Page 1

Volume 4 : Issue 2 TM

2014 SHRM

3 Strategies to

Rock HR

Annual Conference in Orlando June 22-25

in 2014

Monitoring Employees in the WorkplaceCan a GPS Result in TMI? Highlights from the

2014 TN SHRM Strategic Leadership Conference

Pamela J.

Green, MBA, SPHR

President and Founder Power Project Institute

The Fusion of Payroll,

HR Technology and Defined Contribution Strategies





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

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






Bringing Human Resources & Management Expertise to You

80% of workers feel stress on the job Editor

Cynthia Y. Thompson, MBA, SPHR Publisher

The Thompson HR Firm HR Consulting and Employee Development Art Direction

Park Avenue Design Contributing Writers

Sally F. Barron Marianne Clendenen Harvey Deutschendorf Latosha Dexter Pamela J. Green Jennifer S. Hagerman Tom Hayes Jane A. Kim Jeff Kortes Elizabeth S. Rudnick Ari Sauer Robin B. Taylor Donna Tosches E. Russell Turner Kelly Walsh Board of Advisors

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

Features 4 note from the editor 5 Profile: Pamela J. Green


11 Monitoring Employees in the Modern Workplace 13 EAP: Utilizing Your Best HR Partner

HTTP:// /Exclusives

14 R U Ready for Your Employees on Social Media? 18 The Fusion of Payroll, HR Technology, and Defined Contributions Strategies

Online HR Certification Prep Class

32 3 Strategies to Rock HR in 2014

Departments 12 EQ: Harnessing the Power of Gratitude at Work 16 ADEA: Direct Evidence in Age Discrimination Cases 17 Social Media: Being “Friends” with Your Employees on Social Media 20 Adverse Action: Giving an Employee Exactly What He Wants 22 Professional Development: When Collective Bargaining is All in Your Head 24 Mississippi Law: Courts Provide MS Employers With Guidance on ADA Duties 27 Immigration: What HR Should Know About H-1B Visas 28 ACA: How Should Tennessee Small Business Owners Prepare? 30 EEOC: Best Practices for Responding to a Charge Part II 34 Retention: Retain Your Credibility and Retain Your Best People

Industry News 6 The HR Scene 7 SHRM Annual Conference & Exposition in Orlando June 22-25 8 Highlights from the 2014 TN SHRM Strategic Leadership Conference

Next Issue Talent Management and Recruiting Highlights from the MS SHRM Leaders Retreat Legislative Updates and HR Policy Issues


a note from the Editor


ur focus this issue is HR Technology and we are

We are bringing you a couple

pleased to bring you several articles of interest

of exciting online opportu-

in this area. Be sure to read the article by Sally

nities in February. Mark your

Barron about monitoring employees in the

calendars for February 27 at

modern workplace. Tom Hayes has an excellent

2 PM for our monthly webinar

article in this issue about the fusion of payroll, HR technology and

sponsored by Data Facts. This

defined contribution strategies. There are also a couple of articles

month’s topic is “Employee

about social media in the workplace. Jane Kim’s article addresses


the pitfalls of being “friends” with your employees, and Elizabeth

Drive Business Results.” You

Rudnick’s article addresses the explosion of social media and

will learn how technological

electronic communication and its impact on employee conduct.

advances can be used to



drive employee engagement You will also find highlights from the 2014 TN SHRM Strategic Leadership

and how to link employee engagement with your

Conference that was held in Nashville on January 17. Pam Green was a keynote

organization’s core values, mission, and ethical

speaker at the conference. Her excellent presentation was on designing, deliv-

behavior. And if you have always wanted to get

ering and demonstrating HR value to the business and how HR leaders can

certified as an HR professional but just didn’t have

examine, design and execute business strategy. Pam graciously consented to

the time to attend a certification prep class, we

contribute an article based on her presentation for this issue. So if you missed

have a solution for you! I will be teaching an online

this excellent conference, you still have an opportunity to read about Pam’s

HR certification prep class on March 3 that you

insights on how HR leaders can execute business strategy in their own organi-

can attend from the comfort of your home using

zations. I am delighted to feature Pam on our February cover! I know you will

your own computer! Contact me at cynthia@

enjoy reading her profile. for more details.

Don’t forget to register for the SHRM Annual Conference & Exposition in Orlando June 22-15. Please see the ad on Page 7 for registration details. We are looking forward to seeing our Mississippi SHRM friends at the MSU Riley Center in Meridian on February 14 and 15 for the Annual MS SHRM Leaders Retreat. Please follow us on Facebook and LinkedIn as well as Twitter @cythomps and stay informed about all the upcoming events for HR Professionals! Cynthia Y. Thompson | Editor

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


Pamela J. GREEN on the cover

Pamela J. Green, MBA, SPHR

Pamela J. Green is the President and Founder of Power Project Institute, and is a professionally trained Power Coach, a certified Senior Professional in Human Resources (SPHR), the former VP/Chief Membership Officer of SHRM, and holds a Bachelor’s Degree in Business and Human Resources and a Master’s Degree in Business Administration (MBA) from Franklin University in Columbus, Ohio where she was born and raised. A well-known figure in the HR world, popular keynote speaker and notable business leader and power coach with over 25 years as a business leader for major brands like the American Red Cross, Head Start, and the Society for Human Resource Management, Pamela brings ‘Big Brand Thinking’ to small and medium sized businesses. Her consultancy is focused on helping companies and associations attract and energize employees using specific strategies and techniques she has developed and implemented over her rich 25 years of leadership experience. She is also a highly sought after keynote speaker, author and workshop facilitator, partnering with organizations and their employees in ways that lead to greater motivation, productivity and phenomenal results. Pamela’s best selling book Lead, Achieve, and Succeed in HR helps HR professionals re-focus, re-invent, and re-new their commitment to their employer and to their career in human resources. Working in HR in the 21st Century will require every Human Resource professional, not just those at the top, to be innovative, Influential and an architect of win-win outcomes, and this book provides readers with the tangible tools to do so. Having had life changing career experiences both as a leader and employee, Pamela finds it therapeutic to share what she has learned with her clients and her audiences in a fun and highly engaging way. Be sure you read Pamela’s article, “3 Strategies to Rock HR in 2014,” on page 32. 





4 1 SHRM-Memphis Board of Directors – Bottom Row (L-R) Gary Jenkins, Rebecca Plough, Trish Holliday, Annie Wallace, Pat Myers, Jill Hadaji. Middle Row (L-R) Lydia Johnson, Tisch McDaniels, Rolana Bourland, Julieanna Walker, Britany Neal, Shahana LeDee, Jan Rubion. Back Row (L-R) Alicia Estcorn, Dhane Marques, Verlinda Henning, Chrissy Barrett. Trish Holliday was the guest speaker at the January meeting. Her topic was Filling the Leadership Gap. Not pictured – Jessica Van Eyck. 2 (L-R) SHRM Chattanooga Board Members Janet Leamon, Past President; Jennifer Shields, VP Membership; Merri Mai Williamson, Communications Chair; and Frances Flowers,Treasurer, attended the January 14 meeting at the Chattanoogan Hotel. 3 Cynthia Y. Thompson

We’re the Resource in Human Resources Customized management training Compliance audits Policy and strategy analysis Litigation defense Immigration services Labor negotiation ALABAMA • FLORIDA • GEORGIA • LOUISIANA • MISSISSIPPI • TENNESSEE • TEXAS • WASHINGTON, D.C. THIS IS AN ADVERTISEMENT. Ben Adams is Chairman and CEO of Baker Donelson and is located in our Memphis office, 165 Madison Avenue, Suite 2000, Memphis, TN 38103. Phone 901.526.2000. ©2014 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

was the speaker at the Chattanooga SHRM January meeting. Her topic was Trending Your Workforce Management Teams. She is pictured here with Chapter members. 4 The MT|SHRM Dirty Dozen – MT|SHRM has had 15 Presidents since 1995. Eleven Past Presidents and the current President (12 total) gathered together recently for a “reunion” and commitment to serve as a resource and council for the current President. All 14 of the Past Presidents (one has passed away) from the past 20 years were invited.The goal of the dinner was to celebrate the Chapter's past, and look to the future as we welcomed another leader into the MPS. (L-R) Mel Waymaster (2011), Art Smith (2010), Dennis Stull (2012-2013), Sheila Armstrong (2002-2003), Sherry Tarbutton (1999), Barb Stewart (2014-2015), Betty Johnson (1997), Kaye Palmer (1998), Kellie Conn (2006-2007), Bob McKown (2008-2009), Perry Stahlman (1995), Denis Blackwelder (2004-2005).




The SHRM Annual Conference is the best — and biggest — HR Conference in the world. You’ll find an array of experiences that can be found nowhere else — experiences that can help transform you, your team, and your organization in big and small ways.


Our keynote speakers will present you with stories and perspectives that could change how you see the world around you. Mrs. Laura Bush Former First Lady & Chair of the Women’s Initiative at the George W. Bush Institute WEDNESDAY, JUNE 25 8:30 a.m. – 9:45 a.m. Tom Friedman Journalist & Best-Selling Author of The World is Flat TUESDAY, JUNE 24 8:30 a.m. – 9:45 a.m.


JUNE 22–25, 2014

Register now!

annual. shrm. org/ astd



Dave Novak Chairman and CEO, Yum! Brands and Author, Taking People With You: The Only Way to Make Big Things Happen MONDAY, JUNE 23 8:30 a.m. – 9:45 a.m.

With over 700 exhibitors, the SHRM Exposition is the world’s largest HR marketplace. You’ll get ideas that will inspire and engage, and learn the latest solutions that are changing the workplace.

With hundreds of sessions to choose from, you can be sure that you’re getting the information and resources you need to be your best. Craft a truly personalized curriculum with these tracks: • Talent Management • Compensation & Benefits • International HR • Employment Law & Legislation • Business Management & Strategy • Personal & Leadership Development Recertification This conference is an efficient way to earn as many as 49 recertification credits for your HR credentials, by attending sessions, preconference workshops and upgrading to the Conference on Demand!

2014 TN SHRM Strategic Leadership Conference Taking Organizations to the Next Level with HR Strategy

January 17 at the Nashville Airport Marriott










1 Trish Holliday, M.A., SPHR, was the 2014 Strategic Leadership Conference Chair. Trish is the Chief Learning Officer for the Tennessee State Government and also serves as the Professional Development Chair for the TN SHRM State Council. 2 The 2014 TN SHRM Strategic Leadership Conference Committee. Pictured (L-R) Shawn Pellington, Sheryl Ransom, Ernie Ricketts, David Pemberton, Tammy LaPoint-O'Brien, Dennis Stull, Sharon Buwalda, Trish Holliday, and Kellie Conn. 3 Sheryl Ransom, SPHR, is the 2014 Director of the TN SHRM State Council. 4 Pamela J. Green, MBA, SPHR, is Founder and President of Power Project Institute. She was the Keynote Speaker for the Conference. Her topic was D3-Design, Deliver and Demonstrate HR Value to the Business: How HR leaders Can Examine, Design and Executive Business Strategy. Be sure to read Pam’s article based on her presentation on page 32. 5 Lisa Spencer, SPHR, IPMA-CP, is Assistant Commissioner of the Department of Human Resources Tennessee State Government. She spoke on Becoming an HR Business Partner. 6 (L-R) Ulf Hahnemann, VP of Personnel and Organization with Mars Petcare, US; Rebecca Hunter, SPHR, Commissioner of the Department of Human Resources Tennessee State Government; and Mark Stout, VP Human Resources with Nissan Americas; served on the Strategic Panel and led a discussion on Gaining Executive Perspective on Strategic HR. The panel moderators were Trish Holliday and Mark Marshall, SVP with Lee Hecht Harrison. 7 Robert Bateman, CPLP, spoke on Crossing the Chasm from Sales to Strategic Account Management: How Strategic TM and OD Made it Possible. 8 Cynthia Y. Thompson, MBA, SPHR, Founder of the Thompson HR Firm, LLC and Editor | Publisher of HR Professionals Magazine, spoke on Strategic Decision Making for HR Executives – IQ or EQ? 9 Ruth A. Hillis, Founder of MediateERISA, is Presidentelect of the Tennessee Association of Professional Mediators. Ruth’s topic was Developing a Strategic Plan for Employee Dispute Resolution. 10 Scott Kiefer, Partner and VP of The Oliver Group, spoke on Preparing Your Leadership for the Future. 11 Malcolm Munro, President and CEO of Total Career Mastery, LLC, spoke on How to Implement a Successful Training Initiative. Other presenters not pictured were Dr. Deb Tobey, a faculty member in Leadership and Organizations at Peabody College of Vanderbilt University. Dr. Tobey spoke on HR Practice: Do You Have Your Ticket? Bob Higgins, President and CEO of Barge, Waggoner; Sumner and Cannon, Inc. was the afternoon General Sessions Keynote Speaker. Bob’s topic was Strategic Change.

10 8


The closing presentation was a panel discussion on HR’s Strategic Role in Creating the Business Case for Diversity. The panelists Kim Vance, Shareholder with Baker Donelson; and Robert Wilson, Director of Diversity and Inclusion with Nissan Americas. Fred Bissinger, Regional Managing Member of Wimberley Lawson, was the moderator.

You Don’t Need Training Wheels. That’s What We’re For. We know HR can be tricky. That’s why CGWG offers employment law training programs specially designed for employers and HR professionals to help you avoid bumps in the road. Join the CGWG team for Basic Supervisor Training, a day-long program designed to help your company avoid legal action resulting from common HR issues, including: Discrimination Social Media in the Workplace Sexual Harassment

Americans with Disabilities Act Family and Medical Leave Act Discipline, Termination and Documentation

DATE : Wednesday, March 12, 2014 8:30 a.m. - 4:30 p.m. LOCATION : CGWG Little Rock COST : $150.00 per attendee RSVP : To register, email or call 501-371-9999 Please visit to see other scheduled training programs.

CGWG is an HRCI Approved Provider.


Lunch & Dinner: Mon. - Thurs. 11am - 9pm Fri. and Sat. 11am - 10pm Sunday Jazz Brunch Seating 9:30am - 2:30pm

Mardi Gras Daily Drink and Food Specials March 1 - March 15

Monitoring Employees in the Modern Workplace

– can a GPS result in TMI?

By Sally F. Barron

The answer is “yes” – tracking employees by using Global Positioning Systems can give an employer Too Much Information.

Background - Surreptitious Surveillance In 2012, the United States Supreme Court held (in the case of U.S. v. Jones) that the government’s attachment of a Global Positioning System (GPS) to the vehicle of an individual suspected of drug trafficking was a “search” within the meaning of the Fourth Amendment (which provides protection against unreasonable searches) and thus required a warrant. Following the Jones decision, a New York court found last year that a public employer (ironically, the New York Department of Labor) who attached a GPS to the car of an employee (Cunningham) had engaged in a search; however, the New York court was of the opinion that the Supreme Court had left open the question of when, if ever, a GPS search was permissible without a warrant. In the Cunningham case, the New York Department of Labor attached a GPS to the employee’s car, without the employee’s knowledge, because it suspected the employee of submitting false time reports; naturally, the GPS seemed an effective way to accurately determine whether the employee was at his office during the times he claimed or, as suspected, having an out-of-office rendezvous with his secretary. The New York court determined that a warrant was not required, finding that the parameters of the search fell within the “workplace exception” previously sanctioned by the Supreme Court. This workplace exception permits warrantless searches by public employers in work areas where an employee would have no reasonable expectation of privacy. Nevertheless, the New York court found that the Department of Labor’s use of the GPS in this case was unreasonable because it tracked activity during times in which the Department had no legitimate interest, i.e., evenings, weekends, and vacations (with the secretary). One of the judges in the Cunningham case filed a separate opinion and criticized the other judges’ finding that the installation of the GPS system was permissible without a warrant. This judge explained that, regardless of the workplace exception, there could be private information, outside of workplace, that inevitably would be

disclosed in the data retrieved from a GPS placed on an employee’s personal vehicle – for example: “trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.” On some matters, ignorance is bliss.

The Private Sector While the Fourth Amendment does not apply to private employers, some states have enacted laws making it illegal for a private employer to place a location tracking device on an employee’s vehicle without the employee’s consent. Interestingly, a few states have even adopted legislation prohibiting employers from implanting GPS-like microchips in the form of Radio-frequency identification (RFID) under an employee's skin.

regulations requiring drivers to take breaks after driving a certain number of hours. A driver who exceeds the permissible number of driving hours and falsely reports his sleeping vs. driving time could be found guilty of misconduct when faced with evidence derived from a GPS log contradicting his reports. Employees have concerns, however, that private information derived from monitoring systems might influence employers when they are making decisions about work assignments or promotions. Beyond privacy interests, employees also are apprehensive about the accuracy of information employers might derive from these systems. There are concerns that GPS monitoring might make it appear that an employee is engaging in inappropriate activity when that is not the case. For example, an employee who has to take a detour because of road work might be accused of taking an impermissible side trip; or, sitting in a traffic jam could look like idling or an impermissible stop. What about smartphones? It follows that tracking a smartphone can be even more intrusive than tracking a car because the employee likely will take the smartphone into those private places envisioned by the Cunningham judge and listed above.

How Much is Too Much? Tennessee In Tennessee, it is a misdemeanor for anyone other than a car manufacturer, a law enforcement officer in pursuit of a criminal investigation, or a parent of a minor to “knowingly install, conceal or otherwise place an electronic tracking device in or on a motor vehicle without the consent of all owners of the vehicle for the purpose of monitoring or following an occupant or occupants of the vehicle.” Tennessee Code 39-13-606.

Employer-owned Equipment Employers have various reasons for wanting to monitor employee whereabouts, ranging from safety concerns to ensuring compliance with company policies and procedures. There can be legitimate uses of tracking devices placed in company-owned vehicles. For example, in the shipping and logistics industry, tracking a vehicle’s location may be useful to estimate and confirm delivery times. Some trucking companies monitor the driving hours of employees to ensure compliance with Department of Transportation

Employers should be wary of monitoring employees without their consent for any reason. A carefully drafted Employee Handbook can serve an employer well by clearly explaining that the employee should have no expectation of privacy in company-owned equipment. Any kind of monitoring should be closely tailored to suit a particular employer’s legitimate business needs and should be limited to working hours. Monitoring employees outside of these parameters will run the risk of being deemed an unreasonable invasion of employee privacy and could lead to claims of discriminatory treatment based on information inadvertently obtained and relating to private matters. In some circumstances, more knowledge is not always a good thing.

Sally F. Barron Associate Attorney Fisher & Phillips LLP


Power of Gratitude

Harnessing the at Work

By Harvey Deutschendorf

“We must find time to stop and thank the people who make a difference in our lives.”

We — John F. Kennedy

all know the good feelings that come with being acknowledged for something that we did. The good feelings result in us wanting to do more to expand that feeling and we continue to look for ways to give our best effort. While we often have no problems thanking our family, friends and those around us, a study by the John Templeton Foundation showed that many Americans find work to be the last place where they either give or receive thanks. There is an attitude that we shouldn’t have to thank people for doing things that they are paid to do. This attitude can result in a loss of productivity and happiness in the workplace. A survey showed that most people reported feeling better when they thanked someone at work, yet surprisingly only a small number had actually done this regularly. Yet while few of us use gratitude to any degree at work, most of us agree that it is important. In a survey over ninety percent of employees felt that bosses who show gratitude were more successful. Where does productivity come into the picture? In any job there is a portion of work that is discretionary. When someone feels unappreciated for what they are doing, the chances are greater that they will do the bare minimum (just enough to keep their job) than someone who feels appreciated. The great thing about gratitude is that the benefits can be enormous, while the cost is minimal. It takes little time and effort to let someone know they are appreciated. Here are some pointers for how to build a culture of gratitude.

It must be modelled at the top The first place that employees will look to for gratitude is their superiors. Feelings of being appreciated by those above them will go a long way towards creating a culture of thankfulness at all levels. Organizations model the behavior of those who are in positions of power. Lack of appreciation from above will show up at all levels; lack of appreciation of coworkers, loss of workplace morale and higher staff turnover. 12

Make it specific and authentic Have you ever been part of a group that the boss always complimented everyone on a job well done? How did you feel? Maybe the same feeling that you would have if you were part of an email blast that went to everyone. Likely you wouldn’t feel that the praise was authentic or sincere. This kind of praise happens when managers have been told that they should thank their staff, but really haven’t internalized it or believe they should have to. For them offering gratitude becomes a chore, a task similar to filling monthly reports. The problem is their staff can feel this and the praise loses all meaning and can result in a lack of respect for the manager. It takes time and effort to notice specific things about the person receiving praise.

Ensure there are no ulterior motives I once had a manager that had a habit of waiting until a meeting where his superior was present before giving out recognition gifts. Instead of feeling recognized, we all felt we were being used by him to gain favor with his boss. Sincere praise happens even when no one is looking.

Tailor it to the individual Just because you may enjoy being praised in front of others doesn’t mean that everyone does. Some people are shy and even feel embarrassed to be pointed out in front of their peers or a group. Know the individual, (or ask fellow colleagues, that know them best, if you are not sure) and give some thought as to the best way to recognize them. Instead of giving everyone the same recognition gift, find out what the person would appreciate. It takes more time and effort, but the receiver will appreciate it more.

Create opportunities to think about and share gratitude How about starting your monthly meeting by going around the room and having everyone express one thing they are grateful for? Or start a gratitude book for the office, that everyone could write in to thank others or mention something good that has happened at work or at home. Discuss ways that you can make gratitude an important theme at your workplace.

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

Employee Assistance Programs Utilizing your Best HR Partner By Donna Tosches

Stress is a term often used in the workplace. Managing more with less is often heard in the hallways and at meetings. Increasing a workforce’s resilience in the face of change is a goal heard in every conference room. According to a recent survey from the American Psychological Association, 75 percent of people regularly experience unhealthy stress levels. And, the vast majority of survey participants reported work as the number one cause of stress in their lives. Since the majority of today’s work force report multiple “stressors” in their workplace, it is important for leaders to focus on increasing the knowledge and utilization of one of the most important resources they have – their Employee Assistance Program. Employee Assistance Programs (EAPs) are plans that help identify and resolve issues facing troubled employees through short-term counseling, referrals to specialized professionals or organizations, and follow-up services. Part of the core technology of EAPs is to assist leaders to recognize and deal with behavioral issues. This important skill is what makes an EAP the perfect partner with Human Resources. Business Week reports that “"The people a business owner needs to worry about are the … valued workers whose productivity suddenly and mysteriously plummets. From depression to anxiety, from drug abuse to alcohol addiction, common psychiatric disorders take a remarkable, if littlediscussed, toll. In lost productivity and absenteeism alone, the cost to business approaches $312 billion annually.”

EAP Utilization Given these sobering statistics and the great need for EAP intervention, utilization remains at a lower than expected rate. Business Insurance reports that a mere 3% of employees used their employer's EAP counseling services in 2012, according to data compiled by EAP Technology Systems Inc., a Yreka, Calif.-based EAP analytics company. Business Insurance also reports that a study by Towers Watson & Coin September 2013 found that while 85% of employers of all sizes offer stress management services within their EAP, only 5% of employees had used those services. An Employee Assistance Program is designed to work alongside Human Resources initiatives to increase wellness; productivity and job satisfaction. It is a low cost partnership. Business Insurance reports that the average annual per-employee cost of an EAP ranges from $12 to $40, representing less than one third of 1% of the average employers' annual per-employee spending on health insurance according to reports by the Employee Assistance Society of North America and the Kaiser Family Foundation. However, what is needed to increase utilization? Most studies will show that low EAP utilization points to three key areas: definition, marketing efforts and stigma.

Definition of an EAP In the absence of a clear marketing campaign, employees themselves will define EAP, often with misleading and erroneous content. EAP in some settings continues to be seen as a program for people with substance abuse problems or troubled employees referred only by management. It behooves a business and their EAP to clearly define what the program is so that what the program is not doesn’t take over popular perceptions. The National Business Group on Health in their document titled An Employer’s Guide to Employee Assistance Programs defines EAPs as providing strategic analysis, recommendations, and consultation throughout an organization to enhance its performance, culture, and business success. These enhancements are accomplished by profes-

sionally trained behavioral and/or psychological experts who apply the principles of human behavior with management, employees, and their families, as well as workplace situations to optimize the organization’s human capital.

Marketing an EAP The opportunity here rests with the business and the EAP in getting the correct language in place and widely distributed to make the definition come alive for leadership and employees. Defining EAP and marketing it clearly will increase utilization. Dave Sharar and Richard Lennox of Chestnut Global Partners remind us that at the very core of any EAP is the understanding that employees with behavioral health and emotional wellbeing issues are likely to struggle in their jobs. Contemporary EAPs have focused on being in the counseling business rather than in the business of improving workplace productivity using their behavioral health expertise. EAPs must shift the marketing message to encompass all that EAP does and achieves rather than on the one aspect of counseling. This message will resonate with employers and employees as EAP will be seen as a partner with much to offer rather than a counseling service. Business Insurance suggests that advertising less intrusive services such as work life balance, stress management, improving sleep can draw employees into the program without fear of incurring negative attention. Also they suggest highlighting positive experiences with EAPs so that employees become used to the idea of accessing EAP for all types of issues. They also emphasize that all communication needs to include detailed information about privacy protections to help ease concerns. Employer communication is critical to improving trust and employee participation in EAPs.

Stigma Despite the fact that 1 in 10 people struggle with depression in their lifetime; despite the fact that US employers rank stress as the top workforce issue; despite the fact that the World Health Organization reports that depression is the leading cause of disability worldwide; despite the fact that suicide ranks 10th in the top ten leading causes of death in the US – there continues to be a stigma about behavioral health issues. A well-defined EAP which highlights all that it can do for the business and the employee plus a marketing strategy that helps EAP become a welcome and accepted part of the business culture will breakdown stigma and acceptance will become the norm. The message needs to be that everyone struggles or knows someone who struggles with behavioral health issues. It no longer needs to be a whispered conversation. The employer provides an EAP to its employees because they want people to seek the help they need. It is crucial that businesses, human resource professionals and EAPs map out a yearly strategy to increase utilization by clearly defining the program and its objectives, developing a marketing strategy to reach all employees and to decrease the stigma of asking for help. Your business will be much better off for this effort.

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


would violate anti-discrimination laws). Moreover, protected concerted activity can occur in both unionized and non-unionized workplaces.

R U Ready

for Your Employees on Social Media?



By Elizabeth S. Rudnick

ne of your company’s employees has been tweeting negative comments about her supervisor on Twitter and posting stories about her work day on her personal blog. A supervisor is sending text and IM messages to his subordinates late at night regarding information about a project. Another supervisor “friends” subordinates on Facebook and posts comments on personal pictures of the employees. Are you ready to handle these scenarios?

The explosion of social media and electronic communication in recent years gives employers new fronts on which they must deal with employee conduct. The law is still developing and there are not always bright lines to dictate how an employer should respond. The first thing your company needs to understand is just what social media is. The Merriam-Webster Free Dictionary defines social media as “forms of electronic communication (as Web sites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (as videos).” You may be familiar with the more popular social media sites: Facebook, Instagram, Twitter, and the like. Texting and other electronic media used to communicate, however, are also often included in the broad definition of “social media.” It’s possible that not all your employees use social media to communicate, but you can bet many do. One thing is clear: social media can be a legal minefield when it comes to monitoring employee behavior. Here are some specific legal issues that may arise:

◊ Complaints about terms and conditions of employment on social media can be protected concerted activity under the National Labor Relations Act. Under the National Labor Relations Act (NLRA), “protected concerted activity” occurs when “two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.” Employers generally cannot take an adverse employment action against employees for engaging in protected concerted activity, unless the manner of protected activity brings it outside of the protection of the NLRA (for example, an employee criticizing his or her supervisor by using racial slurs which 14

The National Labor Relations Board’s (NLRB) stance on social media in the context of both unionized and non-unionized workplaces has drawn significant attention. In a series of opinions, the NLRB has held that an employee’s use of social media, such as Facebook, to complain about terms and conditions of employment constitutes protected concerted activity. For example, if an employee complains about how she is treated by her manager, that her vacation hours were cut, or that she believes she is underpaid—is she engaging in activity protected by the NLRA? The NLRB certainly believes so. Having a social media policy prohibiting disparaging the company online or discussing “sensitive information” does not give the company license to discipline an employee for engaging in protected activity. In fact, not only may discipline based on the employee’s social media conduct—if it is protected activity—be actionable, but also the policy itself that forbids disparagement may be deemed “chilling” of employee rights under the NLRA to discuss their terms and conditions of employment with others. Indeed, the NLRB has held that employers’ policies that include broad prohibitions of employee on-line conduct without language clarifying that protected concerted activity is excluded violate the NLRA. The NLRB has also held that policies that prohibit employees from discussing private matters—such as sick calls, leaves of absence, ADA accommodations, and workers’ compensation injuries—also violate the NLRA because these “private matters” relate to terms and conditions of employment. Before you move to discipline an employee for social media conduct that seems to defame or libel the company and/or its managers, make sure that the on-line statements are not protected activity under the NLRA and you may wish to engage counsel to determine whether such statements are so maliciously false as to lose protection under the NLRA. Likewise, in crafting your company’s social media policy, it is prudent to avoid blanket prohibitions on social media postings that may be disparaging or negative in content. Remember, some negative comments on social media may be protected activity.

◊ After-hours communications with non-exempt employees can create wage and hour issues. Now more than ever, it is easy to communicate with employees. Whereas in the past, a manager would have to wait until the following work day to communicate with his or her subordinates, e-mail and text messaging (as well as IM-ing) make getting that very important, short, sweet idea to subordinates so much easier. Great, right? Not always. Communicating with

a non-exempt employee after-hours creates compensable time (meaning, the company needs to pay the employee for the time he/she spend reading the after-hours email or text message from home). Hourly employees who are non-exempt under the Fair Labor Standards Act (FLSA) must be compensated at time and a half their regular wages for all hours worked in excess of forty in a workweek. And, if the employee has already logged forty in-office hours that week, the time reading and responding to text messages from home must be paid at time and a half.

◊ Online activity between two employees, including managers and subordinates, may create a hostile work environment. Courts have long held that a hostile work environment can arise from conduct that is off the clock and/or away from work if such conduct reverberates back into the workplace. The typical scenarios encountered used to be inappropriate behavior at holiday parties or happy hour excursions, or horseplay at work-related conventions or meetings. Social media opens up an entirely new frontier for potentially harassing conduct. People seem to lose their inhibitions on Facebook and other social media websites. Perhaps because of its casual nature, and because communication is not face-toface, otherwise staid and reserved professionals may post comments on a social media website they would never say in the workplace. Lines are further blurred if the employee is “friends” with co-workers or managers on the particular website. Likewise, if a manager makes inappropriate comments or posts questionable material, subordinate employees who are “friends” with the manager may become uncomfortable. Even without objectionable content being posted on his/her Facebook or social media page, an employee may feel he/she is being “cyber stalked” by a manager or coworker. An employee may also feel compelled to accept a friend request from a manager, placing both of them in a potentially awkward position. And, all of this happens in a forum that is not easily monitored by the company. Of course, not every situation where a manager is “friends” with a subordinate employee on social media will result in a hostile environment/ harassment claim. However, because of the casual nature of social media, the normal levels of professionalism exercised by managers and employees are often abandoned, leading to trouble for all.

nation Act (GINA) makes it illegal for an employer to discriminate on the basis of an employee’s potential genetic conditions, which can mean traits inherited from family members. Thus, the manager who is “friends” with an employee who posts on social media about her mother’s breast cancer treatment now has knowledge that can be problematic for the employer should the employee bring a claim of discrimination under GINA. So, what can an employer do to help minimize its potential exposure to problems that may arise through the use of social media? First, it is important to have a strong social media policy in place. While a company cannot prohibit employees from discussing terms and conditions of employment on social media (the NLRB would not permit this), it can define the parameters of what can be said about the company’s brand or products or prevent employees from giving the impression that they represent the company when they speak. Other considerations in a social media policy include: prohibiting bullying, discrimination, and harassment via social media, and outlining the consequences for violation of the policy. Train your managers in the responsible use of social media. It can be tempting to accept friend requests from subordinate employees, but it opens the door to a host of troubling scenarios. Expand traditional workplace harassment training to include social media usage. Finally, caution managers about communicating with non-exempt employees after hours. The time spent by employees checking work-related text messages and emails is likely compensable and may cost your company money it did not intend to spend.

Elizabeth S. Rudnick, Shareholder Littler Mendelson

How do you know if a manager or employee is creating a potentially hostile work environment on social media? Ask: is that manager or employee “friends” with other employees on the social media site? Is that manager or employee’s conduct on-line something that, if it were in a live workplace, the company would prohibit? If the answers to these questions are yes, it is important to follow the company’s policies with respect to workplace harassment investigations. This may prove to be more difficult than a traditional investigation, since HR may not have access to the quasi-private and/or password-protected social media websites.

◊ “Friending” employees on social media may give the company information it does not want to have. Claims of disability discrimination under the Americans with Disabilities Act Amendments Act have been on the rise. To establish a claim of disability discrimination, an employee must prove that the employer knew the employee had a disability or regarded him or her as having a disability. If a manager is “friends” with this employee on social media, the manager may learn personal details about the employee the manager otherwise would not know, including medical conditions that the employee has not disclosed at work. Likewise, the Genetic Information


Direct Evidence in Age Discrimination Cases – It is what you say (not how you say it) and who says it that matters By Jennifer S. Hagerman


mployers often struggle with decisions regarding layoffs and succession planning. Determining which factors should be included in the decisionmaking process, and specifically how seniority, pay level, performance, future with the company and ability to move into a leadership position in the future should be addressed is difficult and fraught with potential issues. The 2013 Sixth Circuit case of Sharp v. Aker Plant Services Group, Inc., 726 F.3d 789 (Aug. 9, 2013), serves as a firm reminder of the importance of a considered process in which age is not a factor and of communicating that process and the results in a clear, honest and straightforward manner.

Proving Age Discrimination In 2009, the United States Supreme Court decided that a plaintiff in a case under the Age Discrimination in Employment Act (“ADEA”) must prove that age was the “but for” cause of the adverse employment action at issue. Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). One way a plaintiff may establish that age was the “but for” cause of such adverse action is through direct evidence of discrimination. Direct evidence is evidence that does not require the fact finder to draw any inferences to reach that conclusion. Accordingly, direct evidence of discrimination is generally rare. In Aker, the Sixth Circuit noted that “only the most blatant remarks” constitute age discrimination, and “general, vague or ambiguous comments” are not sufficient. 726 F.3d at 798. The court held, however, that the supervisor’s comments that the plaintiff was laid off because the company needed to retain someone “younger” in order to “bring the next generation in” constituted direct evidence because the statements “were offered to explain the very decision at the heart of the lawsuit.” Id. at 795-798.

Background of Aker Plaintiff, Tommy Sharp, was a 52 year-old electrical and instrumentation designer who began working for Aker Plant Services Group in 2003. Sharp testified that in 2006 his supervisor, Mike Hudson, made comments about the advancing age of Hudson’s group and the need to bring in younger employees. Due to a decrease in business in 2008, Aker determined that layoffs were necessary and distributed a “forced ranking template” to supervisors. Despite the fact that he was on medical leave at the time the template was distributed, Hudson completed the template and ranked Sharp next to last. At the request of management, Hudson also advised Aker which employees from the group to retain. Relying on Hudson’s rankings and recommendation, Aker decided to terminate Sharp. After Hudson advised him of his termination, Sharp testified that Hudson told him that Aker wanted “someone younger” due to its “succession plan,” which Hudson described as “where you bring in younger people, train them, so when the older people leave, that you’ll have younger people.” According to Sharp, Hudson told him that his performance was not a problem. 16

The following week Sharp went back to Hudson and secretly recorded another conversation regarding his termination. During the conversation, Hudson stated that another designer was hired and retained because that designer was younger. Hudson also stated: “it's not that your abilities all of a sudden ceased to exist, or got worse, or anything like that, we just, I hate to keep repeating myself, but we're all of the same age and we're all going to retire and I had an opportunity to bring the next generation in, so that's what we decided to do.” Hudson also wrote a letter of recommendation for Sharp describing Sharp as a “key member of the design group,” who “performed all the tasks given to him at a high level.” Id. at 795-96. Sharp filed suit asserting a claim for age discrimination under the Kentucky Civil Rights Act, which is analyzed in the same manner as an ADEA claim. Id. at 797. The district court granted summary judgment in favor of Aker on the grounds that Hudson’s “comments did not reflect age bias, but rather a concern for maximizing the return on training costs by retaining employees who would stay with the company longer.” Id. at 796. Sharp appealed to the Sixth Circuit.

Supervisor’s Involvement in Decision was Sufficient to Establish Liability Against Company The Sixth Circuit squarely rejected Aker’s argument that the comments were insufficient to establish discrimination because Hudson was not the ultimate decision-maker. Focusing on Aker’s sole reliance on Hudson’s rankings and recommendations, the court held that Aker was “accountable for whatever age bias [the supervisor] harbored.” Id. at 797.

Employers Should Mean What They Say (and Write) Aker also attempted to argue that Hudson “did not mean to discriminate,” but was “merely trying to articulate – inartfully, as it turns out – a legitimate business purpose distinct from age.” Id. at 799. Contrary to cases which have permitted employers to make employment related decisions based on factors that correlate with age, but are distinct from age, such as retirement plans and pension status, the Aker court found that Hudson’s comments reflected “no analytical step between computing an employee’s potential longevity with the company and his age.” Id. at 801. Instead, the court noted that the comments demonstrated that Aker’s “succession plan was to hire or retain younger workers at the expense of older workers because it was more likely that the former would stay with the company longer than the latter.” As this rationale was not “analytically distinct” from age, the court held that Sharp had offered direct evidence of discrimination sufficient to survive summary judgment. Finally, relying on Hudson’s recommendation letter and recorded comments, the court rejected Aker’s argument that it would have terminated Sharp absent an impermissible motive because of his inferior performance. While the court acknowledged that Hudson may have made such comments and written the letter to spare Sharp’s feelings, the court held that it was ultimately a credibility determination for the fact finder.

Jennifer S. Hagerman Attorney, Burch Porter & Johnson PLLC

Being “Friends” With Your Employees on Social Media

Is Not Just A Bad Idea, It May Be Unlawful Under Arkansas Law By Jane A. Kim

Given the rapid evolution of social media, navigating through social media-related employment issues is oftentimes unchartered territory for employers. In 2013, Governor Beebe signed into law Act 1480, which offers guidance as to what an employer can and cannot do with respect to an employee’s personal social media account. Act 1480 is enforced by the Arkansas Department of Labor and applies to all employers. Act 1480 prohibits an employer from requiring, requesting, suggesting, or causing a current or prospective employee to (1) disclose the username and password for his/her social media account; (2) add an employee, supervisor, or administrator to a list or contacts associated with his/her social media account; or (3) change the privacy settings associated with his/her social media account. It is also unlawful for an employer to retaliate against an applicant or employee for refusing to comply with any of these prohibited acts. There are certain exceptions to Act 1480. For instance, the law applies only to an employee’s personal social media account (e.g., Facebook, Twitter, LinkedIn, Instagram, blog or podcast), so any social media account opened at the request of an employer, provided by an employer, or created on behalf of or for the benefit of an employer is not covered by Act 1480. Additionally, if a personal social media account is relevant to the investigation of an employee’s alleged violation of law or written employment policy, an employer may obtain and use the employee’s login information for the limited purpose of investigating those allegations.

It is also worth noting that, if an employer inadvertently receives an employee’s account username, password, or other login information through an employer-provided electronic device or a network monitoring system, the employer will not be liable under Act 1480 as long as the employer does not use the information to gain access to the employee’s social media account. Finally, Act 1480 does not prohibit employers from viewing information about a current or prospective employee that is publicly available on the Internet, but managers should generally avoid doing so for the same reason why managers should not be “friends” with employees on Facebook or other social media sites—i.e., the potential exposure to information that managers do not need to know about their employees. In fact, given the enactment of Act 1480, managers who are currently “friends” or otherwise connected with their employees on social media may want to reconsider those connections. At a minimum, though, employers should take a close look at their social media policies to ensure they comply with Act 1480.

Jane A. Kim, Attorney Wright, Lindsey & Jennings LLP

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The Fusion of Payroll, HR Technology, and Defined Contribution Strategies By Tom Hayes

Over the last 30 years, those that provide payroll-related services have evolved and expanded their service offerings far beyond the weekly paycheck. In fact, for full service payroll firms, one could argue that the data accumulated through the payroll process helps business owners manage, not only their weekly payroll and tax filing needs, but also the various compliance and regulatory requirements of human resources and benefits. How do we define Human Resources today? How do you personally want to collect and maintain the employee information that you gather? Better yet, will you know what to do with the data once you have it in your possession? HR professionals must focus on two critical and significant employee management functions: 1) compliance and 2) the administration of the benefits and payroll. The Affordable Care Act, or ACA, has significantly added to the compliance requirements in human resources. In 2014 alone, human resource professionals must flow through a litany of new requirements such as how the individual mandate might affect their variable hour and seasonal employees, analyze tax-favored consumer-directed health accounts (such as FSAs, HRAs and HSAs), provide a myriad of required notices to employees and dependents, manage Medical Loss Ratio refunds and its impact, wellness programs, and last but not least, planning for 2015 and beyond. What remains a constant is the requirement for daily administration of benefits and payroll. ACA and its impact are being felt by all employers, large and small. Key administrative concerns include: • Understanding the impending Employer Mandate • Calculating the affordability of coverage • Determining how to deliver benefit offerings through traditional methods or through new technology benefit platforms such as private insurance exchanges • Creating new employer funding strategies through defined contribution • Managing employee deductions The fusion of payroll and HR technology is happening now. The best platforms will enable an organization to integrate the numerous functions of benefit administration with their weekly payroll functions. Here are the top six items to look for in an integrated HR, benefits and payroll platform: Dynamic Benefit Enrollment ACA, through the enactment of the Federal and State-based Exchanges, has magnified a focus on a more dynamic and simplified benefit enrollment process. Private insurance exchanges have positively changed the enrollment process from a traditional employer-choice model into an employee-choice model. The best private exchanges include a strong decision support engine that leads the employee through a series of questions equipping the system to recommend the plan best suited to their needs. The enrollment process also includes strong consumer-based tools such as progressive cost trackers showing employees how selections affect their employer’s contribution and/or payroll deductions, allowing employees to make informed financial decisions about their healthcare. If a Defined Contribution employer-funding approach is utilized, a private insurance exchange will empower this strategy. Carrier Integration Many technology platforms allow for connections to be made with carriers that will push or pull data depending on the needs of your organization. Although your current technology might allow for it, you will want to reach out to the various carriers you work with to ensure that they will permit such a connection. Most carriers utilize a standard Electronic Data Interchange (EDI) 834 enrollment file that you may use to create the connection between the carriers and your platform. This connection is critical to effectively manage and maintain the various status/life and enrollment event changes that can occur each business day. This technology also allows the user to enter the information only once and removes the obligation of going daily into the various carrier portals to make these timely changes. 18

Consolidated Billing Most employers provide benefit offerings that consist of, at least, three different insurance carriers. Auditing and paying those invoices each month can be an arduous task if you do not have a platform that can streamline the process between status changes and the payment of premiums. Not all HR and benefit platforms will permit a consolidated premium billing solution but strong consideration and planning should be made to ensure that you pick the best platform to fit your needs. Billing is explicitly linked to enrollment and status changes. Great efficiencies can be obtained by having this solution available. Eligibility and Maintenance Traditional and new HRMS systems generally include the ability to collect data needed for proper eligibility and maintenance. Organizations should look for platforms that enable all status events and changes (i.e. such as proactive dependent audits) in benefits coverage made through the portal to be sent to each applicable system (carrier, payroll, billing, time and labor management systems, etc.) for a completely integrated administration experience. Redundancies can be eliminated with successful integration. Deduction Management Surveys point to a strong adoption in the coming years of defined contribution healthcare funding strategies. The best platforms granularly capture all the necessary payroll deduction activity created from benefit enrollment and ongoing status changes. Deduction management goes beyond just knowing how much comes out of the individual’s paycheck each pay period. Systems must also be able to accurately reflect if the deductions are pre- or post-tax or employee or employer contributions. An employee’s paycheck is one of the top concerns for each employer so ensuring that HR, benefits and payroll technology includes this feature to guarantee proper payroll deduction management is critical. Payroll Integration Last, but most important, is payroll integration. Technology platforms that will integrate or interface with your payroll system of choice is vitally important for the integrity of your data. Payroll integration is necessary for the streamlined and efficient administrative processes of adding new or updated enrollments and deductions; new hires and terminations that will occur often first in payroll; address changes; compensation adjustments; links to time and labor management systems; maintaining ACA requirements such as monitoring VHEs through their measurement periods; and much more. On a positive note, the fusion of payroll and HR technology is now available to any employer large and small. Gone are the days where large employers were the sole benefactors of this technology. There are also numerous payroll, HR and benefit technology platforms available in today’s market - from the most comprehensive and costly to the very simple and least expensive. Finding the right one is the hard part. Having the right benefits advisor to guide you through this process will ensure that you will find the right platform necessary to meet the employee management needs for your organization.

Tom Hayes, Employee Benefits Practice Leader Regions Insurance Group


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Tom Hayes Employee Benefits Practice Leader 479-684-5259

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Giving an Employee EXACTLY What He Wants

Requested transfer held to be an adverse employment action By Latosha Dexter

“Adverse employment action.” That phrase has been bandied around employment law and human resource circles for years. It is part of the infamous prima facie case – what an employee has to prove to establish an initial claim of discrimination. But what does it really mean? I thought it meant that an employer’s action sufficiently affected the employee’s “compensation, terms, conditions, or privileges of employment” in a detrimental manner. There had to be a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. And I was under the impression that the employer had to take some part in the action that was deemed adverse. I never would have thought that giving an employee what he or she wanted could actually be an adverse action. Silly me, because the Sixth Circuit recently held just that in Deleon v. Kalamazoo Cnty. Rd. Comm'n, 12-2377, 2014 WL 114016 (6th Cir. Jan. 14, 2014), when it decided that a requested transfer could be an adverse employment action.

The case of Robert Deleon Robert Deleon, a 53-year-old Hispanic male of Mexican descent, had worked for the County Road Commission for twenty-eight years. Beginning in 1995, he served as an area superintendent supervising road maintenance activities. In 2008, he applied for the position of “Equipment and Facilities Superintendent”, a position that involved working in an office located in a garage with diesel fumes. He testified that if offered the job he would have requested a $10,000 raise. However, because of his insufficient computer skills, the job was offered to another candidate who left the position shortly thereafter. An external candidate was then offered the position but declined. In 2009, Deleon was involuntarily transferred into the job. According to the court’s opinion, although he did request a $10,000 raise because of the hazards of the new job, he did not get it.

The situation deteriorated Deleon claimed that the transfer was a deliberate attempt to set him up to fail and that he complained about the hazards of the new position. The facility constantly exposed him to diesel fumes and Deleon claimed that he developed bronchitis as well as a cough and sinus headaches due to the exposure. Witnesses described the environment as “like sticking your head in an exhaust pipe.” Although his previous evaluations as area superintendent had been positive, his first evaluation as Equipment and Facilities Superintendent noted areas of improvement. The situation deteriorated, and after a contentious meeting with his supervisor he was hospitalized for five days for what he referred to as a work-induced, stress-related mental breakdown and subsequently took eight months FMLA leave. He was terminated and replaced after he exhausted all of his available leave.

Circuit Court of Appeals disagreed and held that, under certain circumstances, a lateral transfer into a position that the plaintiff had actually applied for could constitute an “adverse employment action” as long as the work environment was “objectively intolerable.” The Court stated: “We emphasize that the key focus of the inquiry should not be whether the lateral transfer was requested or not requested, or whether the aggrieved plaintiff must ex tempore voice dissatisfaction, but whether the 'conditions of the transfer' would have been 'objectively intolerable to a reasonable person'.” Finding that there was a genuine dispute as to whether the transfer was objectively intolerable the Court reversed the District Court’s grant of summary judgment and remanded the case for further proceedings.

Imposing liability on employers Judge Sutton’s dissenting opinion is interesting in that it notes that Deleon allowed his application to remain active after being told there would be no raise, the job description noted that he would be working around diesel fumes, and he complained when he found out the job had been offered to an external candidate. Therefore, it was clear that he wanted the job with knowledge of the associated hazards. The dissenting opinion also recognized the resulting impact of the majority opinion on employers stating: “Whatever the correct interpretation of the employment retaliation laws may be, they surely stop at this line: imposing liability on employers whether they grant or deny an employee’s request for a transfer.”

Take caution giving employees what they ask for And I believe the dissent is correct. This decision is a hard one for employers. It could be a simple case of a court believing that a 28 year employee with good performance reviews deserved his day in court. Or it could, as the dissent recognized, set a new precedent for employers dealing with lateral transfer situations. For now, employers should recognize that they can face liability when they give an employee what he or she asks for and transfers an employee to a position for which the employee applied. Employers should also be alert for conditions requested by employees for transfer such as Deleon’s request for a substantial raise. Even though the request was denied, the Court believed that his request for “hazard pay” tilted the issue in his favor as to whether he really wanted the position.

Was the transfer objectively intolerable? In defending the claims against it, which included race and national origin discrimination under Title VII and age discrimination, the employer logically argued that there was no adverse employment action as the position was one that Deleon wanted. The District Court agreed and granted summary judgment for the employer. However, on appeal, the Sixth 20

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



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

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

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When Collective Bargaining is All in Your HEAD

By Kelly Walsh

Employers and employees are often imagined as having opposing needs where the differences can often play out into conflict, the kind that can even escalate to "Norma Rae" style proportions. Imagine employees banding together and fighting for fair labor practices and arguing that they should not be taken advantage of. It is true that our vocations and personal lives often bump into each other like bad drivers. It's one thing to come home and complain about the boss who doesn't understand your needs at home, but what about when that boss and business owner is you?

Solo-preneur Mindset Entrepreneurs and consultants are experiencing the same work life struggles as typical company employees, but the fight is internal. Do I keep working on this proposal or take time out for my daughter's soccer game? There are costs on either side of that argument so it's not an easy call. If I plan a vacation, the loss of revenue is significant while I'm not working and the question often looms, “Can I actually stop working while I'm away?� 22

The Princeton Review states that the average number of working hours for a successful starting entrepreneur is 70 per week. And because every bit of work is contributing toward the betterment of the business, there is immense pressure on every decision. Further, when the business relies fully on you, it can be practically impossible to turn it off. Dan Conroy, a marketing consultant, tells me, "I need to carry a notepad or take notes on my phone 24/7. If I'm standing in line at a store, trying to fall asleep, or shaving, I'm constantly brainstorming and solving problems for clients. I'm afraid I'll lose an idea if I don't write it down, and worse, I have a hard time focusing on non-business matters like my family."

110% Myth We celebrate the companies who are understanding of the needs of work life balance and the greater effectiveness a good plan will have for employees. But again, that can get tossed aside quickly when your company's success is riding on you. I don't know any small business owners who will tell you that they'll pass on a project in order to get some rest and have more balance. In fact, more often, I will find the over achieving, over stressed person who tells me that they just want to give 110% at work and with their family all of the time. As admirable as that may be, it simply isn't possible when the glass is full at 100% and they have yet to consider any other things that will ultimately have to be on that list (e.g. a sick parent, home repair). So could we consider shaking off some of the guilt, accepting that we may have to give 90% (or whatever number makes sense to you) to work activities and home activities, and know that our sanity and health will be worth it? Sometimes walking away from your desk is when you will have the best idea for your business anyway (so keep that e-notepad handy). Shooting for perfection is exhausting and makes happiness very elusive.

Women Entrepreneurs A study from the University of Singapore showed that as long as the society continues to emphasize a woman’s basic role as that of mothering, and caring for the household, working women will face role struggles. Work family conflict becomes a major obstacle in managing their businesses. The data suggested that some of the conflict could be alleviated by three things:

• Greater spouse support; • Flexible work schedule; and • Full day school. This is likely true in many countries. A supportive partner can reduce conflict and increase wellbeing in women entrepreneurs. When you can't go to your Human Resources Representative or other Ombudsman, how can you keep yourself in check? How can you punch your mental clock and let the day go so you can recharge your batteries for the next day?

Here are some thoughts:

• It's lonely at the top - It's lonely when you are a solo-

preneur. Perspective is needed. Define your values and goals clearly and get an accountability partner to meet with weekly to ensure you are on track. Are your activities matching up? For example, you started a graphic design business but spend a significant amount of time doing billing and paperwork. Take steps to make it more efficient with software or trading services so you can spend more time doing what you love.

• Stress - 80% of workers feel stress on the job. Trying to

do it all can ratchet up the stress and long-term, stress can disrupt nearly all of the body’s processes and increase the risk for numerous health problems — including diabetes, obesity and stroke. Consider your health a work goal also. Try walking every day to change up sitting in your car or at your desk and eat a healthy lunch to help combat the negative effects of stress. Take a stretch break and even relax your visual focus by looking into the distance instead of just your computer screen. Take deep breaths.

• Define success – Ask yourself what are your metrics?

Satisfying relationships, $$, Esteem in the community etc. Depending on your metrics, you may not need to be pulling 70-80 hour weeks. Sure we can all use more money, but defining your real goals up front will help you know when you have met them. When you have met or exceeded financial goals, for instance, it's okay to lighten the load a bit or hire someone to help.

• Don't seek balance - If you are doing what you love

and not hurting others...why not submerge yourself in it if that's what you want to do? Some people feel they are living the dream and being their own boss so who are we to say they need to structure their life on different terms? If you thrive on it then make your choices accordingly.

Kelly Walsh M.Ed, ACC, Owner, 1 Smart Life


Courts Provide Mississippi Employers

With Guidance On ADA Duties During 2013 By E. Russell Turner

On appeal, Mr. Neely argued that the lower court’s jury interrogatory was erroneous because when Congress amended the ADA, it replaced the former term of “qualified individual with a disability” to simply “qualified individual.” Id. at 246. Although Congress revised that phrase in certain parts of the ADAAA, it left that phrase intact in other parts of the ADAAA. As such, the Fifth Circuit held that “these changes do not demonstrate an intent to underscore the unimportance of ‘disability’ under the ADA or suggest that the use of the phrase ‘qualified individual with a disability’ is erroneous.” Thus, the Fifth Circuit affirmed the lower court’s decision to dismiss Mr. Neely’s claim and likewise clarified that while the ADAAA “makes it easier to prove a disability, it does not absolve a party from proving one.” Id. at 245. Equally important is the Court’s holding that this rule applied to both termination and failure to accommodate claims. Thus, a Mississippi employer’s duty to reasonably accommodate under the ADA is still only triggered if the employee can prove that he is a “qualified individual with a disability.” Mississippi employers will unquestionably benefit from the Fifth Circuit’s November 6, 2013 decision in Neely.

• Must an employee’s requested accommodation enable him to perform the essential job functions? Although the ADA Amendments Act (“ADAAA”) has been binding on Mississippi employers for some six years, the courts are still confronting new and/or previously unaddressed issues on a fairly regular basis as more ADA charges have been filed annually since the ADAAA became law in 2008. Both the Fifth Circuit Court of Appeals, which provides binding precedent for Mississippi employers, and federal district courts within Mississippi issued significant decisions within the last year which focused on certain issues that warrant further attention by Mississippi employers. Each of those issues is discussed in detail below.

• Does an employee still have to prove the existence of a disability under the ADAAA? When Congress amended the ADA in 2008, it did so for the primary purpose of overruling two United States Supreme Court decisions from 1999 and 2002 which had made it very difficult for employees to satisfy the statutory definition of a disability. Neely v. PSEG Texas, 735 F.3d 242 (5th Cir. 2013). Indeed, Congress explicitly stated that it wanted the courts to focus their attention on “whether entities covered under the ADA have complied with their obligations,” and that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” Thus, it is not surprising that an employee would subsequently rely on the 2008 Amendments as a basis for arguing that he no longer had a duty to prove the existence of a covered disability as a predicate for recovery. A Texas control room operator made just that argument following his termination, but the Fifth Circuit concluded otherwise. Neely, supra at 244-45. In Neely, the plaintiff was let go after a series of verbal altercations with his supervisors. After being discharged, Mr. Neely’s doctor diagnosed him with major depressive disorder and generalized anxiety disorder. Mr. Neely apparently claimed that both of these disorders existed before his termination, but his employer disputed that assertion which meant the jury had to decide this question. In doing so, the district court gave the jury an interrogatory which asked the jury to determine if Mr. Neely was “a qualified individual with a disability” at the time his employer terminated him. The jury answered “No” to that question which resulted in the court directing a verdict for Neely’s employer. 24

Since the primary focus of the ADA is ensuring equal employment opportunities for applicants and employees who meet the definition of a “qualified individual with a disability,” it is only natural that many employers intuitively believed that requested accommodations must help the applicant/ employee to perform the essential job functions. That is in fact one of the definitions of a reasonable accommodation under the ADA’s implementing regulations. See 29 C.F.R. § 1630.2(o)(1)(ii). However, as one employer recently learned, there is one other lesser known definition of reasonable accommodation that is not tied to enhancing the employee’s ability to perform essential job functions. Feist v. Louisiana Dept. of Justice, 730 F.3d 450 (5th Cir. 2013). In Feist, the employee was an attorney for the Louisiana Department of Justice who suffered from an osteoarthritic knee for which she requested a free on-site parking space. Her employer declined this request because the employee did not explain how this requested accommodation would enable her to perform the essential functions of her job. The lower court agreed with the employer, but the Fifth Circuit reversed because it found that the EEOC’s implementing regulations included one other definition of a “reasonable accommodation” which the court concluded to be a reasonable interpretation of the ADA. That definition provided that an accommodation is considered reasonable if it enables an employee with a disability “to enjoy equal benefits and privileges of employment as are enjoyed by other similarly situated employees without disabilities.” Id. (citing 29 C.F.R. § 1630.2(o)(1) (iii)). The Fifth Circuit did not then decide if the requested on-site parking space met this other catch-all reasonable accommodation definition but remanded the case to the lower court for that determination. Most failure to accommodate cases focus on the first and much more wellknown definition of a reasonable accommodation that is tied to the essential job functions for one reason: employers in such cases typically only terminate employees after determining that the employee is unqualified, that is, he cannot perform the essential job functions regardless of any accommodation. Those types of cases are overwhelmingly the ones that get filed because they actually involve adverse employment actions which result in the loss of pay or benefits. Most employees and/or their counsel do not file lawsuits over denied accommodation requests that do not affect the employee’s ability to perform essential job functions because employees with the ability to perform essential job functions usually remain employed. Thus, although the

Feist decision is important because it affirms the EEOC’s catch-all reasonable accommodation definition, the reality is that most failure to accommodate cases will still focus on the definition tied to essential job functions because those are the cases where employees suffer actual monetary damages, e.g. job loss. Nonetheless, Mississippi employers should still be aware of this other definition in order to address those cases where a disabled employee requests an accommodation that makes their job easier but does not necessarily affect their ability to perform essential job functions.

• Does an employer have any duty to provide an accommodation that was not specifically requested? As often occurs, employees with certain impairments will provide doctor’s excuses that indicate that the employee may not be able to perform certain job functions when the employee’s condition is aggravated. That is precisely what happened when a North Mississippi hospital employee was terminated in April 2011. Johnson v. Parkwood Behavioral Health, 2014 WL 31471 (5th Cir.). In Johnson, the employee’s doctor diagnosed her with bipolar disorder, diabetes, migraines and other conditions, and her FMLA paperwork showed that the employee may not be able to perform her essential job functions “during flare-ups.” The employer thereafter terminated the employee for a variety of performance deficiencies. After her termination, the employee claimed that her employer failed to accommodate her by giving her time off to take care of herself during these “flare-ups,” and that if it had done so, she could have met her performance requirements. Id. at *3. The Fifth Circuit rejected her argument because of one undisputed fact: she never requested any accommodation during these “flare-up” periods. This recent decision therefore affirms the principle that even when an employer may know about an employee’s impairments, it does not have a duty to accommodate the employee absent a specific request.

• Is one offer of reasonable accommodation sufficient? In certain cases, an employer and employee may each offer up separate and competing accommodation alternatives. Usually, the employee prefers that the employer grant his request even if the employer’s option is equally reasonable. The question then becomes which of those options does the employer have to grant. Based on a December 2013 decision from a Mississippi district court, it is clear that employers still have the discretion to choose which of those two equally reasonable accommodations are granted. DeMarce v. Robinson Prop. Group, Inc., 2013 WL 6528843 (N.D. Miss.). This decision is important for Mississippi employers in that it gives them the flexibility to both satisfy their legal duties under the ADA while making good business decisions for their workplace. As shown by these recent decisions, the ADAAA will likely be the subject of much judicial scrutiny over the next few years simply because the volume of disability discrimination claims increases with each passing year. Mississippi employers should therefore pay close attention to those decisions binding on them because novel and important issues will continue to impact them for several years hereafter. Rusty Turner is Governmental Affairs Director for the SHRM Mississippi State Council. He is also an attorney with Balch & Bingham, LLP in Jackson.

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E. Russell Turner, Partner Balch & Bingham LLP

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What HR Should Know About H-1B Visas By Ari Sauer

The H-1B is a nonimmigrant temporary visa classification, used for employees in specialty occupations, which HR managers commonly run into. It is a very useful visa for employers, but has specific requirements and expectations. This is a brief overview of some of the employer’s obligations. It is highly recommended that HR managers consult with an experienced immigration lawyer when considering sponsorship of an employee for an H-1B visa.

Eligibility for the H-1B visa

Employer may not bench employee

The H-1B is available for employees in specialty occupations, those that require at least a four-year Bachelor’s degree in a specific field of study, or an equivalent combination of experience and education, to be able to perform the duties of the position. Examples include architects, engineers, scientists, teachers, accountants, many business manager positions, and many IT positions. Often foreign national employees that are hired as recent graduates, with Optional Practical Training (OPT) work authorization, look for employers that will sponsor them for an H-1B visa. H-1B status is initially granted for a 3-year period, and can be extended for an additional three years. Extensions beyond six years are possible where the employee has been sponsored by an employer toward becoming a U.S. Permanent Resident. The H-1B is a nonimmigrant, or temporary, visa status. However, it is one of the few nonimmigrant statuses that allow the employee to have “dual intent”, meaning the intent to apply for Permanent Residence and remain in the U.S. This is a main reason why H-1B status is preferred by both employers and employees over other visas.

The employer may not put the employee on an unpaid leave of absence, or “bench” the employee. The employer must continue employing the H-1B employee throughout the entire period covered by the H-1B petition and pay the required wage unless the employer terminates the employment, following the requirements described below.

Employer obligations with the H-1B visa Employers sponsoring an H-1B employee must agree to several conditions of employment as part of the petition process. The employer agrees to these conditions when filing a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL), which must be posted at the location of employment prior to filing the H-1B petition with USCIS.

Required salary and benefits The employee’s salary cannot be less than the prevailing wage, as determined by the DOL for the occupation and location of employment, or the wages paid to other similarly-situated employees of the company in the same position, whichever is higher. Furthermore, the employee must be given the same benefits and working conditions as similarlysituated employees of the company.

Employment must not adversely affect other employees A company cannot sponsor an H-1B employee where the employment of the H-1B employee will adversely affect the working conditions of similarlyemployed workers or where the company has experienced a recent strike, lockout or work stoppage.

Maintaining a public access file for each H-1B employee The employer must maintain a public access file, which must be made available to the public upon request. The employer must keep the following in the public access file: 1) a signed copy of the LCA; 2) a statement clearly explaining the system the employer uses to set the actual wages paid to employees (i.e., a summary of employer’s pay system or scale); 3) documentation of the appropriate prevailing wage for the position and work location; 4) a statement indicating that the LCA has been posted as required at the place of employment; and 5) a description of the benefits offered to company employees. The public access file should be kept separate from the employee’s personnel file.

Additional record-keeping requirements The employer must also keep the following records, kept separate from the public access file, which need not be made available to the public upon request: 1) payroll records regarding all of the company’s employees in the same occupation and location as the H-1B employee; 2) a calculation of the actual wage rate paid to the H-1B worker, using the employer’s pay scale system described in the public access file; and 3) the raw data backing up the prevailing wage determination included in the public access file.

Terminating H-1B employee

The company must pay the H-1B employee the required wage rate, as listed on the LCA, for as long as the employee is employed in H-1B status pursuant to that LCA. If the employer files an extension of the H-1B or must amend the LCA, the employer must pay the new wage as determined for the new LCA. The H-1B employee must continue to receive the required salary even when the company reduces the salaries of other similarly-situated employees. Failure to pay the required wage could create a liability for the company, as the DOL can award back-pay to H-1B employees where companies fail to pay the required wage.

If the employer terminates an H-1B foreign national’s employment before the expiration of the H-1B petition, the employer must: 1) notify the DOL and USCIS of the termination; 2) clearly notify the employee of their termination; and 3) pay for travel expenses for the employee’s return to their country. It is recommended that the notice of termination and offer to pay travel expenses be provided to the employee in writing, as a record of compliance with these requirements. The employer’s obligation to pay the employee the required wage continues until these three obligations have been met.

With limited exceptions, the employer must pay all costs associated with filing the LCA and H-1B petition, including attorney fees and filing fees. The employee may not reimburse the employer for these costs and the employer may not take these costs out of the employee’s salary.

Ari Sauer, Immigration Lawyer Siskind Susser PC


The Affordable Care Act In 2015:

How Should Tennessee’s Small Business Owners Prepare? By Marianne Clendenen


mall business owners make up 97% of the businesses in Tennessee. Of that percentage, the majority of these small businesses employ 50 or fewer people. While the SBA has defined a small business as one with anywhere from 100 to 500 employees, under the Patient Protection and Affordable Care Act (“ACA”), employers with 50 or more full-time employees and “full-time equivalent” employees will be considered “Large Employers.” As such, these businesses

will have to provide minimum essential coverage to all full-time employees, or face penalties for failure to do so, a mandate frequently referred to as the “pay or play” mandate. Even though “pay or play” may not apply to a majority of the business owners in Tennessee, small employers must still be aware of the impact of ACA as other aspects of the law will impact small businesses.

“Close to 50 employees” Small business owners with close to 50 full-time employees who also use part-time, temporary, variable, or seasonal workers need to pay particular attention to the number of hours each employee works. If an employer fails to keep track of the number of hours the “full-time equivalent” employees work, and the aggregate hours of the these employees amount to what meets the definition of a “Large Employer,” then the employer may become subject to “pay or play” beginning January 1, 2015. 28

Calculation of Hours To calculate whether a company is considered a “Large Employer,” a company must look at the number of hours worked by all full-time employees in conjunction with “full-time equivalent” employees. Under the ACA, a full-time employee is defined as a person who works an average of 30 hours per week, or 130 hours per month. A “full-time equivalent” employee is any part-time, temporary, leased, variable, and/or seasonal employee who does not qualify as a full-time employee individually. “Full-time equivalent” employee hours are aggregated, and every 30 hour period worked by full-time equivalent employees is counted as one full-time employee. For example, if an employer employs 40 full-time employees and 20 part-time employees each working 24 hours per week or 96 hours per month, this employer has a total of 56 “full-time equivalent” employees. [(20 part-time x 96 hours = 1,920) (1920 ÷ 120 = 16 FTEs) (40 full-time + 16 =56 FTEs)] Additional evaluations impact the type of “full-time equivalent” employee. Employers must average an employee’s hours worked during a 3 to 12 month

span to discern whether the employee could be considered full-time. This measurement period should be reevaluated annually. In order to avoid surprise classifications, employers should proactively implement a process this year that will allow for automatic calculation of employee hours during a 3 to 12 month period so that the employer has some idea of what changes may be necessary, and to accurately track employee hours into 2015 and beyond. This is particularly important for employers that do not offer health care coverage to all of their employees who work 30 hours or more each week.

Small Business Health Options Program (“SHOP”) As of January 1, 2014, small business owners with up to 50 employees now have the option of purchasing insurance for their employees through the SHOP. The SHOP was originally intended to be available for employers to select and purchase a plan online from a variety of federally approved plans through However, due to prolonged technical failures, the website is not currently functioning, leaving employers to contact an agent, broker or insurance company directly to compare available SHOP plans and apply for SHOP eligibility. In order to use the SHOP marketplace, an employer must meet certain criteria. First and foremost, the principal address of the company must lie within the state where the employer is buying coverage. Next, the employer must have at least one common-law employee on the payroll (not including the owner, sole proprietor or their spouses) and must employ fewer than 50 full-time equivalent employees. Finally, coverage must be offered to all full-time employees. In Tennessee, once an employer has met eligibility criteria to sign up for a plan on the SHOP Marketplace 50% of eligible employees must enroll in the plan chosen in order for the employer to participate in SHOP. This percentage is lower than what is required in most other states. However, every year between November 15 and December 15, the percentage requirement will not apply in order to allow employers not meeting the minimum participation requirement to offer a SHOP plan.

Small Business Health Care Tax Credit (“Tax Credit”) Small businesses with fewer than 25 employees may also qualify for the Tax Credit. In addition to employing fewer than 25 employees, the employer must also pay 50% of each full-time employee’s premium SHOP health care plan cost. The average paid wage of these employees must be under $50,000 per year. The Tax Credit allows an employer to receive a credit of up to 50% of premiums paid by employers and 35% for tax-exempt employers in 2014. The Tax Credit is advantageous for employers with 10 or fewer employees, where employees’ average salaries are less than $25,000 per employee. If an employer qualifies for the Tax Credit, credit may be applied for two consecutive taxable years. The online SHOP is expected to be up and running by November, 2014. Now is a good time for small employers to evaluate whether they would like to offer health care coverage to their employees in the future, particularly since insurance providers can no longer turn down a company based on an employee’s pre-existing condition nor can providers charge higher premiums for women or employees with higher medical costs.

NOTICES Employers covered by the FLSA are required to provide notice to all new employees of the available health insurance exchanges and the possible qualification for a tax credit or subsidy. There are sample notices available on the Department of Labor’s website for employers that offer health care coverage and employers that do not. It does not matter if the new employee is full-time, part-time or temporary; every new employee must receive a notice. 90-DAY WAITING PERIOD As of January 1, 2014, any employee eligible for the employer’s health plan must begin coverage within 90 days. Employers can no longer specify waiting periods longer than 90 days for coverage to become effective for eligible employees. Eligibility can still be specified by the employer, for example, requiring that employees work at least 3 months, full-time, before becoming eligible. If an employer fails to comply with the new statutory waiting period, the IRS has the authority to impose an excise tax equal to $100 per day of noncompliance. In addition, employers are expected to self-report such violations on IRS Form 8928. HEALTH INSURANCE COVERAGE REPORTING REQUIREMENTS Under the ACA, employer-sponsored group health care plans are required to report the cost of certain types of coverage on IRS Form W-2. The reporting is intended to be for informational purposes only to the IRS and providing the cost information does not cause employer-sponsored health coverage to become taxable to the employee. The IRS decided to make reporting optional for all employers in 2011, and in 2012 decided to make the reporting requirement optional for smaller employers filing fewer than 250 W-2 forms until further guidance is issued. To date, further guidance has not been provided by the IRS, and reporting of employer-sponsored health coverage continues to be optional for smaller employers issuing fewer than 250 W-2 forms. However, small employers should continue to monitor the current reporting requirements, because the IRS will eventually issue further guidance, and the rule will no longer be optional. Beginning in 2015, employers with self-funded plans must begin collecting coverage information for the IRS regardless of the employer’s size. The information that must be provided under section 6055 of the ACA is very similar to the information that large employers of employer-sponsored plans must begin to collect in 2015 as well. The information required includes: the name of each individual enrolled in minimum essential coverage and the name and address of the primary insured or other related person who submits the application for coverage, months of coverage for each individual who is covered under the policy and any other information specified in the forms or instructions. For the large employers with employer-sponsored plans, they must additionally provide the name, address and EIN of the employer maintaining the plan, and whether the employer is enrolled in SHOP. The first of these reports must be filed in 2016. Even though the ACA provides several exceptions for small employers, this does not mean that Tennessee small businesses should act as if the ACA does not apply to them at all. As briefly illustrated above, the Act does provide possible advantages as well as additional requirements for smaller businesses. Being aware of how the ACA may affect your business will help to ensure that the business remains compliant and avoids possible penalties in the future.

Marianne Clendenen, Associate Kiesewetter Law Firm, PLLC


Best Practices for Responding to An EEOC Charge:

Part II

By Robin B. Taylor

Step 2:

Prepare a thorough response An effective response usually includes the following components and information:

1) Identifies your company and what it does Often, your charge response is the EEOC investigator’s first introduction to your company. Tell the investigator where your company is located and what it does to provide context to the response. Let the investigator know if the company has been misidentified by name or address.

2) Identifies the key players and their roles Good storytelling involves the clear identification of the main characters. When you identify a new person in the charge response, include relevant information about that person, including job title. For example, in an age case involving a reduction in force, identify the ages of the decision-makers and the age of any replacement employee, if applicable.

3) Addresses each charge allegation

As a continuation of last month’s article, the steps below provide you the best practices for preparing a thorough and effective response to an EEOC Charge.

Step 1:

Conduct a thorough investigation of the facts Usually, human resource professionals know about disgruntled employees and have already been involved with them in resolving issues and complaints. There are, however, those instances where you receive an EEOC charge from an employee or ex-employee, or even a job applicant, who never lodged a complaint about issues in the workplace. When this occurs you should ascertain the key players. Once you do so, you should notify them you will expect their cooperation in responding to the charge. We recommend you conduct a thorough investigation into all of the allegations in the charge. Even if you strongly believe that some or all of the charging party’s allegations lack merit, question key players about them anyway in case they know something that you do not.

 A major pitfall in the response process is neglecting to address all of the allegations. If the charge alleges race, national origin and sex discrimination, as well as retaliation, then your response should address each category as well. Failing to address each type of harm identified can raise a red flag with the investigator and damage the credibility of your response.

4) Points out inconsistencies or misrepresentations in the charging party’s story It is not uncommon for charging parties to misstate or misrepresent facts in their charges. Calling these errors to the attention of the investigator can strengthen your credibility and cast doubt on the credibility of the charging party.

5) Highlights your company’s training, policies and practices Investigators are looking for evidence that your company is conscientious and proactive in preventing and correcting discrimination, retaliation and/or harassment in the workplace. They want to know if you have EEO, harassment, discrimination and anti-retaliation policies, workplace posters, comprehensive handbooks and training programs. If you do, and they are relevant to the charging party’s claims, highlight them in the response.

6) Includes attachments of key documents

Interview the people you have identified as key players and monitor their compliance with the litigation hold. It is equally important to review the documents you receive from them to identify any discrepancies in, or consistencies with, the witnesses’ stories. You will certainly want to assess the strength of the charge at this stage and determine whether there are bad facts that could decrease your desire to litigate the case in court.

Attachments are not always necessary but can be helpful in the right circumstances. For example, if the charging party alleges sexual harassment, consider attaching a copy of your company’s sexual harassment policy, a copy of the charging party’s handbook acknowledgment, and a copy of the sexual harassment training sign-in sheet signed by the charging party.

Remember to advise all interviewees that the matter is confidential and that the company strongly prohibits retaliation.

Unforeseen circumstances can arise where you may need to amend or supplement a response. The sooner you correct a


7) Reserves your right to amend

misstatement or error in your position statement the less likely the error can be used to undermine your credibility. You should include a statement in the response that says something like, “Respondent reserves the right to supplement or amend this charge at any time.�

8) Invites the investigator to contact you for questions  Making yourself available to the investigator to answer any questions following your submission of the response fosters goodwill and leaves the impression that the employer is cooperative and forthcoming.

Step 3:

Circulate the draft response to those who provided substantive input If you solicited input into the response from anyone, permit them to review the draft response before it is finalized to check for errors or inconsistencies.

Step 4:

Decide whether you want to entertain an early resolution Even if you do not settle, mediation generally offers employers at least four distinct benefits. First, you can use it as a method to obtain free and early discovery from the charging party. Second, you can assess the level of seriousness with which the charging party approaches the matter. We have attended mediations where what the charging party really wants is an avenue to vent and an apology from someone with authority. Third, you can gain additional time with which to file your charge response, and fourth, if you are lucky, you may have a mediator who will clearly explain to the charging party that the charge has no merit. This can have a powerful effect on the charging party’s future legal actions.

Step 5:

Be prepared for the next step In our experience, roughly 50% of charging parties who receive a notice of right to sue without a cause finding do not pursue a lawsuit. By following these guidelines, if your charging party is among the other half that files a complaint, you will be well positioned to substantially assist your counsel in defending the case and reaching a successful resolution.

Robin B. Taylor, Atty Ogletree Deakins


‹ Strategies to

Rock HR in ¤‚⁄›!

Design, Deliver and Demonstrate HR Value By Pamela J. Green


“It’s unfortunate when people let themselves get like concrete - all mixed up and permanently set.” John Maxwell

ften this is the state in which I find really great HR leaders screaming for someone to help them break free from concrete walls of their careers. After a series of interesting and even challenging work experiences following college, we often don’t know exactly what we’re supposed to do next to help take our organizations to the next level – let alone our careers. So, as HR leaders we often find ourselves mixed up, permanently set and unable to design, deliver and demonstrate HR value to the organization. But there is a way to break free from your concrete jungle!

Your Feelings Will Fool You First, remember and recognize that you have something to offer. You may not “feel” you are being acknowledged for your talents, skills, abilities and contributions, but your feelings can fool you. Keep adding value, you ARE making a difference even if no one speaks up and tells you. Here are a few additional steps to help you get refocused and reenergized!

Examine Your HR Strategy If you don’t have a high level plan that aligns your HR goals with your organization’s business strategy this year, WRITE ONE. Some questions to consider as your write or refresh your HR Strategy:

 hat will be our organizational approach to the strategic management of our talent resources? W How will we address the long-term people issues we face? What are structure, quality, culture, values and commitment is needed to address future needs? How will our strategy address the general direction our organization will take to secure and develop our talent and deliver the success our employees and the organization desires? • Do we have a sound HR Model in place that demonstrates how we add value and what our position is in achieving the strategic vision of the organization?


• • • •

No Model? No Vision. Concrete. Your business model is what helps others clearly see how your HR organization will add value to the strategic direction of the business. Your key stakeholders and any HR employees you have supporting your efforts can benefit by not only knowing where you are headed, but what it actually looks like. Most of the U.S. are visual learners, whenever possible, provide them with a visual model that helps them “see” where you are headed, words alone simply aren’t enough.

The Road to a Sound Business Model Before you put pen to pad or Google “HR Business Models”, first establish or reinforce your foundation, otherwise, your beautiful model will topple over and hurt someone. There are three strategies to building a solid business model: 1) your competitive analysis, 2) your HR audit and 3) your organizational assessment. Let’s take a deeper dive into each:

Strategy ⁄: Competitive Analysis Well over 10 years ago I decided I wanted to know more about our competition from an HR business perspective because the traditional competitive analysis was comparing products and services and not things related to the people who would design, build or create those products and services. I spent a day at the Main Branch of the Columbus Public library and with the help of a friendly librarian found there was lots of current information about my business competitors. From this information and additional research I was able to determine how we might be better suited to compete for the acquisition, retention and engagement of talent in the area of benefits, compensation, employee engagement, training and development, on-boarding, social technology, etc. I used this information to inform my leaders how we compared to the competition and how we might leverage the information to improve our own strategies. It was also useful in building a business case for more resources and support for HR initiatives.

Strategy ¤: Your HR Audit This will likely be the most challenging step on my list. Only those interested in boosting their value are willing to have their programs assessed and examined for effectiveness. You really can’t know where to go unless you know your starting point. Your audit will provide you with loads of intelligence about what you do really well and what areas you need to work on. It becomes the basis for your starting point in building your model. If you believe you have a role model HR operation, I’d ask, “how do you know?” and forget anecdotal information. Employees you ask in passing will not tell you if they believe you HR program sucks. They would be too afraid of repercussions down the line. However, if you ask them in a way they can respond anonymously…you’ll get the information you need. If you have not assessed the effectiveness your HR organization and its processes then you are likely overlooking huge opportunities to add value to the organization. There are three types of audits:

that is unique, different or better?” Notice HR is not specifically called out here. This is because you want to remove restraint and take note of what THEY see from where they sit. All of your employees come from various backgrounds and experiences. They each have a piece of intellectual capital that they bring with them, and in most cases it lies dormant because no one is willing to syphon it out of them. Here you stand back and let your external information mix with their intellectual capital and watch the creativity and innovation flow. This step is not intended to be scientific and rigid. Of course you can conduct a formal organizational assessment if you wish. I figured by this step you’d need a break from formal assessments. In fact, if your audit is as efficient as I hope it will be, you will see that much of the formality of an organizational assessment has been covered in your audit. Breaking free from your concrete jungle can be achieved in three achievable steps:

1. Examine Your Competition 2. Conduct Your HR Audit 3. Analyze Your Organization Where are we going? How will we get there? And how can HR help? These are the questions you’ll be prepared to address with confidence. Here’s to a powerful and productive 2014!

Pamela J. Green, MBA, SPHR, President Power Project Institute, LLC

1. Strategic Function - how well is HR aligned with strategic organizational needs? 2. HR Behavior - how respected is the HR organization within the company (people, activities, responsibilities, reputation, etc.). 3. HR Operations - do we offer the type of HR services our employee’s need? You can do these in stages or all at one time. I often get questions about whether the audit should be conducted by someone internally or externally. Internal auditors, because of their insider information, often come with biases or preconceived ideas about the HR operation that can unduly influence the report (in good and bad ways). For this reason, I am more in favor of hiring an external consultant to audit your function. Of course you’ll want to secure a non-disclosure confidentiality statement, among other agreements, and identify someone who is reputable and willing to partner with you to make this happen. Use the findings to benchmark against your competitive analysis and as foundation research that will inform your strategic direction.

Strategy ‹: Organizational Assessment Your HR organizational assessment is the process of examining the various areas of your organization in regards to what is working well and what could explored that is unique, different, or better. Now that you’ve gathered the information about the competition and your own HR operation, you should sit back and examine what is really working well and make note of it. Next, ask yourself and your team: “when you look at this information and you assess where we are and where we are headed, what can we do


Retain Your Credibility and Retain Your Best People

Builder or…worse yet…actively applying for other positions. At that point…you have already lost them as employees because someone will love to snap up a top performer.

What Happens When You Lose Your Credibility Rarely will top performers walk into your office and tell you they are fed up with one of their co-workers and that they are even more frustrated with you for not dealing with it. Why? Because they figure you are clueless and won’t get it or you simply don’t care and won’t act anyway. Instead, one day they mentally make the decision that it is time to look for another job because they come to the conclusion that you are never going to deal with the problem co-worker because your credibility has already disappeared in their eyes.

Deal with Your Non-Performers! By Jeff Kortes


ften times we are inclined to let poor performance or inappropriate behavior slide because we simply don’t want to deal with the conflict. BAD IDEA. In the long term, this will kill your credibility and drive out your top performers. Top performers will boil as they hear co-workers talking on the phone to their

boy or girl friend, surfing the internet, showing up late regularly or any variety of performance related issues. These behaviors will infuriate top

performers who will tolerate it to a point.

Credibility Your Most Valuable Asset When you ignore behaviors like this your people are thinking one of two things…either you don’t care…or you are clueless and don’t get it. Either belief will kill your credibility. As a manager, your credibility is one of your most valuable assets. It is your credibility that enables you to deliver tough news and still keep employees motivate. It is that credibility that will get your people to go the extra mile when you need them in an emergency. Once you lose your credibility you go from being a great manager to being a mediocre manager.

Greener Pastures As your credibility is dropping, your top performers are getting fed up with the “slugs” who are not performing and begin thinking about “greener pastures.” Once they start thinking about “greener pastures” they are only one step away from posting their resume on Career34

In most cases you know what behaviors are unacceptable as do your people. If you don’t, then you need to determine what behaviors are acceptable and let your people know. Take the person surfing the internet or talking on the phone for example. In most cases it is not a one-time occurrence. Walking by their cube you will see a search engine up time and time again or overhear them talking to their boyfriend on a regular basis. Hey…you can usually tell when a call is personal or not. Don’t wait to address the issue. Bring that person in and have a candid and tactful discussion with them. You may hear all types of excuses but you need to stand firm and reassert when they are at working you expect them to be…working.

You Must Make the Tough Decisions Set your expectations for your people if you have not done so and then start to hold your people accountable. The best people will love you…the other people may not like it but they will begin to follow your guidelines. If they don’t…sit them down and tell them their behavior is unacceptable, write them up if they don’t start to comply and, ultimately, remove them from the organization if they don’t comply. It is a VERY SIMPLE process. It just takes some diligence and guts to deal with the potential conflict. But guess what…that’s your job…and your best people will expect you to do your job! If you do, they will love you for it. If you don’t…they will express their displeasure by posting their resume on CareerBuilder or start to actively look. In either case…THEY WILL LEAVE…and you will eventually be left with a department of “slugs” because you avoided making the tough decisions and let your credibility slide.

Jeff Kortes

Human Asset Management LLC



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Hrp february 2014 issue  
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