February 2016 issue

Volume 6 : Issue 2 TM

www.HRProfessionalsMagazine.com

Profiles of

Top HR

2016:

A Year for

Technology Companies

HR Advocacy

Making the Leap from

Wellness to Well-Being

Janna

Rogers, RN,

SHRM-SCP, SPHR

MSSHRM Advocacy Captain

Why HR Should Expect Better

Background Screening in 2016

New SHRM

Online Certification Exam

Prep Class

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YOU’RE REALLY SHOWING OFF YOUR BEST ASSETS TODAY.

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

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What you don’t hear can still hurt you.

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

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SEATTLE TAMPA WASHINGTON, D.C.

Bringing Human Resources & Management Expertise to You Less than

25% of a person’s longevity is dictated by genes.

www.HRProfessionalsMagazine.com Editor

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

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

Park Avenue Design Contributing Writers

Mike Aitken Bruce E. Buchanan Dale Conder Chris Davis Harvey Deutschendorf Matt Ginn Murray L. Harber Jimmy Hinton Michael S. Hudson Susan McCullah Chris Menard Gary Peeples Ricky Reynolds Barbara Richman Mark Rodrigues Blake Rogers Jeff Weintraub Board of Advisors

Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR John E. Megley III, PhD Terri Murphy Susan Nieman Robert Pipkin Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles.

All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors.

HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2016 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: Janna Rogers, RN, CCM, SHRM-SCP, SPHR

16 Why HR Should Expect Better Background Screening Practices in 2016

WEB EXCLUSIVES

20 2016: A Year for HR Advocacy – The Perfect Way to Continue Momentum from 2015? SHRM Employment Law & Legislative Conference

7 Powerful Ways to Boost Your Team Performance

BY HARVEY DEUTSCHENDORF

HTTP://HRProfessionalsMagazine.com /Exclusive

22 Profiles of Top HR Technology Companies

29 Online SHRM-CP | SCP Certification Exam Prep Class 34 Tips for Building Trust in Workplace Relationships

Employee Benefits

14 Making the Leap from Wellness to Well-Being

18 District Court: Health Coverage Made Available ONLY to Wellness Program Participants is OK

Next Issue

24 Is There Value in Keeping Healthy People Healthy?

Labor and Employment Law and Legislation – Deadline to submit articles and ads is February 10

26 Resolve to Welcome Wellness

Employment Law 10 Same Sex Discrimination Under Title VII – Did the Playing Field Just Change, or Not??

17 Tennessee’s Workers’ Compensation Law and Practice 28 Short-Term Workers, Long-Term Effects

30 Mississippi Bans “Ban the Box” Legislation 32 Guidance on Internal I-9 Audits

33 USERRA and Temporary Positions

Industry News 6 Preview of ARSHRM State Conference in Rogers April 6-8 in Rogers

7 Preview of TNSHRM Strategic Leadership Conference April 8 in Nashville 8 Preview TNSHRM State Conference September 14-16 in Memphis 9 NEW SHRM CP | SCP Certification

13 Preview of 2016 SHRMGA State Conference September 18-20 in Augusta 27 Highlights of AWA | SHRM-Memphis Seminar

31 2016 MSSHRM Leadership Conference March 11-12 in Pearl www.HRProfessionalsMagazine.com

3

a note from the Editor

A

re you certified as a SHRM CP | SCP? Did you know you can now prepare for the new SHRM Certification online? I am very excited to announce that we are offering the first online SHRM certification exam prep class for the SHRM CP | SCP! Many of you have contacted me and

We are looking forward to the 2016 SHRM Employment Law and Legislative Conference in Washington, DC, on March 13-16. This is my favorite SHRM Conference! I hope you will mark your calendar and plan to attend. Mike Aitken, SHRM VP of Government Affairs, has provided an excellent article on Page 18 about SHRM’s HR advocacy efforts in 2015. Mike provides the top 10 accomplishments for 2015 from fighting changes to overtime rules to advocacy for immigration reform. I know you will enjoy this exciting article!

expressed interest in taking this class online. We are proud to be a SHRM Preferred Provider and are happy to provide this certification class for your convenience. The class begins March 3 and will meet online on Monday and Thursday from 6 PM to 7:30 PM. The deadline to register is February 25.

The cost is $995 and includes all your study materials. See Page 29 for details. If you are interested in registering for this class, please contact me at my email address below or visit our website at www.hrprofessionalsmagazine.com.

I am very honored to have Janna Rogers, HR Advocacy Captain for the MSSHRM State Council, on the cover of

We are also excited to bring you profiles of the top HR technology companies on Page 22. This is an extremely hot topic for HR professionals in 2016 as HR technology is continually changing. We are proud to bring you the profiles of some of our sponsors who are leaders in this industry. I discussed some of the important trends that you will face in 2016 during our January virtual event.

Some of the top concerns include ACA compliance, talent management, security issues related to personal devices, social media and vendor consolidation. We hope you will contact our sponsors for more information on these topics.

Don’t forget to join us February 25 at 2 PM for our monthly complimentary SHRM | HRCI virtual event sponsored by Data Facts. Watch your email for details!

our February issue. She has been a professional member of SHRM for over 25 years and has served as a dedicated volunteer for the Northwest Mississippi SHRM Chapter for many years. Janna also served as Northern District Director of MSSHRM from 2010 to 2015. You will enjoy reading about her very successful career as an HR professional that started in the healthcare industry on Page 5.

Cynthia Y. Thompson | Editor Cynthia@hrprosmagazine.com www.hrprofessionalsmagazine.com

January 2016

GMEBC Meeting

(L-R) Russ Henderson with Cigna, Linda Tripp with Advantage Investment, Regina Trainor with Vanderbilt Health, and Preston Cox with Unum. Regina was the speaker for the January 2016 meeting of the Greater Memphis Employee Benefits Council.

The 2015 Mercer Benefits Survey is the topic of the March meeting.

Contact Leigh Ann Alexander at leighann.alexander@fedex.com for more information.

4

www.HRProfessionalsMagazine.com

Janna on the cover

ROGERS

JANNA ROGERS, RN, CCM, SHRM-SCP, SPHR With beginnings in a healthcare career, Janna’s focus has continued to remain on helping others. She has been a professional member of SHRM for over 25 years. As a nurse at FedEx with years of experience in managing people, she became SPHR certified. Over the years, she obtained the lifetime SPHR certification

by HRCI, a designation no longer awarded. She has held positions of VP of Programs, President Elect and President in the local Northwest Mississippi Chapter. She has also served on the MSSHRM State Council as Northern District Director from 2010-2015. Most recently, she serves as the Advocacy Captain for the MSSHRM State Council as well as Secretary on the Northwest Chapter Board.

Often people ask Janna how she made the transition from being a Registered Nurse in the operating room to becoming a Human Resources professional. According to her, it was a natural transition that occurred over time using transferrable job skills. Nurses have a caring, helpful concern for others as do HR professionals.

Once she moved from direct patient care in nursing into insurance related lines, she obtained a Masters in Business Administration from Embry Riddle Aeronautical University while employed at FedEx in Personnel.

Janna spent over ten years at FedEx managing employee benefit plans such as disability, life, pension and profit sharing as well as analyzing and proposing new benefit options. Her nursing and insurance background have been tremendously helpful in managing benefit programs and returning employees to work from work-related injuries.

Her career has spanned over multiple industries including transportation, services, hotel, gaming, food and beverage, manufacturing, insurance, healthcare, government and entertainment. Janna recently became the Human Resources Director for the City of Southaven. Prior to that, she served the Board of Supervisors as the first HR director for Desoto County. Janna has also taught human resources at Union University and loves to excite young professionals about a diverse and exciting career in Human Resources.

Janna serves as a volunteer for many HR related events such as the MSSHRM State Conference held annually in the spring, the annual MSSHRM Leadership Conference and local job fairs sponsored by the Governor of Mississippi. She also serves as Secretary for the Board of the Desoto County Literacy Council. ď Ž

www.HRProfessionalsMagazine.com

5

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7

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9

Same-Sex Discrimination Under Title VII:

Did The Playing Field Just Change, Or Not??

By JEFF WEINTRAUB

A Little Background on Same-Sex Discrimination under Title VII

Sexual Stereotyping

Let me start with a statement: no federal court yet has found sexual orientation or transgender status to be a protected category under Title VII, the main federal antidiscrimination in employment law. Don’t misunderstand me please, I’m not saying it won’t happen tomorrow—but it hasn’t happened yet. This, of course, is my opinion, one that’s not shared by all commentators.

Perhaps the greatest confusion out there on the same-sex issue arises from stereotyping. A number of Courts of Appeals (including our own 6th Circuit) have held that Title VII is violated when an employer discriminates against, for example, an effeminate male employee who fails to conform to a traditional masculine stereotype.

In today’s workplace, employers have to recognize that they can’t insist that their male employees channel John Wayne. However, presumably, a heterosexual effeminate male could just as likely state a claim for violation of Title VII as could a homosexual effeminate male; thus, failure-toconform has sometimes been viewed by plaintiffs’ attorneys as a pale substitute for actual Title VII protection of sexual orientation itself.

For sure, someone is going to point out that the 11th Circuit just held on January 14, 2016 that transgender status is a protected category under Title VII. Well, it’s certainly true that a covey of commentators has so opined, but…

Before we take a look at what the 11th Circuit actually held, let’s discuss this topic, but only very generally—this is a limited article and doesn’t attempt to cover all the finer points of Title VII case law. First, Title VII, among other things, bars workplace discrimination and harassment on the basis of sex. So, what is “sex” under Title VII? Historically, “sex” in Title VII refers to gender or biological sex—the status of being male or female—not sexual orientation. Generally, if a supervisor discriminates against an employee “because of sex” (because the victim is a male, for example), this violates Title VII; in fact, Title VII itself makes the point clearly: “It shall be an unlawful employment practice for an employer . . . otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.”

Read this next part carefully, please—and also note that I’m not taking sides in a debate here, only stating what I believe the cases hold. “Gay-bashing,” per se, while inexcusable, nevertheless doesn’t violate Title VII. I believe in protecting victims, regardless of race, gender, sexual orientation, etc.

When there’s a bully acting out, every one of us should take a stand and protect the victim from the bully. Further, “gay-bashing” by a supervisor is also intolerable workplace abuse, i.e., the manipulation of supervisory authority over the victim. Nevertheless, if a supervisor discriminates against a homosexual because he is a homosexual (even though such conduct is unacceptable in the majority of workplaces), he’s not discriminating against the victim because he’s a male, but because he’s gay.

And again, sexual preference per se is not protected by Title VII. Is it unlawful, then, for a gay male supervisor to sexually harass a male victim? Yes, it is, but not because the victim is gay (or straight, for that matter), but because the supervisor was harassing the victim because the latter is a male. Thus, the harassment is “because of sex” and therefore illegal under Title VII. There’s really no significant difference between homosexual and heterosexual harassment.

If it’s done because of sex, it violates Title VII.

EEOC’s View The Equal Employment Opportunity Commission (EEOC) has somewhat recently taken the position that sexual orientation is a protected category under Title VII. It has stated that “because of sex” also means “because of sexual orientation or transgender status.” In my view, no federal court yet has agreed with the Commission on this point. In the federal-employee sector, the EEOC gets to act like a judge, and it has held recently that a transgender individual is protected because of transgender status. But the EEOC is not a judge in the private-sector world.

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State Statutes etc.

Some states have enacted laws protecting employees on the basis of sexual orientation, and some cities have also passed ordinances doing so (such as Memphis did, for City employees, in 2012). But these laws are not Title VII, which is what this article is focused on.

Federal Legislation ENDA, the proposed federal Employment Non-Discrimination Act that would protect sexual orientation itself, still hasn’t passed Congress, but undoubtedly lobbying efforts will continue.

Harassment as a Concept Some folks have an automatic kneejerk “of course” reaction to the question, “Is harassment illegal under Title VII?” However, harassment per se is not illegal under Title VII. To be illegal, the harassment must have been directed against a protected group. It’s no different here—in my view, same-sex harassment in the workplace becomes illegal under Title VII when it targets, for example, a particular gender.

The 11th Circuit Decision In Chavez v. Credit Nation Auto Sales, LLC, an 11th Circuit decision published on January 14, 2016, the court, according to some commentators, found transgender persons protected by Title VII. This is misleading, however, because harassment based on biological sex against any employee, regardless of sexual preference, violates Title VII. The Transgender Law Center, commenting on the decision, pronounced: “While courts around the country and the EEOC have steadily and nearly unanimously been recognizing that discrimination against transgender employees constitutes sex discrimination under Title VII, this decision by the Eleventh Circuit Court of Appeals is one of the most important yet.”

This, to me, is an overstatement. The 11th Circuit didn’t say much about transgender people, just: “Sex discrimination includes discrimination against a transgender person for gender nonconformity.” In making this statement, the court harkened back to an earlier decision it published in 2011, where it found that discrimination based on sexual stereotyping (described above) violated the Equal Protection Clause. In that case, the court held that the government defendant “violated the Equal Protection Clause’s prohibition of sex-based discrimination when he fired a transgender or transsexual employee because of his or her gender non-conformity.”

In my view, a holding that the employer discriminated against an employee based on that employee’s failure to conform to a gender stereotype is not equivalent to a determination that transgender is a protected category under Title VII. For example, a gender-transitioning (male to female) employee might continue to act in a male norm, but if the employer terminated the employee, would a court necessarily conclude that the termination resulted from the plaintiff’s failure to conform to a male stereotype?

Conclusion?

I inserted a question mark in the above subheading, because, to me, it is difficult to conclude with certainty that the 11th Circuit has found transgender per se to be a Title VII protected category within sex. My opinion is that this will only really happen if Congress eventually passes ENDA in some form.

Meanwhile, I suppose it is possible that federal courts, one day in the not-toodistant future, indeed might start viewing sexual orientation as a Title VII protected category within sex. Therefore, employers should start thinking about how their bathrooms would be utilized by a transgendered employee, how to react when employees complain, whether to broaden the company’s anti-harassment provisions, and similar issues that would arise.

See Courtney Leyes’ excellent article on related issues in June 2014 HR Professionals Magazine.

Nevertheless, the 11th Circuit got probably as close as any federal court has to finding transgender protected as transgender. On the other hand, it also appears that the 11th Circuit might be a little nervous about its position: the court’s decision in that case is unpublished and, reportedly, unsigned.

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

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Making the Leap From Wellness to Well-Being

By MARK RODRIGUES

A person has three interdependent, overlapping parts: mind, body, and spirit. (For the purposes of this paper, spirit is not used in the religious sense of the word.) The evolution of our society has created stress on all three parts. To illustrate this point, let’s consider three common characteristics of American life today that are working against us.

We’re sedentary. Today, most Americans don’t meet the minimum guideline of 30 minutes of activity each day. Even if we do, we may be sitting the rest of the time, which is still detrimental. Sedentary habits can lead to a host of problems. Both weight and blood pressure are often on the rise for individuals who don’t exercise. A lack of exercise also can contribute to a decline in your general sense of well-being.

We’re stressed. It’s no secret that stress is a fact of life, as employees juggle responsibilities at the office and at home. Then there’s money. In a Harris Poll conducted in August 2014, 72 percent of Americans reported feeling stressed about money at least some of the time in the past month. The average reported stress level (4.9 on a 10-point scale) is higher than what is believed to be healthy (3.7). This takes a toll on physical health and on the spirit.

We’re sleep deprived. According to WebMD, about one in five Americans reports getting less than six hours of sleep a night, on average. And the number of those who say they get eight hours continues to decrease.

How we live is affecting how we sleep, and vice versa. According to a National Sleep Foundation poll, sleep deprivation is linked to poor performance on the job, accidents behind the wheel, challenges with personal relationships, and declining moods. As for health, a lack of sleep is linked to heart disease, diabetes, and obesity.

BAD NEWS OR BIG OPPORTUNITY? We’ve painted a fairly dire picture of life today, and we’ve barely scratched the surface.

There’s good news in this, however. As a society, we’re starting to get it. We can see how the health of our minds, bodies, and spirits are inextricably linked. We’re also beginning to have a greater appreciation for the need to rethink certain aspects of life to address these challenges.

As an employer, you may be wondering why you should be concerned, since many of the factors described happen outside the workplace. According to the Bureau of Labor Statistics, Americans spend more time at work than any other activity. On average, we spend 8.7 hours a day at work or doing “work-related” activities.

Today, some employers are starting to look beyond wellness to the importance of overall employee well-being. This shift away from simpler physical wellness programs to more comprehensive well-being programs involves commitment. The employer must be prepared to answer some tough questions: ❖ Does the company value employees enough to help them sustain a high level of well-being? ❖ If necessary, is the company willing to make changes in an effort to drive well-being? ❖ Can the company provide an environment in which well-being is not only nurtured but rewarded?

The employer’s commitment is vital to achieving individual well-being, which puts those employees in the position to provide additional value to the company.

With that in mind, let’s take a closer look at mind, body, and spirit— though we’re taking liberties with the order. We’ll discuss “body” first, because it’s the most familiar to employers through the proliferation of wellness programs.

THE BODY Employee wellness programs are often primarily about physical health.

It’s an easy place to start. Physical health can be measured through activities like biometric screenings and physical fitness assessments.

In addition, links between physical health and medical costs are easily identified. While relationships between physical health and productivity are not as easy to quantify, it’s clear there’s a link.

Workplace wellness programs often include features that address the following: ❖ Nutrition ❖ Weight management ❖ Physical activity ❖ Tobacco cessation All of these features are especially important in light of the growing obesity problem in this country. According to the Harvard School of Public Health, from 1990 to 2010, obesity among adults increased from about ten percent to nearly 30 percent. Today, approximately one-third of all US adults are obese. Worse, 30 percent of American children are overweight. With this rise in obesity comes a rise in type 2 diabetes, heart disease, and even some cancers.

THE SHIFT

What is fueling this epidemic? While the easy answer is that we eat more calories than we burn, the reality isn’t necessarily so simple. The behavior of overeating, like all human behaviors, is a complex process. Many factors can contribute: genetics, processed foods, medications, sugar, hormones, stress, misinformation about nutrition, and so on. All of these factors need to be taken into account, and support must be provided to address them.

Much of this information about the state of Americans’ health is certainly not news.

Employers are aware and, in recent years, more of them have implemented wellness programs in an effort to improve the health of their employees (and with the hope of reducing their healthcare costs). In fact, RAND conducted an employer survey in 2012 that suggests about half of all employers with 50 or more employees offer a wellness program.

Lack of physical activity also contributes to our obesity rates, so many wellness programs seek to get employees moving. This is crucial because, according to the Mayo Clinic, regular exercise is associated with weight control, prevention of certain chronic conditions, and improved mood. It also boosts energy and promotes good sleep.

Employers need to understand the impact of sedentary lifestyles, sleep deprivation, and stress on employees’ ability to be present at work, to be focused, to be productive.

Employees with challenges in any of these areas (or all three) will likely be distracted, less productive, and more frequently absent. And that can affect your company’s bottom line.

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Other recent studies published by the National Institutes of Health have shown how a poor diet and a lack of physical activity can contribute to Alzheimer’s and dementia. In general, how we take care of our bodies, through good nutrition and exercise, is directly tied to every aspect of our overall well-being.

It affects mind, body, and spirit.

THE MIND Clearly, links exist between our physical bodies and our minds. If we’re healthy and active, we tend to have better mental health. The reverse can also be true. Employers might want to look beyond their wellness programs, focused on physical health, to consider the impact of company culture and work environment on their employees’ mental health.

Employees require motivation to start each workday and each project. They need motivation to meet deadlines and the array of expectations that come with any job. While much of this needs to come from within, certain aspects of motivation also can be provided by the employer.

Employers are in a unique position to create a culture of positivity that can encourage employees to form positive work habits. On the flip side, if employees work in a culture of negativity, they will make decisions and exhibit behaviors that stem from fear and envy, which leads to poor results, or even low employee retention rates. Which does your organization offer?

As you consider the true nature of your company culture, here are some questions to consider: ❖ Do you have leaders or supervisors? ❖ Do you focus on results or the number of hours worked? ❖ Do you actively seek employee feedback? ❖ Do you regularly show appreciation for a job well done? ❖ Do you identify and develop talent in your employees? ❖ Do you offer resources to assist workers with life needs? Think dry cleaning, on-site gyms, financial planning, on-site or near-site daycare arrangements, healthy food choices, and so on. ❖ Do you understand why employees are leaving?

If an employee is consistently worried about financial issues, job security, or family issues, that employee can’t operate at his or her full potential at work. It is important for an organization to have a structure that assists employees with financial management, allows them to feel secure in their jobs with room for growth (if growth is desired), and provides the flexibility to take care of family issues as needed. Organizations that do these things will have an employee population with a greater sense of empowerment, and likely, better performance.

THE SPIRIT The spirit may be the most challenging aspect of wellbeing for employers to get their arms around—partly because it may seem the least relevant to business.

But what we’re learning through research is that a healthy spirit has a very strong effect on every other aspect of life, including work.

When people improve their overall lifestyle, they can look and feel better at every age and even add years to their life expectancy. The Danish Twin Studies

established that less than 25 percent of a person’s longevity is dictated by genes. This is encouraging news! It means the majority of factors that determine how long and how well we live is within our control.

This might be best explained with a story about some of the longest-lived people on the planet.

In 2004, Dan Buettner teamed up with National Geographic to hire the world’s best longevity researchers to identify pockets around the world where people lived measurably better. In these areas, which Buettner called “Blue Zones,” they found people had marked increases in longevity. In fact, many lived past their 100th birthday.

Buettner and National Geographic took teams of scientists to each of these Blue Zones to identify lifestyle characteristics that might explain the longevity of the inhabitants. In general, they determined that social and familial support systems were crucial. Plus, in these societies, the elderly were still contributing to the group and perceived as having value.

More specifically, the research teams were able to identify nine common characteristics, which are now referred to as the Power 9®. While some of these nine clearly focus on physical health, the majority are directly tied to relationships and their support of a healthy spirit in life. They are: 1. Move naturally.

2. Know your purpose.

3. Create routines to mitigate or eliminate stress.

4. Stop eating when your stomach is 80% full.

5. Eat a plant-based diet.

6. Drink wine daily (one glass per day if you are a woman and two glasses if you are a man).* 7. Spend time with others who have similarly healthy habits.

8. Be part of a faith-based community.** 9. Put your family first. *This is based on a correlative study. It is not causal and the advice may not be appropriate for everyone. **There has not been significant research to attribute the same information to non-faith-based services and whether an individual would receive the same benefits.

WHAT’S THE BOTTOM LINE? To be realistic, the Blue Zones are located in some fairly remote spots in the world. These areas often lack modern conveniences, so people walk everywhere they go. They herd their own sheep on foot each day.

They grow their own food. These activities, instead of wearing people down, seem to energize them and keep them nimble.

Most likely, if you’re reading this paper, your organization is not located in some remote mountainous region that lacks cars. And yet, every organization can find inspiration from some of the lessons from the world’s longest-lived people.

It’s time for employers to consider creating work environments of true well-being. Why? For the first time in living history, the life expectancy of our children is projected to drop. As a nation, we’re getting heavier every year, and diabetes is on the rise.

This isn’t because Americans have undergone a moral decline, or because we’re inferior to previous generations. To a large degree, we are products of our environment, and our environment can be stressful

and overwhelming, including in the workplace.

Every day we’re bombarded with hundreds of marketing messages, many of which encourage us to eat things that aren’t good for us. Machines have engineered physical activity out of our lives.

Networked electronics are replacing face-to-face human contact.

As individuals, we can decide to live by some of the simple lessons of the Blue Zones. And as employers, we can foster healthier environments in the workplace— environments that are good for the mind, body, and spirit, and even the bottom line.

To extend the focus from wellness into overall wellbeing will take time and effort. So where can an employer begin? Some changes will be easier than others. Some examples follow: ❖ Translate your company’s mission and goals into relatable daily actions for employees. ❖ Create an incentive or bonus structure that ties rewards to individual performance and company performance. ❖ Identify resources and assistance the organization can provide to assist employees with managing life responsibilities and overcoming stress:  Employee assistance programs  Financial planning resources  Assistance in securing childcare and elder care  Adoption assistance  Quiet rooms  Onsite fitness facilities and/or classes  Massage therapy  General concierge services  Adequate paid time off ❖ Keep your workforce moving!  Walking meetings  Safe, well-lit, even decorated stairwells  Standing desks or even treadmill desks  Stretch breaks during meetings ❖ Foster an environment where employees spend time together doing social and even philanthropic activities to strengthen emotional ties.

An environment where employees feel connected to their company and colleagues, where they feel encouraged to contribute and grow, is a catalyst for good performance. And a punitive culture that creates fear and uncertainty leads to anything but employees’ best efforts.

Which kind of culture exists in your organization?

Which kind would you prefer?

IF YOU’RE READY TO GET BEYOND WELLNESS If you’re interested in creating strategies that will take your wellness program, and indeed your culture, the next step toward a focus on overall well-being, Lockton’s Health Risk Solutions Consultants are ready to help.

Brad Owens

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

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Why HR Should Expect Better Background Screening Practices in 2016

By SUSAN MCCULLAH

being filled, and take into account the type of charge and the time since that has passed since the conviction. A burglary charge six years ago isn’t necessarily grounds to not hire a job seeker. A burglary six months ago is an entirely different story.

NUMBER 2: Employ comprehensive screening.

One simple criminal search doesn’t give you the whole picture you need to help reduce risk in your hiring decisions. Based on the position you are trying to fill, consider these ways of screening.

Criminal records searches.

Hiring the right candidate in a timely manner sounds easy, but it’s a virtual minefield of disaster waiting at every step. A key component of a smart hiring decision is your background screening process. It’s essential for HR professionals to invest in smart background screening practices to make sure they don’t get stuck with unsafe or unqualified employees. Candidates misrepresent themselves quite often, and companies need to catch as many of these exaggerations as they can.

Three key points that help companies maximize the effectiveness of your background screening efforts are: NUMBER 1: Screen specifically for each position Blanket policies can get you sued.

Broad processes such as “we don’t hire anyone with a criminal conviction” or “we pull a credit report on everyone” are not only ineffective, they can get you in hot water with the Equal Employment Opportunity Commission (EEOC) and result in embarrassing, costly litigation. Avoid EEOC claims by steering clear of blanket statements that encompass every job position, regardless of relevancy.

Relevant and fair practices based on the position Make sure your process is fair and not-discriminatory. Each piece of your background screening process needs to be related back to the specific position you are filling. Set up a consistent system of documentation. In cases of negligent hiring, an employer can use your set processes and findings as valid evidence of why the person was or was not hired.

Know how and when to weigh criminal convictions.

Make a practice of not asking about criminal history on the initial job application (you can ask later in the process), make certain a criminal history is relevant to the position 16

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Conduct a county criminal records search going back 7 years for all the counties the applicant has worked, lived, or studied. In addition to, not in place of, the county search, conduct a National Criminal Database search.

A database search isn’t all inclusive because it isn’t required that states or counties report to a database, but the search may uncover crimes in places that were not initially targeted to search.

It also offers a social search and a sex offender registry search, which can show you other areas that may not have originally been targeted to search.

Verification searches.

Employment and education verifications are crucial when the position requires experience or training to perform the job function.

Employment and education are both areas where job candidates frequently and easily manufacture false information. A background screening company will verify an applicant’s position held, dates of employment, and school attendance dates and degree obtained.

Assessment testing.

Other background screening searches don’t shed light into core behaviors like integrity and honesty. Uncover an applicant’s character, allowing you to weed out undesirable candidates earlier in the process, which saves time and resources.

Credit reports.

Reviewing a person’s credit report helps determine if the applicant is suited for a financially responsible position. These are normally used in financial positions, or when part of the job duty is handling large sums of cash.

NUMBER 3: Strive to stay in compliance Understand your applicable state laws Laws vary widely depending on each individual state. It's vital for HR professionals to stay abreast of specific state laws concerning hiring.

Ban the box laws are an example of how states, and even cities, pass laws that don't apply in other areas. Follow the laws to the letter.

Utilize proper authorization The employer must disclose in writing to the applicant that he or she will be the subject of a background report as part of the employment selection process.

And the applicant must authorize the background check. The authorization can be in writing, or it can be electronic. Keep that paperwork in case there is ever a discrepancy.

Follow adverse action procedures If you decide in whole or part to deny employment based on information obtained in a background report you’re required to send a Pre-adverse action notification along with the copy of the report and the CFPB’s Summary of Rights (most background screening companies supply these documents to their client). Giving the consumer a copy of their report allows them to review the information reported on them and, if they want to dispute the information on the Consumer Report, they have the right to do so. The pre-adverse action notification is required to have the contact information of the Consumer reporting Agency (your background screener) who performed the report. Then send the Final Adverse action letter. Although the FCRA does not state a specific time to wait between sending both required documents it is best practice in the industry to wait 5 days.

Hiring employees who are qualified for their jobs and pose little risk to the workplace is ideal, and missing dangerous pieces of a person’s background sets your company up for potentially huge issues. As important as screening is, it’s just as necessary to employ consistent, compliant practices. Implementing these tips into your background screening processes will minimize the risk of a bad hire as well as the consequences of dealing with a negligent hiring lawsuit, and sets you up for hiring success in 2016 and beyond!

Drug screening.

Drug abuse causes a variety of issues in the workplace, from missed days to unproductive performance, to harmful accidents. Drug screening reduces turnover and improves workplace safety. Many drug screening options are available, including urine testing, saliva testing, and hair testing.

Susan McCullah Marketing Project Manager Data Facts, Inc. susan@datafacts.com www.datafacts.com

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District Court: Health Coverage Made Available ONLY to Wellness Program Participants is OK

By CHRIS DAVIS

By 2013,

a Wisconsin-based employer, Flambeau, Inc., began conditioning an employee’s health plan enrollment

on participation in the wellness program’s two major constructs: the health risk assessment (HRA) and biometric screenings. By the creation of this stipulation, Flambeau, Inc. effectively tested the maximum of the 30% ACA wellness revision, designing its self-funded plan to be available only to those employees who participated in an HRA and biometric screenings (regardless of the results). Challenged by the EEOC, this employer prevailed under the Americans with Disabilities Act’s “safe harbor” exception on December 31, 2015. EEOC v. Flambeau, Inc., W.D. Wis., No. 3:14-cv-00638 (12/31/15).

According to the EEOC, Flambeau, Inc.’s wellness program violated the ADA because it required employees to complete medical examinations – the health risk assessment (HRA) and screenings – in order to enroll in its medical plan. The EEOC based its complaint on Section 12112(d)(4)(A) of the ADA which prohibits an employer from requiring a medical examination unless such examination is shown to be job-related and consistent with business necessity.

The District Court disagreed and found, as Flambeau, Inc. argued, that such programs are protected by the ADA’s “safe harbor” for insurance benefit plans set forth in ADA Section 12201(c)(2). This section protects employers from liability for acts that would otherwise violate the ADA if such acts were in the course of establishing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks.

Please be aware of the following immediate implications: 1. When an employer intends a wellness program to be a part of its health plan, it should include the terms of the wellness program in its summary plan description (SPD). The EEOC raised this issue when challenging the application of the “safe harbor” because the employer’s SPD did not have express terms related to the program.

2. The Affordable Care Act clearly states that penalties for non-smokers are capped at 30%, and this was 100% considering the stipulation before insurance could be purchased through the employer’s plan.

3. Flambeau (the employer) conditioned the entire insurance benefit on participation in their screening and health risk assessment-based wellness program, with a direct effect of assuming some number of employees would prefer to forego insurance altogether than participate in wellness.

4. This decision means the employer is saving thousands of dollars for each employee who refused to submit, meaning the employees who are sensitive to an employer’s wellness program are likely to purchase health insurance through some other source and not through the employer.

5. Assuming other federal courts follow this district’s lead (which occurs often), employers create a 100% de facto non-participation penalty: If you don’t participate, you don’t get insurance, period.

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Please be aware of the following longer-term implications: 1. Please note that this decision can and will be appealed to a higher court and other similar cases may be observed in other courts during this timeframe.

Otherwise, if this ruling stands, it is a de facto repeal of the employer wellness sections of the Affordable Care Act. 2. Additionally, this ruling will need to be compared to the implications found in the final ADA and GINA wellness program regulations expected this year from the Equal Employment Opportunity Commission (EEOC).

3. Given the simplicity of this process, if the ruling is upheld, wellness programs would be fairly transactional in nature and would not require a vendor-heavy solution for administration in order for employers to achieve the desired effect of preventing non-wellness participants to access the health plan.

4. Make sure to observe the distinction between the 30% (or 50% when tobacco is included) penalties and the 100% penalties: • It is not acceptable to penalize an employee more than 30% for refusing to submit to traditional wellness program standards if they already have insurance, or they can get insurance through the employer without this requirement.

• However, it is acceptable to say: “There is no incentive or penalty for wellness once you have insurance, but you can’t have insurance at all unless you submit.” If that seems like an artificial distinction, well, that’s because it is. All an employer has to do is require screening and health risk assessment-based wellness programs before you get insurance.

5. Because the decision only applies to participatory programs and not outcomes-based programs, many companies will either not switch to outcomes-based programs or switch back to participatory programs to gain this benefit. Outcomes-based programs are subject to the 30% (or 50% when tobacco is included) ceiling on additional costs to non-participants for wellness participation under ACA rules.

Given the current volatility in the employer-sponsored health plan space in reference to wellness, employers should remain in a holding-pattern until both the appeals on this case are completed and the final ADA and GINA wellness program regulations issued by the EEOC are finalized this year.

Chris Davis, MPH, ACSM Director of Health Mgmt & Claims Informatics Regions Insurance Inc. James.c.davis@regions.com www.regionsinsurance.com

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2016: A Year for HR Advocacy The Perfect Way to Continue Momentum from 2015?

SHRM’s Spring Employment Law & Legislative Conference

Mike Aitken, VP SHRM Government Affairs mike.aitken@shrm.org www.shrm.org

By MIKE AITKEN

2015 heralded incredible opportunities and accomplishments in the world of HR advocacy, and at SHRM we are certain that 2016 will be just as active (if not more so). Workplace issues are already front and center of the debate during this already-lively presidential election season, and there are a multitude of workplace regulations that the Obama administration will likely advance in the coming months.

One thing is certain: this year will be a landmark year for our country, and the HR voice needs to be part of the local, state and national conversation in the months ahead. SHRM believes so adamantly in the power of the HR voice being part of the conversation that SHRM advocacy will be a major focus of the organization this year. Fortunately, through SHRM’s robust advocacy efforts, a strong foundation has already been laid to prepare the profession for the changes that may lie ahead. For example, take a moment to review the Top 10 accomplishments for SHRM HR advocacy in 2015: 1 Fighting Extreme Changes to Overtime Rules—SHRM has raised

concerns about the Department of Labor’s (DOL) proposed rules on overtime that would more than double the salary threshold for employees’ eligibility for overtime and provide for automatic annual increases to the salary threshold for the first time since enactment of the Fair Labor Standards Act back in 1938. In addition to leading the Partnership to Protect Workplace Opportunity (PPWO) coalition of employer groups, SHRM prepared our members to influence the proposed rule by: hosting an educational webinar that garnered 12,737 registered attendees, plus a second webcast specifically for the nonprofit sector that garnered 5,275 attendees; facilitating six opportunities for SHRM members to testify before policymakers; submitting SHRM’s comment letter to DOL, signed by 357 SHRM affiliates; and encouraging individual SHRM members to submit over 2,200 comments to policymakers.

2 Delaying the Excise Tax on Employer-Sponsored Health Care Benefits—

After years of aggressively advocating for the repeal of the Affordable Care Act’s (ACA’s) 40 percent excise tax (“Cadillac tax”) on high-value health plans, SHRM achieved a two-year delay of the implementation of the tax until 2020. This effort was included in the Consolidated Appropriations 20

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Act of 2016 that was signed into law by President Obama in December.

Repeal of this tax was supported by 50 SHRM state councils, over 190 chapters and nearly 400 individual SHRM members who advocated on Capitol Hill in 2015.

3 Securing the Tax Permanency of Valuable Employer-Provided Benefits—

Also included in the Consolidated Appropriations Act of 2016 was the SHRM-supported tax extenders bill, ensuring that several important employer-provided benefits will become permanent or be extended for two to five more years. SHRM advocated strongly in support of protecting tax credits that enable employers to design and offer a comprehensive benefits package—a key component in retaining and recruiting a skilled workforce.

4 Growing SHRM’s Advocacy Team (A-Team), Moving the Needle on

Critical Workplace Policy—SHRM’s A-Team network of volunteer public policy advocates across the country grew to over 8,000 active members in 2015, with 459 appointed district leaders in all 50 states. Over 1,000 HR professionals participated in face-to-face meetings with legislative offices in 2015 on Capitol Hill, in district offices and in a number of state capitals, helping to grow the awareness of the HR profession and how certain public policy proposals would impact the workplace.

5 Preventing Debarment of Federal Contractors—After extensive A-Team

outreach to educate members of Congress about the challenges of the Fair Labor Standards Act (FLSA), SHRM was able to defeat three proposed amendments in Congress that would have debarred employers with even a single FLSA violation in the last five years from eligibility to compete for federal contracts. This was notable because the previous Congress passed a similar amendment with bipartisan support.

6 Raising the Visibility of the HR Brand in California—SHRM and the California SHRM State Council (CalSHRM) played an integral role in stopping a bill that would have expanded California’s unpaid family leave policy. CalSHRM and SHRM also sponsored a bill that would allow California employers to establish a voluntary preference in the hiring of veterans and helped get it passed out of the Assembly on a bipartisan 77-0 vote.

7 Filing 20 Comment Letters and Legal Briefs on Workplace Issues—2015

saw robust action from the Obama administration and federal agencies in issuing executive orders and proposed regulations affecting the workplace.

SHRM submitted 15 comment letters to federal agencies on issues such as overtime, compensation data collection, new federal contractor mandates and the Cadillac tax. SHRM also submitted five legal briefs, as well as one lawsuit that challenged the National Labor Relations Board’s expedited elections rule. SHRM members activated to provide critical testimony eight times on regulatory issues like overtime, federal contractor mandates, workplace diversity, retaliation and harassment; two SHRM members were appointed to EEOC’s internal working group on workplace harassment resulting from testimony before the Commission.

8 Engaging in Paid Sick Leave Mandate Debate in Maryland—Thanks in

large part to efforts of committed volunteer leaders from the Maryland SHRM State Council (MD SHRM), legislators in Annapolis have a better understanding of the impact a mandated paid sick leave proposal would have on large and small businesses and the benefits they provide their employees. MD SHRM testified before both House and Senate and is organizing efforts to find a balanced alternative to a one-size-fits-all state mandate, one that recognizes the distinct interests of both workers and their employers.

9 Advocating for Immigration Reform—SHRM and its strategic affiliate,

the Council for Global Immigration (CFGI), championed the successful inclusion of language in the House immigration enforcement bill to provide employers with modern tools to ensure a legal workforce. In addition, our advocacy efforts yielded an extension of the current E-Verify program through Sept. 30, 2016. On the administrative front, a White House report included key concepts that SHRM and CFGI have long advocated for, most notably a program like “Known Employer.”

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Advocating and Representing HR—SHRM continues to be recognized by policymakers as the lead advocate and thought leader for the HR profession on workplace issues. As a result, the number of proactive outreach efforts from Congress and the agencies continues to grow. In 2015, SHRM was contacted by Congress and the federal agencies over 100 times on workplace issues from the impact of the ACA on employer health care offerings to ways of embracing and fostering workplace flexibility. In fact, SHRM members testified before public policymakers over 20 times in 2015—more than any other year in SHRM’s history!

To those who participated in and supported SHRM’s efforts through the SHRM A-Team, a resounding thank you on behalf of the profession.

Without your personal time, energy and direct involvement in advancing the HR perspective on public policy issues, policymakers would not have the benefit of HR’s insights on how various workplace issues will impact employees and their employers.

Despite the amazing HR accomplishments witnessed in 2015, this advocacy work doesn’t cease, and we anticipate challenges – and opportunities - ahead for the workplace is 2016. Are you new to HR advocacy, and trying to find the right opening to get involved in SHRM’s efforts? Or are you a seasoned advocacy veteran, and need an action item to initiate your 2016 engagement?

We have the perfect opportunity—SHRM’s 2016 Employment Law and Legislative Conference!

No matter where you fall on the wide public policy advocacy spectrum, SHRM’s annual Employment Law & Legislative Conference is the ideal opportunity to make a difference as an HR leader. Hosted each spring in Washington, D.C., SHRM’s premier advocacy conference provides HR professionals from across the country the unique chance to address common pitfalls that can put their organizations at risk and reduce their organization’s threat for litigation. Attendees also receive insider information on timely legislative/regulatory issues facing the workplace, especially when public policy is not your full-time job.

In addition, here are other worthwhile benefits you will receive by attending this specific event: 1. Build Your Network of HR Peers and Resources. This Conference directly connects you with fellow active and engaged HR professionals.

Through special networking events, enjoy the camaraderie of friends pursuing a common goal: advancing the workplace.

2. Hear Directly from Dynamic Speakers. Receive exciting perspectives and insights from renowned Conference speakers about today’s business and political climate and the important role of HR, especially in these months leading up to Election Day 2016. Don’t miss the exiting opportunities to hear from these national voices and return home with valuable workplace application takeaways.

3. Shape Future Policies and Amplify HR’s Voice on Capitol Hill. This Conference provides the unique opportunity for HR professionals to meet in-person with your U.S. Senators and U.S. Representative on Capitol Hill on March 16. During your SHRM-scheduled meetings with elected officials and their staffs, join other HR advocates from your state to discuss how pending workplace legislation directly affects employees and employers in your community.

SHRM members looking to give back to the profession and develop as an HR professional should make this particular event a “must-attend.” But don’t take my word for it: check out direct feedback from SHRM’s 2015 Employment Law & Legislative Conference, as submitted by your peers: • “Very good sessions that provide practical information that can be applied immediately as well as up-to-date information regarding pending legislation. Advocacy Day is a great opportunity to meet with members of Congress and to share our passion and the issues which affect our companies and employees lives.”

• “Exceptional conference! Would recommend any HR professional to attend, no matter what career level you are in. Will gain a depth and breadth of knowledge from attending this conference. Will attend again in the future.”

• “This was one of the best conferences I have been to in many years. I never got bored. I honestly could have remained interested if it continued on for a few more days.”

As we witness the Obama administration solidifying its legacy, the 114th Congress concluding its legislative business, and voters and candidates preparing for Election Day in November, is there a better - or a more important - time to be discussing HR issues in our nation's capital? Please consider this your personal invitation to take just three days this spring to join us in Washington as the HR army of advocates continues to raise their voices and make a true difference on behalf of the profession this year! www.HRProfessionalsMagazine.com

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Profiles of

TOP HR

Technology Companies

Data Facts

ADP

Julie Henderson

David Estel

Jeff Jenks,

David Copeland,

National Account Executive Background Screening

National Account Executive Background Screening

District Sales Manager

Associate District Sales Manager

Since 1989, Data Facts, Inc has provided clients with trusted background screening information they rely on to reach sound hiring decisions. Being a three-time winner of The Top Workplace Award and two-time winner of The SPARK Award gives proof of the company’s commitment to operational excellence and community participation.

An NAPBS accredited and SOC 1 and 2 certified company, Data Facts also participates in many local and national non-profit organizations and offers a “Data Facts Gives Back” program, donating a portion of new clients’ billing to their charity of choice.

Visit the company website at http://www.datafacts.com.

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We help you make more of your most important asset – your people. We know your world has changed. HR isn’t simply about getting things done anymore. You’re expected to help your company thrive, by providing and retaining a better workforce. As one of the world’s largest and most experienced HR providers, ADP offers you recruit-to-retire services and solutions that help you build the team that you need to succeed. Everything from basic payroll, benefits and record keeping to complex tools for talent management, compensation, succession planning, and data analytics. You can concentrate on what your business does best, while we focus on what we do best – systems, processes and even ACA compliance. Because thriving businesses succeed with motivated and empowered people.

Ultimate Software

Acculor

Jessica Roth,

Brian Rice,

Lindsey Brown,

Enterprise Strategic Account Manager Georgia and Tennessee

Global Enterprise Strategic Account Manager Georgia and Tennessee

Marketing Director

Ultimate Software is a leading cloud provider of HR, payroll, and talent management solutions. Operating with a commitment to always put people first, Ultimate has ranked on FORTUNE’s “100 Best Companies to Work For” list over the past four years. Its unique culture and dedicated employees are part of what drives Ultimate’s consistent, industry-leading 97.3% customer retention, highlighted by offering a unique collaborative support model and providing a dedicated service representative to each customer. Founded in 1990 and based in Weston, FL, Ultimate supports thousands of customers, who, together, represent diverse industries and manage millions of employees across the world.

There are many reasons for unscheduled absenteeism costs (overtime pay, inaccurate coding, overlooked and missed absence recording). Fortunately there’s Acculor, which is a live, phone based employee monitoring system. Acculor has been helping companies like yours minimize the time it takes for an employer to handle employee absences. Acculor is customized to your attendance policy and employee absence reason, department, supervisor, shift, call time, etc.

Did you know with Acculor, all calls are recorded? This means if ever you need to review a call for assurance or clarification we can send to you immediately. Our 24-hour friendly, experienced staff is ready to take your employees information at any time.

www.HRProfessionalsMagazine.com

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Is there Value in keeping Healthy People Healthy?

LOW RISK Those employees and family members who are apparently healthy and considered low risk and low cost, need to stay that way over the course of their employment. As we age and work for one employer, humans tend to get into daily habits that can drive weight gain and increase the risk of chronic conditions such as overweight, heart disease, and diabetes. It is proven that sitting more than six hours per day at work can increase your risk of chronic conditions and even early death. Promoting movement in the workplace, the practice of good ergonomics, and places for physical activity can help employees stay low risk.

By MURRAY HARBER and MATT GINN

Historically, employers look at their previous years’ health claims and find that they have a few new high cost claimants, which adds to the rising cost of the employer’s health plan. The ever increasing nature of health care costs will continue to rise unless you take a population health management approach which assesses your population in three groups – low risk/ low cost, medium risk/medium cost, and high risk/high cost. To improve the health of the total population you must offer a variety of employee benefits, including insurance products, along with community discounts and wellness programs in order to have something for everyone.

Employers should encourage work and home and provide resources in the communities to engage employees and their families into healthy lifestyle choices such as fitness center memberships, discounts for recreation, and encouragement of farmers markets.

“

Employers limit their effectiveness in designing employer health management programs by focusing on the ill and those with early signs of chronic disease conditions. In some cases, employers focus so much on obesity and diabetes that they scare employees away from participating.

If you are an employer who keeps your workforce throughout the years, then it is important to keep the focus on keeping healthy people healthy. Back in the 1990’s, Dr. Dee Eddington, from the University of Michigan’s Health Management Research Center, brought the concept to the industry that keeping people with low risks at low risk has a long term economic benefit to a company and their health plan. Since then, many large employers have instituted a strategy to keep healthy people healthy along with providing risk mitigation programs for medium risk, as well as programs and discounts for those who are healthy and low cost.

If you look at the health continuum below, there are easy ways to improve the health for all employees by aligning employee benefits, wellness programs, and community discounts.

Wellness

Risk Mgmt.

Demand Mgmt.

Disease Mgmt.

Disability Mgmt.

End of Life

Death

Community Discounts

Health Plans

Health Plans

Health Plans

WC

LTC

Life Ins.

Lifestyle

Preventive Exam

Clinic Access

High Performing Network

STD/LTD

Eldercare

Burial Insurance

Risk Reduction Programs Onsite Onsite Programming Programming Well-Being

Tele-health

DM providers Return to Work

Onsite/Near site Clinic

Onsite Support

MEDIUM TO HIGH RISK/COST Employees and family members who are at medium risk to high risk can not only cost employers more money but also utilize more resources of the employer-sponsored health plan. Engaging these folks into care management and risk mitigation programs can help pay off in both direct and indirect health and productivity costs. As an employee manages their health and medical condition, they sometimes need help and understanding of the health care system and benefits provided by the employer and their benefits programs.

Employers such as Southern Farm Bureau Life Insurance is working with Southern Health Network to provide Nurse Navigation services for their members of their self-insured programs. The Nurse Navigator helps the patient with health information and network utilization where they support the patient throughout the process. Some employers are using tele-health and tele-medicine approaches to focus on specific medical conditions.

Helping high risk patients become medium to low risk and medium to low risk can help employer save time and money while improving performance .

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Supporting people of all health statuses is very important in offering a comprehensive and meaningful health solution.

Of course, you want to offer benefits and resources for the sickest people so they can manage their conditions and improve their health and it is also important to help those with risk mediate those risk and support those at low risk to stay low cost.

FUTURE DIRECTIONS

healthy lifestyle while at the concept to move away from being reactionary to only the sick, is a very powerful focus on keeping well people well and being alerted to when they slide into unhealthy habits and behaviors. By addressing these health concerns on a focused and directed direction in the work population, it can be a tremendous positive in managing health costs.

The positive reinforcement and support within the work environment, combined with individual accountability, can yield tremendous positive results in the health of a work based population” Billy Sims, VP Human Resources,

Southern Farm Bureau Life Insurance & Board Members, Mississippi Business Group on Health

There is an evolution of creating programming, by offering more benefits, programs, and other resources towards the elements of Well-Being – career, social, financial, physical and community.

We use to call these work life benefit to help support the overall person and how they interact in our communities. Many times an employee’s lifestyle and health issues are limited due to the barriers and “perceived barriers” related to these well-being elements. People may not eat healthy or go to a gym because they believe it cost too much to do so. Employers play an important role in educating and engaging employees and their families into positive health and well-being habits and using the benefits offered through the Human Resource professional.

Matt Ginn Corporate Communication Program Development Coordinator mginn@sfbli.com www.sfbli.com

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

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25

Resolve to Welcome Wellness Control costs, boost productivity with wellness programs

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

Welcome February: the month of valentines, Super Bowl parties — and failed New Year’s resolutions.

No resolution is made more often than improved health and wellness. A 2015 Nielsen survey on Americans’ top new year’s resolutions shows “stay fit and healthy” (37 percent) and “lose weight” (32 percent) are by far the most popular pledges. Yet only a tiny percentage of us keep that resolution. Despite our best intentions last month, by the time the calendar page flips over most of us are back to our old bad habits.

But don’t accept that as a done deal, because the health and wellness of your employees matters. A healthier workforce is not only more productive, it also helps curb the constantly rising cost of health care for both your employees and your company.

Here are some startling statistics: • Two-thirds of adults are overweight, according to the Centers for Disease Control FastStats (Sept. 30, 2015).

• Medical expenses for obese employees are 42 percent more than for a person with a healthy weight, reports The State of Obesity website (“Healthcare Costs of Obesity”).

• Workers who are above normal weight or have at least one chronic health condition report one more unhealthy day per month compared with their normal-weight, counterparts. That translates into 12 days per year, according to a Gallup report (“Poor Health Tied to Big Losses, May 2013”).

• Unplanned absences such as sick days cause a drop in productivity of nearly 37 percent, one SHRM survey found (“Total Financial Impact of Employee Absences,” August 2014). Presenteeism — employees who come to work while unwell — also negatively affects productivity and morale.

Flipping this around, the results of a successful wellness program can be measured in fewer sick days, reduced occurrences of preventable chronic conditions, a more positive work environment, increased productivity and higher employee retention rate due to improved morale.

Results also can be measured directly on both your bottom line and in your employees’ wallets. Estimates from different studies vary, but generally show a return of at least three-to-one for every dollar a company invests in a wellness program. And healthier employees spend less on doctor’s office co-pays, prescriptions and other treatments that may not be covered by medical insurance until they meet their deductibles.

We also offer wellness services such as flu shots and discount card programs at no charge to qualifying accounts. Our WellCard program provides discounts on doctor office visits, prescriptions, vision and hearing products and services, and lab tests and X-rays.

Communication drives participation Wellness programs do have their naysayers who claim they’re all hype that sound good on paper but don’t really deliver results. The truth is no employee benefit program will be successful if your employees don’t participate in it. The best solution to drive engagement is better education and communication.

Communication can take many forms. Some companies adopt wellness “champions” or ambassadors who help spread enthusiasm about the program throughout the organization. Other businesses include regular articles in company newsletters or distribute personal benefits statements that highlight the company’s total compensation package. Some companies turn to outside resources for communications support.

Partnering with a reliable benefits carrier that offers a full slate of enrollment services, including one-to-one benefits counseling, can help you drive better participation in all of your benefits programs and achieve the desired results from your wellness initiatives. Individual, personalized benefits education and consistent wellness messaging go a long way toward helping employees understand the importance of wellness and how it can improve their lives. Colonial Life offers these services at no charge as part of our enrollment process.

So go ahead, keep that inspiring resolution to run a marathon this year.

But meanwhile, be sure your company is taking advantage of wellness programs and services that can help you save money and create a happier, more productive workforce.

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

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

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

Work wellness into your benefits program Wellness initiatives can take many forms, from on-site fitness centers, to nutritional counseling, to employer-subsidized gym memberships and employer-sponsored events. Other initiatives include health risk assessments such as lifestyle questionnaires and biometric evaluations, self-help educational materials, individual counseling and behavior modification programs.

Wellness programs don’t have to be expensive or fancy. You can sponsor lunchtime or after work walking clubs, onsite Weight Watchers meetings, lunch-and-learns with guest speakers, healthier options in vending machines or simple incentives to use the stairs with little or minimal investment.

Be sure you’re taking advantage of wellness services and components of the insurance plans you offer, too. For example, many Colonial Life voluntary insurance plans include wellness benefits that encourage and help pay for preventive screenings.

This helps catch potential problems earlier, when they’re easier and less expensive to treat. The benefits paid for annual screening tests also make the coverage even more affordable, in effect reducing the net cost of the premiums for employees.

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

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

SISKIND SUSSER PC Tennessee’s Largest

Employment Law FAQ

Business & Employment

Employment Law FAQ Immigration Practice

Best Practices and Strategic Leadership for 2015’s HOT ISSUES in HR December 17, 2015 12:30 - 4:30 pm

On June 26, 2015, the United States Supreme Court made history by holding that the fundamental right to marry is guaranteed to same-sex couples. In the months since the decision, employers have had to grapple with new dilemmas in the workplace, such as the rights of transgender employees, and accommodations for employees’ religions and disabilities. Join us for an in-depth discussion of these issues as well as strategies for enhancing your strategic leadership skills as a human resources professional.

IMMIGRATION LAWYERS Best Practices and Strategic Leadership for 2015’s HOT ISSUES in HR Reception to follow

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6075 Poplar Ave #909 Memphis, TN 38119

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1 John Russell with Lawrence & Russell on Holland, “Reasonable AccommoRights of Transgender Employees following $90 attorneys, $80 AWA dations Under the ADAAA.” 2 Maureen Holland with Holland & Associates Obergefell v. Hodges $45 HR professionals 2:35-3:30 - Cynthia Thompson, HR Professionals presented “Rights of Transgender Employees following Obergefell v. Hodges.”

10 Strategies to Enhance Your Strategic CLE 3.8 general credits 3 James H. Stock with Jackson Lewis P.C. discussed “Reasonable AccomLeadership Skills pending TN, MS, & Religious AR 3:30-4:30 - James H. Stock, Jackson Lewis P.C. modations for Employees’ Beliefs.”

Reasonable Accommodations for Employees’ This seminar is being certified Religious Beliefs

Reception to follow

Crescent Club

for HRCI and SHRM credit.

6075 Poplar Ave #909 Memphis, TN 38119

SIGN UP AT WWW.AWAMEMPHIS.ORG

2300 21st S the United States Supreme On June 26, Ave. 2015, Nashville, TN 37212 Court made history by holding that the 615.345.0266 fundamental right to marry is guaranteed to same-sex couples. In the months since the decision, employers have had to grapple with new dilemmas in the workplace, such as the rights of transgender employees, and accommodations for employees’ religions and disabilities. Join us for an in-depth discussion of these issues as well as strategies for enhancing 5 your strategic leadership skills as a human Cynthia resources professional.

or mail a 4check to: AWA 4 Pamela Irons and Eileen KuoPO with Jackson Lewis P.C. and Box 770186 Thompson. Cynthia presented “10 Strategies to Enhance Your Strategic Memphis, TNLowery 38177 Leadership Skills.” 5 Pamela Irons and Keating with Lawrence &

Real world solutions to your employee benefits needs.

Schedule: world of employee benefits is COMPLEX. 12:30-1:25 The - John Russell, Lawrence & Russell At Kiesewetter Law Firm, we understand this complexity.

Reasonable Accommodations And we’re here to help. Under the ADAAA We are a boutique law firm that focuses on & Assoc.

1:25-2:20 - Maureen Holland, Holland employee benefits, executive compensation and Rights of Transgender Employees following health care regulatory compliance law. $90 attorneys, $80 AWA Obergefell Hodges From thev. day we opened our doors, our focus has been $45 HR professionals and will continue to be the same— 2:35-3:30 - Cynthia Thompson, HR Professionals to solve complicated legal issues in collaborative, 10 Strategies to Enhance Your Strategic comprehensive and creative ways while being CLE 3.8 general credits client driven and cost-effective.

Leadership Skills 6 (L-R) Fran Riley, Claudia Haltom, Jocelyn Wurzburg, and Miska Shaw. pending TN, MS, & AR 3:30-4:30 - James H.working Stock, Jackson P.C. Interested in together?

Give us aLewis call.

Reasonable Accommodations for Employees’ This seminar is being certified Religious Beliefs Russell, and Eileen Kuo. Keating and Eileen were co-chairs of the event.

for HRCI and SHRM credit.

7 Attendees received SHRM | HRCI credit and CLEs.

www.HRProfessionalsMagazine.com

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Short-Term Workers, Long-Term Effects: Recent Case from Third Circuit Expands Joint Employer Liability

By GARY PEEPLES

The Third Circuit issued a decision in November 2015 that further alters the legal landscape as it relates to the clients of temporary staffing agencies and clients’ potential liability under Title VII of the Civil Rights Act. This decision, which is analyzed below, offers another example of the recent expansion of joint employer liability by federal courts.

A. Factual Background In Faush v. Tuesday Morning, Inc., ___ F.3d ___, 2015 WL 7273268 (3d Cir. Nov. 18, 2015), the Third Circuit was confronted with the question of whether a hired party is an “employee” within the meaning of Title VII. Faush involved a home goods store’s use of a temporary staffing agency. The store engaged Labor Ready to supply it with workers who could unload merchandise, set up displays, and stock merchandise. Labor Ready then sent several temporary workers to the store. The workers, many of whom were African-American, were directly supervised by the store manager.

As to the agreement between Labor Ready and the store, the contract required the store to supervise the temporary employees’ day-to-day work, provide site-specific orientation and training, and assign specific tasks to each worker. Labor Ready retained control over the workers’ pay rate and paid each worker’s wages, taxes, and Social Security.

The plaintiff, Matthew Faush, alleged that the store manager, Keith Davis, accused him and other African-American workers of stealing store merchandise and said that “his people wouldn’t do that.” Faush also alleged that a Caucasian store employee referred to him using a racial slur. According to Faush, Davis refused to listen to his complaints regarding the slur and told Faush that he would not be allowed back on to the sales floor “because an alarm had been triggered and he [Davis] was concerned about loss prevention.”

Faush subsequently filed suit against the store for race discrimination. After limited discovery, the store filed a motion for summary judgment, arguing that it never employed Faush. The district court agreed and granted the motion. On appeal, Faush contended that the district court improperly granted summary judgment on the issue of whether the store was his employer for the purposes of Title VII.

B. Third Circuit’s Analysis The Third Circuit began its opinion by adopting the Darden test for joint employment liability in the Title VII context. That test, which was first articulated by the Supreme Court in a 1992 case involving the Employee Retirement Income Security Act, consists of the following non-exhaustive factors for determining whether a particular worker is an employee: (1) the skill required of the worker; (2) the source of the worker’s instrumentalities and tools; (3) the location of the work; (4) the duration of the relationship; (5) whether the hiring party has the right to assign additional projects to the worker; (6) the extent of the hiring party’s discretion over when and how long the worker must work; (7) the method of payment; (8) the worker’s role in hiring and paying assistants; (9) whether the work being performed is within the scope of the business of the hiring party; (10) the provision of benefits; and (11) the tax treatment of the worker. No single factor is dispositive. Nor does the test preclude more than one entity from being the employer of a particular worker.

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Applying the above test, the Third Circuit concluded that the district court had erred in granting summary judgment to the store. The panel instead held that a jury could find that Faush was a store employee based on the Darden factors. Most important was the fact that the store exercised “control over the temporary employees’ daily activities.” The Third Circuit focused on the day-to-day realities of the relationship, including the store’s assignment of tasks to Faush and its direct supervision of him and his work product. At bottom, the store “managed [Faush] in the same way it managed its permanent employees.”

C. Third Circuit Decision Is No Outlier The Third Circuit is not the first federal appellate court to take an expansive view of the joint employment doctrine in the Title VII context. For example, the Sixth Circuit in a 2013 opinion (EEOC v. Skanska USA Building, Inc., 550 F. App’x 253 (6th Cir. 2013)) held that a genuine issue of material fact existed as to whether a general contractor was the joint employer of a temporary construction site worker that had been furnished by a subcontractor. The Sixth Circuit did not formally adopt the Darden test, but it did (like the Third Circuit) emphasize the employer’s supervision of, and control over, the day-to-day activities of the temporary worker. And the Fourth Circuit, although applying a slightly different test, held similarly in a recent case. See Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 414 (4th Cir. 2015).

D. Lessons for Employers It is worth emphasizing that a worker may have more than one “employer” under Title VII. Title VII is a remedial statute and, as such, federal courts will likely continue to construe it broadly to ensure that plaintiffs have a source of recovery when they have been subjected to unlawful discrimination. Because the multi-factor test from Darden is extremely open-ended, there is often little use in trying to contract around the joint employment issue. Irrespective of what any contract says, federal courts will look to the day-today realities of the relationship in deciding whether a hiring party is a joint employer. And, in many cases, a joint employment relationship will be unavoidable because the hiring party will need to exercise significant control over temporary workers’ day-to-day tasks. The better approach is for employers to continue to offer meaningful anti-discrimination training to supervisors and non-management personnel. Employers should operate under the assumption that every worker, whether temporary or permanent, is protected by Title VII. Finally, complaints of harassment by anyone— including temporary workers—should be taken seriously and investigated promptly.

Gary Peeples, Associate Burch, Porter & Johnson PLLC gpeeples@bpjlaw.com www.bpjlaw.com

Presents

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Spring Exam Window – May 1 – July 15, 2016 For more information visit shrmcertification.org Deadline to register is February 25 Contact cynthia@hrprosmagazine.com OR visit our website at www.hrprofessionalsmagazine.com About the instructor: Cynthia Y. Thompson is Principal and Founder of The Thompson HR Firm, a human resources consulting company in Memphis. She is a senior human resources executive with more than twenty years of human resources experience concentrated in publicly traded companies. She is the Editor | Publisher of HR Professionals Magazine, an HR publication distributed to HR professionals in Tennessee, Mississippi, Arkansas, Kentucky and Georgia.

Cynthia has an MBA and is certified as a Senior Professional in Human Resources (SPHR) by the Human Resource Certification Institute and is also certified as a Senior Certified Professional by the Society for Human Resource Management. She is a faculty member at Christian Brothers University, Bethel University, and the University of Arkansas Global Campus. www.HRProfessionalsMagazine.com

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Mississippi Bans “ Ban-the-Box” Legislation

By MICHAEL S. HUDSON

W

hen employers conduct background checks, the applicant’s completion of a job application is usually the first step in the process. One historically important question that has frequently appeared on job applications is “Have you ever been convicted of a crime?”

Employers often make employment decisions based on the honesty and severity of any information provided in an applicant’s answer to that or a similar question.

Over the past few years, a movement has been spreading across state and local governments nationwide to address the concern that individuals who indicate a prior criminal conviction on a job application may be automatically excluded from the pool of applicants who progress to the interview stage. This movement has led to numerous state and local laws and ordinances, known as “Ban-the-Box” laws, which prohibit or restrict questions regarding prior arrests and convictions on job applications.

In the past few years, nineteen states have enacted ban-the-box policies insofar as public employment applications are concerned — California (2013, 2010), Colorado (2012), Connecticut (2010), Delaware (2014), Georgia (2015), Hawaii (1998), Illinois (2014, 2013), Maryland (2013), Massachusetts (2010), Minnesota (2013, 2009), Nebraska (2014), New Jersey (2014), New Mexico (2010), New York (2015), Ohio (2015), Oregon (2015), Rhode Island (2013), Vermont (2015), and Virginia (2015). Seven of those states — Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon and Rhode Island — have gone further and require the removal of conviction history questions on job applications for private employers as well as public employers. In addition, Washington D.C. and nearly 150 other cities and counties, many of which are in states such as Florida, Louisiana, Tennessee, and Texas, which have not have enacted statewide ban-the-box legislation, have enacted local ban-the-box ordinances and rules, many of which extend to government contractors or private employers. As for the federal government, on November 2, 2015, President Obama announced a new mandate to the federal Office of Personnel Management to delay inquiries into criminal history until later in the federal hiring process, although this directive applies only to the hiring process for federal employees and does not apply to contractors. As for voluntary efforts, Target and Wal-Mart are among the large private employers who have voluntarily removed the felony box from their applications.

The U.S. Equal Employment Opportunity Commission (EEOC) has weighed in as well on the practice. It endorsed removing the conviction question from job applications as a best practice in guidance it provided on April 25, 2012, in which it made clear that federal civil rights laws regulate employment decisions based on arrests and convictions. The EEOC has since clarified that federal law does not prohibit employers from using the results of criminal background checks when making employment decisions, although it stands by its position that such use of an individual’s criminal history may, in some instances, result in employment discrimination under

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Title VII. To that end, the EEOC encourages a two-step process that includes targeted screening and individual assessments, including developing a specific written policy and procedure for screening applicants (e.g., identifying essential job requirements, determining which offenses will result in exclusion, and preparing justifications for such decisions), training, and uniformly applying the policy.

Not every state, however, is in favor of “banning the box.” In 2014, Mississippi became the first state to push back on the ban-the-box trend and pass legislation prohibiting local jurisdictions from banning-the-box or otherwise interfering with the right of employers to conduct full background checks, including of criminal history. Specifically, on July 1st, 2014, Section 17-25-33 of the Mississippi Code took effect. In a clear attempt to prevent local jurisdictions from enacting ban-the-box ordinances (such as what has occurred in Florida and Texas, where localities have adopted such ordinances even in the absence of state legislation), Section 17-25-33 prohibits any local Mississippi governmental entity from adopting “any law, ordinance, or rule . . . that in any way interfere[s] with an employer’s ability to become fully informed about the background of an employee or potential employee . . .” Miss. Code Ann. §17-25-33.

It is important for Mississippi employers to be aware of the parameters of this law and to realize what it does and does not do. It does not substantively change any existing laws or procedures or expand employers’ rights or background checks in any way. Instead, simply put, it solely prevents local jurisdictions from enacting any sort of ban-the-box ordinances or rules and it prevents local officials from refusing to provide relevant information in response to employer requests for background checks.

So what do Mississippi employers need to know and do? First, they need to know that, while Mississippi is clearly going to remain a state without any statewide or local ban-the-box legislation or ordinances, the trend federally is decidedly towards such legislation and rules. So, if an employer is subject to Title VII, it must be aware of both the status of federal legislation and rules, as well as the rules in other states and localities where it has or may seek to hire employees. The EEOC’s position is clear - under Title VII, even though individuals with a criminal record are not part of a protected class, an applicant can still claim illegal discrimination based upon an employer’s background check policy’s disparate impact (i.e., a facially-neutral policy that disproportionately impacts applicants based on a protected category such as race or national origin). Section 17-25-33 does not impact this analysis, so Mississippi employers must be aware of Section 17-25-33’s limited impact.

Michael S. Hudson, Shareholder The Kullman Firm, Columbus, MS msh@kullmanlaw.com www.kullmanlaw.com

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Correcting Errors and/or Omissions on I-9 Forms

GUIDANCE on INTERNAL I-9 AUDITS

By BRUCE E. BUCHANAN

The Office of Special Counsel for Immigrationrelated Unfair Employment Practices (OSC) and the Immigration and Customs Enforcement (ICE) have issued a six-page joint Guidance for Employers Conducting Internal I-9 Form Audits.

The guidance is intended to help employers conduct internal audits without violating the employer sanctions and anti-discrimination provisions of the Immigration and Nationality Act (INA).

Conducting an Internal I-9 Audit Internal I-9 audits (also called self-audits) are not required by law but can be extremely helpful to employers. However, they do not offer immunity if ICE conducts an I-9 inspection. If an employer chooses to conduct an internal I-9 audit, OSC/ICE stress that it cannot be conducted in a discriminatory manner, due to employees’ citizenship status or national origin, or retaliatory manner. Thus, an employer may choose to review all I-9 forms or a sample of I-9 forms selected based on neutral and non-discriminatory criteria. If a subset of I-9 forms is audited, the employer should consider carefully how it chooses I-9 forms to be audited to avoid discriminatory or retaliatory audits.

The OSC/ICE’s guidance cautions employers against obtaining new I-9 forms from its existing employees, absent acquisition or merger, without regard to whether a particular I-9 form is defective or without reason to believe there are numerous deficiencies in the previously completed I-9 forms. Without sufficient justification, OSC/ICE cautions requiring an existing employee to complete a new I-9 form may raise discrimination concerns. Even though the guidance does not state so, requiring all employees to complete a new I-9 form is not in and of itself unlawful.

Before conducting an audit, an employer should decide how it will communicate with its employees concerning the reason for the internal I-9 audit, preferably in writing, and what employees can expect from the process. An employer should consider how it will inform the employees of that process and how it will document its communications with employees.

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The guidance provides detailed information on the procedure for correcting errors or omissions found on an I-9 form, which I won’t discuss in this article. It also discusses what occurs when an I-9 form was never completed or is missing.

Specifically, the current version of the I-9 form should be completed as soon as possible. If an original I-9 form exists but Section 1 was never completed, the employee should complete Section 1 as soon as possible. If Section 2 was never completed, the employer should complete Section 2 as soon as possible.

In both scenarios, the employer should not backdate the form, which should never be done under any circumstances. Plus, the employer should attach a signed and dated explanation of the corrective action taken.

When an I-9 form does not reflect that the employee provided sufficient documentation upon hire or reverification, an employer should ask the employee to present documentation sufficient to meet the requirements of the current version of the I-9 form. The employer should staple the completed and signed Section 2 or 3 of the current version of the I-9 form to the employee’s previous I-9 form, together with a signed and dated explanation of the corrective action taken.

What does an Employer do if Employees Admit Unauthorized to Work?

An important issue that an employer may face in an internal I-9 form audit is what to do if an employee admits that he is not work-authorized or it is otherwise determined that an employee is not work-authorized. The guidance states the employer should provide these employees a reasonable amount of time to address their failure to be able to produce document(s) establishing their work authorization. It states that 90 days given in response to no match letters or 10 days given after an employee is listed in a Notice of Suspect Documents from ICE is not applicable in these situations. However, it does not state what is an acceptable time period; instead, the reasonableness of a timeframe should be determined on a case-by-case basis. But, it does state an employer should not summarily discharge employees without providing a process for resolving the issue.

In cases where an employee has worked without employment authorization or with a false identity or fraudulent employment document(s), and the employee has subsequently presented acceptable documentation(s), the guidance states the law does not require termination of employment as long as the employee completes a new I-9 form with the authorizing document(s), and should attach the new I-9 form to the previously completed I-9 form together with a signed and dated explanation. Although not stated, an employer may enforce any honesty policy, if it has been consistently applied in similar situations, by terminating that employee for violating the policy.

The guidance discusses situations where an employer receives a tip that an employee is unauthorized to work. While tips concerning an employee’s immigration status may lead to the discovery of an unauthorized employee, tips may be unreliable, such as unsubstantiated, retaliatory, or anonymous tips.

However, the guidance reiterates an employer violates the INA if it continues to employ an employee with actual or constructive knowledge that the employee is unauthorized to work.

Takeaways The guidance is an extremely helpful document for employers, especially those who do not have the advice of immigration compliance counsel on I-9 matters. I believe one of the reasons for its publication is to encourage employers to conduct internal I-9 audits.

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

USERRA and Temporary Positions

By DALE CONDER

The Heritage Medical Center is a small hospital and only needed one permanent orthopedic surgeon. To provide it with temporary coverage while it searched for a candidate, the hospital used temporary and fill-in surgeons supplied through an agency. Richard Slusher was one of these temporary orthopedic surgeons. He worked at the hospital on 30-day assignments, which were renewed several times. Dr. Slusher also served in the military reserves.

Dr. Slusher declined the position when the hospital offered it to him, but he agreed to take the position in a short-term capacity, and he signed a one-year contract that began on February 28, 2011. The contract required a 90-day notice for termination or immediate termination if the hospital paid Slusher 90 days’ pay instead of notice. The contract did not include a renewal or extension provision. During the year, the hospital continued looking for a surgeon to fill the position on a permanent basis.

In April 2011, the hospital began talking to Dr. Mosley, who was interested in the position. A month later, Slusher received orders that he was being deployed. While Slusher was on military leave, the hospital hired Dr. Mosley and gave Slusher his 90-days’ notice that his employment would end on October 26, 2011. When Slusher returned from his deployment on October 3, he came to the hospital and worked till October 26.

After his contract ended, Slusher filed a complaint with the Veterans’ Employment and Training Service, and then filed suit after the Department of Labor closed its file. Slusher alleged, among other things, discrimination under the Uniformed Services Employment and Reemployment Rights Act and violation of his reemployment rights under the Act. Slusher appealed his case after the district court granted the hospital’s summaryjudgment Motion.

USERRA’s reemployment guarantee is not absolute.

Under USERRA, an employer must rehire an employee who is absent for five years or less from his position because of service in the military. The employee must give the employer notice before the deployment. USERRA does not guarantee reemployment if “the employment from which the [employee] leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.”

Did USERRA guarantee Slusher’s reemployment?

Unless the exception applied, the hospital would have to rehire Slusher. Because the contract between Slusher and the hospital was for one year and did not provide for renewal or extension, Slusher’s employment was for a “nonrecurrent period” and he did not have had a “reasonable expectation” that his position would “continue indefinitely.”

Therefore, Slusher had to show that his employment was more than “brief ” and that he had a “reasonable expectation” that it would continue “for a significant period.”

Unfortunately, the Act does not define “significant period.” The court concluded that “a significant period is one that would provide an employee with some semblance of security or offer the ability to engage in long-term planning.” But Slusher’s employment could end in a matter of weeks or months. Such a period “falls outside the bounds of ‘significant period.’”

As for “brief,” again the Act does not define the term. In holding that Slusher’s employment was “brief,” the court did not hold that a one-year employment period is necessarily brief. Although Slusher’s employment period could last up to one year, both parties understood that most likely the period would be less than one year. Again, this is because it was subject to termination upon the payment of the 90 days’ pay.

The court quickly noted that the presence of an at-will clause in a contract does not necessarily mean that the period is brief. It was important in Slusher’s contract because the parties would have reasonably believed that the hospital intended to invoke the clause once it found someone to fill the position.

Did the hospital violate USERRA’s anti-discrimination provision?

The Act’s anti-discrimination provision is separate and distinct from the reemployment provision. To prove a discrimination claim under the Act, one must show by a preponderance of the evidence that his military-related activity was “a substantial or motivating factor in the adverse employment action.” If the plaintiff meets this burden, the employer must then show that it would have taken the same action even without the employee’s military-related conduct. Slusher’s proof of discrimination was an affidavit of Dr. Mosley, his replacement, who recounted a conversation with the hospital’s CEO in which the CEO said that Slusher’s deployment had really messed things up and the CEO would have to check with corporate to make sure Mosley—also a military physician—would not be deployed.

Although the affidavit was some evidence of discrimination, the hospital was able to counter this evidence by showing that its reason for terminating Slusher was its hiring of a permanent surgeon. And it would have terminated Slusher’s contract once it hired someone, regardless of Slusher’s military service.

What can be learned from this case?

First, employers should be very careful when giving reasons for a termination, even when, as in Slusher’s case, you are telling someone other than the terminated employee.

Second, just because an employee is in the military does not immunize the employee from adverse employment actions, but the Act’s protections require the employer to exercise extreme care when dealing with employees who serve in the military.

Third, the Act’s protections go beyond those who serve in the military and protect those who apply to serve. And this point makes documentation of employees’ disciplinary files very important. An employer might terminate an employee only to find out later that the employee applied to serve in the military shortly before being terminated. And without adequate documentation, the employer might find it difficult to rebut the plaintiff’s allegations.

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

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The following are tips for contributing to the organization’s success by building trust in workplace relationships:

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Tips for Building Trust in Workplace Relationships

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By BARBARA RICHMAN

A reputation of being trustworthy is one of the most valuable assets that individuals in leadership positions can have. Trust is a critical factor in gaining and maintaining the confidence of employees and customers. It ultimately plays a pivotal role in contributing to the success of workplace relationships and, in turn, the overall organization.

A number of factors influence the level and longevity of trust in relationships. Unlike a purchased product, trust does not come with a short- or long-term warranty that guarantees it for a defined timeframe. Once established, it can last for years, be eroded gradually, or disintegrate after a single action. To be sustainable, it must be built on a foundation of ethical behavior, credibility, and integrity.

Breaches of trust can have adverse consequences.

Depending on their magnitude and scope, they can damage relationships, undermine overall organizations, and have a negative impact on society at large.

Widespread unethical conduct in corporations has the potential of contributing to and exacerbating economic challenges on a national or global scale.

Within an organization, the lack or presence of trust in leadership influences morale, engagement, productivity, and overall job satisfaction. Results of the latest Employee Job Satisfaction and Engagement Survey conducted in 2014 by Society for Human Resource Management (SHRM) indicated that “trust between employees and senior management” was the second most important contributor to job satisfaction.

“Respectful treatment of all employees at all levels” ranked at the top.

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Ensure that there is consistency between your words and actions. Your credibility will be reinforced by “walking the talk” and diminished when what you say is not reflected by the actions that you take.

Be mindful that trust is fragile when making decisions that have the potential to jeopardize the confidence others have in you. Pause and consider various alternatives. Reflect on the perceptions and outcomes that can result from each course of action.

Guard against the dangers of using rationalizations or other excuses to provide justification for taking inappropriate actions. When faulty reasoning of this nature is applied in situations, it can destroy trust and lead to other negative consequences.

Apply a “glass house standard” in gauging your integrity. Consider how your conduct would be perceived if videos of your workplace interactions were placed on YouTube for all to view. Adopt the perspective expressed

by Will Rogers, “Live in such a way that you would not be ashamed to sell your parrot to the town gossip.”

Communicate a consistent message, regardless of the setting. Be mindful that your credibility will be damaged if your comments flip flop based on what you believe those who are listening would like for you to say.

Recognize that making negative comments about others who are not present can harm workplace relationships and cause distrust. Those who hear your remarks may begin to question whether they are indicative of what you are saying about them. Before engaging in these types of discussions, consider the quote by Ruth Anne Crouse, “What Peter tells me about Paul tells me more about Peter than it tells me about Paul.”

Be truthful in your communications. Trust can be undermined or destroyed by knowingly making false statements or providing inaccurate information.

Only make commitments that you intend to fulfill. In the event that unforeseen obstacles prevent you from accomplishing what was agreed upon, promptly inform those involved.

Be aware that criticizing others in public can cause resentment and embarrass all who are present. However, providing constructive criticism, as necessary, in a private setting can increase the potential of accomplishing intended objectives and your ability to preserve relationships.

10 Demonstrate respect on an ongoing basis in your interactions with others.

An environment of respect is conducive to enhancing trust in your workplace relationships.

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Listen for understanding. Listening is a way to show that you care about what is being said and also about the individual.

Recognize that a reputation of trust requires ongoing attention and self-discipline. The efforts required to establish your reputation are extensive when compared to the missteps that can mar what you have built.

Portions of this article were published previously in the Memphis Business Journal.

Barbara Richman Senior Consultant | HR Mpact barbara@hr-mpact.com www.hr-impact.com

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