January 2022 Digital Issue of HR Professionals Magazine

Page 1

Volume 12 : Issue 1




2022 Super Lawyers in Labor and Employment Law

HR Trends for 2022

Introduction to

Johnny C. Taylor, Jr.’s

New Book,


Defining Performance Metrics


Smith, Analysis of 2020

CHRO City of Memphis

EEOC Claims 2021 SHRM

Pinnacle Awards

Keeping up with changing laws is a full-time job, and you’ve already got one. EMPLOYERS AND LAWYERS, WORKING TOGETHER Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. The firm has more than 900 lawyers located in 53 offices across the United States and in Europe, Canada, and Mexico.

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420 20th Street North Suite 1900 Birmingham, AL 35203 205.328.1900

International Place, Tower II 6410 Poplar Avenue Suite 300 Memphis, TN 38119 901.767.6160

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Join our monthly webinars to earn SHRM and HRCI recertification credits.

Bringing Human Resources & Management Expertise to You


of 2020 EEOC charges were for retaliation. www.HRProfessionalsMagazine.com

Features 4 note from the editor


5 Profile: Alex Smith, CHRO for the City of Memphis

Cynthia Y. Thompson,

7 2022 SHRM Annual Conference in New Orleans


The Thompson HR Firm, LLC Art Direction

Park Avenue Design

Contributing Writers Richard Arnholt Brett Daniel Emily M. Dickens Amy Dufrane

8 Making SHRM Voices Heard: The A-Team Takes the Field 12 RESET: A Leader’s Guide to Work in an Age of Upheaval 36 2021 HRO Partners’ Holiday Breakfast December 9

Talent Management and Recruiting 6 HR’s Recipe for a Successful Background Screening Process. 14 Top 3 Employee Engagement Ideas for 2022

LeeAnn Bailes Foster

20 Defining Performance: Metrics Matter

Julie Henderson

22 Looking Ahead at the Reality of Work

Taylor Flake Lawson Carol R. Merchant

24 New Year, New (HR Trends): Focusing on the Year Ahead in 2022

Mary Leigh Pirtle

26 Coaching for NO Drama!

Janie Warner Alexis York

Employee Benefits 17 Living Your Best Life Means Having Life Insurance

Contact HR Professionals Magazine:

21 Most Brokers Say They Have All the Answers

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.

39 Implementing COVID-19 Testing in Your Organization?

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.

16 Significant Changes to Requirements for Payment of FLSA Minimum Wage to Tipped Employees

©2022 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.

Employment Law 18 Evaluation of EEOC’s 2020 Enforcement and Litigation Statistics 28 Who is Responsible for Granting Medical/Religious Accommodations to the COVID-19 Vaccine Mandate?

2022 Super Lawyers in Labor and Employment Law in the Southeast 32 Ogletree Deakins 33 Wimberly Lawson 34 Bass Berry Sims 35 Littler

Top Educational Programs for HR Professionals 30 New People Manager Qualification – SHRM’s PMQ Training 40 WGU Tennessee HR Program Fully Aligned with SHRM Curriculum

Industry News 10 SHRM 2021 Pinnacle Award Finalists from the Southeast 13 Order Your Copy of RESET by Johnny C. Taylor, Jr. 29 Congratulations to Kathy Tuberville, SHRM-SCP, Ed.D and Faith Patrick, SHRM-CP February 2022 Issue features Payroll and HR Technology Law Plus Updates on Employment Law and Employee Benefits and the Latest on HR Management and the Pandemic Deadline to reserve space January 15 www.HRProfessionalsMagazine.com


a note from the editor

We have made it to 2022!

It’s a new year full of excitement. We enjoyed our Zoom meetings, our virtual conferences, and working from home. But nothing takes the place of personal social interaction. It was great to cover the 2021 live conferences! We are so honored to partner with SHRM in 2022 to bring you monthly previews of each chapter in Johnny C. Taylor, Jr.’s new book, RESET! As you may know, Johnny is President and CEO of the Society for Human Resource Management. RESET is a Leader’s Guide to Work in an Age of Upheaval. You may not know that all the proceeds from the sale of the book go to the SHRM Foundation! I highly recommend this book and encourage you to get your copy today so that you can follow along with Johnny as he brings us important insights on the future of work. With this new year comes a lot of new and revised labor and employment laws. I know you will have a lot of questions and need assistance with these new and updated regulations. We have you covered with our special section on 2021 Super Lawyers in Labor and Employment Law. Here you will find the top attorneys who can help you with your questions. Please give them a call and take advantage of their many years of experience.

It is a pleasure to feature Alex Smith, CHRO for the City of Memphis, on our January cover this month. Alex is a very accomplished HR professional whose HR team lead the city through the pandemic as they personally administered the vaccines to Memphians. I know you will enjoy reading about her illustrious career in this issue. If one of your New Year’s resolutions includes becoming a certified HR professional in 2022, you will be happy to learn that we are offering our Online HRCI PHR | SPHR Certification Exam Prep Class beginning February 16. Our Online SHRM Certification Exam Prep Class for SHRM-CP | SHRM-SCP is in April. We are proud of our 90% pass rate for both of these certifications. See Page 29 for details about our upcoming HRCI class. Register today at www.hrprofessionalsmagazine.com. If you are looking for recertification credits for your SHRM certification and your HRCI certification, we’ve got you covered there also. Special thanks to Data Facts who sponsors my monthly complimentary webinars. Our next webinar is January 13. Watch your email for your invitation. Please mark your calendars and plan to join us for these exciting events. Best wishes for a happy, healthy, and prosperous 2022!

cynthia@hrprosmagazine.com @cythomps

(L to R) The Crescent Club Memphis entertained guests of the Board or Governors for a holiday happy hour on December 10. Cynthia Thompson and Dianne Laster welcomed Brad Federman, CEO of Performance Point, and VP of Workforce Development for SHRM-Memphis; Dr. Deneen Lester, HR Manager of the Salvation Army Kroc Center, and Tennessee SHRM Director – West with her husband Chuck. 4


Alex on the cover


CHRO, City of Memphis When the global pandemic hit in 2020, the City of Memphis was presented with a unique challenge of serving its citizens in ways it never had before. Simultaneously, Alex Smith, the Chief Human Resources Officer (CHRO) for the City of Memphis, and her HR team of 100 employees were challenged with how to best support the City’s 8,000+ employees and 5,000 retirees. Tapping into the best thinking on her team, Alex and the HR Division utilized cloudbased technology to work remotely and collaborate effectively to implement internal con-tact tracing, COVID-19 testing and policies and vaccination incentives. The City of Memphis HR team even operated vaccination sites while still managing their critical HR roles, demonstrating and practicing Alex’s leadership philosophy: lead by example. Alex Smith became the CHRO for the City of Memphis, reporting directly to Mayor Jim Strickland, in 2016. With 17+ years of private sector HR experience, Alex was keen on bringing private sector HR practices and innovation into the public sector, positioning Memphis as a model for 21st century city government. Known as “Chief Smith,” Alex is a visionary working diligently to elevate the City of Memphis’ culture to enable Mayor Strickland’s purpose of “improving the quality of life for all Memphians, every day.” She is also known as the architect of the City’s updated talent management, training, labor relations, employee engagement, wellness, compensation, benefits, diversity and safety initiatives.

Alex has been featured in numerous publications including Forbes, American City and County Magazine, Governing Magazine, and CNBC for transforming a government municipality to the 21st Century through cloud-based technology, and economic empowerment through workforce sustainability. As a results-oriented leader, Alex and her HR team have been recognized by several organizations for their excellence in innovation – the HR team received the Chief Learning Officer Magazine Bronze Learning in Practice Award, Tennessee Municipal League Excellence in Human Resources Award, and most recently the 2021 HRO Today Association Award for Engagement Strategy Excellence in the North America region.

Alex was also named HRO Today Magazine’s CHRO of the Year 2020 and listed on both the 2021 Memphis Business Journal Top 40 under 40 and Memphis Urban Elite Top 40 under 40 lists. Having been inspired and motivated by her family’s political background, her passion for helping the public and her desire to solve complex business issues, Alex has created proprietary programs throughout her career that move organizations forward. From honoring 1968 Sanitation Strike survivors by providing more financial stability, to creating programs that helped immigrant spouses establish fulfilling careers, to turning around cultures on life support, her life’s work begins and ends with a “people first” approach.

This “people first” approach extends beyond the professional realm into her community work, as Alex serves on the advisory council for 3SixtyInsights and the advisory board for Government Executive Media Group’s RouteFifty. She also serves on the board of directors for First8 Memphis, a non-profit committed to universal Pre-K education in Memphis. Alex regularly serves as a guest panelist and conference presenter for national and global audiences. She has been a featured participant in Netflix series Real Talk: Blacks in HR, Hacking HR, Hope Global Forum, Aspen Institute, National League of Cities, SXSW, GovLoop, and International Personnel Management Association. She was also a keynote speaker for the TN Society of Human Resource Management and Public Sector Network. Alex was also recently named on Social Micole’s #HRforall “Most Inclusive HR Influencer List.” Before serving as the CHRO for the City of Memphis, Alex built a notable career as a strategic HR partner for key business leaders, serving in HR management roles for Brightstar Corporation, and industry leaders, including Target Corporation, and Microsoft Corporation. Alex holds a Bachelor’s in Economics from Duke University and a Masters in Human Resources and Industrial Relations from the University of Minnesota.

Social Media LinkedIn: chroalexsmith Twitter and IG: @chroalexsmith www.HRProfessionalsMagazine.com


HR’s Recipe for A Successful Background Screening Process By JULIE HENDERSON

Trained chefs know what makes a successful meal, and HR Pros know what makes a successful background screening process. With both, you need the right tools, the best ingredients, attention to detail, and great presentation.

Relevance and Fairness in Every Bite Using criminal history and credit history to screen for employment is under scrutiny, and various laws have been passed or are in the works in multiple states and cities.

If you miss an ingredient in cooking, your finished product may be flat, dull, and tasteless. Miss an important part of your background screening process, and you could be on the hook for costly and embarrassing litigation, increased turnover, and even fines for not complying with employment laws.

Exclusion of applicants based on conviction records is prohibited unless the employer can show that it considered:

We’ve laid out HR’s recipe for a successful background screening process. Follow it to create a masterpiece!

3) the nature of the position held or sought.

Just Like Fresh Ingredients, Equity, Diversity, and Inclusion Are Essential Diversity and inclusion are required components in today’s highfunctioning workplace. Creativity and ingenuity stem from multiple walks of life and experiences, and a company’s culture grows and thrives when people from different genders, races, ages, and religions participate. Focus on creating policies and providing training to make your organization more diverse and inclusive.

A Healthy Helping of Criminal Records Searches A common misconception is that a single criminal search returns complete information on a person. It does not. Different crimes are held in different places. For example, only pulling a national criminal search can cause you to miss crucial information. Consider using county, federal and national database searches as part of your background screening process. Mix in a Documented Drug Screening Process There are a variety of drug testing tools, from saliva to hair to urine testing, that can assist in uncovering a job seeker’s drug use. Even if you choose to not test for marijuana, you can still rule out other drug use with the right tools. Document when and how your company will use drug testing, and the consequences of a positive result. Use open communication to make sure all the participants in the hiring process know how the process works and follow it. Add a Dash of the Applicant’s Employment History The best way to predict future behavior is to analyze past behavior. If you're not using a third-party background screening company to conduct employment verification searches, you may be missing information on the employee’s performance, honesty, punctuality, and overall motivation. In fact, they could be lying about employment dates, title, or may have never worked there at all! Toss in Some Verified Education Searches If an educational background is essential to a position, don't take the applicant’s claim at face value. They could have easily bought a fake diploma online. Verify all education directly from the institution through a third-party background screening company. Just like salt and pepper, no recipe for background screening is successful without COMPLIANCE! 6


Practice compliance to avoid litigation!

1) the nature and gravity of the offense or offenses 2) the time that has passed since the conviction and/or completion of the sentence The background screening tools you use must be relevant to the specific position. Follow the Recipe Regarding State and Local Laws Several laws regarding salary history questions, credit report usage in the hiring process, and “ban the box” have recently passed in states and cities, with others in the works. This means what is legal in one state may be unlawful in another. Stay abreast of the regulations in the cities and states you do business. Consistency: Good for Mashed Potatoes and for Background Screening Deciding to check an applicant’s background because you don’t like the way they look, or blowing off a background check if the applicant is well dressed and smoothly answers questions, can get you sued. If you’re going to screen one candidate for a position, you need to screen them all in the same manner. Sticking to a documented policy maximizes your chances of success.

Top It Off with Proper Adverse Action Procedures If the background check returns information that makes you not want to hire the person, you can’t just throw away their application and move on. You must notify the applicant, provide a copy of the background report, and provide “A Summary of Your Rights under the Fair Credit Reporting Act.” This part of the process is called “Pre-Adverse Action”. The applicant may contact the background screening company if they want to dispute any information in the background report. If the employment decision is adverse, send a notice of adverse action to the applicant. There needs to be reasonable time (usually at least 5 business days) between the Pre-Adverse Action Letter and the Adverse Action Letter. Formulating and executing the company’s background screening process is an important job. Just like a complicated recipe, it has lots of moving parts, and there’s typically more than one “cook in the kitchen” involved that can derail it. A clearly laid out, written plan that everyone understands is the first step in creating a strong policy that protects your company AND is fair and relevant to the applicants. Keep a watch on it to maintain the policy’s positive and effective influence on your workplace.

Julie Henderson

Vice President of Sales Data Facts, Inc. jhenderson@datafacts.com www.datafacts.com


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Making SHRM Voices Heard:

The A-Team Takes the Field


When asked why advocacy matters to them, SHRM A-Team members are quick to respond. Janet Coplen, senior HR consulting partner and an Oklahoma SHRM chapter president, spoke on behalf of many SRHM members when she said, We must do all we can to help existing companies and encourage the entrepreneurial spirit that this country is all about… we cannot let our voice go unheard.”

During the House and Senate’s August recess, SHRM members from across the country met with policymakers to inform them on how HR professionals have faced the latest workplace challenges, adjusted business practices and provided innovative solutions for the world of work. These engagements included:

• A virtual panel discussion featuring U.S. Representative Norma Torres (D-CA-35) on how HR professionals can promote equitable pay opportunities within their organizations, hosted by the Inland Empire SHRM Chapter;

• An in-person event on workplace policy issues hosted by the Georgia SHRM State Council featuring U.S. Representative Rick Allen (R-GA-12), State Senator Harold Jones (D-22) and State Representative Brian Prince (D-127); and

Policymakers need to hear from HR professionals, and they are listening. The results are strong and clear.

• A bipartisan, bicameral roundtable discussion with local North Carolina SHRM members and congressional staff members focused on workplace issues affecting North Carolina, with five U.S. congressional offices represented at the event: Senators Richard Burr (R-NC) and Thom Tillis (R-NC) and Representatives G.K. Butterfield (D-NC-01), Kathy Manning (D-NC-06) and David Price (D-NC-04).

For example, in 2021, SHRM A-Team members sent nearly 5,500 letters to Congress about key workplace policy issues. These efforts helped influence the reintroduction of legislation that would reduce the healthcare reporting burden on HR professionals, stalled the progress of legislation that would potentially destabilize labormanagement relations and raised member concerns regarding disability and religious accommodation requests directly to Equal Employment Opportunity Commission Chair Charlotte A. Burrows and Commissioner Keith E. Sonderling.

HR advocates play a critical role in advancing SHRM’s efforts to enhance the visibility of the HR profession among policymakers, both in their districts and in Washington, D.C. They are brand ambassadors for SHRM and the HR profession. In 2021, policymakers, policy influencers and the media cited SHRM research nearly 400 times on a wide range of topics, including the administration’s COVID-19 vaccine and testing mandate, pay equity and remote work.

Coplen is a member of SHRM’s Advocacy Team (A-Team), which is composed of nearly 17,000 HR professionals and is the core driver of positive workplace policy in action. SHRM and its more than 300,000 members are uniquely qualified to advocate on workplace policy issues, and their collective work impacts the lives and livelihoods of more than 150 million employees globally. The A-Team exists to provide HR professionals opportunities to directly influence and advance workplace policy. A-Team members are positioned front and center in efforts to advance the interests of the HR profession in the development of public policy by federal and state governments. SHRM is committed to creating better workplaces and a better world through smart policy with bold purpose.



SHRM members are responsible for the lives and livelihoods of more than 150 million workers. Your voice matters, your organizations and your people matter. That’s why it’s critical HR professionals use their experiences to educate and inform local, state and federal legislators,” said Emily M. Dickens, corporate secretary, chief of staff and head of government affairs at SHRM. Dickens leads the External Affairs office that guides, grows and supports the A-Team. “The best voice for our profession is the voice of our members,” said Dickens. “We are committed to elevating the voice of our HR professionals with policymakers.”

What exactly does that work entail? The A-Team brings together SHRM members who actively elevate the voice of HR by connecting with federal and state officials, the men and women who make the laws and regulations that impact work, workers and the workplace.

It’s so rewarding to work with this highly motivated and passionate group of SHRM members,” said Sean McIntosh, who manages SHRM’s member advocacy efforts. “Our HR advocates are leaders of our profession, and I am proud to support them as they meet with members of Congress, governors’ offices and more, all in pursuit of public policies that will create better workplaces and a better world.”

SHRM’s A-Team not only advances the HR profession, but also serves as a benefit of SHRM membership. It is an ongoing series of professional development opportunities to catalyze the knowledge, training and network of SHRM members. It is an investment in their own careers. A-Team members stand out to both their organizations and the HR profession as forward-looking leaders who understand the world of public policy.

Advocacy taught me to tell the story of how policies impacted my workers and workplace and made me more aware of best practices versus mandates and laws. That’s how I became a strategic leader in my organization,” said Pam Bratton, Meador Staffing Services, Inc. vice president. Her comments point to another aspect to advocacy, and that’s HR speaking up on behalf of employees within the workplace.

There is a tremendous amount of opportunity for advocacy in the workplace,” LeLanie McCleskey, HR manager and SHRM member.“ HR must take on the concerns of employees and bring them to the forefront. It is extremely important for employees to see HR proactively listening, responding and seeking ways to make employees feel included in every moment of their workday.”

You can gain the knowledge and skills you need to become a thought leader on workplace policy issues by attending events like SHRM’s Workplace Policy Conference 2022 March 27–29 in Washington D.C. At WPC 2022, you will:

• Hear directly from policy experts on changes impacting work, workers and the workplace.

• Find out what’s next for public policy and how you can shape it for a better workplace and a better world.

• Engage with U.S. senators and representatives to build meaningful and productive relationships.

• Interact with other experienced advocates and policy experts and expand your network.

You can learn more about this premier experience by visiting shrm.org/workplace policy or scan the QR code: At the heart of SHRM’s advocacy efforts and our A-Team, is the foundational belief in elevating the voice of HR through Policy, Not Politics.

Join SHRM’s Advocacy Team by texting ATEAM to 52886 or scan the QR code:



2021 FINALISTS The SHRM Pinnacle Award Program, an annual recognition program honoring the highest achievements in affiliate development, celebrates contributions in three categories: Serving the Professional, Advancing the HR Profession and Enhancing the SHRM Community. Each year, SHRM chapters and state councils are encouraged to apply for a Pinnacle Award, which recognizes innovative projects created and implemented by SHRM affiliates. Here are the 2021 Finalists from the Southeast. For 2021 Winners and more information, please visit the SHRM Pinnacle Award Program website at https://community.shrm.org/vlrc/scholarships-awards/pinnacle

ADVANCING THE HR PROFESSION Small Category: Affiliate Name/State: Fayetteville Area SHRM (North Carolina) Program Title: “The Business Case for DEIA” Description: Sparked by the SHRM Together Forward @Work campaign, Fayetteville Area SHRM decided to focus its 2020 efforts on educating employers and workers on the importance of diversity, equity, inclusion and accessibility (DEIA) in the workforce. The initiative targeted HR professionals, community leaders, community members and employers, reaching over 2,375 participants through in-person and virtual learning, radio broadcasts and streaming. Notably, the chapter exceeded its goal by 85%. In addition, because of the increased visibility of this training program, Fayetteville Area SHRM increased its membership by 78%.



Medium and Large Category: Affiliate Name/State: Big Bend SHRM (Florida) Program Title: “Talent Revealed Series” Description: Throughout 2020 and 2021, Big Bend SHRM established an initiative that highlighted benefits of employing untapped talent groups to increase diversity, equity and inclusion, as well as addressed current talent acquisition demands. Big Bend SHRM hosted two annual “Talent Revealed” programs, centered around supporting individuals with a criminal history, individuals with disabilities, veterans, young professionals and individuals over the age of 50. This increased awareness of the value of an inclusive and diverse workforce among chapter members and the community. Due to its success, Big Bend SHRM was invited to partner with the local Capital City Chamber of Commerce on a public education campaign, “Open to All— Tallahassee,” which focused on encouraging businesses to take a pledge to commit to serving all equally.

ENHANCING THE SHRM COMMUNITY Small Category: Affiliate Name/State: St. Lucie County Human Resources Association (Florida) Program Title: “Best Places to Work” Description: For the past 19 years, St. Lucie County Human Resources Association has sponsored an annual “Best Places to Work” event, which recognizes local employers for best practices in employee culture. Through its careful safety measures and effective marketing, “Best Places to Work” was attended by 150 participants in October 2020. This provided a significant platform for local businesses and civic groups. Due to the success of the event, the St. Lucie Human Resources Association increased its membership numbers.

Medium and Large Category: Affiliate Name/State: Northwest Arkansas Human Resources Association Program Title: “Workforce Inclusion Strategies for the Military Affiliated” Description: The Northwest Arkansas Human Resources Association started the “Workforce Inclusion Strategies for the Military Affiliated” program with the help of a SHRM Foundation Initiative Grant. This initiative helps separating and retiring military officers’ position themselves for careers in the civilian workforce. In 2019, the program expanded, thanks to a second SHRM Foundation Innovation Grant and a partnership with the University of Arkansas Office of Diversity & Inclusion/IDEALS. The program’s expanded area of focus is growing the military client base and educating employers to give them the tools to better recruit, hire and retain military candidates. To date, the objectives of the first SHRM Foundation grant have been met and the work continues to reach the goals of the second SHRM Foundation grant.



RESET: A Leader's Guide to Work in an Age of Upheaval BY SHRM (Society for Human Resource Management) PRESIDENT and CHIEF EXECUTIVE OFFICER JOHNNY C. TAYLOR, JR., SHRM-SCP

HR Professionals Magazine introduces its new series from SHRM (Society for Human Resource Management) President and Chief Executive Officer Johnny C. Taylor, Jr., SHRM-SCP, featuring his book, RESET: A Leader's Guide to Work in an Age of Upheaval.

Greetings. It is my great pleasure to introduce you to Reset. It is inspiring, provocative, and full of wisdom based on lessons of life.

Under Taylor's leadership, SHRM has spurred innovative thought on how HR can empower business to meet the relevant challenges of social upheaval and global crisis.

Simply put, Reset is the most effective guide to reimagining your organization at a time when we need it most.

RESET, grounded in the latest SHRM research, helps professionals reset operations to create a more daring, resilient, and sustainable workplace. Taylor showcases how to craft an innovative and productive company culture, while revolutionizing how leaders find, train, and engage top talent through data-driven insights and decisive experience of the world's largest HR professional organization. "As a CEO, this is the time to be 'extra.' This is the time to recognize the extraordinary circumstances we're living in and seize the un-normal," writes Taylor. "This is your reset, your moment in history to define yourself and your organization." As a sought-after expert on workplace topics, Taylor is known for charting the way forward through both crisis and uncertainty. RESET envisions how to reshape the world of work and unleash untapped potential to strengthen the workforce and accelerate performance. In RESET, Taylor expounds, "'Make constant reset your friend.' Upheaval brings about opportunities to rethink, reset, and restructure your organization." "Johnny Taylor has written a truly valuable book," says Gail J. McGovern, CEO of the American Red Cross. "His insights shine a light on the need for resetting an organization's culture and talent during turbulent times." RESET is now available in hardcover, e-book or audio via major book retailers. All author proceeds benefit the SHRM Foundation—committed to empowering HR as a social force for change. HR Professional Magazine will feature a monthly summary of each chapter, providing practical applications that help businesses thrive now and in the future. 12


FOREWORD An Introduction to RESET: A Leader's Guide to Work in an Age of Upheaval

I’ve known Johnny for many years. He delivers his speeches with such passion and principle. His articles produce something of real use to the reader. You can expect the same from this book.

So what does “reset” mean? The true intent of this book in the world of work turned upside down is to place people with care and with deliberate purpose. “Reset” means developing truly inclusive organizations that leverage differences for growth and innovation. It means reexamining antiquated paradigms and developing policies that support your unique company culture. It means tapping into the hidden superpowers of nontraditional talent pools. It means deepening and diversifying your talent pools and building skills with remote education and distance learning. It means that people matter more than ever. It means leaders must face the hard truth that their biggest challenge isn’t technology, innovation, or even leading—it’s finding, developing, and engaging the right talent to thrive now and in the future. We live in a world of constant upheaval—a concept generally understood as “a period of great change and disorder,” sometimes used in reference to the earth’s crust. But instead of geological shifts creating heretofore nonexistent islands and lakes, Reset details in plain language the tectonic changes underway for work, workers, and workplaces—for all things work—and delivers data-driven practical guidance and solutions. Johnny has a gift for understanding what matters most in the world of work, what levers to pull and how hard, but he is also a gifted storyteller, and perhaps Reset shines brightest in the many captivating stories that bring to life the insights and guidance of the book. In Reset, Johnny challenges, enlightens, and delights, and more than a few times on the same page! Predicated on the hard truth that if leaders don’t get culture right now, they won’t survive the war for talent, much less thrive in the future of work, Reset: • shows executives how to lead through difficult, extraordinary times; • gives HR professionals a deeper understanding of the urgency to cultivate culture and the agency of HR to implement real change; • emboldens leaders and senior managers to harness the power of people for those not formally in HR but charged with the success and growth of employees; and • offers People Managers “big picture” insights and data-driven organizing principles for improving day-to-day management and achieving long-term goals. If you’re a leader, active, aspiring, or otherwise, this is not just the right book at the right time—it is essential reading for building better workplaces and a better world. Happy reading! — Ram Charan, global CEO advisor and bestselling author

SHRM’s Johnny C. Taylor, Jr. Introduces His New Book RESET Available Now

At a pivotal moment for business, RESET outlines how organizations can redesign the workplace for a post-pandemic future The Society for Human Resource Management President (SHRM) and CEO Johnny C. Taylor, Jr., SHRM-SCP, announced his new book RESET: A Leader's Guide to Work in an Age of Upheaval, (PublicAffairs; September 7th, 2021; ISBN: 9781541700437), is available. RESET offers a candid, forward-thinking vision for leaders to reimagine company culture and presents data-driven strategies to make a foundational reset for work, workers and the workplace. Taylor's insight charts the path for businesses facing a new reality and serves as part call to action, part playbook for success to rebuild the modern workforce and meet today's extraordinary challenges. "Your biggest challenge isn't technology, innovation, or even leadership," writes Taylor. "It's finding, hiring and engaging the right talent to thrive now and in the future." As a sought-after expert and voice of all things work, Taylor is known for charting the way forward through both crisis and uncertainty. RESET envisions how to reshape the world of work and unleash untapped potential to strengthen the workforce and accelerate performance. In RESET, Taylor expounds, "We have all heard the old adage 'Never waste a good crisis.' I would offer a friendly amendment: 'Make constant reset your friend.' Upheaval brings about opportunities to rethink, reset, and restructure your organization." Under Taylor's leadership, SHRM has spurred innovative thought on how HR can empower business to meet the relevant challenges of social upheaval and global crisis. "RESET is an indispensable manual for every manager, leader and team member," says Laszlo Bock, CEO of Humu and former chief people officer at Google. "Tackling the thorniest issues of talent and culture, Johnny Taylor provides a clear, practical roadmap for leading your organization into the future." RESET is now available in hardcover, ebook and audio at all major book retailers.

All author proceeds benefit the SHRM Foundation Purchase your copy at RESET.SHRM.ORG



ABOUT THE AUTHOR Johnny C. Taylor, Jr., SHRM-SCP, is President and Chief Executive Officer of SHRM, the Society for Human Resource Management. With over 300,000 members in 165 countries, SHRM is the largest HR professional association in the world, impacting the lives of 115 million workers every day. As a global leader on the future of employment, culture and leadership, Mr. Taylor is a sought-after voice on all matters affecting work, workers and the workplace. He is frequently asked to testify before Congress on critical workforce issues and authors the weekly USA Today column, "Ask HR." Mr. Taylor's career spans over 20 years as a lawyer, human resources executive and CEO in both the not-for-profit and for-profit space. He has held senior and chief executive roles at IAC/Interactive Corp, Viacom's Paramount Pictures, Blockbuster Entertainment Group, the McGuireWoods law firm, and Compass Group USA. Most recently, Mr. Taylor was President and Chief Executive Officer of the Thurgood Marshall College Fund. He was appointed chairman of the President's Advisory Board on Historically Black Colleges and Universities and served as a member of the White House American Workforce Policy Advisory Board during the Trump Administration. He is a Trustee of the University of Miami, Governor of the American Red Cross, and member of the corporate boards of Guild Education and iCIMS. He is licensed to practice law in Florida, Illinois and Washington, D.C. ABOUT SHRM SHRM, the Society for Human Resource Management, creates better workplaces where employers and employees thrive together. As the voice of all things work, workers and the workplace, SHRM is the foremost expert, convener and thought leader on issues impacting today's evolving workplaces. With 300,000+ HR and business executive members in 165 countries, SHRM impacts the lives of more than 115 million workers and families globally. Learn more at SHRM.org and on Twitter @SHRM.




Employee Engagement Ideas for 2022 By BRETT DANIEL

In the new year, it will be essential for organizations to ensure their team members feel a sense of purpose in their work. Don't miss these practical employee engagement ideas.


mployee disengagement is a costly business problem — in more ways than one. Lost productivity, worsening mental health and morale issues are just a few items in a laundry list of workforce-critical problems that arise when employee engagement — the emotional precursor to extraordinary work — is ignored or neglected.

Disengaged employees cost companies between $450 and $550 billion annually, but there's also a devastating mental health cost. According to a Gallup study, actively disengaged employees are nearly twice as likely as engaged employees to report being diagnosed with anxiety and depression. And because disengaged employees are more likely to be absent from work, present employees must often take on any residual workloads, resulting in burnout and decreased morale. In 2022, employee engagement is predicted to become even more critical as employees seek a greater sense of purpose and connection at work. Considering the immense impact that engagement has on employee performance, HR and business leaders should start thinking about ways to improve it to stay ahead of this trend.

What is employee engagement, anyway? Employee engagement is the emotional state of mind that causes people to do their best work, sustainably. Engagement doesn't happen top-down; it occurs locally at the team level and starts with team leaders, who have the most immediate insight into what and how their teams are doing. According to the ADP Research Institute® (ADPRI), employee engagement: • Strongly depends on the engagement of the team leader. • Drives performance and retention. Highly engaged employees sell more and are more likely to stay with an organization. • Starts with trust. Employees who trust their team leader are 14 times more likely to be fully engaged.



You can see why employee engagement is a crucial metric for leaders seeking to retain and get the most out of their people, two increasingly important goals amid the Great Resignation and remote work revolution. Leaders looking to step up their engagement game in 2022 will need to take an active interest in connecting, communicating and building trust with their teammates at the local level. Here are three practical employee engagement ideas leaders can use as part of their new or existing employee engagement strategy: 1. Start having frequent one-on-one check-ins. Frequently checking in with your people can help them feel more engaged at work quickly, and it has the added benefit of building trust. To make check-ins as systematic as possible, explore automated processes that allow employees to regularly complete a brief survey about how their week is going. Questions about what they like and dislike at work and whether they need help or additional resources to do their jobs effectively are most helpful. Then, you can set up a one-on-one meeting with them and use their responses to have a genuine, authentic conversation to better understand their experiences in your workplace. Check-ins should be real and straightforward. Avoid leading with negatives or any work that needs to be done. Instead, lead with experiential questions: 'How are you doing right now? What's going on in your world?' Begin to talk about their survey responses and gently segue into conversations about tasks, priorities and strategies that are or aren't working. This check-in is also an excellent time to give them praise, talk about any growth areas they're interested in, ask about any skills they want to learn or develop and remind them that, no matter what, you're there to help them succeed.

2. Commit to workplace inclusion through connection. In employee performance research, the psychological construct of connection, a vital aspect of the "I" in diversity, equity and inclusion (DE&I), measures people's feelings of being seen, heard and valued for their uniqueness. Connection and employee engagement have a direct relationship, meaning as one increases, so does the other. According to an ADPRI research report, strongly connected employees — again, those who feel they are seen, heard and valued for their uniqueness — are 75 times more likely to be fully engaged than their non-connected counterparts. In addition, strongly connected employees are three times more likely to be fully engaged than employees who say their sense of connection is neutral. Measuring inclusion through connection can give you the insights you need to understand your people's sense of being heard, seen and valued. You can use this information to improve connection and employee engagement, which can be leveraged to bring about real change in workplace inclusion. Check out The ConnectionXPS & Key Findings for more information about reliably measuring connection. 3. Foster a strengths-based mindset. Employees who regularly leverage their strengths feel more engaged and perform better. Every person in your organization has unique strengths waiting to be unlocked, realized, nourished and maximized. Once they know them, they can begin understanding themselves as workplace contributors,

how their strengths impact others, what does and doesn't work for them throughout their workday and how to apply their best qualities to their work. Even better, your knowledge of their strengths can help you align your people's day-to-day work priorities to their strengths, allowing them to utilize their unique abilities as much as possible. For the best results, look for a strengths assessment that gauges your employees' automatic responses to real-world situations and delivers a simple strengths overview that explains their strengths and how they relate to the strengths of others. The strengths assessment should ideally be built into an employee engagement platform that provides you, the leader, with guidance on nourishing those strengths. Ultimately, your people's strengths are where they'll get the most bang for their buck in terms of performance and where you can open the door to improvements in their engagement.

Conclusion Frequent one-on-one check-ins at the local level, committing to inclusion through connection and fostering a strengthsbased mindset are critical to improving employee engagement. If you're interested in stepping up your engagement game next year, you should focus on these growth areas. Consider enlisting the help of an experienced employee engagement expert to get the best results.



Significant Changes To Requirements For Payment Of FLSA Minimum Wage To Tipped Employees


October 28, 2021, the U. S. Department of Labor announced a final rule that sets limits on the amount of time an employer can claim tip credit towards the minimum wage for tipped employees. This regulation replaces a regulation issued in December, 2020. Section 3(m) of the FLSA permits an employer to take a tip credit towards its minimum wage obligations for tipped employees equal to the difference between the required cash wage of at least $2.13 per hour and the federal minimum wage of $7.25. This recently-issued final rule defines when an employer can pay $2.13 per hour and when they are required to pay the tipped employee the full minimum wage of $7.25. In making a determination as to when an employer can and cannot pay a tipped employee $2.13 per hour, an employer must divide a tipped employee’s work duties into three categories: 1. Tip-producing work for which an employee can always be paid $2.13 per hour; 2. Directly supporting work for which an employee can be paid $2.13 per hour provided the amount of time spent in such work is not a substantial amount of time; and 3. Work that is not part of a tipped occupation and which must be compensated at the full minimum wage, currently, $7.25 per hour. Tip-producing work is defined as “all aspects of the work performed by a tipped employee when they are providing service to customers.” This would include taking orders, refilling drink glasses, processing payments and removing dishes or other items from the table during the meal. The Department’s longstanding position has been and continues to be that general food preparation, including salad assembly, is not part of the tipped occupation of a server, and time spent in such activities 16



must be compensated at the full minimum wage, currently $7.25 per hour. However, a server’s tip-producing table service may include some work performed in the kitchen for their customer akin to garnishing plates before they are taken out of the kitchen and served, such as adding dressing to pre-made salads, scooping ice cream to add to a pre-made dessert and placing coffee into the coffee pot for brewing. Directly supporting work is work that does not itself generate tips but that supports the tip-producing work of the tipped occupation because it assists a tipped employee to perform the work for which the employee receives tips. Directly supporting work would include, for example, work performed by a tipped employee such as a server or busser in a restaurant before or after table service, such as rolling silverware, setting tables, and stocking the busser station, which is done in preparation of the tip-producing customer service work. Idle time spent waiting for the arrival of customers is also considered directly supporting work. The time spent in directly supporting work can only be paid at the $2.13 per hour rate if the amount of time spent in such work is not substantial. As defined in these new regulations, an employee has performed directly supporting work for a substantial amount of time if: (a) the employee performs directly supporting work for more than 20% of their time, or (b) the directly supporting work exceeds 30 continuous minutes. Any time in excess of 20% per week or for a continuous period of time that exceeds 30 minutes must be paid for at the full minimum wage rate, currently $7.25 per hour. Work that is not part of the tipped occupation must always be paid for at the full minimum wage. Examples contained in the regulation of such work include preparing food, including salads, cleaning the kitchen or bathrooms, and cleaning the dining room (other than immediately around the individual employee’s workstation). In practical terms there are several specific issues that an employer is probably going to need to address.

The issue that is probably of most importance is with regard to the requirement that any amount of time in excess of 30 continuous minutes spent in tip supporting duties must be compensated at the full minimum wage. Employers routinely have tipped employees report to work before the establishment opens for customers in order to do preparatory work such as rolling silverware, setting tables, etc. If an employee clocks in for work more than 30 minutes before the establishments opens, then all time in excess of 30 minutes will have to be compensated at the full minimum wage, not $2.13 per hour. Additionally, if the tipped employee does not start waiting on customers for a period of time after opening, this time gets added to the time spent in directly supporting work.


Specific examples of scenarios where this comes into play may be helpful. If a server began work at 10:00 am, the restaurant opened for business at 11:00 am, and the server only began waiting on his or her first customer at 11:30 am, the server would have to be paid for 1 hour at $7.25 per hour -- 1.5 hours from clock-in to first customer less the 30 minutes of allowable time. Similarly, if a server’s last customer left at 8:30 pm and the server remained until the restaurant’s closing time of 10:00 pm, the server would have to be paid for 1 hour at $7.25 per hour because the server spent more than 30 minutes in directly supporting duties, as there was no customer to be served. The same scenario might occur in the afternoon if a server spent more than 30 minutes waiting for customers to come in. Again, any idle time waiting for customers that is in excess of 30 continuous minutes will require payment of the minimum wage, not $2.13 per hour.

Employers must also be wary of tipped employees spending any amount of time in work that is not part of the tipped occupation. If, for instance, a server spends 15 minutes making salads or cleaning bathrooms, then all such time must be paid at the full minimum wage, not $2.13 per hour. And, of course, employers must also monitor total weekly hours spent in directly supporting hours versus total hours to ensure that tipped employees do not exceed the 20% tolerance for such duties, as hours exceeding the 20% tolerance must also be compensated at the minimum wage even if the 30 continuous minute requirement is not exceeded. As is evident, these new regulations are going to require employers to be more vigilant in monitoring how tipped employees are spending their time and the amount of time spent in various activities. In all likelihood, there are going to instances where tipped employees will have to be paid the full minimum wage for certain amounts of time, where in the past all of their time would have been paid for at $2.13 per hour. This new and final rule went into effect on December 28, 2021.

Carol R. Merchant, Consultant

Wimberly Lawson Wright Daves & Jones, PLLC Knoxville, Tennessee office cmerchant@wimberlylawson.com

SFBLI.COM www.HRProfessionalsMagazine.com



2020 Enforcement and Litigation Statistics By TAYLOR FLAKE LAWSON


he United States Equal Employment Opportunity Commission (EEOC) released its Enforcement and Litigation Statistics and Agency Financial Report for Fiscal Year (FY) 2020 (ending September 30, 2020) earlier in 2021. FY 2020’s data continued in a similar trend as that of FY 2019, with retaliation being the highest percentage of charges filed and with a continual decrease in the total amount of charges filed. In FY 2020, 67,448 claims of wrongdoing were filed. Note that the percentages add up to more than 100 % because some charges allege multiple bases. The breakdown of the 67,488 charges filed is as follows: Charge

# of Charges Filed

% of all Charges Filed






36.1 %


22, 064



21, 398





National Origin









Equal Pay Act



Genetic Information



By fiscal year end, the EEOC had resolved 70,804 total charges on its rolls, reducing its inventory of pending charges by 3.7%. By resolving 70,804 charges in FY 2020, the EEOC increased its merit factor resolution rate to 17.4 percent, up from 15.6 percent in FY 2019. Merit resolutions refer to charges that are resolved using the agency’s administrative process in favor of the person that filed the charge. The EEOC also began its Mediation Pilot Program during FY 2020. During the pilot program, the EEOC conducted 9,036 mediations. Roughly two-thirds of those mediations (6,272) resulted in successful resolution of claims, suggesting the pilot program was a worthwhile endeavor. The EEOC has implemented an agency-wide mediation program since 1999. Through that program, the EEOC has conducted over 240,000 mediations, with 170,000 of the mediations resulting in a resolution. The Mediation Pilot Program increased the opportunities for parties to resolve charges during an investigation. The Mediation Pilot Program began 18


on July 6, 2020, and expanded the categories of charges eligible for mediation. The Program also incorporated the use of technology, which allowed participants to use video technology to hold virtual mediations. Previously, mediation participants were only able to participate over audio-only conferences. Program participants preferred the additional use of technology, leading many to believe that video mediations will continue. As a result of these resolutions, the EEOC secured $439.2 million for victims of discrimination in the private sector and state and local government workplaces. Of that $439.2 million, $333.2 million was secured through voluntary resolutions like mediation, conciliation, and settlements. $106 million was secured through litigation. During FY 2020, the EEOC secured the highest amount of money for employees who allege discrimination in the past sixteen years.

FY 2020 Compared to 2019 FY 2020 data brought about interesting changes and trends. One trend in particular, which has continued since FY 2016, is a decrease in the total number of charges filed. 67,488 complaints were filed in FY 2020, compared to 72,675 filed in FY 2019. Though the total charges filed decreased, retaliation remained at the top of the list in FY 2019, and FY 2020, accounting for 37,632 charges filed (55.8% of all charges). The number of sex discrimination charges filed also made an interesting change. In FY 2020, there were 21,398 charges filed involving claims of sex discrimination under Title VII. The number of charges filed was a 9% decrease from FY 2019. 1,857 of the charges filed involved discrimination based on LGBT status. Additionally, settlements for sex discrimination claims reached an all-time high of 9.5 percent of claims settled. The category of sex discrimination is a category for employers to give greater attention, given the United States Supreme Court’s ruling in Bostock v. Clayton County, which held that an employer who terminates an employee because they are gay or bisexual violates Title VII of the Civil Rights Act of 1964. This new ruling is expected to impact the number of charges filed and the potential resolutions of the charges filed. Charges filed in the disability category increased significantly, accounting for 36.1 percent of all charges filed in FY 2020 (versus 33.4 percent of total charges in FY 2019). The two highest categories of impairments of those disability claims filed in FY 2020 involved anxiety disorders at 9.8 percent and depression

at 7.7 percent. Job-related stress fueled by the COVID pandemic and fallout from the post-COVID economy may have triggered that increase in disability for emotional disorders. In resolving the charges filed, the EEOC filed 93 merit lawsuits and 13 systemic lawsuits in FY 2020. Merit lawsuits were down in FY 2020 compared to FY 2019, where 144 merit lawsuits were filed. In FY 2019, 17 systemic lawsuits were filed. Again this trend may be attributable to the effects of the COVID pandemic in stalling legal hearings.

Legal Challenges are Coming at HR Professionals from Every Direction

Advice to Employers While a decrease in EEOC charges may suggest greater peace and harmony in the workplace, employers should not be misled by these decreasing EEOC charges filed. The EEOC is still receiving a significant number of claims to result in over 67,000 charges filed in the last year, and the EEOC is still pursuing and obtaining resolution on many of those claims in favor of the complainant. With the ever-evolving COVID pandemic still impacting interactions between management and labor, employers are faced with new concerns from workers who may be more alert to actions that they perceive as discriminatory and/ or retaliatory. The increase in disability-related discrimination charges, with mental health disabilities as the leading types of disabilities claimed, suggests a heightened concern for disputes involving workers and management who are both emotionally and mentally exhausted, particularly from an economy rankled by a COVID shutdown and restart. Employers will need to tactfully balance concerns over discrimination claims against business needs and post-pandemic economic realities. As such, employers should continue to remain diligent in evaluating and implementing anti-retaliation and anti-discrimination policies. To protect against potential EEOC charges, Employers should consider the following: • Evaluate and revise any existing anti-discrimination and antiretaliation policies to ensure that the policies issued are compliant with relevant Federal and State law, especially in light of recent COVID-related litigation and administrative rules. • Carefully review all requests to work remotely and other work requests involving employee health concerns to ensure that the Americans with Disabilities Act interactive process is either not triggered or appropriately addressed.

That’s Why Rainey Kizer Makes Your Business Our Concern As the issues facing HR executives become more frequent, challenging, and complex each year, you need a law firm that provides advice invidualized for you specific needs. This is why you should know the employment law attorneys at Rainey, Kizer, Reviere & Bell, PLC. For over 40 years, our AV-rated firm has advised businesses, non-profit organizations and government agencies on all aspects of employment law. To learn more, please call.



• Fairly evaluate requests to continue working remotely or other alternative work situations to determine whether such continued work processes pose an undue hardship.



• Regularly train managers, supervisors, and other decision-makers on all anti-discrimination and anti-retaliation policies and any new COVID-related legal requirements.



Chattanooga 423.756.3333

Taylor Flake Lawson, Associate Attorney Rainey Kizer Review & Bell PLC tlawson@raineykizer.com www.raineykizer.com

Tennessee does not certify specialists in the area of employment law.




As of this writing, the virtual world is talking about a business owner who fired 900 employees via a Zoom call. The reasoning? Lack of productivity while working remotely. Of course, there are many other theories about this rather extreme example of employee management, but it does seem to be a sign of the turbulence companies find themselves navigating right now. Aside from the coldness of terminating employees en masse via virtual meeting, this is a good example of what happens when performance driven companies (aren’t they all?) are unable to manage their employees by holding them accountable for set standards of productivity. There is certainly an argument to be made about the failure of this particular entity to manage their remote workers. One report said that the employees who were terminated were only averaging 2 hours of actual work per 8 hour work day. If true, where were the managers of these workers? Were they aware of the on-going lack of diligent production? Did the managers address the low performance individually? Did they examine root causes? Since every Business 101 class will tell you that “what gets measured, gets managed”, where were the statisticians and what plans for improvement were implemented before the mass termination of a third of the company’s workforce? Obviously, there are many things we simply do not know about this particular case, but it does remind all of us the importance of METRICS and the application of management principles to these metrics to push a desired business outcome. We simply have to be more deliberate in crafting, measuring and enforcing performance goals so our employees will perform at their highest achievable level. Since it is the start of a New Year, it’s a great time to get back to some basics: • GOAL SETTING o If you haven’t done so already, each employee should have been given measurable and achievable goals. These should have been developed with employee input and communicated clearly – especially HOW the goals will be measured. These goals should also be in keeping with the overall corporate goals so that company MISSION is top of mind for every employee as they work to produce in their position. • PERIODIC CHECK-INS o Once goals are set and communicated, each manager should review the performance metrics on a regular basis. This includes evaluating the sustainability of the goals as the year advances and speaking to each employee regarding their individual achievements (both good and bad). • RECOGNIZING PERFORMANCE o When performance goals are being met, be sure to recognize and reward employees appropriately. When performance goals are not being met, examining causes and discussing ways to improve – including additional training – is a management imperative.

• NO SURPRISES AT EVALUATION o Most organizations still conduct annual performance evaluations for each employee. These are great tools to review what has happened during the previous 12 months and set NEW GOALS for the next year. It is important there be NO SURPRISES at evaluation time. No employee should ever be blindsided by a negative review. Ever. Effective management is predicated on addressing issues as they happen and not waiting until an employee has no chance for improvement before mentioning any short comings. • NO SURPRISE TERMINATIONS o Except for layoffs and RIFs, no employee should be surprised by a termination. Especially a termination based on poor job performance. Employees should have been given ample opportunity to improve their work performance long before termination occurs. When this level of communication is conducted properly, an employee will not be surprised when they are “let go” for lack of production. In our example above, we do not know if employees were genuinely surprised – or if they has just assumed that their reduced production was acceptable to management. Without information, employees will make up their own stories – and very often will come to believe those stories. In the world of data we find ourselves working in today, there are no excuses for springing a poor evaluation or termination on any employee. If metrics are being gathered, metrics should be used. And whether an employee is working on-site or remotely, the management principles are the same. Understanding how performance and success are defined is the key to effective management. Commitment to frequent and meaningful communication is the vehicle through which we build our employees’ individual performances and ultimately how we create corporate success. If our employees are truly viewed as valuable assets, we have to treat them as such. All assets need monitoring, maintenance and care to optimize their performance. Our people are no different. Make 2022 the year of meaningful measurement. And reap the rewards of better engagement.

• ADDRESS ENGAGMENT o Although employee engagement has been discussed to death in the past few years, it is still an important indicator of employee satisfaction in their jobs. Some studies have suggested that employees who are kept informed about their performance - both positively and negatively – are more engaged overall. This is important when unemployment is low and workforce participation is at an all-time low. 20


Janie Warner, SHRM-SCP

Vice President/HR Practice Leader McGriff, Inc.

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LOOKING AHEAD at The New Reality of Work


Welcoming a new year always feels good: a chance to reset direction, renew and refine best practices and even commit to a few resolutions. Given the lessons learned during the pandemic, the new year also feels like life might finally get back to normal. In my opinion, that's no longer a reasonable expectation. There's no going backward, and the lookahead is fraught with uncertainties. HR professionals need to buckle up and be ready for the ride ahead. Reflecting on 2021 First, who could have predicted the depth and breadth of the Great Resignation? COVID gave workers time to be introspective about what they want from their careers. "Life is short" hit many of us hard – even my own dentist, who is only in his early 40s, sold his practice to spend time with his children and help his mother, who is suffering from dementia. Armed with the reinforced knowledge that time is scarce and needs to be appreciated, employees are slower to accept employment and want to work for companies that can provide purpose as an integral part of work. This quest for meaning is exactly why organizations mandating back to office policies and not supporting work from home models are failing their workforces. Companies need to listen to their employees and make changes as to how they work and do business, potentially long term. There are no magic dates that make workers feel safer to be back in a physical facility. Leaders who are generationally stuck in the past of the 'I must see you otherwise, I don't trust that you are working' mindset will quickly become irrelevant. Workers are looking to their employers for balance and flexibility; that is, if you want 'my whole self at work, you need to respect what comprises my whole self.' There have been some bright spots as we look back on 2021. Successful employers recognized that remote or telework was a productive, positive strategy. Compassionate employers were the big winners in 2021. Understanding where an employee was mentally and physically meant employers could design and deliver wellness programs that resonated. The blending of work and home is the new reality of work, and employers that respected this paradigm shift are already ahead as we move into 2022. What's Next for HR Yet, there are significant gaps between what HR can support and what workforces really need. HR needs more resources to support the business in a meaningful way. CEOs always want more; however, they don't necessarily invest in their HR function. That investment needs to include more qualified, competent HR professionals who are given the financial resources to execute strategies effectively. An example of what's still lagging as we hope to move ahead is DEI. We're seeing organizations hire individuals who – while given DEI titles – are woefully unequipped to develop, activate and initiate DEI programs. When it comes to DEI, not only are employees watching, but job candidates are too. Giving DEI mere lip service while the competition puts the budget and resources in place to ensure sustained success means an organization is quickly slipping behind. There are some excellent employers of choice against which to model a DEI program, and those are the ones to watch. As we think about 2022, some existing trends remain strong, and new ones will emerge. Here's the first thing to consider: the pandemic isn't going away, and pandemics might continually hover over us for time to come. That means the drivers of the Great Resignation will remain in place, so it will continue. It has resulted in an employee's market – a smorgasbord of jobs. Organizations need to focus on retention, finding ways to be more flexible, giving more significant salary bumps and bonuses and offering more learning and certification opportunities. 22


Additional Considerations An employee's location should no longer be a determining factor, whether it's a new hire or team leader. There's been a migration from busy city life and office campuses to locations closer to family, friends and activities that support quality of life. The ability to be creative within companies around how to work virtually and ensure a sense of togetherness when we aren't physically together is becoming a sought-after skill. Supply chain issues impact everything from the paint we use in our houses, the food we eat, and the furniture we use and certain jobs – such as truck drivers – need to be incented at a level not previously considered. At the same time, it seems likely that entrepreneurship will explode in 2022, giving way to innovation beyond what we've seen since the Great Recession. According to the Wall Street Journal, the number of unincorporated self-workers rose by 500,000 since the start of the pandemic, up to 9.44 million nationwide. That is the highest total since 2008 and represents a 6% increase in the self-employed, while overall employment remains nearly 3% lower than pre-COVID. What's more, two-thirds of these new businesses aren't expected to hire any employees. In the U.S., it is clear that we need more workers. The immigration system has been upended since COVID began. Entire industries are struggling to hire. Job requisitions remain open for months, not days. Leadership pipelines are dry, and people are unwilling to take promotions without gaining the necessary skills and knowledge. The skills gap has become the skills chasm, and savvy organizations are quickly putting assessments in place and shoring up development programs. If there's anything we've learned from the last two years, it's to expect the unexpected. Going into 2022, there are notable areas of improvement ripe and ready for HR's intervention, but there's also the lingering possibility of new variants and unseen obstacles in the way. Leverage the past in preparing for an uncertain future and focus on what you can control now as we navigate what's next.

Amy Schabacker Dufrane, Ed.D., SPHR, CAE, is CEO of HRCI, the world’s premier credentialing and learning organization for the human resources profession. Before joining HRCI, she spent more than 25 years in HR leadership and teaching roles. She is a member of the Economic Club, serves on the Wall Street Journal CEO Council, is a member of the CEO Roundtable, and is on the board for the Columbia Lighthouse for the Blind. Amy holds a doctorate from The George Washington University, an MBA and MA from Marymount University, and a BS from Hood College.


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New Year, New (HR Trends): Focusing on the Year Ahead in 2022 By ALEXIS YORK

If the past two years taught us anything, it is to expect the unexpected. All we hear is everyone waiting to go back to “normal” but the truth is we have all adapted to a new normal. Through the past two years, people have changed and because of that, organizations have changed. One thing we have all come to somewhat accept since 2020 began is constant disruption in routine that have since become trends that bring challenges. Like all trends, some have come and gone but here is what we anticipate for all HR Professionals as 2022 begins:

Over the past two years HR professionals have had to do an incredible job at anticipating their employees needs and feelings as we approach this rapidly changing professional climate. It is important to focus on your employees and what they feel, want and need. Going into 2022 studies have shown employees: - Are changing their priorities and gaining better work/life balance -Want to feel empowered at work -Want better for themselves and families - Are more concerned about social change and inclusivity

Remote work has become the future and it is here to stay.

- Are no longer afraid of change, and want to grow

With COVID-19 still on the forefront of everyone’s minds, employers have had to get ahead of the challenges as much as possible. Vaccine mandates, leave policies and telework solutions are now becoming permanent work solutions.

We have said it before: “Covid clarity” has made people re-examine their personal and professional priorities and employers have to take note of that as they prepare their retention and recruitment plans.

According to recent Gallup surveys:

All eyes on employee culture as we go into 2022.

- 72% of employees are working remotely - 42% have not been face to face with colleagues since 2020 - 80% of managers find it difficult to manage effectively - 60 % of positions are expected to be solely home- based by 2025 With top CEOs announcing that their employees will be allowed to work fully remote, companies face many challenges and opportunities ahead!

While a main focus is tele-work solutions, another ever-changing trend is the ability to retain and attract talent. While this is by far no “new” trend, it remains an ongoing concern for employers across the globe. As we mentioned in our latest webinar “Battling the Great Resignation” there is a growing number of 4 million people who have left their jobs across the past two years. Companies are struggling to both keep employees and create attractive environments for them to want to stay and refer new talent to join to the team. 24


Employee culture has always been a factor in choosing the right fit for both job prospects and employers but now more than ever, it is under a microscope. Employees need inclusivity and employers need engagement. Employee feedback has shown a culture based on inclusivity and engagement looks like this: -Sharing core values - Establishing trust, compassion and team building - Valuing and caring for people and their emotions

not sitting in classrooms. Prior to COVID-19, flexible hours were considered a special benefit that not every company provided, now it is necessary to recruit talent and keep employees happy. It is mutually beneficial as well as research has shown flexible scheduling can boost productivity and morale while decreasing stress. Give your HR professionals freedom to form creative strategies in regards to flexible scheduling as this can help your reputation as an employer.

2022 needs to focus on Workplace Safety. Gone are the days of only thinking of increased safety measures in just the manufacturing and warehousing industries. For those employers introducing optional or mandatory return- to- work policies, employers must have processes in place to protect the staff’s safety. We must not forget those that never had an option for remote work as well. As some offices return to work for the first time in 2022, make sure the following is in place and properly communicated to employees: -Health surveys -Thorough sanitation protocols -Temperature checks -Contact tracing - Sick leave guidelines Like every new year brings, 2022 holds endless possibilities- but lucky for HR Professionals, also endless challenges, and new hurdles to jump through. We also recognize that these HR trends will continue to evolve and change day-to-day as we adjust to our ever-changing new “normal” both professionally and personally. As you gear up for this new year, our hope is you use these trends as a guide to position your organization for a successful and profitable 2022. Happy New Year from HRO Partners!

- Empowering people with positive feedback -Creating a safe space for employees

Unlimited PTO and Flexible Scheduling are becoming a must-have to stay at companies. Virtual learning for school-aged kids became the norm in 2020. As of October 2021, 77 million students worldwide are still

Alexis York, Client Solutions & Operations Coordinator HRO-Partners ayork@hro-partners.com www.hro-partners.com


At HRO Partners, we've been helping companies and brokers throughout the Southeast transform adversity into opportunity. From expert HR and benefits enrollment to an innovative cloud-based HR Support Center, we deliver the expertise you need, when you need it, at a cost that meets your budget and exceeds your expectations. How can we help you today?

866.822.0123 support@hro-partners.com www.hro-partners.com www.HRProfessionalsMagazine.com


Coaching for


OH MY STARS! Nothing drives me more crazy than unnecessary, workplace drama. You know what I am talking about: people that gossip and spread rumors, continuous complaining and lashing out emotionally, ranting about a perceived wrong, purposely excluding others, taking sides in conflicts, and the list goes on and on! This article contains ten tactics to create a ‘No Drama Zone’ at work. My goal is to give you some valuable resources to inspire emotionally mature behavior at work. Illustrated below is a philosophy Team Foster Strategy LLC discusses with clients daily. We believe that individuals must perform well AND behave well to be a part of our team. Being overly dramatic in the workplace is not emotionally mature behavior. It is an energy and resource drainer!

Here are the 10 tactics and a short paragraph about each: •L ead by Example: If we as HR Professionals lose our heads every time an issue arises, our workforce will follow our lead. We are handing them a ticket to behave dramatically. Manage your emotions at all times. Learn to walk away from gossip circles. We must walk the talk and walk the walk! •C reate a Conflict Manage System: Team Foster Strategy LLC teaches the C.A.L.M. Method. Clarify the issue – Address the issue – Listen well to the other person – Manage the agreed upon plan. This method is a HR Professionals Magazine article in itself. Maybe next time? •B e as transparent as possible: Practice ‘delayed transparency! Yes - - we know that informed employees are engaged employees. And that if we leave any blanks in the message, employees will fill in the blanks with incorrect information. It is very important that we think before we make an announcement. Follow these steps: stop, gather information, verify the information, then communicate to the workforce. •S top repeating the story: Just Don’t Do It! If you hear the gossip and/or rumors, do not repeat the story to anyone else and coach others to do the same. Don’t be a part of the problem. Have you ever heard the old saying, “Lose lips sink ships”? If the HR Team is not trusted to speak the truth, the whole HR function at your organization will be derailed. •H old open conversations about the tough stuff: When possible, do not leave employees hanging on for information. After each leadership team meeting or board meeting, create a cascading message to inform employees what was discussed and decided. We know that not everything can be discussed with the employees. However, most things can be. Hold a Town Hall Meeting to discuss the highly important matters. We want to relay the correct message in a timely manner. We do not want the employees telling the story without the facts. 26



•E ncourage employees to speak only for themselves: No one likes a tattletale. NO ONE! If you are using someone in the company to tattle to you, please stop doing so. You are setting that employee up for failure as a team member. Also, stop an employee immediately when he/she says, “Everyone feels the same way”, “Everyone is saying this”, or “My husband says . . .” Ask the employee to speak in first person and to speak only about what he/she thinks, knows, heard, etc. Any other information is hearsay which is better known as gossip in the workplace. •T ry to understand the ‘Why’: When we take time to understand why the employee needs to act so dramatically, perhaps we can help resolve that issue which, in turn, will stop the dramatic behavior at work. When an employee is seeking attention in an inappropriate manner, there is usually an underlying problem. Find the root cause, do some coaching, then solve the problem. •S hut down the troublemakers within 24 hours: Please promise me you will do this! Please! Deal with the dramatic employees ASAP. Innocent people are hurt badly by gossip and unfounded rumors. I know. I have been. As soon as you are informed regarding a gossiper or an employee acting dramatic, set up a coaching session. Let it be known that dramatic behavior will not be tolerated on your team. •E xtend grace and forgive: As always, our intent must be to help; not to embarrass or berate. We all make mistakes. We all have character flaws and blind spots. Extend grace to the dramatic employee. We must establish a Culture of Second Chances. Doing so will grow goodwill. When goodwill grows, fresh air blows throughout the team. •R eward and recognize appropriate behavior: Do NOT reward and recognize the proverbial ‘squeaky wheel’. These people are often manipulative. Just like giving into a child pitching a temper tantrum, giving attention to an overly dramatic person in the workplace will acerbate the problem. When the dramatic actions are attention getting behaviors, we incentivize poor behavior by giving attention to the issue publicly. So - let’s give so much attention to good behavior that the employees seeking attention via bad acts will want to do good.

Remember – every system is perfectly designed for the results it gets. If you are having trouble with drama in your office, look closely and open-mindedly at how you are handling these incidences. A change needs to be made. I hope one or all of the tactics covered in the article will help you return your office to a productive and enjoyable place to work.

LeeAnn B. Foster | Head Coach Leadership & HR Consultant +1 865-719-1177 mobile www.teamfosterhrstrategy.com

Compliance with Compassion…

… using your head, your heart, and your hands to nurture your employees.

TEAM FOSTER HR STRATEGY provides comprehensive human resources consulting services for small to mid-size businesses. Offering turnkey solutions for clients, Team Foster is committed to compliance with compassion. With 30 years of industry experience, LeeAnn excels at relationship management, conflict resolution, and employee engagement. Team Foster works with you to motivate and manage HR issues from the inside out – supporting your existing human resources team and coaching your staff to solve problems with an integrated approach. Team Foster HR helps you build a collaborative corporate culture to further your business goals and strengthen your performance.

LeeAnn B. Foster | Head Coach Leadership & HR Consultant +1 865-719-1177 mobile WWW.TEAMFOSTERHRSTRATEGY.COM



Who is Responsible for Granting Medical/Religious Accommodations to the COVID-19 Vaccination Mandate? By RICHARD ARNHOLT and MARY LEIGH PIRTLE

As contractors and agencies scramble to comply with the government contractor vaccine mandate, which is currently on hold due to a nationwide injunction issued on December 7, 2021, there seems to be growing confusion over whether contractors or federal agencies are responsible for evaluating whether contractor employees working at government sites are entitled to medical or religious accommodations. In some cases, agencies tell contractors that the government, not the contractor, is responsible for adjudicating accommodation requests. In others, agencies are demanding to see the justification for accommodation determinations and independently evaluate those determinations. This confusion is unfortunate because it is clear that the contractor, not the government, is responsible as the employer. To the extent agencies are usurping contractors’ obligation to make these determinations, the government is increasing the likelihood it will be viewed as a joint employer, needlessly exposing both the government and contractors to potential liability.

Employers are Responsible for Making Accommodation Determinations For decades, employees have had the right to request medical accommodations under the Americans with Disabilities Act (ADA) and religious accommodations under Title VII of the Civil Rights Act of 1964. Those requests have always been submitted to their “employer,” even when those employees work at an off-site location. This is consistent with the Safer Federal Workplace Task Force Guidance that sets forth the COVID-19-related obligations applicable to contractors subject to the new FAR or DFARS clause explains: Q: Who is responsible for determining if a covered contractor employee must be provided an accommodation because of a disability or because of a sincerely held religious belief, practice, or observance? A: A covered contractor may be required to provide an accommodation to contractor employees who communicate to the covered contractor that they are not vaccinated for COVID-19, or that they cannot wear a mask, because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance. A covered contractor should review and consider what, if any, accommodation it must offer. The contractor is responsible for considering, and dispositioning, such requests for accommodations regardless of the covered contractor employee’s place of performance. If the agency that is the party to the covered contract is a “joint employer” for purposes of compliance with the Rehabilitation Act and Title VII of the Civil Rights Act, both the agency and the covered contractor should review and consider what, if any, accommodation they must offer.

Is the Government a Joint Employer?

The Task Force notes that the only time that an agency has a role in an accommodation determination is when an agency is a “joint employer.” That situation is not typical in the government contract context, nor is it desired. If an agency is a joint employer, it means both the government and the contractor would be liable for improper denial of an accommodation request. Although there is no single prevailing test for determining joint-employer status under the ADA or Title VII, the various tests used by the courts analyze factors based on commonlaw agency principles indicating the degree of control, the economic realities, or a combination of factors based on the totality of the circumstances. Further, the flux of the Fair Labor Standards Act joint employer test has been the subject of recent regulatory action, as the Trump administration had issued a final rule effective March 16, 2020, that limited the situations in which an entity could be found to be a joint employer. That rule was rescinded by the Biden administration, originally effective October 5, 2021, reinstating the various individual circuit court tests used by the courts to determine whether a party is a joint employer. 28


The risk that the government will be viewed as a joint employer and therefore become liable to suits by contractor employers was discussed in some detail over a decade ago by Professor Steven Schooner at GW Law in an excellent article published in The Government Contractor. The article discusses the developments that led to the blurring of the line between civil servants and contractor employees and the risks the government becoming a joint employer poses to both the government and contractors. To read the full article, please visit https://scholarship.law.gwu. edu/faculty_publications/121/. To the extent agencies are taking over responsibility for evaluating accommodation requests from contractor employees, which is an employer’s responsibility, they are opening the government up to the risk of suits by contractor employees for employment discrimination, wrongful termination, and failure to accommodate, among other employment actions. As Professor Schooner noted, it also increases the risk for contractors to the extent that an agency views contractors less favorably because their employees are suing the government. Contractors should also keep in mind that as joint employers with the government, they could become liable for the government’s misconduct. For example, suppose the government wrongfully denies a contractor employee’s request to be exempted from the vaccine mandate due to a medical condition. In that case, the employee could bring suit against the contractor.

Key Takeaways for Government Contractors

In sum, allowing agencies to usurp the contractor’s responsibility for making medical or religious accommodation determinations will likely result in government liability that would otherwise not exist and loss of a contractor’s control over a decision for which it will bear responsibility. So if an agency that your company does business with believes that the government, not your company, should adjudicate accommodation requests, politely explain that by taking on that responsibility, they are creating potential government liability that otherwise would not exist. If that does not suffice, it would be prudent to independently evaluate any religious or medical accommodation requests and raise any disagreements with regard to determinations with the contracting officer.

Richard Arnholt, Member Bass, Berry & Sims, PLC rarnholt@bassberry.com www.bassberry.com

Mary Leigh Pirtle, Member

Bass, Berry & Sims, PLC mpirtle@bassberry.com www.bassberry.com

CONGRATULATIONS Dr. Kathy Tuberville, SHRM-SCP, Ed.D Recipient of SHRM-Memphis 2022 HR Excellence Award – HR Educator Dr. Kathy Tuberville, U of M Department of Management faculty and Faculty Director of Fogelman Experiential Learning, has a diverse career background in both higher education and business leadership roles. Through various human resource management and marketing positions within Memphis, Tuberville became interested in the role of developing college students for the workplace and has over 20 years of experience in teaching, experiential learning and working with students in innovative professional development programs. She has worked with numerous organizations to build recruiting programs that yield high impact talent development programs. She is the faculty advisor for the University of Memphis SHRM Student Chapter and is on the faculty of the Management Department in the Fogelman College of Business and Economics where she teaches HR courses and internship experiences for management students.

Congratulations Faith Patrick, SHRM-CP Congratulations to Faith Patrick on passing her SHRM-CP! She is a Human Resources Consultant with PerformancePoint, LLC, who thrives in constructing inclusive work environments that are rich in employee engagement and excellence in human resources. She is a critical thinker that finds success in helping others overcome challenges by providing specific avenues of resolution based on actionable objectives. At PerformancePoint, she has helped develop and perform hotline services in addition to conducting surveys through the Qualtrics software platform for clients. Faith is now stepping out into the field, working side by side with her clients to deliver a powerful brand of service that is changing the face of work environments.





2022 Super Lawyers in Labor and Employment Law

Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. U.S. News – Best Lawyers® “Best Law Firms” has named Ogletree Deakins a “Law Firm of the Year” for 11 consecutive years. In 2022, the publication named Ogletree Deakins its “Law Firm of the Year” in the Employment Law – Management category. Ogletree Deakins has more than 900 attorneys located in 53 offices across the United States and in Europe, Canada, and Mexico. The firm represents a diverse range of clients, including many of the Fortune 50 companies in the U.S. www.ogletree.com



Richard Carrigan is an enthusiastic litigator in state and federal courts as well as before administrative agencies. He tries jury and bench trials in federal districts throughout Alabama, and in the Northern District of Florida as well as state courts from Mobile to Huntsville, from Fayette to Dothan, and many other venues. Richard has tried matters before administrative law judges of the NLRB and the US Department of Labor, and has argued federal appeals to the Fifth Circuit and the Eleventh Circuit. Matters defended include a range of disputes from disparate impact or “pattern and practice” claims affecting thousands of employees, to malicious and fraudulent attacks.

Keith Frazier represents management in the area of labor and employment law, with an emphasis on employment litigation, including collective actions under the FLSA and the ADEA. Frazier has been counsel in over 20 jury trials, and he has experience trying collective actions in federal court before a jury and in an arbitration setting. He has also handled over 40 arbitrations arising under collective bargaining agreements. In 2005, Keith was elected to the Firm’s Board of Directors and served until 2011. He also served a three year term on the Firm’s Board from 2014 until 2017.

T. Scott Kelly provides practical solutions for federal contractors and subcontractors across the United States to comply with the ever-changing affirmative action obligations imposed by doing business with the federal government. He advocates on behalf of his clients in compliance evaluations and administrative enforcement actions triggered by the United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). Kelly assists manufacturing, transportation, construction, food processing, hospitality, healthcare, and financial institutions with creative solutions for preparing, managing, and defending their affirmative action programs and related matters, including jurisdictional analyses and preventative strategies. James A. Patton, Jr. is a shareholder in the Birmingham, Alabama office of Ogletree Deakins and a member of the firm’s Affirmative Action/OFCCP Compliance Practice Group. He focuses his practice on assisting federal contractors and subcontractors to comply with legally-mandated employment and reporting obligations, as well as defending compliance reviews and enforcement proceedings brought by the Office of Federal Contract Compliance Programs (OFCCP) and the United States Department of Labor (USDOL). In addition to focusing on affirmative action compliance, he has spent more than twenty years advising companies on a variety of workplace. James C. Pennington is a founding member of the Birmingham Office of Ogletree Deakins. For more than two decades, he has represented employers in a wide range of labor and employment law matters, including administrative agency charges, federal and state court litigation, union campaigns and collective bargaining. He helps employers avoid workplace disputes by providing management training and developing defensive documentation such as effective employee handbooks, dispute avoidance and resolution policies, and drug and alcohol testing policies and procedures. He is known for helping employers navigate through the intersections of disabilities and leave laws. 32


Jonathan O. Harris is Managing Shareholder of the firm’s Nashville offce. He represents management in a wide variety of employmentrelated matters. In addition to defending single-plaintiff lawsuits, he also represents employers in class and collective actions. He has handled countless EEOC charges and defended employers in lawsuits brought by the EEOC, including matters where the agency has asserted systemic claims on behalf of multiple claimants. He is a frequent speaker on topics relating to all types of employment issues, and he works with clients on preventive strategies to avoid discrimination, retaliation and other employment claims. Timothy A. Palmer is a shareholder who works in both the Nashville and Birmingham offces, and is a founding shareholder of the Birmingham offce. He is an experienced litigator who focuses his practice on both employment litigation and general civil litigation in state and federal courts. His practice focuses on the defense of employment litigation including discrimination claims, defense of personnel actions, and defense of employee benefit disputes. He is a frequent speaker for the Alabama Bar Institute on Continuing Legal Education, where he has lectured on jury selection procedures and employment litigation. William S. Rutchow is a shareholder in the firm’s Nashville offce who currently concentrates his practice in three areas: Workplace Safety and Health, Unfair Competition/Trade Secrets, and Employment Litigation. He also has experience in commercial litigation, personal injury litigation, and NLRB proceedings. Rutchow is a member of the firm's Ethics Committee, the Unfair Competition and Trade Secrets Practice Group, the Workplace Safety Practice Group, the Traditional Labor Law Practice Group and the Litigation Practice Group. He is a frequent author and speaker on employment-related topics. Elizabeth S. Washko is a shareholder in the Nashville offce and co-chair of the firm’s Pay Equity Practice Group. She represents management in a wide variety of employment matters, at the agency level and in litigation. She has experience defending employers in FLSA collective actions, pay discrimination cases (individual plaintiff and class/collective actions) and conducting proactive pay audits and pay equity analyses. She has served as lead counsel in jury trials in state and federal courts. Washko also conducts training on employment issues, drafts and reviews employment policies and agreements, and conducts harassment and other types of investigations for employers.

Atlanta Margaret H. Campbell is a shareholder in the Atlanta offce and has practiced employment, litigation, and labor law at Ogletree since 1981. An all-around labor and employment lawyer, Meg is particularly recognized for her experience in complex class and collective action litigation, whistleblower investigations and litigation including Sarbanes-Oxley and Dodd-Frank cases, appellate practice, and restrictive covenant law. She has litigated single plaintiff, multi-plaintiff, and class and collective action jury and non-jury cases in federal and state courts around the country.

Craig Cleland defends employers in litigation—including class and collective actions—and counsels them in risk management and compliance. He is the former Chair and Co-Chair of the Firm’s Class Action Practice Group. He is also an Adjunct Professor of Law at Georgia State University College of Law, where he teaches Complex Litigation. He has been recognized as a BTI Client Service All-Star three times—one of a small number of employment lawyers in the U.S. who “combine exceptional legal expertise with practical advice, business savvy and creative, effective solutions.”

A problem-solver for employers, Mark Mallery has acted as lead counsel on complex disputes, including Sarbanes-Oxley whistleblower claims before the Office of Administrative Law Judges; pattern and practice and classbased claims prosecuted by the EEOC; collective actions under the Fair Labor Standards Act; and class-based discrimination claims with the U.S. Department of Labor’s Civil Rights Center. Mark has also litigated a variety of “intellectual property” issues, including disputes involving non-compete covenants, trade secrets, non-solicitation of customer and employee agreements, antitrust, confidentiality and proprietary obligations, fiduciary and loyalty duties, and the duty under the antitrust laws to refrain from “predatory hiring.” On the traditional labor side, Mark has represented management in union organizing campaigns, collective bargaining, work stoppages and unfair labor practice charges. As an advisor to employers, Mark has developed employment practices and systems, has written contracts and employment policies and has trained managers on their implementation.

Homer L. Deakins, Jr. was Managing Shareholder of Ogletree from 1985-2000. He has extensive experience in all aspects of labor relations law and has handled some of the largest and most highly publicized union elections in the United States on behalf of employers. This includes representing management in two major union elections in foreign owned automobile assembly plants in the United States, where the company won those elections by large margins. He also has created and participated in highly sophisticated labor relations training programs for management personnel and has a wealth of experience in guiding employers through challenging labor-related issues.

Chris Moore is an advocate for employers and has successfully defended federal and state law claims of race, sex, religious, age and disability discrimination; breach of contract, wrongful termination, retaliation, defamation, harassment, infliction of emotional distress, misrepresentation, interference with contract, whistleblower, employee benefits and abuse of right claims; state and federal wage claims; family and medical leave claims; unfair labor practices; and labor arbitrations. He has also successfully represented employers in disputes involving non-compete and non-solicitation agreements. Chris has also represented management in union organizing campaigns, labor disputes and the defense of unfair labor practice charges. As an advisor, Chris has prepared written employment practices, systems, forms and contracts, and has trained managers on their implementation and administration.

New Orleans Monique Gougisha Doucette practices primarily in the area of employment litigation and represents management in claims arising under various federal and state employment laws. Ms. Doucette has significant experience litigating employment matters in a variety of business sectors such as construction, energy, banking and hospitality. She also has expertise in workplace misconduct, sexual harassment issues and internal investigations. Ms. Doucette regularly conducts customized workplace respect and anti-harassment training for employers.

Raleigh Matt Keen is the Managing Shareholder of Ogletree Deakins. His practice has included employment litigation in state and federal courts, representing clients before the National Labor Relations Board and advising clients on equal employment opportunity and wage and hour issues. He has successfully litigated cases to defense verdicts in employment discrimination cases. He has also litigated matters involving ERISA, non-competition and trade secrets, workplace injuries and other contract and tort claims. He has successfully represented clients in dozens of labor and employment arbitrations. Bob Sar assists employers in all areas of labor and employment law, including discrimination, harassment, retaliation, whistle-blowers, wage and hour, class and collective actions, non-competition and non-disclosure covenants, leaves of absence, employment agreements and policies, union labor matters, and workplace safety. He represents diverse industries including higher education, retail, financial, healthcare, pharmaceutical, professional services, hospitality, manufacturing, sales, software and technology. Bob has extensive experience litigating employment matters in state and federal courts throughout the United States and believes his success results from being available 24/7 to clients and being ready, willing and able to take client’s cases to trial.

Wimberly Lawson Wright Daves & Jones PLLC, with offices throughout Tennessee, has a defense practice focusing primarily on Labor and Employment Law, Workers’ Compensation, Immigration, and GeneralLiability/Commercial-Defense claims on behalf of businesses, management, insurers, and governmental entities. The Firm is a successor to the Labor Law practice of the former Mitchell, Clarke, Pate, Anderson & Wimberly, which was founded in 1948 and known for its connections to “Gone with the Wind” and the Mitchell family. Wimberly Lawson consistently strives to deliver the highest level of legal services in a timely, cost-effective, and ethical manner. The Firm is known for its well-proven approach to preventive maintenance, and for its extensive litigation practice which includes proceedings and trials involving all levels of State and Federal courts and government agencies.

Fredrick R. Baker is a Member in the Cookeville, Tennessee, office of the Firm. His practice includes an emphasis in workers’ compensation defense and employment discrimination, as well as ADA and FMLA compliance. Fred is Editor of the Tennessee Workers’ Compensation Handbook (M. Lee Smith Publishers), and Legislative Co-Chair of Upper Cumberland SHRM. He is Tennessee’s representative for the National Workers’ Compensation Defense Network. Fred has an AV Preeminent® Rating from Martindale-Hubbell, is listed in The Best Lawyers in America® in the field of Workers’ Compensation Law/Employers, was named 2022 LAWYER OF THE YEAR by Best Lawyers for Workers’ Compensation Law/Employers (Nashville Region) and is listed in Mid-South Super Lawyers in the area of Workers’ Compensation. www.HRProfessionalsMagazine.com


Bass, Berry & Sims provides full-service representation to public and private employers ranging from Fortune 500 companies to small locally-owned businesses. Our Labor & Employment attorneys defend clients nationwide, and provide day-to-day counsel, with respect to claims of discrimination, retaliatory discharge, FMLA leave, and whistleblowing, as well as non-compete matters and employee misclassification issues. Our dedicated team of Employee Benefits attorneys advise companies on all facets of employee benefit issues, including ERISA compliance and the design, drafting, implementation, amendment, termination and administration of employee benefit plans.

Tim Garrett helps employers solve complex issues related to all aspects of labor and employment law, providing in depth counseling and developing creative solutions to underlying business issues. He is an experienced trial lawyer, defending employers of all sizes in employment litigation claims across the country. His work has ranged from defending a major university during a significant wage and hour collective action involving thousands of employees to the successful defense of a major healthcare provider in a gender discrimination / retaliation case. In addition, Tim has served as nationwide labor and employment counsel for the largest nonprofit dialysis company in the U.S. Tim has been recognized by Mid-South Super Lawyers as a leading practitioner for 16 consecutive years (2006-2021). David Thornton helps employers deliver retirement, health and welfare benefits to their executives and employees. With more than 30 years of experience, he has developed a diverse practice counseling hundreds of public and private employers and non-profit organizations in drafting, maintaining and administering retirement plans ranging from $1 million to several billion dollars in assets, including many in the $100 million to $500 million asset range. He has deep experience in ESOP transactions, successfully navigating the significant fiduciary duty considerations and tax code requirements involved with these transactions. David has been recognized by Mid-South Super Lawyers as a leading practitioner for 12 consecutive years (2010-2021). Fritz Richter has more than 30 years of experience counseling clients on employee benefit plan design and administration, and compliance with the Internal Revenue Service (IRS), Pension Benefit Guaranty Corporation (PBGC) and Employee Retirement Income Security Act (ERISA). His clients span a wide range of industries, including healthcare, retail and hospitality. Fritz has helped clients navigate hundreds of audits; submitted numerous IRS, Department of Labor and PBGC filings; and crafted a wide variety of employee benefit plan documents – all focused on helping employers navigate complex government regulation. Fritz has been recognized by Mid-South Super Lawyers as a leading practitioner for 10 consecutive years (2012-2021).

GO CONFIDENTLY. Bass, Berry & Sims listens and responds with creative yet practical counsel. We stay on pace with the complex and rapidly evolving employment landscape, connecting your dynamic human resources needs to proactive strategies. Relationships, reliability, and respect – at the center of our Labor & Employment and Employee Benefits practices.

Stay up-to-date on the latest in HR Law. Visit our blog at bassberryhrlawtalk.com.

Centered to deliver. bassberry.com



At Littler, we understand that workplace issues can’t wait. With access to more than 1,600 employment attorneys in more than 100 offices around the world, our clients don’t have to. We aim to go beyond best practices, creating solutions that help clients navigate a complex business world. What’s distinct about our approach? With deep experience and resources that are local, everywhere, we are fully focused on your business. With a diverse team of the brightest minds, we foster a culture that celebrates original thinking. And with powerful proprietary technology, we disrupt the status quo – delivering groundbreaking innovation that prepares employers not just for what’s happening today, but for what’s likely to happen tomorrow. For over 75 years, our firm has harnessed these strengths to offer fresh perspectives on each matter we advise, litigate, mediate, and negotiate. Because at Littler, we’re fueled by ingenuity and inspired by you.



Office Managing Shareholder and Traditional Labor Practice Group Co-Chair, Tanja L. Thompson dedicates her practice to representing companies in traditional labor law. National Fortune 500 companies as well as local employers across various industries, such as manufacturing and healthcare, seek her expertise in remaining union-free and in managing their union-represented workplaces. Union-free efforts include campaigns, comprehensive union vulnerability assessments, human relations audits, communication strategies, and positive employee relations training.

Accomplished litigator and advisor Stephen D. Dellinger counsels on intricate workplace issues involving a broad spectrum of federal and state statutory and common laws that affect not only employees but a company’s business goals. His sophisticated guidance directs executives and managers toward legally compliant human relations actions and policies. When a disagreement escalates into litigation, however, Steve develops targeted and compelling defensive strategies, recognizing that complicated cases often depend on reassessing traditional approaches. Whether in a deposition, taking testimony in court or arguing in front of a judge, he maintains a confident flexibility and resilience that works to the advantage of his clients.

Jonathan E. Kaplan has devoted his entire career to representing management clients exclusively in all areas of labor relations, employment law, and human resources management. His practice spans litigation, training, and consulting, in which he has handled matters in more than 40 states and Canada. Jonathan practices extensively before the NLRB across the country, and also has been admitted specially to practice before the state courts in California, Florida, Illinois, Indiana, Kentucky, Michigan, New York, and Ohio.

Jerry H. Walters Jr. has practiced management-side employment and labor law exclusively since 1997 and provides litigation and counseling services on a wide variety of employment and labor issues. He represents employers and management in employment discrimination, harassment, retaliation, and wrongful discharge cases, among others. Jerry also has special expertise in defending collective and class actions involving FLSA and state wage and hour claims, as well as traditional labor matters. He has successfully handled cases before federal and state courts, the Equal Employment Opportunity Commission, the United States Department of Labor, and other administrative agencies.

Birmingham Paul E. Prather represents management exclusively in all areas of employment and labor relations, including state and federal employment litigation and in administrative proceedings before the National Labor Relations Board, the Equal Employment Opportunity Commission and the United States Department of Labor.

Lexington LaToi D. Mayo has advised, counseled and defended employers in regard to labor and employment matters for over 20 years. Most recently, LaToi has developed extensive skills in enforcing employment related arbitration agreements, defending and managing wage and hour class actions and advising employers on state and federal wage and hour compliance issues. She also routinely assists employers with respect to diversity, discrimination, and leave issues. She is the co-chair of Littler’s Healthcare Industry Group and she works frequently with hospitality and service related groups, manufacturers, health care facilities, financial institutions and local city governments.

Janell Ahnert's practice encompasses all facets of employment law, specifically in representation of management in both employment counseling and employment litigation. Janell handles a variety of employment law matters in state and federal courts and has broad experience defending employers accused of harassment and discrimination in federal court. She has litigation and counseling experience in numerous areas of employment law, including issues involving wage and hour claims, harassment, discrimination, and whistleblowing. Charles A. Powell has represented employers throughout the Southeast against employment discrimination and harassment, non-competition and wage and hour litigation lawsuits for more than 23 years. He has a strong record of successfully defending employers against various employment and labor law claims.

Office Managing Shareholder Jay D. St. Clair has represented clients in employment and labor law matters for more than 30 years, including discrimination, harassment and retaliation claims; labor management relations; wage and hour regulations; and occupational safety and health.



Members of the HRO Partners Team

(L-R) Kara Doyle, Holly DeVille, Lisa McNutt, Austin Baker, Bianca Scott, Alexis York, Ramone Lloyd, Tisch McDaniel


Holiday Breakfast DECEMBER 9, 2021 Owen Brennan’s in Memphis





THE GOLD STANDARD FOR PROFESSIONAL DEVELOPMENT As the world of work evolves before our eyes, we must continue to provide our workforces the tools, technology and infrastructure to do their very best work. Reskill to rethink your strategies with an upcoming SHRM Educational offering.





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Articles inside


page 35

Bass Berry Sims

page 34

Wimberly Lawson

page 33

Coaching for NO Drama

pages 26-27

Ogletree Deakins

page 32

New Year, New (HR Trends): Focusing on the Year Ahead in 2022

pages 24-25

Defining Performance: Metrics Matter

page 20

Who is Responsible for Granting Medical/Religious Accommodations to the COVID-19 Vaccine Mandate?

page 28

Looking Ahead at the Reality of Work

pages 22-23

Evaluation of EEOC’s 2020 Enforcement and Litigation Statistics

pages 18-19

Living Your Best Life Means Having Life Insurance

page 17

Order Your Copy of RESET by Johnny C. Taylor, Jr.

page 13

Significant Changes to Requirements for Payment of FLSA Minimum Wage to Tipped Employees

page 16

RESET: A Leader’s Guide to Work in an Age of Upheaval

page 12

note from the editor

page 4

HR’s Recipe for a Successful Background Screening Process.

page 6

Top 3 Employee Engagement Ideas for 2022

pages 14-15

SHRM 2021 Pinnacle Award

pages 10-11
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