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Volume 4 : Issue 6 TM

SHRM Annual Conference & Exposition in Orlando

Is Your

Workforce Being Over-Screened for Medical Conditions?

June 22-25

Shannon Brown, Preventive Care: Pay Now or Pay (More) Later Highlights from the

2014 MS SHRM Conference in Biloxi

SVP, Chief HR & Diversity Officer FedEx Express


What is It, and Why Should Employers Care?





What you don’t hear can still hurt you. The things employees say when you’re not around can cause legal troubles for you. Fisher & Phillips provides practical solutions to workplace legal problems. This includes helping you find and fix these kinds of employee issues before they make their way from the water cooler to the courthouse.

1715 Aaron Brenner Drive • Suite 312 • Memphis, TN 38120 • 901.526.0431






Bringing Human Resources & Management Expertise to You 24% of adult women and 18% of adult men have been physically assaulted by a partner at some point in their lives Editor

Cynthia Y. Thompson, MBA, SPHR Publisher

The Thompson HR Firm HR Consulting and Employee Development Art Direction

Park Avenue Design Contributing Writers

Bruce E. Buchanan Zachary B. Busey Chris Davis Harvey Deutschendorf Latosha Dexter Matt Ginn Mary C. Hamm Murray L. Harber Jimmy Hinton Michael S. Hudson Kristi H. Johnson Eric P. Justin Dorothy Knapp Lisa A. Krupicka Susan Picart Paul E. Prather Martin J. Regimbal Ricky Reynolds Ernie Ricketts Blake Rogers Elizabeth S. Rudnick Jerrald L. Shivers Courtney Leyes Tomlinson Robert M. Williams, Jr. Board of Advisors

Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR John E. Megley III, PhD Terri Murphy Susan Nieman Robert Pipkin Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to 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. ©2014 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 5 8 14 18 20 22

note from the editor Profile: Shannon Brown Why SHRM Membership? Preventive Care: Pay Now or Pay (More) Later Is Your Workforce Being Overscreened? Wellness: What is It and Why Should Employers Care? Do Your Benefits Need a Makeover?


Departments 10  EEOC: The Times They Are A-Changin: How HR Professionals Can Handle Workplace Issues Related to Sexual Orientation and Gender Identity 13  Employment Law: Negligent Infliction of Emotional Distress: The Tennessee Court of Appeals Finds That Expert Proof Is Not Required for an Employee’s “Parasitic” Claim 16  Employee Relations: Performance Evaluations: A Critical Component of Avoiding Liability 24 ADA: Working from a Home Near You – Telecommuting as a Reasonable Accommodation 26  The Bermuda Triangle: The Intersection of FMLA, the ADA, and Workers’ Compensation Law 27 FMLA: FMLA Insights: The Good, the Bad, the Ugly 28 Communication: A Rose by Any Other Name 30 Immigration: What Happens After an Employer Receives a Notice of Inspection from ICE? 31 New Law: The Employee Online Privacy Act of 2014 32 EQ: 7 Steps to Mending Relationships 33  Workplace Violence: Domestic Violence and the Workplace

Industry News 6 Highlights from the 2014 MS SHRM Conference 9 SHRM Annual Conference & Exposition in Orlando June 22-25 23 Highlights from the 2014 TPMA Conference 34 CAHRA 2014 Annual Manager’s Conference

Next Issue Highlights from the WT SHRM Employment Law Spring Conference in Jackson, TN Highlights from Strategic Leadership for HR Executives Seminar in Little Rock Highlights from the NEA SHRM and Jonesboro Regional Chamber of Commerce


a note from the Editor

We are also bringing you highlights from the 2014 TPMA Conference, which was held in Murfreesboro in April. Hopefully, everyone has heard that the SHRM Board has approved a plan to create a new competency-based certification program for human resource professionals. The details will be unveiled at the national conference in Orlando June 22-25. SHRM plans to offer the first exam for the new competency-based certification in mid 2015. SHRM President and CEO, Hank Jackson, advised “SHRM plans to roll out an online education module for existing certified professionals for you to learn about the new competency based certification. You will be able to view it, answer some embedded questions and then be able to transfer your PHR,® SPHR® and GPHR® to the new SHRM credential. You will need to document your existing generalist HR certiChris Byrd, MS SHRM State Council Director; Cynthia Thompson, and Jon Petz, Keynote Speaker, at the Painting with Friends Party at the MS SHRM State Conference on Tuesday.


he focus of our June issue is Wellness and Health Care and we are bringing you quite a few articles on this timely topic to help you ensure that your Wellness Programs are in place and in line with the Affordable Care Act requirements. In addition, we have loads of

great articles on hot HR topics to keep you informed and updated. Be sure you read the three articles on new employment case law that might impact your organization on Pages 13, 24, and 31.

fication and sign a code of ethics.” We are all hoping this will be as seamless as it sounds! HRCI also issued a statement that they will continue to develop and administer the current certifications. They advised us that current certifications are not connected to SHRM’s new competency-based certification. It sounds like HR professionals may have two certifications to choose from going forward. We plan to bring you more details on the new certification in our July issue. Stay tuned! Stay informed and educated!

It was great serving as the Official Media Sponsor for the MS SHRM State Conference May 6-8! We had a lot of fun seeing our MS SHRM friends down on the Mississippi Gulf Coast. We know you will enjoy reading the highlights from this excellent Conference held in Biloxi.

Cynthia Y. Thompson | Editor

Sign up for our RSS News Feed to receive up to the minute HR Alerts on changing legislation affecting our workforce. 4

Shannon A. BROWN on the cover

SHANNON A. BROWN Senior Vice President / Chief HR & Diversity Officer FedEx Express

Brown was appointed by Tennessee Governor Bill Haslam to the advisory board for Western Governors University and he chairs the International Air Transport Association (IATA) Human Capital Steering Group. Brown is also a member of the Board of Trustees for National-Louis University, where he received the National-Louis University Distinguished Alumni Award. He also serves on the University of Denver’s Board of Directors of the Intermodal Transportation Institute. The Memphis Tri-State Defender newspaper named Brown one of “50 Men of Excellence” and Black MBA magazine recognized him in its list of “Top 50 Under 50,” an honor bestowed upon executives for outstanding leadership.

Shannon A. Brown is Senior Vice President / Chief HR & Diversity Officer for FedEx Express, the world’s largest express transportation company. With more than 160,000 team members, the company provides fast and reliable delivery to every U.S. address and more than 220 countries and territories. As the most senior human resources executive for FedEx Express, Brown provides strategic direction for all human resources practices, policies and operations for the company. His role includes overseeing global initiatives to develop and retain a highly-talented and diverse workforce, where employees are empowered to respond to customer needs in an environment that promotes a safe and sustainably responsible work place. Brown embodies the company’s shared commitment “to make every FedEx experience outstanding” and through his leadership has established a workforce dedicated to delivering the best customer service. During his tenure, FedEx has consistently been ranked on Fortune magazine’s list of the “World’s Most Admired Companies” and Black Enterprise magazine’s “40 Best Companies for Diversity.” The company has also been among the top 10 on the Great Place to Work Institute’s list of the “25 World’s Best Multinational Workplaces.” Brown began his career at FedEx more than 30 years ago as a package handler at the Memphis World Hub. He was also Senior Vice President of HR for FedEx Ground. He has attained many honors, including the FedEx Five Star Award and CEO Five Star Award. His dedication to community service includes membership on the March of Dimes Board of Trustees and the Board of Trustees of Lausanne Collegiate School. Brown is Chairman of the Board for United Way of the Mid-South, and he is a member of the Central Board of the Boys & Girls Clubs of Greater Memphis. He has served as March of Dimes Executive Champion and Diversity Memphis Walk Chair. Brown received the Crystal Award from the Association of Fundraising Professionals (AFP) Foundation for Philanthropy. He has also been inducted into the Memphis City Schools Alumni Hall of Fame. Born in Memphis, TN, Brown earned his bachelor’s degree from National-Louis University in Chicago and his master’s degree from the University of Denver. He currently resides in Memphis. 


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2014 MS SHRM Conference and Expo Beau Rivage, Biloxi, MS May 6-8

1 1 MS SHRM State Council Front Row L to R: Cynthia Render-Leach, PHR, Tony Gier, Lori Chester, PHR, Shirley Wyatt-McFarland, PHR, Brandi Garrett, PHR, Susan Holland, SPHR, Chris Byrd, SPHR-CA, Judy Nail, PHR, Lindsay Carter, SPHR. Back Row L to R: Wanda Freeland, SPHR, Kyle Jones, Andy Austin, Jan Farve, PHR, Lisa Smith Robinson, Scott Richardson, SPHR, Janna Rogers, SPHR, Greg Payne, Amber Olsen.







2 Essentials of HR Management Class taught by Chris Byrd, SPHR-CA, and Director of MS SHRM State Council.c L to R: Madeline Estes, Stephanie Higginbotham, Michelle Slade, Kim Peterman, Debra Ellis, Chris Byrd. 3 Judy Cascio, PHR, was recipient of the MS SHRM HR Professional of the Year Award. 4 Susan Holland, SPHR, recipient of the MS SHRM Spirit of HR Professionals Award, with Cynthia Render-Leach, PHR. 5 Jon Petz, Engagement Expert, was a Keynote Speaker. “It’s Showtime ... and Life is NOT a Dress Rehearsal.” 6 Pre-Conference Painting with Friends Class led by Judy Nail, PHR. 7 Chatrane Birbal, Senior Government Relations Associate with SHRM. Her topic was “SHRM Advocacy Team: Shaping HR Public Policy.” 6






8 Kelly Reese with Littler Mendelson, PC spoke on “The Conflict Between Legal Compliance and Effective Business Operations.” 9 (L-R) Tim Lindsay, Robin Taylor, and Kristi Johnson, attorneys with Ogletree Deakins in Ridgeland, MS. Their topic was, “Wage and Hour Law – Identifying the Pitfalls.” 10 Jan Sims, CPLP, Mississippi Development Authority and President-Elect for the Mississippi Chapter of ASTD. She spoke on “Creating Super Heroes in the Workforce Through Training and Development.” 11 Billy Sims, SPHR, with Southern Farm Bureau Life Insurance; and Murray Harber, Executive Director of the Mississippi Business Group on Health. 12 Craig Cowart and Courtney Leyes Tomlinson, attorneys with Fisher & Phillips, LLP, spoke on “Sexual Orientation Legal Issues in the Workplace.” (See Courtney’s article on Page 10.)




13 Keynote speaker “levitated” several Conference attendees during the Wednesday General Session luncheon.

14 Matt

Swain, Sales Director for Oklahoma, Arkansas, and Mississippi with Ultimate Software. 15 Cathy Fyock, CSP, SPHR, author of “On Your Mark: From First Word to First Draft in Six Weeks,” was a keynote speaker at the 2014 MS SHRM Conference. 16 (L-R) Scott Richardson, SPHR; Melissa Drennan, PHR; Jan Farve, PHR; Janna Rogers, SPHR; and Kyle Jones, at the Networking Party at the Coast Nightclub at Beau Rivage Wednesday night.




A Great Partner For Small Business Owners By DOROTHY KNAPP


Ok, so you are a small office and have less than 25 employees. You are “eeking” out a meager profit after all expenses are paid. You can’t afford “nice to haves” for your business (or yourself!); you are just trying to survive in a very competitive marketplace. But you have big dreams! You want to grow and increase profits and snuff out the competition! Well, SHRM is the place to turn to for help! Why? For several key reasons! Let me explain:

Number 1: You need to protect what you already have

SHRM knows that the key to your success is the people you choose, the way they deal with your customers, and how to keep the good employees and let go of the ones who aren’t up to your expectations! Do you know the laws that pertain to a staff of your size? Do you know what you can legally ask in an interview and what you cannot? Do you know what rights any employee has and how to keep records on them? Do you know how to manage an employee up or out? Do you know what to do when you receive an unemployment claim, a workers comp claim, or an EEOC claim? There are at least 20 federal laws that are in place that you must adhere to. And SHRM can help you to understand those laws and how they apply to you. SHRM has a website of information to help you, available 24/7. It is full of “up to date” information that you can search for and get answers quickly. It has information on topics that will be emailed to you within 90 seconds of your request! Any “people management” issue you have will be addressed on the SHRM website, either in an article, some research, a law, or a court case! (And that is what you are trying to avoid!) SHRM can help you stay legal and competitive. SHRM also has a staff of experienced knowledge advisors whose main job is to answer members’ questions. If you have a situation that comes up and need a listening ear to guide you, the SHRM knowledge advisors are at the end of an 800 number and will give you all the information they can gather to educate you on the best way to handle your situation! 10 minutes of their time can save you hours of attorney time – or at the very least, prepare you so that when you do have to contact an attorney, you have some background information. Attorneys love to deal with an “educated client!”


Speaking of the laws you must adhere to, SHRM will help you to understand the scope of the law that applies to your issue; know what you must do to comply with the law; understand the risks of noncompliance and the possible impact on your business. Not bad for a yearly membership of under $200!

Number 2: You need to grow your staff for prosperity and success

Ok, you also understand the importance of having the “right” people working for you and you want to keep them from leaving for a small increase in hourly wage! Competition is tough and you have invested in hiring some great employees! Do you understand what employees want from their work life? Do you know that having the opportunity to feel like they are valued, the opportunity to learn, and the opportunity to contribute to “the cause” is of prime importance in order to hang on to your great employees? And how do you make sure of that?! By giving them a place where they like what they do, they are “ok” with their peers, and they like their boss because he/she cares, 8

listens and shares with them. The biggest reason people leave a job is not because of the money, but because their boss is a “jerk”. So, holding the boss accountable for not being a jerk and for creating a great place for the employees is really important! And how do you do that?! Well, giving feedback on the great things the boss is doing and the areas he/she can improve. Leadership, communication, managing performance are all things employees respond to. Developing people so they can grow and move up is important and will help you to find and keep a great staff. And, again, SHRM has all of the tools - training presentations, coaching tools, forms to report great or not so great performance – and how to discipline respectfully and legally are all available to members. An investment in your peoples’ development will reap rewards in the long term! Do you need to write some policies to have some fairness and equality in your workplace? Perhaps about using cell phones or smoking or using the internet while on the job? It is all there! Sample forms, policies, job descriptions, an employee handbook – it is there for you to adapt to your company and your workforce.


Number 3: You want to connect with others in business SHRM is a membership association with over 275,000 people who are dealing with the very same issues you face. And you can connect with them in several ways – by telephone, by chat room, by meeting people face to face. It can be all yours with membership in SHRM! Once you are a SHRM member, you will be invited to join the SHRM local chapter in your community, where small business leaders and HR professionals gather for conversation and information on local market conditions. These are people you can count on to help you when you most need it. Having a network of friends who “get it” can be a big boost to your own inventory of resources. All in all, whether you need some advice on a people management issue or information on how to move your business forward by creating a “best place to work”, developing your own leadership skills, or connecting with other people managers, SHRM is the partner for you and your business. Go online to and check us out in the “About Us” tab – then press “Join Now”. You will open up a world of partnership with an organization designed to help you in your most important role in business – working with your people to unlock the keys to growth, opportunity, and great success!

Dorothy Knapp, SPHR SHRM Field Services Director



The SHRM Annual Conference is the best — and biggest — HR Conference in the world. You’ll find an array of experiences that can be found nowhere else — experiences that can help transform you, your team, and your organization in big and small ways.


Our keynote speakers will present you with stories and perspectives that could change how you see the world around you. Robin Roberts Co-anchor, ABC’s Good Morning America SUNDAY, JUNE 22 2:30 p.m. – 4:00 p.m.

Tom Friedman Journalist & Best-Selling Author of The World is Flat MONDAY, JUNE 23 8:30 a.m. – 9:45 a.m.

David Novak Chairman and CEO, Yum! Brands TUESDAY, JUNE 24 8:30 a.m. – 9:45 a.m.

Mrs. Laura Bush Former First Lady & Chair of the Women’s Initiative at the George W. Bush Institute WEDNESDAY, JUNE 25 8:30 a.m. – 9:45 a.m.

Tim McGraw Grammy-winning artist TUESDAY, JUNE 24 8:30 p.m.




With hundreds of sessions to choose from, you can be sure that you’re getting the information and resources you need to be your best. Craft a truly personalized curriculum with these tracks: • Talent Management • Compensation & Benefits • International HR • Employment Law & Legislation • Business Management & Strategy • Personal & Leadership Development Recertification This conference is an efficient way to earn as many as 49 recertification credits for your HR credentials, by attending sessions, preconference workshops and upgrading to the Conference on Demand!

JUNE 22–25, 2014

Register Now

With over 700 exhibitors, the SHRM Exposition is the world’s largest HR marketplace. You’ll get ideas that will inspire and engage, and learn the latest solutions that are changing the workplace.

The Times They Are A-Changin’: How HR Professionals Can Handle Workplace Issues Related to Sexual Orientation and Gender Identity By COURTNEY LEYES TOMLINSON

A special thanks to Brandon Leslie, who reviewed this article to ensure the writer’s sensitivity on the subject.


hat if you had a male transgendered employee who, while transitioning to female, would like to use the ladies’ room, much to the chagrin of your other female employees? What would you do if you had an employee constantly

citing Old Testament’s Leviticus to another employee who is gay? Or, what would you do if you have a lesbian employee who is being harassed by her heterosexual supervisor? Even though both Mississippi and Tennessee do not recognize sexual orientation and gender identity as protected classes in the workplace, recent developments in politics and the law show us that these issues cannot be ignored.

What’s Been Happening Both Nationally and in Our Backyard • In June 2013, the United States Supreme Court handed down the seminal decision, United States v. Windsor, 570 U.S. 12, in which the Court held that the Defense of Marriage Act’s exclusion of state-sanctioned, same-sex marriages from federal recognition was unconstitutional. •  In August 2013, the Internal Revenue Service ruled that same-sex couples who were legally married in states that recognize same-sex marriage will be treated as married for federal income tax purposes, regardless of whether same-sex marriages are permitted in the state in which they live or work. Additionally, same-sex spouses will no longer be taxed on health and medical coverage for their spouses regardless of what state the employee resides or works. This rule went into effect on September 16, 2013. • Also in August 2013, the United States Department of Labor (DOL) revised its guidance in light of Windsor to extend the Family and Medical Leave Act’s (FMLA’s) protections to same-sex couples only to married couples in states where same-sex marriage is legally recognized. • The next month, the DOL issued new guidance stating that Employee Retirement Income Security Act (ERISA) retirement benefits will be available to same-sex couples who were married in one of the 17 states currently recognizing same-sex marriage, regardless of the couples’ current state of residence. 10

• On March 31, 2014, the United States District Court for the District of Columbia issued a controversial ruling, holding that a former Library of Congress employee sufficiently stated his Title VII claim because he alleged he was a homosexual male whose sexual orientation was not consistent with his former boss’s perception of acceptable gender roles. Up until this point, no court had ever held that the definition of “sex” under Title VII encompassed someone’s sexual preference. This decision may indicate a trend, and, sooner rather than later, courts in both Mississippi and Tennessee may follow suit. • The Equal Employment Opportunity Commission (EEOC) has made clear that it considers transgender and sexual identity claims to be a form of gender discrimination protected by Title VII. In a 2012 decision, the EEOC concluded that an individual who is discriminated against because of that person’s gender identity, pending sex change, or transgender status has the right to sue under Title VII for gender discrimination. Because the EEOC is so active, this decision may foreshadow what is to come. (Read: More lawsuits by the EEOC testing this position.) • A group of 19 House Democrats sent a letter to Labor Secretary Thomas Perez on March 5, 2014 seeking information about the DOL’s efforts to protect lesbian, gay, bisexual and transgender workers. Specifically, the letter asked the Department of Labor about its implementation of the Windsor opinion. The lawmakers requested “potential revisions” to the FMLA, expanding its provisions to married same-sex couples regardless of their state of residence. Additionally, the letter sought “how LGBT people can be better covered” with respect to federal contractors. This political pressure may lead to significant revisions to various federal regulations pertaining to employees. • There is federal legislation pending in the Senate – the Employment Non-Discrimination Act (ENDA) – which proposes to protect LGBT employees from being discriminated against because of their identities. • Closer to home and very recently, on May 9, 2014, an Arkansas state judge found the state ban on same-sex marriage to be unconstitutional. In October of 2012, the Memphis City Council approved a nondiscrimination ordinance that includes workplace protections for sexual orientation and gender identity. Memphis is the third city in Tennessee to pass this ordinance, along with Nashville and Knoxville. Additionally, Hattiesburg, Oxford, and Starkville, Mississippi have each passed a resolution in support of adding sexual orientation and gender identity and expression to their diversity statements.

“Because of” Someone’s Sexual Orientation Sex Title VII of the Civil Rights Act of 1964 states, in part: “It shall be an unlawful employment practice for an employer . . . to . . . otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2 (emphasis added). To understand the developments in the law and where we are headed, one must first understand what it currently means when someone claims that they have been discriminated “because of ” their sex under Title VII. As mentioned above, up until recently, the definition of “sex” under Title VII has not included one’s sexual preference. Historically, the definition of sex has included claims premised upon an individual’s biological sex (male and female) or an individual’s non-conformance with sex stereotypes. An example of the first type of claim is treating men and women differently, such as disciplining a male for attendance problems yet discharging a female employee in the same department and who has the same position as the male for the same attendance problems. On the other hand, a masculine looking female may have a claim based on non-conformance with sex stereotypes if she is discriminated against for not being “feminine enough.” This issue often arises with grooming policies requiring certain job classifications to wear make-up. Often, homosexual plaintiffs (and progressive courts) use this concept (non-conformance to gender stereotypes) to assert sex discrimination claims. Sexual harassment is considered a form of discrimination under Title VII as well. Sexual harassment is, in part, unwelcome conduct (based on sex) that is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Courts have held that any discrimination based on sex is actionable so long as it places the victim in an objectively disadvantageous working condition, regardless of the gender and/or sexual preference of either the victim or the harasser. A recent case out of the Fifth Circuit Court of Appeals involving a construction worker squarely addresses this concept. In Equal Employment Opportunity Commission v. Boh Brothers, Construction Co., LLC, 731 F.3d 444 (5th Cir. 2013), a member of an all-male bridgemaintenance crew was singled out to almost daily physical and verbal harassment because he did not conform to the crew superintendent’s view as to how a typical man should act. Both the harasser and the target of the harassment were heterosexual.

• Revising your Equal Employment Opportunity and harassment policies in your employee handbook to include gender identity and sexual preference as groups your organization seeks to protect in the workplace. • Along with revising your employee handbook, you should train your managers and employees on these updates and sensitivity to these issues. • If your organization has positions that may lead to issues of gender conformity/identity, be sensitive to that and vigilantly look for any problems. • When you have problems pertaining to sexual orientation and gender identity, speak to the individuals involved to work out the best solution for everyone. The law is confusing and different in each state. Government regulations are conflicting. As an HR professional, addressing issues in the workplace associated with gender identity and sexual orientation will not be easy. It will require flexibility, sensitivity, and thinking “outside the box.” And finally, if you are unsure what to do in a certain situation, please consult your legal counsel.

Courtney Leyes Tomlinson, Attorney Fisher & Philips, LLP

Where are we headed and what should you do? We are in the midst of a new civil rights movement. A number of state equal employment opportunity laws protect individuals from being discriminated against on the basis of their sexual orientation and/or gender identity. And, in states that do not recognize sexual orientation and/or gender identity as a protected group, federal courts are still bending over backwards to protect LGBT individuals under Title VII. With 17 states recognizing marriage equality and federal legislation and regulations pertaining to sexual identity and preference discrimination on the horizon, you must be proactive as an HR professional. Ways in which you can get out in front of this issue (to the extent that you already have not) can include: •  Auditing your benefits and compensation plans and revise accordingly to ensure that if you are providing health and medical coverage for employees’ same-sex spouses, that they are not being taxed for these benefits. You would do this only if you already provide these benefits to same-sex spouses. • Revising your FMLA policies if your organization is located in one of the 17 states that legally recognize same-sex marriage.


Join us for Father’s Day Brunch, Sunday, June 15

Lunch & Dinner: Mon. - Thurs. 11am - 9pm Fri. and Sat. 11am - 10pm Sunday Jazz Brunch Seating 9:30am - 2:30pm

Reservations for Father’s Day Brunch are being accepted beginning May 19th.

75-100 seats open to walk-in throughout the day. Special seating hours from 9am to 3pm.

To request reservations, visit

Negligent Infliction of Emotional Distress:

argument for dismissing her negligent infliction of emotional distress claim, concluding:

The Tennessee Court of Appeals Finds That Expert Proof Is Not Required

In a negligent infliction of emotional distress case where there is no other identifiable bodily injury involved, as in this case, the law requires expert medical proof of both the emotional injury and a causal connection between the emotional injury and the allegedly tortious conduct of Defendants; such proof is absent in this case.

for an Employee’s “Parasitic” Claim By MARY C HAMM


nder the Tennessee Court of Appeals’ recent decision in Coleman v. The Humane Society of Memphis and Shelby County, an employee who brings a negligent infliction of emotional distress claim will not be required to present expert proof to support this claim if he or she also alleges emotional injury related to another independent basis of tort liability, such as retaliatory discharge. No. W2012-02687-COA-R9-CV, 2014 WL 587010 (Feb. 14, 2014).

The Employee Complains About Alleged Illegal Practices and Is Terminated The Humane Society of Memphis and Shelby County hired Plaintiff Rebecca Coleman as its part-time staff veterinarian in January 2007. Dr. Coleman was responsible for various job duties, including treating injured animals and performing spay/neuter operations. Dr. Coleman also had a legal responsibility to make sure that the Humane Society was compliant with veterinary standards and procedures. Ginger Morgan served as the Humane Society’s executive director. According to Dr. Coleman, she began complaining to Ms. Morgan in May 2007 about overcrowding conditions at the Humane Society’s facility. Dr. Coleman claimed that Ms. Morgan was not receptive to her complaints. In September 2007, Ms. Morgan and Dr. Coleman engaged in a “heated discussion” about whether the Humane Society was only allowed to treat its animals. Id. at *2. Dr. Coleman continued to complain about what she believed were illegal practices occurring at the Humane Society. In one such instance, Dr. Coleman concluded that another employee was participating in the unlicensed practice of veterinary medicine. Id. at *2. Despite Dr. Coleman’s complaints, the Humane Society did not fire this employee. However, three months later in December 2007, the Humane Society informed Dr. Coleman that her position was being terminated due to budget constraints.

The Employee Claims She Was Terminated in Retaliation for Her Complaints and Alleges Negligent Infliction of Emotional Distress Dr. Coleman filed suit against the Humane Society, alleging claims for “(1) common law retaliatory discharge, (2) the statutory cause of action for retaliatory discharge provided by Tennessee Code Annotated Section 50–1–304, and (3) negligent infliction of emotional distress.” Coleman, 2014 WL 587010, at *4. Dr. Coleman contended that her termination was retaliation by the Humane Society for complaining about overcrowding and the other employee’s illegal conduct. As for her negligent infliction of emotional distress claim, Dr. Coleman alleged in her complaint that Ms. Morgan “ignored and undermined” her attempts to practice veterinary medicine, which placed the Humane Society’s animals at risk. Id. at *5. This situation caused Dr. Coleman “to suffer severe emotional distress, as she was prevented on many occasions from intervening to prevent harm to animals she had a professional duty and a personal desire to protect.” Id. The Humane Society filed a motion for summary judgment, asking the court to dismiss all of Dr. Coleman’s claims. Although the trial court denied the motion with regard to Dr. Coleman’s retaliatory discharge claims, the court agreed with the Humane Society’s

Id. at *6. Both parties sought interlocutory appeal of the trial court’s decision, and the disputed issues were presented to the Tennessee Court of Appeals.

The Court of Appeals Rules That Expert Testimony Is Not Required for the Employee’s Negligent Infliction of Emotional Distress Claim On appeal, Dr. Coleman argued that expert proof is only required when a plaintiff has alleged no other “damages.” And because Dr. Coleman asserted claims for retaliatory discharge, her negligent infliction of emotional distress claim was “parasitic” to those claims. According to Dr. Coleman, her claim was not a “stand-alone” claim; therefore, no expert proof was necessary to support it. The Humane Society defended the trial court’s conclusion, arguing that negligent infliction of emotional distress cannot be parasitic to the intentional tort of retaliatory discharge. The Court of Appeals reviewed Tennessee case law on negligent infliction of emotional distress, which the Tennessee Supreme Court has described as “one of the most disparate and confusing areas of tort law.” Id. at *9 (quoting Camper v. Minor, 915 S.W.2d 437, 440 (Tenn. 1996)). Tennessee law requires plaintiffs who assert “stand alone” claims for negligent infliction of emotional distress to present expert proof of their injuries. But when a plaintiff asserts a claim for negligent infliction of emotional distress and seeks damages for emotional distress as compensation for another claim, expert proof is unnecessary. In Dr. Coleman’s case, the Court of Appeals agreed with her argument that her negligent infliction of emotional distress claim was parasitic to her retaliatory discharge claims, and therefore, there was no need for expert proof. The retaliatory discharge claims, “served the purpose of demonstrating the reliability of Dr. Coleman’s claim for emotional distress.” As to the Humane Society’s argument that a negligent infliction of emotional distress claim could not be parasitic to an intentional tort such as retaliatory discharge, the Court of Appeals was not persuaded by what it perceived as an unsupported argument. What are the consequences for employers? With the Tennessee Court of Appeals announcing a lower burden for employees who bring claims for negligent infliction of emotional distress and assert emotional damages for other claims, obtaining summary judgment will be more difficult.

Mary C. Hamm, Attorney Burch, Porter & Johnson, PLLC


Preventive Care: Pay Now or Pay (More) Later By ERIC P. JUSTIN

For more information on Lockton, please contact Ashley Pace in Lockton’s Memphis office. 901 757 6902 The implementation of a health risk management strategy as a way to reduce medical costs is a trend that continues to gain traction with employers. Even so, your organization may be hesitant to take such a step due to concerns about higher costs at the outset. In fact, these concerns are legitimate, to some degree. Because of their focus on preventive care, wellness programs do, in fact, raise certain costs – at least initially. Why? Because if a wellness program works properly, it drives increased utilization of preventive care and subsequent increases in medication use.

Revealing Employee Risk Factors and Gaps in Care

The first step in any health risk management strategy is to understand the health risks that exist in the employee population. Lockton assists in this process via InfoLock® Employee Benefits, our proprietary datamining warehouse. With InfoLock, we aggregate all of you employees’ health-related data – medical and pharmacy claims, results from biometric screenings, and self-reported health risk assessment information. Next we analyze it carefully to identify trends in chronic disease, high-cost claims, and utilization patterns. Our experience demonstrates that health risk assessments and biometric screenings will yield data indicating that anywhere from one-fourth to one-third of your employee population will likely possess health risk factors – many that may have gone undiagnosed. And with knowledge of these risk factors comes the realization that many employees will now need evaluation and treatment from clinical providers.

Armed with insight regarding risk factors and gaps in care, Lockton can help you implement a program tailored to address both.

In addition to revealing risk factors, close scrutiny of your data can help uncover gaps in your employees’ care. Examples of gaps in care include: v Lack of follow-up visits for chronic conditions like diabetes, asthma or high blood pressure. v Not taking medications as prescribed. v Skipping preventive care services. Armed with insight regarding risk factors and gaps in care, Lockton can help you implement a program tailored to address both. Clearly, however, this new focus on your employees’ health is likely to drive some increased costs, particularly in the beginning. For example, consider a newly diagnosed diabetic employee who was identified during a biometric screening. This individual will need a range of services that might include medication, nutritional counseling, more frequent eye exams, and supplies for home blood testing. In addition, evaluation and treatment for related conditions such as hypertension, obesity, and coronary artery disease may become a reality. The same kind of scenario would hold true for individuals diagnosed with other conditions or risk factors.

An Example of How to Avoid Future Costs: Smoking Cessation

A clear example of a wellness effort that shows long-term payoff potential from an initial investment is smoking cessation, which offers both shortand mid-term gains when it is successful. When you help your employees quit smoking, you can expect to experience: v Decreased healthcare costs over those typically associated with smokers, due to their double the risk for heart disease and high risk for lung cancer and chronic lung disease. v Improved overall health and productivity within one year of quitting, which leads to a decrease in healthcare costs for the former smoker. v Reduction in lost productivity costs on an annual basis ($4,430 for current smokers versus $3,246 for former smokers).


Lockton Health Risk Solutions ® • Benefits Insight & Guidance




îA Case Study in Condition Management Catherine is a 54-year-old female employee with chronic asthma. She often misses doses of asthma medications, frequently forgets to refill her prescriptions and sometimes forgets to schedule regular follow-up visits with her physician.

Keeping Employees Healthy Costs Less in the Long Run

In short, when you implement a wellness program, it’s quite possible your organization will experience any or all of these trends: v Those with chronic conditions or newly identified risk factors will participate in more visits with their care providers, leading to higher medical claims costs. v Medication adherence will improve, leading to additional pharmacy claims costs. v The general population will become more disciplined about seeking preventive care, also increasing medical claim costs. So to answer the question on the minds of many employers, yes, it likely means you’re taking on a host of new costs. What seems apparent, however, is that encouraging and investing in preventive care and chronic condition management today will likely help you avoid far more significant costs in the future as you keep healthy people from becoming sick and people with risk factors from becoming sicker.

Work-related stress coupled with seasonal allergies triggered an asthma attack. Due to missed visits with her physician, Catherine no longer remembered her tailored asthma action plan. Therefore she sought care in the local emergency room and was admitted for an overnight stay, which included a round of tests and close monitoring.

Encouraging and investing in preventive care and chronic condition management today will likely help you avoid far more significant costs in the future.

Due to a significant gap in care, Catherine experienced a series of preventable medical events, which generated sizeable costs for care in both the ER and inpatient setting.

How could these costs have been avoided?

Experience suggests that regularly scheduled office visits with a care provider could have resulted in: v Greater understanding of her personalized asthma action plan. v Improved medication adherence. v Improved compliance with her overall care plan. v Avoidance of the ER visit, hospital stay and the considerable associated costs. v Condition-appropriate care. (Please note that acute care episodes like Catherine’s treat only the immediate symptoms, leaving the larger health issues generally unresolved.)

While data analysis cannot possibly provide insight about costs that never occurred, it can, however, begin to show you where your employees’ health risks are being reduced or eliminated altogether. It also can reveal the strengths and weaknesses of your wellness program, providing the foundation for ongoing strategic fine-tuning of your program to drive the results you seek. For more information, please contact your Lockton Account Team.

Ashley Pace Lockton’s Memphis Office 901 757 6902




A Critical Component of Avoiding Legal Liability By KRISTI H. JOHNSON

Most company leaders are accustomed to liability risks that arise from outside the company - an injured customer, dissatisfied shareholders, or a dispute with a vendor or contractor. Increasingly, however, liability risks are coming from within - from the company's own employees, who often have the tools and willingness to fight nearly any employment action taken against them. Unfortunately, in many cases management attitudes toward employee performance evaluations have not kept pace with the exponential growth of employment litigation over the past two decades. All too often, performance evaluations are regarded as a nuisance to be rushed through or, at worst, an unproductive waste of time. In actuality proper documentation of an employee's performance - the good and the bad - can be your best friend when defending against a challenge to an employment decision; it can also be your worst enemy if not done correctly. Performance evaluations are a critical component of managing an enterprise and avoiding legal liability. If inaccurate or negative performance evaluations potentially create evidence against an employer, why do them in the first place? The answer, quite simply is that the benefits of doing evaluations correctly almost always outweigh the risks, especially when dealing with difficult employees. Poorly done performance evaluations, such as the ones that fail to accurately and honestly address and employee's performance, can create legal liability. Therefore, unless management is willing to invest the time and attention necessary to reap the benefits of properly done evaluations, it is better not to do them at all. When an employee believes that he or she has been illegally disciplined or terminated, one of the first questions typically raised is: What does the personnel file reveal? Most supervisors are more comfortable giving praise than criticism. However, it is important that managers provide honest, straightforward, and constructive criticism on a timely basis when warranted. Some points to keep in mind during performance appraisals are: 1. Don’t beat around the bush. Sometimes, managers hedge to the point that the message they meant to deliver is not the message received. 2. Focus on behavior, not personality. The goal is to correct performance so that the employee is carrying out job-related duties in an acceptable manner. The discussion should address what the employee has accomplished or failed to accomplish, and not personal characteristics (i.e., that the employee is failing to meet attendance requirements, not that the employee is too lazy to get out of bed in the morning). 3. Discuss only the employee’s own performance. Resist efforts by the employee to compare his performance or treatment to that of others. But, make sure the evaluation criteria are consistent across the group of similarly-situated employees. 4. Actively listen for concerns of discrimination. If you hear complaints that some employees are being treated unfairly, document the specifics of the concerns so that any alleged discrimination on the basis of a protected class can be investigated and properly acted upon. 16

5. Document the discussion in writing, even if in handwritten form. Remember that whatever you write will be "Exhibit A" in any lawsuit. 6. Review prior evaluations and disciplinary memos to make sure that issues that previously were identified are being addressed effectively. Keep in mind that emails and texts containing criticism and praise may be just as potentially helpful (or harmful) as an "official" written evaluation. 7. Do not exaggerate or generalize. Illustrate feedback involving subjective problem areas (such as poor teamwork) with specific examples (such as particular instance of failing to offer to assist another employee during an important project). 8. Rate each area independently. Most employees have varying strengths and skills. The appraisal should reflect a thoughtful consideration of the employee's particular abilities and areas for focus. 9. Do not focus only on recent performance and ignore performance in the earlier months. This can be avoided more easily by documenting and communicating performance issues on a more frequent basis. 10. Be sure to agree upon a plan for improvement. 11. Do not delay the appraisal process; do it when scheduled to occur. 12. Evaluations should be reviewed for consistency by either higher management or the human resource department. This will help guard against lower-level supervisory comments that might be defamatory or misconstrued as biased or unfair. It also allows differences of opinion among managers to be resolved before those different opinions become part of the official record and are shared with the employee. Third, and perhaps more important, involving others serves as a quality control check on the evaluation process, and will tend to identify evaluations that are too harsh, too inflated, and not job-related. 13. Allow sufficient time for the discussion with the employee. 14. Allow the employee to appeal the evaluation to the next level of supervision. Experience shows that many employees will not appeal. If they do not, their failure to appeal can be used as evidence as a tacit agreement should there be later litigation. If the employee does appeal, the next level manager may reinforce the points the supervisor was trying to make or may be in a position to correct an error before litigation. Either way, providing an opportunity for appeal is viewed as objective, balanced, and fair-minded by a jury.

Kristi H. Johnson, Attorney Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Is your workforce being OVER-SCREENED for medical conditions? By CHRIS DAVIS

In the summer of 2006, I scraped my shoulder on a nail and ended up visiting an urgent care center. Upon seeing the doctor nearly an hour later, he said “Son, when was the last time you had a tetanus shot?” Since I had no clue, the doctor gave me a tetanus booster and said, “Now, you’ll need to get another one of these in 10 years, or when you do something stupid again.” That statement stuck with me, not because the doctor knew I’d likely do something stupid before a decade had passed, but because he gave me a specifically defined –and lengthy – amount of time for maintaining the vaccine regiment. Why 10 years? Why not 16 years? Or two years from now? As I later learned, the reason is defined in the United States Preventive Services Task Force (USPSTF) guidelines. The USPSTF rigorously evaluates clinical research to assess the merits of preventive measures, including screening tests, counseling, immunizations and preventive medications. Basically, this panel of doctors and medical professionals evaluate what medical exams/screenings should be performed, when they should be tested, and the length of time between tests for generally healthy populations with no signs or symptoms of underlying conditions. As I entered the world of benefits and health management, I noticed that wellness vendors were selling services to employer groups that involved mass, annual health screenings of entire workforce populations. These tests usually include a form of cholesterol and blood glucose testing, blood pressure screenings, and other non-invasive tests such as body mass metrics, most of which are not performed in a clinical atmosphere, nor using clinical guidelines for the testing procedures itself. The data collected has been purported to both “empower the individual employee to learn more about their risk factors and create discussion with their healthcare professionals” and “be used in intensive wellness programs where modification of these risk factors are likely to contribute to reducing medical risk and absenteeism across the entirety of the population.” So, the vendors create a compelling argument on the surface to employer groups of varying sizes, industries and demographics that states “if we screen everybody, every year, the same way, we will find something to show you what wellness programs can prevent. If you give employees incentives to complete the screening, we have a higher chance of finding more risks we can show you that wellness programs can prevent.” The cost of this endeavor runs between $45 and $100 per screening test per year, not including the cost of incentives provided to the participating employee. For an employer with 1,000 eligible employees, that equates to up to $500,000 in medical screenings over a five-year time frame, again, without incentives included in the price. No evaluation has been conducted through either retrospective analysis or quasi-experimental studies of workforce populations to determine if these screenings provide any long-term benefit in reducing medical spend related to chronic disease and other wellness-sensitive medical events. What does that panel of doctors at the USPSTF say regarding that what, when and length of time between screenings for those cholesterol, glucose, 18

blood pressure and weight measures? Well, for adult preventive services for individuals ages 18-49, the following recommendations are provided: 1. BLOOD PRESSURE: Screen for high blood pressure in adults 18 years or older. Screen every two years if blood pressure is greater than 120/80 mm Hg. Screen annually if blood pressure is 120-139/80-89 mm Hg and more frequently if warranted. 2. CHOLESTEROL: Measure a fasting lipoprotein profile in men aged 35 years and older. Measure a fasting lipoprotein profile in women aged 45 years and older if they are at increased risk for coronary heart disease (CHD). Screen men aged 20-35 and women aged 20-45 if they are at increased risk for CHD. Screen every five years for low-risk adults if initial test is normal, but consider more frequent screening in individuals at increased risk. 3. BLOOD SUGAR/DIABETES RISK: Screen every three years for type 2 diabetes in asymptomatic adults with sustained blood pressure greater than 135/80 mm Hg. In persons with blood pressure lower than 135/80 mm Hg, screen on an individual basis according to CHD risk and benefits. As it would appear, there are two stark differences of opinion in how to deliver screenings to a population of varying ages, demographics and risks. The USPSTF bases its reasoning on meta-analysis of thousands of clinical data sets and outcome metrics that lead to tailored and focused screenings of populations when specific symptoms and metrics arise in a targeted, costeffective manner with proper follow up based on clinical risk and personcentric findings. Wellness vendors position entire populations to have the same tests done, year after year, regardless of previous identification of risk with no use of a clinical care-continuum or person-centric approaches. As a consultant with nearly a decade of experience, I see the USPSTF guidelines using a scalpel to conduct sensitive, tailored and employerfriendly, cost effective approaches to identifying clinical risk as opposed to a wellness vendor using a machete’ of mass over-testing of both healthy and ill members of a population with no clinical workflow applied. Overscreenings of healthy populations are also likely to contribute to falsepositives or readings with testing errors. Since medical costs are a variable expense for self-insured employers, investing in a defined, data-driven approach founded in best-practice clinical guidelines seems to provide a more conservative use of financial capital for a business than the over-simplicity of volume screenings.

Chris Davis Director of Health Management & Claims Informatics Regions Insurance, Inc.


FOR SUCCESSFUL BENEFITS MANAGEMENT Monitoring changes with today’s employee benefit laws can be overwhelming for even the most seasoned HR professionals. And, with more than 50 categories of regulations, nearly every aspect of the employer-employee relationship is impacted. Regions Insurance is able to assist you each step of the way in navigating today’s benefits rules, while helping you manage and protect your organization’s growth, profitability and people.


Tom Hayes Employee Benefits Practice Leader 479-684-5259

Katrina McKinney Sales & Marketing Coordinator 205-264-7177

Find Regions Insurance offices in these states: Alabama, Arkansas, Georgia, Indiana, Louisiana, Mississippi, South Carolina and Tennessee

Billy Sims, VP of Human Resources at SFBLI said:

Wellness –

What is it and why should employers care? By MURRAY L. HARBER and MATT GINN

With health cost being a focal point with most employers, there seems to be some confusion as to what the real causes of the rise in cost are and what wellness really is to an employer. Some health plans would have you believe that the annual physical exam is wellness, whereas others would have you believe that a health risk assessment is wellness. The fact is that health is a status at a specific time, and wellness is the prevention and lifestyle between the status reports. In other words, wellness is a positive approach to improving ones health by practicing healthy habits and being aware of behaviors that can limit health.


There are many models which try to represent health and wellness. One such model suggests that wellness is combination of physical, emotional, intellectual, social, spiritual and occupational health. Another model suggests that you should add environmental health to the picture. From an employer’s perspective, there are three categories of people – those that are healthy and low cost, those that have risk and have low to moderate cost, and those with conditions that have moderate to high costs. To effectively manage the health of the employee and dependent population, employers need to offer health and wellness programs for each category. Dee Eddington, Director of the Health Research Center at the University of Michigan, has proven that for long term economic value, employers should focus on keeping healthy people –healthy. In other words, keep them at low risk which is associated with low cost. For those with risks, programs should be offered to mitigate those risks and try to move them to a lower risk. Those with adverse health conditions should be steered to providers that provide evidence-based and proven disease management programs which couple treatment strategies with lifestyle improvement interventions. All in all, wellness is personal, and each person needs to make an effort to improve and/or maintain good health.


Many employers try to outsource their wellness programs when in fact they should insource them first and foremost. An employer can provide healthy places at work to include tobacco-free environments, places to be physically active, offer healthy food choices or places to store healthy foods, and have places to rest or relieve stress. These environmental strategies are proven methods to help employees practice positive, healthy lifestyles while at work. Other ways to insource wellness is to promote policies that support healthy behaviors. A common strategy is offering a good set of employee health benefits such as group health, dental and vision insurance along with employee assistance programs and financial assistance programs. Other policy interventions include offering company time for annual physicals and other clinical visits. Southern Farm Bureau Life Insurance Company in Jackson, Miss., offers an onsite health clinic for members of their health plan, and they give them up to 12 hours per year to attend clinical visits outside of the building. 20

“We believe that the development of a holistic approach to wellness that pulls together the individual health of the employee, the balancing of outcomes and cost in treatment combined with providing many different opportunities to impact their health in a positive way will make a difference. You must also be able to have the data to benchmark the impact these programs are having on your employees and dependents to judge what is working and what is not.” Training supervisors and managers on ways to support a healthy workplace climate and culture is critical. You can have the best set of programs, but if the supervisors and managers do not support their utilization, employees will not use them in fear of retaliation. With the ACA, employer health plans can give a plan differential of up to 30% as an incentive for participating in prevention and wellness activities as long as they meet the standards listed by the US Department of Labor. There are many ways employers can promote wellness, and using a variety of resources and program options is a critical step in improving the health of the population. The cornerstone of any wellness program should be in educating and engaging employers to be good health consumers in knowing their health and welfare benefits, when and how to access them, and having the personal responsibility to want to be healthy and wise.


One group making a difference in health and health care in Mississippi is the Mississippi Business Group on Health. They are helping employers learn the proven strategies in worksite wellness along with key prevention elements within the ACA. On June 5th, they will hold their annual meeting and will have a PPACA update, an employer panel sharing how they build sustainable relationship with vendors, and hear from the Brian Klepper, the new CEO of the National Business Coalition on Health. On October 21st, they will also hold their 5th Annual Health Care Reform Summit in partnership with the Mississippi College School of Business. At this meeting employers and industry leaders will learn the latest with PPACA requirements and listen to employer solutions with managing health and productivity costs. The MSBGH is growing and becoming the states most powerful voice for employers in health and health care in Mississippi.

Murray L. Harber Executive Director Mississippi Business Group on Health

Matt Ginn Corporate Communication Program Development Coordinator



Working Together in Mississippi Ogletree Deakins lawyers in Jackson, Mississippi work closely with Human Resource professionals, business executives, and inhouse counsel to anticipate, prevent and resolve legal issues in the workplace. Our experience and knowledge of our clients’ industries and legal challenges enable us to serve their interests effectively and efficiently.

We remain committed to providing our clients with an insider’s view of the workplace issues of the day. With more than 650 attorneys in more than 40 offices located in the United States and Europe, the firm combines local knowledge and strength with national resources.

Jackson office attorneys L-R: Timothy Lindsay, Robin Banck Taylor, Kristi Haskins Johnson, Bert Ehrhardt 100 Renaissance • 1022 Highland Colony Parkway, Suite 200 • Ridgeland, MS 39157 • 601.360.0995 LAW FIRM OF THE YEAR Litigation – Labor & Employment LAW FIRM OF THE YEAR Employment Law - Management

Do Your Benefits Need a Makeover? Save money and give your benefits package a fresh new look with voluntary products.


You know the feeling of finding a great-looking jacket or pair of shoes in the back of your closet you had forgotten about? You’re happy because this “new” find not only gives your wardrobe a boost, it saves you from buying something new. As employers today start looking again at voluntary benefits, they feel much the same way. By turning to a tried-and-true solution they may not have looked at in a while, they’re finding a way to make their benefits packages fresh and appealing again. Voluntary products, employee-paid insurance plans that supplement core medical benefits, have been around for decades. Most employers now offer at least one or more of them in their benefits packages. In 2012, 77 percent of companies with 10 or more employees offered at least one voluntary benefit, according to Eastbridge Consulting Group. However, as health care costs and medical insurance premiums continue to climb, many employers have started to look again at this classic solution. In fact, a 2013 Towers Watson survey of employers showed 21 percent of companies planned to reexamine voluntary benefits last year, and nearly half of them (48 percent) plan to do so by 2018. Voluntary benefits offer many advantages that can help employers cope with some of their most pressing issues.

Voluntary benefits help employers control costs. To keep insurance premiums for medical coverage affordable, many employers have moved to high-deductible health plans. In fact, the percent of employees enrolled in a health plan with at least a $1,000 deductible has more than tripled since 2006, according to the Kaiser Family Foundation. The downside of this strategy is the large financial exposure gap it creates for employees faced with significant potential out-of-pocket costs. Adding voluntary coverage that helps bridge this gap is a cost-effective solution. In fact, many employers find they can even pay for this additional coverage for their employees and still save money compared with their previous major medical costs.

Voluntary benefits allow employers to expand their benefits packages. Instead of cutting coverage, many employers find a better, more effective, option is to move noncore benefits to employee-paid voluntary products. This strategy allows companies to continue offering a comprehensive benefits package that may be a differentiator as other employers cut back coverage or even stop offering major medical insurance. Voluntary benefits give employees access to expanded options to meet their unique family situations, and the coverage is typically more affordable than employees could obtain themselves outside the workplace. There’s no direct cost to employers because employees choose and pay for the coverage they want. Employees gain access to coverage that meets their individual needs and fits their lifestyles. In fact, the personalization offered by voluntary benefits is one of the primary reasons employers say they offer them, according to Towers Watson’s 2013 survey.

Demographic shifts in the workforce demand choices only voluntary benefits can provide. Today’s workforce is more diverse than ever before. The one-size-fitsall benefits plans of the past just don’t work any longer. Employers can better attract and retain top talent by offering a menu of voluntary benefits employees can customize and personalize to meet their unique needs. Voluntary benefits offer the key advantages of choice, cost and convenience today’s workers are looking for. 22

Voluntary benefits increase workplace satisfaction. When employees feel good about their benefits packages, they tend to feel better about their workplace, according to a Unum study. The study showed more than three-quarters (78 percent) of employees who rate their benefits package highly also rate their employer highly. Nearly half who rate their benefits package as fair or poor also rate their employer the same way. Even when employees pay for benefits themselves, they still highly value them. The same Unum study showed that employee satisfaction with their employers is 23 percentage points higher in companies that offer voluntary benefits.

Communication about benefits may be more important than the benefits themselves. The Affordable Care Act has created lots of changes in employee health coverage and their benefits packages. That’s why effective benefits communication is more important than ever. Employers nearly unanimously agree it’s important for employees to understand their benefits; 89 percent say it’s very important, according to a 2011 IPMA survey. Yet less than half of employers surveyed by the Society for Human Resource Management in 2010 believed their employees actually have a good understanding of their benefits. Without a strong benefits communication plan, employees won’t understand their options or appreciate the investment their employer is making. Employees are also much more likely to engage and accept changes if they understand the reasons behind them. Few employers have the resources to handle benefits communication themselves, and using enrollment firms only adds to their costs. Fortunately, these services are available at no direct cost to the employer from some benefits providers. Educating employees about the myriad benefits choices available to them and how to select the benefits that work best for their lifestyles takes expertise. Employers that want to outsource this service should consider vendors that take a personal approach to benefits counseling. Employee satisfaction rates with this type of service can be impressive. In fact, 97 percent of employees in a post-enrollment survey by Colonial Life in 2013 say one-to-one benefits counseling improved their understanding of their benefits, and 98 percent say this type of communication is important.

Spruce up your benefits package with voluntary plans. Perhaps you added a voluntary product to your benefits plan years ago. Or maybe you’ve considered doing so but haven’t taken action yet. Voluntary benefits offer a number of tried-and-true advantages that can make your benefits package fresh and attractive. 80,000 businesses and organizations, representing more than 3 million working Americans and their families. More than 10,000 career agents work for Colonial Life in one of the fastest growing segments of the insurance industry. The company has received national recognition for its excellent sales training programs, and annually receives national recognition as brokers’ partner of choice in the workplace benefits market.

Blake Rogers Tennessee territory sales manager, Colonial Life & Accident Insurance Company

Jimmy Hinton Mississippi territory sales manager, Colonial Life & Accident Insurance Company

Ricky Reynolds Arkansas/Oklahoma territory sales manager, Colonial Life & Accident Insurance Company

Greater Memphis Employee Benefits Council

Scenes from the 22nd Annual Tennessee Personnel Management Association Conference Embassy Suites Hotel in Murfreesboro April 8-11

Front Row L to R: Mark Schirmer (President), Sandy Bradford (VP-Membership), Leigh Ann Alexander (Secretary), Linda Yoakum (Co VP-Programs), Linda Tripp (Immediate Past President), Donna Winfrey (Member At-Large), Michael Sheridan (Speaker – Butler Snow) Back Row L to R: Russ Henderson (VP-Programs), Ted Archdeacon (Member At-Large), Preston Cox (Member At-Large). Not present: Antoinette Wiseman (Co-Secretary) and Peter Voss (Treasurer) The Greater Memphis Employee Benefits Council met May 1, at the Crescent Club. Michael Sheridan, Attorney with Butler Snow, was the speaker. His topic was, “The Affordable Care Act: What is the Latest?”


Working from a Home Near You

Telecommuting as a Reasonable Accommodation By LATOSHA DEXTER

The Americans with Disabilities Act requires employers to reasonably accommodate an otherwise qualified employee with a disability. In order to determine whether or not an employee can be accommodated for a specific position, an employer must conduct and engage in the interactive process. While employers must provide a “reasonable” accommodation, they do not have to provide an accommodation which would amount to an “undue hardship” for the employer. The regulations provide some examples of reasonable accommodations including making existing facilities readily accessible, job restructuring, modified work schedules and reassignment. However, the regulations make clear that these are not the only available reasonable accommodations. Thus, the regulations provide for an individualized inquiry by stating that it may be necessary for an employer to initiate an interactive process, that involves the employee, to identify the precise limitations imposed by the disability and potential reasonable accommodations. Although the interactive process may sound easy in theory, in practice it can be complicated. Employees sometimes want what they want without consideration for business operations. Therefore, an accommodation proposed by an employee might not seem like a good idea to an employer from a business perspective. However, is it unreasonable and does it impose an undue hardship? Those are the ultimate questions and employers and employees will often come down on different sides. A perfect example is in the realm of telecommuting. Employers consider the impact telecommuting has on teamwork, productivity and employee morale. However, for an employee with a disability, telecommuting may be the best option available. The Sixth Circuit was recently confronted with the question of whether telecommuting was a reasonable accommodation that should have been granted by the employer.

EEOC v. Ford Motor Company Jane Harris worked as a resale buyer for Ford. Her job duties included purchasing steel and reselling it to individuals responsible for manufacturing and supplying vehicle parts to Ford’s plants. The position involved some individual tasks, such as updating spreadsheets and periodic site visits to observe the production process. However, according to Ford, “the essence of the job was group problemsolving, which required that a buyer be available to interact with members of the resale team, suppliers and others in the Ford system when problems arose.” Ford managers made the business judgment that such meetings were most effectively handled face-to-face, and that email or teleconferencing was an insufficient substitute for in-person team problem-solving. Due to irritable bowel syndrome, Harris had attendance issues throughout her employment with the company which escalated as her condition worsened. On particularly bad days, Harris would be unable even to drive to work or stand up 24

from her desk without soiling herself and it often became necessary for her to take intermittent FMLA leave when she experienced severe symptoms. In 2009, she requested that she be allowed to telecommute on an as-needed basis as an accommodation for her IBS. Ford had a telecommuting policy that authorized employees to work up to four days per week from a telecommuting site but which also stated that telecommuting was not appropriate for all jobs or employees. After examining Harris’s request, as well as other potential accommodations, Ford declined her request stating that her job required in-person communication. Human resources suggested alternative accommodations, including moving her cubicle closer to the restroom or seeking another job within the company more suitable to telecommuting, which were rejected by Harris. Harris then sued Ford and the EEOC pursued the case on her behalf. Ford responded by filing a motion for summary judgment which the district court granted dismissing the case, in part, because it believed that it should not second-guess Ford’s business judgment that physical attendance was necessary and that Harris’s request to telecommute up to four days a week was not a reasonable accommodation.

The Decision The Sixth Circuit Court of Appeals, however, disagreed. Noting that the employer’s business judgment is only one relevant factor for consideration, the court rejected the district court’s summary deference to Ford’s position that face-to-face interaction and physical attendance were essential functions of Harris’s job. The Sixth Circuit stated that although attendance at the work site is undoubtedly essential for many positions, technology advancements have allowed the law to recognize that the “’workplace’ is anywhere that an employee can perform her job duties.” Therefore, the issue is whether physical presence is essential to a particular job. And because determining whether physical presence is essential to a particular job is highly fact specific, a jury should decide the issue. The Court did note that it was not rejecting precedent that recognized predictable attendance as an essential function of most jobs. Also, the Court was not claiming that because of technological advances most modern jobs are amenable to remote work arrangements. The Court clarified that its decision merely recognizes that considering the state of technology, “it is no longer the case that jobs suitable for telecommuting are ‘extraordinary’ or ‘unusual’.”

Lessons for Employers This decision emphasizes a point that is made over and over again in ADA reasonable accommodation situations: Do not automatically assume a request for accommodation is unreasonable just because you do not like it or do not agree with it. Employers should recognize that their business judgment and job descriptions alone will not be controlling. Employers should also remember their duty to make an individualized inquiry. There needs to be a case-by-case analysis of the position and its suitability for the accommodation requested. And finally, employers with written telecommuting policies in place should review those policies to ensure that they are narrowly tailored.

Latosha Dexter, SPHR Of Counsel Rainey, Kizer, Bell & Reviere PLC











The Bermuda Triangle:


The Intersection of the FMLA, the ADA, and Workers’ Compensation Law By MICHAEL S. HUDSON, JERRALD L. SHIVERS, and MARTIN J. REGIMBAL

Do you ever have the uneasy feeling that every decision you make regarding an employee under the Family and Medical Leave Act (the FMLA), the Americans with Disabilities Act (the ADA), or Mississippi’s Workers’ Compensation law might have broader implications than you realize? You are not alone. The FMLA, ADA, and Workers’ Compensation law all have potentially conflicting provisions. Don’t let this intersection prove to be a Bermuda Triangle for your company. It is important to understand that these laws each serve different purposes. The FMLA, among other things, provides leave to employees for qualifying reasons. The ADA, on the other hand, seeks to protect employees with disabilities. And Mississippi’s Workers’ Compensation law provides medical treatment and partial wage replacement benefits for employees who have workplace injuries or occupational illnesses (while limiting employer liability). Compliance with one of these laws oftentimes implicates the protection of one or both of the other laws, frequently in unforeseen or unintended ways. Thus, recognition of the intersection of these laws can be important in avoiding liability for inadvertent violations of the laws. For instance, what happens when an employee’s on-the-job accident causes him or her to suffer from a condition that qualifies as a serious health condition under the FMLA? Given that the ADA now has an expanded definition of what constitutes a disability, many types of on-thejob injuries will likely qualify as disabilities as well, which means that the ADA may require the employer to consider whether the employee should be provided an accommodation to allow him or her to perform the essential functions of the job. One such accommodation might even be an extension of leave beyond what the FMLA requires. What happens if the employer offers the employee a lightduty position while the employee is out on FMLA leave? Under the FMLA, the employee has the right to refuse the light duty position and continue on FMLA leave until his or her twelve week allotment of leave has expired. Under Mississippi’s Workers’ Compensation law, however, the employee’s refusal can provide grounds to suspend the employee’s entitlement to compensation benefits. These are just a few of the myriad possibilities for two or more of these laws to create inconsistent results based on a single decision. As you can tell from the above examples and the accompanying chart, navigating this Bermuda Triangle can be tricky. Employers must determine which of the three laws applies in a given situation (it could be none, one, two, or all three). Employers also must know their own policies and how those policies interact with each of the three laws. The chart lists provisions of the three laws and can help you identify which areas may be trickiest for your company and employees.




MS Workers’ Comp Law

15 or more employees in 20 weeks in current or preceding year

50 or more employees in 20 weeks in current or preceding year

5 or more employees



Employee at site with 50+ employees within 75 miles; has worked for total of 12 months (need not be consecutive); and has 1,250 hours of service in 12 months before taking leave

Coverage begins first day of employment

What triggers law

Impairment that substantially limits major life activity. Employee must be able to perform essential functions of the job with or without a reasonable accommodation

An employee’s serious health condition. Employee’s serious health condition must keep him/her from performing essential job functions

Employee has injury or illness arising out of and in the course of employment. To receive income benefits, generally must show some level of loss of wage-earning ability

Leave requirement

Leave is not specifically provided for, but can be a reasonable accommodation


Does not specifically mandate leave but does provide partial income replacement for qualifying absences

Paid leave required

Employers cannot discriminate based on disability, so if paid leave has been provided to non-disabled employees for other reasons, employer may be required to provide the same to a disabled employee on leave as a reasonable accommodation

No, but can require other forms of paid leave to run concurrently, except when receiving benefits under workers’ compensation.

Depending on nature of injury and resulting incapacity, employee may be entitled to income benefits

Enforcement agency


Wage & Hour Division of U.S. Department of Labor

MS Workers’ Compensation Commission

Duration of leave

Will vary by situation as to what would be a reasonable accommodation

Up to 12 weeks in a 12-month period

No specific limit

Intermittent leave or reduced work schedule required

Could be a reasonable accommodation



Notice from employee required

Yes. Employer must know of disability in order to provide reasonable accommodation.

Yes. If need is foreseeable, employee must give at least 30 days’ notice; if unforeseeable, as much notice as practicable

Generally, an employee must notify the employer of job-related injury or illness within 30 days

Medical certification permitted

Yes, as long as job-related and consistent with business necessity.



Required to provide benefits during leave

Employers cannot discriminate based on disability, so if benefits have been provided to non-disabled employees when on leave, employer may be required to provide the same to a disabled employee on leave as a reasonable accommodation

Yes, for health benefits (on same terms as before leave); upon return, must restore other benefits as if employee never gone


Required to reinstate at end of leave

Generally yes

Generally, must restore employee to same or equivalent job

No, but failure to reinstate can lead to rebuttable presumption of total disability

Obligated to provide light duty

If it would be a reasonable accommodation

No, but if employer does provide it, cannot require employee to accept it

No (but offering it can eliminate or reduce employee's entitlement to wage replacement benefit)




Not yet


Michael S. Hudson, Esq., Shareholder

Jerrald L. Shivers, Esq., Shareholder

Martin J. Regimbal, Esq., Shareholder

The Kullman Firm

The Kullman Firm

The Kullman Firm


The Family and Medical Leave Act (“FMLA”) requires covered employers to provide unpaid leave for qualified medical and family reasons. Two recent opinions—one from the Sixth Circuit and one from a Sixth Circuit judge sitting by designation in the Ninth Circuit—could have strong implications for employers covered by the FMLA. The first opinion, Srouder, et al v. Dana Light Axle Manufacturing, 725 F.3d 608 (6th Cir. 2013), involved the extent to which an employer can implement notice and procedural requirements for employees seeking leave under the FMLA. The employer in Srouder, Dana Light, had a policy requiring a medical certification to support a request for FMLA leave because of a serious health condition. Dana Light also had a two-day, no-call-no-show policy. In other words, if for two consecutive shifts an employee failed to call in to work to report that he or she would be absent, then Dana Light considered that employee to have voluntarily quit. In September 2009, White, the employee who filed the appeal, notified Dana Light that he was having surgery for a hernia in October. At the time of his notification, White did not provide a medical certification that complied with Dana Light’s FMLA policy. On October 1, 2, 5, & 6, White neither reported to work nor called in to report that he would be absent. The reason(s) for White’s absences were not made clear in the opinion. On October 6, Dana Light sent White a letter informing him that he had been terminated under Dana Light’s two-day, no-call-no-show policy. On October 7, the day of White’s hernia surgery, White finally provided Dana Light with a medical certification that complied with Dana Light’s FMLA policy. On October 8, White received the termination letter. Following his termination, White file a lawsuit stating a claim for FMLA interference. The district court ultimately granted Dana Light’s motion for summary judgment, Srouder, 2012 WL 1080411 (E.D. Ky. Mar. 30, 2012), and White perfected his appeal. The Sixth Circuit identified the question before it as: “whether an employer may impose and enforce its own internal notice requirements, even if those requirements go beyond the bare minimum that would generally be sufficient under the FMLA to constitute proper notice.” The Sixth Circuit plainly decided that yes, an employer may impose and enforce its own internal notice requirements. “[A]n employer may enforce its usual and customary notice and procedural requirements against an employee claiming FMLA-protected leave,” explained the Sixth Circuit, “unless unusual circumstances justify the employee’s failure to comply with the employer’s requirements.” The Sixth Circuit based its ruling in part on the 2009 revisions to the FMLA regulations, specifically the revisions to Section 825.302(d). The revised Section 825.302 explicitly permits employers to condition FMLA-protected leave upon an employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances. See 29 C.F.R. § 825.302(d). Neither the regulations nor the Srouder court addressed what circumstances may otherwise be considered “unusual.” The second opinion, Escriba v. Foster Poultry Farms, Inc., 2014 WL 715547 (9th Cir. Feb. 25, 2014) (Gilman, J.), decided whether an employee can affirmatively decline to use FMLA leave. A three-judge panel that included Sixth Circuit Judge Ronald Lee Gilman, who sat by designation, decided Escriba. The Escriba court held that “an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeing the leave would have invoked FMLA protection.” In November 2007, Escriba, who speaks English as a second language, met with her supervisor to discuss taking time off to care for her ailing grandfather in Guatemala. Escriba told her supervisor: “please for me . . . vacation . . . father is no good . . . and is in hospital in Guatemala.” Escriba’s supervisor told her that she (Escriba) could take vacation. Escriba’s super-

visor later used a translator to confirm with Escriba that Escriba wanted only to take two weeks of vacation to go visit her sick grandfather. Escriba was never instructed regarding her rights and obligations under the FMLA nor did any Foster Farm employee take any steps to designate Escriba’s time off as FMLA leave. Escriba took her approved vacation, but spent longer than two weeks in Guatemala. As a result, Foster Farms terminated Escriba under its three-day, no-call-no-show policy, which was similar in substance to the policy used above by Dana Light. After her return from Guatemala, Escriba sued Foster Farms for interference and retaliation under the FMLA, along with a number of other claims. Following a jury verdict for Foster Farms, the district court entered judgment in its favor, Escriba, 2011 WL 4565857 (E.D. Cal. Sept. 29, 2011). Escriba appealed the district court’s ruling. As it relates to Escriba’s FMLA claim, the Ninth Circuit identified the issue before it as whether “Foster Farms was required to designate [Escriba’s] leave as FMLAprotected and to provide her with notice of her rights under the FMLA regardless of whether she expressly declined such a designation.” The Ninth Circuit held that Foster Farms was not required to do so. Although the FMLA does not expressly state whether an employee may defer the exercise of FMLA rights under the statute, explained the Ninth Circuit, an employer’s obligation to ascertain whether FMLA leave is being sought strongly suggests that there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA, for example, in order to preserve leave for future use. Notably, the Ninth Circuit made clear that affirmatively declining FMLA leave is “fundamentally different” from permanently relinquishing one’s FMLA rights. The latter, permanently relinquishing one’s FMLA rights, for example, under an employer’s collective bargaining agreement, would be unlawful. How Escriba will be adopted or distinguished by the Circuits remains to be seen; however, the Escriba court (i.e., Judge Gilman of the Sixth Circuit) used previous decisions from both the Sixth and Seventh Circuits to justify the holding in Escriba. The Srouder opinion is a great case for employers. It provides employers with good defenses against certain FMLA claims where a plaintiff does not comply with an employer’s call-in procedures and notice requirements. It is important now for employers to review their policies and change them if necessary to better take advantage of the new regulation and court decision. Escriba, on the other hand, presents employers with a troubling dilemma. Its holding runs contrary to what is thought to be the FMLA mandate that if an employee gives notice of an FMLA qualifying reason for leave, then the leave must be designated as FMLA leave. To deviate from this standard by allowing employees to choose when to take FMLA leave will only add to the confusion of whether to designate leave as FMLA leave, and in many cases will result in a he-said, she-said dispute for a jury to determine (as in Escriba). But for the fact that a Sixth Circuit judge decided Escriba, it would be easy for employers in this Circuit to disregard this Ninth Circuit decision.

Robert M. Williams, Jr., Shareholder Baker Donelson rwilliams@bakerdonelson

Zachary B. Busey, Associate Baker Donelson


A Rose by Any Other Name:

The Use of Metaphor in Effective Change Initiatives

What’s in a name? That which we call a rose By any other name would smell as sweet; So Romeo would, were he not Romeo call’d, Retain that dear perfection which he owes Without that title. Romeo, doff thy name, And for that name which is no part of thee Take all myself. Shakespeare’s often quoted lines spoken by Juliet call attention to the idea that no matter how we reference something, what really matters is what it is, not what it is called. Compare that idea to the children’s proverbial statement, “Sticks and stones may break my bones, but words can never hurt me.” Though there is much truth in both statements, words really do matter. Words can start wars, heal divisions, and change minds. With words we create and maintain relationships, or we ruin them. When it comes to creating sustaining, effective change initiatives in organizations, words play an important role as well. Language is “not just as an adaptation to communicate ideas, but part of a collective system that reinforces ideas and ways of thinking” (Wippermann, Metaphors for Change: Re-Metaphorizing the Metaphors We Live By). By the very words we use we create new ideas and concepts while also perpetuating ideologies that have been part of our culture. How we combine words to create our mental conceptions of life provides insight into what conceptions are important to a particular culture or sub-culture. In 1980, George Lakoff and Mark Johnson published Metaphors We Live By and began a discussion on how speakers structure the way they think and speak using conceptual metaphors. Often speakers use conceptual metaphors without being consciously aware such structures exist. For example, American English speakers will talk about time using metaphorical structures such as having time, losing time, and wasting time without realizing that they are thinking of time in monetary concepts. 28


Lakoff referred to structures in our brains as “frames”, or what cognitive scientists call the “cognitive unconscious”. These frames, which may differ from one culture to the next, are known both by their consequences: the way we reason and what is regarded as common sense, and through language. Metaphors are used to shape these mental frames. Metaphor in this sense “is a process of cognitively mapping the path” between one concept by means of another. Think of how we often speak about a concept that is unfamiliar or difficult to grasp, – we start by stating “it is like…” and we use a more familiar concept to describe it. American English speakers have many such conceptual metaphors. Consider how the concept of arguing is spoken of in terms of war: She won the argument Her criticisms were right on target He couldn’t defend his claims She attacked every weak point in his argument She shot down all of his arguments (Lakoff and Johnson 2003:4) Notice how the italicized words indicate how the conceptual metaphor Argument is War is manifested in the language and is often used without speakers being aware of the construct. Another pervasive conceptual metaphor focuses on how time is conceptualized in monetary terms. Time is a difficult concept to explain, and therefore a more familiar concept, that of money, is used in conceptualizing time. She wasted my time. That project cost me a lot of time. I can’t give you that much time. He spent a lot of time researching that topic. I’ve invested a lot of time in that project. These phrases conceptualize time in terms of money, due in part to the importance, and prevalence of money in a capitalistic society.

Time is a vague topic and difficult to wrap your mind around (note that conceptual metaphor!) so we refer to it in monetary terms. With this process of thinking and speaking of one concept in terms of another, ideologies that are prevalent in society can be affected, and even changed. This is possible because when you use one concept to refer to another concept, you comprehend the one through the lens of the other. In the Time is Money example, we comprehend Time through the lens we use to understand Money (Wipperman, pg. 13). This usage in turn enables language speakers to emphasize certain aspects of the one concept and deemphasize certain aspects of the other. For example, when we speak of a “surgical strike,” we are using a medical conceptual metaphor to refer to a particular type of attack, such as bombing. Bombing destroys things and people and is basically a negative concept. By using the medical conceptual metaphor, we are able to deemphasize the destructive aspect of bombing and introduce a concept more acceptable to us, those ideas associated with surgery. Lakoff and Johnson state, “New metaphors have the power to create a new reality. This can begin to happen when we start to comprehend our experience in terms of a metaphor, and it becomes a deeper reality when we begin to act in terms of it.” In other words, we can change how we as a society understand and view ideas by changing how we talk about them, and using metaphors can assist in that process. When organizations attempt to initiate change, how leadership communicates the change throughout the organization becomes a key component of a successful strategy. Lack of communication is often cited as a contributing factor to many change initiative failures. And it isn’t just the method and means of the communication, but also the very way the change is framed in the language used to communicate the change.

For many years managers and supervisors in Tennessee state government faced difficulty in evaluating their employee’s performance due to a performance evaluation process that had become ineffective. The performance evaluation process graded employee performance on a 1 – 5 scale, with 1 denoting unacceptable performance and 5 denoting superior performance. Job plans were to be written at the 5 level, which evolved into an almost impossible task for managers and supervisors. The end result was that a large number of job plans were being written describing what employees were hired to do, not at a true 5 or superior performance level. Virtually everyone received a 5 rating. Reform was needed and in 2012 the Tennessee, Excellence, Accountability and Management (T.E.A.M.) Act was signed into existence. This Act provided the opportunity for the Department of Human Resources (DOHR) to revamp the employee evaluation process. It was understood that to create a high-performing work environment, the culture had to be changed first. Initially the evaluation process required that job plans be written at a 3 level, denoting what the employee was hired to do and indicating good performance. The 4 and 5 levels were to be used to denote performance that went above and beyond what the employee was hired to do. Unfortunately, since the original numerical system was used, employees began to interpret the change as downgrading their performance. What was once a 5 is now a 3 rating. This didn’t go a long way in creating an environment of high morale and was not changing the culture. Therefore DOHR decided that if the culture was to change, there had to be a change in how the culture talked about evaluating employee performance. Instead of trying to explain – unsuccessfully – how the numerical scale is now to be understood, numbers were replaced with words. The new evaluation scale became “unacceptable, marginal, valued, advanced and outstanding” with “valued” indicating the employee is performing the tasks at the level for which they were hired, and were therefore a valued employee to the organization. Receiving a rating of “valued” feels better than receiving a “3” rating, since a 3 rating made employees feel that they were only performing at a mediocre level. Instead of “job plan” the terminology is “individual performance plan” in order to focus the attention on the individual employee’s work outcomes. Instead of a Performance Evaluation Program, the process is termed the Performance Management Program. The change in terminology is more than just wordsmithing. The new terminology brings associations from other conceptual frameworks such as the idea of being valued for doing one’s job; the individual is a point of focus; and performance evaluation is not a report card but part of an overall process focused on helping the employee manage performance. Such new ways of looking at the performance evaluation process are necessary if the culture is ever to truly change. The new terminology will take time to become entrenched in the culture, but it is happening. The percentage of change initiatives that fail is incredibly high and leaders within organizations must use every strategy at their disposal to ensure their change initiatives are successful. One strategy to consider is what words are used in reference to the change initiative – how to talk about the change. After all, words do matter.

E.C. Ricketts, Ph.D., SPHR Tennessee Director of Organizational Development


What Happens after an Employer Receives a

Notice of Inspection from ICE? By BRUCE E. BUCHANAN

I have previously written about decisions issued by the Office of Chief Administrative Hearing Officer (OCAHO). But, how do these cases get started in order to end up before OCAHO? This article will explore the various steps in the process.

What is a Notice of Inspection? The process starts with the hand-delivery service by Immigration and Customs Enforcement (ICE) of a Notice of Inspection (NOI) and subpoena on the employer demanding the original I-9 forms of all current employees and usually former employees for a period going back one to three years. Additionally, the NOI will include a list of all current and former employees including hire and termination dates; payroll records; quarterly wage and hour reports; business information, such as names of owners, Articles of Incorporation, and business licenses; and a list of related companies and subcontractors. An employer should contact their immigration compliance counsel immediately upon being served with a NOI. An employer has three days to comply with the NOI although it can waive the three-day period. An employer should never waive the three-day period. Often, ICE is willing to provide more than three days, if requested to do so.

Remediation of I-9 Forms At this point, the employer and counsel should determine if all of the employees’ I-9 forms are correctly completed and whether all employees have proper work authorization. Additionally, if there are errors, either substantive or technical, it is advisable to make any necessary corrections/additions to the I-9 forms. Often, ICE will accept the efforts to remediate the I-9 forms and not find those I-9 forms to be in violation of the law. However, ICE has the discretion to ignore any remediation efforts after the service of the NOI. But beware, ICE will find a new I-9 form completed after the service of the NOI as untimely prepared and a substantive violation. Before delivery of the I-9 forms to ICE, the employer should always make copies of the forms. After ICE receives the I-9 forms and related records, they will be given to an ICE forensic auditor for inspection.

Notice of Suspect Documents Following the audit, which may take two months to two years, ICE will provide notice(s) to the employer on its findings. One such possible notice is a Notice of Suspect Documents, which states ICE has determined certain employees could not be authenticated as having valid work authorization. ICE’s Notice states the listed employees must be given an opportunity to present additional documentation to demonstrate valid work authorization. The Notice of Suspect Documents also advises the employer of possible criminal and civil penalties for continuing to employ those individuals, if the employees cannot provide valid work authorization. 30

At this point, the employer must give notice, in writing or verbally (preferably in writing), to each affected employee giving them with an opportunity to provide valid work authorization documents within a designated period of time, usually 10 business days. If employees present new documentation, the employer must provide this documentation to ICE for their review. If an affected employee does not comply, the employer should terminate the employee or it will be in violation of the law. Moreover, if the employer terminates the affected employees after providing notice and an opportunity to provide new documentation, an employer will not be subject to any fines or penalties for knowingly employing unauthorized workers - unless ICE discovers evidence that the employer was aware of the affected employee’s illegal status. The fact that the employer hired an undocumented worker who provided a false document(s) is insufficient by itself to prove that the employer knowingly hired that undocumented worker.

Other Possible Notices ICE may also provide the employer with a Notice of Technical or Procedural Failures and the underlying I-9 forms that have such errors. The employer has 10 business days to correct the technical errors. If they are corrected, ICE will not issue any fines for these violations. If ICE finds the employer is in full compliance, it will issue a Notice of Inspection Results. Rarely, will an employer be so fortunate as to receive such a notice. An employer may receive a Warning Notice, which occurs when substantive violations were identified by ICE but circumstances do not warrant a penalty. Usually, employers who receive a Warning Notice will receive a second NOI within the next six months to one year.

Notice of Intent to Fine If ICE finds substantive violations, uncorrected technical violations or the company “knowingly” hired/employed undocumented workers (and does not issue a Warning Notice), it will issue a “Notice of Intent to Fine” (NIF) setting forth the alleged violations and penalties sought. An employer has 30 days to agree to pay the fines or give notice that it seeks a hearing before OCAHO. In my opinion, it is almost always best to give the notice to ICE and then negotiate for a lower fine. If one makes some persuasive arguments, the fine can be substantially reduced. If unsuccessful in the negotiations, then the allegations in the NIF can be litigated before OCAHO.

Bruce E. Buchanan, Attorney Siskind Susser P.C.

The Employee Online Privacy Act of 2014 Tennessee Joins a Growing List of States Restricting Employer Access to Online Employee Information By PAUL E. PRATHER and ELIZABETH S.RUDNICK


he Tennessee legislature has enacted SB 1808, the new “Employee Online Privacy Act of 2014” (“EOPA”). Governor Haslam has signed this legislation, and it will go into effect January 1, 2015. The EOPA will govern the extent to which an employer may ask employees for personal, non-business-related on-line information. The EOPA does not appear to apply to business communications or business e-mail or online accounts.

The EOPA places certain specific restrictions on employer activity with respect to applicants’ and employees’ personal online accounts. Specifically, an employer may not: • request or require an employee or applicant to disclose a password to a personal internet account; • compel an employee or applicant to access a personal internet account in the presence of the employer in a manner that would allow the employer to see the content of the account (a practice commonly known as “shoulder surfing”); or • take an adverse action (e.g., fire, threaten, or otherwise discriminate in the terms and conditions of employment) or otherwise penalize an employee or applicant because the individual has refused to give the employer his/her password to a personal internet account or refused to access the personal internet account in the employer’s presence. However, the EOPA does provide certain exceptions and privileges that align with common employer business interests. Specifically, an employer may (unless otherwise prohibited by law): •  request or require an employee to disclose a username or password required only to gain access to a device that is supplied by or paid for by the employer or an account or service provided by the employer that is obtained by virtue of the employee’s employment relationship with the employer, or used for the employer’s business purposes; • discipline or discharge an employee for transferring the employer’s proprietary or confidential information (including financial data) to an employee’s personal internet account without the employer’s authorization;

• view, access, or use information about an employee or applicant that is available in the public domain. Additionally, but perhaps most importantly, the EOPA does allow employers to conduct investigations when appropriate. An employer may: • conduct an investigation or require an employee to cooperate in an investigation if: (a) there is specific information on the employee’s personal account regarding the subject of the investigation (so long as the investigation involves potential legal violations or work-related misconduct); or (b) the employer has specific information about an unauthorized transfer of the employer’s confidential or proprietary information to the personal account. During an investigation, an employer may require the employee to share the reported content or information contained on the personal account to make a factual determination. While the new law has yet to be interpreted by any court, this would appear to mean that if an employer is conducting an investigation into a potential violation of anti-discrimination laws (such as Title VII, the ADEA, or the ADA), the employer may require the employee to disclose information on his/her personal internet account (like email or Facebook) that relates to the subject of the investigation. Under the EOPA, the employer is under no duty to search or monitor personal internet accounts of employees. For this reason, an employer will not be liable if it fails to request or require that an employee grant access to, allow observation of, or disclose information that allows access to the personal internet account. This provision seems to attempt to give employers a “safe harbor” if they do not demand that employees grant access to content or information contained in personal internet accounts for purposes of an investigation. This may prove to be at odds with federal law applicable to internal investigations into allegations of discrimination and harassment. The EOPA may be enforced through civil lawsuits brought both by aggrieved individuals and by the state on behalf of aggrieved individuals. Tennessee now joins 13 other states that have enacted similar legislation. While this new law may be viewed in a positive light from an employee privacy standpoint, it imposes a limitation and boundary on employers in dealing with applicants’ and employees’ personal internet accounts, but it does not eliminate an employer’s obligation to address discrimination, harassment, violence, bullying, or other misconduct.

• restrict or prohibit an employee’s access to certain websites while using a device supplied or paid for by the employer or while using an employer’s network or resources; • monitor, review, access, or block electronic data stored an on electronic device supplied by or paid for by the employer, or stored on an employer’s network; • comply with a duty to screen employees or applicants before hiring or to monitor or retain employee communications: (a) that is established under federal law or by a “self-regulatory organization” (e.g., FINRA); (b) for purposes of law enforcement; or (c) for purposes of an investigation into law enforcement conduct; or

Paul E. Prather, Shareholder Littler Mendelson

Elizabeth S. Rudnick, Shareholder Littler Mendelson


7 Steps

to Mending

Relationshiupess with Colleag

Listen and keep quiet until they are finished speaking Instead of formulating your response while the other person is speaking, pretend you are going to have to write down everything they said. Focus on listening to their words and the emotions behind those words.

Repeat back what you heard them say After they have finished, instead of coming up with a rebuttal or counter argument, repeat back in your own words what you heard them say. Let them know they have been heard by repeating back, in your own words, “What I heard you say was …”. Let them know that you were aware of the emotions behind what they were saying and check-in with them to see if you are correct. Just letting your co-worker know they were heard, regardless if you agree or not, will go a long way in getting their support in solving your problem.


“The highest compact we can make with our fellow is, - ‘Let there be truth between us two forever more.’” ~ Ralph Waldo Emerson ~


orkplace conflict is inevitable and almost everyone who has spent time working with others has experienced this. Whether there may be misunderstandings, power struggles or rude and belligerent behavior, workplace conflict causes stress, drains energy and impedes the possibility to do our job to the best of our ability. The good news is that we don’t have to sit back and allow ourselves to become victims; we can take a proactive approach and take charge of our workplace relationships. If a coworker has said or done something that is taking up emotional space inside of us, there are a number of things we can do. Unless the other person is closed, committed to right fighting or holding a grudge, you have a good chance of making some progress in using these steps. Either way, you will feel better after saying what you need to say and having done your best. If all goes well, and the other person shares your interest in mending fences, you could end up with a better relationship with this person than you would have thought possible.

Wait until strong emotions have settled Before approaching your co-worker, wait until your emotions have settled down and you can think and speak in a calm tone of voice. Wait until you are in a situation that is relatively stress free and the other person and yourself are both calm before you ask to speak to them. Make your intentions clear at the start of the conversation. Your colleague will naturally be defensive and may assume that you want to continue the conflict. Assure them from the beginning that you want to develop a better workplace relationship and that your intent is to look for ways to resolve your differences.

Acknowledge your part and apologize if you need to If you have regrets about the way you handled yourself in the situation, apologize sincerely and without reservation. Acknowledge any part that you feel you may have had in creating the conflict. If you overreacted, start off by acknowledging your role, even though at the time your ‘buttons’ were being pushed. By starting off talking about what you could have done differently, you allow your colleague to lower their defensive shield and look at their own behaviors that may have contributed to the situation.

Ask them to tell you how their perception of the situation As the person you are having problems with will expect you will begin sharing your grievances, allowing them to speak first will lower their defensiveness. This will also be a clear indicator that you are seriously interested in a resolution. If they feel they weren’t heard the first time, which is quite likely, this will give them another opportunity. Lowering the defensiveness and tone of the conversation will allow both of you the chance to look at the situation in a new light and the opportunity to become aware of areas that you had not thought of in the heat of the moment. 32

Give your version, sticking to the data of what happened When it is your turn to talk, stick to the events as they happened and avoid making judgments about why the other person acted the way they did. An example could be, if they did not show up for a scheduled meeting. Talk about how that impacted the other people in the meeting, but don’t accuse them of not caring about the other team members. Let them tell you why they didn’t show up for the meeting. Often it is accusations and judgments regarding the situation or events that trigger strong reactions. These can often be avoided by sticking to the facts and giving the other person the opportunity to explain themselves.

Work on a solution and agreement Ask them how you could do things differently in the future to prevent the same outcome from happening again. Search together for something you can agree on and commit to doing this from now on. Take the lead and come up with something that you can do differently in situations that come up in the future. Hopefully your colleague will follow suite and commit to a more effective way of handling situations that arise in the future. If all goes well, this could lead to a closer and more effective working relationship down the road. If not, and you feel that your co-worker is avoiding taking any responsibility for their actions, know that you did your best. Having gone through this process will provide you with lessons and tools that will help you in developing better relationships at work in the future.

Harvey Deutschendorf Emotional Intelligence Expert, Speaker, and Author of The Other Kind of Smart Twitter@theeiguy





The Workplace By SUSAN PICART

here are many people who can call their homes their safe haven, a place full of peace and harmony, essentially an escape from a chaotic world. But, there are others who feel the complete opposite and dread leaving their jobs daily in fear of what awaits them at home. These are the folks that may be victims of domestic violence, also known as intimate partner violence.

What is Domestic Violence? Domestic Violence is a pattern of behavior one person uses to gain power and control over his or her partner in an intimate relationship. Behaviors can include physical attacks, intimidation, threats, emotional pain, psychological confusion, verbal abuse, sexual assault, and homicide. Abusive behaviors can also include periods of apologies, blaming, little or no communication, promises to change, and gifts.

• Bruises, chronic headaches, abdominal pains, muscle aches • Vague, non-specific medical complaints • Sleeping or eating disorders • Signs of fear, anxiety, depression • Fatigue • Intense startle reactions • Suicidal or homicidal thoughts • Nightmares or flashbacks

Most companies that acknowledge that Domestic Violence is an issue typically already have policies and procedures in place to help individuals requesting help. Get familiar with these policies and procedures. Understand the policies that interface with security and ways that the business is helping employees remain safe at work. A business that has an Employee Assistance Program can help with counseling, safety planning based on the wishes and needs of the employee in addition to provide training for leadership on recognizing domestic abuse. Openly discuss domestic violence as part of your wellness initiatives. Place posters and helpful information throughout the work area. Most victims will not talk about it openly, however, if they see information posted and distributed at work; they are more apt to seek out help. Domestic violence can bring about a lot of confusion or feelings of being overwhelmed for those involved, both of the person being abused and for supervisors. Helping employees who are victims of domestic abuse is positive for the employee as well as the business.

Susan Picart, LCSW, SAP Methodist Healthcare EAP

According to the Corporate Alliance to End Partner Violence, a comprehensive study was done resulting in the following statistics: 24 percent of adult women and 14 percent of adult men have been physically assaulted by a partner at some point in their lives. Domestic Violence costs $8.3 billion in expenses annually: a combination of higher medical costs ($5.8 billion) and lost productivity ($2.5 billion). Every year an estimated 8 million days of paid work is lost in the U.S. because of domestic violence. Since most of an employed person’s waking hours are spent at work, raising the awareness of domestic violence in the work environment is imperative, and employers as well as employees need to understand the signs and how to assist someone who may be a victim. Domestic Violence is a workplace issue, and taking on the “It’s not my business” approach, may potentially lead to problems beyond the scope of the abusive relationship. Some of the signs or impact, domestic violence can have on an employee who is a victim are the following: • Arriving to work late or very early • Decreased productivity due to difficulty concentrating on tasks • Tension around receiving repeated personal phone calls • Wearing long sleeves on a hot day or sunglasses inside • Avoiding windows, main entrance of office • Repeated discussion of marital or relationship problems • Flowers or gifts sent to employees at the workplace for no apparent reason

We’re the Resource in Human Resources Customized management training Compliance audits Policy and strategy analysis Litigation defense Immigration services Labor negotiation ALABAMA • FLORIDA • GEORGIA • LOUISIANA • MISSISSIPPI • TENNESSEE • TEXAS • WASHINGTON, D.C. THIS IS AN ADVERTISEMENT. Ben Adams is Chairman and CEO of Baker Donelson and is located in our Memphis office, 165 Madison Avenue, Suite 2000, Memphis, TN 38103. Phone 901.526.2000. ©2014 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC


2014 Annual Manager’s Conference e! n i l n r O .net e t is ra Reg w.cah ww

“Supervisor Superhero” Discover your Supervisory Powers

Thursday, June 19, 2014

Chenal Country Club, Little Rock, AR ~ 8:30 a.m. - 3:30 p.m.

AGENDA 8:30 am - 9:15 am - Registration, Visit Sponsors & Continental Breakfast 9:15 am -10:15 am - Concurrent Session 1 Salon A: Missy Duke, Cross Gunter Witherspoon & Galchus: Harassment Prevention Salon C: Joseph A. Ramsey, Cross Gunter Witherspoon & Galchus: Discrimination Law Basics 10:15 am -10:30 am - Break 10:30 am - 11:30 am - Concurrent Session 2 Salon A: Jessie Wilson, Dale Carnegie Training Mid-South: Employee Engagement Salon C: Jess Sweere, Cross Gunter Witherspoon & Galchus: Social Media in the Workplace 11:30 am -12:00 pm - Lunch (Salon A) 12:00 pm - 1:00 pm - Key Note Speaker Salon A: Joel Bishop, OC Tanner: “Great Works” 1:00 pm - 1:15 pm - Break 1:15 pm - 2:15 pm - Concurrent Session 3 Salon A: Rick Roderick, Cross Gunter Witherspoon & Galchus: Discipline, Documentation & Termination Salon C: Abtin Mehdizadegan, Cross Gunter Witherspoon & Galchus: Problem Employees 2:15 pm - 2:30 pm - Break 2:30 pm - 3:30 pm - Session 4 Salon A: 4-H Excel Team: Team Work

This program has been submitted for General Recertification credit hours toward PHR, SPHR, and GPHR recertification through the HR Certification Institute.

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Joel Bishop, for nearly two decades, has delighted corporate leadership audiences from companies across the globe, including American Express, Newell-Rubbermaid, SC Johnson, Aeropostale, and many more. His background as a former comedy improv performer, film and television actor, and voiceover artist have made him an instant favorite, engaging audiences internationally from Amsterdam to Atlanta and Calgary to California with his energy, enthusiasm, and humor. As one of O.C. Tanner Learning Group’s elite presenters, Joel speaks annually to hundreds of prestigious clients. Blending humor with rich content and solid global data from The Carrot Principle and the recently released The Orange Revolution, Joel teaches how appreciating great work and implementing the principles of teamwork drive employee engagement and deliver breakthrough results. Missy Duke is a Director at Cross Gunter Witherspoon & Galchus. She regularly represents employers before the Equal Employment Opportunity Commission and the Wage & Hour Division of the Department of Labor, as well as related Federal and State Court Litigation. She also represents employers and individuals in immigration matters. Joseph A. Ramsey represents employers in a variety of employment matters before federal and state courts, and administrative agencies. He has experience defending wage and hour class and collective actions involving overtime and other wage-related claims. Other focused practice areas include defending claims involving discrimination, harassment, wrongful termination, the Fair Labor Standards Act, the Arkansas Minimum Wage Act and claims for unemployment benefits. Additionally, Joe counsels employers on employment-related policy and personnel decisions, including drafting employee handbooks. Joe also speaks and conducts training on management topics such as appropriate policies and procedures, conducting workplace investigations, and wage and hour issues. Jessie Wilson is the Performance Consultant for the Dale Carnegie Training of the Mid-South. Jessie's scope of responsibilities include following up with clients, building new clients, and giving her clients training solutions to help grow their bottom-line. She is a Dale Carnegie Certified Trainer. Jessie was the 2011 and 2012 Rookie of the Year in Dale Carnegie North America Sales. Jess Sweere entered the practice of law after 18 years as a manager in the trucking industry, working in both union and non-union environments. Admitted to Practice in 2005, Arkansas and United States District Courts, Eastern and Western Districts of Arkansas, United States Court of Appeals for the Eighth Circuit. Hi practice areas include: Employment Law, Labor Law, Commercial/Corporate Law, Transportation Law, and Insurance Defense. Rick Roderick has more than 20 years of human resources experience in various executive management positions, including Executive Director of Human Resources with a large, multi-state corporation. He has extensive experience in labor relations, union negotiations and employment law. Rick works primarily in the areas of wrongful discharge, employment discrimination, unfair labor practices and wage and hour matters. He also advises management regarding human resources systems and policies and procedures, and performs supervisory training. He is a highly sought speaker for SHRM-affiliated chapters and conferences across Arkansas, professional and industrial groups, and client training. Abtin Mehdizadegan’s practice focuses on employment, civil and business litigation. He graduated from the University of Arkansas at Little Rock William H. Bowen School of Law in 2013. During law school, he served as Editor-in-Chief of the Law Review and also competed in the National Trial Competition as a member of the school’s Trial Team. Prior to law school, Abtin attended the University of Maine in Orono, ME, and earned his bachelor’s degree in political science and successfully defended his Honor’s thesis. During this time, he served as the VP of Student Entertainment where he worked with national talent agencies in organizing events for Maine’s flagship campus.

Thank you Sponsors:

PO Box 25964 ~ Little Rock, AR 72221 ~ Phone: 501-244-2472 ~ Fax: 501-224-0988

June 2014 issue