Hr professionals magazine new digital format

Volume 2 : Issue 10 TM

www.HRProfessionalsMagazine.com

Highlights of

Does an Informal Complaint Qualify as Opposition Under Title VII?

2012 TN SHRM Conference

& Exposition

WARNING!

Don’t Void Your Stop Loss Insurance!

Top

Can the NLRB

Labor & Employment Law Attorneys

Prohibit Confidentiality in Workplace Investigations?

BEST Practices for Form I-9 Compliance

Kellie Conn, SPHR

Director TN SHRM State Council

HOW TO

Legally Use

Assessments

Bringing Human Resources & Management Expertise to You

14% Increase in OFCCP Audits in 2012

www.HRProfessionalsMagazine.com Editor

Cynthia Y. Thompson, MBA, SPHR Publisher

The Thompson HR Firm HR Consulting and Employee Development Art Direction

Park Avenue Design Contributing Writers

Mabel Arroyo Sally Barron Voss W. Graham Pamela Irons Lisa P. May Tim Orelleno, PHR Jennifer Riley Tanja L. Thompson Julieanna Walker, PHR Robert Williams, Jr. Board of Advisors

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

Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors.

HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2011 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.

Features 4 Letter from the Editor 5 Profile: Kellie Conn

WEBextras

14 The Top Labor & Employment Attorneys in TN, MS, AR

JOIN Today

21 How to Legally Use Assessments 24 Warning! Don’t Void Your Stop Loss Insurance!

EXCLUSIVEACCESS

28 Best Practices for Form I-9 Compliance

HTTP://HRPROFESSIONALSMAGAZINE.COM/ EXCLUSIVES/

Departments 8 NLRB: Can the NLRB Prohibit Confidentiality of Workplace Investigations?

19 EEOC: Does an Informal Complaint Qualify as Opposition Under Title VII? 22 Book Look: Two Books by 2012 TN SHRM Conference Keynote Speakers 27 Leadership: Wes Moore Speaks to the Breakfast Club 30 Recruiting: 5 Steps to Effectively Screen Top Level Executives

Columns 11 SHRM-Memphis Bulletin 12 SHRM-Memphis Who’s Who?

32 OFCCP: Keeping Your Pots of Gold Safe Before An Audit PT II

Industry News 6 TN SHRM State Council and Conference Committee 7 Pictorial Highlights of 2012 TN SHRM Legal Day 34 Highlights from the 2012 TN SHRM Conference Awards Luncheon 35 HR Professionals Sponsors and 2012 TN SHRM Conference Sponsors

Next Issue Highlights from the AR SHRM Employment Law and Legislative Conference More Top Attorneys in Labor & Employment www.HRProfessionalsMagazine.com

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W

a note from the Editor

hat an exciting time at the 2012 TN SHRM Conference & Exposition. Congratulations to our host chapter, SHRMMemphis, for one of the best conferences ever! And congratulations to the Conference Committee on their selection of speakers and social events!

I hope you enjoy reading the highlights from the conference.

Cynthia with Shelly Trent, SPHR, SHRM Field Services Director of the Southeast Region

We are bringing back one of our most popular articles from October 2011 – The Top Attorneys in Labor and Employment Law as selected by Chambers USA. Of course, we expanded the list from the greater Memphis area to include TN, MS, AR for you. This is not an exclusive list, and we hope to bring you more next month.

Our first anniversary was in September and we celebrated with a new name and a new and improved website. http:/HRProfessionalsMagazine.com. We have a new feature that I know you will enjoy – you can now search for articles by topic! Give it a try and let me know how you like it at cynthia@HRProsMagazine.com. I would love to hear from you! We also have a new Facebook page: http://on.fb.me/TN5nlK. Be sure to browse the photos we posted from the 2012 TN SHRM Conference! Thank you for all the new LIKES we’ve received!

The 2012 AR SHRM ELLA (Employment Law and Legislative Affairs) Conference was September 19-20 at The Peabody Hotel in Little Rock! It was great seeing our AR SHRM friends there. I especially enjoyed seeing Michael Layman with SHRM Governmental Affairs at the Conference. He provided a federal HR public policy update that we will tell you about next month. You can follow Michael on Twitter at @SHRMLayman. You will also find photos from the ELLA Conference on our new Facebook page. Next month we bring you the highlights from the conference!

I hope to see you at the Strategic Leadership for HR Executives Seminar October 11. Jim Wachtel will be talking about how to sell wellness to your CFO, and Cristie Travis will discuss the status of health care exchanges. I will give you some strategies to reduce your compensation expense. If you miss it, you can catch my presentation on October 25, when I will be presenting it as a webinar for Ascentis. Registration is free at www.ascentis.com.

Don’t forget to get out and VOTE!

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

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

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www.HRProfessionalsMagazine.com

on the cover

Kellie CONN

Kellie Conn, SPHR Director, Tennessee SHRM State Council Vice President, HR Services Paradigm Group, Nashville, TN Kellie has more than 19 years of experience as a practitioner of organizational development.

A member of the Paradigm Group team since 2006, she plays an integral role in developing and implementing HR solutions for clients, including strategic planning, executive and management coaching, job analysis, management training development and delivery, HR audits, selection and evaluation practices and acts as an advisor on employment law best practices. She is also responsible for the internal HR management of the firm.

Kellie’s professional background includes leadership, HR management and consulting roles in healthcare, business services, technology and not-for-profit organizations.

She received her MS in industrial / organizational psychology from the Florida Institute of Technology. She is certified by the Human Resource Certification Institute as a Senior Professional in Human Resources (SPHR). Currently, Kellie serves as director of the Tennessee SHRM State Council and is a past president of the Nashville area Middle TN SHRM chapter. She serves as an examiner and is a former co-chair of the Nashville Area HR Excellence Program.

Kellie was honored with the Nashville Emerging Leaders Award (NELA) for HR in 2009. She has also received the 2004 HR Management Excellence Award and, in 2010, was awarded Tennessee’s James House Williamson prize for Outstanding Contributions in HR. She lives in Nashville, TN. 

www.HRProfessionalsMagazine.com

5

2012 TNSHRM CONFERENCE

2012 Tennessee SHRM Conference & Exposition

Thanks TN SHRM for attending the 2012 Conference in Memphis! We hope you found the music in you and that you enjoyed our keynote speakers who brought you a combination of music, motivation, and movement. Special thanks to SHRM-Memphis and the State Conference Committee for their hard work and dedication in bringing us one of the best conferences ever!

We are looking forward to the 2013 TN SHRM Conference & Exposition that will be held in Nashville at the Gaylord Opryland Hotel September 15-18. The MT-SHRM Chapter will be our host next year. The opening keynote speaker will be Kix Brooks, Tennessee business owner and successful entrepreneur. There will be five learning tracts; Strategic Business Management, Culture by Design, Total Rewards, Talent Management, and Legal and Legislative. You can register online NOW at http://www.tnshrmconference.org.

Meet the Tennessee SHRM State Council

(L-R) Bottom row: Mary Lee Williams, PHR, TN SHRM District Director East TN; Linda Glasgow, President, Tennessee Valley HR Association; France Gasquet, TN SHRM State Conference Chair; Tiffany Coursey, TN SHRM College Relations Chair; Jeff Ginsburg, SPHR, TN SHRM Marketing Chair; Julieanna Walker, President, SHRM Memphis; Austin Baker, TN SHRM Foundation Chair; Sheryl Ransom, TN SHRM Director Elect; John Carbonell, President, West Tennessee SHRM (L-R) Middle row: Tara Brown, PHR, TN SHRM Secretary and President, Clarksville Area Chapter SHRM; Elizabeth Crutcher, President, Duck River SHRM; Valerie Gifford, PHR, TN SHRM Treasurer; Dennis Stull, President, Middle Tennessee SHRM; Amy Kaderi, President, Highland Rim SHRM (L-R) Top row: Kellie Conn, SPHR, Director TN SHRM; Jennifer Padilla, President, Northeast Tennessee SHRM; Aimee Hull, TN SHRM Membership Chair; Bill Cooper, TN SHRM Awards and Scholarships Chair; Don Ray, TN SHRM Past Director

Not pictured: Nancy Connelly, President, Upper Cumberland SHRM; Janet Leamon, President, Chattanooga SHRM; Allen Parton, President, Stones River SHRM; Kent Carter, President, Volunteer Chapter of SHRM; Rebecca Harmon, TN SHRM Certification Chair; Ron Daves, TN SHRM Diversity Co-Chair; Fred Bissinger, TN SHRM Diversity Co-Chair; Kara Shea, TN SHRM Legal and Legislative Chair; Craig Butler, TN SHRM Workforce Readiness Chair; Avery Young, TNSHRM Professional Development Chair; Tracye Mayolo, TN SHRM District Director Middle TN; Rhonda Lee, TNSHRM District Director West TN

Congratulations to 2012 Tennessee State Conference Committee!

(L-R) Nancye Claxton, Julieanna Walker, PHR; Jennifer Blake, Sandra Moak, Antoinette Wiseman, France Gasquet, Yvette Brooks, Angela Lamb, PHR; Verlinda Henning, SPHR; Margie Coltharp, Rolana Bourland, PHR; Rachelle Hart, PHR. Not pictured: Trina Hyman, Tisch McDaniel, Jamie Gondo, Joel Myers, Charlotte Brown, Alicia Etscorn, Jonathan Hancock, Kelli Kelly

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2012 TNSHRM CONFERENCE

LEGAL DAY

at the TN SHRM Conference & Exposition

Wednesday, September 12, was Legal Day at the Conference and Baker, Donelson, Bearman, Caldwell & Berkowitz was the exclusive sponsor. They presented an entire day of programs focused on helping you stay in harmony with the ever-changing rules and requirements governing the employment relationship. Here are some highlights from Legal Day.

Jennifer Keller, Labor and Employment Law Practice Leader at Baker Donelson, presented Employment Law Fundamentals. Jennifer works in the Johnson City Office.

Charles Grant from the Nashville Office discussed The Attorney-Client Privilege in HR Investigations.

Jonathan Hancock is with the Memphis Office and he presented The Top Ten Employment Law Tunes.

Rusty Gray with the Chattanooga Office led a panel discussion on Dealing With Discrimination and Unemployment Claims. It was the closing General Session.

David Gevertz with the Atlanta Office presented Social Media and Employee Privacy Concerns.

Angie Davis from the Memphis Office presented Is Arbitration Dead or Alive?

Kim Vance with the Nashville Office spoke on Bulletproof Documentation.

Following the closing general session, attendees enjoyed a reception in the Exhibition Hall. For full bios on the attorneys above, please visit www.bakerdonelson.com. For more photos, please visit http://www.facebook.com/pages/HR-Professionals-Magazine.

www.HRProfessionalsMagazine.com

7

LA W R O B

Can the NLRB

LA

Prohibit

Confidentiality of Workplace Investigations?

By Tanja Thompson

If

you thought that the National Labor Relations Board (“NLRB” or “Board”) was stepping outside the box when it increased its focus on the lawfulness of employer policies in light of employees’ Section 7 rights, the Board’s recent case regarding the confidentiality of workplace investigations may give you, as a human resources professional, even greater pause. In Banner Health System, 358 NLRB No. 93 (2012), a 2 to 1 Board held that an employer must establish a specific legitimate business justification for requiring employees to maintain confidentiality during internal investigations of employee complaints. Members Griffin and Block comprised the Board majority. Griffin and Block were two of three Board members appointed by the president on January 4, 2012 during a purported Senate recess. The Board members’ appointments were controversial and currently are the subject of judicial scrutiny. If the appointments are found to be invalid, the Banner Health System case may be vacated. In the meantime, however, employers should understand the effects of this new decision on their workplaces.

Another NLRB Decision that Protects Employees’ Section 7 Rights The Board in Banner Health System concluded that an employer may not maintain a blanket rule prohibiting employees from discussing ongoing investigations of employee misconduct in the workplace. According to the Board’s decision, such a blanket rule violates Section 7 of the National Labor Relations Act (“NLRA” or “the Act”). Section 7 protects employees' rights to engage in "concerted activities" for their mutual aid and protection, including engaging in conversations that affect employees’ working environment or terms and conditions of employment (like discussing an employee’s complaint that is the subject of an ongoing investigation). The Board's decision continues its recent trend of invalidating common employer practices and policies on the stated grounds of protecting Section 7 rights. And, it applies to both union and non-union workplaces.

The Company’s Practice Was Not Dissimilar to Employers’ Practices Nationwide The employer in the case, a medical center, was not engaging in a unique practice. Employers conduct workplace investigations all the time and for many different reasons. Investigations are conducted as part of audit or compliance measures, in response to employee or customer complaints, and in anticipation of litigation, among other reasons. And during most of these investigations, employers seek to keep the investigation as confidential as practicable – consistent with the goal of conducting a full and fair investigation. The medical center may have been taking the same approach that many, if not most, employers take on a regular basis when engaging in workplace investigations – attempting to maintain confidentiality to ensure an effective investigation. Thus, employers conducting internal investigations often: • seek to avoid collusion among witnesses; • seek to minimize disruption and gossip in the workplace; • seek to maximize the cooperation of witnesses; and • seek to prevent any possible retaliation by alleged wrongdoers.

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The facts at issue in the Banner Health System case are simple. The NLRB's general counsel alleged that the medical center's "Interview of Complainant Form," which included a general instruction that employees making internal complaints not discuss their complaints with co-workers during the ensuing investigation, violated the NLRA. The medical center's human resources consultant did not provide employees with copies of the form during the interviews, but used the form as a guide when conducting interviews. Although not entirely consistent in giving the instruction, the human resources consultant routinely relayed the instruction to interviewed employees.

Contrary to the Administrative Law Judge who first heard the case, the Board majority rejected the employer’s argument that the confidentiality instruction was necessary to protect the integrity of its investigations and found the employer's "generalized concern" insufficient to outweigh employees' Section 7 rights. The Board held that in every investigation an employer must identify a specific need for maintaining confidentiality before such an instruction may be deemed consistent with employees’ Section 7 rights. Consequently, the employer's blanket instruction violated the Act. While the Board's ruling does not equate to an across-the-board prohibition on confidentiality during workplace investigations, the decision does place the burden on employers to justify a confidentiality requirement. Moreover, the Board's holding clearly precludes employers from maintaining a blanket confidentiality rule. Employers will now have to demonstrate a specific legitimate business justification for imposing a confidentiality requirement.

According to the Board, to justify a confidentiality requirement, an employer is required to make an individualized assessment for each investigation and determine:

• whether any witnesses need protection: • whether evidence is in danger of being destroyed; • whether testimony is in danger of being fabricated; or • whether there is a need to prevent a cover up.

It is not clear from the Board’s recent decision, however, exactly how this assessment should be made; what degree of evidence is required; and what, if any, documentation is required. Moreover, the problem with placing the burden of proof on the employer to justify the need for confidentiality is that employers conducting these types of workplace investigations often do not have specific advance warning of the need for confidentiality until the damage already is done. Consequently, requiring employers to justify confidentiality in advance could interfere with the effectiveness of an investigation. Further, placing this burden on employers when they face significant potential liability for retaliation under Title VII and other anti-discrimination laws is seemingly unjust.

The Board majority in Banner Health System rejected the dissent's finding that the confidentiality instruction was merely a "suggestion," rather than a rule, carrying with it no express threat of discipline for violating the instruction. The majority emphasized that the "Interview of Complainant Form" stated that the instruction applied to "all interviews," and that the employer routinely gave the instruction to employees. The majority further reasoned that Board precedent does not distinguish between employer requests and instructions, and does not require that a rule include "a direct or specific threat of discipline" to be found unlawful.

Prior Board Decisions Have Recognized the Importance of Confidentiality During Workplace Investigations In its Banner Health System decision, the Board did not overrule prior decisions in which it recognized the importance of confidentiality during investigations of workplace misconduct, workplace theft, and employee drug use. Moreover, the Board has previously recognized an employer's interest in protecting the attorney-client privilege.

Depending on the nature of the workplace investigation and the laws of the state in which the investigation occurs, an employer may require that employees maintain confidentiality to protect the attorney-client privilege. If the confidentiality requirement is a result of actual or threatened litigation or a government enforcement action, the subject matter could be protected by attorney-client or attorney work product privileges. Additionally, it is important to keep in mind that because the Act does not protect the rights of supervisory employees, nothing in the Board's decision precludes employers from maintaining a general rule requiring statutory supervisors to maintain confidentiality during an internal investigation. Of course, employers will need to be able to assess whether a particular individual is a supervisor under the NLRA (not just someone holding a “supervisor” title) before applying confidentiality rules to supervisory employees.

Additionally, although the Board rejected global confidentiality instructions applicable to all employer investigations, such provisions arguably still may be appropriate in Title VII discrimination, harassment, and retaliation contexts. In 2004, an NLRB Administrative Law Judge found that an employer had legitimate business justifications for instructing an employee not to discuss her sexual harassment claim during an investigation. Those business interests included preventing the alleged harasser from prematurely learning of the claim and creating a hostile environment for the accuser and others; potentially

influencing witnesses’ recollection of events; and ensuring the integrity of the investigation so that others would feel confident when reporting harassment. In deciding Banner Health System, the majority did not appear to consider guidance from other federal agencies such as the Equal Employment Opportunity Commission (EEOC), which has previously counseled employers to inform employees that it will protect the confidentiality of harassment allegations to the extent possible.

As most human resources professionals understand, maintaining confidentiality is critical to creating an environment that encourages employees to promptly report wrongdoing in the workplace, such as discrimination, harassment, theft, bullying, or conflicts of interest.

Prompt and effective reporting is necessary to successful investigation and remediation of these types of complaints, and may also be a key defense in any resulting litigation.

Employers Should Review Their Investigation Policies, Forms, and Practices While this issue may ultimately be reversed by the courts or by a new Board, for now, employers should examine their existing policies, procedures, and internal forms regarding workplace investigations to determine if there are any blanket confidentiality requirements that need to be modified. Employers should ensure that all internal documentation, as well as instructions given to investigators are consistent with the Board’s recent Banner Health System decision. Employers should remove blanket confidentiality prohibitions and move toward requiring confidentiality on a (demonstrated) as-needed basis – such as in those situations expressly stated by the Board. Employers also should train those individuals charged with conducting workplace investigations on how to identify the circumstances in which a confidentiality instruction is appropriate, how to narrowly tailor any confidentiality instruction in light of this recent decision, and how to most effectively conduct investigations where a confidentiality requirement is not justified. If steps can be taken to reduce the risk of Board challenges, many employers will likely continue to err on the side of protecting confidentiality – they will just have to do so with a little more care and a little more forethought.

In addition to altering blanket confidentiality policies, in cases where an employer cannot demonstrate a legitimate business need for confidentiality, the employer may consider taking steps to mitigate confidentiality concerns. Carefully planning the order of the interviews, conducting simultaneous interviews, or conducting interviews in rapid succession may limit the amount of conversation that goes on between interviews. Employers may also consider keeping employees sequestered until its investigators are able to interview them.

Ultimately employers will need to make case-by-case assessments to determine whether the business reasons justify confidentiality instructions. Employers will also, however, need to weigh the risks of NLRB scrutiny against other potential risks, including possible liability for retaliation. So, while it may not always be appropriate to tell employees to maintain confidentiality during an investigation, employers will need to be sure to keep their eyes open to avoid potential pitfalls – or risk additional findings of unlawful conduct.

Thanks to the NLRB, your job just got a little more complicated.

Tanja L. Thompson Shareholder, Littler Mendelson tthompson@littler.com www.littler.com www.HRProfessionalsMagazine.com

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BULLETIN HR Professionals, Please join the SHRM-Memphis Board of Directors in congratulating the 2012 TN SHRM State Conference Team for successfully meeting their goals encouraging all of us to "Find the Music in You"!! At the closing ceremony, HR professionals roared as I asked them how pleased they were with: 1) Legal Day sponsored by Baker Donelson, Bearman, Caldwell and Berkowitz, 2 ) the number of Strategic (10.5) and General (6.75) HRCI Credits available, 3) the variety and caliber of topics and speakers, 4) the great food throughout the conference, 5) the new venues used (The Memphis Cook Convention Center, The Columns and Marriott Hotel) and 6) the amount of music they found within themselves. Thank you State Conference Team for all of your hard work!

Of course, none of this would have been possible without Blue Cross Blue Shield of Tennessee, all other sponsors and exhibitors. Without their participation, registration fees would have been higher to cover the costs for all the above. Thanks to all sponsors and exhibitors!

Also, thanks to all of you engaged HR Professionals who chose to share your State Conference experience with us; and thank you, Cynthia, for highlighting the conference in this month's edition of HR Professionals Magazine.

If you are not aware, MT SHRM's 2013 TN State Conference Team has been working hard to secure Key Note Speakers, like, Kix Brooks, Michael Watkins and Margaret Morford. Twenty recertification credits and five learning tracks will be available at the Gaylord Opryland Conference Center in Nashville. Curious and Early birds, learn more now and REGISTER at http://mtshrm.org/.

The Tennessee SHRM State Council asked me to thank everyone who participated in the 2012 Wage and Salary Survey! Data collected during August will be analyzed in September. After that, all participants will be provided online access to their local results once they are published. Save the date for the 2013 TN SHRM State Strategic Leadership conference is Friday, February 1, 2013 at the Nashville Airport Marriott from 8 a.m. to 3:45 p.m. TN SHRM is applying for 6 Strategic HRCI credits for this conference.

The State Council voted on the 2013 Officers at their meeting in Memphis on September 11, 2012.

Please join me in welcoming: Communication Chair, Jeff Ginsburg Legislative/Legal Chair, Kara Shea Certification Chair, Rebecca Harmon Diversity Chair, Ron Daves/ Fred Bissinger SHRM Foundation Chair, Austin Baker College Relations Chair, Tiffany Coursey Awards & Scholarships Chair, Bill Cooper Workforce Readiness Chair, Mark Travis Professional Development Chair, Corrine Dennison

State Director, Sheryl Ransom Director-Elect, Valerie Gifford Past Director, Kellie Conn Treasurer, Shawn Pellington Secretary, France Gasquet District Director - West, Janice Shipman District Director - Middle, Tara Brown District Director - East, Susan Deaton State Conference Chair, Barbara Stewart Membership Chair, Aimee Hull

Our goal is to be outstanding.

Baker Donelson congratulates our labor and employment attorneys named in Chambers USA: America’s Leading Business Lawyers in 2012

In Mississippi: Brooks Eason J. Randall Patterson In Tennessee: Jennifer P. Keller Steven H. Trent M. Kim Vance Edward R. Young Timothy B. McConnell

We bid Fairwell to several 2012 Council members: District Director - West, Rhonda Lee District Director - Middle, Tracye Mayolo District Director - East, Mary Lee Williams

Workforce Readiness Chair, Craig Butler Professional Development Chair, Avery Young Past Director, Don Ray w w w. b a k e rd o n e l s o n . c o m

Best Regards,

Julieanna Walker, PHR 2012 SHRM-Memphis President 901-603-1423

THIS IS AN ADVERTISEMENT. Ben Adams is Chairman and CEO of Baker Donelson and is located in our Memphis office, 165 Madison Avenue, Suite 2000, Memphis, TN 38103. Phone 901.526.2000. Š2012 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

www.HRProfessionalsMagazine.com

11

SHRM

MEMPHIS

WHO’S who

SHRM-Memphis

WHO’S who?

Getting to know your Board

Every issue we spotlight Board members, chairpersons and prominent leaders in the HR and business community.

Brad Federman Engagement Chair

Brad Federman is the 2012 Engagement Chair for the SHRM-Memphis Board of Directors. Brad’s responsibilities include identifying opportunities to improve engagement of volunteers, meeting attendance, social attendance, and executive participation. He also serves on the Strategic Initiative Committee working to increase engagement through excelling at the primary chapter functions of networking, education, leadership opportunities and building visibility and outreach.

Brad is President of Performancepoint, LLC. He has over 22 years of experience in the sales, marketing, operations, and performance improvement as a professional, leader, executive and coach. Previous to Performancepoint, Brad was the EVP of Novations Group, and has held leadership positions with Accenture and Humana Inc. Brad is an author, speaker, trainer, consultant and entrepreneur. He holds a B.A. in Communications from the University of Maryland and a M.Ed. in Human Resource Development from Vanderbilt University.

Highlights from the Centre Group

Wine & Cheese Reception Attendees at the TN SHRM Conference were invited to a wine and cheese reception hosted by The Centre Group at Art Under a Hot Tin Roof on Main Street prior to the SHRM Social at the Columns at One Commerce Square.

Carol Twyman, HR Manager, Memphis Chamber of Commerce; with Joel Myers, Principal of The Centre Group.

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Kiersten Bagley with Howell Marketing and Shane Bailey with DeVry University.

Bud Richey with Rhodes College and Grant Boucek with First Tennessee Advisory Services.

2012 TNSHRM CONFERENCE

Billy Kirsch, Kidbilly Music, was the Keynote opener on Thursday. He helped us “Find the Music in You.” Kirsch is a Grammy and Emmy-nominated songwriter. www.kidbillymusic.com

Pete Thomas was also a keynote speaker on Thursday. He helped us find the winner in us. Pete was the At-Home winner of Season Two of NBC’s The Biggest Loser. www.winningman.com

Todd Photopulos, attorney with Butler Snow. Todd presented, “Writing to the Jury.” todd.photopulos@butlersnow.com

Pictorial Highlights from

2012 Tennessee SHRM Conference & Exposition

Ron Franks, Gateway Group Personnel, spoke on “What You Always Wanted to Know About Recruiting.” ron@gatewaypersonnel.com

Terri Murphy, President of Terri Murphy Communications, Inc. presented, “The Power to Connect Generational Communication Dynamics.” terri@terrimurphy.com

Kenny Sawyer, VP Human Resources at Verso Paper Corp. His presentation was about increasing employee engagement in mature operations. Kenny.sawyer@ versopaper.com

Bill Wilder spoke on Change Management Best Practices Research.

Bill is Director of LifeCycle Engineering and Prosci. www.ice.com

Elvis was in the building – The Columns, that is, for the SHRM Social at One Commerce Square. Everyone had a “rocking” good time!

Bradley Harris with Toastmasters gave the presentation on “What’s Your Speaking Style?”

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TOPAttorneys Labor & Employment Law

HR Professionals Magazine congratulates you on a job well done!

It is our pleasure to introduce the 2012 Chambers USA list of top labor and employment law attorneys in TN, MS, AR. Chambers and Partners annually publish their leading guides to the legal profession. A team of 100 highly-qualified full-time researchers identify and rank the world’s best lawyers and law firms based on in-depth, objective research.

Their researchers conduct thousands of confidential interviews with lawyers and their clients worldwide. For more details about Chambers and Partners research, please visit their website at www.chambersandpartners.com. This list is not inclusive and represents the firms that responded to our inquiry.

Paula Graves Ardelean’s practice in Ridgeland, MS and includes Employment Training and Counseling, Compliance Advice, Non-Competition Agreements and Employment Litigation. Ardelean’s distinctions include being AV-rated by Martindale-Hubbell; The Best Lawyers in America®, Labor and Employment Law, Labor and Employment Litigation; Chambers USA, Americas Leading Lawyers for Business, Labor and Employment; Fellow, College of Labor and Employment Lawyers; Fellow, American Bar Association; 50 Leading Business Women, Mississippi Business Journal 2009; Mississippi Bar Young Lawyers Division President’s Award for Public Service. She is a member of the American Bar Association.

Paul Prather served as a clerk for the Chief Judge of the United States District Court in Memphis. Since then he has devoted his career to representing employers in all areas of employment relations law. As a trial lawyer, he has represented employers in civil litigation in more than 20 states, trying many cases successfully to conclusion before juries. He has been annually recognized by his peers in Best Lawyers in America and in Chambers USA: America’s Leading Business Lawyers, and as one of the Top 50 lawyers in Memphis in Mid South Super Lawyers. Mr. Prather has also been recognized as a fellow of both the 14

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American College of Labor and Employment Lawyers and the Litigation Counsel of America.

He is a founding member and director of the Management Labor and Employment Roundtable and is active in the labor and employment law sections of the Memphis, Tennessee and American Bar Associations.

Russell Gunter’s practice is in Little Rock, where he practices labor and employment law before the Equal Employment Opportunity Commission, the National Labor Relations Board, the Wage & Hour Division of the Department of Labor, and in federal and state court employment litigation. Mr. Gunter was named Best Lawyers’ Little Rock Labor and Employment Lawyer of the Year in 2011. Other honors include being named to Best Lawyers of America for more than 25 years, Mid-South Super Lawyers since 2006, Chambers USA for the past eight years and to the Mid-South Super Lawyers Top 50 list of attorneys in Arkansas. He is an active member of SHRM at the local, state and national levels. Mr. Gunter testified before U.S. Congress on behalf of SHRM’s legislative position and appeared on the Today Show on behalf of SHRM’s legislative positions.

Carolyn B. Witherspoon practices in the areas of labor and employment defense and transportation law in Little Rock. She is a frequent contributor to legal publications on topics involving employment and personnel issues.

Ms. Witherspoon is active in the Arkansas and American Bar Associations; is a member of the prestigious Union Internationale des Avocats, an international society of legal professionals recognized before the United Nations; and also serves as an arbitrator for the Court of Arbitration for Sport. She is a 2005 recipient of the Charles L. Carpenter Memorial Award from the Arkansas Bar Association and is listed among the top lawyers in the nation by Best Lawyers in America, Chambers USA: America's Leading Business Lawyers, Mid-South Super Lawyers and was named to the Mid-South Super Lawyers Top 50 list of attorneys in Arkansas.

Louis P. Britt III concentrates his Memphis practice on employment litigation and advice, representing private and public employers in a broad range of employment matters.

He handles employment discrimination and harassment cases (Title VII, ADA, ADEA and FMLA), wage/hour matters, enforcement and defense of restrictive covenants contained in employment agreements, and employment related torts. He is experienced in complex and class action litigation, and has tried cases in state and federal courts across the country.

Louis has extensive experience in public sector representation in both litigation and collective bargaining. He received his JD from Tulane University Law School. He is also listed in The Best Lawyers in America.

Brooks Eason’s Jackson, MS practice includes complex business litigation and employment disputes. He has successfully defended clients in numerous employment matters, including class and collective actions and individual suits alleging discrimination on the basis of race, gender, age, religion and disability as well as claims of sexual and racial harassment and suits under the FLSA. He has served as lead counsel for employment litigation for the largest employer in Mississippi for 20 years. Listed in Chambers USA: America's Leading Business Lawyers since 2007. Listed in The Best Lawyers in America since 2010 AV® Preeminent™ Peer Review Rated by Martindale-Hubbell.

Herb Gerson focuses his practice in Memphis on management side issues related to traditional labor and employment matters.

He devotes much of his practice to counseling clients on avoiding employment discrimination claims and developing a positive work environment.

Herb earned his JD from Emory University School of Law in 1973 and is licensed in Georgia and Tennessee. He is a fellow of the

College of Labor and Employment Lawyers and a Fellow of Litigation Counsel of America and is also listed in The Best Lawyers of America.

David P. Jaqua’s Memphis practice includes employment litigation; arbitration and mediation; traditional labor practice, including representation campaigns, NLRB hearings and negotiations; management counseling and training. AV Rated, Martindale Hubbell; The Best Lawyers in America, Labor and Employment Law; Chambers USA, Americas Leading Lawyers for Business, Labor and Employment, MidSouth Super Lawyers, Employment and Labor; Fellow Tennessee Bar Foundation. He is a member of the American Bar Association (Labor and Employment Section); Tennessee Bar Association (Labor and Employment Section); Mississippi Bar, Tennessee Bar Foundation, University of Mississippi, J.D., with honors, 1976; United States Naval Academy. B.S. Mathematics, 1973.

Jonathan Kaplan has devoted his entire career to representing management clients exclusively in all areas of labor relations, employment law, and

human resource management. His Memphis practice spans litigation, training, and consulting, and in which he has handled matters in more than 40 states and Canada. Mr. Kaplan also is a frequent speaker before management and legal groups and has published numerous articles on labor and employment issues. He is listed in the Best Lawyers in America, Chambers USA: America’s Leading Lawyers, and Super Lawyers named him as one of the top 100 lawyers in Tennessee.

Tim Threadgill’s Ridgeland, MS practice includes Employment Litigation and Labor and Employment Law. Threadgill’s distinctions include The Best Lawyers in America®, Labor and Employment Law; Chambers USA, America’s Leading Lawyers for Business, Labor and Employment; Fellow, Young Lawyers Division, Mississippi Bar. He is a member of the American Bar Association (Labor and Employment Section) (Litigation Section); American Employment Law Council; Mississippi Bar Association (Labor and Employment Section); Capital Area Human Resources Association; Capital Area Bar Association. University of Alabama, JD, 1990; University of Mississippi, BBA, Management, 1988.

Jay Kiesewetter began his career as an attorney with the National Labor Relations Board and has devoted his practice to representing clients nationwide in the “traditional” areas of labor law. He counsels employers in union free management and advises non union companies facing union organizing activity. He also represents employers in litigation before the NLRB and U.S. Courts of Appeals. In addition, Mr. Kiesewetter works with companies that have unions to improve union management relations and represents management in contract negotiations, arbitrations, and labor disputes. He is listed in Best Lawyers in America, Chambers USA: America’s Leading Lawyers, Top One Hundred Super Lawyers in Tennessee, Top 50 Super Lawyers in Memphis, and Business Tennessee’s “150 Best Lawyers in Tennessee.”

Jeff Walker’s Ridgeland, MS practice includes Labor and Employment Law, Litigation, Traditional Labor Law and Government Investigations. Walker’s distinctions include being AV-rated by Martindale-Hubbell; Fellow College of Labor and Employment Lawyers; The Best Lawyers in America®, Labor and Employment Law, Labor and Employment Litigation; Chambers USA, America’s Leading Lawyers for

OUT I N F R O N T

Labor and Employment

Our Adams and Reese Labor and Employment Team manages employee equation and mitigation risks. Managers and executives from all industries seek our advice in advance of significant employment decisions or legislative and policy changes, and rely on us for counsel regarding such matters as employee claims, union and non-union issues, safety, benefits and compliance. Our attorneys are admitted to practice at all levels of state, federal and appellate courts, and team members have argued and advocated before the EEOC, the OFCCP, the NLRB, OSHA, the DOL Wage-Hour Administration, as well as various state and local workplace agencies. They possess extensive knowledge of human resources requirements, union and non-union structures and the critical labor policies surrounding compensation, hiring, termination, retention, immigration and mergers and acquisitions.

If you need preventative training, counsel and updates that support compliance and positive employee relations, Adams and Reese can address your needs.

www.adamsandreese.com

800.725.1990

ALABAMA | FLORIDA | LOUISIANA | MISSISSIPPI | TENNESSEE | TEXAS | WASHINGTON, DC Attorney Advertising. No representation is made that the quality of the legal services to be performed is greater than the quality of the legal services performed by other lawyers. Author: Charles P. Adams, Jr. FREE BACKGROUND INFORMATION IS AVAILABLE UPON REQUEST.

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15

Business, Labor and Employment; Mid-South Super Lawyers, Employment and Labor. He is a member of the American Bar Association (Labor and Employment Law Section) (Litigation Section); Defense Research Institute; Mississippi Bar Association (Labor and Employment Law Section); Mississippi Defense Lawyers Association; Capital Area Bar Association.

University of Mississippi, JD, 1978; University of Wisconsin, BS, 1975.

J. Bruce Cross practices in Little Rock in the areas of labor and employment defense law. His practice includes work before the NLRB, the EEOC, the Wage & Hour and OFCCP Divisions of the Department of Labor, as well as related federal and state court litigation. He is past chair of the American Bar Association’s Committee on the Development of the Law under the National Labor Relations Act. He is listed in Mid-South Super Lawyers, Chambers USA and Best Lawyers in America, and was named to the Mid-South Super Lawyers Top 50 list of attorneys in Arkansas. He currently serves as Chairman of the America (ABC); Mr. Cross received his undergraduate degree from the University of Notre Dame and his JD degree from the University of Arkansas School of Law. James Mulroy II practices workplace litigation and counseling on behalf of management, including class and collective actions, discrimination, wage and hour, non competition agreements in Memphis. He is a Fellow in the College of Labor and Employment Lawyers, Arkansas, Tennessee, Mississippi and Illinois Bar Associations. He is a former Navy JAG Corps’, AV Rated by Martindale Hubbell; Listed in Best Lawyers since 2006; Listed in Super Lawyers since 2007; Memphis Business Quarterly Top Lawyers. B.A. Rhodes College; MBA – University of Memphis; JD – University of Tennessee.

Arnold Perl focuses his Memphis practice on labor and employment law. He has successfully argued many cases before various United States Courts of Appeals, and is admitted to practice before the United States Supreme Court. He has extensive experience counseling organizations on remaining union free. He leads a uniquely effective leadership development program for all levels of management. In 2006, Arnold coauthored, Simple Solutions, with Tom Schmitt from FedEx published

by John Wiley & Sons. The book offers guidance and real-world insight on making collaboration work, tailoring leadership styles to fit team needs, assembling great teams and inspiring people.

16

www.HRProfessionalsMagazine.com

James “Jim” Keith practices in the areas of employment, education and administrative law in Mississippi. A focused aspect of his practice involves representing school districts, community colleges and universities throughout the State of Mississippi in employee matters, student issues, board/administration interaction and education of students with disabilities. He has handled all aspects of management/labor disputes, including employee reprimands and dismissals, walkouts, charges of unfair labor practices and other employment issues. Jim holds a degree in electrical engineering from Mississippi State University and received his JD from the University of Mississippi School of Law. He is listed in Chambers USA and Best Lawyers®.

Bart N. Sisk has a traditional practice in Memphis, which includes representation campaigns, union decertifications, NLRB hearings, business immigration law; management consulting and training; employment litigation. He is a member of the American Bar Association (Labor and Employment section); American Immigration Lawyers Association; Louisiana Bar Association; Tennessee Bar Association; Memphis Bar Association. AV-rated Martindale-Hubbell; Chambers USA, America’s Leading Lawyers for Business, Labor and Employment; Represented employers across the United States, Puerto Rico, and the Caribbean faced with union organizing, including multi-facility organizing and corporate campaigns.

University of Tennessee, JD, with honors, 1984; Memphis State University, BBA, cum laude, 1991.

Eva C. Madison’s practice is in Fayetteville and she represents and advises employers of all sizes in all aspects of Discrimination in Employment Act, the Arkansas Civil Rights Act, the Family and Medical Leave Act, the Fair Standards Act, and the Arkansas Minimum Wage Act, along with employment contract disputes and non-competition agreements. Eva is listed among The Best Lawyers in America and Chambers USA’s America’s Leading Lawyers for Business. She is an adjunct professor at the University of Arkansas School of Law, where she has taught a course on employment discrimination since 2004. Eva earned her J.D. from the University of Arkansas, summa cum laude and her B.S. from Vanderbilt University, magna cum laude.

Thomas Anthony Swafford concentrates his practice in Nashville in complex litigation including labor and employment law, ERISA/employee benefits, disputes related

to non-competition and trade secret issues, and transportation law. He has successfully defended union organizing attempts in 14 states and has practiced before the National Labor Relations Board and the National Mediation Board. Tony earned his JD from Case Western University.

He serves on the Executive Committee of the Transportation Lawyers Association and on the Tennessee Bankers Association Human Resources Committee. He is listed in Chambers USA and in the Nashville Business Journal’s Best of the Bar. Edward R. Young’s practice is in Memphis, but he has a nationwide practice representing public and private management in all phases of labor relations and employment law, including litigation, union avoidance and collective bargaining. He has over 40 years’ experience representing clients in state and federal courts on issues dealing with EEOC, NLRB and the U.S. Department of Labor. He has litigated matters in more than 20 states and in Canada. Listed since 2008 in Chambers USA: America’s Leading Business Lawyers. Listed in The Best Lawyers in America. AV® Preeminent™ Peer Review Rated by MartindaleHubbell. Listed in Mid-South Super Lawyers.

J. Randall Patterson concentrates his Mississippi practice in labor and employment law.

He represents employers before the EEOC and other administrative agencies, as well as in state and federal court. He also advises employers on policies and procedures, reductions in force, wage and hour issues, employee handbooks and general employment issues. Mr. Patterson is experienced in ERISA litigation, antitrust and white-collar criminal defense.

Listed in Chambers USA: America's Leading Business Lawyers since 2007. AV® Preeminent™ Peer Review Rated by Martindale-Hubbell.

Jennifer P. Keller’s practice is in Johnson City and she is Practice Leader of her firm’s Labor & Employment Department. Listed in Best Lawyers in America, Chambers USA: America’s Leading Business Lawyers, and Mid-South Super Lawyers, Ms. Keller regularly practices in state and federal court and before various administrative agencies, including the DOL, EEOC, THRC and NLRB. A substantial part of her practice is performing training for employers in the areas of harassment and discrimination prevention, drug-free workplace, union avoidance and similar issues. Listed since 2010 in Chambers USA: America's Leading Business Lawyers.

Listed since 2011 in Mid-South Super Lawyers.

Listed since 2008 in The Best Lawyers in America.

Listed in Lawdragon as one of the 40 Up and Coming Corporate Employment Lawyers in 2011.

Donna Smith Galchus’ Little Rock practice focuses on employment discrimination litigation, wage and hour, affirmative action compliance and immigration law.

She is listed in Best Lawyers in America in Immigration Law; Chambers USA: America’s Leading Employment Lawyers; Mid-South Super Lawyers; and was named to the Mid-South Super Lawyers Top 50 list of attorneys in Arkansas.

Ms. Galchus is a member of the Arkansas Association of Women Lawyers; Pulaski County, Arkansas and American Bar Associations; American Immigration Lawyers Association; Mid-South Immigration Lawyers; Fellow, College of Labor and Employment Lawyers; Chair, Eighth Circuit Credentials Committee; American Employment Law Council; and the Arkansas Bar Foundation. She serves on the Boards of Editors of the treatise on the Fair Labor Standards Act and the treatise on Age Discrimination, and has written and published various articles in Labor and Human Resource Trade Journals.

Timothy B. McConnell’s practice is in Knoxville, and he defends clients in matters arising under Title VII, the ADA, ADEA, FMLA, FLSA, SarbanesOxley and state-specific employment laws before administrative agencies (the Department of Labor, EEOC, Tennessee Human Rights Commission, OSHA) and in cases filed in federal and state courts. He also advises employers on matters including union avoidance and campaigns, FMLA administration, reductions in force, wage and hour issues, employee handbooks and workplace harassment. Listed in The Best Lawyers in America since 2010. Listed in Chambers USA: America's Leading Business Lawyers since 2012.

Benjamin H. Shipley’s practice in Little Rock includes work before the National Labor Relations Board, the Equal Employment Opportunity Commission and the Arkansas Employment Security Division, as well as related federal and state court litigation.

He is an active member of SHRM and currently serves as the president of the Western Arkansas Human Resource Association. Mr. Shipley is also an active civic leader, serving on the boards of Leadership Fort Smith, Westark Area Council (Boy Scouts) and the United Way of Sebastian County, among many others. He is listed in Best Lawyers in America for Labor and Employment Law, Mid-South Super Lawyers and Chambers USA: America’s Leading Lawyers for Business.

Jennifer Robinson has extensive experience defending employers against wage and hour class and/or collective actions involving claims of misclassification, minimum wage violations, unpaid overtime, and missed meal and rest breaks. She also counsels, trains and conducts audits for clients to ensure compliance with federal and state wage and hour laws.

In addition to her wage and hour practice in Nashville, Jennifer has defended employers in more than 100 single and multi-plaintiff lawsuits involving claims of discrimination, harassment, failure to accommodate and breach of contract.

Steven H. Trent concentrates his Johnson City practice in labor and employment law.

He represents employers before the NLRB and other state and federal agencies and advises employers on many topics, including union avoidance and FMLA administration. His multi-state practice includes defending claims under the Americans with Disabilities Act, Title VII claims, age discrimination claims, Equal Pay Act claims, FMLA claims, breach of contract claims and retaliation claims of virtually every kind. Listed in Chambers USA: America's Leading Business Lawyers since 2007. Listed in The Best Lawyers in America since 2005. Listed in Mid-South Super Lawyers in 2009 and 2011.

M. Kim Vance represents management in every aspect of labor and employment law in Nashville. She defends companies in employment litigation; presents in-house management training programs to reduce employment related legal risks; counsels management clients through auditing human resources policies and practices; and develops pre-litigation strategies to improve available defenses. She has represented management clients in State and Federal Courts and in defense of administrative proceedings. Listed since 2008 in Chambers USA: America's Leading Business Lawyers. Listed in Mid-South Super Lawyers since 2008. Listed in Best Lawyers in America.

Jeffrey “Jeff” Smith’s practice is in Memphis. Jeff has defended numerous employers against discrimination claims based on sex, age, race, religion and disability; unfair competition claims, wrongful termination, wage/ hour litigation and whistleblower litigation. He

has successfully obtained judicial enforcement of non-competition agreements for clients, with in-depth experience litigating executive compensation and benefits plans, including those governed by ERISA. Jeff is listed in Chambers USA and is recognized as a “Power Player” in Employment Law by Memphis Business Quarterly. He received his JD from the University of Mississippi.

Kara Shea’s practice in Ridgeland, MS includes Labor and Employment Law, Financial Services, Intellectual Property Law, Employment Litigation and Class & Collective Action.

Shea’s distinctions include Up and Coming in Chambers USA, America’s Leading Lawyers for Business, Labor and Employment; Listed in Nashville’s Business Journal’s 2012 Best of the Bar; “Nashville’s Top 101 Lawyers”, Nashville Post Magazine, 2011. She is a member of the American Bar Association; Nashville Bar Association; Tennessee Bar Association; Society for Human Resource Management; Employers Counsel Network (Tennessee Representative); MT-SHRM (Legislative Chair, Board of Directors). Vanderbilt University, JD, 1996; Boston University, BS, summa cum laude, 1991.

Jackson Lewis is proud to announce that Memphis partners J. Gregory Grisham,

James R. Mulroy III and James H. Stock, Jr. were selected for inclusion in the 2013 edition of

The Best Lawyers in America

®

With over 700 attorneys practicing in 49 locations nationwide, Jackson Lewis provides creative and strategic solutions to employers in every aspect of employment, labor, benefits and immigration law.

Our firm has one of the most active employment litigation practices in the U.S., including a current caseload of over 5000 litigation matters and 300+ class actions. To learn more about our services, please visit us online at www.jacksonlewis.com.

999 Shady Grove Road, Suite 110 • Memphis, TN 38120 (901) 462-2600 • MulroyJ@jacksonlewis.com

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17

Fisher & Phillips Value

Many law firms today talk about value as if it’s a new concept.

At Fisher & Phillips LLP, we were committed to providing value to our clients long before it became a fashionable topic of conversation. Our commitment to value dates back to the founding of the firm nearly 70 years ago. So how do we provide this value?

Atlanta Boston Charlotte Chicago Cleveland Columbia Dallas

We do only one thing: Represent employers in labor and employment matters. You benefit from our deep and broad expertise in the area of the law we know best, rather than our trying to be all things to a client.

Our attorneys will treat your legal problems as business problems, and we will help you avoid legal disputes. We are responsive, we respect our clients’ time, we are economical, and we reward our associates for quality work, not just for billable hours. We are national and local, with attorneys in 27 offices around the U.S. For more on the Fisher & www.laborlawyers.com/value.

Phillips

Value

Statement,

go

to

Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville

Memphis Renaissance Center 1715 Aaron Brenner Drive Suite 312 Memphis, TN 38120 phone: (901) 526-0431 toll free: (866) 424-2168 fax: (901) 526-8183

New England New Jersey New Orleans Orlando Philadelphia Phoenix

Solutions at Work

®

Portland San Diego San Francisco

www.laborlawyers.com

Tampa Washington, DC

E E O

Informal Complaint

• Title VII • of the Civil Rights Act of 1964

As

C

Does an

Qualify as Opposition Under Title VII?

By Sally Barron and Jennifer Riley

you may know, courts are not keen on employers firing employees for complaining about discrimination in the workplace. This is clear when a formal, written, complaint is made. But what if the complaint weren’t so clear, weren’t so formal? What if the employee is just venting,

or speaking up on behalf of a protected class other than his own? Could there be repercussions for firing an employee in one of those situations? An August 20, 2012, appeals court decision suggests management should be wary of taking action against a worker who stands up to culturally or racially insensitive remarks of his co-workers by informally complaining to Human Resources.

The Backdrop Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin. Under the retaliation provisions of Title VI (which are similar to those under the Age Discrimination in Employment Act and the Americans With Disabilities Act), employers are also prohibited from retaliating against an employee because the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the Act or because the employee has opposed any employment practice that is unlawful under the Act.

complaints about unlawful activity are generally protected, meaning that you cannot fire an employee because of his or her complaints about illegal discrimination without setting the stage for a retaliation lawsuit...

Not all complaints are protected, however. Although a complaint does not have to be written to count (in 20ll, the Supreme Court ruled that an oral complaint will do, under the appropriate circumstances), in order for a complaint to constitute protected activity under federal antidiscrimination law, the complaining employee must reasonably believe that the activity he or she opposes is unlawful under Title VII. It does not matter whether or not the challenged practice ultimately is found to be unlawful, as long as the employee reasonably believed it to be unlawful.

The Act doesn’t conveniently define “oppose” for us, but the United

Additionally, the employee’s conduct must specifically oppose the

States Supreme Court has already held that, because the statute did

unlawful practice at issue – vague complaints, complaints about general

not define the word, courts must apply its ordinary meaning: “to resist

office practices, or disagreements with coworkers will not suffice. The

or antagonize; to contend against; to confront; resist; withstand.” So,

complaint must specifically address the unlawful activity or practice.

applying that definition to the opposition clause of the Act, what does it mean to “oppose” an unlawful employment practice in a Title VII retali-

The complaining employee does not have to be on the receiving end of

ation claim?

the discriminatory practices at issue. It is enough that the employee is only advocating for someone else. Moreover, the complaining employee

The Basic Rules

does not even have to have witnessed the unlawful acts – complaints may be protected if they involve acts the employee learned about from others. The employee does, however, have to communicate his or her

The courts have long since established some rules that help clarify what

opposition to unlawful acts to the employer. Employees who do not

it means to “oppose” unlawful activity, or, in other words, what type

communicate their views to employers through purposive conduct will

of employee conduct is protected as oppositional activity. Employee

not be protected. www.HRProfessionalsMagazine.com

19

What does it take, then, for an oral complaint to qualify as “opposition” under Title VII?

complaints about Rollins’s racially oriented comments. The District Court held that “Plaintiff did not oppose any Title VII violations,” instead making only “a vague charge of discrimination.” However, the Appellate Court did not fully agree.

The Appellate Court agreed with the District Court insofar as finding that Trujillo did not oppose the statements by Rollins at the time when they were made (because he did not raise issue with Rollins’ statements as he said them). However, the Court conversely found that Trujillo’s

A New Light on an Old Rule

later statement to Gasperut was in “opposition” to the alleged racial character of Rollins’s comments. The Court opined that “Taking the facts in the light most favorable to Trujillo,” his statements to the HR vice

Once upon a time, courts examining the protection of opposition issue

president, despite their informal tone, “can be construed as a complaint

required an active opposition on the part of the employee, as opposed to

about a hostile work environment caused by racial and national origin

mere disclosure or complaint. The requirement of purposeful opposition

discrimination,” thus constituting a protected activity for purposes of

evolved (in 2009) into the Supreme Court’s approving of claims based

establishing a prima facie case of retaliation.

on an employee’s response to questions asked during an employer’s internal investigation, when the employee had not come forward on her

The Court went on to explain that not all complaints to human resources

own. Recently, the 6th Circuit Court of Appeals added to the conver-

personnel are sufficiently specific to constitute opposition to employment

sation on meaningful opposition when it found purpose in a seemingly

discrimination; you have to consider the gravamen of the discussion.

passive complaint.

In his discussion with Gasperut, the only issue Trujillo raised was the racially oriented nature of Rollins’s comment, not any complaints

The case involves Scott Trujillo, the former director of global finance for

over management style or other matters. Where Trujillo’s complaint

Henniges Automotive Sealing Systems North America, who was fired

to Gasperut was limited to discussion of Rollins’s racially motivated

after he spoke to the Vice President of Human Resources in regards to

comments, it was clear to the Court that the complaint was intended to

comments made by the company’s Vice President of Operations Larry

focus on that practice and not any other employment issues.

Rollins. (The Company’s stated reason for terminating him was that he was “not a good fit.”)

Applying the Rule in the Future

The first round of offensive language came when Rollins referred to Mexican plant employees as “those f***ing wetbacks. ” Trujillo, having

Most courts have been willing to undertake a careful fact-specific

heard this comment lightheartedly confronted Rollins who responded

analysis when it comes to claims arising under Title VII’s opposition

with an embarrassed apology.

clause. It should be noted that the Court in this case did not address

The second series of racially charged comments came later while both

limited to whether or not Trujillo’s conduct satisfied the requirements of

men were on a business trip. In attempting to improve the poor working relationship between Juan Perez, an employee at one of the Mexican plants, and Wayne Campbell, the finance manager of this plant, Trujillo suggested to Rollins that Campbell’s style was intimidating and unnerving to Latin American employees. Trujillo asked if Rollins would suggest to Campbell that he “soften his style with Juan.” Rollins replied to Trujillo by

whether unlawful discrimination had actually occurred – the opinion was a protected complaint. But rather than risk leaving the interpretation of a comment in the hands of judges and juries, employers should carefully analyze any complaints made by employees and ensure a proper response. The best practice may be to assume that all but the most thin complaints of potentially discriminatory actions are protected by the opposition clause of Title VII and other anti-discrimination laws.

saying, “F*** that cultural bulls**t, Scott, and tell Juan to grow up.” Later, Rollins publicly characterized Perez as “f***in’ worthless” as an employee.

In the same conversation, Rollins referred to African-Americans as “brothers” repeatedly, even after being corrected by Trujillo.

Sally Barron

Following this instance, Trujillo spoke to Geri Gasperut, Henniges’ Vice

Associate, Fisher & Phillips, LLP sbarron@laborlawyers.com www.laborlawyers.com

President of Human Relations, and “said something to her about Rollins’ continued—I say continued because it happened more than once— choice to say inappropriate or derogatory things about other races.”

This was his only noted complaint to management. One week after Trujillo spoke with HR he was terminated for not being “a good fit” and he brought suit alleging that he was terminated in retaliation for lodging 20

www.HRProfessionalsMagazine.com

Jennifer Riley Paralegal, Fisher & Phillips, LLP jriley@laborlawyers.com www.laborlawyers.com

Five Tips for Using Assessments in Hiring

HOW TO: Legally Use Assessments in Your Organization

By Voss W. Graham

Most of you know the origin of negativity towards assessments in general – particularly in the hiring process. It came from the discrimination practices used by some companies back in the 1950’s and 1960’s. These practices caused a backlash of Federal intervention to create rules and laws to protect the rights of individuals in the hiring process – which was a good thing for everyone.

However, other issues were raised regarding the use of assessments within organizations. What was legal? What was not legal? And, how do we differentiate between the two positions?

There are reasons why assessments should be used in the hiring process. First and foremost, you get objective information to use in making a hiring decision. This objective information can greatly assist you in finding the high performers.

Many organizations have gone to the behavioral interview process period. Believing this process to be the best method of discovering the past performance and the actual skills possessed by a candidate.

Two Issues with Behavioral Interviewing First, candidates are being coached on how to answer these questions. Employment agencies, college counselors and outplacement agencies are coaching candidates on the right responses to questions. Just Google “Behavioral Questions and Answers” and you will learn the depth of this activity.

The second issue involves the people using the behavioral questions. Most are not trained interviewers or occasional interviewers with limited skills or practice. This opens the door to subjectivity. Which opens the door to greater risk of discrimination and illegal questions during the hiring process.

Okay, so let’s get back to the topic at hand – how to use assessments legally in your organization.

There are right and wrong issues in the use of assessments.

Two Wrongs of Benchmarking First, a so-called “performance benchmark” is established. A common practice is to identify the top performers and run assessments on these top performers. The outcome is the creation of a top performers pattern for comparing a candidate to this benchmark.

This method has one major problem – it will expose you to a legal challenge. There was no “comparison data” to the low range performers. Thus, there is no known differentiation between the high and low performers. Therefore, to be legal, you must benchmark the lower performers and determine the statistical differences in the patterns or specific traits for creating a legal benchmark.

Second, there is a tendency by organizations to use assessment companies who state they have “norms” in-house and can give you a “go or no go” opinion. They are not job specific to YOUR jobs! These are based upon generic job titles not necessarily the actual work duties for your jobs.

So if you are using a “paint by the numbers” assessment company, you need to do some critical investigation work. Are the hiring managers actually using the recommendations? Case studies are showing they are not.

There is an alternative method of benchmarking a job position. Use an assessment that allows the job to talk which reduces the issues of bias or prejudice in developing the benchmark. Email voss@ inneractiveconsulting.com and request a copy of the white paper – Selecting Superior Performers Legally under the Law to see to how develop a true job benchmark.

Here are five tips for effectively reviewing and managing the legal requirements for the proper use of assessments in your organization.

1 Benchmarks must be Specifically Job Related – All employment practices used must be job related – especially the assessments.

2 Free of Adverse Impact – If you have Governmental Contracts, this is highly critical or you will be subject to major fines. You will need documented proof that the assessments do not discriminate based upon gender, ethnicity, disability status or veteran status.

Every identified term in the assessment must show compliance with the 20% variance rule.

3 Use Consistently in Hiring Process – Assessments must be used in a consistent way.

4 Internal Company Specific Validation – Your assessment provider should be willing to run an internal predictability and adverse impact study based upon the use of their assessments within your organization.

5 Constant Reviews – There are requirements for “periodic” monitoring of assessment and employment methodology. Proof of the ongoing concentration on compliance from your assessment provider is required.

Finally, assessments are very helpful both with training and development as well as the hiring processes. Yet, you must be smart in the selection of which assessment company to use – especially regarding the validity and compliance of their assessments. If you would like to review an Adverse Impact Research Study, please request this study and I will email it to you for review.

Voss W. Graham Sr. Business Advisor / CEO InnerActive Consulting Group, Inc. voss@inneractiveconsulting.com www.inneractiveconsulting.com www.HRProfessionalsMagazine.com

21

2012 TNSHRM CONFERENCE

Interviews with Cynthia caught an opportunity to interview Bill Catlette and Harry Paul at the conference. She discussed their presentations and latest books. In case you didn’t get a chance to pick up their books at the conference, we have included an Amazon Buy Now button so that you can conveniently order them from our digital issue or our website. Enjoy!

Contented Cows Still Give Better Milk

A

uthor Bill Catlette believes managers could learn a lot from the message passed on from generations of dairy farmers: “Contented cows give better milk.” His keynote address was based on his latest book, co-authored with Richard Hadden, not surprisingly named, “Contented Cows Still Give Better Milk.” This is the fourth book following, “Contented Cows Give Better Milk”, “Contented Cows Moove Faster”, and “Rebooting Leadership.”

You will love the format of this book. Each chapter begins with an inspiring quote and ends with a Chapter Summary of important takeaways. Here’s an example from Chapter 7, “When Times Get Tough”. The quote at the beginning of the chapter is “If you take care of your employees, they’ll take care of your customers and the customers will keep coming back.” – J. Willard Marriott Sr., founder, Marriott International. A couple of takeaways of importance at the end of this chapter are: Everybody needs an advocate, and don’t expect your employees to pay for your mistakes.

Bill explained that he came up with the title premise for the contented cow series from the Carnation Company, now a part of Nestle, when they suggested that their condensed milk product came “from contented cows.” Every serious dairy farmer will tell you that for as long as he’s milked cows, methods have been employed to produce healthier, more contented and higher-yielding cows. University studies even suggest that dairy cattle that are named produce more milk!

The book makes the business case that the average annual total stock return for the Contented Cow Companies (listed below) combined during the period 2002-2011 was 10.7%, beating the broader market average by a whopping 9.7% annually creating a wealth premium of approximately $70 billion annually. These companies averaged 23.4% annual revenue growth, far outpacing their peers and broader market.

22

www.HRProfessionalsMagazine.com

Contented Cow Companies

Technology Food Health Care

Google General Mills Novo Nordisk

Qualcomm J.M. Smucker Roche

Publix Supermarkets

Energy Hospitality Entertainment/Media Chesapeake Energy Marriott The Walt Disney Company NuStar Energy Starbucks

If you want to become a better leader and inspire others to follow you, then I highly recommend you read this book. It’s you and the people who work for you and your organization who will determine whether your company becomes one of these future contented cow companies.

Bill says it’s simple – treat people right and your company will make more money. Find out how by purchasing the book now! Go to our website at www.HRProfessionalsMagazine.com and click on this article.

You will find a convenient Amazon Buy Now Button. For Bill’s blog, check out Contented Cows.com.

WEBextras Purchase

Bill’s Book

www.HRProfessionalsMagazine.com

Keynote Speakers FISH!

W

hat fun catching up with Harry the Fish Guy! We were so glad he had a few minutes to talk to us about one of the best selling business books of all time. FISH! A Proven Way to Boost Moral and Improve Results has been on the best seller lists of The New York Times, The Wall Street Journal, USA Today, Business Week, Amazon. com and Publisher’s Weekly. Harry Paul is the co-author of five other best selling books including Fish Tales, Instant Turnaround, Revved, Fish Sticks, and Fish for Life. His books are translated into 35 languages and have sold over eight million copies.

We are so glad he took time to stop by the 2012 TN SHRM Conference on his way to a speaking engagement in Bahrain. One of my burning questions for Harry was how he has managed to keep the “fish philosophy” fresh (pun intended) for so long. The first FISH! book was written over 12 years ago in 2000 and was based on the famous Pike’s Place Fish Market in Seattle. Almost every HR professional I know is familiar with the “fish philosophy.” I am certain that virtually every corporate trainer has used the FISH! videos and passed this philosophy on to their employees in training classes designed to teach employee engagement. Who hasn’t seen the video of those high energy passionate fishmongers who turn the boring work of selling fish into a fun spectacle for every consumer who ventures into their market? The answer to my burning question was simple – the fish philosophy is “evergreen.” It’s always fresh and never gets stale.

Burning question number 2 was, “Did you ever actually throw fish yourself?” The answer was a “shocking” (not really) “No. But, I will throw fish puppets.” Harry confessed that he did catch a fish once at the Pike’s Place Fish Market. Oh well, no need to throw fish around at a conference anyway. Listening to Harry’s presentation is extremely effective without throwing anything. FISH! illustrates three main commitments for continuing success; Find IT, Live IT, Coach IT. The book is full of great examples and advise that will help you increase

employee morale and customer satisfaction.

For those who have ever made a change in the workplace and want to know how to make it “stick” (another pun intended), then you must also purchase Fish! Sticks.

And now my last burning question for Harry.

“Do you live in Seattle?” Doesn’t it make sense that Harry Paul the Fish Guy would want to live in the city that made him famous?

Another shocking (again, not really) answer – “No. I live in San Diego.”

Having visited San Diego, I certainly understand why. Harry says the message of the FISH! books is that people have a choice – people feel less and less like they have a choice these days. “You can CHOOSE to enjoy what you do, no matter what it is you do.” I whole-heartedly agree with him and recommend all the FISH! books. You can start your collection now by clicking on the Amazon Buy Button on our website. www.HRProfessionalsMagazine.com, then click on this article. (www. harrythefishguy.com)

WEBextras Purchase

Harry’s Book

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S IT F E N E B

Warning

Carefully Examine Your Employee Benefits

To Avoid Losing Your Stop Loss Insurance

By Pamela R. Irons

It

is a fairly common practice for employers to continue health and other employee benefit plan coverage for employees on leaves of absence. Of course, some leaves (such as under the Family and Medical Leave Act (FMLA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA)) require certain coverage, including group health plan coverage.

However, continuing coverage out of a generous, long-standing company policy or inattention to plan terms can result in substantial exposure to the employer where the insurance company has not agreed to continue coverage in the policy, as highlighted in a recent federal case. The Sixth Circuit Court of Appeals in Clarcor Inc. v.

Madison National Life Insurance Co., Inc., No. 11-6177 (6th Cir. July 31, 2012) (unpublished), held that an insurance policy did not cover an employee once the employee was placed on short-term disability leave.

The employer, Clarcor, sponsored a “self-funded” group health plan, which basically means the employer (and not an insurance company) pays claims incurred under the plan. However, like most employers with similar plan designs, the company’s plan also had “stop-loss” coverage, which protects the company against exceptionally high claims. This type of reinsurance coverage usually relies on the terms of the underlying group health plan to determine when claims are payable.

Under the insurance policy at issue, each “covered person” was subject to a $250,000 deductible. Therefore, Clarcor was insured

by Madison for expenses or losses in excess of $250,000 per plan beneficiary, per year. Madison only agreed to cover Clarcor’s excess losses if those losses were covered under the plan that Madison had reviewed and approved. The plan provided that “you are eligible to participate in this plan if you are a regularly assigned, full-time employee of Clarcor for at least 3 consecutive months and are regularly scheduled to work a minimum of 40 hours per week.”

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In this situation, the plan made exceptions for employees taking FMLA-leave and Consolidated Omnibus Budget Reconciliation Act (COBRA) recipients. The FMLA provision in the plan provided that eligibility under the plan would continue for the duration of the leave, as long as the coverage continued to be paid for during that time period. The COBRA provision provided that when a “qualifying event” (i.e., termination, reduction in hours) that would otherwise end the coverage occurs, “the plan offers optional continuation coverage.” Specifically, if the beneficiary elected to receive COBRA coverage and paid premiums, he/ she would be allowed to remain covered by the plan for a set period of time.

In this case, an employee covered under the health plan ceased active work and commenced protected leave under the FMLA. As required under the FMLA, the employee’s health coverage continued during the 12-week period. Once the 12-week FMLA period concluded, the employee, still unable to return to work, was placed on short-term disability leave. Pursuant to a “company practice,” the employee was permitted to continue health benefits for another six months without being offered COBRA. The employee did not return to work after the short-term disability period expired. At that time, the employee was terminated and offered COBRA. During the six-month short-term disability period, the employee incurred substantial medical expenses, sufficient to trigger coverage under the stop-loss policy. The carrier denied the employer’s claim for reimbursement because the terms of the health plan simply did not support coverage for the employee after the employee exhausted FMLA leave. That is, during the six months the employee was on short-term disability, the employee was not regularly working or shielded by FMLA or COBRA. The court concluded that Madison could not be forced to reimburse Clarcor for payments made to an ineligible employee.

EAP Half Page Vertical Ad_Ad 8/24/12 9:39 AM Page 1

Clarcor further argued that even if the employee was ineligible for coverage under the plan while on short-term disability, she was eligible during her period of COBRA coverage. The court found this argument unpersuasive, stating that: Because [the employee] lost Plan eligibility during her short-term disability leave, she was not eligible to receive COBRA coverage when it was offered. To be eligible for COBRA coverage under the Plan, ‘an individual must be a covered person… on the day before the qualifying event.’ A qualifying event is an event causing the employee to otherwise lose healthcare coverage, such as a reduction in hours or termination. Here, Clarcor asserts that [the employee]’s termination constituted the qualifying event. However, because [the employee] was not covered by the Plan during her short-term disability leave, she was not a covered person the ‘day before’ the alleged qualifying event. Thus, [the employee] was not eligible to receive COBRA coverage at that time. Rather, [the employee]’s qualifying event was the termination of her FMLA leave.

By continuing coverage for the employee without offering COBRA, the employer lost the protection of its reinsurance policy and became responsible to self-fund all of the claims incurred by the employee under the terms of the plan.

Employers can avoid this unfortunate situation through (i) careful attention to plan terms, (ii) negotiating with the stop-loss carrier for an extended period of coverage following the FMLA leave period and adding appropriate language, or (iii) ensuring handbook policies do not create obligations that do not exist in the plan terms. Also, in addition to health benefits, similar exposures exist with respect to dental, vision, life insurance and other benefits.

For all benefits, employers should be certain they understand when benefits are supposed to end, not only as a matter of their “company practice,” but as set forth in the applicable insurance policies and plan documents.

Pamela R. Irons Attorney at Law Jackson Lewis LLP ironsp@jacksonlewis.com www.jacksonlewis.com

www.HRProfessionalsMagazine.com

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Ready for an election? Littler is.

Is your company prepared for the threat of NLRB quickie union elections in 2013?

With Littler’s vast experience in providing legal advice concerning training, communications and vulnerability assessments, you can be well positioned in any election scenario.

LE AD ER SH IP

Wes Moore

Breakfast Club

speaks to the

e are not products “W

A

mid a backdrop of “opera and fried chicken and biscuits”, Wes Moore spoke to the largest gathering of business leaders in Memphis about leadership, mentoring, and networking. He is the host of Beyond Belief on OWN: Oprah Winfrey Network.

He is also the author of The Other Wes Moore, released in 2010. This Wes Moore became a Rhodes scholar, combat veteran, White House Fellow and a businessman. The “other Wes Moore” is serving a life sentence in prison for murder.

Prior to the Breakfast Club meeting, Moore spoke to students from the Stax Music Academy at the Stax Museum of American Soul Music. He talked about the importance of mentorship – and told the story of two young men with the same name, about the same age, brought up in the same neighborhood, and the trouble they had both had with the with the law. He

of our environment.

We are products of our expectations.”

Photography by Donny Granger, Creation Studio

told the students about failing in private school, and being sent to military school in Pennsylvania. Consequently, he graduated as Regimental Commander and class president from Valley Forge Military College. He went on to graduate from Johns Hopkins University in 2001. Moore went on to graduate in 2004 from the University of Oxford as a Rhodes Scholar.

Moore told the Breakfast Club attendees that “education matters” and “leadership matters”. He told us as we move up in higher education our networks change and our friendships change. He told us 70% of jobs happen because of networking.

He told us that’s the way this game works. We are not products of our environment. We are products of our expectations. He told us every kid in Memphis is not any different. They will take on the expectations others have in them and make them their own. That’s why mentorship matters. 

www.HRProfessionalsMagazine.com

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2012 TNSHRM CONFERENCE

Best Practices

for Form I-9 Compliance By: Mabel Arroyo and Robert M. Williams, Jr.

Employers are prohibited under the federal Immigration Reform and Control Act (IRCA) of 1986 from hiring unauthorized immigrants. To comply with IRCA, employers must verify new hires' identities and eligibility to work in the United States and record this information on Form I-9, Employment Eligibility Verification.

Employers who hire or continue to employ individuals knowing that they are not authorized to be employed in the United States may face stiff civil and criminal penalties. A Form I-9 must be completed for each individual hired for employment, regardless of whether the individual is a U.S. citizen or a foreign national. The employer must examine the employment eligibility and identity documents an employee presents to determine whether the documents reasonably appear to be genuine and related to the individual, and then record the document information on the Form I-9. Completing the form early, improperly completing it, or asking the wrong question or for the wrong document can subject an employer to allegations of discrimination and potential civil liability.

Once an offer of employment is accepted the employee must complete Section 1 of the form no later than the first day of work for pay, or before the first day of work, if the employer has offered the individual a job and if the prospective employee has accepted it.

Section 1 - Employee Information and Attestation Section 1 is completed by the employee. Employees must provide their full legal name, middle initial and maiden name, if applicable.

They must list their current address and date of birth. The employee does not have to give his/her social security number unless the employer uses E-Verify. The employee must attest under the penalty of perjury his/her citizenship or employment-authorized immigration status, and (if applicable) the Alien or Admission Number, and the date employment authorization expires. The employee must next sign and date Section 1 certifying the information as true. The employee must sign the form even if a preparer or translator assists in the preparation of Section 1. The preparer or translator must also provide his or her name, address and signature and date the form. Employers must review the information the employee provided in Section 1 and ensure that the employee provided information in all required fields.

Section 2 - The Employer Review and Verification Section 2 must be completed by the employer within three business days of the employee’s first day of work for pay. The employee must present the employer with unexpired original documentation that shows identity and employment authorization. Importantly, the employee chooses which documentation to present. An employer cannot specify which documentation the employee uses and doing so would subject the employer to a claim of unlawful discrimination. The employee must make one selection from List A (only), or one selection from List B in combination with one selection from List C. List A contains documents that show both identity and employment authorization. List B documents 28

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show identity only, and List C documents show employment authorization only. The latest version of the I-9 Form is available on the USCIS website and shows on page 5 the list of acceptable documents.

It is important to know that several versions of the Form I-9 have been issued since the form was first introduced in 1987 and not all versions are valid for use. USCIS is currently working on a new version of Form I-9 and until further notice, employers should continue using the Form I-9 with the expiration date of August 31, 2012.

The employer or an authorized representative should examine the original document the employee presents and then fully complete Section 2 of the I-9 Form. The employer or their authorized representative should record the title, issuing authority, number and expiration date, if any, of the document, fill in the date employment began in the certification block, and sign and date the Form I-9. Employers must accept any document from the list of acceptable documents presented by the individual that reasonably appears on its face to be genuine, and relates to the person presenting it and must not specify which documents an employee must present. Employers who choose to make copies of the documents that the employee presents, must do so for all employees regardless of national origin or citizenship status.

In certain circumstances, employers must accept a receipt in lieu of a List A, List B or List C document if one is presented by an employee.

Generally, an acceptable receipt would be for the replacement of a lost, stolen or damaged document, and not a receipt indicating that the employee has applied for an initial Employment Authorization Document or for an extension of an expiring employment document.

When the employee provides an acceptable receipt the document title should be recorded in Section 2 and the word "receipt" written with its document number in the document number space. The employee should later present the actual document to the employer when it is obtained and the employer should insert the number from the actual document presented and initial and date the changes.

Employers must make sure to fill out the date the employee began work for pay and the date the employer examined the documentation the employee presented to show identity and employment authorization. Leaving this information blank can subject the employer to severe penalties.

I-9 Retention Employers are required to have completed Forms I-9 on file for each employee on payroll and must retain original I-9 Forms for three years after the date of hire, or one year after the date employment ends, whichever is later. If copies of documents presented by employees are made, those too should be kept with the I-9 Forms. The forms must be kept available for inspection by authorized government officials such as the Department of Homeland Security, the Department of Labor, and the Department of Justice. The I-9 Forms may be stored on paper, microfilm or electronically. If the employer elects to store the I-9 Form electronically, there must be certain controls to ensure the integrity, accuracy and reliability of the storage system.

When an employee's employment authorization document expires, the employer must re-verify the employee's employment authorization no later than the date the employment authorization expires. Section 3 of the Form I-9 can be used for this purpose. The employee must present a document that shows current authorization. If the employee cannot do so the employer cannot continue to employ that person.

Thus, employees whose immigration status, employment authorization, or employment authorization documents expire should file the necessary application for petitions sufficiently in advance to ensure that they maintain continuous employment authorization or valid

employment authorization documents. We recommend employers utilize a tickler system to ensure timely reverification and to remind employees of upcoming expiration dates. It is a good idea to send reminders out to employees at least four months before expiration to avoid gaps in employment eligibility.

It is also very important to avoid reverification when it is not needed. Employers must only reverify work eligibility and not identity documentation. Another common error occurs when an employer reverifies work authorization for lawful permanent residents with Permanent Resident cards or “Green Cards� with expiration dates.

There should not be reverified.

Federal Contractors Federal contractors who have a federal contract that contains a FAR E-Verify clause must follow special rules when completing and updating Forms I-9. E-Verify is mandatory for these contractors in order to keep their federal contracts with the E-Verify clause. E-Verify is an Internet-based system that compares information from the Form I-9 to government records to confirm that an employee is authorized to work in the United States. All E-verify employers and Federal contractors must complete Form I-9 before creating a case in E-verify.

In most cases, E-Verify will instantly verify the employee's work authorization. If E-Verify cannot immediately confirm the employee's work authorization the system will display a temporary case status that may require additional action.

Penalties for Prohibited Practices As previously mentioned, the Department of Homeland Security may impose penalties if an investigation reveals that the employer knowingly

hired or knowingly continued to employ an unauthorized alien, or failed to comply with the employment eligibility verification requirements.

Employers who fail to properly complete, retain or make available for inspection, I-9 Forms as required by law, could face civil monetary penalties in an amount of not less than $110.00 and not more than $1,100.00 for each violation. Employers found engaging in a "pattern of practice" may face steep fines (up to $3,000 for each unauthorized alien, even on the first offense) and even imprisonment. Monetary penalties for knowingly hiring and continuing to employ violations range from $375 to $16,000 per violation, with repeat offenders receiving penalties at the higher end. In determining the penalty amounts, the government considers five factors: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations.

We encourage employers to pay close attention to I-9 compliance.

It is essential to conduct annual audits of current I-9 Forms, prepare an I-9 compliance program, and train managers and workers in implementing those programs.

Mabel Arroyo, Attorney Baker Donelson | Nashville www.bakerdonelson.com marroyo-tirado@bakerdonelson.com

Robert Williams, Jr., Attorrney Baker Donelson | Memphis www.bakerdonelson.com rwilliams@bakerdonelson.com

www.HRProfessionalsMagazine.com

29

uiti

Recr

ng

5 Steps

SCREENING

to Effectively Screen

EXECUTIVES

Top Level Executives

by Lisa P. May

The big kahunas are a different breed of animal to recruit and hire, and the way their backgrounds are screened should be, too.

Whether hiring a top level manager, financial executive, or sales executive, employers should give thoughtful and extensive consideration when making an offer for a high ranking position.

Why?

The first reason is the liability to the company’s reputation. The news is full of examples of executives who faked their education, provided fraudulent references, or who were out and out criminals! Making a bad decision in hiring a top level executive can cause great damage to a company’s reputation. Just one PR nightmare can take years to clean up.

The second reason is the risk to the bottom line. A top ranking employee has a much greater effect on the bottom line than the ‘average’ worker. Not being able to perform their jobs at a productive pace (or at all) because they misrepresented themselves can have catastrophic effects on the company’s profits.

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1.

2.

Here are 5 easy steps to implement into the hiring process of Senior Level Executives. These actions will go a long way toward assisting in making the right decision:

Verify education.

One of the most embarrassing media frenzies a company can fall victim to is finding out a member of their top level management faked their degree. Degree fraud is rampant, and nobody is immune to the temptation. Use a trusted third party to check into any claims of degrees, verify dates, classes, and any graduation honors.

Thoroughly follow up on references.

Make certain the applicant supplies several work references. These references should be verified by calling a phone number that is found online for the company where the reference says they are/were employed. Do not utilize personal phone numbers when verifying a reference, as this could link you to the applicant’s friend or family member.

3.

4.

5.

Ask the right questions.

All information on the resume should be verified as completely as possible. Ask about (or have your background screening company ask) specific duties handled, projects completed, goals attained, etc. Broad, vague questions like “Did Tom do a good job” really don’t glean valuable answers.

Utilize assessment surveys.

By reviewing an assessment survey, hiring managers can discern a top level executive’s inner core values and perceptions. This information is invaluable in deciding whether or not a person will fit well into the company culture.

for a company to take on. On the other hand, well-written blogs, interesting posts, etc can also show that a candidate would have a positive impact on the workplace. Social media screening provides valuable information on a potential candidate’s online persona.

(Keep in mind to NEVER ask for a candidate’s online passwords, and DO NOT friend a candidate to dig for information).

There is always a great deal riding on hiring top level executives. Employers can minimize the risk of a bad hire by trusting a reputable, third party background screening company and performing thorough and complete checks of the applicant’s background.

Employ social media screening.

Checking social media sites during the hiring process is becoming an increasingly more popular practice. Tweet, posts, and blogs can give a company insight on a potential new hire that they cannot find in a resume or job interview. Social media screening shows negative information on a candidate (bad judgment, drug use, inflammatory racial comments) that may be unadvisable

Lisa P. May VP Marketing and Research Data Facts www.datafacts.com lisa@datafacts.com

Burch, Porter & Johnson PLLC

Labor and Employment Law Group  ExcELLEncE. EfficiEncy. REsuLts.

(L to R): Attorneys Jef Feibelman, Lisa Krupicka, Tannera Gibson, Jennifer Hagerman, Mary Hamm, Melissa Maravich, & Mary Morris 130 North Court Avenue | Memphis, TN 38103 | 901/524-5000 | www.bpjlaw.com

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31

P C C F O

This is the second of a two part series

by Tim Orellano, President of the Human Resources Team in Little Rock, AR. Tim was a speaker at the 2012 AR SHRM Conference. You can reach Tim at timorellanohrteam@ comcast.net. www.hrteam.net

Part II

Pots of Gold Safe

Continued from September 2012 issue

Keeping Your

By Tim Orellano

Before an OFCCP Audit

Second Pot of Gold: Compensation  Resist any requests from the OFCCP to form Similarly Situated Employee Groups (SSEG). Remain strong on this issue. Your job titles are your SSEGs. Let the agency form them if they so choose, because it is easier to defend your titles and not accept their groupings to fit their statistical model since it is their groups not yours. This puts the control back into the hands of the contractor; after all it is your compensation system not the agency’s. The OFCCP will attempt to roll up job titles into job groupings so you will typically fail. Remember, job titles are your SSEGs.  The $2,000 and 2% tipping point test is used on all desk audits.

This used to red flag differences in pay by gender or race with a job title. When this occurs and it will because the bar is so low that everyone fails, OFCCP will ask for at least 12 additional elements of compensation information about your employees.  Narrow results of the analysis, fix problems, be confident and send clean data. Identify outliers affecting the individuals, make adjustments or provide information to explain the differences, i.e., red circle rates of pay for legitimate reasons that can occur due to mergers, length of service, change in pay ranges.  Protect any compensation analyses under attorney client privilege.  Assess your job titles to determine if they are too broad and general. If a title includes several levels of functions, experience, training, etc., in the same job title, then separate them into different titles. Make them as narrow as possible.

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 Identify anomalies and be ready to explain them as part of the desk audit submission. This may head off additional inquires.  Fix problems and destroy all analyses as soon as practical.

Third Pot of Gold: Testing  Do not depend on “off the shelf ” test validation. The employer is responsible and accountable for validation, not the testing vendor. You must conduct your own validation to insure it is a predictor of success in the job. Be familiar with the Federal Uniform Guidelines when validating any test (www. uniformguidelines.com).  Assess whether we have “always used this test that way” is valid.  Conduct impact ratio analyses of the applicants and hires at each stage of the selection process and particularly at the test stage of the process.

Good Faith Efforts Patricia Shiu, Director of the OFCCP, considers documented good faith efforts and results in attaining goals and out reach a top priority as part of their audit agenda. She has publically stated an aggressive approach for complete compliance during audits with a continued emphasis in hiring and a priority in the results of good faith efforts in recruiting and hiring of veterans and persons with disabilities.

Identify sources that will increase and ensure minorities, females, veterans and persons with disabilities know how to apply for open positions. You must document your efforts such as letters, personal visits, job fairs, posting of jobs with the local state employment services, veteran affairs agencies, community job placement agencies, vocational schools and participation in other employment and outreach activities where women or minorities, veterans or persons with disabilities may be recruited. Take outreach very seriously to track referrals as part of your applicant and hiring process.

2012 TN SHRM

Conference Winners

You must document your efforts such as letters, personal visits, job fairs, posting of jobs with the local state employment services, veteran affairs agencies, community job placement agencies, vocational schools and participation in other employment and outreach activities where women or minorities, veterans or persons with disabilities may be recruited. Explore additional out reach sources with an emphasis on veterans s and person with disabilities. Review success of outreach efforts and identify new ones if results are not attained.

Now What: Is your Policy and Practice consistent and can you Prove it?

Be audit ready, Today! The OFCCP is after your pots of gold. They will exceed the number of audits this year with the goal to break two consecutive years of $51 million in monetary damages.

Now is the time to go beyond the affirmative action plan by:  Conducting a dry audit of your hiring practices, records and documentation.  Conducting the tipping point analyses to evaluate each situation, job group and title. Look at pay today, not when you get an audit letter.  Validate any test to ensure it is job related.  Increase and document out reach efforts for veterans and person with disabilities.  Ask for help.

(L-R) Stephen King, SPHR, Human Resources with Cumberland Trucks in Nashville; Cynthia Thompson; Cheryl Oglesby-Townes, Director of HR with Northwest TN Economic Development Council in Dresden, were winners of a free registration for the Strategic Leadership for HR Executives Seminar sponsored by HR Professionals Magazine. The seminar will be October 11 at the Crescent Club in Memphis.

Employers must carefully scrub their data before an audit submission.

Do not be pressured to submit the data until it is clean and accurate.

Annually, conduct a mock audit of your plan and records, particularly applicant/hiring records and compensation to identify problem areas. Address problems and be ready to provide explanations to the OFCCP during the desk audit process. You want to resolve unexplained red flags so the OFCCP will close the audit quickly.

Experience tells us that it is a rare occasion that an organization can consistently and accurately maintain the records required manually, plus the time and costs associated with it. Employers should consider implementing automated web based recruiting and hiring management systems linked to their web site, and verify it will comply with the regulations to hire the most qualified.

Most employers do not intentionally discriminate, but understanding what I call the Three P’s will serve you well. Policy, Practice, Prove It. Most companies have clear non-discriminatory policies, but everyday practice must be proved by the records, statistical analyses and documentation.

Waiting is a high stakes game of avoidance that will cost you money.

The movie the “Three Pots of Gold” is one you don’t want to star in, nor pay to see.  www.HRProfessionalsMagazine.com

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2012 TNSHRM

2012 TN SHRM

CONFERENCE

Conference

Awards Luncheon

Established by TN Human Resource Conference in 1956

Bill Cooper, Chair of Awards and Scholarships Committee, had the honor of announcing the award winners at the Awards Luncheon on Thursday. Other committee members are Denis Blackwelder, Tiffany Coursey, Valerie Gifford, Rebecca Harmon, Don Ray

James House Williamson Award Winner The James House Williamson Award is Tennessee SHRM’s highest honor. It is presented annually to one individual in recognition of significant contributions to the field of human resource management in Tennessee. This year’s recipient is Art Smith, SPHR, CCP, Executive Director of the MT SHRM Chapter. Art is also managing principal of AG Smith & Associates where he works in the areas of compensation and performance management. Art spoke at the Conference also. His topic was “There Must Be Fifty Ways to Lose Your HIPOs.”

Art Smith Executive Director of MT SHRM

Human Resource Professional Excellence Award The Human Resource Professional Excellence Award has been presented since 2000 by the TN SHRM State Council and recognizes contributions to the human resource profession by any HR professional working in Tennessee. Nominees are selected by a panel of State Council members and are considered based on their service to their SHRM chapter, the HR profession, the community, and their employer.

2012 Recipients

Tara Brown, PHR

Elizabeth Crutcher

– Secretary TN SHRM State Council,President Clarksville Area Chapter SHRM, Corporate HR Manager, Del-Jen, Inc., Clarksville

– President of South Central Tennessee (Duck River) SHRM Chapter, HR Generalist & Site HR Contact, Cytec, Mount Pleasant

Susan Harris, SPHR – Director of Professional Development and President Elect, SHRM Chattanooga, Director of Human Resources & Organizational Development, See Rock City, Inc., Lookout Mountain, GA

Aimee Hull, PHR

Lori Ridings, PHR

– Membership Chair TN State Council, Director People Services & Assistant Corporate Secretary, Education Networks of America, Inc, Nashville

– Past President, TVHRA Knoxville, VP of HR, Tindell's, Knoxville

Not pictured: Mel Waymaster, SPHR – Past President, MT SHRM Nashville, formally VP of Human Resources, Correct Care Solutions, Nashville, Michelle Thompson, SPHR – Professional Development Chair MT SHRM Nashville, President Elect Stones River Chapter SHRM Smyrna, Consultant, HR Support Services Nashville

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James House Williamson Scholarship Award Winner This award provides financial support for the formal studies in human resource management and related fields of study. The annual award of $2,000 is funded from the James House Williamson Memorial Fund. The recipient is selected by the SHRM Chapter of the State Conference host city.

Thank You

2012 TNSHRM CONFERENCE

to our HR Professionals Magazine Sponsors!

The following sponsors were Exhibitors at the 2012 TN SHRM Conference.

Gary Jenkins with Tiffany Coursey. Gary is a Candidate for B.S. Business Administration Human Resource Management from the University of Memphis. Gary is currently serving as President of the SHRM-Memphis Student Chapter. Tiffany is College Relations Chair for the TN SHRM State Council.

The Joseph Paul Goddard Scholarship Award Winner This award is also $2,000 and was established in 1984 honoring Dr. Joseph P. Goddard, Dean of Continuing Education at the University of Tennessee-Knoxville and a former Executive Secretary of the THRC (1968-1981). The scholarship honors his service and contribution to the business and industrial community of Tennessee through his work with the Tennessee SHRM State Conference.

Jeffrey Arnold is a Candidate for M.S. Human Resource Management from the University of Tennessee-Knoxville. www.HRProfessionalsMagazine.com

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