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Volume 9 : Issue 7


Top Educational Programs for HR Professionals

Age Discrimination on the Rise


Ruling on the Requirement to File EEOC Charges

SHRM Annual Conference & Exposition

June 23-26 in Las Vegas

Larry Valenti,

SHRM-SCP, GPHR, SPHR President of North Carolina SHRM State Council

Service Oriented. Client Focused. Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters.

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


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Online HR Certification Classes

Bringing Human Resources & Management Expertise to You

Job interviews only account for 14% of an employee’s performance. Editor

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

The Thompson HR Firm, LLC Art Direction

Park Avenue Design Contributing Writers

Austin Baker Rob Binkley Bruce E. Buchanan William Carmichael Alexander D. Clark Sinead E. Daly Harvey Deutschendorf Brad Federman Russell W. Jackson Russell A. Jones Alexander Landin Sonya Weathers Richard Works Evan S. Weiss Eddie Vaughn 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 We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2019 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.

Features 4 note from the editor 5 Profile: Larry Valenti, SHRM-SCP, GPHR, SPHR, President of North Carolina SHRM 8 Excellence Through Leadership Conference in Atlanta August 15-16 9 CHRO Thought Leadership Roundtable in Nashville May 23 15 AtlasHR – Manage Your Employees Differently with a Single Database Solution 16 Making the Case for Behavioral Interviewing 22 Best Practices for Setting Up Your Company’s Social Media Monitoring Policy 24 Why You Should Develop a Coaching Culture Within Your Organization 36 Age Discrimination on the Rise 37 Is Your Safety Manual Up to Date? 50 Highlights from the 3rd Annual Supervisor and Manager Conference in Memphis June 21 51 Book Look – Fired Up By Dr. Andrew Johnston 54 7 Habits of People with Highly Positive Attitudes

Top Educational Programs for HR Professionals 42 University of Memphis 43 Emory University Legal Training for HR Professionals: the Emory Juris Master Degree 44 WGU Bachelor’s or Master’s Degree Fully Aligned with SHRM’s HR Curriculum 45 Leadership Louisville 46 Wake Forest Master of Studies in Law Degree 47 Athens State University Vanderbilt Peabody College 48 Middle Tennessee State University Columbia Southern University 49 University of Louisville

Employee Benefits 21 Fellowship Hall Drug + Alcohol Recovery Center 25 Customized Benefits Solutions for HR Teams and Brokers 28 Questioning Your Retirement Plan? A Cash Balance Plan Might Be the Answer. 35 Living Your Best Life Means Having Life Insurance 55 Gradifi – a Job Benefit that Helps Your Employees Pay Off Their Student Loans

Employment Law

10 Employers Allowed to Prorate Bonus When Applying Neutral Policy to FMLA Employees 12 Oregon Court Lets Class Run with Pay Equity Complaint in Nike Case 19 40th Annual Wimberly Lawson Labor & Employment Law Update Conference in Knoxville November 21-22 20 Supreme Court Rules Employee Can Proceed with Lawsuit Despite Failure to File EEOC Charge in Timely Manner 26 Preventing Workplace Violence: Steps Employers Can Take Before Tragedy Strikes 30 Are Shortened Work Weeks a Required ADA Accommodation? 34 Republican Janet Dhillon is Sworn in as Chair of the EEOC 52 First 2019 Decision on an I-9 Case

Industry News

6 Highlights from the 2019 SHRM Annual Conference & Exposition in Las Vegas June 23-26 14 2019 North Carolina HR Conference in Hickory September 25-27 18 2019 TN SHRM Conference & Expo in Chattanooga September 18-20 23 SHRMGA Conference “Be the Voice of Work” in Augusta August 8 32 35th Annual KYSHRM Conference in Louisville August 28-30 33 24th Annual Mississippi HR Conference & Expo in Tupelo September 16-18 38 2018 SHRM Excel Award Winners Announced 39 Arkansas SHRM Employment Law & Legislative Affairs Conference in Little Rock September 26-27 40 2019 Alabama SHRM Strategy in the Sand Conference in Orange Beach October 11 41 UNA & Shoals SHRM Present 24th Annual North Alabama Human Resource Management Conference August 13

August 2019 issue features Profiles of ERISA and Employee Benefits Attorneys Retirement Planning and Compliance Employment Law and Benefits

Deadline to reserve space July 15


a note from the editor

This is a very special issue for two important reasons. We are excited

Save the Date for these upcoming SHRM Conferences:

to announce that North Carolina SHRM has joined our distribution footprint. HR professionals in nine states in the Southeast will now receive HR Professionals Magazine at their monthly SHRM meetings. We are honored to have Larry Valenti, SHRM-SCP, GPHR, SPHR, on our July cover. North Carolina SHRM represents 19 chapters throughout the state. Larry has a long history of volunteer service to SHRM. He is also the Lead HR Consultant at Duke Electric Corporation. I know you will enjoy reading Larry’s professional profile on Page 5. We also welcome our new sponsors

• SHRMGA Conference “Be the Voice of Work” in Augusta August 8 • UNA & Shoals SHRM Present 24th Annual North Alabama Human Resource Management Conference August 13 • 35th Annual KYSHRM Conference in Louisville August 28-30 • 24th Annual Mississippi HR Conference & Expo in Tupelo September 16-18 • 2019 TN SHRM Conference & Expo in Chattanooga September 18-20

from North Carolina!

• 2019 North Carolina HR Conference in Hickory September 25-27

Another reason this is a very special issue is because we are

• Arkansas SHRM Employment Law & Legislative Affairs Conference in Little Rock September 26-27

featuring top educational programs for HR professionals. If you would like to finish your degree or perhaps obtain a graduate degree, you will find many excellent offerings in this issue. We are showcasing many Southeastern colleges and universities with an array of online degree programs that are bound to meet your needs. Check out these fine programs beginning on Page 42. We have the highlights of the 2019 SHRM Annual Conference

• 2019 Alabama SHRM Strategy in the Sand Conference in Orange Beach October 11

Watch your email for your invitation to our July complimentary webinar sponsored by Data Facts on July 25. If you are not currently receiving our monthly email invitation, you can subscribe on our website at

& Exposition on Pages 6-7. This is the largest gathering of HR professionals in the world! It was one of the best conferences ever with keynote speakers, Johnny C. Taylor, Jr., Brene Brown, Vineet Nayor, and Martha Stewart. Of course, I have to admit that the Lionel Richie Concert on Tuesday night was my personal favorite! I hope you enjoy the pictorial highlights.

4 cythomps@twitter

Larry on the cover


LARRY VALENTI, SHRM-SCP, SPHR, GPHR President, North Carolina SHRM A native of Tampa, Florida, Larry is a True Duke Blue Devil, holding both bachelors and master’s degrees from Duke University. He is certified by SHRM as a Senior Certified Professional (SHRM-SCP) and by the Human Resource Certification Institute (HRCI) as both a Senior and Global Professional in Human Resources (SPHR & GPHR).

Larry Valenti, SHRM-SCP, SPHR, GPHR is the President of North Carolina SHRM, which represents 19 local chapters throughout the state. He has served in previous capacities on the State Council as Membership director, Treasurer, District Director and President-Elect. Larry has been honored for his commitment to the HR profession in North Carolina, including being the recipient of the NCSHRM Professional of the Year (2011), SHRM Southeast Region District Director of the Year (2014) and most recently inducted as a member of the North Carolina Human Resources Hall of Fame (2018). Larry also has a history of local chapter volunteer work and is a Past President of Charlotte Area SHRM. In 2015, Larry led the effort to organize and charter NCSHRM’s newest local chapter, LakeNormanHR, which serves HR professionals in the Huntersville/Davidson/Mooresville region and where he continues to serve as a board advisor. LakeNormanHR became an immediate super star chapter in 2018 when they were awarded a SHRM Pinnacle Award for an innovative educational programming partnership between the chapter and a corporate HR department. In addition to council and local chapter work, Larry has been an active supporter of HR through presentations on HR and career opportunities to the Charlotte Civitan Club, the NC Bankers Association, the SHRM regional student conference, serving as a student competition conference judge, supporting activities and scholarships at local SHRM student chapter events. At Duke Energy Corporation, Larry is the Lead HR Consultant responsible for supporting many areas of HR operations including: Corporate mergers, acquisitions and divestitures due diligence and strategy as it relates to human resources; project management and oversight of project budgets/ forecasts and employee/contractor resources; business continuity the HR function and disaster planning/humanitarian assistance/employee locator for major storm and other events. He is also the Treasurer of Duke Energy’s political action committee (DUKEPAC). Prior to working for Duke Energy, Larry held a number of roles in the non-profit healthcare area. 








1 Following, Alice Johnson's remarks, #SHRM President and CEO Johnny C. Taylor, Jr. spoke candidly to #SHRM19 attendees about the importance of giving those with #criminalbackgrounds a #secondchance in the #hiring process. 2 SHRM's CHRO Sean Sullivan and Chief Knowledge Officer Alex Alonso led a special media-only session in the Workplace Convos & Coffee pop-up on Monday. At the event reporters learned more about why SHRM is leading this effort to encourage strategic #workplace#culture change. 3 In her Sunday talk, Martha Stewart advocated for #secondchance#hiring as she recalled her incarceration. During that time, she said she taught other inmates about #business and #entrepreneurship. 4 Just prior to the kickoff of the first general session, #SHRM Chief of Staff Emily M. Dickens led a mega session, titled "Elevate Your Voice & #HR: Engaging with Policymakers on Today’s Critical #WorkplaceIssues." 5 In her Monday keynote, BrenÊ Brown challenged attendees to "Dare to Lead" stating that daring #leadership is a collection of four skill sets that are 100 percent teachable, observable, and measurable. 6 During Monday's #SHRM19 general session, Alice Johnson served as a surprise guest for attendees. Johnson made headlines in May 2018 for serving a 20-year prison sentence for a non-violent, first-time offense. In her comments Monday, she spoke about her time in prison and the importance of giving those with criminal backgrounds a second chance in the #hiring process. 6








14 7 Joining SHRM's CEO Taylor on stage were individuals with #criminalbackgrounds, #olderworkers, those with disabilities, veterans--all members of often overlooked #talent pool populations. 8 SHRM's John Austin, manager of certification relations poses with a SHRM attendee during the Grand Opening Reception in the Exposition Hall. Behind them is the SHRM certification booth where attendees can get more information about being SHRM-certified and re-certifying. 9 On Saturday, SHRM Foundation Director of Development Ashlee Smith kicked off #SHRM19 with programming on "Integrating & Engaging Veterans in the Workforce." 10 During Sunday's #SHRM19 keynote, SHRM Board Chair David Windley introduced featured speaker, Martha Stewart. In his comments he mentioned Stewart's natural fit for the conference, citing her business leadership and the importance of second chances. 11 Executive Director of the SHRM Foundation Wendi Safstrom led Sunday's brunch, themed "HR is a Social Force." The idea behind the theme was enabling #HR professionals to be change makers both in their organizations and in their community, through Foundation innovation grants, scholarships and their Veterans at Work initiative. 12 Sunday was the first official day of #SHRM19 in Las Vegas. More than 20,000 business leaders, #HR professionals, speakers and exhibitors from across the nation and over 90 countries are convening for the #SHRM 2019 Annual Conference & Exposition in Las Vegas. 13 The Grand Opening Reception took place on the first day of the #SHRM19 conference on Sunday, June 23. The reception provides an opportunity for attendees to visit the SHRM booths and interact with the 650+ companies exhibiting at the conference. 14 General session emcee and SHRM Foundation Board Member Melissa Dawn Simkins welcomed #SHRM19 attendees on Sunday to the largest-ever SHRM Annual Conference. In her opening remarks, she highlighted the conference theme of "creating better workplaces" and mentioned numerous SHRM initiatives, which work toward that goal, including Getting Talent Back to Work and Workplace Convos & Coffee. Photos by Chris Williams.


Register for Excellence Through Leadership Conference The Crowne Plaza Hotel & Conference Center Atlanta SW Peachtree City, Georgia August 15-16 2019 This Conference is pe-approved for 11 HRCI Business Credits and 11 SHRM PDCs!

Go to to register!

Speakers Mac Fulfer is an attorney who initially became interested in face reading for jury selection. After years of practice and study, he wrote Amazing Face Reading: An Illustrated Encyclopedia to Reading Faces. One of his most notable articles, “Nonverbal Communication: How to Read What's Plain as the Nose...or Eyelid...or Chin...on Their Faces,” was published in the Journal for Organizational Excellence. Mac's work has earned him a spot as a speaker at the National Conference of the Society for Human Resource Management for three consecutive years.

Charles Little, SHRM-SCP, SPHR, is President & CEO of Strategic HR Partners in Columbus, GA. He has 12 years of progressive hands on executive experience resulting in the position of CHRO. This was prior to starting Strategic HR Partners, an Employers Association, in 2007. His expertise includes human resource executive leadership, management recruiting, organizational development, strategic planning, compensation & benefits, positive employee relations, union avoidance, labor relations, performance management, international HR and leading culture change through continuous improvement (Crosby, Deming and Juran).

Gregory J. Hare is managing shareholder at Ogletree DeakinsAtlanta. He assists the company’s management team with a wide variety of human resource-related legal challenges, including claims of discrimination and harassment, sensitive investigations, severance planning, employment contracts, union problems, and government citations (NLRB, EEOC, DOL, etc.). Greg is a member of the SHRM-Atlanta Board of Directors and is a member of the SHRM National Speakers List. He AV-Rated and listed in Best Lawyers Labor & Employment Law, Super Lawyers and Chambers USA.

Margaret Morford is CEO for The HR Edge, Inc., an international management consulting and training company. Some of her clients have included Lockheed Martin, Chevron, Time Warner, U.S. Secret Service, Sara Lee Foods, Home and Garden Television, Margaret is author of “The Hidden Language of Business: Workplace Politics, Power & Influence.”

Dr. Kim Hutton attended the University of Kansas for both undergraduate and medical school. She completed her training in Family Practice at Trinity Lutheran Hospital in Kansas City. She practiced both emergency and family medicine in Oklahoma before working at CareATC as a physician. In 2013, she became Chief Medical Officer for CareATC. Dr Hutton also leads CareATC's Population Health and Wellness Division which incorporates lifestyle coaching and corporate wellness strategies, disease management, nutrition, exercise, risk identification, and self-management skills into best practices.

Nathan C. Levy is a partner with Levy, Sibley, Foreman & Speir, LLC, and handles affairs on behalf of the firm not only regionally but statewide. Nathan has practiced in the area of workers’ compensation defense since 1998. He served as 2003 Co-Chairman of the annual Workers’ Compensation Seminar. He was also a speaker in 2006 and 2013 on Case Law Update at the annual Workers’ Compensation Seminar and presented at the 2016 seminar on The Escalation of Pain Medication in Workers’ Compensation Cases. Nathan is a Martindale Hubbell AV Pre-eminent rated attorney.

Patrick DeCoster is Assistant Vice President for Cyber and Professional Liability with Chubb North America Financial Lines in the Southeast. He has ten years of underwriting experience with small, middle market, and multinational accounts. His background also includes Directors and Officers, Employment Practices, and Crime underwriting.

Madelyn Brown, SPHR, SHRM-SCP, is Executive Director Organizational Development & Training at Strategic HR Partners. Madelyn is a graduate of The University of Georgia in Athens with a BBA in Human Resources. She has over 25 years of Human Resource experience in Manufacturing and Technical Education. Her specific areas of expertise are in Management Training, Organizational Development, Coaching, Change Management, Continuous Improvement and Positive Employee Relations. At the present time Madelyn is the President of The SHRM (Society for Human Resource Management) Chapter in Columbus Georgia. Madelyn is certified by both SHRM national as a senior certified professional SCP, and by HRCI as a senior professional in human resources SPHR.

Here are some of the topics covered at the conference: • Why Should Someone be Led by You? • Human Resource Metrics that HR Leaders Use in Successful Companies 8

• How to Lead Wellness & Cost Containment Efforts Through On-Site Clinics

• Amazing Face Reading as a Science

• What You Don’t Know Can Hurt You – What’s New in Employment & Labor Law

• A Proactive Approach to Workers Compensation

• Management Courage

CHRO Thought Leadership Roundtable Event Mere Bulles in Brentwood, TN May 23, 2019 Mere Bulles in Brentwood, TN, was the setting on May 23 of the 3rd CHRO Thought Leadership Forum led by Cindy Olson, Chief Human Capital Strategist and co -founder of the Choice Strategic Alliance. This organization in partnership with ADP is bringing World Class Thought Leaders to Senior HR Leaders across the country. Harry C. Osle, Global HCM Advisory Principal with the Hackett Group, led the discussion on “Talent & Technology: The Keys to World-Class Performance in 2019.” This CHRO Thought Leadership Community, consisting of almost 400 C-Suite leaders, is being developed in seven cities across the country with the goal of bringing Insights of Next Gen and Future Technology capabilities to CHRO’s and even CIO’s and CEO’s. With so many challenges facing the business, the goal of these forums is to elevate these critical functions in their organizations to address the many business opportunities that companies are facing with respect to “Talent” and the “Future of Work.” These events are exclusive to the C-Suite and by invitation only with the vision of helping as many CHRO’s as possible bring Business Transformation to their organizations. If you would like to be involved, please contact Cindy Olson at

Harry C. Osle

Global HCM Advisory Principal The Hackett Group

Cindy Olson

Chief Human Capital Strategist and Co-founder of the Choice Strategic Alliance

Jerry Boyett

Senior Director HCM Partner Development at ADP

Jeff Phelps

Regional Sales Director Global Enterprise Solutions at ADP

Mere Bulles


Employers Allowed To Prorate Bonus When Applying Neutral Policy To FMLA Employees By RUSSELL W. JACKSON

In Clemens v. Moody’s Analytics, Inc., (2d Cir. May 3, 2019), the Second Circuit Court of Appeals (the federal appeals court with jurisdiction over Connecticut, New York and Vermont) reaffirmed that denying a bonus or other payment to employees on Family and Medical Leave Act (FMLA) leave as a result of the employees’ failure to meet established goals pursuant to a neutral policy is lawful. Specifically, the Court held that an employer did not interfere with an employee’s FMLA rights when it prorated the employee’s bonus based on production goals the employee did not meet while out on FMLA leave.

Summary of Facts Gregory Clemons worked for Moody’s Analytics, Inc. as a Solutions Specialist on its Stress Testing Team. In this role, Clemons provided guidance relating to stress testing for banks and other financial institutions. Clemons received an annual salary of $175,000 and was eligible for additional compensation under Moody’s bonus plan. Under the applicable bonus plan, Clemons was eligible for incentives resulting from his own performance as well as the overall performance of the Stress Testing Team, which was based on an annual sales target. Clemons was eligible for 100 percent of his incentive payout if he recorded at least 160 “contribution units” and the Stress Testing Team met its sales target. The incentive plan provided that “contribution units generated by the associate during the commission period [are] subject to manager review.” The plan also stated that Moody’s reserved the right to review the plan and adjust incentives and objectives, in its sole and absolute discretion and amend or terminate the plan without notice, in its sole and absolute discretion.

Background on Clemons’ Contribution Unit Claims During the 2015 year, Clemons recorded his contribution units using the Company’s Salesforce program. As his supervisors, Clemons’ Managing Director David Little and Team Lead Anna Krayn also reviewed the contribution units claimed by Clemons and other members of the Stress Testing Team. On May 14, 2015, Clemons began a paid leave of absence after being diagnosed with colon cancer. Clemons was on leave until June 5, 2015 and thereafter worked from home several days per week through July 10, 2015. Clemons received a second leave of absence from October 13, 2015, through November 23, 2015, as a result of a surgery. In 2015, Clemons was on a medical leave of absence for a total of 63 days. In February 2016, Moody’s prorated Clemons’ 2015 incentive compensation based on the number of days he was on FMLA leave. In February and March 2016, Little and Krayn identified a number of contribution units that raised red flags. Clemons had claimed multiple contribution units for what appeared to be related to two specific internal projects. The claimed contribution units for these two projects represented almost 20 percent of Clemons’ 164 claimed contribution units. Without these contribution units, Clemons would not be eligible for 100 percent of the target incentive compensation. Clemons also entered contribution units for client meetings that could not be verified through expense reports, Salesforce or other sources. Little met with Clemons and informed Clemons he was removing 20 of his contribution units. Little advised Clemons he was surprised by the claimed contribution units given the amount of time Clemons has been out on 10

leave. Little also removed an additional three contribution units related to a reported sales pitch. Little’s adjustments decreased Clemons’ 2015 contribution units for 2015 from 164 to 141. Accordingly, Clemons earned 80 percent of his targeted incentive compensation and was not eligible for an additional “over target” compensation. Little also discussed Clemons’ contribution unit discrepancies with Moody’s Human Resources Department and contended that Clemons may have falsified records in Salesforce in order to receive an increased commission totaling approximately $100,000. Human Resources relayed the allegations to Moody’s Compliance Department. Two attorneys within the Compliance Department conducted an investigation into the allegations. The investigators interviewed Clemons, Little, Krayn, Director of Business Analytics Charlotte Liu and members of the sales team relating to client meetings for which Clemons claimed contribution units. The investigators also reviewed Clemons’ Salesforce records, Clemons’ Outlook Calendar, and his work notebook. The investigation’s Compliance Report concluded that “it appears that Clemons entered false or inaccurate entries into Sales Force,” which “in their totality … violate Moody’s Business Code of Conduct.” The Code of Conduct stated that “[a] ny employee who creates … misleading or falsified records will be subject to disciplinary action up to and including termination.” Moody’s Investigation Review Committee reviewed the Compliance Report and determined that Clemons had violated Moody’s Code of Conduct and recommended termination of Clemons’ employment. Based on the Committee’s recommendation, Little advised Clemons his employment was being terminated.

District Court Decision On January 19, 2017, Clemons filed a lawsuit in the Southern District of New York. Clemons alleged interference and retaliation claims under the FMLA, a retaliation claim under the New York City Human Rights Law, a wage violation under New York Labor Law, and a breach of contract claim. The Southern District of New York dismissed the FMLA interference claim. The Court first noted that employers are permitted to prorate incentive bonuses to be paid to an FMLA taker by the amount of lost production (e.g., hours or another quantifiable measure of productivity) caused by the FMLA leave. The court held it was undisputed Clemons did not contribute to the Stress Testing Team’s production during his leaves. Accordingly, Moody’s did not violate the FMLA by prorating the incentive compensation to account for any lost production. Therefore, the court held, Clemons’ FMLA interference claim failed as a matter of law. On the FMLA retaliation claim, the court held Clemons failed to produce any evidence of retaliatory animus. The court noted there were no remarks by any Moody’s employee suggesting a disapproval of Clemons’ FMLA leave. Clemons admitted Little never voiced an objection to the two requests, and nobody made any derogatory or negative statements about the leave. Clemons acknowledged Little was supportive of Moody’s accommodations during his leaves. The Court found noteworthy an e-mail stating, “I am also very grateful for how Moody’s, and in particular, you, David [Little] and the management team accommodated me during my cancer surgery and recovery this summer.” The court also found there was no temporal proximity as four months had passed between the FMLA leave and the contribution units reduction and seven months between the leave and the termination decision.

Finally, the court held Moody’s produced a legitimate, non-discriminatory reason for the reduction and the termination because Clemons had falsely claimed credit for work activities to inflate his incentive compensation. Similar to the FMLA retaliation, the District Court held Moody’s was also entitled to summary judgment on the state law retaliation claim because there was no evidence of discriminatory animus based on Clemons’ disability or medical leaves. The court held Clemons’ breach of contract claim failed as a matter of law because the plan expressly stated contribution units were subject to manager review, and it was highly doubtful that Clemons was entitled to the contribution units he falsely claimed. Clemons’ state wage and hour claim failed because the court held the incentive compensation did not constitute wages under New York state law. Specifically, the court held incentive payments do not qualify as wages where they are based on a combination of individual and group performance or where the employer retains discretion not to pay the incentive plan.

Appellate Court Decision Clemons appealed the District Court’s ruling to the Second Circuit Court of Appeals. On appeal, Clemons argued 1) Moody’s interfered with his FMLA rights by prorating his incentive compensation; 2) he was entitled to a trial on his FMLA retaliation claim; 3) Moody’s reduction of his contribution units breached the contract between the parties; and 4) payments under the incentive compensation plan were “wages” protected by New York state law. With respect to the FMLA interference claim, the court affirmed summary judgment for Moody’s. The evidence revealed that Moody’s prorated all payments paid under the incentive plan based on the length of the leave, regardless of the leave’s reason – FMLA or otherwise. The court held Moody’s neutrally applied its prorating policy to incentive payments – as opposed to payments based merely on attendance. Accordingly, the court held there was no indication of an FMLA interference violation.

The Second Circuit also held that Clemons did not produce evidence that would permit a reasonable factfinder to conclude that the removal of the contribution units and his termination were motivated by retaliation. The Appellate Court determined that Little had met with Clemons prior to deducting the contribution units and that there was no evidence indicating a retaliatory animus. The court noted that Clemons even testified he did not believe he had been discriminated against because of his leave of absence requests. There was no evidence that Little’s actions were motivated by anything other than his legitimate skepticism of the units claimed by Clemons in light of his reduced working hours and Little’s own personal knowledge of Clemons’ activities. The Appellate Court vacated the lower court’s decision pertaining to the state law claims because it was unable to determine why it exercised supplemental jurisdiction over those claims.

Employers’ Takeaway This particular decision is an affirmation that employers may prorate or withhold bonus payments when the bonus is tied to a specific quantifiable goal and the goal was not met due to FMLA leave. The only exception is if the employer pays employees on non-FMLA leave the bonus when the bonus is not met. To that end, employers should remember that FMLA mandates that FMLA absences should be treated the same as non-FMLA absences.

Russell W. Jackson, Partner FordHarrison







T NO COST . . .




Photo: Footwear News

Oregon Court Lets Class Run With Pay Equity Complaint in Nike Case By EVAN S. WEISS

In May, a federal judge in Oregon adopted a Magistrate Judge’s February report and recommendation, which concluded that a class action complaint alleging systemic violations of federal and state equal pay laws contained sufficient allegations to survive a motion to dismiss. In the case, Cahill v. Nike, Inc., Case No. 3:18-cv-1477-JR (D. Or.), the named Plaintiffs alleged that Nike failed to pay or promote female employees in line with their male counterparts. The complaint, filed in August 2018, also alleged that Nike maintained policies that perpetuated the disparity, including that employees’ pay and promotions were controlled by upper-level management, most of whom were male, and some of whom engaged in harassing, hostile, and misogynistic behavior in the office. Further, the Plaintiffs alleged that Nike routinely provided a lower budget for pay raises to its departments in which higher percentages of females worked. Several of the Plaintiffs alleged specific instances of similarly situated male counterparts receiving higher salaries, including one who was paid less than her less educated and experienced male trainee. The named Plaintiffs are seeking to represent a class of all salaried Nike employees working at its Oregon headquarters. In her February report and recommendation, the Judge concluded that it was “not plain from the face of the pleadings that the proposed class [of female Nike employees] cannot satisfy the requirements of ” a class or collective action. Under the applicable standard, therefore, the Judge permitted the complaint to proceed through the initial pleading stage on a class and collective basis. For purposes of the motion at issue, Nike did not dispute that the Plaintiffs adequately pleaded individual equal pay violation claims. Rather, Nike argued that the allegations in the complaint were not sufficient to proceed on a class or collective basis. Several of Nike’s arguments generally challenged the propriety of resolving pay disparity claims on a class basis. The Judge’s ruling on Nike’s arguments could significantly impact future class-based claims for pay disparity and contains some important takeaway lessons for companies seeking to avoid expensive class litigation. First, Nike argued that equal pay claims such as those advanced in Cahill could not be resolved on a class basis because, under the applicable statutes, each Plaintiff had to show a comparator making more money for equal work. The Judge, noting that most of the named and opt-in Plaintiffs alleged such a comparator, concluded that the 12

allegations of company-wide policies that intentionally created a pay disparity across all departments in the company were sufficient to proceed to class discovery. Nike next argued that class resolution was inappropriate in a pay disparity case because each individual claim of pay disparity could be met with a factually specific affirmative defense. The Judge concluded that such an argument was speculative. The Judge also rejected the contention that the possibility of numerous defenses defeated the plausibility of a collective action. Again, the court relied on the allegations of companywide discriminatory policies to reject the argument that each member’s claim would be too individualized for class resolution. Nike’s third argument regarding the pay disparity claims was that it was implausible for a small number of named Plaintiffs to represent thousands of salaried employees. The Judge, however, concluded that, at an early stage of the proceedings, the allegations in the complaint were sufficient to show that all female employees were similarly situated. Again, the Judge relied on the allegations of systemic policies in reaching her conclusion. Nike also made similar arguments that the Plaintiffs’ Title VII intentional discrimination claim was not amenable to class resolution. The Judge ruled that because Plaintiffs alleged a company-wide policy of discrimination against all female employees, the standard for evaluating an individual disparate treatment claim did not apply. Rather, the allegations that the company’s “standard operating procedure” was to maintain discriminatory practices and that the named Plaintiffs suffered harm from those policies were sufficient to state a pattern-orpractice claim. Neither party objected to the Magistrate Judge’s report and recommendation, and, on May 16, the Court adopted the Judge’s report in full. It is important to note the limits of the Court’s order. The Court did not certify a class or even find that class certification is likely appropriate. Rather, the court only concluded that the complaint, on its face, made plausible allegations that the claims could be resolved on a class or collective basis. Nike’s arguments may ultimately prove successful later in this case. Even if Nike may eventually secure dismissal or judgment in this case, however, Nike will have to engage in discovery and further motion practice, both of which can be expensive.

For companies seeking to avoid being in Nike’s shoes (or, as the case may be, sneakers) the proceedings in the Cahill case provide several takeaways. The first important takeaway is to routinely review your company’s salary information to ensure that you are not, even inadvertently, paying certain classes of employees more than others. For smaller companies, the review process can be as simple as comparing the salaries of individual employees with similar levels of experience and performance. For larger companies, even those far smaller than Nike, having your human resources department or outside counsel engage in regular statistical review of salaries is a good idea. Not only does such a practice ensure fair payment of all employees, but it provides good evidence that the Company does not have a practice of discriminating against certain employees. Of course, if the statistical review demonstrates that there is pay inequity, the Company must be prepared to further explore the findings, including possibly taking remedial action. Failure to remedy a known pay disparity, even if the disparity was unintentional at the outset, could be used as evidence of the company’s discrimination. Another glaring takeaway from the Judge’s conclusions in Cahill is that the main reason that the class claims survived dismissal on the pleadings was that the complaint was able to allege specific companywide discriminatory policies. Without the allegations concerning those policies, Nike’s motion may have proved successful. Accordingly, it is important to regularly review your company’s handbook and other policies—with the help of human resources and employment counsel—to ensure that there are no structural issues that could lead to pay disparity.

In Cahill, one of the key allegations was that most decisions were made by male-dominated groups. Further, the few practice areas that were better represented by females were alleged to have received lower budgets, further frustrating female advancement within the company. In addition to reviewing policies, therefore, it is helpful to advanced equality of gender representation across all departments and at all levels of the company. Additionally, in Cahill, the Plaintiffs pointed to allegations that some male decision makers had engaged in conduct that was inappropriate, harassing towards women, and may have led to a hostile work environment. The complaint also alleged that Nike failed to act on complaints of such conduct for some time. On the surface, inappropriate comments may appear to be a separate issue from pay disparity. However, faced with allegations of intentional gender-based pay disparity, allegations of sexual harassment by decision makers can bolster claims of intentionality. On the other hand, (in addition to being the right thing to do) being able to demonstrate that a company takes sexual harassment claims seriously may help undercut a claim of intentional discrimination. Even a company that engages in best practices may be confronted with a complaint that alleges that best practices have not been used and that pay disparity resulted. Regularly reviewing company policies to ensure that best practices are being used, however, will both ensure that your company is treating all of its employees fairly and make it easier to defend any claim that is nevertheless made.

Evan S. Weiss, Attorney Martenson Hasbrouck & Simon LLP

Martenson, Hasbrouck & Simon LLP focuses its practice


on labor and employment defense and business litigation. Our reputation for excellence has been earned through our dedication to providing innovative solutions to the most difficult problems at an exceptional value. We have forged long-lasting relationships with our clients through our tenacity, skill, and accessibility. Based in Atlanta, in the heart of Buckhead, with two additional offices in California, we have developed a highly flexible representation model that enables us to serve clients of all sizes, across all regions of the country.

Contact Marty Martenson at (404) 909-8100

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Making the Case for Behavioral Interviewing BY BRAD FEDERMAN

Years of research on interviewing demonstrates one thing: we are awful at interviewing. The odds of our ability to predict success from a typical interview is about the same as flipping a coin. Most interviews have a correlation coefficient of 0.14. What that means is that these interviews can only account for 14 percent of an employee’s performance. That leaves a great deal of room for error. Would you flip a coin to determine the car you would drive? How about the house you purchase? Absolutely not. We should not when it comes to hiring people that represent our brand internally and externally. We do not have to settle if we understand why our interviews are not productive.

First Impression Will Rogers said, “You never get a second chance to make a first impression.” When it comes to interviewing, this sentiment seems to be very accurate. A University of Toledo study determined that conclusions made in the first 10 seconds of an interview predicted the outcome of the interview. That is very concerning. Ten seconds is too quick of a judgment. What they found out next is even worse. Interviewers tended to spend the rest of the interview time trying to confirm their first impression. Also known as confirmation: the predisposition to look for, highlight, interpret or prioritize data in a manner that confirms one’s views or assumptions. Another way to look at this is that the majority of interviews are a complete and utter waste of time. More than 99 percent of the time interviewing is used to confirm whatever positive or negative impression the interviewer formed in the first ten seconds of the interview.

Bad Questions Many interviewers still ask questions that are illegal, bizarre, hypothetical, have no real answer, gain little information, and promote generalizations or a focus on traits. Here are examples of wrong questions that you may have come across in past interviews: • Do you know how to use Excel? It is a yes or no question that gives the interviewer little to no information. Most people will answer yes, but that is still not helpful. If we need someone who has excel skills, we need to know how well they know excel. What types of projects can they handle? • Do you have a car? Do you have children? Are you married? The problem with these types of questions is that they are usually illegal. Anytime you hear a close-ended question ask yourself, “Is this question even helpful? Is this question illegal?” • If you could sing one song on American Idol, what would it be? There is no right answer. It puts the candidate in a place where they must guess what the interviewer wants to hear. The inter16

viewer is trying to gauge the candidate’s personality and make a judgment call. The problem is that the question is subjective. The interviewer is playing armchair psychologist. Ironically psychologists would tell you not to base a decision off the answer to a question like that. • How many deep-dish pizza restaurants are there in Chicago? Many organizations use puzzle questions in interviews. They serve little purpose. In most cases, people do not have enough information to answer them. As you use them, candidates become aware of their use and prepare. Regardless, they show little to no ability to predict good hiring. They do, however, make the interviewer feel bright and gifted. Oh yes, I forgot the interview is not about the interviewer (sarcasm noted here). • What would you do if a customer started yelling at you? Hypothetical questions equal hypothetical answers. There is a difference between what someone does in a situation versus what someone will tell or make up what they would do. Most candidates will pull from their training and give you a reasonably strong answer, but that does not mean they have the personality traits, skills, and competencies actually to do it. You also can’t probe for more information because it is not a real situation. If you try, all you are saying to the candidate is: please make up some more stuff for me. The worst part of a hypothetical question is there is no way to verify the information because it is not real. The best type of question you can ask is a behaviorally-based question that is singular about a past event. An example of that type of question would be, “Tell me about a time when you were able to help lead a group through a difficult change?” This type of question allows interviewers to ask for more detail, and it can be verified. However, even when asking behaviorally based questions, the interview process can be flawed and will not produce the results for which you are seeking. Too many companies have a bank of questions or tell their managers to make up behaviorally based questions believing they are engaging in behavioral interviewing. That could not be farther from the truth. Behavioral interviewing requires several components: Structure/System. Behavioral interviews ask questions about the most important aspects of a job and company. To accomplish this the interviews for each position or job family are unique and based on a job profiling process. Every competency is clearly defined, and the interviewer(s) knows precisely what success looks like in that role. There is a clear probing strategy that behavioral interviewing uses to be successful and a rating process and structure that drives more objectivity and less subjectivity. It is this structure that drives results. It also requires training for the interviewer.

Training. People who are going to interview candidates need to understand: • The behavioral interviewing process • What behavioral based questions look like • The difference between traits and behaviors • The difference between useful information and bad information • How to manage the interview • How to build rapport without getting into legal trouble • Interviewing techniques such as using silence • How to get a complete picture of a candidate • How to use a structured interview • How to properly probe for more information • What a complete answer looks like

• How to ensure candidates feel comfortable in a behaviorally based interview • How to manage the selection process • Rating candidates in an objective manner • How to represent your organization in a selection process • How to make an offer

Holistic Process Remember that interviewing is only one aspect of the selection process. Other parts of the process can include components such as: • Resume screen • Reference checks • Background checks • Realistic job previews • Work samples • Skills testing • Cognitive testing

• How to stay legal More important than understanding all of these components, interviewers must be skilled at many of them as well. That takes training. Ironically, companies use to invest in these systems and in the training that went along with them. However, many companies stopped after the economic crash in 2008 because they weren’t hiring. Now companies are hiring and competing for talent. Those companies with the best selection processes and skilled interviewers will win.

The key is to set up a costeffective approach with the least costly efforts on the front-end and the most costly on the back end. The goal should be to keep as many good candidates in the system while weeding out the unqualified in a manner that challenges candidates and puts your company in the best light possible while being honest. So how are you doing? Isn’t it time you reinvest appropriately to bring on the best?

• Personality testing You will not use all of the possible components. The selection process will differ based on factors such as: • The type of role • Types of candidates • The number of applicants you typically receive • Your turnover rates and when they are occurring (first 3-6 months, after a year)


Brad Federman, Chief Operating Officer F&H Solutions Group

F&H Solutions Group can help you

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

lower turnover by about

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

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A unique social event will be held at Southside Social in Chattanooga’s Southside district . Southside Social is a family-friendly boutique bowling alley that offers 10 lanes in addition to 4 bars. Southside Social offers an exclusive atmosphere which creates an exuberant experience, including: lounge seating with flat-screen televisions, and an indoor gaming area with pool tables, skee ball, ping pong, shuffleboard, giant jenga and more. The outdoor courtyard also offers casual seating, fire pits, ping pongtables, horseshoes, and cornhole.


Attendees, Exhibitors, and Sponsors may visit for registration and hotel information. For additional questions regarding the 2019 conference, please email


Newsletter Date

Volume 1, Issue 1


REGISTER NOW for our 40th Annual Labor & Employment Law Update Conference, Nov. 21—22, 2019

Overtime Rules LGBTQ+, Religious Liberty and Title VII

Wimberly Lawson is pleased to celebrate the 40th Anniversary of our Labor & Employment Law Update Conference. The event started as a small local seminar, and has grown steadily in size and success. I would like to personally thank our many attendees over the years and recognize our attorneys that have made the Conference a success through their longstanding commitment to excellence in the field of labor and employment law. Every year, the Conference is truly the high point for our firm — a time to gather with friends and discuss important issues in the areas of labor and employment. Our day-and-a-half program covers a sweeping range of relevant laws, important legal decisions, and societal trends affecting labor and employment. Approximately thirty employment law attorneys will Jeffrey G. Jones present more than thirty-five topics that have been Firm Managing Member carefully selected to address the concerns of all employers. This year’s Conference will offer sessions that summarize relevant past-year’s developments while offering insights into ongoing changes in the employment and labor climate.

Marijuana Use and Drug Testing Harassment, Discrimination and In-House Investigations Agency Enforcement Actions —EEOC, NLRB, DOJ, OSHA, etc. Leave Laws Handbooks and Policies Employee Hiring, Retention, and Termination And More!

PLEASE PLAN NOW TO JOIN US on November 21st and 22nd! We promise you an informative, but light-hearted, thorough and practical journey through today’s workplace issues. Hope to see you there!


2. 3. 4. 5. 6.

MAIL to: Bernice Houle, Wimberly Lawson Wright Daves & Jones PLLC, P.O. Box 2231, Knoxville, Tenn., 37901-2231 FAX to: 865.546.1001 EMAIL to: BHoule@ VIA WEBSITE: PHONE: 865.546.1000

A FEW COMMENTS FROM LAST YEAR “Always informative, great presentations!” “Topics are spot-on for the workplace today!” “The presenters are knowledgeable and fun!” “Well done! So comprehensive!” “The Conference is one of my favorites!”


Sevierville Convention Ctr. at Wilderness at the Smokies

“Just 30 minutes from downtown Knoxville!” Special Conference Rates Stone Hill Lodge 1431 Old Knoxville Hwy. Sevierville, TN 37876

Inside Story


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Supreme Court Rules Employee Can Proceed with Lawsuit Despite Failure to File EEOC Charge in Timely Manner By ALEXANDER D. CLARK

The Supreme Court recently held, in Fort Bend County, Texas v. Davis, that the provision in Title VII of the Civil Rights Act of 1964 (Title VII) instructing plaintiffs to file a charge with the Equal Employment Opportunity Commission (EEOC or Commission) or other state fair employment agency is a non-jurisdictional claim-processing rule. This means that a defendant can waive its right to object to a plaintiff’s failure to comply with the charge-filing requirement if the issue is not raised in a timely manner.

Title VII’s Charge Procedure All employers should be familiar with Title VII and its proscription on discrimination in employment on the basis of race, color, religion, sex, or national origin. The Act further prohibits retaliation against persons who assert their rights under the statute. As a precondition to the commencement of a lawsuit brought under Title VII, a complainant must first file a charge with the EEOC or, when a state has a fair employment agency of its own, with the appropriate state agency. In fact, the applicable statute directs that a “charge . . . shall be filed” with 180 days “after the alleged unlawful employment practice occur[s],” or, if the charge is lodged with a state agency, the complainant must file a charge with the EEOC within 300 days following the alleged unlawful practice or 30 days after receiving notice that the state or local proceedings have ended, whichever is earlier. Upon receipt of a charge, the EEOC provides notice of the charge to the employer and investigates the allegations. If the EEOC finds “reasonable cause” to believe that the charge is true, Title VII instructs the EEOC to “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” When a charge is not resolved by informal methods, the EEOC has the first option to bring suit against the employer in court. If, however, the EEOC finds “no reasonable cause” to believe the charge is true, the EEOC must dismiss the charge and notify the complainant of his or her right to file suit in court, which must be commenced within 90 days following receipt of the notice.

The Facts of Fort Bend County, Texas v. Davis Lois Davis worked in information technology for Fort Bend County, Texas. In 2010, she informed Fort Bend’s human resources department that she was being sexually harassed by the director of technology, 20

Charles Cook. The County investigated Davis’ claim, after which, Cook resigned. However, Davis’ supervisor, Kenneth Ford, was apparently “well acquainted” with Cook, and, after Cook resigned, Davis alleged that he began retaliating against her for reporting Cook’s sexual harassment. Seeking to remedy her asserted harassment and retaliation, Davis submitted an “intake questionnaire” with the EEOC in February 2011, followed by a formal charge with the EEOC in March 2011. While her charge was pending, Davis was told to report to work on an upcoming Sunday. Davis informed Ford, her supervisor, that she would be unable to come to work due to a prior commitment with her church that Sunday. Ford responded that if she did not show up for the Sunday work, she would be subject to termination. Davis went to church, not work, that Sunday, and was fired for her failure to attend. In an attempt to supplement her pending charge, Davis handwrote “religion” on the “Employment Harms or Actions” part of her intake questionnaire, and she checked boxes for “discharge” and “reasonable accommodation” on that form. She made no change or alteration, however, to the formal charge document. A few months later, Davis received her “right-to-sue” notice, and, in January 2012, filed a lawsuit against Fort Bend in a federal district court in Texas, alleging discrimination on account of religion and retaliation for reporting sexual harassment. The district court ruled for Fort Bend on both the discrimination and retaliation claims. On appeal, the Court of Appeals for the Fifth Circuit (which hears appeal from, among other places, federal district courts in Texas), affirmed the district court’s decision as to the retaliation claim, but reversed as to her religious-based discrimination claim. Therefore, the case was remanded to the same district court to reconsider Davis’ discrimination claim based on the Fifth Circuit’s opinion. Thereupon, Fort Bend asked the district court, for the first time in years-long litigation, to dismiss Davis’ pending claim of discrimination against it because the district court lacked jurisdiction to adjudicate Davis’ religious-based discrimination claim due to Davis’ failure to exhaust her administrative remedies as to that claim. The district court agreed, and dismissed the lawsuit on the basis that the charge-filing requirement is jurisdictional, which means the requirement cannot not be waived. The Fifth Circuit reversed the district court’s dismissal, holding that Title VII’s charge-filing requirement is a “prudential prerequisite to suit, forfeited in Davis’ case because Fort Bend” waited “years into the litigation,” and “did not raise it until ‘an entire round of appeals[.]’”

The Supreme Court’s Ruling and What it Means The Supreme Court affirmed the Fifth Circuit’s decision, holding that “Title VII’s charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of the courts.” The provisions of Title VII requiring a charge to be filed with the EEOC are separate from the provision granting federal district courts jurisdiction to adjudicate such claims, and the charge-filing provisions do not refer to jurisdiction of such courts in any way. Rather, Title VII’s provisions instructing plaintiffs to file a charge speak to a party’s procedural obligations, requiring complainants to submit information to the EEOC and to wait a specified period before commencing a civil lawsuit. If the Supreme Court had ruled that the charge-filing requirement was jurisdictional, Davis’ case would have been dismissed with no exceptions. Instead, because the requirement pertains only to a complainant’s procedural obligations, Davis’ employer waived its right to rely on Davis’ failure to file a charge for religious discrimination as a basis for dismissal by waiting too long to raise it. While not jurisdictional in nature, the Supreme Court emphasized that the charge-filing requirement is still a mandatory, precondition to filing a Title VII lawsuit. While Davis prevailed under unique factual circumstances, the ruling provides little incentive for complainants to neglect filing a charge, as it would provide a dispositive defense for the employer if promptly raised. Few employers would neglect such an opportunity to dispose of a charge filed against them.

Employer Takeaways from the Fort Bend County Opinion In a civil action under Title VII, the claims asserted in the federal lawsuit must be identical to those in a charge levied at the administrative level. For example, a Title VII lawsuit alleging race discrimination and gender discrimination should be preceded by a charge that alleges both forms of discrimination. Thus, an employer that finds itself defending a Title VII lawsuit should begin by making two inquiries: (1) did the plaintiff/ employee file a charge with the EEOC or an equivalent state agency? (2) If the answer is yes, did the plaintiff/employee assert the same claims in the lawsuit as he or she did in the charge?

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If the plaintiff/employee either failed to file a charge at all or the claims in the lawsuit expand on the claims asserted at the administrative level, the employer should move to dismiss the claims not raised at the administrative charge level for failure by the plaintiff/employee to exhaust his or her administrative remedies. Employers should consult with counsel to make this assessment, and motion, without delay. The Supreme Court stressed that an employer’s valid defense to a lawsuit based on a failure to file an adequate charge can be forfeited if the employer waits too long to raise the argument. Thus, the sooner the objection is raised the better for the employer. Ideally, this dispositive defense would be raised in an employer’s initial answer and/or motion to dismiss.

CALL ADMISSIONS TODAY 1-800-659-3381 Alexander D. Clark, Attorney Cross, Gunter, Witherspoon & Galchus, P.C.

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• Illegal activity. Employee drug use, embezzlement, and all other illegal activities can end up harming a company’s profitability and image. Finding these red flags is integral to getting a handle on the problem before the incident does damage.

form is evergreen, which means you can use the agreement indefinitely. That way you don’t have to deal with the paperwork hassle of getting them to sign off on a social media check every time you conduct one.

Posting, tweeting, and sharing are terms that we hear all the time with regards to our social media profiles. It’s commonplace to share comments and photos about our personal lives, behaviors, activities, relationships, and even political and religious viewpoints.

Unlike criminal background checks— which negatively and disproportionately impact minorities and low-income communities— social media data is truer to a person’s character and more accurately represents social demographics. When performed in a thoughtful, compliant, and legal way, reviewing an employee’s social media presence encourages more positive relationships between coworkers and managers, notifies HR of potential burgeoning issues, and promotes a corporate culture of diversity and inclusion.

• Promote and practice screening consistency. Use processes for social media screening the same way you conduct other background screening like criminal checks and motor vehicle records searches. Document a list of the sites you screen, the information you search for, and how it will be used. For example, if Instagram isn’t on your list, don’t use it on only younger employees.

As an HR Professional, you need to ponder how this affects your company.

“70% of employers already use social media in a hiring decision, up by 60% since 2016.”

Social media is permeating the business world. Most companies have a presence on at least one social media channel to promote their products and strengthen their branding messages. Employees also contribute to the overall company reputation by what they share online.

In 2019, many companies are using social media to screen their job candidates. Why not leverage the information that can be gathered from social media to monitor your current employees, too?

Best Practices for Setting Up Your Company’s Social Media Monitoring Policy By SONYA WEATHERS

HR must proactively design a policy that addresses social media usage and set guidelines of what is and isn’t acceptable behavior, and make sure it’s followed with a comprehensive social media monitoring process. Why is social media monitoring important? Social media screening taps into publicly shared social media information to determine whether someone is successfully representing and promoting the company’s core values. Although widely believed, social media screening and monitoring does NOT focus on personal habits or traits, but highlights behavior that could raise serious concerns in the workplace. For example: • Racism. Derogatory comments and likes about a group of individuals may show attitudes that could be harmful for the company’s reputation and potentially spark workplace conflict. • Sexism. Evidence of sexism on social media may prompt HR to work with the employee so he or she doesn’t behave in a way that gets the company sued down the road. • Violence. Companies have a responsibility to create a safe working environment. Threats or evidence of violent tendencies on social media could end up affecting the workplace and should be addressed. 22

While this is not legal advice, we’ve established some best practices for setting up your company’s social media policy. Step 1: An essential first step is to establish a clear policy for pre-hire screening as well as for your current employees. A set of guidelines will help your team understand your definition of acceptable online behavior while giving them space to express themselves freely. Step 2: Next decide how you want to implement social media screening into your process. These should be written down and explained to all employees. Nothing should be done in secret or come as a surprise. Step 3: Consider hiring a reputable third-party background screener to conduct your employee social media monitoring. Outsourcing investigative work is less expensive and eliminates the risk of a hiring manager viewing protected class information that they now cannot un-see. As with any policy that impacts an employee and their job position, HR needs to set compliant parameters and make sure all supervisors are aware of them and know how to put them into action. • Get the employee’s permission to screen in writing. Tell your employees they will be the subject of a background check that will include their social media profiles. Ask them, as you would with any background check, to sign an authorization agreeing to be the subject of a background screening report. With your new hires, make sure your authorization

• Follow a traditional background screening process. Ideally, information found in a social media search should be used to counsel and address the attitude or behavior. Write out the plan for each of the unacceptable attitudes you could possibly uncover, including how you will deal with each. • Don’t use it alone. Social media screening is only one facet of a person’s life and won’t paint a complete picture. Continue using other forms of background screening and consistent supervisor reviews to measure every employee’s performance within your organization’s culture. Some final social media monitoring Dos and Don’ts. • DO inform your employees in advance and gain written consent. • DON’T ask candidates to log into their profiles while you are present. • DO follow the same FCRA guidelines you would for any other background check. • DON’T ask employees for their login credentials. HR is trending toward using social media screening as part of the hiring process but should also consider using it consistently to monitor current employees’ behaviors and attitudes. Identifying dangerous, illegal, and hurtful or violent beliefs early on helps keep the company’s reputation safe from embarrassment and lawsuits.

Sonya Weathers, National Account Executive Data Facts, Inc.

SHRM Georgia State Council In Partnership With Central Savannah River Area SHRM Present

“Be The Voice Of Work” August 8, 2019

Sarah Lamar

Hunter Maclean

Greg Hare

Ogletree Deakins

Melissa Furman

Augusta University

Leadership, Legal and Legislative Conference Hear from Subject Matter Experts on Employment Law, Legislative Updates and Leadership Skills REGISTRATION: Before July 15th - $125 July 16th - August 8 - $140 7 Hours of HRCI and SHRM PDC’s will be available

Doors open at 7:00 a.m. for registration Breakfast and lunch provided Conference begins at 8:00 a.m.


Why You Should Develop a Coaching Culture Within Your Organization By AUSTIN BAKER

Most employers are constantly striving for happier and more engaged employees. Employee engagement not only correlates with employee satisfaction and a lower turnover, but also leads to increased productivity and overall company profitability. The question then becomes, how do you engage employees? One practice many businesses deploy is developing a coaching culture. Coaching can improve your organization’s ability to set goals and achieve satisfying results by helping employees identify and take advantage of their natural strengths through the mentorship of coworkers and leadership. Coaching cultures emphasize training, regular feedback, and opportunities for growth. The Benefits of a Coaching Culture: Your leaders and managers achieve more through their teams by encompassing a coaching culture, specifically by developing managers to promote the coaching leadership style. This in turn leads to: • Increased engagement • Increased collaboration in the workforce

Start at the Top: • Developing a coaching culture and sustaining it over time requires support, commitment, and buy-in from senior leaders. It’s worth considering not only if your senior leadership team has had training and experience in coaching others, but also if they have direct experience of being coached themselves. This in turn would help them understand the importance of top-down coaching as well as understanding the structures needed to be in place for the culture shift to succeed. Develop Your Managers Coaching Skills: • While senior leadership support is integral, managers are well placed to embed coaching into day-to-day business life. Invest in supporting managers to develop coaching skills and empower them to adopt the approach of supporting team members to develop their own strategies rather than telling them what to do. Coaching can be used in one-to-one’s, performance reviews, and day-today interactions to develop and progress talent. It can also be used to tackle any elements of poor performance, by coaching employees to understand and solve performance problems rather than punishing the employees. The aim is to create an environment where coaching is used as the main method of management.

• Development of people and performance

Quality Over Quantity: Developing an Effective Coaching Process:

• Improvement of creativity and agility

• MORE coaching does not mean it is necessarily BETTER coaching – neither the number of sessions nor the length of the program correlate with better coaching results. Rather, coaching succeeds when it is targeted to the particular needs and challenges of the employees concerned.

• Increased responsibility in employees • Newly formed change management capabilities Coaching Culture: Where to Start The first step is to create a clear vision for the culture. It doesn’t have to be a perfect picture, but it does need to be inspiring! How will the culture help you deliver your short-term and long-term strategy? What’s in it for leaders – and for all employees? How will it benefit your customers/shareholders? Identify Pain Points within Your Current Culture: • Before you begin constructing your coaching culture, you need to identify and understand the specific problems employees are experiencing within your current culture. Has accountability been pushed to the wayside? Do certain managers follow their own methodology which produces results but doesn’t follow the coaching processes you set? When you have these pain points at hand, you’ll have a good idea of where the largest challenges will be in the transition process. 24

Use your employee survey to drive your coaching culture strategy and prioritize the areas that need the most improvement. Identify those opportunities and make conscious efforts from the top-down to make a culture improvement identified by your employees, then re-evaluate with a second survey after the changes are implemented. It’s also important to make coaching a relatable and regular experience. Try to weave coaching elements into a normal working day so it becomes part of the culture, not a one-off attempt to make a point. This could be done with weekly or daily feedback sessions, a free-flowing ideas board or a suggestions box. It’s about creating coaching techniques that will continually help your team learn and grow, rather than making a reactive effort then stopping. Provide Feedback Effectively: • To provide effective feedback to employees there are a few rules of thumb that have proved successful in our experience. For many of our clients making progress with building a coaching culture, they are:

❖ Make feedback timely so people can remember the event and incorporate the feedback into their learning ❖ Start with something positive, to generate a positive mood and make people more receptive ❖ Frame advice positively so it is more likely to be heard and followed ❖ Choose the ideas that are actually achievable for employees

Implement and Reward: • Once behavioral change kicks in, it is important to reinforce it in order to sustain the culture. Organizations implement workplace reward systems to retain employees, increase morale and improve overall service and productivity within the company. Employers who are developing, revamping or currently implementing an employee rewards program should consider these initiatives: ❖ Institute a system of recognition awards including peer recognition and team recognition. You can add employee-of-the-month awards and appreciation luncheons to let employees know you are aware of excellence in the workplace. ❖ If you offer professional development, you not only foster employee loyalty, you improve the skills of your workforce. Provide tuition assistance, technology training, time off for outside seminars or mentoring programs that help employees grow in their careers. Final Thoughts: Creating a strong coaching culture takes time but will certainly payoff in the long-run through increased engagement, lower turnover, and higher job satisfaction. While each organization’s approach to coaching will take a different path based on its distinctive organizational needs, goals, and initiatives, the companies that go the extra mile in implementing these practices will reap the benefits for years to come.

Austin Baker, President HRO-Partners

Austin Baker is the President of HRO Partners, a human resources consulting and benefit administration and enrollment firm as well as a National Enrollment Partner Member representing the largest boutique, full service insurance and enrollment firms in the country. A veteran of more than 16 years in the human resources and insurance & benefits industry, Baker is responsible for managing a multifaceted human resources consulting company with public workforce programs and services focused on companies in the southeastern United States. Austin is a frequent speaker on a variety of leadership and benefit topics representing thought leadership and innovative practices in the HR industry. For more information, call Baker at 1-866-822-0123, visit or connect with the company at hropartners, or company/hro-partners

hropartners @hropartners


Preventing Workplace Violence:

Steps Employers Can Take Before Tragedy Strikes


Consider the old adage, “An ounce of prevention is worth a pound of cure.” In the wake of multiple violent tragedies in workplaces across the country, including the recent deadly shooting in Virginia Beach, employers should consider taking steps to prevent violence in their workplaces. Following highly publicized incidents of workplace violence, employers and employees alike often lament, “We never thought it could happen here.” Given the virtually incurable nature of workplace violence resulting in injury or death, employers are well advised to appreciate that no workplace is entirely immune from potential violence.

While it may not be possible completely to inoculate a workplace from violent acts, there are proactive steps employers can consider to improve the chances of preventing or minimizing workplace violence. For example, employers can work to foster a violencefree workplace culture that encourages employees and managers alike to spot and to alert their employers if they experience troubling behavior or communications that might lead to workplace violence. Employers can also establish, communicate, and consistently enforce policies expressly prohibiting workplace violence and encouraging employees to report threatening or suspicious conduct. Employers can review the security features of their facilities and can take steps to create a safer physical working environment. Additionally, employers can consider training employees and managers concerning the warning signs of workplace violence and concerning the security and safety features of their physical work environments. The Legal Duty to Provide a Safe Workplace The federal Occupational Safety and Health Act (“OSH Act”) makes covered employers responsible for providing a safe workplace, free from recognized hazards that cause or are likely to cause death or serious physical harm to employees. This federal law imposes a general duty on employers to maintain a safe workplace. According to the Occupational Safety and Health Administration (“OSHA”), the federal agency charged with enforcing the OSH Act, workplace violence is any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at a work site. This includes verbal threats as well as physical acts and can involve employees, clients, customers, vendors, and visitors. Note also, that many states have adopted laws to address workplace safety, so it is important for employers to be familiar with applicable state laws as well. 26

Create a Violence-Free Workplace Culture It is important for employee engagement, productivity, and morale that employees feel safe in their workplaces. To facilitate a conducive working environment, employers should encourage employees to report suspicious or threatening behavior or communications that constitute or could be a precursor to workplace violence. Examples of such behavior can include off-handed threats of violence by co-workers (whether made in-person, electronically, or even over social media), significant changes in a co-worker’s personality, a co-worker’s communication that he is contemplating suicide, or knowledge of a co-worker who is experiencing domestic violence (which often spills over into the workplace). If employers reassure employees that such concerns will be investigated promptly (without retaliation and in as confidential a manner as possible), and that appropriate action will be taken when warranted, employees may be more willing to report their concerns. Employers can reiterate the avenues available to employees to report any troubling observations such as talking with a supervisor or manager, contacting Human Resources, or by utilizing a complaint hotline established by the employer. Furthermore, an employer can offer its employees access to an employee assistance program (“EAP”) that may provide or direct employees to a host of helpful services including mental health and suicide prevention counseling. By instilling an “if you see something, say something” culture within its workforce with a focus on employee wellbeing and workplace safety, employers may have an opportunity proactively to prevent potential issues that could lead to workplace violence before it is too late. Of course, employers that receive reports of such behavior must respond promptly and appropriately to address these concerns. Establish, Communicate, and Consistently Enforce Policies and Procedures Addressing Workplace Violence A key step employers can take to foster a violence-free workplace is by having written policies and procedures that expressly address workplace violence. Employers can develop policies prohibiting workplace threats and violence

and providing employees with clear guidance on how to report behaviors or communications that could lead to violence. Often styled as “zero tolerance” when it comes to workplace violence, such policies also may include an employer’s commitment to maintaining a safe environment free from violence and intimidation, definitions of workplace violence, examples of what constitutes workplace violence, and a description of the type of objects that are considered prohibited weapons. It also is advisable for such policies to inform employees that violations may result in disciplinary action, up to and including termination. Employers also may want to establish policies for conducting background checks of candidates who are provided conditional offers of employment. Such checks may help to identify and to preclude from employment individuals who have a history of engaging in violent acts. Employers that adopt and maintain policies aimed at preventing workplace violence should ensure that they are communicated to employees regularly and that they are consistently applied and enforced. Given that state laws can vary regarding many topics often addressed in policies related to workplace violence, such as criminal background checks, guns on employers’ property, and protections for victims of domestic violence, employers should be familiar with applicable state laws when developing and enforcing such policies. Review the Safety and Security Features of Physical Working Environments Another step employers can take to prevent or to minimize the impact of workplace violence is to conduct an assessment of the safety and security measures in their physical workplaces and facilities. Such an assessment may identify any shortcomings in physical security and safety protocols and may provide the employer the opportunity to adopt or to install additional safeguards. Depending upon the nature of the workplace and workforce, such measures may include, for example, establishing or updating facility access controls, installing security cameras, reviewing job descriptions to ensure duties and responsibilities for workplace safety and security are defined accurately and appropriately, and establishing protocols for recommended practices in the event of a workplace violence event. Additionally, employers may consider forming a safety and security management team charged with implementing, reviewing, and managing issues related to workplace safety and security. Such a team can assist the employer with assessing and implementing the employer’s preventative policies and procedures and can engage in advance planning for responding to workplace violence issues that may arise.

violence. For those in a supervisory capacity, employers can provide training on how to spot and to respond appropriately to issues involving potential or actual workplace violence. By conducting these trainings periodically, employers can reinforce the culture of a violence-free workplace, which may result in early detection and a reduction of the risk of violence. In light of the highly publicized incidents of workplace shootings, there has been increased discussion regarding employers providing employees with “active shooter training.” This training often focuses on conveying to employees options that they have during an active shooter event. It is advisable that employers not conduct active shooter training themselves. Rather, for potential liability reasons, employers are strongly advised to have law enforcement officials conduct any active shooter training and to make clear that the recommendations, including the common mantra of “run, hide, fight,” are those of federal and state law enforcement officials and not the employer’s. Typically, during active shooter training, employees are instructed to identify potential escape routes (run), identify potential hiding places and barricading techniques (hide), and, as a last resort, only if in imminent danger, strategies to confront an attacker physically (fight). While active shooter training may be beneficial, each employer needs to determine whether such training is appropriate for its workplace and its workforce. At this time, there is no legal requirement to conduct this type of training. If an employer elects to provide active shooter training, the employer should carefully assess the qualifications of any trainer it retains, the substance of the training, and the methodology of the training in order to consider whether the benefits will outweigh the stress it may cause employees. Conclusion While the goal of maintaining a safe and violence-free culture may be applicable to all workplaces, there are vast differences across industries, working environments, and workforces. There is no one-size-fits-all solution to address workplace violence prevention. Instead, each employer should consider carefully its specific circumstances to evaluate what may work best for its employees and where it may be able to improve approaches to preventing workplace violence. Although the potential of workplace violence may be impossible to eliminate in its entirety, employers can take steps to help prevent and to minimize such risks. By fostering violence-free workplace cultures, by implementing appropriate policies, by reviewing safety and security features and protocols of physical working environments, and by providing tailored training to employees, employers can take an ounce of prevention and reduce the risk of violence in their workplaces. Additionally, to achieve a healthy dose of workplace violence prevention, employers also may want to consult with experienced professionals including labor and employment counsel and other workplace safety and security experts.

Consider Providing Training Regarding Workplace Violence Prevention Another preventive step employers can take is to provide education and training programs to employees that focus on safety and security policies and protocols, the warning signs of potential violence, and the appropriate ways for employees to respond if they experience or observe such signs before tragedy strikes. Employers can emphasize the need and means to report troubling behavior or suspected violence. Further, employers can advise that it does not tolerate any retaliation against anyone who makes a good-faith report of a potential incident or threat of

Russell A. Jones, Shareholder Littler Atlanta

Sinead E. Daly, Associate Littler Atlanta


Questioning Your Retirement Plan? A Cash Balance Plan Might Be The Answer.



mid the widely-publicized decline of defined benefit pension plans, one type of defined benefit plan, the “cash balance plan,” has actually been growing in popularity. These plans have the distinction of being the most “time-tested” of all the hybrid plans, combining many of the desirable features of traditional defined benefit plans and defined contribution plans.

What’s the attraction to the cash balance plan that has caused the growth? For smaller employers seeking to upgrade benefits, they can offer larger tax deductions and benefit security that is lacking with a stand-alone 401(k) plan. For other employers, it can be an important component of pension de-risking strategy, offering lower cost and volatility while avoiding the loss of benefit security following a freeze or termination of the traditional defined benefit program.

Employee understanding. Many would argue that having benefits stated as an account balance, as they are in traditional defined contribution plans, does not provide a sufficiently transparent indicator of benefit adequacy. Nonetheless, traditional defined contribution plans are usually cited as enhancing employee appreciation and understanding of the plan, due to the member’s familiarity with a vehicle that is relatable to a bank account. On the other hand, the concepts in a defined benefit plan are generally more complex and can present a challenge. In cash balance plans, the account-format structure should be easier to understand. Targeting benefits demographically. In general, the accrual patterns in a traditional defined benefit arrangement deliver more benefits to older, longer-service workers, while the opposite is usually true in defined contribution plans. This is illustrated graphically below using examples of a 4%-of-pay defined contribution plan (or a cash balance plan), and a traditional defined benefit plan with a typical annuity formula. Employers’ preferences can vary: some may prefer a vehicle that delivers more benefits to earlier years to accommodate a mobile workforce (provided high turnover or generous vesting doesn’t drive up cost), while other employers, even today, prefer steering benefit dollars to longer-service associates.

Cash Balance Defined Cash balance plans create a notional account for each participant, defined by contribution credits and interest credits. The contribution credit can be a percentage of pay or a flat dollar amount. The interest credit is a stated rate; either a fixed rate such as 5%, or a variable rate tied to an index, such as the 30-year Treasury rate. Specifying the earnings rate in this manner means that the plan will pay benefits based on this guaranteed rate, regardless of the actual earnings (or losses) on the underlying assets. This is the fundamental distinction between these plans and a traditional defined contribution plan, where employees’ benefits rise or fall with the change in plan assets.

Cash Balance Features and Advantages Traditional defined benefit plans and defined contribution plans each have unique strengths and weaknesses, often leaving employers who are designing or updating a retirement benefit strategy to wrestle with the tradeoffs. A cash balance plan, being a hybrid, might be the optimal choice for many employers in many situations. The advantages include the following: Benefit security. Traditional defined benefit plans provide a more predictable retirement benefit than defined contribution plans. Several features of defined contribution plans account for their potential shortfalls, including employee participation being voluntary (usually), the ability to divert accounts to uses other than retirement, and, primarily, that benefits vary with the performance of the underlying plan assets. In contrast, cash balance plans afford the same predictability and are covered by the same Pension Benefit Guaranty Corporation (“PBGC”) insurance program as traditional defined benefit plans. Cost stability. The other side of the coin to benefit security is potential volatility and higher costs. When assets underperform, or other plan experience adversely varies from expectations, employer costs can increase. Premiums for PBGC insurance have also increased dramatically in recent years. Indeed, it is high cost and volatility which have prompted many employers to migrate toward defined contribution plans over the years. Cash balance plans often avoid many of these problems. Because the benefit levels provided are usually lower, the associated costs, including PBGC premiums, are likewise lower and more manageable. In that respect, they provide a good balance between benefit security and cost, which is not available to as great a degree in traditional plans. 28

Grandfathering in pension de-risking. In recent years, employers have sought to mitigate risk in their traditional pension plans with an array of strategies that include liability transfer, reducing or eliminating future benefits, or ultimately, plan termination. By striking a more even balance between benefit security and cost, cash balance plans are often the best choice for a replacement plan or for providing grandfathering protection to those who would otherwise suffer unacceptable “haircuts” under a benefit freeze or plan termination. Effective vehicle for smaller employers. The advantages of cash balance plans for small, closely-held business are well-known. In those situations, they provide a path that can expand benefits and offer tax advantages well beyond those afforded by a stand-alone 401(k) plan. This can help a business owner not just from a tax standpoint, but also as a way to bolster retirement benefits that took a back seat to building the business in earlier times.

Summary No single brand of retirement vehicle is inherently superior to another. The choice depends on the employer, driven by their specific human resource and financial objectives. Many employers though have found cash balance plans to be the best route, particularly small employers looking to enhance their programs, or other employers seeking to balance risk, benefit security, and cost.

Eddie Vaughn Senior Vice-President, Retirement Consulting Practice Leader McGriff Insurance Services 336-291-1142

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Are Shortened Work Weeks a Required ADA Accommodation? By ROB BINKLEY


an an employee require an employer to provide him with a shortened work week as a required ADA accommodation? The answer in one recent case was “No.” In Johnson v. Ford Motor Company, U.S.D.C. Michigan 1/2/2019, Mr. Johnson sued Ford Motor Company under the Americans with Disabilities Act and its Michigan equivalent

statute because Ford refused to accommodate his “eight hour maximum work per shift/forty hours maximum work per week” medical restriction after he sought to return to work as a process coach (production supervisor) and refused to engage with him in an interactive process during a nine month period. Johnson had had a leave of absence for back pain and high blood pressure and his doctor returned him to “light duty work” for four hours per day for four weeks. Ford accommodated Johnson’s restrictions at that time. Johnson a few months later initiated a second leave of absence for an aggravation of his back pain and hypertension and also depression. During this second leave he transitioned to inactive or off-roll status pursuant to Ford’s policy. Johnson for nine months requested reinstatement once his doctor released him to return to work with an eight hour per day/forty hour per week work restriction. However, Ford declined his request because the other process coaches were working ten to fourteen hour shifts and production supervisor positions were not available for only eighthour shifts. Ford eventually did reinstate Johnson with his requested

Johnson alleged that an abundance of work for process coaches was available for the production supervisors to perform and therefore, Ford could have easily provided him a position limited to eight hour shifts. Agreeing that plenty of work existed, Ford contented that its policy and practice was to manage periods of increased workload by mandating process coaches to work longer shifts and to transfer underused process coaches from other facilities to perform the work. In other words, underutilized or shut down Ford facilities would loan process coaches to those facilities with excessive work demands. Further, Ford demonstrated that its longstanding, well-established policy was that local management could mandate longer work hours, but not increase the number of process coaches for budgetary reasons. Johnson did not submit any evidence that Ford had an open process position into which he could have been placed during the nine month period in question. Johnson submitted declarations from other employees that Johnson’s Ford plant was very busy during the time period in question. However, Johnson was not able to rebut Ford’s evidence that Ford staffed the particular plant with process coaches “borrowed” from other plants who were on layoff and who were being paid by their home plants and Ford did not have an open or vacant process coach position at Johnson’s plant during the time in question. Johnson acknowledged that the work was being performed by process coaches from other plants even though he believed that there were “open” positions during the nine month period. Further, when the particular Ford plant did have an opening for a production supervisor, Ford offered the position to Johnson moving Johnson from inactive to active status. Noting that ADA case law was clear that Ford was not obligated to create a new job or position or displace an existing employee to accommodate a disabled individual, the court concluded that Johnson’s claim failed because he did not establish that a process position was open during the nine month period in question.

work restrictions anticipating that workloads would decrease in upcoming months, but Johnson soon thereafter initiated a third medical leave period and did not return to work because he was unable to work in any capacity because of his back pain. 30

Johnson also complained that his supervisor failed to engage him in an interactive process by telling him merely that there was no work available to Johnson rather than explaining to him that no position was open. His supervisor did not have the authority to

hire or fire anyone and further could not have brought Johnson back to work without approval of human resources and upper management. Johnson was not able to show that Ford had in the past allowed plant management to exceed manpower allotments to hire other production supervisors. Thus, the court rejected Johnson’s “animus” contention finding that Ford was not required to engage in an interactive process when an employee sought a position that was not open.

The court also placed significant emphasis on the fact that Johnson was not able to show that he could have performed the essential functions of the process coach during the nine month period in question. Johnson argued that certain parts of his job responsibilities could have been shifted to other process coaches thereby permitting him to work an eight hour shift each day rather than the ten to fourteen hour shifts worked by other process coaches during that time. The court noted that an employee could make out a prime facie case of failure to accommodate under the ADA by specifying the duties that others could perform in his stead by establishing that those duties shifted. However, Johnson did not do so here. The job description for the process coach position required the “ability to work any shift as well as rotating shifts and weekends.” Production schedules required regular overtime with shifts well in excess of eight hours during the relevant period. The parties agreed that the last two hours of the process coach’s job was particularly tedious and important. Johnson wanted to shift this tedious and important work to other production supervisors for each and every one of his shifts. The court noted that although a reasonable accommodation may include job restructuring, part time or modified work scheduled, or reassignment to a vacation position, removing an essential function from

the position is per se unreasonable. Further, the ADA does not require employers to shift an essential job function onto others. Here, the court concluded that Johnson was asking Ford to shift the most tedious and important of the position’s responsibilities to others, the court concluded that no reasonable juror would find that the end of the shift closing duties were “marginal” functions of the process coach/position supervisor position that could “easily” have been shifted to Johnson’s fellow process coaches. The job description and the actual day to day experience of the process coach position demonstrated the essential function nature of the end of the shift activities. Thus, the court concluded that Johnson impermissibly wanted to have other process coaches perform essential functions of his job.

This case emphasizes the importance of having clearly thought-out job descriptions carefully incorporating the essential functions of the position and making sure that management across the board consistently follows policies and procedures, as well as reminding employers that the ADA neither requires an employer to shift essential functions of a position nor create a position as an accommodation nor engage in an interactive process when a job position has no opening.

Rob Binkley, Attorney Rainey Kizer Reviere & Bell, PLC


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24th Annual Mississippi HR Conference & Expo September 16-18, 2019 BancorpSouth Arena & Conference Center Tupelo, Mississippi

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Janet Dhillon is Sworn in as Chair of the EEOC By ALEXANDER LANDIN

On May 15, 2019, Republican Janet Dhillon was officially sworn in as the 16th Chair of the U.S. Equal Employment Opportunity Commission (EEOC) – the federal agency that administers and enforces civil rights laws against workplace discrimination and harassment. Dhillon had been nominated by President Trump in 2017 and confirmed by the U.S. Senate by a vote of 50-43 on May 8. Dhillon’s term as Chairwoman will expire on July 1, 2022. The bipartisan Commission that Dhillon joins is comprised of five seats, each appointed by the President with the consent of the Senate. On the Commission, Dhillon joins Republican Victoria A. Lipnic, who has served as Acting Chair since January 2017, and Democrat Charlotte Burrows – whose term expires on July 1 but can be extended by an additional 60 days (until September 1), if a new pick is not named. With Dhillon’s swearing-in, the Commission regains its three-seat quorum that it lost in January. The other two seats on the Commission (one designated for a Republican and the other for a Democrat) remain open after Democrat Chai Feldblum left her seat to go into private practice and Republican

nominee Daniel Gade withdrew his name from consideration. It has been rumored that Democrats are contemplating nominating Office of Special Counsel’s Louis Lopez, who has been endorsed Hispanic National Bar Association, for the open Democratic seat. In addition to the two open seats, the Commission’s General Counsel position also remains open (it has remained vacant since December 2016). Republican Sharon Fast Gustafson has been nominated for the position, yet she still awaits confirmation as civil rights organizations have voiced concerns about some evasive answers given during her confirmation testimony regarding the rights of LGBTQ workers.

Dhillon’s Background Dhillon graduated magna cum laude from Occidental College, a small liberal arts college in Los Angeles, before attending law school at UCLA, where she ranked first in her class. Following law school, Dhillon worked for 13 years at the law firm of Skadden, Arps, Slate Meacher

& Flom before serving as Senior Vice President, General Counsel, and Chief Compliance Officer for US Airways Group, Inc. After US Airways, Dhillon served as Executive Vice President, General Counsel and Corporate Secretary for JC Penney Company, Inc. before serving as Executive Vice President, General Counsel, and Corporate Secretary for Burlington Stores, Inc. In addition to her employment with three Fortune 500 companies, Dhillon also co-founded and currently sits on the board of the Retail Litigation Center (“RLC”), a coalition of chief legal officers of the country's leading retail companies that advocates for the retail industry’s perspective in judicial proceedings. With respect to employment-related issues, the RLC has taken positions in favor of narrowing class action and employer liability standards, supporting mandatory arbitration and class action waivers, and increasing judicial review of EEOC actions. Lastly, Dhillon’s husband, Uttam Dhillon, who previously served as Deputy Counsel and Deputy Assistant to the President, is currently the Acting Administrator of the Drug Enforcement Administration.

With Dhillon’s swearing-in, the Commission regains its three-seat quorum that it lost in January. 34

Looking Ahead There are currently two important issues looming on the horizon that will likely affect the EEOC in the immediate months to come. The first issue is the EEO-1 Report, a federally mandated annual survey that requires private employers with 100 or more employees (and federal contractors with 50 or more employees) to provide data on the race/ethnicity and gender of their workforce across 10 job categories (referred to as “Component-1 data”). Two years ago, the EEOC expanded the EEO-1 survey to require employers to provide wage and hour data of their workforce (referred to as “Component-2 data”). While private employers with more than 100 employees are required to submit both Component-1 and Component-2 data, only federal contractors with 100 or more employees are required to submit Component-2 data.


Before this new requirement could take effect, the Office of Management and Budget (OMB) stayed the EEOC’s collection of Component-2 pay data. A

lawsuit naturally ensued, and on March 4, 2019, a federal court in Washington D.C. lifted the OMB’s stay of the revised EEO-1 Report that included the collection of Component-2 data. Due to the Court’s ruling, employers are currently required to provide Component-2 data for the 2018 and 2017 calendar years as part of the EEO-1 Reporting process by September 30, 2019.

constitutes sex discrimination that is prohibited by Title VII of the Civil Rights Act of 1964 (Dhillon declined to adopt the agency’s position during her confirmation hearing), the U.S. Department of Justice has taken the opposite stance. The U.S. Supreme Court has accepted to hear a series of cases confronting this issue but will not likely rule on the matter until 2020.

And, while the Department of Justice has filed an appeal of the Court’s ruling, the EEOC has issued a statement through its website telling employers that the appeal does not impact the September 30 deadline. It has yet to be seen if the EEOC will decide to eliminate or revise the Component-2 data requirement, although any decision to do so would still be subject to the notice and comment rule-making process used by government agencies when creating new administrative regulations.

So, while it is still too early to tell which direction the EEOC will head under Dhillon’s leadership, her background suggests that the EEOC will continue in its current direction, which is away from large class actions and towards less regulation.

The second major issue is the workplace rights of LGBTQ employees. While the EEOC maintains that discrimination based on sexual orientation or gender identity

Alexander Landin, Attorney The Kullman Firm New Orleans Office



Age Discrimination

on the Rise By RICHARD WORKS

During the past few decades, a combination of decreasing fertility rates and increasing life expectancies has aged the U.S. population and labor force. The labor force is getting older if the share of those under 25 years of age declines, or if the share of those 55 years and older increases. By 2026, the labor force should be much older and the average age of the labor force will have increased. In this article we’ll take a look at the employment projections from the Bureau of Labor Statistics through 2026.

The overall labor force participation rate peaked at 67.1 percent from 1997 to 2000. After the 2001 recession, it trended downward. In the aftermath of the 2007–09 recession, the overall labor force participation rate plunged sharply and continued a decline, registering at 62.7 percent in 2015. It changed slightly in 2016, increasing by 0.1 percentage point to 62.8 percent. As a result, the labor force participation rate had dropped by 4.3 percentage points by 2016 from its peak in 2000.

The civilian noninstitutional population is projected to grow by 24.6 million, reaching 278.2 million in 2026. The percentage of the youth (16 to 24) and the prime age (25 to 54) groups in that population are will decline over the period (see figure 1). In contrast, the percentage of those 55 years and older are projected to increase significantly. These changing demographics in the population will effect on the labor force, economy, and employment over the decade. The overall labor force participation rate will decline as older workers leave the labor force, putting a constraint on economic growth. The aging baby-boomers will drive demand for healthcare services and related occupations.

The continued shift of the population into older age groups will have effects on the labor force and the overall labor force participation rate. In 1996, the entire baby-boom generation was in the prime age group with a participation rate of 83.8 percent (see figure 2). In 2001, the first of the baby boomers moved into the 55-and-older age group. The labor force participation rate of the older age group, which had been increasing since 1995 from a rate of 30 percent, peaked in 2012 at 40.5 percent and declined slightly to 40.0 percent in 2016. The overall labor force participation rate is projected to decline in the next decade because of the labor force moving into higher age groups with lower participation rates as the population ages.

Figure 1. Population share by age group

Figure 2. Labor force participation rate by age group


Although the participation rate of the prime age group shows the strongest attachment to the labor market, its participation rate usually has been steadily declining since 2000. Its rate is expected to change a little over the coming decade, increasing marginally from 81.3 percent to 81.6 percent. With increased school enrollment at all levels, more young people than ever before are continuing their education in hopes of gaining better employment. The participation rates of both 16-to-19-year-olds and 20-to-24-year-olds have diminished sharply over the past few decades. Their rates are expected to fall further, though at a slower pace. The labor force in 2026 is expected to be older and more diverse. The median age of the labor force should rise a tad to 42.3 in 2026—the highest level ever recorded. The projected labor force annual growth of 0.6 percent through 2026 is because of sluggish population growth. Changes in the age composition of the population and labor force participation rates of the different age groups are expected to affect growth. The shares of both the youth and the prime age groups in the labor force will decline, whereas older workers will continue to increase their percentage to about one-quarter of the labor force by 2026. The 75-and-older group is projected to have the fastest growth. However, BLS projections by design assume that the economy will be at full employment in the target year (2026). This assumption is useful because variations in the business cycle are not predictable over a decade. The full-employment assumption asserts that the economy is operating at a high rate of resource utilization (including employment) and that output growth is sustainable.

The labor force in 2026 is expected to be older and more diverse. An aging and slowly growing population yields in slow growth for the labor force. Expectations for the overall economy are higher than they were the previous 10 years. However, economic growth levels are not expected to reach those of the 1970s, 1980s, and 1990s. Most job growth through 2026 should come from service-providing sectors, and by 2026, 81 percent of jobs are projected to be in these sectors. In addition, growth of real output from service-providing sectors will be somewhat quicker than that of the overall economy. Those occupations related to healthcare will have the fastest employment growth through 2026. Rapid industry growth will cause growth in healthcare occupations to be much faster than the average for all occupations because of the needs of the aging baby-boom generation and of an increasing number of people with chronic conditions.

Dr. Richard Works, Economist Bureau of Labor Statistics - Washington, D.C.

Is Your Safety Manual Up to Date? • Do you have an emergency response plan? • Do your employees know what to do in case of an active shooter? • Do your employees know OSHA regulations? • Do you need a worksite assessment to determine your risk? If you answered no to any of these questions, you should call William Carmichael, Ed.D, to assist you with developing or updating your organization’s safety manual. He can also assist with your safety training program. Don’t wait until it’s too late! Contact Bill at 901.228.5255 or by email at


2018 SHRM Excel Award Winners Announced Congratulations to the following chapters and state councils on receiving a 2018 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.



158 Wiregrass Human Resource BRONZE Mgmt. Assn. SILVER 700 Shoals Chapter SHRM GOLD 161 East Alabama SHRM GOLD 635 Baldwin County SHRM PLATINUM 92 SHRM-Montgomery 253 North Alabama Chapter of SHRM PLATINUM


90 148 187 262 467

Central Arkansas HR Assn. NOARK HR Assn. Western Arkansas HR Assn. NE Arkansas SHRM West Central AR SHRM



235 68 80 88 429 442 488 11 38 74 139 151 216 409 437 476 478 546 679


SHRM SWFL Space Coast HR Assn. HRM Assn. of Palm Beach County Greater Pensacola Chap. of SHRM Ocala HR Management Assn. St. Lucie County HR Assn. Charlotte County SHRM SHRM Jacksonville Greater Miami SHRM HR Tampa Sarasota Manatee HRA Mid-Florida SHRM North Central Florida SHRM Big Bend SHRM Bay County SHRM HR Collier HRMA of Martin County, Inc. SHRM Volusia/Flagler Chapter Florida Keys SHRM


624 157 70 112 128 154 622

Foothills of Georgia Northwest Georgia SHRM SHRM-Atlanta Savannah Area SHRM SHRM-Columbus Area SHRM Middle Georgia Greater Henry County Chapter of SHRM 623 Southwest Georgia SHRM/Albany Chapter



365 536 548 73

SHRM-Bluegrass Chapter Four Rivers SHRM Northern KY SHRM Louisville SHRM


LOUISIANA 63 207 257 258 331 367 558 580

NOLA SHRM Northeast Louisiana SHRM Greater Baton Rouge SHRM Northwest Louisiana SHRM Acadiana SHRM Central Louisiana SHRM Bayou SHRM Northshore SHRM


MISSISSIPPI 196 508 143 400

GOLD Northeast Mississippi HR Assn. GOLD Delta HR Management Assn. PLATINUM Capital Area HR Assn. Gulf Coast Human Resource Assn. PLATINUM

86 648 737 719

120 132 210 416 570 627 702 756 76

Winston-Salem SHRM Cabarrus Regional SHRM HR Assn of Greater High Point Union County Human Resource Assn. HR Mgmt. Assn. of Greensboro Raleigh Metro SHRM Iredell Human Resource Assn. Central Carolina SHRM Western North Carolina HR Assn. The Alamance County HR Assn. Catawba Valley SHRM Chapter Lake Norman HR, Inc. Triangle SHRM



134 83 347 387

SHRM-Memphis Middle Tennessee SHRM Tennessee Valley HR Assn. SHRM Chattanooga





2019 Strategy In the Sand Save the Date | October 11, 2019

Register at SPEAKERS

Alabama and the Southeast’s Business & Workforce Objectives: • • •

Discuss current state of business & workforce in Alabama and the Southeast Share the Future of Alabama business Provide strategies for impacting challenges and opportunities that will arise in the current & future state

Strategic Hiring Objectives: • • •

Identify the problem you to need to solve Establish a problem-solving practice Strategically hire to solve the problem

The Disney Magic of Organizational Culture Objectives: • •

Identify the power of organizational culture and its relationship to business success Discover how Disney uses organizational culture to positively impact its people, processes, and property Determine ways to implement these ideas in the workplace

UNA & Shoals SHRM ® Present 24th Annual North Alabama Human Resource Management Conference Save The Date! August 13, 2019! Quick Links

Register Contact Us

Save The Date!! Make plans now to attend the 24th Annual North Alabama Human Resource Management Conference offered by UNA Center For Learning & Professional Development and the Shoals Chapter Society for Human Resource Management (SHRM®) You can register online here: UNA/SHRM HR Conference or contact our office at 256-765-4862 to register by phone. Please share this email with others who may be interested. Sponsor space is available! Contact Crystal Wilson if you are interested in an Exhibitor Registration Form @ or sign up online at

24th Annual North Alabama Human Resource Management Conference 24th Annual North Alabama Human Resource Management Conference August 13, 2019 Price: $139/$99 for SHRM® Members Discounts are given to currently enrolled students; call for details Fee includes continental breakfast, lunch, course materials, and a certificate of attendance Location: Guillot University Center on the campus of UNA CONTINUING EDUCATION UNITS The Continuing Education Unit (CEU) is a nationally recognized method for noting non-credit Continuing Education participation. One CEU is awarded for each 10 hours of participation. Some programs carry other professional acknowledgements. Certificates of attendance listing the numb er of CEUs and other approved hours will b e availab le.

University Of North Alabam a Meghan Fike, CPP Program Coordinator Center For Learning & Professional Developm ent UNA Box 5036 Florence, Alabama 35632 (256) 765-4862 - main (256) 765-4289 - direct



Educational Programs for

Professionals Professionals

University of Memphis The Department of Management in the Fogelman College of Business and Economics at the University of Memphis offers AACSB-accredited training in human resource (HR) management and organizational behavior. The following faculty have an expertise in these areas: Drs. Kurt Kraiger, Kristen Jones, Alex Lindsey, Caitlin Porter, Enrica Ruggs, Jessica Kirk, Chuck Pierce, Carol Danehower, Laura Alderson, Kelly Mollica, and Kathy Tuberville. They offer undergraduate courses on HR topics such as introduction to human resource management, compensation & performance appraisal, managing diversity, 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, the department has a student chapter of the Society for Human Resource Management (SHRM) and offers an undergraduate concentration in HR management. Finally, the department is well-represented in the new PSI Center for Workplace Diversity and Inclusion. For more information, please contact Dr. Kurt Kraiger, Chair of the Department of Management (; http://www.

Fogelman College Department of Management

Kurt Kraiger, Ph.D. Professor of Human Resource Management and Chair of the Fogelman College Department of Management

Kristen P. Jones, Ph.D., Assistant Professor

Enrica Ruggs, Ph.D., Assistant Professor

Jessica Kirk, Ph.D., Assistant Professor

Laura Alderson, Ed.D., Instructor of Management 42

Alex P. Lindsey, Ph.D., Assistant Professor

Caitlin Porter, Ph.D., Assistant Professor

Chuck Pierce, Ph.D., Professor

Kelly Mollica, Ph.D., Instructor of Management

Carol Danehower, Ph.D., Associate Professor

Kathy Tuberville, Ed.D., Instructor of Management

Dr. Kurt Kraiger, Management Department Chair, at

Legal Training for HR Professionals: 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 decision-making. 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 one year 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 employment law, business law and regulation, child and family 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 Assistant Director of Admission Farah Dharamshi at or 404.727.0598. Fall deadline: June 30. Spring application is now open. Apply now at law. Scholarships and financial aid are available.

Put the Law to Work for Your Career Legal Training for HR Professionals Online and On-Campus Options “The Emory Law juris master program provided me with the legal knowledge essential for executive level human resources leadership.” Betsy Hames Associate Dean & Chief Human Resources Officer Duke University School of Medicine 2014 JM Graduate

Gain the legal knowledge and skills to navigate complex regulatory environments, make informed decisions, assess risk, and advance your career. 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 1 year or part-time in up to 4 years Scholarship: Guaranteed Scholarship for SHRM-Atlanta members: Members admitted to the JM program will receive a minimum scholarship of 15%. Financial aid also available. Application deadlines: Fall: June 30. Spring: now open!

Learn more at | Email us at




Get the credentials you need to advance your career. Earn a bachelor’s or master’s degree from WGU Tennessee, where you can expect: • Accredited programs • Affordable tuition • Unparalleled flexibility • Accelerated progress • Personal attention Fully aligned with SHRM’s HR curriculum.

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Start with Why Finding yourwith leadershipWhy purpose Start


Finding your leadership purpose Simon Sinek’s team coming to help us all find our why

Simon Sinek’s TED Talk titled How great leaders inspire action, is the 3rd most popular TED talk of all time, and people around the world love the concept of starting with why. But what is the real benefit of finding our why? According to Sinek’s co-author of “Find Your Why,” David Mead, the answer is both business ROI and human fulfillment. “Businesses gain greater loyalty among employees and customers, they have a better ability to innovate, and better profit margins,” said Mead. “But on a human level – every single one of us deserves to wake up inspired to go to work and go home fulfilled by the work that we do. People give their energy, their time, talent, and resources to do work that matters to them. The natural result is better profit and more market share. When leaders and organizations find our why, it matters to our people and to the growth of our businesses.” Are you ready to find your why? Simon Sinek’s team will deliver a new workshop based on his best-selling book on September 20th as part of the Leadership Green Room’s latest course line-up. His co-author David Mead will lead, “Start with Why: finding your leadership purpose,” where he’ll share the training he created to bring the “how” to Sinek’s “why.”

Learn more about the Leadership Green Room at

2019 UPCOMING COURSES Leadership Development for Your Entire Organization


The First-Time Manager Experience with The Ken Blanchard Companies



Start with Why: Finding Your Leadership Purpose with The Simon Sinek Group


Essential Leadership TraitsTM

with David Novak and the oGoLead team

NOVEMBER 11 - 12

Communication That Inspires and Drives Results


r ade


Lisa Zangari, Director of Learning, Leadership Louisville Jo Lloyd-Triplett, Program Manager, Leadership Louisville


Unlock Team Performance with Personality Profile Data Leah Eggers, Co-Founder and COO, On Plane Consulting


Presenting Sponsor




Navigate the law to transform your career: Wake Forest School of Law offers an online graduate program for experienced professionals Dramatic changes in the workplace often mean that companies faced with expanding regulations but limited resources increasingly rely on employees in risk management, compliance, and human resources to exercise legal judgment. These non-lawyer professionals have gained an expanding and critical role in the delivery of legal expertise and services or serving as a bridge from counsel to various business units. That’s why Wake Forest University School of Law offers legal education for non-lawyer professionals, either through a fully online Master of Studies in Law (MSL) degree or Graduate Certificates. “Our Wake Forest Law MSL students add value in their managerial roles not only because they understand the law, but also because they can more readily and widely identify, integrate and analyze legal questions within the broader business context,” said Steve Nickles, Wake Forest Law professor. “Increasingly, businesses rely on and reward these legally trained professionals for the very reasons that they are embedded in the business and – because of their legal training – quickly see and operationally leverage the interconnections between business and the law. To borrow a term from the futurist Richard Susskind, Wake Forest Law MSLs are prime examples of the new ‘legal hybrid.’” With the ability to gain cutting-edge legal knowledge through their online program every week, MSL students apply what they’re learning immediately. Flexing their legal knowledge benefits both their employer and their own trajectory.


100% ONLINE Master of Studies in Law Degree or Graduate Certificates Human Resources | Business Law & Compliance | Health Law & Policy The Wake Forest University School of Law Master of Studies in Law (MSL) Program is designed for HR professionals who navigate risk, compliance, and other legal issues in the workplace. Developed by Wake Law faculty and industry experts, our curriculum offers the legal tools and framework non-lawyer professionals need to advance their skills and

“In my most recent performance evaluation, I was told that my legal knowledge had been key to the success of the company,” said Jackie De La Cruz (MSL ’19) an HR professional for an international firm based in North Carolina. “Wake Forest Law’s reputation gave me credibility. The MSL degree positioned me to perform my job as a leader as well as grow with the company. I’m proud to be a Wake Forest Law MSL graduate.” Whether a student selects the Master of Studies in Law (30 credits) or Graduate Certificate (12 credits), they may choose from three professional tracks — Human Resources, Business Law & Compliance, or Health Law & Policy. Each track is designed in collaboration with Wake Forest Law faculty and industry leaders to develop a relevant, innovative curriculum. Each course Wake Forest offers is original, created specifically for the MSL program. “One of the first things you learn in the program is how to think about legal issues, how it’s a framework for analyzing a complex pattern of facts,” said current MSL student Christian Bellavia, an assistant vice-president at a national banking firm. “That framework for analyzing a case or a complex problem at work holds true in many business situations. The legal mindset, a way to break down a complex problem into a digestible piece of information that can be communicated, is valuable regardless of what industry you work in.” MSL students enjoy a rich, connected professional peer community with unmatched faculty support. The result is a strategic, practical, and enhanced lens that can only be achieved through the Wake Forest Law MSL experience. Applications are accepted on a rolling basis for Fall, Spring and Summer semesters. To learn more about the Wake Forest Law MSL program, visit or contact Jackie Flynn | | 336-758-5906.

"I would suggest every HR professional go through the MSL because it has been eyeopening to me. Every single class I've taken has been useful. Every decision I make, I feel the MSL program has supported and made me feel more confident in making these decisions." Shanna Chambers | Executive Director, HR | MSL Student | SHRM

“This program is clearly geared to working professionals. For the HR professional who needs to understand legal issues such as compliance, employment law, labor law, etc., this is an excellent program.” Tom Hickman | President | MSL Graduate

“The laws keep changing and the MSL program has been able to keep things new and relevant for me. I would absolutely recommend the Wake Forest Law MSL program to other professionals and as a matter of fact, I have!” Peggy Blackwell | HR Director | MSL Student | SHRM

focus on real-world issues immediately applicable in your workplace. Flexible, part-time, enriching, collaborative, and practical, the 100% online master's program is accessible any time, any place through our virtual classroom. Invest in your future with an affordable graduate degree from the Wake Forest University School of Law. Transform

"The MSL offers the right combination of work, life, and family balance and is relevant to what I do on a daily basis.” Tracie Leonard | Vice President | MSL Student

your career with relevant skills that empower you to stand out.



Human HR Resource Management Enhance your leadership abilities, grow your people skills, and increase your value as a business professional. Bachelor’s Degree & Certificate Programs Available!




We can help. LEARN MORE:

At Vanderbilt Peabody College, we believe that fostering the greater good is a critical component of any worthy effort. That's why we equip our students with the skills, knowledge, and experiences to carve out more than just a successful career path. Peabody’s Leadership and Organizational Performance (LOP) master’s degree program trains professionals who can generate positive change in the workplace and beyond. The program’s evidence-based approach to strategy, decisions, solutions and evaluation creates leaders who are ready to change their field, their community, and the world.


Earn Your

HR Degree

Completely Online Recognized by the Society for Human Resource Management (SHRM), Columbia Southern University’s degree programs in HR management prepare graduates to become influential business leaders. With coursework that aligns with SHRM’s HR Curriculum Guidebook and Templates, graduates are equipped to explore management-level careers including HR managers, training and development specialists, compensation and benefits managers and more. Tracy Felts

CSU Graduate

» 877.347.6050

Located in Orange Beach, Alabama. Gainful employment information available at


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 tuitionfree 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. Matt Bergman, (BSOLL) and Dr. Kevin Rose, (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:

Learn to Lead and Develop a Better Workforce M.S. in Human Resources & Organization Development

Program fully aligned with SHRM guidelines and standards Graduating students eligible to sit for the SHRM-CP exam

B.S. in Organizational Leadership and Learning Students earn up to 48 college credits tuition-free for work knowledge



Visit: Or contact us for more information at: 800.871.8635 | Accreditation info: State authorization info:



Highlights from the 3rd Annual Supervisor and Manager Conference


The Crescent Club Memphis, June 21, 2019













1 (L-R) Cynthia Thompson, MBA, SHRM-SCP, SPHR; Judy Bell, SHRM-CP, PHR, CPBA, Judy Bell Consulting; Jeff Weintraub, Partner, Fisher Phillips Memphis, are founders of the conference. Judy presented “Succession Planning,” and Jeff spoke on “New Independent Contractor Rules Impacting the Gig Economy.” 2 Kim Hodges, Managing Shareholder of Ogletree Deakins Memphis, discussed “How to Avoid Personal Liability as a Manager.” 3 Tammy Henry, VP Client Success, Data Facts, Inc., presented “Background Screening in the Era of Medical Marijuana.” 4 Tracy Webster, CEO of HealthMed, discussed the “Impact of Metabolic Syndrome and Stress on Employees.” 5 LeeAnn Bailes Foster, CEO of Team Foster HR Strategy, spoke on “Surviving Alpha People.” 6 (L-R) Frank L. Day, Partner with FordHarrison Memphis and Keya Denner, Partner with FordHarrison New York City. Keya presented “Cannabis and the Multi-State Employer.” 7 Dan Norwood, Partner, Norwood & Atchley, discussed “Age Discrimination in the Workplace.” 8 Officer Terry Donald, Shelby County Emergency Management and Homeland Security, presented “Active Shooter Training.” 9 Verlinda Henning (L), SHRM-SCP, SPHR, President, SHRM-Memphis, was the emcee for the conference; Cynthia Thompson, (R) MBA, SHRM-SCP, SPHR. 10 Yvette Brooks, (Front Row L) was the recipient of the grand door prize, 7 nights at Sandestin Beach Resort and Golf Club in Miramar Beach, Florida. Team Foster HR Strategy donated the grand prize. 11 Gwendolyn Turner with the Shelby County Crime Victims & Rape Crisis Center, discussed “Domestic Violence in the Workplace.” 12 Attendees at the 3rd Annual Supervisors and Managers Conference.


The Need for Creatives

Fired Up: Kindling and Keeping the Spark in Creative Teams BY WILLIAM CARMICHAEL

Until I had read this month’s book, I honestly had not thought of the inexhaustible number of metaphors that relate to something as simple as the word- fire. For some it represents safety and warmth while for others, something dangerous and uncontrollable. True, fire has a very real image and personifies good as well as bad. But for anyone in the workforce, it serves as the perfect simile for creativity. For to think or say that someone is “on fire” is one of the most positive attributes one can receive. Fired Up: Kindling and Keeping the Spark in Creative Teams by Dr. Andrew Johnston was written specifically to help leaders keep their creative team members fired up and innovative.

Throughout this excellent field guide Dr. Johnston uses an interesting inference; that of being a “creative.” To be creative is certainly a reference we are familiar with but creatives is chosen as a description for those with natural-born creativity and potential. We all know who these people are and Fired Up does a brilliant job of explaining exactly how and why creatives need to exist among us. For example, early in the book, Johnston tells us about a printed sign he encountered in a design department printed with the words, “You are now entering another world. Designers live here and don’t think like you do.” These two sentences by themselves would normally not attract much attention but when post-it notes replacing the word “think” with phrases such as dress, behave, do meetings, smell, leave @ 5:00, well, you get the point. Creatives aside, there is still the inevitability of a stagnate corporate culture that all too often defines an organizations’ personality. Certainly, that organization never intended to be that way but unfortunately that is the way some do. You feel it, see it, and unfortunately, the employees live it. It could be as simple as that office’s physical layout, its aesthetics, or poor morale that has become the norm. It doesn’t have to be this way. Throughout Fired Up, Johnston provides a number of remarkable cures and makeovers that leaders can quickly and easily implement to reenergize any stale environment. You’re not in Kansas Anymore!

Three Components- Oxygen, Fuel, and Heat To borrow from the author, “From what began as a conversation with a friend, and manifested itself around the fire-pit in his backyard,” Dr. Johnston uses the key components of fire (oxygen, fuel, and heat) to help us get our teams Fired Up to be more creative. And although this may seem to be an overly simplistic correlation, it is not. Perhaps think about it in this way. A highly oxygenated atmosphere represents more than just air. It’s the environment needed for dynamic creativity to thrive. Fuel signifies more than something that burns. It’s the freedom, fun, and purpose employees crave. And heat is simply the unseen transference of energy that comes with motivation, challenges met, and unlimited possibilities that people and teams can generate for themselves.

Now who doesn’t love the Wizard of Oz? Dorothy finds herself in the land of Oz and is told by Glenda (the good witch) that she’s not in Kansas anymore. Come on . . . you remember! In Chapter 8 of Fired Up I found myself quickly identifying with this chapter’s sub-heading of You’re Not a Doer Anymore. Trust me, there is a connection and a good one! Here Johnston begins with “If you are a leader now, I’ll wager you were an excellent Doer earlier in your career. That’s the way it usually works.” This certainly resonated with me as I venture to guess will for our readers out there. Then once a manager, duties and responsibilities become more pressing as do the challenges of managing and leading others. Suddenly, the spark of creativity that brought you recognition in the first place becomes secondary. You begin to wonder how can you get it back. What hit home for me was a singular sentence early in this same chapter where Johnston states, “In my experience, Leaders who do not envision their

roles very differently than those of Doers, wind up confusing and competing with the people they lead.” This is so profoundly true. There are distinct differences between Does and Leaders, and Johnston carefully drives home exactly what those differences are. No, we may not be in Kansas anymore but Dr. Johnston certainly shows us how we can make a big difference while there. Structure and Layout At 219 pages, Fired Up: Kindling and Keeping the Spark in Creative Teams has a unique, effective structure and flow that make it easy to follow. Perhaps it is Dr. Johnston’s academic background that allows this or his extensive consulting experience but regardless, you will connect to the book’s intended message. Most will find it easily read over a weekend despite areas that deserve multiple review. And one last thought. What appear to be chapters that build on one another are not and although starting at the beginning is recommended, much will be gleamed by simply picking a topic. Fired Up is comprised of sixteen short chapters set into three sections that each revolves around the fire triangle; Chapter





How to fan the sparks of creativity

7 – 11


How to feed the environment with passion

12 – 16


How to keep that creative spark alive

I loved this book and you will too! Who Will Benefit Most from This Book? All management and organizational leaders. ABOUT THE AUTHOR:

Dr. Andrew Johnston has made a life of leading teams and developing the people in them. As Associate Provost and Dean at Belmont University and a faculty member at Vanderbilt University, in Nashville, TN, he led institutional change and prepared tomorrow’s leaders. As a soughtafter consultant and coach for organizations in non-profit, corporate, and educational contexts, he strengthens the leaders of today.

William Carmichael, Ed.D Professor | Strayer University


First 2019

Decision on an I-9 Case By BRUCE E. BUCHANAN


or Office of the Chief Administrative Hearing Officer (OCAHO) gurus like myself, it was exciting to learn of this new decision, as it is their first decision on an I-9 case in calendar year 2019. The decision is U.S. v. Intelli Transport Services, Inc., 13 OCAHO no. 1319 (April 23,

2019), wherein OCAHO determined that even though Respondent had not completed any I-9 forms until after the delivery of the Notice of Inspection (NOI), the penalties sought by Immigration & Customs

‌OCAHO found a penalty adjustment to the lower range of permissible penalties was warranted.


Enforcement (ICE) should be reduced from $1,862 per violation or $21,506 to $450 per violation or $4500.

Background Intelli Transport Services (also referred to as Respondent), located in Inglewood, CA, was served with a Notice of Inspection (NOI)/subpoena on January 31, 2017. Intelli Transport Services responded on February 7 with 11 Forms I-9 , all of which had been completed after delivery of the NOI. On February 22, Intelli Transport Services was served with a Notice of Intent to Fine (NIF), which charged the company with failing to timely prepare I-9 forms for 11 employees. ICE assessed a fine of $21,506 based upon a baseline penalty of $1774 plus 5% increase for seriousness of violations for each of the 11 Forms I-9.

Company Defenses

OCAHO Conclusions

Intelli Transport Services asserted several defenses.

Based on their analysis, including the statutory factor of small size of the business, OCAHO found a penalty adjustment to the lower range of permissible penalties was warranted. Thus, proposed penalties were reduced to $450 each or a total penalty of $4500.

First, it stated it was not liable for failing to complete

an I-9 form for Taewon Park because he is the owner. ICE contended it included Mr. Park in the violations because Respondent listed him on its employee list and the quarterly wage report showed he received remuneration. OCAHO case law has recognized that an “individual is not an employee of an enterprise if he has an ownership interest in, and control over, all or part of the enterprise.” U.S. v. Alpine Staffing, Inc., 12 OCAHO no. 1303, 11 (2017), U.S. v. Santiago’s Repacking, Inc., 10 OCAHO no. 1153, 6 (2012). Since Mr. Park acted on behalf of the Intelli Transport Services during the ICE audit, OCAHO found was evident that he has substantial ownership interests in and substantial control over Respondent. Thus, ICE failed to establish Mr. Park was an employee. Therefore, Respondent was not required to prepare and possess Mr. Park’s Form I-9.

Second, Intelli Transport Services asserted it was only

required to retain Forms I-9 for three years after the hire date. Respondent was mistaken as to the law and was referencing a part of the test in retention of former employees’ I-9 forms. For current employees, the employer is required to retain an I-9 form for that individual for the duration of his or her employment and for one year after termination or three years after the original date of hire, whichever is longer.


, Intelli Transport Services asserted ICE failed to provide a 5% mitigating reduction for being a small business. ICE agreed it was a small business but asserted being a small business means I-9 compliance is easier. Such an argument is contrary to the statute and caselaw; thus, OCAHO found a 5% mitigation is warranted.

Takeaways Intelli Transport Services should consider itself lucky to receive such a substantial reduction in penalties when it blatantly violated the law. (Recently, one of my clients was lucky enough to get a major break after it initially did not have any I-9 forms when the NOI was served.) Your company may not be so lucky; thus, one should strongly consider an internal I-9 audit under the supervision of an experienced immigration compliance attorney. Contact me if you are interested. To find out more about internal I-9 audits as well as other employer immigration compliance issues, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at

Bruce E. Buchanan, Attorney Siskind Susser PC

SISKIND SUSSER PC Tennessee’s Largest Business & Employment Immigration Practice

Fourth, Respondent argued the applicable penalty

range is $110 to $1100, not $224 to $2,236, because some of the violations occurred before November 2, 2015, the date when the penalties essentially doubled. However, OCAHO has held the duty to prepare an I-9 does not terminate on the third day after hire; rather, it continues until the I-9 form is actually completed, and thereafter until the retention period expires. Thus, ICE’s violation theory rests on “the continuing failure to prepare I-9s, and the penalties assessed are for contemporaneous violations.” Thus, these violations occurred on November 2, 2015 and thereafter. OCAHO case law makes clear that penalties approaching the maximum permissible fine amount should be reserved for the most egregious violations.” U.S. v. Int’l Packaging, Inc., 12 OCAHO no. 1275A, 8 (2016). Penalties “should be sufficiently meaningful to accomplish the purpose of deterring future violations” but penalties should not be unduly punitive. A&J Kyoto Japanese Rest., 10 OCAHO no. 1186 at 8 (2013). Thus, OCAHO found the violations were not so egregious as to call for a maximum penalty.

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7 Habits of People with Highly Positive Attitudes By HARVEY DEUTSCHENDORF

Listen to any motivational speaker and they will emphasize the importance of having a positive attitude. The same goes for any successful person who has shared publicly the attributes that have led to their success. While some may believe that a positive attitude is something that we either have or not, we are always in control of our thinking and feelings and therefore capable of changing our attitudes at any time. All that we need is the desire to change, the knowledge of what we need to do to change and the willingness to do the work that is required to make that change. Here are 7 Habits of people who have developed highly positive attitudes.

Developed their emotional intelligence Realizing that their emotions are what motivate and drive them, positive people have learned how to manage their emotions. We all experience ups and downs regularly in our lives. Frustration, disappointment, fear, sadness and anger are feelings that are part of being human. While experiencing these feelings like everyone else, positive people don’t let themselves become overwhelmed by negative feelings. Instead they manage them and continue on with their lives, realizing that everything passes with time. They also don’t make decisions when feeling strong emotions but wait until they are able to think rationally and are on an even keel. They force themselves to keep moving and take on tasks even when they don’t feel like doing so, realizing that once they get moving their feelings and attitude will improve. They are aware that beginnings are often difficult, but things will improve once they get further along and they will feel a sense of accomplishment for having overcome their initial resistance and carried on.

Believe in themselves and their abilities While having experienced failures like everyone else, positive people know that to be successful we need to take risks and push their boundaries. They approach new challenges with the belief that they will either be successful or take away lessons from the experience that will lead them to be successful in the future.

Continuously set goals Positive people feel the need to accomplish and are constantly striving to reach new goals that they have set. They use goals to mark their progress and as a way of motivating them to stay on target. Goal setting is a way of life and once they have reached one goal, they set another one. Having something to constantly strive for adds substance and meaning to their lives. While they are happy and grateful for what they have, they are never satisfied, always striving to learn, grow and accomplish more. They are curious and always looking for new ways to push their barriers and strive to reach their potential.

Have developed an attitude of gratitude While they are always looking for challenges, positive people are grateful for what they have. They look for ways to thank those who have helped them along the way and are careful to give credit where it is due. Regardless of their circumstances or the conditions of their upbringing they are very aware of and thankful for the gifts that have been bestowed upon them. They realize that being happy with where they are will help them achieve more in their lives. 54


“If you think you can do a thing or think you can’t do a thing, you’re right.” – Henry Ford

Always look for the good in all situations Positive people are a pleasure to be around since they tend to bring the best to all situations that they are part of. They frequently use humor to brighten up and liven up events and look for the silver lining in everything that goes wrong. Instead of looking to blame they look for solutions and lessons that can be gleaned from every situation and event that has not gone well.

Surround themselves with positive people Misery loves company and miserable people will quickly realize that they will not get any support or encouragement from those who are positive. Positive people also love company, but in the form of other positive people. Their demeanor and energy that they emit tends to attract other positive people to them. Surrounded by other people similar to them has the benefit of helping them stay on the bright side and even increase it.

Continuously learning from successful people Whether attending lectures, reading an autobiography of a successful person or listening to a motivational recording while driving, positive people are on a life long journey of continuous improvement. They frequently have mentors and are always seeking to learn from those who they consider having been successful in the area of their lives that they have a strong interest in. Highly passionate, they are constantly asking questions and looking for ways to learn and improve themselves. They are the people that it feels good to be around as they show an interest in our lives and are always asking us questions about ourselves.

Harvey Deutschendorf is an emotional intelligence expert, internationally published author and speaker. To take the EI Quiz go to 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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July 2019 Issue  

July 2019 Issue