Hrp november 2013 issue

Volume 3 : Issue 11 TM

www.HRProfessionalsMagazine.com

Best Practices for Terminating Problem Employees Voluntary - Not Optional Benefits An Essential Part of Your Benefits Package The Pitfalls of Misclassification of Employees Under the ACA

Employers Become a Lever for Managing Their Own Health Costs

Curnis Upkins, Jr. VP Human Resources and Workforce Solutions Mississippi Hospital Association

Congress Revisits LGBT Anti-Discrimination Laws

Highlights from

WT SHRM Fall 2013

Employment Law Conference

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

YOU’RE REALLY SHOWING OFF YOUR BEST ASSETS TODAY.

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

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

What you don’t hear can still hurt you.

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

1715 Aaron Brenner Drive • Suite 312 • Memphis, TN 38120 • 901.526.0431 www.laborlawyers.com

ATLANTA BALTIMORE BOSTON CHARLOTTE CHICAGO CLEVELAND COLUMBIA

COLUMBUS DALLAS DENVER FORT LAUDERDALE GULFPORT HOUSTON

IRVINE KANSAS CITY LAS VEGAS LOS ANGELES LOUISVILLE MEMPHIS

NEW ENGLAND NEW JERSEY NEW ORLEANS ORLANDO PHILADELPHIA PHOENIX

PORTLAND SAN ANTONIO SAN DIEGO SAN FRANCISCO TAMPA WASHINGTON, D.C.

Bringing Human Resources & Management Expertise to You Health care expenditures are nearly

50%

greater for workers with high levels of stress.

www.HRProfessionalsMagazine.com Editor

Cynthia Y. Thompson, MBA, SPHR Publisher

The Thompson HR Firm HR Consulting and Employee Development Art Direction

Park Avenue Design Contributing Writers

David Barron Sally Barron Deborah Clubb Carol Danehower Harvey Deutschendorf Shannon Coleman Egle Matt Ginn Voss W. Graham Murray Harber Jimmy Hinton Jeff Kortes Lisa Krupicka Abtin Mehdizadegan Ricky Reynolds Blake Rogers Robin B. Taylor Donna Tosches Julieanna Walker 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 Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors.

Features 4 Note from the Editor

WEB EXCLUSIVES

5 Profile: Curnis Upkins, Jr.,VP Human Resources and Workforce Services for the Mississippi Hospital Association

401 (k) Plan Limits Issued for 2014

12 The Pitfalls of Misclassification of Employees Under the ACA

HTTP://HRPROFESSIONALSMAGAZINE.COM/ EXCLUSIVES/

14 Addressing Stress in the Workplace 15 Why Voluntary Benefits Should Be an Essential Part of Your Employee Benefits Package in the Health Care Reform World

Industry News

17 Employers Become a Lever for Managing Their Own Health Costs 33 Graduate Memphis – Free College Advice Programs Benefits Employers

6 Highlights from the 2013 AR SHRM Leadership Conference

Departments

7 Highlights from the WT SHRM Fall 2013 Employment Law Conference

11 EEOC: Religious Accommodation in the Workplace 19 NLRB: More Things Non-Union Employers Don’t Know About the NLRB 20 ER: Best Practices for Terminating Problem Employees 22 ENDA: Congress Revisits LGBT Anti-Discrimination Laws 27 EQ: 7 Ways to Deal with Difficult People

8 University of Arkansas Global Campus Business Strategy Workshop 24 Strategic Leadership for HR Executives in Jackson, MS

30 Performance Management: Holiday Party Disasters and How to Avoid Them 32 Retention: Inconsistent Expectations Drive Employees Crazy…or Worse!

34 Workplace Violence: Violence at Home – Victims at Work

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.

Next Issue

©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.

Highlights from HR Legal Summit in Memphis, TN

Compensation and Performance Management Highlights from Strategic Leadership for HR Executives in Jackson, MS Legislative Updates and HR Policy Issues www.HRProfessionalsMagazine.com

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a note from the Editor

T

he focus of our November issue is benefits. This time of year we know you are busy with your budget and planning your 2014 employee benefits programs.

With the new requirements of the Patient Protection and Affordable Care Act, we want to provide you as much information as possible to make your life easier. So you will find quite a few articles is in this issue to inform and educate you.

Congratulations to AR SHRM on their excellent Leadership Conference that was held in Russellville in October. It was an honor to be a speaker at this conference held at the Arkansas Tech University Lake Point Conference Center on beautiful Lake Dardenelle. My topic was Strategies for Developing and Marketing Your Chapter Programs. We hope you enjoy the highlights from the Conference on Page 6. As we celebrated Veteran’s Day this month, I was reminded that the AR SHRM Government Affairs Team authored Act 598 in April of this year. This legislation, The Voluntary Veterans Preference Act, allows private sector employees in Arkansas the ability to implement a veterans preference practice on a voluntary basis. It was the culmination of two years of research and planning. Our hats are off to AR SHRM! Back in Tennessee we were able to catch the Methodist EAP Seminar on Addressing Emotional Wellness in the Workplace on November 1 in Memphis. Speakers were Dr. Ben Harrington, Executive Director of the Mental Health of East Tennessee; and Donna Tosches, Director of Methodist LeBonheur Hospital Healthcare EAP. Special thanks to Methodist EAP for sponsoring our inside back cover!

We are proud to be a sponsor of the HR Legal Summit in Memphis on November 14 at the Hilton Memphis presented by the Memphis Chamber and the Memphis Bar Association. You will recognize some of the speakers who are regular contributors to HR Professionals Magazine; Louis Britt, Latosha Dexter, Lisa Krupicka, and Jeff Weintraub. It’s always fun when you can be with a group of legal experts like these!

If you are an HR professional in Mississippi, we hope you will join us on November 19 for our first quarterly Strategic Leadership for HR Executives seminar that will be held at the Old Capitol Museum in Jackson, MS. We are excited to announce that the seminar is approved for 4.00 HRCI Strategic Business Credits! You can register online at www.hrprofessionalsmagazine.com. We are happy to be partnering with the CAHRA Chapter in Jackson. Special thanks to our presenting sponsor, Regions Insurance of Ridgeland! Other sponsors are Ultimate Software, Ogletree Deakins of Ridgeland, Data Facts, and Waddell & Reed Financial Advisors.

Mark your calendars for December 10 from 4:30 PM to 6:30 PM when we will partner with the University of Arkansas Global Campus to bring you an online workshop, “How to Be a Human Resource Strategic Business Partner: an Overview of Strategic HR Leadership.” The workshop is approved by HRCI for 1.5 strategic business credits. You can register online at https://secure.sceao. uark.edu/EventCalendar/default.aspx.

If you are currently in the process of recertification, we hope you will find plenty of educational opportunities during November and December to meet your needs.

Happy Thanksgiving to all!

Ben Harrington and Donna Tosches

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

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

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Curnis UPKINS, JR on the cover

CURNIS UPKINS, JR

Vice President of Human Resources and Workforce Services Mississippi Hospital Association

Curnis is employed by the Mississippi Hospital Association as Vice President of Human Resources and Workforce Services. He rejoined MHA in his current position in February 2011. His previous experience includes five years as Director of Human Resources for St. Dominic – Jackson Memorial Hospital; ten years with MHA as VP of the Health Careers Center and Director of Unemployment Insurance Programs; and 18 years with Mississippi Department of Employment Security (MDES). His last ten years with this agency were served as an Unemployment Insurance Administrative Law Judge.

Curnis has worked to enhance Mississippi’s health care workforce by creating the MHA Health Careers Center and website, developing the Mississippi Health Careers Guide Book, presenting to students (from elementary through college) and re-careering professionals on the value of choosing a health care career, and serving as a professional resource to academia and health care practitioners.

He graduated from Jackson State University in 1979 with a Bachelor of Science Degree in Communications. His leadership education includes completing Mississippi Economic Council’s Leadership Mississippi Program, State Personnel Board’s Leadership and Supervisory Training Program, Mississippi Judiciary College Administrative Law Program, and University of Southern Mississippi’s Training and Development Certificate Program. He has conducted staff development leadership training programs for hospitals, community service organizations, and for the Mississippi National Guard.

He has more than 20 years experience in Human Resources administration, leadership training, and conflict resolution.

Curnis maintains membership in the Society for Human Resources Management (SHRM), American Society for Healthcare Human Resources Administration (ASHHRA), Capital Area Human Resources Association (CAHRA), MHA Society for Human Resources Administration; MS Chapter of the Black Human Resource Network (BHRN), Office of Nursing Workforce Development (ONW) Advisory Board, Allied Hospital Association Unemployment Compensation Group (AHAUCG) and UWC Strategic Services on Unemployment & Workers’ Compensation. Curnis was the 2004 MHA Human Resource Society Distinguished Service Award recipient. He is also a certified Senior Professional in Human Resources (SPHR.) He is active in his church and community serving as Co-chairman of the Master’s Men Ministry at Pearl Street AME Church, Habitat for Humanity volunteer, board member for the Hugh O’Brian Youth Leadership Foundation (HOBY), and former board member for Jackson Public School Education Trust Fund. He was selected as Jackson Public School Parent of the Year for the 1999-2000 school year.

He and his wife Melodie have been married for 31 years. They have a daughter and two sons; Shana, Curnis III & Keeyon.  www.HRProfessionalsMagazine.com

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AR SHRM Leadership Conference in Russellville, AR On October 24-25 (L - R) Michele Burns, AR SHRM State Council Director –Elect, recognized Kelly DeStefano, AR SHRM State Council Director, for her service to the State Council.

The beautiful dining room at the Arkansas Tech Lake Point Conference Center in Russellville, AR, overlooked Lake Dardenelle.

Tara Mauk Arthur gave a virtual tour of the AR SHRM website and spoke on Using Social Media to Recruit and Engage Members.

Sherry Johnson, PHR, SHRM Field Representative, provided a virtual tour of the Volunteer Leaders Resource Center and spoke on The SHRM Affiliate Program for Excellence. Cynthia Y. Thompson, MBA, SPHR, spoke on Strategies for Developing and Marketing High Quality Chapter Programs.

On Thursday evening there was a Mystery Dinner Party and Costume event.

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

• • • •

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

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

MEMBER SIPC

Jerry Milligan, MBA 6060 Poplar Avenue Memphis, TN 38119 (901) 685-2700 www.jerrymilligan.wrfa.com jmilligan@wradvisors.com

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Highlights from WT SHRM Fall 2013 Employment Law Conference The WT SHRM Fall 2013 Employment Law Conference was held November 7 at the Carl Grant Events Center at Union University in Jackson, TN. The conference is held in conjunction with Rainey, Kizer, Reviere and Bell with offices in Jackson and Memphis. The topics discussed were: Handling a Sexual Harassment Complaint, ADA and Non-Physical Disabilities, Public Employer Issues, Workers’ Compensation, HR Legal Updates, and Workplace Trends.

WT SHRM Board of Directors (L-R) John Carbonell, Past President; Amy West, President; Lindsey Pullen, VP/President Elect; Jane Mansfield, Secretary; Donna Dickinson, Treasurer; Rhonda Livingston, At-Large Member/Certification Chair; Jennifer Howell, VP for Membership.

Rainey, Kizer, Reviere, and Bell attorneys. (L-R) Geoffrey Lindley, Robert Binkley, Jr., Deana Seymour, John Burleson, James Thompson, Nathan Shelby, Latosha Dexter, Michael Mansfield, Brandon Reedy

Latosha Dexter and Nathan Shelby enacted a harassment complaint from beginning to end, and explored best practices for handling investigations.

Shelley Baur spoke on Integrity Based Commnication – A 6 Part Behavioral Model for Human Communications.

Over a hundred WT SHRM members and HR professinals attended the Conference.

www.HRProfessionalsMagazine.com

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and How to Be a Human Resource Strategic Business Partner: an Overview of Strategic HR Leadership Tuesday, December 10, 2013 4:30 - 6 p.m. CDT Face-to-Face at Global Campus in Rogers, 3300 Market Street, Suite 402 and Online via Blackboard Collaborate

$49 Register online at http://bit.ly/HTz6pe University of Arkansas Alumni Discount: 10 percent ________________________________________________________________

Position yourself as a strategic business partner in your organization by increasing your business acumen.

Focusing on the knowledge, skills and abilities C-suite executives require in true business partners, this class will identify the financial tools you will need to succeed in the role of strategic advisor to the management team. You also will be introduced to data analysis concepts that will enable you to present information to management in meaningful ways.

As a result of this program, participants will be able to:

• • • •

Identify the business skills needed to be an effective human resource business partner Recognize the most common budgeting methods used in business today Understand the tools used to measure your organization’s financial health Create effective business cases for your HR initiatives

About the Instructor Cynthia Y. Thompson is principal and founder of The Thompson HR Firm, LLC, a human resources consulting company in Memphis, Tenn.

She is a senior human resources executive with more than 20 years of human resources experience concentrated in publicly traded companies. She is also the Publisher and Editor of HR Professionals Magazine, an HR trade publication distributed to HR professionals in Tennessee, Mississippi and Arkansas. Cynthia has a master’s in business administration and is certified as a Senior Professional in Human Resources. She is a sought-after speaker on HR Strategic Leadership. Cynthia has served as an adjunct professor at Christian Brothers University in Memphis teaching Human Resource Management and the Principles of Management. She also taught Business Communications in the MBA program at Belhaven College in Memphis. She is currently teaching an HR certification exam prep course at Bethel University in Memphis. ________________________________________________________________

More Information

Please contact Judith Tavano, Global Campus professional development program director, at jtavano@uark.edu.

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Pre-Approved

This program has been approved for 1.5 Business Management and Strategy recertification credit hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute.

EEOC v. ABERCROMBIE & FITCH –

Religious Accommodation in the Workplace Can you tell your employees “What Not to Wear?”

By Sally F. Barron

O

n October 1, 2013, the Tenth Circuit Court of Appeals ruled in favor of Abercrombie & Fitch in a lawsuit claiming religious discrimination based on a failure to accommodate the religious practices of an applicant.

The Look Abercrombie & Fitch requires store employees to comply with its “Look Policy” which “exemplifies a classic East Coast collegiate style of clothing.” The policy prohibits employees from wearing black clothing and from wearing caps, although it does not define the term “cap.” Sales-floor employees are referred to as “Models.”

Samantha Elauf applied for work as a “Model” in an Abercrombie store in Tulsa, Oklahoma. She was familiar with Abercrombie’s clothing and knew that Models were required to wear similar outfits. Prior to her interview for the position, she asked a friend who worked at the store if she would be permitted to wear her hijab (headscarf). Elauf’s friend asked an assistant manager at the store, Mr. McJilton, about the matter, and McJilton told the friend that he didn’t think it would be a problem, as long as Elauf didn’t wear a black hijab.

Elauf met with the store manager, Ms. Cooke, to interview for the Model position. Cooke had seen Elauf in the store before and knew she wore a hijab, assuming it was for religious reasons. Elauf wore a black hijab during the interview, but the issue of whether or not she could wear one while working was not discussed. The topic of the hijab never came up during the conversation. Cooke gave Elauf a description of the dress requirements and, at the end of the interview, asked Elauf if she had any questions. Elauf did not ask any.

The Process Notably, as prudent employers do, Abercrombie instructs its store mangers not to assume facts about applicants and not to ask applicants about their religion. This practice comports with EEOC guidance (found in its Compliance Manual) warning that such questions could raise an inference of discrimination based on religion.

After a candidate is interviewed for a position, Abercrombie requires the interviewer to assess the candidate according to a point scale, taking into consideration the candidate’s appearance as one of the factors. Cooke asked her district manager, Mr. Johnson, for approval because she was unsure as to whether or not it would be a problem for Elauf to wear her hijab if Abercrombie hired her. Johnson said that Elauf should not be hired because she wore a headscarf (hijab), a clothing item inconsistent with the Look Policy. Johnson denied being told by anyone that Elauf was Muslim and that she wore her hijab for religious reasons.

Elauf did not get the job because she wore a hijab. EEOC took up her cause and filed suit against Abercrombie in 2009, alleging that

Abercrombie illegally refused to hire Elauf because she wore a hijab and that Abercrombie failed to accommodate her religious beliefs by making an exception to the Look Policy.1

Lower Court Ruling Turned on its Head In general, to establish a claim of religious discrimination based on a failure to accommodate, an employee must show that (1) she has a bona fide religious belief that conflicts with a requirement of employment; (2) she informed her employer of this belief; and (3) she was fired/not hired for failing to comply with the conflicting requirement. An employer can defend such a claim by showing either that (1) it offered a reasonable accommodation, or (2) it was not able reasonably to accommodate the employee’s religious needs without undue hardship to the employer.

In the initial court proceedings, the District Court had ruled in favor of the EEOC, finding that Abercrombie was “informed” of the religious belief because it had enough information to make it aware of a conflict between Elauf’s religious practices and the requirements of the Model job.

The Court of Appeals disagreed. The Court of Appeals found that Abercrombie had not been informed of Elauf’s religious belief in a manner sufficient to trigger its duty to offer an accommodation, since Elauf never told Abercrombie, prior to its hiring decision, that she wore the hijab for religious reasons and that she needed an accommodation for that practice. The Court found that fairness to the employer required that the burden be put on the applicant or employee to inform the employer both of the conflicting religious practice and of the need for an accommodation. To hold otherwise, it reasoned, would encourage employers to speculate and guess as to whether a particular practice was religious in nature and whether or not the employee needed an accommodation.

True Religion Title VII protects employees from discrimination based on their religious beliefs – it does not provide protection for other beliefs, though strongly held, based on social philosophies or personal preferences. The Court explained that whether or not a practice is religious in nature depends upon the particular beliefs of the individual. For example, some women wear the hijab as a form of cultural expression, not necessarily as a religious practice. For this reason, the courts encourage employers to engage in the “interactive, religion-accommodation process” with each employee on an individual basis rather than reaching conclusions based on assumptions about a particular religious group.

What Lies Ahead Employees may seek religious accommodations based on any number of religious practices. The Abercrombie decision serves as a reminder that employers need to be attentive to the particular beliefs and practices of each individual employee or applicant and not make assumptions based on general knowledge of religious groups. We all know what happens when you assume…

1 Recently, Abercrombie settled two similar lawsuits and agreed to update its Look Policy to make it clear that accommodations can now be made for employees with “sincerely held religious beliefs.”

Sally F. Barron Associate Attorney Fisher & Phillips LLP sbarron@laborlawyers.com www.laborlawyers.com www.HRProfessionalsMagazine.com

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The Pitfalls of

Misclassification

As

most of us are aware,under the“employer shared responsibility” provisions (also referred to as the “employer mandate” provisions) of the Patient Protection and Affordable Care Act (the “ACA”), an employer is classified as either “small” or “large” depending on the number of full-time equivalent employees it has. A “small” employer is an employer with less than fifty (50) FTEs and a “large” employer is an employer with fifty (50) or more FTEs.

Why does it matter if my business is classified as a “small” employer or “large” employer?

Enforceable January 1, 2015, a large employer that fails to offer “minimum essential” health coverage to at least ninety-five percent (95%) of its full-time employees (and their children) will pay a penalty if any full-time employee receives a federal subsidy to purchase insurance through a health insurance exchange (also referred to as the “Marketplace”). This “no-coverage” penalty under §4980H(a) will be $2,000 per year multiplied by the number of FTEs in excess of thirty (30). Likewise, enforceable January 1, 2015, a large employer that offers “minimum essential” coverage, but fails to provide “minimum value” or fails to provide coverage deemed “affordable” will pay a penalty under §4980H(b) that is the lesser of $2,000 per year multiplied by the number of full-time employees (minus 30) or $3,000 multiplied by the number of full-time employees who receive a premium tax credit to purchase coverage through a health insurance exchange. (The tax credit is generally available to those employees who cannot buy “affordable” or “minimum value” coverage and whose family income is below 400% of the Federal Poverty Level.) The penalties under §4980H are only applicable to large employers.

Can’t I Just Reclassify My Employees as Independent Contractors to Get Below the “50 FTE” Threshold?

of Employees as

Independent Contractors Under the ACA

By Shannon Coleman Egle

Employers that barely fall into the large employer classification have been searching for ways to reduce the number of FTEs so that the §4980H penalties will not apply. One question that comes up repeatedly is whether the employer may reclassify some of its employees as independent contractors in order to reduce its number of FTEs, and, thus, qualify as a small employer to whom the §4980H penalties do not apply. While this may seem like a good idea on the surface, unfortunately, it is fraught with peril. Employers cannot simply deem a worker an employee or an independent contractor by virtue of titling a worker one way or the other. Under the ACA, the term “employee” has the same meaning given such term under §3(6) of the Employee Retirement Income Security Act of 1974 (“ERISA”), which says that an employee is “any individual employed by an employer.”

Because the statutory definition is not very helpful, in Nationwide v. Darden, the U.S. Supreme Court adopted the following federal common law definition of

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employee for purposes of ERISA (and, therefore, now for purposes of the employer mandate provisions of the ACA): In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

There is no black and white answer as to whether a worker is an employee or an independent contractor. It is a balancing test, and no one factor is decisive. In many situations, it would be difficult to change the characteristics of a worker’s relationship with your business in such a way as to ensure that a judge (or jury) would find a particular worker to be an independent contractor rather than an employee.

Conclusion If your business is “borderline” between small and large employer for purposes of the employer mandate provisions of the ACA, you must use caution when classifying workers as independent contractors in order to reduce your number of FTEs. If your classifications are erroneous and you make business decisions regarding healthcare coverage based on the erroneous classifications, you may find yourself in a situation where a penalty would apply. It is far better to err on the side of caution and plan as if any questionable workers are employees instead of independent contractors.

While this article discusses general legal issues of interest, it is not designed to give any specific legal advice pertaining to any specific circumstances. Accordingly, it is important that professional legal advice be obtained if you are in doubt as to your responsibilities under the ACA.

Shannon Coleman Egle, Partner Kramer Rayson LLP segle@kramer-rayson.com. www.kramer-rayson.com

Human Resources Professionals often need prompt and accurate legal advice.

Kramer Rayson attorneys have been advising Tennessee employers, both large and small, for over 60 years.

We listen to you and work hard to help you achieve your employment goals. You are not just another client to us. www.Kramer-Rayson.com

Over 60 Years of Service

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How to Impact Positive Change Recognition of the Problem The best place to start to develop a strategy to effect positive change on stress in the workplace is to recognize that there is a problem.

Addressing

Stress

in the Workplace

By Donna Tosches

Americans are stressed at work. An often cited 2007 nationwide poll by the American Psychological Association shows that three quarters of Americans list work as a significant source of stress (http://www.apa. org/news/press/releases/2007/10/stress.aspx). More than half of those surveyed point out that they have suffered a decrease in their work productivity because of stress. The workplace has measures in place to relieve employees of stress associated with their job, such as vacation days.

Yet – most Americans don’t use all of their allotted time. According to a Harris Interactive poll, about 57% of working Americans had unused vacation time at the end of 2011, and most of them left an average of 11 days on the table - or nearly 70 percent of their allotted paid time off.

There are numerous reasons why people aren’t taking their vacation time, but the one most cited is that there is too much work to do and it is even more stressful to “catch up” when they come back. But what is happening to the workplace that is running on stressful energy?

Financial Impact of Stress Job stress is costing US businesses an estimated $300 billion per year through absenteeism, diminished productivity, employee turnover and direct medical, legal and insurance fees.

Health care expenditures are nearly 50% greater for workers who report high levels of stress.

- Journal of Occupational and Environmental Medicine

Workers who must take time off work because of stress, anxiety, or a related disorder will be off the job for about 20 days.

- Bureau of Labor Statistics

Mental disease, including stress-related disorders, will be the second leading cause of disabilities by the year 2020.

- The World Health Organization (WHO) Global Burden of Disease Survey

Stress is the cause of 80 to 85 percent of all human illness and disease. Each week, more than 90 million Americans suffer some kind of stress-related symptom for which they take medication.

- The American Medical Association

The Bureau of National Affairs reports that 40% of job turnover is due to stress. How much money does it cost an organization to recruit and train new employees? If 40% of job turnover is related to stress, it seems that a more effective use of funds and leadership time would be to focus on addressing stress rather than recruit and train new employees.

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According to the Center for Disease Control, short-lived or infrequent episodes of stress pose little risk. But when stressful situations go unresolved, the body is kept in a constant state of activation, which increases the rate of wear and tear to biological systems. The ability of the body to repair and defend itself against the wear and tear diminishes. As a result, the risk of injury or disease increases.

In the past 20 years, many studies have looked at the relationship between job stress and a variety of ailments. Mood and sleep disturbances, upset stomach and headache, and disturbed relationships with family and friends are examples of stress-related problems are commonly seen in these studies. These early signs of job stress can be easy to recognize such as headaches, sleep disturbances, difficulty concentrating, short temper, upset stomach, job dissatisfaction and low morale.

Discussion with leadership about these signs and symptoms in their team; EAP utilization data; Human Resource Professional discussion and health insurance data can help to identify if there is stress in the workplace.

Stress Management Programs Stress management programs teach workers about the nature and sources of stress, the effects of stress on health, and personal skills to reduce stress-for example, time management or relaxation exercises. The use of Employee Assistance Programs reinforces these stress management programs. Studies have shown that stress management training may rapidly reduce stress symptoms such as anxiety and sleep disturbances; it also has the advantage of being inexpensive and easy to implement.

Increasing the awareness of symptoms, long term impact of stress and ways to cope through various workplace messages is an important aspect of overall stress management. When leadership promotes the importance of self-care and use of available work and community resources, employees are more likely to listen.

Organizational Change Comprehensive organizational change means Identifying stressful aspects of work such as excessive workload and designing strategies to reduce these stressors. The advantage of this approach is that it deals directly with the root causes of stress at work. However, there can be discomfort about this approach because it requires a deeper analysis and possible change in processes.

The best overall approach to reduce stress in the workplace combines identification, stress management programs and organizational change.

Input from employees in the identification and design implementation is always recommended. The best ideas and areas of opportunity come from the people most impacted. The source of stress is quickly identified plus the employees feel empowered to become part of the solution.

Stress is a part of life and a part of work. Learning to mitigate stress in the work place and increase resilience of the organization and the employees will lead to a healthier workplace.

Donna Tosches, LCSW, CEAP Director of the Methodist LeBonheur Healthcare Employee Assistance Program donna.tosches@mlh.org www.methodisteapcanhelp.org

Voluntary — not ‘‘optional’’ Why voluntary benefits should be an essential part of your employee benefits package in the health care reform world

By Blake Rogers, Jimmy Hinton and Ricky Reynolds

If

you’re like many human resources professionals, benefits managers and business owners we talk with lately, you’ve been obsessed with major medical insurance and the Affordable Care Act.

Small businesses with fewer than 50 employees might be deciding whether or not to continue providing health insurance. Larger companies could be rethinking a rich benefits package in anticipation of the excise tax of 2018. For both, the ACA is challenging the traditional employer role as a benefits provider. And there’s no denying medical insurance is the cornerstone of a good benefits package, so that intense focus is understandable.

But don’t make the too-common mistake of stopping there. Your benefits package is about a lot more than major medical insurance — and if it doesn’t include voluntary benefits, you’re missing the bigger benefits picture.

The fact is the vast majority of health benefits are provided by employers — and most of them plan to keep offering core health benefits. A 2013 survey by the Kaiser Family Foundation shows 91 percent of employers with 50 or more workers offer health insurance, and virtually all firms — 99 percent — with at least 200 employees do.1 Those numbers have stayed constant or risen slightly in the past year, even as ACA implementation has become a reality.

So how can you create a more effective, competitive benefits program?

Two strategies to consider are redesigning your benefits plan using voluntary benefits and implementing a comprehensive, personalized communication plan. Both can be done without cost and without administrative hassle — with the right benefits partner.

Redesigning your benefits plan using voluntary benefits Large or small, employers continue to struggle with rising health care and health insurance costs. One highly effective cost-control strategy is offering a higher-deductible medical insurance plan partnered with voluntary benefits.

This type of benefits plan redesign keeps premiums lower and more affordable for both employers and employees. Disability, accident, hospital indemnity and cancer or critical illness coverage offered as voluntary benefits help workers minimize their financial exposure to out-of-pocket expenses. Along with supplemental life insurance, they also expand the company’s benefits package with more choices, allowing employees to customize their coverage.

Interest in voluntary benefits is expected to soar in the next few years.

Nearly half of employers in a recent Towers Watson survey say they’ll see voluntary benefits as important in 2018, the final year of the ACA implementation when the excise tax comes into play.2

Implementing a comprehensive, personalized communication plan Some employers are concerned introducing a significant benefits plan change — in addition to the extra confusion created by health care reform — could be unpopular if employees don’t understand it. And

the burden of evaluating and selecting their own benefits can seem overwhelming to employees.

But when employees understand the reasons for change and what their own needs and options are, they’re more likely to engage and participate in their benefits program. And there’s a strong correlation between benefits knowledge and employee satisfaction in the workplace: In one study, more than four out of five workers who rated their benefits education highly also rated their benefits packages positively and said their workplace was an excellent or very good place to work.3 And benefits communication doesn’t have to cost you a dime. Highquality benefits providers offer a variety of communication options that can be customized to your business’ needs.

Start your list of must-haves with individual benefits counseling sessions. In a 2013 Eastbridge Consulting Group study, 65 percent of employees said a one-to-one meeting with a benefits representative is the most helpful communication method to introduce them to voluntary benefits available at work.4 That’s reinforced by the results of Colonial Life & Accident Insurance Company surveys with more than 15,000 employees who participated in personal benefits counseling sessions: 98 percent said the individual sessions were important, and 97 percent of them say the sessions improved or significantly improved understanding of their benefits.5

Voluntary benefits are essential If you’ve been thinking of voluntary benefits and the communication services a good voluntary provider can offer as “extras” or “nice to haves,” it’s time to expand your point of view. You can offer a highly competitive benefits package that attracts and keeps the kind of talent you need to succeed by making voluntary benefits an essential part of your package.

1 “2013 Employer Health Benefits Survey,” Kaiser Family Foundation, September 2013.

2 “Voluntary Benefits and Services Survey,” Towers Watson, July 2013.

3 Unum employee education and satisfaction survey, 2011.

4 “Worksite MarketVisionTM – The Employee Viewpoint,” Eastbridge Consulting Group, September 2013.

5 Colonial Life post-enrollment survey, January 2013.

Blake Rogers Tennessee territory sales manager, Colonial Life & Accident Insurance Company tblakerogers@coloniallife.com www.coloniallife.com

Jimmy Hinton Mississippi territory sales manager, Colonial Life & Accident Insurance Company jhhinton@coloniallife.com www.coloniallife.com

Ricky Reynolds Arkansas/Oklahoma territory sales manager, Colonial Life & Accident Insurance Company rcreynolds@coloniallife.com www.coloniallife.com www.HRProfessionalsMagazine.com

15

Employers become a

Lever for managing their own health costs MSBGH

By Murray L. Harber and Matt Ginn

Employers have been one of the primary payers for health care in our country for quite some time. Employers have consistently seen the cost of providing health-related insurance for employees rise at alarming rates for many years as they rely on their brokers and consultants to help them manage these increases. The old answers were to shift costs to their employees by increasing deductibles, premiums and co-payments. While these solutions address the symptoms, they do not get to the root causes of the rising costs associated with ill health and their systems of care. A need was discovered and the Mississippi Business Group on Health was formed in 2013 with an initial board of directors of eight people representing companies from several business sectors.

Southern Farm Bureau Life Insurance Company in Jackson, Mississippi, considered an industry leader, has taken the next step approach to looking at the root causes and have been taking more action by developing value-based benefit plan approaches, offering proven health and wellness programs, healthy work environments, and collaborating with high performing clinical partners to provide onsite clinical services and condition-based patient centered medical homes for its employees and their dependents. Billy Sims, Vice President Human Resources at Southern Farm Bureau Life says, “Southern Farm Bureau Life (SFBLI) is interested in the MSBGH as a result of the challenges brought by managing both the rising health insurance costs and the health of our employees. We have a lack of transparency combined with the fact we, as employers, pay much of the costs for health care but it seems we lack a strong, unified voice in the changes that need to be made in health care to make a positive difference.”

Individual employers are trying to solve the health insurance cost issues by themselves with the help of their brokers and consultants. Because of this, they are learning different aspects of employee health and wellness that reach beyond just shifting cost to the employees.

Several of the MSBGH founding member companies have begun to implement effective cost moderating strategies. Other companies wanting to do more have frequently asked to visit and learn what is working for these companies. The other founding members include Trustmark Bank, Levi Strauss & Co., Viking Range, Pfizer, Electric Power Associations of Mississippi, and the Mississippi State Department of Health along in addition to SFBLI. “We were interested in a Health Insurance Coalition that brings other employers to the table for information and idea sharing and concentrates on solutions to employer’s health insurance plan issues. We are glad there is finally a resource for Mississippi employers to rely on for help with administering their health insurance plans,” said Ty Harrell, Director of Insurance and Human Resources at Electrical Power Associations of Mississippi.

The MSBGH grew out of the Mississippi Worksite Wellness Group which held quarterly meetings, partnered in an annual Health Care Reform Summit and also partnered to offer an Awards of Excellence Program recognizing employers for their employee health management initiatives. In October, the 4th Annual Health Care Reform Summit was held at Mississippi College with over 230 participants. Events such as these are part of what the group will offer to its member organizations. As the coalition was forming, the board of directors thought it was an important step to go through a strategic planning process and establish the MSBGH’s main pillars, which are to: • P roactively engage members and the employer community with learning opportunities and resources • Promote and encourage best practices and evidence based strategies while fostering innovation • Encourage value based benefit design and effective employer health management solutions • Foster data transparency and data analytics for health plans and providers Jim Brown, Vice President and Benefits Manager at Trustmark Bank sums it up when he says, “As employers continue to search for reliable and relevant information and data to make intelligent, well-informed business decisions regarding health insurance, I feel it is through collaboration with local/regional employers and groups like the Mississippi Business Group on Health that will provide employers with the appropriate information that will allow employers to succeed in making good decisions, for both the company and their employees. I also feel that this effort will provide employers thoughtful insight as to what the marketplace can expect from the ever-changing insurance market, while pushing the insurance providers to keep looking for ways to improve their products.”

The Mississippi Business Group on Health is the state’s most powerful voice for employers to advocate for health and health care in the state of Mississippi. The MSBGH will lead and foster a community of Mississippi employers that will seek to continuously improve the quality and cost effectiveness of health and health care through shared solutions.

They partner with business groups located in adjacent states and participate in a national network of employer coalitions.

For more information, visit www.msbgh.org.

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

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

17

More Things Non-Union Employers Don’t Know About the NLRB

Despite employer concerns that failure to keep investigations confidential may create exposure for investigations conducted pursuant to Title VII, the NLRB has not backed down. In a recent Advice Memorandum, the agency stated that employers must be able to justify the need for confidentiality on a case-by-case basis “in the context of a particular investigation that presents specific facts giving rise to a legitimate business justification.”

By Lisa A. Krupicka

Despite the recent United States Supreme Court ruling in AT&T Mobility v. Concepcion that arbitration clauses containing class action waivers are enforceable, the NLRB continues to support its holding in D.R. Horton that such waivers violate the NLRA because they interfere with employees’ rights to engage in collective activity. This decision is on appeal to the Fifth Circuit and has already been rejected by the Second, Eighth and Ninth Circuits, but an administrative law judge recently felt compelled to uphold it in a decision invalidating GameStop Corporation’s arbitration program, reasoning that the decision remains controlling Board precedent.

E

vents are moving mighty fast at the National Labor Relations Board (“NLRB”), which had been, prior to the Obama Administration, a fairly low-key federal agency with little public name recognition. Since the recess appointment in June 2010 of Acting General Counsel Lafe Solomon, however, the NLRB has been anything but low-key, and we can expect that trend to continue with the Senate confirmation of Richard F. Griffin as General Counsel and the confirmation of President Obama’s nominees for all five positions on the Board. Griffin, former general counsel of the International Union of Operating Engineers, also served a brief term as a recess appointee to the NLRB before such appointments were ruled invalid by the D.C., Third and Fourth Circuits.

Griffin shows every intention of continuing to assert the application of the National Labor Relations Act (“NLRA”) in non-union settings, as the agency had done under Acting General Counsel Solomon. Here are some of the areas in which employers can expect to see continuing efforts by the agency to broadly interpret the NLRA’s coverage in both union and non-union settings:

Social Media Policies The NLRB has shown a willingness to go over employers’ social media policies line-by-line and invalidate those it deems to chill workers’ rights to engage in protected concerted activity under Section 7 of the NLRA. Policy provisions that no longer pass muster include: • General prohibitions on disparaging, ridiculing or defaming the company on social media • B lanket prohibitions against displaying photos of the workplace or using the company logo on social media • B road bans on criticizing company management, even by name and/or by using intemperate language • B lanket prohibitions on the disclosure of “confidential” information on social media unless sufficient examples are given to demonstrate that information about working conditions, pay, benefits, supervisors and co-workers are not covered by the policy • P rohibition of “inappropriate” conduct or language on social media, as that term is thought to be too vague for employees to know whether it includes protected activity • R equiring employees to include a disclaimer on every social media post about the company stating that the employee is not speaking for the company, as this requirement is thought to unduly burden the exercise of Section 7 rights

Workplace Investigations When conducting a workplace investigation, an HR professional always advises the witnesses whom he or she interviews not to discuss what they have said in the interview with anyone else.

This protects both the integrity of the investigation (employees will not get confused about what they personally know and what someone told them) and the complainant, especially in a sexual harassment investigation (a complainant is more likely to feel further harassed or retaliated against if everyone in the workplace is talking about her complaint). Hold on there, says the NLRB, ruling in Banner Estrella Medical Center that employers cannot have a blanket rule that anyone involved in any internal workplace investigation must keep what they know confidential because any generalized concern about the integrity of the investigation is outweighed by the potential chilling effect on Section 7 rights.

Arbitration Policies with Class Action Waivers

At-Will Employment Disclaimers The NLRB’s General Counsel has brought several claims against employers whose handbooks contain at-will disclaimers, arguing that the disclaimers at issue are written in such a way as to chill Section 7 rights because they suggest the at-will rule can never be changed even though a union could be voted in and employees’ at-will status changed in the collective bargaining agreement.

None of these cases has yet reached the Board for decision, so the outcome remains to be seen.

What the Future Holds Commentators expect General Counsel Griffin to pursue former Acting General Counsel Solomon’s pro-labor agenda even more aggressively, given that he holds a confirmed position and that he will be bringing cases before a fully-confirmed five-member board, the first in more than a decade. Look for cases challenging established Board precedent, including the 2007 RegisterGuard decision upholding a company policy barring use of the company email system for solicitations as long as the prohibition applied equally to non-union solicitations. Employers may also see an attempt to reinstate the so-called Weingarten rule requiring employers to permit employees from a non-unionized work force to have a fellow employee present during any investigation that could lead to discipline of the employee. Other potential targets for challenge include rules restricting union access to employer property and rules barring union access to information from employers.

Lisa A. Krupicka, Attorney Burch Porter & Johnson PLLC lkrupicka@bpjlaw.com www.bpjlaw.com www.HRProfessionalsMagazine.com

19

Best

Practices

honest record of employee performance made close in time to the events.

Rapidly creating a five-inch pile of paper in a rush to rid yourself of a bad apple does not help.

All too often managers are unduly reluctant to confront inadequate or marginal performance. By far the biggest mistake managers make is to inflate performance reviews. The path of least resistance is avoidance, and to minimize hard feelings in the office, many managers give “meets expectations” scores to under-achievers. With no other disciplinary documentation on file to break the chain of positive performance reviews, you might not be able to demonstrate cause in a wrongful termination suit. Honesty is the best policy.

Personnel files can be of enormous value in defending against employee claims. It is, therefore, important that personnel files accurately reflect employee performance. They can be a sword as well as a shield. Supervisors should address employee performance on a daily basis, as needed.

D. Investigation of Misconduct

for Terminating Problem Employees

By Robin B. Taylor

A. Introduction The best defense is a good offense, right? Right. Implementing the right procedures to cut down on frivolous employment discrimination lawsuits starts long before the termination date. The mistakes most often made by employers in the termination process are made early in employment.

Routinely, employers fail to document performance issues during employment and fail to act decisively when problems with employees arise early on. Further, employers also err when providing the employee with a reason for the termination that later proves to be false. It is critical that management and Human Resources professionals within a company have a solid understanding of the proper ways to document substandard performance, notify an employee of their termination, and the legitimate reasons for doing so.

B. Manage the Problem Employee From the Start Much of the litigation today’s employer faces involves the proverbial “problem” or “marginal” employee. So-called marginal employees show their more difficult sides early in their employment. The sooner these traits are identified and the employee is dismissed, the better for all concerned.

The first line of defense is to establish a “probationary” or “initial evaluation” period of 30 to 90 days and apply it ruthlessly.

C. Honesty is the Best Policy: Documentation The second line of defense against the marginal performance is accurate and dependable documentation. The point of the exercise is to make an 20

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Discharge decisions, which typically are difficult to defend, involve one or more of the following avoidable problems. First, the decision was made on the spot either as a knee jerk reaction to an incident or the manifestation of an unbridled ego. Second, the decision was made with no meaningful investigation into the surrounding facts or management’s reaction to the same or analogous problems in the past. Third, no effort was made to record or otherwise document what was said, by whom it was said, and whether anyone else was present. In sum: INVESTIGATE, DOCUMENT, and DISCIPLINE appropriately. Do not rush to act. Make the decision after a meaningful investigation and consideration of how other employees were treated in similar circumstances.

Getting the employee’s “side of the story” at the time of the incident, rather than after he or she has been coached by a lawyer, nearly always pays off at a later point. Rarely, if ever, will an employee admit misconduct likely to lead to termination. Where, however, you can demonstrate a good faith investigation, leading to a reasonable belief concerning culpability, disciplinary action can be taken.

E. Making the Termination Decision Before making the termination decision, all of the employee’s supervisors and managers should convene to assess whether all agree termination is the proper course of action. The best practice would be to consult the company’s legal counsel before any decision is made. The decision makers also must confirm there is credible documentary and testimonial evidence to support the termination decision (i.e., performance or disciplinary warnings and supervisors or other employees willing to testify to the employee’s shortcomings).

The next inquiry is an analysis of whether the termination is consistent with how other employees at the company have been treated under similar circumstances. If other employees who have made similar mistakes have not been terminated, the employer should revisit other disciplinary options to avoid allegations by this employee of discrimination.

The next assessment is whether there are provisions in company policies that might protect the employee from being terminated. If there is a progressive discipline policy in place, it must be reviewed and complied with and any deviation from a progressive discipline policy should be justified. The employer also must assess whether the termination could violate any local ordinance, state or federal statute prohibiting discharge under such circumstances (i.e., if the employee is absent due to required

military duty). Further, consider the timing of the termination (i.e., whether criticism of the employee’s conduct or performance started only after the employee made a protected complaint, such as a complaint about harassment or discriminatory, unfair, unsafe, or other unlawful conditions at work). If this is the case, there must be extensive documentation to support the reason for the proximity in time, and these situations require the consulting of an attorney before any action is taken.

meeting should be scheduled as soon as possible after the termination decision has been made so that the issues remain fresh in the memories of all parties. Someone other than the employee’s immediate supervisor should conduct the termination meeting, such as the human resource manager or the employee’s department manager. It is also a good practice to have another management employee attend the termination meeting to serve as a witness but not otherwise actively participate.

If the employee is physically or mentally disabled, Human Resources must ensure that documented attempts were made to reasonably accommodate his or her disability (including accommodations for conduct or performance related to the disability). A similar analysis must be conducted if the employee is pregnant.

The person conducting the termination meeting should briefly state the performance, conduct, or other issues that precipitated the meeting. The employee should be informed that the company has determined the employee is to be terminated. Remember that reasons given to the employee that later are proved false or only partially correct will substantially undermine the employer’s defense in litigation. All interaction with the employee should be respectful and matter of fact. If the employee becomes argumentative or threatening, the meeting should be terminated.

To minimize the risk of litigation, employers should take extra steps before effecting a termination when one or more risk factors identified below apply. These include situations in which the employee: • Is in one or more protected groups; • Has a history of initiating employment related claims or lawsuits; • H as recently complained about an unfair, unsafe, or unlawful activity;

Unless there is a fear of theft or destruction of company property, the employee should be allowed to privately gather personal items and leave the premises. Employers who require the terminated employee be “escorted” from the building or closely “monitored” while cleaning out his or her desk could increase their risk of a lawsuit.

• H as recently engaged in a protected statutory activity (e.g., exercising leave rights under disability, family and medical leave, or workers’ compensation statutes); • H as filed an administrative charge with the Equal Employment Opportunity Commission (EEOC) or other state or local fair employment practices agency;

Robin B. Taylor, Attorney Ogletree, Deakins, Nash, Smoak & Stewart, P.C. robin.taylor@ogletreedeakins.com www.ogletreedeakins.com

• H as recently complained about wages allegedly owed (including commission or bonus calculations); • Has a long-term employment history with the company; or • I s under a supervisor who has a history of similar problems with other employees.

Such steps could include delaying the termination to allow for additional warnings, counseling, and opportunity for improvement; having a second supervisor participate in the evaluation of the employee; or offering the terminated employee a severance package in exchange for a release of all claims.

F. Notifying an Employee No law requires an employer to provide a termination letter identifying the reason(s) for the termination. Well-written termination letters can be an important deterrent to wrongful termination claims. If done correctly, they can provide persuasive, contemporaneous support for the termination and reduce the risk of litigation. However, if the letter provides the employee with a reason for the termination that later proves to be false, the termination letter can effectively gut the employer’s defense should litigation ensue. It is important to note that reasons that are too specific (e.g., “the employee failed to meet production quota of 18 widgets per hour three days in a row”) may create an insurmountable proof standard for the employer in litigation. The description should give the employer a realistic chance of proving the basis for termination and provide the employee adequate notice of the reasons for termination (e.g., “the employee failed to meet production standards”).

A substantial number of lawsuits filed by former employees arise because of how the termination took place, not why it took place. The termination www.HRProfessionalsMagazine.com

21

LGBT

Congress Revisits Anti-Discrimination Laws: An Overview of the Employment Non-Discrimination Act of 2013

By Abtin Mehdizadegan

INTRODUCTION November may prove to be another significant milestone for the lesbian, gay, bisexual and transgender (LGBT) rights movement in 2013 as Congress considers the Employment Non-Discrimination Act of 2013 (ENDA or the Bill). ENDA, anti-discrimination legislation that has been through several iterations and attempted enactments since 1994, would ban employers from firing, refusing to hire, or discriminating against workers or job applicants based on their sexual orientation or gender identity. Surviving a major procedural vote with bipartisan support in the Senate, it is a real possibility that ENDA may become law. Accordingly, employers should be aware of their rights and responsibilities to employees under the Bill.

THE BILL Scope, Applicability and Prohibited Conduct The Bill was proposed as a means to “address the history and persistent, widespread pattern of discrimination . . . on the bases of sexual orientation and gender identity” with “meaningful and effective remedies for any such discrimination.” The Bill defines “gender identity” expansively as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” “Sexual orientation” is defined as “homosexuality, heterosexuality, or bisexuality.” The fundamental structure of ENDA should be familiar to HR practitioners as it mirrors the prohibitions of Title VII of the Civil Rights Act of 1964.

For instance, the Bill would adopt Title VII’s circular definitions of “employee” and “employer,” bringing anyone with 15 or more employees under the Bill’s coverage. Also like Title VII, it would be an unlawful employment practice under ENDA for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation or gender identity; or (2) to limit, segregate or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual's actual or perceived sexual 22

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orientation or gender identity. The Equal Employment Opportunity Commission (EEOC), along with its administrative exhaustion requirements, would hold regulatory and administrative jurisdiction over such claims.

ENDA’s Limits Statistics and Disparate Impact Analysis. Despite the broad scope of the prohibited conduct, there are significant limits contemplated by ENDA. Importantly, the Bill would limit the EEOC and Secretary of Labor from compelling or requiring employers to collect workforce statistics regarding actual or perceived sexual orientation or gender identity. This limitation directly correlates to the Bill’s express prohibition against disparate impact liability. Unlike Title VII, employers would not be liable under ENDA for employment policies or practices that, while facially neutral, have a disproportionate adverse impact on members of a protected class.

Separate Facilities and Dress Code. Another significant limitation contemplated by ENDA concerns the provision of separate facilities and the ability of an employer to require certain dress and grooming standards of its employees. Specifically, the Bill would not require employers to construct or provide new or additional facilities for employees based on gender identity. Likewise, nothing in the Bill would prohibit employers from requiring an employee, during the employee’s hours at work, to adhere to reasonable dress or grooming standards. An employer must, however, permit any employee who has undergone gender transition prior to the time of employment, and any employee who has notified the employer that

the employee has undergone or is undergoing gender transition after the time of employment, to adhere to the same dress or grooming standards applicable for the gender to which the employee has transitioned or is transitioning.

Remedies and Defenses No Double Recovery. The procedures and remedies for a violation of ENDA for individual disparate treatment claims would be identical to those contained in Title VII. It should be noted, however, that the Bill specifically contemplates litigation in which a plaintiff alleges Title VII sex and ENDA sexual orientation discrimination. In such a circumstance, a plaintiff would not be entitled to double recovery.

Same Decision Defense Codified. Similarly, the Bill—if enacted— would codify the oft-cited “same-decision defense,” which operates as a limit on the damages a plaintiff would be entitled to receive if the employer demonstrates that it would have taken the same action in the absence of the impermissible motivating favor. Under this formulation, a plaintiff would only be entitled to declaratory relief, injunctive relief, and attorney’s fees and costs demonstrated to be directly attributable to the pursuit of the ENDA claim. An employee would not be entitled to an award of damages or an order requiring any admission, reinstatement, hearing, promotion or payment.

Sovereign Immunity. The Bill also raises important implications for government employers in that a state’s 11th Amendment immunity from suits brought in Federal courts would be revoked if the state receives or uses Federal financial assistance. Suits against the Federal government are also authorized. The remedies available would otherwise be the same as those available in Title VII cases, except that punitive damages would not be available, and compensatory damages are limited to the extent specified in 42 U.S.C. § 1981a(b).

THE ENDA GAME At this point, while it is too early to predict ENDA’s likelihood of success in Congress, HR professionals are likely concerned about the secondary effects of ENDA. For some employers, ENDA will merely codify a current practice or policy of not discriminating against employees based on sexual orientation or gender identity.

After all, twenty-one states have enacted some form of workplace anti-discrimination legislation pertaining to sexual orientation. On the other hand, it is beyond dispute that ENDA, as a new cause of action, will increase an employer’s exposure to employment litigation lawsuits, or make it more difficult for an employer to dispel meritless claims with summary judgment, potentially increasing the cost of litigation. Should ENDA become the law of the land, to mitigate the increased litigation exposure, it is likely that HR departments will be busy amending handbooks, modifying notice-of-rights posters and conducting company-wide training.

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Abtin Mehdizadegan Associate Attorney Cross, Gunter, Witherspoon & Galchus, P.C. amehdizadegan@cgwg.com www.cgwg.com www.HRProfessionalsMagazine.com

23

HR PROFESSIONALS QUARTERLY SEMINARS

Keynote speakers will be Chris Davis, Director of Health Management & Claims Informatics, and Preston Francis, VP of Employee Benefits Division with Regions Insurance in Ridgeland, MS.

Presented in partnership with the Capital Area Human Resource Association

What you really need to know to position yourself as Strategic HR Leader for your organization in 2014.

Topics include: Building a Strategic Benefit Plan in the Post PPACA Era, HR’s Secret Weapon – The Power of Analytics, The Legal Pitfalls of Health Care Reform, and Strategies to Increase Your Executive Presence Presenting Sponsor is Regions Insurance Ridgeland, MS

Chris Davis has 7 years of experience in population health management in a litany of roles. As a health management consultant, Chris has deployed over 35 worksite clinics for client groups and has developed wellness programming used by several fortune 500 clients. Chris has also created employer-based wellness programs that have earned Gold and Platinum Level from the Wellness Counsel of America and led the organization to being named a as a “Best Places to Work” in the state of South Carolina for four consecutive years.

Preston Francis has been an advisor in the Employee Benefits Division of Regions Insurance, Inc. for 9 years and currently serves as Senior Vice President. He has an extensive background in the health care insurance industry concentrating his efforts on large self-insured clients and offering his expertise in developing risk management programs. Preston serves on the Regions Insurance Group Financial Security Committee, the Employee Benefits Vertical Leadership Committee, as well as, the State of Mississippi Exchange Advisory Sub-Committee.

Joshua Aversa serves as Senior Product Manager at Ultimate Software where he determines and oversees the strategy and product direction for Business Intelligence and Insight. A lifelong technologist, Josh has worked in enterprise software for 19 years and has previously led product strategy and vision for Mobile, Business Process Management, Integration, CRM, and Identity Management solutions.

• Effective Benefit Plan Design Management • Effective Employee Communication • Medical Claims Management and Mitigation • Understanding Why HR is Dealing with “Big Data” • Correlating predictive analytics with employee data to forecast employee departures • How to avoid the legal pitfalls of the Patient Protection and Affordable Care Act

Timothy W. Lindsay is managing partner of the Ridgeland office of Ogletree Deakins. He has practiced exclusively in the field of labor and employment law on behalf of management since 1987. Tim has more than 25 years of litigation experience. He has served as lead counsel for public and private sector employers in defense of civil actions involving Title VII of the Civil Rights Act, ADEA, ADA, FLSA, FMLA and ERISA.

• The Employer Mandate and “Minimum Value” and “Affordability” Cynthia Y. Thompson is the Principal and Founder of The Thompson HR Firm, LLC, and Publisher | Editor of HR Professionals Magazine.

• How to increase your executive presence as the HR Leader for your organization

Join us on Tuesday, November 19th at the Old Capitol Museum in Jackson from 1 PM to 6 PM Wine and cheese reception from 5 PM to 6 PM Meet the speakers and get answers to your questions.

24

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TO REGISTER, GO TO www.HRProfessionalsMagazine.com OR RSVP to Cynthia@HRprosMAGAZINE.com Cost: $45 for SHRM members and $50 for non-SHRM members.

Pre-registration is required. You may pay by check or credit card.

APPROVED 4.00 Strategic Business Credits

EMPLOYERS LAWYERS

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

We remain committed to providing our clients with an insider’s view of the workplace issues of the day.

With more than 650 attorneys in more than 40 offices located in the United States and Europe, the firm combines local knowledge and strength with national resources.

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

The Obama NLRB and Employee Access to Company Property – Are You Prepared?

Non-union and unionized employers will learn what the current NLRB is saying about employee access to company property, including physical property, computer systems, bulletin boards, telephones, copy machines, etc.

Attendees will hear how employee rights are implicated (even in a non-union setting) and how employers can best protect their property interests.

Attendees will learn what policies are effective in protecting company property interests and regulating the workforce, without trampling employees’ rights and violating federal labor law.

Littler Mendelson speaker: Tanja L. Thompson, Shareholder

Thursday, December 12th, 2013 Registration and Breakfast: 8:00 am – 8:30 am Program: 8:30 am – 10:00 am For more information on how to register please contact Kellie Nurko at knurko@littler.com. This program is complimentary and seating is limited.

www.littler.com • Littler Mendelson, P.C. 3725 Champion Hills Drive, Memphis, TN 38125 • 901.795.6695

something yourself? If you are getting too worked up emotionally it is best to get away from the situation as quickly as possible. If you are able to distance yourself and not get emotionally involved there are a number of things that will help.

Seven Ways

of making it easier

to Deal With Difficult People

By Harvey Deutschendorf

M

isery loves company. We’ve all know, or have encountered people whose sole purpose in life seems to be to gripe, complain about everything and anything, and tear others down. Hopefully we don’t have to spend a lot of time with them and their attitudes. If you have a person like this in your life they will drain your energy.

Referred to as energy vampires, the only way to deal with these people is to get them out of your life. Sometimes there are people around us that we have to spend time with, such as family members. If you can, limit your time with them. If you can’t, in order to protect yourself, develop a plan to limit their impact on you. Regardless of the people we have to, or chose to spend time with, we will all run into people that will drain our energy if we let them. It might be helpful to have a few techniques in our back pockets to use to help us through these situations.

Don’t take their complaints at face value In my experience with difficult people who chronically complain and love to argue is that they have deeper underlying unresolved issues that they are dealing with. They are unhappy individuals who are habitually looking to find fault and like to live on the dark side. Unable , or unwilling to work on their issues they resort to looking for attention in the only way they know how, complain about everything they can to anyone who will listen. Since they are always looking for things that are wrong, rest assured they will never run out of issues to complain about.

Don’t take it personally If you are the object of their complaints, don’t take it personally. You may just happen to be the only, or handiest person around upon who they can vent their anger. A good way to look at it is to ask yourself if anyone else has complained to you about the same thing.

Would most people you know be upset about this?

Be aware of how you are reacting Keep aware of how you are feeling while the person is venting. Are you getting angry about

Actively listen Although your natural inclination may be to completely tune these people out, it won’t necessarily make them go away. They may get angrier that they are not being heard and make their arguments more forceful.

Think through your responses before speaking It might be tempting to think that if we just agree with them by nodding our heads or mumbling a few words in agreement they will go away. This may actually encourage them further. If the basis of their complaint has some legitimacy, we can offer some agreement if it helps lighten the mood and tone. For example if they are complaining about a common topic, such as government, we can say something like… “it can be frustrating sometimes when you see how things are done.”

Ask them for solutions and offer some yourself The last thing that difficult people want when they are venting is someone to talk about solutions.

After all, if we found a way out it would deprive them of a reason to complain. It will work as a way of taking the steam out of their criticism. What they are really looking for is someone who will either agree with them or argue with them, both of which will let them continue to vent. By depriving them of the opportunity, they will likely look for someone else who is willing to indulge them and go down the same path as they are on.

Look for humor and some positive in their situation A good distraction tool is to find some humor in the situation they are complaining about. Be careful that it doesn’t appear that you are laughing at them; otherwise, they may become more infuriated.

If there is something positive that they can get out of the situation, point that out to them.

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

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Do You Have the Right People on the Bus?

How Do You Know?

By Voss W Graham

When Jim Collins wrote his masterpiece “Good to Great” – one of the key phrases he used in his book was “Getting the Right People in the Right Seats on the Bus.” His insight for a Great Company, starts with a foundation with Great People.

Without Great People – or Superior Performers – a company will be hard pressed to succeed in this highly competitive marketplace we live in today. Superior Performers come in all sizes, colors, education and backgrounds. So how do you know if you have a Superior Performer?

Here is a Five Step Method…

Really Know the Job A big mistake organizations make is a lack of clarity regarding the job position itself. The normal practice is to contact Human Resources and request a job description from HR. In practice, the actual hiring managers seldom get together to actually discuss the complexities of the position.

Often hiring managers have little training or preparation regarding the job itself – they are just expecting to find the “right person” to fill it.

Interesting theory or practice, yet it does not help in the acquisition of superior performers.

When stakeholders get together and have robust dialogues about the actual position – their awareness increases relative to the critical traits, such as actual experience and what factors must be included in this exercise to justify selection.

We have seen major “aha” moments with managers (and HR) when a dialogue takes place regarding a single position. These discussions have uncovered specific traits or characteristics current high performers brought to the position.

Another factor is the hiring managers learn during the discussion what is truly important as traits leading to job success. This process has identified brand new positions as well as clarified existing positions for future selections.

In fact, unusual traits have flowed from these exercises. Unfortunately, existing positions are only involved after several mis-hires and low productivity.

Have Objective Data After the extended dialogue about a position, there is a strong need to clarify the exact traits using assessments to provide objective data and information.

This process is designed to reduce the built-in bias to particular descriptors.

An example was a group of managers declaring a position NOT needing EMPATHY as a trait. However, when the assessment was used with the outcomes or results derived from empathy – EMPATHY elevated to a position in the top seven competencies.

Excellent Job Benchmarking assessments will provide you with a priority hierarchy of personal traits for the job to be successful. Additionally, the benchmark provides specific behavioral questions for the interviewing managers to use. Questions are targeted to the specific traits needed by the position.

Targeted questions assist in verifying the actual level of experience a candidate possesses. Allowing for greater clarity in the hiring and selection process. Ultimately, it contributes to selecting the “Right People for the Right Seats on Your Bus.”

Match the Talent to the Job Staying on the objective data dialogue, you should be using assessments in your selection process. These assessments provide the candidates personal hierarchy of traits. When the Job and Talent assessments use the 28

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same format of personal traits it provides the ability to match your talent to the job.

Why would you want to “match the job and talent?” Marcus Buckingham, the author of a best selling management book “First, Break All the Rules,” clearly provided the answer in his book about determining what the best and most effective managers do differently from other managers.

To paraphrase his work – The best managers take the time to identify the natural, hard-wired traits of their people, then put them in a position to utilize their natural strengths in their job performance.

When you know the natural strengths of talent, you assign them to positions whereby they use their natural strengths. This leads to more effective, high energy and engaged employees. Rocket Science is not used here – only Multiple Assessment Sciences.

The only question is… “Are You Using Assessments in Your Selection Process?” If you answered “no,” then your entire process is subjective.

Subjectivity leads to using Hope Strategy in the selection process. It is the most difficult method to teach your hiring managers.

Measure Performance An important aspect of the hiring process reflects the instructions on a shampoo bottle – apply shampoo, rinse and REPEAT. However, any hiring and selection process repeating without measuring performance is equal to malpractice.

Track the performance of the new hires and compare to the highest standards of performance for the position. NOTE: If there were NO Standards of Performance identified, how would you know if you actually have a high performer?

High performing organizations have higher standards of performance than the run of the mill organizations. High performing companies match strengths of talent to the job position. Then challenge their talent to perform at higher levels. These organizations seem to control the market on high performing people. And, peer pressure to perform is natural rather than forced upon the people.

What are you doing relative to measuring and tracking the performance for new hires? Measurement allows you to also monitor the effectiveness of the job benchmark. Did you miss a trait showing up in the highest of high performers? This is part of the top-grading process for your organization.

Make it happen and your high performers will be much happier.

De-hire Low Performers Quickly This should be a natural step in your top-grading process. When you review the performance of people who are under performing, check the original data. Were key traits missed during the hiring process?

Hiring managers take the blunt of non-compliance to high performance standards. Therefore, coach new hires early and watch for progress. Track the standards of performance and study the trend lines.

Take action quickly if there was a mistake in the hiring process. De-hiring is an important management skill used by the high performance managers.

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

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Holiday Party Disasters and How to Avoid Them

By David L. Barron

In 2012 the Society of Human Resource Management (SHRM) found that almost three-quarters of employers planned to hold a holiday event, compared to 60 percent doing so just two years before. Holiday parties can build morale and team spirit; they also can create legal liability disasters for employers. Here are three categories of disasters to beware of, and solutions to address them proactively.

Sexual Harassment Disasters When alcohol is served at holiday parties, it can create an environment for unwanted sexual advances and potentially illegal employee conduct. It is not uncommon for some employees to forget their office behavior standards at company holiday parties, particularly those held outside of the workplace. In a social setting, an employee may feel more at ease in pursuing another employee in a personal, romantic manner. And with ubiquitous cell phone use combined with social media postings, the evidence of a sexual harassment incident can be posted online for the whole world to see. A starting point for dealing with the latter concern is to review the company social media policy and prohibit employees from posting photographs or video at an official company function without management permission.

This, however, does not address the broader issue legal liability from harassment.

Employees are protected from sexual harassment and discrimination by Title VII of the Civil Rights Act of 1964, which covers employers having 15 or more employees. Title VII provides several requirements for conduct to trigger liability for unlawful harassment: (1) The conduct must be unwelcome; (2) the conduct must be based on sex (or some other protected classification); and (3) The conduct must be sufficiently severe or pervasive that it violates the law.

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Conduct is not illegal simply because it is inappropriate or makes someone feel uncomfortable. To violate Title VII, the conduct at issue must be severe or pervasive; it need not be both. Even a single, extremely serious incident of harassment may be sufficient to constitute a Title VII violation, especially if the harassment is physical. So, if the office party incident follows previous incidents of misconduct, it could constitute the evidence necessary to reach the ‘severe’ or ‘pervasive’ threshold, or at least create an issue for trial.”

Given this risk, employers should have in place comprehensive, written anti-harassment policies, clearly spelled out in employee handbooks – and re-circulate copies of these policies prior to the party. Additionally, send a memo reminding employees to act responsibly at the party, clearly expressing a lack of tolerance for inappropriate behavior. Courts have ruled that employers who make prompt and appropriate response to employee complaints can limit liability for sexual harassment by their employees.

Personnel Policy Disasters Human resource issues that frequently arise at year-end can create the potential for conflict or confrontation at holiday parties from disgruntled employees if there is no proactive planning for situations that can arise.

If this produces physical confrontation or violence, the employer faces legal liability. Be alert to the implications of these situations: • Y ear-end bonuses may create the temptation for employees at holiday parties to compare notes on who got what and how much.

It is against federal law to prohibit employees from discussing wages, but a reminder about professional confidentiality when a bonus is given may be helpful.

• As the fiscal year ends, companies can find it necessary to make budget cuts and, unfortunately, layoffs. There is never a good time to tell someone they are being terminated, but it can be even harder around the holidays, particularly if employees otherwise expected to attend a holiday function. They may show up anyway, even if terminated, and create disruption. Any severance announcement to an employee should specify the terms under which their company access is ended, and security should be present at the holiday function to screen and intercept potentially hostile terminated employees.

• Th e year end holidays are a time of religious observance for many, and some such persons may openly resent and criticize a holiday function that lacks religious overtones. Similarly, many people who do not have religious affiliation can resent religious displays at such a function. Courts have held that wreaths and Christmas trees are considered “secular” symbols and can be displayed even if persons object. Remember, however, that Title VII of the Civil Rights Act requires an employer to reasonably accommodate an employee’s religious observances, practices and beliefs, as long as it can do so without undue hardship on the employer’s business operations – including at a holiday party.

(such as by closing the bar well before the party ends), or the number of drinks served (such as through drink tickets) to prevent excessive drinking. Providing food typically slows the absorption of alcohol into the bloodstream, and providing plenty of non-alcoholic beverages is always a wise choice.

• H ire professional bartenders and require IDs from guests who do not appear to be 21 years of age or older. Ask the bartenders to keep their eyes open for obviously intoxicated employees.

• A rrange designated drivers or cabs to ensure that all persons have a safe way to get home. Consider offering incentives to employees who offer to be designated drivers and/or pre-paid cab vouchers to employees.

• I nvite to the holiday party spouses, significant others, families and important clients, with whom the company conducts business, which can keep the atmosphere of a company party more disciplined and discourage inappropriate behavior.

The bottom line, no matter what the potential disaster, is that effective, proactive steps, if properly planned and implemented, can be extremely valuable in defending an employer against holiday party problems and legal complaints.

David L. Barron, Attorney Cozen O’Connor Houston Office dbarron@cozen.com www.cozen.com

• Th e holidays can be a difficult time of the year for persons with depression or other mental illnesses, and such individuals may try to attend a holiday party. Be sure to remind employees that the company has an Employee Assistance Program available for individuals who are stressed out or just need someone to talk to.”

Accident Liability Disasters In a 2013 decision, a California appellate court reversed the trial court’s grant of summary judgment for the employer and found that an employee who consumed alcohol at a company-sponsored event and, after leaving, struck another car and killed the driver created liability for the employer. “It is irrelevant that foreseeable effects of the employee's negligent conduct (here, the car accident) occurred at a time the employee was no longer acting within the scope of his or her employment,” the court ruled. Given this significant liability potential, employers should take these proactive steps to keep alcohol from contributing to traffic accident disasters: • I f alcohol is served, keep consumption in check. Limiting access to alcohol by placing restrictions on the type served, the time available www.HRProfessionalsMagazine.com

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be “chewed out” by their boss if they don’t do it the way the boss expects at that particular time. They will give mediocre service rather than try something innovative for fear the boss won’t approve. And they will be very reluctant to ask the boss if they can try something innovative for fear of a backlash. The person is living in constant fear of being “chewed out” so they do nothing! Or at least nothing that might upset the boss. When this occurs, employees will not be as innovative, productive or use their brain like companies need them to do in order to compete in a competitive global economy. They will spend their time constantly looking over their shoulder.

Inconsistent Expectations Drive Employees Crazy …or Worse!

By Jeff Kortes

The only thing that drives an employee crazier than not knowing what is expected of them is when their boss keeps constantly changing expectations on them. The employee is trying to hit a moving target. Rarely is the issue one of “poor communication” because after the boss and employee get to know each other, communication should be pretty good.

What we are usually dealing with is an issue of inconsistent expectations of the boss. Clear, consistent expectations are critical if an employee is to perform at an optimal level. At its worst it can be the precipitating factor that prompts the employee to start looking for another job.

3 results of inconsistent expectations are: • The employee will simply check out. Mentally, they will become disengaged. We hear a lot about disengaged employees today. Years ago we used to simply say that the people didn’t care or simply didn’t give a “crap.” The result is the same. You have people on the job who are not putting their best effort into being successful.

In the past it was far easier to deal with those issues because you could measure productivity when someone was pounding out parts in a factory.

Today…the results tend to be far more nebulous and tough to measure despite all of our efforts and developing metrics. The product of our work is innovation, reaction to a customer, level of service and other more difficult to measure activities. When employees become disengaged, the cost is huge and almost impossible to measure. When a boss is constantly changing expectations, one result is that the person will do the best they can to keep a low profile hoping that they will not 32

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• The other alternative is that they may start going to the boss for every little item to ask for directions on how they want it done to avoid being wrong. If you are a micro-managing boss that’s great, but in most cases it puts a burden on you that you don’t need. This result is certainly not in the best interest of the organization at a time when the people in most organizations are being asked to do “more with less.” The boss will find that they have a constant parade of people in their office asking all sorts of minor questions that they should be able to figure out for themselves. OR… you will see a flood of emails that don’t say a whole lot of anything but are designed to document the conversation as a way for the employee to cover themselves. You have created a situation where the employee will not willingly take on more on their own for fear that they will not be able to do it right or will engage in non-productive covering of themselves to avoid being accused of doing the wrong thing. Why? Because they have no idea what the right thing is! But this is not the worst case scenario!

• In the worst case scenario, the employee becomes so frustrated they start looking for another job because of the constant uncertainty they face every morning when they show up for work. Sticking around simply is not worth it any longer.

When they leave, they will be replaced by another employee who will have a grace period where they can’t be expected to know “exactly” what to do. After that grace period, the person will begin to be like the prior person. They will live in fear or become disengaged. Then, they will ultimately leave and create a revolving door for the manager.

Eventually, word gets out about the employer or prospective boss so that good candidates avoid the organization. The quality of candidates who then applies for openings are people who are substandard and can’t work anywhere else. The organization then starts to find itself in a death spiral as quality, productivity, customer service, etc. begin to deteriorate.

As a manager, ask yourself if you find yourself having to clarify with your people why they are not understanding your instructions and are doing things wrong regularly. Chances are they aren’t misunderstanding… chances are YOU as the manager are changing expectations and creating the misunderstanding. If that is the case, you need to quickly resolve the problem or the results will be devastating to your area and the organization.

Jeff Kortes

Human Asset Management LLC jeff@humanassetmgt.com www.jeffkortes.com

Free college advice program

benefits employers

By Julieanna Walker

Nearly 30 Memphis employers already encouraged professional development of their employees who want to go to college by establishing a partnership with Graduate Memphis’ (GM) Degrees At Work program. The program offers comprehensive college advising services to adults who want to go back to college, at no cost to the employer or employee.

GM advisors offer non-biased guidance, tailored to the educational goals, financial and logistical resources and time available to the adult, for all 30 higher educational institutions in the metro area. Advisors possess master’s level degrees and are certified in Career and Education Advising by the Council for Adult Experiential Learning.

One of the initial goals of the program is to provide these services on the job site to decrease the time the employee takes off from work. Most employers inform their employees of the program and benefits of the program through normal methods of communication within their organizations.

Another goal is to eliminate any transportation barriers employees may have that prevents them from traveling to the GM College Resource Center at the Benjamin L. Hooks library.

Advisors offer to work with employees in the manner they prefer (i.e. in person, over the phone or via email.)

The service is available to anyone who has been out of high school for at least one year, with or without previous college credit. The primary target audience is adults who seek to obtain a technical certification and/or two and four year degrees.

HIGHER EDUCATION BENEFITS EMPLOYERS Since 2003, rising health care costs have been the top concern of HR Professionals in the U.S. with labor shortages not far behind due to baby boomers exiting the workforce and a shortage of labor skilled in science, technology, engineering and math (STEM) fields. If 73 percent of HR professionals are concerned about skills gaps over the next five years, why are only five percent doing anything about it?

From a business perspective, the benefits that come from investing in a better-educated workforce seem clear and hardly as time consuming as health care reform. A report, Why Companies Invest in “Grow Your Own” Talent Development Models, by Corporate Voices for Working Families, included best practices from CVS/Caremark, the Johns Hopkins Hospital, and Pacific Gas and Electric Company. These employers took different approaches to employee development, but the investment has paid off in a range of valuable dividends.

The report states: • The most direct and tangible benefits are improved retention of program participants, turnover avoidance and associated rehiring costs. Among the programs highlighted in the report, the return on investment (ROI) ranged from a small first-year loss to a net gain up to 179 percent.

• Less tangible but equally important benefits include greater workplace diversity, enhanced customer and client loyalty, and an improved reputation in the community.

Other business drivers for investing and creating a skilled labor pool are increased employee engagement, increased job performance, increased productivity and building a professional workforce.

If an employer does not have a tuition reimbursement policy, the Degrees At Work program is a no cost opportunity to support professional development and receive dividends previously stated. If employers do have a tuition reimbursement policy, the program will ensure those dollars are used most effectively. Program advisors recommend higher education programs that fit the money available for employees to go to school.

HIGHER EDUCATION BENEFITS EMPLOYEES Why are college enrollment rates down when people realize the value of a college education, especially since the recent financial crisis? It is no secret people who have a college education make more money and are more likely to be employed. Plus, people who

do not have a technical certification or degree want one.

The truth is that going back to school for an adult is an intimidating process and comes with barriers.

In a survey conducted for Capella University, TNS NFO researched adults’ views on the value and feasibility of returning to school (http://www.degreesofopportunity. org/inc/degrees_opportunity_report.pdf ).

According to participants surveyed, the top three barriers for adults pursuing higher education are: • Managing outside other commitments and still finding time for school (perceived as a barrier by 73% of respondents) • Finding the money to pay for school (70%) • Providing for self/family while in school (62%) Graduate Memphis Advisors help eliminate barriers adults worry about when contemplating higher education.

They consider the employee’s educational goals, financial needs, prior learning experience, time and logistical situation when pointing out the options available in the local metropolitan statistical area (MSA.)

HIGHER EDUCATION BENEFITS THE COMMUNITY According to a 2011 American Community Data survey, of the top 50 Metropolitan statistical areas, Memphis ranked:

No. 1: 15.3 % of families live in poverty No. 4: 12.6 % unemployment rate No. 46: $23,899 per capita income No. 42: 24.5 % college attainment rate

If education is the single most effective means to reduce poverty, doesn’t it make sense that every person and every organization that lay claim to care about Memphis work towards providing educational opportunities to Memphians?

There are over 200,000 adults in Memphis that started college and did not finish. A one percentage point increase in the local college attainment rate would produce about 8,000 additional college graduates, which adds up to an economic impact of over $1 billion dollars.

WHY GRADUATE MEMPHIS DEGREES AT WORK? Graduate Memphis is an action initiative of Leadership Memphis and the Memphis Talent Dividend, which includes over 100 other organizations. The collective goal is to increase the number of college graduates in the Memphis metro area by one percentage point over the next five years.

Why? Education is also the antidote to chronic drains on our community; such as poverty, crime and illiteracy.

What’s our plan for achieving this? Provide adults help for going back to college, be successful students and graduate!

How can employers help? Call Leadership Memphis at 901-278-0016 and ask for more information about GM Degrees At Work.

Julieanna Walker, PHR Outreach Coordinator Graduate Memphis jwalker@leadershipmemphis.org www.graduatememphis.org www.HRProfessionalsMagazine.com

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VIOLENCE at HOME. VICTIMS at WORK. Employers Confront Domestic Violence.

I

By Deborah M. Clubb and Dr. Carol Danehower

It’s on the news every week.

Somewhere in America, workers are wounded or killed when one part of a “romantic” relationship comes looking for the other part, armed and dangerous and ready to attack anyone between him and his target. It happens in Memphis and Shelby County. It has happened in office parking lots and outside hospitals.

It also happens to workers at home – teachers, nurses and others murdered by current or former husbands and boyfriends. Maybe colleagues knew something was wrong. Maybe they truly think they had no clue – what did they miss?

Most violent relationships do not end in murder – they go on week after week for years with coercion, intimidation, violation and battery. And the battered partners - employed, building a career, skilled in a profession – cope, cover injuries, come to work, struggle to concentrate and perform.

Who is affected? The victim who is an employee, the co-worker and employer, the perpetrator who is an employee, even customers, clients and unions.

New research by the Tennessee Economic Council on Women reports that Tennesseans spent or lost at least $886.1 billion (yes billion) in 2012 as a result of domestic violence, human sex trafficking and sexual assault. The majority of those billions were in tax dollars and health care payments, but lost wages, workplace expenses, charity and inefficiency also play a part.

Ron Harr, president and CEO of the Chattanooga Area Chamber of Commerce, told the TECW researchers, “While domestic violence occurs at the home, it is expressed in the workplace.” Business owners and employers can take steps to get in front of these issues – create policies, be pro-active and know what to do to reduce risk and manage appropriately.

The Memphis Area Women’s Council believes our entire community could be different if this awareness and information were widely known. That’s why we are organizing our second annual conference for employers as part of October Domestic Violence Awareness Month. It’s an opportunity for employers, business owners, human resource professionals and corporate security officials to learn how to “recognize, respond and refer.”

2014 Domestic Violence Awareness Conference is January 24 The 2014 conference is from 7:30 to noon on Jan. 24 at The Urban Child Institute, the facility in downtown Memphis dedicated to the needs of children ages 0-3. The Institute is at 600 Jefferson, at the corner with Neely, with plenty of secure parking on the west side of Neely. Continuing education credits will be available for human resource and security professionals. Register online at www.memphiswomen.org. Registration is $50.

We will have new data from the Tennessee Economic Council on Women about the economic impact of violence against women – numbers and dollars to show what these crimes cost local employers and why.

Local leaders from business, law, education and criminal justice will explore the impact of intimate partner violence on victims, on perpetrators and on 34

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the workplace where both victims and batterers might be employed. Expect to learn the definition of domestic violence, related law and the power/control dynamics that make it so destructive and persistent; how to recognize signs, how to respond with training, a customized workplace policy and security; how to refer to local resources and become part of our community’s prevention efforts.

Nationally almost 1 in 4 full-time employed adults has been a victim of domestic violence – and 3 of 4 domestic violence perpetrators have used workplace resources to check up on, pressure or threaten.

Text messages, emails, GPS – batterers use every tool available to monitor, stalk and attempt to control. Recent data from the CDC says victims of intimate partner violence lose 8 million days of work each year – equivalent to 32,000 fulltime jobs. At the same time, 80% of perpetrators surveyed said their own job performance was negatively affected by their violent behavior and that 19% caused or almost caused an accident at work. The study further showed that in many cases supervisors were aware of the perpetrator’s behavior but did not confront the employee about it.

Why should employers address domestic crime?

1. It is a security and liability concern.

Employers who fail to protect their employees at work are liable – awards average $1.2 million to $2.2 million. More than 94% of corporate security directors rank domestic violence as a problem.

Stalking – which is a felony under recent Tennessee law – is a particular concern at workplaces and a crime security staffs should understand, monitor and document. One in 6 women and 1 in 19 men has been stalked at some point in their lifetime, according to the Centers for Disease Control. More than half of stalking victims surveyed lost five or more days of work.

2. It is a performance and productivity concern.

The new TECW data suggests Tennessee’s working women could be estimated to miss about 222,000 days of work each year at an estimated $28.5 million. Victims of domestic violence arrive late to work and leave early, miss entire days dur to fear of discovery, trips to the hospital, court appearances and attorney visits. National data showed nearly 40 percent of battered women had problems with being late to work, getting a promotion or keeping a job.

3. It is a management issue.

Even a decade ago, 91% of senior executives said domestic violence impacts the private and working lives of employees – and 56% of them were aware of employees who were domestic violence victims.

4. It is a cost issue.

The total lifetime cost of injuries due to interpersonal violence in 2000 was about $37 billion - $4 billion for medical treatment and $33 billion for lost productivity.

Memphis area employers can “Recognize Respond Refer – and Rally.”

Rally around this cause as a business leader who “gets” the urgency of a true, comprehensive community response to this lethal and costly epidemic. Join the effort to organize a Memphis alliance to end partner violence – business leaders leading the way toward full recognition of this problem and bringing new energy and resources to awareness, prevention and services.

Deborah M. Clubb Executive Director Memphis Area Women’s Council dclubb@memphiwomen.org www.memphiwomen.org

Carol Danehower, PhD, Director, Master’s Programs University of Memphis vdanehwr@memphis.edu www.memphis.edu