January 2019 Issue

Volume 9 : Issue 1

TM

www.HRProfessionalsMagazine.com

The Annual

Performance Review is Dead

2018 SHRM

Pinnacle Awards

2019 U.S. News Best Labor & Employment Law Attorneys

Teela

Jackson SHRMGA

State Council

Meet the New

NLRB Board

Preview of 2019 SHRM-Atlanta SOAHR Conference

Client Focused.

Innovative Approach.

Employers and Lawyers, Working Together Our innovations serve in-house counsel’s and human resources professionals’ needs for technology and tools related to compliance with federal and state laws, litigation, legal project management, and workplace training. Visit www.ogletree.com/innovations to learn more.

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 850 lawyers located in 53 offices across the United States and in Europe, Canada, and Mexico.

www.ogletree.com

BIRMINGHAM OFFICE

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

JACKSON OFFICE

207 West Jackson Street | Suite 200 | Ridgeland, MS 39157 601.360.8444

MEMPHIS OFFICE

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

Bringing Human Resources & Management Expertise to You

58% of execs say their current performance process does not drive employee engagement. www.HRProfessionalsMagazine.com Editor

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

The Thompson HR Firm, LLC Online HR Certification Classes Art Direction

Park Avenue Design Contributing Writers

Austin Baker Thomas J. Birchfield Bryan Bowdler William Carmichael Matthew R. Courtner Harvey Deutschendorf Brad Federman LeeAnn Bailes Foster Joseph M. Kraska Lisa May James B. Taylor Janie Warner Board of Advisors

Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR Terri Murphy Susan Nieman Robert Pipkin Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine.com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors.

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. ©2019 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.

Features 4 note from the editor 5 Profile: Teela Jackson, SHRMGA State Council 6 2018 SHRM Pinnacle Awards 9 Apply for WGU Tenn-K $10,000 Scholarship 14 The Annual Performance Review is Dead 16 How to Rock Your Candidate Experience in 2019 20 CHRO Thought Leadership Roundtable Event December 6 in Nashville 21 Highlights from the 2018 HRO-Partners Annual Holiday Breakfast 24 Define Integration: The Key to Company Culture During Mergers and Acquisitions 26 Leadership that Drives Results

2019 U.S. News Best Labor and Employment Law Attorneys 30 Ogletree Deakins 34 Wimberly Lawson 35 Wright Lindsey Jennings 36 FordHarrison 38 Bass, Berry & Sims 39 Rainey, Kizer, Reviere & Bell PLC 40 Cross, Gunter, Witherspoon & Galchus, P.C. 42 Littler

45 The first 90 Days: WOW ‘em Quickly!

Industry News

48 Book Look: Change Your Questions Change Your Life by Marilee Adams, PhD

8 Preview of SHRM-Atlanta SOAHR Conference March 25-27

50 5 Ways to Secretly Teach Your Boss to Become More Emotionally Intelligent

Employment Law 10 Meet the New NLRB Board 12 Kentucky’s Right to Work Law Upheld

by State Supreme Court

49 Save the Date – 26th Annual TPMA Membership and Training Conference April 24-26 in Memphis 51 Earn an HR Certification That Matters February 2019 Issue features Profiles of Top Companies in Payroll and HRIS Technology plus Employment Law and Employee Benefits Updates Deadline to reserve space January 10

17 Tennessee Workers’ Compensation Handbook 18 A Review of the FLSA during President Trump’s First Two Years 22 New Guidance from the Department of Labor 28 Transgender Status Protection Under Title VII www.HRProfessionalsMagazine.com

3

a note from the editor IN MEMORY OF LISA A. LICHERTMAN

We

Lisa A. Lichterman, shareholder with Littler Memphis, passed away peacefully surrounded by her immediate family on Saturday December 15th, 2018, after a valiant two-year battle with cancer. She was 53 years old.

Lisa represented management clients in both state and federal litigation as well as administrative proceedings before state and federal agencies. Lisa regularly worked with employers to determine the legal as well as the practical impact of employment decisions and to develop proactive policies and procedures to improve employee morale, strengthen relationships between management and employees and ensure compliance with employment and labor laws.

have a preview of the 2019 SHRM-Atlanta SOAHR Conference that will be held on March 25-27, 2019 at the Cobb Galleria Centre in Atlanta on Page 8. This is the 29th annual conference, and you can pick up 12 hours of recertification credits from SHRM and HRCI at this event. Remember that you do not have to be a member of SHRM-Atlanta to attend this fantastic conference where you can network with over 1000 HR professionals and industry experts. You can save $30 off the two-day registration with code HRPRO! Register today!!

Be sure to check out the 11 SHRM Chapters and State Councils who won 2018 Pinnacle Awards at the 2018 Annual SHRM Volunteer Leaders’ Summit on November 16 in Washington, D.C. We are especially proud of the Northwest Arkansas Human Resources Association and the West Central Arkansas Society for Human Resource Management as members of our distribution footprint.

If one of your New Year’s resolutions includes becoming a certified HR professional in 2018, you will be excited to learn that we are offering our next Online SHRM Certification Exam Prep Class in May. Details are on Page 44 of this issue. You may register on our website. See our inside

We are so excited to have Teela Jackson on the cover of our January 2019 issue! Teela serves on the SHRMGA State Council. She was the first African American female President of SHRMAtlanta in 2014. Teela was recipient of the SHRMAtlanta Presidential Leadership Award and SHRMGA Volunteer of the Year Award. I know you will enjoy reading Teela’s career profile on Page 5.

back cover for information about the next SHRM-CP/ SHRM-SCP Spring Exam Window. Be sure to watch your email for your invitation to attend our complimentary January webinar sponsored by Data Facts. You will earn 1.00 SHRM and HRCI credit for attending.

Best wishes for happy and prosperous 2018!

cynthia@hrprosmagazine.com cythomps@twitter

4

www.HRProfessionalsMagazine.com

Teela on the cover

JACKSON

TEELA JACKSON, Vice President, HR Search with Talent Connections Teela Jackson has a passion for top talent, organizational culture and HR’s impact on business success. She is Vice President, HR Search, with Talent Connections, LLC. She has enjoyed a progressive career with the firm for 13 years and leads the HR Search Practice. Teela has devoted her professional career to building teams, shaping companies and enhancing the lives of others.

An active member of the Society for Human Resource Management (SHRM), Teela serves on the SHRM Georgia State Council. She has been an active volunteer leader with the largest city chapter in the country, SHRM-Atlanta, for many years. Teela was the first African-American female President of SHRM-Atlanta in 2014. She was awarded the SHRM-Atlanta Presidential Leadership Award and SHRM Georgia Volunteer of the Year Award. Teela is also the founder of SHRM-Atlanta’s Young Professionals/ Rising Leaders Community. She received the The Atlanta Business Chronicle 40 Under 40 Award and is a member of the 10th class of honorees. Teela has also served as a Board Member for the Brian Jordan Foundation (retired MLB & NFL player) volunteered with Crossroads Career Network, Atlanta Center for Self Sufficiency (ACSS,) and Habitat for Humanity.

Teela is active across professional social media platforms including LinkedIn & Twitter.

She has been featured in The Atlanta Journal-Constitution, The Atlanta Business Chronicle, and WXIA-TV Live News | 11alive. Teela frequently speaks at professional association meetings and conferences across the U.S. She earned a Bachelor of Science degree in Business Administration with an emphasis in Human Resources from The University of Tennessee at Martin. Teela earned a Master of Business Administration degree with an emphasis in Management from Mercer University in Atlanta. 

www.HRProfessionalsMagazine.com

5

SHRM Chapters and Councils from 11 States Win Pinnacle Awards for Exceptional HR Programs The Society for Human Resource Management (SHRM) presented 12 affiliates with its Pinnacle Award — the highest honor given to SHRM state councils and chapters for notable contributions to the human resource profession.

Created in 1991, the award is the most prestigious achievement SHRM state councils and chapters can attain, and it honors programs that exceed the standard activities of SHRM local networks in enhancing HR management.

The 2018 SHRM Pinnacle Award winners are: 1. Northwest Arkansas Human Resources Association – “Providing Re-Certification Opportunities for our HR Community” 2. West Central Arkansas Society for Human Resource Management – “Partnering with our Community” The awards were presented at the annual SHRM Volunteer Leaders’ Summit on November 16 in Washington, D.C. “These chapters and state councils embody what it means to be HR leaders,” said Johnny C. Taylor, Jr., SHRM-SCP, president and CEO of SHRM. “They are tackling some of the highest-profile and relevant HR issues today at the local level.

Some of this year’s winners included programs on combating the skills shortage, employing untapped talent pools such as veterans and those with mental illness, and raising awareness on handling sexual harassment in the workplace.”

Winning programs were selected from over 80 applications and received a $1,000 prize from Paychex Inc., sponsor of this year’s awards.

3. HR Florida State Council – “Different Not Less…

Fantastic” 4. Snake River Chapter of SHRM (Idaho) – “Serving our Future” 5. Central Louisiana Society for Human Resource Management – “Sexual Harassment Awareness and Prevention in the Workplace – A Panel Discussion” 6. LakeNormanHR (N.C.) – “Partnering with Duke Energy to meet their HR employee development needs and increase engagement” 7. Human Resources Association of Central Ohio – “Hanging with the Young Professionals” 8. Oklahoma State Council for Human Resource Management – “OKHR in Indian Country Conference” 9. Portland HR Management Association (Ore.) – “Cultivating Member Engagement, Retention and New Member Acquisition with Livestreaming and Satellite Locations” 10. Greater Valley Forge Human Resource Association (Pa.) – “Supporting Local Veterans” 11. Greenville SHRM (S.C.) – “Decoding the Mystery of Disability Employment/Rethinking the Ideal Employee” 12. Virginia SHRM State Council – “Virginia SHRM State Council’s Bold Purpose to Thrive!”

6

www.HRProfessionalsMagazine.com

2018 Southeastern Pinnacle Award Winners Northwest Arkansas Human Resources Association – “Providing Re-Certification Opportunities for our HR Community” One of the chapter’s goals was to provide re-certification opportunities to its members and community. To do that, it obtained certification approval for monthly membership meetings and sought out additional opportunities. These opportunities included two, daylong workshops, as well as a supervisors’ conference open to its membership and managers working in the business community. The supervisors’ training drew a large audience from many community businesses and organizations.

West Central Arkansas Society for Human Resource Management – “Partnering with our Community” Since 2016, the chapter has held a monthly drive to meet the needs of individuals and organizations within its local community and assist with workforce readiness. In 2018, the program expanded to involve chapter members. The monthly drives included supplying interview attire and towels for women at a local shelter, books for Dolly Parton’s Imagination Library for Literacy, and food for food banks and school children who may normally go without breakfast during the summer, among other items. These efforts provided local families and veterans with tools to gain employment.

HR Florida State Council – “Different Not Less…Fantastic” HR Florida created a diversity and inclusion initiative to increase community partnerships, employer outreach and support of mental health awareness by providing its 15,000 HR professionals and over 6,300 employers with tools and resources to combat the stigma of mental illness in the workplace. Because the unemployment rate for those with disabilities is twice that of workers without disabilities, HR Florida created the initiative to highlight an untapped talent pool. The state council also partnered with agencies such as the National Alliance on Mental Illness (NAMI) Florida to emphasize that workers of all abilities bring strengths to the workforce and to highlight the potential of people with autism and related disabilities as an important component of a diverse talent pool.

Central Louisiana Society for Human Resource Management – “Sexual Harassment Awareness and Prevention in the Workplace – A Panel Discussion” In light of the #MeToo and Times Up movements, the chapter created a panel discussion, “Sexual Harassment Awareness and Prevention in the Workplace,” for the local business community.

The goal was to create awareness of workplace sexual harassment, promote understanding of the applicable regulations and present useful strategies for creating a respectful workplace. The chapter believed it was important to provide timely guidance on the topic and viewed this as an opportunity to facilitate conversations on civility and respect in the workplace. The diverse panel and program offered practical solutions for victims, witnesses and businesses, and allowed for an open forum to voice concerns regarding this issue.

LakeNormanHR (N.C.) – “Partnering with Duke Energy to Meet Their HR Employee Development Needs and Increase Engagement” The chapter, which was chartered in 2016, quickly developed a reputation for its practical, quality educational programs at monthly meetings. That reputation led to a request by Duke Energy for the SHRM chapter to bring educational programs and certification credits to its company onsite and online, so that its entire HR community could receive current and consistent training opportunities. This was a large project, as Duke Energy employs over 250 HR professionals at its Charlotte, N.C., location. Since the time of its first program with Duke Energy in 2017, the chapter has hosted six programs and reached an average of nearly 75 Duke Energy HR employees per session. Due to the program’s success in 2018, the partnership also increased from monthly to bi-monthly sessions.

Greenville SHRM (S.C.) – “Decoding the Mystery of Disability Employment/Rethinking the Ideal Employee” The chapter created a Lunch & Learn series and conference session to educate HR professionals, managers and business owners on the myths and misconceptions associated with hiring those with disabilities. The committee’s strategy had two objectives, which were to address the myths and to offer solutions for effectively and efficiently employing people with disabilities. The committee selected as speakers HR practitioners who had already successfully recruited, hired and integrated disabled employees into their workplace.

Additionally, the session presenters provided examples and lists of resources for recruitment and support, processes and forms for best practices, including accommodations.

Virginia SHRM State Council – “Virginia SHRM State Council’s Bold Purpose to Thrive!”

Despite repeated successful state conferences, many of the almost 4,000 SHRM members-in-chapters didn’t know or understand the work of the state council. Therefore, the council created an initiative to increase visibility, engage with chapter volunteers statewide, and expand its value proposition to all its 14,000-local chapter and national members. Over the course of the council’s “Volunteer Appreciation Campaign,” the state director visited each chapter, and thanked board members for their time and commitment. Each chapter board member was presented with a personal note and customized appreciation gift for the chapter. Additionally, the state director wrote letters to the chapter volunteers’ companies, thanking them for allowing their employees time to serve. Each chapter was challenged to set specific initiatives to THRIVE! in 2018. Those chapter initiative efforts are currently under way.

www.HRProfessionalsMagazine.com

7

8

www.HRProfessionalsMagazine.com

TENN-K

SCHOLARSHIP

GO THE DISTANCE. EARN YOUR DEGREE. WGU Tennessee is offering multiple $10,000 scholarships to Tennessee residents ready to earn an accredited bachelor’s or master’s degree in business, IT, education, or healthcare.

APPLY TODAY

tennessee.wgu.edu/tennk Online. Nonprofit. Surprisingly affordable.

10,000

$

SCHOLARSHIP Apply by March 15, 2019

The National Labor Relations Board: Background, Current Board Members, and Issues to Watch in 2019

By JAMES B. TAYLOR

PETER B. ROBB, NLRB GENERAL COUNSEL en.wikipedia.org

Given the fact that the NLRB Board members and its General Counsel are all Presidential appointees, many NLRB decisions and policies are viewed under a “Republican vs. Democrat” political lens. The “custom” for many years with respect to NLRB appointees called for the President to appoint Board members in a manner that maintains a three-to-two political split, with the majority of Board members aligned with the President’s political party. In addition, the fact that the Board members’ five-year terms are staggered is intended to foster continuity in the Board’s positions and further isolate the Board members from political pressures. Yet, despite these traditions and measures, political disputes, regarding the confirmation of prospective Board members in particular, have affected the political balance and make-up of the Board. This is evidenced by the number of sitting Board members shrinking down to only two during the Obama administration due to a series of Senate confirmation disputes.

Backgrounds of the Current NLRB Board Members and its General Counsel JOHN F. RING

WILLIAM J. EMANUEL MARVIN E. KAPLAN

LAUREN MCFERRAN

The decisions and actions of the National Labor Relations Board (“NLRB”) often have a significant impact on employers. While most employers are generally familiar with the NLRB, details regarding the backgrounds of the individual NLRB Board members and their respective political alignments are far less widely known or understood.

This article will provide an overview of these details and will address the ways in which the Board’s current make-up may impact decisions on key labor law issues in the coming year.

Background of the NLRB, its Board, and the General Counsel The NLRB is a federal body authorized by Congress to administer and resolve labor issues arising under the National Labor Relations Act of 1935 (“NLRA”). The “Board” of the NLRB consists of five members who are each appointed by the President and confirmed by the Senate for a five-year term. Generally, after a labor charge has been filed with the NLRB and administratively adjudicated, the Board members may review the decision in a quasi-appellate capacity and uphold, reverse, or revise the decision based on the Board’s interpretation of the NLRA. The Board’s positions on the law and policy of the NLRA, as expressed through its opinions, often create significant legal precedents that can impact the rights of employers, employees, and unions in a wide range of future cases.

In addition to the five appointed NLRB Board members, the upper-tier of the NLRB also includes the position of the NLRB General Counsel.

The General Counsel is also appointed by the President and is confirmed by the Senate, but the General Counsel serves only a four-year term.

Unlike the Board members, the General Counsel does not serve in a quasi-appellate capacity for the NLRB. Instead of issuing opinions that decide legal disputes under the NLRA, the General Counsel’s role is akin to a District Attorney for the NLRB. The General Counsel is responsible for investigating charges on behalf of the NLRB, initiating its enforcement actions, and overseeing the NLRB’s enforcement priorities and operational structure. In addition, the General Counsel often issues Advice Memos to NLRB Regional Directors addressing legal and policy questions regarding matters under current review. While these Advice Memos are only advisory in nature and do not create legal precedent, they do have the effect of strongly influencing how the NLRB will handle matters with respect to pending cases.

10

www.HRProfessionalsMagazine.com

There are currently four sitting NLRB Board members and it is likely to remain this way until the next election. Of the four NLRB Board members, three, including the current Chairman of the Board, are Republicans appointed by President Trump. The remaining Board member is a Democrat appointed by President Obama whose term will end in December 2019. The current General Counsel is also a Republican and a President Trump appointee.

JOHN F. RING (R), CHAIRMAN OF THE BOARD

Chairman Ring was appointed to the Board in April of 2018 and will serve through December of 2022. Chairman Ring was formerly a career labor and employment attorney with the law firm of Morgan, Lewis & Brockius. Notably, Chairman Ring’s professional career was not entirely employer-focused, as he handled several matters on behalf of affiliates of the Teamsters union. While Chairman Ring has not yet signaled the extent of upcoming policy changes for the NLRB, many commentators agree that he is likely to usher in significant changes regarding several labor law issues during his term, as discussed below.

WILLIAM J. EMANUEL (R), BOARD MEMBER

Mr. Emanuel was appointed by President Trump in September of 2017 and will serve until August of 2021. Mr. Emanuel was a career labor and employment attorney with the law firms of Morgan, Lewis & Brockius, Jones Day, and Littler Mendelson. Mr. Emanuel’s career in private practice was almost entirely focused on representing employers in labor disputes. During his Senate confirmation, Mr. Emanuel was criticized for his extensive work on behalf of employers during his legal career. However, Republicans deflected this criticism by arguing that an employer-focused Board member was necessary in order to bring “balance” to a Board which Republicans claimed had become overtly pro-union.

MARVIN KAPLAN (R), BOARD MEMBER

Mr. Kaplan was appointed by President Trump in August of 2017 and will serve as a Board member until August of 2020. As an attorney, most of Mr. Kaplan’s work has been in public service roles. Mr. Kaplan worked within the Department of Labor, the House of Representatives, and for OSHA, as its Chief Counsel. It is generally believed that Mr. Kaplan holds politically conservative views. However, both Mr. Kaplan’s youth and his career in public service represent something of a wildcard which make his political and policy views more difficult to predict.

LAUREN MCFERRAN (D), BOARD MEMBER

Issues to Watch in 2019

Ms. McFerran remains as the last Board member appointed by a Democratic President and is the only Democratic member of the Board. She was appointed by President Obama and will continue to serve on the Board through December of 2019. Ms. McFerran formerly held a U.S. Circuit Court of Appeals clerkship prior to a relatively short career in private legal practice. Since 2005, Ms. McFerran served in a variety of labor law roles for various Democratic Senators and Senate Committees. Despite being the longest-serving current Board member, Ms. McFerran will likely have little ability to pursue or effectuate any sort of policy goals in her remaining year as a Board member given that she is outnumbered three-to-one in terms of the current Board members’ political affiliations.

The recent appointment of Chairman Ring to the Board is widelyexpected to lead to the Board taking more employer friendly positions regarding current labor issues. Included among the issues that the Board may address in 2019 is the NLRB’s current “joint employer” standard, which many commentators expect will be relaxed in order to make it more difficult for two employers to be considered a “joint employer” under the NLRA. Second, the Board is likely to revisit and curtail the NLRB’s previous rulings that suggested that emails sent on an employer’s email system can be considered “protected concerted activity” under the NLRA. In addition, the Board appears to be interested in revisiting the recent NLRB decisions regarding union recognition in the construction-industry and in developing a more employer-friendly policy on this topic. Other topics, such as employers’ social media and non-disclosure policies, union recognition, and union elections are also expected to be addressed in a more employer and management friendly fashion relative to prior Board decisions. However, it should be noted that many long-term NLRB employees and agents have recently staged a series of well-publicized protests against the Republican party’s consolidation of power over the NLRB and against the new leadership’s more employer friendly policies and viewpoints. However, given that both the General Counsel and the majority of Board members are politically aligned, the Republican Party will likely maintain effective influence over the decision-making, enforcement, and administrative roles of the NLRB throughout 2019.

PETER B. ROBB (R), NLRB GENERAL COUNSEL

Mr. Robb was appointed by President Trump in November of 2017 for a four-year term as the NLRB’s General Counsel. Mr. Robb formerly had a long career in private practice handling labor law matters for employers with firms such as Downs Rachlin & Marin and Proskauer Rose. Mr. Robb has also served as Chief Counsel for a previous Board member, Robert Hunter. As outlined above, while the Board members have significant power in terms of creating national labor policy and legal precedents, the NLRB’s General Counsel has broad powers over the operational aspects of the NLRB, including the direction and oversight of the NLRB’s 33 regional offices and the hundreds of NLRB agents and employees. Mr. Robb has already released several of his Advice Memos, which have generally been employer friendly. Mr. Robb also issued an internal memorandum indicating his desire that the NLRB revisit several of its prior rulings.

James B. Taylor, Attorney Martenson Hasbrouck & Simon LLP jtaylor@martensonlaw.com www.martensonlaw.com

Martenson, Hasbrouck & Simon LLP focuses its practice

ADVICE THAT WORKS.

on labor and employment defense and business litigation.

Our reputation for excellence has been earned through our dedication to providing innovative solutions to the most difficult problems at an exceptional value. We have forged long-lasting relationships with our clients through our tenacity, skill, and accessibility.

Based in Atlanta, in the heart of Buckhead, with a second office in Southern California, we have developed a highly flexible representation model that enables us to serve clients of all sizes, across all regions of the country.

Contact Marty Martenson at (404) 909-8100

3379 Peachtree Road, NE Suite 400 Atlanta, GA 30326 martensonlaw.com

www.HRProfessionalsMagazine.com

11

Kentucky’s Right to Work Law Upheld by State Supreme Court

By THOMAS J. BIRCHFIELD

A

bitterly divided state Supreme Court upheld Kentucky’s rightto-work law by a 4-3 vote yesterday, cementing Kentucky’s status as one of 27 states in the country to have such a law on the books. Although the law was originally signed in January 2017 and immediately took effect, unions in Kentucky resisted accepting the reality of right-to-work and were banking on this litigation to overturn law. Now that the legal challenges have been denied, employers should ensure they are familiar with right-to-work, as the law could have an impact on your workplace.

to easily withdraw consent. It also prohibits public sector employees from engaging in strikes or other work stoppages (private sector employees remain free to do so).

What Does Right-To-Work Mean?

Governor Bevin has touted the success of the new law as being instrumental in the state’s economic recovery. As he stated yesterday, “with $13.5 billion invested in the Commonwealth since the passage of HB 1 in 2017 and business increasing by 40 percent this year, we are already reaping the benefits of this transformative legislation.” Further, the Kentucky Chamber of Commerce has stated that the law, which had been one its priorities for decades, has resulted in a record number of economic development commitments in the last two years.

Before we analyze the litigation, it’s helpful to ensure a complete understanding of what the law says. Right-to-work laws generally make it unlawful to require a person to be or become a union member, or to pay union dues, as a condition of initial or continued employment. The name comes from the idea that people should be allowed to work without having to financially support organizations or causes that they do not morally support.

Union advocates make the counterargument that employees who work in unionized workplaces should have to share the cost of union representation.

It is important to note that right-to-work laws do not prevent people from joining or supporting unions, they just prohibit requiring them to do so.

Brief History Of Right-To-Work In Kentucky—And Beyond In 2012, Indiana became the 23rd right-to-work state in the country—the first state to do so in 12 years—and started a flurry of right-to-work legislation. Following in its footsteps, Michigan, Wisconsin, and West Virginia enacted such laws in the next several years. And on January 9, 2017, Kentucky became the 27th state to put right-to-work into effect. (As an aside, another Midwestern state passed a right-to-work law later in 2017 when Missouri’s state legislature took action, but state voters rejected the law in a recent election and wiped it off the books.)

Like other laws of its kind, Kentucky’s right-to-work law prohibits any employer (public or private) from compelling a person to join or remain a union member as a condition of being hired or remaining employed. It also prohibits requiring any employee to pay dues, fees, assessments, or similar charges to a labor organization, and prohibits requiring any employee to make payments to charities in lieu of payments to labor organizations.

Kentucky’s law has a few special provisions that apply only to public sector employees. For example, it prohibits deducting dues and similar payments from public sector employees’ pay without written consent, and allows them 12

www.HRProfessionalsMagazine.com

The law does not apply to labor agreements entered prior to January 9, 2017, but it does apply to extensions and renewals of such contracts made from that date forward. The law expressly prohibits local governments from enacting inconsistent legislation, so you will not see cities, counties, or other municipalities passing their own measures contradicting right-to-work.

Union Challenge To The Law Rejected By Supreme Court Unions did not agree with these assessments, however, believing that right-to-work was harmful to their membership and to their organizations. Shortly after it went into effect, union members Fred Zuckerman (Teamsters Local 89) and William Londigran (Kentucky State AFL-CIO), challenged the new law by arguing that it violated several state constitutional provisions.

Their lawsuit was tossed out by a lower state court in September 2017, but the state Supreme Court agreed to hear the challenge without review by the state Court of Appeals. After over a year of briefing and legal argument, the court issued the 4-3 ruling in favor of the law on November 15.

Writing for the four-justice majority, Justice Laurence VanMeter knocked aside the four main arguments brought by the union advocates: • First, the unions argued that the law violates the equal protection protections put into place by the state constitution. However, the majority said that the state had a sufficient justification for passing the law—namely, the goal of shoring up the state’s economy, attracting new employers and

new jobs, and increasing overall business—and that was enough to satisfy the constitutional test. After all, the majority reasoned, the federal Taft-Hartley Act expressly permits states to pass right-to-work laws, which means that it would only examine the state’s justifications with the lightest level of scrutiny.

• Next, the court rejected the contention that the law was a “special” piece of legislation that had been outlawed by a 19th-century revision to the state constitution, disagreeing with the premise that it singled out a certain class for harsher treatment than others. As the majority stated, “the act applies to all collective bargaining agreements entered into on or after January 9, 2017, with the exception of certain employees covered or exempted by federal law. With the exceptions required by federal law, it applies to all employers and all employees, both public and private.”

• Third, the unions argued that they would be forced to represent non-members without compensation, which violated the constitution’s “takings” clause.

But the Supreme Court disagreed. The unions would still be compensated by being designated as the exclusive representative of whatever bargaining unit they represented, it said, acting on behalf of all of the workers in that unit. The majority noted that this gave unions a “tremendous” amount of power over the wages, benefits, and working conditions afforded their membership, which cast doubt on any “takings” challenge.

• Finally, the unions contended that the labeling of the law as an “emergency” act—which permitted it to take effect immediately and not wait the traditional 90 days before implementation—was not proper. Once again, the Supreme Court swept aside the challenge. By justifying the need for immediate passage and implementation because it would attract new business and investment, the state provided all the justification necessary to warrant the “emergency” designation and survive the challenge.

What Does This Mean For Kentucky Employers?

Now that the law has been given the final green light, it is time to ensure full compliance. If you are or are about to negotiate a union contract, you must ensure that the final agreement does not run afoul of the right-to-work law. This includes existing contracts that are being renewed, renegotiated, or extended.

If you currently have union contracts that include mandatory union membership and dues payment, you should make a note to remove such language when the contract comes up for renegotiation.

You should also be aware that even though the “union shop” is now prohibited, many contracts will still have dues-checkoff provisions which require you to withhold union dues from employees’ paychecks in accordance with written dues authorization cards signed by employees. It is important for employees to be informed about their rights to revoke their written authorization cards at least annually. You should also educate your supervisors and higher-level managers regarding the law to ensure no one violates employees’ rights.

Thomas J. Birchfield, Regional Managing Partner Fisher Phillips Louisville tbirchfield@fisherphillips.com www.fisherphillips.com

We use our best tools to make your job run smoothly and efficiently.

FordHarrison is a labor & employment defense law firm with 29 offices, including three affiliate firms, and is the sole member of the global employment law firm alliance, Ius Laboris. Guided by the FH Promise, FordHarrison delivers the highest quality legal service and communication to our clients. www.fordharrison.com

www.HRProfessionalsMagazine.com

13

The Annual Performance Review is Dead: Long Live On-going Feedback

By BRAD FEDERMAN

What is the worst kept secret in most companies? Traditional annual performance appraisals illustrate the farcicalities and nonsensical nature of organizational life. Regardless of title, manager or individual contributor, there is almost universal disdain for the traditional review process.

The annual performance review process has many common concerns, such as subjectivity, surprises to the employee, time-intensive, demotivating, destructive to trust, retention and performance. Last, the process becomes less about performance and development and more of a vehicle to justify compensation decisions. The annual performance review currently serves too many masters and is about as outdated as dial-up. Static... dial tone... more static... repeat…finally connected…internet. Can you imagine still functioning in business using dial-up? No. It is time to make the change, and some companies already have.

Here are some scary facts provided by OfficeVibe about performance reviews: • 90% of appraisals are painful, don’t work and they produce an extremely low percentage of top performers.

• Only 8% of companies report that their performance management process drives high levels of value.

• 58% of executives believe their current performance process does not drive employee engagement.

• Companies that move to regular feedback have 15% lower turnover rates.

• 44% of employees do not believe their boss is honest during the review process.

Recently, a company I am working with acknowledged that their annual review process is a way to check the compliance box. They do not use the data collected from it for succession planning or for understanding where to target their training. In a survey of their employees, not one person was satisfied with the process or found it useful. However, they held on to it because they lacked another way. Change is scary. What happens if we stop doing annual reviews? How do we justify compensation decisions? Will employees work as hard? How will we justify HR decisions without that documentation?

Companies such as Adobe, GE, Cargill, GAP, Dell, Microsoft, Oppenheimer Funds, Eli Lilly, and Google have all moved away from the traditional review process. These companies have moved their time, energy and resources to developing employees rather than evaluating employees. In essence, they moved from dictating to coaching. Each of these organizations reported good results. However, good results do not occur by accident. If you are going to make a move as well, it is essential to think through a few issues first.

It is not about the form or the process One of the main reasons the traditional appraisal process failed has less to do with the process and more to do with those engaged in it. Managers struggle to have candid, transparent conversations regarding performance. To be fair, most managers have never been truly trained on how to have these types of conversations. Organizations tend to focus and invest in the form and process rather than the skill-building needed to employ the form and the process. Quite frankly that investment strategy is upside down. We can use a metaphor about learning to drive and demonstrate this. Would you give a person who 14

www.HRProfessionalsMagazine.com

has never read a book on how a car works, another on the rules of the road and then hands them the keys to a stick shift and say, “Go for it!”? Not on your life, and the reason is crystal clear. The new driver would destroy the transmission or get into a wreck pretty quickly. The car is the tool; just like the form is to the appraisal process. The books are the documentation of the process; however, one of the most critical aspects of driving is the learning process. We send our kids to driver’s education to learn. We make them drive in empty parking lots. We provide learner’s permits so they may receive coaching from an experienced driver. The performance appraisal process is no different. Our managers are not prepared to hold these crucial conversations. Moving toward a more coaching type of a process only heightens this lacking skill set. We need to support managers becoming better coaches by investing in adequate training.

One-way streets are not efficient or effective Performance appraisals are very much a one-way street. All too often we see managers that are unaware of constraints and barriers that exist, workload imbalances and more. Managers are supposed to support their people and to help them achieve. However, that is an impossible task when managers manage blindly. The annual performance process fosters limited sight and knowledge.

All of this data and so little wisdom After every employee finishes their appraisal, the organization should be swimming in a treasure trove of data. Unfortunately, most organizations collect these documents, use them to justify compensation decisions, and place them in personnel folders. Talk about trading the strategic for the tactical. Managers treat annual performance reviews like a transactional event rather than a strategic process.

Make it powerful In the end, every organization needs feedback to create growth, opportunity, and strengthen individuals as well as the organization. If it were easy to do everyone would have it figured out by

now. Many organizations are experimenting and trying new things, but there are some lessons learned and themes that are developing.

• Keep it simple. If the process is cumbersome and timeconsuming, no one will adopt it, and it definitely won’t be sustainable. Less is more.

• Have a purpose. Clarity on why the organization has taken this process is central to its success. Do not try to do too many things using this process.

• Drop the top-down approach. Create a two-way conversation where employees have a significant voice. After all, if we want them to take ownership of their performance and development, we must make them partners in the process.

• Focus on a process, not an event. Employees need real-time, regular feedback. That means meeting at minimum quarterly with employees and then at key moments when feedback or a conversation is pivotal. Once a year is dead!

• Growth and development trumps performance. Performance is a reflection in the rearview mirror. It is about the past. Future performance is about living up to your potential.

Conversations need to focus on employees getting stronger and better more than on evaluation.

• Location, location, location! Or in the case of this information…access, access, access. People want to have access to this information anytime and anywhere. Technology allows us to promote better use of information such as asynchronous conversations and coaching, remote conversations and real-time conversations. All of these uses drive performance, retention, learning, and problem solving regularly.

• Culture-building and training are essential. To make this change and make it work companies must build coaching cultures. Organizations will need to train existing managers how to hold coaching conversations, hire on-board and promote people that have coaching capability into managerial roles, and be willing to say goodbye to those that can’t or won’t adapt to the new approach.

Like any shift, dropping the traditional review and moving toward on-going feedback is a change. The thought of this shift may be enticing especially since what we are doing right now is not working.

However, making the shift without investing can make it worse. Directionally, when things are changing, your organization will have to as well. However, timing and how you approach it should be based on where your organization is now and their appetite for change. Don’t copy others to join the latest fad. Adapt in a manner that leads your organization to more, sustainable success.

• Remove compensation from the discussion. Compensation can be handled separately and outside this process. When you include compensation, it clouds the entire conversation and removes transparency.

STRENGTHENING BRANDS

Brad Federman, Chief Operating Officer F&H Solutions Group bfederman@fhsolutionsgroup.com www.fhsolutionsgroup.com

F&H Solutions Group can help you

71%, increase profit by about 12%, and increase sales by about 65%.

lower turnover by about

THROUGH CULTURE, LEADERSHIP & PEOPLE Executive Compensation Leadership and Coaching Career Development Customer Engagement Employee Engagement Diversity and Inclusion Recruiting and Onboarding Compensation Strategy Human Resources Labor Relations

1715 Aaron Brenner Drive Suite 716 Memphis, TN 38120 | 901.291.1547 | fhsolutionsgroup.com

www.HRProfessionalsMagazine.com

15

How to Rock Your Candidate Experience in 2019

By LISA MAY

“A recent survey by CareerBuilder found that 44% of businesses are looking to hire full-time employees and 51% are planning to hire temporary employees. But 45% of those surveyed said they are unable to fill the muchneeded positions due to the lack of qualified talent.”

The booming economy is creating many jobs. The older Boomers are leaving positions that are difficult to fill. These scenarios, coupled with the fact that the unemployment rate is hovering around 4%, might-make the fight for high-performing employees feel a bit like The Hunger Games. High-quality candidates are probably measuring your company and its offerings against multiple other organizations.

Their decisions could well be determined by how they are treated during the recruiting and interviewing process.

The candidate experience has never been more integral to hiring the right people for your positions than it will be in 2019. Organizations that falter in creating a positive impression on all candidates will suffer with fewer applicants and job acceptances.

Employers that plan to hire in 2019 need to re-define and amplify their hiring process to focus in on providing a noteworthy process from the job seekers’ perspective. Here are 5 tips to rock your candidate experience in 2019.

Accept the current hiring climate is candidate-driven.

“According to TalentNow, top candidates stay available for only 10 days before getting hired.”

Gone are the days where employers enjoyed multiple highly-qualified, willing, and able candidates chomping at the bit for an offer. Today, experienced A-players will most likely have their pick of positions.

This is a dramatic departure from the hiring scene of only a few years back. HR professionals and hiring managers need to accept that they may be doing the “wooing” in order to land their first choices to fill a role.

Offer up a sampling of company culture.

The new interviewing process is more than two well-dressed people sitting stiffly across from each other at a desk. Think of ways your company is different, better, and stronger, and then showcase those in the interview. Walk them through the office so they can see the layout and how people interact. Show them a past project that ended up being successful. Talk about the organization’s after-hours activities and its philanthropic pursuits. Measure the candidate’s response throughout the process and give high marks to those who seem pleased and enthusiastic about the information.

Respect EVERY candidate’s time.

In a study conducted by Talent Board, “respect for candidate time” and “length of overall time” were the two most commonly cited reasons for candidate withdrawal.

Every job seeker that’s interviewed by your organization expects a certain amount of consideration. From the study noted above you can see that wasting a person’s time is viewed as a negative mark by the interviewee. Interviewers showing up late, taking calls or answering texts, and not getting back to applicants in a timely manner are all actions that show lack of respect. While it may not seem to be a big deal if someone who didn’t 16

www.HRProfessionalsMagazine.com

qualify for the position leaves with a bad impression, think again. The plethora of online company review sites, as well as the power and reach of social media channels in general, gives an unhappy candidate a huge platform to trash your company far and wide. Negative remarks about your company’s candidate experience from former applicants can deter other candidates from applying, hurting your long-range recruiting efforts.

Communicate effectively and often.

According to a report from Phenom People “An incredible 98 percent of companies are NOT communicating with job candidate’s during the recruitment and hiring process.”

If you’ve taken Uber or ordered food from one of those delivery apps, you know how awesome the GPS trackers are. It’s the same during the interview process! It’s the worst to sit and wonder if you are moving on to the next set of interviews, or getting an offer letter, for days or weeks at a time.

Set a process in place that communicates by email, text, or phone to the candidates informing them of where they are in the process, and what the next step will be.

Move it forward as fast as possible, from interviews to background checks to offers, and apprise the candidate as soon as the decision is made. Leaving job seekers hanging doesn’t promote a positive candidate experience.

Review online candidate feedback.

A report by iCims stated “Nearly 1 in 3 workers have declined a job offer primarily because the company had negative online employer reviews.”

Blame it on Yelp, but online review sites abound, and job seekers use them both to both share reviews and check out potential employers. HR professionals need to consistently look at what their applicants are saying online about their processes. This benefits the company’s hiring initiative in two ways. First, it sheds light on weak areas of the process that need to be corrected and refined.

Second, it allows an opportunity to comment on the negative review and explain your side of the situation, which can minimize the amount of damage the review will do to your employer brand.

The bottom line is that hiring in 2019 poses unique challenges and employers must be fired up and ready to tackle them if they want their recruiting efforts to succeed. By proactively taking steps to improve your company’s recruiting and interviewing efforts, and committing to monitor your candidates’ reviews, you will be able to develop a strong and productive candidate experience that results in landing highly qualified, A-players.

Lisa May, Senior Vice President Data Facts, Inc. lisa@datafacts.com www.datafacts.com

To learn more visit MLeeSmith.com/tnwc‐handbook

The Tennessee Workers’ Compensa�on Handbook, 10th Edi�on,

by Wimberly Lawson A�orney Fred Baker, is the comprehensive resource for anyone who interacts with the Tennessee Workers’ Compensa�on System. It is designed for HR personnel, a�orneys, paralegals, risk managers, claims adjusters, mediators, benet managers, claims analysts, and judges. Now fully updated and edited for 2019, the Tennessee Workers’ Compensa�on Handbook, 10th Edi�on, gives clear, authorita�ve guidance that will help you navigate the challenges of the new Tennessee Workers’ Compensa�on landscape. Please call or email Brenda Copeland at (931) 372‐9123 or bcopeland@wimberlylawson.com for more informa�on and to order your copy.

Packed with crucial compliance and prac�ce guidance to help you manage the sweeping changes to Tennessee workers’ comp laws.

New 10th Edition!

Your new edi�on will cover:  New claims handling requirements;  New rules governing medical panels;  Clarica�on about a�orney fee awards;  New case law on temporary disability and light‐duty

programs;  New medical payment regula�ons;  Elimina�on of in‐state claims office requirement;  New work‐based learning standards;  New adjuster cer�ca�on program;  New penal�es;  And more! www.wimberlylawson.com

FREDRICK R. BAKER is a Member in the Cookeville, Tennessee, office of Wimberly Lawson Wright Daves & Jones, PLLC, which he joined in 2001. His law prac�ce includes an emphasis in workers' compensa�on and employment discrimina�on, as well as ADA and FMLA compliance. Fred is the Editor of the Tennessee Workers' Compensa�on Handbook, published by M. Lee Smith Publishers. He is Legisla�ve Co‐Chair of the Upper Cumberland Society of Human Resource Management, and a member of the Mid‐South Workers' Compensa�on Associa�on. Fred is Tennessee's representa�ve for the Na�onal Workers' Compensa�on Defense Network. Fred has an AV Preeminent® Ra�ng ‐ which is the highest possible ra�ng given by Mar�ndale‐Hubbell, the leading independent a�orney ra�ng en�ty ‐ and he is also listed in The Best Lawyers in America® in the field of Workers' Compensa�on Law/Employers, and in Mid‐South 2018 Super Lawyers® in the area of Workers' Compensa�on. He received his Bachelor of Arts degree in Philosophy, summa cum laude, from Transylvania University and his law degree, magna cum laude, from the University of Tennessee. www.HRProfessionalsMagazine.com

17

www.HRProfessionalsMagazine.com

17

A Review of the FLSA during President Trump’s First Two Years

By MATTHEW R. COURTNER

We have hit the mid-way point through President Trump’s first term. As such, it is a good time to examine the key events related to the Fair Labor Standards Act that have occurred so far during President Trump’s first term.

Any such review must begin then with the FLSA’s salary level. As everyone should well know, unless you have been hiding under a rock for the past few years, then President Obama’s DOL finalized a new rule increasing the minimum salary level for the so-called white collar exemptions. Specifically, on December 1, 2016, the minimum salary level was set to increase from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). However, on November 22, 2106, the United States District Court for the Eastern District of Texas granted an injunction, prohibiting the salary level increase from taking effect. Nevada v.

United States Dept. of Labor, 218 F. Supp.3d 520 (E.D. Tex. 2016).

President Trump then took office in January 2017, and the DOL has not pursued President Obama’s rule. Instead, the DOL has begun reconsidering its revisions to the salary level.

After seeking public comments in 2017, the DOL revealed its plans to issue a Notice of Proposed Rulemaking in January 2019 “to determine what the salary level for exemption of executive, administrative and professional employees should be.” See https://www. reginfo.gov/public/do/eAgendaViewRule?pubId=201804&RIN=1235-AA20 (last accessed December 10, 2018). As such, the minimum salary level saga will continue into the second half of President Trump’s first term. Employers should expect an increase in the minimum salary level. Although the exact increase is not yet known, the increase should be much more modest than the increase proposed by the Obama DOL. The DOL may also recommend other revisions, as the Obama DOL did in 2016 (e.g., automatic annual increases to the salary level), but such additional recommendations are currently unknown. At this point, employers must wait and see what the DOL proposes in 2019.

Next, as employers are well aware, the FLSA has a number of exemptions from its overtime requirements. Relying on a 1960 U.S. Supreme Court case, federal courts have historically concluded that FLSA exemptions must be “narrowly construed against the employers seeking to assert them.” Orton v. Johnny’s Lunch Franchise, LLC, 668 F.3d 843, 847 (6th Cir. 2012) (citing Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)); see also Fields v. AOL Time Warner, Inc., 261 F. Supp.2d 971, 974 (W.D. Tenn. 2003). However, the U.S. Supreme Court recently rejected this narrow-construction principle: The Ninth Circuit [Court of Appeals] also invoked the principle that exemptions to the FLSA should be construed narrowly. We reject this principle as a useful guidepost for interpreting the FLSA. Because the FLSA gives no ‘textual indication’ that its exemptions should be construed narrowly, ‘there is no reason to give [them] anything other than a fair (rather than a ‘narrow’) interpretation.’ The narrow-construction principle relies on the flawed premise that the FLSA ‘pursues its remedial purpose at all costs.’ But the FLSA has over two dozen exemptions in § 213(b) alone, including the one at issue here. Those exemptions are as much a part of the FLSA’s purpose as the overtime-pay requirements. We thus have no license to give the exemption anything but a fair reading.

18

www.HRProfessionalsMagazine.com

Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018) (internal citations omitted).

The Supreme Court’s rejection of the narrow construction rule suggests that FLSA exemptions may be given a broader application in the future.

It is not that the exemptions will be broadly construed; rather, it is that the exemptions will not be narrowly construed and, thus, should be broader than the exemptions have historically been. Following the Encino Motorcars case, courts are rejecting the narrow-construction rule. To date, the Second Circuit, Fifth Circuit, and Sixth Circuit have acknowledged that the narrow-construction principle has been rejected and, thus, courts must provide a fair construction of the FLSA. See Munoz-Gonzalez v. D.L.C. Limousine Serv., Inc., 904 F.3d 208, 215-16 (2d Cir. 2018); Carley v. Crest Pumping Techs., LLC, 890 F.3d 575, 579 (5th Cir. 2018); and Mosquera v. MTI Retreading Co., - - Fed. App’x - - , 2018 WL 3860514, at *2 (6th Cir. Aug. 14, 2018). For employers, this fair construction may result in broader exemptions.

For example, the administrative exemption may cover more employees than it historically has since it has been narrowly interpreted. Employers will have to wait and see the exact breadth that this new interpretation principle will have.

The Supreme Court’s opinion is Encino Motorcars segues nicely into another noteworthy FLSA event.

Specifically, in June 2017, the DOL announced that they would begin issuing opinion letters again.

See https://www.dol.gov/newsroom/releases/whd/ whd20170627 (last accessed December 10, 2018).

“An opinion letter is an official, written opinion . . . of how a particular law applies in specific circumstances”. Id. The DOL issued new FLSA opinion letters in 2018. In one such opinion letter, the DOL applied a “fair” construction to the FLSA’s “retail or service establishment” exemption.

Specifically, in letter FLSA2018-21, the DOL analyzed whether sales representatives are exempt when they sell “a technology platform” to other

businesses to “accept credit card payments from their customers from a mobile device, online, or in-person.” See https://www.dol.gov/whd/opinion/FLSA/2018 /2018_08_28_21_FLSA.pdf (last accessed December 10, 2018). Applying a “fair” construction to the requirements for the retail or service establishment exemption, the DOL concluded that the sales representatives would be exempt from overtime pay. Id. The fact that the sales representatives sold to predominately commercial entities did not render the exemption inapplicable. Id. Thus, business-to-business sales can qualify as “retail” for purposes of this exemption.

In another opinion letter, the DOL concluded that employers are not required to pay an employee for time spent voluntarily participating in certain wellness programs.

See https://www.dol.gov/whd/opinion/FLSA/2018/2018_08_28_20_FLSA.pdf (last accessed December 10, 2018). The activities in the letter included (1) biometric screenings (such as cholesterol and blood pressure), (2) wellness activities of a health class, employer-provided gym or gym class, health coaching, and weight watchers; and (3) benefit fairs on topics such as financial planning, college opportunities, and employment benefits. Id. All of these activities were voluntary and not job-related.

Id. The DOL found that these offered activities “predominately” benefited the employee—not the employer—and were “wholly optional”. Id. The DOL thus concluded that the activities were not “compensable worktime under the FLSA.” Id. And, in fact, the DOL concluded that the activities “constitute noncompensable ‘off duty’ time under 29 C.F.R. § 785.16.” Id. Opinion letters are important for employers. The DOL’s decision to resume opinion letters signals a willingness to provide guidance to employers. In court, opinion letters are generally not given “controlling weight”. Beck v. City of Cleveland, Ohio, 390 F.3d 912, 919 (6th Cir. 2004). Rather, opinion letters may be “persuasive authority . . . to the extent that they are thorough, well-reasoned, and consistent with the agency’s earlier and later opinions.” Misewicz v. City of Memphis, Tenn., 771 F.3d

332, 339-340 (6th Cir. 2014). However, opinion letters can provide protection to employers who rely upon them in good faith. In particular, in any FLSA lawsuit seeking “unpaid minimum wages, unpaid overtime compensation, or liquidated damages, . . . if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that [it] had reasonable grounds for believing that [its] act or omission was not a violation of the . . . [FLSA], the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed [the amount of the unpaid wages].” 29 U.S.C. § 260 (2018). Thus, reliance upon an opinion letter may provide a good faith defense against liquidated damages.

In sum, employers should continue to watch for FLSA developments in 2019 and 2020. In 2019, the DOL will likely issue a new rule on the minimum salary level. Courts will likely continue to apply a “fair” construction to exemptions and, in turn, should hopefully expand FLSA’s exemptions for employers. And, lastly, the DOL should continue to publishing opinion letters, which may provide useful guidance to employers.

Matthew R. Courtner, Attorney Rainey, Kizer, Reviere & Bell PLC mcourtner@raineykizer.com www.raineykizer.com

@WLJEmployment

We know our way around a courtroom.

We also know you’d rather not be there in the first place.

From sexual harassment to employee leave to social media, our labor and employment team offers training on a wide variety of issues to help HR departments achieve best practices in the workplace. Our goal is to help you prevent employee claims that could lead to agency investigation or even litigation.

Let us put our experience to work for you.

www.HRProfessionalsMagazine.com

19

The Nashville City Club – December 6, 2018 The Nashville City Club was the host on December 6th of the 2nd CHRO Thought Leadership Forum led by Cindy Olson, Chief Human Capital Strategist and co -founder of the Choice Strategic Alliance. This organization in partnership with ADP is bringing World Class Thought Leaders to Senior HR Leaders across the country. The first Thought Leader forum featured the Marcus Buckingham Company sharing insights and discussing the “Future of Performance Management”. This morning, Tom Benton, Chief Revenue Officer with WorkMarket led the group in a discussion around the “Future Workforce”. Tom shared how many large companies are using WorkMarket to not only manage and pay their Contractors and Freelancers but how even more importantly how “Labor Clouds “ are being formed to address the Talent Issue at some of the largest Organizations in the Country.

This CHRO Thought Leadership Community, consisting of almost 400 C-Suite leaders, is being developed in seven cities across the country with the goal of bringing Insights of Next Gen and Future Technology capabilities to CHRO’s and even CIO’s and CEO’s. With so many challenges facing the business, the goal of these forums is to elevate these critical functions in their organizations to address the many business opportunities that Companies are facing with respect to “Talent” and the “Future of Work.”

These events are exclusive to the C-Suite and by invitation only with the vision of helping as many CHRO’s as possible bring Business Transformation to their organizations. If you would like to be involved, please contact Cindy Olson at colson@choicestrategicallicance.com.

ADP Team (L-R) Jerry Boyett, ADP Alliances; Jeff Phelps, ADP; Jeff Weinberger, WorkMarket: Francie MacCauley, ADP; Tom Benton, WorkMarket; Jeff Jenks, ADP; Cindy Olson, Choice Strategic Alliance.

20

www.HRProfessionalsMagazine.com

HRO Partners

�

Annual Holiday Breakfast December 13, 2018 Owen Brennan’s in Memphis

www.HRProfessionalsMagazine.com

21

New Guidance from the Department of Labor on Properly Paying Exempt Employees on an Hourly, Day, or Shift Basis

By BRYAN BOWDLER

With the glut of Fair Labor Standards Act (the “FLSA”) litigation over the last few years, employers have become more and more familiar with the various federal regulations

The DOL recently issued an opinion letter that provides guidance regarding 29 C.F.R. § 541.604(b), which pertains to how exempt employees must be paid. More particularly, one of the requirements for exempt employees is that they be paid on a “salary basis” of at least $455 per week. The regulations do not, however, lock an employer in to only paying exempt employees a “salary”; the regulations provide employers the flexibility to pay exempt employees on a basis other than on a plain “salary basis,” such as on an hourly, day, or shift basis if certain requirements are met. For some employers, paying employees on an hourly, day, or shift basis is necessary considering how their customers pay for the employer’s services. Employers should make sure that they follow and satisfy the specific requirements of 29 C.F.R. § 541.604(b) in order to comply with the FLSA because these types of compensation models have increasingly become a focus of plaintiff attorneys in recent years.

regarding the exemptions from overtime. Recently, the Department of Labor (the “DOL”) has started issuing opinion letters once again that provide helpful guidance to employers to make sure that their compensation practices comply with the FLSA. 22

www.HRProfessionalsMagazine.com

The first requirement is that the employer must still guarantee that the employee will receive at least $455 per week; the second requirement is that there be a “reasonable relationship” between what the employee is guaranteed and what the employee actually earns each week. It is on the second requirement that the DOL most recently has provided some guidance.

The regulation does not say what exactly constitutes a “reasonable relationship,” but it does provide an example: if the employee is guaranteed $1,000 per week, and that employee normally works four or five shifts each week, then the employee can be paid $300 per shift and not run afoul of the regulation. This example is less than clear, so let’s break it down in more detail: if the employee works five shifts at $300, she has earned a total of $1,500 for that week. According to the regulation, there is a reasonable relationship between being guaranteed $1,000 per week and earning $1,500 per week.

Essentially, the regulation provides that the employee can earn up to 1.5 times the guarantee and satisfy the regulation.

In its recent Opinion Letter, the DOL addressed the following situation: the employees were paid hourly and guaranteed $2,100 per week (30 hours at $70 per hour) and, on average, those employees earned $2,721 per week but sometimes their weekly earnings were as high as $3,761 per week. The DOL confirmed that a 1.5 ratio of the guarantee to actual earnings satisfies the reasonable relationship test. While the DOL did state that a 1.5 ratio is not the “absolute maximum permissible ratio,” a 1.5 ratio will usually satisfy the requirements of the regulation.

Perhaps more important, however, is the DOL’s statement regarding how the employer is to calculate the “usual earnings” for a “normal workweek” when the number of hours for the employees varied widely. The employer who requested the Opinion Letter calculated the “usual earnings” by calculating the average weekly earnings for employees throughout the year. While the DOL stated that was a reasonable method, it specifically noted that the “usual earnings” requirement is an employee specific analysis. Calculating the average “usual earnings” for an entire job classification or group of employees is not an acceptable method.

Another example is helpful to explain this distinction: Assume the employer calculates that all of its employee’s in a specific job position earn on average $1,000 per week. Based on the regulation, an employee who earns $1,500 in a week satisfies the reasonable relationship test. But, assume there is one employee who on average earns $800 per week. According the DOL’s Opinion Letter, that employee’s compensation would not satisfy the reasonable relationship test if she earns $1,500 in a week. Therefore, employers who use this compensation method should make sure that each individual employee’s “usual earnings” and their guarantee satisfy the 1.5 ratio.

As noted, the federal regulations specifically allow payment of exempt employees on a basis other than a typical salary basis, as long as certain requirements are met. Again, this could be necessary based on how clients are billed and the employer paid or other reasons based on the nature of the job. As the DOL opinion letter makes clear, employers should take care to properly calculate the reasonable relationship and utilize the 1.5 multiplier as a guide for determining compliance. This is necessary not only to comply with the law, but also because lawsuits regarding compensation structures under 29 C.F.R. § 541.604(b) are increasingly becoming more common. So, if you’re paying any of your exempt employees on an hourly, day, or shift basis, now is a good time to examine their compensation to ensure that you’re complying with the regulation’s requirements.

Bryan Bowdler, Attorney The Kullman Firm New Orleans Office beb@kullmanlaw.com www.kullman.com www.HRProfessionalsMagazine.com

23

DEFINE INTEGRATION:

C

The Key to Company Culture During Mergers and Acquisitions

By AUSTIN BAKER

ompanies spend more than $2 trillion on acquisitions every year.

Yet study after study puts the failure rate of mergers and acqui-

It’s important to put in place the measures and incentives that will fuel the behaviors that will then drive your culture.

sitions somewhere between 70% and 90%. (The Big Idea: The New M&A Playbook.) While on paper,

deals may look promising, however, the most critical mistakes come during the execution phase of the merger where people often take a laser focus on the internal.

How do we sort through multiple payroll systems and integrate our HRIS? Which sales compensation model will we use and how will we ensure that our operations can integrate as quickly as possible?

The area often overlooked by all these processes is the understanding of how the culture integrates with both organizations. Research has shown that culture is often a deciding factor in the significant success of a merger or its ultimate failure. KPMG group has noted that oftentimes the issue lies in an inadequate focus on value creation, as opposed to just getting the deal done. This causes a gaping inability to keep key personnel and get the two corporate cultures to work in unison.

In a study by Mckinsey & Company (Perspectives of Merger Integration,) 70% of employees thought workplace culture was focused on “too little” during integration, while 92% noted they benefited from greater cultural understanding prior to the merger Culture integration is known as one of the most difficult parts of the merger process, however, HR trusted advisors alleviate the burden with these best practices:

Define the Culture A company’s culture is made up of the values, beliefs, and behaviors that are shared among all people within your organization. Oftentimes, culture is something that is difficult to pin down and, as a result, leaders may steer away from clearly defining their culture.

However, it’s very important to define the culture you are trying to build. Leaders should be aligned and clear, so they can clearly articulate the new organization’s aspirations for the future and then execute accordingly.

Create the compelling business case and purpose for the new company 24

and then redefine its vision and mission. A business and values assessment are necessary to envision the future and have a core ideology.

www.HRProfessionalsMagazine.com

Leverage Transparency & Honest Communications to Keep People Engaged Integrations are extremely complex. Find a way to communicate it as simply as possible.

Things change consistently during mergers & acquisitions, and leaders often just don’t have answers to everyone’s questions. Finding ways to engage people throughout the process to keep them informed and to solicit their input helps to create transparency. If a company fails to communicate effectively during the merger/acquisition, they risk the employee’s loyalty & trust, employee retention, company culture, and long-term success. Effective communication is critical during M&A for four primary reasons: 1. Frequent communications reduce uncertainty and maintains a trusted relationship with employees.

2. Proactive communication can ease concerns about job security and reduce the turnover risk during the merger.

3. Intentional and consistent messaging can cultivate a unified company culture.

4. Open communications can facilitate post-deal success and long-term profitability.

Researchers have found that frequent and open communication are central to post-deal integration and value creation. Don’t forget to communicate early as well as more often after the deal is signed.

Ensure Leaders Are Prepared to Coach Their Teams Leaders are the catalyst that helps everyone else be successful. Helping leaders understand themselves and each other helps them support their people and teams on an ongoing basis so they can feel valued, accepted, fulfilled, and connected to what we’re doing during the merger.

Integration ownership should be at the highest level. While it’s smart to include all the key players, the president and/or CEO should drive the process and lead the group. This, however, is not to assume the

C-Suite should do everything during an integration. This assumption doesn’t scale well when there are so many complexities to navigate. Relying on leaders at all levels to support their teams throughout an integration is a way for them to take an active role and not be forgotten in the process. Finding ways to adequately prepare your leaders to coach their teams through the transformation will pay off in multiple dividends. Management and team leaders who are responsible for the integration of new businesses into the existing enterprise should be given the responsibility over a few key areas of the merger: • Establishing the M&A goals and measures of success.

• Pinpointing the M&A “must haves” and unchangeable variables for incorporation into the merger plans.

• Identify their roles and responsibilities in the merger integration process.

• Acquiring and applying best practices for effective M&A integrations.

• Learning the psychological, cultural and human dynamics associated with effective mergers.

Company culture is often one of the most sensitive topics around mergers and acquisitions.

The issue remains that even companies with similar workplace cultures are at risk to an outstanding number of people issues during the integration of their merger & acquisition. Why? The answer lies in its definition: integrating is to combine values that are not easily joined. Defining the culture, creating consistent and honest communications, and ensuring the leadership teams are prepared to coach during the transition are the core drivers of ensuring the culture alignment goes as smoothly as possible. For the actual execution, it is highly recommended you utilize a trusted advisor to assist you during the organizational design & culture alignment phase of a merger/acquisition.

Austin Baker, President HRO-Partners

Austin Baker is the President of HRO Partners, a human resources consulting and benefit administration and enrollment firm as well as a National Enrollment Partner Member representing the largest boutique, full service insurance and enrollment firms in the country.

A veteran of more than 16 years in the human resources and insurance & benefits industry, Baker is responsible for managing a multifaceted human resources consulting company with public workforce programs and services focused on companies in the southeastern United States. Austin is a frequent speaker on a variety of leadership and benefit topics representing thought leadership and innovative practices in the HR industry. For more information, call Baker at 1-866-822-0123, visit www.hro-partners.com or connect with the company at www.facebook.com/hropartners, www.linkedin.com/in/jaustinbaker or twitter. com/jaustinbaker. hro-partners.com company/hro-partners

hropartners @hropartners

www.HRProfessionalsMagazine.com

25

New Year – New Model

Leadership that Drives Results

I

By JANIE WARNER

was recently in an airport when I overheard a traveler talking to another passenger who had been consulting with a large company experiencing growing pains. That is, the company had great potential, but was having difficulty delivering on it. In the consultation interview he asked the CEO what had already been done to ease the pain. The CEO quickly responded, “We have changed our mid-level executives 3 times in the past 7 years.”

The consultant replied, “Why do you think it hasn’t made a difference?” To which the CEO replied, “We keep picking the wrong people.”

As the consultant later noted, top executives are often surprised to discover that a change in managers doesn’t always lead to an improvement in overall performance.

The consultant likened companies to car owners who want the best performance possible but are often unwilling to invest in a high-performance vehicle. Companies try to change drivers (i.e., management) but never work on the engine (systems/business models/ practices/employee development/etc.) Fine-tuning a race car requires constant upkeep.

To get top performance, every aspect of the vehicle must be checked frequently and adjustments made. If the vehicle is still in great shape, a tune-up is all it needs to stay that way.

And what if the car owner doesn’t invest in the necessary maintenance to keep their highperformance car in tip-top shape? At some point, an excellent mode of transportation becomes an old clunker. No matter who the driver is.

What is a leader to do?

I have given the above parable of the car and driver a great deal of thought. Although I’m sure the consultant had some ideas on navigating this dilemma (his flight was {called/ cancelled??} and I didn’t get a chance to ask), I have outlined here four recommendations of my own:

1. Examine often – change parts as needed Like a vehicle, a great company can grow tired, stale or worn out. When that happens, changes must be made. Constant scrutiny and attention is needed to figure out whether a company has a “people” problem or an “engine” (i.e., systems) problem. Is your technology outdated? Are your recruitment efforts falling short? If so, why? Are you really looking for the right people for the jobs, or the kind of people you have always hired in the past? Companies are made up of hundreds of moving parts that function interdependently. When one fails or is not at top performance, the entire enterprise will suffer.

Continuous improvement is always a sound business practice. Practice it to get the best out of your business.

26

www.HRProfessionalsMagazine.com

2. Drivers Ed isn’t just for high schoolers How do your employees know where the company is going? I’ve heard executives tell employees “we are headed in a new direction” when heralding a change in leadership or rolling out a new process or system. Often, employees have no idea what the old direction was and continue driving down the same old path. Companies must teach their employees not just HOW to drive but also WHERE they are going. An ongoing discussion about MISSION and VISION leads to better engagement and makes employees feel truly part of the team effort.

“Employee engagement” isn’t just a 21st-century buzz phrase. It’s one of the most effective ways to get the greatest mileage from your investment of people.

3. Life in the fast lane is fast Many leaders want their companies to be the best – but are not willing to invest in what it will take to get there. Too often, they believe the way they have always done business is still sufficient. But in today’s fast-paced world of industry, if you aren’t moving forward (and quickly) you may as well be driving in reverse. Change and innovation have to be important to a business that wants to thrive.

What was excellent 10 years ago may be mediocre today. Staying on top of trends (but not following fads), as well as devoting time, effort and resources to appropriate changes and updates will make the difference between being broken down on the side of the freeway and traveling in the fast lane. And at some point, you may have to buy a new car. When you do, be sure to invest in a vehicle that will allow you to navigate the fast lane with ease.

4. Don’t forget the fuel!

Lastly, we can’t forget the fuel that drives those high speed machines. While often called a company’s “greatest asset,” people truly are the fuel that propels the engine. A car cannot go anywhere without the proper fuel. So invest in your people. Invest in innovation. Invest in ideas and then take care of those investments. With the right maintenance and improvements, your amazing driving machine will really take you places!

Janie Warner, SHRM-SCP National HR Practice Leader McGriff Insurance Services www.mcgriffinsurance.com

Is this your approach to employee benefits?

McGriff Insurance Services can help. We specialize in delivering innovative employee benefits solutions that help manage costs, drive employee engagement and allow HR more time for strategic initiatives.

To learn how we can design a benefits program that's more than a quick fix, visit McGriffInsurance.com or call 1-877-682-8510.

Š2018, McGriff Insurance Services, Inc. All rights reserved.

Transgender Status Protection Under Title VII

BY JOSEPH M. KRASKA

C

hanges in presidential administrations have what can be described as a pendulum effect. As one administration leaves and another comes to take its place, changes in policy occur. Since the late eighties, the political pendulum has consistently swung back and forth from one party’s administration to another. With the election of Donald Trump as president in 2016, the pendulum once again began to swing in the opposite direction after eight years under the Obama administration.

The effect of the pendulum can clearly be seen in president Trump’s executive and judicial appointments. The result has been a reversal of many Obama-era policies. One policy that is of particular interest in the employment realm is whether Title VII’s prohibition on workplace discrimination based on sex includes gender identity discrimination. The Sixth Circuit recently considered this matter in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. This case has now been appealed to the Supreme Court where it awaits the Court’s decision whether to grant certiorari.

EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. The EEOC brought an enforcement action against Harris Funeral Homes in 2014 on behalf of a transgender funeral director who was terminated when she informed the owner that she would be conforming to feminine characteristics. When she first started working at the funeral home she presented as a man and conformed to typical masculine characteristics. When the funeral director approached the funeral home’s owner to inform him that she would be transitioning from male to female, she was fired.

The funeral director filed a charge with the EEOC. During the course of the EEOC’s investigation it was revealed that the funeral home also had a policy that required its public facing male employees to wear suits and ties and its public facing female employees to wear skirts and business jackets. However, the funeral home’s policy only provided public facing male employees, including funeral directors, with a clothing stipend for this attire, but it did not do the same for its female employees.

28

www.HRProfessionalsMagazine.com

Despite the district court’s finding of genderbased stereotyping that violated Price Waterhouse, it nevertheless dismissed the EEOC’s enforcement action for wrongful termination. The court concluded that the funeral home had established an exemption from Title VII compliance under the Religious Freedom Restoration Act (RFRA).

The EEOC appealed and the Sixth Circuit reversed. The Six Circuit found the funeral home had engaged in unlawful discrimination based on sex and that enforcement of Title VII’s prohibitions against sex discrimination outweighed the funeral home’s RFRA defense. The court noted that although the funeral home owner held himself and the funeral home out as being religiously rooted, the funeral home was not created with an exclusively religious purpose. Additionally, the Sixth Circuit found that EEOC could bring a discriminatory clothing allowance claim against the funeral home because the investigation into the clothing allowance reasonably grew out of the original sex discrimination charge.

Currently, the Harris Funeral Homes case has been appealed to the Supreme Court where its petition for certiorari is pending. Interestingly, the government agency that originally brought this action against the funeral home, the EEOC, takes the position that the term sex as used in Title VII forbids employment discrimination based on gender identity and sexual orientation. Conversely, the Department of Justice (DOJ), the government agency that has the sole authority to represent the government before the Supreme Court, has taken the opposite view.

The Views of the DOJ and the EEOC The pendulum picked up speed in October of 2017, when the DOJ, under the Trump administration, issued a memo rescinding an Obama-era policy memo that stated transgender status was protected under Title VII. Prior to Trump taking office, executive policy favored a broad interpretation of “because of…sex” to include protection from sexual orientation and gender identity discrimination under Title VII. The Obama-era memo asserts that a straight forward reading of Title VII includes discrimination “because of… sex” to encompass discrimination based on an employee’s gender identity. This is the position that the EEOC has taken and continues to take as the government agency charged with enforcing Title VII. Under the current administration, the DOJ’s position regarding “because of…sex” has changed.

The change in policy was cemented in the 2017

DOJ memo that reversed the federal government’s policy on protection for transgender workers. The 2017 memo states that Title VII’s prohibition on sex discrimination encompasses discrimination between men and women, but it does not encompass discrimination based on gender identity per se, including transgender status. The 2017 memo also stated that the government will take the position that transgender status is not protected under Title VII in pending and future matters.

The DOJ submitted a brief in the Harris Funeral Homes case that is now pending before the Supreme Court. The brief essentially takes the positon outlined in the DOJ’s 2017 memo. The DOJ’s brief tells the Supreme Court that civil rights law banning sex discrimination by employers does not cover an employee’s transgender status. Put another way, the DOJ takes the position the “because of…sex” does not include discrimination based on transgender status. This position illustrates the clear divide between the DOJ and the EEOC’s interpretation of the law.

This is not the first time the DOJ has opposed the EEOC’s enforcement of Title VII under the current administration. In a similar case, also pending before the Supreme Court (Zarda v. Altitude Express) the DOJ has withdrew its prior interpretation and indicated that Title VII does not protect against sexual orientation discrimination. The DOJ’s argument is the same, because Congress did not define sex in Title VII, it should not be read to include gender identity or sexual orientation. The pendulum’s effect will now determine the fate of whether discrimination based on gender identity and sexual orientation in the workplace will be protected under Tile VII.

What’s Next?

What happens next will depend on what action the Supreme Court decides to take. Currently pending before the court are two petitions for certiorari asking the Court to decide if discrimination based on sexual orientation constitutes discrimination because of sex under Title VII. The DOJ’s Harris Funeral Homes brief argued that if the Court grants certiorari in either of the other two pending cases (the Zarda and Bostock cases) it should not hear the Harris Funeral Homes case because a decision on the merits in either of those cases would determine the proper analysis to be applied in Harris Funeral Homes. However, if the Court denies certiorari in those cases, the DOJ argued that it would also be proper to deny certiorari in the Harris Funeral Homes case because it is essentially asking the Court to decide the same question.

Since a decision on the merits in any of these three pending cases would result in the determination of the proper analysis to be applied in determining whether Title VII protects employees from discrimination based on gender identity or sexual orientation, it is possible that the Court consolidates and grants review of all three cases. Again the pendulum effect comes into play as the outcome of these cases, if the Court grants certiorari, will be decided by a Supreme Court with two recent Trump administration appointments that have the Court leaning in a conservative majority.

Joseph M. Kraska, Attorney Cross, Gunter, Witherspoon & Galchus, P.C. jkraska@cgwg.com www.cgwg.com

GO CONFIDENTLY. Bass, Berry & Sims listens and responds with creative yet practical counsel. We stay on pace with the complex and rapidly evolving employment landscape, connecting your dynamic human resources needs to proactive strategies.

Relationships, reliability, and respect – at the center of our Labor & Employment and Employee Benefits practices.

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

Centered to deliver. bassberry.com

www.HRProfessionalsMagazine.com

29

2019 U.S. News

Best Lawyers

in Employment Law

OGLETREE DEAKINS Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters.

Premier client service, as outlined in the firm’s Client Pledge, is one of the firm’s top priorities and a cornerstone of its core values. U.S. News – Best Lawyers® “Best Law Firms” has named Ogletree Deakins a “Law Firm of the Year” for eight consecutive years. In 2019, the publication named Ogletree Deakins its “Law Firm of the Year” in the Employment Law Management category. Ogletree Deakins has more than 850 attorneys located in 53 offices across the United States and in Europe, Canada, and Mexico. The firm represents a diverse range of clients, from small businesses to Fortune 50 companies.

MEMPHIS DONNA FISHER , of counsel in Ogletree Deakins’ Memphis office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2019.

Fisher was listed in the Employment Law - Management category. Fisher has over thirty-five years of experience in representing management in labor and employment matters with an emphasis on advice and preventive activity. She has been active in leadership roles in the community having served on numerous boards and commissions.

TOM HENDERSON , a shareholder in Ogletree Deakins’ Memphis office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019. Henderson was listed in the Employment Law Management, Labor Law - Management, and Litigation - Labor and Employment categories. Henderson is the Managing Shareholder of the Memphis office. He has represented management in employment and labor relations matters for over 30 years.

He has served as lead counsel in numerous jury trials in state and federal courts across the nation.

KIMBERLY HODGES , a shareholder in Ogletree Deakins’ Memphis office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2019.

Hodges was listed in the Employment Law - Management category. Throughout her sixteen years as a litigator, Kim has amassed a wealth of employment and commercial litigation experience and defended corporate clients as first-chair counsel in state and federal courts across the United States.

30

www.HRProfessionalsMagazine.com

NASHVILLE TOM DAVIS , a shareholder in Ogletree Deakins’

Nashville office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019. Davis was listed in the Labor Law – Management category.

Davis represents employers in all aspects of employment law matters with a primary focus on the area of traditional labor law. Davis advises clients on compliance with various aspects of the federal laws, including the Fair Labor Standards Act and state restrictive covenant laws.

KEITH FRAZIER , a shareholder in Ogletree Deakins’ Nashville office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019.

Frazier was listed in the Employment Law - Management and Labor Law - Management categories. Frazier represents management in the area of labor and employment law with an emphasis on employment litigation including collective actions under the FLSA and the ADEA. Frazier has been counsel in over 20 jury trials in both state and federal courts, and he has experience trying collective actions in federal court before a jury and in an arbitration setting.

JONATHAN HARRIS , a shareholder in Ogletree Deakins’ Nashville office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019.

Harris was listed in the Employment Law - Management and Litigation – Labor and Employment categories. He is the Managing Shareholder of the Nashville office. Harris represents management in a wide variety of employment-related matters.

In addition to defending single-plaintiff lawsuits, Harris also represents employers in class and collective actions. He has handled countless EEOC charges and defended employers in lawsuits brought by the EEOC.

JOHN HARRISON , a shareholder in Ogletree Deakins’ Nashville office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019.

Harrison was listed in the Employment Law - Management category. He is Board certified as a labor and employment law specialist by the Texas Board of Legal Specialization.

His practice is devoted exclusively to the representation of employers in matters of personnel policies and practices, labor and employment litigation, wage-hour compliance and other workplace issues.

TIMOTHY PALMER, a shareholder in Ogletree

Deakins’ Nashville office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019.

Palmer was listed in the Employment Law - Management, Labor Law - Management, and Litigation - Labor and Employment categories. Palmer is an experienced litigator specializing in both employment litigation and general civil litigation in state and federal courts. His practice focuses on the defense of employment litigation including discrimination claims, defense of personnel actions, and defense of employee benefit disputes.

JENNIFER RUSIE, a shareholder in Ogletree Deakins’ Nashville office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2019.

Rusie was listed in the Litigation - Labor and Employment category. Rusie represents management in the area of labor and employment law with an emphasis on employment litigation, including cases involving Title VII, the ADAAA, ADEA, FMLA, FLSA, common law wrongful termination, and restrictive covenants.

Additionally, approximately half of Rusie’s practice is devoted to Title III of the ADA - both architectural issues and website accessibility.

WILLIAM RUTCHOW, a shareholder in Ogletree Deakins’ Nashville office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019.

Rutchow was listed in the Employment Law - Management and Litigation - Labor and Employment categories.

Rutchow currently concentrates his practice in three areas: Workplace Safety and Health, Unfair Competition/Trade Secrets, and Employment Litigation. He also has experience in commercial litigation, personal injury litigation, and NLRB proceedings.

LIZ WASHKO, a shareholder in Ogletree Deakins’

Nashville office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2019. Washko was listed in the Employment Law - Management and Litigation - Labor and Employment categories. Washko is co-chair of the firm’s Pay Equity practice group. Washko represents management in a wide variety of employment matters both at the agency level and in litigation, including discrimination, harassment, retaliation, FMLA and FLSA cases.

LUTHER WRIGHT, JR. , of counsel in Ogletree

Deakins’ Nashville office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019.

Wright was listed in the Employment Law - Management and Litigation - Labor and Employment categories. He has significant experience in the areas of labor and employment law, corporate business litigation and complex litigation, including class action and collective action lawsuits. He typically represents management in all forms of employment discrimination litigation, including litigation based on federal anti-discrimination statutes, state statutes and common law, violence in the workplace, Fair Labor Standards Act claims and independent contractor disputes.

BIRMINGHAM GORDON BLAIR , a shareholder in Ogletree Deakins’ Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019.

Blair was listed in the Employment Law - Management category. Blair devotes a substantial portion of his practice to general litigation, regularly representing colleges and universities, contractors, healthcare providers, manufacturers and retailers in personal injury, construction, tort, and contract litigation. However, the majority of Gordon’s practice is focused on the representation of employers in workplace-related matters, ranging from administrative proceedings to federal litigation.

BRIAN BOSTICK , a shareholder in Ogletree Deakins’ Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019.

Bostick was listed in the Employment Law - Management and Litigation - Labor and Employment categories. He has considerable experience representing employers in employment-related litigation in both federal and state courts. He has defended employment lawsuits pending before each of the federal districts in Alabama, the Alabama Supreme Court, the Eleventh Circuit Court of Appeals and the United States Supreme Court.

CARIN BURFORD , a shareholder in Ogletree Deakins’ Birmingham office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2019. Burford was listed in the Litigation - Labor and Employment category. Burford represents management in employment-related litigation concerning claims of discrimination, harassment, retaliation, unemployment compensation, wage and hour, and workers’ compensation. Ms. Burford also regularly provides training on issues such as employee discipline, harassment and workplace violence prevention, litigation avoidance, and workplace policies and procedures.

RICHARD CARRIGAN , a shareholder Ogletree Deakins’ Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019. Carrigan was listed in the Employment Law Management, Labor Law - Management, Litigation - Labor and Employment, and Qui Tam Law categories. Carrigan is an enthusiastic litigator in state and federal courts as well as before administrative agencies. He tries jury and bench trials in federal districts throughout Alabama, and in the Northern District of Florida as well as state courts and many other venues.

www.HRProfessionalsMagazine.com

31

CHRIS DEERING , a shareholder in Ogletree Deakins’ Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019. Deering was listed in the Employment Law Management, Labor Law - Management, and Litigation - Labor and Employment categories. Deering has extensive experience representing employers in successfully avoiding and defending a broad range of employment-related claims. His focus areas include employment discrimination, wrongful discharge, retaliation and harassment, whistleblower issues, restrictive covenants, wage-hour matters (including class and collective actions) and workplace safety.

SCOTT KELLY , a shareholder in Ogletree Deakins’

Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019. Kelly was listed in the Employment Law - Management and Litigation - Labor and Employment categories. Kelly provides practical solutions for federal contractors and subcontractors across the United States to comply with the ever-changing affirmative action obligations imposed by doing business with the federal government. Kelly assists manufacturing, transportation, construction, food processing, hospitality, healthcare, and financial institutions with creative solutions for preparing, managing, and defending their affirmative action programs and related matters.

PEYTON LACY , of counsel in Ogletree Deakins’

Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019. Lacy was listed in the Employment Law - Management, Labor Law - Management, and Litigation - Labor and Employment categories. Lacy has forty-four years’ experience in labor and employment law. In addition to a traditional labor law practice, Lacy defends individual and class employment litigation cases in both federal and state court, handles traditional labor law matters for employers including negotiation and arbitration, and counsels employers on preventive measures in both areas.

JAMES PATTON , shareholder in Ogletree Deakins’

Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019. Patton was listed in the Employment Law - Management category.

For 20 years, Patton has advised companies on a variety of workplace issues including preparing and enforcing non-competition agreements, dealing with complex employee leave issues, defending employment discrimination lawsuits, and providing advice on difficult workplace issues.

32

www.HRProfessionalsMagazine.com

JAMES PENNINGTON , shareholder in Ogletree Deakins’ Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019.

Pennington was listed in the Education Law, Employment Law - Management, and Labor Law - Management categories. Pennington is the Managing Shareholder and a founding member of the Birmingham Office of Ogletree Deakins. For more than two decades, he has represented employers in a wide range of labor and employment law matters, including administrative agency charges, federal and state court litigation, union campaigns and collective bargaining.

DAVID WARREN , a shareholder in Ogletree

Deakins’ Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019.

Warren was listed in the Employment Law - Management and Litigation - Labor and Employment categories.

Since 1993, Warren has represented employers in the employment and labor law field, with an emphasis on litigation prevention counseling and employment litigation defense. Warren has served as lead counsel in numerous bench and jury trials at the state and federal level and on state and federal appeals. He became a founding member of Ogletree Deakins’ Birmingham office in 1997.

ATLANTA CHRISTINA BROXTERMAN , a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2019. Broxterman was listed in the Employee Benefits/ ERISA Law category. She practices exclusively in the area of employee benefits law. She represents clients in the areas of qualified and non-qualified retirement plans, health and welfare plans, ERISA compliance, COBRA administration, compliance with the privacy rule under HIPAA, and other federal laws relating to employee benefits matters.

MEG CAMPBELL , a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2019. Campbell was listed in the Employment Law - Management, Litigation - Labor and Employment, and Qui Tam Law categories. An all-around labor and employment lawyer, she is particularly recognized for her expertise and experience in complex class and collective action litigation, whistleblower investigations and litigation including Sarbanes-Oxley and Dodd-Frank cases, appellate practice, and restrictive covenant law. Campbell has litigated single plaintiff, multiplaintiff, and class and collective action jury and nonjury cases in federal and state courts around the country.

PATRICK CLARK , a shareholder in Ogletree

Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019.

Clark was listed in the Employment Law - Management and Litigation - Labor and Employment categories. He concentrates his practice on advice and litigation in all areas of employment law. Although he has particular expertise in representing healthcare industry clients, his representative clients also include insurance, paper/building products and publishing companies.

Clark’s representation of clients encompasses litigation in state and federal courts across the country.

CRAIG CLELAND , a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019. Cleland was listed in the Employment Law Management and Litigation - Labor and Employment categories. Cleland defends employers in litigation— including class and collective actions—and counsels them in risk management and compliance. He is the former Chair and Co-Chair of the Firm’s Class Action Practice Group. He is also an Adjunct Professor of Law at Georgia State University College of Law, where he teaches Complex Litigation.

HOMER DEAKINS , Chairman Emeritus in Ogletree Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019. Deakins was listed in the Employment Law Management and Labor Law – Management categories.

Deakins has extensive experience in all aspects of labor relations law and has handled some of the largest and most highly publicized union elections in the United States on behalf of employers.

Mr. Deakins also has extensive and varied experience in employment litigation, including jury trials in state and federal courts involving equal employment opportunity and employment-at-will cases.

TODD DUFFIELD , a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019. Duffeld was listed in the Employment Law – Management and Litigation – Labor and Employment categories. His practice focuses on representing employers in all aspects of labor and employment law, including counseling, labor-management relations, employment and restrictive covenant litigation. He is co-chair of the firm’s Airline and Railroad Practice Group.

WILLIAM (BILL) GRAY , a shareholder in

Ogletree Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019. Gray was listed in the Employee Benefits/ERISA Law category. He focuses his practice on the design, establishment, and maintenance of qualified retirement plans, health and welfare plans, and nonqualified deferred compensation plans for employers.

GREG HARE , a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019. Hare was listed in the Employment Law – Management, Labor Law – Management, and Litigation – Labor and Employment categories. Hare has been an employment lawyer at Ogletree his entire career, ever since 1991. He assists companies with human resources and employmentrelated litigation matters, including wrongful termination claims, sexual harassment, employment discrimination, employment contracts, trade secrets, and non-compete agreements. He also serves as managing shareholder of the firm’s Atlanta office.

KEVIN HISHTA , a shareholder in Ogletree Deakins’

Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019. Hishta was listed in the Labor Law - Management and Litigation - Labor and Employment categories. He represents employers throughout the country in a wide variety of labor and employment law matters. Such representation involves employment-related litigation in federal and state courts, including class actions and franchise and independent contractor misclassification litigation.

ERIKA LEONARD , a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2019. Leonard was listed in the Employment Law - Management category. Leonard has successfully represented clients in nearly a dozen wage and hour class and collective actions, as well as numerous singleplaintiff employment discrimination cases, appellate litigation, and traditional labor matters. Leonard also advises clients on compliance with federal and state laws, prepares employee handbooks, conducts harassment, discrimination, and wage and hour investigations and training, and drafts employment agreements.

ROBERT SANDS , a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019. Sands was listed in the Employment Law - Management and Labor Law Management categories. Sands has spent his entire career at Ogletree representing the interests of management in all aspects of labor and employment law. Robert served for nearly a decade as the managing shareholder of the Atlanta office. Following this assignment, he has devoted all of his efforts to providing superior client service to firm clients.

WILLIAM (BILL) STEINHAUS , a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2019. Steinhaus was listed in the Labor Law – Management category. For over 30 years, he has focused his practice solely on representing employers in the full spectrum of employment and labor matters. His in depth knowledge of the law and network within the legal community have resulted in requests for consultation from his peers and others to assist in identifying lawyers outside of his area of expertise and subject matter experts in various cases.

www.HRProfessionalsMagazine.com

33

WIMBERLY LAWSON WRIGHT DAVES & JONES, PLLC The focus of our practice at Wimberly Lawson Wright Daves & Jones, PLLC is primarily on labor and employment law for management, together with general liability and workers’ compensation defense, for businesses and professionals, insurers, and governmental entities. We have offices throughout Tennessee, and serve clients both nationally and internationally. Our attorneys use a number of preventive and cost-effective methods to maximize employee benefit dollars as well as avoid costly legal problems. Our attorneys also sponsor and present a wide array of conferences and seminars every year, including our annual Labor Relations & Employment Law Update Conference. The Firm has been recognized for various coveted rating awards including: U.S. Top Ranked Law Firms by Fortune Magazine; Best Law Firms

by U.S. News & World Report; and Martindale Hubbell Peer Review Rated Award by Martindale-Hubbell.

FREDRICK R. BAKER is a Member in the Cookeville, Tennessee office of the Firm. His practice includes an emphasis in workers’ compensation and employment discrimination, as well as ADA and FMLA compliance. Fred is the Editor of the Tennessee Workers’ Compensation Handbook (M. Lee Smith Publishers) and is also Tennessee’s representative for the National Workers’ Compensation Defense Network. Fred has an AV Preeminent® Rating from Martindale-Hubbell. He is also listed in The Best Lawyers in America® in the field of Workers’ Compensation Law/Employers, and in Mid-South 2018 Super Lawyers in the area of Workers’ Compensation. He received his law degree, magna cum laude, from the University of Tennessee.

FREDRICK J. BISSINGER is

Regional Managing Member of the Nashville, Tennessee office. His practice includes an emphasis in handling employment discrimination and wrongful discharge matters, ADA and FMLA compliance, and general liability matters. Prior to entering private practice, Fred served in the United States Navy Judge Advocate General Corps from 1993-1997. Fred has an AV Preeminent® Rating by MartindaleHubbell, and he is also listed in The Best Lawyers in America® in the fields of Employment Law/ Management and Litigation/ Labor & Employment. He is the 2019 Legislative Chair for the Tennessee Society for Human Resource Management.

L. ERIC EBBERT is a Member of the Firm in the Knoxville, Tennessee office. He practices in the areas of Labor & Employment law - Management, business litigation, and health care liability. Eric has tried more than 30 cases, representing regional, national and multi-national companies, through all stages of litigation and appeals. Eric received his law degree from the University of Tennessee College of Law. He is listed in The Best Lawyers in America® in the field of Litigation/Labor & Employment. Since 2007 Eric has served as a member of the District Investigatory Committee of the Tennessee Board of Law Examiners. He is licensed in both Tennessee and Florida.

34

www.HRProfessionalsMagazine.com

G. GERARD JABALEY is Regional Managing Member of the

Knoxville, Tennessee office of the Firm. Gerard’s primary practice areas are defense oriented and encompass the areas of workers’ compensation, employment law and human resources training. Gerard has an AV Preeminent® Rating - which is the highest possible rating given by Martindale-Hubbell, the leading independent attorney rating entity and he is also listed in the Best Lawyers of America® in the area of Workers’ Compensation Law-Employers. Gerard is a member of the Employment Law Sections of the Tennessee and American Bar Associations, and a member of the Litigation Section of the American Bar Association.

HOWARD B. JACKSON is a Member of the Knoxville, Tennessee office of the Firm. His practice includes substantial experience with labor law and employment litigation, and also includes training and counseling on a wide variety of employment law issues, as well as commercial litigation. He received his J.D. summa cum laude from Georgia State University, where he was Lead Articles Editor of the Law Review and First Honor Graduate. Howard has an AV Preeminent® Rating from Martindale-Hubbell. He is also listed in The Best Lawyers in America® in the area of Employment Law/Management. Howard is a member of the bar in Georgia and Tennessee.

JEFFREY G. JONES is the Firm Managing Member of Wimberly Lawson Wright Daves & Jones, PLLC. His practice includes an emphasis on commercial transactions, governmental law and creditors’ rights, as well as insurance defense. Jeff has an AV Preeminent® Rating from Martindale-Hubbell, and he is also listed in the Best Lawyers of America® in the area of Commercial Litigation. Jeff is currently the County Attorney for Putnam County, Tennessee, and a Director for the City of Cookeville Public Building Authority. In the community, Jeff is a Director for the Cookeville-Putnam County Chamber of Commerce and a member of the Cookeville Rotary Club.

T. JOSEPH LYNCH is a Member in the Knoxville office. His

law practice includes an emphasis in labor and employment law and the defense of workers’ compensation claims for employers. Joe received his B.A. in English, cum laude, from Carson-Newman College and his law degree from the University of Tennessee School of Law. He has an AV Preeminent® Rating by Martindale-Hubbell, and is also listed in the Best Lawyers of America® in the area of Workers’ Compensation Law/Employers. Joe is a member of the Knoxville and Tennessee Bar Associations, the Society of Human Resource Management, and the Tennessee Valley Human Resource Association.

JEROME D. PINN is a Member of the Knoxville, Tennessee office of the Firm. His practice includes an emphasis in employment discrimination and wrongful discharge litigation, as well as ADA and FMLA compliance, wage and hour law compliance, and affirmative action compliance. He received his Bachelor of Arts degree from Cornell University, and his law degree from the University of Michigan.

Jerry has a BV Distinguished® Rating - a widely respected mark of achievement given by Martindale-Hubbell, the leading independent attorney rating entity - and he is also listed in The Best Lawyers in America® in the area of Litigation/Labor & Employment.

EDWARD H. TRENT is a Member of the Knoxville, Tennessee

office of the Firm. His practice focuses primarily on labor and employment law matters, including litigation and appeals, as well as training and compliance. Ed also works with churches on child protection issues, employment law matters, and religious liberty issues.

Ed has an AV Preeminent® Rating from Martindale-Hubbell, and since 2011 he has also been listed in The Best Lawyers in America® in the fields of Employment Law/Management and Litigation/Labor & Employment. In 2016 Ed was named Lawyer of the Year by Best Lawyers for Employment Law/Management, Knoxville. Ed is also Board Certified in Labor and Employment Law by The Florida Bar.

WRIGHT LINDSEY JENNINGS Wright Lindsey Jennings' Labor and Employment team has managementoriented practices addressing all aspects of the employee/employer relationship. The team has extensive experience litigating and arbitrating employment and civil rights claims, in addition to state law claims. Our attorneys defend clients in multi-plaintiff, collective action and class action lawsuits, as well as Department of Labor and EEOC investigations. WLJ's team provides advice and counsel to clients regarding a variety of day-today matters and represents clients in labor arbitrations, union elections and contract negotiations. We offer proactive and preventive resources for HR professionals, including employee and manager training, e-newsletters, employment law luncheons and webinars, and website articles.

JANE A. KIM’S practice centers on defending employers in state and federal court litigation involving claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act and the Age Discrimination in Employment Act. Kim also advises and provides training to employers on compliance with civil rights law. Kim is recognized by Chambers USA as a "Leader in Their Field" and has been listed in Mid-South Super Lawyers since 2013. Kim chairs Wright Lindsey Jennings’ Committee on Associates, and was named to the inaugural Arkansas Business list of "Women to Watch" in Central Arkansas.

JOHN D. DAVIS concentrates his Little Rock-

based practice in the areas of labor and employment law and workers’ compensation. He spends a considerable amount of his time advising clients in connection with a variety of employment-related matters, including terminations, severance agreements, wage and hour issues, union avoidance, union negotiations, arbitrations, personnel policies and compliance with federal, state and local employment laws. Davis has received an AV® Preeminent™ 5.0 out of 5 Peer Review Rating through Martindale-Hubbell, and is listed among The Best Lawyers in America, Chambers USA and Mid-South Super Lawyers.

MICHELLE M. KAEMMERLING heads up Wright Lindsey Jennings' Labor and Employment Team. Her practice focuses on employment and commercial litigation in state and federal court, including appeals. She has also represented a number of defendants in employment and consumer class action lawsuits. In addition to her litigation practice, Kaemmerling regularly advises employers regarding compliance with state and federal employment laws and develops personnel policies, employment agreements, covenants not to compete and other employment-related contracts. Kaemmerling has been recognized by Mid-South Super Lawyers since 2009, is listed among The Best Lawyers in America and is named a “Leader in the Field” by Chambers USA.

LEE J. MULDROW has been engaged in general litigation and workers’ compensation defense in Little Rock for more than thirty years. His litigation practice primarily involves a wide variety of insurance defense cases, including copyright, trademark and trade dress litigation. His workers’ compensation practice entails representing employers, self-insured companies and insurance carriers. Muldrow is listed in The Best Lawyers in America in the areas of “Worker’s Compensation Law” and “Health Law,” Chambers USA and Mid-South Super Lawyers. He has also received an AV® Preeminent™ 5.0 out of 5 Peer Review Rating through Martindale-Hubbell.

TROY PRICE has earned a reputation as one of Arkansas’ most experienced and highly regarded appellate lawyers. Price has handled more than 50 appeals in state and federal courts and has presented oral arguments more than 15 times in appeals before the Arkansas Supreme Court and Court of Appeals, the Eighth Circuit Court of Appeals and the Eleventh Circuit Court of Appeals. He is also admitted to practice before the Supreme Court of the United States. In addition to focusing on ERISA and other employee benefits litigation in his practice, Price is also recognized as an authority in First Amendment law.

STUART JACKSON advises employers on compliance with civil rights laws and developing personnel policies (including medical marijuana policies), employment agreements and covenants not to compete. Jackson defends employers in federal and state court litigation and appeals involving claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act and the Arkansas Civil Rights Act. Jackson is listed among The Best Lawyers in America, Chambers USA “Leaders in Their Field” and Mid-South Super Lawyers, and has an AV® Preeminent™ Peer Review Rating through Martindale-Hubbell.

www.HRProfessionalsMagazine.com

35

FORDHARRISON FordHarrison is a labor & employment defense law firm with 29 offices, including three affiliate firms, and is the sole member of the global employment law firm alliance, Ius Laboris. The firm has built a national legal practice as one of the nation's leading defense firms with an exclusive focus on labor law, employment law, litigation, business immigration, employee benefits and executive compensation. FordHarrison is committed to our FH Promise, a set of principles that guides our firm in the delivery of legal services and client communications. For more information on FordHarrison, visit fordharrison.com. To learn more about Ius Laboris, visit iuslaboris.com.

ATLANTA, GA JOHN F. ALLGOOD , Of Counsel

John has served for more than 20 years as an independent neutral arbitrating cases in commercial, employment, construction and securities law areas. His practice includes mediation in the above practice areas as well as real estate and anti-trust matters. John is a Fellow in the College of Commercial Arbitrators. Previously he served as a Fellow in the College of Commercial Arbitrators as well as chair and Executive Board Member of Corporate Counsel Sections of the Georgia and Atlanta Associations.

John earned his J.D. from the University of Georgia School of Law. PAUL R. BESHEARS , Partner

Paul represents employers in all aspects of labor and employment law with an emphasis on collective bargaining, strikes, union organizing campaigns, labor arbitrations, and NLRB unfair labor practice cases.

He also advises companies on labor and employment issues, including those that arise in connection with mergers and acquisitions, reductions in force, and plant closings, and those dealing with the labor law aspects of government contracting. Paul serves as head of FordHarrison's Traditional Labor Practice Group and is a member of the firm's Healthcare Practice Group. Paul earned his J.D. from the University of Georgia School of Law. PATRICIA G. GRIFFITH , Partner

Patricia concentrates her practice on employment litigation, including individual and class action discrimination and harassment cases, employment contracts, wage/hour claims, and other employmentrelated actions. She tries cases in federal and state courts and before administrative agencies and arbitrators. Patricia has substantial jury and class certification experience. She is adept at mediating disputes, reducing the likelihood of protracted litigation, and serves as an arbitrator for the State Bar of Georgia and private parties. Patricia earned her J.D. from the University of Georgia School of Law. C. LASH HARRISON , Partner Lash Harrison has more than 50 years of experience representing management in all aspects of employment and labor law. During those 50 years he has represented employers in almost every state and in a variety of industries. From the firm’s inception in 1978 with 14 lawyers, until December of 2017, Lash served as its Managing Partner. He now serves as Chairman of the firm’s Executive Committee, its highest governing body. Throughout his career, Lash has served in leadership roles in a number of professional and civic organizations. Currently, he is a member of the Emory University Law School Dean's Advisory Board. Lash earned his J.D. from Emory University School of Law. 36

www.HRProfessionalsMagazine.com

THOMAS J. KASSIN , Of Counsel Tom focuses his practice on airline labor and employment. He counsels clients on all types of personnel and labor relations matters that arise under the Railway Labor Act. Tom has extensive experience in handling a wide range of airline arbitration cases, having successfully represented clients in more than 300 cases. With his experience as a naval flight officer, Tom is very familiar with operational issues including pilot competency and proficiency cases as well as matters involving the analysis of complex aircraft accidents/incidents. Additionally, he is experienced in contract disputes as well as drug and alcohol related cases. Tom earned his J.D. from the University of Virginia School of Law. F. CARLTON KING, JR. , Of Counsel

Carlton’s entire legal career has concentrated on civil litigation with particular emphasis on trying cases in the courtroom. In recent years, he has drawn on his years of trial experience as a mediator and arbitrator, assisting in the resolution of disputes through ADR. Carlton brings a practical sensibility to dispute resolution and has dealt with a myriad of commercial subject matters. For several years he managed the litigation practice of FordHarrison. He is admitted to practice in all Georgia courts and has tried cases in a number of jurisdictions other than Georgia. Carlton earned his J.D. from the University of Virginia School of Law. ANDREW D. MCCLINTOCK , Partner Andy has been with FordHarrison since 1994.

His practice concentrates on airline matters, and his experience includes litigating Railway Labor Act issues, conducting arbitrations before airline system boards of adjustment, representing management in NMBsponsored grievance mediation, negotiating collective bargaining agreements and giving general advice on labor and employment issues. Andy was a commissioned officer in the U.S. Marine Corps between 1983 and 1991. He completed flight training, and served for five years as a pilot with a helicopter squadron. Andy earned his J.D. from Emory University School of Law. JEFFREY D. MOKOTOFF , Partner Jeff’s broad employment law practice includes drafting and litigating executive, arbitration and non-compete agreements, as well as litigating collective and class actions in state and federal courts. Before rejoining FordHarrison in 2017, after a 16-year career with the firm, Jeff held the position of Chief Administrative Officer and Counsel for Turner Enterprises, Inc., founded and developed Ted Turner Expeditions, and served as employment counsel for Ted’s Montana Grill. He is Co-Chair of FordHarrison’s Non-Compete, Trade Secrets and Business Litigation Practice Group and Chairs FordHarrison’s relationship with the global employment law firm alliance, Ius Laboris. He earned his J.D. from Emory University School of Law.

JOHN L. MONROE, JR. , Partner

John has represented employers in the litigation and arbitration of virtually every type of claim that may arise out of the employment relationship. These claims include employment discrimination and harassment, breach of contract, unfair competition, misappropriation of trade secrets, claims arising under state and federal wage and hour laws and family medical leave laws, employment/business torts, claims involving minority shareholder rights and business "divorces." He is a member of the firm's Executive Committee and serves as the firm’s General Counsel as well as managing partner of the firm's Atlanta office. John earned his J.D. from the University of North Carolina School of Law. FREDERICK L. WARREN , Partner Rick handles all aspects of labor and employment law, including traditional labor law, employment litigation, wage and hour matters and workplace safety and serves as co-chair of the firm’s Restaurant Practice Group.

He litigates cases before federal and state courts and administrative agencies throughout the country. He defends both individual and class action cases and has substantial jury trial experience. Rick also handles numerous mediations and arbitrations. He devotes a significant part of his practice to preventive law and advising clients how to avoid/resolve labor and employment disputes and litigation. Rick earned his J.D. from the University of Georgia School of Law.

LAVERN J. WILSON ,

Talent and Recruiting Partner Lavern was named FordHarrison's first Talent and Recruiting Partner in 2018. In this new role, Lavern is responsible for recruiting and developing lawyers firmwide. She oversees the hiring and on-boarding of new lawyers, manages utilization and workflow, and designs and implements talent development initiatives to support the career growth of our lawyers.

Lavern concentrates her practice on defending employers in discrimination, harassment, wage and hour, whistle-blower, retaliation, employment/ business torts and wrongful termination litigation, in both state and federal courts. Lavern earned her J.D. from Stetson University College of Law.

BIRMINGHAM, AL WESLEY C. REDMOND , Partner

With more than 25 years of experience as a labor and employment attorney, Wesley has a unique approach to litigation and particular experience representing retail clients and religious institutions. Wesley regularly represents clients in state and federal courts as well as before administrative agencies and he counsels them in complying with the many federal and state employment and labor laws. His litigation approach is to test as early as possible the validity of claims made by employees before costly discovery begins. Wesley earned his J.D. from Georgetown University Law Center.

MEMPHIS, TN LOUIS P. BRITT, III , Partner

Louis is the Regional Managing Partner for FordHarrison's Memphis, Nashville and Dallas offices. He concentrates his practice on employment litigation and advice, representing private and public employers in a broad range of employment matters. Louis handles employment discrimination and harassment cases (Title VII, ADA, ADEA and FMLA), wage/hour matters, enforcement and defense of restrictive covenants contained in employment agreements, and employment-related torts. He is experienced in complex and class action litigation, and has tried cases in state and federal courts across the country. Louis has extensive experience in public sector representation in both litigation and collective bargaining.

Louis earned his J.D. from Tulane University Law School.

HERBERT E. GERSON , Of Counsel

- Lawyer of the Year – Labor Law – Management - Memphis Herb focuses his practice on managing all areas related to traditional labor and employment issues both local and international. He chairs the firm’s global Legal Services Practice Group. He devotes much of his practice to counseling clients on avoiding employment discrimination claims and developing a positive work environment. Herb has written numerous articles on labor and employment matters, is a frequent speaker on labor and employment matters and co-chaired the Labor and Employment Committee of the Litigation Section of the American Bar Association. Herb earned his J.D. from Emory University School of Law. THOMAS J. WALSH, JR. , Of Counsel Tom has practiced civil litigation for 35 years, specializing in appellate advocacy in state and federal courts. He has successfully handled hundreds of summary judgments and appeals, including those resulting in landmark employment discrimination decisions by the U.S. Supreme Court and by various federal and state appellate courts. Tom previously served as an adjunct professor in legal research and writing at the University of Memphis Law School and has taught a number of seminars on legal writing for attorneys and judges. Tom earned his J.D. from the University of Virginia School of Law.

NASHVILLE, TN MARK E. STAMELOS , Partner Mark represents businesses on their employment issues, including trade secret, non-compete and restrictive covenant disputes as well as defending employers against harassment, discrimination and retaliation claims. A stickler for responsiveness, Mark likes to visit businesses, study their processes, see the facilities and learn how people do their jobs.

He has particular expertise helping clients protect their trade secrets and other valuable business interests. In addition, he provides advice about or litigates issues related to restrictive covenants, such as non-competition and confidentiality agreements. Mark earned his J.D. from Capital University Law School.

www.HRProfessionalsMagazine.com

37

BASS, BERRY & SIMS At Bass, Berry & Sims, positive human relationships and interactions drive business success. Our attorneys advise union and non-union companies as well as public, private and non-profit employers across a variety of industries, ranging from Fortune 500 companies to small locally owned businesses, on labor and employment and employee benefits matters from a perspective that connects our clients’ dynamic human resources needs with affirmative strategies.

DAVIDSON FRENCH advises clients

on labor and employment matters. His clients include a major university, a national retailer and multiple healthcare companies. Over the last five years, Davidson has assisted in responding to more than 100 EEOC claims for one client with 8,000+ employees, providing guidance and strategy for the successful resolution of each claim. Additionally, he served as lead counsel in a Fair Labor Standards Act (FLSA) collective action for a food service industry client, achieving a favorable settlement and helping the company address operational issues to prevent future claims similar in nature.

TIM GARRETT helps employers solve complex issues related to all aspects of labor and employment law, providing in depth counseling and developing creative solutions to underlying business issues. He is an experienced trial lawyer, defending employers of all sizes in employment litigation claims across the country. His work has ranged from defending a major university during a significant wage and hour collective action involving thousands of employees to the successful defense of a major healthcare provider in a gender discrimination / retaliation case. In addition, Tim has served as nationwide labor and employment counsel for the largest nonprofit dialysis company in the U.S.

38

www.HRProfessionalsMagazine.com

BOB HORTON, as chair of the firm’s Labor & Employment Practice Group, represents management in all areas of labor and employment law. Bob’s practice consists primarily of counseling clients regarding employment issues and defending companies against all manner of employment claims throughout the U.S. Bob has substantial jury trial experience and has obtained defense verdicts in discrimination and retaliation lawsuits across the country. With a robust non-compete practice, Bob has assisted employers in drafting non-compete agreements on a state by state basis, enforcing non-compete agreements by way of obtaining injunctive relief, and defending the company and new employees against claims of breach of non-compete agreements with prior employers. Bob assists numerous public companies and executives in the negotiation of employment agreements, as well as executive departures and subsequent issues that arise from equity grants in various forms.

FRITZ RICHTER has more than 30 years of experience counseling clients on employee benefit plan design and administration, and compliance with the Internal Revenue Service (IRS), Pension Benefit Guaranty Corporation and Employee Retirement Income Security Act. His clients span a wide range of industries, including healthcare, retail and hospitality. Fritz has helped clients navigate hundreds of audits; submitted numerous IRS, Department of Labor and Pension Benefit Guaranty Corporation filings; and crafted a wide variety of employee benefit plan documents – all focused on helping employers navigate complex government regulation.

DAVID THORNTON helps employers

deliver retirement, health and welfare benefits to their executives and employees. With more than 30 years of experience, he has developed a diverse practice counseling hundreds of public and private employers and non-profit organizations in drafting, maintaining and administering retirement plans ranging from $1 million to several billion dollars in assets, including many in the $100 million to $500 million asset range. He has deep experience in ESOP transactions, successfully navigating the significant fiduciary duty considerations and tax code requirements involved with these transactions.

RAINEY, KIZER, REVIERE & BELL, PLC

Legal Challenges are Coming at HR Professionals from Every Direction

The Firm provides its clients top-quality legal advice and representation in the areas of company policies and practices, discrimination claims, workers' compensation, and civil rights.

The attorneys practicing in these areas have many years of experience in defending employers against claims of racial and sexual discrimination, sexual harassment, ADA and FMLA violations, wage and hour violations, wrongful awards of unemployment compensation, retaliatory discharge, and workers' compensation. The members of the Firm’s Employment Law group also have extensive, specific experience in defending governmental entities against employment law claims and serving governmental entities’ unique employment law needs.

For over thirty years, ROBERT BINKLEY has represented employers and individuals in employment, workers' compensation, insurance, and tort matters. He helps private and public employers in conducting investigations and litigation concerning compliance with Title VII, FMLA, ADEA, ADA, FLSA, THRA, and other state and federal employment related laws. He is a Rule 31 certified mediator and serves as the Firm’s personnel partner.

JOHN BURLESON has extensive experience in employment matters and has successfully defended public and private employers in state and federal courts. In addition to his extensive trial experience, he also regularly advises clients in regard to employment-related matters in the areas of compliance with Title VII, ADEA, ADA, the Tennessee Human Rights Act, and other state and federal laws. John’s litigation experience also makes him a sought-after mediator in employment law and civil rights cases.

That’s Why Rainey Kizer Makes Your Business Our Concern As the issues facing HR executives become more frequent, challenging, and complex each year, you need a law firm that provides advice invidualized for you specific needs.

This is why you should know the employment law attorneys at Rainey, Kizer, Reviere & Bell, PLC. For over 40 years, our AV-rated firm has advised businesses, non-profit organizations and government agencies on all aspects of employment law. To learn more, please call.

Memphis

Nashville

901.333.8101

615.613.0442

Jackson

Chattanooga

731.423.2414

423.756.3333

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

www.HRProfessionalsMagazine.com

39

CROSS, GUNTER, WITHERSPOON & GALCHUS, P.C. U.S. News has named Cross, Gunter, Witherspoon & Galchus, P.C. (CGWG) a leading Labor and Employment law firm in the state of Arkansas for 2019. We are proud to have seven attorneys selected as Best Lawyers, including CGWG Director, J. Bruce Cross who was named “Lawyer of the Year” in Labor Law – Management. CGWG has been repeatedly recognized for their family friendly and work life balance initiatives. Respect for employees and an emphasis on work-life balance are hallmarks of their business using their experience to help clients meet their diversity goals and mandates. Preventive law strategies and exceptional educational programs are hallmarks of CGWG’s services.

J. BRUCE CROSS practices in the areas of labor and employment defense law. Mr. Cross served as Chairman of the National Legislative Committee of the Associated Builders and Contractors of America. Mr. Cross is a recipient of the 2017 Albert Nelson Marquis Lifetime Achievement Award and is one of the Who’s Who Legal’s Top 100 Labor and Employment Lawyers, the only one in Arkansas.

He is listed among the top lawyers in the nation

by Mid-South Super Lawyers, Chambers USA, and was named to the Mid-South Super Lawyers Top 50 list of attorneys in Arkansas. He serves as the Legislative Director and Board Member for the West Central Arkansas SHRM chapter. He is also a Fellow in the College of Labor and Employment Lawyers. Best Lawyers in America recently named Bruce Cross as 2019 Lawyer of the Year in the category of Labor Law – Management.

M . STEPHEN BINGHAM’S practice

includes products liability defense, commercial litigation, professional liability defense, insurance defense, transportation law, construction law and airport law. Steve, who is also a Certified Public Accountant, has an emphasis in business contract work. He focuses a great deal of his time in defending municipal and government entities. He is a past president of the Arkansas Association of Defense Counsel.

RICHARD A. “RICK” RODERICK practices in the areas of labor and employment defense law. He has extensive experience in labor relations, union negotiations, employment discrimination, unfair labor practices and wage and hour matters. He also advises management regarding HR systems, policies and procedures, and performs supervisory training. Rick is a highly sought speaker and regularly provides customized training programs designed specifically for employers and HR professionals. Rick has been recognized by Mid-South Super Lawyers as well as being named to the Best Lawyers in America and Best Lawyers’ 2018 Lawyer of the Year in the category of Labor Law – Management.

40

www.HRProfessionalsMagazine.com

CINDY KOLB’S practice areas include employment law, insurance defense, and insurance coverage. She regularly speaks on employment law and HR-related topics for SHRM-affiliated and other industry groups around the state. She is an active member of the Central Arkansas Human Resources Association (CAHRA) and was the VP of Special Programs for 2017/2018 and the 20172018 Chair of the CAHRA Managers Conference.

She co-chaired the Arkansas Bar Association’s 2018 Mid-Year Meeting and served as the Chair of the Labor and Employment Section of the Arkansas Bar Association in 2012-2013. In 2017, Soiree Magazine's readers selected Cindy as one of the "Best Lawyers in Little Rock".

CAROLYN WITHERSPOON practices in the areas of labor and employment defense, transportation and government law. She is a member of the prestigious Union Internationale des Avocats, an international society of legal professionals recognized before the United Nations; and also serves as an arbitrator for the Court of Arbitration for Sport. Ms. Witherspoon is listed among the top lawyers in the nation by MidSouth Super Lawyers, Chambers USA, and Best Lawyers in America, and was named to the Mid-South Super Lawyers Top 50 list of attorneys in Arkansas as well as the Top 50 Women-Mid-South. Additionally, Carolyn was named to the Arkansas 250 – a list of the most influential Arkansans. She is also a Fellow in the College of Labor and Employment Lawyers.

MISSY DUKE practices in the areas of labor and employment law, education law, and school district litigation. Ms. Duke was appointed by former Arkansas Governor Mike Beebe as Special Associate Justice of the Arkansas Supreme Court and as a member of the Arkansas Advisory Committee to the United States Commission on Civil Rights. The Arkansas Supreme Court appointed her to the Arkansas State Board of Law Examiners and the CLE Board. Ms. Duke is active in the community, currently serving on multiple boards in Little Rock. She was named an Arkansas Business 40 Under 40 in 2011 and is also listed in Mid-South Super Lawyers, Chambers USA and Best Lawyers in America.

AMBER BAGLEY practices in the areas of Health Care, Commercial/Corporate Law, Employee Benefits, Employment law, and Government Affairs. Amber has been named to the Best Lawyers in America; Mid-South Super Lawyers list of “Rising Stars”, Arkansas Business 40 Under 40 in 2013, and Soirée Magazine’s readers selected Amber as one of the “Best Lawyers in Little Rock”.

LITTLER Littler is the largest global employment and labor law practice, with more than 1,500 attorneys in 80 offices worldwide. Littler represents management in all aspects of employment and labor law and serves as a single-source solution provider to the global employer community. Consistently recognized in the industry as a leading and innovative law practice, Littler has been litigating, mediating and negotiating some of the most influential employment law cases and labor contracts on record for over 75 years. Littler Global is the collective trade name for an international legal practice, the practicing member entities of which are separate and distinct professional firms. For more information visit: www.littler.com.

Shareholder, KURT PETERSON has successfully defended his clients in litigation against virtually every type of employment discrimination claim. His practice is national in scope, representing companies across the country in state and federal courts. He has successfully argued at the federal and state appellate levels on numerous occasions, including the 3rd, 6th and 11th circuits of the U.S. Courts of Appeal.

ATLANTA Shareholder, GAVIN S. APPLEBY advises and represents employers in a broad range of employment law matters, from defending singleplaintiff and class action employment cases to offering advice on difficult employment issues and labor relations matters. Gavin serves as chair of the Corporate Audit Services Group and as chair of Littler’s diversity practices.

Shareholder, LESLIE A. DENT is an experienced trial lawyer who has successfully tried cases ranging from individual discrimination matters to complex wage and hour class actions. She represents employers in class and collective actions involving off-the-clock claims, challenges to exempt status and other wage-related claims, as well as Rule 23 class actions alleging discrimination claims.

L. TRAYWICK DUFFIE is office managing

shareholder in Littler’s Atlanta office. He represents corporate clients in a broad range of employment and labor law matters, including employment litigation, union organizing, wage and hour and Employee Retirement Income Security Act matters. He has successfully defended numerous class and collective matters and countered union organizing campaigns in more than 40 states.

42

www.HRProfessionalsMagazine.com

Shareholder, CAMERON PIERCE focuses his practice on labor relations and a wide range of employment-related issues. With respect to labor relations, he regularly represents employers in matters before the NLRB, as well as in labor arbitrations and collective bargaining.

LISA “LEE” A. SCHRETER is co-chair of the Wage and Hour Practice Group and former chairperson of Littler’s Board of Directors. She focuses on representing employers in complex class and collective actions involving overtime and other wagerelated claims and specializes in helping employers to develop forward-thinking compliance measures that reduce wage and hour disputes and other employment-related issues.

Shareholder, DANIEL E. TURNER counsels and represents employers in all aspects of litigation in employment law issues, including discrimination, harassment, retaliation, wage and hour, and leaves of absence. He has served as lead counsel in more than 50 class and collective actions throughout the country.

LEXINGTON Shareholder, LATOI D. MAYO advises, counsels and defends employers in regard to labor and employment matters. She has successfully managed and litigated single plaintiff discrimination and wage and hour claims as well as class and collective actions in both state and federal court. LaToi has also successfully handled investigations and charges on employer’s behalf before administrative agencies like the Department of Labor, EEOC, and NLRB and similar state agencies. LaToi has notable experience in enforcing and/ or advising clients on arbitration agreements, restrictive covenants and wage and hour compliance issues.

MEMPHIS Shareholder, JONATHAN E. KAPLAN has devoted his entire career to representing management clients exclusively in all areas of labor relations, employment law, and human resources management.

His practice spans litigation, training, and consulting, in which he has handled matters in more than 40 states and Canada. Jonathan practices extensively before the NLRB across the country, and also has been admitted specially to practice before the state courts in California, Florida, Illinois, Indiana, Kentucky, Michigan, New York, and Ohio.

Shareholder, STEVEN W. LIKENS represents management in labor and employment litigation. His experience includes wage and hour collective actions, wrongful termination, whistleblower and retaliation claims and unfair competition and misappropriation of trade secrets.

Shareholder, JOHN W. SIMMONS represents management clients in employment litigation, advises clients on employment law and labor relations matters and represents clients in administrative proceedings such as those before the NLRB and the EEOC.

AMBER ISOM-THOMPSON is a member of the Littler CaseSmart® team based in Tennessee. She is responsible for the drafting of early case evaluations (ECE). She identifies and reviews pertinent documents, interviews relevant witnesses, and drafts ECE reports. In keeping with each client’s litigation philosophy, she partners with the local Littler litigation team and assists in developing and executing strategies for effectively handling litigation.

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

Shareholder, PAUL E. PRATHER represents management exclusively in all areas of employment and labor relations, including state and federal employment litigation and in administrative proceedings before the NLRB, the EEOC and the DOL.

www.HRProfessionalsMagazine.com

43

Presents

Online SHRM-CP® | SHRM-SCP® Certification Exam Prep Class Online classes begin May 8 and will meet twice per week for 12 weeks on Monday and Wednesday evenings from 6:00 PM to 7:30 PM.

SHRM Learning System® Participant Materials

The total cost of the SHRM-CP® | SHRM-SCP® Online Certification Exam Prep Class is $995 plus shipping You may pay by PayPal, credit card or check.

For more information visit shrmcertification.org

Deadline to register is April 30 Contact cynthia@hrprosmagazine.com OR visit our website at www.hrprofessionalsmagazine.com

Diversity makes us stronger.

At Littler, diversity is not optional.

How can we advise you on employment issues unless our workforce reflects yours? Diverse points of view, diverse backgrounds and diverse values make us all stronger.

Littler Lexington | 333 West Vine Street, Suite 1720, Lexington, KY 40507 | 859.317.7970

44

www.HRProfessionalsMagazine.com

littler.com

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

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

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

www.HRProfessionalsMagazine.com

45

The First 90-Days: Wow ‘em Quickly!

By LEEANN BAILES FOSTER

W

The First 90-Days Program Tools The Success Strategy Tool.

Health Improvement Plan: Doing GREAT work takes a great deal of positive energy. You must be healthy in all aspects of your life to sustain this energy. Write out your ‘Health Improvement Plan’ with these 3 goals in mind:

hether you are starting a new leadership position with your current employer or with a new employer, the basics are the same. A firm foundation for your success must be built starting on Day One. All organizations need a “First 90-Days Program”, an On-Boarding Program, for new leaders. I highly recommend that you read The First 90 Days by Michael Watkins. It is from this this book I learned most of what I am sharing in this article.

1. Screenings and Medication Compliance

I am a sports nut. Being the youngest of five children of a Sports Writer, I developed a love for sports to gain the attention of my Dad. I have played and coached several sports. There are similarities between various sports; however, the one thing most evident to me in most sports is a firm foundation – strong legs and quick feet. I will never forget when my tennis coach told me that hitting the tennis ball begins with our feet.

What? I learned then that success begins with a firm foundation.

1. Podcasts

3. Magazines

2. Books

4. Conferences/Seminars

Without a firm foundation, many become a mere statistic of failure: + 40% of leadership hires fail within the first 18 months. + 23.5% fail to establish strategic priorities + 16.4% commit cultural gaffes and political suicide + 15.8% wait too long to make an impact (Source: Michael Kanazawa First 100 Days: Checklist and tips for getting off to a fast start)

The “Why?” for this article is to develop a program to aid in motivating and retaining employees by accelerating the transition due to a promotion, transfer, or being recently hired. Following are the information and tools for each of your leaders to become one of the successful 60%!

The very first Traction (as opposed to Action) Item in successfully On-Boarding into a new position is to create your Support Team. If you were climbing the highest peak in America, who would you want on your Rope Team? Who do you trust to take part in your journey towards success? This group of advisors is your Personal Board of Directors.

2. Proper Nutrition and Rest 3. Adequate Physical Exercise Life-Long Learning Plan: The next part of the Success Strategy Tool centers around staying relevant in today’s fast-pace environment. What is your Lifelong Learning Plan? List the following you plan to read, listen to or attend in 2019:

Pay It Forward: How are you going to support your community next year? The Pay It Forward Section of the Success Strategy Tool focuses on giving back to move forward. How are you going to invest your time and money to help others grow and improve?

What are you going to do to keep focused next year? List the ways to assist you in being self-disciplined. What are your most important Influence Networks? Determine which networking groups can help you learn more.

Just let me know if you would like a e-copy of the Success Strategy Tool. It is comprehensive. As a team is only as strong as its weakest player; you are only as strong as your weakest area. This tool will help you to be a wellrounded, resilient contributor.

The Scouting Report The Scouting Report is used to successfully transition you onto your new team. Pay close attention to the players. Take time to notice and name the following: Supporters: Your followers, backers, and advocates.

Your internal Support Team.

Opponents: Your adversaries. (And, there will always be at least one).

Convincables: Those on the fence, but you believe you can persuade.

Development (Accountability) Partner The Development Partner is a person with which you share a mutually beneficial relationship. This relationship is built on trust and a sharing of knowledge. Who will walk by your side during this transition period? It could be your brother or sister, a former co-worker and friend, a Career Coach, etc.

Meet and Greet

Customize your Board of Directors to fit your journey. Set 2 – 3 goals that you would like to accomplish with their guidance. Decide what type of ‘Directors’ you need. Then, create a plan to build your Board of Directors.

Now you are ready!

You are eager to succeed in your new position. Correct? Then, read on!

Following are the tools and knowledge to help you to do so.

46

www.HRProfessionalsMagazine.com

Set a time aside for a reception to meet your new team casually. This time should not be all about work. Make it a bump and go type of event. Get around to each person to introduce yourself, learn their name, position, and perhaps, as you are comfortable doing so, a little about him/her personally. If alcoholic drinks are served, do not indulge at this first meeting.

New Leader Assimilation Ask a Human Resources Representative or a peer to facilitate a New Leader Assimilation Meeting for you. Introduce yourself and the process; then, leave the room. The facilitator will ask your team these questions: 1. What do you already know about the new leader?

2. What would you like to know about him/her?

3. What are your expectations of the new leader?

4. What should he/she know about the team?

5. What does he/she need to know to be successful in this new role?

SWOT Analysis Take what you learn from the activities listed above and create a S.W.O.T. analysis. List the team’s strengths, weaknesses, opportunities, and threats. Develop a plan to address each of these.

Milestone Tracker

6. What significant issues need to be addressed immediately?

Keep score! Know quickly where you are on each of your initiatives.

The feedback should be recorded where all participants can see it. You will then rejoin the group to answer or address all recorded questions and statements. Doing this exercise will move you a great distance down the road towards a successful on-boarding.

Accomplishments Log

1-2-1 Interviews As soon as possible, set a one to one meeting with each of your direct reports. Ask some or all of the questions below: 1. What do you think is the #1 problem on this team and at our company?

2. Which Company value(s) do you like the most? Least?

3. Do you think our company is loyal to our employees? Who or why not?

4. What do you think are the long-term goals of our company?

5. Why do employees leave our team?

Our Company?

6. What are your favorite parts of our culture?

7. How could we make meetings more effective?

8. Are you over-worked, under-worked, or worked just the right number of hours?

9. As a kid, what did you want to be when you grew up?

10. Is there anything else you would like to share with me?

Who’s Who? Flash Cards Create a flash card for each co-worker you need to know. Flip through them several times per day. Have a family member or friend quiz you.

Track daily, weekly, monthly, etc. wins in one place. Choose the format most comfortable and convenient for you. Set a time each week to review and update the log. Create a folder to store your Accomplishment Log, as well as certificates, awards, and praise from others.

Success Journal Keeping a journal and writing down your thoughts and ideas is one of the most powerful tools any successful leader has. List great ideas, to-dos, wishes, desires, etc. Record items that must be remembered.

Communication to your New Leader Communication is key is all types of relationships. Leaders do not like surprises. By that I mean, be sure that your new supervisor hears from you what is working and not working.

Take time to submit the following reports to keep him/her informed.

30 – 60 – 90 Day Reports: For the First 90 Days only These reports should include the following: monthly goals set, goals accomplished, and the status of those not accomplished.

Quarterly Reports This report should include the milestones closed, accomplishments achieved, and the goals for the next quarter.

Annual Reports This report should include your accomplishments, stories, partnerships, financials,

acknowledgments and a call to action for the upcoming year.

First 90-Days Checklist WOW! This is a lot to do. Develop a First 90-Days Checklist to ensure nothing falls through the cracks.

Sustaining Success Throughout Your Career Yes!!! - - you have beat the odds. You have won. We all know it is hard enough to win a championship one time, and that the odds of repeating are much lower. To sustain your success, you must stay relevant in the eyes of your supervisor, organization and industry. Keep learning and growing. Again, be a life-long learner. Develop a ‘get better mindset’ as opposed to a ‘be good mindset’.

Make sure all spokes on your Life Wheel are in good condition: physical, occupational, social, emotional, intellectual, and spiritual.

Use mindfulness while at work.

Equally important for sustaining your success is supporting and aligning with your leadership and organization If a project, initiative, goal, etc. does not align with the organization’s goals, do not do it. If you are currently working on something not in alignment, STOP! Stay focused on the vision at all times. Work in alignment with the mission all day, every day!

Conclusion “Most people fail in life not because they aim too high and miss, but because they aim too low and hit.” – Les Brown. Stretch yourself and you will stay energized to successfully complete your career journey.

Contact LeeAnn at leeann@teamfosterhrstrategy.com to begin building a First 90-Day Program for your organization.

LeeAnn Bailes Foster Team Foster HR Strategy, LLC leeann@teamfosterhrstrategy.com www.teamfosterhrstrategy.com www.HRProfessionalsMagazine.com

47

with solving problems. This is where Dr. Adams’ concept of Question Thinking is so important. As the author states, “Question Thinking provides tools that can help us take charge of our thinking, our emotions, and our behavior not only in our jobs but in every area of our lives.”

By WILLIAM CARMICHAEL

Business fables have always held a bit of fascination for me. Yes, the story is fiction, as are the characters but its intent rings true. In other words, there is a take-a-way.

This certainly is the case for Change Your Questions, Change Your Life: 12 Powerful Tools for Leadership, Coaching, and Life (3rd Edition) by Marilee Adams, PhD. Here, the story revolves around Ben, a seasoned manager who prides himself on always knowing what to do. A selfproclaimed “answer man” and “go-to” guy.

Ben, however, is about to embark on a new journey of sorts when he accepts a position with a new company and quickly finds himself in the most unfamiliar position of no longer having all the answers. In addition, Ben doesn’t particularly care for the new people he must manage and they, in turn, do not particularly care for him. As it turns out, one of Ben’s greatest assets, that of being the answer man, of being able to judge issues and quickly decide what to do has suddenly turned into an enormous liability.

What in the world has just happened and what can he do about it? Without giving much more away about Ben, Change Your Questions, Change Your Life hit particularly close to home for me as it will for our readers. There was something uncomfortably familiar about it as the truth often is.

Question Everything!

Those acquainted with the concepts of critical thinking or even of Socratic questioning know how effective finding out the- who, what, where, when, why and how provides relevance to a difficult project. Yet, as effective as these concepts are in a business setting, they both are missing the emotional connection that must exist when faced 48

www.HRProfessionalsMagazine.com

Interestingly, Change Your Questions, Change Your Life, although not a paradigm shift, does nudge our traditional judgmental patterns out of the way and for good reason.

For example, our ability to question tends to become repetitive for the most part. After all, the questions that worked for us in the past should work in the future- right? The mindsets that got us here should be the ones we can always rely upon- agreed? The reality, as Dr. Adams carefully points out, is that those mindsets often take us down the wrong ‘judger’ path and asking the right questions at the right time can get us back on the right ‘learner’ path, which is where we really need to be.

Change Your Questions, Change Your Results Readers will find that beyond the story being told about Ben, our questions as well as our ability to question has enormous significance upon us and upon our surroundings.

As revealed in the book, “Either you have your questions, or your questions have you.” The emotional connection we have to our questions also plays into the path we need to go. Questions such as: “What just happened? What’s useful about this? What are my choices? Each of these has a distinct usefulness, nuance, and direction.

Dr. Adams offers 12 specific questions that when posed correctly, can have an immediately positive impact: 1. What do I want?

2. What assumptions am I making?

3. What am I responsible for?

4. How else can I think about this?

5. What is the other person thinking, feeling, and wanting?

Beyond just the story unfolding about the main character Ben, Change Your Questions, Change Your Life: 12 Powerful Tools for Leadership, Coaching, and Life is a skillfully crafted self-coaching guide. The best example of this I found was instead of reflecting on every question each time a problem is encountered, apply a grouping of specific questions together depending on the issue at hand.

Structure and Layout Organized into 12 short chapters, Change Your Questions, Change Your Life can be easily read over a weekend. It also contains helpful graphics and charts that reinforce areas where concepts being applied make practical sense. What readers will likely discover is that while Dr. Adams has designed this work as a linear read, many chapters stand on their own and this is due in part to the story being told. We simply understand and relate to what is happening.

The Table of Contents however, contains an unintended error. The 12 tools as referenced in the title are not indicated in the Table of Contents. A simple oversight by the publisher no doubt. But regardless, the 12 tools provide an excellent reference to the Question Thinking application each is intended for.

Who Will Benefit Most from This Book?

Senior Managers & Organizational Leaders, Senior HR Management About the authors: Marilee Adams, PhD, is president and CEO of the Inquiry Institute and the originator of the Question Thinking methodologies. She is an adjunct professor of leadership at American University’s School of Public Affairs, trains coaches all over the world, and presents the Question Thinking system in a wide variety of organizational, educational, health-care, and public settings.

6. What am I missing or avoiding?

7. What can I learn from this – person or situation, mistake or failure, success?

8. What questions should I ask myself and/or others?

9. How can I turn this situation into a win-win one?

10. What’s possible?

11. What are my choices?

12. What action steps make the most sense?

William Carmichael, Ed.D Professor | Strayer University william.carmichael@strayer.edu www.strayer.edu

Tennessee Chapter International Public Management Association for Human Resources

26th Annual TPMA Membership and Training Conference April 24th – 26th, 2019 Sheraton Memphis Downtown Memphis, Tennessee

Save the Date Thriving in Turbulent Times: The Secrets to Human Resources Success

www.HRProfessionalsMagazine.com

49

5 Ways to Secretly Teach Your Boss to Become More Emotionally Intelligent

what their greatest pressure points are and ask if there is anything you can do to help. Asking them what they would like more of and/or less of in the workplace is a great starting place.

Enlist Others You Work With to Demonstrate What You Would Like More of From Your Boss

BAD BOSSES COME IN ALL SHAPES AND SIZES. There are the ones that are downright bullies, not caring if they lose their temper, talk down to and hurt the feelings of those that report to them. Then there are the egotists that believe they are smarter than everyone else and have no need to listen to or take feedback from those they are supposed to serve. In between are the micromanagers; the ones that are unaware, unable to make decisions, or willing to take credit for your work and the work of others. The list is endless but the consequences are predictable; bad for morale of the organization, resulting in greater turnover, decreased engagement and loss of productivity. Unless we have been extremely fortunate, or had very limited work experience, chances are that we have had one of these bosses in our working lives.

The question is, "What do we do about it?" If we have compelling reasons to stick around and believe there is a possibility that we can help our boss make some needed changes, there are actions we can take that may help.

Talk to your colleagues and see if they have any insights or ideas on how to make the relationship between you or your boss better.

Avoid people who only want to complain and are not interested in solutions. Have they noticed times when your boss is in a better mood? Are there times they are doing or saying something that you see as positive? Set up scenarios to demonstrate the behavior that you would like to see when your boss is around.

For example, at staff meetings have people praise each other and show appreciation for the efforts they have made. Acknowledge your colleagues and give them credit for a job well done in front of your boss. If your boss lacks empathy, make a point of showing empathy to others in the organization who have suffered through illness, loss of loved ones, relationships and other areas.

Discuss books, articles on E.I. and suggest speakers for upcoming conferences or staff development. Talk about people who your boss looks up to in terms of their high emotional intelligence qualities.

Here are 5 things you can do to secretly help your boss become more emotionally intelligent:

Reward the Positive and Any Change Efforts That You Notice

By HARVEY DEUTSCHENDORF

Try Not to Take It Personally Unless he or she is a total jerk or psychopath, chances are your boss is not deliberately setting out to make your life miserable. You are just part of the circumstances that your boss feels they are in and part of what they see as the solution. If able, try to have empathy and imagine what pressures they may be facing from their superiors or other factors in their lives that may be making life difficult for them. Giving them the benefit of the doubt will help keep you from getting caught up in negative feelings and draining your energy that could be used more productively.

If you catch your boss doing something positive, something that you appreciate; make sure you let them know. Reinforce anything they do that you would like them to do more. If you see any changes towards the better, let your boss know that it was noticed and appreciated. Not everyone likes to be recognized and appreciated in the same way. Knowing as much as possible about your boss will help you determine what kind of appreciation will have the greatest impact.

Don’t Make Assumptions About Your Boss’s Motivation or Character Unless your boss has told you that he is aware of what he or she is doing and doesn’t care, don’t assume that they are aware. Their reality may be being tested and they're out of esteem. They may be under a great deal of pressure at work or be in a difficult family situation that is causing them to act out of character. Try to find out as much information as you can about their situation at work and outside of it. Is there anyone who knows them outside of work? Check out social media to see if you can find clues to their personal world. This does not mean stalking.

Find Out What They Care About, What Drives and Motivates Them People have the greatest motivation to change if they see a direct benefit to something they desire and are working towards achieving. What keeps them up at night or stresses them out the most? If you can find this out and offer to help, it will build rapport and a relationship. Your only hope of influencing your boss will be to get yourself in a place where they trust you and see value in what you are offering. Find out 50

www.HRProfessionalsMagazine.com

Harvey Deutschendorf is an emotional intelligence expert, internationally published author and speaker. To take the EI Quiz go to theotherkindofsmart.com. His book THE OTHER KIND OF SMART, Simple Ways to Boost Your Emotional Intelligence for Greater Personal Effectiveness and Success has been published in 4 languages.

Harvey writes for FAST COMPANY and has a monthly column with HRPROFESSIONALS MAGAZINE. You can follow him on Twitter @theeiguy.

EARN AN HR CERTIFICATION THAT MATTERS

HR is about applying what you know to drive business success at your organization and shape our changing world of work.

Prove you’ve got what it takes to play this influential role.

Earn your SHRM-CP or SHRM-SCP—the only comprehensive, behavioral competency-based HR certification.

Applications now being accepted!

SHRM-CP/SHRM-SCP Spring Exam Window:

MAY 1, 2019 - JULY 15, 2019

Apply online: shrmcertification.org/hrpros

Assessments

Credit Reports

Criminal Records Search

Driver Monitoring

Drug Screening

I-9 & E-Verify

Verifications

What’s missing from your background screening process?

Does your current background screening vendor do everything they can to help you find, attract, and retain high-quality employees? Is your current vendor accredited? Do they provide operational excellence? Do they conduct a second review of every criminal record hit? Do they offer advanced connectivity options? If any of these answers are no, talk to us! Data Facts offers a full suite of background screening and monitoring solutions that empowers HR managers to hire smarter, easier and faster. Data Facts is the piece of the puzzle that will make your background screening process complete.

est. 1989 www.datafacts.com