January 2021 Issue HR Professionals Magazine

Volume 11 : Issue 1

TM

www.HRProfessionalsMagazine.com

How to Eliminate Implicit Bias Now!

Super Lawyers in Labor and Employment Law SHRM Certification

at the Six Year Mark

Maslow and the

Evolution of HR

Dee Anna Employer Liability in the

Hays, Esq.

Director of Legislative Affairs

HR Tampa

COVID Era AI Technology

for HR

Service Oriented.

Client Focused.

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 is a firm tradition and remains our top priority. Our attorneys pledge to: • • • •

Understand your business and objectives Focus on and anticipate your needs Collaborate to develop creative business solutions Harness technology and innovation to better serve your interests • Communicate in a timely and effective manner • Provide quality representation with exceptional value

MEMPHIS OFFICE

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

www.ogletree.com

BIRMINGHAM OFFICE

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

2 0 21

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

Bringing Human Resources & Management Expertise to You

2020 pass rate for the SHRM-CP exam was

67%.

www.HRProfessionalsMagazine.com

Features 4 note from the editor

Talent Management

Cynthia Y. Thompson,

5 Profile: Dee Anna Hays, Esq., Director of Legislative Affairs HR Tampa

MBA, SHRM-SCP, SPHR

6 Save the Date for Our January Webinars

10 Measure Implicit Bias in Your Organization and Eliminate It Now!

Publisher

8 SHRM Certification at the Six Year Mark

11 ASI Implicit Bias Audit

9 SHRM 2021 Spring Testing Window 16 Dealing with Disruption in HR

12 Always Conduct Performance Reviews in Person – NOT!

20 COVID-19, Maslow’s Hierarchy of Needs and The Evolution of HR

18 HRO Outsourcing 101 24 The Future of Work Survey

28 Book Look - Competing in the Age of AI

29 Background Check Mistakes That Can Derail Your 2021 Hiring Success

Editor

The Thompson HR Firm, LLC Art Direction

Park Avenue Design

Contributing Writers Liz Alton William Carmichael Harvey Deutschendorf Tracy Duberman J. Eric Harrison John Hawkins Taylor Flake-Lawson LeeAnn Bailes Foster Jim Trujillo Gwendolyn J. Tucker Janie Warner Nancy A. Woolever

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. ©2021 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.

Employee Benefits 14 New Year – New Opportunities 21 Most Brokers Say They Have All the Answers 27 Thank You Healthcare Providers!

Employment Law

38 5 Reasons Highly Sensitive People are an Asset in the Workplace 39 Reduce Your Company’s Risk with Post-Hire Criminal Monitoring

23 A Labor of Love: Littler Lawyers Answer Your Most Burning Labor and Employment Questions February 11

Top Educational Programs for HR Professionals

26 Employer and Business Liability in the Age of the COVID-19 Pandemic

7 Online SHRM Certification Exam Prep Class April 2021

22 Job Applicants and Age Discrimination Claims

2021 Super Lawyers in Labor and Employment Law 31 Ogletree Deakins 34 Wimberly Lawson 35 Bass Berry Sims 36 Littler

40 WGU Tennessee HR Program Fully Aligned with SHRM Curriculum February Issue features Payroll and HR Technology Plus Updates on Employment Law and Employee Benefits And the Latest on HR Management and the Pandemic Deadline to reserve space January 15 www.HRProfessionalsMagazine.com

3

We

a note from the editor

finally made it to 2021!

It’s a new year full of new hope with a new vaccine for the coronavirus that we have battled during the last year. Although we may not all be able to get the vaccine right away, we are optimistic that anyone who wants it can get it by June. So we are looking forward to live SHRM conferences beginning in Q3! We are enjoying our Zoom meetings, our virtual conferences, and working from home. But nothing takes the place of personal social interaction. Although, we may we doing elbow bumps indefinitely.

With this new year comes a new administration in the White House. With the new administration comes a lot of new and revised labor and employment laws. I know you will have a lot of questions and need assistance as we move from a Republican administration to a Democrat administration. As always, we have you covered with our special section on Super Lawyers.

Here you will find the top attorneys who can help you with the transition. Please give them a call and take advantage of their many years of experience.

We are honored to have Dee Anna Hays, Shareholder with Ogletree Deakins Tampa office, on our cover this month. She is the Director of Legislative Affairs for HR Tampa. She is passionate about providing legal advice and counseling to management in difficult workplace situations and is honored to be a trusted advisor to many long-term clients. She has significant experience working with the healthcare, retail, construction, technology, and non-profit industries.

If one of your New Year’s resolutions includes becoming a certified HR professional in 2021, you will be happy to learn that we are offering our Online SHRM Certification Exam Prep Class for SHRM-CP | SHRM-SCP in April.

Be sure to see Page 8 for details. We are excited to include an update on the SHRM certification six-year mark. Nancy Woolever, Vice President of Certification Operations at SHRM, has provided an excellent progress report.

If you are looking for recertification credits for your SHRM certification and your HRCI certification, we’ve got you covered their also. See Page 6 for the details of our upcoming webinars on January 7, 14, 21, and 28. Special thanks to HRO Partners, Wimberly Lawson and to Data Facts. My webinar on January 28 will on “Preparing Your 2021 HR Strategic Plan.” Please mark your calendars and plan to join us for these exciting

Best wishes for a happy, healthy and prosperous 2021! cynthia@hrprosmagazine.com @cythomps

4

www.HRProfessionalsMagazine.com

Dee Anna on the cover

HAYS

Dee Anna Hays, Esq. Director of Legislative Affairs, HR Tampa Dee Anna graduated from Florida State University with a B.A., cum laude. She received her J.D. from Stetson University College of Law. She was named

Dee Anna Hays serves as the Director of Legislative Affairs for HR Tampa, a SHRM local chapter.

She enjoys keeping HR professionals on the cutting edge of evolving labor and employment laws that affect their workplaces. She regularly speaks at SHRM chapter seminars, and presented several webinars in 2020 to discuss legislative updates and best practices for handling novel COVID-19-related workplace issues. Dee Anna also launched HR Tampa’s first Legislative Affairs Committee.

Best Lawyers Ones to Watch – Labor and Employment Law-Management (2021) and a Florida Super Lawyers Rising Star (2015-present.)

Her day job is as a Shareholder at Ogletree Deakins, which is one of the largest labor and employment law firms representing management in all types of employment-related legal matters.

Dee Anna is Board Certified in labor and employment law by the Florida Bar. She has been representing employers across many industries in labor and employment law compliance and litigation for over 12 years.

One of the highlights of Dee Anna’s career has been advocating on behalf of HR professionals.

Dee Anna is legal co-counsel for the HR Florida State Council, the state affiliate for SHRM. She represents HR Tampa at HR Florida’s annual Legislative Conference, meeting with lawmakers to discuss employment-related legislation. On the federal level, Dee Anna is a member of SHRM’s Advocacy Team (A-Team) and participates in its annual Capitol Hill Advocacy Day alongside other members of HR Florida. She is watching to see what changes 2021 will bring for employers under the new presidential administration. 

www.HRProfessionalsMagazine.com

5

SAVE THE DATE for our

January Webinars!

January 7 at 2 PM CST

January 21 at 2 PM CST

How HR Can Mitigate Risk and Decrease Expense

Avoiding the Retaliation Trap

Earn 1 HRCI Business Credit (pending) and 1 SHRM PDC

Earn 1 HRCI Business Credit (pending) and 1 SHRM PDC

Speaker J. Austin Baker Sponsored by HRO-Partners

Speaker Fred Bissinger Sponsored by Wimberly Lawson

Austin Baker, Founder/CEO

Fred Bissinger, Regional Managing Member

January 14 at 2 PM CST

January 28 at 2 PM CST

Measure Implicit Bias in Your Organization and Eliminate it Now!

Preparing Your 2021 HR Strategic Plan

Earn 1 HRCI Business Credit (pending) and 1 SHRM PDC

Earn 1 HRCI Business Credit (pending) and 1 SHRM PDC

HRO-Partners

Speakers Dennis Koerner, PhD, and Gwendolyn J. Tucker, and Cindy Ogden Sponsored by ITN, LLC

Dennis Koerner, PhD Gwendolyn J. Tucker President and CEO Managing Partner

ITN, LLC RIX International

6

2 0 21

www.HRProfessionalsMagazine.com

Cindy Ogden President FUEL it

Wimberly Lawson Nashville Office

Speaker Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Sponsored by Data Facts

Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR The Thompson HR Firm and HR Professionals Magazine

Presents

Affordable Online SHRM-CP® | SHRM-SCP® Certification Exam Prep Class Online classes begin April 12, 2021 and will meet twice per week for 12 weeks on Monday and Wednesday evenings from 6:00 PM to 7:00 PM.

SHRM Learning System® Participant Materials

The total cost of the SHRM-CP® | SHRM-SCP® Online Certification Exam Prep Class is $995 (plus $25.00 shipping)

You may pay by PayPal, credit card or check.

2021 Spring Exam Window May 1 – July 15 For more information visit shrmcertification.org

Guarantee If you do not pass, you can retake the class at no additional charge if you meet these two requirements: – Attend 80% of the scheduled online classes – Score 80% on all practice quizzes

Deadline to register is April 5, 2021 Contact cynthia@hrprosmagazine.com OR visit our website at www.hrprofessionalsmagazine.com

About the instructor: Cynthia Y. Thompson is Principal and Founder of The Thompson HR Firm, LLC, a human resources consulting company in Memphis, TN. She is a senior human resources executive with more than twenty years of human resources experience concentrated in publicly traded companies. She is also the Publisher | Editor of HR Professionals Magazine, an HR trade publication distributed to HR professionals in Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina and Tennesse. The mission of the publication is to inform and educate HR professionals. Cynthia has an MBA and is certified as a Senior Professional in Human Resources by SHRM and HRCI. Cynthia is a faculty member at Christian Brothers University in Memphis teaching Human Resource Management. Cynthia also teaches online HR Certification Exam Prep Courses for HRCI and SHRM. She is a sought-after speaker on HR Strategic Leadership. www.HRProfessionalsMagazine.com

7

SHRM Certification at the Six Year Mark: Opportunities, Customer-centricity and Growth

By NANCY A. WOOLEVER

2020—what a year—SHRM Certification’s sixth! 2020 provided challenges and opportunities stemming from the global pandemic, but also presented a unique opportunity to become more customerfocused, to listen, respond, anticipate, and help our customers navigate what we have come to call The Weird Year. Hardly anyone saw 2020 coming, but successful enterprises across the globe have learned the true meaning of pivoting, agility, flexibility and crisis management. Now, what was a new concept years ago—competency-based certification— clearly resonates with HR professionals. This weird year has taught us that to best serve the approximately 80% of HR professionals who seek to become certified and turn to SHRM to do so, we must simultaneously be both proactive and responsive. SHRM-CP and SHRM-SCP-certified HR professionals have told us the SHRM certifications are the certification that is most relevant to the work they do each day. To remain so, be successful and grow the business, it is critical to understand the imperatives and opportunities that will keep SHRM certifications relevant, support an HR professional’s career journey, and embrace how to accomplish this during a time when most things cannot be done in person for the safety’s sake.

Leading the Charge SHRM takes a “go-big-or-go-home” approach, and 2020 has been no different. By listening to customers, SHRM shifted its thinking to embrace testing from home and successfully launch it. We have leveraged one simple practice to meet customer needs: Less talking begets more listening. Now more than ever, it is important to listen to our customers and make the best decisions for the SHRM Certification program based on customer feedback.

The most significant outcome was re-engineering SHRM Certification to offer live, remote proctoring in addition to in-person testing. HR pros did not want their career derailed by the pandemic. They wanted testing options to pursue certification in 2020 as planned—from the safety and security of their own home. This conversion happened quickly and was not challenge-free. We sought and received actionable feedback from customers to improve three things: systems, communications, processes. We also shifted and extended the testing window to support these improvements. This was a huge win in terms of the Voice of the Customer, with the options added being imperative to many.

Driving Results This snapshot shows how SHRM leveraged the Voice of the Customer to grow SHRM certification to not-before-achieved heights in 2020.

• In the Spring testing window, 16,000+ eligible applicants scheduled appointments; in June, 90% tested from home. By the close of the window, the percentage was still high, nearly 65% even though many testing centers had re-opened.

• For the Winter testing window, there are 18,000+ exam eligibilities scheduled with 55% testing from home—and that may increase as jurisdictions re-implement COVID-19-related restrictions.

• The SHRM education team migrated 100% of certification preparation programs to virtual learning, growing the cert prep business in lockstep with the year-over-year growth in SHRM certification applicants.

8

www.HRProfessionalsMagazine.com

• 75% of SHRM-certified HR pros renewed their SHRM-CP and SHRM-SCP credentials through the recertification process—the highest renewal rate in six years. Many leveraged their time in isolation to complete recertification requirements then renew.

• SHRM-certified HR pros actively participated in many research projects to move the work of the profession forward including COVID-related, social justice and equity-and-inclusion research efforts. Remaining involved and contributing to SHRM’s mission was important to SHRM-certified customers; their involvement influenced and affected SHRM’s ability to develop a wider variety of learning options to address top-of-mind issues for HR professionals and implement workplace interventions to build better workplaces for a better world. Complimentary programs that focused on managing and responding as an organization to COVID, and on diversity, equity and inclusion, allowed certificants to earn all or most credits toward recertification.

• Customer feedback helped Prometric make the remotetesting experience better and resulted in a new virtual testing platform that streamlined testing, made process improvements, and increased customer satisfaction to over 80%. Nine out of ten SHRM certificants also report they plan to recommend SHRM certification to colleagues.

The Rest of the Story All this was accomplished while maintaining solid pass rates, with no difference evident between the pass rates of testing in a test center or at home. The pass rate for the SHRM-CP was 67%; the pass rate for the SHRM-SCP was 54%. This shows both stability and consistency over time—important measures for SHRM, its certificants and its accrediting body. Customers share their stories on social media and engage others to talk about moving one’s career forward by earning SHRM certification.

Still want to hear more? The preferred provider network grew to over 3,100 organizations that comprise the largest educational network dedicated to HR professional development. Finally, there are two things that have not changed. They are the icing on the celebratory cake of SHRM Certification’s six-year story. They are also clear indicators that SHRM Certification is here to stay and continuing to grow. Supervisors of SHRM credential holders report increased operational efficiency and coordination among their teams, and best of all, SHRM credential holders report higher pay and promotion potential than their uncertified colleagues.

SHRM is excited to see what the future holds! If you are considering HR certification and like what you’ve read here, please join the SHRM family in 2021 by earning your SHRM-CP or SHRM-SCP.

Nancy A. Woolever, MAIS, SHRM-SCP

Vice President, Certification Operations, SHRM nancy.woolever@shrm.org www.shrm.org

JOIN OVER 100K HR PROFESSIONALS WHO HAVE BECOME SHRM-CERTIFIED. “SHRM certification really made me more marketable as an HR professional.”

—Amelia Gale, SHRM-CP

“This certification is a statement of my knowledge and commitment to all levels of HR.” —Latasha White, SHRM-SCP

APPLICATION WINDOW OPENS: Apply early to SAVE $75 on exam fees with early-bird rates.

NEW! Learn how you can TEST FROM HOME.

JANUARY 4, 2021 SPRING TESTING WINDOW: MAY 1 – JULY 15, 2021

APPLY TODAY: SHRMCERTIFICATION.ORG/HRPROS 20-2282

Measure Implicit Bias in Your Organization and Eliminate It Now!

By GWENDOLYN J. TUCKER

As an HR leader, you are faced with a daunting task… to hold your organization to the highest standards in a full spectrum of focus areas, including ethics, workplace harassment prevention, diversity, inclusion, and equity. When these high standards form the foundation of your organization’s values, you’re likely to see diverse perspectives, increased innovation, better problemsolving, reduced turnover, and improved performance.

There is one underlying challenge that impacts all of these focus areas – bias. Bias is a prejudice in favor of or against one thing, person, or group, compared with another, usually in a way that is considered to be unfair.

There are two types of bias – conscious and unconscious. Conscious biases are explicit, meaning that we are aware of our feelings and attitudes and we behave with intent. Our unconscious biases are a different story. These are social stereotypes about certain groups of people that we form outside of our conscious awareness. We all have these unconscious beliefs about various social and identity groups, and we all tend to organize our social worlds by categorizing people.

That’s how unconscious biases are formed and solidify.

Unconscious bias can affect any organization or workplace. For example, processes that have been defined for a long period of time can introduce unintentional discrimination, like only interviewing candidates that are similar to current employees rather than recruiting for people with different dimensions of diversity; that is, focusing on the person rather than the qualifications. Unconscious bias can also have a significant impact on employment opportunities including recruiting, promotions, project/team selection, and more.

The effects of unconscious bias may seem small at first, usually presenting in the form of miscommunication, unresolved conflict, and grievances. But without intervention, these effects can quickly grow into lackluster performance, increased turnover, and possibly litigation.

While there is no silver bullet to completely rid your organization of unconscious bias, there are effective actions you can take to help you detect, correct, and prevent it. As a trusted advisor in matters dealing with diversity, inclusion, and equity, we partner with leading assessment experts, the Assessment Standards Institute, to determine where and what type of bias may exist in your organization and then implement a successful solution. Here’s how the process works.

1. Define your mission and objectives.

It is vital to define your strategic goals and objectives when it comes to addressing the effects of unconscious bias. Bias comes in many forms and dimensions within any organization. Do you already have an idea of where bias may exist? Does your workforce and environment need a drastic change and are your employees open to discovering new ideas?

10

www.HRProfessionalsMagazine.com

2. Conduct an ASI Implicit Bias Audit.™ You cannot correct what you do not measure.

The Implicit Bias Audit provides insight into which bias types are most prevalent in the organization at a granular level. The most common bias types measured are age, gender, race, ethnicity, and disability but each audit is customized to your needs and organization’s demographic makeup and structure. Because it is anonymous, the ASI Implicit Bias Inventory generates insights into employee perceptions regarding the types and levels of bias within the organization.

“You cannot correct what you do not measure.”

3. Formulate a strategic plan.

By letting the data show you the way, our team of diversity, inclusion, and equity practitioners will help you formulate a plan and provide you with the right tools and processes to achieve success. That plan could include anything from process reengineering, for example, to ensure you are hiring based on qualifications, or facilitated workshops, eLearning, and virtual simulations that places learners in realistic situations to use the tools and techniques they have learned.

We recognize that every organization is unique, and the strategic plan is developed to align with your specific mission and objectives.

4. Implement the solution.

Coordinated with your internal team to ensure program longevity and success, the strategic plan is implemented. The key here is to coordinate with the leadership team to communicate support and direction from the top. We all know that a well-executed plan starts with a strong commitment from the organization’s leaders. We help you craft the right internal communication strategies incorporating change management best practices that promote an openness to exploring new ideas.

Don’t let unintentional discrimination and unconscious bias prevent your organization from reaching its potential. Your organization’s productivity and profitability are locked up within your people. At RIX International, we have the key. Start your journey today. We would love to be your guides. If you’re ready, so are we.

To download the free eBook, click HERE. (https://survey.zohopublic.com/zs/gvRcUE).

5. Monitor your success.

Based on the mission and objectives you established, watch the organizational improvements evolve through the solution implementation and beyond. Post-implementation inventories can also be used to target other types of bias that may exist in the organization. At the end of this process, you will be reaping the benefits of holding your organization to the highest standards of diversity, inclusion, and equity.

Organizations can reach their greatest levels of success when they find the courage to acknowledge, own, and take action to address unconscious biases. We are here to help you start this journey of transformation today.

ABOUT THE AUTHOR:

Gwendolyn J. Tucker

linkedin.com/in/gwendolynjtucker

“Trace the effects of unconscious bias to its root cause. Let data show you the way.”

Gwendolyn J. Tucker is a trusted advisor in matters related to Diversity, Inclusion and Equity. For more than 25 years, she has been actively involved in helping organizations develop and successfully implement diversity initiatives at the organizational, divisional and functional levels. She created the Diversity @ Work Series™ to drive transformational change within people and organizations.

www.HRProfessionalsMagazine.com

11

ALWAYS Conduct Performance Reviews in Person: NOT!

By LEEANN BAILES FOSTER

If you have been around prior to 2020, you know the drill: find a private, comfortable, and safe place to conduct Performance Review Interviews.

Never would we consider holding a Performance Review over the phone or via the internet. NEVER! How very impersonal. Show the employee he is worth your time and effort to meet face-to-face.

Now - - fast forward to 2021! As you well know, over 46% of Americans will be working remotely due to the COVID-19 pandemic. Well then, you might think, I will just surpass all Performance Review Interviews until we are back in the office, plant, classroom, etc.

Wrong again!

Dear Readers, performance feedback to our employees is more important than ever in 2021. Each has been shoved out of the comfort zone. As our valued employees are relearning how to work in this pandemic environment, our feedback is even more integral to their success. And we need their feedback, too.

A fabulous organization Team Foster Strategy LLC works closely with is called Relations Research LLC. Kimberly Evans, CEO, is extremely knowledgeable in providing breakthrough innovation for better outcomes and fewer risks. Danny McCall, Founder, wrote a book called Work is a We Thing. In the book Danny explains through a storytelling style how to ensure that the organization knows what the employee needs AND that the employee knows what the organization needs from the employee to reach or surpass goals. How will we ever figure this out if we do not conduct our Performance Review Interviews?

Communication Prior to the Performance Review Meeting First, acknowledge that both the organization and its employees have had to undergo significant challenges this year. “During COVID-19 restrictions, compassionate leadership should be a priority. As a manager, you need to adapt and tie the employee with well-being,” says the November 2020 Creately Blog.

Below are items to consider as you prepare for 2021 Performance Reviews: • Process: Explain in writing how the 2021 review will be conducted. Lay out the steps, how the employee needs to prepare, whether it will be done through a video call and on what platform, etc.

• Participants: State who will be present during the review • Date and time: Send a Meeting Request at least a week in advance to allow adequate time for preparation.

• Agenda: Attach the agenda and the performance review tool you will be using.

Conducting the Remote Review Connect via video

What Should Managers do about COVID-19?

Be Compassionate, Encouraging, and Understanding!

Video calls are the next best thing to being in the same room with an employee. Try your best to deliver the review via a video call.

Being evaluated induces a level of stress amongst employees. Most supervisors and employees prefer to avoid these conversations. As you know, remote working has created a sense of isolation and loneliness. Social time at work is missed. Remote Performance reviews might add to the stress.

Have a conversation guide in front of you.

Stay agile. The process you choose to follow in January may be totally different in April due to what you learn along the way. Keep in mind such problems as physical distance, technology hiccups, communication difficulties, and other factors that make remote Performance reviews more difficult for many managers. Change is GOOD! You must adapt.

ASK! – Set aside time for the employee to discuss any questions or concerns they have.

12

www.HRProfessionalsMagazine.com

Use the Performance Review Form as our outline. Be structured and focused; while you should have some flexibility, it’s important that you get through all the review in the set time without seeming rushed.

Setting clear expectations can help you and your team stay on task throughout the review, even in a virtual setting.

Use learning tools to help the employee prepare the career ahead Following are 4 tools you will want to integrate into your pre-Performance Review process:

2. SMART goals

Help employees focus on their future by creating a Career Aspiration Plan. Assist them in determining their current state and desired state. The gap between the two is the Career Aspiration Plan. Fill the gap with Traction Items to move to desired state.

In preparation for the new evaluation year, use the Team Foster Strategy SMART goals tool to set goals. We all need targets. These goals should align with departmental and company goals.

What are Traction items?

3. Create a Career Aspirations Plan

Have you ever played Chutes and Ladders?

Oh yeah – it’s a great game when you land on a space with a ladder on it and you get to skip ahead spaces. But there are chutes, also, which slide you back spaces. Our employees could feel like 2020 has been a big, long chute to their career.

☹

1. Personal SWOT.

This is a thought-provoking tool.

Send it and the other tools to the employee prior to the review meeting to allow for time to self-examine.

Each SMART goal should have at least 2 – 3 traction items attached to it. At Team Foster Strategy LLC, we use the term “traction” instead of “action”. Have you ever been stuck in the snow? Your tires can experience a lot of action but get no traction. Think of tasks that once they are completed, you will make traction towards accomplishing your goal.

Now it is time to begin scheduling, writing, and conducting the 2021 Performance Reviews. They need your guidance!

Also, remember to recognize and show appreciation for the people who are working hard and are engaged. This time next year all of us will be shouting, “We won in 2021!”

LeeAnn B. Foster | Head Coach Leadership & HR Consultant www.teamfosterhrstrategy.com

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

TEAM FOSTER HR STRATEGY provides comprehensive human resources consulting services for small to mid-size businesses.

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

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

WWW.TEAMFOSTERHRSTRATEGY.COM www.HRProfessionalsMagazine.com

13

New Year –

New Opportunities

By JIM TRUJILLO

*Lets out a long sigh of relief.* Well, that was crazy.

What’s even more interesting is how the numbers differ between the generations. According to the study, the percentage of individuals who believe their lives will be significantly changed breaks down by the following age groups:

January brings an abundance of possibilities – a new year means New Year's resolutions, setting goals, and evaluating the potential of the months ahead. January also brings Financial Wellness Month.

It’s a time to reassess and rejuvenate our relationship with money, and as a financial advisor, I can’t think of any way better to kick off a new calendar year.

• 57% of those age 18-29

But I would be remiss to not acknowledge the last 12 months and the effect it has had on all of us. What many of us may forget is that COVID-19 wasn’t just a global health crisis – it was an economic, societal, and cultural crisis as well. From social isolation, to work reduction or job loss; from missing out on major life events like graduations or weddings, to the horrifying worry of contracting, or even worse, dying from COVID-19 – this pandemic caused layers and layers of added stress to everyday life. One underlying theme throughout it all? Financial stress.

We know that in the coming years, Millennials and Gen-Z are positioned to make up the majority of the American workforce. Considering this new research, companies will need to adapt to meet the current and future needs of their employees – but how?

After a global pandemic, political discourse, and the overwhelming disarray which was 2020, I think we can all take a moment to be grateful that last year is finally over.

First things first, Americans are stressed out. In recent years, the National Center for Health Statistics has recognized that about 1 in 10 adults report feeling anxiety or depression. This year, that 1 in 10 rose to 35% due to the impact of the pandemic.

With these stressors, we’ve had to change and adapt to our way of life, especially in the workplace. Many businesses have changed their services, offering more online options and less person-toperson contact. Other companies are offering more flexible work arrangements with work from home set ups. These work adaptations may seem like they are in place just to flatten the curve, but employers may want to take a second look before returning operations back to normal.

The reality is that many believe change is here to stay. In fact, according to the Pew Research Center, 51% of the American population believes that their lives will remain significantly changed even after the pandemic is over. That means that over half of the United States presumes that we will not be going back to the way things were.

14

www.HRProfessionalsMagazine.com

• 51% of those age 30-49 • 50% of those aged 50 to 64 • 47% of those 65 and older

At the beginning of the crisis, my company’s president introduced us to the idea of Post Traumatic Growth (PTG), a theory that determines individuals have the inclination to grow after experiencing trauma. According to Richard Tedeschi, PhD, people who experience Post Traumatic Growth develop new understandings of themselves, the world they live in, how to relate to other people, the kind of future they might have and a better understanding of how to live life. His findings identify five specific areas in which people grow: appreciation of life, relationships with others, new possibilities in life, personal strength, and spiritual change.

According to the Journal of Affective Disorders, approximately 50% of people who have endured trauma will experience Post Traumatic Growth. With this data, we can assume that around 50% of employees will seek opportunities to grow after living through the effects of the pandemic.

One major way that companies can support their employees’ growth is through company sponsored benefits. Organizations looking to attract and retain top talent know that employee benefits and perks are an essential element for their workforce.

Although budgets have been set for 2021, there are cost effective ways to boost your employees’ quality of life, and that can align with the idea of Post Traumatic Growth.

• APPRECIATION OF LIFE

• FINANCIAL WELLNESS

We know that employees have lives outside of work, so why not provide them perks that help promote a balanced lifestyle.

This can be anything from flexible work schedules, floating holidays such as birthdays, remote work options, job sharing, to onsite services like childcare, fitness centers or health care clinics. Anything that can support a healthy work-life balance can be beneficial.

Financial Wellness is something in which most Americans could use a helping hand, and the pandemic undeniably highlighted it. According to Bankrate only 4 in 10 Americans would be able to cover a $1000 expense. With the financial stressors that arose from the pandemic, this stat may be even worse. A financial coach can help your employees with emergency savings, preparing for retirement or even helping them through a transition.

• RELATIONSHIPS WITH OTHERS Humans are innately social creatures, and we thrive when we are able to spend time with others. As we begin to lighten some of the social distancing protocols, consider options that encourage relationship building. Some ideas may be hosting a game night or food trucks, discount tickets to local parks or cultural attractions, even designated social rooms for employees to kick back and relax.

These are just some of the hundreds of potential employee perks you can offer your workforce. The most important thing to remember is that your employees are people, people that want to move past this last year and look forward into the future.

2021 is here, and after a year with unbelievable hardships, we are finally able to hit the reset button for ourselves and our colleagues. Cheers to a new year of possibilities!

• PERSONAL STRENGTH & NEW POSSIBILITIES IN LIFE January is notoriously the time where everyone sets personal and professional goals, so why not help your employees out along the way? For their wellbeing, host a mental health or mindfulness workshop or provide discounted gym memberships. For their professional life, consider discounts on any professional development or subsidies for higher education or designations that align with their career path.

Jim Trujillo, CFP® CCFS® PPC®

Financial Advisor JimTrujillo@argi.net www.ARGI.net

www.HRProfessionalsMagazine.com

15

Dealing with Disruption in HR:

4 Lessons from Among Us

By LIZ ALTON

Disruption in HR is today's reality. The HR office isn't a spaceship demanding teamwork for survival, but the popular video game Among Us offers collaboration tips that can help HR teams thrive during times of disruption.

If you have school aged kids, nieces, nephews or grandchildren, chances are they're playing Among Us. There are lessons to be learned beyond pure entertainment, so dig in and learn how their game is YOUR game as well.

In September 2020 alone, an estimated 100 million users downloaded the game Among Us from the Android store, according to PC Gamer, and The New York Times notes that videos with the hashtag #AmongUs have received more than 13 billion views on TikTok. The skyrocketing popularity of the game is at least partly due to remote work and virtual school making digital interaction a vital social and learning outlet. The ways that we cope, connect and communicate during times of disruption are in the spotlight.

Among Us is unique in the gaming world, and it offers insights that can help your team thrive during disruptions. It fosters communication, collaboration and teamwork, and it includes lessons that translate well to engaging online interaction in the workplace.

If you're looking for fresh inspiration to get the most out of your workforce, here are four takeaways from this sci-fi mystery to consider.

1. Develop resilience for disruption in HR and business A game of Among Us opens with between four and 10 players aboard a spaceship returning home from a mission. The team must work together on a handful of tasks, such as keeping engines running during the voyage. Each team member is designated as either a crew member or an impostor, and the goal is to identify the impostors and vote them off the ship.

The game creates a context where "players need to read personalities and determine if they're being lied to in order to win," as The New York Times notes. Reading people is an important part of navigating complex situations during periods of disruption, and it is essential to developing the resiliency needed to motivate, support and manage teams through such hard times.

Working under pressure, getting to know your colleagues and adapting to changing scenarios are all necessary to win a game of Among Us, and they are also integral to the success of effective HR exercises. In today's landscape, the military term VUCA (Volatility, Uncertainty, Complexity and Ambiguity) is a fitting descriptor for what many teams are dealing with.

"Resourcefulness and innovation are common in the Armed Forces," says Harris Morris, Senior Director for Veteran Initiatives at ADP. "Service members are often asked to accomplish amazing things in restrictive environments, to make do with what they have and to be creative in getting the job done."

Due to shifts brought on by the pandemic, including sudden increases in remote work, today's environment calls for a high degree of flexibility, resiliency and strategic thinking.

By playing through different scenarios in the game, players learn to identify patterns, practice implementing new approaches and improve performance over time. Are you providing your team with opportunities for scenario planning and cross-training? Ensuring that flexibility and adaptation are highlighted in your organization's HR exercises can improve the resiliency of your team and help them navigate situations that require careful communication and thoughtful decision making.

16

www.HRProfessionalsMagazine.com

2. Focus on concise communication As players run around the ship conducting repairs and other tasks, they are unable to communicate with each other. Later in the game, there is a limited window where individuals can share what they know with others to identify the impostors. Among Us is a great training ground to explore the need for clear, targeted and concise communication that gets to the essential facts. Much like players of the game, HR representatives have an incentive to avoid long-winded, irrelevant stories and get their crewmates quickly back on task.

"When it's time to deliver an effective communication strategy, don't stray from the big picture," explains Mary Schafer, Vice President, Change Management and Communications, ADP Strategic Advisory Services.

"Concise, consistent and creative messaging is the key to unlocking (and grabbing) your audience's attention as well as getting the awareness and adoption needed to support your initiatives."

Improving communication is an ongoing challenge, as professionals in all lines of work are always aiming to write better emails and hold fewer, more efficient meetings. What steps can you take to help improve your team's communication skills? Implementing shorter meeting frameworks with targeted goals can help cultivate focus, and coaching employees to prioritize streamlined presentation of the most important information can help keep virtual meetings on task.

By promoting focused and concise communication skills across your organization, you can help your entire workforce develop the soft skills needed to improve their teamwork and convey business-critical information in a timely fashion.

3. Add new dimensions to your digital experience Due to the sharp increase in remote work, teams are finding ways to socialize and establish strong connections from a distance. Interacting via Zoom can start to feel static, so HR leaders and business managers should explore new ways to foster collaboration and team building. Among Us offers some interesting strategies to consider for creating hands-on, engaging digital interactions.

For instance, the power of real-time collaboration is critical to mission success. To that end, emerging platforms such as virtual whiteboards and mind-mapping software can help teams work together on documents, idea generation and task completion. A business model where associates must complete their work independently and then come together to discuss it in meetings could be enhanced by adopting a more cooperative approach to online work. Doing so will likely improve the digital work experience, as well as the quality and quantity of output.

Another point Among Us highlights is that focused collaboration can help individuals better understand their teammates. If HR and business leaders can the take time to understand their people and the challenges they face, they will be better positioned to motivate greater performance across the team and accomplish the task at hand.

4. Up your game with community and content One of the factors driving the continued popularity of Among Us is its strong sense of community.

Among Us videos are shared on platforms like YouTube, TikTok and Steam, while a plethora of memes helps to keep it in the public consciousness. There are always ways to build enthusiasm and tap into a sense of belonging and group identity within your community. HR leaders should provide community building opportunities and content to help forge a stronger sense of connection, which can be especially important in times of disruption in HR. Are you using community and content to maximum effect? While building internal culture might not generate the same unfettered enthusiasm as a video game, HR can organize Q&As with organization

executives, lunch and learns, or themed socializing events to help colleagues feel like they are part of an inclusive and engaged community.

Reinforcing the importance of employee engagement, Bob Lockett, ADP's Chief Diversity and Talent Officer, says, "In my experience, organizations that don't pay attention to engagement typically cannot sustain high levels of performance. Successful organizations understand at a fundamental level that if you take care of your associates, they will take care of your clients, and your clients will reward you with continued business."

Although it may seem unlikely that a video game could improve HR leadership skills, there's a lot to learn from Among Us. Consider downloading the game and firing up a session.

It may inspire a new take on team building that helps you reimagine the digital employee experience at your organization.

Liz Alton

www.HRProfessionalsMagazine.com

17

Whether you have an in-house HR team that’s wrestling with an increased workload, or you own a small business that doesn’t yet have a formal HR function, outsourcing introduces a high degree of flexibility for your organization. Some of the key benefits of outsourcing include: • Improved Scalability – As your business demands evolve, you may need access to HR resources on an episodic basis.

Common scenarios include benefits administration support during open enrollment, recruiting and onboarding services during periods of high growth, periodic salary surveys to ensure you’re paying market competitive rates, and other similar scenarios. Such activities might overload your existing team or require expertise you don’t have in-house but bringing on full-time employees to meet these needs would be impractical.

Outsourcing provides the support you need “on demand.”

• Decreased costs – As with many outsourced functions, leveraging an HRO to support your personnel needs can yield significant cost savings . . . both today and tomorrow. There’s the immediate return of providing valuable services to your business without incurring the time and expense typically associated with recruiting, hiring, training, and managing a new employee.

However, there are also longer-term cost improvements that an HRO relationship will bring to the table. Avoiding fines and penalties due to non-compliance, eliminating reputational risk to your brand associated with violating policies, improved employee retention by helping workers to better understand benefits options and the total rewards they’re receiving, and dozens of other examples . . . they all represent long-term impacts of finding and retaining an HRO partner that acts as a true extension of your team.

18

www.HRProfessionalsMagazine.com

• Standardized processes – One of the most common HR challenges growing organizations face is driving “people processes” standardization across the business . . . particularly if your workforce is spread across multiple locations.

Ensuring different managers are treating employees in a consistent fashion, providing a central resource for all employees – manager and worker alike – can access content that addresses the lion’s share of operational considerations and policies, even delivering access to a standard set of forms and work flows, all help to improve the overall employee experience. Starting this from scratch is timeconsuming and typically involves some level of trial and error but working with an HRO organization can accelerate the entire process.

• Reduced risk – For most employers, compliance has become an incredibly challenging issue. This is due largely to the fact that, from an HR perspective, there are multiple layers of regulations and policies to navigate. Take employee absence and leave, for example. There are federal laws impacting all employers operating within the United States, most notably the Family and Medical Leave Act (FMLA). However, there’s also a constellation of state-specific absence and leave policies – 300+ and counting – that offer provisions not covered by FMLA or are more generous than what FMLA provides. Further, there are now some cities that are creating policies for businesses within their borders. This is just one example of the complexities that come into play. HRO organizations, however, are intimately aware of the policies and practices impacting the communities they serve and can help to ensure you’re addressing regulatory issues in a consistent, focused, and respectable fashion.

• D iversified skills – Given the turbulent nature of 2020, I think we’re all actively aware of the rapid changes that could impact our business. During the height of the pandemic, for example, HRO Partners began fielding questions about employee engagement, change management, and other similar services. When such circumstances arise, you need access to individuals who are skilled in addressing these issues, have access to additional resources, and can ultimately drive the fastest path to resolution.

About us: At HRO Partners, we’ve been serving the small – and mid-sized business community since our inception and we continue to deliver new products and services, each aimed at enhancing your value to the clients and employees they support. With more than 150 businesses, serving over 50,000 employees, and nearly $300 million in enrollment savings to-date, our experience and our track record is second to none. And now, we deliver access to an always available, constantly updated, online platform designed to provide expert advice “on demand.”

We call it “HRO Now,” but you’ll call it the best investment you’ll make in 2021.

Call us today at 866.822.0123 or visit us online at www.hro-partners.com. www.HRProfessionalsMagazine.com

19

COVID-19,

Maslow’s Hierarchy of Needs and The Evolution of Human Resources

Looking Forward

in 2021

BY JANIE WARNER

When you read the title of this article, you may have scratched your head and thought, what? But, wait – it will all make sense by the end!

There’s no need to discuss the absolute chaos of 2020 – punctuated by a global pandemic. In the HR world, we learned so many lessons – and had to change strategies quickly without our usual luxury of research, analysis, proposal and approvals. We had to move – fast. Foremost in our minds was the safety, health and security of our employees. Definitely a gargantuan task. In every organization, in every industry, the new “C” word took center stage. And for the most part, we survived, thrived and succeeded.

Our number one lesson? We couldn’t expect our employees to engage with our companies and with their jobs until we were able to meet the basic human need of safety.

For the behavioral nerds like me, we realized that Maslow was right. His “hierarchy of needs” theory was proven out in workplaces and the personal lives of almost every person on the planet – that until we have our basic needs met, we cannot advance further to the goal of actualization.

Our takeaway was this: Human Resources can no longer just be considered the “people” side of our businesses. We have to be obsessed with applying the principles of risk management to all our policies, processes and procedures.

Our employees need a focus on safety and security (i.e. risk management) in order to move up the pyramid.

Let’s consider the other layers as well. Physiological needs, of course, must be met first. Applying our HR principles to this, it involves making sure employees are paid properly, that they have appropriate breaks to recharge (both daily and through time away from work). Blurring the line between physiological and safety/security is the benefit offerings. Are they offered in an affordable way so that employees can go to the doctor when needed? Insurance benefits provide that shifting of personal risk due to life and health concerns. Physiological needs are often met through a thoughtful focus on that safety net.

What about “love and belonging?” In our personal lives, the need is met through our family and other interpersonal relationships. What about at work? Feeling part of the organization at more than a superficial level is vital to employees having a connection with the company. Having friends at work is important. Believing the work has meaning is also important. We often call this “engagement.” It is the idea that we can easily engage the hands (work) but it takes more effort to engage employees’ hearts (engagement). In our analysis, note that until safety and security needs are met, that “love and belonging” (i.e. “engagement”) piece doesn’t fall into place. By redirecting much of our HR strategy into making the workplace a safe and secure entity, we can expect better engagement of both the hands and hearts of our employees.

Self-esteem is bolstered when employees are recognized for their work, efforts and contributions. It is also boosted by learning and development opportunities as well as promotions. A confident employee is a better employee. When employees know where they stand with “the boss,” they are more likely to contribute at their highest capability and thus the entire organization benefits.

Risk management assessment is important here because when employees are not rewarded properly, they may leave the organization. We have always 20

www.HRProfessionalsMagazine.com

measured turnover as a cost – mostly monetarily and productively. But there is inherent risk in not developing employees and providing opportunity. Good employees always have choices. When their self-esteem suffers because of poor compensation and reward systems, they may quit, leaving the organization with a building full of mediocre employees. This will result in a huge risk to efficiency, productivity, customer satisfaction and ultimately the bottom line.

Self-actualization is the goal of every good HR strategy.

When employees are secure, safe, engaged and provided opportunities to be their best, self-actualization occurs.

Self-actualized employees are our top tier. They perform at their highest level. But it cannot happen without HR being consumed with the application of risk mitigation to every corner of the employee life cycle.

So what now? The New Year gives us great opportunity to shift our focus from traditional personnel/human resource theory to one of risk mitigation. Rather than Human Resource Management (HRM) we should focus on evolving our practices to one of Employee Risk Management (ERM).

Look at every aspect of your HR responsibilities through the lens of risk.

Example: Recruitment – what are the risks of not doing it well? What is the risk associated with poor background checks? What is the risk associated with not having a good DEI (diversity, equality, inclusion) policy and practice? What is the risk of not adjusting our pay practices in order to hire the best and brightest? Answering these questions will help bring focus back to the importance of this process and, thus, address the risk to the company if we are not fully focused.

When RISK is the central focus, executives pay attention. By framing all concerns, strategies and requests for resources in the context of risk, risk management and risk mitigation, the picture is much clearer. Executive management understands risk and deals with it daily. When we approach them with requests that will boost “morale,” they may not be as attentive as when you use “morale” as a measurement of risk.

The lessons of 2020 will be with us for a very long time. But it’s 2021. Time to step back, use those lessons to shift our focus and start an evolution in our HR worlds. It’s time to do things differently because the world is different. Making a strategic change now will reap big rewards farther into the future than just this year. Make those changes count.

Janie Warner, SHRM-SCP National HR Practice Leader McGriff Janie.Warner@mcgriff.com McGriff.com

Most brokers say they have all the answers.

We start with a lot of questions.

Every organization has unique needs. We want to know yours before we talk about solutions. McGriff specializes in delivering innovative employee benefit strategies to help manage costs, increase employee engagement and allow HR more time for strategic initiatives. Let us design a benefits program tailored to your organization.

To learn more, visit McGriffInsurance.com and select Employee Benefits.

Š 2020, McGriff Insurance Services, Inc. and McGriff, Seibels & Williams, Inc. All rights reserved.

McGriff Insurance Services, Inc. and McGriff, Seibels & Williams, Inc. are subsidiaries of Truist Insurance Holdings, Inc.

Job Applicants and Age Discrimination Claims: Employers Deemed to Have Superior Knowledge of Job Qualifications

By TAYLOR D. FLAKE-LAWSON

A three-judge panel of the United States Court of Appeals for the Sixth Circuit recently upheld the dismissal of a lawsuit initiated by a job applicant. Flowers v. WestRock Services, Inc., No. 20-1230 (Sixth Cir. Nov. 12, 2020). The applicant, Michael Flowers, had alleged that the company with whom he applied for a job position violated the Age Discrimination and Employment Act (“ADEA”) by denying him the opportunity to interview for a pipefitter job.

The Application Process For 30 years, Flowers worked as a pipefitter and welder before retiring in 2013. A few years after retiring, an employee at WestRock Services, Inc., told Flowers that WestRock was looking for pipefitters. WestRock’s online application for Journeyman Pipefitter included a section entitled “Required Skills and Experience,” which identified skills such as welding, “[s]electing [the] type and size of pipe and related materials according to job specifications, knowledge of system operation, and study of building plans [and] working drawings.” Another section also included additional requirements that an applicant must “[b]e able to read blueprints.”

Flowers submitted an application. The application was reviewed by a WestRock HR official, who thought that Flowers looked “generally qualified.” The application was then forwarded to a team lead and supervisor for their feedback. The team lead replied “no, no, no,” based on his previous work experience with Flowers at another employer.

The team lead noted Flowers’ poor work ethic, and recalled a specific incident where Flowers chose to sit on a bucket to pass time instead of completing a pending project. The supervisor, who did not know Flowers before seeing his application, called a friend who had previously with worked Flowers. The friend advised the supervisor to “stay away” from hiring Flowers.

After two negative references, the HR official who originally thought that Flowers looked “generally qualified” decided to reject Flowers’s application. The denial generated an automated response informing Flowers that WestRock “decided to move forward with other applicants who more closely match the desired requirements and qualifications for the role.”

him. During discovery in litigation, Flowers admitted that he did not know how to read building blueprints, nor did he have experience with selecting the type and size of pipe. He further admitted that just a couple of years before the lawsuit, he refused to get certified in welding because he “didn’t want to be a welder anyway.” In comparison, WestRock’s current employees in the role for which Flowers had applied welded seven days a week, twelve hours per day.

Following the close of discovery, the District Court granted WestRock’s motion for summary judgment from the bench. The Court found that Flowers failed to establish a prima facie case of age discrimination because he was not “otherwise qualified” for the position. The Court further explained that even if Flowers could establish a prima facie case, he failed to show that WestRock’s reasons for not hiring him were false.

Thereafter, Flowers appealed.

Proving Age Discrimination The ADEA makes it unlawful for an employer to “fail to refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of an individual’s age.” In order to demonstrate an ADEA violation, a plaintiff must prove by a preponderance of evidence that age was the “but for” cause of the employer’s challenged decision. Plaintiffs may use either direct or circumstantial evidence to support their claims. In instances where circumstantial evidence is used, the court proceeds under a burden shifting framework. Under that framework, the Plaintiff has the initial burden of establishing a prima facie case of discrimination. If the Plaintiff proves his prima facie case of discrimination, the burden then shifts to the employer to provide a legitimate non-discriminatory reason for its actions.

To make out a prima facie case of age discrimination, a plaintiff must show that: a) he/she was at least 40 years old at the time of the alleged discrimination; b) he/she was subjected to an adverse employment action;

Flowers Sues for Age Discrimination After Flowers received the rejection notice, a WestRock employee informed him that WestRock hired a younger, less experienced worker for the job; Flowers sued WestRock for age discrimination in violation of the ADEA. His complaint alleged that he was qualified for the pipefitter position and that but for his age, WestRock would have hired 22

www.HRProfessionalsMagazine.com

c) he/she was otherwise qualified for the position; and d) he/she was replaced by a younger worker.

At the time WestRock denied the Flowers application (an adverse employment action), Flowers was 71 years old. Thus, Flowers met the first two elements required to establish a prima facie case.

However, Flowers was required to show that he was “otherwise qualified” for the job, yet failed to prove that point. Flowers failed to establish that his qualifications were at least equivalent to the minimum objective criteria required for employment, as set out in the job description.

Flowers even admitted during discovery that he could not meet two of the job qualifications (selecting the size and type of pipes and reading blueprints), and he further admitted his disinterest in welding which was another job duty. The District Court found that Flowers failed to show that he was not otherwise qualified, and the Court of Appeals agreed.

In an effort to meet the “otherwise qualified” element, Flowers attempted to argue that the skills outlined in the job description were not required for the position. In response, the Court noted that the employer has “superior knowledge of its workplace and industry;” the job requirements will be the objective criteria by which to measure a failure to hire claim. The District Court rejected the notion that a federal court has a role in substituting their judgment for that of management. The Court saw no reason not to honor WestRock’s “business decision” on future employee expectations, especially when Flowers cited no history of animosity with WestRock and merely cast doubt on the necessity of the skills outlined in the job description.

fact; did not actually motivate [WestRock’s] challenged conduct; or was insufficient to warrant the challenged conduct.

Flowers had the burden of proving that the reason offered by WestRock’ proffered reason for rejecting his application was not the actual reason for such rejection. To do so, Flowers would have to provide evidence that WestRock’s stated reasons did not happen. Instead, Flowers didn’t even deny the existence of the negative references.

Further, Flowers provided no evidence indicating that his age was a factor at any point during the hiring process. The employment application did not ask for an age or photograph. The application only showed his employment history, which was 37 years of total experience. Given this, the Court of Appeals found that there was no pretext for discrimination.

Practical Considerations for Employers In light of the Flowers ruling as to job applicants, employers should make certain that a job description for a posted job opening is accurate and lists appropriate job qualifications, and should ensure that applicants are evaluated to determine whether they are, or are not, properly qualified for the job.

No Pretext Here Further agreeing with the lower court’s findings, the Court of Appeals held that even if Flowers established a prima facie case of discrimination, he failed to establish that WestRock’s justification for not hiring him was pretext for discrimination. WestRock did not hire Flowers because of the poor reviews about his work ethic. Flowers had the opportunity to refute that assertion by showing that WestRock’s conclusion had no basis in

Taylor Flake-Lawson, Associate Attorney TFlake@raineykizer.com Rainey Kizer Reviere & Bell PLC www.raineykizer.com

A Labor of Love: Littler Lawyers Answer Your Most Burning Labor and Employment Questions Join Littler attorneys February 11 for a virtual Q&A forum in Memphis Back by popular demand, the lawyers of Littler Memphis want to spread the love for Valentine’s Day by answering questions that you want answered. How can you best tackle the workplace changes and changes in labor and employment law in 2021? What pandemic-related challenges do you continue to face? Join us for this virtual program where we discuss what’s on your mind and answer your most burning labor and employment law questions.

Limited spots available. Reserve your space now.

For more information, visit littler.com/events.

At Littler, we’re fueled by ingenuity and inspired by you.

Atlanta | Birmingham | Charlotte | Lexington | Memphis | Nashville

www.HRProfessionalsMagazine.com

23

What Is the Future of Work?

Reimagining what, how, and where work gets done — implications for leadership and talent development

By TRACY DUBERMAN

The global pandemic has changed the very nature of work. We have been forced to accelerate our adoption of new technologies and escalate new types of work and working relationships. As a result, we are facing myriad challenges including how to engage and empower leaders and teams in new and different ways. We strongly believe leaders have an unprecedented window of opportunity to shape what ultimately becomes the Future of Work.

The Future Of Work Encompasses Changes In Work, The Workforce, And The Workplace Changes in Work The rapid way in which we have embraced new technologies, such as digital platforms and AI supported work, has shifted the very nature of work from task completion to problem-solving. Repetitive and routine tasks continue to be shifted to technology, leaving the more advanced work of problem-solving, communication, listening, interpretation, and design to the workforce.

As the work people do becomes less routine, roles will need to be redefined in ways that marry technology with the workforces’ advanced expertise in interpretation.

Techniques such as design thinking will become even more important. Organizations will need to define roles that incorporate the new types of capabilities, skills, activities, and practices in sense-making.

To make all of this happen successfully, we will likely need to change the way we conceive work and develop the training our workforce needs to take on these new roles and assignments. Otherwise, we could find ourselves weighed down trying to apply legacy concepts and skills onto the new and quickly emerging world of human-machine collaboration.

Changes in the Workforce The ability to create diversity, inclusion, and belonging among the workforce is more pressing than ever. Organizations now have a broad continuum of options for finding workers, from hiring traditional full-time employees to independent contractors and gig workers. These newer workforce types are growing in number and are available to solve problems, get work done, and help leaders build more flexible and nimble organizations.

Organizations have an opportunity to optimize the organizational benefits of each type of talent relationship, whether full time or some other alternative, while also providing meaningful and engaging options for a wide variety of workers’ needs and motivations. To make the most of these opportunities, talent models need to match people’s motivations and skills with the organization’s work needs.

24

www.HRProfessionalsMagazine.com

Leaders will need to understand how to tap into “on demand” capabilities and skills from both internal and external sources. Leaders will also need to provide employees and teams with the broadest and most meaningful range of development that are integrated into the flow of their work, careers, and personal lives. Lastly, leaders will have to design new ways to interact with and support the workforce, business teams, and partners to build compelling relationships.

Changes in The Workplace Where once physical proximity was required for people to get work done, the pandemic hastened the adoption of new and improved digital communication and collaboration platforms creating the opportunity for more distributed teams. We envision organizations orchestrating a range of options as they reimagine workplaces, from the more traditional co-located workplaces to those that are completely dispersed and dependent on virtual interaction.

Changing the physical workplace should not be seen simply as an opportunity to increase efficiency or to reduce real estate costs. Workplace culture is highly connected to both innovation and business results, and as teams become more distributed, organizations need to rethink how they foster both culture and team connections.

The importance of fostering engagement through connections cannot be understated. For leaders, this implies a need for more explicit attention to creating connections and community as workplaces become more virtual and filled with more contingent workers.

Implications For Leadership And Talent Development We can choose to use the lessons learned during the pandemic, those that forced adoption of new technologies, changes in how we define the workforce, and where we do work to drive more efficiency and cost reduction, or we can consider more deeply the ways to harness these trends and increase value and meaning for our organizations, our employees, and our customers.

Leaders can create a preferred future of work. Engaging and empowering new ways of work, new types of work, and new work delivery models require leaders to: 1. CREATE MEANING: The future of work needs to reach beyond cost and efficiency to include value and meaning. Whether working virtually or in person, leaders need to spur creativity, innovation, and meaning by intentionally building culture and community.

2. FOCUS ON RESULTS: The future of work needs to embrace virtual technologies, alternative talent sources, and collaborative workplaces to empower individuals, delegate effectively, and focus on the right results.

Leaders need to embrace an ownership culture that supports flexible thinking and prioritizes value of work over volume of activity.

3. DEVELOP DIVERSE TALENT: The future of work requires leaders who foster diversity, inclusion, and belonging. Given new ways of work, new types of work, and new work delivery models, focused attention needs to be applied to rebuild the ‘new normal’ in a way that incorporates the type of systemic changes required to thrive in the future.

4. SUPPORT COLLABORATION: The future of work requires planned collaboration. Leaders need to be aware that more remote work can lead to elongated working hours, meeting fatigue, and missed in-person connections like spontaneous hallway conversations that can bond a team and make collaboration feel easier. At the same time, remote work has established a level playing field among teammates which is a condition for successful collaborations.

As an organization we at TLD Group strongly believe that leadership plays a pivotal role in creating the future of work, and we are committed to being a part of the design.

Tracy Duberman, PhD is the founder of The Leadership Development Group (TLD Group) Inc., and co-author with Bob Sachs, PhD of From Competition to Collaboration: How Leaders Cultivate Partnerships to Deliver Value and Transform Health. Tracy has been recognized as an expert on leadership across various sectors, and speaks on ecosystem leadership, innovation in talent development, and effective succession planning. Before founding TLD Group, Tracy led the organizational effectiveness and healthcare practice at a leading boutique executive coaching firm and was a senior consultant with Hay Group, one of the world’s most respected leadership and talent development organizations. Tracy is passionate about making a positive impact. She can’t wait to get back to spending time with her extended family & friends and traveling to exotic places.

About Us The Leadership Development Group is a global talent development consulting firm for leaders, teams, and organizations. Our solutions include executive, leadership assessment and coaching, organizational development consulting, and group leadership academies designed to engage and empower leaders to take on challenges and position their organizations for success. TLD Group’s worldwide faculty of over 400 organizational development practitioners, coaches, academicians, and consultants with deep expertise in leadership development offer targeted insights and deliver highly impactful results.

www.HRProfessionalsMagazine.com

25

Employer And Business Liability In The Age Of The COVID-19 Pandemic

By J. ERIC HARRISON

The COVID 19 pandemic has resulted in disruptions in the lives of almost every American. The disruptions have ranged from minor inconveniences to loss of freedoms and economic turmoil, while some have been sickened and/or hospitalized and over 280,000 Americans have died. It is to be expected that there will be a wave of litigation concerning these losses suffered during the pandemic. While we can expect suits by private entities and governmental entities against both foreign governments and federal, state and local governments, this article will focus on liability for businesses and employers in the private sector.

General Liability. We anticipate that individuals or classes of persons will file suit against private businesses under negligence theories that will allege the business failed to protect customers, clients and/or the public by failing to follow recommended or advisable protocols and precautions to prevent the spread of coronavirus. Any negligence case requires the plaintiff to prove that the defendant breached a duty of care that was owed to the plaintiff which was the proximate cause of injury or death. It is the causation element of negligence law that poses the most significant obstacle to recovery for the plaintiff in these suits. Because the virus is so widespread and the modes of exposure and transmission are so varied and often difficult to pinpoint, much less prove in a court of law, a plaintiff seeking recovery will have a very difficult time in most instances being able to prove that the failure of the defendant to follow or implement certain protocols or safety procedures led to the actual exposure of the plaintiff to the coronavirus that sickened the plaintiff.

However, the causation obstacle could be more difficult in certain situations than others. For instance, think of the difference between a patient or visitor in a hospital setting, versus a customer in a grocery store, versus a client visiting a small office setting. Additionally, how will the courts handle the issue of the business establishing sufficient protocols and safety procedures yet allegedly failing to properly enforce them?

Protective Legislation. Protection may be on the way for employers and businesses in the form of legislation that has been passed or is pending at both the state and federal levels regarding liability protections. Most of those laws would limit or eliminate liability and/or provide immunity for businesses from negligence suits related to the COVID 19 pandemic. Most such laws as passed or proposed have exceptions for gross negligence or willful misconduct, would establish a clear and convincing evidence standard for burden of proof for the plaintiff (which is a higher burden of proof than the typical civil case, which is preponderance of the evidence) and would provide for limitations on recoverable damages in such suits. Some of the legislation passed/proposed would apply retroactively back to the spring and summer of 2020.

Medical Care and Diagnostics. There could also be a wave of medical malpractice cases related to diagnosis and treatment of coronavirus-infected patients. Again, as with a typical negligence case, a medical 26

www.HRProfessionalsMagazine.com

malpractice case requires proof of causation. It is also conceivable that there may be testing labs that are sued due to false negative or false positive test results. Further, because the mortality rates in nursing homes are so much higher than in the general population, we expect to see suits against nursing homes for not only failing to properly diagnose and treat and/or quarantine patients, but also for failing to enact and enforce proper protocols and safety procedures to protect the very vulnerable nursing home patient population.

Breach of Contract. There could also be a wave of litigation related to breach of contract claims against private entities, particularly those in the hotel and hospitality industry, travel industry, and with colleges and universities. Many of these sectors have been particularly hard-hit due to quarantine and travel restrictions. And, since many of the sectors require substantial prepayment weeks or months in advance, failure to pay refunds or reschedule events and services could result in suits against those entities. And they may be subject to the same types of negligence suits as other businesses for failure to enact and enforce proper protocols and safety procedures related to COVID 19. There could also be breach of contract claims between retailers, distributors and suppliers of certain goods and products due to interruptions in the supply chain.

Private Insurance Coverage. Some businesses have business interruption or loss of revenue insurance policies that could generate litigation against the insurers for failing to properly or timely pay claims under those policies. Major League Baseball is certainly looking into this.

Products Liability. Products liability and fraud suits could also become more prolific in the next year across a wide range of industries.

Those suits would likely involve claims of faulty personal protective equipment and/or defective health and safety products, as well as claims of false or misleading labeling and advertising, or misrepresentations of proper usage and effectiveness, for items like hand sanitizers, air filters and masks.

Workers’ Compensation. Finally, we expect a wave of workers’ compensation claims related to employees who allegedly contracted the coronavirus in conjunction with their work duties. However, workers’ compensation claims would have the same causation issues as civil negligence claims. The worker would have to prove that the coronavirus exposure occurred at work or while the employee was acting within the course and scope of employment. As with negligence claims, this could be a high bar to cross. The essential functions of the job, as well as with whom, and in what setting, the work is performed, can make a difference in the likelihood of success of those claims. Again, think of an employee at a grocery store, versus a nurse in a hospital that treats coronavirus patients, versus a clerical worker who is in a small office and has very little interaction with the public. Each of those different scenarios poses a different likelihood of success in a workers’ compensation claim. The

employer does get the protection of the exclusive remedy rule, which means that the employee’s claims are limited to the scope of the workers’ compensation statute, and the employer cannot also be sued by the employee for civil negligence for alleged exposure. However, we can also envision civil negligence suits by third parties (which are not constrained by the exclusive remedy rule) against an employer whose employee had contracted the virus at work and transmitted it to the third party.

Again, however, the causation element would likely be difficult to prove depending on the facts and circumstances.

LCYFFL00420

Mandatory Vaccines & Employer Policies. Employers may also face liability from running afoul of various employment laws impacted by the institution of certain COVID 19-related policies and procedures.

With a vaccine set to be approved in December 2020, employers may wonder whether they can or should require their employees to receive the vaccine when it becomes available. Health care facilities often have mandatory vaccination policies for at least certain members of their workforce. But what about other businesses? Employers considering such a policy should first realize there are legal limitations to making such a policy. In 2009, the EEOC first issued guidance, which was updated in March 2020, on dealing with medical questions during a pandemic. While certain medical-related inquiries are allowed during a pandemic due to the substantial health risks to the workplace and general population, the COVID-19 pandemic does not eviscerate all protections provided by the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964. In particular, employees who are unable to take the vaccine for medical reasons, or object based on sincerelyheld religious beliefs, are entitled to reasonable accommodation from a mandatory vaccine policy (absent undue hardship to the employer).

These accommodations, depending on the particular circumstances of the business, may include use of personal protective equipment such as face and nose coverings, telework, or temporary reassignment due to high-risk factors. Each must be considered on an individual basis as part of the interactive process.

Of course, this begs the question of whether the employer should mandate such a policy in the first place. Absent those who work directly with health-compromised individuals, the business justification is not as strong. Rather, the EEOC guidance suggests that employers encourage employees to obtain a readily-available vaccine for the flu, or in this case COVID-19, but not require it unless the demands of the business so require subject to reasonable accommodation.

Conclusion. As if the toll on society through impacts on health, prosperity, school attendance, politics, and the way we go about everyday life was not enough, businesses need to keep an eye on the potential exposure to legal liability associated with the current pandemic. While legislative help may be on the way and a plaintiff’s burden of proof may prove difficult to meet, employers would be wise to monitor these developments while continuing to take reasonable steps to protect the health and safety of their employees, customers, and vendors. Here’s looking forward to 2021!

J. Eric Harrison, Member

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

WWW.SFBLI.COM www.HRProfessionalsMagazine.com

27

Competing in the Age of AI:

Strategy and Leadership When Algorithms and Networks Run the World

BY WILLIAM CARMICHAEL

Humbled, is not exactly the emotion I was expecting to feel as I begin this third and last review on the topic of Artificial Intelligence (AI), yet humbled I am. True, there are fragments to AI we can easily grasp, i.e., chatbots, Alexa, Google Maps, 3-D modeling, robots, etc.

Afterall, there is a certain amount of tangibility to these technologies. They are real. We can see it, hear it, and touch it.

Now, I will review AI as a leadership strategy. Again, humbled is appropriate, for Competing in the Age of AI: Strategy and Leadership When Algorithms and Networks Run the World

by Marco Iansiti and Karim R. Lakhani, exposes several critical themes for us. For one, they explain the enigmatic history of AI and why we need to understand our place with it.

Two, AI is reshaping business and competition as we know it. Three, the need for strategic planning and traditional business operating models that have served us so well for decades will soon become archaic. This alone should terrify any COOs out there! And perhaps most significantly, understanding and embracing AI as a key leadership strategy will soon be a requirement. And keep in mind, HR will be right in the middle of it all!

AI vs. HR A number of questions surfaced for me when I began to read this wonderfully enlightening guide. For example, what exactly does AI have to do with those of us in HR or more specifically, HR leadership and the strategy we must embrace? Or, if AI will begin to make decisions for us (as machine learning has already shown itself so capable of doing well), how will the need for ethical behavior be impacted? Or better yet, how will this behavior be managed?

For me, a quick perusal of the book’s Index was a decisive indicator that the authors have not only thought about these same questions but realize the fundamental humanness that AI must ultimately align itself with.

If Competing in the Age of AI does one thing very well, it reminds us of how the digital technology revolutions of the past 50 years have led us to where we are right now as a society.

Or to what our future organizations and departmental structures will someday look like. To this regard, we need to look no further than how the current giants of technology (Amazon, Google, Microsoft) are currently applying AI within their HR platforms. As an example, the authors describe in Chapter 5’s- ‘Becoming an AI Company’, how Twitter learned from earlier mistakes when a chatbot program automatically mirrored text and voice interactions with customers that contained offensive responses. It is easy to see how a customer would react negatively. A failure of AI - you might ask? Possibly, but how can we blame a computer program for being discourteous? AI, just as people do, learns from its own errors. And as our authors confirm in this same chapter, there must also be a collaboration of sorts between AI interactions and users. For example, “Microsoft has identified six AI principles: fairness; reliability and safety; privacy and security; inclusiveness: transparency, and accountability.”

Clearly, ones that can become organizational policies with very little effort. HR . . . will you be ready for this?

humans should do, not the other way around.” In other words, we should give the computer as much data as possible, set some broad constraints, and let it determine the optimal solution to a problem.

Toward this end, the authors show us how when a firm’s value relies heavily on its “decision engine” such as providing the right search result (Google), personalizing a newsfeed to increase engagement (Facebook), or recommendations on a video service (Netflix), AI is a natural winner. With data and algorithms, a virtuous cycle occurs where more data yields better algorithms yielding better results and a better user experience.

Structure and Layout Well researched and written, Competing in the Age of AI: Strategy and Leadership When Algorithms and Networks Run the World is surprisingly and pleasantly free from complex, technical jargon.

Clearly the authors have the knowledge and expertise ‘to go beyond’ but they wisely do not.

All in all, I found it to have a nice readability and flow. Structured and intended as a linear read, its 229 pages can easily be read over a weekend. My advice, however, is to take it in smaller bites and in a different order. First, read Chapter 1 to better understand the history of AI, then review topics of interest in the Index, then resume at Chapter 2 or whatever topic is of your choosing. Regardless of route, the end result will be beneficial.

Closing Thoughts About AI Two months ago, I first looked at AI as a change agent for organizations. I touched on how AI has become a transformational inevitability for both business and industry, and how the organizational dynamics of AI directly impact that organization’s global success. Last month, I observed AI as the next paradigm shift for organizational growth and how the essence of this shift is the transformation of all business processes within an organization.

Now, we see how AI serves as a critical leadership strategy where understanding AI’s place in our past will define the leaders for our future.

ABOUT THE AUTHORS:

Marco Iansiti, the David Sarnoff Professor of Business Administration at Harvard Business School, also heads the school's Technology and Operations Management Unit and the Digital Initiative.

Karim R. Lakhani is the Charles E. Wilson Professor of Business Administration and the Dorothy and Michael Hintze Fellow at Harvard Business School.

AI vs. Organizational Value Iansiti and Lakhani make a very compelling argument that AI is now at the forefront to change business as well as organizational strategy. Throughout the book they put forth a combination of effective frameworks and case studies to make this argument, borrowing a key tenant from new AI advancements in algorithms which is that “computers are defining what 28

www.HRProfessionalsMagazine.com

William Carmichael, Ed.D

Higher Education Administrator wcarmchl@gmail.com

5 Background Check Mistakes that Can Derail Your 2021 Hiring Success

By JOHN HAWKINS

As we pop the champagne and bid farewell to 2020, our thoughts turn to the year ahead. New Year’s marks a fresh start and a chance to do things better than we did in years past.

HR professionals should take this time to think about their hiring process and how they can improve it. After all, with the vaccine on the horizon for everyone, 2021 is bound to shake things up in the workforce in a variety of ways.

Screening Every Candidate the Same Way Using a blanket background screening process can end up being unfair, discriminatory, and can cause you to miss out on hires that could have been successful employees.

What to do? A person who is applying as a heavy machinery driver may not need a criminal check, but he would need a Motor Vehicle Records check and a drug test. Set relevant screening requirements for each position in your company to maintain practices that are not discriminatory while still protecting your workplace.

Asking the Wrong Questions

Making sure you crush the hiring process, land A-players, and onboard them successfully is a top priority in 2021. Unfortunately, there may be actions you’re currently taking that work against you. Here are 5 background check mistakes that can derail your 2021 hiring success.

Letting It. Drag. On. Forever.

Applicants who are languishing in limbo, waiting on an offer, will likely seek employment elsewhere.

What to do: Work quickly and make decisions as fast as you can. Keep the applicants informed by communicating with them consistently throughout the process, including informing them about the next step. If your background checks are taking a long time, talk to your customer service about decreasing your turnaround times so you can move forward. Or, go ahead and make an offer contingent on a satisfactory background check report.

In the past, it was common practice to ask questions during the hiring process that are taboo, or even illegal, now. A candidate’s income, previous conviction history, and credit history were considered an open book during the application and interviewing process, and employers made hiring decisions in part based on these pieces of background information.

In the quest for fairness, states and cities have started forbidding these questions, citing that they disproportionately hinder certain populations- like women and minorities- from landing jobs with equal pay.

What to do: Avoid these questions in the beginning of the hiring process. If you’re going to ask about them, do it later in the process so other components of the applicant, like their education and experience, can be weighed into the decision. If the questions are illegal where you do business, omit them altogether.

Forgetting to Follow Adverse Action Procedures

something in their report that is negatively affecting their chances of being hired by you. Include a copy of the background report as well as a "Summary of Your Rights Under the Fair Credit Reporting Act." Employers are also required to send a "Notice of Adverse Action." This lets the candidate know the information in their background report adversely affected them being hired.

Give proper time between the “Pre-Adverse Action” letter and the final letter. A fivebusiness day timeframe is generally recommended as a best practice. There have been recent lawsuits by job candidates who were only given a three-day window, so don’t send out the final notice too soon.

Using A Sketchy Background Screening Company Information is only as accurate and complete as the source. Untested data sources and lack of adjudication and quality controls can result in an inadequate background check report.

What to do: The Professional Background Screeners Association (PBSA) awards accreditation to companies that prove they follow stringent guidelines and practices.

Choosing a PBSA-accredited company ensures you are working with a top performing background screener.

2021 will be a challenging, exciting year for employers. HR Professionals would be wise to review their current background screening policies and update them to address the current laws and trends.

Avoiding these mistakes makes it easier to hire better-quality candidates faster and more seamlessly than ever.

If negative background information is uncovered, the last thing employers should do is nothing.

What to do: When employers decide against hiring someone based on whole or in part on the candidate's background check report, the FCRA requires that employers notify the applicant and send them a Pre-Adverse Action letter. This lets the person know there was

John Hawkins

Senior National Accounts Manager Data Facts jhawkins@datafacts.com www.datafacts.com www.HRProfessionalsMagazine.com

29

TM

Presents

2021 Super Lawyers in Labor and Employment Law

Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. 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 seven 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. www.ogletree.com

Birmingham Brian R. Bostick has practiced exclusively in the area of labor and employment law in the Birmingham area since 1997, and has been with Ogletree Deakins since 2000. He has considerable experience representing employers in employment-related litigation in 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. He has also successfully represented employers before numerous administrative agencies such as the Equal Employment Opportunity Commission, the Department of Labor, and the Mine Safety and Health Administration.

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

T. Scott Kelly provides practical solutions for federal contractors and subcontractors across the United States to comply with the ever-changing affirmative action obligations imposed by doing business with the federal government. He advocates on behalf of his clients in compliance evaluations and administrative enforcement actions triggered by the United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). Kelly assists manufacturing, transportation, construction, food processing, hospitality, healthcare, and financial institutions with creative solutions for preparing, managing, and defending their affirmative action programs and related matters, including jurisdictional analyses and preventative strategies.

Peyton Lacy, Jr. has decades of experience in labor and employment law. He graduated with a J.D. degree from the University of Alabama in 1965, where he served as editor-in chief of the Alabama Law Review and a member of the Farrah Order of Jurisprudence.

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 A. Patton, Jr. is a shareholder in the Birmingham, Alabama office of Ogletree Deakins and a member of the firm’s Affirmative Action/OFCCP Compliance Practice Group. He focuses his practice on assisting federal contractors and subcontractors to comply with legally-mandated employment and reporting obligations, as well as defending compliance reviews and enforcement proceedings brought by the Office of Federal Contract Compliance Programs (OFCCP) and the United States Department of Labor (USDOL). In addition to focusing on affirmative action compliance, he has spent more than twenty years advising companies on a variety of workplace.

James C. Pennington is 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. He helps employers avoid workplace disputes by providing management training and developing defensive documentation such as effective employee handbooks, dispute avoidance and resolution policies, and drug and alcohol testing policies and procedures. He is known for helping employers navigate through the intersections of disabilities and leave laws.

www.HRProfessionalsMagazine.com

31

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

Jonathan O. Harris is Managing Shareholder of the firm’s Nashville offce. He represents management in a wide variety of employment-related matters.

In addition to defending single-plaintiff lawsuits, he also represents employers in class and collective actions. He has handled countless EEOC charges and defended employers in lawsuits brought by the EEOC, including matters where the agency has asserted systemic claims on behalf of multiple claimants. He is a frequent speaker on topics relating to all types of employment issues, and he works with clients on preventive strategies to avoid discrimination, retaliation and other employment claims.

Elizabeth S. Washko is a shareholder in the Nashville offce and co-chair of the firm’s Pay Equity Practice Group. She represents management in a wide variety of employment matters, at the agency level and in litigation. She has experience defending employers in FLSA collective actions, pay discrimination cases (individual plaintiff and class/collective actions) and conducting proactive pay audits and pay equity analyses. She has served as lead counsel in jury trials in state and federal courts. Washko also conducts training on employment issues, drafts and reviews employment policies and agreements, and conducts harassment and other types of investigations for employers.

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

Timothy A. Palmer is a shareholder who works in both the Nashville and Birmingham offces, and is a founding shareholder of the Birmingham offce. He is an experienced litigator who focuses his practice on both employment litigation and general civil litigation in state and federal courts. His practice focuses on the defense of employment litigation including discrimination claims, defense of personnel actions, and defense of employee benefit disputes. He is a frequent speaker for the Alabama Bar Institute on Continuing Legal Education, where he has lectured on jury selection procedures and employment litigation.

Craig Cleland defends employers in litigation—including class and collective actions—and counsels them in risk management and compliance. He is the former Chair and Co-Chair of the Firm’s Class Action Practice Group.

He is also an Adjunct Professor of Law at Georgia State University College of Law, where he teaches Complex Litigation. He has been recognized as a BTI Client Service All-Star three times—one of a small number of employment lawyers in the U.S. who “combine exceptional legal expertise with practical advice, business savvy and creative, effective solutions.”

William S. Rutchow is a shareholder in the firm’s Nashville offce who currently concentrates his practice in three areas: Workplace Safety and Health, Unfair Competition/Trade Secrets, and Employment Litigation. He also has experience in commercial litigation, personal injury litigation, and NLRB proceedings. Rutchow is a member of the firm's Ethics Committee, the Unfair Competition and Trade Secrets Practice Group, the Workplace Safety Practice Group, the Traditional Labor Law Practice Group and the Litigation Practice Group. He is a frequent author and speaker on employment-related topics.

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

32

www.HRProfessionalsMagazine.com

New Orleans

Raleigh

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

Matt Keen is the Managing Shareholder of Ogletree Deakins. His practice has included employment litigation in state and federal courts, representing clients before the National Labor Relations Board and advising clients on equal employment opportunity and wage and hour issues. He has successfully litigated cases to defense verdicts in employment discrimination cases. He has also litigated matters involving ERISA, non-competition and trade secrets, workplace injuries and other contract and tort claims. He has successfully represented clients in dozens of labor and employment arbitrations.

Steve Hymowitz was lead counsel in what has been called the largest unfair labor practice trial in the history of the NLRB, involving over 200 consolidated allegations of unfair labor practices. He has earned a number of distinctions for his work during his more than four decades of practice.

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

Bob Sar assists employers in all areas of labor and employment law, including discrimination, harassment, retaliation, whistleblowers, wage and hour, class and collective actions, non-competition and non-disclosure covenants, leaves of absence, employment agreements and policies, union labor matters, and workplace safety. He represents diverse industries including higher education, retail, financial, healthcare, pharmaceutical, professional services, hospitality, manufacturing, sales, software and technology. Bob has extensive experience litigating employment matters in state and federal courts throughout the United States and believes his success results from being available 24/7 to clients and being ready, willing and able to take client’s cases to trial.

Chris Moore is an advocate for employers and has successfully defended federal and state law claims of race, sex, religious, age and disability discrimination; breach of contract, wrongful termination, retaliation, defamation, harassment, infliction of emotional distress, misrepresentation, interference with contract, whistleblower, employee benefits and abuse of right claims; state and federal wage claims; family and medical leave claims; unfair labor practices; and labor arbitrations. He has also successfully represented employers in disputes involving non-compete and non-solicitation agreements.

Chris has also represented management in union organizing campaigns, labor disputes and the defense of unfair labor practice charges. As an advisor, Chris has prepared written employment practices, systems, forms and contracts, and has trained managers on their implementation and administration.

www.HRProfessionalsMagazine.com

33

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

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

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

34

www.HRProfessionalsMagazine.com

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

Tim Garrett helps employers solve complex issues related to all aspects of labor and employment law, providing in depth counseling and developing creative solutions to underlying business issues. He is an experienced trial lawyer, defending employers of all sizes in employment litigation claims across the country. His work has ranged from defending a major university during a significant wage and hour collective action involving thousands of employees to the successful defense of a major healthcare provider in a gender discrimination / retaliation case. In addition, Tim has served as nationwide labor and employment counsel for the largest nonprofit dialysis company in the U.S. Tim has been recognized by Mid-South Super Lawyers as a leading practitioner for 15 consecutive years (2006-2020).

David Thornton helps employers deliver retirement, health and welfare benefits to their executives and employees.

With more than 30 years of experience, he has developed a diverse practice counseling hundreds of public and private employers and non-profit organizations in drafting, maintaining and administering retirement plans ranging from $1 million to several billion dollars in assets, including many in the $100 million to $500 million asset range. He has deep experience in ESOP transactions, successfully navigating the significant fiduciary duty considerations and tax code requirements involved with these transactions. David has been recognized by Mid-South Super Lawyers as a leading practitioner for 11 consecutive years (2010-2020).

Fritz Richter has more than 30 years of experience counseling clients on employee benefit plan design and administration, and compliance with the Internal Revenue Service (IRS), Pension Benefit Guaranty Corporation (PBGC) and Employee Retirement Income Security Act (ERISA). His clients span a wide range of industries, including healthcare, retail and hospitality. Fritz has helped clients navigate hundreds of audits; submitted numerous IRS, Department of Labor and PBGC filings; and crafted a wide variety of employee benefit plan documents – all focused on helping employers navigate complex government regulation. Fritz has been recognized by Mid-South Super Lawyers as a leading practitioner for nine consecutive years (2012-2020).

www.HRProfessionalsMagazine.com

35

At Littler, we understand that workplace issues can’t wait. With access to more than 1,500 employment attorneys in over 80 offices around the world, our clients don’t have to. We aim to go beyond best practices, creating solutions that help clients navigate a complex business world. What’s distinct about our approach? With deep experience and resources that are local, everywhere, we are fully focused on your business. With a diverse team of the brightest minds, we foster a culture that celebrates original thinking. And with powerful proprietary technology, we disrupt the status quo – delivering groundbreaking innovation that prepares employers not just for what’s happening today, but for what’s likely to happen tomorrow. For over 75 years, our firm has harnessed these strengths to offer fresh perspectives on each matter we advise, litigate, mediate, and negotiate. Because at Littler, we’re fueled by ingenuity and inspired by you.

Memphis

Nashville

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

For over 35 years, Eric Stevens has provided his clients a common-sense approach to employment, representing employers in administrative investigations, employment litigation, and labor relations matters with a focus in the healthcare and financial institution industries. He represents both union and non-union employers, assisting clients with compliance and litigation avoidance.

Charlotte 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.

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

36

www.HRProfessionalsMagazine.com

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

Birmingham

Lexington

Janell Ahnert's practice encompasses all facets of employment law, specifically in representation of management in both employment counseling and employment litigation. Janell handles a variety of employment law matters in state and federal courts and has broad experience defending employers accused of harassment and discrimination in federal court. She has litigation and counseling experience in numerous areas of employment law, including issues involving wage and hour claims, harassment, discrimination, and whistleblowing.

LaToi D. Mayo has advised, counseled and defended employers in regard to labor and employment matters for over 19 years. Most recently, LaToi has developed extensive skills in enforcing employment related arbitration agreements, defending and managing wage and hour class actions and advising employers on state and federal wage and hour compliance issues. She also routinely assists employers with respect to diversity, discrimination, and leave issues. She works frequently with hospitality and service related groups, manufacturers, health care facilities, financial institutions and local city governments.

Charles A. Powell has represented employers throughout the Southeast against employment discrimination and harassment, non-competition and wage and hour litigation lawsuits for more than 23 years. He has a strong record of successfully defending employers against various employment and labor law claims.

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

www.HRProfessionalsMagazine.com

37

5 REASONS Highly Sensitive People (HSPs) are an Asset in the Workplace

By HARVEY DEUTSCHENDORF

In 1991, Dr. Elaine Aron, PhD., coined the phrase, “Highly Sensitive Person,” after years of research into the study of the innate temperament trait of the high sensitivity in using functional magnetic resonance imaging.

Let’s take a look at the qualities of a highly sensitive person so that you will recognize their traits, gifts and the way they will be an asset in your workplace. For those that have these traits, it can be a gift and a curse. They require extra time to process and if something seems off, they will usually identify an issue to be looked into further.

Brain scans have shown that HSPs have more active mirror neurons which are responsible for feelings of empathy for others and more activity in brain areas that are involved with emotional responses. HSPs feel both positive and negative emotions more intensely than non-HSPs. Around 20% of our populace are highly sensitive people and thought to be linked to higher levels of creativity, richer personal relationships and a greater appreciation for beauty. In the workplace, they are an asset to your team for the following reasons.

Five reasons HSP’s are valuable employees:

Sensitive Strengths and Notice Subtleties When Highly Sensitive People are living a lifestyle suitable for their temperament which includes adequate downtime, meaningful connections and time to integrate experiences, they are able to access many of the gifts that their highly perceptive brains and heightened emotional capacity afford. HSPs typically enjoy one-on-one interactions and prefer meaningful connections. They notice little details that others may miss, such as subtle body language or small changes to an environment. They are the first to notice if a colleague gets a new haircut or if someone is upset.

Even the little moments can bring HSPs great joy, as they feel everything deeply and are easily moved.

Compared to others, they tend to feel events more deeply and for longer periods of time. Perhaps, the first to cry during a movie or have vivid dreams that will linger for days. Sensitive people are often deeply spiritual and feel connected to nature and animals.

Having a tendency to be conscientious leads to a commitment to doing things the right way.

Depth of Processing The Highly Sensitive brain has a more active insula, the part of the brain that helps enhance perception and increase self-awareness. HSPs are also wired to pause and reflect before engaging. Therefore, HSPs are always taking in a lot of information around them and thinking deeply about it. Since HSPs notice more subtle details in their environments, they are more emotionally impacted by social stimulation and will notice the “pulse” of the workplace energy.

Emotional Intensity HSPs feel more emotional in response to both positive and negative events, as well as pick up on the emotions of others. HSPs notice subtle details that others miss such as non-verbal cues and small changes in their environment. They are also more impacted by strong sensory input such as bright lights, loud noises, strong smells or rough textures. Due to a high capacity for empathy, HSPs often feel guilty for saying "no" and are worried about hurting others. There needs to be time to reflect before taking action.

Even positive transitions such as getting a promotion or starting a new relationship can be challenging.

Sensory Sensitivity Certain types of external stimuli bother HSPs. This could include bright lights, loud noises, social stimulation, crowded buses, quickly flashing movie screens, strong smells and/or rough textures. Covering their ears when an ambulance or fire engine passes by, often cut the tags out of clothing, and/or feel hyped from consuming caffeine or dark chocolate. This is great information to be aware of if your colleague, boss or partner is an HSP. 38

www.HRProfessionalsMagazine.com

Empathetic, Caring, Intuitive and Perceptive HSPs are very caring, empathetic and emotionally responsive towards the needs of others. Heightened perception, insight and intuition allow the Highly Sensitive Person to notice nonverbal cues and pick-up subtle nuances. Due to a higher level of sensitivity, when HSPs are in the right environment and getting their needs met, they tend to thrive and exhibit many valuable traits such as enhanced perception, empathy, creativity and detail-orientation.

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.

Reduce your company’s risk with

post-hire criminal monitoring

Infinity Screening™ Infinity Screening™ is a highly advanced post-hire screening solution that monitors enrolled employees on an ongoing basis, alerting the employer to new criminal record information and changes to existing records. Employers rely on Infinity Screening™ for proactively identifying risk post-hire and reducing their exposure to liability. Protect your company, workforce, clients, and brand, and give yourself peace of mind by using Data Facts for post-hire criminal monitoring. www.datafacts.com

You’re ready to reach your potential.

We’re ready to help you.

WGU offers over 60 respected bachelor’s and master’s degree programs online, each designed for motivated, driven people like you.

• ACBSP-accredited degree programs.

• HR program fully aligned with SHRM curriculum.

• Flat-rate tuition between $6,450 and $7,600 per year.

Online. Nonprofit.

Surprisingly affordable.®

Kikuyu C. MBA Management & Strategy

Learn More tennessee.wgu.edu