisms. Internal investigations may limit punitive damages, serve as an affirmative defense, or cut off liquidated damages in a subsequent lawsuit. Congress expanded recovery in cases of intentional discrimination in employment to include punitive damages with the passage of the Civil Rights Act of 1991. Punitive damages may be assessed when an employer/ defendant engages in discriminatory practices with “malice or with reckless indifference to the federally protected rights of an aggrieved individual.” An employer, however, can avoid punitive damages by showing good faith efforts to comply with Title VII. The U.S. Supreme Court has structured a standard for determining when punitive damages are appropriate, holding that an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where those decisions are contrary to the employer’s “good-faith efforts” to comply with Title VII. When assessing an employer’s “good-faith efforts,” many lower courts have looked to, among other things, the adequacy of the investigation conducted by the employer in response to workplace complaints of discrimination and harassment. The Supreme Court also has established an affirmative defense available to an employer accused of sexual harassment. The affirmative defense requires an employer to prove by a preponderance of the evidence the following two elements: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. When analyzing this affirmative defense, courts have often focused on the adequacy of the employer’s workplace investigation. A type of punitive damage called liquidated damages or double damages are awarded for “willful” violations of the Age Discrimination in Employment Act (“ADEA”), as well as the Fair Labor Standards Act (“FLSA”). The Supreme Court has held that a willful violation is one in which the employer knew, or showed reckless disregard as to whether, its conduct was prohibited by the pertinent statute. Accordingly, an employer can minimize the risk of liquidated damages by showing it undertook a prompt and careful investigation of an employee’s complaints. 20

Common Topics of Investigation Sexual harassment is probably the area of the law in which conducting investigations is most widely used and most firmly established. The employer’s ability to avoid liability for an offensive work environment requires that the employer maintain an effective policy against harassment and that the employee failed or unreasonably delayed in utilizing the employer’s effective anti-harassment policy. A key element of an effective anti-harassment policy, of course, is that an employer promptly and properly investigates allegations of harassment. Although sexual harassment investigations are the most common, employers’ anti-discrimination and anti-harassment policies should apply to all forms of discrimination, including race, national origin, religion, gender, color, and disability. Allegations of discrimination or harassment based upon any of those protected classifications are equally unlawful and should trigger prompt investigations. Retaliation claims can be more dangerous than underlying discrimination claims. Individuals who have complained of discrimination, harassment, or health and safety concerns frequently assert a claim of illegal retaliation if they are subsequently subject to discipline. Plaintiffs have a much better track record of success in litigation asserting retaliation claims than they do in litigation of discrimination claims. It is important to have a protocol that assures there will be no retaliation for initiating an investigation. Other Topics of Investigation Other subjects for employers’ investigations of employees include: • Employee theft, embezzlement or fraud; • Compliance with health and safety protocols; • Employee blogging or otherwise disparaging the company in external communications; • Theft or misuse of company trade secrets or confidential business information; • Conspiracy to engage in unfair competition; and • Abuse of leave. Complaints Made to Managers or Supervisors Written complaints forwarded to management pursuant to an employer’s policies are obvious topics for investigation. There is no such thing as an informal complaint. Expressions of dissatisfaction, concerns or reports of inappropriate behavior communicated to supervisory level employees must not be ignored simply because formal protocol was not followed. Sometimes employers receive anonymous complaints about matters that are proper subjects for workplace investigations. Anonymous complaints can have less credibility. The accuser is not willing to stand behind the allegations, is not available to provide additional details, nor available to assess his or her credibility and potentially ulterior motives. Nevertheless, employers should not ignore anonymous complaints. Employers should initiate an investigation regarding the subject of an anonymous complaint as best as it can, based upon the information available to it. Employers will sometimes learn of accusations of wrongdoing made by or directed against departed employees. Employers should investigate those allegations and not treat the subject as irrelevant or moot because the accuser or accused is no longer employed.

Matters with Implications of Criminal Conduct by Employees Sometimes the allegations may involve conduct that could be criminal law violations by the employees. Employers may refer those matters to law enforcement for investigation and potential prosecution. Employers, however, should not rely upon law enforcement to conduct the investigation. Employers have their own independent responsibility to determine if an employee committed improper conduct, regardless of whether the police or prosecutor go forward with an investigation or prosecution. There have been cases in which employers are found to have negligently retained an employee and have been liable to third parties injured by the employee when the employer referred the matter to law enforcement but failed to conduct its own investigation and corrective action. Maintaining a Culture that Encourages Complaints and Reporting A prerequisite to the employer’s ability to conduct a timely investigation is the prompt receipt of information about matters to be investigated. The ability to remedy inappropriate comments or conduct, harassment, theft, disregard of safety rules, conflict of interest, misuse of trade secrets, and other violations is undermined if those matters are never reported to higher management or Human Resources. In order to encourage the reporting, employers should create a corporate culture that inspires, indeed, thanks and rewards employees who come forward with complaints. To promote such a corporate culture, employers should: • Conduct periodic training sessions for managers and employees regarding their obligation to report, not overlook or condone or tolerate, improper conduct. • Give explicit assurances of non-retaliation. • Educate managers and supervisors that their instinctive reaction to a complaint, even if about them, must be “thank you for telling me.”

• C  onduct periodic, documented follow-up checks with those employees who brought complaints to ensure that there has not been retaliation. • Maintain open door policies. • Provide a hotline or offer anonymous reporting procedures. Comprehensive Written Policies That Include Standards of Conduct An employee handbook provides a foundation for successful investigations and successful corrective employment actions following investigations. The handbook should have a comprehensive and thoughtful set of employment policies that state the employer’s expectations and standards of conduct. It should encourage employees to communicate their concerns and warn of the disciplinary consequences of violations. An anti-harassment policy is a cornerstone of such a handbook. In addition to anti-discrimination and anti-harassment policies, the employer’s handbook should include standards of conduct that deal with a wide range of employee misconduct, including dishonesty, theft, fraud, time reporting violations, abuse of leave, conflicts of interest, misuse of company property, violations of electronic communications policy, and other topics. The success of employers’ protocol begins long before the investigations are launched. The prologue for successful investigations includes a variety of workplace policies that set the stage for timely and effective investigations. Now that we have addressed why and when to conduct an investigation, look for next month’s article on the nuts and bolts of how to conduct an investigation.

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



JERKS in the



“ Bullying is the sexual harassment of 20 years ago: Everybody knows about it, but nobody wants to admit it.� - Louis L. Maltby, President, National WorkRights Institute

2010 and 2011, reversing a trend that included years of decline. The mere fact that harassment and discrimination claims are on the rise likely indicates that bullying is also on the rise in the legal industry. An increase in Equal Employment Opportunity Commission Charges in other industries will likely follow the same trend.

What Is Workplace Bullying? One problem lawmakers will face in enacting antibullying legislation will be actually defining what constitutes "illegal bullying." Workplace bullying has been defined as persistent, offensive, abusive, intimidating or insulting behavior or unfair actions directed at another individual, causing the recipient to feel threatened, abused, humiliated or vulnerable. Workplace bullying typically takes place in the following forms:

x x x x x x x x x

Verbal abuse - shouting, name calling, swearing or malicious sarcasm; Gossiping and/or spreading lies or rumors about workers; Threats or intimidation; Teasing - about appearance, life-style, habits, attitude, or private lives; Ignoring or excluding workers; Harsh or constant criticism; Aggression; Interference with work performance; and


ver the last decade, several states have introduced workplace bullying legislation that essentially allows employees to sue for harassment without requiring a showing of discrimination. The reasoning behind such legislation suggests that companies should not allow "jerks" to control the workplace. Legally, however, this presents a very tricky issue that could potentially change the face of U.S. employment law. Critics assert that the problem with anti-bullying laws is the lines are blurred regarding what constitutes "illegal bullying," and such laws would open the floodgates for meritless lawsuits.

As an initial matter, bullying does not, in and of itself, violate Title VII or any other anti-discrimination laws. Although employees can bring hostile work environment claims, which may involve an element of bullying, these claims are brought in the context of harassment because of the victim's membership in a protected category, such as race, sex, religion, or national origin. To the contrary, anti-bullying laws would protect all workers, regardless of their membership in a protected class. Several other countries have already enacted anti-bullying laws, and it is possible that the U.S. may be headed in the same direction. As a matter of fact, Charges filed with the Equal Employment Opportunity Commission against legal sector employers for harassment and discrimination increased 8% between 22

Using technology for bullying.

All levels of employees within an organization have experienced bullying in the forms listed above, including employees against employers, supervisors against employees, employees against supervisors, employees against clients, and even clients against employees. Based on a study conducted by SHRM, about half (51%) of organizations reported that there had been incidents of bullying in their workplace. Among those organizations that experienced incidents of bullying, nearly (73%) reported verbal abuse. Additionally, 3 out of 5 organizations (62%) reported malicious gossiping and spreading lies/rumors about workers, and one-half (50%) reported threats or intimidation. Furthermore, according to a survey sponsored by the Workplace Bullying Institute in 2010, 35% of U.S. workers have experienced or witnessed bullying, 62% of bullies are men, and 38% are women. The

survey also concluded that men bully men more frequently than they bully women, and women usually bully other women. Workers ages 30-49 are the most frequent targets for workplace bullying.

What are the Risks and Effects of Workplace Bullying? First and foremost, workplace bullying can have a high economic cost for an employer. Bullying cases lead to high employee turnover, higher healthcare costs, low productivity, absenteeism, low morale, and retaliation. Typically, employees that are a subject of bullying have physical and emotional problems, including but not limited to, anxiety, depression, headaches, insomnia, etc. These employees also experience decreased morale, decreased trust, and decreased productivity. These factors either lead to increased concerns about workplace violence or leads to actual workplace violence. In fact, workplace violence is a major concern for employers currently, as evidenced by the overwhelming increase in the guns-at-work laws, which essentially allow employees to bring guns to work. The increase in the guns-at-work laws is due to the rapid influx of employee-related violence reported by many employers, which have led to injuries and even death in some cases, in workplaces across the U.S. The increase in workplace bullying, combined with an increase in laws allowing employees to bring guns to work, creates a legitimate concern for employer liability for claims arising from or related to a failure to provide a safe working environment.

Practical Tips to Minimize Workplace Bullying In order to avoid workplace bullying, employers should take the following steps:

x x x x

at the workplace. Employers should never ignore complaints to avoid the chance each complaint will further escalate. If necessary, employers can also monitor employees' emails and voicemails, if there is legitimate access to these messages, to look for messages between the bully and the alleged bullying target. Employers should also follow their typical investigation procedures and protocols, and remember to document everything! In a nutshell, employers in the U.S. should be on the lookout for antibullying laws on the horizon. In fact, employers should be proactive and start implementing anti-bullying policies and taking appropriate measures to ensure there is no bullying in the workplace. Regardless to whether anti-bullying laws are eventually enacted, bullying in the workplace is still a costly hindrance to employers' bottom line and should be avoided.

Whitney Harmon, Associate Baker Donelson

Joann Coston-Holloway Baker Donelson

Implement a workplace bullying policy; Implement a grievance process for investigating and addressing the allegations of bullying; Monitor bullying behavior to make sure such behavior stops and does not continue or escalate; and Conduct regular bullying prevention/awareness training and orientation programs.

Any steps undertaken by employers in an effort to control and minimize the risks associated with workplace bullying should be clearly communicated to employees so that employees are aware of the employer's stance on workplace bullying. There are several ways to communicate this information to employees, including through: policies in the employee handbook, employee orientation, a company code of conduct, a company intranet or website, training, staff meetings, and even emails from HR or management. Employers should also insure that employees have several reporting channels or mechanisms for reporting workplace bullying. This can include the HR Department, the target employee's direct supervisor, or the management level staff, employee relations representative within HR, a hotline or other reporting system, a union representative, if applicable. Furthermore, when investigating workplace bullying, an employer should always follow the paper trail. Employers should look for excessive grievances or sick leave requests and review exit interviews or EAP requests to determine if there is a pattern of bullying


y sit r D iv e

Employee Resource Groups –

Adding Business Value

Insurance Confusion = Lost Productivity

By Dennis A. Stull

Your non-benefit eligible employees will continue to “figure it out” during work hours if the only option you offer them is visiting the website.


Middle TN Diversity Forum (MTDF) is celebrating its 10th Anniversary this year with Jacky Akbari, Founder and Board Chair still at the helm. Diversity & Inclusion (D&I) awareness, education, economic and business development have been the priority since the inception of the MTDF. Jacky and her Advisory Council (made up of Middle TN professional who have a passion for D&I) have been providing Middle TN with cutting-edge D&I education for years now with such topics as “Tying Disability to the Bottom Line”, “Faith in the Workplace”, “The CEO Conversation on Diversity”, “Women in the Workplace” and most recently “Employee Resource Groups – Adding Business Value” with a focus on Gay Lesbian, Bi-Sexual, and Transgender (GLBT) ERGs.

Give them real help by offering Terry Deas, Director of Diversity for Cracker Barrel and Jacky Akbari

Laura Daily, Senior Vice President of Retail for Cracker Barrel welcomed the attendees and shared how “pleasing people” had led Cracker Barrel down the path of implementing ERGs. It was a renewed focus on their philosophy to be more inclusive that has become key to the company’s success whether they are looking at guests, employees, vendors or shareholders. During the ERG Event the Deputy Director of Workplace Project for the Human Rights Campaign Foundation, Deena Fidas, Michael Gonzales, Leader of Corporate Diversity & Inclusion, at Hallmark Cards, and Tan Fletcher, Technical Support Manager at Dell, addressed a range of topics about employee resource groups, from creation, challenges, and overall business impact. The overwhelming theme of the discussion was that it is important for each employee to bring his or her “authentic” self to work each and every day. This type of freedom allows organizations to not only allow the employee growth and development, but that the employee has a willingness to provide discretionary efforts to see the organiFidas, Gonzales and Fletcher zation succeed.

private exchange so they can talk to experienced people who can answer questions and help them sign up with “A Rated” Carriers OR the Government Healthcare Exchanges (when they are open).

Simply add to your employee communications and your employees can focus on their jobs and not insurance.

At the conclusion of the panel discussion, attendees were invited to continue the discussion in a roundtable event where success stories and best practices were shared by the panelists as well as the participants. At the conclusion of the half day summit, participants were encouraged to share Diversity & Inclusion Plans in an effort to help organizations who are interested in developing a D&I plan or launching an ERG. If your organization would be interested in sharing best practices please contact me at for more information.

Dennis A. Stull, SPHR, MBA 2012-1013 President MT|SHRM Nashville, TN 24

For Details contact Karen Quigley 615-430-7515

Legal Challenges are Coming at HR Professionals from Every Direction

That’s Why Rainey Kizer Makes Your Business Our Concern The issues facing Human Resources executives are becoming more frequent, more challenging, and more complex each year. Whether you are navigating the Affordable Care Act, tracking changes in the Family Medical Leave Act, or staying current with the latest revisions in workers’ compensation law, trusted attorneys are invaluable. This is why you need to get to know the employment-law attorneys at Rainey, Kizer, Reviere & Bell PLC. At Rainey Kizer, we make your business our concern. For more than 30 years, our AV-rated firm has advised businesses, non-profit organizations, and government agencies on all aspects of employment law; and represented our clients in state and federal courts and before state and federal regulatory agencies. If you would like to discuss how we can help you, please call.








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The Americans with Disabilities Act and its application in the work environment can often be one of the most challenging aspects of human resources. With the ADA Amendments Act less time is spent determining whether an employee’s impairment is actually a disability. However, human resource professionals must still make decisions regarding the essential functions of the job, whether an accommodation can be made and whether undue hardship exists. Add to that the interactive process and ADA analyses can become a complex myriad of decision making that no one wants to tackle. Consider this scenario: Employee, a full time customer service agent, suffers a non-work-related back injury in September 2007, is diagnosed with sciatica and taken off work. Employer pays Employee short-term disability (STD) benefits through December 24, 2007, the maximum duration for STD benefits. In mid-December 2007, Employee returns to work, part time, with medical restrictions that she work not more than four hours a day and limit her bending and lifting. She does so for six to eight weeks. In the meantime, her STD benefits expire and are converted to long-term disability (LTD) benefits through February 11, 2008, in accordance with a letter from her doctor opining that she would be able to return to full-time work by January 28, 2008. From mid-January on, Employee experiences difficulty working even four hours a day due to ongoing pain. She either does not work or leaves early six days in January; in February, she leaves early on the 6th and calls in sick on the 7th, due to a back spasm. The following day, her employment is terminated but she is advised that her position would remain open until the end of March 2008 should she be able to return to full-time work. She never requests to return to full-time work and subsequently files a lawsuit alleging violations of the ADA. Did the employer handle this situation correctly? Should the employer have given the employee more accommodations, i.e. leave of absence? The Sixth Circuit Court of Appeals determined that the employer’s actions did not violate the ADA. In the unpublished decision of White v. Security First Associated Agency, Inc., et al., No. 12-1287 (June 28, 2013), the court held that the employer’s actions were justified because the employee was unable to perform the essential functions of the job. In order to establish a case of discrimination under the ADA, a plaintiff must show that she is a “qualified individual” with a disability “who, with or without reasonable accommodation, can perform the essential functions” of the position she is employed in. The key issue in the White case was whether full-time work was an “essential function.” The ADA regulations state that the term “essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires.” The regulations provide guidance in the form of examples of why a job function may be considered essential. For instance, the position may exist to perform that function or it may be essential “because of the limited number of employees available among whom the performance of that job function can be distributed.” Another example given is that the function may be highly specialized and the incumbent was hired for her expertise or ability to perform the particular function. In determining whether a function is essential courts consider such evidence as the job description, the employer’s judgment, the amount of time spent performing the function, and the consequences of not performing the function. The regulations state that A job function is essential if its removal would “fundamentally alter” the position. Security First successfully established that full-time work was an essential function of the employee’s position. It had never employed a customer service agent on a part-time basis, the applicable job description stated that the position was full-time, and the employee acknowl-


By Latosha Dexter

edged that she was unable to complete the requirements of the position in a four-hour day. Further evidence was presented that other employees were assigned on a rotating basis to cover her accounts for the remaining four hours, resulting in those employees working overtime.


How Important Are the Essential Functions of a Job?

In regard to reasonable accommodation, the court found that she did not request a reasonable accommodation. Her request to continue working part-time, when she had been unable to perform the essential functions of the position while working part-time for weeks, was not a request for a reasonable accommodation. Honoring such a request essentially would have required Security First to create a new part-time position. Under the ADA, an employer is not obligated to do so. While the court’s holding is unpublished, and therefore arguably has limited precedential value, it provides some sound guidance for employers when dealing with ADA issues. The employer had in place an up-to-date written job description that detailed the essential functions of the position including the full time requirement. Employers should ensure that job descriptions are regularly reviewed, kept up-to-date and clearly delineate the essential functions of the position. What needs to happen when performing the duties of a position rather than how it gets done needs to be the primary focus when determining which elements of a job description are “essential”. Security First was also able to provide evidence that it had never employed a customer service agent on a part-time basis. Consistency is key. If there had ever been special dispensation made to allow a customer service agent to work part-time the outcome may have been different. However, the employer had consistently required full-time hours for the position. Finally, the evidence was uncontroverted that the employee could not complete her essential job duties within a four-hour work day, and that others were working overtime in order to complete her work. Basically, the accommodation made was ineffective and thus unreasonable. Often employers provide an accommodation for an employee and fail to monitor its effectiveness. Providing an accommodation does not end the interactive process. Employers should periodically check on the effectiveness of accommodations by maintaining ongoing communication with the employee and supervisors and reviewing the overall effect of the accommodation.

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



Future Organizations Will Use

“Shared Leadership”

By Voss W. Graham


ooking at successful teams in any sport, you will find a common bond within the team. Sometimes, it is called ‘chemistry’ – as if just the right mix of chemicals has created a special new formula. Other times, it is postulated, there were strong leadership tendencies provided by key players. Then everyone else responded favorably to their lead or “charisma”. I believe there is merit to the leadership issue – with one notable exception. If a team begins to heavily rely upon their selected leader – they become dependent upon the leader for their overall performance. While great leaders are necessary and very helpful to elevating the performance standards – true leadership for high performance teams is shared leadership. Let me explain using a sports analogy…when a team has “a” leader, the team becomes dependent upon the leader for their confidence and most importantly – their “will” to win! This is fine as long as the leader is focused, injury-free and having a good game. However, if the leader is unprepared, loses self-confidence or is just having a bad day – the team usually suffers and can even lose – even when they have more talent. This is the point of shared leadership – interdependence! At the pinnacle of long term team success is the principle of shared leadership. Every person takes ownership and responsibility for the overall performance of the group. They support each other and take care of their own responsibilities to insure success. Personal pride overrides fear and indecision, moving each individual to carry out the assigned duty. In business, shared leadership principles can take a group of individuals to a higher level of performance and productivity. Collaboration is one of the keys to the future success of both leaders and organizations. There are six fundamental elements for shared leadership to flourish in the business team environment. A Common Goal is the trigger mechanism for individual and team high performance in changing environments. Goals become the source of positive emotional energy used to drive challenging results. Meaning and purpose is provided by goals. Groups that “wing it” or have no goals are doomed for a life of under-performance and failure. Goals are the common bond for focused and productive effort. Without goals a person (or team) is living by the Law of Accident and wait for others to give them direction. Waiting for direction adds no value to the person or the team. Set a Goal, share it with the team and launch on moving it forward! Respect for Each Individual is the foundation of effectiveness in team performance. The key point is the understanding that each person on the team brings uniqueness to the group. This uniqueness is then honored thus creating a binding unity of the group. This creates a willingness to commit to a purpose larger than self – thus, moving everyone to the next level of performance. 28

Trust in Each Other is a unique factor to human beings. It is the feelings that we acquire regarding the abilities and integrity of individuals. Trust is the invisible bond that allows our expectations and standard to rise to higher levels. Trust connects each individual at an emotional level. When there is a lack of trust in a team, factors such as fear of failure, blame games, low self esteem and an over reliance upon rules and laws become the norm. Personal Accountability for Results is a major contributor to high performance for individuals and teams. Personal accountability is the focus upon results and outcomes over activities. Under-performing groups are focused upon doing low priority activities rather than attaining results. The lack of personal accountability – the act of achieving results and outcomes – is a key reason for under-performance. Effective Communication drives results and productivity. The key factor in making communication effective is the choices made by individuals. Most people send messages – written or spoken – in a method they understand. Unfortunately, they are missing the mark with 50 to 70% of other people. Thus, they use communication without the effectiveness factor. Time is wasted revisiting secondary clarity and understanding. The wise leader makes choices regarding the delivery of messages others will understand the first time. Discipline to stay the course is the master key to success for teams and individuals. Discipline is needed by leaders to stay on track when adversity or difficult times become obstacles for goal attainment. A lack of discipline is the leading cause of failure in business today. Effort and discipline go together in getting greater results. Staying focused upon their highest priorities takes discipline due to all the daily distraction and noise. There has been research done on identifying leadership traits for executives and future leaders within an organization. One research project identified several traits found in high performance leaders. Those traits were Personal Accountability and Self-Management. The first trait is discussed above. The second trait is closely tied to Discipline. Self-Management is defined as the ability to maintain focus upon the highest priorities until they are completed. These are identified in our assessments used to evaluate existing talent or candidates for leadership roles. Do you currently identify these traits for your leadership talent? The real question for you – Does your team share the leadership role or depend upon one or two individuals to provide the energy, passion and discipline for the winner’s edge? Action Steps for you to take regarding demonstrating Shared Leadership within your organization evolve the few key activities… • Review the last Organizational Climate Survey – look for engagement practices, effectiveness of overall communication, and respect for individuals. • Are the right people in the right positions so these people are using their strengths rather than their weaknesses during the day? • Are forums / meetings designed to encourage feedback on important projects? • Is Innovation / creativity encouraged and a regular part of meetings and group encounters? Use these questions and action steps to improve the level of collaboration. This leads to a greater probability of shared leadership within your organization. Take action today. If you need some outside collaboration, give us a call.

Voss W. Graham Sr. Business Advisor | CEO InnerActive Consulting Group, Inc.

By Harvey Deutschendorf

Research has shown us that more than 90% of top leadership performers have a high amount of emotional intelligence or E.I. The higher up the ladder that leaders are established, the more people they impact and their E.I. becomes increasingly important. The person at the top sets the atmosphere that permeates the organization, including the emotional temperature. Not only does a leader with low emotional intelligence have a negative impact on employee morale, it directly impacts staff retention. We know that the biggest reason that people give for leaving an organization is the relationship with those above them. In recognition of the importance of E.I. to budding business leaders, The Yale School of Management became the latest MBA program to begin to test prospective students on their ability to understand and manage emotions. Beginning in the fall of 2013, the admissions committee will use the results of the test to as part of the criteria that will determine if students are admitted into the program. This decision by Yale and other business schools comes about after years of extensive research and has shown that there is a strong positive relationship between one’s emotional intelligence and leadership capabilities. One of the earliest and most intense of these studies was begun at The Weatherhead School of Management at Case Western University in 1990. Students were allowed to choose competencies on which they wished to build and were provided with targeted learning plans. The results indicated that students who chose emotional intelligence competencies showed substantial improvement in these areas and after a five to seven year follow up, studies showed they had retained these skills. Not only did the follow up show retention in the competencies learned, it showed that these students were continuing to build new strengths on their own. The program had unleashed a desire in these students to continue to build upon these skills that make great leaders and showed that these skills can be acquired throughout life. Below are five ways to spot an emotionally intelligent leader. Non-Defensive and Open Insecure leaders that demonstrate low E.I. become defensive and take it personally whenever they encounter anything that appears to them as criticism and a challenge to their authority. One of the problems that leaders in organizations complain of is getting accurate information from those under them. The higher up an organization a leader is, the worse the problem becomes. Fear of upsetting their superiors with bad news, which could be taken out on the messenger, subordinates often temper and hide the worst of the situation. Having a leader who is non- defensive and open makes it easier for those under them to give them honest and straight forward information. A secure leader with a healthy dose of emotional intelligence strives to listen, understand and find out what is behind behaviors and actions of those they are responsible for managing. They listen before they respond and if they don’t understand something ask open ended questions that are meant to gather more information. As opposed to leaders with low emotional intelligence, they don’t make it about them, but look for ways to make the situation better for everyone involved. Aware of their own emotions Leaders who are oblivious to their own emotions and how they are impacted by them have no awareness of how their words and actions affect others. This can have a very devastating effect on staff morale and lower productivity. Highly emotionally intelligent leaders are aware of strong emotions and avoid speaking out of anger and frustration. If they feel the urge to give in to strong emotions in their interactions with others, they give themselves a time out, waiting until their emotions have leveled off and they have had a chance to think about the situation.


to Spot an Emotionally Intelligent Leader

Adept at picking up on the emotional state of others A skilled and empathetic leader that is aware of other’s emotions is able to use that awareness to develop stronger relationships with those they manage. Even if delivering bad news, they are able to cushion the impact by simply letting the receiver know that they are aware of how they might be feeling. Leaders with high EI are able to put themselves in place of the person receiving criticism or negative feedback, allowing them to give it in a way that might be more beneficial and less destructive. If there is something positive in the situation, they are aware of it and use it to temper the bad news. If the situation allows, they always give the employee who has made a bad decision or mistake to redeem themselves and end the conversation or meeting on a positive note. Given the opportunity to learn from their mistakes and improve themselves, many well-meaning loyal employees have gone on to become valuable members of an organization.



Available for those reporting to them Good leaders make themselves available to those reporting to them both physically and emotionally. They are responsive to the fact that there will be times that those reporting to them will be having difficulties outside of work that will impact them. Death of family members, friends, relationship breakdowns and all sorts of life crisis will affect virtually everyone at work at times. Emotionally open and secure leaders understand and are there for support during these times. They are not pushovers, however, and can be assertive when they feel they are being taken advantage of. Their awareness will help them differentiate between a legitimate need which requires empathy and someone who is trying to take advantage, in which case assertiveness is needed. Able to check their ego and allow others to shine While possessing self-confidence, high E.I. leaders do not have a need to demonstrate their own importance or value. They chose their words carefully and speak and act out of concern for their staff, and the health of the organization. They do not have the need to have their ego massaged and are not looking for ways to take credit for the work of others. Understanding that people work better when they feel appreciated, they are always looking for ways to show and give positive feedback and rewards for a job well done. Secure in their own abilities, they are not threatened by those under them and actively seek to help them work to the best of their capabilities and rise up the organization.

Harvey Deutschendorf Emotional intelligence Expert and Author of THE OTHER KIND OF SMART




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The Supreme Court Rejects Lower Causation Standard for Retaliation Claims

By Mary C. Hamm

The Supreme Court recently decided University of Tex. Southwestern Med. Ctr. v. Nassar, a pro-employer decision in which the Court held that an employee alleging retaliation must show that the unlawful retaliation would not have occurred in the absence of the wrongful action of the employer. University of Tex. Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013). Dr. Naiel Nassar was employed by the University of Texas Southwestern Medical Center as both a professor at the university and a physician at a hospital with which the university had an affiliation agreement, Parkland Memorial Hospital. Dr. Nassar alleged that another physician, Dr. Beth Levine, was biased against him based on his Middle Eastern heritage. Dr. Nassar claimed that Dr. Levine scrutinized his billing practices and productivity and made discriminatory comments, including, “Middle Easterners are lazy.” Dr. Nassar complained to Dr. Levine’s supervisor, Dr. Gregory Fitz, about her conduct. In an effort to avoid Dr. Levine, Dr. Nassar inquired about resigning from his position with the university and beginning to work for the hospital exclusively. Dr. Nassar then resigned from his position and wrote to Dr. Fitz that the reason for his resignation was Dr. Levine’s discriminatory treatment. Dr. Fitz objected to Dr. Nassar’s allegations. After Dr. Nassar was offered a position by the hospital, Dr. Fitz asserted that the offer was inconsistent with the affiliation agreement that required hospital physicians to be university faculty members. The hospital withdrew the offer to Dr. Nassar, and he subsequently brought suit under Title VII for (1) discrimination based on Dr. Levine’s alleged racially and religiously motivated harassment, which resulted in his constructive discharge, and (2) retaliation based on Dr. Fitz’s efforts to prevent Dr. Nassar from securing a position with the hospital. Dr. Nassar prevailed at trial and the jury awarded him over $400,000 in backpay and over $3 million in compensatory damages, a sum that was later reduced to $300,000. The Fifth Circuit Court of Appeals vacated the jury’s decision on the discrimination claim but affirmed the retaliation finding. The issue before the United States Supreme Court was whether Dr. Nassar was required to show that retaliation in response to Dr. Nassar’s complaints about Dr. Levine was either (1) a motivating factor or (2) a “but-for cause” for Dr. Fitz’s efforts to prevent him from obtaining the position with the hospital. The Fifth Circuit Court of Appeals held that Dr. Nassar was only required to meet the lesser burden and show that retaliation for his complaints was a “motivating factor.” 30

The Supreme Court held that a plaintiff alleging retaliation under Title VII must prove that his or her protected activity (e,g., complaining about discriminatory treatment) was a “but-for cause” of the adverse action by the employer. This holding is in line with the causation element that tort plaintiffs must meet. A plaintiff ordinarily must prove that the harm “would not have occurred in the absence of—that is, but for—the defendant’s conduct.” In other words, Dr. Nassar must show that Dr. Fitz would not have acted to keep Dr. Nassar from obtaining the hospital position in the absence of Dr. Fitz’s desire to retaliate against Dr. Nassar for complaining about discrimination. Prior to this case, the Court had not addressed the question of the causation showing required to establish liability for a Title VII retaliation claim. The Court looked to the text of Title VII’s anti-retaliation provision, which states in part that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees…because he has opposed any practice made an unlawful employment practice by this subchapter.” The Court relied on a case in which it had addressed the issue of causation in general regarding discrimination under the Age Discrimination in Employment Act of 1967 (ADEA). Gross v. FBL Financial Services, Inc., 557 U. S. 167 (2009). In Gross, the Court had held that the “requirement that an employer took adverse action ‘because of ’ age [meant] that age was the ‘reason’ that the employer decided to act,” or, in other words, that “age was the ‘but-for’ cause of the employer’s adverse decision.” According to the Court, the language in the ADEA was not dissimilar from the Title VII’s anti-retaliation provision; thus, “Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.” In its analysis of the retaliation provision of Title VII, the Court also addressed the practical concerns with adopting a lower causation standard, including the risk that employees could bring frivolous claims that would be more difficult to dismiss on summary judgment. This is a positive decision for employers because it requires employees to meet a more exacting standard in court. The opinion also serves as a practical reminder to employers to have a clear process in place for employees to complain about discrimination, to provide multiples avenues for complaints, and to enforce their anti-retaliation policies.

Mary C. Hamm, Attorney Burch, Porter, Johnson, PLLC

August 2013 hr professionals magazine digital issue  
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