Volume 12 : Issue 9
Anniversary Issue 9th Installment from Johnny C. Taylor, Jr.’s New Book, Reset
How Data Has
Jeanniey Walden, Global Chief Innovation & Marketing Officer
ADA Guidance on Long-COVID
Keeping up with changing laws is a full-time job, and you’ve already got one. EMPLOYERS AND LAWYERS, WORKING TOGETHER Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. The firm has more than 900 lawyers located in 53 offices across the United States and in Europe, Canada, and Mexico.
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of employers say skills assessments are as or more important than other hiring criteria www.HRProfessionalsMagazine.com
Editor Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher
The Thompson HR Firm, LLC Art Direction
Park Avenue Design
Contributing Writers Victor Aluise Camille Barbone Jennifer Bender Nirav Desai Amy Schabacker Dufrane Stewart Gott Geoffrey A. Lindley Suzanne Martin Mary C. Moffatt Sarah Rodehorst Johnny C. Taylor, Jr. Jim Trujillo Zachary V. Zagger
Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine.com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. 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.
5 note from the editor 6 Profile: Jeanniey Walden, Chief Innovation and Marketing Officer for Daily Pay 7 Announcing the No-Cost Solution to an Expensive Problem 8 Meet Catherine Barnes, Co-Chair Tennessee SHRM State Conference 12 8th Installment of RESET by Johnny C. Taylor, Jr. 13 Purchase Your Copy of RESET from the SHRM Foundation 35 Congratulations to D’Andrea Latham, PHR
Talent Management and Recruiting
3 Threat Training HR Pros Love 10 How Data Has Changed AI 14 Developing Leaders Through Job-Embedded Coaching 16 Challenges with Staffing Shortage in the Healthcare Industry 22 Don’t Fire Your DEI Strategy 30 New SHRM Survey Makes the Case for Skills-Based Hiring 47 Hiring the Right Healthcare Employees Can Be Complicated
18 VeracityRX – Making Pharmacy Benefits Affordable 24 Three Key Failure Points in Wellness Programs 25 Transform Your Employee Benefits from an Expense to a Competitive Advantage 32 Ensuring Your Employees are Retirement Ready 39 Employees are Your Most Valuable Assets
17 Register today for Wimberly Lawson Labor & Employment Law Conference in Sevierville, TN November 17-18 28 Employee Activism, Safety, and Support Amid Difficult Issues 34 Is Sleepwalking a Disability? 36 ADA Guidance on Long-COVID for Employers 37 Congratulations to Frank L. Day, Jr., 2023 Lawyer of the Year
Top Educational Programs for HR Professionals
3 Active Shooter Training by Safehaven Security 21 Save 20% on HRCI Courses in 2022 27 Equip Yourself to Manage and Lead 31 Register Today for Online SHRM Certification Class October 19 43 Start Your SHRM Certification Journey 48 WGU. Online. Nonprofit. Surprisingly Affordable
9 Preview of the TN SHRM Conference & Exposition in Sevierville September 14-16 15 2022 SHRM Inclusion Conference in San Diego October 24-26 26 Save the Date for the SHRM Georgia Conference in Savannah September 28-30 29 Alabama SHRM Employment Law and Compliance Conference in Auburn September 5-7 38 NCSHRM State Conference in Winston-Salem October 12-14 40 Highlights of SHRM-Atlanta SOAHR Conference July 26-27 42 Registration is Open for the Arkansas SHRM HR Conference and Expo in Hot Springs October 24-26 44 Highlights from SHRM-Memphis August Meeting 46 Save the Date for the 2022 HR Tampa Conference & Expo October 7 October Issue features Employment Law and Employee Benefits Updates and the HR Tampa Conference October 7, the NCSHRM State Conference in Winston-Salem October 12-14, and the Arkansas SHRM HR Conference and Expo in Hot Springs October 24-26 Deadline to reserve space September 15
a note from the editor
At the SHRM-Atlanta SOAHR Conference with Lars N, Minns, CHRO, Mercedes-Benz USA, NA, Chair of the SHRM-Atlanta Board of Directors; and Jason Cline, CEO of SHRM-Atlanta
We are kicking off year twelve with four important SHRM Conferences in September including the Alabama SHRM Employment Law & Compliance Conference in Auburn September 5 enjoying the Labor Day weekend at the resort! We will be in Sevierville for the Tennessee SHRM Conference & Expo September 14-16. Lastly, we will be in Savannah for the SHRM Georgia Conference and Expo. Looking forward to seeing Johnny C. Taylor, Jr. there as the keynote opening speaker! It will be a very busy and exciting month! If you are at the conferences, please come visit us at our booth! As you may know, the SHRM Certification Winter Exam
What a special issue we have for you! I am so honored and excited to present our 12th anniversary issue! We are celebrating 12 fabulous years at HR Professionals Magazine this month! Hat’s off to our sponsors, contributors, and YOU for making these past twelve years so successful! We are honored to be the official media sponsor for the SHRM State Conferences in Alabama, Arkansas, Georgia, Florida, Kentucky, Louisiana, Mississippi, North Carolina, and Tennessee. What a
Testing Window opens December 1. See Page 43 for details and the link to apply for our next Online SHRM Certification Exam Prep Class beginning October 19. The last day to register for our next class is October 12. Register at www. hrprofessionalsmagazine.com. If you are not a certified HR professional, I encourage you to get certified! It will take your career in human resource management to the next level. Get certified! Just a reminder about our complimentary monthly webinar sponsored by Data Facts. It will be September 22. Watch your email for your invitation.
pleasure to work with the SHRM State Councils and the SHRM volunteers in our distribution footprint! I also want to say a huge thank you to the extraordinary SHRM Public Affairs team who graciously works with us to bring you the latest SHRM educational opportunities, updates on SHRM Conferences, and breaking news in the HR community!
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Jeanniey on the cover
Chief Innovation and Marketing Officer, DailyPay With more than 30 years of professional experience as a successful marketing and
Additionally, Jeanniey has received
business expert, Jeanniey has certainly proven herself as a visionary of her time. She
recognitions for her entrepreneurship,
is a dynamic, results-driven leader who has demonstrated success and advancement
keynote global conference speaking,
throughout her entire career. Currently, Jeanniey is the Global Chief Innovation and
and as a sought-after “Woman in
Marketing Officer for DailyPay, Inc. – an innovative financial technology company. She
Business”, she has authored several
is also a sought-after speaker and her expert analysis on issues around work and labor
books and launched five companies.
appears regularly on media platforms such as CNBC, Yahoo Finance and Fox Business.
She serves on the board for Marketing/ EDGE and was named Transformational
Her impressive repertoire of prior roles includes Principal Analyst and CMO at The
CMO of the Year by the CMO Club.
Relevancy Group, and Global Chief Marketing Officer at Mercer, encompassing Global Business Services and Digital Growth and Innovations. Jeanniey served as the VP of
Looking back, Jeanniey attributes
Global Marketing for NOOK at Barnes and Nobles, she was the President at Indieflix.
her success to her determination, her
She also served as the Global Chief Marketing and Growth Officer at ZINIO and the
passion for marketing and business
Global EVP and Chief Marketing Officer at VIVMag. Jeanniey was the Founder and
transformation and her unique
Executive Chairperson of the Email Experience Council, Co-Founded RingBlingz, and
understanding of the personal growth
was the President and CEO of TLN and she served as the Executive Director and
needed for success. When not working,
Senior Partner for WorldWide Email Marketing for OgilvyOne Worldwide.
she enjoys spending time with her family,
Furthermore, Jeanniey is the host of SteppingUp, a podcast where she interviews
and collector. Jeanniey will continue
and showcases female business professionals from all over the world, hosts honest
leading with innovation and hopes to
discussions of innovation and provides professional insight to women moving up the
inspire other fearless business leaders
corporate ladder. She also reflects on valuable moments within her career that have
to excel and break barriers in
taught her lifelong lessons and created space for her professional advancement.
Before embarking on her professional career path, Jeanniey attended the University of Pittsburgh earning a Bachelor of Arts in Psychology and a Master of Arts in Teaching. Throughout her illustrious career, Jeanniey has received awards, accolades, and was recognized worldwide for her expertise in Marketing and Business Leadership. This year she will be honored for her distinction as Top Marketing Officer of the Year for 2022 at IAOTP’s Annual Awards Gala.
traveling and she is a shoe fashionista
Announcing the No-Cost Solution To An Expensive Problem: How to Leverage DailyPay To Improve Employee Retention BY JEANNIEY WALDEN Chief Innovation and Marketing Officer, DailyPay
For many industries from hospitality to healthcare, hiring and retaining quality talent continues to be a challenge. Over the past six years, DailyPay has partnered with America’s leading employers to offer the industry’s leading on-demand pay solution. This fall, DailyPay is expanding its offering with modern, insight-driven pay strategies that help employers build stronger relationships with their employees so they are empowered, feel more engaged and stay longer. Creating modern pay strategies can make a significant difference to both employers and employees. Empowering employees with the power of choice and control over their pay makes them feel more engaged with their company and drives them to work harder and stay longer on the job. Empowering employers with valuable insight into employee tenure can help them take action to reduce turnover before it happens. Among the expanded offerings in the new DailyPay Solution include the following: • Friday by DailyPay is the new card that can improve employee financial wellness and gives more employees access to DailyPay’s industryleading on-demand pay with no fees. When users set their direct deposit to the Friday Card, they can start making no-fee, instant transfers from the DailyPay Balance onto their Friday Card that has no maintenance fees, no inactivity fees and no minimum balance requirements. For employers, Friday can lower payroll costs and reduce the administrative burden that’s associated with supporting unbanked or underbanked employees because Friday can drive direct deposit setup—and signing up for Friday is entirely employee-driven. Friday comes with DailyPay’s robust marketing, onboarding and support services that can help drive adoption of Friday and DailyPay. With more employees using their Friday Cards and making early transfers of their earned pay, employers can see increased employee engagement and reduced turnover.
• Reward expands the value of the DailyPay solution with targeted, digital reward campaigns that help companies motivate their employees. Reward empowers leaders and managers to engage their teams with easy budgeting, reporting, and permissions. Managers can set a budget and assign managers to distribute a Reward for a specific initiative or send a single Reward. Managers can also automate campaigns to send rewards when an employee reaches key milestones. Reward’s reporting can help an employer quickly understand Campaign Performance; easily track key metrics like redemption rate and percentage of budget used. Unlike other programs that rely on points or gift cards, Reward gives employees what they want most: liquid cash. Upon receiving a Reward, an Employee can instantly send the Reward to a debit card of their choice using the DailyPay app, reinforcing the connection between the Reward and the desired behavior. • Insights does the heavy lifting with a company’s turnover data so an employer doesn't have to. With no additional software or configuration, an employer can quickly and easily understand turnover, conveniently displayed on the homepage of the DailyPay Portal. This enables companies to view MoM performance, filter by location, and quickly identify opportunities for improvement with turnover rate ratings. DailyPay uses a proprietary data science model that leverages a combination of fixed and non-fixed factors that are specific to the company, industry or market to predict future turnover rate. Insights also show factors that impact retention, such as DailyPay usage, average wages, and average hours worked. Employers can also see how turnover rate stacks up to others in your industry - the difference in turnover rate (your firm’s vs. your industry’s average) is displayed below actual turnover rate. www.HRProfessionalsMagazine.com
Meet Catherine Barnes, SPHR, PHRCA, SHRM-SCP Tennessee SHRM State Conference Co-Chair
Catherine Barnes was a student member of the American Society of Personnel Management (ASPA) while attending Ball State University in Muncie, IN. (In 1989, ASPA changed its name to SHRM.) Catherine earned Bachelor of Science degrees in Personnel Management and in Corporate Finance, from Ball State University while also graduating from the Honors College. She later earned her MBA also from Ball State University. She currently holds her SPHR, PHRCA, and SHRM-SCP. Most of her career was spent in Japanese automotive manufacturing. However, she also spent time in warehousing/distribution, in chemical manufacturing, in food processing, in teaching at the college level, in the insurance industry, and in consulting. She began her career with Aisin U.S.A. Mfg., Inc. in Seymour, IN. The company was in the process of its first expansion after being operational for only two (2) years when she joined the company. She was instrumental in helping to create the Human Resources infrastructure and in staffing the company to over twelve hundred employees. She had the honor of being the first female professional that the company hired. She also had the opportunity to train in Japan for two (2) weeks and was the first female professional to receive this training. Catherine also worked at two (2) other start-ups for the Japanese parent company. One in London, KY and the other in Clinton, TN. Again, she was instrumental in creating the infrastructures of the Human Resource departments for both companies. It was in London, that she began her first involvement with a SHRM chapter – even though there was not a chapter in the area. At her first KY SHRM Conference, she met someone else from the London area with the same passion for Human Resources that she had. At the next Conference, they began discussing the fact that Southeast KY did not have a local SHRM Chapter. Over the next year or so, the two (2) talked with others in the area about the possibility of starting a local chapter. Catherine was one of the founding members of Southeastern Kentucky (SEK) SHRM, which was chartered in 2003. Catherine served as the chapter’s first Chapter President, serving two (2) terms in this role.
Shortly after her job brought her to the Knoxville area, Catherine joined TVHRA. It was not long before she began volunteering in the chapter. She started on the Membership Committee. Since then, she has served as the Vice-President Membership, Secretary, Awards Chair, SHRM Foundation Director, Strategic Leadership Conference Chair, President Elect, President, and Past President. She has also served as the East District Director of TN SHRM. Partly because of her service to TVHRA, TN SHRM awarded her the 2015 HR Professional Excellence Award. Catherine was last employed by Shafer Insurance Agency as the Director of Human Resources while managing Shafer HR Solutions, a Human Resources outsourcing and consulting division. Here, Catherine was able to provide Human Resource support and guidance to companies who were too small to have dedicated Human Resource Departments and to work on projects for companies that did not have the resources to complete the projects. In addition to providing one-on-one support to company presidents, she spoke at the Knoxville Chamber events including topics on cybersecurity and on the new overtime rules. During 2022, she also conducted several webinars on what businesses should be doing about COVID-19 during the height of the pandemic. In addition to her volunteer roles with SEK SHRM, THVRA, and TN SHRM, she volunteered in each of the communities in which she has lived. This includes the Jackson County (IN) United Fund, Child Care Network Board of Directors, LondonLaurel County (KY) Chamber of Commerce, Anderson County (TN) Chamber of Commerce, and Irish Parent Network Uniform Closet Chair. She has also volunteered at her local churches, serving as the chair for the Outreach Committee in London and as the chair of the Finance Committee in Knoxville. Catherine officially retired in July of this year. She is looking forward to continuing volunteering in the Human Resources profession and in her community.
Mark Lindquist motivational speaker, entertainer, author
Glenn Jacobs businessman, politician, professional wrestler
Dates: Sept. 14 -16, 2022
Dr. Nicole Price author and motivational speaker
Location: Sevierville Convention Center, Wilderness at the Smokies Sevierville, TN 37876 Resort Information:
www.wildernessatthesmokies.com (877) 325-WILD
Thank you youto toour oursponsors: sponsors: Thank
is Wednesday, Sept. 14th
Dr. Garland Vance author, speaker, Executive coach
Stone Hill Lodge (attached to Convention Center) $99 / night Mention Booking ID #56430 River Lodge (Lower Hotel Resort) $99/ night Mention TNSHRM2022
September 14 –16, 2022
Regular until 09/09//2022
Full Conference: Includes Legal Day, 1.5-days Conference General and Concurrent Sessions, Breakfasts, Lunches, Exhibition Hall
Student Chapter: Full-time Student is defined as currently enrolled in 12 semester hours at a post-secondary educational institution
Legal Day: Includes 1-day Legal Conference General and Concurrent Sessions only
Company Group Discount Rates: Includes Full Conference 3 Attendees 4 Attendees 5 Attendees
$1,700 $2,200 $2,700
How Data Has Changed the World of HR Speaking with Cheddar News, Amin Venjara (AV), on how today’s HR teams are impacting the modern workforce.
Q: How does data influence the role of human resources (HR)?
The last few years have thrust HR teams into the spotlight. Think about all the changes we’ve seen – managing the onset
of the pandemic, the return to the workplace, the great resignation and all the challenges that’s brought and even the increased focus on diversity, equity and inclusion. HR has been at the focal point of responding to these challenges. And in response, we’ve seen an uptick in the use of workforce analytics and benchmarking. HR teams need the data to be able to help make decisions in real time as things are changing. And they’re using it with the executives and managers they support to make data-driven decisions.
Q: Clearly data-driven solutions are critical in today’s workforce as you’ve been discussing, where has data made the most significant impact?
When we talk to employers, we continuously hear about four key areas related to their workforce: attracting top talent, retaining
and engaging talent, optimizing labor costs, and fostering a diverse, equitable and inclusive workforce. To give an example of the kind of impact that data can have. We have a product that helps organizations calculate and take action on pay equity. They can see gaps by gender and race ethnicity and based on internal and market data. Over 70% of active clients using this tool are seeing a decrease in pay equity gaps. If you look at the size of this - they’re spending over a billion dollars to close those gaps. That’s not just analytics and data - that’s taking action. So, think about the impact that has on the message about equal pay for equal work. And also, the impact it has on productivity, and the lives of those individual workers and their families.
Q: In today’s tight talent market, employers increasingly need help recruiting and even retaining workers. How can data and machine learning alleviate some of those very pressing challenges?
Here’s an interesting thing about what’s happening in the current labor market. U.S. employment numbers are back to pre-pandemic levels with 150 million workers on the payroll. However, we’re at the lowest unemployed workers to jobs openings rate we’ve seen in over 15 years. To put it simply, it’s a candidate’s market out there; and jobs are chasing workers. Two things to keep in mind: employers have to employ data-driven strategies to be competitive. So we’re seeing with labor markets changing, remote work, hybrid work, expectations on pay and even the physical locations of workers – people have moved a lot. Employers need access to real-time data, accurate data on supply and demand of labor and on compensation to hire the right workers and keep the ones they have. The second thing is really about the adoption of machine learning in recruiting workflows. We’re seeing machine learning being adopted in chatbots for personalizing the experience and even helping with scheduling, but also AI-based algorithms to help score candidate profiles against jobs. Overall, the best organizations are combing technology and data with their recruiting and hiring managers to decrease the overall time to fill open jobs.
Overall, the best organizations are combing technology and data with their recruiting and hiring managers to decrease the overall time to fill open jobs. 10
Q: Becoming data confident might be a concern or even perhaps intimidating for some, but what’s an example of how an organization can use data well?
A lot of organizations are trying to make this happen. We recently worked with a quick service restaurant with about 2,000 locations across the U.S. In light of the supply chain challenges and demographic shifts of the last couple of years, they wanted to know how to combine and optimize the supply at each location based on expected demand. Their research enabled them to correlate demographics, things like age, income and even family status to items on the menu like salads, sandwiches and kids’ meals. But what they needed was a stronger signal on what’s happening in the local context of each location. They had used internal data for so long, but things had shifted. By using our monthly anonymized and aggregated data from nearly 20% of the workforce, they were able to optimize their demand forecasting models and increase their supply chain efficiency. There are two lessons to think about. They had a key strategic problem, and they worked backwards from that. That’s a key piece of becoming data confident - focusing on something that matters and making a data-driven decisions about it. The second is about going beyond the four walls of your organization. There are so many different and new sources of data available due to the digitization of our economy. In order to lock the insight and the strength of signal you need – you really need to look for the best sources to get there.
Q: How do you see the role of data evolving as we look toward the future of work?
Data has really come the language of business right now. I see a couple of trends as we look out. The first is the acceleration of data in the flow of work. When you look at a lot of organizations today, when people need data, they have to go to a reporting group or a business intelligence group to request the data. Then it takes a couple cycles to get it right and then make a decision. The cycle time can be high. What I expect to see now is data more and more in the flow of work where business decision makers are working immediately; they have the right data at their fingertips. You see that across domains. Second is just the separation between haves and have nots. With the increasing speed of change, data haves are going to be able to outstrip data have nots. Those who have invested in building the right organizational, technical, and cultural muscle will see the spoils of this in the years to come.
Bridging the Skills Gap: Worforce training and development remain crucial, but now it's all about remote education and distance learning CURIOSITY KILLED THE FAT
No, this is not a typo. Instead of applying the old adage to a too-clever cat, let’s think about how much the ordinary, stuck-in-a-rut worker is costing your business.
Nothing represents a reset for people more than learning and development. Today, we call these things re-skilling and up-skilling, but back in the day I thought of them as training.
Do you think this peek into the future is too out there? It’s all about adaptation to what is and what could be.
Workforce training and development remain crucial, but now it’s all about remote education and distance learning.
The worker who can embrace what’s next is the talent most essential to the future of business.
Let’s calculate the incurious mind. Think about the excess of training and resources, of time and money, spent on trying to upskill the resistant employee. There will always be a skills gap—and we need to address that with remote education, distance learning, and new tools—but what we really have to focus on is a more pressing issue: the curiosity gap.
As leaders, we need to consider how training has become an asset beyond changing the skill set of our workforce.
Who are the people in your company who ask why and then deliver the how with an understanding of what’s next?
For many, ingenuity has led to up-skilling or re-skilling in the face of being let go or even after being let go.
We’re all in the vision business. What’s ahead of us?
For others, it represents a value-added employee experience lever where people see their organization leading them through resets.
At SHRM, we’ve digested the information and pored over the research and have some insight on what’s next: • Wearable tech will invade the workspace. • The Spanification of America is real. • The terms “employee” and “employment” will be redefined. • Universal childcare will become a social entitlement. • Cities will experience a great migration to rural areas. • Much of what we know about employee engagement, resilience, and other methods will be tied to stress factors and physiological assessments. • The curious worker who can anticipate and embrace what’s next is the talent most essential to the future of business. • The curious worker is a resource saver in a workplace where we’ll have to do more with less in our pandemic afterlives.
This is not is not easily accomplished, but remains one of the most progressive ways to think of training.
While it’s imperative to find smart people with the right skills, we have to make sure we identify talents agile and flexible enough to learn the latest thing. And the company must also have great pedagogy: the training functions to teach. Here are some key questions you should consider making part of your reset repertoire:
What is the lesson for you?
• How can I ensure transfer of training to the workplace actually happens and drives value?
Training can be a pain in the ass, but it plays a vital role in employee experience, and consumer experience, and can be your biggest lever in building brand loyalty.
• Does leadership development matter in my organization?
Don’t overlook it and cut it during reset moments. If you don’t hire lifelong learners or cultivate inquisitiveness or invest in willing workers, the next paradigm shift, maybe the one happening right now, is going to unfold without your company. Then you’ll find out the hard way. The incurious employee is a money pit.
• Why can’t I just select the right people who have the tools I need? • Why is training always developed by those who have never actually practiced and succeeded? • Why aren’t there more Jack Welchs teaching? • What are the barriers to effective training supporting reset and reinvention in my organization?
Adapted from Chapter 8 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
At a pivotal moment for business, RESET outlines how organizations can redesign the workplace for a post-pandemic future The Society for Human Resource Management President (SHRM) and CEO Johnny C. Taylor, Jr., SHRM-SCP, announced his new book RESET: A Leader's Guide to Work in an Age of Upheaval, (PublicAffairs; September 7th, 2021; ISBN: 9781541700437), is available. RESET offers a candid, forward-thinking vision for leaders to reimagine company culture and presents data-driven strategies to make a foundational reset for work, workers and the workplace. Taylor's insight charts the path for businesses facing a new reality and serves as part call to action, part playbook for success to rebuild the modern workforce and meet today's extraordinary challenges. "Your biggest challenge isn't technology, innovation, or even leadership," writes Taylor. "It's finding, hiring and engaging the right talent to thrive now and in the future." As a sought-after expert and voice of all things work, Taylor is known for charting the way forward through both crisis and uncertainty. RESET envisions how to reshape the world of work and unleash untapped potential to strengthen the workforce and accelerate performance. In RESET, Taylor expounds, "We have all heard the old adage 'Never waste a good crisis.' I would offer a friendly amendment: 'Make constant reset your friend.' Upheaval brings about opportunities to rethink, reset, and restructure your organization." Under Taylor's leadership, SHRM has spurred innovative thought on how HR can empower business to meet the relevant challenges of social upheaval and global crisis. "RESET is an indispensable manual for every manager, leader and team member," says Laszlo Bock, CEO of Humu and former chief people officer at Google. "Tackling the thorniest issues of talent and culture, Johnny Taylor provides a clear, practical roadmap for leading your organization into the future." RESET is now available in hardcover, ebook and audio at all major book retailers.
All author proceeds benefit the SHRM Foundation Purchase your copy at RESET.SHRM.ORG
ABOUT THE AUTHOR Johnny C. Taylor, Jr., SHRM-SCP, is President and Chief Executive Officer of SHRM, the Society for Human Resource Management. With over 300,000 members in 165 countries, SHRM is the largest HR professional association in the world, impacting the lives of 115 million workers every day. As a global leader on the future of employment, culture and leadership, Mr. Taylor is a sought-after voice on all matters affecting work, workers and the workplace. He is frequently asked to testify before Congress on critical workforce issues and authors the weekly USA Today column, "Ask HR." Mr. Taylor's career spans over 20 years as a lawyer, human resources executive and CEO in both the not-for-profit and for-profit space. He has held senior and chief executive roles at IAC/Interactive Corp, Viacom's Paramount Pictures, Blockbuster Entertainment Group, the McGuireWoods law firm, and Compass Group USA. Most recently, Mr. Taylor was President and Chief Executive Officer of the Thurgood Marshall College Fund. He was appointed chairman of the President's Advisory Board on Historically Black Colleges and Universities and served as a member of the White House American Workforce Policy Advisory Board during the Trump Administration. He is a Trustee of the University of Miami, Governor of the American Red Cross, and member of the corporate boards of Guild Education and iCIMS. He is licensed to practice law in Florida, Illinois and Washington, D.C. ABOUT SHRM SHRM, the Society for Human Resource Management, creates better workplaces where employers and employees thrive together. As the voice of all things work, workers and the workplace, SHRM is the foremost expert, convener and thought leader on issues impacting today's evolving workplaces. With 300,000+ HR and business executive members in 165 countries, SHRM impacts the lives of more than 115 million workers and families globally. Learn more at SHRM.org and on Twitter @SHRM.
Developing Leaders through Job-Embedded Coaching By VICTOR ALUISE and CAMILLE BARBONE
What weighs most heavily on the minds of today’s business leaders? Covid-19 pandemic, supply chain disruption, global inflation? Surprisingly data reveals that worries about the lack of leadership skills and talent development within organizations top the list. In fact, the gap between leadership position requirements and the skills of existing employees is widening and impacting company profitability and employee retention. While providing leadership development through talent and human resource management organizations can be effective, it often employs a conventional model of pulling leaders away from their day-to-day work to provide “training” or hands on supervision. This model also has trade-offs because it is topic-driven and focused on “covering material,” when it should be inquiry-driven aimed at workplace challenges. Under the conventional model, leaders and “reports” often backslide into old habits once training is complete. Such leader-centered paradigms also skew the management bar, portraying managers as all-knowing, heroic, and single-handedly capable of powerfully impacting and influencing the organization and the world. Success in business depends on the knowledge, skills, and experience of its employees, not on heroism or the false belief that leaders can answer all questions. Rather than force feed solutions to their team, a leader must engage and empower the team to co-own, investigate, develop, and implement steps that lead to achieving the stated objective or goal. It is time to embrace a new approach to middleand senior-level leadership development, one that provides all levels of management with the ability to define goals, accept responsibility, create viable plans, and implement those plans for the desired outcome -- in real time and on the job. The new model is job-embedded leadership coaching, which transforms managers into true leaders and innovators. The model, based on the real-time needs of the leader, is grounded in day-to-day business practice, and is designed to build a shared, supportive, and interactive relationship between leaders and their teams. The manager or leader owns this process and is responsible for delivering organic growth in self-knowledge, performance, interactive skills, and leadership. The primary differentiator between job-embedded leadership coaching and conventional management approaches is real-time feedback and hands-off guidance from leaders and managers. Change and innovation become commonplace and part of the job experience. 14
Fueled by the pandemic, businesses must adapt and respond to change with flexible solutions; this crystalizes the power and potential of embedded leadership coaching. The art of active listening and critical questioning ensures effective, two-way communication as well as the evolution of viable action plans, which are at the core of effective leadership. An analysis of the strengths, weaknesses, opportunities, and external threats related to the person or business deepens the effectiveness of the action plan. Potential barriers, root causes, and ultimate solutions are transformed into learning experiences and viable plans for the future. Accurate, unemotional, and honest self-assessment occurs in an emotionally supportive environment. Transparency is embraced by both the coach manager and team as influencing skills, teamwork, communication, and other transferrable competencies are addressed and improved. Researchers and practitioners alike earmark selfawareness as an essential component of leadership development. Self-awareness has been defined as the extent to which individuals are consciously aware of their internal states and their interactions with others. In other words, it is an individual’s understanding of their strengths, weaknesses, and impact on others as a core leadership capacity. The scholars and practitioners of today have begun to emphasize self-awareness as an essential component of successful leadership. In addition, reflection, which is synonymous to critical thinking, places the focus on one’s behaviors, attitudes, beliefs, experiences, strengths, development opportunities and hopes for the future which, according to Dr. Suri Weisfeld-Spolter and also Roberts (2008) and Tryan (2017) is crucial to leadership development. Job-embedded leadership coaching helps to facilitate reflective practices that promote inward reflection as the tool to clarify personal values, goals and opportunities as well as looking outward to see how they connect to a larger whole (Roberts, 2008; Moen and Brown, 2017). Job-embedded leadership coaching is redefining the relationship between managers and their teams. It provides guidelines to synchronize and codify departmental and company-wide goals. It creates an environment that supports and facilitates good decision making and innovation in response to operational challenges. This type of leadership coaching is progressive in nature, enabling practitioners to leverage and build on existing strengths that are often unused, misused, or misunderstood. Working relationships grow and deepen as individuals, working together, achieve what they want and need. This is an essential component and a powerful catalyst to career success.
Dr. Victor Aluise is Vice President and Dean of WGU’s College of Business and co-creator of its new coaching program. Previously, Victor served as Head of Learning Systems for Amazon where he designed, implemented, and expanded global higher education programs in business and technology. He has held executive leadership positions at Scholastic and McGraw-Hill Education. He obtained his B.S. degree from Carnegie Mellon University and his doctoral degree in educational technology from Columbia University.
Camille Barbone is an entrepreneur and executive with over 35 years of experience. She operates a successful business coaching and consultancy practice. She has worked for major companies including Sony, Universal, American Express, Coca-Cola, Warner Chappell, and other major organizations. Camille has taught at Baruch College in New York as co-chair of the Entertainment Marketing Department and has conducted numerous seminars, panels and workshops at SXSW, the New Music Seminar and other business conferences. She has been featured in many books and has appeared on many news and talk shows. She holds a degree in Psychology from the University of So. New Hampshire and an MBA from Western Governors University. Camille owns Camille Barbone Coaching & Consulting, where she guides people through viable planning and a constant progress model that she has perfected.
DID YOU KNOW
TURNOVER DUE TO RACIAL INEQUITY IN THE WORKPLACE MAY HAVE COST U.S. ORGANIZATIONS UP TO $172 BILLION OVER THE PAST FIVE YEARS.*
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LEARN MORE AT SHRM.ORG/INCLUSION22-PRO *Source: SHRM 2021 The Cost of Racial Injustice Report
Challenges with Staffing Shortage in the Healthcare Industry By STEWART GOTT
Finding quality talent to fill jobs in the healthcare field is becoming increasingly difficult over the years. These roles, which are integral to providing a high level of service to patients, are seeing fewer people apply. This issue is concerning when viewed from a background screening standpoint. Hiring professionals who need to fill open seats may be tempted to cut corners during the screening process. This isn’t a smart move for several reasons. Let’s look at the main factors contributing to the healthcare staffing shortage, how HR can improve hiring, and some Do’s and Don’ts for making sure your facility is fully staffed.
What Is Causing the Healthcare Talent Shortage? According to a report by Mercer, the United States will lack an estimated 3.2 million healthcare workers by 2026. There are many reasons for this, two of the biggest being: • Boomers are retiring. It’s estimated that by 2026, 23,000 physicians and 900,000 nurses will permanently leave the profession. Add that the technicians, admins, and other employees who are retiring daily, and there are plenty of roles that must be filled. • COVID-19 fallout. The healthcare industry took a stressful, exhausting beating since the start of the COVID in 2020. Morning Consult reported that 1 in 5 healthcare workers quit their jobs during the pandemic. While some have returned, others may stay out of the workforce altogether or find jobs outside of healthcare.
How Can HR Improve Healthcare Hiring? Finding ways to replace these employees requires planning, strategy, and change. 5 ways to combat the talent shortage and keep your healthcare organization fully staffed are: 1. Practice Defensive Employee Retention Take steps to keep your current employees happy and engaged so they don’t leave in the first place. Give staff nearing retirement flexibility to stay on part-time. Add perks that help staff relax and de-stress during 16
the workday. Cover childcare and provide services to improve work/life balance. Managers should foster a positive company culture where everyone feels like their contributions are noticed and appreciated. 2. Expand Recruiting Efforts The places for finding talent a decade ago won’t get you many qualified candidates today. Look for creative ways to find talent. Add new job boards, amplify your social media efforts, attend college job fairs, and partner with professional staffing firms. A wider, deeper pool of candidates gives you a better chance of connecting with wellqualified people and maximizes your ability to fill open seats faster. 3. Offer Competitive Pay In this marketplace, there’s no room for lowballing. Candidates making a move in the healthcare field know they’re a hot commodity. Your hiring offers need to reflect that you understand the industry’s challenges and are willing to pay a competitive wage. Conduct research to ensure your pay scale is up-to-date and in line with what similar organizations are paying. Keep in mind the lure of a robust benefits package that includes health insurance, dental, vision, and ample time off. 4. Make Your Onboarding Seamless A recent report estimated that 1 in 3 new employees quit within 90 days. All the time and money that went into finding, interviewing, negotiating, and bringing those employees on could be at risk for swirling, unrecoverable, down the drain. Examine your onboarding process and tackle any obstacles that make it clunky or outdated. Embrace technology where you can as it speeds up the process and keeps the candidate in the loop. Assign team members and make them accountable for their section of the process, along with clear expectations of how each step should be handled. An intuitive onboarding process is essential in introducing the new employee to the company and ensuring they feel like they made a great decision. 5. Trust a Third-Party Background Screening Company Even during a staffing shortage, you should never sacrifice the safety of your patients or your organization. Healthcare screening laws are complex with federal, state, and local regulations to adhere to. Work with a background screening vendor who understands these regulations and will help keep you in compliance. Make sure they offer pre-employment and post-hire screening solutions such as license verifications
and physician credentialing that will meet healthcare accreditation board standards and weed out risky or unqualified hires. Advanced background screening technology designed specifically for healthcare can help you make faster decisions, decrease hiring time, and combat staffing shortages. Background screeners should be able to integrate with your facility’s applicant tracking software (ATS) so HR can work in both programs seamlessly, which saves time and decreases the chances of data entry errors.
Do’s and Don’ts for Addressing the Healthcare Staffing Shortage Navigating the healthcare staffing shortage takes determination and focus. Use this list of Do’s and Don’ts as actionable insights to empower your recruiting. • DO automate your recruiting and interviewing efforts • DON’T cut corners with background screening to get seats filled • DO add mobile capabilities to improve your candidate experience • DON’T stick to the old ways of recruiting • DO create a simple onboarding process • DON’T think candidates will wait around for an offer • DO look for perks that improve employee work/life balance • DON’T assume your close-to-retirement employees can’t be compelled to stay • DO invest in building a strong, positive company culture • DON’T get complacent with your candidate pool • DO always look for ways to recruit the highest-quality talent for your positions With Boomers retiring and COVID-19 causing an exodus of employees in the healthcare field, HR professionals in the healthcare industry have their work cut out for them. Successfully handling the staffing shortage isn’t simple and requires a strategy that tackles the problem from multiple angles. It’s vital to act, be creative, and look for new ways to maintain current employees as well as attract new talent. Improving the recruiting process, widening the talent pool, offering competitive salaries, and streamlining new employee onboarding can all help your company stand above its competitors and grab the top talent for your open roles.
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VeracityRx – Making Pharmacy Benefits Affordable.
Keeping Employees Happy.
Did you know? On average, nearly 3% of a member population will require a specialty medication. Even this small number can increase total pharmacy costs by 50% and create challenges for employers who want to ensure employees have access to medications. These high drug costs are also a leading cause of lasers on self-funded plans.
At VeracityRx, we help employers and employees save money without shifting costs or reducing pharmacy benefits. Our team has over 45 years of experience in the pharmaceutical industry and works exclusively for the employer. We do not accept payment from any other entity, especially not from PBMs or drug manufacturers.
Retention Rate. Our group retention rate is 98%, with tens of thousands of members covered. We pride ourselves on being customer-centric and providing innovative solutions through truth and transparency. We know that change is hard, and we prioritize the member experience.
Why Employers Love Us
Fee Guarantee. We charge a nominal monthly PEPM fee (per employee per month) to oversee and manage your program. If we do not save you the amount of our annual fee, we will refund our entire fee.
Substantial Savings. Our employers save an average of 50%. How? We save employers in a variety of ways: The PBM Contract: We write one-year contracts that employers sign with PBMs. We take out the hidden costs that benefit PBMs that were previously at the expense of employers. Select Pharmacies: We have discovered that certain pharmacies charge $20/script more than other pharmacies, and we recommend the employer incentivize members to go elsewhere. The Formulary: VeracityRx defines the formulary. While all rebates are returned to the employer, we do not manage the formulary to maximize rebates but rather to encourage utilization of the most cost-effective, clinically appropriate medications. High-Cost Drugs: We take advantage of all opportunities for the plan to save money through Personal Importation, Copay Cards, or Manufacturers’ Assistance. 18
In-house Management. Our pharmacy team, consisting strictly of pharmacists and pharm-techs, is located entirely in-house. As a result, we manage every touch point. We are in regular communication with both the employer and the patient and are also available for on-site visits to work with members. We are not an Add-on or Overlay. Many programs handle only specialty and some other higher-cost drugs but operate more or less independently from the PBM. VeracityRx is not one of those companies. We manage the entire program from contract to medication delivery, whether it’s the 97-98% who experience little change or whether it’s the 2-3% who are more impacted by our programs. We want to make sure that every member is satisfied, and that every dollar is appropriately spent.
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About Us VeracityRx offers various pharmacy options that fit your needs and budget. In addition to our retail pharmacy program, we offer a Specialty pharmacy program for members with complex health conditions that require access to Specialty or Personal Importation drugs. At VeracityRx, we don't shift cost; we eliminate cost.
Why Veracity? We deliver an average savings to employers of over 50% on their pharmacy costs. Employers working with VeracityRx average under $60 PMPM (per member per month), including specialty drugs.
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HR’s Sprint to the 2022 Finish Line BY AMY SCHABACKER DUFRANE
eptember is a special month for many reasons. It starts off with Labor Day, the well-known U.S. holiday that celebrates workers contributions. Children go back to school, wearing new sneakers and toting new backpacks. September also signals shorter days and longer nights as we near the autumnal equinox.
Getting back to September and the time remaining in 2022; you might be asking whether it is feasible to apply for your aPHR®, aPHRi™, PHR®, PHRca®, PHRi™, SPHR®, SPHRi™, and GPHR® exams. It is, and testing is offered year-round. Once a candidate meets the eligibility criteria, the candidate can submit an exam application and select a test date.
Most of all, it points us to a place on the calendar that has the potential to instill fear in many of us. It is a reminder that the year has only four months remaining and our lofty goals for 2022 might fall short if we do not pick up the pace, immediately.
It has been my experience that applying project management design principles to your certification or recertification journey helps maximize your time. First, do what is needed and adds value. Since certified HR professionals not only command respect, have more career advancement opportunities and might even see a pay boost, I think we can all agree on its value. Next, is it fit for purpose? Most definitely. HR professionals who have invested in their certifications amass skills that support the workforce and organizational goals. Speaking of goals, determining if the effort involved will align with strategic objectives is another “pas de prise de tête” or no-brainer. This reminds me to mention that HRCI exams are available in various languages.
Recently, I ran an informal poll on LinkedIn and Twitter to see what is on the minds of HR professionals. The question asked was: “What’s your professional development plan for the balance of 2022?” Within hours, a clear majority emerged for certification or recertification, followed by events or networking. The gap between these two options was significant, with 53 percent saying certification and recertification mattered most. Roughly 30 percent said events, 11 percent favored mentorship and 6 percent had other plans. When it comes to signals, I think we found our winner. Certification is a career-long commitment that demonstrates dedication, credibility and mastery of the principles of human resources. It benefits the HR professional, as well as employers, clients, staff members and professional peers around the globe. Most of all, certification attests to the investment you have made in your HR career and holds a recognized and highly valued place in the profession. Did you know that more than 500,000 HR professionals in over 125 countries have earned HRCI credentials? A mark of high distinction and honor in the human resource management field, the HRCI community of credentialed professionals represents all levels of HR job experience and seniority. VPs, directors, managers and specialists have been certified for their knowledge of HR operations, recruitment and selection, compensation and benefits, development and retention and employee relations, health and safety. Even organizations are getting in on certification following the launch of the Human Resource Standards Institute (HRSI) earlier this year. Why is all of this so important to our industry? Opportunity. The HR career track is experiencing steady growth; the number of human resources workers in the United States is predicted to increase 15 percent by 2025. Organizational complexity is also increasing, making the role of the HR professional even more complicated. 20
With much of 2022 in the rear-view mirror, many of us are concerned about what we can accomplish as we rush to the finish line. I will not try to entertain you with quotes about time and age. Suffice to say that as the winds of September start to blow and you prepare for 2023, one of your biggest priorities should be your own career self-care. It is that focus that increases the potential of your journey and makes you a more valuable partner to your employer. After all, why should the kids be the only ones going back to school?
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.
Save 20% on HRCI® Courses in 2022 CERTIFICATE IN DIVERSITY AND INCLUSION IN HR MANAGEMENT
The three courses comprising our certificate were developed in accordance with the International Organization for Standardization’s guidance on diversity and inclusion for organizations (ISO 30415:2021).
• Fostering an Inclusive Culture • Assessing Diversity and Inclusion • Hiring and Retaining Diverse Talent Earn 12 general HR credits towards any of HRCI’s eight credentials, including SPHR® and PHR®.
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Don’t Fire Your DEI Strategy
Fair separation practices that won’t undermine your DEI progress (or land you in court) By JENNIFER BENDER & SARAH RODEHORST
After the summer of 2020 spotlighted the racial tension that has been building in the United States, many companies placed greater emphasis on diversity, equity, and inclusion (DEI). In 2021, about 83% of U.S. organizations reported having diversity, equity, and inclusion initiatives, according to a survey by WorldatWork. Of those organizations, 89% used metrics to track DEI in recruitment — an indicator of progress. Companies talk a lot about diversity, equity, and inclusion in recruitment and hiring. However, there’s an absence of data related to employee separations, and especially involuntary separations. U.S. Bureau of Labor Statistics data shows that approximately 12% of the private workforce is involuntarily terminated each year. With more than 1 in 10 employees involuntarily terminated annually, companies must consider how these separations impact their DEI strategy. Even organizations with the best laid DEI plans may be surprised by the story the data tells about involuntary separations — whether due to layoffs or for-cause terminations. Most organizations manage employee separations manually, making it difficult to implement consistent and fair separation processes. Without automation and centralized data, transparency is limited, creating challenges when auditing for bias. There are two tiers to the DEI discussion. The first relates to legal boundaries for compliance with federal and state regulations. The second is about culture and strategic decisions to embrace a diverse, equitable, and inclusive workforce.
The Role of the EEOC The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal laws that make it illegal to discriminate against job applicants or employees. The EEOC oversees several regulations, including - Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination on the basis of race, color, religion, national origin, or sex; - The Americans with Disabilities Act (ADA), which prohibits discrimination based on disability; and 22
- The Age Discrimination in Employment Act (ADEA) and the Older Workers Benefit Protection Act (OWBPA), which together prohibit discrimination based on age. To stay compliant, employers should evaluate for potential discrimination throughout the employment process — but what does that really mean?
Prevent Bias in Your Selection Criteria When planning a workforce reduction, an employer’s most important decision is identifying why employees will be let go. Companies make layoffs for many reasons, like reducing costs, restructuring, moving operations, selling an operation, or changing technology. Creating selection pools — i.e. the employees considered for reduction — is key when planning a reduction in force. Does your selection pool create risk of bias? Fair and equitable decisions can get messy when mixing reduction in force selection criteria. Therefore, it’s best to choose a single criterion, commit to it, and use DEI analytics to audit your decisions for inadvertent bias. Tenure and work elimination are relatively risk-averse reduction in force (RIF) selection criteria. If companies choose tenure, for example, they should follow the “last in, first out” rule because it’s objective. Employees who are the most tenured are typically older and age discrimination comes into play, whereas newer employees that are impacted may typically don’t meet that age threshold. Like tenure, work elimination is a straightforward criterion to use when selecting employees. If certain positions are going away or an operation is being relocated, the selection pool is easy to identify. Companies should choose selection criteria that eliminate the risk of bias. Selection criteria that can undermine your DEI strategy include things like employee performance or skill set. These factors are more subjective, so they require solid supporting documentation. This includes performance reviews, skills surveys, email, feedback forms, or other productivity measurements. If companies use employee performance as their measure, ensure
documentation illustrates that the employee knows where they stand. Employees should already know they are low performing in comparison to their peers. Carefully identified selection criteria can set a company up for success, but a less strategic approach can create significant risk.
Evaluate for Adverse Impact During a Layoff Diversity and inclusion should be top of mind during RIFs. Companies should run the numbers to ensure a particular employee demographic is not disproportionately impacted. If decisions adversely impact a protected employee class, companies will lose diversity of thought and create greater risk of discrimination claims. For example, RIF selection criteria like reverse tenure (those with the longest tenure are the first to go) or largest salary put the company at risk of a lawsuit. Why? These scenarios are most likely to impact older employees, increasing the potential for age discrimination claims. Regardless of RIF selection criteria, companies should always complete an adverse impact analysis. This helps ensure a protected employee class isn’t unfairly impacted. Employers can evaluate employment decisions for adverse impact using the FourFifths Rule. If the selection rate for a certain group is less than 80% of the selection rate for the group with the most favorable rate, then that group has been adversely impacted. In hiring, the most favorable rate is the highest rate, meaning all hiring rates should be at least 80% of the highest hiring rate. For terminations, the most favorable rate is the lowest rate, meaning all termination rates should be at least 80% of the lowest termination rate. Though the Four-Fifths rule is widely accepted for large RIFs, it is sometimes criticized when used for smaller data sets. Therefore, to mitigate bias in RIFs, it’s best to evaluate your data against additional statistical models — including the Fisher Exact, Chi Square, and Standard Deviation.
Leverage Descriptive, Predictive, and Prescriptive DEI Analytics In addition to evaluating every RIF for adverse impact, organizations should measure voluntary and involuntary attrition on a monthly basis to identify any global trends that could reverse the company’s DEI progress. This data can then be used to forecast likely outcomes if there are no changes to the company’s separation practices. For more advanced organizations, the data can be used to model scenarios and evaluate actions or interventions that best support the company’s DEI strategy.
Prevent Age Discrimination by Complying with OWBPA When letting go of employees 40 years and older, companies should understand the requirements of OWBPA (defined earlier in The Role of the EEOC). OWBPA mandates requirements that protect older workers when asking them to “knowingly and voluntarily” waive their rights under the ADEA. The OWBPA waiver of rights is often part of the employee separation agreement. The EEOC pinpointed seven criteria that must be met to ensure a waiver of rights is knowing and voluntary under OWBPA. • Be written in a manner that can be clearly understood. • Specifically refer to rights or claims arising under the ADEA. • Advise the employee in writing to
consult an attorney before accepting the agreement. • Provide the employee with at least 21 days (45 days in group layoffs) to consider the offer. • Give an employee seven days to revoke his or her signature. • Not include rights and claims that may arise after the date on which the waiver is executed. • Be supported by consideration in addition to that to which the employee already is entitled.
pay and generate severance packages to ensure consistent severance practices, all while the tool tracks notifications, deliveries, and signatures. Separation technology empowers HR, legal, and finance teams to protect their company and their employees by improving compliance, preventing bias, and promoting equity. Companies benefit operationally by reducing time spent and hard costs. Better yet, companies deliver a consistent, fair, and supportive employee exit experience that promotes a culture of trust while protecting the employer brand.
While employers may find it difficult to disclose the age of all considered and impacted employees, it is an OWBPA requirement that provides employees with the information they need to assess for age discrimination.
Develop Fair Separation Practices with Technology Separation technology simplifies individual separations and RIFs in compliance with corporate policy and employment laws. It guides human resources and legal teams through the separation process to mitigate bias and prioritize compliance. For example, companies can use separation technology to build employee pools and justify selections, comply with the Worker Adjustment and Retraining Notification Act (WARN), assess for adverse impact, and generate OWBPA disclosures. Companies can even calculate severance
SVP People Solutions Change Healthcare email@example.com www.changehealthcare.com
CEO & Co-Founder Onwards HR firstname.lastname@example.org www.onwardshr.com
Three key failure points in wellness programs and how to overcome them By NIRAV DESAI HR professionals have a difficult task in determining how to best allocate their benefits dollars to foster recruitment, retention, productivity, performance, and overall satisfaction. Invariably, the largest portion of the budget goes to healthcare, i.e., medical insurance. The budgetary emphasis on medical care comes as no surprise. According to the Network for Excellence in Health Innovation, 88% of healthcare funds are spent on clinical care.1 The remainder is spent on other factors that influence health outcomes – health behaviors, the physical environment, and social and economic determinants of health.
Some solutions focus on broad healthcare behaviors, such as nutrition, exercise, and health literacy, while others focus on specific behaviors or conditions like smoking or diabetes. The challenge for employers is that many of these programs fail to engage enough people or yield consistent, sustainable results. This can be frustrating for HR professionals who invest in a wellness program – even one that includes significant incentive dollars to drive participation – only to end up with lax participation or disappointing outcomes. So, what should you look for in a wellness program intended to drive better health behaviors? There are several areas where behavior change strategies can fail: • Failure to understand individual motivators • Failure to understand context • Failing to learn and adapt Let’s walk through each one.
Understanding individual motivators
Surprisingly for some but not for others, only 20% of health outcomes are actually attributable to clinical care.2 Yet 30% of health outcomes are actually impacted by health behavior.
Intuitively, we know that people are not all motivated by the same things. For many, it’s economics. In the context of a wellness program, financial incentives can include cash, gift cards, medical insurance premium discounts, etc. Others are motivated by insight and education, e.g., knowing their lab work numbers and increasing their health literacy. For others, motivation might come through the competitive or social aspect of competing with colleagues or friends in a health challenge. The big takeaway is that there is no single motivator that will work for everyone. From an HR standpoint, a wellness program or strategy should include a variety of motivators in order to reach a broad group of expected participants. Again, variety can come through financial incentives, insight and education, coaching, or gaming and social components.
Within both the healthcare ecosystem and employer groups, a recognition of the strong impact of health behavior on outcomes has led to strategies such as increasing health literacy, health coaching, gamification / challenges, reminders, etc. A cottage industry of wellness programs also has emerged around the holy grail of influencing health behaviors. 24
On this topic, key questions for a wellness program will include: • How does the program engage people whose health behaviors are motivated by different factors? • What kinds of motivators are used and how effective have they proven to be? • Which motivators will the employer have to fund or help manage?
Understanding context We know that every individual has their own unique wellness journey. So if a wellness program does not take that into account, relying instead on generic wellness strategies for motivation and education, it will not meet individuals where they are on their journey. The most effective programs include tools such as lab work, fitness tests, biometrics (e.g., blood pressure, heart rate, and waist circumference), fitness trackers, health risk assessments and/or interviews/coaching. All of these provide a clearer health snapshot of each individual so that guidance can be provided in the context of their specific risks and goals. The key is to go beyond mere information collection toward a program that actually uses data to help guide each individual along their journey. On this topic, key questions for a wellness program will include: • What does the program learn about participants in order to meet them where they are on their wellness journey? • How does the program use individual information to create personalized wellness journeys? • Is the information secure?
Learning and adapting We know that as life situations change, people change. For example, a woman who has successfully lost weight may want to raise her game and run a race. An otherwise healthy individual could suddenly begin to struggle with mental health issues following a death in the family. Or maybe someone who has participated in several past health challenges may become bored with the idea and decide to no longer participate. While we’ve pointed out that programs should take people’s context into account, the fact that interests and goals change means that wellness programs cannot just rely on initial information as the only basis for the entire wellness journey. Programs must have an ongoing feedback loop to learn whether a wellness pathway is still effective, or a change is needed. Feedback loops could include intermittent questionnaires that check in on participants and their assessments of the program’s effectiveness, trackers that determine whether people are reading their
notifications or responding to behavioral nudges (e.g., to be more active), or human coaches who can check in with participants for one-on-one conversations about their journeys. Of course, with newfound insights from the feedback loop, the program should adapt as needed to help people refocus, change motivators to reignite interest, and/ or create new goals and targets. On this topic, key questions for a wellness program will include: • How does the program establish an ongoing feedback loop to learn how participants are doing? • How does the program use ongoing insights to improve the participant experience and journey?
Final thoughts Looking at the big picture of what makes a wellness program succeed, you’ll notice that the failure points occur when there is less information about the individual and their wellness journey. What motivates them? Where are they now on their wellness journey? How can we use what we’re learning to guide them toward their next steps? The goal is a program centered around personalized wellness. Each employee has their own unique wellness journey based on who they are and their unique life situations. As an HR leader, aim for a wellness framework that has the versatility to suit a broad range of individuals with different goals and motivations, and the flexibility to adaptively guide people along their individual health and wellness journeys. 1 New England Healthcare Institute. The Boston Paradox, page 17. 2 University of Wisconsin Population Health Institute and the Robert Wood Johnson Foundation. https://www.countyhealthrankings. org/explore-health-rankings/measures-datasources/county-health-rankings-model
Senior Vice President, Managing Director - Peak Health A Division of McGriff Nirav.Desai@McGriff.com www.McGriff.com https://peakhealthservices.net
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ONE ONESHRM SHRM GEORGIA GEORGIA2022 2022
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At the One SHRM Georgia Annual Conference 2022 in Savannah in late September, Greg Hare of Ogletree Deakins – Atlanta will make a presentation addressing “The Rise of Workplace Toxicity … an Employment Lawyer’s Guide to Minimizing Legal Risks.” This Ogletree Article provides an insightful preview of the topics that Mr. Hare will address.
Employee Activism, Safety, and Support Amid Difficult Issues By SUZANNE L. MARTIN: OGLETREE DEAKINS – LAS VEGAS & ZACH V. ZAGGER: OGLETREE DEAKINS – NEW YORK
ecent social and political controversies, such as rulings from the Supreme Court of the United States, international conflicts, and mass shootings, are likely to cause more employees to voice their opinions and frustrations both in and
outside the workplace, whether through conversations, social media, or participation in marches, protests, and similar events. Some workplaces could be further impacted by local protests, marches, or unrest that may make it unsafe for employees to go to work or remain at work. Employees may request time off because they want to participate in political and social justice events or may need mental health support. Anticipating these situations and knowing how to respond to them will allow employers to better manage these situations and engage with their employees.
Employee Activism With regard to speech or expression in the workplace, although some employees may believe that their constitutional right to free speech provides wide protection, the First Amendment is actually somewhat limited. The First Amendment states, “Congress shall make no law … abridging the freedom of speech,” meaning the First Amendment applies to government action and not to private employers. So the speech of private-sector employees is not necessarily protected by the First Amendment—and, in fact, private employers have discretion to discharge or discipline employees for their speech, for example, inflammatory or hate speech, even when the speech occurs while an employee is off duty. 28
However, the First Amendment’s protections do extend to public-sector employers, making it more difficult for them to regulate employees’ speech online. Even with private workplaces, several states have laws that protect employees from discrimination for political expression and other political activities. Many of the issues arising today have a close political connection, and, depending on the specific context, speech on the issues could be classified as a protected political activity. The National Labor Relations Act’s protection of expression regarding the terms and conditions of employment and other concerted activity could also come into play. While many of the current issues do not specifically apply to the terms and conditions of employment in a specific workplace, National Labor Relations Board General Counsel Jennifer A. Abruzzo has taken an expansive view of what speech could be protected. She has suggested in recent public statements that speech about social and economic justice is still protected speech because employers have it within their power to address some of these issues. At the same time, employees have a right to workplaces free from discrimination and harassment under Title VII of the Civil Rights Act of 1964 and other laws. Many of the discussions of controversies in the news can be fraught. Employers may take action to ensure that employee disagreements do not turn into unprofessional, disrespectful disputes, harassment— or worse—threats and violent acts. Employers may restrict speech and other forms of expression that “cross the line,” violate codes of conduct and policies prohibiting harassment and/or discrimination, or threaten the safety and health of employees. Under many circumstances, disciplinary action and/or termination may be appropriate.
Impact on Morale and Safety Beyond issues of employee speech and expression, local protests or general unrest may disrupt the physical workplace. For example, some employees may commute through areas or work at locations where there are protests or there is unrest, meaning that getting to work may be intimidating, unsafe, or impracticable. Employers—especially those with multiple worksites in large cities or that may be the target of protests or potentially dangerous activity—may want to consider designating an individual to monitor events that will affect employee ingress and egress and the general safety of worksites. Employers may want to formulate a response plan that outlines situations when employees will be asked to stay home, flexible scheduling arrangements, and, to the extent feasible, work-from-home arrangements. Such a plan may also cover whether the employer needs to secure the worksite, how the employer will handle any related wage and hour issues and whether paid leave will be available. The response plan may further contemplate emergency evacuations, how to communicate with employees about developments that affect their ability to work, and what the company will do if its worksites are damaged during protests or unrest to the extent that it prevents employees from coming to work for more than a few days. Beyond this, there may be those who have reactions to political, social, and judicial events that, for them, interfere with their ability to work. Employers may receive increased requests from employees seeking time off or needing the assistance of mental health professionals or employee assistance programs (EPA). Employers may consider reminding employees of the resources
available to them if their well-being has been adversely affected by current events. In addition, employers may grant sick time or paid time off (PTO) requests for those employees who seek time off in the wake of any particular event. In some instances, employers may need to offer family and medical leave or reasonable accommodations consistent with state and federal disability laws.
Key Takeaways There are some actions employers can take in preparation for times of increased employee activism in the workplace. First and foremost, employers can anticipate and have a plan. An employer’s leadership, legal department, and human resources department can come together to identify various “what if ” scenarios and agree on how to respond to them in addition to who will be involved in the decision-making process about what to do in each scenario. Employers can communicate with frontline managers, either to advise them of the company’s plan (depending on the scenario) or leaders to whom they can report incidents, complaints, or concerns. Additionally, employers can communicate with employees to ensure they understand, or at least are reminded, of their obligation to conduct themselves professionally while at work and know what resources are available to them if they need support.
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New SHRM Research Makes the Case for Skills-Based Hiring
79 percent of employers say skills assessments are just as or more important than other hiring criteria.
SHRM (the Society for Human Resource Management) released new research August 15, 2022, that shows more than half of employers— 56 percent—use pre-employment assessments to gauge job applicants’ knowledge, skills and abilities. The recent survey of 1,688 HR professionals reveals trends in the use of skills assessments in hiring, including a willingness on the part of employers to consider candidates who do not have a college degree or the minimum years of experience. SHRM found that 79 percent of HR professionals say that scores on skills assessments are just as or more important than traditional criteria in hiring decisions, and 36 percent say a job candidate who scores high on an assessment but doesn’t meet the minimum years of experience is very likely to make it onto the list of final candidates. “With employers still struggling to fill vacant positions, HR professionals are leading the way in using skills-based hiring and skilled credentials to acquire top talent,” said SHRM Chief of Staff and Head of Government Affairs Emily M. Dickens. “I was honored to speak on this topic during a recent roundtable with the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs. SHRM will continue to partner with government and business leaders to reach untapped talent pools and grow diversity in the workplace.”
Here are other key findings from SHRM’s survey: • 28 percent of HR professionals said a job candidate who scores high on the assessment but doesn’t meet the minimum education requirement would be very likely to make it onto the list of final candidates for consideration. Forty percent said that would be somewhat likely in the same scenario. • 82 percent of organizations that require work samples or work simulation tests do so for applicants identified for further consideration. • 78 percent of HR professionals say the quality of their organization’s hires has improved due to their use of assessments. • 23 percent of HR professionals said the diversity of their hires has improved using these assessments. • Of organizations that utilize pre-employment assessments, 1 in 4 plan to expand their use of these assessments in the next five years. • Of organizations that don’t utilize pre-employment assessments, 1 in 10 plan to start using them in the next five years. SHRM recognizes the importance of assessments linked directly to skills the job requires. Learn more at SHRM.org.
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About the instructor: Cynthia Y. Thompson is Principal and Founder of The Thompson HR Firm, a human resources consulting company in Memphis. She is a senior human resources executive with more than twenty years of human resources experience concentrated in publicly traded companies. She is the Editor | Publisher of HR Professionals Magazine, an HR publication distributed to HR professionals in Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, and Tennessee. Cynthia has an MBA and is certified as a Senior Professional in Human Resources (SPHR) by the Human Resource Certification Institute and is also certified as a Senior Certified Professional by the Society for Human Resource Management. She is a faculty member of Christian Brothers University. Cynthia was appointed to serve on the Tennessee DOHR Board of Appeals by Gov. Bill Haslam in 2014. www.HRProfessionalsMagazine.com
Ensuring Your Employees Are
Retirement Ready By JIM TRUJILLO
For many of us, retirement may seem like a distant dream with images of endless rounds of golf, days of lounging on the beach, or finally enjoying some long-lost hobbies. But making those dreams become reality comes with a lot of work. Due to many different factors, including the global pandemic and much of the baby boomer generation nearing retirement age, we are seeing a huge portion of our workforce think about retirement more than ever before. According to the US Census Bureau, nearly 10,000 Americans will turn 65 every day until 2030. This is a great opportunity to help a large portion of the American workforce reach their retirement dreams but there are still major concerns with the ability to cross that finish line. Over the last few years, market volatility and inflation have made employees uneasy about their retirement readiness. According to BlackRock’s 2022 Read on Retirement, 87% of employees, across all generations, reported they are concerned about inflation’s impact on their retirement. If so many employees are concerned about their retirement, what can employers do to help?
of employees, across all generations, reported they are concerned about inflation’s impact on their retirement.
FINANCIAL EDUCATION Preparing to be financially stable in retirement doesn’t just happen – it takes years of planning and commitment. Many American workers are still living paycheck to paycheck, making the idea of saving for retirement seem like an unattainable goal. For many, the first step towards reaching financial stability is understanding where they currently are, and the gap between where they want to be. Recent trends indicate that workers are pushing their employers to offer more financial wellness support. In fact, 68% of employees polled in a recent Betterment study stated that they would prefer financial wellness benefits over an extra week of vacation. That’s insane! In turn, many companies are listening and establishing financial wellness programs for their employees. These programs can provide employees with a foundation of knowledge and address personal financial topics such as budgeting, debt-repayment, and saving for retirement. But taking this a step further and understanding exactly what near retirement employees are worried about can provide a more meaningful wellness program. 32
For example, according to a recent VOYA survey (Ask Your Target Market online research platform between Jan. 18–26, 2021) 57% of workers over 55 don’t know how to estimate future healthcare costs. With medical costs being one of the largest expenses in retirement, it could easily reduce some major stress knowing what to expect and how to prepare. That same survey also showed that 86% of American’s want help understanding how to generate a stream of income in retirement. This stat is proving that employees know how to use a 401(k) to save but have no idea what happens with it once they hit retirement and instead of adding to it need to take from it. As HR professionals, our job is often times focused on how to help our employees now, but these employees closer to retirement are more focused on the next chapter of their life so we should see this as a great opportunity to pivot our education more towards what the future holds for them. Additionally, companies have embraced a variety of tools to get this information to their employees. Some employers offer online financial guidance through articles or videos, while others provide a collection of services both online and in person, including workplace seminars or assistance by phone. Both solutions can provide employees access to information that can help them better understand their personal situation and help them reach their personal financial goals.
MAKE A PLAN & WRITE IT DOWN You may be familiar with the theory that you are more likely to achieve your personal goals if you write them down. In fact, according to Mark
Murphy, CEO of Leadership IQ, vividly describing your goals with pen to paper makes you 1.2 to 1.4 times more likely to successfully accomplish them. Unfortunately, the majority of American workers are not taking this advice. Based on a survey from the Transamerica Center for Retirement Studies (TCRS), only 29% of workers have a written financial strategy for retirement. But having a written plan in place isn’t the only challenge. Over the course of a lifetime, marriage, children, buying a new home, divorce, health challenges, job loss and endless other events that could derail a perfectly good retirement plan. One way to ensure your plan is on track is to conduct a periodic review. This assessment should include checking on your spending and saving, monitoring your investments’ performance and your personal risk tolerance, and making sure you are insured correctly in case of a financial emergency. Many employers are going a step further and enlisting the help of a licensed financial professional to provide employees with an unbiased second opinion on their overall financial plan.
where you want to be and who you want to be with in retirement can be emotionally draining. Many employers are taking this opportunity to have critical discussions with their employees so they can experience a smooth transition into retirement. Some are even hiring coaches and mentors to help guide those conversations. Additionally, companies are opening up lines of conversations with their employees sooner. This allows for a clear understanding of their employee’s retirement intentions ahead of time to help the company better prepare for the road ahead. While there are many facets to retirement planning, employers that plan for their workforce’s needs can take a confident next step in ensuring a smooth transition for their employees’ retirement.
GET IN TOUCH WITH YOUR EMOTIONS You may be surprised to hear a financial advisor say that there’s more to retirement than just the numbers. Deciding when and how to retire can be one of the most important decisions we can make, and understanding the emotional aspects of this decision can make a huge impact on your nonworking years. One way to ensure an easy move into retirement is to have an open line of communication from the beginning. Retirement is a very personal situation and can mean a number of things for different individuals. Pondering how to find fulfilling ways to spend your time,
Jim Trujillo, CFP®, PPC®
Financial Advisor JimTrujillo@argi.net www.ARGI.net
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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.
Can An Employer Discipline An Employee For Sleepwalking? By GEOFFREY LINDLEY
Jennifer Harkey had an unfortunate encounter with a male co-worker while she was sleepwalking. She was fired. Harkey v. NextGen Healthcare, Inc., 2022 U.S. App. LEXIS 19641 at *1 (5th Cir. July 15, 2022)
A Strange Employment Situation An Out-of-Town Business Trip and an Unexpected Encounter Jennifer Harkey had worked for NextGen Healthcare, Inc., as an implementation specialist and then as a sales specialist since March 2008. NextGen, 2022 U.S. App. LEXIS 19641 at *1. There is no evidence that NextGen ever had any issues with Harkey as an employee. However, that all changed in October 2018. Harkey and other NextGen employees were attending a national sales conference at a hotel in St. Louis, Missouri. On the evening of October 10, 2018, Harkey had dinner and a few drinks with a female co-worker. She then retired to her hotel room where she watched some television and fell asleep. Id. at *1-*2. That same evening, Scott O’Donnell, another NextGen employee attending the conference, was drinking at the hotel bar. Id. at *2. Upon returning to his hotel room, he heard a knock at the door. Id. He assumed that the knock was by one of the other men who he had been visiting with at the hotel bar, so he opened the door without checking the peephole. Id. He immediately saw Harkey who was wearing nothing but a black cotton robe that came to her knees. Id. O’Donnell was shocked and moved backwards, at which point Harkey entered the room. Id. O’Donnell did not recognize Harkey and exclaimed, “I think you’re in the wrong room. What are you doing here? You need to get out.” Id. He again repeated, “You’re in the wrong room.” Id. Harkey did not reply and simply walked over to a made bed, got in it, and pulled the sheets up. Id. O’Donnell testified that “[s]he just laid there, didn’t move and was nonresponsive to me asking her to leave and telling her she was in the wrong room.” Id. According to O’Donnell, Harkey never touched him, harassed him, or sexually propositioned him in anyway. Id. at *2-*3. Nevertheless, O’Donnell was very concerned as he was a married man on a business trip who now had a strange woman in a bed in his hotel room. Id. at *3. Therefore, O’Donnell called his supervisor, Sean Murtagh. Id. Murtagh came to his room and did not recognize Harkey, so he called NextGen’s Human Resource Director Jill Burke, who was also at the conference. Id. When Burke arrived in O’Donnell’s room, she repeatedly tried to wake Harkey who, according to Burke was “smell[ing] of alcohol” and “exposing skin.” Id. After several attempts, Burke was finally able to wake a disoriented Harkey. Id. 34
Thereafter, hotel security escorted Harkey back to her room. Id. She was embarrassed and very apologetic and told Burke that she has had an issue sleepwalking since she was a child and that must have been what happened here. Id. at *3-*4. Harkey also confirmed that O’Donnell did not touch her in his hotel room. Id. at *4. HR Investigation As part of her investigation of the incident, Burke asked O’Donnell to write out a statement about what happened. Id. However, O’Donnell was uncomfortable with what he felt were “accusatory-sounding questions” from Burke the night of the incident. Id. Therefore, O’Donnell wanted to speak with an attorney before writing a statement. Id. During his deposition, O’Donnell testified that he was concerned “with how his wife would react to learning about the situation and, more generally, about how it might be interpreted in the ‘Me Too’ era.” Id. The morning following the incident, Burke met with Harkey in a conference room at the hotel. Id. According to Harkey, while Burke questioned Harkey about the prior evening, Burke stated that Harkey “was in very big trouble,” and “needed to be concerned.” Id. at *4-*5. Harkey told Burke that while it rarely happens, she has sleepwalked since her childhood. Id. at *5. During this conversation, Burke suspended Harkey with pay pending the results of the investigation, and, according to Harkey, told Harkey that she was a “liability” and should “call a doctor.” Id. Medical Condition and Termination On October 12, 2018 (one day after the incident), Harkey contacted a physician about an appointment. Id. On October 16, Harkey emailed Burke advising her that she was seeing a doctor the following week. Id. However, on that same day, NextGen terminated Harkey because of her behavior in going to O’Donnell’s hotel room. Id. The following week Harkey’s doctor diagnosed her with somnambulism, also known as “sleepwalking disorder.” Id.
Did the Employer Overreach? In September 2019, Harkey filed suit in United States district court against NextGen claiming that she was terminated because of her disability in violation of the Americans with Disabilities Act. Id. at 6. The district court granted summary judgment in favor of NextGen, thereby dismissing Harkey’s suit. Id. Harkey then appealed to the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit spent little time examining whether Harkey’s sleepwalking was a disability. Instead, the court determined that “[t]he dispositive question . . . is whether Harkey suffered an adverse employment action because of her disability.” Id. at *8. In analyzing this question, the court noted that Harkey’s case was like two prior Fifth Circuit cases. In one case, an employer terminated an employee with PTSD who had “an angry and profane confrontation with his manager” even though his PTSD likely caused the outburst. There, the court held that the ADA does not protect an employee whose violent and emotionally charged outbursts are the result of an impairment. Id. (See Hamilton v. Sw. Bell Tel. Co., 136 F.3d 1047 (5th Cir. 1998)). In another case, an employer fired an employee whose verbal abuse of his supervisor for denying his leave request was most likely attributable to the employee’s bipolar disorder. Id. at *8-*9. In that case, the court determined that the employee could not avoid responsibility for his own actions because of his disability. Id. at *9 (See Seaman v. CSPH, Inc., 179 F.3d 297 (5th Cir. 1999)).
In Harkey’s case, the Fifth Circuit held that the principle outlined in Hamilton and Seaman applied. Regardless of why she did it, Harkey’s behavior in entering a male employee’s hotel room on a business trip while not fully clothed and getting into his bed was inappropriate and unprofessional. Even if her medical condition that results in sleepwalking was the reason for her behavior, “[t]he ADA does not give employees license to act with impunity.” Id. Harkey’s behavior gave NextGen reason to terminate her, and the court held that the ADA was no barrier to that termination. Id. Therefore, in answering the dispositive question noted above, the court determined that Harkey could not show that she was fired because of her sleepwalking disorder. She was in fact fired because of her actions while sleepwalking. Id.
Is a Disabled Employee’s Misconduct Ever Protected by the ADA? Harkey’s case is illustrative of a foundational principle of the ADA. An employee’s disability does not excuse the employee’s misconduct. The United States Court of Appeals for the Sixth Circuit also recently addressed this issue when a school district terminated a teacher for using marijuana and for inappropriate communications “with students after being placed on administrative leave and specifically instructed not to discuss her employment or related matters with students.” Lockhart v. Marietta City Schools, 2021 U.S. App. LEXIS 30991 at *29 (6th Cir. Oct. 15, 2021). The teacher argued that her diagnosed “severely limiting mental-condition” caused her behavior and so terminating her for such behavior was tantamount to terminating her because of a disability. Id. at *26, *29. The Sixth Circuit disagreed as follows:
An employer may not rightfully fire an employee for disabilityrelated conduct that is not related to work performance and does not violate some workplace or societal rule. Rather, an employer should tolerate eccentric or unusual conduct caused by the employee's mental disability, so long as the employee can satisfactorily perform the essential functions of his job. However, an employer may legitimately fire an employee for conduct, even conduct that occurs because of a disability, if that conduct disqualifies the employee from his or her job. Id. at *29 (internal citations omitted; emphasis added). Additionally, the EEOC recognized this principle when it noted that “[a] n employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability” and “an employer is not required to excuse past misconduct even if it is the result of the individual’s disability.” EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the ADA (2002). Therefore, employers should not hesitate to enforce workplace rules and to discipline, even up to termination, employees with disabilities who violate those rules regardless of whether a disability may have caused the misconduct.
Geoffrey A. Lindley, Attorney firstname.lastname@example.org Rainey Kizer Reviere & Bell PLC www.raineykizer.com
Congratulations to 2 0 22
D’Andrea Latham on Passing Her PHR Exam!
D’Andrea is a native of Grenada, MS, and proud alumna of Mississippi State University where she earned her undergraduate degree in Business Administration and later pursued her Master of Business Administration at Delta State University. She has an established career as an HR Professional with experience in Affirmative Action Compliance, Benefits Administration, and Employee Relations. D’Andrea is currently a Contract Compliance Manager with International Paper in Memphis, TN. She also serves on the College of Business Management & Information Systems Advisory Board at Mississippi State University.
Challenges Of LONG COVID For Employers By MARY C. MOFFATT
August 3, 2022, the Department of Health and Human Services (HHS) released the 80+ page “National Research Action Plan on Long COVID” (“Action Plan”), written in response to President Biden’s “Memorandum on Addressing the Long-Term Effects of COVID-19” (published April 5, 2022).The President directed the Secretary of HHS to coordinate a governmentwide response to the long-term effects of COVID-19, in conjunction with public- and private-sector partners, and to publish a report within 120 days of the Memorandum… and thus, the Action Plan. “Long COVID” is generally recognized as a multi-faceted condition that can impact one or more body systems, and can manifest in a variety of ways such as general fatigue, malaise, heart disease, diabetes, as well as mental and neurologic conditions, such as “brain fog,” depression, or overall weakness. There is no specific test for “long COVID,” but it is generally a variety of symptoms, making it difficult to isolate as a single diagnosis and thus difficult for employers to address in the workplace. In the Action Plan, the HHS states long COVID is “broadly defined as signs, symptoms and conditions that continue or develop after initial COVID-19 or SARS-CoV-2 infection (and which) are present four or more weeks after the initial phase of infection; may be multisystemic; and may present with a relapsing-remitting pattern and progression or worsening over time, with the possibility of severe and life-threatening events even months or years after infection.” Unfortunately, such a definition does not generally help employers in determining the appropriate circumstances under which long COVID (or long COVID symptoms) may constitute a disability and, thus, require workplace accommodations. According to the Action Plan, the Department of Labor (DOL) is in the process of “conducting internal synthesized literature reviews of existing research on COVID-19 and long COVID and developing resources for employers on interventions to meet the needs of persons with long COVID including a forthcoming guide for employers to support individuals with long COVID.” There is no target date stated for the publication of a ‘guide’ so stay tuned. On July 12, 2022, the DOL, CDC and Surgeon General announced the “National Online Dialogue on Long COVID’s Workplace Challenges,” which allows participants to submit ideas, questions, and comments regarding long COVID’s workplace challenges, with the goal being to address the workplace challenges and financial impacts of the condition. (www.dol.gov/newsroom/releases/odep/odep20220712). Employers are also likely aware of the DOJ/HHS “Joint Guidance on Long COVID as a Disability under the ADA, Section 504 and Section 1557” (Joint Guidance) (www.ada.gov/long_covid_joint_guidance.pdf ) as well as the EEOC’s recognition that long COVID may be a disability under the Americans with Disabilities Act (ADA). The federal government’s commitment of resources to addressing the impact of long COVID should serve to emphasize the continued significance of the condition and encourage employers to carefully consider workplace issues related to long COVID including accommodation requests with respect to the condition. 36
I. LONG COVID UNDER THE ADA “Disability” is defined in the ADA as: (a) a physical or mental impairment that substantially limits one or more major life activities, (b) a record of such an impairment, or (c) being regarded as having such an impairment. 42 U.S.C. § 12102(1). Long COVID and/or the symptoms of long COVID may constitute a disability under the ADA or similar disabilityrelated laws, and thus, may require a workplace accommodation. An employer’s response to an accommodation request must include an individualized assessment regarding the employee’s condition and how the condition impacts the employee’s ability to perform the essential job duties. Where an accommodation is needed or requested for the employee to perform those duties, or where an accommodation is obviously necessary, the employer must engage in the interactive process, the extent of which will depend on case circumstances. For example, where the requested accommodation is obviously needed, reasonable and does not create undue hardship, there is not much to the interactive process; in other cases, the process may be more extensive. In either case, the process should be documented. An essential component of the interactive process is to actually discuss the accommodation request and limitations with the employee. It is essential to train managers and supervisors regarding what triggers the interactive process and how supervisors should best handle accommodation requests, engaging HR promptly. It is critical to train managers and supervisors to avoid stray comments, emails, etc. of a negative nature made in response to accommodation requests. Off-hand comments, even if made without action or in jest, may only fuel the plaintiff’s later claims of discrimination and retaliation. Russo v. Johnson, 2022 LEXIS 97574 (M.D.Tenn. 2022 (Motion to Dismiss denied as to ADA claims based on failure to accommodate plaintiff’s “situational anxiety” over COVID and her remote work request). Typical accommodations for long COVID or its symptoms include flexible work hours, remote work, or leaves of absence but due to the nature of long COVID, employers may need to be creative when developing accommodations to address the unique nature of long COVID and its symptoms. II. RECENT COURT DECISIONS As noted in Baum v. Dunmire Prop. Mgmt, “Federal courts around the country are grappling with whether COVID-19 constitutes a disability under the ADA.” Baum, 2022 LEXIS 54555 (Dist. Colorado, March 25, 2022), p.4, citing, Champion v. Mannington Mills, Inc., 538 F.Supp.3d 1344 (M.D. Ga. 2021) (explaining that to find millions of Americans “disabled” under the ADA would lead to absurd results); Matias v. Terrapin House, Inc., 21-cv-02288, 2021 LEXIS 176094 (E.D. Pa. Sept. 16, 2021) (citing agency guidance to conclude that COVID-19 may be an ADA disability); Booth v. GTE Fed. Credit Union, 2021 LEXIS 224333 (M.D. Fla. Nov. 20, 2021)(analyzing lack of consensus regarding COVID-19 as a disability under the ADA). By logical extension, courts will grapple with whether “long COVID” constitutes a disability.
Under the ADA, (and in very general terms), a plaintiff must be able to show that: (1) they are disabled within the meaning of the ADA; (2) they are otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations; and (3) they have suffered an adverse employment action as the result of discrimination. For claims based on the employee being “regarded as” disabled, an employer may assert the defense that “transitory and minor” impairments do not constitute a disability. 42 U.S.C. § 12102(3)(b). In the Matias case (mentioned above), one of the first cases to address specifically a symptom of long-COVID (i.e., loss of smell and taste), the Court held that certain forms of COVID-19 that carry longerterm impairments can qualify as a disability. In denying the employer’s Motion to Dismiss, the Court found plaintiff had stated a “regarded as” claim, that she suffered an adverse employment action and that the employer failed to establish that the impairment was both transitory and minor. Matias v. Terrapin House, Inc., 2021 U.S. Dist. LEXIS 176094. Compare, Payne v. Woods Services, Inc., 520 F. Supp.3d 670 (E.D. Pa. 2021) (Motion to Dismiss granted, where plaintiff failed to allege facts sufficient to establish the severity or length of his symptoms). Courts will likely also be faced with claims of failure to accommodate long COVID under the ADA. For example, in Burbach v. Arconic Corp., the District Court denied the employer’s Motion to Dismiss as to plaintiff’s claims under FMLA (interference/retaliation) and the ADA (failure to accommodate/retaliation). The plaintiff, an Asst. General Counsel for the employer, recovered sufficiently from COVID but continued to experience and be treated for COVID-related symptoms. Upon medical advice, the plaintiff requested to work remotely from Slovenia where his spouse had a family home. The employer at first agreed to the request but
later denied it, arguing plaintiff needed to be located in the United States rather than Europe. Shortly thereafter, the plaintiff was terminated. While the Court reserved many of the issues for determination after discovery, it held that at this early stage in the case, plaintiff had stated enough facts to support his claims, and that it was “reasonable to infer that plaintiff’s impairment in treating and recovering from COVID could have lasted longer than six months.” On the accommodation claim, while noting some of the employer’s concerns regarding the request to work in Slovenia were “well-taken,” the Court ultimately decided “this requires an analysis of the facts surrounding plaintiff’s request and defendant’s reasonable efforts to assist the employee and to communicate with the employee in good faith.” Burbach v. Arconic Corp., 561 F. Supp. 3d 508, 521 (W.D. Pa. 2021). III. CONCLUSION Employers are advised to integrate long COVID concepts into supervisory training and to be diligent when handling long COVID and its various symptoms in the workplace. As noted in the Action Plan, “Long COVID demands a comprehensive…approach, (using) collaborative efforts across the U.S. government coupled with strong public and private partnership.” The challenges of long COVID may well be with us for a long time.
Mary C. Moffatt, Member
Wimberly Lawson Wright Daves & Jones PLLC Morriistown, Tennessee office email@example.com
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