July 2018 issue

Volume 8 : Issue 7

TM

www.HRProfessionalsMagazine.com

Top Educational Programs for HR Professionals

Supreme Court Ruling on

Same-Sex

Wedding Cake

Highlights from the

SHRM Annual Conference

in Chicago

June 17-20

Alex

Alonso,

PhD, SHRM-SCP

SHRM Chapters and State Councils Win 2017

SHRM’s Chief Knowledge Officer

Excel Award

Direct Primary Care

– What is Old is New Again

International Presence.

Local Knowledge.

EMPLOYERS AND LAWYERS, WORKING TOGETHER Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. The firm has more than 850 lawyers located in 53 offices across the United States and in Europe, Canada, and Mexico.

www.ogletree.com BIRMINGHAM OFFICE

JACKSON OFFICE

MEMPHIS OFFICE

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

207 West Jackson Street Suite 200 Ridgeland, MS 39157 601.360.8444

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

You will receive 8.00 SHRM PDCs and 8.00 HRCI Business Credits for attending all of the sessions.

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WEB EXCLUSIVES HTTP://HRProfessionalsMagazine.com /Exclusive

Bringing Human Resources & Management Expertise to You

50%

of attendees at 2018 SHRM Conference were SHRM certified. www.HRProfessionalsMagazine.com Editor

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

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

Park Avenue Design

Contributing Writers

Austin Baker Judy Bell Bruce E. Buchanan Alexander Clark William Carmichael Chris Davis Harvey Deutschendorf Corbette Doyle Aris Federman Brad Federman Heather Hearne Deborah Hembree Julie Henderson Zachary W. Hoyt David Klass Lisa A. Krupicka Geoffrey A. Lindley George W. Loveland II James Taylor Board of Advisors

Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR Terri Murphy Susan Nieman Robert Pipkin Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine.com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com.

Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors.

HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice.

HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2018 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.

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Features

3 Excellence Through Leadership in LaGrange, GA October 18-19 5 note from the editor 6 Profile: Alexander Alonso, PhD, SHRM-SCP, SHRM’s Chief Knowledge Officer 7 Preview of Speakers for our 1st Annual HR Executive Conference Cruise October 22-26 10 Ethics . . . Values . . . Integrity . . . Keeping Trust in the Forefront 14 Gen Z Enters the Workforce: What Are Their Expectations?

22 Does Sensitivity/Diversity Training Really Work?

24 Anatomy of a Solid Hiring Process 41 The Launch of ContigoCulture and Culure Shift Team 48 Book Look: Grace and Grit: My Fight for Equal Pay and Fairness at Goodyear and Beyond by Lilly Ledbetter 54 7 Ways Leaders Can Build Emotional Intelligence in Their Workplaces

Employment Law

12 Department of Labor Releases Three New Opinion Letters 16 EEOC v. Dollar General: A Case Study in Sexual Harassment Investigations 17 Register for the 39th Annual Labor and Employment Law Update Conference in Knoxville November 1-2 20 Supreme Court Ruling on Masterpiece Cakeshop Case Does Not Address Discrimination 26 Do Good Audits Exist? Minimizing Damages in FLSA Cases 44 “Hang in There”: New Overtime Exemption Rule is Coming. . .Eventually 46 New NLRB Majority Takes Target Off Employee Handbooks 50 Are Class Waivers in Employment Arbitration Agreements Enforceable?

52 Keeping Your Concealed Weapons Policy on Target 53 Employers Should be Vigilant with I-9 Compliance

Employee Benefits 28 Direct Primary Care: What is Old is New Again 42 What’s Next for the Fiduciary Rule?

Top Educational Programs for HR Professionals 30 Sullivan University 32 Union University 33 WGU Tennessee 34 UAB Collat School of Business 35 Emory University 36 The Leadership Green Room 37 The University of Louisville 38 The University of Memphis 39 University of Illinois at Urbana-Champaign 40 Vanderbilt Peabody College 55 Applications Now Being Accepted for SHRM-CP/SHRM-SCP Winter Exam Window

Industry News 8 Highlights from the 2018 SHRM Annual Conference & Exposition in Chicago June 17-20 18 2017 SHRM Excel Award Winners Announced 19 Preview of the 34th Annual KYSHRM Conference in Louisville August 28-30 21 Achieving Equality in Business and the Legal Profession at the University of Memphis Cecil C. Humphreys School of Law August 24 25 Preview of 2018 TN SHRM Conference in Sevierville September 19-21 49 Preview of the 2018 SHRMGA Conference in Savannah September 5-7 August 2018 Issue Features Profiles of ERISA and Employee Benefits Attorneys and Retirement Planning and Compliance plus Employment Law and Employee Benefits Update

August issue will be distributed at the 34th Annual KYSHRM Conference in Louisville Deadline to reserve space July 15

a note from the editor The fabulous highlights from the 2018 SHRM Annual Conference & Exposition in Chicago June 17-20 are included in this issue.

What a wonderful conference it was! The pictorial highlights are on Page 8 and 9. We also have previews of the fall SHRM state conferences in this issue. Be sure to check out the 34th Annual KYSHRM Conference in Louisville August 28-30. It will be held at the beautiful brand new Omni Louisville Hotel. Register at KYSHRMCONFERENCE.COM. The 2018 SHRM Georgia State Conference is September 5-6 in beautiful Downtown Savannah. It will be held in the newly Caught a photo op with the SHRM Public Affairs Team at SHRM18 in Chicago. (Back Row, L-R) Sundra Hominik, Media Relations Specialist; Cynthia. (Front Row, L-R) Vanessa Hill, Sr. Media Affairs Specialist; and Kate Kennedy, Media and Public Affairs Director.

renovated Savannah Marriott Riverfront where the Savannah River flows right by the hotel. This year they are joining forces with the Georgia Safety, Health and Environmental (SHE) Conference for their 25th anniversary conference. There will be over 700 HR professionals in attendance!

Our July issue is one of my favorites because we bring you the

Mark your calendars and plan to attend the 2018 TN SHRM

top educational programs for HR professionals. You will find many

Conference & Exposition in beautiful Sevierville September 19-21.

accredited programs that allow you to earn your bachelor's degree

It will be held at the Wilderness in the Smokies Resort in the

or your master's degree online from the comfort of your home.

beautiful Smoky Mountains. What a fantastic fall conference to

These programs also align with the SHRM curriculum. Please take

end the fall season! If you have never been to Sevierville in the

a moment to review these excellent educational opportunities and

fall, you are in for a treat! Early bird rates are available until July

find the one that is right for you. We recommend that you consider

31, 2018.

these excellent universities for your employees who are returning to school this fall and want to take advantage of your tuition

Don't forget to register for our 1st Annual HR Executive Cruise

reimbursement program.

to the Bahamas October 22-26. We are sailing on the Royal Caribbean Mariner of the Seas from Miami. We are combining

We are so excited to feature Alex Alonso, PhD, SHRM-SCP,

a robust Human Resources Executive Conference with an

SHRM's Chief Knowledge Officer, on our July cover. Alex leads

exciting cruise! You can earn 8.00 HRCI credits and 8.00

operations for SHRM’s Certified Professional and Senior Certified

SHRM PDCs. We have an incredible line up of keynote speakers

Professional certifications, research functions, and the SHRM

and the networking will be fantastic! It's everything that a land

Knowledge Advisor service. He is responsible for all research

based conference offers - except it moves. This cruise is also

activities, including the development of the SHRM Competency

tax-deductible! Here are some tips on how to convince your boss

Model and SHRM credentials. Dr. Alonso received his doctorate

to approve the cruise!

in Industrial-Organizational Psychology from Florida International University in 2003. Throughout his career, he has published

Watch your email for our next complimentary monthly webinar

works in peer-reviewed journals such as Industrial and Organiza-

sponsored by Data Facts on July 26. You will earn 1.00 SHRM

tional Psychology: Perspectives on Science and Practice, Journal

PDC and 1.00 HRCI recertification credit. Watch your email for

of Applied Psychology, International Journal of Selection and

your invitation! If you are not currently receiving our monthly

Assessment, People and Strategy, Personality and Individual Differ-

invitation, you can subscribe on our website at www.hrprofes-

ences, Quality and Safety in Health Care, and Human Resources

sionalsmagazine.com.

Management Review. I know you will enjoy reading the details about his exciting career on Page 6! Check out our Facebook Live video with Alex on our Facebook page as he discusses the value and ROI for the SHRM-CP and SHRM-SCP certifications.

cynthia@hrprosmagazine.com cythomps@twitter

www.HRProfessionalsMagazine.com

5

on the cover

Alexander

ALONSO

ALEXANDER ALONSO, PHD, SHRM-SCP Society for Human Resource Management's (SHRM's) Chief Knowledge Officer Alexander Alonso leads operations for SHRM’s Certified Professional and Senior Certified Professional certifications, research functions, and the SHRM Knowledge Advisor service.

He is responsible for all research activities, including the development of the SHRM Competency Model and SHRM credentials.

During Alexander’s career, he has worked with numerous subject matter experts worldwide with the aim of identifying performance standards, developing competency models, designing organizational assessments, and conducting job analyses.

He was also responsible for working on contract task orders involving the development of measurement tools for content areas such as job knowledge (like teacher knowledge of instructional processes) and organizational climates (like organizational climate forecasting in military health care).

Dr. Alonso received his doctorate in Industrial-Organizational Psychology from Florida International University in 2003.

His works have been recognized for their contribution to real-world issues. They include being recognized by the Society for Industrial Organizational Psychology (Division 14 of the APA; SIOP) with the 2007 M. Scott Myers Award for Applied Research in the Workplace for the development of the federal standard for medical team training, TeamSTEPPS; being awarded a 2009 Presidential Citation for Innovative Practice by the American Psychological Association for supporting the development of competency model for team triage in emergency medicine; and receiving the 2013 SIOP Distinguished Early Career Contributions for Practice Award.

Throughout his career, he has published works in peer-reviewed journals such as Industrial and Organizational Psychology: Perspectives on Science and Practice, Journal of Applied Psychology, International Journal of Selection and Assessment, People and Strategy, Personality and Individual Differences, Quality and Safety in Health Care, and Human Resources Management Review.

He has also authored several chapters on community-based change initiatives in workforce readiness, as well as co-authoring Defining HR Success: A Guide to the SHRM Competency Model in Practice.

Dr. Alonso also served as a columnist analyzing major trends in the workforce for The Industrial Psychologist and HR Magazine.

In addition, he has served on several professional society boards including the SIOP and the Personnel Testing Council of Metropolitan Washington. 

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Session Speaker: Kim Hodges,

9:45 AM - 11:00 AM

Shareholder Ogletree Deakins “Risk Management - Managing Legal Expenses” Session Speaker: Cynthia Thompson,

M. Kimberly Hodges

11:15 AM - 12:30 PM

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

HR EXECUTIVE HR EXECUTIVE HR EXECUTIVE CONFERENCE CRUISE CONFERENCE CRUISE Editor | Publisher HR Professionals Magazine

“How to Conduct an HR Audit for Maximum Compliance”

Session Speaker: Melva Tate,

1:30 PM - 2:45 PM

Tate & Associates - Strategic HR Partnerships “Innovation 101: Think Diversity”

Session Speaker: William Carmichael, Ed.D,

3:00 PM - 4:15 PM

Campus Dean, Strayer University (ret)

TO THE BAHAMAS OCTOBER 22-26 CONFERENCE CRUISE “Working with Virtual Teams”

Friday 10/26

Dock in Miami, Florida

7:00 AM

Melva Tate, PHR, CLC

William “Bill” Carmichael, Ed.D

To register or obtain more information - Visit our website:

www.HRCruise.com

The conference has been submitted for 8.0 HRCI Business Credits Monday 10/22 Monday 10/22 and for 8.0 SHRM Professional Development Credits (PDCs).

Departure from Miami, Florida Departure from Miami, Florida

Monday 10/22 Tuesday 10/23 Tuesday 10/23 from Miami, Florida Departure

Arrive inin Nassau, Bahamas Arrive Nassau, Bahamas Meet & Greet Cocktail Hour!

Hour!

Tuesday 10/23 Meet & Greet Cocktail

Keynote Session: Dennis Koerner, Ph.D. Keynote Session: Dennis Koerner, Ph.D. Arrive in Nassau, Bahamas Opening Night OpeningHour!

Night Meet & Greet Cocktail

4:00 PM 4:00 PM

4:00 PM 8:00 AM - 11:59 PM 8:00 AM - 11:59 PM 5:00 PM - 6:00 PM 5:00 PM - 6:00 PM 7:45 PM 9:15 PM 7:45- PM 9:15 PM 8:00 AM 11:59- PM

5:00 PM - 6:00 PM “Artificial Intelligence The HR Game Changer” “Artificial Intelligence The HR Game Intelligence - The HR Game Changer” Keynote Session: Dennis Koerner, -Ph.D. 7:45 PM - 9:15 PM Opening Night Wednesday 10/24 Wednesday 10/24 “Artificial Intelligence - The HR Game Changer” Coco Cay, Bahamas Coco Cay, Bahamas

Dennis W.W. Dennis Koerner, Ph.D. Koerner, Ph.D. Dennis W. Koerner, Ph.D.

Cindy Olson Cindy Olson Cindy Olson

7:00 AM - 5:00 PM 7:00 AM - 5:00 PM

Wednesday 10/24 Thursday 10/25 Thursday 10/25 Coco Cay, Bahamas

7:00 AM - 5:00 PM Keynote Session: Cindy Olson, 8:00 AM - 9:30 AM Keynote Session: Cindy Olson, 8:00 AM - 9:30 AM Former CHRO for Enron & Founder of Choice Strategic Alliance Thursday 10/25Former CHRO for Enron & Founder of Choice Strategic Alliance

“The Collapse ofof a Culture . . .. ..Lessons from Enron” “The Collapse aaCulture ..Lessons from Enron” “The Collapse of Culture . Lessons from Enron” Keynote Session: Cindy Olson, 8:00 AM - 9:30 AM Session Speaker: Kim Hodges, 9:45 AM - 11:00 AM Former CHRO for Enron & Founder of Choice Strategic Alliance Session Speaker: Kim Hodges, 9:45 AM - 11:00 AM Shareholder Ogletree “The Collapse of a Deakins Culture . . . Lessons from Enron” Shareholder Ogletree Deakins “Risk Management Managing Expenses” “Risk Management Legal Expenses” “Risk Management ManagingLegal Legal Expenses” Session Speaker: Kim Hodges, - Managing 9:45 AM - 11:00 AM

Session Speaker: Cynthia Thompson, 11:15 AM - 12:30 PM Shareholder Ogletree Deakins Session Speaker: Cynthia Thompson, 11:15 AM - 12:30 PM Editor | Publisher HR Professionals Magazine “Risk Management - Managing Legal Expenses” Editor | Publisher HR Professionals Magazine

M.M. Kimberly Kimberly Hodges Hodges M. Kimberly Hodges

“How toto Conduct anan HR Audit forfor Maximum Conduct HR Audit Maximum Compliance” “How Maximum Session Speaker: Cynthia Thompson, 11:15 AM Compliance” - Compliance” 12:30 PM Session Speaker: Melva Tate, 1:30 PM - 2:45 PM Editor | Publisher HR Professionals Session Speaker: Melva Tate, Magazine 1:30 PM - 2:45 PM Tate & Associates Strategic HR Partnerships “How to Conduct an HR Audit for Maximum Compliance” Tate & Associates - Strategic HR Partnerships “Innovation Think Diversity” 101: Think Diversity” “Innovation 101: Think Diversity” 1:30 PM - 2:45 PM Session Speaker: Melva 101: Tate,

Session Speaker: William Carmichael, Ed.D, Tate & Associates - Strategic HR Partnerships Session Speaker: William Carmichael, Ed.D, Campus Dean, Strayer University (ret) “Innovation ThinkUniversity Diversity” (ret) Campus Dean, 101: Strayer “Working with Virtual Teams” with Teams” “Working with Virtual Teams” Session Speaker: William Carmichael, Ed.D, Campus Dean, Strayer University (ret) Friday 10/26 Friday 10/26 “Working with Virtual Teams” Dock inin Miami, Florida Dock Miami, Florida Friday 10/26

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

3:00 PM - 4:15 PM 3:00 PM - 4:15 PM

3:00 PM - 4:15 PM

7:00 AM 7:00 AM

ToTo register oror obtain more information - Visit our website: register obtain more information - Visit our website: 7:00 AM www.HRCruise.com www.HRCruise.com

Dock in Miami, Florida

Melva Tate, Melva Tate, PHR, CLC PHR, CLC Melva Tate, PHR, CLC

William “Bill” William “Bill” Carmichael, Ed.D Carmichael, Ed.D William “Bill” Carmichael, Ed.D

To register or obtain moresubmitted information Visit our Business website:Credits The conference has been for-8.0 HRCI

The conference has been submitted for 8.0 HRCI Business Credits and forfor 8.08.0 SHRM Professional Development Credits (PDCs). and SHRM Professional Development Credits (PDCs).

www.HRCruise.com

The conference has been submitted for 8.0 HRCI Business Credits and for 8.0 SHRM Professional Development Credits (PDCs).

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Highlights from the 2018 SHRM Conference & Exposition in Chicago June 17-20

Fun Facts About the Conference • The

largest HR conference in the world

• Approximately

17,000 attendees

•

Last held in Chicago in 2013

•

ver 700 exhibiting companies O occupying 115,000 net square feet. Of them 250 were exhibiting for the first time.

• Approximately

1

2

1,000 member

volunteers •

66 hotels booked

•

47,000 hotel rooms used

•

30,000 box lunches were served

• The

3

Conference sold out!

2 019 SHRM Conference & Exposition is in Las Vegas June 23-26.

•

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www.HRProfessionalsMagazine.com

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5

1 Johnny C. Taylor Jr., SHRM-SCP, president and chief executive officer of SHRM, spoke at a press briefing Monday during the conference.

2 Jeb Bush, former governor of Florida was the opening keynote speaker on Sunday. He discussed “Leading in an Environment of Disruptive Change.” 3 Oscar Muñoz, CEO of United Airlines, was the keynote opening speaker on Monday. He spoke on “Listening, Learning, Leading: How to Build a United Team.” 4 Special thanks to WGU for sponsoring the opening session on Monday. See WGU Tennessee educational opportunities for HR professionals on Page 33. 5 Adam Grant, NY Times best-selling author and professor, The Wharton School of Business at the University of Pennsylvania, was the keynote speaker on Tuesday. His topic was “Givers Take All: Creating a Culture of Productive Generosity.” 6 Coretha Rushing, SHRM-SCP, senior vice president and chief people officer at Equifax, Board Chair for SHRM.

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8

10

12

14

15

7 Sheryl Sandberg, Facebook’s chief operating officer and founder of LeanIn.org, was the closing general session keynote speaker on Wednesday. Her session was a “fireside chat” format in which she discussed the need for workplace policies that work for today’s families. 8 Mike Aitken, senior vice president of government affairs, was a mega session speaker on Sunday.

His topic was “Tsunami or Wave: 9 The Washington Outlook for HR Public Policy.” 9 Lisa Horn, SHRM vice president of congressional affairs, provided an update on “the Workflex in the 21st Century Act,” at a press briefing Sunday during the conference. 10 Dr. Wayne F. Cascio, professor of management at the University of Colorado Denver, with Dr. Alex Alonso, SHRM-SCP, SHRM Chief Knowledge Officer, at the certification party 11 Jonathan Segal, partner, Duane Morris LLP, led a workshop Saturday on 11 “Investigating Sexual Harassment Claims.” 12 Rue Dooley was the emcee for the Smart Stage during the conference. 13 Greg Hare, employment attorney with Ogletree Deakins Law Firm, presented “Managing Within the Law: Basic Highlights of What Every Manager Should Know about Employment Law” on Sunday. 14 Daniel Goleman, author, psychologist, presented “What Makes a Leader: Emotional Intelligence and the Keys 13 to High Performance in a mega session on Tuesday. 15 James L. McDonald, managing partner, Fisher & Phillips LLP, discussed “Political Correctness at Work: How Much is Too Much?” at a mega session on Tuesday. 16 Pentatonix was the Tuesday night entertainment.

They are three-time Grammy Award winners and multi-platinumselling artists. They have sold nearly 10 million albums worldwide and performed for hundreds of thousands of fans at their sold-out 16 shows across the globe.

Check out our Facebook Live Interviews with Liz Supinski, director Data Science SHRM Research; and Elissa O’Brien, chief membership officer at SHRM, on www.facebook.com/hrprofessionalsmagazine.

www.HRProfessionalsMagazine.com

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Ethics…Values…Integrity…

Keeping Trust in the Forefront

By JUDY BELL

Trust is the basic foundation for healthy relationships, effective communication, the retention and motivation of employees, and most importantly… is the catalyst for the discretionary energy that employees put forth in their work. Discretionary energy is the extra effort and passion that employees voluntarily invest in their work…even when no one is looking.

G

“Truthiness” Definition: Truth that comes from the gut, not the books.

Having trust in the workplace allows for increased cooperation, creativity, confidence, and communication… all very important to the success of your business!

• Greed- The drive to acquire or possess more and more and more • Speed- The drive to cut corners • Laziness- To take the path of least resistance

Regular conversations and an emphasis on training help ensure that we keep our focus on ethical actions and keep TRUST strong.

• Haziness- Acting and reacting without thinking Stephen Covey said that trust is like a bank account in that you make both withdrawals and deposits. He lists 13 Behaviors of Trust; 1. Be honest

takes years to build, seconds to break and forever to repair.

Leadership is truly modeled from the top down.

As Leo Buscaglia says, “It is not possible for you to influence others to live on a higher level than that on which you live yourself.” Most people enjoy being around people and doing business with companies with whom they associate success and integrity. Ethical decision-making is much larger than the law. Laws are man made and are important. Being ethical is what you are doing when no one is looking. Ethics, Integrity, and Morality are the virtues that come into play when there is little chance of being caught acting in unethical ways!

• It is easier to ask forgiveness than to ask permission Things to Watch for…

trust

Productivity and financial success come easily to a company when there is a strong foundation of trust. The importance of trust has been taught and written about for ages. Aristotle wrote of the importance of “ethos” in his work, the Rhetoric.

He defined ethos as the level of trust held by the listener for the speaker. Three foundational values from Aristotle’s Rhetoric are Ability, Integrity, and Goodwill/Benevolence.

• That’s “good enough”

2. Demonstrate respect 3. Create transparency 4. Right your wrongs 5. Show loyalty 6. Deliver results 7. Get better

The Ethics Checklist • Is it legal? Will I violate the law?

• Is it balanced? Is it morally fair to everyone?

If I win, does someone else lose?

8. Confront reality 9. Clarify expectations 10. Practice accountability 11. Listen first

• How will it make me feel about myself?

What if the media publishes it?

12. Keep commitments

The Ethics Guide

So… What’s in your bank account?

13. Extend trust

• Let your conscious be your guide • Let your promises be your guide • Let your heroes/she-roes be your guide • Let the rules be your guide Responsibility versus Rationale It is important to take responsibility for your actions instead of making excuses or “rationalizing.” It is equally important to have accountability in your company and with your direct reports to make “responsibility” an important action verb and a corporate virtue!

How to keep ethics in the forefront at your organization ➢ Talk about ethics, trust, and ethical behavior and keep it alive. ➢ Hold people accountable. Zero tolerance! ➢ Lead by example… You earn the right to expect others to perform with integrity. ➢ Everything counts! Use your organization’s values to make decisions. ➢ Hire and Fire by your company’s values. ➢ Train, Train, Train!

These don’t work: Loss of Trust…

• Everyone else does it

Perhaps the greatest risk we face when we live as individuals and companies operating outside of integrity is the loss of trust. Loss of trust breeds suspicion and cynicism.

• They will never miss it

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• No one will ever know • I don’t have time to do it the right way

Judy Bell, SHRM-CP, PHR Judy Bell Consulting judy@judybellconsulting.com www/judybellconsulting.com

– David, Aquatic Custodian

“I can’t believe they pay me to do this.”

It’s a beautiful thing when people love what they do.

ADP provides easy and accurate payroll and HR solutions so your workforce can spend less time wondering about their paychecks and more time loving how they earn them.

ADP, the ADP logo and ADP A More Human Resource are registered trademarks of ADP, LLC. Copyright © 2018 ADP, LLC.

Department of Labor Releases Three New Opinion Letters

By JAMES B. TAYLOR

Earlier this year, the Department of Labor (the “DOL”) resumed its long-dormant process of issuing Opinion Letters. Opinion Letters serve to answer employers’ questions on issues where the relevant federal laws do not provide a complete answer for a given scenario. The DOL’s Opinion Letters are not laws or regulations, but they are strong indicators of the DOL’s current policy and position regarding similar issues. On April 12, 2018, the DOL issued three new Opinion Letters: these Opinion Letters concern the Fair Labor Standards Act (“FLSA”), the Family Medical Leave Act (“FMLA”) as it relates to the FLSA, and the Consumer Credit Protection Act (“CCPA”).

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Opinion Letter FLSA 2018-18 – When Is Employee Travel Time Compensable?

In this Opinion Letter, the DOL outlines three different scenarios involving non-exempt employee compensation for travel time. See Op. Ltr. FLSA 2018-18 at 1. In the first scenario, an employee with an everchanging work schedule travels on Sunday evening by airplane to attend company training beginning on the following morning. In addressing this scenario, the DOL first notes the general rule that “compensable worktime generally does not include time spent commuting to or from work.” See id. at 2. However, where an employee must travel in the course of employment, his or her travel time is compensable, as long as the travel occurs during the employee’s “normal working hours” (which include weekends, even if the employee only works weekdays). In contrast, travel time by the employee outside of his or her normal working hours (i.e. overnight, where the employee typically works days) is not compensable if that travel occurs “as a passenger on an airplane, train, boat, bus, or automobile.” Id. Here, this question is complicated by the employer’s claim that its employee has no normal working hours due to a wildly fluctuating schedule. However, the DOL advises employers that it generally will not accept such claims. See id. Instead, to determine an employee’s normal working hours, the DOL suggests the employer review the employee’s last month of time records, even if they are highly varied, and to treat these hours as the employee’s normal work hours in computing compensable travel time. Id. at 3. Alternatively, the employer may set the employee’s work start and end times prospectively and consider those hours to be the employee’s normal work hours for this purpose. Id. In addition, employers and employees “may negotiate and agree to a reasonable amount of time or timeframe in which travel outside of employees’ home communities is compensable.” Id. at 4.

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Further, the DOL was asked whether an employee who is working at a remote location must be paid for the travel time between the remote location and the employee’s hotel. Id. In response, the DOL said it would consider such time as no different from work-to-home travel, which is non-compensable. Id. The Opinion Letter also involves a scenario where hourly technicians, using a company vehicle, travel from their homes to the office to get job itineraries before traveling to the customer location. See Id. at 4.

The question here is whether such technicians who “drive from home to multiple different customer locations on any given day” should be compensated for the time spent going and coming from their homes. Id. In its response, the DOL first re-states the general rule that “compensable worktime generally does not include time spent commuting between home and work, even when the employee works at different job sites.” Id. However, the DOL noted that an employee’s travel from jobsite-to-jobsite is definitely compensable time. See Id. at 5.

TIPS FOR EMPLOYERS: Remember that, for hourly employees, travel time is compensable if it falls within the employee’s normal working hours, regardless of the day of the week. If you are not sure how to account for an employee’s normal working hours, review that employee’s time entries for the past month and try to set an average working schedule for that employee – even if that schedule may vary going forward. For new employees, establish start and end times for work to establish normal working hours. Remind employees that travel to and from home, whether in company vehicles or not, is not compensable time, even if “home” is a hotel near a remote worksite location

2

Opinion Letter FLSA 2018-19 - Must 15-minute Rest Breaks Required Every Hour by an Employee’s Serious Health Condition be Compensated?

In this Opinion Letter, the DOL is asked whether “a non-exempt employee’s 15-minute rest breaks, which are certified by a health care provider as required every hour due to the employee’s serious health condition and are thus covered under the FMLA [Family and Medical Leave Act], are compensable or non-compensable time under the FLSA [Fair Labor Standards Act].” See Op. Ltr. FLSA 2018-19 at 1.

In answering this question, the DOL first turns to the baseline test for what is or is not compensable break time, which it describes as “[w]hether [the time] is spent predominantly for the employer’s benefit or for the employee’s.” Id. In its discussion, the DOL noted that short breaks up to 20 minutes are often beneficial to the employer, as they promote employee efficiency. Id. On the other hand, the DOL recognized that “accommodation breaks,” or several breaks taken during a workday to address an employee’s medical issues, are not compensable, as these breaks benefit the employee. Id. at 2. However, the DOL stated that the FMLA employee is entitled to paid breaks to the same extent that other employees are provided paid break time. Id. at 3.

TIPS FOR EMPLOYERS: This section relates only to the compensability for medically-required break times and does not affect whether an employee is entitled to reasonable accommodations for medical conditions. The key point here is to provide paid breaks for employees who need numerous breaks in the same fashion that paid breaks are given to other employees. However, in the case noted above, where an employee needs many additional breaks per day, the FLSA does not entitle the employee to compensation for those additional breaks, even if they are a required accommodation or otherwise required by FMLA.

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Opinion Letter CCPA 2018-1NA – Which Lump-Sum Payments to Employees are Considered “Earnings” for Garnishment Purposes Subject to Limitation by the Consumer Credit Protection Act?

In this final Opinion Letter, the DOL addresses the question of which lump-sum payments to employees are considered “earnings” for garnishment-limitation purposes under the Consumer Credit Protection Act (“CCPA”). See Op. Ltr. CCPA 2018-1NA. The impetus of this Opinion Letter arises from widespread uncertainty in various states regarding which types of payments the CCPA garnishment limits apply to, or whether they are applicable to lump-sum payments from employers to employees. See id. at 1. The CCPA provides limitations on amounts that can be garnished from payments made to employees and is enforced by the DOL. In addressing this topic, the DOL notes that under the CCPA, “earnings” are defined as “compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.” See id. at 3. That is, the relevant test regarding CCPA coverage is “whether the payment is for services provided by the employee, rather than the frequency of the payment.” Id. at 3.

The DOL specifically lists the types of lump-sum payments that, as “earnings,” fall within the protections of the CCPA: commissions, discretionary and nondiscretionary bonuses, productivity or performance bonuses, profit-sharing, referral or sign-on bonuses, moving or relocation incentive payments, attendance, service, or safety awards, cash

awards, retroactive merit pay increases, holiday pay, termination pay (where tied to the length of the employee’s service), signing bonuses, and severance pay. Id. at 5.

The DOL further outlined a second category of lump-sum payments that may only partially be subject to the CCPA limits. These include workers’ compensation payments that are not attributable to reimbursement for medical expenses and the back- or unpaid wage portion of any settlement with an employee. Id. at 5. Only one of the many types of lump-sum compensation reviewed in the Opinion Letter is clearly noted as not being subject to the CCPA limits: the DOL provides that “[p]ayments to employees resulting from buybacks of company shares do not appear to be compensation for the employee’s personal services.” Id. TIPS FOR EMPLOYERS: Based on the guidance from the DOL above, it is clear that the frequency or “lump-sum” nature of a payment to an employee has no bearing on whether those funds are subject to the garnishment limitations provided in the CCPA. The primary question, instead, is whether the funds are “earnings” – that is, whether they are paid in exchange for the employee having done something of value for the employer. As noted above, the list of these types of payments that are not considered earnings is extremely limited, and most payments (periodic or otherwise) to employees in the employment context are likely considered earnings in some respect.

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

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13

So you cared about doing well? Tell me more about that.

GEN Z ENTERS THE WORKFORCE – WHAT ARE THEIR EXPECTATIONS?

By BRAD FEDERMAN and ARIS FEDERMAN

Today’s youth is too often misunderstood. While there are differences in generations, we tend to assume a great deal about others and stereotype them. Lazy, entitled, self-interested are all terms I have heard used to describe the younger generation. I have listened to discussions about how the younger generation has been coddled and have a strong sense of selfentitlement. However, I find them passionate, searching for meaning in their work, wanting to better themselves and desiring more than work in their lives.

I began to wonder. With all of the misunderstanding between generations and the judgment of our young workforce, what is it like for a young adult entering the workforce? What are their concerns? What do they look forward to? How do they adapt?

So I thought it would be good to dive into the mind of a younger worker.

Someone who had started their first real office job and ask them some questions. Luckily for me, I did not have to go far. I interviewed my son, Aris, on what it was like for him when he started working. I wanted to know what worked, what concerns he brought with them. But most importantly I wanted to know how he got past his insecurities and how companies can help new employees along the way. The following is the outcome of our conversation.

INTERVIEW What was it like to start your first job?

It was a daunting combination of excitement and nerves. You’re excited to be working, contributing, and making your way. However, there is a pressure to keep from screwing up on the first day, ha-ha. You’re thrown into a new space, with new people, and while it’s awesome joining a team, it can also be a bit overwhelming.

Were you open and upfront about feeling overwhelmed or just put your best face forward?

I put my best face forward. It felt like the smarter thing to do at the time. I was worried about appearing less competent than I knew I was.

Of course, this approach was completely detrimental and fear-based.

What were you excited about?

I was excited to meet my coworkers and start contributing. I’m a people person, so getting acquainted with the other people in the office sounded great to me. I was looking forward to contributing to the company and the team.

An office can have a lot of different personalities. Did you have any trouble adjusting to that or the office work environment?

Not really. I’m a somewhat social person, and I like getting to know different types of people. Adjusting to different kinds of people wasn’t a huge hurdle for me personally, but I can imagine how it could come across as daunting to other new employees.

What were your concerns?

My nerves didn’t manifest themselves in a single ‘concern.’ It was more of a daunting mass of ‘what ifs’ on the horizon that made me nervous going in. Uncertainty makes me uncomfortable, and there are a lot of unknown factors in any new experience. I also had a strong desire to do well, which in turn opened the door to the fear of disappointing someone on the job.

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Of course, I cared about doing well. Being new, you feel like you have something to prove. You feel an obligation to pull your weight. Not just so you can ‘keep your job’ but for the approval of everyone else in the office.

How did the anxiety impact you?

I found that I asked fewer questions, even when I genuinely needed clarification on something. I didn’t want to disappoint or appear uninformed, although the questions I needed to ask were reasonable inquiries.

How did not asking questions for clarification impact your ability to get work completed?

I’d take longer than I had to on specific tasks. Instead of asking for clarification on things, I’d figure them out my way through trial and error. It wasn’t efficient.

How did you overcome it?

I had to take a second and realize that I was my own worst enemy. By not asking questions to appear more informed, I was keeping myself from becoming informed. Once I realized how stupid I was being and how my anxiety was becoming a detriment to me, I worked to change my behaviors.

What made you realize you were your own barrier to success?

I can’t say I had a wakeup call moment. Eventually, I just took a breath, told myself I was being stupid and confronted my anxiety.

What tips would you give someone entering the workforce for getting past the nervousness or anxiety of the unknown?

Communicate. If you don’t communicate, you can’t solve problems or work through your anxieties. Be upfront about questions. You have to remember that nobody there wants you to fail. That wouldn’t be in the best interest of the company.

What can a manager or company do to help people who are entering the workforce?

I’m not sure how to answer this one. I’d say communication is a must. Without it, it’s impossible to identify problems like anxiety in a workplace. Not everybody is going to speak up when they’re nervous.

I feel like a comfortable environment where open communication is encouraged would be of great benefit to new employees.

INTERVIEW SUMMARY This interview got me thinking – odds are your office has people who are anxiety ridden. You will have new folks coming in who will suffer lower productivity, cause unnecessarily high employee turnover and a negative workplace attitude. The scariest part is, you’re likely not even aware of it. That’s because these are the symptoms of an often misrepresented and underappreciated workplace issue. We tend to judge people as we do different generations rather than understand and deal with the cause.

HANDLING WORKPLACE ANXIETY

Anxiety in the workplace is a somewhat familiar office detriment that is consistently undersold. But why? And how do you reduce anxiety in your workplace?

If your employees are suffering from work-related anxiety, stress, or depression, you probably don’t know about it. According to a poll taken by the Anxiety and Depression Association of America (ADAA), less than half of the employees suffering from anxiety will come forward and discuss it with their employer. This silence can stem from a number of reasons. Some employees are worried that their concerns won’t be taken seriously. Others are nervous that it might go in their file or that it could affect the possibility of a future promotion. Regardless of the reason, they are all symptomatic of a self-perpetuating cycle of work-related anxiousness which can only be broken through communication.

So the first step to resolving an anxiety problem is recognizing that there is one, which requires communication between you and your employees. Communication comes more naturally when you are approachable and have a degree of trust between yourself and your employees. Try to make the dialogue a ‘two-way’ event. Make it clear that you can be approached and are willing to accept ideas, thoughts, and concerns. Establishing this trust and conversation will not only reduce anxiety in the workplace but will encourage employees to be more open with you.

The environment also plays an integral role in work-related anxiety. There are several aspects of an employee’s work habits that might contribute to their stress. The modern employee feels an immense pressure to ‘keep up’ by always working harder and faster. This mentality can impose substantial burdens on an employee, which is why it is essential that they take steps to combat environmental stresses. Here are some ideas: 1) Take a walk.

Preferably outside. This is beneficial for two reasons. The average person spends a majority of their workday sitting at a desk. Our bodies are active by nature and need to be moved from time to time to keep up our mental health.

Studies show that as little as ten minutes of exercise can significantly reduce the stress of a workday. Heading outside is even better. Going outside forces an employee to take a deep breath, step away from work, and decompress.

Working late may seem like a good and efficient idea in the moment, but it can have some serious long-term effects. The less an individual sleeps, the more likely they are to experience stress and anxiety the next day. This can turn into a self-perpetuating cycle, as this anxiety can then affect an individual’s sleep the next night and so on. It is essential that employees don’t overwork themselves. One of the most basic and crucial foundations for mental health in the workplace is getting good sleep.

Anxiety can have some grave, adverse effects in an office environment.

New employees, especially young individuals right out of college need to know that they can trust their managers. To reduce anxiety from the get-go, it is important as a manager or supervisor to be approachable and to establish an open line of communication. Secondarily, environment plays a critical role in employee mental health. Be sure to encourage a healthy work environment to keep up morale and productivity. Little changes here and there can greatly improve the vibes in your office and can help make going to work a much better experience for yourself and your employees.

2) Change it up.

Routines can be great things. Structure helps people stay organized and efficient. However, the monotony of getting stuck in a daily routine or rut can eventually help contribute to workplace stress, which will lower productivity.

It can be very beneficial for an individual to change things up once in a while.

Whether this comes in the form of redecorating or trying a new place for lunch, it is clear that breaking monotony is good for morale.

3) Remember to rest.

STRENGTHENING BRANDS

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

Aris Federman, HR Training Assistant F&H Solutions Group afederman@fhsolutionsgroup.com www.fhsolutionsgroup.com

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15

EEOC v. Dollar General: A Case Study in Sexual Harassment Investigations

By LISA A. KRUPICKA

Every HR Manager is familiar with the Faragher/Ellerth affirmative defense available to employers in the event a sexual harassment complaint is made against a supervisor. In order to assert the defense, the employer must demonstrate that it acted reasonably to “prevent and correct promptly any sexually harassing behavior.” In this case brought by the Equal Employment Opportunity Commission (“EEOC”) against Dolgencorp, LLC, d/b/a Dollar General Stores, Inc., in the Northern District of Mississippi (Case No. 3:17- cv-23-MPM-RP), the court explored just exactly what that defense requires, with special emphasis on the word “promptly.”

Facts This case involved former sales associate Keoshal Hankins, who was hired by Dollar General to work in its Red Banks, Mississippi store in April 2012.

Ms. Hankins alleged that, almost from the day she started, she was sexually harassed by store manager Jonathon Holloway when they were alone in the store together. The alleged harassment consisted of sexual comments, gestures and text messages. Most of the alleged behavior is seriously obscene.

Of course there were no witnesses, but Mr. Holloway provided irrefutable proof of harassment by sending her obscene text messages, which she kept, with endearments like, “”I want to put my d*ck between your boobs and rub back and forth” and “I want to kiss your body and eat your p*ssy until you cum [sic] twice.”

INVESTIGATION After repeatedly asking Mr. Holloway to stop to no avail, on May 1, 2012 Ms. Hankins reported his behavior to assistant store manager Linda Foshee. Ms. Foshee immediately called the district manager Paul Grimes and told him what had happened. He told her he would “take care of it.”

On May 3, 2012, Ms. Foshee called the company’s confidential complaint line and reported Ms. Hankins’ complaint. Paul Grimes, the district manager, visited the store on May 18 and June 15, 2012. During the latter visit, Ms. Hankins showed Mr. Grimes the text messages. On June 16, 2012, well over a month since the initial report, an HR Manager came to the store to conduct an investigation. Yet, it was not until August 3, 2012 that Mr. Holloway was suspended pending the outcome of the investigation. Until that point, Ms. Hankins had continued to work alone in the store with Mr. Holloway. Mr. Holloway was finally terminated on August 15, 2012.

Motion for Summary Judgment

Dollar General moved for summary judgment, arguing that (1) the conduct was not sufficiently severe or pervasive enough to state a claim of harassment; (2) Dollar General was entitled to the affirmative defense because it had a policy against harassment, investigated Mr. Hankins’ complaints, and terminated Mr. Holloway. The district court was not impressed. In a decision rendered shortly before the case was set for trial, he denied summary judgment in an opinion dripping with contempt for Dollar General’s position.

The first argument was dismissed out of hand by the court after citing a “laundry list” of obscene comments, gestures and texts attributed to Mr. Holloway. The court also rejected Dollar General’s argument that it acted reasonably to prevent and correct promptly any harassing behavior. Dollar General placed great reliance on the existence of its detailed policy against harassment. The court observed that while the existence of such a policy is relevant to the affirmative defense, the company “essentially waves its anti-harassment policies in the air and would have this court ignore the manner in which those policies were actually carried out.”

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The court found that Dollar General could not avail itself of the affirmative defense because genuine issues of material fact remained as to whether Dollar General took prompt corrective action. The court noted that the company failed to act on two previous sexual harassment complaints against Mr. Holloway, thus leaving Ms. Hankins vulnerable to sexual harassment. The court also cited Mr. Grimes’ ineffective promise to “take care of it” when in fact he did nothing, even though he knew Mr. Holloway had two other sexual harassment complaints made against him.

Resolution Faced with a looming trial date and bad facts, Dollar General threw in the towel. As announced in the press release, and with the EEOC there is always a press release, the company entered into a consent decree in which it agreed to: • Pay Ms. Hankins $70,000; • Undertake mandatory sexual harassment training for all employees; • Undertake annual sexual harassment training for the store manager, district manager and human resources managers within the district of the Red Banks store; • Notify the EEOC of any further sexual harassment complaints and training efforts for 18 months.

Key Take-Aways What can we learn from this case? Plenty, including the following: 1. Train your managers and HR on a regular basis to recognize sexual harassment.

2. Heavily publicize your anti-harassment policy and ways of reporting harassment.

3. When you receive a complaint, your investigation should be both started and completed as promptly as possible while still being thorough.

4. Keep the complaining employee advised of the progress of the investigation if it is taking longer than anticipated.

5. Take steps to separate the complainant and the alleged harasser, with any inconvenience falling on the harasser.

6. After completing the investigation, take prompt action based on the results.

This should have been an easy case, both to investigate and resolve. The fact that it was not handled well reminds us how far we still have to go in preventing sexual harassment in the workplace.

Lisa A. Krupicka, Attorney Burch, Porter & Johnson, PLLC lkrupicka@bpjlaw.com www.bpjlaw.com

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17

2017 SHRM Excel Award Winners Announced Congratulations to the following chapters and state councils on receiving a 2017 Excel Award.

While applying for an Excel Award is not required, the award recognizes accomplishments and strategic activities and initiatives that enhance the human resources profession.

ALABAMA

KENTUCKY

176

Mobile SHRM

PLATINUM

365

SHRM-Bluegrass Chapter

SILVER

253

North Alabama Chapter of SHRM

PLATINUM

536 Four Rivers Society for Human Resource Management

GOLD

92 SHRM-Montgomery

PLATINUM

477

Tuscaloosa HR Professionals

PLATINUM

72

Birmingham SHRM

GOLD

635

Baldwin County SHRM

SILVER

700

Shoals Chapter - SHRM

SILVER

ARKANSAS

73

Louisville SHRM Inc.

PLATINUM

MISSISSIPPI 143

Capital Area Human Resources Association

BRONZE

196

Northeast MS Human Resource Association

BRONZE

508

Delta HR Management Assn.

GOLD

706

South Arkansas HR Assn.

SILVER

262

NE Arkansas SHRM

GOLD

90

Central Arkansas HR Association

PLATINUM

TENNESSEE

148

NOARK HR Assn.

PLATINUM

83

Middle Tennessee SHRM

PLATINUM

467

West Central AR SHRM

PLATINUM

387

SHRM Chattanooga

PLATINUM

347

Tennessee Valley HR Assn.

PLATINUM

713

West Tennessee SHRM

PLATINUM

FLORIDA Treasure Coast HRA

BRONZE

442 St Lucie County Human Resource Association

GOLD

388

ARKANSAS SHRM STATE COUNCIL, INC.

PLATINUM

GEORGIA SHRM STATE COUNCIL

PLATINUM

BRONZE

HR FLORIDA STATE COUNCIL, INC.

PLATINUM

KENTUCKY SHRM STATE COUNCIL

PLATINUM

TENNESSEE SHRM STATE COUNCIL

PLATINUM

GEORGIA 624

Foothills of Georgia

157

Northwest Georgia SHRM

GOLD

623

Southwest Georgia SHRM/Albany Chapter

GOLD

43

Central Savannah River Area SHRM

PLATINUM

622

Greater Henry County Chapter of SHRM

PLATINUM

112

Savannah Area SHRM

PLATINUM

128

SHRM - Columbus Area

PLATINUM

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19

Supreme Court Ruling on Masterpiece Cakeshop Case Does Not Address Discrimination

By ZACHARY W. HOYT

This month, the Supreme Court of the United States settled one of the most talked about controversies of the Court’s most recent term – the Masterpiece Cakeshop case stemming from a baker’s refusal to make a cake for a same-sex couple’s wedding reception. Justice Anthony Kennedy, writing for a sevenjustice-majority, ruled that the Colorado Civil Rights Commission violated the Free Exercise Clause of the First Amendment by failing to consider the case with religious neutrality.

In

2012, Charlie Craig and David Mullins (a same-sex couple) went to a bakery outside Denver named Masterpiece Cakeshop to order a cake to celebrate their upcoming wedding. At the time, Colorado did not recognize same-sex marriages, so the couple planned to wed in Massachusetts and to later host a reception for their family and friends in Denver. Jack Phillips, the owner of the bakery, refused to bake a wedding cake for the couple.

Phillips – a devout Christian – refused the couple’s request because he was not willing to design cakes that conflict with his religious belief that same-sex marriage is immoral. Phillips notably did not outright refuse to serve the couple. He offered to make the couple birthday cakes, shower cakes, cookies or brownies, but stated that he “just [didn’t] make cakes for same-sex weddings.”

The couple filed a charge of discrimination with the Colorado Civil Rights Commission alleging that Masterpiece Cakeshop discriminated against them because of their sexual orientation, in violation of the Colorado Anti-Discrimination Act (“CADA”). The Colorado Anti-Discrimination Act provides that it is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation to an individual or group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry. The law excludes “a church, synagogue, mosque, or other place that is principally used for religious purposes” from the definition of public accommodation.

The Colorado Civil Rights Division’s investigation found that Phillips turned away potential customers based on their sexual orientation on multiple occasions. Phillips had specifically stated that he could not create a cake for a same-sex wedding ceremony or reception because his religious beliefs prohibited it and because the potential customers “were doing something illegal,” because Colorado did not recognize same-sex marriages at that time.

Notably, Colorado law afforded storekeepers some latitude to decline to create specific messages the storekeeper considered offensive. In fact, as the state commenced enforcement proceedings against Phillips, the Colorado Civil Rights Division relied on this provision of the law in cases involving other bakers’ creation of cakes, finding on at least three occasions that a baker acted lawfully by declining to create cakes with decorations that demeaned gay persons or gay marriages.

The Issues at Stake The Supreme Court agreed to hear the case to decide whether applying state law to compel the shop owner to create expression that violates his 20

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sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment. The Constitutional implications of these issues is substantial and drew a huge amount of interest to the case.

In addition to the parties themselves, the Trump administration’s Solicitor General’s office intervened in the case, and forty-five other parties filed amicus briefs. Amici curiae briefs are “friend of the court” legal briefs filed by interested parties who are not directly involved in the case but have an interest in the legal issues. Here, a huge variety of individuals and organizations filed briefs, including municipal and state governments, politicians, trade and business groups, advocacy groups, and legal academics.

This case drew such substantial interest because of both the novelty and importance of the issues. First, is the creative act of designing and baking a cake speech protected by the first amendment? If it is, does the freedom to practice religion, combined with the freedom to be free from compelled “speech” override anti-discrimination laws when that discrimination is driven by sincerely held religious beliefs? While the Court would touch on these issues, the controlling majority-opinion deftly avoided settling them.

The Supreme Court’s Decision Writing for the Court, Justice Kennedy began his analysis by setting out some major points. First, “[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” and that the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights.

At the same time, the Court noted that the religious and philosophical objections to gay marriage are protected views and, in some instances, protected forms of expression. While these views are protected by the First Amendment, the Court emphasized that – in general – objections to gay marriage do not allow business owners to deny gay people equal access to goods and services under Colorado’s public accommodations law.

The Court continued by noting that it is entirely unremarkable that a clergy member would be able to discriminate based on their sincerely held religious beliefs. However, the Court warned, “if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.” The Court then went on to note that it is clear that religious beliefs could not justify refusing all services. But it is a closer call when, as here, providing service is tantamount to a demand to speak – that is, exercise the right of personal expression – for a message the speaker could not express in a way consistent with their religious beliefs. While the Court recognized the importance of these issues, it ultimately decided the case on other grounds.

First, the Court put Phillips’ refusal to bake the cake in the context of the state of the law at the time, noting that Colorado did not recognize same-sex marriages then, nor had the Supreme Court issued its landmark decisions on the issue. In addition, Colorado law specifically provided store owners to decline to create specific messages they considered offensive. With these factors in mind, the Court found that the disparities between how Colorado treated his religious viewpoint compared to non-religious viewpoints violated Phillips’ First Amendment right to free exercise of religion.

The Court’s analysis emphasized that Phillips “was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case,” but that consideration was compromised by the Colorado Civil Rights Commission.

The Court recounted public hearings that the Commission had conducted, including in particular, the statement of one commissioner:

I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be – I mean, we – we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others.

The Court then compared the Commission’s treatment of the baker in this case to the Commission’s treatment of other bakers who had refused to make cakes for same-sex couples.

The Court concluded that describing “a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical – something insubstantial and even insincere.” The Commis-

sion’s treatment of the case, the Court ruled, violated the state’s First Amendment duty to refrain from basing “laws or regulations on hostility to a religion or religious viewpoint.”

Practical Impact While there were many broad issues at play in this case, the Court’s narrow decision focused on the Commission’s failure to exhibit “religious neutrality” toward the baker and did not reach the core intersectionality of free speech, religious rights and existing nondiscrimination protections. In light of the change in same-sex marriage rights since the Colorado Civil Rights Commission’s decision, it is unclear if this decision will have any impact beyond the immediate facts of the case. However, that won’t stop legal scholars from trying to read the tea leaves. There are two key passages that suggest that, while Phillips and his bakery won the battle in this case, his cause may have lost the war. First, the Court’s strong statement that “the laws and the Constitution can, and in some instances must, protect [gay persons and gay couples] in the exercise of their civil rights.”

Second, the majority opinion was seemingly skeptical of expanding the First Amendment to cover custom public services such as baking a cake as speech. With this in mind, employers – whether places of public accommodation or not – should remain acutely aware of their nondiscrimination obligations in Colorado and any other state that prohibits discrimination based on sexual orientation.

Zachary W. Hoyt, Attorney Ogletree Deakins – Memphis zachary.hoyt@ogletreedeakins.com www.ogletreedeakins.com

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Does Sensitivity/Diversity Training Really Work?

By AUSTIN BAKER

“ Are we seriously going through another sensitivity training session?

We had one 3 months ago!”

The US Equal Opportunity Commission (EEOC) announced that 84,252 workplace discrimination charges were filed for the year 2017. On top of that, the average cost for a defense and settlement payment per discrimination case was $160,000 and it took, on average, 318 days for the claim to be resolved. Given these eyepopping statistics, many companies are taking strides to prevent this exposure through prevention-oriented training. However, we must ask ourselves the question: Is this actually effective, or is this JUST procedure?

A study published in the journal Contexts in November 2007 of 829 companies over 31 years showed that diversity training had “no positive effects in the average workplace.” Millions of dollars a year were spent on the training resulting in, well, nothing. Attitudes and the diversity of the organizations remained the same.

There are unpleasant truths many businesses must be prepared to confront before they can truly start talking about “a culture of collaboration.” Workplace hostility is cited by the Harvard Business Review as “the biggest reason why 52% of women in science, engineering and technology quit their jobs.” These are just two examples which demonstrate how many employees becomes victims of unsavory, unacceptable treatment.

Jeff Weintraub, an employment attorney at Fisher Phillips says that ” In my experience, the only sensitivity training that can effectively prevent future misbehavior by supervisors is training that clearly demonstrates what the supervisor has to lose. For instance, sexual harassment violates company policy, so the supervisor needs to understand that engaging in sexual harassment of employees will result in termination, not to mention the potential that the supervisor could end up in a divorce. However, while fear can be an effective way to change misbehavior by supervisors, fear is never desirable, nor is it even necessary; mentoring supervisors is a far better mechanism to truly change patterns of behavior and prevent bad behavior.”

This is a huge issue. What’s a business to do? We can start by analyzing the pros and cons of sensitivity training.

The Pros:

For sensitivity training to effectively foster an environment of mutual respect, it is helpful to present a framework that defines what is right and what is wrong. This establishes a set of explicit rules for acceptable employee conduct, and it sets a strong tone that allows people to operate mindfully. This also helps companies avoid the awkward instance in which someone oversteps boundaries, requiring management to step in to respond and repair the damage done.

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Protected Classes The EEOC offers employers advice about what restrictions they can and cannot place on employees, including what questions they can and cannot ask in job interviews. This advice is to prevent protected classes from being discriminated against.

For example, if an employer wants to put weight restrictions on employees, then he should be able to show that weight is an important issue, such as in the job of airline steward. Asking about weight can seem insensitive to people struggling with their weight management especially. Managers who have gone through sensitivity training are more likely to conduct interviews in a sensitive manner and avoid lawsuits against the company.

Preventative Lessons Sensitivity training for employees helps people understand each other and get along, both in the business world and in their personal lives.

Employees learn valuable skills in sensitivity training that benefit the business, but they can also take these skills with them through life. They learn appropriate conflict resolution techniques, such as focusing on the facts of the conflict and not personal differences.

They learn to be non-judgmental and are taught to be tolerant for diversity. They also improve their communication skills.

The Cons:

Diversity training has been consistently yielding flawed results. A combination of defenses, and retaliatory behaviors are the main reasons why these programs can yield neutral to negative responses.

Role of Defenses: One of the problems with sensitivity training lies in the way psychological defenses are dealt with by the group. Most frequently, the individuals with the “problem” are openly attacked. Once his or her weaknesses are exposed, the group converges on them in an attempt to lay the problem completely open. Due to this, the “problem” person instinctually builds barriers around his or her behaviors and barricades themselves out of pure psychological necessity.

These barriers often lead to an impenetrable insistence of them refusing to believe they must be trained, or irrationally continue on with their reckless behavior.

Adverse Effects: Sensitivity training, as a job pre-requisite or intervening action, tends to create resentment towards minorities, or sets them up (or the offenders up) as the butts of jokes, all of which downplays the severity of the issue. Many reports note that diversity training simply does not work at all. Slate’s Brian Palmer suggests, “It’s nearly impossible to undo any underlying racism in a few hours. Most importantly for the employer, the session provides some legal and public relations cover.”

The newer way of handling diversity and sensitivity issues: Mentoring Mentoring is a more convening way to engage managers and employees to chip away at their biases.

In teaching their protégés job skills and sponsoring them for key training and assignments, mentors give their protégés the assistance they need to develop and advance. The mentors then come to believe that their protégés merit these opportunities, whether they’re white men, women, or minorities. That is cognitive dissonance — “Anyone I sponsor must be deserving”—at work again.

Mentoring programs make companies’ managerial echelons significantly more diverse. On average they boost the representation of all minorities from 9% to 24%. Mentor programs put aspiring managers in contact with people who can help them move up, both by offering advice and by finding them jobs and advancement opportunities. Such programs can provide women and minorities with career advice and vital connections to higher-ups.

Strategic Hiring Organizations can be more proactive about developing a discrimination-free environment by recruiting a team that is open-minded and values mutual respect. Ultimately, whether a business implements formal sensitivity training programs or not, the main goal should be to foster a workplace where peers demonstrate mutual respect, and ignorance is not an excuse for unfair treatment. Often, organizations reach out to industrial organizational or human resource consultants to create turnkey program and assessments in bringing these values out during the entire onboarding process.

A Call to Meaningful Action In conclusion, as businesses have evolved, so have the practices designed to counter detrimental workplace behaviors. Organizations and HR departments must move on from the standard “preventative/intervening procedures” to meaningful efforts that eliminate biases in the workplace and at their very foundation. Without a cultural shift in organizational mindset, many HR professionals and executives will find themselves back at square one with their employees moping, “ANOTHER sensitivity training session!?”

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

A veteran of more than 16 years in the human resources and insurance & benefits industry, Baker is responsible for managing a mutlifaceted human resources consulting company with public workforce programs and services focused on companies in the southeastern United States.

Austin is a frequent speaker on a variety of leadership and benefit topics representing thought leadership and innovative practices in the HR industry. For more information, call Baker at 1-866-822-0123, visit www. hro-partners.com or connect with the company at www.facebook.com/hropartners, http://www. linkedin.com/in/jaustinbaker or http://twitter. com/jaustinbaker. hropartners

jaustinbaker

@jaustinbaker

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ANATOMY OF A SOLID HIRING PROCESS

By JULIE HENDERSON

Once HR has a thorough understanding of the existing laws and regulations…

DECIDE RELEVANT CRITERIA The hiring process won’t be the same for every person that’s interviewed and considered. Evaluate each position and decide what is important to know about the applicant for that specific job. What education, training, and experience is necessary for success in the open position?

For example, some positions will not require a credit check. It may be imperative in other positions to verify employment, or to conduct a motor vehicle search. Review your process to make certain it is fair and relevant for each position.

REVIEW GAPS AND MAKE ADDITIONS

Nothing stays the same for long, and the attracting, recruiting, and hiring of employees are no different. Changing industry trends, as well as access to additional valuable informational resources, are valid reasons for a company to review their employment screening policies. In addition, the current legislative climate is pushing through new regulations about hiring across the country that affect what is and is not a compliant and legal process.

Take a hard look at the parameters already in place and compare them to what is needed. Ask yourself what information would help hire the best employee. Think about interview questions and background screening reports. What needs to be added to paint a thorough picture of the applicant, while still being fair to the job seeker? Integrate new standards into the current process to plug the holes and build it into a stronger, more effective policy.

TRAIN HIRING MANAGERS It’s critical for those involved in recruiting, interviewing, and onboarding to be well-trained on the required processes. Hold a meeting to introduce the changes and create a written plan they can refer to at their convenience. Clearly state that the policy is required for every single interview and new hire and must be consistently followed.

HR professionals need to be familiar with their current policy

ADVERSE ACTION PROCEDURE

and consistently review it to keep it fair, relevant, and effective.

It’s not acceptable to choose not to hire a person based on what is returned in their background check report without addressing it with them. When deciding not to hire a person based in whole or in part on information obtained from their background screen, send a pre-adverse action letter, followed by an adverse action letter after a period of 5 to 7 business days. Do this every time. This notifies the applicant there is adverse information showing up in their background and gives them the chance to dispute the data if it’s erroneous. (Organizations do not have to keep the position open during the dispute process.) This simple correspondence helps maintain your company’s hiring compliance and protects you from costly litigation down the road.

Here are six points of action that are a foundation for a solid hiring process.

THE CURRENT POLICY Smart HR professionals understand the intricacies of the way their organization conducts its hiring process. What is in place NOW. The steps, interviews, decision criteria, and applicant follow up are all important to understand. Make sure to know the type of interview questions being asked and which background check reports are being run for each position.

Quiz the hiring managers on the policy. Unfortunately, there could be cases where the perception is the process is being followed, but the people involved in hiring are not as educated on it as hoped. This scenario can lead to discriminatory hiring practices and lawsuits.

BE AWARE OF YOUR STATE’S LAWS Ban-the-box, prohibiting credit reports from being used in hiring, and regulating salary inquiries are all recent rules that have been passed by more than one municipality. These laws originate from different levels of government; some local, some state, and some federal. HR must make certain to practice compliance with the laws of the city and state, and all the states where the organization conducts business or employs people.

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Hiring high-quality employees that perform well is a challenging, ever-changing process. Companies that fail to review and edit their recruiting and hiring policies are sure to fall behind and become less competitive, especially in the current low-unemployment environment they are competing in today. By analyzing the hiring process, training the hiring managers well, and maintaining consistent procedures that are relevant and fair, HR professionals maximize the chances of ending up with employees who are well-educated and prepared to do an exemplary job.

Julie Henderson, Director of Sales Background Screening Division Data Facts, Inc. jhenderson@datafacts.com www.datafacts.com

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Do Good Audits Exist?

Minimizing Damages in FLSA Cases

By DAVID KLASS

Tax

season is in the rearview mirror, and you can only hope that the IRS will not take a second look at what you filed. Perhaps the only thing worse than completing your tax returns is finding out that you’re being audited. Common responses to undergoing an audit may involve gnashing of teeth, pulling of hair, and other forms of selfinflicted minor violence.

But not all audits are bad. (Well, maybe all tax audits are bad.) Under the federal Fair Labor Standards Act (FLSA), conducting an internal audit of your company’s pay practices may save your company money in the unfortunate event that a court finds an FLSA violation.

A good example of the challenges faced by employers when classifying workers is determining the employee’s “primary duty.” Under U.S. Department of Labor regulations, “primary duty” is vaguely defined as “the principal, main major, or most important duty that the employee performs.” Employers must consider several factors—such as the amount of time spent performing exempt tasks, the employee’s freedom from supervision, and the employee’s wages compared to nonexempt employees—to determine whether the employee’s “primary” duty supports an exemption. The result is a complicated, highly fact-specific analysis.

FLSA Compliance Can Be Challenging

What Is An FLSA “Audit”?

The FLSA, of course, is the federal law that establishes wage and hour requirements like minimum wage and paying overtime. The FLSA’s overtime requirement in particular provides a challenge to employers. The basic rule is fairly straightforward: most employees must be paid at a rate of one-and-a-half times their “regular rate” for hours worked over 40 hours in a workweek. But what appears simple at first can, in fact, make compliance challenging.

Self-initiated wage and hour reviews, or “audits,” can take several forms. Generally, audits will entail a review of documentation related to the positions under review, such as job descriptions, pay records, and pay plans. At times, companies administer these self-audits on their own, or they could enlist the assistance of trained employment lawyers to conduct the review. Audits may involve conducting interviews of human resources personnel and higher-level management. At the conclusion of the audit conducted by legal counsel, your company will typically receive a legally privileged written assessment of the audit’s findings.

For example, one of the more complex aspects of the FLSA is determining the dividing line between which employees are or aren’t entitled to overtime pay. In FLSA-speak, this line is between non-exempt employees (those entitled to overtime) and exempt (those not entitled). While the FLSA contains various exemptions, the exemptions most commonly relied upon are the executive, administrative, and professional exemptions.

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Should My Company Conduct an Audit?

The Bottom Line

An audit may lessen your company’s exposure to liability under the FLSA. On the front end, conducting an audit—whether it reviews one position, all classifications, or the timekeeping and related pay practices of a company—will help identify violations and gray areas so that a company can engage in a meaningful analysis and make informed decisions. On the back end, an audit may show good faith to a court that your company attempted to comply with the FLSA even if the pay practice ultimately is found to have violated the law.

Of course, conducting a wage and hour audit, even one with the assistance of knowledgeable legal counsel, cannot undo the past. But it can put you in a better position going forward. Not only may it eliminate liability going forward in most scenarios where you make changes, but it could reduce liability should the audited practice ultimately be deemed improper because your company acted in good faith in seeking to comply with the FLSA.

Specifically, employees who successfully bring FLSA actions often are entitled to liquidated damages equaling their actual damages. If a company can show it acted in good faith, possibly by relying upon the advice of legal counsel after a wage and hour review is conducted, it may be able to avoid some or all liquidated damages.

Accordingly, you should consider many factors before deciding to move forward with a wage and hour review. For example, you may want to consider the following:

While a wage and hour audit is not necessary or appropriate in every circumstance, making a good faith effort to comply after the review has been conducted may save you greatly if the issue is later contested. That is, you may find that not all audits are bad, and some can actually even be beneficial to your business.

• Do you have uncertainty regarding whether your company has properly classified some of its employees or whether your company’s pay practices comply with the FLSA? • Do you believe that your company has a higher-than-normal legal risk of a group of employees bringing an FLSA collective action to challenge their classification status or the pay practices of your company?

• Can your company afford the risk? Keep in mind that where a group of employees band together in a collective action, damages can quickly climb to millions of dollars.

David Klass, Of Counsel Fisher Phillips dklass@fisherphillips.com www.fisherphillips.com

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

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Direct Primary Care: What is Old is New Again

By CHRIS DAVIS

In

the early 1900s, if someone was sick, they went to the local doctor. In some cases, the doctor made house calls and often was the gatekeeper for that person’s medical needs. With the growth of medical insurance and other intermediary entities, primary

care physicians (PCPs) began to see their role as gatekeeper being diminished due to numerous factors, including burdens related to filing insurance claims in a fee-for-service arrangement and the need to be within a broad medical network in order to have a patient pipeline. A small but growing trend is the rise of direct primary care (DPC) physicians, which alter the care model and financial model of healthcare in considerable ways.

Instead of being in a medical network and receiving a payment for each procedure in a fee-for-service arrangement, these DPC doctors instead charge a monthly membership fee, usually between $50 and $100 per month, depending on the geographic market. In the traditional fee-for-service arrangement, the doctor had to stack their days full of appointments in order to drive revenue, largely at the expense of losing face-to-face interaction with each patient and creating a back-log for scheduling. In the DPC model however, the member receives access to routine checkups, same-day or next-day appointments and even a variety of medications and lab tests at or near wholesale prices. In some cases, depending on the DPC provider, you may even get after-hours access to your doctor via video chat or phone call. In some employersponsored relationships, the PCP actually provides care at the worksite for enrolled members or makes house calls. All of these services are done via the monthly subscription fee with no additional co-pays associated with care. All doctorborne expenses are usually provided at wholesale with a slight markup, but significantly lower than what is paid in a fee-for-service model.

This personalized touch is possible because patient loads at DPC practices tend to be between 500 patients to less than 1,000 patients per practice. Most fee-for-service PCPs who are in multiple commercial medical networks have patient load of over 2,000 patients.

For employers sponsoring this form of benefit, there are a few areas that need to be properly addressed: while DPC is good for basic office visits and discount drugs, if an employee has a major medical issue, their expenses won’t be covered under this arrangement because DPC is not an insurance policy. When an employer adds a DPC option 28

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to a benefit plan, the employer must combine DPC with some form of traditional network or access to wrap around the DPC that covers larger ticket medical expenses and hospitalization coverage, alongside pharmacy benefits management for drugs that could not be distributed or administered at the primary care level.

Monthly membership is often around anywhere from $50 to $100 for an individual. Meanwhile, a large family might be able to get a discount and pay $150 or more each month. DPC differs from concierge care, as DPC’s primary form of compensation is in the monthly subscription fee plus a minimal markup on supplies and medications. Concierge medicine, while providing personalized attention, does however file in a fee-for-service manner with insurance unless otherwise specified.

The net benefit to the employer is the ability to provide a capitated fee to primary care physicians who are singularly focused on the care and health of fewer members with a greater attention to detail. When a DPC practice is engrained with an employer, it creates the capacity to: • Create stronger measurement of improved health outcomes for chronically ill members with lifestyle-related conditions • Drastically reduce medical plan costs related to fee-for-service charges that have wild variance in pricing • Avoid unnecessary costs related to specialty care; in some cases the employers cost and quality tools are used in concert with the DPC practice to help steer the member to doctors and facilities that create better healthcare purchasing value for larger ticket medical expenses outside of the scope of DPC. There are an estimated 1,000 DPC practices across the United States, with some models growing to create an affiliation or network of DPC doctors under one operational platform. To find a DPC practice near you, visit DPCFrontier.com and review their interactive map for options in your area.

Chris Davis, MPH, ACSM, HFS McGriff Insurance Services Chris.Davis@McGriffInsurance.com www.McGriffInsurance.com

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• Participate in individual assignments and group projects designed to provide you with the skills needed to tackle real-world problems; • Be taught by faculty members who are not only doctorally-qualified, but who are also highly experienced HR practitioners; • Gain both the academic knowledge and practical skills needed to become a highly competent HR practitioner; and • Graduate from a university that is accredited through the Southern Association of Colleges and Schools Commission on Colleges (SACSOCS) and whose HRL program is aligned with the curriculum recommended

by SHRM. That’s not all, though. Here’s what you need to know about the specific levels of our HRL program in a nutshell:

Sullivan University Human Resource Leadership Program Aligns with SHRM Curriculum Whether you are brand new to the field of human resources or seeking to move into a leadership position, Sullivan University’s Human Resource Leadership program (HRL) can help you gain the strategic, organizational, management, and analytical skills that are required by employers in today’s fast-paced environment. We offer HRL educational opportunities at multiple levels, including both undergraduate and master’s degree programs.

When you have completed your master’s degree, you need not stop there—we have a PhD in Management program (with an HRL concentration) waiting for you!

Why should anyone choose to enter one of Sullivan University’s HRL programs? As a student at Sullivan, you will:

PhD in Management (with HRL Concentration) • Our doctoral program is research-intensive and requires 90 hours of coursework.

Depending on a student’s progress and work/family responsibilities, it is possible to complete the program in 3-4 years (taking 2 classes per term), including the dissertation.

• Courses are taken fully online, allowing flexibility for students with demanding jobs.

• Faculty and doctoral students meet for a residential retreat experience at least one weekend each year. During each retreat, academic content is shared and faculty/ students meet both in group settings and one-on-one to discuss specific issues related to the program.

• Our faculty are not only accomplished researchers, they also have extensive applied experience as practitioners in their respective disciplines. Our faculty see their role as being that of a mentor and are committed to the creation of a personalized and positive experience for students, including a quick turnaround in their review of student work.

• Benefit from state-of-the-art online coursework that is regularly updated to incorporate the rapid changes which occur in the discipline;

• The courses in the HRL concentration are very applied and focused on developing the leadership competencies needed to operate successfully as a senior-level HR leader in business, government, or academia.

• Participate in a program which has been recognized by the national Society for Human Resource Management (SHRM) organization as being in alignment with the recommended SHRM curriculum for HR programs;

• In addition, our program is one of the first in the nation to recognize the importance of workforce analytics and technology as a key competency. As a result, we have developed a new course devoted entirely to this emerging topic.

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MSHRL Program • Our master’s level program requires 48 credit hours of coursework, is offered fully online, and can reasonably be completed in 18 months (taking 2 classes per term).

• Courses in the MSHRL program focus on the nine key areas of HR competency specified by the SHRM. These include: Leadership & Navigation; Business Acumen; Ethical Practice; Relationship Management; Consultation; Critical Evaluation; Global & Cultural Effectiveness; and Communication.

• The curriculum has been audited by SHRM and has been deemed “in full alignment” with their recommended educational curriculum for HR students.

• Our program is one of the first in the nation to recognize the importance of human capital analytics as a key knowledge area. We have developed a new course devoted entirely to this emerging topic.

• The capstone course, taken during the last quarter, prepares students to achieve certification via the SHRM-CP or SHRM-SCP competency examination (depending on the student’s level of actual HR work experience), further increasing their marketability after graduation from the program.

BSHRL Program • Our bachelor’s level program requires 180 credit hours of coursework, and all the HRL-prefixed courses can be completed fully online.

• Consistent with the MSHRL program, the curriculum for our undergraduate degree has been audited by SHRM and has been deemed “in full alignment” with their recommended educational curriculum for HR students.

• Courses in the BSHRL program focus on the nine key areas of HR competency specified by the national Society for Human Resource Management organization (SHRM). These include: Leadership & Navigation; Business Acumen; Ethical Practice; Relationship Management; Consultation; Critical Evaluation; Global & Cultural Effectiveness; and Communication.

• The capstone course, taken during the last quarter, prepares students to achieve certification via the SHRM-CP or SHRM-SCP competency examination (depending on the student’s level of HR experience), further increasing their marketability.

To learn more about the HRL programs at Sullivan University, please visit us on the web at www.sullivan.edu.

Your passion made practical.

Classes start September 24, so visit sullivan.edu to learn more and register today.

Louisville Lexington Fort Knox Louisa Fort Mitchell Carlisle

For more information about program successes in graduation rates, placement rates and occupations, please visit: sullivan.edu/programsuccess.

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UAB’s Collat School of Business: A New Home for HR Education This fall the University of Alabama at Birmingham’s Collat School of Business will open a new, state-of-the-art home for innovation and business education.

Located in the heart of Alabama's business center, the Collat School of Business offers an engaging learning environment with classrooms extending well beyond the walls of the UAB campus. Its unique location allows faculty to integrate the practical experiences of leading companies - from Fortune 500 corporations to entrepreneurial startups - into the programs offered. Students gain valuable, real-world experience through a wide variety of internships and other opportunities in the business community.

The new building features leading-edge technology and multi-purpose classroom spaces to accommodate small-group learning, as well as showrooms for entrepreneurial projects and sales presentations, labs for behavioral research, and spacious common areas indoors and outdoors.

The Collat School of Business draws students from a variety of educational backgrounds with diverse life experiences, but as a group, they share a common drive. They are unafraid of sacrifice; they are willing to earn their success. Collat students understand the practical application of education to their careers, and so they demand more of themselves, their professors, and their fellow students. They go beyond the classroom and engage in real world business opportunities to prepare for long-term career success.

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The Collat faculty's teaching skills complement their students’ uncompromising efforts. Professors are accomplished researchers, publishing papers and textbooks that contribute to the ever-growing body of knowledge within the business disciplines. But they are more than just skilled teacher-scholars. They are also deeply experienced professionals, having worked for some of the world’s leading companies: Ford, Deloitte, United Airlines, Motorola, Procter & Gamble and U.S. Steel to name a few. It’s this combination of faculty scholarship and professional experience that makes a UAB business degree both practical and relevant.

Human Resource Management Degree In 2017, the Collat School of Business developed its previous management concentration in human resource management into a full-blown major.

Students are now able to major in Human Resource Management and minor in other areas of interest, such as social media or business administration.

An advisory council of human resource professionals working in the field advises Collat’s HR curriculum to ensure classes and course materials offer the most relevant information for human resource graduates entering the workforce, and that their knowledge, skills and abilities meet the needs of modern organizations hiring HR professionals. The curriculum is aligned with SHRM’s guidelines, and the student SHRM chapter is one of the largest and most active organizations on campus.

The curriculum covers various aspects of human resources and employment relations, including compensation, recruiting/staffing, employment law, leadership, and workplace diversity. More than 125 students have enrolled in the major and are available for internships, which are a graduation requirement.

For information about how to recruit Collat’s top human resource management graduates, visit uab.edu/collatcareerservices. For more information about the UAB Collat School of Business and its Human Resource Management program, visit uab.edu/business.

Legal Training for Non-Lawyers: the Emory Juris Master Degree Today’s professionals face growing regulation, intensifying risk and liability concerns, and increasingly complex decision environments. If you are a professional interested in gaining a better grounding in law and regulation to advance your career, Emory Law’s juris master offers the insight and flexibility to help you achieve your goals. This 30-credit-hour master's program can be completed either on-campus (full-time or part-time) or online.

What Our Graduates Are Saying Our students leave our program ready to apply their knowledge in their field of work. Betsy Hames, chief human resources officer, Duke University School of Medicine, and a 2014 JM graduate, says, “My professors challenged my thinking and fostered analytical skill development and sound decisionmaking. One of the most relevant courses I took was Employment Discrimination, which heightened my ability to look at creative options and minimize organizational risks. With a greater understanding and appreciation for seeing situations from a different perspective, the JM program enhanced the contributions I can make as an experienced HR professional.”

What Employers Are Saying Employers know the value of legal training for their employees in complementary fields. Steve Sencer, Senior Vice President and General Counsel and Senior Advisor to the President, Emory University, describes the benefits of the JM: “The ability to think analytically, be comfortable with legal concepts, and engage thoughtfully with counsel is an increasingly important advantage, especially in highly regulated industries like higher education and healthcare.

The Juris Master degree from Emory Law is an exciting opportunity to develop those skills, while remaining on a complementary career path.”

On-Campus and Online Formats Available The campus-based format offers the broadest flexibility of course offerings, with the option to customize the program to your specific interests. It can be completed full-time in nine months or part-time in up to four years. Courses are offered throughout the day, including limited late afternoon, evening, and summer options.

For students interested in learning about health care law or business law, Emory Law offers 18-month, online courses of study in Health Care Law, Policy and Regulation; and in Business Law and Regulation. The online program is comprised of 10 sequential 7-week asynchronous courses, with 3 three-day residencies.

You can build a curriculum that meets your educational goals, exploring a range of legal topics, such as business law and regulation, child and family law, employment law, environmental and natural resources law, health care law, policy, and regulation; intellectual property law, international business law, and nonprofit and development law.

Exemplary Scholars & Teaching More than 60 full-time faculty—expert scholars and talented practitioners alike—along with an accomplished cadre of adjunct faculty, teach at Emory Law. They not only teach you the law, they are also at the forefront of legal scholarship.

For more information about the program, contact Admission Advisor Farah Dharamshi at jmadmission@emory.edu or 404.727.0598.

Put the Law to Work for Your Career Legal Training for HR Professionals Online and On-Campus Options

“The juris master degree helps me navigate the technical aspects of compensation regulations with greater expertise.”

Thomas George Director, Employee Relations Emory University 2015 JM Graduate

Gain the legal knowledge and skills to navigate complex regulatory environments, make informed decisions, assess risk, and advance your career.

Now Online: Complete the online program in 18 months with three short residencies in one of two concentrations: Health Care Law, Policy, and Regulation or Business Law and Regulation On Campus: Complete the on-campus program with a wide range of concentrations, including employment law, full time in 9 months or part-time in up to 4 years Scholarship: Financial aid and 15% Founder’s scholarship available for SHRM-Atlanta members

Learn more at law.emory.edu/jm | Email us at JMadmission@emory.edu

HR Professionals Half-H.indd 1

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Learning is Essential to Business Success “Once you stop learning, you start dying.”

Albert Einstein The best human resources leaders understand how critical it is to invest in people, or else.

A quick scan of the headlines in any business magazine will tell you that companies who invest in developing their employees outperform those who don’t. One of the major criteria cited in all the ‘best places to work’ lists include access to learning opportunities. Employee engagement surveys also cite the opportunity to learn new skills as one of the chief factors in keeping employees committed to organizations.

Why is learning so important to the growth of your business? Because respected and welltrained managers boost morale. They amplify productivity. Hiring (and firing) is an expensive process and the number one reason people leave is because their boss or team does not have the critical capabilities to help them achieve their potential. Skills that top the list include the

ability to manage and coach for high performance, nurture innovative thinking, communicate effectively and lead with empathy and emotional intelligence.

The Leadership Louisville Center is on a mission to help grow human capital, because it is good for individuals, companies and the world we live in. As a trusted resource for 40 years, we’re now offering a leadership development solution for your entire organization.

The Leadership Green Room will offer the most dynamic and transformational line-up of leadership development courses this July – December. From training with world-renowned gurus to gaining critical skillsets necessary for managing others, these courses offer incredible learning opportunities for every level of your organization, preparing leaders to execute at the highest level.

“The Center has been an important partner as we continue to build and develop strong leaders throughout our company. The variety of curriculum allows for us to meet the learning and development needs of each individual team member.”

Participants are immersed in breakthrough thinking alongside potential clients and professional peers, leaving with greater confidence, knowledge and networks. All courses are hosted at the Center’s new modern facility at 707 W. Main Street in Louisville, Kentucky. Visitors have easy access to hotels and after-hours activities in the heart of downtown’s Museum Row. Visit www.leadershiplouisville.org.

Scott Colosi, president and CFO, Texas Roadhouse

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Prepare to Lead the Development of a Better Workforce With the Right Degree The University of Louisville (UofL) is a non-profit nationally recognized metropolitan research university. UofL Online extends a 200-year legacy of research and innovation, and brings the 21st-century classroom to our students so they grow intellectually, professionally and personally. Our online programs provide access to excellent learning opportunities to students from across the globe. Our teaching is rooted in exploration and discovery. We meet students where they are and empower individual learners to find their purpose and transform their lives through education.

UofL offers Organizational Leadership and Learning degrees at the master’s and bachelor’s level, to equip students to compete in the marketplace as talented and effective professionals.

The Master of Science in Human Resources and Organization Development (MSHROD) program is delivered online or on campus and engages students with coursework that is relevant, rigorous, and research-based. Our students can take classroom knowledge directly into the workplace, where they apply learned HR and organizational development concepts and best practices immediately. The applied learning method is highly regarded by students and employers, as it yields the best results and adds value in the workplace. Our curriculum is fully aligned with SHRM guidelines and standards that provide students with valuable real-world HR experience and a powerful credential to help boost their career and earning potential. This alignment also qualifies our graduates to sit for the SHRM-CP exam.

The MSHROD degree at UofL has been recognized for its instructional quality and learning outcomes and is ranked as one of the top 10 HR degrees in the nation by HR Professionals publication.

The Bachelor of Science in Organizational Leadership and Learning (BSOLL) is also offered online and on campus for enhanced flexibility and convenience. The program incorporates a Prior Learning Assessment (PLA) as a systematic approach of comparing and evaluating formal and informal learning against the requirements of an academic program of studies. Knowledge can be accumulated through various situations and activities carried on at work, in school and throughout life.

Students can earn up to 48 credit hours tuition-free upon successful completion of the assessment, which can give them a valuable head start.

Perhaps the best assets of these programs are our faculty who are truly devoted to the success of our students. Deeply invested professors like Dr. Terri Rowland, (BSOLL) and Dr. Brad Shuck, (MSHROD) know their students on an individual basis, coach them throughout the student journey and follow their accomplishments beyond graduation. This level of personal attention gives our students a feeling of connection that plays a key role in keeping the momentum going. With the support of faculty, staff and peers, our students work through challenging assignments and develop their skill to think unconventionally about conventional challenges.

Our dedicated team of support staff and enrollment counselors are eager to answer questions and provide guidance throughout the application and enrollment process. To learn more about admission requirements, credit transfer policies or deadlines, visit: uofl.me/2sAYmvs.

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University of Memphis The Department of Management in the Fogelman College of Business and Economics at the University of Memphis offers AACSBaccredited training in human resource (HR) management and organizational behavior. The following faculty have an expertise in these areas: Chuck Pierce, Carol Danehower, Kelly Mollica, Kristen Jones, and Kathy Tuberville. They offer undergraduate courses on HR topics such as introduction to human resource management, compensation & performance appraisal, employee relations, staffing organizations, and employee training & development.

The University of Memphis offers MBA and executive MBA courses on topics such as managing human resources and strategic human capital management. They also offer a doctoral research seminar on human resource management. In addition, they have a student chapter of the Society for Human Resource Management (SHRM).

Finally, they have an undergraduate concentration in HR management.

For more information, please contact Dr. Chuck Pierce, Chair of the Dept of Management (capierce@memphis.edu; http://www. memphis.edu/management).

Fogelman College Department of Management

Dr. Charles A. (Chuck) Pierce, Ph.D, Great Oaks Foundation Professor of Human Resource Management

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Carol Danehower, Ph.D, Associate Professor

Kelly Mollica, Ph.D, Instructor

Kristen P. Jones, Ph.D, Assistant Professor

Kathy Tuberville, Ed.D, Instructor

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University of Illinois at UrbanaChampaign Master of Human Resources and Industrial Relations Complete your master’s degree in human resources online! Illinois’ accredited and internationally recognized master’s program is now tailored to the needs of working professionals. Students in our online MHRIR program earn their degree in two years, while continuing to work. Whether you have prior experience in human resources or you are transitioning from another field, you will find immediate connections from your courses to your work, grow to meet new challenges, pursue upper-level positions, and guide strategic decisions.

Our experienced faculty and industry experts hold weekly virtual class sessions, where students’ professional experiences provide deeper entry into course topics. The MHRIR curriculum is designed to build business acumen and a strong foundation in human resources and labor relations. Annetta Allison, Human Resources Coordinator at Illinois Public Media, designed a change management plan to align her organization’s structure with a new strategic plan, “I used [the final project] as a tool to gain approval from our executive committee on how I would execute the reorganization. The Executive Director said that my preparation helped make their decision an easy one.” In each course, students are encouraged to apply their coursework to their careers.

being offered online, I was excited for the opportunity to experience the program virtually, expand my network of HR professionals … and enhance my knowledge of Labor and Employment Relations,” said Annette Gorzelany, current student and HR Generalist at Boeing.

Each cohort includes a diverse and experienced group of working professionals from long-standing corporate partners like BP, PepsiCo, and Cargill, in addition to professionals in non-profit, consulting, and higher education institutions.

Beyond the classroom, our students are building their professional networks and participating in an active community of practitioners.

Program staff and faculty visit students across the nation, hosting networking events with our 3000+ alumni, which includes EVPs and CHROs at leading global organizations and Fortune 500 companies.

These networking opportunities support professional advancement while in the program. Over 25% of the Fall 2015 cohort have received new positions while in the program.

We encourage prospective students to connect with us to evaluate their suitability for a GRE/GMAT waiver. Applications are accepted on a rolling basis. For more information, visit go.illinois. edu/LERonline or email Katherine Eriksen, Assistant Director of Graduate Online Programs.

Students additionally benefit from peer networking in selective cohorts – our students have an average of eight years of experience in HR and related business functions. “When I heard that the program was

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73% of our graduates are promoted internally or advanced their career with new companies. They earn an average of $20,000 more than with a bachelors degree alone.

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• inclusion (employee comfort with bringing their unique identity to work)

Unconscious Bias Training: Beware the Latest Shiny Bauble

By CORBETTE S. DOYLE

Everybody’s doing it—unconscious bias training (“UBT”), that is. Google did it and posted it on YouTube. Starbucks closed 8,000 stores to do it.

Police departments and the Justice Department, did it. What’s a conscientious HR leader supposed to do other than jump on the bandwagon?

Perhaps start by stepping back from that instinctive response as, ironically, UBT would recommend.

What should organizations do?

The issue isn’t whether the human brain has decisionmaking biases. Instead, the relevant question is “what should [my] organization do?” Rather than react to internal pressure to “just do something”, or the external, “everyone is doing it”, pressure, take a strategic approach. Start by identifying the organization’s goals for:

Determine the gap between those goals and the current state, and diagnose the hurdles contributing to the gap. As a starting point, evaluate the flow of talent throughout your organization (e.g. applicant pool, retention, time-to-promotion). Confidential employee interviews can provide invaluable insight about identified gaps. Then develop a plan to close the gap by mitigating the hurdles.

Is UBT the right solution?

A strategic analysis may support training, but don’t assume UBT is the solution. A 2017 meta-analysis (http://bit.ly/flaubt2) found UBT has, at best, a minor impact on implicit bias, and no impact on behavior, the goal of most training. Even if effective, the evidence is mounting (http://bit.ly/sdubt3) that conscious, or explicit, bias—which UBT does not address— may contribute far more to D&I gaps than realized.

But it can’t hurt if we offer UBT. Right?

Actually, some UBT may be worse than doing nothing at all. One study (http://bit.ly/dthubt) found that the UBT message “everyone stereotypes” actually increased the incidence of biased behavior—clearly not the desired impact.

• diversity (workforce demographics)

Many organizations mandate UBT, particularly after a crisis. Backlash is a real response to mandates, however, and the result might be a deterioration in results (https://fla.st/2JYCaUz), rather than an improvement.

• equity (distribution of rewards)

UBT often treats implicit bias as immutable —or

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“you are human, therefore you make biased decisions”.

Recent research (http://bit.ly/pvlubt4) suggests, instead, that our biases may change from situation to situation. If true, a more effective workplace approach might be interventions that impact the context in which decisions are made.

So, what does work?

Clearly, unanswered questions remain, but one-anddone efforts are unlikely to help. Instead, develop a longer-term program designed to: raise awareness, build inclusive skills, and implement processes that address the structural impediments to D&I. If you host D&I training, make informed decisions about: • who should attend, given the risks of mandatory training • how to roll out the training (e.g. Beta test first?)

• the message of the training: in contrast to the “everyone stereotypes” message, perhaps communicate as a norm that most people try to overcome their biases (http://bit.ly/dthubt) • The desired qualifications of the trainers While UBT is implicitly appealing, pun intended, training should support a strategy—not be the strategy.

Corbette Doyle, EdD Senior Lecturer, Leadership Policy & Organizations Peabody College of Vanderbilt University

The Launch of ContigoCulture and Culture Shift Team

• • • • • • • CRESCENT CLUB MEMPHIS ON JUNE 6

Contigo Culture and the Culture Shift Team announced their partnership to create a Memphis initiative that will provide training for the common language to discuss the hidden rules of culture, building cultural savvy and empowering people to lead, engage and communicate effectively in diverse organizations. “ As Memphis attracts more attention from Fortune 500 companies and grows its own corporate base, the need to communicate clearly and build trust among diverse groups only increases,” Matlock said.

“Contigo Culture and Culture Shift Team will have the experience and capacity to facilitate inclusive, productive conversations that welcome new approaches.”

Ann Gillespie, Marcela Gómez and Robert L. Wilson comprise the Culture Shift Team, which launched earlier this month. All three have extensive experience in corporate communications, multicultural relations and community building. The CST mantra is the Platinum Rule: “Treat others the way they would like to be treated.” “ Culture Shift Team and Contigo Culture are perfectly positioned to help organizations as they hire and incorporate an increasingly diverse Memphis-area workforce,” said Gómez. “We’re looking forward to working together and learning from each other as we expand our services.” Their office is located at 1661 International Place Dr. Suite 400 in Memphis.

(L-R) Ann Gillespie, Culture Shift Team; Tisch McDaniel, ContigoCulture; Alex Matlock, ContigoCulture; Marcela Gomez, Culture Shift Team, Robert Wilson, Culture Shift Team

(L-R) Andrea Bowles, Memphis Small Biz and SHRM-Memphis VP of Communications; Pat Myers, WIN and SHRM-Memphis VP of Diversity & Inclusion; Tisch McDaniel, ContigoCulture and SHRM-Memphis Past President; James Price Sr., HR Consultant and SHRM-Memphis Chair of Diversity & Inclusion; Robert Wilson, Culture Shift Team

Marcella Gomez with the Culture Shift Team discussed the launch of the Culture Shift Team and ContigoCulture.

(L-R) Judy Bell, Judy Bell Consulting; Vijay Kalaga, SunTrust Bank; Alex Matlock, ContigoCulture; Kontji Anthony WMC-TV; Jozelle Booker, The MMBC Continuum

www.HRProfessionalsMagazine.com

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What’s Next for the Fiduciary Rule?

By DEBORAH HEMBREE

On April 6, 2016, the Department of Labor (DOL) turned the financial services industry upside down with the promulgation of its final rule modifying who is an “investment advice fiduciary” and what investment advice can bring a financial advisor within the realm of fiduciary status. This final rule, commonly known as the Fiduciary Rule, governs financial advisors who provide investment advice to retirement plans, IRAs and their participants and beneficiaries. The DOL is in the unique position of enforcing these rules under the Employee Retirement Income Security Act (ERISA).

Impact of the Fiduciary Rule on Financial Salespeople and Insurance Agents Under the Fiduciary Rule, an individual is a fiduciary if he receives compensation for investment advice that is specifically directed to a plan sponsor, a participant or an IRA holder with respect to a retirement investment. A recommendation alone is sufficient to constitute investment advice. Investment advice therefore includes recommendations regarding: • buying and selling assets, • how to invest assets following a rollover, transfer or distribution, • the management of assets, and • making rollovers, transfers and distributions.

Investment advice no longer must be provided on a regular or primary basis to be covered by the Fiduciary Rule. Once is enough, and the advice need only be given for consideration in making investment or management decisions, meaning stockbrokers and insurance agents can be covered by the Fiduciary Rule. Once covered by the Fiduciary Rule, an impartial conduct standard applies. The fiduciary: • must provide impartial advice that is in the best interest of the customer, • cannot accept payments that create a conflict of interest, unless a specific exemption applies, • cannot provide misleading statements about recommendations, fees, compensation and conflicts, and • cannot receive more than reasonable compensation.

Who is a Fiduciary under ERISA? Under ERISA § 3(21), a fiduciary is any person who (1) exercises discretionary authority or control over plan management or plan assets, (2) has discretionary authority or responsibility for the administration of a plan or (3) provides investment advice regarding plan assets for a fee. Typical plan fiduciaries are plan trustees, plan administrators, and plan investment committee members. ERISA fiduciaries must adhere to a very high standard of care, acting solely in the interest of plan participants and beneficiaries.

Most plan sponsors understand their fiduciary responsibilities, and as a result, seek to contract with outside service providers to alleviate those responsibilities. One popular service provider is the investment advisor, who shares fiduciary responsibility with the plan sponsor by recommending and monitoring investments for the plan, suggesting replacement investments, and providing participant education.

Prior to the Fiduciary Rule, an “investment advice fiduciary” was determined using a five-part test. Investment advice fiduciaries were historically limited to those voluntarily taking on the role of a fiduciary by regularly providing investment advice on a primary basis for a fee, and specifically acknowledging their fiduciary status; however, such acknowledgement is not required to be a fiduciary under ERISA § 3(21).

Brokers and insurance agents are typically not fiduciaries because their involvement in retirement plans and IRAs is generally limited to the sale of investment securities and annuities. These advisors are subject to a lesser “suitability” standard, meaning they only have to offer products that are “suitable” for investment, even if not necessarily in the best interest of the investor. The investment world has changed significantly over the years, and the line between the sale of a product and investment advice has blurred, particularly with brokers and insurance agents billing themselves as “financial advisors” and “financial counselors.” To protect plan participants and beneficiaries in this evolving world of investment advice, the DOL promulgated the Fiduciary Rule to broaden the scope of who is an “investment advice fiduciary.”

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Although general circulation newsletters and basic investment education still do not rise to the level of fiduciary advice, one-time IRA rollovers and annuity transactions are now covered by the Fiduciary Rule. Thus, sales contests to promote one product over another are essentially off the table, and stockbrokers and insurance agents cannot receive better compensation for one product over another in the same category. Without an applicable exemption with appropriate disclosures, a stockbroker or insurance agent will be a fiduciary unless he is simply responding to a client’s direction to execute a transaction, or he does not receive compensation for his advice.

Status of Rule Leading Up the Fifth Circuit Decision Originally, the Fiduciary Rule’s impartial conduct standard was to be implemented April 10, 2017, with full implementation of new and revised prohibited transaction exemptions effective January 1, 2018. An executive order in February 2017 caused delayed implementation of the impartial conduct standard until June 9, 2017, with the remaining portion of the Fiduciary Rule still effective January 1, 2018.

Additionally, the DOL established a policy of nonenforcement against investment advice fiduciaries who work diligently and in good faith to comply with the impartial conduct standards for transactions subject to new and revised prohibited transaction exemptions. While the impartial conduct standard became effective June 9, 2017, the effective date of new and revised prohibited transaction exemptions was extended to July 1, 2019.

In the meantime, several federal lawsuits commenced objecting to the Fiduciary Rule, including the one heard by the Fifth Circuit Court of Appeals, Chamber of Commerce v. U.S. Department of Labor. Perhaps out of fear that the Fiduciary Rule would never be fully implemented, several states enacted, and are enforcing, their own version of the Fiduciary Rule.

Fifth Circuit Vacatur of the Fiduciary Rule On March 15, 2018, the Fifth Circuit vacated the Fiduciary Rule, finding that the DOL overreached in expanding the definition of “fiduciary” beyond those “investment advice fiduciaries” who render advice regularly and as the primary basis for a client’s investment decisions. By effectively covering any financial trans-

action involving a plan or IRA, even those where there is no relationship of trust or confidence between the financial advisor and the plan or IRA holder, the Fiduciary Rule, noted the Court, conflicts with not only the common law understanding of the word “fiduciary,” but also 40 years of prior interpretation by the DOL. The Court followed the common law definition of a fiduciary and reasoned a relationship of trust and confidence remains key to determining whether a person is a fiduciary. Unless a stockbroker or insurance agent creates a position of trust and confidence, for example, by rendering investment advice, the stockbroker or insurance agent would not become a fiduciary simply through the sale of an investment product.

The Court also found the DOL encroached the regulatory jurisdiction of the Securities and Exchange Commission (SEC). With the Fiduciary Rule now vacated, the SEC promulgated its own proposed Best Interest Rule that is less restrictive than the Fiduciary Rule. The SEC acknowledges the difference between the mere sale of an investment product and offering investment advice for a fee, and limits the ability of a broker to market itself as an “advisor.” Brokers would be subject to a best interest standard when making a recommendation of a securities transaction or investment strategy to a retail customer (not just retirement investors). All financial professionals would have to disclose their respective roles in handling a client’s money and mitigate conflicts of interest.

What Now? The DOL did not appeal the Fifth Circuit decision or seek to have the entire panel hear the appeal. To alleviate uncertainties in the financial services industry, the DOL issued Field Assistance Bulletin 2018-02, advising that financial institutions may continue to rely on its nonenforcement policy until the DOL issues additional guidance. There is a difference of legal opinion regarding whether the Fifth Circuit opinion only applies to those states in the Court’s jurisdiction and whether a split in the circuits now exists, which muddies the waters from a reliance standpoint. If the entire Fiduciary Rule is vacated, a potential interpretation would be that the five-part test applies again.

In light of the Fifth Circuit decision, many financial services institutions are re-evaluating the changes made in response to the Fiduciary Rule. Some who completely ended commission-based pay in favor of fee-based accounts are re-instituting those forms of payment. Others who contracted around the Fiduciary Rule by fully disclosing their fee arrangements, modifying their processes for retirement accounts, and entering specific contracts with plan fiduciaries are considering additional modifications. Now that the SEC has acted to implement its own version of the Fiduciary Rule, some financial advisors are simply taking a wait and see approach.

Plan sponsors should be mindful of the changing nature of the Fiduciary Rule implementation and the involvement of the SEC. The Fiduciary Rule has been in the news and plan participants are more aware of the duties that are owed to them. Plan sponsors should be wary of additional changes made to fee structures in their plans and the disclosures made by their financial advisors, as financial advisors attempt to roll back any standardized compensation platforms. Competitively, some financial advisors may continue to offer complete fiduciary services. Plan sponsors should investigate the nature of these services and confirm their financial advisors’ fiduciary status, maintaining any related documentation. Until there is further clarification, it remains to be seen what effect the market will have on these changes.

Deborah Hembree, Senior Counsel Constangy, Brooks, Smith & Prophete – Birmingham Office dhembree@constangy.com. www.constangy.com

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

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

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Looking for Middle Ground

“Hang in There”:

New Overtime Exemption Rule is Coming…Eventually “ White Collar” Exemption: What is it?

By ALEXANDER CLARK

As

employers know, the Fair Labor Standards Act (FLSA) generally requires employers to pay their employees at least the federal minimum wage for all hours worked, and overtime premium pay of at least one and one-half times the employees’ regular rates of pay for any hours worked in excess of 40 in a workweek. The FLSA, however, exempts from both minimum wage and overtime protection any individual employed in a “bona fide executive, administrative, or professional capacity.” The Secretary of Labor is responsible for defining and delimiting these terms through regulations. Frequently, this exemption is referred to as the “white collar” exemption.

For over 75 years, the Department of Labor (DOL) regulations implementing the white collar exemption have generally defined “bona fide executive, administrative, or professional capacity” by the use of three criteria: (1) the employee must be paid on a salary basis (“salary basis test”); (2) the employee must receive at least a minimum specified salary amount (“salary level test”); and (3) the employee’s job must primarily involve executive, administrative, or professional duties as defined by the regulations (duties test). During the nearly five decades preceding 2004, employers could exempt employees by satisfying either: (1) a long, rigorous duties test combined with a lower salary level (long test); or (2) an easier duties test and a higher salary level (short test). In 2004, the DOL paired a new standard duties test with a salary level of $455 per week ($23,660 annually), which excluded from the exemption roughly the bottom 20 percent of salaried employees in the South and in the retail industry.

Doubling Down on Double the Salary

Current Secretary of Labor, Alexander Acosta, acknowledged the need for the current $455 threshold to be updated, but recognized that the $913 threshold “created a shock to the system.” Therefore, in July 2017, the DOL issued a Request for Information, in which it sought comments from the public regarding the regulations which define and delimit the white collar exemption. The DOL acknowledged “stakeholder concerns” that the 2016 Final Rule was set too high, thus inappropriately excluding from exemption too many workers who met the standard duties test.

Therefore, the DOL concluded that new rulemaking was in order.

Secretary Acosta has made a point of having “listening sessions” with various stakeholders, including employees and employers, affected by the changes in the overtime rule.

The comment period ended on September 25, 2017. The DOL originally anticipated introducing a new proposed salary threshold for the white collar exemption in October 2017; however, the DOL now anticipates the new rule will likely not be introduced until January 2019. Whatever the date, the goal is to arrive at a salary threshold for the white collar exemption that is workable for all stakeholders – including employers and employees.

The questions many employers may be asking, however, are: What will that workable salary level be? What other changes will be included in the new overtime rule?

What the Future Holds: Predictions for the New Proposed Overtime Rule

A coalition of states and business groups challenged the 2016 Final Rule in federal court, arguing the DOL exceeded its authority by setting the salary threshold too high. Judge Amos Mazzant of the Eastern District of Texas agreed, noting that it was Congress’s unambiguous intention to exempt from overtime pay those employees that perform “bona fide executive, administrative, or professional” duties. The purpose of the minimum salary level is to establish a floor so that obviously nonexempt employees are screened out. However, the DOL’s 2016 Final Rule set the salary level at a figure that so significantly increased the salary threshold as to effectively eliminate the duties test, thereby essentially creating a de-facto salary-only test.

Predicting what rule changes the DOL will propose is difficult. However, considering the extensive examination – in the court of public opinion and actual court – the salary level test has undergone in recent years, the new proposed rule will almost certainly contain an adjustment to the salary level threshold for exempting executive, administrative, and professional employees from the overtime requirements. Indeed, while the Request for Information contained questions related to the duties test and highly compensated employees, the majority of questions for which the DOL sought comment were related to salary levels. What that adjustment looks like is difficult to predict, but certainly subject to some known constraints.

The 2016 Final Rule would have included a large number of individuals that Congress intended to be exempt, since they are performing duties consistent with exempt status, within the overtime pay requirements. For the same reasons, the provision requiring triennial updates was also found to be unlawful. Accordingly, Judge Mazzant issued a permanent injunction blocking the implementation of the 2016 Final Rule. In effect, his ruling kept the 2004 overtime rule in place, meaning the salary level required in order to meet the white collar exemption remained at $455 per week.

The salary level will be above $455 per week but below $913 per week. Judge Mazzant struck down the $913 threshold as it essentially created a salary-level-only test; Secretary Acosta has stated the significant and sudden increase created a “shock to the system”; and,

In 2016, the DOL finalized its new overtime rule that would have doubled the salary threshold from $455 per week to $913 per week ($47,476 annually) starting December 1, 2016. Unlike the prior change, the DOL set the standard salary at a level that would exclude from exemption the bottom 40 percent of salaried workers in the lowest-wage Census Region (the South). No changes were made to the duties test, but it did establish a mechanism for automatically updating the salary level every three years.

“Wage”-ing War on the 2016 Final Rule

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the DOL acknowledged concerns that the threshold set by the 2016 overtime rule was too high. On the other hand, Secretary Acosta has also recognized the need for an update to the 2004 salary level, even suggesting in his Senate confirmation hearings in March 2017 that he endorsed raising the threshold to account for inflation since 2004.

It is unlikely the salary level will be above $40,000 annually (approximately $769 weekly). Anything above $40,000 annually will likely cause a “shock to the system” that Secretary Acosta is seeking to avoid. On the other end, considering the increases necessary to account for inflation, it is difficult to imagine a figure set lower than $30,000 annually (approximately $580 weekly). What exactly the new salary level will be is a guessing game. Updating the 2004 salary level to account for inflation would put an adjusted threshold around $33,000 annually (approximately $635 weekly). This figure is in line with previous statements made

by Secretary Acosta regarding what exemption threshold he endorsed and with a comment in the footnote of Judge Mazzant’s opinion.

Regarding the duties test, one question in the Request for Information asked if a test for exemption that relied solely on duties performed by the employee without regard to the salary level would be preferable to the current standard test. However, as perhaps indicated in the question, this test would be more extensive and potentially examine the amount of non-exempt work performed by employees. It seems unlikely this will be a change the DOL will make. The exemption threshold – and ultimately what workers will be paid – is a contentious issue, and abandoning a minimum protection will, at least from one side of the aisle, be met with staunch resistance. Moreover, increased complexity in determining whether employers may exempt certain employees is likely a sticking point for the other side of the aisle. Therefore, expect any changes to the duty test to be minor.

One potential holdover from the Obama-era changes is the automatic updates to the salary level. The automatic updates were found unlawful because the adjustments utilized the same underlying basis for calculation of the salary level that Judge Mazzant deemed unlawful. Considering Secretary Acosta’s statements that the 2004 salary threshold was outdated and that he supported updating it to account for inflation, the new rule may contain a provision indexing the salary level to account for inflation and automatically update periodically to reflect such changes.

One more provision the 2016 rule put in place that was likewise mentioned in the Request for Information was permitting non-discretionary bonuses and incentive payments (including commissions) to account for up to 10% of the standard salary level. The lower the threshold for exemption is set, the less likely this provision will remain in the new proposed rule. On the other hand, if the new salary level is on the higher end, the proposed rule may contain a provision permitting employers to use forms of employee compensation outside the employee base salary to account for satisfaction of the salary level test.

It is impossible to know the changes the proposed rule will bring; however, by analyzing the development of and controversies surrounding the regulation, along with those in control of its drafting, employers can make educated guesses to help plan for the future.

Alexander Clark, Associate Cross, Gunter, Witherspoon & Galchus, P.C. aclark@cgwg.com www.cgwg.com www.HRProfessionalsMagazine.com

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New NLRB Majority Takes Target Off

Employee Handbooks

By GEORGE W. LOVELAND II

On

December 14, 2017, in a 3 – 2 decision led by its new Republican majority, the National Labor Relations Board ("Board") issued its decision in The Boeing Company, 365 NLRB No. 154 (2017) ("Boeing"). This decision establishes a new standard for determining the lawfulness of employer rules, policies, and handbook provisions under the National Labor Relations Act ("Act").

The Target Removed The Boeing decision overruled the Board's prior decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) ("Lutheran Heritage").

Under Lutheran Heritage, employers were found to have violated the Act by maintaining rules, policies, and handbook provisions that did not explicitly prohibit protected activities, were not adopted in response to such activities, and were not applied to restrict such activities, if the rules would be "reasonably construed" by employees to prohibit the exercise of rights protected by the Act. As detailed by the majority in Boeing, the Lutheran Heritage standard was deficient because it focused solely on employee rights protected by the Act and completely ignored the employer's legitimate justifications associated with the rules. That restrictive view prevented the Board from balancing the impact of the rules on employee rights and conflicted with U.S. Supreme Court rulings and the Board's own precedents. Further, in addition to requiring employers to anticipate and deal with every possible type of protected activity in attempting to craft a rule that would pass legal muster, an impossible task for any employer, applying the Lutheran Heritage standard created inconsistent, confusing results that discouraged employers from maintaining workplace rules, to the detriment of both employees and employers. In the majority's view, such results were untenable, and the Lutheran Heritage standard had to be replaced.

The New Standard In Boeing, the Board jettisoned the one-sided "reasonably construe" standard and replaced it with one that balances employee rights and employer justifications. Under the new standard, when reviewing a facially neutral (i.e., not explicitly restrictive of rights protected by the Act) rule that, when reasonably interpreted would potentially interfere with the exercise of protected employee rights, the Board will evaluate: (i) the nature and extent of the potential impact on those rights; and (ii) any legitimate justifications associated with the rule. When legitimate justifications outweigh a rule's potential impact on protected rights, the rule will be found lawful.

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In connection with the foregoing balancing test, and to provide clear and predictable rules upon which employees and employers can rely, the Board stated that it would delineate three categories of rules into which the various types of employer rules will be placed going forward. The three categories of rules are: • Category 1 will include rules that the Board designates as lawful to maintain, either because: (i) the rule, when reasonably interpreted, does not prohibit or interfere with rights under the Act; or (ii) the potential adverse impact on protected rights is outweighed by legitimate justifications associated with the rule; • Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with rights under the Act, and, if so, whether any adverse impact on conduct protected by the Act is outweighed by legitimate justifications associated with the rule; and • Category 3 will include rules that the Board designates as unlawful to maintain because they would prohibit or limit Act-protected conduct, and the adverse impact on such rights is not outweighed by legitimate justifications associated with the rule.

Finally, the Board held that, although the maintenance of particular rules by employees may be lawful, the application of such rules to employees who engage in activities protected by the Act may be unlawful, depending on the particular circumstances presented in the case.

The Dispute in Boeing The employer maintained a rule restricting the use of camera-enabled devices such as cell phones on its property without a valid business need and an approved camera permit. It was undisputed that the no-camera rule did not explicitly prohibit or restrict any activities protected by the Act; that it was not adopted in response to protected activities; and that it was not applied to restrict such activities. The employer presented substantial evidence that the rule was justified by the need to maintain confidentiality of the work performed in its facilities because some was classified U.S. Government work. There also was substantial evidence that the rule was necessary to secure the facilities and the work performed against industrial espionage and other damaging activities by competitors, foreign governments, and terrorists.

Applying the new standard to the employer's no-camera rule, the Board concluded that it was lawful. While it was true that in some circumstances the rule could potentially affect Act-protected rights, the Board

characterized the impact as "comparatively slight," as most of the images covered by the no-camera rule did not impact employee rights. Moreover, no one claimed that the rule actually interfered with protected activity.

Thus, the Board found that the potential adverse impact on employee rights was outweighed by the substantial, legitimate justifications for the rule presented by the employer.

Finding further that those justifications were common to no-camera rules generally, the Board placed the employer's rule and all such rules in Category 1 to be treated as lawful in future cases, overruling all prior contrary decisions involving cameras and recordings in the workplace.

Also placed in Category 1 by the Board were rules promoting "harmonious interactions and relationships" in the workplace and rules requiring employees to observe basic standards of civility while at work, again overruling prior contrary decisions finding such rules unlawful. On the other hand, the Board designated as unlawful, and placed in Category 3, rules that prohibit employees from communicating with each other about wages and benefits.

What Boeing Means for Employers The Boeing decision totally changes how the Board evaluates employer rules, policies, and handbook provisions, whether the covered conduct occurs inside or outside the employer's facilities, which would include conduct on social media. By considering the employer's legitimate justifications in the balancing test, the new standard will expand the scope and type of rules that will be found lawful and will allow employers to craft rules suitable for their workplaces. Similarly, using the described categories for employer rules will increase certainty in the Board's rules

cases, and the identification of rules as Category 1 and Category 3 rules will simplify and assist in an employer's determination of whether a rule is lawful, without having to litigate the issue.

Employers must be mindful, however, that how the Board defines the types of rules that will be placed in a particular category will determine how useful those categories will be. Thus, the more narrowly the types of rules within a category are defined, the more litigation will be required to populate the categories, and the less predictable the new standard may become.

As of now, no-camera and no-recording rules, "harmonious relationships" rules, and basic civility standards rules are lawful Category 1 rules.

Regarding other types of rules, employers should continue to take into account any potential restraints on Act-protected activities that might be inferred from the wording of the rule. However, even if there may be a potential impact on protected rights by the maintenance of a fairly neutral rule, there also may be a substantial employer interest supported by legitimate justifications that would outweigh the potential impact on protected rights, thus warranting the adoption of the rule. As always when crafting rules, employers should consult with knowledgeable legal counsel regarding the risks associated with the implementation of those rules.

George W. Loveland II, Special Counsel Littler gloveland@littler.com www.littler.com

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Grace and Grit:

My Fight for Equal Pay and Fairness at Goodyear and Beyond

By WILLIAM CARMICHAEL

Grace and Grit begins as a colorful, yet harsh memoir of what it was like to grow up in rural Alabama as a female. A place called Possum Trot, Alabama to be exact. To live in poverty, to marry, to raise children, to work at menial jobs; humble roots for sure. Then a dream opportunity presents itself. One that promises to change her life for the better. The opportunity?

To work at the local Goodyear tire factory where she will be the first female manager at a time when males were, well, less than cordial to their female counterparts- if you get my drift. The time, the late 1970’s. This is the courageous true story of the woman at the center of the historic discrimination case that inspired the Lilly Ledbetter Fair Pay Restoration Act. This is the story of how one woman’s “determination became a victory for the nation” and this story became Grace and Grit: My Fight for Equal Pay and Fairness at Goodyear and Beyond

by Lilly Ledbetter and Lanier Scott Isom.

WHY THIS IS A MUST READ! As an HR and business book critic, my initial reactions when asked to review Grace and Grit, which I knew to be a memoir, were mixed. After all, memoirs typically do not delve into intricate business strategies, workplace procedures, or legal application. Honestly though, I could not have been more wrong and I immediately realized my error on page 1 in the Prologue! Told initially in a brilliant present vs. past tense narrative, here was a highly experienced manager facing insurmountable odds when faced with the reality that she was being paid significantly less than her male equals. As you can imagine, this single reality when coupled with years of work and sexual harassment from these same males was almost too much to bare. Her words and feelings of being caught up in all of these past miscarriages of corporate negligence suddenly came to light. These events were happening! Her narrative drew me in and they will for you too.

With the recent #MeToo movement immediately available to us now in social media to help demonstrate the widespread prevalence of sexual as well as workplace harassment, our author did not have that outlet. And it wasn’t just harassment she had to contend with; it was the fact others knew she was being intentionally underpaid! Here, the author struggled against hostility, harassment and endless humiliation for almost 20 years only to discover that her mail counterparts were making thousands of dollars more per year than she was. Devastated, she filed a sex discrimination case against Goodyear, which she won and then heartbreakingly lost on appeal. And for the next 10 years after that, she pursued bitter anti-discrimination court battles that yielded nothing financially but eventually brought into existence the fair-pay legislation that bears her name.

Regardless of gender, our current employment laws are designed to protect us. Not so during the late 1970’s, 80’s, and 90’s when the author was forced to endure what we now know to be intolerable and illegal work conditions. The author’s story is inspiring, but some readers may wonder why she persisted in a job that, for all its apparent prestige, proved so physically and emotionally damaging to her. Little did she ever dream that she would one day spearhead the fight for equal pay for working women. To our HR readers out there, Grace and Grit will hit home not just for the real legal battle going on here that will sound all too familiar but also for the down-home wisdom about life.

STRUCTURE AND LAYOUT Grace and Grit: My Fight for Equal Pay and Fairness at Goodyear and Beyond has two distinct literary genres; one for its style as a memoir and the other as a legal testament. Both are done extremely well, which for a first-time author is extraordinary.

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While Chapters 1 and 2 describe perfectly what life was like for her growing up and getting married, Chapters 3 through 10 provide readers exactly what is going in her professional life and the turmoil she is experiencing. Honestly, parts are excruciatingly painful to read. Anyone who has ever been on the receiving end of harassment at work will identify with what the author is going through. A perfect example of this is reflected in Chapter 6 when she is hospitalized and recounts the stress her career has placed on her and those around her. Of how she had learned to endure those pressures with “grace and grit.” There also is wonderful narrative beginning in the latter half regarding the legal maneuverings taking place. But please read the Prologue first as it carefully establishes the underpinnings of a very ominous tone about to unfold.

The chapter titles alone say volumes to what readers can expect: Chapter 1- Possum Trot Chapter 2- Marrying Charles Chapter 3- Going to Work Chapter 4- Becoming a Rubber Worker Chapter 5- Lighthearted, Light-Footed Lilly Chapter 6- Up to My Knees in Alligators Chapter 7- Holding the Tiger by the Tail Chapter 8- Protecting My Good Name Chapter 9- Ms. Ledbetter Goes to Washington Chapter 10- Becoming the Grandmother of Equal Pay The last sections of the book, although legal in context, bring home the court rulings which ultimately led to two historical pay acts: The Lilly Ledbetter Fair Pay Restoration Act and The Paycheck Fairness Act. The section I appreciated the most however was the review by Supreme Court Justice Ruth Bader Ginsburg’s Bench Announcement (pp.

241-243) where she lays bare the injustices inflicted when a discriminative work environment is allowed to rule.

ABOUT THE AUTHOR: Lilly Ledbetter, as a first-time author, along with Lanier Scott Isom, chronicles her incredible life, from her humble beginnings in Possum Trot, Alabama, to passage of the Lilly Ledbetter Fair Pay Restoration Act, signed by President Obama in 2009

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

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Are Class Waivers In Employment Arbitration Agreements Enforceable?

The Supreme Court says Yes, but Employers Should Carefully Consider Their Usage?

In

recent years, many employers have included singleemployee arbitration agreements in their onboarding packages to be completed by new employees. These arbitration agreements mandate individual arbitration as the sole avenue for redress of employment disputes, thereby prohibiting litigation or arbitration by a class of employees. The United States Supreme Court recently addressed the legality of such agreements in Epic Systems Corp. v. Lewis. 584 U.S. ____ (2018).

History of Class Waivers and the Need for Supreme Court Review In response to its perception that courts were unjustifiably hostile to arbitration, Congress passed the Federal Arbitration Act in 1925 requiring courts “to respect and enforce the parties’ chosen arbitration procedures.” Epic Systems Corp. v. Lewis, slip opinion at pg. 5. And until recently, arbitration agreements between employers and employees were generally enforced as a legal method to resolving disputes. Id. at pgs. 3-4. In fact, the National Labor Relations Board’s general counsel spoke favorably of such agreements in 2010 and stated that their legality “does not involve consideration of the policies of the National Labor Relations Act.” Memorandum GC 10-16, pg. 5 (June 16, 2010).

However, in 2012, the NLRB held for the first time that class action waivers in arbitration agreements illegally restrict employee’s rights to engage in “concerted activities” for their “mutual aid or protection” guaranteed by Section 7 of the NLRA, which applies to most employers and employees in the private sector. D.R. Horton, Inc., 357 N.L.R.B. 2277. The NLRB position in D.R. Horton did not fare well in court, at least initially. The United States Court of Appeals for the 8th Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) upheld the enforceability of class waivers.

Owen v. Bristol Care, Inc., 702 F.3d 1050 (Jan. 7, 2013). The 2nd Circuit (Connecticut, New York, and Vermont) agreed. Sutherland v.

Ernst & Young, 726 F.3d 290 (Aug. 9, 2013). Then, the 5th Circuit (Texas, Louisiana, and Mississippi) reversed the NLRB’s D.R. Horton decision. D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (Dec. 3, 2013).

The 11th Circuit (Alabama, Florida, and Georgia) came to the same conclusion on March 21, 2014. Walthour v. Chipio Windshield Repair, 745 F.3d 1326. The 5th Circuit again rejected the NLRB’s reasoning on October 26, 2015. Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013.

But in 2016, intermediate federal appellate courts began to be persuaded by the NLRB’s position. On May 26, 2016, the 7th Circuit (Illinois, Indiana, and Wisconsin) determined that class litigation is the epitome of “concerted” activity and, therefore, protected by the NLRA from class waivers in arbitration agreements. Lewis v. Epic Systems Corp., 823 F.3d 1147. The 9th Circuit followed suit on August 22, 2016. Morris v. Ernst & Young, LLP, 834 F.3d 975. And last year the 6th Circuit (Kentucky, Michigan, Ohio, and Tennessee) fell in line with the NLRB’s reasoning. NLRB v. Alternative Entertainment, Inc., 858 F.3d 393 (May 26, 2017).

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By GEOFFREY A. LINDLEY

Supreme Court Intervention In response to the split in the federal circuit courts, the United States Supreme Court decided in January 2017 to hear the cases of Epic Systems v. Lewis, Ernst & Young v. Morris, and NLRB v. Murphy Oil USA, Inc. All three cases involved whether a class wavier in an employment arbitration agreement could preclude an employee from bringing a collective action under the Fair Labor Standards Act. The Supreme Court consolidated the three cases and heard oral argument on October 2, 2017. Counsel for the employees and counsel for the NLRB argued against the legality of class waivers in employment arbitration agreements while the employers and the solicitor general, on behalf of the Trump administration, argued in favor of their legality.

Supreme Court Decision Trump appointee Justice Neil Gorsuch, on May 21, 2018, delivered the majority opinion of the Court, which was decided by a narrow 5-4 margin.

Federal Arbitration Act Applies At the outset of the opinion, the Court stated that “[i]n the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms – including terms providing for individualized proceedings.” Epic Systems Corp. v. Lewis, slip opinion at pg. 2. Nevertheless, the employees argued that the Arbitration Act’s savings clause, which permits courts to refuse to enforce arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract,” applies to class waivers in employment arbitration agreements “because the NLRA renders [such] particular class and collective action waivers illegal.” Id. at pg. 6. However, the Court determined that the savings clause only allows courts to invalidate arbitration agreements on the basis of general defenses to the enforcement of contracts, such as fraud or duress, and not defenses that specifically attack an arbitration agreement itself. Id. at pg. 7 (citing the Supreme Court case of AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)).

Nothing in the NLRA Precludes Class Waivers in Employment Arbitration Agreements Next, the Court addressed the argument advanced by the NLRB and the employees in these cases that class action waivers in arbitration agreements illegally restrict employee’s rights to engage in “concerted activities” for their “mutual aid or protection” guaranteed by Section 7 of the NLRA. In response to that argument, the Court noted that while Section 7 allows employees to organize unions to collectively bargain on the terms and conditions of employment, including seeking to prohibit arbitration, “[i]t does no express approval or disapproval of arbitration . . . [and] does not mention class or collective action procedures.” Lewis, slip opinion at pg. 11. And, according to the Court, this should come as no surprise. “The notion that Section 7 confers a right to class or collective actions seems pretty unlikely when you recall that procedures like that were hardly known when the NLRA was adopted in 1935.” Id. The Court then pointed out that all of the employees’ claims at issue did not even arise under the NLRA but under the FLSA. And the Supreme Court held decades ago that a collective action mechanism identical to the FLSA’s

did “not displace the Arbitration Act or prohibit individualized arbitration proceedings.” Lewis, slip opinion at pgs. 14-15 (citing Gilmer v. Interstate/ Johnson Lane Corp., 500 U.S. 20, 32 (1991)) (discussing the Age Discrimination in Employment Act’s collective action procedure). The Court pointed out that every federal circuit “has held that the FLSA allows agreements for individualized arbitration.” Id. at pg. 15.

Therefore, the Supreme Court held that employment arbitration agreements including class waivers must be enforced as written pursuant to the Arbitration Act and do not violate Section 7 of the NLRA. In so holding, the Court noted that the FLSA specifically allows for individualized arbitration and suggested that there is no Section 7 right under the NLRA to pursue a collective or class action. Lewis, slip opinion at pgs. 24-25.

Legal Challenges are Coming at HR Professionals from Every Direction

Pros and Cons of Arbitration Based on the Lewis decision, it is now clear that class waivers in employment arbitration agreements are enforceable under federal law. Some states may attempt to pass laws making such agreements unenforceable, but such laws could face a preemption argument under the Federal Arbitration Act. Moreover, California state appellate courts have held that employers may not compel arbitration of claims brought under the state’s Private Attorneys General Act (PAGA). Therefore, in crafting an arbitration agreement, employers should be mindful of both federal and state law.

Additionally, employers should consider the following with regard to arbitration:

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• Unlike court, discovery is generally limited in arbitration.

• Arbitration is final, so there is no appeal.

• An arbitration agreement may encourage employees to file claims.

Employees view litigation, which generally requires getting an attorney, as more formal and costly. However, arbitration is often free and easy for an employee to demand.

• If it is necessary to enforce an arbitrator’s decision, it will require going to court.

• Arbitration is generally quicker than court with more predictable outcomes than juries. And there is a greater chance of keeping arbitration proceedings confidential.

• Attorney’s fees to handle arbitration through conclusion are usually less expensive than handling a lawsuit through conclusion. However, many states require that employers pay the arbitrator’s fees, which can be significant.

• Some employee attorneys have begun filing a large number of individual arbitrations against employers in order to make the process extremely expensive for employers.

• What should the scope of an arbitration agreement be? It may be more cost efficient to limit an arbitration program to employment claims that typically lend themselves to class or collective action claims, like FLSA claims.

While the Supreme Court’s ruling in Lewis provides employers with some certainty that class waivers in arbitration agreements are an option in managing employment claims, every employer should evaluate the general pros and cons of arbitration and how an arbitration program fits in with its industry and culture before amending its employment agreements to include one.

As the issues facing HR executives become more frequent, challenging, and complex each year, you need a law firm that provides advice invidualized for you specific needs.

This is why you should know the employment law attorneys at Rainey, Kizer, Reviere & Bell, PLC. For over 30 years, our AV-rated firm has advised businesses, non-profit organizations and government agencies on all aspects of employment law. To learn more, please call.

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Geoffrey A. Lindley, Attorney Rainey Kizer Reviere & Bell, PLC glindley@raineykizer.com www.raineykizer.com

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Keeping Your Concealed Weapons Policy On Target

By HEATHER HEARNE

Gun ownership rights continue to be at the forefront of the national discussion – with passionate opinions on both sides of the spectrum. But personal opinions take on a new tenor when the handgun discussion migrates to the workplace and businesses contemplate the potential liability implications of restricting or permitting firearms.

Employers are obligated to provide their employees with a safe working environment.

While this does not require employers to ban firearms from the workplace (nor are employers permitted to do so in some states), many employers find it advisable restrict firearm possession at work.

Below are some key considerations for employers looking to restrict or prohibit the possession of firearms on their premises.

First, a carefully-crafted workplace violence policy is a must. Most businesses already have a policy in place prohibiting workplace violence. Employers should ensure that policy is broad enough to cover not only harassment and bullying but also gun-related violence. In addition, it should set forth a clear procedure for reporting concerns or threats, and of course, it should prohibit retaliation against employees who report potential violations and/or are victims of workplace violence.

Second, be sure to consult with an attorney regarding applicable state laws.

Approximately 20 states have enacted workplace gun laws—the most common of which are referred to as “parking lot laws” or “bring your guns to work” laws. These

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laws typically protect an employee’s right to lawfully possess a firearm in his or her privately-owned, locked vehicle in any designated parking area subject to certain provisos and restrictions. Most states in the southeastern United States, including but not limited to, Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, and Tennessee, have some version of a parking lot law on the books. Typical parking lot laws require the firearm be hidden from plain view and, in some states, also locked in a case within the vehicle that is itself locked. Parking lot protections generally do not apply to company-owned vehicles nor, in some states, do they apply to privately-owned vehicles parked in the employer’s secure or restricted parking area. Additionally, the protection may also be limited to employees of the employer and may not extend to customers, visitors and/or other non-employees of the business. Depending on the type of firearm, additional requirements may also apply, including, for example that the owner possess a valid concealed carry permit.

Third, consider how to communicate your concealed weapons policy to employees and other entrants of your business. While employers are generally free to prohibit firearms in their place of business (excluding, in some cases, parking lots as noted above), some states require the employer to post signs at one or more entrances to the building notifying entrants that gun possession is prohibited on the premises. States with such posting requirements include Alabama, Arkansas, Kentucky, Mississippi, and Tennessee, however, even in states like Georgia and Louisiana, where posting is not strictly required, it may nonetheless be advisable given the hunting culture present in many areas of those states. Where posted notice is required, states typically regulate the size, content, and location of such signs, so again, a careful review of the applicable laws is required. Employers should also consider requiring employees to sign an acknowledgement that they have reviewed and understand the company’s concealed weapons policy.

Fourth, enforcement of a concealed weapons policy can be tricky, particularly where the suspected violator is likely to be defensive in addition to armed. Any concealed weapons policy should clearly identify the person or persons responsible for investigating and/or enforcing potential violations. It should also clearly advise employees not to confront an individual they believe may be armed or otherwise in violation of the policy and instead instruct them to report their suspicions to the correct department or agency. Consideration of state law is also required on this point, as an employer’s ability to search an employee’s person, vehicle, purse, and/or locker, inquire whether employees have a firearm in their vehicles, and/or require employees to notify the employer if they have a firearm on their person or in their vehicle, varies from state to state.

Fifth, consider what options are available to an employer who learns that an employee is armed, licensed to carry, and/or stores a firearm in his or her privatelyowned vehicle. Several states in the region have enacted specific statutory causes of action for employees who suffer an adverse employment action as a result of their possession of a firearm where they did not possess the firearm in a manner inconsistent with the law. In Mississippi, for example, the Supreme Court has ruled that the legislature's passage of the parking lot law creates an exception to the state’s at-will employment doctrine, thereby permitting employees to sue for wrongful discharge on that basis.

Finally, in crafting an appropriate firearms policy, consider the culture in which your business operates. Will having a “no firearms” policy conflict with the hunting culture prevalent in much of the South, and would such a conflict in turn, adversely impact your business? Are your employees likely to feel safer or more concerned for their safety where lawful gun possession is permitted in the workplace? Will permitting firearms increase your company’s potential exposure to liability? (Note that while a handful of states immunize employers against liability for gun crimes committed by employees otherwise in compliance with workplace gun laws, most states do not afford employers this protection). Within the limits of state law, employers have much leeway in deciding how to approach this issue, and as is often the case, there is no one-size-fits-all solution.

Heather Hearne, Of Counsel The Kullman Firm – Baton Rouge Office hdh@kullmanlaw.com www.kullmanlaw.com

Employers Should be Vigilant with I-9 Compliance

By BRUCE E. BUCHANAN

Twice in the last two months, Immigration and Customs Enforcement (ICE) have conducted raids at employer facilities and detained about 100 employers in each raid. The first raid occurred in April at a meat slaughterhouse in Bean Station, Tennessee while the second one was in June at Corso’s Flower and Garden Center in Sandusky, Ohio and Castalia, Ohio.

Bean Station, Tennessee April 5 Raid On April 5, 2018, ICE, in conjunction with the IRS and the Tennessee Highway Patrol, raided Southeastern Provisions, a slaughterhouse in Bean Station. ICE/ Homeland Security Investigations (HSI) initially detained 97 workers, who were transported to a local armory. Of the 97 detained, 86 were put into ICE detention, 10 were arrested on federal criminal charges, and one was arrested on state charges.

Additionally, the government seized voluminous records and documents related to the company’s finances and payroll. After a review of these records and documents, it is expected the federal government will charge Southeastern Provisions with knowingly employing undocumented workers and various tax fraud offenses.

Role of IRS in Raid One of my initial questions was why the IRS was involved in the raid. A 26-page affidavit from an IRS Special Agent filed in federal court to obtain a criminal search warrant gives insight as to what led to the IRS’s involvement in the raid. It was due to probable cause to believe the company violated federal law by filing false tax returns, willfully failing to collect federal employment taxes, and evading the assessment and payment of other federal employment taxes.

According to the affidavit, federal authorities were originally tipped off by bank employees about large cash withdrawals from Citizens Bank in Morristown made by management/owners of Southeastern Provisions. When bank employees questioned the transactions, the affidavit said they were told the cash was used for payroll. Investigators say $25 million in cash was withdrawn from the bank accounts beginning in 2008. Thereafter, for an unknown reason, bank officials toured the slaughterhouse in December 2016 and they were told by management that most of their employees were Hispanic and paid weekly in cash.

On IRS forms, Southeastern Provisions reported only 44 employees to the government. But based on aerial surveillance, 87 vehicles were found parked at the plant, leading authorities to believe the plant was employing 30-40 more undocumented immigrants. Using numbers from the investigation, the government estimated if Southeastern Provisions had properly reported wages to the IRS, they would have an additional $2.5 million payroll taxes from 2013-2016 on top of what they had already paid.

Use of Confidential Informant Besides this information, the government use a confidential informant (referred to as CI-1 in the affidavit), who was hired by Southeastern Provisions. According to CI-1, he never completed any paperwork, such as an I-9 form, nor was he required to show any identification or documentation of lawful status before being hired. The informant said he was told he didn't need a lawful identity to work at the company.

He also reported he was paid in cash.

Corso’s Flower and Garden Center June 5 Raids The second raid occurred on June 5, when approximately 200 ICE agents swarmed Corso’s Flower and Garden Center facilities in Sandusky, Ohio and Castalia, and detained approximately 114 workers suspected of being in the country without proper work authorization. The workers were taken to various detention facilities in Michigan and Ohio, where they are expected to be placed into deportation proceedings and many are expected to be criminally charged with identity theft and tax evasion.

So, what happened to Corso’s? Company officials were not arrested during the raids. However, ICE agents, who had a criminal search warrant, carried boxes full of documentary evidence out of Corso’s. Steve Francis, special agent in charge of HSI in Ohio, stated, “We are attempting to identify what criminal network brought over 100 illegal aliens to Ohio to work.”

This raid was unlike the previous raid in Bean Station because ICE initially served Notices of Inspection weeks ago and had been auditing the 313 I-9 forms supplied by Corso’s. Before the service of the Notices of Inspection, ICE had been

receiving tips into Corso’s Flower and Garden Center and began an investigation in October 2017. A triggering event was the arrest and indictment of Martha BuendiaChavarria, who was charged with operating a document mill.

During the audit, ICE found 123 I-9 forms which were suspicious due to use of duplicate Social Security numbers and identification belonging to other people.

Presumably, these identification documents were produced by Ms. BuendiaChavarria. Thus, when the ICE agents raided the facilities, they had a list of names they had targeted for detention.

Prior Raids and Enforcement Actions Before these raids, ICE had not conducted any such large raids since August 2008, when it raided Howard Industries in Laurel, Mississippi. For the past 10 years, ICE has executed many so-called “silent raids” through the delivery of a Notice of Inspection (NOI)/subpoena. As an example, in January 2018, ICE appeared at 98 of 7-Eleven convenience stores nationwide to deliver NOIs. Takeaways After these raids, it is clear that employer raids will be a frequent tool of ICE. Every employer should be vigilant in their immigration compliance. I would advise employers to meet with their immigration counsel, or obtain immigration counsel, to conduct an internal I-9 audit and draft or review an immigration compliance policy.

Even if an employer is not raided, chances of being subject of an ICE audit have dramatically increased. ICE plans to conduct over 5,000 audits in FY 2018 and has plans to double or triple the audits. The FY 2018 audits is a 400% increase from FY 2017.

If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.

Bruce E. Buchanan, Attorney Siskind Susser PC bbuchanan@visalaw.com www.visalaw.com

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Allow All Team Members to Have a Voice

‡ Ways Leaders Can Build Emotional Intelligence in Their Workplaces

By HARVEY DEUTSCHENDORF

The notion that emotional intelligence (EI) is important in the workplace has been gaining traction in the business community for some time. According to the World Economic Forum emotional intelligence will be one of the top 10 job skills in 2010. In a 2011 Career Builder Survey of more than 2,600 hiring managers and human resource professionals, 71% stated they valued emotional intelligence in an employee over IQ; 75% said they were more likely to promote a highly emotionally intelligent worker; and 59% claimed they’d pass up a candidate with a high IQ but low EI. While leaders are aware that emotional intelligence is important when it comes to bringing new people on board, less attention has been paid to how to increase it in the existing organization. As important as it is to hire people who are high in emotional intelligence, it is equally important to develop a culture that supports and grows EI. While building an emotionally intelligent workplace is a daunting task and far more difficult than building our own, there are ways leaders can create the conditions conducive to building EI in their workplaces.

Here are 7 ways that leaders can build emotional intelligence in their workplaces:

Have Open, Flexible Policies Around Grieving and Loss Gandhi stated, “A nation’s greatness is determined by how it treats its weakest members.” Many others have come up with similar statements. An organization’s level of emotional intelligence can be determined by how well it treat’s staff who are experiencing the loss of a loved one or other very difficult losses. Susan Bartel, Associate Professor of Higher Education Leadership at Maryville University of St. Louis is doing research on grieving and loss in the workplace. She feels that organizations need to be more flexible and supportive of members that are experiencing loss. A standard policy of three days of bereavement leave does not send the message to their people they will be supported in their time of greatest need. Instead of restrictive stated policies, having a general understanding amongst staff that everyone in the organization will do everything in its' power to support those that are going through a difficult period.

Demonstrate Vulnerability From the Top An emotionally intelligent organization is one in which people are not afraid to be vulnerable and share their fears and concerns. This does not mean that it is okay just to release any and all emotions as they come up. Healthy work environments do however, not require that all feelings need to be stuffed down and repressed. As in all areas, it is the leader’s role to model this from the top. Leaders who appropriately share their fears, sadness and other feelings to their staff set a message that this is a safe place to work where we don’t have to be afraid of feelings leaking out.

We all have a need to be heard, even if others don’t agree with us. Allow every opportunity for team sharing and become aware of the different communication styles of team members. Allow time and space for quiet members of the team to be heard by setting an atmosphere of respectful listening without interruption or distraction.

Encourage flexibility in how team members express their ideas such as using message boards, videos and other forms of communication. Have a safe way, time and place for team members to express frustrations and concerns in order to clear the way for getting back and focused to work on solutions.

Share a Common Vision and Values In order to work well together, teams need to all be working towards a common vision. The more the goals are shared and become part of the fabric of all the members, the more powerful the group cohesion will become. Leaders need to spend time developing and maintaining group norms.

Leaders can demonstrate the importance of shared values by acknowledging and recognizing members that exemplify the values that the group is striving towards.

Encourage Group Sharing Both Within and Outside of Work Building a community of people that works well together can take place outside of the workplace.

People that spend time doing activities outside of work get to know each other as individuals and will form stronger bonds that help them at work.

This could mean going for drinks at the end of a working week, company retreats, going to sporting events and challenges or spending time volunteering at a worthwhile charity. Any event where members can have fun together and get to know each other on a personal level helps groups bond, builds cohesion and creates an atmosphere to pull together in the workplace.

Cultivating Self-awareness and Awareness of Others A great deal of conflict can be avoided and work relationships greatly improved by becoming more self aware and aware of others. Leaders can demonstrate awareness by publicly demonstrating they are aware of what those that work for them are going through. For example, a department that is implementing new processing technology might feel stressed and overwhelmed. Leaders could share their awareness by talking about a situation in which they have felt overwhelmed and stressed by learning new technology.

In meetings, leaders could take the lead in talking about their feelings in given situations and encourage their staff to do so.

Set Aside Time for Checking In and Sharing at Meetings In one organization I worked with, we started our monthly meeting by taking a couple of minutes of silence. This allowed everyone to get focused on the meeting. Next, we went around the table and everyone was asked to share something that was going on in our lives; sometimes called "checking in". It worked wonders in getting to know one another and made us aware of what others were experiencing in their lives. This increased awareness of each other’s struggles, joys and dreams make us a stronger more cooperative, effective team.

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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.

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