June 2019 Issue

Volume 9 : Issue 6

TM

www.HRProfessionalsMagazine.com

Super Lawyers in Labor and Employment Law

Microchip Implantation in Employees

SCOTUS

SHRM Annual Conference & Exposition

June 23-26 in Las Vegas

Scott Ferrin,

SHRM-SCP, CAE, PMP SHRM Field Services Director

Society for Human Resource Management

Rules on Enforcement of Class Arbitration

Trump Era

Guidance on

Independent Contractors

Keeping up with changing laws is a full-time job, and you’ve already got one.

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

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www.HRProfessionalsMagazine.com Editor

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

The Thompson HR Firm, LLC Art Direction

Park Avenue Design Contributing Writers

Austin Baker Bruce E. Buchanan William Carmichael Harvey Deutschendorf Brad Federman Murray L. Harber Julie Henderson Robert Horton JonVieve D. Hill Jimmy Hinton Wes Hudnall Daveante Jones Blake Rogers Johnny C. Taylor, Jr. Cristie Upshaw Travis Edward H. Trent Janie Warner Board of Advisors

Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR Terri Murphy Susan Nieman Robert Pipkin Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine.com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors.

HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2019 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.

Features 4 note from the editor 5 Profile: Scott D. Ferrin, SHRM-SCP, CAE, PMP, SHRM Field Services Director 8 Excellence Through Leadership Conference in Atlanta August 15-16 9 3rd Annual Supervisor and Manager Conference in Memphis June 21 10 Better Workplaces Include Second Chances 14 What Are You Working For? Hint: It’s Not a Paycheck 16 Mentoring: The Ultimate Marriage of Development and Inclusion 22 How HR Can Keep Their Company’s Drug Testing from Going to Pot 24 The Performance Review Evolved 28 Will They Stay, or Will They Go? Retention in the Age of Choices 52 Book Look: Serve Up Coach Down 54 What to Do When You Feel Unappreciated at Work

Top Educational Programs for HR Professionals 23 WGU Bachelor’s or Master’s Degree Fully Aligned with SHRM’s HR Curriculum

Employee Benefits

Industry News

20 How to Better Engage Your Stressed Employees 30 Actions Employers Can Take to Build a Comprehensive Strategy on Mental Health and Substance Abuse 32 Now is the Time for a Check-Up and Tune-Up of your Health & Welfare Benefits 47 The Greater Memphis Employee Benefits Counsel Meeting on May 2

Employment Law

12 Trump Era DOL Guidance on Classification of Gig Economy Workers 18 Supreme Court to Tackle Scope of Title VII’s Prohibition on Sex Discrimination 26 Microchip Implantation of Employees 34 Supreme Court Rules on Enforcement of Class Arbitration 41 Cross, Gunter, Witherspoon & Galchus Seminars 42 2019 Guide to the Super Lawyers in Labor & Employment Law Ogletree Deakins 44 Bass Berry & Sims 45 FordHarrison Wimberly Lawson 46 Wright Lindsey Jennings 47 The Kullman Firm 48 Cross, Gunter, Witherspoon & Galchus, P.C. 49 Littler 50 Immigration Unfair Labor Practices HR Professionals Should Know

6 Highlights from the 2019 ALSHRM State Conference & Expo in Birmingham May 14-15 11 2019 SHRM Certification Winter Exam Window 33 24th Annual Mississippi HR Conference & Expo in Tupelo September 16-18 36 Highlights from TN SHRM Strategic Leadership Conference in Nashville April 26 38 Highlights from the WTSHRM 9th Annual Human Resources & Employment Law Spring Conference in Jackson May 1 39 UNA & Shoals SHRM Present 24th Annual North Alabama Human Resource Management Conference August 13 40 2019 Tennessee SHRM Conference & Expo in Chattanooga September 18-20 53 Highlights from the 26th Annual TPMA Membership and Training Conference in Memphis April 24-26 55 35th Annual KYSHRM Conference in Louisville August 28-30

July 2019 issue features Top Educational Programs for HR Professionals and highlights from the 2019 SHRM Annual Conference in Las Vegas PLUS Employment Law and Employee Benefits Updates Deadline to reserve space June 15

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a note from the editor

Be sure to visit our Facebook page to see the videos of chapter leadership and important thought leaders from the conferences. If you are not receiving instant notifications live from the conferences, just LIKE us on Facebook. Be sure to check our Industry news section to learn about upcoming SHRM conferences in your area.

I look forward to seeing everyone in Las Vegas for the Annual SHRM Conference & Exposition June 23-26. It's the world's largest HR conference! We will bring you frequent live updates from the conference on Facebook. Follow me on Twitter @cythomps and on LinkedIn for updates as well.

We will keep you posted on all the exciting events from the conference! I can’t wait for the Lionel Richie Concert on Tuesday evening! I also cannot wait to hear keynote

At the SHRM Talent Conference in Nashville April 8-10 I am honored to have Scott Ferrin, SHRM-SCP, CAE, PMP, SHRM Field Services Director for Nevada on our June cover. Scott also manages state councils, chapters and volunteer leaders in Arizona, Colorado, Hawaii, Kansas, New Mexico, Oklahoma and Utah. Scott is quite an accomplished HR leader, as you will see in his career profile.

speakers Martha Stewart, Johnny C. Taylor, Jr., Brene Brown, and Vineet Nayor. Register at www.store.shrm.org before this conference is sold out!

I want to personally invite you to our 3rd Annual Supervisor and Manager Conference in Memphis on June 21 at the Crescent Club. You can earn 8.00 SHRM PDCs and 8.00 HRCI recertification credits! See Page 9 for our excellent line up of speakers. And attendees will have a chance

The June issue is one of my favorites because we feature the Guide to

to win 7 days at the beautiful Sandestin Golf and Beach

Super Lawyers in Labor and Employment Law from Alabama, Arkansas,

Resort in Miramar Beach, Florida compliments of Team

Georgia, Kentucky, Mississippi and Tennessee. As HR professionals we

Foster HR Strategy! Register on our website.

work with these attorneys every day. This is an opportunity to spotlight them, and to say thank you for all they do for HR professionals. We could

Watch your email for our June complimentary webinar

not do our jobs without them! If you are looking for legal assistance, look

sponsored by Data Facts on June 18. If you are not currently

no further than this Guide. You will find the perfect attorney to help you

receiving our monthly email invitation, you can subscribe

with all your employee relations and other legal issues. We hope you will

on our website at www.hrprofessionalsmagazine.com.

keep it as a handy reference to use as needed. If you see your attorney featured, please congratulate them on this outstanding honor.

See you in Vegas!

In this issue we are bringing you highlights from the TN SHRM Strategic Leadership Conference in Nashville held April 26, and the WTSHRM Human Resources & Employment Law Spring Conference held May 1 in Jackson. We also have highlights from the ALSHRM Conference & Expo in Birmingham May 14-15. Lastly, we have highlights of the 26th Annual TPMA Membership and Training Conference in Memphis April 24-26.

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cynthia@hrprosmagazine.com cythomps@twitter

Scott D. FERRIN on the cover

SCOTT D. FERRIN, SHRM-SCP, CAE, PMP SHRM Field Service Director Society for Human Resource Management Scott Ferrin, field services director for SHRM, acted as emcee for student programming during the 2017 SHRM Annual Conference & Exposition in New Orleans.

Scott D. Ferrin has been a regional director in the Membership department of SHRM since 2010.

A member of the Field Services Team, he acts as a liaison between SHRM and professional and student members and volunteers.

Ferrin manages state councils, chapters and volunteer leaders in Nevada, site of the 2019 SHRM Annual Conference & Exposition, and Arizona, Colorado, Hawaii, Kansas, New Mexico, Oklahoma and Utah.

In his role, he serves 23,993 HR professionals. These members of SHRM support 8.4 million employees across eight states. Last year, he gave presentations about SHRM, the expert on all things work, and HR best practices to more 7,000 HR and business professionals.

For this year’s SHRM Annual Conference & Exposition in Las Vegas, Ferrin connected 1,000 volunteers from the eight states with leaders who are overseeing volunteer activities supporting the conference.

He has more than 25 years of work experience in HR in the mining, financial services, insurance and education industries. He is an expert consultant and speaker on HR best practices. Before joining the SHRM staff, he held titles such as senior workforce planner, workforce planning manager, HR manager, talent manager, recruiter and HR generalist for companies ranging in size from start-ups with 20 employees to Fortune 500 companies.

Ferrin served in a variety of SHRM volunteer leadership roles before joining the professional association as a member of the staff. When hired at SHRM, he was the legislative director for the East Valley Human Resources Association, a SHRM affiliate chapter in Arizona.

He is certified as a SHRM-Senior Certified Professional (SHRM-SCP), a Certified Association Executive (CAE) and a Project Management Professional (PMP). He has held an HR Certification for more than 15 years.

Ferrin holds a Bachelor of Business Administration degree with an emphasis in finance from Weber State University and an MBA from the University of Phoenix. ď Ž

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May 14-15, 2019 | HIGHLIGHTS

Wednesday May 15th Please see our Facebook Live interviews from the conference on Facebook.com/hrprofessionalsmagazine Conference Registration: 6:30 am 8:30 am.................................................................................................................................................Escalator/Lobby Hot Breakfast 7:00 am - 8:00 am............................................................................................................................................................... ...BJCC Welcome & Announcements 8:00 am - 8:30 am..................................................................................................................................................................BJCC Opening Keynote: The Future of HR: Establishing New HR Norms that Put People First, Dr. Jarik Conrad, Ultimate Software 8:30 am - 9:45 am..................................................................................................................................................................BJCC Break: visit with vendors, move upstairs for concurrent sessions 9:45 am - 10:00 am..........................................................................................................................................................................

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1 Mary Ila Ward, 2019 Director the- 11:15 Alabama 10:00 of am amSHRM State Council 2 The 2019 Alabama SHRM State Council 3 Sherry Johnson, SHRM-SCP, CAE, Concurrent Ses sions: SHRM Field Services Director for Alabama.

Sherry spoke on SHRM’s initiatives talent back to work.

Achieving Compliance with Foundational Pieces - One Rungto atget a Time Presented by: Tae Phillips & Josh Harrison with Ogletree Deakins......................................................................East M How to be a Successful HR Newbie: Find Your Resources/Find Your People Presented by: Jazmine Wilkes, Ignite Fueling Innovation.....................................................................................East K-L Working for a #1 Company - What is it Like?

Presented by: Juanita Phillips, Intuitive...................................................................................................................East N-O

Lunch Networking Round Tables / Visit with Vendors 11:15 am - 12: 30 pm.................................................................................................................................................................BJCC Concurrent Sessions: 12:30 pm - 1:45 pm Effective Harassment Prevention in the #MeToo Era Requires More than a Policy 4 5 6 7 Presented by: Mac Greaves & Kary Wolfe with Jones Walker LLP........................................................................East M 4 Kate Bischoff, Thrive Law Consulting, presented “Two Questions Will Save Us All.” 5 Katrina Kibben, Three Ears Media, spoke on “Never Assume Anything: Better Decisions Begin with Better Data Recruitment Marketing Personas.” 6 Rashida Dore-Wilson and Kristina Minyard. Rashida presented “In the Mix: Motivating, Managing, & Mentoring MillenPresented by: Steven Rondone, U.S. Bureau of Labor Statistics.............................................................................East K-L nials.” Kristina is ALSHRM Conference Co-Chair. 7 “The Future of HR: Establishing New HR Norms that Put People First,” was Dr. Jarik Conrad’s topic. He Improving is with UltimateEmployee Software. Engagement and Retention through Your Managers Presented by: Anne Tomkinson, DC Public Charter School Board..........................................................................East N-O Concurrent Sessions: 1:55-3:10 Employment Law Update Presented by: Warren Lightfoot with Maynard, Cooper, and Gale.........................................................................East M Emerging Trends and Best Practices in Employee Benefits Presented by: Scott McDuffie, Willis Towers Watson..............................................................................................East K-L How to find Confidence in Conflict Presented by: Kwame Christian, American Negotiation Institute.........................................................................East N-O Break: visit with vendors, move back downstairs for closing session, coffee, last chance to bid on silent auction 8 9 10 3:10 pm -3:30 pm.....................................................................................................................................................................BJCC Closing Keynote: Putting the Human back into HR, Laurie Shakur, Rakuten Marketing 8 Bag Stuffing Party 9 Jeff Luttrell is SHRM SE Region MAC Rep. He is also Senior Director, Global Talent Acquisition and Staffing at Alorica.

3:30 pmTae -4:15 pm.....................................................................................................................................................................BJCC 10 (L-R) Phillips, Mary O. O’Neill, and Josh Harrison are attorneys with Ogletree Deakins Birmingham. Tae and Josh presented “Achieving Compliance with Foundational Pieces – One Rung at a Time.”

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11 Jazmine Wilke’s topic was “How to be a Successful HR Newbie: Find Your Resources/Find Your People.” She is with Ignite Fueling Innovation. 12 Juanita Phillips presented, “Working for a #1 Company. What’s It Like?” 13 “Better Decisions Begin with Better Data,” was presented by Steven Rondone with the U. S. Bureau of Labor Statistics. 14 (L) Melissa Devore received an award in recognition of her service as 2018 Director of the ALSHRM State Council. Mary Ila Ward, 2019 Director of the ALSHRM State Council presented the award.

Special thanks to our vendors!

HealthMed Inc.

McGriff Insurance

ADP

UAB Collat School of Business

PassionHR Consulting www.HRProfessionalsMagazine.com

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Register for Excellence Through Leadership Conference The Crowne Plaza Hotel & Conference Center Atlanta SW Peachtree City, Georgia August 15-16 2019 This Conference is pe-approved for 11 HRCI Business Credits and 10 SHRM PDCs!

Go to www.strategichrpartners.com to register!

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

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

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

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

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

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

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

• Why Should Someone be Led by You? • Human Resource Metrics that HR Leaders Use in Successful Companies • How to Lead Wellness & Cost Containment Efforts Through On-Site Clinics

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• What You Don’t Know Can Hurt You – What’s New in Employment & Labor Law • Amazing Face Reading as a Science • Management Courage • A Proactive Approach to Workers Compensation

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EMCEE – VERLINDA HENNING, SHRM-SCP, SPHR 2018-2019 SHRM-Memphis President

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Win 7 Nights @ Sandestin Golf and Beach Resort

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LEEANN BAILES FOSTER CEO of Team Foster HR Strategy •A CTIVE SHOOTER TRAINING BY OFFICER TERRY DONALD, WITH THE SHELBY COUNTY EMERGENCY MANAGEMENT AND HOMELAND SECURITY OFFICE • NEW INDEPENDENT CONTRACTOR RULES IMPACTING THE GIG ECONOMY • SURVIVING ALPHA PEOPLE • HOW TO AVOID PERSONAL LIABILITY AS A MANAGER

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JUDY BELL SHRM-CP, PHR, CPBA, CPVA Judy Bell Consulting

• BACKGROUND SCREENING IN THE ERA OF MEDICAL MARIJUANA • CANNABIS AND THE MULTI-STATE EMPLOYER • SUCCESSION PLANNING • AGE DISCRIMINATION IN THE WORKPLACE • METABOLIC SYNDROME AND STRESS

Breakfast and lunch included Networking Reception 5 PM Meet the speakers and get answers to your questions.

DAN NORWOOD Norwood & Atchley Law Firm TO REGISTER, GO TO WWW.HRPROFESSIONALSMAGAZINE.COM COST: $129. PRE-REGISTRATION IS REQUIRED LIMITED SEATING AVAILABLE 8.00 SHRM and HRCI recertification credits pending CLE credits pending

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Better Workplaces Include SECOND CHANCES

By JOHNNY C. TAYLOR, JR.

Every year, nearly 700,000 people leave prison to reintegrate into society, but most quickly run into roadblocks when looking for gainful employment. A year after release, 75 percent of them will remain unemployed.

SHRM is a strong advocate for giving willing workers who made mistakes a second chance. Men and women with criminal histories are looking for opportunities to re-enter the workplace, contribute to their communities and earn an honest living.

Studies show that having a job after incarceration reduces recidivism substantially, making communities safer. It’s also good for the economy, as nearly $87 billion in GDP is lost each year by excluding ex-offenders from the workforce.

People who have paid their debt to society, who want to work and who are qualified for the job should not be re-sentenced to joblessness. And it is short-sighted to exclude them from workplaces that have a tremendous need for workers—especially in a time when the U.S. is experiencing a serious skills shortage. Currently, there are about a million more open jobs than there are qualified applicants looking to fill them—and the skills gap isn’t going away any time soon.

SHRM’s own research shows that hiring people with criminal records is an important strategy for employers struggling to meet their need for qualified talent. And it makes good business sense.

• Three-quarters of managers and HR professionals say the cost of hiring workers with criminal records is the same as or lower than those without.

• More than 80 percent of managers and two-thirds of HR professionals believe the value workers with criminal records bring to the organization is as high or higher than that of workers without records.

• Those who hire the formerly incarcerated say they tend to be more loyal employees when it comes to retention.

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And there is not as much resistance from fellow workers as you might imagine. A majority of employees in all roles say they are willing to work with individuals with criminal records, and an additional 40 percent reported no opinion.

The First Step Act SHRM has met with Congressional and Administration leadership to offer solutions and engage in thoughtful discourse on how the private, public, and government sectors could work together to provide opportunities for more Americans with records and reduce recidivism rates.

On December 21, 2018, the First Step Act was signed into law with SHRM’s support.

This ground-breaking bill received broad, bipartisan backing, with advocates from the business, political and social justice spectrums coming together to reduce sentences for nonviolent offenders in federal prisons and improve programs to reduce recidivism by investing in workforce training and skills building.

The First Step Act’s criminal justice reforms open new opportunities for job training, treatment and rehabilitation for the formerly incarcerated. These measures will help those with criminal records reintegrate into the workforce, while helping employers address our country’s critical skills gap by making it easier to hire individuals from this nontraditional applicant pool.

Our government has made a clear commitment to give past offenders muchneeded workplace skills and training—a potential game changer for companies looking to hire viable candidates who are ready to do the job upon release.

The Next Step for Business: Take the Pledge As HR professionals we understand that that the First Step Act really is the first step; our work has just begun.

It is up to us to persuade our organizations to take the next step: committing to consider qualified job seekers with criminal records.

We must counter the stigma and fear around this talent pool with knowledge, tools, and resources.

This is why SHRM, in partnership with Koch Industries, launched the Getting Talent Back to Work initiative and toolkit.

Getting Talent Back to Work encourages employers to make their recruiting practices more inclusive by taking a pledge to give opportunities to qualified people with a criminal record deserving of a second chance.

The toolkit equips employers to confidently evaluate applicants with criminal records by reducing uncertainty and promoting best practices, including when to ask about a criminal record during the hiring process, state and federal regulations, and what types of convictions to consider based on the job.

Already, a diverse coalition of organizations—together representing more than half of the American workforce—have partnered with SHRM to take the pledge.

They include the American Staffing Association, the National Restaurant Association, the National Retail Federation, the U.S. Chamber of Commerce, Koch Industries, Checkr, Dave’s Killer Bread Foundation and others.

HR professionals can and must do a better job at creating second-chance employment opportunities for the formerly incarcerated.

If we do, everyone wins: Employers acquire valuable employees, deserving people can turn their lives around and our communities are safer.

By extending jobs to people based on their merit, not their mistakes, the HR profession and our organizations can create better workplaces for a better world.

Johnny C. Taylor Jr., SHRM-SCP President & Chief Executive Officer, SHRM

THESE INITIALS MEAN MORE

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Within 6 months of completing my SHRM-SCP, I was being included in cross-division teams, working on companywide projects and advising the C-suite directly on HR-related initiatives and policies for the entire organization.

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Prove your expertise and increase your opportunities for professional advancement by earning your SHRM-CP or SHRM-SCP. You’ll gain: • More confidence • More credibility • More opportunities for advancement

Applications now being accepted through October 18!

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Trump Era DOL Guidance on Classification of Gig Economy Workers

By JONVIEVE D. HILL

On

April 29, 2019, the United States Department of Labor (“DOL”) issued a new opinion letter, FLSA 2019-6, regarding whether virtual marketplace company (“VMC”) service providers are employees or independent contractors. The DOL concluded that VMC service providers are independent contractors, marking a positive change for VMCs and businesses in the booming “gig economy,” as well as traditional businesses that utilize freelancers, consultants, and contractors.

A Brief Background On July 15, 2015, the DOL Wage and Hour Administrator issued an Administrative Interpretation that emphasized the broad reach of the FLSA and warned employers against the misclassification of workers as independent contractors. Many understood the Interpretation to indicate that the DOL considered workers in the gig economy to be employees.

However, on June 7, 2017, Labor Secretary Alexander Acosta rescinded the Wage and Hour Administrator’s prior guidance on independent contractors, signifying a shift in position from the prior administration’s position on a key wage issue. This change was welcomed by many in the business community, who felt that this was a first step in clarifying the complex rules and regulations established under Obama’s Labor Department. Through the issuance of the DOL’s first Opinion Letter on classification under the Trump administration, companies now have a clearer insight on how this administration’s Labor Department regards workers in the growing gig economy.

Opinion Letter, FLSA 2019-6 The DOL kept the name of the entity that requested the Opinion Letter private; however, the entity self-described as a VMC. The DOL defined a VMC as “an online and/or smartphone-based referral service that connects service providers to end-market consumers to provide a wide variety of services, such as transportation, delivery, shopping, moving, cleaning, plumbing, painting, and household services.” Therefore, this entity is comparable to other commonly used service platforms, such as Uber, Lyft, Airbnb, Instacart, etc. The DOL reviewed the workers’ status under the federal FLSA using the six-factor “economic realities test.” The DOL applied this test to the facts in the letter submitted by the employer, concluding that every factor weighed in favor of independent contractor status.

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Application of the Six-Factor Test The touchstone of independent contractor versus employee status is “economic dependence.” In order to determine economic dependence, the DOL considered the following six factors derived from Supreme Court precedence.

1. Control. This factor analyzes the nature and degree of the potential employer’s control. When a business requires a worker to work exclusively for that business, whether through a contractual arrangement or because the type of work makes it impractical to work elsewhere, it exercises a great degree of control over the worker. In its Opinion letter, the DOL noted that the VMC allows its service providers to establish flexible schedules and to even work for competitors. Moreover, the entity in question does not inspect the service provider’s work for quality or rate their performance. Therefore, the DOL concluded that this factor weighs in favor of independent contractor status.

2. Permanency of Relation. This factor considers the permanency of the worker’s relationship with the potential employer. Permanency is established when a business requires a worker to agree to a fixed duration of work and disallows workers to work for competitors. A relationship may also be deemed to have permanence when there is a long-standing working relationship. In its Opinion Letter, the DOL stated that the workers appear to have a high degree of autonomy to exit the working relationship and even to work for competing businesses. The DOL stated that this type of freedom is indicative of an independent contractor status.

3. Investment in Facilities, Equipment, or Helpers. This factor examines the worker’s investment in the facilities, equipment, or helpers. If the business makes the investment in the materials and human capital that are necessary for a worker to complete his or her job, the worker becomes more economically reliant on the business and tends to be an employee over an independent contractor. The DOL noted that the service providers at issue are required to purchase all necessary resources to complete their work without reimbursement. Although the client invests in the virtual referral platform, which the service provider relies upon to obtain work, this is not an investment in the actual work the service providers perform, and service providers can use similar software referral programs through a competitor. Therefore, the DOL concluded that this factor weighed more heavily in favor of classification as an independent contractor.

4. Skill, Initiative, Judgment, and Foresight Required. This factor contemplates the amount of skill, initiative, judgment, and foresight required for the worker’s services. If a business’s profits are achieved as a result of a worker’s independent judgment, initiative, or foresight, the worker is more likely an independent contractor. Also relevant to this analysis is how the worker acquired his or her skills. If the business provides the worker with the skills necessary to accomplish the work, it indicates employee status.

Although the entity at issue did not clearly identify the types of services

that it offers on its client’s virtual marketplace, the DOL stated that the service providers have autonomy to choose between different service opportunities, including utilizing competitor platforms, to maximize their financial gain. Moreover, the service providers do not undergo mandatory training. The DOL concluded that these factors indicate independent contractor status.

5. Opportunity for Profit and Loss. This factor weighs the worker’s opportunities for profit or loss. Where a worker earns additional compensation through the exercise of independent judgment, initiative, or foresight, has freedom to renegotiate compensation throughout the relationship, or has some amount of capital investment at risk, the worker is more likely an independent contractor. The DOL noted that the service providers have the ability to maximize their profits, including through working for different platforms, and are not confined to a set amount of compensation.

Because of the significant amount of control that they have over their level of compensation, this factor favors independent contractor status.

6. Integrality. This factor evaluates the integration of the worker’s services into the potential employer’s business. A worker’s services are deemed integrated into a business if they form the primary purpose of the business.

The DOL stated that the service providers at issue are not integrated into the client’s referral business. The client merely provides a connection between service providers and end consumers. The service providers do not operate the virtual platform provided by the client, but instead use it to locate job opportunities. Therefore, this factor weighs in favor of independent contractor classification.

Key Takeaways Although the DOL’s Opinion Letter is not binding on courts, courts may defer to this interpretation of law. Furthermore, if there are reasonable factual similarities, a business may rely on the DOL’s guidance as a good faith defense against claims arising under the FLSA. Therefore, businesses, especially those that operate in the gig economy, have welcomed this shift in direction from the DOL. However, businesses should remain mindful of the multitude of state laws that are more restrictive than the federal FLSA when making classification decisions. For instance, certain states, such as California, New Jersey, Connecticut, Illinois, Vermont, New Hampshire, Massachusetts, and Nevada, apply some version of the “ABC test” to determine a worker’s classification. It is challenging to classify a worker as an Independent Contractor under the ABC test because it requires, inter alia, evidence that a worker performs services that are outside the usual course of the company’s business. The costs of misclassification under state or federal law can be substantial.

JonVieve D. Hill, Attorney Martenson Hasbrouck & Simon LLP jhill@martensonlaw.com www.martensonlaw.com

Martenson, Hasbrouck & Simon LLP focuses its practice

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Our reputation for excellence has been earned through our dedication to providing innovative solutions to the most difficult problems at an exceptional value. We have forged long-lasting relationships with our clients through our tenacity, skill, and accessibility.

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13

What Are You Working for?

Hint: It's Not a Paycheck.

"People are motivated by different things at different points in their work-life journey," said Sreeni Kutam, chief human resources officer at ADP. "The challenge for leaders is to recognize the individual journey of their employees and create a work environment that provides opportunities for both growth and engagement."

As ADP launches its new brand platform, we're asking employees everywhere one simple question: What are you #workingfor?

So far, there is one obvious answer that's been noticeably missing from responses: a paycheck.

On the other hand, common themes that interviewers have heard include taking care of others, achieving social equality, traveling, improving life for the next generation, feeling fulfilled and leaving a worthy legacy.

What Drives Work?

"Trying to put more into this earth than I get out of it," as it was put by Brandon Atwell, co-owner of Murky Waters Blues and BBQ in Gulfport, Mississippi.

"I'm working to travel more," said Kerry Columbo of TD Ameritrade, in Jersey City, New Jersey. "I love to get out of my element, visit new cities, meet new people and eat new foods."

"Freedom!" said April Hope, owner of April Daze Boutique in Stuart, Florida.

But the response, "to make money," is rarely heard. This may say as much about how people want to be perceived as why they go to work — nobody wants to appear greedy or shallow. But it also may bespeak how much most people now value their work lives and what besides pay motivates them to keep showing up.

"People are motivated by different things at different points in their work-life journey," said Sreeni Kutam, chief human resources 14

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officer at ADP. "The challenge for leaders is to recognize the individual journey of their employees and create a work environment that provides opportunities for both growth and engagement."

The Role of Pay All of this is not to say that money is unimportant. Many people do say they're working for a paycheck, but instead of emphasizing consumption or wealth accumulation, they tend to focus on the intangible benefits of financial security.

"Not worrying about money so I can enjoy life and focus on all parts of it," said Amy Labroo, director of digital marketing at GSK in Newark, New Jersey. "I don't want to think twice about doing things." Others have mentioned the desire to provide a better life for their children or aging parents, or a long, easy retirement for themselves.

Stimulation, Altruism and Purpose For some, it's the mental and intellectual stimulation of their work that keeps them engaged. "Just a challenge," said Ashley Davidson, an accountant with the management consultancy EMG Brands, based in Tyrone, Pennsylvania. "I literally can't sit and do the same mundane task every day. I like the challenge of coming into work and not knowing what I'm going to have in front of me."

Others prefer the opportunity to use facts and figures on the page to produce dynamic solutions. "It's the challenge of dealing with the numbers and coming up with answers," said Allyson Simmons, a bookkeeper at lighting design firm Copper Moon in West Point, Georgia.

Many appreciate opportunities for altruism through work. These folks strive to improve the world for themselves, their families, their

coworkers or even people they'll never meet.

"I'm working to have a positive impact on my own life as well as on the lives of those I work with, my family, the world around us as a whole," said Michael Arnett, COO of BNL Consulting in Atlanta, Georgia.

"I am working to make our customers happy," said Jamie Lewis, executive assistant at Ali's Cookies in Atlanta, Georgia. "I want them to have the best experience with no trouble — just place the order and then not have to think about anything."

Customer satisfaction goals are the #workingfor motivation for these respondents as well: • "I'm working to fill the world with fun."

— Angela Arenella, Category Manager, Party City • "To inspire confidence through style."

— Alexandra Ryan, Styling Director, Gilt Groupe • "To make every journey more elegant."

—B inti Melameka, Passenger Service Agent, Air France And of course, there are those whose aspirations aren't as easily classifiable. "I used to work at big companies, and I had an epiphany about a year ago," said Jay Mandel, founder and president of marketing consultancy The Collective NYC. "Today, I'm working for candor, curiosity and collaboration."

Regardless of what motivates people to work, the conversations that ADP has started are making one thing clear: While no one wants to give up their paycheck, it's not what gets people out of bed in the morning.

"A higher purpose," said Vaishali Jadhav, lead facilitator with Indeed.com in Austin, Texas.

"Purpose definitely trumps a paycheck."

ADP, the ADP logo, and Always Designing for People are trademarks of ADP, LLC.

What are you #WorkingFor? The things we work for are what define us.

At ADP we’re designing a better way to work, so you can achieve what you’re working for.

Discover HR, Talent, Benefits & Payroll, informed by data and designed for people. Learn more at design.adp.com

MENTORING:

The Ultimate Marriage of Development and Inclusion

By BRAD FEDERMAN

M

entoring, at its core, guarantees team members that there is someone in the organization who cares about them, assures them they are not alone, supports them in working through daily trials, and ensures their success. In essence, mentors make a difference in others’ professional lives. They create a feeling that the mentee matters.

Research clearly illustrates that strong mentoring relationships and programs are powerful tools that have a positive impact on careers and organizations.

According to Gartner: • 25% of employees who are mentored had a salary grade change, compared to only 5% of employees that are not mentored • Mentees are promoted five times more often than others

Let’s take a moment and dissect this rhyme to see how it should influence our mentoring efforts in our present day organizations.

SOMETHING OLD History. Lessons learned. These are things that only experienced employees can offer. We miss the treasure trove of organizational knowledge when we do not involve our more experienced team members. Too often, mentoring looks to a few “go to” people when so many people have some things to offer. We have a big challenge in front of us. Many experienced team members and leaders will be gone soon due to retirement or the choice to change roles based on their priorities. We have a responsibility to involve as many of them as possible in mentoring others to pass down the organizational history and knowledge they hold for us.

• Retention rates for mentors and mentees are higher than others

SOMETHING NEW

According to the Harvard Business Review:

New skills. New perspectives. New workers entering the workplace bring new knowledge, skills, and viewpoints. Unfortunately, we ask people to pay their dues and learn, stick to their knitting, and to stay in their lane.

Essentially, we send messages to new people that they must put their time in before they have anything to offer. The truth is new employees can be excellent mentors for older employees wanting to keep up with technology changes or to retirees or to people who took off time from work.

• 84% of CEOs say mentors have helped them avoid costly mistakes and become skilled in their role faster • 69% of CEOs say they made better decisions because of a mentor We know mentoring works. However, we have used mentoring in such a limited and traditional manner. Typically, mentoring occurs for new employees, employees that have made a significant career transition or high potentials. We look to successful executives to mentor the perceived up and coming. The reason it works…relationships.

Mentoring creates connections, confidence, support, and more because we are building productive, meaningful relationships between the right people at the right time. Mentoring is similar to marriage. We are committing to someone when we mentor them. There is only one problem. We see mentoring relationships as one-way; a lead and learner. In truth, these relationships are partnerships. Mentors consistently acknowledge that they learned and gained as much or more than the mentee. In a mentor-mentee relationship, both individuals at times play both roles. Let’s take the marriage metaphor a little further. Marriages are about creating a family by bringing two families together. It is an inclusion story. Mentoring is an inclusion story as well.

We all remember the traditional wedding rhyme, “Something old, something new, something borrowed, something blue, and a sixpence in your shoe.” The phrase started as a Victorian-era rhyme that originated from the English country Lancashire. Over the years, what each “something” represents has changed in meaning. I have taken that rhyme and adjusted it for mentoring and today’s organizational life.

“Something old” stands for sharing history and learnings over time; “something new” shows the powerful insight new perspectives can bring; “something borrowed” symbolizes networks and relationships; “something blue” represents color meaning diversity and a sixpence in your shoe refers to the financial benefit to individuals and companies that mentoring creates.

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SOMETHING BORROWED Networks. Our relationships. People can borrow or use our credibility to gain the information and perspective they need. Older workers have strong relationships with their contemporaries. When they make their contacts available to others, they can improve someone’s knowledge, productivity, and create innovation. Younger workers have vast social networks that companies and older workers can utilize for marketing, PR, influence, and research purposes. While networks by age group differ significantly, each has value if tapped appropriately. We can borrow each other’s networks to strengthen us individually and collectively as a company.

SOMETHING BLUE Diversity. Inclusion. Whether you are thinking about gender, people of color, religion, thinking styles, regional differences, or many other ways to define diversity and inclusion, one thing is for sure, we all have blind spots. Creating bridges means connecting people across differences. If I am a white male over 40 at the C-Level, maybe I need to be mentored; not by another executive that looks like me, but by someone uniquely different than me. Exposure to people from different backgrounds and experiences opens our minds to new ideas and ways of thinking. However, we tend to think about inclusion mentoring by pairing young people of color up with older executives that are people of color as mentors. There is nothing wrong with that, but that alone is limiting.

As an executive, someone on the shop floor could mentor them. We will then begin to understand what their lives are like and their struggles. What

are their days like? How do our policies and approaches affect them and their families? We can use this type of relationship to foster the culture we want rather than the culture we have.

Mentoring needs to move from a limited exclusive organizational tool to a scalable inclusive tool. Mentoring must shift from a top-down approach to a lattice approach. Mentoring relationships can be lateral, horizontal, and diagonal on the organizational chart. These relationships may not even be or in some cases, should not be related to the organizational chart. If we are trying to attract more women to our company, specifically women that left the workforce to have children and now want to reenter the workforce, maybe key executives need to be mentored by women who have left the workforce and returned to work. Company goals, personal needs, and personal growth must drive mentoring.

To make this a reality, we must create a mentoring culture. Rather than pushing a formal program, we need to start pushing it as an expectation. It is and needs to be a vital aspect of modern work culture. We can support this effort with the utilization of technology to connect people. The combination of mentoring as a part of your culture and technology to help it allows a company to make mentoring a true business priority.

To put your best foot forward, follow in these best practice footsteps: • Encourage people to be authentic and demonstrate integrity

• Have those participating recognize each other meaning their whole person and uniqueness rather than solely job-related facets • Mutual respect is key. Each person should feel more valuable from the experience rather than less.

• There are no directors in mentoring. We must allow the learning to occur. We cannot and should not be fixers.

• Look for connections beyond job tasks and business acumen.

When we think about mentoring, we should think of the word empathy; the ability to understand and share the feelings of another. In today’s fragmented world where we work in the same building but know less about one another, mentoring can reduce those gaps. Mentoring provides proximity. The concept of bringing different people closer together. That proximity changes one’s perspective and creates inclusion. Inclusion is that sense of being valued for what you bring to the table, including your uniqueness and that sense of safety that comes from being understood and accepted for who you are. Empathy is knowing that when decisions are made, people like you are thought about, and your interests are kept in mind. Empathy is an important ingredient of inclusion and can be accomplished by mentoring relationships.

What if everyone one at your organization felt that sense of empathy and inclusion? Start now by building relationships, creating connections, and driving informal mentoring as a part of your culture.

• Create best practices for mentors and mentees to help people map out success • Make confidentiality a cultural expectation for these relationships • Encourage people to be clear about the goals they have along the way • Recognize that the mentor-mentee relationship can be fluid

STRENGTHENING BRANDS

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

F&H Solutions Group can help you

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

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17

Supreme Court To Tackle Scope Of Title VII’s Prohibition On Sex Discrimination

By EDWARD H. TRENT

On Monday, April 22, 2019, the United States Supreme Court announced it would review three cases, Bostock v.

Clayton County, GA, Altitude Express, Inc. v. Zarda, and R.G. and G.R. Harris Funeral Homes, Inc. v. EEOC. In doing so, the Court will consider whether Title VII’s prohibition on discrimination “because of ... sex” necessarily includes a prohibition on discrimination because of sexual orientation and/or transgender status. For decades, Congress has declined to amend

noting that Ms. Hopkins was penalized for failing to meet certain sexual stereotypes, namely perceptions on how women should dress, speak and act. Aggressive speech and an overbearing management style were cited as reasons to deny her promotion to partner, while several of her male colleagues engaged in similar behavior but were nonetheless promoted. This disparate treatment resulting in the loss of a promotion proved sufficient evidence that Ms. Hopkins was discriminated against because of her sex, as a majority of the Court held, even if they could not agree on the terminology to use.

Title VII to explicitly include sexual orientation and/or transgender status (gender identity) as protected classifications under Title VII. With an increased focus on LGBT issues in the courts and in society over the last decade or more, the Supreme Court will now weigh in on whether the 1964 statute should be read to include sexual orientation and/or transgender status as protected classifications.

What Does Title VII’s Prohibition on Discrimination Because of Sex Mean?

Prior to 1989, the courts which have evaluated Title VII’s prohibition on discrimination because of sex unanimously concluded that the statute prohibited the favoring of men over women and did not cover sexual behavior or sexual orientation. The statute’s purpose was to provide a level playing field in the workplace for both women in comparison to men and for men in comparison to women. In 1989, the Supreme Court issued its decision in Price Waterhouse v. Hopkins, which, although failing to result in a majority opinion, has been cited as a paradigm shift in the application of Title VII. At the heart of the issue in Price Waterhouse was whether Ms. Hopkins was discriminated against because of her sex when she was denied a promotion for “unbecoming” behavior that her similarly situated male colleagues were permitted to display without consequence. What would normally have been a simple case of whether Ms. Hopkins was held to a disadvantageous term or condition of employment in comparison to her similarly situated male colleagues has become far more due to the plurality 18

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The question the Supreme Court is asking in the R.G. and G.R. Harris Funeral Homes case is whether a plaintiff may state a claim simply for failing to abide by sexual stereotypes. The Court’s question begs the question of whether Price Waterhouse changed the analysis when it comes to Title VII’s prohibition on discrimination because of sex. Yet, opinions from the Supreme Court after Price Waterhouse would tend to answer that question in the negative. As Justice Ginsburg made clear in her concurring opinion in Harris v. Forklift Systems in 1993, "The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." The Supreme Court adopted Justice Ginsburg’s standard for interpreting Title VII when it issued its decision in Oncale v. Sundowner Offshore Servs., Inc. in 1998.

Does Title VII Prohibit Discrimination on the Basis of Sexual Orientation?

Under the Ginsburg standard, a practice that does not subject women to a disadvantageous term or condition of employment when compared to their male colleagues is not sex discrimination under Title VII. When analyzing a claim of discrimination based on sexual orientation, men and women are held to the same standard and thus, any discrimination because of the individual’s sexual orientation is not discrimination “because of ... sex.” This is the case because even if sexual behavior and sexual attraction are “the sin quan non” of sexual stereotypes, such a stereotype does not disadvantage women versus men or vice versa.

In Bostock, the plaintiff asserted he was discharged for participating in a gay softball league, while the county claimed he was terminated for misuse of funds. In Zarda, the plaintiff, a tandem high-dive instructor, asserted he was terminated for being gay, while the defendant claimed he was terminated for inappropriate touching of a female customer.

While the United States Court of Appeals for the Eleventh Circuit upheld its prior precedent in Bostock that Title VII did not prohibit discrimination on the basis of sexual orientation, the United States Court of Appeals for the Second Circuit reversed its prior precedent when, in Zarda, it opined that discrimination based on sexual orientation was a form of sex discrimination. The Second Circuit recognized that the term “sex” under Title VII “means biologically male or female” in reaching its conclusion that making an employment decision based on an employee’s sexual orientation applied an impermissible sexual stereotype in violation of Title VII. In an effort to support the often required “comparator evidence” (a similarly situated person not of the protected classification who was treated more favorably), the Second Circuit held that had the plaintiff been female and involved in a romantic relationship with a male, the plaintiff would not have suffered the same fate, in this case termination. In following the United States Court of Appeals for the Seventh Circuit’s analysis of “only changing the sex of the plaintiff and leaving all other factors the same,” the Second Circuit changed two relevant factors, both the person’s sex and the person’s sexual orientation by comparing a homosexual male to a heterosexual female. Such a comparison fails to compare two people who are similarly situated, especially when the (previously non-covered) factor is sexual orientation and that factor is discounted as of no consequence. Yet, the Second Circuit concluded that, based on its comparison, “sexual orientation is a factor of sex” and, therefore, protected under Title VII. The Supreme Court will have to determine the proper analysis for applying Title VII’s prohibition on discrimination because of sex. It is unknown whether the Court will hold that the application of a “sexual stereotype” is in and of itself a violation of Title VII even if that alleged stereotype applies equally to both men and women as in the Zarda case, and if so, what constitutes an impermissible sexual stereotype.

Because Bostock and Zarda reached opposite conclusions on the same legal question, the two cases have been consolidated for briefing and oral argument.

Does Title VII Prohibit Discrimination on the Basis of Transgender Status?

In R.G. and G.R. Funeral Homes, the United States Court of Appeals held that a person’s transgender status or intent to undergo a gender transition was a protected status and that discrimination against a person on the basis of transgender status or an intent to undergo a gender transition was discrimination because of sex. The Sixth Circuit held that the Funeral Homes’ decision to terminate a male funeral director who announced that, upon his return from a vacation, he would appear and dress consistent with the female dress code violated Title VII. The Sixth Circuit found that the decision necessarily considered the employee’s sex and, therefore, violated Title VII because an employee’s sex “must be irrelevant to employment decisions.”

The Sixth Circuit also found that a person’s gender non-conforming behavior could not be considered because to do so would be to apply an impermissible sexual stereotype. Relying on Price Waterhouse, the Sixth Circuit held that if a female employee could not be denied a position for failing to wear make-up and wear dresses, then a male employee could not be denied a position when he did. According to the Sixth Circuit, “discrimination based on a failure to conform to stereotypical gender norms” violates Title VII. The Supreme Court has asked the parties to address two issues in this case. First, the Court will consider “whether Title VII prohibits discrimination against transgender people based on their status as transgender.” Second, the Court will consider “whether Title VII prohibits discrimination against transgender people based on ... sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 288 (1989).” How the second question is answered will likely have a significant effect on how the Court decides the cases of Bostock and Zarda. A ruling is expected late spring 2020, but no later than the end of the Supreme Court’s next term in June 2020.

Edward H. Trent, Member Wimberly Lawson Wright Daves & Jones, Pllc Knoxville, Tennessee Office Etrent@Wimberlylawson.com

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19

How to better engage your stressed employees

By BLAKE ROGERS, JIMMY HINTON, and WES HUDNALL

Your employees have enough tasks on their plates. They’re managing personnel, serving customers and working hard to satisfy you, their employer.

But are they spending enough time thinking about their stress levels and how to improve their overall wellbeing?

Probably not.

Why is their stress your problem? Because stressed employees report lower job satisfaction, less job stability and less engagement with their employer than their non-stressed coworkers, according to new research from Colonial Life. Here’s a quick summary of the research: • Job satisfaction: 21% of employees who describe their daily lives as “high stress” report no satisfaction in their jobs. Meanwhile, only 6% of employees with “no,” “some” or “moderate” stress report no job satisfaction.

• Job stability: 13% of highly stressed employees say they plan to leave their current job in the next six months. That’s twice the level of employees who say they experience lower levels of stress.

personalized benefits options that can support employees’ wellness while adding little to no cost to the plan. This is where many voluntary benefits, paid for directly by employees, can be helpful.

Communication equals engagement You can ensure you’re using effective communications that engage employees in all the resources you have to offer. Nothing works well if employees don’t know about it.

That point is made perfectly clear when you look again at Colonial Life’s research and consider the impact of employees who understand their benefits: • Job satisfaction: 45% of employees who say they understand their benefits very well report high job satisfaction. Meanwhile, just 6% of employees who understand their benefits report no job satisfaction.

• Job stability: 31% of highly stressed employees say they understand their benefits plan to stay with their current employer for more than 10 years.

That’s four times the level of employees who say they will leave in the next few months.

• Engagement: When asked how their employer makes them feel, 36% of employees who say they understand their benefits feel “highly cared about.”

Just 13% of those employees say they don’t feel cared about.

Employees who understand their benefits – whether they are the best money can buy or just good enough – are more engaged at their workplace, more satisfied and more likely to stay.

Step up the communications

• Engagement: When asked how their employer makes them feel, 26% of highly stressed employees say their employer makes them feel “not at all cared about.” That’s, again, twice the rate of employees with lower stress levels.

With at least four generations (Baby Boomers, Gen X, Millennials and Gen Z) now occupying the workplace, the time has passed for putting up a simple benefits flyer or mailing a package to every employee’s house and hoping everyone reads and understands it.

And that’s not all. Employees who experience high levels of stress in their daily lives are one bad day away from creating an expensive job vacancy.

Today’s employees require a personalized approach to understanding and enrolling in benefits. Your communications strategy should use a variety of tools, including:

But there’s good news.

If you pay some extra attention to the emotional wellbeing of your employees, you can enjoy high rates of employee retention. Here’s where a comprehensive look at employee benefits can help.

• Printed materials

• Home mailings

• Workplace fliers

• Emails

• Personalized website

• Groups meetings

Support employee wellbeing

• 1-to-1 benefits counseling session

• Manager training

Employees have a lot of ideas about how their employers can help alleviate the stress, leading with additional salary and paid time off. Other top requests are additional retirement contributions, more flexible work schedules, additional medical coverage, more flexible work locations and wellness programs and discounts.

Some of these can be costly and time-consuming to implement for your businesses. But not all of them have to be. There are a variety of ways that employers can help their workers manage their emotional wellbeing and mental health.

It all starts by making wellness a priority in the workplace. Your managers could already be aware of employees that are financially struggling or have gotten feedback about employees not understanding their benefits. If that’s the case, there should be a shift in focus to ensure their employees are aware of the resources their employer offers they need to be emotionally, physically and financially well.

Next, you should consider what educational resources you have. To set employees up for success, there must be communication to help bridge the gap between their wellness needs and client expectations.

As the employer, you can provide an assessment of the current benefits offerings. With the help of a trained benefits counselor, you can help them identify any gaps in current coverage. You can support them by providing 20

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While every employer won’t – and shouldn’t – utilize each of these communications strategies, you should ensure employees get the help they need when they need it. Picking one printed solution, one online solution and one in-person solution over the course of the year, for instance, might provide employees the range of vehicles they need to get the information they require.

And that should engage and educate workers, and lower your stress level in addition to the stress suffered by your employees.

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

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

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

Committed to our customers — and our communities We offer our insurance benefits to every worker with a family and future to protect. And a helping hand to the communities where we work and live.

See what we can offer you.

ColonialLife.com ACCIDENT  CANCER  CRITICAL ILLNESS  DISABILITY  DENTAL  LIFE  HOSPITAL INDEMNITY Insurance plans are underwritten by Colonial Life & Accident Insurance Company, Columbia, SC. ©2018 Colonial Life & Accident Insurance Company. All rights reserved. Colonial Life is a registered trademark and marketing brand of Colonial Life & Accident Insurance Company. 10-18 | AD-104

How HR Can Keep Their Company’s Drug Testing from Going to Pot

By JULIE HENDERSON

Screening job candidates and current employees for drug use has been a commonplace practice for more than a decade. A variety of testing options such as urine, saliva, and hair make it easy and quick for employers to gain insight into a person’s drug habits.

The advantages of using a drug screening process is well-documented. Employees who are drug users are more likely to miss work, be late for work, and cause accidents in the workplace than their non-using co-workers. In addition, their lack of focus can affect productivity for themselves, and in some cases, their co-workers. Employers have traditionally viewed drug use as a red flag and may use the information to choose not to hire the job candidate. Current employees who are identified through drug testing either randomly or post-accident can typically expect actions to be brought against them such as a reprimand, drug treatment, or termination.

But what about weed?

While marijuana is still illegal under the Federal Controlled Substances Act, several states have passed laws permitting the use of it for either medical or recreational use. This trend is pushing employers to review and change their stance on drug screening. Should employers still drug test for marijuana? What should happen if an employee tests positive for it?

While this advice does NOT serve as legal counsel, here are some smart actions to take to re-invent your drug screening policy so it’s still relevant and helpful. “ Recreational marijuana should be treated like recreational alcohol, with the additional understanding that unlike alcohol, marijuana is still illegal under federal law. Therefore, as a general premise, employers should consider maintaining drug-free workplace policies.” ~ Jill Cohen, an attorney with Eckert Seamans Cherin & Mellott in Princeton, N.J. 22

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Set Consistent Practices by Job Description First off, employers have a right to protect their workplace. In the past, HR has had to limit the usage of other background screening processes to comply with EEOC guidance and other regulations protecting employees.

It’s no longer acceptable to check every job candidate’s credit report, for example.

HR must think about every process that is currently in place and its relevance in finding a person who can fill the position.

Action plan: Review your screening process by job description and make changes based on the required tasks. Treat all job candidates and employees under the same job description in a consistent manner with regards to screening.

Know Your State’s Laws Marijuana legalization is increasing, and chances are good there have been changes in the state your company operates, especially if your organization hires and retains employees in several states. For example, in some states, a positive drug screening result for marijuana does not automatically disqualify them from being hired. Some jobs, such as those in the transportation industry, are federally mandated to be screened with tests that DO include marijuana testing.

Action plan: Stay abreast of the laws and regulations and be nimble enough with your process to revise it as needed to stay in compliance.

Understand Medical vs. Recreational Medical marijuana usage should be treated differently than recreational marijuana. If an employee possesses a medical marijuana card, he or she can’t be fired on that basis alone.

Recreational marijuana is a different story.

Action plan: Know the difference in medical and recreational marijuana laws and have a plan for dealing with each one as relates to your screening process.

Consider New Testing Options HR should be aware that the types of drug testing they have used in the past may not

be enough as more states decriminalize marijuana. Saliva testing has been in the drug screening arena for several years but isn’t as universally popular as urine testing. For post-accident testing, saliva testing is a good option, as it can be argued that a person who tests positive with a saliva test is impaired at the time of the test.

Action plan: Consider adding saliva testing to your overall drug screening process.

Consult with Legal Counsel By working closely with an experienced attorney, HR can feel confident they are moving the company’s drug screening process in the best direction.

Action plan: As with any important decision, HR should speak with their organization’s legal representation that is thoroughly versed in the latest information regarding drug screening and the state laws where you operate.

Accept This Isn’t A Set-and-Forget Situation Identifying issues with your drug screening policy and editing it to account for the new marijuana laws are ongoing tasks for HR. The attitudes and trends in what are legal and acceptable are changing every year.

Action plan: Be prepared to consistently revise your policy to maintain both a safe workplace and a compliant screening policy.

HR shoulders the majority of the burden in handling their employer’s drug screening process to ensure it’s relevant, fair, and within legal boundaries. By following these tips and taking time to understand the laws in your state, you can maintain a process that is fair to your applicants and employees while still protecting the safety and productivity of your workplace.

Julie Henderson, Director of Sales

Data Facts, Inc. jhenderson@datafacts.com www.datafacts.com

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The Performance Review Evolved

By AUSTIN BAKER

Love them or hate them, employee performance evaluations are here to stay. The task most HR departments nowadays are tasked with are finding methods to overhaul our review systems to make these oftenmindless-and-useless meetings • More effective for the company • More effective for the employee

At work, frequent coaching conversations allow an individual to address and develop in terms of personal and professional development. The performance management trend towards coaching conversations and continuous learning has been driven in part by the increasing recognition of the power of growth mindset and continuous learning.

• Easier

Performance Management Will Focus on How to Make Employees and Managers More Effective

Leading a high-performing team in today’s dynamic work environment first means properly leading the team’s individual players. How? Shifting your style and your mindset from the dated conception of performance management to one that focuses on employee development. In defining this shift, you’ll see how this focus breeds highlymotivated employees and the ability to crush performance goals.

During performance appraisals, HR is primarily concerned with employee engagement — and for good reason. Highly engaged employees are loyal employees who will go the extra mile to get their work done. As a result, employee engagement technology has grown significantly recently.

Holding onto staff by recognizing, developing and challenging them sets a modern thriving enterprise apart from one destined to stagnate and fold.

Swapping out the mindset of performance management for employee development means providing a work environment where modern employees don’t feel stuck in a repetitive rut, where they aren’t pushed beyond the boundaries of their greatest potential. This is key to developing the loyalty and engagement of your rockstar employees.

Let’s get to how to make this happen.

Feedback will Need to Be Supported By Regular Coaching Conversations The performance management debate has focused heavily on the importance of frequent, real-time feedback. However, the quantity of feedback is not a silver bullet that will magically produce a workforce of engaged and productive employees. If companies want to achieve genuine performance gains, frequent feedback needs to be accompanied by regular coaching conversations, during which the manager and employee step back and reflect on the feedback that has been given, using it to discover strengths and highlight areas for development.

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In 2019 we are seeing a new trend - the optimization of productivity and performance, on both an individual and team basis. In other words, now that we have measured engagement, it is time to take action and improve it with the aim of making employees more productive.

According to Gallup, the biggest factor in terms of employee engagement is an employee’s manager. With this in mind, performance management and performance management technology will need to focus more on supporting and empowering people managers to be more effective and enabling employees to bring their best selves to work. This, combined with wellbeing initiatives, will play a vital role in boosting employee productivity.

Separating evaluations and compensation Many companies that have moved to continuous feedback have also taken the next step and separated performance evaluation from any discussion about compensation.

The idea of disconnecting formal performance evaluations and compensation decisions feels counter-intuitive. Most companies have always linked evaluations, comparative ratings and compensation.

Top performers get above average compensation and increases. Poor performers see below average pay, and most are compensated around the market average for their jobs and seniority.

The problems with this approach also cluster in the middle, however. There is always a limit to the available compensation budget. If a manager has already decided to pay one employee slightly more than his or her peer, they might be tempted to tweak ratings to justify the difference. When employees find out about the ratings difference, they are likely to be demoralized, and lose engagement with the organization over time. Over time, employees come to see things as a horse race and are more likely to undercut each other instead of working together.

Businesses will opt for continuous performance management software over appraisal software As we mentioned earlier, annual performance appraisals are falling out of favor and regular one-to-one performance discussions and feedback are becoming the de-facto way of managing performance. In 2017, an increasing number of organizations approaching us who have tried to move informally to a continuous performance management approach, without using dedicated software, have failed to get traction.

The principles of continuous feedback and regular check-ins are simple and managers like this approach, but new habits take time to develop. So having software that actively encourages these ways of managing performance, reminds people of what they need to do and when to do it.

These reports provide visibility to HR of who is and isn’t doing it is essential for success.

We’ve also spoken to many companies who have tried to customize their existing appraisal software to support a more agile, continuous performance management approach and it hasn’t worked. When software is changed to do something that it wasn’t originally designed to do, it ends up feeling ‘clunky’ for users and becomes a barrier to good performance management.

For these reasons, we predict that there will be an acceleration of companies procuring purposebuilt continuous performance management software rather than annual appraisal software.

Austin Baker, President HRO-Partners

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

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

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

hropartners @hropartners

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Microchip Implantation of Employees

By DAVEANTE JONES

In an ever-evolving world fueled by technology, microchip implantation of employees has become a way to assist employers in making their workplace more efficient, productive, and secure. As is expected, however, many people are still uneasy about the new trend.

Microchipping started out as a tool for projects focused on health uses like heart-rate or blood-sugar monitoring. Then it made its way into the employment sector. Back in 2004, Mexico’s attorney general and at least 160 of his staff, including top federal prosecutors and investigators, were implanted with microchips to get access into restricted areas inside the attorney general’s headquarters. See Will Weissert, Microchips implanted in Mexican officials, NBCNEWS. COM (July 14, 2004, 9:21 P.M.), http://www.nbcnews.com/ id/5439055/ns/technology_and_science-tech_and_gadgets/t/microchips-implanted-mexican-officials/#.XNLjXspKiUk. A January 2019 Fortune magazine article reported that more than 4,000 people in Sweden and other parts of Europe have been “chipped” by a small Swedish startup—Biohax International. See FORTUNE, Is ‘Biochipping’ a Good Idea, http://fortune.com/longform/ biochipping-biohax-microchip/. A report by MarketsandMarkets Research in India estimates that the global biochip market will be worth about $17.75 billion by 2020. See MARKETSANDMARKET RESEARCH, Biochips Market Worth $17.75 Billion by 2020, https:// www.marketsandmarkets.com/PressReleases/biochips.asp.

Recently, Biohax teamed up with Three Square Market to bring microchipping to Wisconsin. Employees from Three Square Market, a tech company, had small microchips the size of a grain of rice implanted between their thumb and index finger. According to MIT Technology Review, as of last August around 80 of the company’s 250 employees had microchips. See MIT TECHNOLOGY REVIEW, This Company Embeds Microchips in its Employees, and They Love It, https://www. technologyreview.com/s/611884/this-company-embeds-microchipsin-its-employees-and-they-love-it/. The employees are able to enter the workplace, log onto their computers, and get snacks from the vending machine with the wave of a hand. While it may seem like microchipping is new to the United States, it dates back until at least 2006. It was then that CityWatcher.com, a Cincinnati video surveillance company, implanted some of its employees with microchips to experiment with restricting access to vaults where data and images were kept for police departments that the company was providing surveillance for. See Company Implants ID Chips into Employees’ Arms, FOXNEWS.COM (last updated Jan. 13, 2015), https://www.wnd.com/2006/02/34751/.

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Although microchipping is not prevalent in American workplaces yet, state legislatures have started passing laws regulating microchip implantation to prepare for the impending workplace trend. One of the most recent states to pass a law is Arkansas. State Rep. Stephen Meeks, chair of the Arkansas legislature’s Technology Committee, introduced Act 516, which prohibits employers from requiring employees to undergo microchip implantation. The reporting surrounding Act 516 when it was initially introduced highlighted that there are no Arkansas businesses currently using employee microchip implantation. Wanting to be proactive, however, Rep. Meeks stated, “The idea here is to set the ground rules before the technology comes to our state to protect workers[.]” See Jessi Tenure, 2019 Session: Bill Would Regulate Microchipping Employees in Arkansas, KARK.COM (last updated Jan. 22, 2019, 5:47 PM), https://www.kark.com/news/localnews/2019-session-bill-would-regulate-microchipping-employees-inarkansas/1708706584.

Arkansas is a part of a small number of states, including California (CAL. CIV. CODE § 52.7), Maryland (MD. CODE ANN. § 20-1902), Missouri (MO. REV. STAT. § 285.035), North Dakota (N.D. CENT. CODE § 12.1-15-06), Oklahoma (OKLA. STAT. tit. 63, § 1-1430), and Wisconsin (WIS. STAT. § 146.25), that are currently regulating microchip implantation. Be that as it may, other than Arkansas, these laws only prohibit employers from requiring employees to undergo microchip implantation. Therefore, issues such as who pays for microchip implantation when employees do choose to participate, who pays for any medical issues that may arise from microchip implantation, and the removal process when an employee resigns or is terminated are left up for debate.

Arkansas’ Act 516, among other things, requires employers to: (a) g ain written consent from employees before microchip implantation; (b) h ave the microchip removed within 30 days of the employee’s request for removal at any time; (c) p ay all the costs associated with implanting and removing the microchip; (d) p ay all the medical costs incurred by the employee as a result of any bodily injury to the employee caused by the implantation of the microchip or the presence of the microchip in the employee’s body; and

(e) disclose to the employee the data that may be maintained on the microchip and how the data that is maintained on the microchip will be used by the employer.

Most of the laws do address the ramifications of violating the prohibition. California, Maryland, Oklahoma, and Wisconsin law mandate a $10,000 fine for any employers who violate the prohibition, while Missouri and North Dakota classify a violation of the prohibition as a class A misdemeanor.

Another state that is attempting to regulate microchip implantation is Nevada. Nevada Assemblyman Skip Daly recently introduced a bill in the state’s most recent legislative session that would prohibit microchip implantation altogether for state employers if it is not for certain health-related purposes. The United States Transhumanist Party believes this goes too far. The party filed a letter in opposition of the bill arguing, among other things, that the health-related purposes exception is too narrow and interfering with a person’s right to microchip implantation could possibly implicate the Americans with Disabilities Act as the microchip may be a reasonable accommodation for disabled individuals who may need an easier way to access building areas. See United States Transhumanist Party, Letter of Opposition to AB 226, https://www.leg.state.nv.us/App/NELIS/ REL/80th2019/ExhibitDocument/OpenExhibitDocument?exhib itId=41573&fileDownloadName=AB%20226_Letter%20of%20 Opposition_Justin%20Waters%20United%20States%20Transhumanist%20Party.pdf.

The efficiency and security benefits of microchipping are hard to ignore. This highlights the inevitable issue that will arise when microchip implantation becomes the norm and not the exception— the peer pressure employees may feel that make them feel obligated to undergo microchip implantation. Many employers will have to figure out how to navigate this. Take for instance, Arkansas’ Act 516 prohibits employers from coercing employees into consenting to undergo microchip implantation, creating a hostile work environment for employees who choose not to undergo microchip implantation, and withholding company advancement and salary or wage increases from employees who choose not to undergo microchip implantation.

Employers who choose to partake in microchip implantation will have to develop policies that coincide with these types of restrictions.

Any employer considering jumping into the world of microchip implantation should approach it carefully. Ensuring compliance with state law, obtaining consent from employees, and being transparent about all aspects of the microchips’ use will help avoid potential legal issues. In addition, making it thoroughly clear that employees are in no way obligated to undergo microchip implantation is vital.

Daveante Jones Associate Attorney Wright Lindsey Jennings dljones@wlj.com www.wlj.com

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Will They Stay or Will They Go? Retention in the Age of Choices

By JANIE WARNER

The seasoned HR manager/director/executive will tell you: “If you want to know what your employees are thinking, just ask them.”

Traditionally we have done this through two methods: the anonymous “employee engagement survey” or the “exit interview”.

Although both can provide some useful information, they can be problematic. The anonymous nature of the engagement survey means we cannot directly address what may be some very serious or alarming issues. And the exit interview means we haven’t bothered to ask about working conditions until an employee is an ex-employee. Neither provide the information that is needed in a timely manner. That is not to suggest that both should be eliminated, but rather there needs to be a third piece of the puzzle.

Today’s Economy Everyone has seen the statistics: historically low unemployment numbers and growing economic numbers that signal that production and services are rising as well. When unemployment is low, your best employees are being poached by other companies – whether you see it or not.

To be sure, the old HR adage rings true: “Good employees always have choices”.

In this reality, retention becomes a priority.

Beyond the pain of finding new employees in an economy where just about everyone who wants to work has a job, there is a significant economic impact in losing a well-trained employee.

The costs of hiring a new employee and the lost productivity until the new hire is fully functioning in their role are significant.

Being pro-active to prevent the employees you want to keep from leaving your organization is now more important than ever before. What is an HR professional to do?

Compensation and Benefits Of course it goes without saying that in this economic boom, companies must prioritize not just comparable pay but truly competitive pay.

This includes benefits as well. Reviewing all your benefit programs is important every year, but even more important when you want to be sure you are offering the same or better than your industry competition. Making sure your compensation strategies are aligned with the 28

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market is imperative to ensure you won’t lose your star employees because your competition decides to up the ante and pay better.

• What are some things our company does not do so well? Are these things bad enough to make you want to leave?

Every employee believes they should be paid more – it’s just part of the human condition. But those “extras” – i.e. benefits and perquisites can be tricky to predict the value to your staff. Do you offer pet insurance? Dry cleaning services?

On-site daycares or concierge services? You could add all of those. But if your employees do not find them valuable, you may just be wasting corporate resources.

• If you could make a Christmas list of wishes to make your work experience better, what would the top three things be?

Asking the Right Questions So how do you know what is important to your employees? Simple answer - ask them.

As mentioned above, companies have been attempting to garner information either anonymously or after an employee has become disenchanted with their employer and decides to leave. Employers should not just consider how they ask, but when they ask by asking the people who choose to continue to work for them.

The “Stay” Interview Although not a new idea, the stay interview hasn’t garnered nearly the attention exit interviews have. While some employers may believe if you ask employees who aren’t leaving what they like and dislike about the company they may stir up discontent, others have found the exercise of telling employees their opinions matter has its own rewards.

A best-kept secret - employees LOVE to share their opinions. As we saw during the 1980’s and the “continuous quality improvement” movement, the people closest to the processes often have the greatest insight into what works and what doesn’t. The same applies here.

Employees who spend their days working within the corporate systems are in the best positions to tell you what works, what doesn’t, and how these systems are perceived by themselves and others. Creating an atmosphere where they are asked serious, thoughtful questions and given the opportunity to discuss their answers and observations with a member of the management and/or executive staff is ideal.

The questions should be carefully considered – and asked consistently each time the interviews are held. Some good questions to ask include: • When you wake up in the morning, what makes you excited to come to work?

• What do you do personally to make our workplace better?

The interviews should be held either one-onone or even in a group setting. If done in small groups, be sure not to have too many people as the meetings can get out of hand. Three to five people would be ideal.

Following Up One of the main criticisms of engagement surveys is the length of time between completing the surveys and getting feedback. Often, there is no feedback at all and employees are left to believe they wasted their time completing the questionnaires because executive management never reports back on any of the findings.

With stay interviews, it’s important to set the expectations up front. Announce the start of the stay interview program and what it will look like. Assure the employees that if they agree to the interview, their input will be carefully considered and will be discussed as part of the corporate strategic planning process. Be realistic, however, and let them know some suggestions and recommendations may not be feasible, but they will be given appropriate feedback once those decisions are made.

Finally, be sure to conduct these meetings often and on-going. Make it a regular part of your employee interactions. Invite employees with varying lengths of tenure – and compare and contrast how employees view various work situations based on the amount of time they have been employed.

Will you be surprised by some for the answers?

Yes, certainly. Will you hear things you already know but haven’t addressed? Yes, you will. Can you increase your employee retention by seeking the input of those people who choose each day to show up, do their work well, go home and come back the next day? You bet! Isn’t it better to know what might cause someone to leave rather than hearing why they are leaving as they walk out the door? Of course.

It’s a simple concept.

Isn’t it worth a try?

• What do you think gets in the way of you reaching your full potential at work?

• When was the last time you felt that management really listened to you or your co-workers?

• What are some things that our company does well that makes you want to stay?

Janie Warner, SHRM-SCP National HR Practice Leader McGriff Insurance Services, Inc. janie.warner@mcgriffinsurance.com

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Actions Employers Can Take to Build a Comprehensive Strategy on Mental Health and Substance Abuse

By CRISTIE UPSHAW TRAVIS

I’ll

So what should employers like Rick’s be doing about this addiction epidemic?

A couple of years ago, when Rick didn’t come down for dinner, his Dad went upstairs to get him and then life changed forever. An accidental overdose not only took Rick’s life, but impacted all of those around him in profound and lasting ways.

Know the Impact

call him Rick. This is not his real name, but he was a real person, son, brother, friend, colleague, and a favorite employee at a fine dining restaurant where his natural talent of hospitality was recognized and appreciated by customers and management alike.

At the Memphis Business Group on Health we have adopted a nationally endorsed framework to guide our work and to ensure that employers are addressing all the major components needed to have a comprehensive strategy. This framework includes: Break the Silence Provide Access to Affordable, High-Value Care

Clearly the impact was greatest on those who loved Rick, but the ripple effect on his work colleagues and his managers at the restaurant was also significant.

Build a Culture of Well-Being

Let’s start with the business impact. Research from the National Safety Council and Shatterproof tells us that for Rick’s employer (who I can imagine operating a regional chain of restaurants with 1,000 employees) about 13% of his employees suffer with addiction. Opioid addiction accounts for about 9% of those with addiction. The total cost of all kinds of addiction is estimated to be $350,000 a year.

Employers should understand how addiction is impacting their business.

A recent report from the Health Care Cost Institute shows that for commercially insured, inpatient treatment utilization for substance use has increased 18% since 2013 and the total spend has increased 64%.

But health care cost only accounts for $100,000 of Rick’s employer’s costs. Other costs include about $103,000 in lost time and $146,000 in job turnover and retraining.

Research also estimates that approximately 14% of his colleague’s family members also suffer from addiction. Employees with addiction in the family tend to miss more work and their own productivity suffers due to preoccupation and worry about their loved ones.

But the impact is not just financial. Rick’s colleagues and his employer are his work family and they want the best for him. They see him every day until one day they don’t.

The personal impact at work is also high.

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Know the Impact

• Use the calculator at shatterproof.org to estimate the employee and financial impact at your business.

• Review your health care claims (including pharmacy) for addiction services, but remember that health care costs maybe less than 1/3 of your total costs.

• Include use addiction questions on health risk assessments.

Employers should also identify specific worksite safety issues associated with addiction, especially opioid use since it is accompanied by impaired thinking and slower reaction time.

• Download the Prescription Drug Employer toolkit at nsc.org to get more information.

Break the Silence The 2017 National Survey on Drug Use and Health revealed that almost 40% of respondents indicated they didn’t seek treatment because of stigma and bias!

Many are beginning to think about substance use as a chronic condition, much like diabetes or high blood pressure. Recognizing the chronic nature of a clinical addiction helps

employers breakdown the silos of physical health (such as diabetes) and substance use (such as opioid addiction) and integrate addiction treatment and recovery into the mainstream well-being and health insurance programs. Creating an environment where employees with substance use disorder feel as comfortable as a diabetic to seek treatment is the goal.

The National Safety Council suggests several steps employers can take to reduce stigma at the workplace include: • Openly discuss and provide educational programs on opioid use • Provide a confidential employee assistance program and help employees know they have this free resource!

• Use inclusive, non-stigmatizing language: instead of substance abuse, use substance use; don’t refer to addicts but to a person with opioid use disorder You can also consider establishing employee resource groups for peer support for those concerned about their own substance use or use among family members. Seek legal advice to ensure you are setting these groups up appropriately.

Provide Access to Affordable, High-Value Care Recent results from a National Association of Healthcare Purchaser Coalitions deep-dive into mental health and substance use practices within health plans shows there is significant work required to have the spirit of parity actually be realized.

The Center for Workplace Mental Health, a program of the American Psychiatric Foundation, has identified specific aspects of the treatment delivery system and insurance that need work: Network adequacy: having sufficient in-network options of essential mental health and substance use professionals is critical to reduce out-of-network use and the accompanying added costs.

Promoting mental health parity: although parity is the law, the deep dive showed that out-of-network use for mental health and substance use was higher than for physical health; recent court decisions have held plans responsible for using different approval/ denial processes for mental health/substance use than for physical health; and the reliance of employers on their plans to conduct compliance audits (of themselves) all point to significant work needed in achieving parity.

Advancing measurement-based care: Today it is impossible for patients, families, and employers to identify high-value providers – those that provide treatment that results in sustainable recovery over time. Having a measurement system that compares providers on key metrics will help in treatment selection and use.

Expanding a collaborative care model: Rethinking the role of primary care in mental health and substance use is essential to having sufficient numbers of providers to get care to people when they need it.

Expanding tele-health treatment approaches: Technology can connect people remotely and virtually with treatment thereby providing another resource to increase access to care.

For a full description of these priorities go to workplacementalhealth.org Build a Culture of Well-Being Employers now realize that creating a culture of well-being incudes focusing on the physical, mental, emotional, social, and financial health of employees and creating an environment that equally supports all of these.

Steps employers can take to successfully make this transition include: • Have genuine and visible support from leadership, which includes allocating adequate staff and financial resources to build and support this culture

champions in providing input into wellbeing programs; incorporate feedback from employees to refine strategies Check out the American Heart Association’s Mental Health: A Workforce Crisis at ceoroundtable.heart.org for more best practices.

Would Rick, his family and friends, his colleagues, and his employer have had a different outcome if this framework had been fully implemented? We can’t know the answer.

But we do know that a workplace culture that promotes and sustains well-being and provides opportunities for treatment and recovery will make it easier for those like Rick to seek help and that is the first step in making a lifechanging decision.

• Train managers to recognize signs and symptoms of substance use disorders and how to connect employees to the right resources • Deploy a comprehensive employee communications plan that addresses employees’ education, awareness, and understanding of stigma, psychological illness, substance use and safety relating to mental health and substance use.

• Involve employees in workplace decision making; identify and include employee

Cristie Upshaw Travis, CEO Memphis Business Group on Health ctravis@memphisbusinessgroup.org www.memphisbusinessgroup.org

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Now is the Time for a CHECK-UP and TUNE-UP of your Health & Welfare Benefits!

By MURRAY L. HARBER

As HR Professionals, we can get into the same routine when renewing health-related benefits programs we offer our employees for themselves and their families. We anxiously await the news from our brokers, consultants, and carriers to see the increase in premium needed to support the existing plan design. Most HR Professionals accept these increases and pass along these cost increases to the employees through cost-shifting methods and plan design changes.

When our CEOs and CFOs inquire about ways to mitigate these costs increases, we as HR Professionals seek out our brokers and consultants for solutions. They usually come back with the usual, rebidding the plans, adjusting plan design, cost shifting to the employees, and several other methods. You must remember that most of these groups are paid by the quantity of expenditures and not on the quality, aka, performance of the benefits. This is when we need to stop and take time for a “Check-up and Tune-up” of our benefits partners and vendors while learning from other employers who have seen improvements in quality, cost, and therefore the value of those investments.

THE CHECK-UP Over ten years ago, Southern Farm Bureau Life Insurance Company (SFBLIC), as a result of the senior leadership concerns with increasing health benefit costs, took the approach to question and expect more from its benefits consultants and vendors as they did a “Check-Up” on their health benefits programs. They began by using the HERO Health Management Scorecard, an evidence-based industry best practice assessment of all things health for employers. This assessment showed that they offered only 25% of the elements of the comprehensive program whereas today, they report over 85%.

The SFBLIC team with an aggressive focus, spent time learning from other employers across the country along with researching national trends to identify potential solutions for building a comprehensive set of benefits.

They also pushed their consultants and vendors to do more with elevated expectations. When they did not perform to these expectations, SFBLIC replaced them. They also utilized multiple data sources and analytics to identify key improvement areas within their benefits program. HR Professionals must think differently as we have a duty to our organization to spend time and resources to establishing the highest level of value in employee benefits for its employees and their families.

“We had to change our thought process on how we went about looking at our employee health benefits as the usual practices were not working to reduce cost and provide the highest level of value for our investments in time and money. We learned from our research that we, the employer, could spend time and effort to build our own self-insured plan to include value-based vendors which have reduced cost and enhanced value.”

Joyce Plunkett, VP of Human Resources, Southern Farm Bureau Life Insurance Company

THE TUNE-UP Knowing the need to identify new approaches, SFBLIC began a journey to “Tune-up” its offerings to improve value and performance. They have asked more from their consultants, changed their Third-Party Administrator and the Pharmacy Benefits Manager, and began adding a series of value-based solutions including wellness programs, an onsite clinic, disease management and bariatric surgery for metabolic health issues, and developed an integrated behavioral/mental health benefit. They also aligned incentives across the board to include a premium discount program for completing 32

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a series of actions for engaging into preventive health, behavior change actions, and offer health programs and services with no out-of-pocket costs to the employees and plan members.

SFBLIC has also worked on building a solid “Culture of Health” in the workplace where they have been awarded the “Healthiest Workplace in Mississippi” for many years and this year they were recognized as one of the Top 40 employers in the US for employee engagement by the Gallup organization.

It is our duty as HR Professionals to be better fiscal stewards of our companies’ resources and to create better benefits to attract and retain top talent. By tuning up the set of benefits and creating a benefits toolbox, you can reduce waste and improve engagement into these benefits which in turn can maximize the performance of these offerings.

THE CONSUMER Employee benefits are large part of the total compensation that an employer offers its employees. Employees do not always see it that way, which creates an opportunity for human resources and benefits professionals to offer up more ways to inform and educate on the value of such benefits. Most employees wait until an emergency to utilize a benefit where using them early in the process could avoid the many emergent situations all together.

Communicating benefits throughout the year and offering multiple opportunities to learn and engage these benefits is a critical part of a Human Resource Professional role in the organization. Too many times, I see these benefits outsourced which requires relying on the vendor to communicate the specifics which limits the performance of the benefit. A comprehensive communication and engagement strategy should be developed to ensure that employees know, value, and utilize these benefits on a regular basis. This “Down in the Weeds” approach will take more staff time in the short term which will reduce the staff time needed to answering questions and solving problems later in the process.

“Our team has spent a considerable amount of time in working with our benefits partners to create a system which provides more value by offering more specific levels of benefits. We have witnessed improved engagement and reduced cost as a result of these efforts. I recommend that all professionals in the human resources discipline take more time in crafting specific benefits offerings as these efforts make a difference in employee engagement and employment longevity.”

Melissa Robbins, Benefits Manager, Southern Farm Bureau Life Insurance Company

The time has come where Human Resource Professionals need to be committed to inspecting your benefits plans by working with consultants and vendors to design more effective benefits. Just like an automobile, you should do regular check-ups and tune-ups to reduce misfires and breakdowns which in turn will reduce financial waste and ensure greater value of investment. It is important to remember there is not a one-size fits all for benefit plans. Take the first step forward and begin by assessing your current offerings by doing a checkup and learn from other organizations like Southern Farm Bureau Life Insurance Company and the business coalition on health in your state.

Murray L. Harber, Executive Director Mississippi Business Group on Health mharber@msbgh.org www.msbgh.org

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

http://bit.ly/2019MSSHRMCONFERENCE

​Our dynamic speakers include:

Steve Gilliland

Sarah Thomas

Renowned author and speaker

Mississippi's own, first female NFL referee

Elizabeth Heiskell Mississippi's own, Debutante Farmer

PRE-CONFERENCE WORKSHOP Monday, September 16, 2019 1:00-4:00 pm $125 BancorpSouth Arena & Conference Center, Tupelo, MS HOTEL RESERVATIONS Hilton Garden Inn, 363 East Main Street, Tupelo, MS 38804 Rate: $119 The Conference rate will only be available through August 16, 2019.

Reserve your room now by calling 662-718-5500 or 1-877-STAYHGI

WWW.MSSHRM.SHRM.ORG www.HRProfessionalsMagazine.com

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SUPREME COURT

Rules on Enforcement of Class Arbitration

BY ROBERT HORTON

Can a party to an arbitration agreement be required to participate in class arbitration? The Supreme Court ruled on April 24, 2019 that it cannot, unless an agreement to do so is clearly stated.

In Stolt-Nielsen S.A. v. Animal Feeds Int’l Corp, the Supreme Court decided in 2011 that “silence” in an arbitration agreement regarding class arbitration meant that a party could not be compelled to engage in class arbitration. In the more recent case of Lamps Plus, Inc. v. Varela, an employee tried to compel his employer to arbitrate on a class basis claims arising out of the release personal data belonging to employees.

Supreme Court: Class Arbitration Requires Clear Consent by the Parties The Ninth Circuit had held in the Lamps Plus case that ambiguity regarding class arbitration would be construed against the drafter of the arbitration agreement (the employer in this case) and ordered the employer to arbitrate on a class basis. But the Supreme Court reversed, noting, as it had in Stolt-Nielsen, that class arbitration is fundamentally different than arbitration directly between the parties as it sacrifices both the informality and, therefore, the efficiency of individual arbitration. The Supreme Court held, therefore, that a party to an arbitration agreement may be compelled to engage in class arbitration only when the parties have clearly consented to do so.

Employers Must Understand State Laws around Arbitration Agreements Despite this favorable ruling, employers must still be cautious when drafting arbitration agreements. Some states have recently limited the scope of arbitration agreements between employers and employees, particularly with respect to sexual harassment claims.

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The legislatures of Maryland, New York and Vermont have each enacted statutes prohibiting mandatory arbitration of claims of sexual harassment (indeed, the Maryland statute declares such arbitration agreements to be unenforceable, regardless of whether the employee voluntarily entered into the agreement), but only to the extent permitted by federal law. That very issue of whether the states can prohibit arbitration agreements with respect to sexual harassment (or any other specific claim) without running afoul of the Federal Arbitration Act has not yet been specifically addressed by the courts.

New Jersey has a new statute prohibiting mandatory arbitration of any claims related to unlawful discrimination, retaliation or harassment.

The California legislature passed a bill with similar prohibitions (although the bill actually criminalized employer conduct in requiring such arbitration agreements) but it was vetoed by Governor Brown in September 2018.

So, employers may still face some legal uncertainty when it comes to arbitration agreements rolled out on a nation-wide basis, despite the Supreme Court holding: 1) Mandatory arbitration agreements with class action waivers in the employment setting do not violate the National Labor Relations Act and must be enforced.

2) Silence regarding class action arbitration in an arbitration agreement means that an employer cannot be required to arbitrate on a class basis.

Lessons for Rolling Out Arbitration Agreements Many recent cases have focused on whether the employer can prove that the employee signed the arbitration agreement, despite being able to produce a signed copy of the agreement. Employees either “don’t

remember” signing the agreement or “don’t believe the signature is their signature”, etc. Employers must be thoughtful about how, in the event of litigation, they will establish that an employee actually signed the agreement.

Earlier this year, the federal district court for New Jersey determined in Horowitz v. AT&T, Inc. that employees who received notice of an arbitration agreement that required them to “opt-out” by “electronically registering” their decision to opt-out was enforceable in the absence of such an opt-out decision having been registered.

However, a California appellate court, in Garcia v. Tropicale Foods, Inc., refused in January to enforce a signed arbitration agreement because the “bare statement” of the human resources coordinator was insufficient evidence to enforce the agreement without supporting details regarding such signature having taken place.

Some courts, such as the Hawaii federal district court in December 2018’s Khosravi-Babadi v. Hawaiian Telecom, Inc., have invalidated arbitration agreements when the agreements don’t comply with state law requirements regarding mutuality of obligations because the employer was not required to arbitrate claims along with the employee.

Class Actions Waivers Don’t Necessarily Solve All Problems Employers should always remember that arbitration agreements with class action waivers (or even silence regarding such) don’t necessarily make an employer immune to extraordinarily expensive litigation involving large numbers of employees.

Recent media reports have indicated that while some employers have avoided class action lawsuits, they were required to arbitrate hundreds of similar claims by employees and, of course, incurred the associated arbitration costs.

The lesson here for employers contemplating the institution of arbitration agreements in the workplace is to be mindful that while certainly an employer will be relieved at having arbitration agreements in place when served with a class action lawsuit, the employer could still face expensive and time consuming litigation in the form of multiple arbitrations regarding the same issue.

The identity of the actual parties to the arbitration agreement can also be important. A California appellate court held in Castrejon v. CCS Orange County Janitorial in January 2019 that employees of a janitorial company did not have to arbitrate their wage claims because their arbitration agreements were with the parent company of the janitorial company.

Robert Horton, Member Bass, Berry & Sims rhorton@bassberry.com www.bassberry.com

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

Relationships, reliability, and respect – at the center of our Labor & Employment and Employee Benefits practices.

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

Centered to deliver. bassberry.com

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Highlights from the TN SHRM

Friday, April 26, 2019 | Nashville Airport Marriott

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1 Amy West, SHRM-SCP, SPHR, 2019 Director of TN SHRM State Council, welcomed attendees. 2 Dr. Andrew Johnston was the opening keynote speaker.

His topic was “Fire Up Your Team! Surprising Strategies for Cultivating Commitment and Maximizing Influence Within Your Organization.� Watch for our review of his new book in our June issue of HR Professionals Magazine. 3 Kevie Mikus, senior vice-president with Gallagher, was the moderator for the C-Suite roundtables during the closing general session.

4 4 TN SHRM State Council members (L-R). Back Row: Kent Samuels, John Carbonell, Rebecca Hunter, Felicia Pierce, Kevie Mikus, Amy West, Cayci Carvajal, Jeff Luttrell, Bridgette Wilson, Laurie McIntosh. Front Row: Andy Wainwright, Art Smith, Catherine Barnes, Merri Mai Williamson, Shannan Duggin, Christine Howard, Trish Holliday, Michelle Earle, Deneen Lester, Lynette Smith.

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5 SHRM-Memphis members attending the conference (L-R) Dhane Marques, Kelly King, Angela Lamb, Lisa Baker, Bill Burch, and Gary Jones 6 Leigh Ann Roberts is the vice president and co-founder of Circle Center Consulting, LLC. She spoke on “Emotional Intelligence – Your Golden Ticket to Leadership Effectiveness.”

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7 Meg Arnold and Leslie Lenser discussed “Coaching Your Team Through Change.” Meg is the Director of Organizational Development at Belmont University.

Leslie is Chief Human Resources Officer for Belmont University. 8 (L-R) Stephanie P. Hawkins, President-Elect of MT|SHRM; Andy Wainwright, President of MT|SHRM; Laurie McIntosh, SHRM Field Services Director for Tennessee; and Tiffany Ingram Coursey, Past-President of MT|SHRM.

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9 “High Potential Leadership Development: A Case Study in building Organizational Commitment and Engagement,” was presented by Melanie Adams, Director with the Center for Executive Education at Belmont University; and John Dunavan, Director of Learning and Development for LBMC. 10 Michael Burcham, CEO, Narus Health, was the lunch keynote speaker. His topic was “Thinking Like a CEO.” 11 “How to Cultivate Executive Presence with Presentations: Developing the Skills Needed to Succeed in Business,” was Carla Worthey-Sewell’s topic. She is assistant vice president of Executive Talent Acquisition and Development for Hospital Corporation of America.

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12 (L-R) Dr. Trish Holliday, former Commissioner Rebecca Hunter, and Danielle Barnes 13 Dr. Marilyn Young, CPA, Professor of Accounting, Belmont University, presented “Understanding Financial Statements: A Guide for HR Professionals.” www.HRProfessionalsMagazine.com

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Highlights fromtothe WTSHRM You’re invited attend the

9th Annual

May 1, 2019 Presented by: Union University Carl Grant Event FOR Center in Jackson, TN MANAGEMENT THE W EST TENNESSEE SOCIETY HUMAN RESOURCE In coordination with: THE LAW FIRM OF RAINEY, KIZER, REVIERE & BELL, P.L.C.

May 1, 2019 Wednesday

Join us for an informative day where we will explore totally rad HR compliance topics including:

8:00 a.m. to 4:00 p.m.

FMLA – Gag me with a spoon! Explore the top principles employers need to keep in mind when managing FMLA issues in the workplace.

at

1 3 Not Happen’en! Marijuana and the2 Workplace – How do recent 1 Dr. John Carbonell, SHRM-SCP, SPHR, President of WTSHRM attendees.

2 Amy West, Past President WTSHRM and 2019 Director of TN changes in thewelcomes law affect employer policies and alter ofemployer legal Carl Grant Event Center SHRM, announces door prizes donated by theobligations exhibitors. 3 toward John Burleson (L) and Matthew Courtner (R) discussed the top principles employers need to their employees?

1050 Union University Dr.issues. keep in mind when managing FMLA Like a Totally Better Employer Handbook – In 2019 what policies and Jackson, TN 38305 language should employers include in their handbooks and what should they avoid?

Union University

Gnarly Employment Case Studies – An interactive discussion of recent employment law cases and the application of relevant concepts and HR strategies.

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HR at the Drive-In – Back by popular demand! A survey of HR issues depicted in film and television incorporating strategies that are applicable to 5 real-world workplace challenges.

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4 Jennifer Ivy (L) and John Burleson (R) spoke on marijuana and recent changes in the law affecting employer policies and altering employer legal obligations toward their employees. 5 Attorneys with Rainey, Kizer, Reviere & Bell, P.L.C. (L-R) Jennifer Ivy, J. V. Thompson, John Burleson, Latosha Dexter, and Rob Lunch is provided. Explore our impressive showcase of HR-related exhibitors. Great door prizes.

Binkley. Latosha is Deputy University Counsel at University of Memphis and a former attorney with Rainey Kizer. 6 J. V. Thompson (L) and Rob Binkley (R) presented “Like a Totally Better Employer Handbook.”

Registration Fee:

$100 for WTSHRM Members $125 for non-WTSHRM Members Join WTSHRM for only $25 at: wtshrm.shrm.org/join

REGISTER NOW!

WTSHRM.SHRM.ORG/EVENTS

The registration deadline is Thursday, April 25, 2019. Register early as seating is limited.

You may pay by check or credit card. Questions: eamicone@raineykizer.com This program has been approved7 for 6 recertification credit hours 8 through HRCI and SHRM.

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7 The 2019 WT SHRM Chapter Board of Directors (L-R) are Karissa Schemer, Janice Shipman, Amy West, John Carbonell, Jennifer Howell, Anna Higgs.

8 Latosha Dexter (L) and Geoffrey Lindley (R) led an interactive discussion of recent employment law cases and the application of relevant concepts and HR strategies. 9 (L-R) Geoffrey Lindley, Rob Binkley, Matthew Courtner, and J. V. Thompson participated in a survey of HR issues depicted in film and television incorporating strategies that are applicable to real-world workplace challenges.

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

Quick Links

Register Contact Us

Save The Date!! Make plans now to attend the 24th Annual North Alabama Human Resource Management Conference offered by UNA Center For Learning & Professional Development and the Shoals Chapter Society for Human Resource Management (SHRM®) http://shoalschaptershrm.shrm.org.

You can register online here: UNA/SHRM HR Conference or contact our office at 256-765-4862 to register by phone. Please share this email with others who may be interested.

Sponsor space is available! Contact Crystal Wilson if you are interested in an Exhibitor Registration Form @ Crystal_CooperWilson@vfc.com or sign up online at http://shoalschaptershrm.shrm.org

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

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

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SOCIAL EVENT

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

The outdoor courtyard also offers casual seating, fire pits, ping pongtables, horseshoes, and cornhole.

REGISTER

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

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2019 Guide to

SUPER Lawyers

in Labor & Employment Law

HR Professionals Magazine congratulates 2019 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 2019 Super Lawyers in Alabama, Arkansas, Georgia, Kentucky, Mississippi and Tennessee. Special thanks to our sponsors and contributors! The 2019 Rising Stars will be featured in a future issue.

Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. Premier client service, as outlined in the firm’s Client Pledge, is one of the firm’s top priorities and a cornerstone of its core values.

U.S. News – Best Lawyers® “Best Law Firms” has named Ogletree Deakins a “Law Firm of the Year” for seven consecutive years. In 2019, the publication named Ogletree Deakins its “Law Firm of the Year” in the Employment Law – Management category. Ogletree Deakins has more than 850 attorneys located in 53 offices across the United States and in Europe, Canada, and Mexico. The firm represents a diverse range of clients, from small businesses to Fortune 50 companies. www.ogletree.com BIRMINGHAM

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Gordon L. Blair devotes a substantial portion of his practice to general litigation, regularly representing colleges and universities, contractors, healthcare providers, manufacturers and retailers in personal injury, construction, tort, and contract litigation. However, the majority of Blair's practice is focused on the representation of employers in workplace related matters, ranging from administrative proceedings to federal litigation. He routinely counsels employers on day-to-day employment decisions, conducts training seminars, and works to develop effective workplace policies and procedures. Blair lectures to human resources personnel and related groups on topics such as the Family and Medical Leave Act and the Alabama Workmen’s Compensation Act.

T. Scott Kelly provides practical solutions for federal contractors and subcontractors across the United States to comply with the ever-changing affirmative action obligations imposed by doing business with the federal government.

He advocates on behalf of his clients in compliance evaluations and administrative enforcement actions triggered by the United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). Kelly assists manufacturing, transportation, construction, food processing, hospitality, healthcare, and financial institutions with creative solutions for preparing, managing, and defending their affirmative action programs and related matters, including jurisdictional analyses and preventative strategies.

Brian R. Bostick has practiced exclusively in the area of labor and employment law in the Birmingham area since 1997, and has been with Ogletree Deakins since 2000. He has considerable experience representing employers in employment-related litigation in federal and state courts. He has defended employment lawsuits pending before each of the federal districts in Alabama, the Alabama Supreme Court, the Eleventh Circuit Court of Appeals and the United States Supreme Court. He has also successfully represented employers before numerous administrative agencies such as the Equal Employment Opportunity Commission, the Department of Labor, and the Mine Safety and Health Administration.

Peyton Lacy, Jr. has decades of experience in labor and employment law. He graduated with a J.D. degree from the University of Alabama in 1965, where he served as editor-in chief of the Alabama Law Review and a member of the Farrah Order of Jurisprudence. In addition to a traditional labor law practice, Lacy defends individual and class employment litigation cases in both federal and state court, handles traditional labor law matters for employers including negotiation and arbitration, and counsels employers on preventive measures in both areas.

www.HRProfessionalsMagazine.com

BIRMINGHAM Cont.

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

James C. Pennington is the Managing Shareholder and a founding member of the Birmingham Office of Ogletree Deakins. For more than two decades, he has represented employers in a wide range of labor and employment law matters, including administrative agency charges, federal and state court litigation, union campaigns and collective bargaining. He helps employers avoid workplace disputes by providing management training and developing defensive documentation such as effective employee handbooks, dispute avoidance and resolution policies, and drug and alcohol testing policies and procedures. He is known for helping employers navigate through the intersections of disabilities and leave laws.

MEMPHIS Thomas L. Henderson is a shareholder in 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.

NASHVILLE Keith Frazier represents management in the area of labor and employment law, with an emphasis on employment litigation, including collective actions under the FLSA and the ADEA. Frazier has been counsel in over 20 jury trials, and he has experience trying collective actions in federal court before a jury and in an arbitration setting.

He has also handled over 40 arbitrations arising under collective bargaining agreements. In 2005, Keith was elected to the Firm’s Board of Directors and served until 2011. He also served a three year term on the Firm’s Board from 2014 until 2017.

Jonathan O. Harris is Managing Shareholder of the firm’s Nashville offce. He represents management in a wide variety of employment-related matters. In addition to defending singleplaintiff lawsuits, he also represents employers in class and collective actions. He has handled countless EEOC charges and defended employers in lawsuits brought by the EEOC, including matters where the agency has asserted systemic claims on behalf of multiple claimants. He is a frequent speaker on topics relating to all types of employment issues, and he works with clients on preventive strategies to avoid discrimination, retaliation and other employment claims.

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

Jennifer S. Rusie is a shareholder in the firm’s Nashville office who represents management in the area of labor and employment law with an emphasis on employment litigation, including cases involving Title VII, the ADAAA, ADEA, FMLA, FLSA, common law wrongful termination, and restrictive covenants. Additionally, approximately half of Jennifer’s practice is devoted to Title III of the ADA – both architectural issues and website accessibility. In addition to representing and counseling employers in labor and employment matters, Jennifer represents companies in general litigation matters. Jennifer has extensive experience investigating and litigating issues of sexual harassment in the workplace.

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

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

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

Craig Cleland defends employers in litigation—including class and collective actions—and counsels them in risk management and compliance. He is the former Chair and Co-Chair of the Firm’s Class Action Practice Group. He is also an Adjunct Professor of Law at Georgia State University College of Law, where he teaches Complex Litigation. He has been recognized as a BTI Client Service All-Star three times—one of a small number of employment lawyers in the U.S. who “combine exceptional legal expertise with practical advice, business savvy and creative, effective solutions.”

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

Gregory J. Hare is Managing Shareholder of the Ogletree Deakins Atlanta office and has been an employment lawyer at Ogletree 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.

William P. Steinhaus recently completed a nine-year term in the role of Managing Shareholder of Ogletree’s Atlanta office. For over 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 focus area and subject matter experts in various cases. Steinhaus administers the firm’s EPLI program, and is the primary contact with the firm’s insurance carriers.

At Bass, Berry & Sims, positive human relationships and interactions drive business success. Our Labor and Employment team works with public and private companies across a variety of industries, ranging from Fortune 500 companies to small locally owned businesses. As experienced litigators, the team defends employment cases and works with employers to avoid litigation on the front end through day-today counseling and HR training. Our attorneys are 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.

Tim Garrett of Bass, Berry & Sims helps employers solve complex issues related to all aspects of labor and employment law, providing in depth counseling and developing creative solutions to underlying business issues. He is an experienced trial lawyer, defending employers of all sizes in employment litigation claims across the country. Tim has been recognized by Mid-South Super Lawyers for over ten years (2006-2017), along with Best Lawyers in America® and Chambers USA for many consecutive years. This recognition paired with his experience has earned him a national reputation for counseling employers through the maze of complex employee issues.

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FordHarrison is a labor & employment firm with nearly 200 attorneys in 28 offices, including three affiliate firms. The firm has built a national

legal practice as one of the nation's leading defense firms with an exclusive focus on labor law, employment law, litigation, business immigration, employee benefits and executive compensation. Through its global practice group and membership in the global employment law firm alliance, Ius Laboris, FordHarrison provides clients that have multinational operations with a broad range of services related to labor and employment law in over 50 countries throughout the world. FordHarrison is committed to our FH Promise, a set of principles that guides our firm in the delivery of legal services and client communications.

For more information on FordHarrison, visit fordharrison.com. To learn more about Ius Laboris, visit iuslaboris.com.

MEMPHIS

ATLANTA

Louis P. Britt, III – Partner, Memphis Louis Britt is the regional managing partner for FordHarrison's Memphis, Nashville and Dallas offices. He concentrates his practice on employment litigation and advice, representing private and public employers in a broad range of employment matters. Louis handles employment discrimination and harassment cases (Title VII, ADA, ADEA and FMLA), wage/hour matters, enforcement and defense of restrictive covenants contained in employment agreements, and employment-related torts. He is experienced in complex and class action litigation, and has tried cases in state and federal courts across the country. Louis has extensive experience in public sector representation in both litigation and collective bargaining.

Patricia G. Griffith – Partner, Atlanta Patricia Griffith concentrates her practice on employment litigation, including individual and class action discrimination and harassment cases, employment contracts, wage/hour claims, and other employment-related actions. She tries cases in federal and state courts and before administrative agencies and arbitrators. Patricia has substantial jury and class certification experience. She is adept at mediating disputes, reducing the likelihood of protracted litigation, and serves as an arbitrator for the State Bar of Georgia and private parties. Patricia serves on the Board of Directors for the Atlanta Shakespeare Company, and is a past Chair.

Herbert E. Gerson – Of Counsel, Memphis Herb Gerson focuses his practice on managing all areas related to traditional labor and employment issues both local and international. He devotes much of his practice to counseling clients on avoiding employment discrimination claims and developing a positive work environment. Herb has written numerous articles on labor and employment matters, is a frequent speaker on labor and employment matters and co-chaired the Labor and Employment Committee of the Litigation Section of the American Bar Association. Herb is a graduate of Leadership Memphis.

Frederick L. Warren, III – Partner, Atlanta Rick Warren handles all aspects of labor and employment law, including traditional labor law, employment litigation, wage and hour matters and workplace safety and serves as the co-chair of the firm’s restaurant practice group. He litigates cases before federal and state courts and administrative agencies throughout the country. He defends both individual and class action cases and has substantial jury trial experience. Rick also handles numerous mediations and arbitrations. He devotes a significant part of his practice to preventive law and advising clients how to avoid/resolve labor and employment disputes and litigation.

NASHVILLE Mark E. Stamelos – Partner, Nashville Mark Stamelos represents businesses on their employment issues, including trade secret, non-compete and restrictive covenant disputes as well as defending employers against harassment, discrimination and retaliation claims. Mark is the office managing partner for FordHarrison’s Nashville office. He has successfully obtained and defeated temporary restraining orders, preliminary injunctions and permanent injunctions for clients involved in the technology, healthcare, securities and financial services, transportation, automotive, electronics and advertising sectors. Mark also has litigation, arbitration, counseling and jury and bench trial experience involving defending claims under state and federal law of unlawful discrimination and harassment, “whistle-blower” retaliation claims, wrongful termination claims and wage and hour claims.

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

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

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Wright Lindsey Jennings’ 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 multi-plaintiff, 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 and represents clients in labor arbitrations, union elections and contract negotiations. We offer proactive and preventive resources for HR professionals, including employee and manager training, e-newsletters, employment law luncheons and webinars, and website articles.

John D. Davis concentrates his Little Rock-based 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 employmentrelated 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 “Leaders in Their Field” and Mid-South Super Lawyers.

Stuart Jackson advises employers on compliance with civil rights laws and developing personnel policies (including medical marijuana policies), employment agreements and covenants not to compete. As of late, he has been focused on helping businesses prepare for medical marijuana and defending wage and hour collective/class actions. Jackson 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 “Leaders in Their Field” and Mid-South Super Lawyers, and has an AV® Preeminent™ Peer Review Rating through Martindale-Hubbell.

Michelle Kaemmerling has been practicing with Wright Lindsey Jennings since relocating to her hometown of Little Rock in 2001. Her practice focuses on employment investigations and litigation, including class actions and collective actions.

Kaemmerling regularly provides advice and training regarding employment law compliance. In addition to her employment practice, Kaemmerling leads WLJ e-Discovery Solutions, the firm’s electronic discovery division. She also serves in firm management as leader of the Labor & Employment team. Kaemmerling has been recognized by The Best Lawyers in America©, Mid-South Super Lawyers and as a “Leader in the Field” by Chambers USA. 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. Kim is recognized by Chambers USA as a “Leader in Their Field,” has been listed in Mid-South Super Lawyers since 2013 and was named to The Best Lawyers in America© in 2019. Kim chairs Wright Lindsey Jennings’ Committee on Associates and was named to Arkansas Business’ “40 Under 40” list of business leaders in 2018.

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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.

Troy Price has earned a reputation as one of Arkansas’ most experienced and highly regarded appellate lawyers.

Price has handled more than 50 appeals in state and federal courts and has presented oral arguments more than 15 times in appeals before the Arkansas Supreme Court and Court of Appeals, the Eighth Circuit Court of Appeals and the Eleventh Circuit Court of Appeals. He is also admitted to practice before the Supreme Court of the United States. In addition to focusing on ERISA and other employee benefits litigation in his practice, Price is also recognized as an authority in First Amendment law. Price is listed among The Best Lawyers in America©, Chambers USA “Leaders in Their Field” and Mid-South Super Lawyers.

Regina Young’s practice centers on litigation and trial work. She 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, 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 since 2012, has been named a “Future Star” by Benchmark Litigation and was voted one of the 100 “Best Lawyers in Little Rock” by the readers of Soirée Magazine and Arkansas Business in 2016.

The Kullman Firm has exclusively represented management in labor and employment matters since 1946, including matters relating to Title VII, the ADA, ADEA, FMLA, FLSA, OSHA, ERISA, COBRA, OFCCP, NLRA, WARN and other federal and state employment laws. The Firm represents clients in a wide range of industries, 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.

MOBILE, AL

COLUMBUS, MS Taylor B. Smith Mr. Smith has more than 50 years of experience representing employers and is 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.

Dwayne O. Littauer is a shareholder of The Kullman Firm. His work is devoted principally to counseling clients in establishing, administering and handling benefit controversies concerning employee benefit plans, including health, disability, 401(k), pension, 403(b), and 457(b) plans.

Mr. Littauer received his B.A., with honors, from the College of William and Mary and his J.D. from the University of Alabama, where he was on the Alabama Law Review. He received an LL.M. in Taxation from New York University, where he was a Graduate Editor of the Tax Law Review. He is a Board Certified Tax Law Specialist and has been included in Super Lawyers.

Greater Memphis Employee Benefits Council Meeting The Crescent Club Memphis | May 2, 2019

(Front Row L-R) Linda Tripp, Donna Winfrey & Linda Yoakum. (Back Row L-R) Russ Henderson, Preston Cox, Speaker Anthony Schelfhout with Teladoc Health, Ted Archdeacon, Esha Iupe, Lu Harvey & Alexis Giannini.

Not pictured: Antoinette Wiseman www.HRProfessionalsMagazine.com

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Cross, Gunter, Witherspoon & Galchus, P.C. (CGWG) – U.S. News has named CGWG a leading Labor and Employment law firm in the state of Arkansas for 2019. We are proud to have seven attorneys selected as Best Lawyers, including one being named “Lawyer of the Year” in their practice areas. 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, and the development of employment policies and procedures.

Preventive law strategies and exceptional educational programs are hallmarks of CGWG’s services.

M. Stephen Bingham’s practice includes products liability defense, commercial litigation, airport law, insurance defense, and construction 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 past president of the Arkansas Association of Defense Counsel, and former Commissioner of the Arkansas Commission on Child Abuse, Rape and Domestic Violence.

J. Bruce Cross practices in the areas of labor and employment defense law. He has been named Lawyer of the Year in Little Rock in Labor Law – Management in 2014 and 2019 by Best Lawyers in America and is listed as a Leading Lawyer in Labor and Employment in Chambers USA; US News and World Report Listing of Best Labor and Employment Lawyers; and the Top 50 Arkansas Mid-South Super Lawyers.

He is a Fellow in the College of Labor and Employment Lawyers of the American Bar Association.

Missy McJunkins Duke is a member of the American Employment Law Council, the Arkansas Bar Association’s Labor and Employment Section, and the American Bar Association’s Labor and Employment Section and Federal Labor Standards Legislation Committee. She served a six-year term on the Arkansas State Board of Law Examiners and is currently serving a three-year term on the Arkansas Continuing Legal Education Board, both appointed by the Arkansas Supreme Court.

Missy has been named to the Best Lawyers in America since 2009, Mid-South Super Lawyers from 2008 to present and Chambers USA America's Leading Business Lawyers since 2013.

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Richard A. “Rick” Roderick practices in the areas of labor and employment defense law. He has more than 20 years of human resource management experience, having served in various executive management positions, including executive director of human resources with a large multistate corporation. Rick has extensive experience in labor relations, union negotiations, employment discrimination, unfair labor practices, and wage and hour matters. He is a member of the Arkansas Bar Association (Past chair of Labor and Employment Law Section) and the American Bar Association. He has been recognized by Best Lawyers in America and Mid-South Super Lawyers since 2009, and was named Lawyer of the Year in the field of Labor Law – Management in 2017.

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 and arbitrator for the Court of Arbitration for Sport. She has been named one of the top 50 Arkansas Super Lawyers and Top 50 Women Mid-South Super Lawyers and is also a Fellow of the College of Labor and Employment Lawyers and a 2019 inductee to the Arkansas Women’s Hall of Fame.

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

ATLANTA Leslie Dent is an experienced trial lawyer who has successfully tried cases ranging from individual discrimination matters to complex wage and hour class actions. She represents employers in class and collective actions involving off-the-clock claims, challenges to exempt status and other wage-related claims, as well as Rule 23 class actions alleging discrimination claims. Leslie counsels and represents employers on a broad range of employment law issues, including discrimination, harassment, retaliation, and leave laws. She has extensive experience conducting and supervising internal investigations and defending whistleblower and retaliation claims, including Dodd Frank and False Claims Act claims.

L. Traywick Duffie is Office Managing Shareholder of Littler’s Atlanta office and represents corporate clients in a broad range of employment and labor law, including employment litigation, union organizing, wage and hour and Employee Retirement Income Security Act matters. He has successfully defended numerous class and collective matters and countered union organizing campaigns in more than 40 states. Traywick has designed and implemented programs on compliance with and the avoidance of employment litigation and union organizing. He regularly speaks before companies, trade associations, business groups and universities. He represents clients in the healthcare, media, transportation and manufacturing industries.

Kathryn S. McConnell counsels, trains, and defends multinational and domestic companies on employment and traditional labor law matters. She regularly prepares and advises on non-competition, confidentiality, non-disclosure and other employment-related agreements, as well as the development of incentive and commission plans. Katy regularly defends employers in state and federal courts across the U.S. in lawsuits alleging discrimination, harassment, retaliation, wrongful discharge, emotional distress, FLSA and FMLA violations, and other employment related claims. She is admitted as a solicitor in England and Wales.

Lisa "Lee" A. Schreter is co-chair of the Wage and Hour Practice Group and former chairperson of Littler's Board of Directors. She represents employers in complex class and collective actions involving overtime and other wage-related claims and specializes in helping employers to develop forward-thinking compliance measures that reduce wage and hour disputes and other employment-related issues. She also represents and counsels management clients in connection with all other types of labor and employment matters arising under federal and state laws.

Daniel E. Turner counsels and represents employers in all aspects of litigation in employment law issues, including discrimination, harassment, retaliation, wage and hour, and leaves of absence. Serving as lead counsel in more than 50 class and collective actions throughout the country, Dan has defended clients in over 25 states. Dan's extensive litigation practice also includes state law tort, contract, restrictive covenant claims, and various types of civil rights litigation.

LEXINGTON Jay Inman provides solutions for employers of all sizes navigating today’s complex business world. Jay’s practice includes advice and counsel for employers making decisions about employment-related issues, policies, and procedures, and he also represents employers in administrative matters and litigation in state and federal courts, including trials and appeals. Jay serves as a go-to for clients and colleagues on drafting and enforcement of arbitration agreements, investigations in the workplace, and complex and appellate litigation.

LaToi D. Mayo has advised, counseled and defended employers in regard to labor and employment matters for over 18 years. Most recently, LaToi has developed an expertise in enforcing employment related arbitration agreements, defending and managing wage and hour class actions and advising employers on state and federal wage and hour compliance issues. She also routinely assists employers with respect to diversity, discrimination, and leave issues. She works frequently with hospitality and service related groups, manufacturers, health care facilities, financial institutions and local city governments. LaToi routinely presents at seminars focusing on labor and employment topics for a variety of professional organizations in Kentucky. She also conducts training for managers, supervisors and the general workforce and provides labor and employment compliance counselling.

MEMPHIS Jonathan E. Kaplan has devoted his entire career to representing management clients exclusively in all areas of labor relations, employment law, and human resources management. His practice spans litigation, training, and consulting, in which he has handled matters in more than 40 states and Canada. Jonathan practices extensively before the NLRB across the country, and also has been admitted specially to practice before the state courts in California, Florida, Illinois, Indiana, Kentucky, Michigan, New York, and Ohio.

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

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

www.HRProfessionalsMagazine.com

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Immigration Unfair Labor Practices HR Professionals Should Know

By BRUCE E. BUCHANAN

Although employers need to be diligent about complying with the employment verification rules of the Immigration Reform and Control Act (IRCA), they should not be so overzealous that they end up penalizing qualified employees. IRCA has anti-discrimination rules that can result in an employer facing stiff sanctions and these rules are enforced

by Immigrant and Employee Rights (IER) Section, a part of the Civil Rights Division of the Department of Justice. In FY 2019, IER has been zealous in enforcement – winning litigation against Technical Marine Maintenance resulting in penalties of over $850,000 and entering into seven settlements with $497,000 in fines/penalties and $31,000 in backpay.

What does IER Cover?

The IER has exclusive jurisdiction to rule on “citizenship and immigration status” discrimination claims against employers with four or more employees. “Citizenship or immigration status” discrimination refers to when a person or entity discriminates against any individual (other than an unauthorized immigrant) with respect to the hiring, recruitment, or referral for a fee of the individual for employment, or the firing of the individual from employment because of the individual’s citizenship or immigration status.

Employers of more than three employees are covered by IRCA antidiscrimination rules (as opposed to the 15 or more employees covered

by Title VII of the Civil Rights Act). IRCA protects most U.S. citizens, permanent residents, asylees, and refugees from discrimination on the basis of national origin or citizenship status if the person is authorized to work. Aliens illegally in the United States are not protected.

The IER has limited jurisdiction over “national origin” discrimination.

“National origin” discrimination refers to when a person or entity discriminates against any individual (other than an unauthorized immigrant) with respect to the hiring, recruitment, or referral for a fee of the individual for employment, or the firing of the individual from employment because of the individual’s national origin. The IER’s jurisdiction in this matter is for employers with 4 to 15 employees.

Under IRCA, employers may not refuse to hire someone because of his national origin or citizenship status, and they may not discharge employees on those grounds either. The employer is also barred from requesting specific documents in completing a Form I-9 and cannot refuse to accept documents that appear genuine on their face.

The IER also has jurisdiction over unfair documentary practices claims for employers with four or more employees. Unfair documentary practices (formerly referred to as “document abuse”) refer to discriminatory practices related to the verification of employment eligibility in the Form I-9 process. Employers that treat individuals differently

Under IRCA, employers may not refuse to hire someone because of his national origin or citizenship status, and they may not discharge employees on those grounds either.

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based on national origin or citizenship commit unfair documentary practices when they engage in one of four types of activity: 1. Improperly requesting that employees produce more documentation than is required to show identity and employment authorization; 2. Improperly asking employees to produce a particular document to show identity or employment eligibility; 3. Improperly rejecting documents that appear to be genuine and belonging to the employee; 4. Improperly treating groups of applicants differently (for example, based on looking or sounding foreign) when they complete Forms I-9.

Protected Individuals A “protected individual” under the anti-discrimination rules of IRCA includes anyone who is a U.S. citizen as well as individuals who fit the following categories: recent lawful permanent residents (green-card holders) - meaning individuals who have not held LPR status for no longer than six months beyond becoming eligible to naturalize; refugees; certain beneficiaries of the 1986 legalization program; and asylees.

Employers are not required to consider applicants who are outside of this list under IRCA’s anti-discrimination rules. Employers should be careful, however, to be consistent in applying their policies so as to avoid a finding that a particular group has been disparately treated.

Such inconsistency could lead to a finding of “national origin” discrimination under Title VII of the Civil Rights Act.

All individuals authorized to be employed can file a claim under the unfair documentary practices if an employer has four or more employees.

Conclusion

Examples of Prohibited Practices

This article is taken from Chapter 7 of the book, The I-9 and E-Verify Handbook, which I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.

The following are examples of prohibited practices when they are based on an employee’s “national origin’ or “citizenship or immigration status”: 1. Setting different employment eligibility verification standards or requiring different documents based on national origin or citizenship status. (i.e., non–U.S. citizens forced to present U.S. Department of Homeland Security (DHS)–issued documents, like green cards).

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

SISKIND SUSSER PC

2. Requesting to see employment eligibility verification documents before hire and completing the Form I-9 because an employee appears foreign or the employee indicates that he or she is not a U.S. citizen.

Tennessee’s Largest Business & Employment Immigration Practice

3. Refusing to accept a document or to hire an individual because an acceptable document has a future expiration date.

4. Requiring an employee during re-verification to present a new unexpired Employment Authorization Document (EAD) if the employee presented an employment document during the initial verification.

IMMIGRATION LAWYERS green cards business visas

5. Limiting jobs to U.S. citizens, unless a job is limited to citizens by law or regulation.

6. Asking to see a document with an employee’s “Alien” or “Admission number” when completing Section 1 of Form I-9.

7. Asking a lawful permanent resident to re-verify employment eligibility because the person’s green card has expired.

Memphis 901.682.6455

Comprehensive Immigration Legal Solutions Since 1994

Nashville 615.647.6006

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Serve Up Coach Down

By WILLIAM CARMICHAEL

Book titles have always held a fascination for me. It is a calling card of sorts. After all, the title and subtitle sets the tone, hints at the genre, piques the reader’s curiosity and hopefully draws them in. In this month’s book, Serve Up Coach Down: Mastering the Middle and Both Sides of Leadership by Nathan Jamail, the full title understates the book’s intent in my humble opinion. Being of service to one’s boss (up) and direct reports (down) is certainly its foundation but what readers will find is an excellent field guide on performance improvement up, down, and sideways within their organizations. It provides an experienced consultant’s wisdom and advice on the most common issues those in middle management face each day and does so with candor and common sense; all while using servant leadership as an effective catalyst.

Servant leadership with a twist!

For those who feel the topic of servant leadership has been overdone, I’m with you. I get it! For whatever reason it has become an all too often used catch-phrase. Another idiom carelessly tossed about. Our author must get it too because he deliberately uses this term sparingly within the book’s Introduction although it is certainly the crux that ties it all together. Serve Up Coach Down takes us on a very interesting ride within organizational hierarchy by showing us why the traditional idea of being a servant leader is flawed in its execution. How? It is no secret that the most important characteristic in being a servant leader (first coined by Robert Greenleaf in 1970) is making your main priority to serve rather than to lead. Here, Jamail is not arguing 52

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the purpose or objective, rather, he chooses to expand its true direction for those in middle management. To quote the author, “Simply put, leaders in the middle must be willing to serve up to those they answer to but to serve those they lead they must coach down.”

Middle management’s challenge As in Jamail’s other books, Serve Up Coach Down uses a very effective narrative in driving his points home. Allow me to use this analogy.

Imagine playing chess with a player who is sitting in another room without a chessboard yet can call out their response moves so you can move the pieces. How can that other player do that? Well clearly that player understands the game extremely well. He is one step ahead of us. To this end, Jamail understands the game middle management must play to win and drives his advice home with an uncanny understanding of what is going on. I am also impressed with his vernacular, which is unpretentious.

What exactly is serving up?

The beginning of Chapter 2’s- Serving Up Is Not Sucking Up provides the perfect example of how a middle manager can implement a servant leadership mentality. Here, Jamail explains how a middle manager quickly reacts to a potentially embarrassing situation for his boss presenting to a group by fixing an audio problem before catastrophe strikes. Where some would argue the manager’s actions would appear self-serving or “kissing-ass,” Jamail convincingly argues just the opposite. In this case, the manager demonstrated a “selfless act of support for the vision and direction of the organization.” Readers are encouraged to change their perspectives as well as assumptions about negative thought patterns that too often show up at work. Just as he instructs his clients, he tells us how we can take a step back once an opinion has formed so we can better see the whole picture. To quote the author, “When it comes to serving up, we must assume that our boss and those who lead us have more information and more visibility to make the best decisions for the company and us.” There is a logic and truth that supports this simple reasoning.

One section of Serve Up Coach Down that readers will find intriguing is its approach to the rapid-fire changes that all organizations now must implement. While the “change or die” dichotomy to some might be exciting, its unwelcome inevitably to others is unnerving.

Here, Jamail doesn’t sugar coat anything. He offers up real doses of reality and does so with clarity and support. Call it “tough love” for managers at any level or at any point in their career.

Structure and Layout The book’s effectiveness comes not just from the commonsense approach the author takes with middle management issues but from its simple layout. The twenty-six short chapters are spread out within seven parts that readers will find easily read over a weekend. Appearances are also deceiving. What first appears to be a requisite order is not. For example, some parts beg to be read first as I found with Part 4’s- Bridging the Knowledge Gap; a wonderful section about the ‘will or won’t’ mentality that all managers run into from time to time.

Introduction

The Leader in the Middle

Part 1

Serving Up

Part 2

Coaching Down

Part 3 Serving and Coaching in Uncertain Times

Part 4

Bridging the Knowledge Gap

Part 5

Choosing Time Management

Part 6 Everyone is Important, but No One is Required

Part 7

Keeping the Power

As stated previously, what appears to be a requisite order, is not. Suffice it to say, I liked this book and I think you will too.

Who Will Benefit Most from This Book?

Middle and upper management, organizational leaders at all levels, HR practitioners, Training and Development leaders.

ABOUT THE AUTHOR:

Nathan Jamail is a recognized leadership expert that has spent over 25 years in sales management and leadership coaching top-performing teams. He has worked with hundreds of organizations and thousands of leaders over the years including Cisco, FedEx, State Farm, T-Rowe Price, The Hartford, Comcast, Microsoft, the US Army Reserve, Georgia Pacific, Capital One Finance, and US Healthworks. He is the author of four bestselling books, including The Sales Leaders Playbook.

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

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Tennessee Chapter International Public Management Association for Human Resources

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26th Annual TPMA Membership and Training Conference April 24th – 26th, 2019 Sheraton Memphis Downtown Memphis, Tennessee

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1 Phyliss Taylor Thomas, TPMA Conference Committee Chair, welcomes attendees to the conference. 2 City of Memphis Mayor Jim Strickland welcomed attendees to Memphis. 3 The 2019 TPMA Board of Directors (Standing L-R) Peter Voss (Past President), HR Director, City of Hendersonville; John Grubbs, HR Consultant, UT-MTAS; Steve Wilensky, HR Director, City of Germantown; Richard Stokes, HR Consultant, UT-MTAS, TPMA Executive Director; (Seated L-R) Paula Taylor (Treasurer), Executive Director, Knox County Sheriff’s Merit System; Ora Applewhite (Secretary), Employee Activities Coordinator, Shelby County Government; Felecia Boyd (President), former Sr. Training Coordinator, City of Memphis; Rebecca Hunter, former Commissioner TDOHR, State of Tennessee; and Phyllis Thomas (Conference Chair), HR Director, City of Memphis Public Library. 4 Alex Smith, Chief Human Resource Officer for the City of Memphis, presented “Cloud Based Technology Cyber Security.”

Thriving in Turbulent Times: The Secrets to Human Resources Success 5

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5 Brad Federman, COO with F&H Solutions Group, spoke on “The Changing Landscape of HR & Organizations.” 6 Dr. Trish Holliday, Assistant Commissioner and State Chief Learning Officer, discussed “Leading Change: Creating a Culture of Engagement and Your Responsibility.” 7 Debra Finney, EEOC, Memphis Outreach and Education Manager, presented “MeToo and #TimesUp: What’s Next with Harassment?” 8 Brad Federman, COO of F&H Solutions Group; Cynthia Thompson, Editor | Publisher of HR Professionals Magazine, and Jeff Jenks, VP, Practice Leader: Global Solutions with Simplify Compliance.

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9 Richard L. Stokes, Executive Director of TPMA, presented Rebecca Hunter, former Commissioner TDOHR, State of Tennessee, with the Richard L. Stokes Personnel Achievement Award. 10 Michael Hurwitz, Careers in Government, spoke on “The Guide to Highly Effective Recruiting Strategies and Employer Branding.” 11 Alternate Work Solutions (AWS): Mobile and From Home Work Panel - (Standing L-R) Dezanne Russell, Deputy Commissioner, TN Dept. of Human Services; Darlene Stringfellow, HR Director, TN Dept. of Human Services (organizers); (Seated L-R) Gerthania Luckey, Eligibility Counselor, TN Dept. of Human Services; Promise Moore, Eligibility Counselor, TN Dept. of Human Services and Bernard Nelson, Field Supervisor I, TN Dept. of Human Services.

12 Mark Morgan, Sherrill Morgan & Associates presented “Benefits Survey Results/Update Affordable Care Act.” www.HRProfessionalsMagazine.com

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What to Do When You Feel

Unappreciated at Work

By HARVEY DEUTSCHENDORF

H

uman beings all have a need to be appreciated. Yet most of us have, at some point in our working lives, felt unappreciated. In that you aren’t alone. A Gallop Poll found that 65% of American workers felt unappreciated. Feeling undervalued leads to a loss for yourself as well as the organization. For you, the results could be increased negativity, loss of motivation or morale and for the organization, a loss of productivity. "We spend too much valuable time at work, so it is important to feel engaged in our work and not report to work out of habit or routine." says Judy Bell, President of Judy Bell Consulting http://judybellconsulting. com/ "If work is not intentional, we suffer along with our company." We also know that feeling unappreciated leads to increased stress and anxiety. Not feeling valued in the workplace has negative impact on our health both at work and at home. If you fall into the category of feeling unappreciated, you need to take initiative and look for ways to turn things around. Either things will turn around or you may have to make a decision and consider if the benefits of your job outweigh the harm you will do to yourself to continue working there. Here are a number of things you can do when you feel unappreciated at work.

Check Out Your Perceptions Find someone who knows your work as well as what constitutes good work in the opinion of the organization. A supervisor or manager who knows your work, but you don’t directly report to but respect and trust would be a good person to ask. Check with a trusted colleague to see how they feel. Don’t get caught up in a cycle of negativity and only talk to coworkers who are known chronic complainers. "Attitudes are contagious so we must make sure we spend time and energy with people who are positive." says Judy Bell. Talk to people who appear upbeat and positive. Don’t make assumptions about your 54

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boss and what you perceive as their lack of appreciation. They may be unaware of the excellent work you are doing or may be under great pressure themselves from areas you don’t know anything about. Start with that assumption and go with it until you have evidence to prove it wrong.

Have a Conversation With Your Boss In this case, you need to be subtle. Prepare for the meeting beforehand by knowing what you are going to discuss and having a list of accomplishments fresh in your mind. Never say that you want more appreciation, rather indicate that there are times that you don’t feel that your work is noticed. If you are part of a team, mention the work of the team instead of focusing on your own achievements. Avoid confronting your boss or going in to speak when you are angry. It will only put your boss on the defensive and this will not help your cause. Rather, ask for feedback on your performance. Indicate to your boss that you are looking for ways to improve and would like his or her help.

Make a Point of Recognizing Other’s Contributions If you are part of a team, always ensure that everyone knows who created your team presentations and reports. Take a cue from classy professional athletes and give credit to the team when you get a win. Look for opportunities to praise others who you feel have done a good job in front of their boss and peers. This will create awareness of the need for appreciation and there is a good chance that the recognition of a job well done will be reciprocated by those who have received it. Make sure that your appreciation is genuine and don’t overdo it. If unwarranted appreciation is loosely tossed around, real appreciation quickly loses its effectiveness and value. In the best- case scenario, you will raise awareness of the need for appreciation in the organization, some of which will come back to you.

Look For What Went Well Many of us tend to focus on what went wrong. Even if five of six reports that were worked on received praise, we will focus on the one that we received critical feedback on. Instead, make an effort to look for what went well at the end of each day, each week and month. Make a list and paste it up where you can easily see it. Not only will it give you a positive boost, but will increase your ability to notice the positive, keeping your mind from going to the negative. It will also increase your ability to intrinsically motivate yourself, rather than waiting for outside validation. Look at this as a way of increasing your personal and professional value, which is independent of any job or person. Remember that all highly successful people have developed the ability to motivate themselves.

Real fulfilment and satisfaction come from within, not from outside validation.

Consider the Alternatives It may be possible, even after everything you’ve tried that the problem is a bad boss and toxic work culture which you will not have any chance of influencing. At that point, consider what you need to do. Are the benefits of staying where you won’t be appreciated worth it? Can you self-motivate and continue on or is the situation at the point that you need to move on for the sake of your mental health, well-being and self-respect?

Harvey Deutschendorf is an emotional intelligence expert, internationally published author and speaker.

To take the EI Quiz go to theotherkindofsmart.com.

His book THE OTHER KIND OF SMART, Simple Ways to Boost Your Emotional Intelligence for Greater Personal Effectiveness and Success has been published in 4 languages. Harvey writes for FAST COMPANY and has a monthly column with HRPROFESSIONALS MAGAZINE. You can follow him on Twitter @theeiguy.

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