March 2022 HR Professionals Magazine

Page 1

Volume 12 : Issue 3


Rising Stars in Labor and

Employment Law Book Look –

Cultivating Culture by Brad Federman

3rd Installment from Johnny C. Taylor, Jr.’s New Book, 2022 New

Compliance Considerations

Keep Popping Up

Who Has Your Employee Data?




Jim Link

International Presence. Local Knowledge. 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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of all U.S. states had employment law changes as of January 1.

Features 4 March note from the editor

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

The Thompson HR Firm, LLC Art Direction

Park Avenue Design Contributing Writers Rob Binkley Shawn Boyer Cat Distasio Amy Dufrane Ashley Dugger Brad Federman Dennis Hackemeyer Jay Inman Jim Trujillo Chris Macali Tim McConnell Susan McCullah Johnny C. Taylor, Jr. Kimberly Veirs Scott Weiss

Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©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.

6 Profile: Announcing SHRM’s New CHRO, Jim Link 8 A Better Future Build on Value-Based Leadership 10 March Excerpt from SHRM CEO Johnny C. Taylor, Jr.’s New Book, RESET 11 Order Your Copy of RESET by Johnny C. Taylor, Jr. Today! 14 Book Look: Cultivating Culture: 101 Ways to Foster Engagement in 15 Minutes or Less by Brad Federman 30 Congratulations to These Newly Certified HR Professionals!

Talent Management and Recruiting 12 How to Select the Right HRO Partner 20 Hybrid Working Models: What is Right for Your Business? 22 Who Has Your Employee Data? 38 Meeting Training Objectives in the New World Order of 2022 40 As Staffing Shortages Continue, Retention of Frontline Workers is Vital 41 White Paper: Employee Communications Best Practices 42 Is Your Workplace Safe and Healthy Enough to Retain and Attract New Talent? 45 Priceless Background Screening Advice . . . Straight from the Experts 47 Are You Up to Date on Your State’s Marijuana Laws?

Employment Law 16 Tennessee Workers’ Compensation Law and Practice Handbook 18 Best Practices for Proactively Managing Workplace Issues and Minimizing the Risk of Employment-Related Litigation 26 Kentucky Class and Collective Action Update 36 President Biden’s EEOC Steps Up Lawsuits

Top Educational Programs for HR Professionals 5 Emory University Legal Training for HR Professionals 17 The Gold Standard for Professional Development 23 Save 20% on HRCI Courses in 2022 27 Affordable Online SHRM-CP | SHRM-SCP Certification Exam Prep Class Begins April 11 34 University of Illinois School of Labor & Employment Relations

2022 Rising Stars in Labor and Employment Law

35 New People Manager Qualification – SHRM’s PMQ Training 48 WGU Tennessee HR Program Fully Aligned with SHRM Curriculum

32 Bass Berry & Sims

Industry News

33 Rainey Kizer Littler

7 SHRM Workplace Policy Conference March 27-29 in Washington, D.C.

Employee Benefits

9 SHRM Talent Conference April 10-13 in Denver

24 2022 New Compliance Considerations Keep Popping Up 25 Transform Your Employee Benefits from an Expense to a Competitive Advantage 28 Pep Talk for 401(k) Administrators 29 How Competitive is Your Company’s Retirement Plan?

37 SHRM Employment Law & Compliance Conference March 28-30 in Washington, D.C. 44 SHRM Annual Conference June 12-15 in New Orleans April issue features Talent Management and Recruiting Plus Updates on Employment Law and Employee Benefits and the Latest on HR Management Deadline to reserve space March 15


a note from the editor

We are excited to present the 2022 Rising Stars in Labor and Employment Law in our March issue. These outstanding young attorneys are under 40 and have been practicing in their respective firms for 10 years or less. They have received recognition from Super Lawyers or Chambers USA or have been recognized for outstanding contributions to their firm during the pandemic. Please take the time to congratulate those you know who have made this prestigious list. How exciting to announce the new SHRM CHRO, Jim Link, in our March issue! You will love reading about Jim’s impressive career prior to joining SHRM. Jim’s 30-year career includes CHRO for Randstad North America. He is a board member of the Society of Human Resource Management (SHRM) Foundation and a board member of the Federal Reserve Bank of Atlanta. Jim is also certified as a SHRM Senior Certified Professional (SHRM-SCP). Read all the exciting details about Jim on Page 6.

If you are not currently certified, I want to personally invite you to join our upcoming SHRM certification class. I am extremely proud of our online HR certification classes. The pass rate for our most recent SHRM class was 75%. It is so rewarding to see these outstanding HR professionals receive their certifications! The difference in our certification classes and other classes is that I stay with you until you pass. Our classes are also guaranteed – if you do not pass, you may take our next class at no additional charge. Our next SHRM CP | SCP certification class begins April 11. Visit our website at www.hrprofessionalsmagazine to register. Be sure to check out our exciting webinars for March on Page 8-9. We have six webinars in March with opportunities to earn 12 recertification credits! HRCI business credits and SHRM credits are pending. My personal complimentary webinar sponsored by Data Facts will be March 31.

Get Certified in 2022! @cythomps on Twitter

(L-R) Wilfred Busby, St. Jude/ALSAC; Tiyana Childres-Pointer; Stephanie Hendrix, AutoZone, and Daniel Tate, Milwaukee Tools. This distinguished panel discussed, “Developing Tomorrow’s Future HR Leaders – Are we on track?”


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on the cover


Chief Human Resources Officer, SHRM Jim’s areas of personal expertise include board relations, talent acquisition management, executive identification and development, internal innovation, and driving rapid scalability through both organic and inorganic, often complex, growth opportunities.

SHRM is excited to welcome Jim Link as the Chief Human Resources Officer. Jim was previously CHRO for Randstad North America. During Jim’s tenure at Randstad, he has led a progressive human resources transformation toward an inclusive culture of service, transparency, intrapreneurship, and business value creation. He has redefined performance management, instilled instantaneous feedback and reward, and established innovation as a core business competency. His teams are at the forefront of global human capital thought leadership with particular focus on generational capabilities, leadership for the digital age, and the incorporation of AI into employee work systems. Jim’s 30-year career includes roles of increasing responsibility and complexity while always focused on maximizing employee capability, linking employee success to business success, and building award- winning, equitable business cultures. As a recognized thought leader in human capability and the future of work, Jim is sought-after commentator with the national and international press, features widely on the lecture and speaker circuit, and consults with leaders, companies, and boards of directors around the world on matters related to the workplace. Additionally, he is in his tenth year as an adjunct professor teaching Human Resources Strategy in the MBA program at the Poznan School of Economics in Poznan, Poland. While serving on boards of advisors for several early-stage companies, Jim is a board member of the Society of Human Resource Management (SHRM) Foundation and a board member of the Federal Reserve Bank of Atlanta Human Capital Advisory Council and is active with a number of charitable organizations in his community. He is certified as a SHRM Senior Certified Professional (SHRM-SCP). 



4 Hear directly from policy experts on changes impacting the workplace. 4 Find out what’s next for public policy and how you can shape it. 4 Build relationships with U.S. senators and representatives. 4 Network with your peers.

A Better Future Built on Value-Based Leadership



isit the business section of any bookstore or library, and you’re likely to find dozens and dozens of books about management and leadership. After all, leadership is one of the most-studied social phenomena in history, and differing styles and preferences are evident even in the ancient world. Today, neuroscience has its hat in the ring, with recent discoveries about the human psyche suggesting that ‘value-based leadership’ is one of the best ways to optimize job satisfaction and personal fulfillment, while also maintaining productivity. Put simply, ‘value-based leadership’ (VBL) centers humility, servanthood, and authenticity in leadership roles. This empowers employees, contributes to the professional development of the leader themselves, and well-positions the organization for longevity and growth. In other words, rather than leadership being merely transactional (or worse, draconian), VBL is humble leadership that comes alongside others, lives out the values of an organization, and encourages employees on the road to leadership themselves. This creates work environments that are more collaborative, where workers are more fulfilled, and where people have the support and resources that they need to be creative. And of course, employees who are valued in this way, with leaders who embody these principles, are likely to stay at an organization longer on average, and likely to work more efficiently. So, given that VBL is an effective form of leadership, the real question is how leaders actually live this form of management. People-leaders in workplaces not only need to harbor these ideas and values personally, but also apply them to the day-to-day operations of their organization. They key is shifting the focus of the organization on a fundamental level to create sustainable improvements. The first step in this process is to change perceptions and experiences in the workplace, which in turn produces a different mindset in leaders and employees alike. From there, decisions and actions follow, producing results. This is how all organizational change happens—in order: perception/experience, mindset, decision, action, results—and so leaders need to work at the experiential level to foster an environment of mutuality, respect and creativity, thereby helping to create the conditions necessary for a shift in overall mindset and attitude, ultimately producing results. 8

Some of these principles are derived from Dr. Daniel M. Cable’s 2018 book, “Alive at Work: The Neuroscience of Helping Your People Love What They Do.” Perhaps one of the best practical summaries of VBL comes from Cable, in a blog post from the same year in which he summarizes some of his work. He talks about more than leadership, but on the topic, he explains VBL in this way:

“ Work is managed by servant leaders, who help shape the vision, and then try to learn from employees and help them accomplish their goals rather than emphasizing hierarchy. When leaders express feelings of uncertainty and humility, they end up encouraging a learning mindset in others, which increases experimentation and innovation.” This is one of a handful of characteristics that Cable identifies as essential for firms to develop a competitive advantage. But more than creating a financially successful company or organization, VBL is about preferring some risk and uncertainty to stale authoritarianism, driven by quantitative results and safety in traditional management structures. It’s about engaging with employees and being proactive, rather than passive or impersonal. Most of all, VBL cultivates an environment of collaboration, experimentation, curiosity and creativity instead of anxiety, fear and boredom. In an era of increased attrition, the critical work of engaging employees and creating job satisfaction has never been more important for leaders. We can start now, as leaders, in helping to foster these environments. It will take some “undoing” of the old ways of thinking about management and leadership, but in the end, it will be better for us, our people, our firms and ultimately our collective future if we center value. Furthermore, VBL must be more than lip service. Employees need to see their leaders personifying their values, and not just saying the valuebased culture is important to the organization, in order for meaningful change to occur.

Ashley Dugger, WGU Program Chair

Human Resource Management

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Earn up to 25 professional development credits (PDCs). *Source: Great Resignation: An Analysis of the Employee Experience, SHRM, 2022.

Businesses must evolve in these challenging times, and HR—the profession and the people—is where innovation MUST happen. THE HUMAN IN HUMAN RESOURCES A crisis is a pressure test of imagination. Some companies go into the bunker, planning to simply weather difficult times by protecting the status quo—play it safe, keep your head down. And then there are the visionaries, the leaders and organizations that look at the challenges emerging from a crisis as an opportunity to innovate. Big problems require outsized thinking and nimble responses, which can lead to extraordinary outcomes. CEOs have to understand these reactions, have to listen, be aware, be focused on what they can do. Can they be more accessible in a crisis? Can they communicate more effectively? There are things you can control. What you can do is assure your workers that you are doing everything possible to provide stability amid the uncertainty.

do that: provide a platform where people can share ideas; be willing to hear the hard truths while pressure-testing those ideas, and willing to go through the process and return with a refined idea – that’s living ideation. Achieving the desired degree of challenge and innovation in your corporate culture starts with a process of self-reflection. Pressure-test yourself. What have I done to implement this culture? You have to look inside for answers.



Innovation is everywhere, even in places that might seem too big or too old to change. If you look at IBM, an iconic legacy brand headquartered in the town of Armonk, New York, not Silicon Valley, you’ll see how they evolved from a hardware business into a service-industry goliath.

You might not think of innovation as something that happens regularly in HR. But it does, and it should. Working with the C-suite and leadership, there are three areas where HR can innovate and test those innovations: the work, the worker, and the workplace. We define a worker, whether it’s a gig worker or a fifty-year employee. This is where the muscle behind innovation lives—people.

Innovation is not only necessary to emerge from a crisis, but also the investment in ideas is critical in confronting one. Amid IBM’s transition, it was still all about people. And it was all about the profession. There was no other way for IBM to innovate, to evolve and ultimately survive, except through people and a leader who had been part of its “Think” culture and carried that model into a bright future.

But there is a price to pay if your People Managers are miscast and out of sync with your culture of innovation. The cost of turnover? About $223 billion over a five-year period, according to SHRM’s research. Core values innovators have in common include: • Curiosity and a natural ability to question the status quo • Risk-taking and a willingness to learn from failure • Openness—organizations with strong silos tend to be less innovative. • Patience, tenacity, and the sense of giving an idea a chance to grow. • Trust, underpinning the other values. CREATING A CHALLENGE CULTURE You have to create the environment for innovation. In my estimation, there are really three things that illustrate what it means to 10

LEADERSHIP LESSON HR is often viewed as a cost center with limited business acumen. Whether we have called for automating HR functions or putting them in areas overseen by others, HR continues to sit as an untapped human engine for the organization. Specifically, we have seen during recent reset moments that HR is the true home of innovation within the modern organization. This is because HR leaders now have the responsibility to offer the kind of employee experience that attracts and retains top talent. More still, HR is now the driver of the innovative employee experience, with customized levels of employment and a broad array of potential work settings. Your CHRO has become the primary cog in maximizing operational efficiency and driving talent acquisition for new business lines. This has never been the case until today. For this reason, you as a leader should engage HR with ingenuity and innovation as the primary objective. Businesses must evolve in these challenging times, and HR— the profession and the people— is where innovation MUST happen. Here are some key questions to consider making part of your reset repertoire: • Do I actually care about new ideas?


• Do the new ideas have to be mine?

What’s your first move to make innovation a priority? It all starts with everyone buying into the greater vision and establishing the right culture. If people don’t feel like innovation would be well received, they’ll play it safe. If your compensation plan doesn’t reward people who take risks—even new ideas that don’t work out—then guess what? You’re just treading in the same-old, same-old waters.

• Do I see connectivity where others don’t?

The most forward-thinking CEOs and the most effective CHROs: they’re the ones who, at a time of crisis, will look at the challenge in front of them and the competition around them, and approach the problem from a different angle. Leaders must reflect on their own ideas surrounding innovation. It’s just helpful to stop every once in a while and ask yourself whether you’re fully engaged in what innovation means.

• Do I have the right people for innovation? Why do I keep getting the same talent ideas in a different package? • Do I hire tinkerers? • Where does innovation really live in my organization? • What does innovation contribute to our reset moments and vice versa? • Do I have the right CHRO for unlocking innovation potential? Adapted from Chapter 2 of Reset: A Leader’s Guide to Work in an Age of Upheaval (PublicAffairs), by Johnny C. Taylor, Jr., President and CEO of the Society for Human Resource Management (SHRM)

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



A crisis is a pressure test of imagination. Some companies go into the bunker, planning to lay it safe, keep your head down. And then there are the visionaries, the leaders and organizations that look at the

Johnny C. Taylor, Jr., SHRM-SCP, is President and cer 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

dinary outcomes.

There are things you can control. What you can do is assure your workers that you are doing everything possible to provide stability amid the uncertainty. • You might not think of innovation as something that happens regularly in HR. But it does, and it should. • You have to create the environment for innovation and there are three things that

• • •

willing to hear the hard truths while pressure-testing those ideas, and willing to go . Innovation is not only necessary to emerge from a crisis, but also the investment in ideas is critical in confronting one. It all starts with everyone buying into the greater vision and establishing the right culture. If people don’t feel like innovation would be well received, they’ll play it safe. HR continues to be an untapped human engine for the organization, but we have seen from recent reset moments that HR is the true home of innovation within the modern organization. Achieving the desired degree of challenge and innovation in your corporate culture starts with a process of self-reflection. Pressure-test yourself. Ask yourself, What have I done to implement this culture? You have to look inside for answers.

Businesses must evolve in these challenging times, and HR — the profession and the people — is where innovation MUST happen.


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 t space. He has held senior and chief executive roles at IAC/Interactive Corp, Viacom's Paramount Pictures, Blockbuster Entertainment Group, the McGuireWoods law rm, and Compass Group USA. Most recently, Mr. T urgood 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 and on Twitter @SHRM.


how to select the right hro partner Although the benefits of working with an outsourced versus an in-house HR team are many, finding the right partner for you and your organization is absolutely critical. The most productive, efficient, and effective HRO relationships are those that closely align with both your current needs and future goals. To help assess your HRO options, we’ve developed a “Top 10” list of traits to seek during your evaluation process:

Diversity of services Successful track record Combination of online and in-person resources Experience scaling services for growth Focus on compliance Relationships with multiple benefits providers Simplifies transactional HR processes Clear and consistent communication processes Bespoke solution offerings Timely response to information requests


ABOUT HRO PARTNERS YOUR TEAM IS YOUR GREATEST ASSET. WE MAKE SURE YOU TREAT THEM THAT WAY. At HRO Partners, we empower small and medium-sized businesses to deliver comprehensive HR and benefits services to employees without the overhead and expense. From our constantly updated online HR knowledge base to our complete slate of proven consulting services, HRO Partners delivers a truly custom experience designed to address your unique organizational and operational needs. We deliver the expertise you need, when you need it. As a result, you’ll spend less time on employee and compliance-related issues, and more time focusing on driving your team – and your business – to the next level of success.

We've been serving the small- and mid-sized business community since our inception and we continue to deliver new products and services, each aimed at enhancing your value to the clients and employees they support. With more than 150 businesses, serving over 50,000 employees, and nearly $300 million in enrollment savings to-date, our experience and our track record is second to none. Let us get to work for you.

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Cultivating Culture:

101 Ways to Foster Engagement in 15 Minutes or Less By CYNTHIA Y. THOMPSON

I can’t think of a better time for the HR community to have access to a book about cultivating culture! Due to hybrid work prevalent in today’s workplace and the many employees working from home due to the pandemic, companies are experiencing a “culture crisis.” How can organizations maintain their culture remotely? Daphne

With each chapter, he begins with the purpose, the time requirement, and materials needed. Brad provides specific discussions to help you facilitate your team using key questions to ask. He also provides key points and tips and examples that you can apply to your own situation for each of these eight categories.

Large, CEO of Data Facts, Inc. says, “our values and culture

What are the strategic benefits?

are the glue that holds us together.” She believes this

Learning to cultivate culture in the eight transformative areas will prepare your leaders to better communicate your organization’s mission, vision, core values and ethics to your employees. The first chapter discusses leading intentionally, and specifically how to “walk the talk.” When your leaders proactively role-model the behaviors you want to see, the company performance will be enhanced as team harmony improves and the desire to better serve your customers increases.

book is the nudge we need to work on our core values and culture. I couldn’t agree more! Cultivating Culture: 101 Ways to Foster Engagement in 15 minutes or Less by Brad Federman is a timely and relevant guide on how to enhance engagement that every leader should read – and implement.

Why should you read this book? Brad’s book includes over 100 ways to engage your team. It is the “how to” book on cultivating culture in eight key areas including: 1 Leadership 2 Communication 3 Talent development 4 Inclusion 5 Team harmony 6 Solution seeking 7 Safety 8 Serving your customers


One of my favorite chapters is “Generating Inclusion.” I think we all agree on the importance of DEI in the workplace today. But many people do not understand the concept, and certainly do not know how to lead a team discussion on this topic. Brad discusses how to develop equitable workplaces and provides key points and questions and leads the facilitator through a series of steps: 1 Develop a spirit of inclusion. 2 Treat people fairly and equitably. 3 Recognize the values and differences in people. 4 Show respect for others. Each of the eight chapters leads us through the most important factors impacting the culture in our organizations. He provides questions and answers. The reader learns to lead and facilitate to make real change in their organization’s culture.

How will this book change your life?

About the author:

Not only does this book contain information to transform the culture in your organization, but it also provides a way to use current technology as a means to cultivate your culture and enhance employee engagement. You may obtain a mobile companion that can provide you with more impactful and meaningful activities that are customized to your own culture and values. How do you obtain this mobile companion? You must read the book to find out!

Brad Federman is an accomplished author, speaker, consultant, and leadership coach with over 25 years of experience in leadership, creating employee and customer experiences, building resilient relationships, and promoting collaborative cultures. His background also includes sales, marketing, product development, and operations. He sees his role as “inspiring others to discover and live their ‘possible.’”

I highly recommend this book to anyone who is currently a leader or would like to become a leader. Don’t worry if you are not a corporate trainer and have no experience in leadership and development. This book will guide you through each step providing both questions and answers to help you facilitate topics that will cultivate the culture you desire for your organization.

Who Will Benefit Most from This Book?








Human Resource Professionals, Corporate Trainers, Team Leaders, Supervisors and Managers

As the founder of PerfomancePoint, LLC, Brad has worked as a leadership coach, a facilitator, an executive and entrepreneur with organizations and their executive leadership in multiple industries. Brad’s works include Employee Engagement: A Roadmap for Creating Profits, Optimizing Performance, and Increasing Loyalty; Jump Start: 50 Ways to Engage Your Team; and as a contributing author, 101 Ways to Enhance Your Career, Cultivating Culture: 101 Ways to Foster Engagement in 15 Minutes or Less. In addition, Brad has also been interviewed by Fox Business News’s Stossel Show and for articles in numerous publications such as American Banker, Fortune Small Business, the Los Angeles Times, and HR Magazine. Brad is also a monthly contributor to this publication, HR Professionals Magazine. Brad earned his BA degree in communications from the University of Maryland and a MEd degree in human resource development from Vanderbilt University. He is also a member of the Forbes Coaches Council and serves on several boards.

Build a sustainable, value-driven culture one interaction at a time. Author, speaker, and leadership coach, Brad Federman, provides actionable tools for immediately promoting better teamwork, creating two-way conversations with your people, and gaining better feedback about how things are really going. Find out simple ways to weave culture-building into your daily and weekly activities to strengthen the engagement of your people!

release date march 01, 2022 pre-order today at


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Best Practices for Proactively Managing Workplace Issues and Minimizing the Risk of Employment-Related Litigation By TIM MCCONNELL and KIMBERLY VEIRS

The past few years have been unprecedented for everyone, but employers have faced particular challenges in trying to keep their employees healthy and able to continue working while simultaneously navigating a significant amount of new – and often confusing – legislation, mandates, and executive orders. Due to these challenges, the focus on best practices for day-to-day management of employees has fallen by the wayside for many employers. However, as we approach the two-year mark since the beginning of the COVID-19 pandemic and are beginning to see some light at the end of the pandemic tunnel, now is a great time for employers to revisit these best practices that will enable them to better manage their workforces and reduce the risk of employment-related litigation.

interactive and provide several examples so that employees leave the trainings feeling equipped to identify and handle various situations that may arise during their employment. All new employees should be trained immediately upon hire regarding harassment and discrimination. Ideally, employers should provide refresher trainings annually and even more frequently when possible.

Auditing Pay Practices Education through Training Educating employees through a well-developed training program is one of the best investments that employers can make in their workplaces, particularly in light of the current enforcement environment. The Department of Labor (DOL), the National Labor Relations Board (NLRB) and the U.S. Equal Employment Opportunity Commission (EEOC) are making concerted efforts to share information and work together, which requires employers to be very proactive in managing potential employee issues. The most effective way to do so is by providing training for all employees. Although the federal equal employment opportunity laws do not require employers to conduct anti-harassment/anti-discrimination training, several states and municipalities require and/or encourage training. Training is a great way to reinforce a company’s culture, establish clear expectations, and to educate all employees about acceptable conduct, work rules, and consequences for non-compliance with those rules. Training is also beneficial from a legal perspective to establish an affirmative defense in defending harassment lawsuits. Employers must take reasonable care to prevent harassment from occurring in their workplaces. This requires employers to have policies in place designed to prevent harassment, and courts also look at whether employers conduct anti-harassment training and the frequency and effectiveness of that training. Training and education must start at the top of an organization. There has to be buy-in from the senior executives in an organization in order for training to be effective. Training of senior level executives is critical as the company’s compliance with employment laws rests in their hands. They must be educated on the specific requirements of employment laws and their individual roles and responsibilities in ensuring the company’s compliance with those laws. Employers should spend time educating managers, supervisors, and team leaders on employment laws and general best practices that they need to know in order to interact with, and manage, other employees such as diversity and inclusion, FMLA/ADA issues, and performance management. Training of non-management and non-supervisory employees will look different from training provided to supervisory employees, but is equally important. At a minimum, employers should train non-management and non-supervisory employees on the various equal employment opportunity laws, examples of acceptable and unacceptable conduct, and the employer’s anti-harassment and anti-discrimination policies and complaint reporting procedures. In-person training is by far the most effective method of training when practicable. Virtual live training can also be effective if a workforce is spread out across various locations. Recorded trainings are acceptable as a last resort, but not as likely to be effective. When choosing who to conduct training, an outside third party can be an effective resource to provide a different perspective to employees during training. If employers choose to use outside counsel to conduct training, employment litigators that actually see how the courts scrutinize employer policies and training during harassment and discrimination lawsuits can provide an interesting and valuable perspective to employees during training. The trainings should be 18

The DOL and NLRB entered into a new Memorandum of Understanding a few months ago pledging to share information regarding unlawful denial of minimum wages or overtime pay, as well as misclassification of workers, among other information. (Memorandum of Understanding Between The U.S. Department of Labor, Wage and Hour Division and The National Labor Relations Board; https://www. NLRB.pdf). If you are an employer involved in a proceeding in front of one of these agencies, you could face a dual threat of an enforcement action in front of the other agency under certain circumstances. The federal government’s focus on pay practices this year reinforces the need for employers to make it a priority to focus on auditing and updating their pay practices to ensure compliance with all applicable laws. Pay equity and transparency have become increasingly significant legislative priorities, as an increasing number of states have passed laws prohibiting employers from inquiring about job applicants’ previous salaries and/or requiring inclusion of salary ranges in job postings. In 2021, some states went so far as to require employers to affirmatively state the applicable wage rate on any job posting. This is something to continue to watch in all states where employers conduct business as this is a likely a trend that will continue. If employers have any concerns about current pay practices, they may want to consider conducting a pay equity audit. While this may sound daunting to do for an entire company, an audit can be conducted by department, location, certain job titles, etc. Once the scope of the audit is determined, employers should look at how their prior and current payroll practices are being implemented, and which employees are actually in similarly situated positions. After the similarly

situated employees are identified, then employers can evaluate if there are any disparities based on age, gender, race, or any other protected categories, and take corrective action to remedy those disparities. We recommend involving legal counsel in a pay equity audit from the very beginning in order to keep the audit privileged. These kinds of pay equity audits may be used to establish an affirmative defense in states with pay equity legislation.

Updating Employee Policies and Job Descriptions While not always a fun undertaking, it is, nonetheless, essential that employers review and update their employee handbooks each year to comply with all applicable laws. Although federal EEO laws have not undergone any significant recent changes, states and municipalities have been extremely active in enacting their own EEO laws and requirements. As such, multi-state employers must stay on top of ever-changing state and local law requirements. Many states and localities have passed various employment laws over the past year, including laws related to paid family and medical leave, vacation pay rules, sick leave, safe leave, and anti-harassment, and these laws have specific requirements such as policy requirements, complaint processes, certain training requirements, notice requirements, and publication requirements. Updating employee handbooks each year, whether internally or through outside counsel, not only helps ensure that employer policies are up-to-date, but also ensures that employers are staying abreast of any legislative changes from the past year that will impact the workplace. Again, while perhaps a tedious task, it is also an invaluable one to go through each year. Now is also a great time to reevaluate if contractors and exempt employees are still correctly classified under all applicable wage and hour laws given the shift in salaries and job duties that may have occurred over the past two years. While it sounds simple, it is critical to ensure that all exempt employees are still meeting the salary and duties requirements of their positions under the FLSA and any applicable state laws. Accurate and up-to-date job descriptions are critical to this analysis. Job descriptions are key documents in FLSA litigation, but there are other practical reasons to have accurate job descriptions. Both employers and employees

need to understand what is truly required for a particular position. Employers can tailor their hiring processes toward the specific needs of the role. Accurate job descriptions combined with effective annual performance feedback results in better performance management. Job descriptions also play a significant role in evaluating accommodation requests under the ADA and determining the essential job functions of each position. Understandably, many of the best practices discussed in this article have not been top-of-mind for employers over the past two years, but it is important to revisit these practices in 2022 as they are essential for ensuring compliance with all applicable laws and effectively managing employees.

Tim McConnell, Member Bass, Berry & Sims PLC

Kimberly Veirs, Associate Bass, Berry & Sims PLC

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Hybrid Working Models:

What is Right for Your Business By CAT DISTASIO

Record high voluntary quits and challenges in talent acquisition are prompting employers to deep dive into hybrid working models, with the aim of creating a work environment that promotes employee engagement and retention while attracting top talent. Here's some insight into the steps they're taking and how they stand to benefit.

This is the foundation for meaningful employee engagement. Bird emphasizes the need to "actively listen to others, undistracted by other tasks — to be curious about people different from oneself so you can see where people are coming from. When people are seen, they are more likely to contribute in more meaningful ways."

The Four Major HR Trends to Follow in 2022 revolve around defining the "new normal" in the workplace, whatever that might be. Accordingly, one key focus in 2022 is the need to rethink what employee visibility means in the age of hybrid working models, where some or all of your workforce may be remote some or all of the time.

In a remote work arrangement, being seen is less literal. In-office face time or visual contact through daily video meetings is no longer needed in order to keep tabs on employees, or to show them support. Many employee engagement tools, such as ADP's StandOut, make it easy for managers to perform regular check-ins with their team members and help leaders unlock employees' potential through strengths assessments and personalized coaching. Every hybrid working model should include a plan for ongoing personal and professional development, and today's tools support those goals more than ever.

When everyone worked in the same office, managers could rest assured that people were working if they could see them at their desk, and "face time" was often linked with the notion of productivity — however subjective or unproven that might have been. The rise of remote and hybrid work means organizations need to find new ways to interact with employees and job seekers alike. Organizational leaders face unique challenges amid record-high voluntary quit rates and a jobs surplus outpacing available job seekers by 2.8 million at the end of September 2021. Employers are simultaneously working to increase employee engagement and retain talent while scrambling to attract candidates and fill open positions, all in a dramatically shifting talent market. Adopting the right hybrid working model and working to encourage culture shifts — to get the most out of the new ways work is being done — are key steps to take in the current environment.

How hybrid work impacts employee engagement and retention More than a year after the pandemic forced 35% of the U.S. workforce to become temporarily remote (compared to just 13% of workers who worked remotely prior to the health crisis), organizations are still struggling to create a hybrid working model that works best for their business. Many employers are looking to implement a model that keeps the organization on track for business goals and supports employee engagement. These challenges are very real, and their impacts affect numerous industries. For instance, ADP Research Institute recently found that remote workers feel less connected with their team members than on-site workers do. Additionally, remote workers report that communication and meetings consume more of their work hours (25% vs. 15% for on-site workers). These disparities are all the more reason to offer employees more flexibility, something hybrid working models can do very effectively.

Redefining employee visibility and engagement Hybrid working models mean leaders can no longer rely on physical presence and eyelines as a measure of employee output, and it takes more effort to help remote workers feel connected and engaged. The definition of employee visibility must evolve and leaders need to prioritize trust in their relationships with their team members. "Trust is a two-way street," says Martha Bird, ADP's Chief Business Anthropologist. "Acknowledging a person based on their contributions, rather than how much time they spend in the office, is a great starting point to building mutual trust." 20

How hybrid work impacts talent acquisition In today's talent market, many job seekers prioritize a remote or hybrid work schedule when evaluating potential employers and job offers. Across the board, ADP SMB research found that three in five people will look for remote options in their next position. The figures are even higher among certain types of workers. For instance, working women with children are 50% more likely to prefer remote work compared with men. Additionally, people with seen and unseen disabilities may also prefer working from home. Being transparent about your hybrid working model — and even actively promoting it — can be an important part of your organization's recruiting strategy and may help you attract and engage the types of people who are looking for the arrangements you offer.

Creating a hybrid working model for your organization While there are more remote workers than ever before, and more attention around the desire for remote work, avoid making assumptions about who wants to work from home. It's not for everyone. In fact, 54% of fully remote workers say they want to return to on-site work. The most important takeaway here is that your top priority should be engaging with your employees and potential hires about the types of work arrangements that are best for them. These decisions should, of course, also be informed by the actual requirements of each position. This is an exciting era when nearly anything is possible thanks to the combination of creative thinking and the strategic use of technology.

Designing the future of hybrid work Before you make key decisions about the future of your remote or hybrid workforce, consider your options. Learn about different types of hybrid working models, and seek to understand the benefits and challenges that come with each possibility. By evaluating your business needs, factoring in employee opinions and looking at emerging best practices, you can design a hybrid working model that allows you to support your workforce, improve employee engagement, attract top talent and continue crushing your business goals. Learn more by downloading our guide, "How to Design a PeopleCentered Workplace." Get it here.


Who Has Your Employee Data? By AMY DUFRANE

Managing and tracking paperwork was a labor-intensive undertaking in the 1800s. During the 1890’s, the introduction of filing cabinets was a godsend to HR departments. This simple piece of office furniture transformed HR’s ability to store, organize and retrieve employee data. Whether sorted alphabetically or color-coded to maximize searchability, employee files securely locked away in vertical cabinets became the information storage backbone of every HR professional. Yet, standards for tracking paper-based recordkeeping were very cumbersome. With a growing list of rules guiding privacy, records management and retention of paper copies – and “gotchas” such as having to maintain I-9 forms separately from employee files and retain them for three years after the date of hire – more HR departments moved off paper to electronic documentation, albeit some using Excel and others moving to more sophisticated data platforms and applications. With every twist-and-turn in the data storage and retrieval journey, came a new HR technology partner in need of data access. Request from third-party providers such as payroll and background screening vendors were routinely honored in order to deliver new and improved HR services to employees, the employer and others in the data lifecycle. The number of participants in this data pipeline potentially grows to the extent that no one individual can readily identify all of the players, leaving considerable opportunity for something going wrong. The problem is that data privacy was not built into the core of managing employee data. That little lock and key on the original file cabinet was rudimentary protection, at best. Fast-forward to the complex world in which HR operates today and one longs for a lock and key. The heightened sensitivity to what we’ve willingly opt-into and where our data is going means HR has taken on another role: Data Steward. Let’s examine what that means: Map Your Data: With so many data sources – your HR portal, your career site, and your

employee hotline to name a few – do you know what they are, where they go and how to protect this sensitive data? The big picture needs to be well-documented and categorized by sensitivity. While all employee data is confidential, operational information such as facility or department do not have the same risk potential as social security numbers. Much in the manner that a manufacturer will map its supply-chain, you should know from where employee data is emanating and with whom it is being shared.

but HR leaders need to understand how to protect the organization. As the department that maintains a company’s most personal information, knowing how to encourage a culture in which everyone understands risks falls on HR’s shoulders. Avoiding Data Debacles: Compliance require-

ments and governance mandates abound. Speaking of acronyms, start by knowing what’s behind FCRA (Fair Credit Reporting Act), FACT (Fair and Accurate Credit Transactions) Act, and GDPR (General Data Protection Regulation.) The last one is specific to the European Union and guides the processing, handling and story of personal data. Since the U.S. doesn’t have a federal data privacy protection agency, following GDPR as a best practice can help avert pitfalls. GDPR states that employees must be aware of who the “controller” of their data is; the purpose of processing their personal data; any changes to their contract, company handbook or data handling; who the third parties are who receive their data; and that an employee has the right to revoke consent at any time. Speaking of ever-changing vendor contracts, it’s wise to have a stated employee data privacy policy that can be shared with third-party providers. Keeping vendors accountable and aware of how seriously your organization takes responsibility for data privacy needs to be clearly communicated. The privacy policy should include its purpose; HR data steward contact details; a description of the data and legal basis on which it’s being shared; how long it needs to be stored; and, most importantly, the rights that employees have in relation to their data, including the right to revoke consent or request corrections. Strong corporate cultures and solid employer brands are built on trust. They’ve invested heavily in protecting their reputations and preventing risks. These are the leaders in the private and public sectors that value their employees and shield them from bad actors and bad business decisions. The stakes are too high not to know who, what and where your employee data is going.

Sharing Requires Caring: Speaking of sharing, some HR departments do not fully

realize how their own employee data is being used without the expressed permission of their employees. In return for the promise of easy access to employment and income verification services, employers share payroll information with big-three consumer credit bureaus. This circular model of allowing credit agencies to collect, organize and potentially re-sell employees’ performance income information and work history supports the ability of a lender, property manager or pre-employment screener to verify an employee’s background or credit worthiness. Except the employee rarely understands their data is being shared in this manner, meaning the quest for efficiency compromises trust. HR needs to know where employee data goes and why. Always Be Learning: A commitment to continuous learning will pay dividends.

Has your vendor earned SOC II? Is your employee data encrypted? Have your vendors embraced sophisticated blockchain-like data management? Do your employees understand what they should or should not do with their private information? In all fairness, most of us aren’t literate about the latest in cybersecurity and new ways of managing data privacy 22

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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Likely Effective in 2022

New Compliance Considerations


If benefits compliance seems like a never-ending game of whack-amole, 2022 will not disappoint. While challenges related to the COVID-19 pandemic dominate headlines, a number of new 2022 benefits compliance obligations and updates may fly under the radar. While these changes may not be top-of-mind at the moment, it is critical employers understand them and take steps to comply when appropriate.

Transparency in Coverage A series of new requirements are going into effect aimed at increasing transparency in health coverage with the hope of lowering costs and eliminating surprise medical bills for consumers. Bipartisan policymakers have been advocating for cost transparency in health care for years. Unfortunately for employers, transparency will add a number of requirements for group health plans. Employers should work with their carriers, Third-Party Administrators (TPAs), and Pharmacy Benefit Managers (PBMs) to coordinate compliance obligations and understand what action is needed. In many cases, it will be necessary and appropriate for vendors to assist with compliance.

Effective for plan years beginning on or after January 1, 2022 Insurance ID Cards – Insurance ID cards must include in-network and out-of-network deductibles, out-of-pocket maximums and a telephone number and website address for assistance. Accurate Network Provider Directory – Plans must ensure in-network provider directories are up-to-date and accessible online and by phone. Participants relying on inaccurate plan information in out-of-date directories will only be responsible for in-network rates. Ban on Surprise Medical Bills and Participant Notification – Plans can no longer charge members out-of-network rates for emergency care, services provided by certain out-of-network providers at in-network facilities, and air ambulance services. Notice of these changes must be posted on a public website. Continuity of Care Notification – If a provider is removed from a plan’s network, plans must notify patients receiving or scheduled to undergo certain treatment from that provider. If elected, plans must cover services by the provider under the same terms and conditions for up to 90 days following notice.

Effective July 1, 2022 Machine-Readable Files – Non-grandfathered group health plans must disclose certain cost-sharing information on a public website in machine-readable files. The files must be available by either July 1, 2022, (for plan years beginning between Jan. 1, 2022 and July 1, 2022), or the month in which the plan year begins (for plan years beginning after July 1, 2022). Enforcement of an additional file with prescription drug information is delayed pending further guidance.

Effective December 27, 2022 Reporting on Pharmacy Benefits and Drug Costs – Group health plans must report information on plan prescription drug spending to regulators, including plan year dates, number of enrollees, each state where coverage is provided, and most common and costly prescription drugs dispensed by the plan. Information for 2020 and 2021 is due by Dec. 27, 2022, and for subsequent years will be due by June 1 of the following year. 24

Ban on Gag Clauses Attestation – Group health plans are currently prohibited from entering into agreements with providers or administrators that would restrict plan access and sharing of certain cost, quality of care, and claims information with certain stakeholders. Plans are required to confirm compliance with this rule by submitting an attestation form annually to government regulators. While it is not yet clear when attestation compliance will be required, regulators expect to provide guidance and begin collection in 2022.

Coverage of COVID-19 Tests Effective January 15, 2022, all group health plans are required to cover Over-the-Counter (OTC) COVID-19 diagnostic tests at no charge whether ordered by a physician or not. Previously, only tests ordered by an attending health care provider were required to be covered. While plans may require participants to pay for tests out-of-pocket and submit for reimbursement, regulators encourage plans to provide for direct reimbursement at the point of sale, with no out-of-pocket cost to the consumer. Plans that allow for direct reimbursement are able to limit reimbursement to 8 tests per covered member per 30-day period, and reimbursement for tests purchased at out-of-network pharmacies can be limited to the lesser of $12 or the cost of the test.

Employer ACA Reporting and Elimination of Good Faith Standard Since 2015, Applicable Large Employers (ALEs) and self-funded group health plans have been required to complete informational reporting regarding coverage and offers of coverage to their employees under the Affordable Care Act. Although there are statutory penalties for filing failures, for each prior year of reporting, the IRS has provided transitional penalty relief for plans that showed they made good faith efforts to comply. The IRS has announced that transitional relief is no longer available for the 2021 tax year reporting due in 2022. As a result, the IRS can impose penalties for filing failures, including failure to report all required information and reporting incorrect information. It is not clear how aggressive the IRS will be in assessing penalties. However, the maximum potential penalty amount is significant - $280 for each return or statement to which a failure relates, capped at $3,426,000 per calendar year.

Expiration of COVID-19 Related Relief The CARES Act allowed no-cost telemedicine services to be provided to individuals without compromising HSA eligibility for plan years beginning January 1, 2020, through December 31, 2021. For plan years beginning on or after January 1, 2022, telemedicine services (unless limited to permitted insurance, permitted coverage or preventive care) provided below fair-market value before the minimum HSA deductible is met will cause individuals to lose eligibility to make HSA contributions. In addition, relief applicable to Section 125 plans and Flexible Spending Accounts (FSAs), including mid-year election changes without a qualifying event and carryover of unlimited unused FSA funds will expire in 2022. Employers hoping for a calm 2022 with few new benefits compliance obligations will be sorely disappointed. But employers should get their proverbial game faces on, act now and get ahead to ensure compliance, because new requirements are sure to pop up in 2023.

Chris Macali

Senior Employee Benefits Compliance Officer McGriff

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© 2022 McGriff Insurance Services, Inc. All rights reserved. McGriff Insurance Services, Inc. is a subsidiary of Truist Insurance Holdings.

Kentucky Class and Collective Action Update By JAY INMAN

Most HR professionals have some sense of the potential impact of class and collective actions, whether from personal experience, networking with HR colleagues, or popular media. However, these specialized proceedings rarely appear in HR trainings, so many questions remain. This article provides an overview of how these proceedings really matter for HR professionals, with an emphasis on Kentucky updates.

Defining Class and Collective Actions To begin, let’s define these proceedings in basic terms, noting some important differences. For HR professionals, the goal is to understand the proceedings generally, with enough knowledge to be ready if your employer faces such proceedings. You may encounter class actions under federal or state law and across a range of subject areas, from discrimination and wage and hour claims, to product liability claims, and more. Class actions enable groups of individuals to join together and bring legal claims as a group, if they have enough commonality in their interests and injuries. Typically, several individuals will be the “named plaintiffs,” meaning that they will actually be named in the caption of the lawsuit, and they will seek to represent a class of other individuals, who fit a specific definition, but will not be named in the caption. The named plaintiffs seek to compile enough evidence to ask the court to “certify” their class, which means that the court agrees they have met all the various tests and they may proceed to represent the class. For class actions, certification is often hotly contested, and even if a class is certified, the defendant/s may still seek later to modify or decertify the class based on additional evidence. If the court grants certification, all individuals who fit the definition proposed automatically become members of the class, unless they choose to opt out. In contrast, you will encounter collective actions for a smaller subset of claims, these brought under the Fair Labor Standards Act (FLSA). While collective actions also enable groups of individuals to team up and pursue claims with sufficient commonality, important distinctions exist. In terms of mechanics, collective actions require everyone who seeks to be part of the lawsuit to “opt in” – that is, fill out a specific form consenting to join the lawsuit – rather than automatically be part of the group. Additionally, for collective actions, often there is a “conditional certification” process earlier in the case, where certification is simpler for the named plaintiff/s to achieve because less evidence must be shown. Similar to class actions, defendants often move to modify and/ or decertify the collective based on additional evidence.

Class and Collective Actions and HR Professionals Class and collective actions should matter a great deal to HR professionals because such proceedings often bring high-stakes financial implications that can put HR decisions, such as payroll classifications, 26

to the ultimate test. Moreover, if your employer faces a class and/or collective action, you will almost certainly be asked to play a significant and challenging role pulling information and documents at a large scale to assist in defense of the action. Any HR professional who has experienced the stress of a lawsuit against their employer relating in some way to HR practice understands that, when the sun shines brightly on their decisions, the sun will illuminate the good, the bad, and the ugly – hopefully little of the latter two, but sometimes mistakes happen amidst the best intentions. Now imagine the claims at issue concern 100 or even 1,000 employees. If a singleplaintiff lawsuit puts $100,000 at issue, simple multiplication makes the potential exposure climb to $10,000,000 for 100 employees and $100,000,000 for 1,000 employees. And imagine the key issue turns on whether you properly determined when employees should receive overtime over the course of several years. The end result becomes potential bet-the-company litigation over a single determination you made, individually or as a team, in HR. Even when the litigation does not involve an HR decision, however, such as a product liability matter, you will likely remain in the center of the action because you know who remains an employee, how to contact everyone, what personnel files contain, and more. Because HR professionals sit at the center of so many important personnel determinations, this is part of the contemporary HR leadership job, and professionals will need to be active participants in the litigation defense, plus take care of themselves when under heavy stress. In any class and/or collective action matter, HR professionals will need to be flexible, nimble, and responsive in providing information and/ or documents to the defense team and participating with the team, as needed. To give a practical example, one of the most common varieties of class and collection action lawsuits in Kentucky right now involves pizza delivery drivers suing pizza franchises for alleged failure to pay overtime properly premised all or in part on alleged mandatory off-theclock work. As a result of these allegations, already busy and multitasking HR professionals add to their schedules a need to pull records of all drivers’ actual hours during their various shifts for several years (up to three under FLSA, up to five under the Kentucky Wage and Hour Act). The records may be incomplete, or they may not show everything that either the plaintiffs’ team or the defense team, or both, need to make calculations. Imagine if the drivers also allege they were denied meal and rest breaks as a pattern and practice of employment, and the HR professionals needed to pull any records they had of compliance with those requirements. For the franchise-employer, important evidence might be located, such as all drivers’ signed timecards verifying their reported hours to be true and correct. The evidence might be unfortunate instead, documenting problems just as alleged by the drivers. If you imagine how such claims might apply to your workplace (whether true or not) and the legwork you would need to do, you see how class and collective actions quickly become a major part of day-to-day HR affairs during their pendency.

Class and Collective Actions in Kentucky In the past decade, Kentucky has been increasingly targeted by plaintiffs’ law firms across the nation for class and collective actions. It is often the case that a national plaintiffs’ firm specializing in such proceedings will partner with a local Kentucky plaintiffs’ attorney to bring the large-scale claims, utilizing the national firm’s resources and staffing and the local attorney’s boots-on-the-ground familiarity with Kentucky law and jurisdictions. As a result, HR professionals should understand that there is a real possibility that they may face class and/or collective actions in the days, months, and years to come. To share some specifics, in 2021, in Kentucky federal courts, plaintiffs filed 29 lawsuits under FLSA alone, and of those, 15 included class and/or collective action claims. Another nine were filed against the same entity, with curious labeling of each plaintiff as bringing claims “individually,” which suggests there to have been a class and collective action waiver barring litigation as a group. If we include those nine as originally intended to be brought together, then the numbers show 24 out of 29 lawsuits under FLSA in Kentucky in 2021 involved intended class and/or collective action allegations. Broadening the search beyond FLSA would yield many more class and/or collective actions in the federal courts, for instance in common areas such as ERISA and discrimination. Additionally, Kentucky state court has seen numerous class and/or collective actions against employers as well, further building the frequency and breadth of who may encounter such proceedings. Whether located in Kentucky, or just supporting a business that operates partly in Kentucky, HR professionals must continue to be aware of the lengthy statutes of limitation that may apply and retain

records carefully. Both the Kentucky Wage and Hour Act and the Kentucky Civil Rights Act have five-year statutes of limitations, for example. If a reviewing court determines a contractual right to be at issue, the necessary retention period could be significantly longer, as the statute of limitations for contract claims in Kentucky is 10 years (for contracts executed after July 15, 2014). Regarding decisions like these, HR professionals should remain in close touch with their employer’s legal counsel of choice. Finally, HR professionals may have read about an important decision issued by the Fifth Circuit Court of Appeals in Texas regarding collective action procedure, providing for more discovery in advance of any conditional certification decision and a tougher standard for such certification. To date, after several decisions, Kentucky federal courts have declined to make the change and instead have continued the prior mechanics, with the less-burdensome standard for conditional certification. This will remain an issue to watch, as courts across the nation, including in Kentucky, wrestle with whether and, if so, how to adopt the Fifth Circuit’s sea change in procedure. Class and collective actions should matter significantly to HR professionals. While we always hope for the best and realize that some professionals will go their whole careers without being impacted by such proceedings, reality increasingly shows many HR professionals will not be so fortunate. Being aware and ready will position you well for the future.

Jay Inman, Shareholder Littler


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PEP Talk for

401(k) Administrators



a young, passionate financial advisor in the 401(k) industry, one of my main focuses is to change my community one participant contribution increase at a time. As I’ve worked with a wide variety of companies and industries, I’ve realized that one of the best ways to help more people reach their retirement goals is to get the leaders of their companies comfortable with the retirement plan they offer. And sometimes that means getting company leaders comfortable with offering a plan at all. High costs, administrative burdens, and fiduciary liabilities are all harsh topics to business leaders, but a necessary part of every 401(k) conversation. More importantly these worries are often why administrators aren’t comfortable with their plans, and why small business owners hardly offer them as part of their benefits package. Trust me, it’s not a hot topic to bring up at dinner parties, but understanding business leaders’ concerns can be a huge first step in addressing potential retirement planning needs for their employees. And their employees are the ones who could benefit the most, because retirement in America is headed down a rocky road. According to the Federal Reserve, only 36% of working adults think their retirement savings are on track. This is causing more employees to work well past traditional retirement age, and sending many Americans in search of a more secure outlook for their non-working years. This uncertainty in retirement savings is the very reason why the Setting Every Community up for Retirement Enhancement Act (SECURE ACT) became law in 2020. The law was set in place to help both business owners, workers, and retirees by providing tax and savings incentives which included: • Increased RMD age from 70.5 to 72 • Long-term part-time employees may now be eligible for 401(k) plans • Age limits for IRAs has been removed • Tax credits for Small Businesses starting their first retirement plan 28

These enhancements helped provide a great base towards increasing the average American’s ability to save, but the government has seen there is more work to be done. Thankfully there are already talks of continued progress with the announcement of the SECURE ACT 2.0. In a joint announcement from the Ways and Means Committee, “The retirement crisis in America is real, and will only get worse without easier pathways to saving and encouraging workers to start planning for retirement earlier in life. This legislation expands automatic enrollment, simplifies many retirement plan rules, and strengthens small businesses’ ability to offer workplace retirement plans, to make it easier for Americans to plan for their golden years." These are all welcome words and actions in the 401(k) industry, in addition to individual savers, but in my opinion, there is more that can be done. Many of the offerings haven’t relieved the stress of being a fiduciary, or provided comfort to leaders and business owners offering plans. But one solution that may provide confidence for business owners is the SECURE ACT’s introduction of the Pooled Employer Plans, or PEP. A PEP is a multiple-employer plan, that can alleviate the burden of plan management, and decrease fiduciary liability, making it more attractive to smaller businesses. Consider this idea, you work as an HR professional for a fast-growing company and your responsibilities continue to grow as the company does. The amount of process checklists to get your daily job done has grown from 10 - when you started - to now 20, and there is no doubt that it will double again in the near future. Most likely a good portion of that revolves around 401(k) administration including, payroll uploads, contribution rate changes, loan and hardship approvals, communication, notice delivery, filing your 5500 and the list goes on and on. The processes can be uncomfortable, but totally necessary to get it 100% right. Getting something wrong can result in monetary corrections. And what boss likes that? This is where the PEP comes in. The goal of a PEP is to offload a vast majority of those responsibilities and liabilities. Sounds great right? In addition to that, you won’t have to pay those pesky annual audit fees that can be over $10,000 a year. Your boss will love you! Sounds like a no brainer right?

But PEPs, and a similar type of retirement plan known as a Multiple Employer Plans (MEPs), are very unique. In my experience, these different types of plans have caused some administrators hesitation in utilizing them for their employees. However, there are many benefits a PEP can bring a small business, and an employee’s retirement readiness. Some of the major pros of the PEP are: • Reduced fiduciary liability with the PEP provider acting as 3(38) and 3(16) • PEP provider will review and sign the 5500 • No annual audit regardless of size (potentially saving $1000s) • PEP provider will handle most administrative duties including o Notice delivery

Unfortunately, I have seen the higher cost be a shock to administrators considering the PEP especially since it has been touted as cheaper alternative. In reality, all of the different services you are receiving through the PEP, I believe, make it a good value but not necessarily a cheap alternative. Over the last few years as these were initially rolled out, I’ve researched for countless hours, attended numerous webinars, and patiently watched from the sideline to see where the PEP can be a great fit. For some, I think it can be a great option at this early point in time. Businesses who want to offload much of the plan administration and liability, and don’t wish to have a say on investment selection is a good example of a group that should consider a PEP. Another good candidate can be first time start-up plans with high numbers of employees. This will allow them to avoid the shocking annual audit fees and the numerous hours of administration that goes into running a retirement plan. With the greatly reduced administrative responsibilities, I truly believe there is a lot of opportunity with PEPs. But every company is different, and every plan is different. When looking at your company’s retirement plan offering, be sure to consider all your options. PEPs won’t be a fix all for our country’s retirement crisis but I think it, along with the SECURE ACT, and all you confident administrators, we can keep pushing our people in the right direction towards a confident and secure retirement.

o Distribution approval o Beneficiary tracking o Monitors eligibility Some of the cons include: • New type of plan which can result in uncertain pricing and services as providers continue to build out their offering

Jim Trujillo, CFP®, PPC®

• Lack of customization with investments and some advanced matching calculations

Financial Advisor

• Higher Costs

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Respective services provided by ARGI Investment Services, LLC, a Registered Investment Adviser, ARGI CPAs and Advisors, PLLC, ARGI Business Services, LLC, and Advisor Insurance Solutions, LLC. All are affiliates of ARGI Financial Group LLC. Trust services provided by ARGI Trust, a division of Advocacy Trust LLC.


Congratulations to these HR Professionals Who Passed their HR Certifications! 2 0 22

Stephanie Hendrix, SHRM-SCP Congratulations to Stephanie Hendrix on passing her SHRM-SCP! Stephanie has been at AutoZone in Memphis for three years and is a Field HR Manager. She also serves on the SHRM-Memphis Board of Directors as Chair of the Sponsorship Committee. Stephanie received a Master of Business Administration (MBA) in Business Administration and Management, in 2018. While she was at the University of Memphis, she served as President of the SHRM-Memphis Student Chapter. She was also Graduate Assistant to Dr. Kathy Tuberville and member of Fogelman Women in Leadership. She received her Bachelor of Business Administration in Human Resources from the University of Mississippi in 2017. Stephanie is also recipient of the following certifications: HRCI PHR – June 2014, SHRM-CP – January 2015, and Strategic Business Partner – August 2017.

Kalindria “Kay” Arnold, MBA, PHR Kalindria “Kay” Arnold began her HR career in 2016 after completing her MBA. Her expertise in HR so far has been diverse; including payroll, recruitment, employee relations, onboarding, training and development, etc. Kay currently works for Easterseals Arkansas in Little Rock, AR, as a Sr. HR Business Partner, where she works alongside the VP of HR to improve processes and strategic partnerships within the organization.

Cathy Neitzel, SHRM-CP Cathy Neitzel is a Compensation Analyst at MAA in Germantown, TN. Cathy’s 20+ year HR career has been comprehensive, with opportunities spanning various HR functions while honing her skills in Compensation, Benefits, and HR Systems. Cathy’s recognition of the impact the HR function has within an organization has inspired her interest and belief in the importance of data analytics and data integrity. Though committed to the value of analytics in HR, Cathy also appreciates the critical importance of people in her work and has had the fortune to see how her own contributions in HR have had positive, personal impact for the employees she supports. Human Resources’ dynamic and continually growing influence in businesses today continues to drive Cathy’s curiosity and commitment to the field. Cathy has a BA from Huntingdon College, a small liberal arts college in Montgomery, AL and made Memphis her home in 2004.

Our next Online SHRM Certification Exam Prep Class Begins on April 11. See Page 27 for details. Register online at The deadline to register is April 4.




2022 Labor and Employment Law Rising Stars We are proud to present the 2022 Rising Stars in Labor and Employment Law submitted by our sponsors. These attorneys are 40 or under and have practiced law 10 years or less. They are already top performers in their respective firms.


Bass, Berry & Sims 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.

Lymari Cromwell

Laura Mallory

Kimberly Veirs




Lymari Cromwell counsels clients in all aspects of employment and labor relations law, representing industries as diverse as healthcare, hospitality and manufacturing. Lymari’s practice is primarily transaction-based, in which she counsels companies with respect to labor and employment issues arising in the course of mergers and acquisitions. She advises companies with regard to non-compete laws, overseeing significant employmentrelated due diligence in the context of acquisitions, and drafting and negotiating employment agreements.

Laura Mallory represents employers in all aspects of labor and employment law. She advises companies on a variety of employment matters and provides counsel to clients with respect to compliance with state and federal employment laws; hiring and termination policies; drug testing and other employment related issues. Her practice also involves the drafting of separation agreements, restrictive covenants, position statements, policies and employment handbooks.

Kimberly Veirs represents employers in state and federal litigation related to discrimination, retaliation, and wage and hour compliance. Kimberly also counsels clients in all facets of employment law, providing counsel with respect to state and federal employment law compliance, including employment law issues involving the FMLA, ADA, FLSA and OSHA. She advises employers in matters involving employee discipline, wrongful termination, retaliation, discrimination, harassment, wage and hour claims, and other employmentrelated matters. Kimberly regularly advises companies on matters pertaining to employment agreements, severance agreements, terminations, handbooks and policies, and other workplace agreements.

Kimia Movahed Mary Leigh Pirtle MEMBER, NASHVILLE

Mary Leigh Pirtle helps human resources professionals and in-house counsel at companies of all sizes navigate complicated and evolving employment law issues. She defends employers in matters of labor & employment litigation in federal and state court, including complaints related to non-compete/ non-solicitation agreements, reductions in force, wrongful discharge, discrimination and civil rights, and wage and hour compliance. Her practice also involves drafting employment agreements and restrictive covenants, advising clients on discipline, discharge of employees and employee relations, and drafting policies and employee handbooks.


Kimia Movahed counsels clients on the design, implementation and administration of qualified employee benefit plans, health and welfare benefit plans and deferred compensation packages. She also provides advice on employee benefits and compensation issues arising in mergers, acquisitions and other corporate transactions.

Catherine Simpson


Ashley Li advises clients related to all facets of employment and labor law. She provides counsel to employers on issues regarding wrongful termination, discrimination, employee discipline, defamation, harassment, and other matters. She also has experience representing clients in litigation matters related to compliance with state and federal employment law issues involving wage and hour violations and leave-related issues.



Noah Black works with clients on the design, implementation and administration of qualified benefit plans, health and welfare benefit plans and deferred compensation packages. He also provides diligence and support on employee benefits and compensation issues arising in mergers, acquisitions and other corporate transactions. Prior to joining Bass, Berry & Sims, Noah worked with the U.S. Department of Labor in the Employee Benefits Security Administration where he investigated retirement plans and plan service providers to ensure compliance with Title I of ERISA and negotiated with fiduciaries to resolve ERISA violations. 32

Catherine Simpson assists clients with the design, administration, and compliance of qualified retirement plans, including defined benefit plans, 401(k) and 403(b) plans, profit sharing plans, ESOPs, and nonqualified plan alternatives. She also counsels clients regarding compliance with IRS, DOL, and PBGC laws and regulations applicable to employee benefit plans. Catherine’s practice also focuses on assisting with qualified plan conversions, terminations, and corrections, as well as implementing and administering health and welfare plans, including compliance with the Affordable Care Act, HIPAA, and COBRA.


Kristin Titley represents clients in all facets of employment and labor matters, including litigation involving discrimination, harassment, wage and hour issues, and proceedings before state and federal courts and administrative agencies. In addition to her litigation practice, she advises employers on all aspects of employment law, including complex issues related to contract disputes, discharge, discipline, and discrimination, as well as best practices with regard to employee leave and accommodation matters under the ADA, FMLA, and other statutes. Kristin also works closely with companies to design and draft employee handbooks and implement new policies related to the workforce.

Littler At Littler, we understand that workplace issues can’t wait. With access to more than 1,600 employment attorneys in 90 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. With deep experience and resources that are local, everywhere, a diverse team of the brightest minds, and powerful proprietary technology, we deliver groundbreaking innovation that prepares employers for what’s happening today, and what’s likely to happen tomorrow. Because at Littler, we’re fueled by ingenuity and inspired by you.

Kevin Cleys

Kellie A. Tabor

Emma Chase




Kevin Cleys advises and represents management in a broad range of employment matters. A significant part of his practice focuses on handling singleplaintiff employment litigation arising under various state laws in addition to Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Fair Labor Standards Act (FLSA), and the Defend Trade Secrets Act (DTSA). He has litigation experience at the administrative, state, and federal levels, where he has handled charges of discrimination and retaliation, wage and hour issues, state and federal trade secrets claims, and restrictive covenant and contract disputes.

Shareholder, Kellie Tabor helps her clients develop practical strategies for employment law compliance, including multistate leave and paid sick compliance, consulting on sticky leave, accommodation, and performance management issues, and planning for reductions in force. Kellie also assists clients in protecting their confidential information and trade secrets by developing comprehensive restrictive covenants and assessing concerning employee departures. On the litigation side, Kellie focuses her practice on defending employers in employee-initiated lawsuits, handling single and multi-plaintiff harassment, discrimination, retaliation, leave, and contract claims, among others. Kellie also regularly represents clients in enforcing noncompetes and other restrictive covenants, including obtaining temporary restraining orders and preliminary and permanent injunctions.

Emma Chase represents businesses in all phases of employment litigation, including negotiating settlements, handling mediations and preparing for trial. She regularly advises employers on compliance with federal legislation including the Americans with Disabilities Act, Title VII of the Civil Rights Act, and the Affordable Care Act. She also has experience preparing and revising non-competition and non-solicitation agreements, employee handbooks, and self-insured health insurance policies.

Rainey, Kizer, Reviere & Bell, PLC Rainey Kizer Reviere & Bell PLC focuses on achieving exceptional client representation, satisfaction, and results by providing the highest quality, timely, and cost-effective legal services. Since its founding in 1975, the firm has grown from a few attorneys to forty lawyers and represents local, regional, and national clients from its five offices in Memphis, Jackson, Nashville and Chattanooga, Tennessee.

Matthew R. Courtner JACKSON

Matthew R. Courtner is a member of Rainey, Kizer, Reviere & Bell, PLC and joined the firm in 2011. He graduated from Mississippi College of Law, summa cum laude, in 2009 and then obtained a Masters of Law from New York University School of Law in 2010. Matthew practices in civil litigation with a focus on employment law, governmental law, civil rights, and tort defense. He assists employers by providing advice on day-to-day activities, drafting handbooks, investigating complaints of employee misconduct, and defense of employment law claims from the EEOC through the courts.




Illinois’ accredited and internationally-recognized master’s program is available online, tailored to the needs of working professionals. Whether you have prior experience in human resources or you are transitioning from another function, you will find immediate applicability to your work. The MHRIR curriculum is taught by experienced faculty and industry experts and designed to build business acumen and a strong foundation in the field. Students have an average of eight years of experience in HR or a related business function, and benefit from peer networking in selective classes. The student body includes a diverse and experienced group of working professionals from long-standing corporate partners like bp and PepsiCo, in addition to professionals in non-profit and consulting.

The School now offers a certificate program geared towards professionals who want to freshen their HR knowledge, or for those with little HR background who wish to build competency. The program has four tracks: Fundamentals of Human Resources, Human Resources Management, Compensation Best Practices, and HR Data Analytics. Each track has three courses (12 credit hours total, four credit hours per course), and can be completed in 7-10 months. Candidates that complete one or more certificates can On average, count their certificate credit towards our full master’s program if they wish to continue students their journey.

receive a $20k salary increase after completing the program.

Beyond the classroom, students build their networks and participate in an active community of practitioners. Seventy-three percent of students are promoted while still in the program or within six months of graduation. For more information, visit


Full information about the certificate options is available at For any questions about our online offerings, email Eden Haycraft, Associate Director, Graduate Online Programs at

President Biden’s EEOC Steps Up Lawsuits By ROB BINKLEY

With the change in presidential administrations, the expected increase in activity by the EEOC has begun to manifest itself. The EEOC has recently announced filing several lawsuits and significant settlements. The EEOC appears to be pursuing these claims and actions against both medium and large corporations. In February 2022, the EEOC filed an action against Walmart alleging sex and race discrimination. Walmart allegedly failed to promote an employee to a management position at one of its stores because it assumed that the employee would not remain with Walmart long enough due to having a newborn at home and further gave her an unsanitary storage closet to express her breast milk when a superior clean space was provided to a white employee for the same purpose. (EEOC v. Walmart, Inc. et al., 22-cv-00037 S.D. Iowa) In EEOC v. Corning Incorporated (6:21-cv-06745 W.D. New York) the EEOC sued Corning in December 2021 for allegedly failing to promote female machine operators at two locations in western New York state. The lawsuit alleges that Corning groomed male machine operators for advancement, provided them with training opportunities, and bent its own eligibility rules to place males in line lead positions instead of similarly or more qualified women. In February 2021, the EEOC sued Pneuline Supply, Inc. (22-00292 D. Colorado) for firing an employee with severe hearing impairment because of the employee’s disability and/or need for accommodation and for complaining about discrimination. The aggrieved employee was proficient in American Sign Language (ASL) but not English. She filed grievances about being excluded from work discussions and meetings, subsequently requested a certified ASL interpreter, and was then terminated. In January 2022, the EEOC announced that car dealers Victory Automotive Group, Inc. and Cappo Management XXIX, Inc. (2:20-cv02245 E.D. California) agreed to pay $150,000.00 in damages and hire a consultant to facilitate changes in their policies and training practices to settle a disability discrimination lawsuit arising after the joint employers terminated a title clerk working at one of their dealerships over fears that the employee might have cancer. The employee missed several days due to a sudden illness, informed the management that she had been hospitalized, and said she was undergoing treatment for cancer. The joint employers fired the employee on the day before her anticipated return to work despite a medical release allowing her to return to work. The termination letter advised her to “focus on her health” and confirmed that the termination was not performance-related. Also in January 2022, the EEOC announced a settlement of EEOC v. Charter Senior Living, LLC for $31,750.00. (3:21-cv-00708 N.D. Ohio) The EEOC sued the family-owned business after a caregiver had passed her pre-employment physical examination, worked for Charter Senior Living for weeks without incident until the director discovered that the caregiver had right-hand nerve damage, and then required the caregiver to have another physical examination. The second examiner concluded that the caregiver met the physical standards of the examination but declined to clear the caregiver unconditionally due to nerve damage. Charter Senior Living refused to let her return to work and ultimately fired her without evaluating whether the righthand nerve damage impacted her ability to perform her job duties. 36

In EEOC v. Stan Koch and Sons Trucking Company, Inc. (0:19cv-021480 D. Minnesota), the EEOC in December 2021 reached a $500,000.00 settlement with Stan Koch and Sons Trucking to settle a sexual discrimination lawsuit. The lawsuit concerned Koch’s use of a CRT Test, an isokinetic strength test developed by a third party. The EEOC’s theory was that the test discriminated against women truck drivers because of their sex and alleged that the CRT Test disproportionately screened out women who were otherwise qualified for truck driver positions at Koch. The settlement provides that Koch will pay $500,000 in damages and make job offers to a class of women whose job offers were revoked by Koch after the applicants failed the CRT Test, enjoins Koch from using the CRT Test, and if Koch chooses to use any other physical abilities test having a disparate impact on female drivers, Koch must demonstrate that the test is job-related for the position in question and consistent with business necessity. The EEOC had recently won a similar case in EEOC v. Schuster Co. (5:19-cv-4063 N.D. Iowa) In October 2021, the EEOC announced that Frizzell Furniture, a furniture retailer with locations in northern Minnesota, had agreed to pay $60,000.00 to an applicant who was denied a sales position because of his transgender status. A hiring official had told the applicant that he would not “mix well with the customers.” The case settled before litigation commenced. Frizzell Furniture agreed to revise its hiring procedures and adopt new antidiscrimination policies, make changes to improve its recordkeeping procedures, provide EEO training to employees, and report future complaints of discrimination to the EEOC for three years. Lastly, in EEOC v. American Freight Management Company, LLC d/b/a American Freight Furniture and Mattress (2:10-cv-00273 N.D. Alabama), the defendant agreed in February 2022 to pay $5 million and provide job opportunities to settle allegations that since at least 2013 American Freight engaged in a nationwide pattern and practice of sex discrimination against qualified female job applicants for sales and warehouse jobs at the defendant’s retail stores. The lawsuit alleged that managers discarded job applications submitted by women, managers made comments showing that hiring decisions were tainted with bias and sex stereotyping, and some of the company’s stores hired no women for sales or warehouse jobs for several years. The settlement also includes a three-year consent period of monitoring to see that American Freight does not discriminate against any job applicant on the basis of sex or engage in any retaliation. American Freight agreed to appoint a Title VII coordinator to implement and oversee its EEO policies and procedures. The settlement also requires American Freight to develop a recruitment plan for women in sales and warehouse positions and to provide training on employment discrimination to all company employees. The company agreed to provide periodic reports to the EEOC about the number of women applying and hired into sales and warehouse positions. American Freight further agreed to offer sales and warehouse jobs to qualified female applicants who were previously denied employment. These settlements and lawsuits clearly demonstrate enhanced enforcement activities and further show the importance of making sure that lower, mid and upper management staff receive sufficient training and are well versed in EEO policies, procedures, training, and internal implementation and enforcement of the same.

Rob Binkley, Attorney

Rainey, Kizer, Reviere, & Bell, PLC


Half of All U.S. States Had Employment Law Changes as of January 1. Is your state one of them?

Stay compliant and mitigate costly fines and legal risks by learning what to look for and how to navigate these issues at the SHRM Employment Law & Compliance Conference, being held March 28-30 in Washington, D.C., and virtually.

Learn more at

Meeting Training Objectives in the New World Order of 2022


Whatever shape “normal” takes from here forward, there’s no question that business operations have changed more in the past two years than they ever have before. For better or for worse, the Covid pandemic acted as a gravity-assist slingshot that propelled business and technology forward into an inevitable future. In fact, we were fortunate that the technologies we rely so heavily on today were at a stage in 2020 where they could be fast-tracked and rolled out to service the needs of our collective organizations. Add in a little creativity and some experience to guide things along and today we’re able to efficiently achieve goals regardless of changes in the new-world infrastructure. Nowhere is that more evident than in the world of training.

Three Forms of Learning There are now three ways learning occurs. Synchronous learning occurs in real-time with students and instructors all present and collaborating at once, such as in a classroom setting. However, there is now a further dissection of synchronous learning methodologies: in-person and virtual. Both occur in live classrooms with live instructors, but one happens at a fixed location with all attendees physically gathered together, and the other takes place via a videoconferencing platform. Asynchronous learning happens on one’s own time, such as what happens with a workbook, or through a self-guided tutorial. Most typically in today’s new world order, asynchronous learning occurs digitally via a cloud-based platform on one’s laptop. Each of these three learning delivery methods has its benefits and drawbacks, but there’s naturally a happy medium where all three are now powerful options for various teams and environments. Ensuring that there’s substance to the training, regardless of what’s being taught and how it’s delivered, is the most critical factor.

The Impact of Learning Methods Traditionally, synchronous learning experiences offer the most immersive, deepest, and profoundly habit-changing experience. As the leader of a 49-year-old consultancy that was built on a foundation of synchronous, experiential communication training delivered by exceptionally trained 38

full-time instructors, I’ve seen the impact such immersive courses can have on an organization’s people and its bottom line. Classroom-based training, with an instructor present who possesses the expertise to engage with the student at a deep level, helps participants to improve their communication behavior and allows them to evolve in an authentic and meaningful way. In the world of communication, asynchronous learning lends itself more to intellectual aspects, such as message strategy development. When it comes to evaluating training programs across any enterprise, and how to roll them out, it’s urgently important to understand how that training will help you to meet business objectives. Once you’ve settled on the right kind of training, you can then determine the level of investment you can afford to make in order to train at scale. This has always been true, but the impact is even more pronounced in the new world order. Among the various ways that exist to train staff, let’s consider these three primary forms that the global business community has embraced.

In-Person Training Synchronous, in-person training programs, whether you travel to them or they travel to you, will still offer the greatest impact and return for anyone who attends. Direct, face-to-face instruction led by an experienced trainer offers the most profound experience. The biggest limitation to rolling out an in-person training program at scale is geography and cost. In-person training programs require all participants and leaders to be in the same place at the same time. For most organizations this involves travel, not only in terms of cost, but in terms of managing logistics. If the investment can be made, the returns are tangible, particularly at more senior levels within organizations.

Virtual Training The primary alternative to in-person training is virtual training. With the accelerated deployment of live virtual platforms like Zoom, WebEx and Teams, live virtual classrooms executed with excellence can replicate almost all aspects of in-person learning, but it will never be exactly the same. Virtual training is also far more scalable since it eliminates any geographical concerns and it enables more diverse populations across any enterprise to participate at once. The only limitation is the size of a class, which must be manageable for an instructor to deliver training effectively.

Digital Training An asynchronous training program is, by definition, self-administered. Digital platforms that offer training modules are highly scalable and customizable, but it’s essential to recognize their limitations. Digital learning is best applied for developing intellectual competencies, not behavioral ones. Using such a platform to train large groups of people across an enterprise is an extraordinarily effective way to get the entire team “rowing in the same direction” quickly. It can be delivered at significant scale and with dramatic cost efficiencies to any population, regardless of where they reside. As long as the program is developed with a clear understanding of what its objectives truly are, it can represent an unbeatable competitive edge that truly impacts the bottom line.

So, What’s the Right Option for Your Organization? The truth is that none of these training options should live in a bubble. The best advice anyone can offer is to find a training partner – not just a vendor – that truly understands your needs and knows how to craft a solution that helps you meet your objectives. Ideally, the best training companies will offer “blended learning solutions” that can be administered for everyone from young professionals to the CEO. That’s not to say that the solutions will be the same for all groups, but they should be built with a broader strategic purpose in mind. When our company complemented our existing in-person and virtual options with a recently launched asynchronous digital product, it was because our clients required that technology be leveraged to meet demands of budget and scale. We were fortunate that technology had advanced to the point where we could offer a high-quality digital learning experience that was consistent with our 49-year-old established methodologies. In our role as consultants, we must recognize how to harness technology to deliver training that matters in a profoundly changed environment where business objectives continue to evolve, and the corporate footprint expands globally. Our success is now driven by technological innovation that is routinely mined for new and effective ways to offer the best possible options for the organizations that rely on us to train their people. Those of you who are responsible for evaluating and implementing training programs face a similar dilemma. You must concurrently meet the demands of the new world order and find effective solutions to your company’s training challenges while ensuring the best ROI possible. The best way to do that is to ensure that you’re working with a partner that understands the scope and the scale of your organization, your specific learning objectives, and to consider the right mix of programs that enable you to deliver training that’s as varied as the populations you serve.

Scott Weiss, CEO

Speakeasy, Inc.


As Staffing Shortages Continue, Retention of Frontline Workers is Vital By SHAWN BOYER

Are you not entertained, er, engaged? Gallup announced in January that for the first year in more than a decade, employee engagement dropped in 2021. The first time in more than 10 years! It reported that 34% of Americans were engaged, and 16% were actively disengaged, down from 36% and 14% in 2020. We’ve all seen firsthand the issues many businesses are having, despite unemployment checking in at 4.0% in the February jobs report. In many cases, restaurants and retailers – even big ones like Walmart – continue to curtail hours or temporarily close. The Wall Street Journal highlighted a hospitality company that needed to fly its housekeepers from various locations across the country to cover staffing issues. In September, the Associated General Contractors of America revealed that 89% of construction firms are struggling to fill craft positions and 86% skilled salaried positions.

When was the last time you had a new frontline employee start, and everyone on the team already knew their name and welcomed them as soon as they walked through the door their first day? Or when you were able to properly celebrate each of your frontline employees’ work anniversaries because you had a reminder text that it was going to be their anniversary two days in advance? Do you have automated ways to do a quick pulse check on how your new hires are doing seven days or 30 days in? Do you have an easy way to recognize one of your team members for living out your values in front of all of your employees vs. just the ones who are there for a pre-shift meeting? Another way of asking those questions is: Do you have systems set up that help you show your frontline employees just how much you value them so that they feel appreciated and emotionally connected to you and the company (aka, feeling engaged!)? At a time when staffing shortages continue to wreak havoc on many businesses – not to mention the additional stress the latest variant of COVID-19 has put on our teams – creating or enhancing engagement within your organization is an essential factor in retaining the employees you have. As difficult as the pandemic has been for businesses to keep their employees from looking elsewhere for employment, it’s become increasingly important for businesses to home in on their frontline employees. Easier said than done, right? With about 11 million job openings that more and more often include signing perks, it’s harder than ever to retain those on the front line. Making things worse is that we’re still down about 4 million workers from where we were before the pandemic, and 4.3 million Americans quit their jobs in December, often transitioning to a new opportunity. Some simple math: more openings + fewer workers = higher stress on retention. According to a U.S. Chamber of Commerce report in February, industries like leisure, hospitality, retail and healthcare have seen higher percentages of frontline employees leaving their jobs, with durable goods/manufacturing and leisure/hospitality facing the biggest shortages. Since about 90% of businesses employ frontline workers, it’s vital to redouble efforts on this invaluable asset. This is where engagement comes in. 40

Clearly, the pandemic has had an effect on worker engagement. But it also has provided an opportunity. The value of engaged frontline employees There are plenty of definitions for an engaged worker, but after 20 years of assisting and studying employers and employees, I’ve found this description sums it up best: Engagement is a heightened emotional connection that an employee feels for his or her organization that influences him or her to be more committed and to exert greater discretionary effort to his or her work. An engaged employee feels valued. An engaged employee feels connected. An engaged employee has a heightened emotional connection to work. These employees are more productive and less likely to miss work or leave their job. In addition, they often serve as valuable recruiters – employers can tap into happy employees for referrals, a strategy that easily can be employed during these wild times. What all this leads to is loyalty. An engaged frontline employee develops a sense of loyalty and trust, a sense that their work matters and is appreciated. Because of that, they stick around. And for our colleagues who are on the front line – the ones who often are interacting most with the people who make or break our bottom line – isn’t this what we want? Someone who feels empowered to do their job, knowing they are supported and a key ingredient to the larger success of the operation? Unengaged frontline employees leave, especially in today’s job market. In normal times, studies have shown that replacing an employee who leaves can cost up to a third of their annual earnings. SHRM estimated in 2019 that 67% of that replacement cost came from reduced productivity and 33% from recruiting, onboarding and training, among other hard costs. Engaging your frontline team Building an engaging relationship with your team starts from Day 1. Some might say that because of the staffing environment we’re in, the first 30, 60 to 90 days are more important than ever in making a lasting impression and hopefully reducing turnover. But, enhancing company relationships spans the rookies to veterans.

During both my time leading Snagajob, the nation’s largest marketplace for hourly workers and employers, and here at goHappy, the common denominator for our customers who have the highest engagement levels among their frontline employees, is that they make their company culture one of their top strategic priorities. Sure, it takes time and resources, but they know that the investment makes such a difference to their bottom line.

• Show gratitude by giving shout-outs to employees in pre-shift meetings and through your messaging platforms.

Here are just a few things those companies do that you might want to consider for engaging your new frontline workers:

• Make it easier for employees to communicate back to leadership.

• Share the name and picture of a new employee before their first day so everyone on your team can welcome them. • Assign a work “buddy” to show them the ropes in addition to their manager or trainer. • Seven days in, send the new employee an onboarding survey to see how they’re doing. Consider doing this again after 30 or 60 days. For your veteran frontline employees, the companies we work with that have the highest levels of engagement do a variety of things:

• Encourage employees to give shout-outs to each other in the same way. • Introduce “living the values” competitions each month, and recognize an employee who embodies your company’s spirit.

• Request fun things, like pictures for a Pet of the Week contest or recipe ideas. A few final thoughts We’re all busy. But, engaging your frontline has to be a priority. It has to be intentional. In order to do that, you need a process for it and ideally a platform that makes it much easier for you to show much you do value them. Because when you do, your frontline team members will feel that heightened emotional connection. They will be more engaged, which means they’ll perform at such a higher level. And, it will make it a heck of a lot less likely that they’ll even think of leaving.

Shawn Boyer is the Founder and CEO of goHappy, the most inclusive way to communicate and engage with your frontline hourly workforce. Among the businesses goHappy assists to improve frontline communication are Chick-fil-A, Bojangles, Chuck E. Cheese, Hand & Stone and many others with frontline workers. Prior to goHappy, Shawn founded and was CEO of Snagajob, the nation’s largest marketplace for hourly workers and employers, from 2000-13 and then Chairman of the Board through 2015. Shawn directed Snagajob’s rapid growth from an idea to a marketplace that now has over 80 million members and over 500,000 employer locations. Snagajob was named to Fortune Magazine’s Great Place to Work® Best Small & Medium Workplaces list for eight straight years (including five Top-10 finishes and a #1 ranking in 2011) and was a Deloitte Technology Fast 500 company for five consecutive years. In 2008, he was named the National Small Business Person of the Year by the U.S. Small Business Administration and received public recognition from President George W. Bush.


Is Your Workplace Safe and Healthy Enough to Retain and Attract Talent? By DENNIS HACKEMEYER

Think back six months, or even a year ago. Things at work were supposed to be back to normal. But as we enter our third year of adapting to the pandemic, employers are still grappling with what “return to work” looks like. Sure, some businesses never really adopted a remote gameplan replete with Zoom meetings, but for the majority of companies that did, many are still in transition. Fully return to work? Stay virtual? Offer hybrid or flex space opportunities? Human resources professionals always have worn plenty of hats. The pandemic has only added to that headwear. On top of retention, benefits and the ever-growing concern for employee well-being and mental health, HR professionals have been expected to become experts in providing a safe and healthy workplace. With retention more critical than ever, a clean workplace has bubbled up as a key factor in whether an employee changes jobs. According to a December survey conducted by the Cleaning Coalition of America, 43% of the 1,800 American workers who responded said they still have lingering concerns about returning to the workplace. This correlates with Morning Consult’s running tally of comfort with returning to work, which stood at 43% at the beginning of February.

What’s more, the Cleaning Coalition of America found that more than a third (38.3%) of respondents would consider changing jobs if their workplace wasn’t cleaned properly. Which begs the question: How clean is your workplace? Whether preparing for a flex return or full return, HR leaders are in a unique position to make key decisions or collaborate with health and safety directors or facility managers on ensuring hygiene is front and center.

Getting started at your workplace What employees (and visitors) want It’s pretty evident that we took a lot of things for granted before the pandemic. How often did you think about things like air filtration, UVC light technology, high-traffic touchpoints, or self-cleaning surfaces? These days, those details are important to employees as they return to the office. Manufacturing firm Armstrong World Industries found that preparing workspaces for returning workers comes with high expectations: 86% of workers “expect to feel very or somewhat safe in their workspace.” And employees who have been remote have a 16% higher concern about the health of others than those who never left the office work environment. Commercial cleaning firm Stratus Building Solutions reported that 86% of workers want proof – proof! – that regular cleaning and sanitation processes are in place in their workplaces. Our firm partnered with marketing consultant Brand Federation and found that 82% of American consumers are more aware of cleanliness when it comes to public spaces. We also asked what things around the office they avoided touching: Door handles (49%); toilet flushes (42%); safety railings (31%) and elevator buttons (28%) were mentioned most. Not surprisingly, the feelings are mutual for those who might be visiting your business. In that same Stratus Building Solutions survey, nine out of 10 said they are concerned with businesses they visit and want sanitation to be a priority, even when vaccinated. In our survey, 58% said knowing a business has


implemented the latest in cleaning would make them want to support that business. The cleanliness of your workplace matters to consumers; they want to know you care about their health and wellbeing. That means businesses need to communicate clearly with their employees and customers. Additionally, providing visible cues can create a halo effect of sorts where the caring you show provides an emotional benefit.

Employees want to be assured that their employers care about their health and safety. In turn, employers, often starting with the HR department, need to be proactive and intentional in establishing an environment where hygiene is a priority. Start by researching new and old technologies and solutions alike. Armstrong World Industries found that workers are most interested in regular cleaning/disinfectants, air ventilation that kills germs, purified air, office layout/ social distancing and germ-resistant walls and surfaces. Admittedly, your business might not be able to do everything. But it’s important to determine what is and isn’t feasible. From there, it’s crucial to establish a plan. What does company hygiene look like for the employees who already have returned? What does it look like if employees return in phases? What does it look like with everyone back in the office? Keep in mind that research shows employees what to see clean in action; their peace of mind is critical. When the plan is in place, communicating what your business is doing to ensure the wellbeing of each and every employee is critical. • Company-wide emails or texts can be sent to introduce the steps being taken or for pertinent updates. • Consider creating a microsite or materials for the company intranet for employees to have a handy place to see all that you’re doing.

• Encourage questions and feedback via a company voicemail or email address. • And continue to remind them of all that is being done – your new efforts shouldn’t be out of sight, out of mind. Ideas for a cleaner workplace When we asked facility managers about taking extra steps for a clean facility, 84% agreed that customers or clients feel a business cares about them when it goes above and beyond to keep spaces clean. One of the most important places to start – for both employees and visitors – is public spaces like lobbies, restrooms, and conference rooms. In other words, the places where the most people see and congregate. In addition to encouraging employees to continue to wash/sanitize their hands and distance when appropriate, regular cleaning of public spaces is a must. The CDC suggests that cleaning spaces once a day generally is enough if no one with COVID-19 has been in those spaces. Using CDC-approved disinfectants is encouraged, but the CDC also reminds that high-traffic areas may need to be cleaned more than once a day – a detail that’s often missed in media coverage.

It’s important for you and your team to learn about the chemistry of the products you or your janitorial team are using; too much disinfectant or mixing products can cause irritated eyes, skin rashes or breathing issues. Air filtration and ventilation also are worth consideration. As the EPA states, “air cleaning or filtration is not enough to protect people from COVID-19.” But HVAC filters and air cleaners can help reduce airborne contaminants. The EPA suggests using portable air cleaners to supplement HVAC systems and highlights the emerging technology of bipolar ionization as a consideration. Speaking of technology, UVC lighting or UVC radiation also are options, although according to the FDA, there are some limitations and possible side effects to consider. Self-cleaning surfaces that employ nanotechnology to oxidize contaminants when light hits the surfaces are being used for hightraffic touchpoints. The Clean Checklist As we return to the office, our workplaces may not ever be the same. But we can make them cleaner and safer than ever.

The Future of Clean is Here Toxin-free. Visible. Works 24/7.

Follow this simple checklist to create a future of clean. • Research cleaning options and technologies to determine what’s feasible for your office • Create a diverse team to develop a plan for a safer return to work • Implement and execute your plan • Solicit feedback from your employees • Communicate early and often about the protocols you’ve implemented • Provide regular updates • Be willing to make adjustments based on success or feedback

Dennis Hackemeyer is a co-founder of Nanotouch, a Virginia-based company founded in 2012 that manufactures a line of self-cleaning surfaces used in facilities ranging from Fortune 200 companies and healthcare facilities to hotels and all levels of government.

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Priceless Background Screening Advice…

Straight from the Experts By SUSAN MCCULLAH

H R P R O F E S S I O N A L S are responsible for many vital components affecting their organization’s health. One of the most impactful ones is background screening. The process is heavily regulated (especially in certain industries), making staying in compliance challenging. There are also rules from the FCRA that must be followed to protect consumers’ rights and privacy while still making sure you thoroughly screen your applicants. These reasons are why it’s smart to trust the experts when you’re crafting and revising your policy. We’ve compiled some background screening advice straight from the most notable industry experts. Check out what they have to say.

Bill Current, Founder of the Current Consulting Group and Author of “Why Drug Testing: Updated and Expanded for 2020”

Measuring the ROI of drug testing. “ Drug using employees cost employers an average of $8817 per year from turnover, loss of productivity, accidents, and medical costs. These costs can be reduced or almost eliminated with a thoughtful and consistently implemented pre-employment drug screening process.”

Bianca Lager, President of Social Intelligence

Many workplace issues now start with social media posts. “ The type of information people share on social media can be impactful on the workforce. One of the main trends is screening for hate speech. This is because it can lead to toxic workplace behaviors and potential external issues.

By formalizing your social media screening and monitoring policy, you maximize the chance of finding what you need without invading applicants’ or employees’ privacy.”

John Hawkins, Senior National Account Executive for Data Facts

It’s important to run a Federal Criminal Records Search if you want to find all felony convictions. “ Employers must make sure they’re checking Federal District Courts in addition to County Courts for felony records. These courts are not always checked because most felonies are logged in the county system. However, due to an increase of cybercrimes that fall into the “across state lines” category, there’s an increase in crimes being processed in Federal District Courts. Employers who are only pulling a County Criminal Records Search will miss these federal felony records.”

Johnna Leeds, Senior VP of Compliance for Data Facts

Employers are required to protect consumer data. “ Employers have legal requirements regarding the protection of consumer data. Per the FCRA, there are three current requirements. The first is limiting the dissemination of consumer information to only those with a legitimate need as authorized by the consumer. The second is retaining consumer data in a confidential manner. The third is destroying data in a secure manner. Employers must render information inaccessible, unreadable, and/or unrecoverable. FTC Rules permit the following methods: 1) burning, pulverizing, or shredding, 2) destroy or erase electronic files and/or 3) after conducting due diligence, hire a document destruction company.”


Sammie Dabbs, Senior VP of Sales at Hound Labs

Your company’s cannabis testing is still essential, even with widespread legalization. “ Even in the current climate, there are many scenarios for breath testing for recent cannabis use. Reasonable suspicion and post-accident are two types of “after-thefact” testing. As cannabis use continues to increase with legalization, employers are looking to mitigate risk. They must deter employees from coming to work having recently used cannabis. They can do this by implementing pre-access testing or random testing using a cannabis breath test. By testing for recent cannabis use, employers can avoid unnecessary adverse actions and lost productivity.”

Jared Alexander, Background Screening Thought Leader for Data Facts

Not every hire is the same. Not every background vendor is the same. Don’t get stuck thinking you have the best of both. “ A background screening policy must address different positions need to be screened in different ways. What some employers fail to realize is that their vendors differ, too. Screen and verify what your background vendor provides you. After all, your background checks are only as thorough, accurate, and compliant as your vendor’s processes and quality control standards. Make sure your vendor is highly skilled and prioritizes returning accurate results.”

W Barry Nixon, COO for

“Fight the urge to cut corners on thorough screening practices in your attempts to hire fast.” “ With the tight job market and scarcity of candidates, employers are razor focused on hiring people quickly. However, it is critical that employers keep in mind that quickly hiring the wrong person will cause them pain, agony, and real cost down the road. It is important for employers to remember that. long after the hire date is forgotten, the sting of a bad hire will linger.”

Julie Henderson, Chief Revenue Officer for Data Facts

In this hiring market, the candidate experience may determine if your hiring process works or fails. “ Unwieldy or non-existent mobile processes will frustrate and turn off your potential great hires, which can damage your company’s growth. With the increase in work-fromhome positions, applicants are accustomed to performing almost everything from their mobile devices. Basically, companies must “go where the people are” to maintain a highly-functioning hiring channel. Find a background 46

screening partner that provides ways to connect with applicants through mobile technology. App-based and text-based processes help make the candidate comfortable and confident from the beginning. Users can access the information when and where they want from the device they like to use.”

Kris Gault, National Director of Partnerships for Embark Safety

It’s time to automate your driver monitoring process. We schedule our cars for routine maintenance to prevent breakdowns and buckle our seatbelts to prevent injury in case of a crash, yet we don’t employ the same insurance measures at our companies. Commercial auto insurance has generated underwriting losses for a decade, putting massive pressure on employers to know who is driving on their behalf—including executives driving personal vehicles for work. Prevent being seen as negligent, by eliminating the weakness of not knowing when your employee has a negative mark on their driving record. Proactive companies can implement a driver monitoring system to reduce accidents, protect their brand image, track expired licenses, know when a driver has a DUI, prevent work disruption, and prevent litigation. Technology has made “you should have known that your driver had an invalid license” a thing of the past.

Stewart Gott-National Account Manager for Data Facts

Understand what you are, and are not, getting with criminal search databases. “ Don’t make the mistake of thinking criminal databases talk to each other and one check can cover everything. Background check databases are very segmented, and all crimes are NOT held in a single location. You need to order multiple criminal records searches (county, state, federal, and database searches) to thoroughly check into someone’s past.”

CONCLUSION Following these important pieces of advice from the industry experts will help you build an effective, compliant background screening policy. You’ll protect your workplace, your brand’s reputation, and decrease your chances of dealing with litigation and turnover.

Susan McCullah

Marketing Manager – Background Screening Data Facts, Inc.

Credit Reports • Criminal Records Search • Driver Monitoring • Drug Screening • Healthcare Monitoring • I-9 & E-Verify • Verifications

Are you up to date on your state’s marijuana laws?

As of 2021, 36 states have legalized medical marijuana and 18 have legalized recreational use.

Employers across the country must stay vigilant, as laws regarding pre-employment drug screening are changing rapidly. Should companies continue conducting drug testing, even for marijuana? Yes! But the landscape is changing, and employers must adapt their processes. Data Facts can help! Our completely customizable drug screening solutions (with or without marijuana testing) are tailored toward your company's needs and the laws where you do business. Partner with us to usher your drug screening program into the future.


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