June 2016 issue

Volume 6 : Issue 6 TM

www.HRProfessionalsMagazine.com

ACA Fees:

Self – Funded Plans May Save Money

How to Insure Your Company

Website is ADA Compliant

2016 MSSHRM Conference Warning!

Millennial Recruiting May Lead to

ADEA Discrimination

Virginia Hughes Means,

SHRM-SCP, SPHR

Chairman of the Board of Directors SHRM-Atlanta

The DOL New

“Persuader” Rule –

Will it Be Stopped?

Showdown

in the Stalls:

The Bathroom, the Government And Your Employees

JUST PUT IT ON THE COMPANY CARD…NOBODY WILL NOTICE.

YOU’RE REALLY SHOWING OFF YOUR BEST ASSETS TODAY.

THEY’RE WORRIED ABOUT OVERTIME. I’M JUST WORKING OFF THE CLOCK.

I NEVER WEAR THE SAFETY GOGGLES. THEY LEAVE A MARK.

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.

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Bringing Human Resources & Management Expertise to You

Only 0.3% of the U.S. population identifies as transgender. www.HRProfessionalsMagazine.com Editor

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

The Thompson HR Firm, LLC HR Consulting and Employee Development Art Direction

Park Avenue Design Contributing Writers

Ben Beeson Ken Bowen Harvey Deutschendorf Ann Easton Steve D. Gravely Jimmy Hinton George Loveland II Chris Menard Kerstin Nemec Tim Norwood Gary Peeples Rob Rattan Ricky Reynolds Blake Rogers Paul White Thomas J. Woodford 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 Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles.

All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors.

HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2016 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.

Features 4 note from the editor

WEB EXCLUSIVES

5 Profile: Virginia Hughes Means, Chairman of the SHRM-Atlanta Board of Directors

7 Ways to Look for Emotional Intelligence When Hiring

20 Seeking Seasonal Hires and Volunteers?

BY HARVEY DEUTSCHENDORF

26 Improving Staff Morale Through Authentic Appreciation

HTTP://HRProfessionalsMagazine.com /Exclusive

27 Book Look: Think Like a Brand: A 7-Step Strategy to Increase Your Satisfaction and Success 30 2016 Guide to Super Lawyers in Labor and Employment Law

Employee Benefits

Next Issue

14 Ransomware Threatens Health Care 16 Is Your Head in the Clouds When it Comes to Your Employees?

Top HR Educational Programs - Deadline to submit articles and ads is June 10

21 How to Get More than You Pay For 22 ACA Fees: Self-Funded Plans May Save Money

by Utilizing the Proper Counting Method

Employment Law 10 Showdown in the Stalls: The Bathroom, the Government, and Your Employees 12 Mandatory Arbitration Agreements and the NLRB 18 Warning! Millennial Recruiting May Lead to Disparate Impact Under the ADEA 24 The U.S. Department of Labor’s New “Persuader” Rule: Will It Be Stopped?

28 Is Your Company’s Website Discriminating Against the Disabled?

Industry News 6 Highlights of 2016 MSSHRM State Conference & Expo May 16-18 in Biloxi 8 Preview of 2016 SHRMGA State Conference September 18-20 in Augusta 9 Preview TNSHRM State Conference September 14-16 in Memphis 13 Preview 32nd Annual KYSHRM State Conference August 30-September 1 in Louisville 29 Highlights of WTSHRM Conference May 4 in Jackson www.HRProfessionalsMagazine.com

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a note from the Editor

We are excited to bring you highlights of the 21st Annual Human Resource Conference and Expo at the beautiful Beau Rivage in Biloxi May 16-18 in our June issue. I presented “Mitigating 2016 HR Trends That Impact Your Bottom Line,” approved for 1.00 HRCI Business credit and 1.00 SHRM PDC. Special thanks to those who got up early and attended my session at 7 AM on Wednesday morning!

You will also enjoy reading about the WTSHRM Spring 2016 HR and Employment Law Conference on May 4 at Union University in Jackson in our June issue. This seminar was presented in coordination with the Law Firm of Rainey, Kizer, Reviere & Bell, P.L.C. We always look forward to this event and seeing our friends from Jackson, TN.

Cynthia with MSSHRM State Council members at the Networking Event at the Coast Nightclub at the Beau Rivage during the 2016 MSSHRM Conference & Expo in Biloxi. (L_R) Greg Payne, Director; Cynthia; Brandi Garrett, Director of Certification; and Jan Farve, Director-Elect.

It

is a pleasure to introduce you to Virginia Hughes Means, SHRM-SCP, SPHR and Chairman of the Board of Directors of the SHRM-Atlanta Chapter. She has served two terms as Chairman of the Board of Directors for SHRM-Atlanta, one of the largest city based chapters affiliated with the Society for Human Resource Management in the world. Virginia is also Senior Vice President for Post Properties, Inc. You can read about her exciting career on Page 5. We are looking forward to attending the SHRMGA Conference September 18-20 in Augusta and visiting with our SHRM Georgia friends there again this year. See page 8 for registration details.

In this month’s issue you will find The 2016 Guide to Super Lawyers in Labor and Employment Law in Tennessee, Georgia, Kentucky, Arkansas and Mississippi. We know you will find this special section to be an excellent reference tool to help you locate the top attorneys in your area who can guide you through the ever-changing laws and regulations impacting our workplaces. Please watch for The Super Lawyers Rising Stars in a future issue. We are looking forward to introducing you to them as well.

As the spring conference season winds down, we begin anticipating the fall conferences. In addition to the SHRMGA Conference September 18-20 in Augusta, we will be bringing you highlights from the 32nd Annual KYSHRM State Conference August 30-September 1 in Louisville. You will find an exciting preview on Page 13. Attention TNSHRM members! Don’t forget to register for the TNSHRM Annual State Conference on September 14-16, which will be in Memphis this year.

You still have a chance to win the Apple Watch if you register by June 30. Details are on Page 9.

I want to let you know that we will be holding an Online HRCI Certification Exam Prep Class again this August for those of you who are interested in obtaining your PHR or SPHR certification. Classes will begin on August 18 this year. The deadline to register is August 11. See Page 33 for details and how to register.

Thanks to all our readers who joined us May 20 for our complimentary HRCI |SHRM Virtual Event sponsored by Data Facts. My topic was “2016 Compensation Trends.” Watch your email for your invitation to our next event on June 28! If you are not currently receiving our monthly invitation, you can subscribe on our website at www.hrprofessionalsmagazine.com.

Cynthia@hrprosmagazine.com www.hrprofessionalsmagazine.com

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

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Virginia on the cover

HUGHES MEANS

VIRGINIA HUGHES MEANS, SHRM-SCP & SPHR, Chairman of SHRM-Atlanta Board of Directors Virginia has served two terms as Chairman of the Board of Directors for SHRM-Atlanta, one of the largest city based chapters affiliated with the Society for Human Resource Management in the world. The first was in the early 2000s and her current term is 2015 – 2016. She also serves on the Human Resources Leadership Form (HRLF) Board of Directors and Piedmont Park Conservancy Board of Directors. In addition, Virginia is a board member and the Executive Director of Post Hope Foundation, Inc. – a grassroots organization that gives back to communities.

Virginia offers over two decades of senior human capital leadership and consulting experience on behalf of global and domestic organizations. She aligns people solutions with business strategy by evaluating, designing and implementing optimal human resource partnerships and service delivery models. Companies for which Virginia has led Human Resources have been recognized as premier employers by a number of external organizations including Fortune Magazine, Working Mother Magazine, Training Magazine, the Atlanta Journal & Constitution, and the Atlanta Business Chronicle.

Currently, she serves as Senior Vice President, Human Resources for Post Properties, Inc. Her responsibilities involve leading all Human Resource areas, including Recruiting, Learning & Development, Performance Management, Health and Welfare Benefits, Retirement Services, Payroll, Compensation and Employee Relations.

Virginia earned her undergraduate degree from the University of Georgia and attended the Wharton School where she was awarded the HR Business School certification. 

www.HRProfessionalsMagazine.com

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HIGHLIGHTS

In Biloxi

1 1 2016 MSSHRM State Council. (L-R) Scott Williams, Sheri Bedwell, Amanda Ford, Lisa Robinson, Lindsay Carter, Melissa Drennan, Shonda Kines, Gregory Payne, Jan Farve, Jacqueline Mack, Cynthia Render-Leach, Donnie Bond, Dan Baker.

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2 Greg Payne, 2016 Director of MSSHRM State Council, welcomes attendees to the 2016 MSSHRM Conference & Expo. 3 Sherry Johnson, SHRM Field Services Director, was an opening speaker on Tuesday morning. 4 Wanda Freeland , President of Smart Performance Solutions, presented a pre-conference workshop on Coaching for Leaders. Brian Phillips, Regional Manager with Dale Carnegie Training, (not pictured) also presented a pre-conference workshop on Communicating Across Generations. 5 Greg Gilbert, Leadership Coach/Author/Speaker, was the keynote speaker for the opening general session. The session was titled, “Life and Laughter – featuring Mr. HR with a Guitar.”

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6 Kathryn Davanzo, M.Ed, Principal Partner, CODA Partners, was the luncheon keynote speaker on Tuesday. Her topic was “Developing Your Own Leader Self-Identy – Leader P.O.V. (Point of View) 7 Andy Masters, Award Winning Author and Leadership Expert, was the keynote speaker at the closing lunch session on Wednesday. He spoke on “Leadership Lessons from Hollywood.” 8 Shonda Kines, MBA, SHRM-CP, PHR, CCP, CBP, FLMI, Secretary | Treasurer of the MSSHRM State Council, was presented with the 2016 HR Professional of the Year Award. She is pictured with former recipients of the award. (L-R) Cindy Burnett, Jan Farve, Shonda Kines, Theresa Boutwell, Joyce Plunkett, Lindsay Carter.

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9 Brandi Garrett, PHR, SHRM-CP, Certification Director of the MSSHRM State Council, was the recipient of the MSSHRM Spirit Award. She is pictured with former recipients of the award. 10 Mark Massey, VP Retirement Sales, Netchex, spoke on “Designing a 401K Plan: What Needs to Be Considered ad Implemented.” 11 Debra Finney, Outreach/Education Manager, EEO Commission, Memphis District, presented, “Are You Really an EEO Employer?”

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12 Chris Fontan, attorney with Brunini, Grantham, Grower & Hewes, PLLC , discussed “Diversity I n the Changing Workplace.” 13 Tim Lindsay, Managing Shareholder of the Ogletree Deakins Jackson office, with Robin Taylor, Shareholder, discussed “Wage and Hour in 2016 and Forward: Are You Ready?” 14 Randall Patterson, Shareholder with Baker Donelson, presented “Implicit Bias – Recognition & Solutions.” 15 Charlene Clark, Senior Benefits Advisor, US Department of Labor, spoke on “ERISA – Employee Retirement Income Security Act.”

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16 & 17 Conference attendees enjoyed the networking party at the Coast Nightclub at the Beau Rivage on Tuesday evening. www.HRProfessionalsMagazine.com

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T

SHOWDOWN

IN THE STALLS

The Bathroom, the Government and Your Employees

By ROBERT RATTON

he first job that I had out of college was as a field archaeologist performing historic and pre-historic surveys across the Southeastern United States.

This was no glamorous position. I spent 10 hours a day schlepping through swamps and fields digging holes and running the dirt through a screen. On my first day in the field, I dropped my shovel into the ground

and out popped a 10,000-year-old spear point. Even with the passage of time, the object was well-defined with intricate craftsmanship. While the grooves and the markings told a story about technology and culture, this artifact could never convey the pathos of the hunt or conflict between warring tribes. In the next 10,000 years, future grunt laborer archaeologists will drop their shovel into the ground and pull out a toilet seat. While they will gain insight into 21st century waste-removal practices and plastics technology, they will never feel the battle fought over who may occupy the throne.

Over the past two months, the issue of transgender access to bathrooms and locker rooms has sparked a ferocious national debate. The disagreement is over the appropriate restroom for a transgender person. According to Human Rights Watch, transgender is defined as an adjective that means “the gender identity of people whose birth sex (the sex they were declared to have upon birth) does not conform to their lived and/or perceived gender (the gender that they are most comfortable with expressing or would express, if given a choice).” On one side, some groups claim that allowing transgender people to use the bathroom consistent with their present gender identity as opposed to the gender announced at their birth opens the door for molesters and perverts of all sorts to sneak into the women’s room for a peek or something worse. This sentiment has been codified into law recently in North Carolina. On the other side, supporters of the transgender community claim that requiring a transgender person to use his or her gender identity at birth as opposed to present gender identity exposes these individuals to dangerous conditions and violates civil liberties.

The fight over who may use the women’s room (or men’s room, for that matter) is in scorchedearth mode right now. Over one million people have signed a petition against Target’s policy of allowing transgender people the ability to choose the restroom in which they are most comfortable. On May 2, 2016, a group of CEOs from nearly 200 major businesses, including old-guard companies as well as tech-based companies such as Apple, sent a letter to North Carolina protesting its recently adopted law that in part requires an individual to use the restroom consistent with the gender on his or her birth certificate.

The Battleground State

When we are looking at the recent fervor swirling around this issue, it is difficult to trace its genesis. Gender-reassignment surgery has been in the American press since December 1, 1962, when the New York Daily Post ran an article about a New Yorker who underwent a sex change – the article was entitled “Ex-GI Becomes Blonde Beauty.” According to a report by a demographer at UCLA, over 700,000 individuals presently identify as a transgender, and it is highly unlikely that these individuals all transitioned over the last three months.

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Regardless of the event that brought the bathroom issue to the collective consciousness, the spark that that set the issue on fire occurred when North Carolina passed HB2, which established a state policy that required an individual to use government facilities consistent with the gender on his or her birth certificate and removed the power of metropolitan governments to abridge this policy.

The back story to this legal battle plays out like a Russian nesting doll of legislative power. On February 22, 2016, after three hours of debate, the City Council of Charlotte, North Carolina, passed an ordinance that forbids discrimination against LGBT individuals, as well as requires businesses to allow an individual to use the bathroom consistent with his or her current gender identity. At the time of its passage, Governor Patrick McCrory told the Charlotte City Council, “the action of allowing a person with male anatomy, for example, to use a female restroom or locker room will most likely cause an immediate State legislative intervention.”

On March 23, 2016, the State Legislature followed through on this assertion. The State convened an emergency legislative session that resulted in HB2, the bill at issue, that trumped all local ordinances on the use of bathrooms by transgender individuals.

In support of HB2, the Lieutenant Governor of North Carolina, Dan Forest, stated that the Charlotte ordinance “would have given pedophiles, sex offenders and perverts free rein to watch women, boys and girls undress and use the bathroom.”

Not to be outdone on the ability of one government body to trump another, the federal government jumped in on May 4, 2016, claiming that the bill violates federal civil rights law. The federal government threatened to pull funding from North Carolina, including the much-revered University of North Carolina, if the state government did not publicly declare that it would not comply with the recently passed legislation. On May 9, 2016, instead of repealing the bill or pulling federal funding, both parties decided that the best course of action was to sue each other, a path that always leads to a quick and amicable resolution….

The two competing legal arguments underscore fundamental issues on the breadth of federal civil-rights law. North Carolina claims, with a fair amount of case law to back it up, that neither sexual orientation nor gender identity are protected classes under federal law. The federal government has taken the position on numerous occasions that Title VII protections should extend to sexual orientation and gender identity. The answer to this question will play out over the next several years in court, amassing a legal bill that will surely send all taxpayers to the nearest bathroom.

In the Workplace

While the state and federal governments fight it out, the publicity from this lawsuit will require that all companies have a coherent policy on the issue.

No matter which way you decide to go, there will be unhappy employees.

From a practical perspective, enforcing a rule of bathroom by gender at birth has some logistical issues. For example, a manager approaches you regarding several employees who are upset that a co-worker, whom they believe is transgender, is using the women’s room. While the co-worker has some rugged mannish features, you, understandably, have never had a conversation with her regarding what genitals she possessed at birth.

As the person called upon to come up with an answer, you have a series of unenviable choices. A blanket request that all employees bring their birth certificate to work not only exposes you to information that may be protected, but also assumes that people still have access to a copy of their birth certificate. Without attempting to veer into the utterly absurd, should you have someone capable of inspecting your employees’ sex organs to determine that the goods are the original parts? Furthermore, what do you do for the transitioning employee? OSHA recently has put out the mundanely titled “Guide to Restroom Access for Transgender Employees,” which concludes that compliance with HB2 would pose a health risk to your transgender employees. According to the Guide, transgender workers

are reluctant to use restrooms that do not conform to their gender identity, because of fear of violence and embarrassment. In the Guide, OSHA specifically directs those who have been injured by this a transgender bathroom policy to contact OSHA for investigation into unsafe working conditions.

The Effect

As human resources practitioners and employment attorneys, we work every day with real-time issues. We deal with disgruntled employees and unfilled expectations. We work with hurt feelings and unproductive work places. In the grand scheme of our practice, in the past we rarely have had to deal with these bathroom issues. Of all of my clients, the question of transgender restroom use has come up maybe twice. However, the bathroom bills are representative of a greater national debate that plays out every day in your workplace. The greater issue is how these legislative efforts initiate a national debate on LGBT issues. More than ever before, issues of gender identity and sexual orientation are at the forefront of the national conversation. Regardless of any individual’s perspective, the EEOC has fought hard to extend Title VII to sexual-orientation discrimination. The greatest concern is that the incivility in the political theatre will carry over into the workplace. If you choose to allow workplace banter that degrades transgender individuals, you are opening yourself up to be another test case for the EEOC. As with every effort we undertake, this situation demands that we proceed with compassion, patience and respect for varied beliefs in our office.

Robert Ratton, Attorney Fisher Phillips rratton@fisherphillips.com www.fisherphillips.com

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www.HRProfessionalsMagazine.com

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Mandatory Arbitration Agreements and the NLRB

By THOMAS J. WOODFORD

W

ith the recent explosion of class and collective actions involving numerous employment laws, many employers have adopted mandatory arbitration agreements that require employees to refer employment-related claims to individual arbitration and to forego bringing or participating in class or collective actions. Since 2012, the National Labor Relations Board (“NLRB”) has engaged in a broad-based effort to nullify these arbitration agreements, finding that employers’ maintenance and enforcement of the agreements are unfair labor practices that violate employees’ rights to engage in “concerted” activity under Section 7 of the National Labor Relations Act (“NLRA”).

The number of class actions under state and federal rules of civil procedure and collective actions under Section 216 of the Fair Labor Standards Act (“FLSA”) has increased exponentially in recent years due to the focus of plaintiffs’ lawyers on the large fee awards that frequently result in successful cases. Class actions are “opt out,” meaning that all employees who share the same job classifications and/or job duties as the representative plaintiff are included in the class, and employees who do not wish to participate must file a notice with the court expressing their desire to be excluded from the litigation. In contrast, collective actions require employees to “opt in.” Under this latter method, notice is sent to all employees and the employees are afforded the option of joining the lawsuit.

Under either method, the number of employees in the action and the resulting potential exposure in damage and legal fee awards, not to mention defense costs, can be quite large.

Arbitration agreements prohibiting class and collective treatment of claims have proven to be quite effective in reducing the attractiveness, at least in the eyes of plaintiffs’ attorneys, in bringing such actions. The NLRB, however, has attempted to invalidate such class and collective action waivers by arguing that the agreements infringe on employee rights under the NLRA, even when the underlying claims arise under non-NLRA statutes such as Title VII or the FLSA. The NLRB’s assault on class and collective action waivers contained in arbitration agreements began in 2012 with the Board’s decision in D.R Horton, which was reaffirmed by the Board in 2014 in its Murphy Oil decision. Both D.R. Horton and Murphy Oil required employees to sign agreements requiring individual arbitration of employment disputes and waiving employees’ right to bring or participate in class or collective actions in court or arbitral forums.

When employees in each case filed collective actions in federal court alleging 12

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violations of the FLSA, the companies filed motions to enforce the arbitration agreements asking the courts to dismiss the cases and refer them to binding arbitration on an individual basis without class or collective treatment.

The lead plaintiffs then filed unfair labor practice charges with the NLRB alleging that the mandatory arbitration agreements violated employees’ rights to engage in concerted activity, and the NLRB General Counsel issued formal complaints against the employers.

In each case, the Board found that mandatory arbitration agreements that prohibit employees from bringing joint, class or collective claims interfered with employees’ substantive rights to engage in concerted activity. Despite the existence of the Federal Arbitration Act (“FAA”), which Congress designed to foment arbitration as a substitute for more expensive court proceedings, the NLRB found that its enforcement policy did not conflict with the FAA and that such agreements are unlawful under the NLRA. After the NLRB’s decisions in D.R Horton and Murphy Oil, a plethora of similar decisions have been pouring out of the NLRB at an alarming rate of two to seven decisions per week. But do not despair. Help is on the way—at least for employers that have operations in those states that are subject to the jurisdiction of the U.S. Court of Appeals for the Fifth Circuit: Mississippi, Louisiana and Texas. If you are in another state, you too have hope.

D.R. Horton appealed the NLRB’s decision to the Fifth Circuit, which expressly overturned the Board’s holding that an employer violates the Act when it requires, as a condition of employment, an arbitration agreement that waives an employee’s access to class or collective action procedures. Undeterred by the Fifth Circuit’s rejection of the Board’s position, on the Board-held theory that it is not bound to follow the decisions of Circuit Courts outside the jurisdiction of those courts, the NLRB again held such arbitration agreements unlawful in its Murphy Oil decision. When that employer appealed to the Fifth Circuit, the appellate court, itself undeterred, reaffirmed its prior rejection of the Board’s position in D.R. Horton.

When yet another employer’s arbitration agreement was found unlawful by the Board, and that employer, Chesapeake Energy Corporation, appealed to the Fifth Circuit, the Board finally relented with respect to employers that appealed to that court (i.e., those located in Mississippi, Louisiana and Texas), agreeing that enforcement of its order that the employer violated the NLRA by maintaining and enforcing a class and collective action waiver was precluded by the Fifth Circuit’s prior decisions and not subject to further appeal, at least for now.

The Fifth Circuit’s decisions in D.R. Horton and Murphy Oil align with other circuit courts of appeals that have somewhat distanced themselves from the NLRB’s D.R. Horton rationale, but not necessarily on the same set of facts. It is entirely expected, however, that the NLRB, relying on its own policy of “nonacquiesence” to any court decision other than one issued by the U.S. Supreme Court, will resist efforts by other circuit courts of appeals in other states to adopt the Fifth Circuit’s rejection of the Board’s decisions in D.R. Horton and Murphy Oil. In fact, the NLRB has expressed its intent to appeal the Fifth Circuit’s decision in Murphy Oil to the U.S. Supreme Court.

How the Supreme Court will rule, if it decides to accept the case, is uncertain given the absence of recently departed Justice Antonin Scalia. But hope springs eternal. The FAA should prevail.

Thomas J. Woodford, Shareholder The Kullman Firm, Mobile, Alabama tjw@kullmanlaw.com, www.kullmanlaw.com

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Ransomware Threatens Healthcare

By BEN BEESON and STEVE D. GRAVELY

Hospital pays to unlock electronic medical record from ransomware, the headline says it all. Healthcare providers are facing unprecedented numbers of “ransomware” attacks in which their operating systems and electronic medical records (EMRs) are held hostage in exchange for extortion payments. The Healthcare Information and Management Systems Society (HIMSS) reported that one-half of US hospitals have been targeted by ransomware attacks. In April, the Washington, DC- based health system, MedStar, suffered a ransomware attack that resulted in its entire computer system housing patient electronic medical records, being shut down.

MedStar scrambled to implement backup systems, but patient records were left vulnerable, and patient care was disrupted for nearly a week.

Hospitals are being targeted by cyber criminals, in part because medical records are so rich in personal information and, thus, extremely valuable on the black market. The personal information included in a typical medical record easily supports the creation of false identities to commit insurance fraud. Healthcare is also a “target rich” environment.

In 2016, The American Hospital Association reported that there were 5,627 hospitals in the US with an astounding 34,878,887 hospital admissions in a single year! The amount of electronic health information that is being created for patients every single day is staggering.

This begs the question of why, in 2016, are healthcare providers so vulnerable to data breach and cyber attacks? The easy answer is to blame healthcare providers for not investing enough money in cybersecurity measures. But, the easy answer is seldom the correct answer, and that is true here. The truth is more complex and reveals why achieving true cybersecurity in the healthcare industry is so challenging.

Multiple Health IT Systems Hospitals and health systems are extremely complex, multifaceted organizations in which critical, personal patient information can be distributed across multiple IT systems. Computerized financial systems, which contain HIPAA Protected Health Information and other valuable financial records, have been in use by organizations throughout the industry since the 1960s.

The first computerized clinical systems appeared in hospital labs and radiology departments in the 1970s, followed by first-generation Computer-based Physician Order Entry (CPOE) systems implemented in the early 1980s in large teaching hospitals. While the HITECH provisions of the American Recovery Reinvestment Act and the Meaningful Use program have led almost every hospital and physician group to implement electronic medical records since 2009, many legacy computer systems, which were implemented before cybersecurity threats to the medical community were understood, remain in use. Valuable patient information can be stored on these outdated systems.

Moreover, once legacy systems, which often lack state-of-the-art cybersecurity features, are networked together with more current technology, these older systems become easy backdoors for cyber criminals.

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The rapid consolidation of health networks, systems, and physician practices is compounding the already explosive number of different health IT systems. As hospitals merge or acquire physician practices, they inherit whatever operating system storing electronic medical records that was in place before the merger or acquisition. The result is a dizzying array of overlapping health IT infrastructure from different vendors with varying system and cybersecurity requirements. Health systems are required to make major investments to interconnect these disparate systems to support basic patient care, let alone to support meaningful use and value-based care programs. With interconnectivity comes vulnerability since the security of an entire system depends on the weakest link. The effort required to govern so many different health IT systems puts a strain on CIOs, CISOs, and CPOs.

Large Number of Users Employees are the most common vector for ransomware to gain access to a computer system. The healthcare industry is very staff-intensive. Staffing costs represent the single largest cost component for all US hospitals, averaging over 50 percent of total revenue! An “average-sized” hospital will employ hundreds of personnel with access to electronic health records; larger hospitals employ thousands. Every staff member who requires access to electronic health information must be issued “digital credentials” to permit them to access those operating systems that contain the information. Keeping track of these credentials—and making sure that the credentials are revoked when an employee ceases employment—are massive responsibilities. Real-time monitoring of user access is simply not feasible for most health systems today, given limited resources and the limits of technology. Cyber-criminals are becoming increasingly sophisticated with their phishing attacks, making them harder to detect.

It’s really a numbers game; the more employees a hospital has, the more points of entry there are.

It is not unusual in healthcare for one care provider to work for multiple health systems in the same community. Flexible staffing helps control costs but can also result in employees having multiple part-time jobs. These staff members will have digital credentials to operating systems and EMRs for every health system employing them, exponentially increasing the opportunity for credentials to be lost or stolen. It is also common for employees to use the same password for access to multiple systems, because it is easier to remember, which means cyber criminals can access multiple operating systems and different EMRs through a single person.

Healthcare also has large numbers of nonemployed persons who may need access to a hospital’s EMRs in order to deliver care. Physicians, care managers, intake nurses for post-hospital care providers and many others must be able to access EMRs in order to do their jobs. Far more than in other industries, health IT systems are open to a large number of people. Not only does this vastly increase the risk of lost or stolen credentials, but it also creates a large pool of people who are vulnerable to blackmail. An employee with an addiction, vulnerable family member, or any other skeleton in the closet that may threaten his or her livelihood, can easily be blackmailed by criminals to provide access to an employer’s EMRs and operating system.

This kind of access can go undetected for a long time. The sheer number of people who have legitimate access to a hospital’s EMRs complicates security training and monitoring of the appropriate system usage.

Connected Medical Devices The Internet of Things (IoT), the system in which everyday objects have network connectivity, allowing them to send and receive data, has become a dominant feature of everyday life. Today, there are over 6 billion devices connected to the IoT, and reliable projections predict by 2020, there will be 20 billion! The pace and scale of growth are unprecedented in human history. The speed with which the IoT has become embedded into everything that we do and the explosion in connected devices has come at substantial cost: the privacy and security of personal information that the IoT touches are very much at risk. Nowhere is this problem more immediate than in the healthcare sector worldwide.

The delivery of healthcare in all developed countries is extremely technology-dependent. The reasons for this are very clear: cost and quality.

Technology has allowed for fewer highly trained clinical staff members to effectively treat a larger number of patients. An automated blood pressure cuff, for example, that checks the blood pressure of a patient every 15 minutes and sounds an alarm if the reading is outside of the acceptable range, eliminates the need for a nurse or technician to manually take the patient’s blood pressure. Not only does this allow trained caregivers to focus their efforts elsewhere, but it also enhances consistency of quality through automation. An automated blood pressure device will not get too busy to take a patient’s blood pressure. An automated intravenous pump will consistently administer the exact dosage of IV fluid and IV medication entered into the control panel and will sound an alert instantly when something is awry. While these devices are far from perfect, and the device-human interaction has created a whole new set of issues, it is indisputable that medical devices are an integral part of modern healthcare, and their role will only continue to grow.

The US Food and Drug Administration issued an urgent industry alert to hospitals, and others, in 2015, urging them to stop using the Symbiq IV infusion pump because it could be easily hacked. This unprecedented measure highlighted the extreme vulnerability of connected medical devices and how they can be used as easy points of entry by cyber criminals. In early 2016, the US Federal Trade Commission issued guidance for medical device manufacturers, urging them to begin building cybersecurity measures into their devices.

Hospitals, in particular, are in a conundrum because connected medical devices have become so ubiquitous that it is becoming impossible to deliver quality care without them. The lack of security in these devices, however, makes them easy portals into the hospital’s operating system and EMRs by cyber criminals. Further, if a hospital modifies the device software to add cybersecurity protections, they run the risk of voiding a manufacturer’s warranties. It is easy to see that the industry is on a collision course with a cyber disaster. The question is, “What can be done to avoid it?”

Take the following specific steps immediately to address the threat: 1 Elevate the threat awareness.

Health systems must recognize that ransomware and other cyber threats are not only financial issues. The ability of ransomware to shut down a hospital’s EMR and compromise its ability to deliver care makes this a patient safety issue. Even more concerning is the ability of hackers to manipulate medication doses or interfere with life-sustaining equipment, which could disable or kill a patient. Cybersecurity must be considered as major of a threat to patient safety as fires, hospital-acquired infections, or natural disasters.

2 Owning cybersecurity.

During World War II, the government put up posters to remind everyone that “loose lips sink ships.” This was a national campaign that made every US citizen feel engaged in the war effort while also recognizing a real national security concern. Everyone who works in a healthcare system, regardless of his or her job title or seniority, should be taught that cybersecurity is a critical responsibility. The notion of sharing one’s system password with a coworker should be considered as much of a nonstarter as giving one patient another patient’s medicine or treatment. Reporting suspicious activity should be as normal as reporting a broken instrument or device. Performance reviews should include cybersecurity as a core competency for everyone.

3 Think like a hacker.

Every industry has things that are considered so embedded into protocol and procedure that they simply must be done a certain way. When it comes to cybersecurity, it’s time to think like a hacker. How would you attack your own system?

What is the weakest link or the easiest backdoor? Given that healthcare is so very staff-dependent, the answer should always include people. Tech alone cannot eliminate all of the risk. Changing staff behavior takes time and persistence.

4 To encrypt or not to encrypt?

If heath data was encrypted at rest, it would become much less valuable to cyber criminals. Will that be expensive?

Yes. Are there universally accepted encryption standards today? No. Will encryption of data at rest impact the speed and performance of some legacy systems? Perhaps. But, the healthcare industry’s vulnerability to cybersecurity threats is a crisis, and we must, as an industry, look in the mirror and recognize that bold action is necessary to reduce this vulnerability.

5 Make your Cyber Incident Response Plan real.

If a healthcare organization does not have a Cyber Incident Response Plan (CIRP) in 2016, it should consider itself behind the times and create one this year. If you have not updated your plan in the last three years, it should be reviewed and updated by a qualified professional.

6 Drill, drill, drill.

Like every plan, a good CIRP is no good if no one knows that it exists or what their roles and responsibilities are. You should be regularly conducting drills, using the plan, and evaluating where you could have done better. The CIRP should become a part of regular in-services with all staff, new employee orientation, and regular hospitalwide exercises.

7 Make new friends.

Cyber theft is a federal crime and should be treated as such. If someone broke into the hospital pharmacy and stole drugs, you would not think twice about contacting the police as well as the DEA and perhaps even the state licensing authority. If your facility is the victim of a cyber attack, the FBI would like to know. Their door is open, and they are encouraging folks to contact them. This is actually a rather complicated decision that you should make in consultation with competent legal counsel. Don’t wait until an attack to meet law enforcement. Reach out and meet your local and regional FBI officials and find out who is the correct contact for cybersecurity issues. Talk to that person, and establish a business relationship.

8 Prepare today for a ransomware attack.

Hospitals should assume that they will be targeted in a ransomware attack and prepare now. This includes developing specific plans on how the hospital will continue to operate without its electronic medical records, or other information systems, for an extended period of time.

9 Review your insurance.

Traditional property insurance policies typically do not cover cyber extortion demands, costs to restore compromised data, or loss of revenue from network downtime. Work with your broker to find specialized cyber insurance that can address these gaps and others such as breaches of protected healthcare information.

The factors that make healthcare systems attractive and vulnerable targets for cyber criminals are not going to change anytime soon. There will continue to be large numbers of overlapping health IT systems for years to come. Hospitals and other providers will continue to employ large numbers of staff, and those employees will continue to work for multiple providers and have access to many different EMRs. The growth of “connected devices” will continue and accelerate with more personal and health information being stored on them. Device manufacturers will respond to regulatory and market forces to imbed more cybersecurity into their devices, but this will take time. In the meantime, cyber criminals are becoming more creative and effective every day. Malware and ransomware constantly evolve in order to be less detectable and more productive. The sheer volume of Brad Owens electronic health data is exploding, making the prize Lockton’s more and more valuable to these criminal elements. By Memphis Office implementing these nine steps, you will be prepared for 901 757 6901 any cyber threat. bowens@lockton.com www.HRProfessionalsMagazine.com

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Is Your Head in The Clouds When It Comes to Your Employees?

By KERSTIN NEMEC and TIM NORWOOD

What You Should Know and What Employees Are Embarrassed to tell You Employees are embarrassed to admit it and are desperately trying to fix their situation without sharing the details with their boss or co-workers. They are barely keeping their head above water financially. They are hourly workers between 20-45 years old, most likely a single parent with less than $750 dollars in liquid assets. About a third of Americans live in a low income to poverty level circumstance.

You may think this does not apply to your company, but over 43 million households fall into this category. It is something we rarely speak about at the office because often times we don’t have a way to help employees solve this problem nor should the burden be the employers’.

The employees and family members in this bracket tend to be in poor to good health compared to very good to excellent health for those in the mid to upper income brackets. This is primarily due to financial barriers associated with healthcare. These employees simply cannot and do not go to the doctor because they can’t even afford the first visit. A hard truth.

Basic Healthcare is an Unaffordable Luxury The Affordable Care Act was designed to help assure all Americans have access to affordable health care, but when you are living paycheck to paycheck, any healthcare premiums can make basic healthcare a luxury. The financial picture worsens once you add in the burden of high deductibles, co-pays, any needed prescriptions, and other out of pocket costs.

The flip side, choosing not to buy insurance, is not much prettier when you consider that the 2016 individual mandate penalties for not having coverage are increasing to $695/adult and $347.50/child. The uninsured option and the fees for not having health insurance could potentially bankrupt a family.

What Can Your Company Do to Have an Impact?

77.2M Hourly Workers in the United States Work Fulltime (77%) Works in the private sector in the services, retail, sales or professional services industry (82%) Is between 20-45 years old Has a high school degree and possible associates degree Most likely has children and a single parent Is either in fair to poor health or good health compared to very good to excellent health Has less than $750 in liquid assets

So what can you do as an employer to help the employees that need it the most? You can make the newly Expanded State Sponsored insurance programs part of your benefit offerings. In the past, State Sponsored Health Insurance Plans (SHIP) were generally only available to children, pregnant women, elderly, disabled, and other adults with certain situations. Under the Affordable Care Act, states were given the option to expand these plans to include working adults between the ages of 19-64, with incomes below 138% of the federal poverty level (approximately $33,000 in most states for a family of four). Expanded State Health Insurance Plans give more working Americans access to affordable health coverage. There are now 31 states and the District of Columbia that offer this type of coverage.

The value and savings provided to employees are significant – with most state plans available at no, or a very small, premium cost. Families with dependent coverage see tremendous savings as these plans can offer full household coverage. State health coverage can be 16

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comprehensive and covers full medical benefits including preventive, emergency, maternity, vision, dental, and pharmacy.

There are typically no deductibles, and very little or no co-pays.

There is a silver lining to the cloud. There are very few opportunities where an employer can put money back in an employee’s pocket and this is one of them. By offering the State Health Insurance Plans as part of your benefits program and eliminating premiums, you can increase their take home pay and protect them against any penalties. Your company can also benefit by knowing the employee has coverage and by helping reduce overall healthcare costs.

Kerstin Nemec President Med-Enroll, Inc.

Tim Norwood Executive Vice President Med-Enroll, Inc.

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17

WARNING –

Millennial Recruiting Practices May Lead to Disparate-Impact Claims under the ADEA

By GARY PEEPLES

A recently filed federal complaint has attracted a significant amount of attention because it threatens the way that many firms attract entry-level employees. The complaint, a putative collective action, contends that PricewaterhouseCoopers’ (“PwC”) recruiting practices violate the Age Discrimination in Employment Act of 1967 (the “ADEA”) because those practices disproportionately harm older workers. This complaint comes on the heels of a widely criticized 2015 decision from the Eleventh Circuit holding that the ADEA permits unsuccessful job applicants to assert disparate-impact claims.

A. Factual Background In Villarreal v. R.J. Reynolds Tobacco Co., 806 F.3d 1288 (11th Cir. 2015), reh’g en banc granted and opinion vacated, 2016 WL 635800 (11th Cir. Feb. 10, 2016), an Eleventh Circuit panel faced a novel question, namely, whether the ADEA permits disparateimpact claims by job applicants. The Supreme Court held in 2005 that the ADEA permits disparate-impact claims by employees, but the Court left open the question of whether such claims may be asserted by applicants.

Treading where the Supreme Court did not, a majority of the panel concluded that the statute permitted such claims. The panel majority first noted that neither the text of the ADEA nor its legislative history compelled a conclusion either way. Because of this lack of clarity, the majority next turned to the Equal Employment Opportunity Commission’s (“EEOC”) view. The EEOC, which promulgated the ADEA’s implementing regulations, has consistently taken the position that “[a]ny employment practice [including recruiting] that adversely affects individuals within the protected age group on the basis of older age is discriminatory unless the practice is justified by a ‘reasonable factor other than age.’” 29 C.F.R. § 1625.7(c). This view was entitled to deference, according to the majority in Villarreal.

B. Complaint Against PwC Turning now to the complaint, the named plaintiff, Steve Rabin (“Rabin”), is a 53 year-old certified public accountant. In October 2013, Rabin applied for an Associate position (an entry-level position) with PwC’s San Jose, California office. Rabin received an in-person interview in response to his application. During that interview, one interviewer allegedly asked Rabin how he would fit in with other members of the audit team, all of whom are significantly younger than Rabin. Rabin did not receive an offer following the interview. PwC instead selected a younger person for the Associate position.

Rabin subsequently filed a collective action complaint against PwC. In it, he alleges among other things that PwC’s recruiting practices “have an adverse impact on applicants and prospective applicants ages 40 and older in violation of the ADEA.” Much of the complaint catalogs PwC’s recruiting efforts. Rabin contends that the following efforts constitute evidence of PwC’s alleged unlawful bias against workers over 40 years old: (1) an “exclusive reliance on a recruitment system for entry-level accounting position that requires applicants to be affiliated with a university,” (2) a focus on “attracting and retaining ‘Millennials,’” and (3) a “mandatory early retirement policy that requires Partners to retire by age 60.” According to the complaint, these practices effectively shut out older workers from entry-level positions at PwC. 18

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C. Analysis of the Complaint Because the complaint was filed in late April 2016, the district court has not yet determined whether Rabin’s allegations satisfy the pleading standards imposed by Twombly and Iqbal. Nor has the district court decided whether Ninth Circuit case law permits applicants to assert disparate-impact claims under the ADEA. Despite the fact that Rabin’s case is in its infancy, the complaint has received interest from legal commentators because of the issues that it raises.

Age bias is different from other forms of employment discrimination. One difference is that everyone who is now over 40 years old was once younger than 40. This means that age, though an immutable characteristic, is not immutable in the same way that race and sex are.

And, unlike race discrimination, age discrimination was never institutionalized through Jim Crow-like laws. An amicus brief from the Chamber of Commerce in the Villarreal case makes this point at length; specifically, “[w]ith respect to the ADEA, Congress did not face the same impetus to guard against . . . employment policies that could perpetuate and lock-in [sic] a status quo that had been created by decades of social and employment discrimination against a discrete, fixed group.” Countering decades’ worth of institutionalized discrimination was part of the reason that Congress authorized disparate-impact claims under Title VII of the Civil Rights Act of 1964.

The ADEA, by contrast, was enacted for less historically fraught reasons.

Another reason why age bias is different is that discriminating on the basis of age sometimes makes economic sense. As Judge Richard Posner discusses in his 1995 book Aging and Old Age, “variability in performance in an age cohort tends to grow as the cohort ages.”

Moreover, because many (if not most) hiring decisions are made by people who are over 40 years old, it strikes many observers (including Judge Posner) as unlikely that firms harbor “serious misconceptions about the vocational capacities of the old . . . or a generalized antipathy toward old people.”

The complaint, if successful, would force many employers to re-think their recruitment strategies. Private firms and the government have long sought entrylevel employees through college campuses. Even the Department of Justice’s Honors Program for entry-level attorneys limits eligibility to graduating law students and recent law school graduates (i.e., those who have not yet entered private practice), and both groups consist largely of persons under 40 years old. It is worth emphasizing that PwC may well win on the merits if it can show that the challenged actions are based on reasonable factors other than age. But the path to prevailing on the merits is expensive. Employers should pay attention to this lawsuit because copycat suits are almost assured.

Gary Peeples, Associate Burch, Porter, & Johnson PLLC gpeeples@bpjlaw.com www.bpjlaw.com

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Seeking Seasonal Hires and Volunteers?

Don’t Forgo Background Checks!

By ANN EASTON

According to the U.S. Department of Labor, 62 million people volunteered at least once from September 2014 to September 2015.

How many of those people went through thorough background checks? The answer, unfortunately, is not enough.

Spring and summer are prime times that both non-profits and business organizations actively search for seasonal employees and volunteers to fill positions. Camps, pools, churches, childcare facilities, recreational companies, and many more bring on extra people in temporary and volunteer positions to cover their boosts in activity. Millions of people will be aiming to attain these summer positions.

However, before hiring managers and volunteer coordinators adapt an “everyone is welcome” policy, they need to set specifically constructed boundaries to keep the communities they serve safe.

And, as with any other person hired for permanent, paid positions, these people need to submit to a rigorous background check.

While the majority of companies perform some sort of pre-employment screening during the hiring process, volunteers and seasonal applicants often slip through with little or no background screening. Here are a few reasons.

They aren’t getting paid, or won’t be there long People who offer their time free of charge are often so welcomed they are immediately accepted at face value. If they are volunteering, they are automatically a good person, right? This is NOT the case. An alarming recent study found that a convicted criminal tries to volunteer every six minutes. Volunteers are just as likely to be dishonest and damaging as a full-time employee. In addition, certain criminals, such as sex offenders, may volunteer specifically to get closer to children and other vulnerable populations, banking on the fact that volunteer screening is lax and will allow them to slip through.

They were referred by another volunteer.

A friend of a friend is often the way non-profits find volunteers and seasonal workers. Believing that the friend is as honest as the person recommending him or her is a dangerous assumption. Often the referring person doesn’t know about the individual’s criminal activities, work history, or lack of honesty. These secrets can end up harming your organization.

Screening is perceived as too costly.

Temporary staff or volunteers aren’t typically part of an organization’s full-time workforce, leading non-profits and other businesses to opt to avoid the cost it takes to screen them. While background checks do cost money, it is important to realize the importance of checking out a volunteer's background, especially if they are working with vulnerable populations, such as children or the elderly. Just having one volunteer or seasonal worker with a dubious background act out violently or criminally could tank your organization’s reputation, endanger your clients, and leave you open to costly, lengthy litigation.

Screening is not required.

Few states require seasonal employees or volunteers to submit to background checks. Many organizations determine if it is not required, there is little benefit from the effort.

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What should those who need seasonal workers or volunteers do?

In order to protect the safety of the company’s working environment, its clients, and its reputation, companies need to take a cue from the hiring practices of other for-profit, permanent employee-based businesses and screen every temporary employee and volunteer. Here is a few simple but powerful background check safeguards that minimize the chance of a dishonest or dangerous person being hired or allowed to volunteer: Establish a policy for screening summer hires and volunteers. On the front end, management needs to decide which background screening tools will be utilized for each screen, and stay consistent with that plan. Write it out and update it whenever there is a change in policy. Avoid blanket statements such as “we deny volunteer opportunities or employment to all applicants who have criminal records.”

Find a reputable third party background screening company. Interview reputable companies that professionally offer background checks, and choose one with experience in seasonal hiring and volunteer screening. Make certain the background screening company you select has been in business a long time, is accredited by the National Association of Professional Background Screeners (NAPBS) and will provide you with access to a robust customer support system if you have questions.

Become familiar with the laws. States may have laws that govern what is and is not allowed during background checks. Make certain to be up to date and compliant on all pertinent laws.

Obtain the applicant’s authorization. Don’t try to sneak in a background check without the person’s knowledge, as this can get you in hot water. Each and every applicant should authorize the volunteer background check, and also needs to receive a disclosure that a background check is being conducted.

Utilize relevant screening tools. Design the screening procedure to be in line with the job’s responsibilities. For example, a camp counselor would need to be checked against a sex offender’s registry, but would not necessarily need to have a credit report pulled. Only utilize the screening tools that correspond with the position sought.

Follow the FCRA requirements if you decided to deny employment. A pre-adverse action letter followed up after a reasonable period of time with an adverse action letter must be sent to the applicant if it is decided not to hire based on whole or in part from the information found in a background check report.

A thoughtful, written out background screening plan should be a top priority for all representatives of your organization, even those who are unpaid volunteers and seasonal, temporary workers. Selecting the right people greatly minimizes risk to your organization, decreases the chance of harm coming to the vulnerable populations you serve, protects your reputation, and reduces the chance of litigation.

Ann Easton Senior National Account Manager Data Facts, Inc. ann@datafacts.com http://info.datafacts.com/ann-easton

How to get more than you pay for Look beyond insurance to get the most value from your benefits partner

By B LAKE ROGERS, JIMMY HINTON, CHRIS MENARD, and RICKY REYNOLDS

When you buy something, you expect to get what you pay for. And if you get even more, that adds value. Whether it’s a hotel room upgrade to a suite or a free car wash when you fill the gas tank, getting more value makes you feel better about your investment.

Why should it be any different with your employee benefits program?

Well, it’s not. In fact, working with the right employee benefits partner can add extra value to your package in the form of popular products and services your employees will appreciate — without making a cent of difference to your bottom line.

Does that sound too good to be true? Here are some of the value-added services and coverages Colonial Life customers can make available to their workers: • Identity monitoring and restoration. According to IdentityTheft.info, 15 million Americans — that’s 7 percent of adults — are hit by fraudulent use of their identities each year, with financial losses reaching $50 billion. Colonial Life has partnered with InfoArmor to offer one year of complimentary identity theft protection coverage for employees in qualifying new accounts. This service provides identity monitoring and helps employees with the burden of recovering from identity theft, including a dedicated case manager to act on the victim’s behalf and resolve the issue. There’s even a WalletArmor component to make lost wallet replacement quick and easy.

• Flu shots. In partnership with OccuVAX, Colonial Life can help you provide complimentary flu shots for your employees.

The Centers for Disease Control and Prevention reports flu vaccines prevented 1.9 million illnesses and 966,000 medical visits during the 2014-2015 flu season. Flu shots are an important way you can demonstrate your company’s care and commitment to employee well-being, while also helping ensure a healthier, more productive work force.

• Accidental death and dismemberment coverage. Through this value-added program, you may be able to provide your employees with $5,000 of AD&D coverage at no cost to you or your employees. Colonial Life partners with CHUBB to offer this coverage, which pays a benefit if a covered accident causes the loss of life, a limb, sight, speech or hearing.

Your employees are covered 24 hours a day, year-round, anywhere in the world.

• Flexible benefits plans. You probably already know about this valuable way for employees to pay for some health care expenses and insurance premiums with pretax income, making them even more affordable (and reducing your payroll taxes, too).

What you may not know is you may be able to get this service at no cost by partnering with Colonial Life.

What’s the catch? There really isn’t one. Yes, some of these programs are limited to new customers, and some require a certain number of your employees to participate in benefits enrollment sessions. Some require only sitting down for a few minutes with a benefits counselor — in itself a value-added service. In fact, our benefits education and enrollment support may be the single most important value-added service we offer, and one that’s available to every Colonial Life customer.

Are you getting all the value you deserve from your employee benefits program? If you’re not sure, just give any one of us a call and let’s talk about it. It could be the most valuable step you take for the long-term health of your employee benefits program.

Blake Rogers Tennessee territory sales manager, Colonial Life & Accident Insurance Company tblakerogers@coloniallife.com or 615-696-6672

Jimmy Hinton

• Financial education. If you think America is falling behind the world in math and science scores, that’s nothing compared with how poorly most of us understand basic financial concepts. A WalletHub. com Wallet Literacy survey found 40 percent of U.S. adults give their personal finance knowledge a grade of C or worse — and that may be optimistic, since scores of those who took the survey averaged only 51 percent to 70 percent by state (ahem, that was a D or F when we were in school). Colonial Life offers its customer the KOFE financial education program, a product of Consolidated CreditSM, that includes access to online calculators, budgeting tools, videos and webinars, plus unlimited access to complimentary financial coaching by phone.

Mississippi territory sales manager, Colonial Life & Accident Insurance Company jhhinton@coloniallife.com or 601-326-2954

• Discounts on drugs and medical services. Colonial Life’s WellCard discount program, powered through AccessOne Consumer Health, helps employees save money on doctor office visits, prescription drugs, vision and hearing products and services, lab work and imaging tests. Even if your company already offers a health or prescription drug plan, WellCard can complement it by helping pay for services that are limited or not covered, especially if your company offers a high-deductible health plan that leaves employees with considerable financial exposure to out-of-pocket costs.

Arkansas territory sales manager, Colonial Life & Accident Insurance Company rcreynolds@coloniallife.com or 501-246-8979

Chris Menard Kentucky territory sales manager, Colonial Life & Accident Insurance Company cmenard@coloniallife.com or 502-272-9664

Ricky Reynolds

ABOUT COLONIAL LIFE Colonial Life & Accident Insurance Company is a market leader in providing financial protection benefits through the workplace, including disability, life, accident, dental, cancer, critical illness and hospital confinement indemnity insurance. The company’s benefit services and education, innovative enrollment technology and personal service support 85,000 businesses and organizations, representing 3.5 million of America’s workers and their families. For more information, visit www.ColonialLife.com, www.facebook.com/coloniallifebenefits, www.twitter.com/coloniallife and www.linkedin.com/company/colonial-life. www.HRProfessionalsMagazine.com

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ACA FEES:

Self-Funded Plans May Save Money by Utilizing the Proper Counting Method

The Actual Count Method adds the total lives covered for each day of the plan year and divides that total by the number of days in the policy year. Most carriers or reporting entities do not report plan enrollment by each day of the year but rather enrollment totals at the beginning or end of the months within the plan year. These reports may be used as a surrogate to determine if the Actual Count Method may generate the lowest average, but reports with actual daily counts will be required to make a final determination.

W

The Snapshot methods utilize the sum of lives covered on a date during the first, second or third month of each quarter of the plan year. This allows for an appropriate selection based upon whether the plan enrollment has grown or shrunk during the plan year. For example, if the plan has increased enrollment during the plan year, choosing the first or second month of each quarter is likely to generate the lowest average. While the nomenclature is similar, the snapshot methods are actually two completely separate methods which often generate significantly different average life calculations:

By KEN BOWEN

ith the due date to file and pay the 2015 Patient-Centered Outcomes and Research Institute (PCORI) Trust Fund fees drawing near, the time is now to determine the most appropriate method for calculating the average lives

of your plan. As with the Transitional Reinsurance Fee, multiple safe harbor methods are acceptable for calculating average plan lives, and these methods differ between fully-insured and self-funded plans. Any employer maintaining a self-funded health plan is ultimately considered the plan sponsor and must file these ACA-related fees on their own behalf. Failing to utilize all available methods has left many employer groups paying hundreds or thousands of dollars in fees above their minimum liability. In the following paragraphs, we will step through all available methods and show employers how to avoid paying more than their fair share of these fees.

The PCORI fee associated with plan year 2015 is due by July 31, 2016, accompanied by Form 720. That is the bad news. The good news is that the PCORI fee is $2.08 Per Member Per Year (PMPY) for plan year 2015 versus the significantly higher $44 PMPY for the Transitional Reinsurance Fee, which was due back in mid-January. While the costs and purpose differ, the acceptable counting methods for determining average lives are identical for both fees. So it is highly

The good news is that the PCORI fee is $2.08 Per Member Per Year (PMPY) for plan year 2015 versus the significantly higher $44 PMPY for the Transitional Reinsurance Fee, which was due back in mid -January. likely the same method should now apply to the PCORI fee that applied to the Transitional Reinsurance Fee. The question becomes‌did the plan utilize the most appropriate counting method or did it simply pay too much?

The goal when calculating either the PCORI or Transitional Reinsurance Fee is to find and leverage the counting method which yields the lowest average count of lives (i.e., members) for the applicable plan year. By comparing multiple methods, employers will often find they can shave their average life count thereby decreasing the fees due. For self-funded plans, there are four safe harbor methods allowed by the final regulations of the Affordable Care Act: Actual Count Method, Snapshot Count Method, Snapshot Factor Method and Form 5500 Method.

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• The Snapshot Count Method utilizes the actual count of lives within the selected months of each quarter. • The Snapshot Factor Method differs in that it uses actual counts of subscribers with self-only coverage but multiplies the count of subscribers with dependent coverage by a factor of 2.35. Thus, if the average number of lives for the subscribers with dependent coverage is greater than 2.35, the Snapshot Factor Method will create a lower liability than the Snapshot Count Method.

Rounding out the four allowed methods is the Form 5500 method.

Under this method, the plan sponsor may determine the average number of lives covered under the plan based upon the number of participants reported on the Form 5500 for the applicable plan year.

The Form 5500 for the plan year must be available for use as a determining method so plan sponsors that file an extension for filing the Form 5500 will not be able to utilize this method.

Whether calculating the applicable Transitional Reinsurance or PCORI fee, please remember the counts are based on covered lives under major medical coverage. Major medical coverage can be defined as coverage subject to reasonable enrollee cost sharing for a broad range of services and treatments, including diagnostic and preventive services, as well as medical and surgical conditions. For example, Transitional Reinsurance guidance excludes lives covered under limited scope coverage such as hospital indemnity coverage, stand-alone dental or vision plans as well as most HRAs, HSAs and FSAs. PCORI guidance is similar, but also specifically extends this exclusion to employee assistance, disease management and wellness program enrollment.

As medical and pharmacy costs continue to escalate, it has become more important than ever to trim health care expenses at every opportunity. With the 2015 PCORI fee due in a matter of weeks (July 31st) take this opportunity to verify the lowest cost method and potentially capture some much needed plan savings. If you have questions, encounter issues, or would simply like a double check of your calculations please reach out to a Regions Insurance advisor and gain some peace of mind.

Ken Bowen Employee Benefits Consultant & Data Informatics Regions Insurance Little Rock, AR Ken.Bowen@regions.com www.regionsinsurance.com

Can we charge employees more if they are tobacco users?

I think so, but I’m not sure.

How would we verify if they quit?

Good question. Who can we call to find out?

Finding More Questions than Answers?

When it comes to managing your employee benefits program and the Affordable Care Act, it can seem like every answer only leads you to more questions.

Let Regions Insurance’s ACA-trained professionals guide you down the right path – because it’s our business to run defense for your business.

Tom Hayes

Katrina McKinney

Employee Benefits Practice Leader tom.hayes@regions.com 479-684-5259

Sales & Marketing Coordinator katrina.mckinney@regions.com 205-264-7177

www.regionsinsurance.com

The Coverage You Need.

The Guidance You Trust.

SM

Find Regions Insurance offices in these states: Alabama, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, South Carolina, Tennessee and Texas ©2015 Regions. Regions Insurance is an affiliate of Regions Bank. Products and services are offered by Regions Insurance, Inc., and underwritten by unaffiliated insurance companies.

The U.S. Department of Labor’s New “Persuader” Rule:

Will It Be Stopped?

N

By GEORGE W. LOVELAND, II

early five years after first proposing the rule, on March 24, 2016, the U.S. Department of Labor (DOL) published its final rule regarding “persuader” activity (Final Rule) (81 Fed. Reg. 15924). The controversial Final Rule, which amends the previous rule interpreting the “advice” exemption of the federal Labor Management Reporting and Disclosure

Act (LMRDA), will be effective July 1, 2016, unless legal action successfully blocks it. The Final Rule will require employers to file public reports with the DOL when they use labor relations consultants (“consultants”) or lawyers to provide labor relations advice and services that have the purpose of persuading employees regarding union organizing or collective bargaining. The consultants and lawyers also will be required to file public reports containing the details of advice and services provided and the amount of any payment received for that advice and service. The DOL’s previous interpretation of the “advice” exemption—in place since 1962—required the reports only when a consultant or lawyer providing advice to an employer had direct contact with employees. Within a week of the Final Rule’s publication, business groups filed three separate lawsuits in federal district courts seeking to block implementation of the Final Rule.

LMRDA Reporting Obligations of Employers and Those Providing Persuader Services The LMRDA contains reporting provisions that apply to employers and persons who are “persuaders.” Specifically, Section 203(b) requires consultants and lawyers to file public reports if they engage in activities intended, directly or indirectly, “to persuade employees to exercise or not exercise, or persuade employees as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing.” Among other things, consultants and lawyers engaging in such activities must disclose: (1) the terms and conditions of the agreement or arrangement entered into between the employer and the consultant; (2) the consultant’s “receipts of any kind from employers on account of labor relations activities or services, designating the sources thereof;” and (3) the consultant’s “disbursements of any kind, in connection with such services and the purposes thereof.” Consultants and lawyers with such reporting obligations must submit two separate reports to the DOL’s Office of LaborManagement Standards (OLMS). Form LM-20, which must be filed within 30 days of the 24

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“persuader” agreeing to provide reportable services, requires disclosure of, among other things, the nature of the agreement with the employer and the specific activities that the persuader will perform on behalf of the employer. Form LM-21, which must be filed within 90 days of the end of the persuader’s fiscal year, requires the persuader to report the names and addresses of all of the employers for which the persuader provided labor relations advice or services “regardless of the purpose of the advice or service.”

(After the lawsuits were filed challenging the Final Rule, the DOL announced it will not enforce the financial reporting sections of Form LM-21 until it has released revisions to the form.)

Section 203(a) of the LMRDA requires that employers who use consultants or lawyers to provide persuader services on the employers’ behalf must file Form LM-10 within 90 days of the end of the employers’ fiscal year. Form LM-10 requires the employer to document the date and amount of each “payment, loan, promise, agreement, or arrangement and the name, address, and position, if any, in any firm or labor organization of the person to whom it was made and a full explanation of the circumstances of all such payments, including the terms of any agreement or understanding pursuant to which they were made.” Those who “willfully violate” the applicable LMRDA provisions or “who knowingly fail to disclose a material fact” in a required report may be subject to criminal penalties, including fines of up to $10,000 and/or imprisonment up to one year.

The “Advice” Exemption to Reporting Requirements Section 203(c) of the LMRDA sets forth an “advice” exemption from the reporting requirements discussed above. It provides that “[n]othing in this section shall be construed to require any employer or other person to file a report covering the services of such persons by reason of his giving or agreeing to give advice to such employer . . ..” From 1962 until the issuance of the Final Rule, the DOL used a brightline standard to determine whether the particular activities of consultants and lawyers were considered “advice” and, therefore, exempt from the reporting requirements. Under this standard, the employer and consultant or lawyer providing advice regarding persuader activities were not required to file reports so long as: (1) the person providing advice did not deliver or disseminate persuasive material directly to employees; (2) the employer had the ability to reject or modify persuasive material prepared by the person providing the advice; and (3) there was no deceptive arrangement between the employer and the person providing the advice.

DOL’s Final Rule Drastically Narrows the “Advice” Exemption Under the DOL’s new Final Rule, an agreement or arrangement between an employer and a consultant or lawyer to provide advice that previously was exempt from disclosure will have to be reported by

both the employer and the consultant or lawyer if “an object” of the advice or service is to persuade employees regarding whether to seek union representation or the outcome of collective bargaining. Examples referenced by the DOL as activities triggering reporting obligations include a consultant, “with an object to persuade,” providing material or drafting communications to an employer for dissemination or distribution to employees, and a consultant “revising employer-created materials, including edits, additions, and translations” with “an object” to “enhance persuasion, as opposed to insuring legality.” Preparing a campaign speech for an employer to deliver to employees or providing supervisors with training regarding lawful campaign activities or tactics would also be reportable. Under the Final Rule, newly reportable “indirect” activities fall into four broad categories: (1) planning, directing, or coordinating activities undertaken by supervisors or other employer representatives including meetings and interactions with employees; (2) providing material or communications for dissemination to employees; (3) conducting a union avoidance seminar for supervisors or other employer representatives; and (4) developing or implementing personnel policies, practices, or actions for the employer.

According to the Final Rule, no reporting is required regarding an agreement or arrangement “exclusively” to provide advice to an employer.

Thus, if a consultant or lawyer “exclusively” counsels employers on “what they may lawfully say to employees,” ensures a client’s compliance with the law, offers guidance on employer personnel policies and best practices, or provides guidance on National Labor Relations Board (NLRB) practice or precedent, the consultant or lawyer is providing “advice” and does not need to report such activities. Reporting also is not required for representing an employer in court, in proceedings before the NLRB or arbitrators, during collective bargaining, or otherwise providing legal services to an employer. The Final Rule also provides that the sale, rental, or other use of “off-the-shelf ” persuader materials, such as videos or stock campaign literature, which are not created for any particular employer pursuant to an agreement, will not be reportable unless the consultant or lawyer helps the employer select the materials.

Lawsuits Filed Immediately to Block Implementation of the Final Rule On March 30 and 31, 2016, three separate lawsuits were filed by national, state, and local business groups representing employers, consultants, and lawyers in the U.S. District Courts for the Eastern District of Arkansas (March 30), the District of Minnesota (March 31), and the Northern District of Texas (March 31), all seeking to block implementation of the Final Rule. The lawsuits generally allege that the Final Rule is unconstitutional under the First and Fifth Amendments to the U.S. Constitution and violates the Plaintiffs’ rights under federal and state statutes. Specifically, the lawsuit filed in the Eastern District of Arkansas alleges that the DOL’s Final Rule: (1) exceeds the agency’s statutory authority; (2) is arbitrary and capricious; (3) violates Plaintiffs’ First Amendment rights of Freedom of Speech and Freedom of Association; (4) violates Plaintiffs’ rights to Due Process under the Fifth Amendment; (5) violates the National Labor Relations Act’s provisions upholding employers’ rights to free speech; (6) infringes on attorney-client confidentiality under state law; and (7) violates federal regulatory impact laws and orders by not properly considering the significant regulatory burdens it imposes. The lawsuit asks the court to: enjoin the Final Rule pending a decision by the court on the merits of the case; declare the Final Rule to be invalid; vacate the Final Rule; and permanently enjoin the DOL from implementing it.

The Plaintiffs in each lawsuit have filed Motions for Preliminary Injunctions , with hearings on those Motions currently scheduled for May 9, 2016 (Eastern District of Arkansas) and May 27, 2016 (District of Minnesota).

Based on the scheduled hearing dates, decisions regarding whether to grant preliminary injunctions enjoining the implementation of the Final Rule should be issued prior to the July 1, 2016 effective date.

What’s Next for Employers?

The Final Rule reduces the ability of employers to obtain and use confidential advice when responding to union organizing campaigns.

If the Final Rule is not blocked by the courts, when employers engage consultants or lawyers to provide confidential communications or strategic advice to influence employees’ exercise of their rights to organize or bargain collectively, both the employers and their consultants and lawyers will be required to file public disclosures describing the advice, services, and financial arrangements for agreements and arrangements made on or after July 1, 2016. Opponents of the Final Rule, including the plaintiffs in the three above-referenced lawsuits, contend that these new reporting obligations, which do not apply to unions or their consultants or lawyers when they “persuade” employees, interfere with attorney-client privilege, a client’s expectation of confidentiality, and a lawyer’s obligation not to disclose client confidences. How employers will react and respond to being forced to disclose confidences is unknown. Perhaps employers will choose not to engage consultants or lawyers to provide advice regarding how to respond to union organizing and “go it alone.”

The bases listed above for challenging the Final Rule are strong, and it is hoped that the Final Rule will be enjoined prior to its July 1, 2016 effective date. However, employers need to follow the litigation closely and consult with counsel regarding further developments and advice.

George W. Loveland, II Shareholder Littler-Memphis Office gloveland@littler.com

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

IMMIGRATION LAWYERS 1028 Oakhaven Road Memphis 38119 901.682.6455 3200 West End Ave. Suite 500 Nashville, TN 37203 615.647.6006

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Improving Staff Morale Through

Authentic Appreciation

By PAUL WHITE

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In my work training and consulting around the country, the most common responses by employees when discussing employee recognition typically range from apathy to cynicism. One woman stated, “I haven’t heard anything positive for two years and you expect me to believe that they value me?”

Why Most Employee Recognition Programs Don’t Work While the purpose of employee recognition activities are well intentioned, they actually often lead to negative results. For example, the generic nature of rewards that many programs use feels impersonal – when everyone gets the same “employee of the month” certificate.

Another problematic aspect is the focus on recognition in front of large groups: 30-40% of individuals indicate they do not want to go up in front of a group to receive an award. In fact, one staff member emphatically stated, “They can give me the award, but I won’t go up and get it unless they carry me up there!” Finally, most recognition programs heavily emphasize tangible rewards – plaques, certificates, gift cards, coupons, and small tokens. While most people don’t mind receiving gifts, if they don’t also hear verbal praise, receive individual attention, or get assistance when it is needed, the objects received seem superficial.

Core Conditions for Staff to Truly Feel Appreciated Four core conditions have been identified which need to be present in order for employees to truly feel appreciated (which differs from recognition just being communicated). Team members will feel valued when appreciation is communicated: 1. Regularly. What is ‘regularly’? It varies depending on the work setting, the frequency of interaction between co-workers, and the nature of the relationship. However, ‘regularly’ clearly implies more than once a year at an employee’s performance review, or when someone receives the “Staff Member of the Month” award.

2. Through the ‘language’ and actions important to the recipient. The key word is “recipient”. Most of us tend to communicate appreciation to others through the actions that we value – like giving a verbal compliment or sending an email. But not everyone feels appreciated in the same ways. Some people appreciate words of affirmation, while others are encouraged when someone helps them with a task. Spending time is another way to demonstrate support, like stopping by a colleague’s office to see how they are doing.

Bringing a colleague a special cup of coffee when you know they’ve had a long day can be a “pick me up”. Even a “high five” or a “fist bump” can be a form of celebration when a difficult project has been completed.

Additionally, an online assessment tool is available that identifies the primary language of appreciation of individuals, along with the specific actions that are most important to them The results can be compiled to create a group profile and list of valued actions for a team who works together.

3. In a way that is personal and individualized. While group-based recognition is a good start (“Way to go, team. Our satisfaction ratings 26

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}

improved significantly last quarter.”), if the appreciation doesn’t relate to what the individual team member did to help achieve the goal, the communication can fall flat. Team members want to know what they have done that is valued – that you appreciate that they stayed late after an event to help clean up.

4. In a manner that is perceived as genuine and authentic. If the communication of appreciation is not perceived as being genuine, nothing else really matters. Actions of recognition can appear inauthentic when: a) the actions suddenly appear after implementation of a program on appreciation; b) a person’s tone of voice, posture, or facial expressions don’t seem to match what they are saying; c) how a person relates to you in front of others differs from how they interact with you privately; d) the individual has a history of “saying one thing and doing another”; or e) there is an overall question of the motivation of the deliverer – do they have an ulterior motive? There are other potential factors that undermine perceived authenticity, but these are some of the most common mentioned.

Practical Steps for Communicating Authentic Appreciation Helping individuals change their actions is difficult. No one is looking for more work to do. As a result, the focus needs to be on making actions of encouragement more efficient – to spend time with those who value time, to send notes to those who are impacted by them, to help someone out who will be grateful for the assistance, and to give a gift to someone who will appreciate the thought.

Getting Started Focus on yourself first. Commit to do what you can to communicate appreciation to others. Don’t look to your supervisor or administrators to take the lead. Start by doing what you can, where you are.

Team up with others. Any behavior change is more likely to occur (and to continue over time) when others are involved. Ask a colleague, your supervisor, or the team you lead to discuss how this could apply to your setting. Commit to work on a plan of action together.

Persevere. See what works, and what needs to be changed, but don’t give up.

Paul White, Ph.D., is a psychologist, speaker and consultant who “makes work relationships work.” He is the co-author of Rising Above a Toxic Workplace, The 5 Languages of Appreciation in the Workplace, and Sync or Swim. Go to http://www.appreciationatwork.com for more information. Email: admin@appreciationatwork.com

Think Like a

BRAND :

A 7-Step Strategy to Increase Your Career Satisfaction and Success

BY PAMELA J. GREEN

BY WILLIAM CARMICHAEL

STRUCTURE, LAYOUT, AND READABILITY Readers will appreciate several effective approaches Think Like A Brand takes with creating one’s personal brand or simply enhancing the one they have.

Throughout the author shares with us those “brand” defining moments for her that forever shaped who she has become and in doing so you sense a friendly familiarity to what she describes. You simply like what she is saying and how she is saying it. Next, she creatively utilizes celebrities within case studies as a means to support each of the seven steps. For example, in “Step One: Write Your Brand Strategy,” retired U.S. football defensive end, football hall of famer, football analyst, television co-host, producer, Michael Strahan shares his memories of when he chose to identify and embrace his brand-defining moments and his advice for how we can accomplish much the same results. Additionally, our author provides strategic questions to consider as well as sharing her secrets about the step. And lastly, she summarizes what each has attempted to teach us. Each step is worthy of focus here but brevity limits my doing so. Suffice it to say, each builds upon the one before it.

As just mentioned, Green uses a well-known celebrity to support each step and this strategy is smart. And, each one has applied the step in their career. These recognized names are: STEP ONE:

AN OVERVIEW The concept of branding is nothing new. Companies brand as well as rebrand themselves or their image all the time. Honestly, they are smart to do that. Even the most recognized global organizations must reimage their identity, strategy, needs, priorities, culture, structure, or even their logo from time to time. And while some do it gradually, enlisting the support of stakeholders during the process, others may rely upon consumer loyalty to carry the company through what may be a painful metamorphosis. The end result, however, is the same. The company has once again strategically transformed itself in front of our eyes. Personal branding, on the other hand, is a relatively new paradigm and this month’s review will present exactly what personal branding should look like, and perhaps more importantly, how it should be done.

Pamela J. Green’s Think Like A Brand puts you in charge of how you can quickly and effectively change how others perceive you and quite possibly how you perceive yourself. Within this short, informative guide of 126 pages, our author lays out a simple, step-by-step approach that anyone can use to literally and figuratively reinvent themselves. She does so with common sense, wit, and a welcome candor. Any reader will quickly come to realize that Green has been there, done that, lived to tell about it, and now wants to share her secrets with us.

And very much like a well-defined business plan the required components are there. Take for example how an organization’s vision and mission statement tries to convey its values and culture.

Or, how it intends to market to its consumers, explain its strengths and weaknesses, and how its resources will be used. You get the idea. Think Like A Brand accomplishes the same objective but on a personal level and as the author states, “You’re about to learn a unique approach to identify, develop and leverage your skills into marketable talent- an approach that provides you with a competitive edge over other candidates and multiple career choices when you’re ready to make a change.” In other words, Green teaches us “how to be the caretaker of our own careers.” And like any business plan, Green encourages us that we first must get it out of our heads and down on paper.

WHAT IS THE BOOK ABOUT? Each of us at one time or another, finds ourselves at a crossroads in our career and unsure of the next move. It could be as simple as completing a college degree and wondering what the future will hold in store for you. Or, as emotionally draining as being part of a forced downsize or even as uncertain as leaving your employer for opportunities elsewhere. Regardless of the situation, the need to be ready is certainly ahead of us. But are we ready? Think Like A Brand is not about how to write a better resume or maximizing our strengths; but rather, about “teaming all of our strengths so there is a balance and a collective value.” Green explains how to navigate through those unique, definable moments in our careers and how to learn from it for the future. She causes us to ask the right questions of ourselves so that we begin to think about skillsets we have already developed and how we can relate them in terms of branding. More significantly, Green speaks of our unique ability to innovate when she states, “You’re about to learn a unique approach to identify, develop and leverage your skills into marketable talent- an approach that provides you with a competitive edge over other candidates and multiple career choices when you’re ready to make a change.”

Write Your Brand Strategy / Michael Strahan

STEP TWO: Identify Your Organization’s Brand, Needs and Priorities / Jeff Bezos

STEP THREE: Research the Future Demand for Your Talent / Misty Copeland

STEP FOUR: Create Your Brand Template / Taylor Swift

STEP FIVE:

Grow Strategic Brand Visability / Beyonce’

STEP SIX: Identify Your Brand Adjacencies / Steve Harvey

STEP SEVEN: Scale Your Brand / Sara Blakley

To be totally honest, Think Like A Brand surprised me and in a very good way. My initial impression was that it would attempt to influence others to leave their current employer so they could strike out on their own.

Boy was I wrong! Again, that was my first impression!

And, yes, the author does provide insight and clarity to those specific impulses; but, what this book is really about is how to become the best we can be no matter where we are. Think Like A Brand applies to each of us.

William Carmichael, Ed.D Strayer University william.carmichael@strayer.edu www.strayer.edu www.HRProfessionalsMagazine.com

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Where to Turn for Guidance?

Is Your Company’s Website Discriminating Against the Disabled?

By NEEMAH ESMAEILPOUR

T

oday, both private businesses and public entities are taking full advantage of the proliferation of the Internet to reach and interact with their customers. Websites are no longer just marketing tools, but allow customers to purchase goods and pay for services directly online.

But, did you know that you may be violating the law if your website is not accessible by the blind or visually impaired? You also may be inviting trouble if hearing-impaired customers cannot access your website’s audio content.

Uncertain Rules Regarding Interactive Accessibility

The Americans with Disabilities Act (ADA) prohibits businesses open to the public from discriminating against disabled individuals “in the full and equal enjoyment” of their goods, services and facilities. Likewise, the ADA requires state and local governments to provide disabled individuals access to their programs, services and activities. While there are exceptions to these requirements (such as it would fundamentally alter the nature of the program, service or activity, or it would pose an undue burden), you must first determine whether and to what extent the ADA applies.

Unfortunately, several factors have led to uncertainty in this area. First, the ADA makes no mention of websites, which is not surprising since the law was passed in 1990, before the first webpage was published a year later (you can still view this webpage at http://info.cern.ch/hypertext/ WWW/TheProject.html). Second, courts are split as to the whether the ADA applies to websites for places of public accommodation (i.e., private businesses) at all. Some courts have found that the ADA does not cover websites operated by private businesses because the ADA’s statutory language is limited to physical structures. Other courts have taken a broader approach and found that a private company open to the public must ensure its website is accessible by disabled individuals because the ADA prohibits them from excluding disabled persons from using their facilities (whether physical or digital) in the same way nondisabled persons can. Finally, the Department of Justice (DOJ) has contributed to this uncertainty by continually delaying implementation of regulations with substantive guidance in this area. The DOJ first started the rulemaking process for websites in 2010, asking for public comment, but has never issued a final rule. This past fall, the DOJ issued a statement that it would release a final rule for public/government entities soon, only to once again withdraw its notice and start the rulemaking process all over again. At this time, it appears there will not be any regulations for public entities—let alone for private entities—until sometime in 2018.

While there are no regulations pertaining to websites, there is something called the Web Content Accessibility Guidelines (WCAG). The WCAG are a set of technical specifications developed by the World Wide Web Consortium, the primary standards organization for the World Wide Web. The WCAG was initially published in 1999, but was superseded by a new set of guidelines in 2008 (WCAG 2.0). During the rulemaking process, the DOJ has asked the public whether it should adopt the WCAG or an equivalent, but as noted above, it has yet to do so. Notwithstanding the lack of regulatory guidance, both private plaintiffs and the DOJ have brought lawsuits under the premise that websites must be accessible to the disabled and both typically cite to the WCAG as a standard.

Potential Litigation Concerns

Seemingly taking advantage of the current ambiguity, public and private entities are seeing a spat of “demand letters” from plaintiffs’ attorneys claiming that their websites are in violation of the ADA and threatening to file suit – unless of course you are willing to settle quickly out of court. These letters typically assert that the website must conform to the WCAG, but that a certain number or percentage of the site’s pages “failed” when tested by their “experts.” Often there is a chart purportedly showing the number of page failures. The demand letter will typically go on to propose a “quick” resolution, which includes an agreement to make certain modifications and the payment of their attorney’s fees.

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So what can you do when there is no clear guidance on your obligations? Your first step should be to contact the company or department that designed your website and ask them to begin identifying and fixing the most common accessibility issues faced by the visual- and hearing-impaired. Common problems include: • No headings on pages (headings provide structure and meaning to each page on your website by labeling each part of the page and indicating the importance of each part; assistive technologies typically present a list of these headings to the user and allow him/her to jump to individual headings); • Photos or images without text or captions (if there is no text associated with an image, it is inaccessible to visually-impaired individuals who rely on screenreading software); • Videos without closed-captioning for the hearing impaired; • Using color to convey information (for example, a bus map with colored routes), which cannot be read by individuals who are color blind; • Posting scanned documents in PDF format or converting Word documents to PDF without tags (these types of PDFs are merely images and pose the same problem as photos without captions); • Sites that do not allow users to navigate without a mouse; • Poor contrast between text and background colors; and • Web designs that do not allow users to change font settings.

There are also websites with free testing tools to help identify accessibility issues. For example, the U.S. General Services Administration provides a list of compliance resources at http://www.gsa.gov/portal/ content/103534. WebAIM also offers a free testing tool at http://wave.webaim.org. However, none of these self-evaluations are adequate substitutes for hiring a competent web-content developer who is familiar with accessibility issues in general and specifically the WCAG. And, if you get a demand letter about your website, contact your defense attorney before agreeing to a quick settlement.

The Bottom Line

For years, employers and HR professionals have dealt with the ADA in the context of wheelchair ramps, handicapped parking and other physical accessibility concerns. However, in this digital age, employers and business owners are now faced with the daunting task of applying ADA requirements to online spaces, with little regulatory direction or clarity. Take this opportunity to work with your IT and marketing departments, as well as any outside website developers, to put your company in the best position to avoid potential discrimination litigation.

Neemah Esmaeilpour Associate Attorney Labor & Employment Team Wright Lindsey Jennings NEsmaeilpour@wlj.com www.WLJ.com

H I G H L I GYou’re H Tinvited S to attend the 6th Annual

Human Resources & Employment Law Spring Conference MayPresented 4, 2016 by:at Union University, Jackson, TN THE WEST TENNESSEE SOCIETY FOR HUMAN RESOURCE MANAGEMENT In coordination with: THE LAW FIRM OF RAINEY, KIZER, REVIERE & BELL, P.L.C.

May 4, 2016 8 a.m. to 3:30 p.m.

Join us for an informative day where you will explore crucial HR compliance topics including:

Union University Carl Grant Event Center 1050 Union University Dr. Jackson, TN 38305

 HR Handbooks - A study of key policies that should be addressed in every HR handbook or policy manual.  Case Studies - An interactive discussion of recent employment law cases and the application of relevant concepts and HR strategies.

1  HR in Film - A survey of HR issues depicted in films and television 1 WTSHRM Executive Board: Amy West, Donna Dickinson, Rhonda Livingston, Rita that Alexander, Jennifer Howell, Anna Higgs, John Carbonell shows incorporating strateg2ies applicable to real-world workplace challenges.

Lunch is provided. Take advantage of our impressive showcase of HRrelated exhibitors. Door prizes and more.

Registration Fee: 2

$75 for WTSHRM Members $100 for non-WTSHRM Members 4 3 Join WTSHRM for only $25 at: wtshrm.shrm.org/join

5

2 Labor and employment law attorneys with The Law Firm of Rainey, Kizer, Reviere & Bell PLC. Rainey Kizer co-sponsored the WTSHRM Spring Conference. (L-R) James V. Thompson., Robert O. Binkley, Jr., Matthew R. Courtner, Geoffrey A. Lindley. Not pictured: Dale Conder, Jr., Register Now! wtshrm.shrm.org/events and Michael Mansfield 3 WTSHRM President, Amy West, welcomed attendees to the Conference. Amy dressed in accordance with this year’s theme – Red Carpet to HR Compliance. 4 Dr. John Carbonell, Immediate Past President of WTSHRM was Chair of the WTSHRM Conference 5 James V. Thompson, attorney with Rainey Kizer, and Latosha Dexter, Associate Deputy General Counsel for the University of Memphis The registration deadline is Friday, April 29, 2016. presented “Best Social Media/Computer/Phone Policy/ Best Discipline Policy.”

Register early as seating is limited.

You may pay by check or credit card.

Questions: eamicone@raineykizer.com This program has been submitted to provide up to 5.5 recertification credit hours through HRCI and SHRM. 6

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6 (L-R) Michael Mansfield and Dale Conder, Jr. presented “Best Practices Regarding Protected Classes Best Harassment Policy.” 7 Robert O. Binkley, Jr. and Matthew Courtner presented “Best FMLA/Leave Policy/Best Wage and Hour Policy. 8 Geoffrey Lindley with Rainey Kizer, and Latosha Dexter presented “Screenplays – Case Studies” at the WTSHRM Conference. www.HRProfessionalsMagazine.com

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SUPER Lawyers

2016 Guide to

in Labor & Employment Law

HR Professionals Magazine congratulates 2016 Super Lawyers!

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.

We are presenting the 2016 Super Lawyers in Tennessee, Arkansas, Mississippi, Kentucky and Georgia who are sponsors and contributors of HR Professionals Magazine. We have not included the Rising Stars as they will be featured in a future issue.

Fisher Phillips Employers often must take a stand: in court, with employees and unions, or with competitors. Fisher Phillips has the experience and resolve to back up management. That’s why some of the savviest employers come to the firm to handle their toughest labor and employment cases.

Fisher Phillips has 350 attorneys in 32 offices located in Atlanta, Baltimore, Boston, Charlotte, Chicago, Cleveland, Columbia, Columbus, Dallas, Denver, Fort Lauderdale, Gulfport, Houston, Irvine, Kansas City, Las Vegas, Los Angeles, Louisville, Memphis, New Jersey, New Orleans, Orlando, Philadelphia, Phoenix, Portland, Sacramento, San Antonio, San Diego, San Francisco, Seattle, Tampa, and Washington, D.C.

MEMPHIS

ATLANTA

Jeff Weintraub is the regional managing partner of the Memphis office of Fisher Phillips. He is a trial attorney who has represented employers in more than 59 jury and bench trials in the private and public sectors in employment-harassment/discrimination and retaliatory discharge lawsuits. He also handles EEOC charges, wage and hour cases, National Labor Relations Board cases, and enforcing non-competes in all federal and state courts and agencies, various Courts of Appeals and the U.S. Supreme Court. Weintraub provides training for employers in avoiding harassment charges and employment litigation and is a frequent speaker at employment and labor seminars nationwide. He is licensed to practice law in the states of Tennessee, Mississippi, Arkansas and Missouri. Named Super Lawyer Mid-South, 2006-2015.

D. Albert Brannen is the managing partner in the Atlanta office. Since 1982, he has represented employers exclusively in successfully solving labor and employment law problems in the workplace. He also has a depth of experience advising employers on union related matters and in assisting employers with the administration, negotiation, mediation and arbitration of collective bargaining agreements. Brannen has been included in Georgia Super Lawyers since 2005.

Jay Kiesewetter is Senior Counsel in the Memphis office of Fisher Phillips. He devotes his practice to representing clients in the traditional areas of labor relations and employment law. He counsels employers in all aspects of union-free management and advises non-union companies facing union organizing activity.

Kiesewetter represents employers in unfair labor practice and representational proceedings before the National Labor Relations Board and the United States Courts of Appeal. In addition, he works with companies that have unions to improve union-management relations and represents management in contract negotiations, arbitrations and labor disputes. Kiesewetter is licensed to practice law in the states of Tennessee and Missouri. Named Super Lawyer - Mid-South, 2007-2015.

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Michael Elkon is a partner in the Atlanta office. He specializes in providing advice and handling litigation relating to covenants not to compete, non-solicitation and non-disclosure provisions, employee raiding, trade secrets, the duty of loyalty, deceptive trade practices under state and federal law, the Computer Fraud & Abuse Act, and state computer protection statutes. Elkon has been recognized as a Rising Star or Super Lawyer by Georgia Super Lawyers every year since 2010.

Claud “Tex” McIver is a partner in the Atlanta office. In his 30-year career, Tex has assisted clients nationally and internationally in their compliance efforts involving all federal and state employment laws. He advises employers concerning mergers and acquisitions, consolidation and streamlining ("rightsizing") of organizations. He was also selected a Client Service All-Star for 2011, an elite group of attorneys nominated by in-house counsel for their outstanding client service. McIver has been repeatedly selected for inclusion in Georgia Super Lawyers.

ATLANTA (Continued)

LOUISVILLE (Continued)

Thomas P. Rebel is a partner in the Atlanta office. His practice includes litigating employment related disputes involving wrongful discharge, Title VII, ADA, ADEA, FMLA, FLSA, OSHA, the Surface Transportation Assistance Act, as well as other types of employment based claims. Rebel has been included in Georgia Super Lawyers every year since 2004.

Cynthia Blevins Doll is a partner in the Louisville office. She has over 20 years of labor and employment experience. She represents employers in employment lititgation of all sorts in the federal and state courts, and she counsels them on compliance with the law in such areas as Family and Medical Leave Act, employment discrimination, Americans with Disabilities Act, Title VII, wrongful termination, wage and hour issues, reductions in force and sexual and racial harassment.

Doll also assists clients in their prevention efforts by conducting employee training and preparing handbooks and policies for the workplace. Named Super Lawyer - Kentucky, 2007-2015.

Joseph Shelton is a partner in the Atlanta office. His practice focuses on the defense of employment discrimination claims in trial and appellate courts, as well as litigation in the area of employee defection issues.

Shelton also frequently advises employers with all aspects of state and federal employment laws, assists employers in drafting employment agreements, restrictive covenants, personnel policies, and separation agreements. He has been selected for inclusion in Georgia Super Lawyers since 2012.

John Thompson is a partner in the Atlanta office. His practice focuses on wage and hour law, emphasizing issues relating to minimum wage, overtime, timekeeping, and wage-payment requirements. He has also addressed wage-hour topics in presentations to numerous employer groups and in articles appearing in both human resources publications and industry journals. Thompson has been repeatedly selected for inclusion in Georgia Super Lawyers.

Kim Thompson is a partner in the Atlanta office. She

serves as chair of the firm's Global Immigration Practice Group and co-chair of the International Employment Practice Group. Kim's practice focuses on immigration and nationality law; she began practicing in this area in 1990. Thompson is a member of the American Immigration Lawyers Association, the ABA-affiliated association for attorneys practicing immigration law. She has been selected for inclusion in Georgia Super Lawyers every year since 2005.

George Adams is a partner in the Louisville office, where his practice is exclusively devoted to advising, assisting and representing employers with labor and employment law challenges. He has helped employers defend against union organizing campaigns, unfair labor practice charges and grievances. He defends employers in state and federal courts against lawsuits alleging sexual harassment, unlawful discrimination, retaliation, wage and hour violations of the FMLA, ADA and other employment laws. Adams represents employers before the National Labor Relations Board and other administrative agencies, as well as in labor negotiations and grievance arbitration. Named Super Lawyer Kentucky, 2007, 2010-2015.

Laurel Cornell is a partner in the Louisville office. Her

practice involves representing employers in litigation of employment disputes involving Title VII, the FMLA, retaliation, breach of contract, and wrongful termination claims. Cornell also has experience advising and representing employers in administrative actions. She graduated from the University of Kentucky College of Law in 2007, where she was a member of the Kentucky Law Journal. Named Super Lawyers’ Rising Star - Kentucky, 2013-2015.

Raymond Haley is a partner in the Louisville office. He

Joshua Viau is a partner in the Atlanta office. His practice

focuses on representing companies in a variety of labor and employment matters including defending employers in employment-related litigation, especially in the areas of discrimination, retaliation, harassment, compliance with leave and wage and hour laws and regulations, and contract disputes involving restrictive covenants and trade secrets. Viau was recognized as a Georgia Super Lawyer in 2015 and Georgia Super Lawyer – Rising Star from 2006 to 2014.

has practiced labor and employment law for more than 30 years. He represents employers in a variety of industries, including healthcare, manufacturing, transportation and rehabilitative services. His representation of clients involves defense of all forms of civil rights and wrongful discharge claims in state and federal courts, labor litigation before state and federal agencies and courts, as well as arbitration of labor disputes.

Haley regularly advises clients concerning compliance with virtually all employment-based state and federal mandates, and union related matters.

Named Super Lawyer - Kentucky, 2007-2015.

LOUISVILLE Craig Siegenthalar is a partner in the Louisville office.

He has appeared in federal and state courts defending clients in class action litigation involving wage and hour matters, as well as other employment law based claims.

He represents corporate entities and management in employment litigation in federal and state courts and in administrative proceedings before the EEOC and state agencies. Siegenthalar has counseled companies regarding employment issues, including legal compliance, policies and procedures, restructuring, job accommodations, leaves, benefits, employment contracts, and layoffs and related severance programs. Named Super Lawyer - Kentucky, 2007-2015.

Thomas Birchfield is the managing partner of the Louisville office, which he helped open for the firm in 2009.

Prior to 2009, he was the chairperson of the labor and employment practice group of a large regional law firm.

He has represented employers exclusively for more than 25 years in federal and state courts and before various administrative agencies throughout the nation. Birchfield assists employers with their employment practices liability prevention efforts by conducting training, counseling, reviewing and revising policies and preparing severance agreements. Named Super Lawyer - Kentucky, 2007-2015.

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Fisher Phillips (Continued) LOUISVILLE (Continued) Todd Logsdon is a partner in the Louisville office. He

practices exclusively in the areas of labor and employment on behalf of employers, with a particular emphasis on discrimination, FMLA, wage and hour, covenants not to compete, and OSHA issues. Logsdon’s practice includes the defense of employment-related claims before federal and state courts and administrative agencies, as well as counseling and training clients on compliance issues and litigation avoidance. He also conducts OSHA compliance audits and provides OSHA compliance advice to clients, as well as defending clients in OSHA citation contests and litigation. Named Super Lawyer - Kentucky, 2013-2015.

Wendy Hyland is Of Counsel in the Louisville office.

She represents employers in all aspects of employment law, handling claims involving the full complement of employment statutes, including the Americans With Disabilities Act, the Family and Medical Leave Act, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Kentucky Civil Rights Act, and related tort and contract claims. Wendy also works with clients on effective policies, investigations, and training.

MEMPHIS

Fisher Phillips has announced the addition of David S. Jones as a partner with the firm’s Memphis office. Jones brings more than 15 years of experience in the field of immigration and employment law to the firm. Prior to joining Fisher Phillips, Jones was a partner at Jackson Lewis P.C. and previously had maintained a practice at the firm’s Las Vegas office. He has represented clients in matters relating to both immigration benefits and enforcement, as well as in proceedings before the Department of Homeland Security, the Department of Labor, the Department of Justice and the State Department.

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Littler Littler is the largest global employment and labor law practice with more than 1,000 attorneys in over 70 offices worldwide. Littler represents management in all aspects of employment and labor law and serves as a single source solution provider to the global employer community. Consistently recognized in the industry as a leading and innovative law practice, Littler has been litigating, mediating and negotiating some of the most influential employment law cases and labor contracts on record for over 70 years.

MEMPHIS Tanja L. Thompson, Co-Chair, Traditional Labor Practice Group and Office Managing Shareholder, represents

companies in the area of traditional labor law. National Fortune 500 companies as well as local employers across various industries, such as manufacturing, healthcare, and services, seek her expertise in remaining union-free and in managing their union-represented workplaces. Union-free efforts include campaigns, comprehensive union vulnerability assessments, human relations audits, communication strategies, and union avoidance and positive employee relations training. She has successfully represented companies throughout the country in union organizing campaigns. Tanja’s NLRB litigation practice includes unfair labor practice charges, as well as pre- and post-election litigation. For unionized clients, Tanja takes a proactive and assertive approach in representing clients’ interests at the bargaining table, in labor arbitrations, and in developing training and communication programs to ensure effective management under collective bargaining agreements. She received her J.D. from the University of Memphis Cecil C. Humphreys School of Law.

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

Lisa also regularly conducts employee and supervisory training programs in various employment law areas. Lisa served as general counsel for a multi-state Sales company, with a significant portion of her job duties being devoted to training supervisors and to human resources and employment law issues. She received her J.D. from Vanderbilt University Law School.

R. Alex Boals, Associate, represents management in

Jonathan E. Kaplan, Shareholder, , has devoted his career

all areas of employment and labor relations, including state and federal employment litigation and in administrative proceedings before the National Labor Relations Board, the Equal Employment Opportunity Commission and the United States Department of Labor. Alex has experience advising and representing clients on diverse employment issues, including claims involving discrimination and harassment, wrongful discharge, restrictive covenants, wage and hour violations, family and medical leave compliance, employee benefits, union avoidance, and unfair labor practices. He received his J.D. from the University of Memphis.

Paul E. Prather, Shareholder, represents management

John W. Simmons, Shareholder, represents management clients in employment litigation, advises clients on employment law and labor relations matters and represents clients in administrative proceedings such as those before the National Labor Relations Board and the U. S. Equal Employment Opportunity Commission. He received his J.D. from the University of Mississippi.

to representing management clients exclusively in all areas of labor relations, employment law, and human resources management. His practice spans litigation, training, and consulting, in which he has handled matters in more than 40 states and Canada. Jonathan practices extensively before the NLRB across the country, and also has been admitted specially to practice before the state courts in California, Florida, Illinois, Indiana, Kentucky, Michigan, New York, and Ohio. He is a frequent speaker before management and legal groups and has published numerous articles on labor and employment issues. He received his J.D. from the University of Memphis Cecil C. Humphreys School of Law.

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

He received his J.D. from the University of Memphis.

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

Fredrick R. Baker is a Member in the Cookeville, Tennessee, office of Wimberly Lawson Wright Daves & Jones, PLLC, which he joined

in 2001. His law practice includes an emphasis in workers' compensation defense and employment discrimination, as well as ADA and FMLA compliance. Fred is the Editor of the Tennessee Workers' Compensation Handbook, published by M. Lee Smith Publishers. Fred is Legislative Co-Chair of the Upper Cumberland Society of Human Resource Management. He is a member of the Mid-South Workers' Compensation Association. Fred has an AV Preeminent® Rating - which is the highest possible rating given by Martindale-Hubbell, the leading independent attorney rating entity. www.HRProfessionalsMagazine.com

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Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters.

Premier client service, as outlined in the firm’s Client Pledge, is one of the firm’s top priorities and a cornerstone of its core values. U.S. News – Best Lawyers® “Best Law Firms” has named Ogletree Deakins a “Law Firm of the Year” for five consecutive years. In 2016, the publication named Ogletree Deakins its “Law Firm of the Year” in the Employment Law - Management category. Ogletree Deakins has more than 750 attorneys located in 49 offices across the United States and in Europe, Canada, and Mexico. The firm represents a diverse range of clients, from small businesses to Fortune 50 companies.

MEMPHIS

ATLANTA (Continued)

Donna Fisher has over forty years of experience in representing management in labor and employment matters with an emphasis on advice and preventive activity.

She has represented companies in the hotel, restaurant and manufacturing industries in all areas of labor and employment law. Ms. Fisher has been active in leadership roles in the community having served on numerous boards and commissions. She is a former president and Honorary Director for Life of the Memphis Zoological Society and a former president of the Y.W.C.A. of Greater Memphis & Shelby County and recipient of the Ellida S. Fri Award for Leadership.

Thomas L. Henderson is the Managing Shareholder of

the Memphis office. He has represented management in employment and labor relations matters for over 30 years.

He has served as lead counsel in numerous jury trials in state and federal courts across the nation. His trial experience includes defending state and federal discrimination and harassment lawsuits, class actions, FMLA claims, ERISA and benefit claims, trade secret and unfair competition matters, and related state law claims.

He also handles NLRB elections and unfair labor practice proceedings. Mr. Henderson is listed in “The Best Lawyers in America” in three areas and “Mid-South Super Lawyers.”

ATLANTA Homer Deakins is Chairman Emeritus of Ogletree Deakins and was the firm’s Managing Shareholder from 1985–2000.

He has extensive experience in all aspects of labor relations law and has handled some of the largest and most highly publicized union elections in the United States on behalf of employers. His work has included representing management in two major union elections in foreign-owned automobile assembly plants in the United States, where the company won those elections by large margins. He also has created and participated in highly sophisticated labor relations training programs for management personnel, and he has a wealth of experience in guiding employers through challenging labor-related issues. In addition, he has extensive experience in representing management in negotiating collective bargaining agreements. For example, he represented the City and County of Honolulu in negotiating a project labor agreement with the Building Trades Unions for the $5 billion rail project in Honolulu.

He has also negotiated numerous other agreements under the National Labor Relations Act and the Railway Labor Act. Craig Cleland is a shareholder in the Atlanta office of Ogletree Deakins and he defends employers in litigation, including class and collective actions, and counsels them in risk management and compliance. He is the former Chair and Co-Chair of the firm’s Class Action Practice Group. He is also Adjunct Professor of Law at Georgia State University College of Law, where he teaches complex litigation. Craig is a Fellow of the College of Labor and Employment Lawyers, as well as a Fellow of the Trial Lawyer Honorary Society of the Litigation Counsel of America. He has been recognized as a BTI Client Service All-Star twice—one of a small number of employment lawyers in the United States who “combine exceptional legal expertise with practical advice, business savvy, and creative, effective solutions.”

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Margaret (Meg) Campbell is a shareholder in the

Atlanta office and has practiced employment, litigation, and labor law at Ogletree Deakins since 1981. An all-around labor and employment lawyer, Meg is particularly recognized for her expertise and experience in complex class and collective action litigation, whistleblower investigations, and litigation including Sarbanes-Oxley and Dodd-Frank cases, appellate practice, and restrictive covenant law.

Meg has litigated single-plaintiff, multi-plaintiff, and class and collective action jury and non-jury cases in federal and state courts around the country. Clients regularly seek her client-centered practical advice and innovative solutions for preventing and mitigating risk events arising in the workplace. In addition, Meg assists clients in sensitive and complex investigations of alleged improper conduct by high-level executives.

William “Bill” Steinhaus recently completed a nine-year term in the role of Managing Shareholder of Ogletree Deakins’ Atlanta Office. For the last 30 years, he has focused his practice solely on representing employers in the full spectrum of employment and labor matters.

His in depth knowledge of the law and network within the legal community have resulted in requests for consultation from his peers and others to assist in identifying lawyers outside of his area of expertise and subject matter experts in various cases. Bill administers the firm’s EPLI program, and is the primary contact with the firm’s insurance carriers. Before joining Ogletree Deakins, he was a human resources director first at Federated Department Stores and later at Lockheed. As a result, Bill brings a strong business perspective to his client relationships.

Greg Hare is the Managing Shareholder of the Atlanta office of Ogletree Deakins and has been an employment lawyer at Ogletree Deakins his entire career, ever since 1991. He assists companies with human resources and employment-related litigation matters, including wrongful termination claims, sexual harassment, employment discrimination, employment contracts, trade secrets, and non-compete agreements. He advises clients on a wide range of human resources topics, such as employee discipline and discharge, severance planning, independent contractor classifications, wage payment, family and medical leave, disability law, military leave, joint employment issues, affirmative action and reductions in force. Mr. Hare also counsels clients on traditional labor relations matters involving union avoidance, decertification, strike contingency planning, double-breasting, grievance administration and arbitration, collective bargaining, unfair labor practice litigation, and other matters involving the National Labor Relations Board, including “protected concerted activity” cases.

JACKSON, MS Timothy W. Lindsay has practiced exclusively in the field of labor and employment law on behalf of management since 1987. With more

than 30 years of litigation experience, Tim has served as lead counsel for public and private sector employers in defense of civil actions involving Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Fair Labor Standards Act, the Family and Medical Leave Act, ERISA, the First and Fourteenth Amendments to the United States Constitution, and various employment related claims under state law such as wrongful discharge, defamation/slander, infliction of emotional distress, invasion of privacy and breach of contract. In addition to defending civil actions in court, Tim has represented management before various state and federal administrative agencies such as the Equal Employment Opportunity Commission, National Labor Relations Board, Mississippi Workers’ Compensation Commission and Mississippi Department of Employment Security.

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Wright Lindsey Jennings WLJ's Labor and Employment team has management-oriented practices addressing all aspects of the employee/employer relationship. The team has extensive experience litigating and arbitrating employment and civil rights claims, in addition to state law claims. Our attorneys defend clients in multiplaintiff, collective action and class action lawsuits, as well as Department of Labor and EEOC investigations. WLJ's team provides advice and counsel to clients regarding a variety of day-to-day matters, such as employment agreements and disciplinary issues, and represents clients in labor arbitrations, union elections and contract negotiations. Despite our collective litigation and arbitration experience, we place a premium on preventing employee claims that could lead to administrative investigations and litigation.

Stuart Jackson heads up Wright Lindsey Jennings' Labor and Employment Team. He advises employers on compliance with civil rights laws and developing personnel policies, employment agreements and covenants not to compete. Jackson also defends employers in federal and state court litigation and appeals involving claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act and the Arkansas Civil Rights Act. Jackson is listed among The Best Lawyers in America, Chambers USA “Leader in the Field” and Mid-South Super Lawyers, and has an AV® Preeminent™ 5.0 out of 5 Peer Review Rating through Martindale-Hubbell.

Lee J. Muldrow has been engaged in general litigation

and workers’ compensation defense in Little Rock for more than thirty years. His litigation practice primarily involves a wide variety of insurance defense cases, including copyright, trademark and trade dress litigation.

His workers’ compensation practice entails representing employers, self-insured companies and insurance carriers. Muldrow is listed in The Best Lawyers in America in the areas of “Worker’s Compensation Law” and “Health Law,” Chambers USA and Mid-South Super Lawyers. He has also received an AV® Preeminent™ 5.0 out of 5 Peer Review Rating through Martindale-Hubbell.

Regina Young’s practice centers on litigation and trial

John D. Davis concentrates his Little Rock practice in

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

work, including employment law defense. Young defends employers in federal and state court litigation and appeals, including claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, 42 U.S.C. Sections 1981 and 1983 and state law claims involving trade secrets, non-compete agreements, arbitration agreements, wrongful discharge, the Arkansas Civil Rights Act and the Arkansas Minimum Wage Act. She has been recognized

by Mid-South Super Lawyers for her work in Litigation Defense.

Jane A. Kim’s practice centers on defending employers in state and federal court litigation involving claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act and the Age Discrimination in Employment Act. Kim also advises and provides training to employers on compliance with civil rights law. Chambers USA listed Kim as an “Associate to Watch.” She has been appointed as the state of Arkansas’ liaison to the Women in The Law Committee for the Defense Research Institute, and was named to the inaugural Arkansas Business list of “Women to Watch” in Central Arkansas.

Michelle M. Kaemmerling’s practice focuses on employment and commercial litigation in state and federal court, including appeals. She has also represented a number of defendants in employment and consumer class action lawsuits. In addition to her litigation practice, Kaemmerling regularly advises employers regarding compliance with state and federal employment laws and develops personnel policies, employment agreements, covenants not to compete and other employment-related contracts. Kaemmerling has been recognized by Mid-South Super Lawyers since 2009 and as a “Leader in the Field” by Chambers USA.

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ROGERS 479.986.0888

Cross, Gunter, Witherspoon & Galchus, P.C. Firm Overview: Chambers USA has named Cross, Gunter, Witherspoon & Galchus, P.C. (CGWG) a leading Labor and Employment law firm in the state of Arkansas for the tenth consecutive year. CGWG’s team of attorneys are highly adept in handling a wide range of labor and employment defense matters, including discrimination litigation, collective bargaining, benefits advice, employment contracts, complex immigration matters, development of constructive employee relations, Workers’ Compensation, and the development of company employment policies and procedures. Preventive law strategies and exceptional educational programs are hallmarks of CGWG’s services. We offer customized training programs to help employers and HR professionals minimize legal exposure and navigate workplace challenges.

Carolyn B. Witherspoon practices in the areas of labor and employment defense, transportation law and government law in Little Rock. Carolyn is active in the Arkansas and American Bar Associations; is a member of the prestigious Union Internationale des Avocats, an international society of legal professionals recognized before the United Nations; and also serves as an arbitrator for the Court of Arbitration or Sport. She is a 2005 recipient of the Charles L. Carpenter Memorial Award from the Arkansas Bar Association and is also a Fellow in the College of Labor and Employment Lawyers.

J. Bruce Cross practices in Little Rock in the areas of labor and

employment defense law. His practice includes work before the NLRB, the EEOC, the Wage & Hour and OFCCP Divisions of the Department of Labor, as well as related federal and state court litigation. He is past chair of the American Bar Association’s Committee on the Development of the Law under the National Labor Relations Act. In 2014, he was named a Fellow in the College of Labor and Employment Lawyers. Bruce currently serves as Chairman of the National Legislative Committee of the Associated Builders and Contractors of America (ABC).

Donna Smith Galchus’ Little Rock practice focuses on employment discrimination litigation, wage and hour, affirmative action compliance and immigration law. Donna is a member of the Arkansas Association of Women Lawyers; Pulaski County, Arkansas and American Bar Associations; American Immigration Lawyers Association; Mid-South Immigration Lawyers; Fellow, College of Labor and Employment Lawyers; Chair, Eighth Circuit Credentials Committee; American Employment Law Council; and the Arkansas Bar Foundation. She serves on the Boards of Editors of the treatise on the Fair Labor Standards Act and the treatise on Age Discrimination, and has written and published various articles in Labor and Human Resource Trade Journals.

J. E. Jess Sweere’s practice focuses on labor relations, employment, commercial and corporate, and transportation law. Jess entered the practice of law after 18 years as a manager in the trucking industry, working in both union and non-union environments. Jess is the Chairman of the Academics Plus Charter School Board of Trustees, and also serves on the board of the Maumelle Foundation for Education, Inc. He is an active member of the American Bar Association (including the Labor and Employment section), Central Arkansas Human Resources Association, Arkansas Bar Association, Transportation Law Association and the Arkansas Trucking Association. He is the current Labor and Human Resources Committee Chair for the Transportation Lawyers Association.

Amber Wilson Bagley practices in the areas of Health Care Law, Employee Benefits and Commercial/Corporate Law. She is a member of the American Bar Association; American Health Lawyers Association; and the Arkansas Bar Association where she has served as chair of the Health Law Section, in the Arkansas Bar Association Leadership Academy and is currently a member of the Arkansas Bar Association House of Delegates for Pulaski County. Amber is active in the community as well, serving as a member of the Downtown Rotary Club of Little Rock (Club 99) and as the Youth Home Board President. Amber is a graduate of Leadership Greater Little Rock Class XXVIII.

Gregory J. Northen practices before federal and state courts in Arkansas, the Eighth Circuit Court of Appeals, and various federal and state agencies, including the EEOC, NLRB, Department of Labor’s Wage & Hour Division and Arkansas Department of Workforce Services. Greg also assists clients with drafting and implementing up-to-date forms, policies, procedures and training. Greg is a member of the Arkansas Bar Association’s Young Lawyers Section and Personnel Committee, Pulaski County Bar Association, American Health Law Association, Arkansas Children’s Hospital Committee for the Future and the Central Arkansas Council of the Associated Builders and Contractors of Arkansas. He also serves on the Board of Directors for the Maumelle Chamber of Commerce.

Missy McJunkins Duke practices in the areas of labor and employment law, and immigration law in Little Rock. She is an active member of the Arkansas and American Bar Associations’ Labor and Employment Sections. She is appointed to the Arkansas Early Childhood Commission, the Arkansas Advisory Committee to the United States Commission on Civil Rights and the Arkansas State Board of Law Examiners. Missy is active in the community, serving on the Boards of Directors for Fulbright Elementary PTA and VOCALS – Volunteer Organization, Center for Arkansas Legal Services. Missy was named an Arkansas Business 40 Under 40 in 2011 and one of Soirée Magazine’s “Women to Watch” in 2013.

M. Stephen Bingham’s Little Rock practice includes

products liability defense, commercial litigation, professional liability defense, insurance defense, transportation law, casualty law, construction law and airport law. Steve, who is also a Certified Public Accountant, has an emphasis in business contract work. He focuses a great deal of his time in defending municipal and government entities. Steve served as a Member of the House of Delegates for the Arkansas Bar Association from 1996 to 2013, and also was a member of the Board of Governors. He is a past president of the Arkansas Association of Defense Counsel, and a former Commissioner for the Arkansas Commission on Child Abuse, Rape and Domestic Violence.

Richard A. “Rick” Roderick practices in the areas of labor and employment defense law. He has extensive experience in labor relations, union negotiations, employment discrimination, unfair labor practices and wage and hour matters. He also advises management regarding HR systems, policies and procedures, and performs supervisory training. Rick is a highly sought speaker and regularly provides customized training programs designed specifically for employers and HR professionals covering such topics as discipline and termination, employee leave issues, union avoidance, social media in the workplace, hiring and sexual harassment. He was named “Outstanding Speaker” for Lorman Education Services in 2005. Rick is past chair of the Arkansas Bar Association’s Labor and Employment Law Section. www.HRProfessionalsMagazine.com

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Wyatt, Tarrant & Combs As one of the largest law firms in the South Central U.S., Wyatt, Tarrant & Combs, maintains an active national practice representing employers.

Shown below are the sixteen lawyers recognized as “Super Lawyers” or “Rising Stars” in the areas of Labor & Employment Law, Employee Benefits and Immigration in the publication “Kentucky Super Lawyers 2016.”

Allison Grogan Buckley concentrates her practice in immigration law, representing employers in securing various forms of nonimmigrant visas (H,L,E) for professionals. She earned her law degree from the University of Kentucky, where she served as Business Manager for the Kentucky Law Journal, and her undergraduate degree from DePauw University.

Debra H. Dawahare regularly counsels employers with

regard to employment issues, such as handbooks, policies, hiring, discipline and discharge. She earned her law degree from the University of Kentucky where she was involved in the Kentucky Law Journal as Notes Editor. She earned her undergraduate degree from Centre College.

Sharon L. Gold has experience defending employers in a variety of lawsuits, both at the administrative and civil complaint level. She has defended and prosecuted several appeals for employers and corporations before both the Kentucky Court of Appeals and the Sixth Circuit. She earned her law degree and undergraduate degree from the University of Kentucky.

C. Tyson Gorman maintains an active litigation practice,

assisting clients in all manners of litigation including commercial disputes, employment claims, personal injury/product liability defense, and construction and real property/title matters. He earned his law degree from the University of Kentucky and his undergraduate degree from Indiana University.

Edwin S. Hopson concentrates his practice in all areas of

labor and employment law. Mr. Hopson also provides advice and counsel on preventing litigation and other disputes from arising in the employment context. He earned his law degree from the George Washington University School of Law and his undergraduate degree from the University of Louisville.

Douglas L. McSwain concentrates his practice in consti-

tutional, business, employment and civil rights law. He earned his law degree from the University of Kentucky, with distinction, and his undergraduate degree from Vanderbilt University, cum laude. Mr. McSwain is also a Life Fellow of the Kentucky Bar Foundation.

George J. Miller concentrates his practice in the areas of

labor and employment law and eminent domain law. He earned his law degree from the University of Kentucky College of Law, his doctorate degree from Brown University and his undergraduate degree from Bloomsburg University of Pennsylvania.

Rachel K. Mulloy assists clients with matters relating to

executive compensation, qualified retirement plans, and welfare plans, including ensuring compliance with the Internal Revenue Code, ERISA, the PPACA, HIPAA, COBRA and other federal and state laws. She earned both her undergraduate and law degrees from Vanderbilt University.

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Leila G. O’Carra concentrates her practice in the areas of labor and employment, higher education, and commercial litigation. She earned her law degree from the University of Kentucky, where she served as a staff member of the Kentucky Law Journal, and her undergraduate degree from Vanderbilt University.

Grover C. Potts, Jr. focuses his practice in labor and

employment and business litigation. He serves as General Counsel to the largest private university system in Kentucky. He received both his undergraduate and law degrees from the University of Louisville.

Courtney Ross Samford concentrates her practice in labor and employment law . She represents employers in claims involving retaliation, retaliatory discharge, harassment, state and federal wage and hour laws and discrimination. Ms. Samford received her law degree from the University of Kentucky, and her undergraduate from Centre College.

Ekundayo Seton focuses his practice in labor and employment and individual tort law. Mr. Seton received his law degree from the University of Houston Law Center, and his Bachelors of Science from Frostburg State University. He has been recognized by Super Lawyers as a Rising Star since 2015.

John W. Woodard, Jr. has experience handling

employment, labor, civil rights, and administrative law in state and federal courts throughout Indiana and Kentucky. Mr. Woodard received his law degree from Indiana University, where he served as the Associate Editor of the Indiana Law Review.

Gordon B. Wright concentrates his practice in employee benefits and estate administration. He earned his law degree from Stanford University and his undergraduate degree from Vanderbilt University, magna cum laude.

He is a member of the Employee Benefits Committee of the American College of Trust and Estate Counsel.

Michelle D. Wyrick focuses on employment discrimination and employment-related torts, and litigation under the Employee Retirement Income Security Act ("ERISA"). Ms. Wyrick earned her law degree from Harvard University Law School and undergraduate degree from the University of Kentucky.

Mitzi D. Wyrick concentrates her practice in the areas

of class actions, labor and employment law matters and complex commercial litigation. Ms. Wyrick received her law degree from Harvard University Law School and her undergraduate degree from the University of Kentucky.

Bass, Berry & Sims The labor and employment team at Bass, Berry & Sims works with public and private employers across a variety of industries, ranging from Fortune 500 companies to small locally owned businesses. Experienced litigators, the team defends employment cases across the U.S. and works with employers to avoid litigation on the front end through day-to-day counseling and HR training. The team is regularly involved in matters involving discrimination, retaliation, wrongful discharge, non-competes, FMLA, wage and hour, defamation, employee misclassification and a myriad of other traditional labor issues, including employee classification, non-competes, union avoidance, collective bargaining agreements, labor arbitrations and grievances.

Bill Ozier has practiced more than 45 years as a labor and

employment attorney and has earned national praise that includes 33 consecutive years of recognition in Best Lawyers in America® and top-tier rankings in Chambers USA, with one client noting that Bill is “everything you would want in a lawyer” (from Chambers USA 2015). In 2012, Bill was named Nashville Employment Law: Management “Lawyer of the Year” by Best Lawyers. Bill represents a wide variety of clients – including a number of Fortune 500 companies – from a broad scope of industries, including manufacturing, distribution, retail, education and healthcare. Bill has been named a Super Lawyer from 2006-2015.

PERFECT ALIGNMENT. Relationship. Reliability. Respect.

At the center of our Employee Benefits and Labor & Employment practices.

Tim Garrett helps employers solve complex issues related

to all aspects of labor and employment law, providing counseling and developing creative solutions to underlying business issues. He is an experienced trial lawyer, defending employers of all sizes in employment litigation claims across the country. Named a top management lawyer in Nashville in 2013, and recognized by both Best Lawyers in America® and Chambers USA for several years, Tim has earned a national reputation for counseling employers through the maze of complex employee issues. Tim has been named a Super Lawyer from 2006-2015.

N A S H V I L L E K N O X V I L L E M E M P H I S W A S H I N G T O N D C bassberry.com Blog: bassberrylabortalk.com

@BassBerryLabor

Burch Porter Johnson Burch, Porter & Johnson provides comprehensive legal services across a wide range of litigation, business and transactional practice. The firm’s clients span a broad spectrum: from multi-million dollar corporations seeking counsel to negotiate complex transactions to individuals dealing with the most sensitive personal issues. From its inception, the firm’s focus has been on client service – providing specialized expertise, value, responsiveness and practical solutions to address our clients’ needs. Clients have counted on the firm’s experience, its commitment to service, and its tradition as a leader in business and community affairs for more than a century.

Jennifer Hagerman – As a member at Burch, Porter & Johnson, Jennifer Hagerman has represented clients in cases involving employment

discrimination, wage and hour class actions, restrictive covenants, civil rights, healthcare, education and numerous areas of commercial law. Her recognition as a leading labor and employment attorney stems from her focus on employment litigation and experience advising clients on a variety of employment matters including non-solicitation and non-competition agreements, employee handbooks, and employee classification under the FLSA. In addition to her active involvement in the legal community, she has served on the Boards for organizations including Downtown Memphis Commission and New Memphis Institute.

Lisa Krupicka – Since joining Burch, Porter & Johnson in 1987, Lisa Krupicka has built her reputation as one of the top labor and employment attorneys in the Mid-South. Primarily, she focuses on advising and representing employers on employment-related matters, including employee handbooks, training, wage and hour issues, labor relations, and employee discipline and termination. She also advises businesses on compliance with the accessibility requirements of Title III of the ADA. Her litigation experience includes claims for race, sex, age, disability, religious and age discrimination; constitutional claims under 42 U.S.C. § 1983, Title III ADA litigation, ERISA discrimination and benefits claims, as well as wage and hour class actions.

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Baker Donelson Baker Donelson gives clients access to a team of more than 650 attorneys and public policy advisors representing more than 30 practice areas to serve a wide range of legal needs. Clients receive knowledgeable guidance from experienced, multi-disciplined industry and client service teams, all seamlessly connected across 20 offices in Alabama, Florida, Georgia, Louisiana, Mississippi, Tennessee, Texas and Washington, D.C. Ranked as the 64th largest law firm in the U.S., Baker Donelson is recognized by FORTUNE magazine as one of the "100 Best Companies to Work For." Jennifer P. Keller – Employment & Labor – Ms. Keller is the president and COO of Baker Donelson and an employment litigator in the Firm's Johnson City office.

She provides training for employers and advises clients on a wide variety of issues, including discipline and terminations, benefits issues, leave, disability accommodation, policy formulation and enforcement and similar matters.

GEORGIA

Russell Gray – Employment & Labor – Mr. Gray is

in the Chattanooga office and serves on the Board of Directors. He concentrates his practice in litigation and labor and employment issues, representing clients in wage and hour, drug testing, policy manuals, covenants not to compete, response to union activity, employment forms, compliance advice and employment litigation.

Jonathan C. Hancock – Employee Litigation: Defense

David Gevertz – Employment & Labor (Top 100 in Georgia)

– Mr. Gevertz is an employment lawyer in Baker Donelson's Atlanta office, where he vigorously defends organizations accused of violating discrimination, wage and hour, whistleblowing, privacy and benefits law. He also litigates employment contract and restrictive covenant disputes, and routinely leads sensitive internal investigations and reductions in force.

TENNESSEE

– Mr. Hancock practices in the Memphis office where he represents employers and management clients in all aspects of employment law. He has extensive experience creating training programs for employees, as well as managers, supervisors and executives. He also defends employers against claims brought before the EEOC, DOL and other agencies.

Timothy B. McConnell – Employment and Labor

Martha L. Boyd – Employment & Labor (Top 50 female attorneys; Top 100 in TN; Top 50 in Nashville) – Ms. Boyd is

in the Firm's Nashville office, where she advises companies that are competing for and executing contracts with the U.S. Department of Defense and other federal agencies.

She advises employers and trains supervisors and managers on employment laws and investigates allegations of employee wrongdoing.

Angie C. Davis – Employment & Labor (Top 50 female attorneys) – Ms. Davis practices in the Memphis office

and focuses on investigations and responses to claims under Title VII, the Tennessee Human Rights Act, the ADEA, and agencies including the EEOC or the NLRB. She counsels clients on employment issues and helps develop employee handbooks and policy and procedure manuals.

Lawrence S. Eastwood Jr. – Employment & Labor –

Larry Eastwood is in the Firm's Nashville office and has experience defending management in cases brought under Title VII, ADEA, ADA, FMLA, FLSA, ERISA, and applicable state employment statutes. He counsels clients on employment law compliance, litigation avoidance, and compliance with state and federal anti-discrimination laws.

– Mr. McConnell, co-chair of the Firm's Labor & Employment Group, is in the Knoxville office. He counsels and defends clients in cases filed in federal and state courts in matters arising under Title VII, the ADA, ADEA, FMLA, FLSA, OSHA and state-specific employment laws.

M. Kim Vance – Employment & Labor – Kim Vance

is in the Nashville office and has over 25 years of experience representing management in every aspect of labor and employment law. She focuses on nationwide in-house management training programs to reduce legal risks, audits clients' HR policies and procedures, and develops pre-litigation strategies to improve available defenses.

Kenneth A. Weber – Employee Litigation: Defense

– Mr. Weber practices in the Nashville office and has more than 20 years of experience defending employers in disputes ranging from wage and hour to discrimination and harassment charges and employment contract disputes. He has participated in over 50 trials and injunction hearings, including numerous jury trials as first chair.

Goodwin practices in the Memphis office and has experience in all aspects of labor and employment law, including negotiating union contracts, representing management in labor arbitrations and EEOC charges.

He advises his clients on employer policies, terminations, employee handbooks and union matters.

Maurice Wexler – Employment & Labor – Maurice Wexler is in the Memphis office where he represents employers in labor and employment issues. He has counseling and litigation experience in the areas of discrimination, Title VII, ADA, ADEA, FMLA; employment policies; wage/hour cases; drugs, alcohol and AIDS-related issues; unemployment compensation; labor negotiations; NLRB and DFR cases.

Charles Grant – Employee Litigation: Defense – Mr. Grant is in the Firm's Nashville office and serves on the Board of Directors. He represents clients employment litigation, including collective actions under the FLSA. Mr. Grant's practice also includes business litigation and he has tried more than 45 jury trials to verdict in both federal and state courts.

Edward R. Young – Employment & Labor – Mr. Young practices in the Memphis office and has a nationwide practice devoted to representing management's interests in all phases of labor relations and employment law. He has assisted clients in labor and employment litigation issues dealing with the EEOC and NLRB for more than 30 years.

Stephen D. Goodwin – Employment & Labor – Mr.

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The Kullman Firm The Kullman Firm is one of the oldest and most experienced labor management and employment law firms in the United States. The Firm exclusively represents private and public employers in all matters relating to employment laws and regulations, discrimination issues, labor relations, pension and benefit plan matters, and all other areas concerning human resources management. The Firm represents clients in a wide range of industries, from airlines to hospitals to wood products, which provides it with a sound understanding of the general business practices of a vast array companies. With this experience, the Firm is able to provide proactive legal advice to help clients achieve their business goals while complying with applicable law.

Martin J. Regimbal – Mr. Regimbal represents

employers in labor and employment law matters and has litigated collective actions under the Fair Labor Standards Act, matters brought under Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act, the Worker Adjustment and Retraining Notification Act, and other federal and state statutes in a variety of courts. He also advises clients regarding compliance with the National Labor Relations Act and handles NLRB matters. His office is in Columbus, MS. Mr. Regimbal also has been recognized as a 2014 and 2015 Rising Star by Mid-South Super Lawyers Magazine.

Taylor B. Smith – Mr. Smith is a resident member

of the law firm at our Columbus, MS office. Mr. Smith graduated with honors from Mississippi State University and thereafter, received a J.D. degree from the University of Mississippi. In law school, he served on the staff of the Mississippi Law Journal and additionally, was article editor for the Journal. Mr. Smith is a member of the American Bar Association, the Mississippi Defense Lawyers Association, the American Academy of Hospital Attorneys, and is a fellow of the American College of Trial Lawyers. He is also listed in America’s Leading Business Lawyers and The Best Lawyers in America as one of the outstanding lawyers in the labor and employment field. He is listed as one of the top 50 lawyers in Mississippi-Super Lawyer magazine and has been listed as a Super Lawyer in the Midsouth for several years.

Jerrald L. Shivers – Mr. Shivers has practiced labor and

employment law on behalf of management since 1981 and his office is in Jackson, MS. Mr. Shivers has served as a member of the national Legislative Affairs Committee for the Society for Human Resource Management (SHRM) and was one of the authors of the first edition of Employee Benefits Law, a treatise published by the Bureau of National Affairs and the ABA Section of Labor and Employment Law. He also is one of the authors of the Mississippi Employment Law Practice Handbook, published by the University of Mississippi. Mr. Shivers is listed in The Best Lawyers in America, Mid-South Super Lawyers, and The Best in the U.S., and is AV-rated by Martindale-Hubbell.

Peyton S. Irby, Jr. – Mr. Irby has more than 35 years

of experience guiding his clients through complicated employment issues. His office is in Jackson, MS. During his career, he has worked with private and public employers to ensure that they meet the regulatory requirements placed on businesses and their work force. In addition to his counsel, he also provides litigation support for those entities unable to resolve employee complaints internally. Mr. Irby is also adept at representing companies in response to OSHA, wage and hour, and other regulatory agency violations. He has lectured at numerous seminars concerning labor and employment issues. Prior to entering private practice, he served as a trial and supervisory attorney with the National Labor Relations Board.

Your Resource for Legal Innovation and Inspiration Customized Management Training Compliance Audits Policy and Strategy Analysis Litigation Defense Global Mobility Labor Negotiation www.bakerdonelson.com 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. ©2016 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

Real world solutions to your employee benefits needs.

The world of employee benefits is COMPLEX. At Kiesewetter Law Firm, we understand this complexity.

And we’re here to help.

We are a boutique law firm that focuses on employee benefits, executive compensation and health care regulatory compliance law.

From the day we opened our doors, our focus has been and will continue to be the same— to solve complicated legal issues in collaborative, comprehensive and creative ways while being client driven and cost-effective.

Interested in working together? Give us a call.

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Glankler Brown Glankler Brown has long been part of the fabric of the storied city of Memphis, and the work of our attorneys has supported the growth of its citizens and its industry, its legacy and progress. Across all that time and through all that experience – in the process of earning the kind of respect in more than 35 areas of law that only results can bring – there has been one common thread in that fabric. We are resolved. We strive to provide every client thorough knowledge of the law, uncompromising professionalism, steadfast determination, and timely, meaningful and measurable response.

Saul C. Belz concentrates his practice in the areas of business litigation, commercial disputes of all types, complex litigation, appeals and employment law. Mr. Belz has more than 40 years of experience in the law, primarily assisting corporate clients with resolution of disputes, both in court and through alternative dispute mechanisms. He has participated both as counsel for the plaintiff and counsel for the defendant in class actions involving such diverse matters as securities fraud and Title VII claims. He has represented numerous broker/dealers and customers in arbitration and litigation. Mr. Belz is also a Certified Tennessee Rule 31 mediator.

Don L. Hearn’s practice includes commercial litigation and employee benefits law. He represents clients in Tennessee state and federal trial and appellate courts. He has extensive experience in handling complex commercial litigation on behalf of employers, plan fiduciaries, third party administrators, insurers and other providers of employee benefit plans governed by ERISA. Charles W. Hill concentrates his practice in the areas of employment law, securities and broker/dealer litigation, contracts and commercial litigation. Mr. Hill consults with employers concerning employment law decisions regarding their workforce, including discipline, discharge and the implementation of specific policies to ensure compliance with existing employment law, particularly the application of federal and state discrimination statutes. Mr. Hill represents broker/ dealers and brokers in securities disputes/compliance matters and handles LLC/partnership disputes. He is a Fellow of the American College of Trial Lawyers and is on the Board of the Memphis Regional Chamber.

Robert D. Meyers is certified as a Civil Trial Specialist by

the National Board of Trial Advocacy. Mr. Meyers has a breadth of employment litigation experience and has defended companies and individuals before federal and state courts in Tennessee, Mississippi, Arkansas, Alabama, Texas, Georgia, Louisiana, Indiana and Virginia. He has been instrumental in assisting clients dealing with employee medical issues including ADA, FMLA and workers’ compensation concerns. He has extensive experience representing public employers in claims brought under Title VII, § 1981 and § 1983. He is Chairman of the Shelby County Election Commission.

Arnold E. Perl has more than forty (40) years of

experience in assisting organizations in labor and employment law, with extensive experience counseling organizations on positive employee relations. He offers a dynamic leadership development program for all levels of management. He has successfully argued many cases before various United States Courts of Appeals, and is admitted to practice before the United States Supreme Court. Frequently quoted by the nation’s top media, Mr. Perl’s remarks have appeared in The Wall Street Journal, USA Today, New York Times and more. He is a Certified Tennessee Supreme Court Rule 31 Mediator.

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Glankler Brown congratulates our 2016 Employment Law Super Lawyers!

Saul C. Belz Don L. Hearn Charles W. Hill Robert D. Meyers Arnold E. Perl 6000 Poplar Avenue, Suite 400 Memphis, Tennessee 38119 901.525.1322

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