March 2020 HR Professionals Magazine Digital Issue

Volume 10 : Issue 3

TM

www.HRProfessionalsMagazine.com

Rising Stars in Labor and Employment Law

2019

EEOC

Statistics

Eugene DOL

Final Regs

for the Four Factor Joint Employer Rule

Solving the

Skills Gap

Scalia Secretary of Labor

SHRM

Advocacy @Work Conference

Washington, D.C.,

March 15-17

International Presence.

Local Knowledge.

EMPLOYERS AND LAWYERS, WORKING TOGETHER Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. The firm has more than 900 lawyers located in 53 offices across the United States and in Europe, Canada, and Mexico.

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SCAN TO GET YOUR TICKETS

2020

Online HR Certification Classes

Bringing Human Resources & Management Expertise to You

More than

40%

of employees can’t afford a $400 financial emergency. www.HRProfessionalsMagazine.com Editor Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher

The Thompson HR Firm, LLC Art Direction

Park Avenue Design Contributing Writers Bruce E. Buchanan Harvey Deutschendorf Susan Hanold John Hawkins Howard B. Jackson Russel W. Jackson Benjamin P. Kahn Jeff Leonard Christopher M. Lewis Xavier D. Lightfoot Grant B. Osborne Melissa Robbins Stacey Stewart James B. Taylor James V. Thompson Christopher Watler

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. ©2020 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 6 note from the editor

28 DOL’s Proposed Rule and Potential Enhanced Availability of “Tip Pools”

7 Profile of Eugene Scalia, Secretary of Labor

36 DOL’s New Regulations to Determine Joint-Employer Status for FLSA Liability

17 Congratulations to These Newly Certified HR Professionals!

40 Constitutional Amendments on Right to Work: Tennessee Steps Up to the Plate

34 Data Facts Promotes Julie Henderson to Vice President, Background Screening Sales

42 Undocumented Worker Awarded Backpay

47 Affordable Online SHRM-CP | SHRM-SCP Certification Exam Prep Class April 13

Rising Stars in Labor and Employment Law

48 7 Ways to Become More Persuasive

Top Educational Programs for HR Professionals

30 Ogletree Deakins

11 Legal Training for HR Professionals: the Emory Juris Master Degree

33 Bass Berry & Sims Siskind Susser PC

21 University of Illinois Master of Human Resources and Industrial Relations 52 WGU $10,000 Tenn-K Scholarships

31 FordHarrison 32 Littler

34 Ward and Smith, PA

Industry News

Talent Management

3 SHRM Talent Conference & Exposition in Orlando April 20-22

22 Solving the Skills Gap and Supercharging Your Leadership Pipeline

4 DisruptHR Memphis April 21

24 The Hiring Solution You Haven’t Considered

8 Excellence Through Leadership in Peachtree City May 7-8

38 Actions HR Should Take Regarding the Salary History Question

10 SHRM-Atlanta SOAHR 2020 Conference March 23-25

Employee Benefits

35 ARSHRM 2020 HR Conference & Expo in Rogers, AR April 1-3

12 Managing Financial and Talent Risks to Create Growth Opportunities for Organizational and Employee Wellbeing

39 TN SHRM Strategic Leadership Conference in Nashville April 17

26 Another Reason Family Matters . . . for Employee Benefit Plan Compliance 44 Integrating Employee Benefits and Perks Makes a Difference in Employees’ Lives

Employment Law 14 Leveling the Playing Field: Legislative Efforts to “Fix” the Supreme Court’s Reading of the ADEA 16 At the NLRB, Everything Old is New Again 18 Supreme Court Will Consider Regulations Permitting Employers to Opt Out of Contraception Coverage 20 FY 2019: EEOC Trends in the Two Years Following the #MeToo Movement

45 MSSHRM 25th Anniversary Conference & Expo in Biloxi September 14-16 46 SHRM-Memphis Legal Conference April 14 49 ALSHRM Conference & Exposition in Birmingham May 11-12 50 2020 Workforce Strategy Conference in Statesboro, GA, May 19 April issue features Talent Management and Recruiting plus Employment Law and Employee Benefits Update ARSHRM Conference in Rogers April 1-3 SHRM Talent Conference & Exposition in Orlando April 20-22 Deadline to reserve space March 15

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a note from the editor

The United States Capitol in Washington, D. C.

It is exciting to be a media sponsor for the SHRM-Atlanta

Photo by Charles B. Thompson

SOAHR 2020 Conference on March 23-25 again this year.

It is such an honor to have Eugene Scalia, Secretary of Labor, on

Atlanta! There will also be a virtual pre-conference session,

our March cover! Secretary Scalia is the opening keynote speaker at the SHRM Advocacy @ Work Conference in Washington, D.C., March 15-17. I am looking forward to the Q & A following his opening address with Johnny C. Taylor, Jr., SHRM-SCP, SHRM President & CEO. There will also be an Off-the-Record Fireside Chat on Monday, March 16, with Steve Clemons, Editor-at-Large from The Hill; Jocelyn Moore, Executive VP Communications and Public Affairs, from the NFL; Frederick S. Humphries Jr, Corporate VP U.S. Government Affairs Microsoft Corporation; and Holly Tyson, Former CHRO with Dick’s Sporting Goods.

We will hear great presentations from subject matter experts on public policy issues that impact our workforce at the Conference.

The most exciting part of this conference is visiting our state legis-

We are looking forward to seeing our SHRM friends in “What’s Next for HR: A Point of View from Dave Ulrich,” on Monday, March 16. This is included with every SOAHR ticket.

We will bring you the exciting details in real time on Twitter, Facebook, and LinkedIn. If you are not currently following me on social media, I encourage you to do so. Don't miss any of this exciting coverage!

Mark your calendar for March 26th, as we will be presenting our monthly webinar sponsored by Data Facts. Watch your email for your invitation! If you are not currently on our email list, please visit our website, www.hrprofessionalsmagazine. com, and click on Contact Us. We will be happy to add you.

Don't miss this opportunity to obtain complimentary SHRM and HRCI recertification credits!

lators on Capitol Hill and discussing important issues that impact our workforce. Please follow me on Twitter @cythomps for up-tothe-minute coverage of the conference! We will also be bringing you Facebook Live interviews from the conference with keynote

Get Certified in 2020!

speakers and HR thought leaders. Be sure to Like us on Facebook in order to receive instant notifications.

We are featuring Rising Stars in Labor and Employment Law in our March issue. I know you will enjoy reading about these attorneys who are 40 or under and have practiced 10 years or less and are already top performers in their respective firms. Please take the time to congratulate those you know who made this prestigious list. We hope you will call on them as you navigate new legal issues.

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cynthia@hrprosmagazine.com @cythomps

on the cover

Eugene

SCALIA

Secretary of Labor Eugene Scalia Secretary Scalia is a graduate with distinction from the University of Virginia.

He studied law at the University of Chicago Law School, where he graduated cum laude and served as editor-in-chief of the Law Review.

“Eugene Scalia is one of the most qualified people ever confirmed as Secretary of Labor. He will use his skills as he has over the years—and he has built an extremely distinguished career—to fight and win for the American workforce.”

Those were the words of President Donald J. Trump just before Vice President Mike Pence delivered the oath of office to U.S. Secretary of Labor Eugene Scalia in the White House on September 30, 2019.

Secretary Scalia previously served as Solicitor of Labor, the Department of Labor’s principal legal officer, working for Secretary of Labor Elaine Chao as a member of President George W. Bush’s Administration. As Solicitor, he pursued initiatives to protect low-wage workers, reduce unnecessary regulatory burdens, and enhance enforcement of workplace safety laws. He worked closely with Secretary Chao on matters such as the Department’s efforts seeking to recover the losses of employees and retirees in Enron’s pension plans Secand resolving a costly labor dispute at the West Coast Ports.

Prior to his confirmation as Secretary of Labor, Secretary Scalia was a lawyer with a national reputation as an expert in labor and employment law and in administrative and regulatory law.

Secretary Scalia served as a speechwriter to U.S. Secretary of Education William J. Bennett during the Reagan Administration. During the Administration of President George H.W. Bush, Scalia received the Department of Justice’s Edmund J. Randolph Award while serving as a Special Assistant to Attorney General William P. Barr.

Secretary Scalia has served as a lecturer in labor and employment law at the University of Chicago Law School, and as an adjunct professor at the David A. Clarke School of Law with the University of the District of Columbia. 

www.HRProfessionalsMagazine.com

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VIRTUAL PRE-CONFERENCE SESSION WITH DAVID ULRICH Monday, March 16, 2020 | Included with every SOAHR ticket “What’s Next for HR: A Point-of-View from Dave Ulrich”

CONFERENCE HIGHLIGHTS • EXPERT SPEAKERS: Hear from expert presenters at companies like Google, Turner, Chick-fil-A, Panasonic, Georgia Power, Metro Atlanta Chamber of Commerce, Randstad, ADP and more • PRE-CONFERENCE WORKSHOPS: Get a jumpstart on your learning with two optional interactive workshops and earn up to 6 recertification credits • NETWORKING: Mix and mingle with hundreds of HR professionals, people managers, and business leaders from across ATL and the Southeast

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If you are a professional interested in gaining a better grounding in law and regulation to advance your career, Emory Law’s juris master offers the insight and flexibility to help you achieve your goals. This 30-credit-hour master’s program can be completed either on-campus (full-time or part-time) or online.

A JM degree can help make students more valuable employees. Steve Sencer, Senior Vice President and General Counsel and Senior Advisor to the President, Emory University, describes the benefits of the JM: “The ability to think analytically, be comfortable with legal concepts, and engage thoughtfully with counsel is an increasingly important advantage, especially in highly regulated industries like higher education and healthcare. The Juris Master degree from Emory Law is an exciting opportunity to develop those skills, while remaining on a complementary career path.”

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With a greater understanding and appreciation for seeing situations from a different perspective, the JM program enhanced the contributions I can make as an experienced HR professional.”

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

For students interested in learning about health care law or business law, Emory Law offers 18-month, online courses of study in Health Care Law, Policy and Regulation; and in Business Law and Regulation.

The online program is comprised of 10 sequential 7-week asynchronous courses, with 3 three-day residencies.

You can build a curriculum that meets your educational goals, exploring a range of legal topics, such as employment law, business law and regulation, child and family law, environmental and natural resources law, health care law, policy, and regulation; intellectual property law, international business law, and nonprofit and development law. Additionally, the JM degree is designed to fit your busy lifestyle. Switch between online and on-campus formats to meet your needs.

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Managing financial and talent risks to create growth opportunities for organizational and employee wellbeing

By JEFF LEONARD

Businesses bank on their CFO’s ability to expertly manage two interrelated areas of responsibility — supporting successful growth and mitigating financial risks. And that CFO’s approach to the financial dimensions of organizational wellbeing and talent management strongly influences their ability to achieve these core goals.

People are their employer’s top asset because attracting, motivating and retaining talent are essential to sustained growth. The challenge is optimizing this relationship cost-efficiently while protecting or strengthening the organization’s brand.

MORE THAN

40% OF EMPLOYEES CAN’T AFFORD A

ASSESSING NEEDS There are some critical issues and opportunities that merit special attention when developing or refining a financial management strategy. On the workforce side of the equation, strong economic growth and low unemployment contrast with the financial stress many employees are experiencing. More than 40% can’t afford a $400 financial emergency.¹

$400 FINANCIAL EMERGENCY1

At the same time, employers are under the microscope of new legal, regulatory and public accountability requirements — magnifying the importance of their fiduciary responsibilities to employees participating in their retirement plans. There’s also the need to confront an upswing in leadership transitions and other organizational challenges as baby boomers approach and enter retirement.

SETTING PRIORITIES These financial management trends emphasize the need for: • Retirement plans that provide employees with the tools, resources and educational guidance to build a secure future of financial wellbeing • Executive compensation and benefit packages that help retain key leadership in a highly competitive market • Investment programs for both defined benefit and defined contribution retirement plans that fulfill fiduciary duties

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In each case, the smarter approaches are those that align with the needs and values of both individual employees and the organization as a whole. Get them right, and they become part of the essential machinery of a well-functioning enterprise. Get them wrong, and they can become major sources of risk — including reputational threats. Negative headlines can throw an organization off track for months, and may impact growth for a much longer period.

Standing firm on shifting ground starts with asking probing questions of financial stakeholders and decision makers. Their feedback helps identify where the most important risks and opportunities lie, and offers insights into formulating a plan to address them.

Jeff Leonard

North America Practice Leader, Financial & Retirement Services Gallagher Benefit Services, Inc.

¹ CNN Money, “40% of Americans can’t cover a $400 emergency expense,” May 2018 Consulting and insurance brokerage services to be provided by Gallagher Benefit Services, Inc. and/or its affiliate Gallagher Benefit Services (Canada) Group Inc. Gallagher Benefit Services, Inc., a non-investment firm and subsidiary of Arthur J. Gallagher & Co., is a licensed insurance agency that does business in California as “Gallagher Benefit Services of California Insurance Services” and in Massachusetts as “Gallagher Benefit Insurance Services.” Certain appropriately licensed individuals of Arthur J. Gallagher & Co. subsidiaries or affiliates offer securities through Kestra Investment Services, LLC (Kestra IS), member FINRA/SIPC and or investment advisory services through Kestra Advisory Services, LLC (Kestra AS), an affiliate of Kestra IS. Neither Kestra IS nor Kestra AS is affiliated with Arthur J. Gallagher & Co., or Gallagher Benefit Services, Inc. Neither Kestra AS, Kestra IS, Arthur J. Gallagher & Co., nor their affiliates provide accounting, legal, or tax advice. GBS/Kestra-CD(319574) (exp062020) This material was created to provide accurate and reliable information on the subjects covered, but should not be regarded as a complete analysis of these subjects. It is not intended to provide specific legal, tax or other professional advice. The services of an appropriate professional should be sought regarding your individual situation.

This is just one of 19 articles from Gallagher’s 2019 Organizational Wellbeing & Talent Insights. To download the full report, visit ajg.com/2019_owti. © 2019 Arthur J. Gallagher & Co. | 27335I

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Levelling the Playing Field: Legislative Efforts to “Fix” The Supreme Court’s Reading of the ADEA

N

ow more than ever, employees are working past what was traditionally considered to be “retirement age.” As a result, today’s employers are increasingly required to manage issues associated with an older workforce. Given these trends, employers should be aware of how potential age discrimination claims can impact their employment decisions. Moreover, employers should be aware of the Supreme Court’s stance on age discrimination claims (versus other types of discrimination claims) as well as the legislative efforts being undertaken to supplant current Supreme Court precedent.

The Age Discrimination in Employment Act The primary federal law governing age discrimination in the workplace is the Age Discrimination in Employment Act of 1967 (the “ADEA”). In enacting the ADEA, Congress expressly announced its intent to remedy situations where “older workers find themselves disadvantaged in their efforts to retain employment.” See 29 U.S.C. § 621(a)(1). Practically and procedurally, the ADEA functions in many respects like Title VII of the Civil Rights Act of 1964 (“Title VII”). At its core, the ADEA prohibits employers from discriminating against employees who are 40 years old or older based on the employee’s age. As such, where Title VII creates “protected classes” based on race, color, religion, sex, and national origin, the ADEA creates a “protected class” based on age for those who are 40 or older.

While the ADEA prohibits discrimination based purely on an employee’s age, it does not take into account many real-world scenarios where an employee’s age may be just one of several factors involved in an employer’s decision. A classic example is where an employer has multiple non-agerelated bases that would justify its termination of a 40+ year old employee but, in making its decision, the employer also takes the employee’s age into account. This type of scenario was examined by the U.S. Supreme Court in the case of Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). In that case, the Supreme Court characterized the above example as a “mixed-motive” age discrimination claim. The question before the Supreme Court in Gross was whether the ADEA protects older employees when the employer’s action is based on a “mixed-motive,” with only one of those motives relating to the employee’s age.

The Effect of the Gross Decision on ADEA Claims: “But-For Causation” is Mandatory In the Gross decision, the employee was 54 years-old and claimed that he had been “demoted” when his job duties were transferred to a younger worker. The evidence in the Gross decision indicated that while the employer did take the employee’s age into consideration, the employer would have otherwise taken the same action it took regardless of the employee’s age. In reaching its decision, the Supreme Court reviewed its prior rulings in Title VII “mixed-motive” cases where it generally held that a claimant could carry 14

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By JAMES B. TAYLOR

his or her initial burden under Title VII where he or she could show that impermissible “discrimination was a ‘motivating’ or a ‘substantial’ factor in the employer's action.” See Gross, 557 U.S. at 171.

However, when the Supreme Court analyzed the specific statutory language of the ADEA on the issue of “mixed-motive” scenarios, it found that the ADEA’s language in this regard was substantially different from Title VII (and, in particular, from certain amendments to Title VII which broadened that law) with respect to what an employee must show in order to carry his or her burden in establishing a claim for age discrimination. In this regard, the Court noted that “[u]nlike Title VII, the ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor . . . [m]oreover, Congress neglected to add such a provision to the ADEA when it amended Title VII.” Id. at 174.

The Supreme Court in Gross then looked to the text of the ADEA to decide whether it authorizes a mixed-motive age discrimination claim. In its review, the Supreme Court found that, under the ADEA, a claimant must show that the employer’s adverse action was taken because of age or that age was the reason that the employer decided to act. Id. at 176.

In other words, the Supreme Court found that “a plaintiff must prove that age was the ‘but-for’ cause of the employer's adverse decision.” Id. In judicial parlance, “but-for causation” means that a claimant must be able to show that “but for” his or her age, the employer would not have taken the adverse employment action at issue. Thus, under this reading of the ADEA, an employer can effectively take age into account as one of several factors in its employment actions and the employer does not violate the ADEA if the employee’s age is not the “but for” reason for the employer’s decision in taking an employment action.

The Supreme Court’s justification for its decision in Gross is that it was simply following the language of the ADEA as it was drafted by Congress.

In contrast, Title VII had been amended over the years to specifically allow claimants to bring “mixed-motive” claims. However, the ADEA has not been similarly amended. The practical outcome of this decision effectively made age under the ADEA a weaker protected class in comparison to other protected classes, such as race or sex under Title VII. The Gross decision, in effect, potentially relieved employers from liability under the ADEA where they considered an employee’s age in addition to other factors in making an employment decision even though that same employer would be potentially liable under Title VII if it took the same employment action with the employee’s race or sex as underlying considerations.

Efforts to “Fix” the Precedent Set by Gross After the Gross decision was issued in 2009, a variety of results followed.

Primarily, this case standardized the “but-for causation” rule under the ADEA for the entire federal judiciary (some Circuits had already been

following this rule, whereas others had not). Second, upon realizing the effect of the Gross case, several states (including California and Connecticut) passed state age discrimination laws and/or amendments to existing laws that clearly authorized age discrimination claimants to bring “mixedmotive” age discrimination claims under state law. A third outcome, not seen until formal legislation was introduced in early 2019, involves an ongoing attempt to legislatively amend the ADEA so that the same “mixedmotive” standards seen in Title VII cases would equally apply in cases involving age discrimination.

Proposed New Legislation: The Protecting Older Workers Against Discrimination Act This third outcome is encompassed in a proposed set of amendments to the ADEA collectively known as the “Protecting Older Workers Against Discrimination Act” (“POWADA”). The specific intent of the POWADA was to level the playing field between claims brought under Title VII and similar federal anti-discrimination laws and the ADEA by amending the ADEA “to establish an unlawful employment practice when the complaining party demonstrates that age or participation in investigations, proceedings, or litigation under such Act was a motivating factor for any unlawful employment practice, even though other factors also motivated the practice (thereby allowing what are commonly known as ‘mixed motive’ claims).”

See SB 485, Summary (2019). In the promotional literature regarding the POWADA, it is expressly made clear that this law is being introduced as a direct response to the Supreme Court’s ruling in Gross. Notably, the POWADA has received public endorsements from numerous public interest groups, including but not limited to The AARP, The American Association of People with Disabilities, The Leadership Conference for Civil and Human Rights, The National Employment Law Project, The National

Employment Lawyers Association, The National Partnership for Women and Families, and The Paralyzed Veterans of America.

The POWADA was first introduced by Representative Robert “Bobby” Scott (D-VA) in the U.S. House of Representatives as H.R. 1230 in February of 2019. H.R. 1230 was approved on January 15, 2020 by the House by a vote of 261-155, mainly along party lines. The POWADA was introduced to the U.S. Senate by Senator Robert “Bob” Casey (D-PA) as Senate Bill 485 and is co-sponsored by Senators Grassley, Leahy, and Collins. However, observers note that the POWADA is highly unlikely to be approved by the Republican-controlled U.S. Senate, particularly given President Trump’s January 13, 2020 public comments stating that he would veto the law if it were to pass in the Senate.

As such, in terms of efforts to ameliorate the effect of the Supreme Court’s decision in Gross and to “level the playing field” with respect to age discrimination claims versus other types of federal discrimination claims, the POWADA currently appears to be a non-starter given the current balance of power in Washington D.C. However, neither the underlying support for the POWADA nor the precedent set by the Supreme Court’s Gross decision are likely to change at any point in the near future. Given these facts, it appears likely that efforts akin to the POWADA legislation will be raised again by lawmakers in the coming years.

James B. Taylor, Attorney

Martenson Hasbrouck & Simon LLP jtaylor@martensonlaw.com www.martensonlaw.com

Martenson, Hasbrouck & Simon LLP focuses its practice

ADVICE THAT WORKS.

on labor and employment defense and business litigation.

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

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AT THE NLRB,

EVERYTHING OLD IS NEW AGAIN

By HOWARD B. JACKSON

In a series of decisions and one rule making announcement – all occurring in December - the National Labor Relations Board (“NLRB” or “Board”) overturned existing precedent and returned to previous longstanding rules on several topics, and relaxed several deadlines in its representation case election rules. These actions are summarized below.

EMPLOYER-OWNED E-MAIL SYSTEMS. The Board has long balanced employer property rights against employees’ rights to organize and engage in other activities under Section 7 of the National Labor Relations Act (“Act”). In a 2014 decision, Purple Communications, the Board held that employees who were provided with the ability to use employer-owned e-mail systems were presumptively permitted to use those systems for Section 7 activities, such as union organizing.

In Caesar’s Entertainment the Board overruled Purple Communications. In so doing, the Board ruled that employees have no statutory right to use employer-owned IT equipment, including e-mail, for Section 7 purposes. The Board observed that employers “unquestionably” have a property right in such systems. Further, in the modern workplace employees have a variety of means to communicate with each other, including the typical means of face-to-face contact as well as via personal e-mail and social media. Accordingly, finding that employees do not have a statutory right to use employer-owned systems does not unduly restrict employees’ ability to communicate with each other.

The Board created an exception to the rule where e-mail is the “only reasonable means for employees to communicate with each other.” That would seem to be a very rare exception indeed.

CONFIDENTIALITY RULES WITH RESPECT TO INVESTIGATIONS. In Banner Estrella Medical Center, a 2015 case, the Board held that confidentiality rules with respect to employer investigations must be examined on a case-by-case basis, and generally required employers to provide a specific legitimate need to maintain confidentiality in any given investigation.

In Apogee Retail, LLC, the Board overruled Banner Estrella Medical Center. Under the newly announced standard the Board will examine confidentiality rules under the standards for analyzing employer rules from Boeing Co. Under Boeing Co., the Board analyzes facially neutral rules that can potentially impact Section 7 rights by evaluating: “(1) the nature and extent of the potential impact of the rule on NLRA rights, and (2) legitimate justifications associated with the rule.” After conducting that analysis, the rules are placed in one of three categories: • Category 1 rules are lawful because they do not prohibit or interfere with Section 7 rights or the potential limitation on Section 7 rights is outweighed by justifications supporting the rule.

• Category 2 rules require individualized inquiry as to whether the rule prohibits or interferes with rights under the Act, and if so, whether the impact on such rights is outweighed by legitimate justifications.

• Category 3 rules are unlawful because they prohibit or interference with the exercise of rights under the Act and their impact is not outweighed by legitimate justifications.

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Against the analytical backdrop just described, the Board ruled in Apogee Retail that investigative confidentiality rules are lawful Category 1 rules where the rule by its terms applies only for the duration of the investigation. If the rule does not clearly provide that the confidentiality requirement ends at the conclusion of the investigation then it is a Category 2 rule and subject to the analysis of whether its potential impact on Section 7 rights is, or is not, justified by legitimate considerations supporting the rule.

This represents a shift in favor of permitting employers to maintain reasonable rules that provide confidentiality during investigations.

Based on the many and varied phrasings of such rules and the multiple justifications for them in various industries, the determination of whether a particular rule will be found lawful will not be obvious in many instances. Employers who have confidentiality requirements relative to investigations should examine the language of such policies carefully (preferably with the assistance of a qualified attorney) to determine whether the policy is compliant.

DEFERRAL TO ARBITRATION. The Board has long recognized that the Act encourages parties to resolve all sorts of issues voluntarily and pursuant to mutual agreement. One mechanism for doing so in many situations is by including grievance and arbitration provisions in a collective bargaining agreement between the employer and the union. Using such grievance and arbitration processes allows the parties to resolve all manner of issues.

One question has long been whether the Board should defer to arbitral procedures when the issues at arbitration include fact allegations that could also constitute an unfair labor practice under the Act. In a 2014 decision, Babcock & Wilcox Corp., the Board established a new standard for deferral. Under Babcock the Board would defer to an arbitral decision only if the arbitrator had been expressly authorized to decide the unfair labor practice issue, was presented with and considered the issue (or was prevented from doing so by the party opposing deferral), and NLRB law reasonably supports the arbitral award. The burden of proof was on the party urging deferral to the award.

In United Parcel Service, the Board overruled Babcock and returned to the standard that had previously been in place for years. Under this standard, the Board will defer to the award of an arbitrator where: “(1) the arbitration proceedings were fair and regular; (2) the parties agreed to be bound; (3) the contractual issue was factually parallel to the unfair labor practice issue; (4) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice, and (5) the decision was not clearly repugnant to the purposes and policies of the Act.” Also, the burden will be on the party opposing deferral to show defects in the process or the award.

As a practical matter, this standard will lead to greater deferral to arbitral awards.

This state of affairs promotes finality and resolution of disputes by the parties based on a process and procedure they have agreed upon via the collective bargaining agreement.

Further, the Board adopted its previous standard for pre-arbitration deferral to the grievance and arbitration process. Under that standard, where the collective bargaining agreement contains a grievance and arbitration procedure and there is a reasonable belief that the process will be conducted in a manner consistent with the post-arbitration deferral standard (i.e. that the proceedings will be fair and regular and the arbitrator will be presented with the appropriate facts), then the Board will defer to the arbitral process. Adoption of this standard will lead to greater deferral to arbitration where parties file charges with the NLRB that are by their nature susceptible of resolution via the contractual grievance and arbitration mechanism.

DUES CHECK OFF. When a collective bargaining agreement expires is the employer required to continue deducting union dues from the paychecks of employees who have authorized the deduction and remitting the dues to the union? Under a previous decision the answer was yes.

A detailed discussion of the revisions is beyond the scope of this article. In general, the rule relaxes various time frames for pre-election procedures. This will allow the parties to reasonably address matters such as who should and should not be included in the voting unit in advance of the election. The revisions also provide somewhat more time for the employer to provide information and comply with required postings. Again, the idea is to allow both the Board officials involved and the parties to address pre-election matters in an orderly manner so that all parties can have a greater understanding and better information before the election is held.

Application of these rules will result in some lengthening of the time between the filing of a petition and the date the election is held in cases where matters such as the makeup of the bargaining unit are in dispute. The time frames for submissions remain relatively short, however, and the Regional Director retains significant control over the pre-election litigation process. Accordingly, the new rules give the parties some breathing room but do not drastically alter the anticipated timing of elections.

In Valley Hospital Medical Center, Inc., the Board reversed that rule. Under Valley Hospital, if the collective bargaining agreement expires the employer is no longer obligated to continue deducting union dues from the employees’ wages and remitting payment to the union. Note that the employer may continue to do so.

But it is not obligated to do so under the Act. DO WE STILL HAVE “QUICKIE” ELECTIONS? On December 13, 2019 the Board issued a notice of modifications to the rules that apply to election procedures. The modifications will be effective April 16, 2020.

Howard B. Jackson, Member

Wimberly Lawson Wright Daves & Jones PLLC Knoxville, Tennessee office hjackson@wimberlylawson.com

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Supreme Court Will Consider Regulations Permitting Employers to Opt Out of Contraception Coverage

By RUSSELL W. JACKSON

In Trump v. Commonwealth of Pennsylvania, the Supreme Court has granted certiorari to hear a case challenging whether businesses should be allowed to opt out of contraceptive coverage for their employees for religious or moral objections.

Coverage Imposed by ACA In 2010, Congress passed the Women’s Health Amendment as part of the Patient Protection and Affordable Care Act (“ACA”). The Amendment directed health insurance providers to cover “preventative care and screenings” without cost-sharing (i.e., no copay). After the ACA was enacted, the Health Resources and Services Administration (“HRSA”) commissioned the Institute of Medicine to recommend services the Amendment should cover. The Institute proposed eight health services to be covered, which included the Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education.

In August 2011, HRSA issued guidelines adopting the Institute’s recommendations. After adopting the HRSA’s guidelines, the Departments of Health and Human Services, Labor, and Treasury – the agencies assigned to administer the ACA (the “Agencies”) – exempted certain religious employers (churches and their integrated auxiliaries) from complying with the contraceptive coverage guarantee. A number of religious groups urged the Agencies to expand the exemption to cover all entities that had moral or religious objections to providing contraceptive coverage. In response, the Agencies created an accommodation exempting nonprofit employers with religious objectives. The rules provided an “accommodation,” whereby nonprofit employers could refuse to “contract, arrange, pay, or refer for contraceptive coverage” if it self-certified its religious objection to its insurance company or third-party administrator. In those situations, female employees would receive access to contraceptive care directly from the insurance company or third-party administrator.

U.S. Supreme Court Requires Religious Accommodation Several employers brought challenges under the Religious Freedom Restoration Act (“RFRA”), and after a circuit split, the Supreme Court granted certiorari in Burwell v. Hobby Lobby, 573 U.S. 682 (2014).

Hobby Lobby held that the RFRA prohibited applying the contraceptive mandate to closely held for-profit corporations with religious objections. The Court held that the requirement “impose[d] a substantial burden on the exercise of religion” for those employers. Id. at 726.

In accordance with Hobby Lobby, the Agencies promulgated rules extending the accommodation to closely held for-profit employers with religious objections to contraceptive coverage. Even with the extended accommodation, entities objected to the mandate and litigation ensued.

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Another circuit split developed, and the Supreme Court granted certiorari to hear Zubik v. Burwell, 136 S. Ct. 444 (2015). The Zubik Court, however, vacated all lower court judgments and remanded the cases to allow the parties an opportunity to resolve the issue.

In response to Zubik, the Agencies sought public comment to resolve the objections while also providing a mechanism for contraceptive coverage. The Agencies received approximately 54,000 comments and ultimately determined they were unable to identify how to amend the accommodation that would satisfy the objecting entities and ensure women covered by the entities received coverage.

Administrative Agency Rules Following a 2017 executive order from President Trump, in October 2017, the Agencies released two interim final rules affecting the contraceptive guarantee. They expanded coverage to entities that either have sincere religious objections (religious exemption) or sincere moral objections (moral exemption). Each rule was immediately effective.

The Agencies relied upon the “good cause” exception to the Administrative Procedures Act’s (“APA”) notice-and-comment period to permit them to issue interim rules without notice and comment. The Agencies then solicited public comment for 60 days on the interim rules in anticipation of the final rules.

Pennsylvania sued to block enforcement of the interim final rules.

Pennsylvania argued (1) the interim rules violated the APA because they failed to comply with the notice-and-comment period and (2) the rules were arbitrary and capricious, an abuse of discretion, or otherwise contrary to law because they violated the ACA and were not justified by RFRA. The district court granted Pennsylvania’s motion for preliminary injunction. The district court held that the Agencies had neither independent statutory authority nor good cause under the APA to enact the rules without providing a notice and comment period. The government appealed the district court’s decision.

In November 2018, during the appeal’s pendency, the Agencies replaced the interim final rules with final rules, which were substantially similar to the interim final rules. The final rules allowed private employers to opt out of the contraceptive guarantee for religious reasons and allowed all employers, other than those publicly traded, to opt out on moral grounds.

Pending Supreme Court Review After publication of the final rules, Pennsylvania, now joined by New Jersey, filed an Amended Complaint and moved for a nationwide preliminary injunction, which was granted. The district court held that the final rules violated the APA’s procedural requirements.

The Third Circuit Court of Appeals affirmed. The court held that the Agencies did not have specific statutory authorization or good cause to forgo the notice-and-comment period. The court also held that although the Agencies received comments between the interim and final rules, the Agencies did not review the comments with an open mind; therefore, they were procedurally improper. Finally, the court held that the final rules exceeded the agencies’ authority pursuant to the ACA. The appellate court also held that the district court had acted within its discretion when it entered the injunction on a nationwide basis.

The government petitioned the Supreme Court for review, which has been granted. Before the Supreme Court, the government has argued the agencies had statutory authority to adopt the expanded exemptions under the ACA, the RFRA authorized the expanded religious exemption, the final rules do not violate the APA, and the court of appeals’ affirmation of the nationwide injunction was incorrect. Relying on Hobby Lobby, the government argues the religious exemption is specifically authorized as it prohibits the government from “substantially burdening a person’s exercise of religion” unless the application is “the least restrictive means” of furthering a “compelling government interest.” The government also argued that the agencies did not violate

the APA because they issued the final rules after soliciting and considering public comments.

Pennsylvania and the other states involved in the case (the “States”) argue that the court of appeals correctly held that the agencies improperly failed to follow the notice-and-comment procedures of the APA and that the agencies lacked authority to issue the rules under the ACA or under the RFRA. The States contend that the government’s notice and comment exercise surrounding the final rules did not reflect a real open-mindedness, and that if this approach were permissible, agencies would have no reason to comply with their obligation to seek comments prior to issuing final rules. With respect to the moral objection, the States pointed to the appellate court’s opinion, which noted that the government did not attempt to claim that the RFRA authorizes or requires the moral exemption.

With the current makeup of the Supreme Court, it is expected that the Court will likely, at least eventually, determine that employers with sincere religious objections should be exempt from the contraceptive coverage guarantee. However, it will be interesting how the Court analyzes the moral objection exemption. Oral argument and a decision are expected during this term, with a decision by summer 2020.

Russell W. Jackson, Partner

FordHarrison LLP rjackson@fordharrison.com www.fordharrison.com

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FY 2019: EEOC TRENDS IN THE TWO YEARS FOLLOWING THE #METOO MOVEMENT

By CHRISTOPHER M. LEWIS

On October 15, 2017, actress Alyssa Milano inspired millions of people around the globe with a simple, yet powerful, tweet:

If you’ve been sexually harassed or assaulted write “me too” as a reply to this tweet.

In the two-years following that call-to-action, the #MeToo movement—for better or worse—has had an undeniable effect on the collective consciousness of employers and employees alike. But has the momentum stalled?

In January 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) released its Fiscal Year 2019 Enforcement and Litigation Statistics. On the surface, these statistics show that the total number of sex-based discrimination claims decreased by more than 1,000 claims between FY 2018 and FY 2019. Yet a deeper dive into the statistics shows that the #MeToo movement is still affecting a significant portion of employers across the country.

Now, the challenge for employers is determining whether the drop in these claims coincides with a larger trend. And, if so, what should be anticipated as we enter FY 2020. As one may expect, the answer is nuanced.

I. FY 2019 HAD THE FEWEST TOTAL CHARGES SINCE 1997.

As a threshold matter, it is important to understand the trends that preceded the current statistics. During the Great Recession, the total number of charges of discrimination filed with the EEOC spiked from 82,792 to 99,922 from 2007 to 2008, respectively. Thereafter, the total number of charges hit an all-time high in 2011 with 99,947 charges filed in that year alone. From there, however, charges have steadily declined with 72,675 filed in FY 2019.

The amount of total charges filed in FY 2019 represents the fewest since the EEOC began tracking these figures in 1997. Yet the percentage of charges claiming discrimination based on sex has reached its own all-time high. In fact, the EEOC reports that 32.4% of all claims filed included a sex-based claim of discrimination. This figure is a slight increase from 32.3% of all claims filed in FY 2018—the pinnacle of the #MeToo movement.

Reports of these statistics are somewhat paradoxical, however. As recognized by the EEOC, statistics regarding harassment in the workplace are:

[B]oth an over-inclusive and under-inclusive data source for determining the prevalence of harassment in our workplaces.

It is presumably over-inclusive because not all charges and complaints of harassment include the type of behavior [the EEOC] considers harassment . . . Conversely, the number is presumably under-inclusive because approximately 90% of individuals who say they have experienced harassment never take a formal action against the harassment, such as filing a charge or complaint.

Indeed, prior to the #MeToo phenomenon, the EEOC’s Select Task Force on the Study of Harassment in the Workplace reported that “[t]he least common response of either men or women to harassment is to take some formal action—either to report the harassment internally or file a formal legal complaint.”

As we enter the next decade, the question becomes whether the frequency of sex-based discrimination claims will continue to increase, or whether other types of discrimination will be en vogue in an increasingly litigious area of the law.

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II. EMPLOYERS SHOULD PAY SPECIAL ATTENTION TO RETALIATION CLAIMS IN FY 2020.

Sex-based discrimination claims have dominated social media and news outlets for the better part of two-years. In response, employers have made concerted efforts to recognize, train, and respond to allegations of sexual harassment in the workplace.

Indeed, the #MeToo movement precipitated wholesale overhauls in both internal investigations and policies, which is a commendable endeavor. But what happens after an employee complains of sexual harassment or discrimination? The EEOC’s statistics suggest that despite the best efforts of employers, these claims remain perilous even after the initial complaint due to the potential for perceived or actual post-complaint retaliation.

While the total number of charges of discrimination has decreased over the past decade, retaliation claims are one of three types of charges (the others being sex and color) that have been on a steady increase in prevalence. In FY 2010, 36.3% of EEOC charges were based on retaliation. By FY 2019, that number rose to 53.8%—the largest increase in any category.

Specifically, the EEOC reports that 39,110 charges for retaliation were filed in FY 2019. This figure is especially troublesome for employers given that the EEOC finds discrimination in approximately 40% of these claims.

The FY 2019 statistics reveal just how imperative it is for employers to educate their employees on retaliation in the workplace, even if the overall amount of sex-based complaints is declining. Indeed, even if an underlying claim is non-actionable, retaliating against a complainant can expose an employer to thousands, if not millions, of dollar in damages.

It is essential that employers resist the allure of complacency in light of the decline in sex-based discrimination claims. Instead, employers must continue to diligently train their employees on the risks and liabilities associated with retaliation, and other protected acts, as we move into FY 2020. As evidenced by the EEOC’s statistics, this steadily-increasing area of litigation will only pose an increased threat as time goes on.

III. GENDER AND SEXUAL ORIENTATION DISCRIMINATION MAY BE THE NEW FRONTIER OF EEOC CLAIMS IN FY 2020.

Notably, the EEOC has recently argued extensively for inclusion of gender and sexual orientation as bases for discrimination.

Thus, while not currently included in the EEOC’s statistics, it is important that employers pay close attention to several cases before the United States Supreme Court. These include: Altitude Express, Inc. v. Zarda (Docket No. 17-1623); Bostock v.

Clayton County, Georgia (Docket No. 17-1618); R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission (Docket No. 18-107). Depending on their outcomes, these cases may very well have a substantial effect on charges of discrimination filed with the EEOC in FY 2020 and beyond.

In sum, while the #MeToo movement has slowly dissipated from the 24-hour news cycle, the ripple effects it has caused have been felt in the two-years since its popularization, and will continue to effect employers as we move further into FY 2020.

Until the Supreme Court decides the aforementioned cases, employers should simultaneously celebrate their progress in curbing workplace discrimination, and to also work towards ensuring that newly empowered individuals are not retaliated against for making complaints of discrimination.

Christopher M. Lewis, Associate Ogletree Deakins christopher.lewis@ogletree.com www.ogletree.com

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Solving the Skills Gap and Supercharging Your Leadership Pipeline You have likely heard it before: The world of work is changing — and at breakneck speed. The workforce is in a constant state of disruption, compounded by a recordlow unemployment rate and low levels of employee engagement.

These challenges are requiring business leaders to rethink their people strategies.

The ramifications of failing to do so are clear, from lost business opportunities caused by position vacancies to recruitment costs incurred from external searches for talent.

Misalignment of succession planning and business goals can lead to higher turnover, corporate instability and poor performance, and disengagement of top talent can be detrimental to an organization. On the other hand, organizations with “high-quality development plans” experience 27% lower turnover and see double the revenue per worker, according to 2015 research by Josh Bersin.

In PwC’s 22nd annual global CEO survey, respondents affirmed that the “availability of key skills” affects their growth prospects.

To refine and refocus their talent strategies, organizations need to focus on two closely related talent issues: the skills shortage and the leadership pipeline. With so much at stake, it’s important for business leaders to think and act strategically to mitigate the skills gap and develop a leadership pipeline while rethinking leadership potential.

An effective skills development program will: • Engage current employees rather than seek new talent.

• Retain experienced and older workers and managers.

• Provide tools that keep leaders engaged with their team members.

Another effective way to offset the skills gap is to attract seasoned talent. The share of workers age 55 and older has doubled over the past 25 years, according to the Society for Human Resource Management, with older workers finding better job opportunities in this tight labor market. To help older workers bring their skills and experience to bear in an organization, consider the following: • Job postings should avoid instructing applicants with more than the required years of experience not to apply.

• Interviewers should steer clear of asking applicants questions that hint at age, such as when they expect to retire.

• Organizations should retain and attract leaders who want to work past retirement age and come back part time.

With all these factors at play, organizations need not only to develop powerful solutions to the skills shortage but also to prepare and grow leaders to manage an increasingly dynamic modern workforce.

Misalignment of succession planning and business goals can lead to higher turnover, corporate instability and poor performance.

Developing a Leadership Pipeline and Rethinking Leadership Potential Addressing the Skills Shortage According to PwC’s survey, CEOs now rank “availability of key skills” as one of the most significant business threats to their organization’s growth prospects. Allaying these fears will require a shift in the approach to skills development and recruitment.

While every employee enters the workforce with a set of skills, it’s critical for an organization to proactively manage how they develop and grow those skills throughout their tenure. Investing time and resources in continued education and employee development pays dividends. Not only does it ensure the workforce is constantly growing and evolving, but research suggests it can also contribute to employee engagement and retention. Employees appreciate when a company supports their career interests and professional development.

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Leadership development programs typically focus on the most senior levels of the organization. But when organizations broaden their reach to be more inclusive of all employees, they reap the benefits. In fact, multiple research studies have found that when companies embrace diversity and inclusion, they outperform their peers.

Talent leaders should consider the following factors when developing leadership programs: Transparency: Despite the fact that many other areas of business operations practice transparency, the talent and succession pipeline tends to remain opaque. Many employees lack clarity around how they develop and grow into leadership positions.

Transparency needs to become part of the talent calibration process; for example, managers should provide more frequent feedback on development and initiate

By SUSAN HANOLD

development conversations earlier in onboarding programs and training.

Career mobility: Consider incorporating career pathing or succession features into the applicant process. For example, Generation X has the lowest promotion rate, since baby boomers are staying in their jobs longer and millennials are moving up quickly. By incorporating career pathing into the applicant process, companies can prevent the loss of high-potential Gen X talent.

The human touch: Use technology in moderation. Organizations can leverage artificial intelligence (AI) to improve engagement and personalize employee communications, but they shouldn’t be overly reliant on technology. Encourage person-to-person contact, and remember that younger workers are still developing their communication skills and need one-on-one communication to help them grow.

Holistic brand: It’s important to have both an external and an internal brand that is consistent and well communicated. Often, the focus of an organization’s brand is external, and it fails to address the internal candidate and employee experience. If the internal brand is weak, organizations risk a negative impact on their pipeline. It’s important to make sure the company has feedback loops in place to engage employees and make them feel heard.

To help workers grow and thrive within an organization, the employee experience can’t miss a beat. That means taking strong actions to address the skills gap and supercharging the leadership pipeline. Doing so can help improve employee engagement scores, diversify leadership, improve business continuity, aid in critical skills retention and enhance management’s visibility to the talent pipeline … all of which will help ensure that you are developing next-level leadership.

It is unsurprising that organizations with “high-quality development plans” experience 27% lower turnover and see double the revenue per worker. Yes, the workforce exists in a constant state of disruption — but an organization can thrive only by embracing the change and adapting toward the future.

To help workers grow and thrive within an organization, the employee experience can’t miss a beat.

Susan Hanold, Ph.D.

ADP, VP Strategic Advisory Services

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The Hiring Solution You Haven’t Considered

By CHRISTOPHER WATLER

Low unemployment and exceptional job growth over the last 10 years have created a serious problem for employers. The U.S Bureau of Labor Statistics’ Job Openings and Labor Turnover Survey reports that there are more job openings than there are people to fill them. This redistributes power in the employment market to workers, with competing organizations vying for the same candidates.

Even when employers are able to attract and hire employees, this imbalance continues to cause talent management challenges. According to the Workforce Institute’s 2019 Retention Report, there has been a significant increase in voluntary employee turnover in the last 10 years, and by 2023 35% of employees will choose to leave their jobs each year. This not only disrupts business operations, but also creates serious financial burden for employers; the estimated cost of losing a worker is about $15,000. When considering how these costs are amplified across your business, you may be wondering what you can do to improve hiring and retention at your organization.

With traditional talent pipelines tapping out, companies are considering ways to expand their pool of candidates. Many organizations turn to traditional staffing agencies, outsourcing the solution at a steep fee. While this model may work for some, others find it unreliable, overly transactional, or too expensive. Employers are starting to feel the financial and operational strain of high turnover, and the pressure to find a sustainable solution. However despite this pressure, there remains a large population of motivated, qualified candidates being overlooked. Every year, over 640,000 individuals return home from US prisons, and another 9 million are released from local jails.

While US unemployment hovers around 4%, the unemployment of the nation’s returning citizens is more than 6 times that. More than 50% of persons returning from prison remain jobless a year after release. During the period immediately after release, many also face rearrest and a return to incarceration. This misalignment highlights an opportunity for companies to make the smart business decision to hire returning citizens.

More than 50% of persons returning from prison remain jobless a year after release.

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Work with Justice-Involved Populations Whether you are surprised to learn about this untapped talent pipeline, or you have already considered working with this population, you’re probably wondering how this would look at your organization. You may have some concerns. You might be unsure of your company’s policy on hiring justice-involved candidates. Or maybe you just aren’t sure where to start.

Diversifying your talent pool by hiring returning citizens supports your business and the community, offering a socially-minded solution to your company’s workforce challenges. Returning citizens are qualified and eager to work, and hiring this population can help you avoid the competitive talent acquisition market. Additionally, programs like the Work Opportunity Tax Credit and Federal Bonding Program provide tax credits and protective bonds, offering financial incentives and reducing the risk of working with a new talent pool.

To effectively take advantage of this opportunity, there are a few best practices to keep in mind that are consistent with successful inclusive hiring efforts:

• Establish Inclusive Policies & Practices

• Support Internal Education & Training

• Be Proactive in Hiring Returning Citizens

• Partner with Social Service Organizations

Establish Inclusive Policies & Practices Your organization first wants to ensure you are complying with federal and local laws around hiring practices. Currently 13 states and many cities have “Ban-the-Box” laws which prohibit employers from asking about criminal history on a job application. Do you know if your organization is compliant with your state’s laws? Beyond legal compliance, your organization can design and implement inclusive hiring practices to ensure you are fair and equitable. For example, if you conduct background checks, establish quality assurance practices to ensure the data is correct. Reviewing your current practices and establishing policies that help returning citizens succeed is crucial throughout the talent life cycle.

Support Internal Education & Training As an inclusive employer, it is important to foster a work environment in which all employees (formerly incarcerated or otherwise) are able to succeed. Increasingly, employees want to work for employers that have a positive community impact. Whether or not your organization already has some type of diversity and inclusion initiatives, it is important to offer your employees the opportunity to engage in anti-discirimnation and implicit bias training. These initiatives not only work to prevent biases in your hiring processes, but also help create an inclusive culture that aligns with the expectations of your workforce.

Be Proactive in Hiring Returning Citizens If your organization wants to hire returning citizens, you must take steps to make this part of your hiring strategies. Think of your typical recruitment techniques when seeking new talent. You may attend hiring events and conferences, or post on targeted job boards. The same strategic planning applies when seeking a new workforce. Active participation in events focused on diversity and hiring returning citizens can help prepare your organization for a successful hiring process.

This engagement, coupled with clearly defining your commitment to inclusion in your recruitment materials, will go a long way to making sure your efforts are successful.

Partner with Social Service Organizations You do not need to be an expert in criminal justice to successfully work with returning citizens. There are many organizations with the mission of supporting the successful reentry of returning citizens around the country. Employment is just one of the many barriers facing returning citizens upon reentry to their communities, and as an employer it is important to understand what your employees require to succeed. By working with community partners, your organization can learn to successfully attract, train, and support candidates - and in turn effectively tap into an underserved, overlooked talent pipeline.

Organizations across industries are already promoting the success of their business and their communities by hiring formerly incarcerated individuals. Are you ready to join them in making a difference?

About the Center for Employment Opportunities CEO works with employers nationwide to diversify hiring pipelines, address internal and external barriers, and serve as a partner along the journey to becoming an inclusive workplace. With over 30 years experience as an employer and advocate for returning citizens, CEO tackles hiring challenges while promoting the success of an underserved population. To learn more about CEO, please visit: www.ceoworks.org

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Another Reason Family Matters…for Employee Benefit Plan Compliance!

By STACEY STEWART

Do you know who your family is?

That may seem like a silly question for many of us. We just made it through another holiday season hopefully filled with fun and revelry. You likely had to consider who you should invite to participate in your holiday gatherings and what might happen if you did/not invite certain relatives.

Well believe it or not, some of those same considerations apply to your corporate family as well. In fact, knowing who is considered part of your corporate family is extremely important for purposes of employee benefit plan (“EB”) compliance.

How you treat those family members can have significant financial and other ramifications. So, do you know who your family is… from a corporate perspective?

There are generally two sets of rules that can apply to bring another company into your family for EB compliance purposes: the controlled group rules and the affiliated service group (“ASG”) rules. The controlled group rules relate companies based on ownership whereas the ASG rules relate companies based on service relationship. If two companies are sufficiently related under one of these sets of rules then they are generally considered one employer for many benefit plan purposes.

To elaborate, there are two types of controlled groups and the analysis can get pretty involved, but to greatly oversimplify, in the end there generally needs to be at least 80% common ownership. A parentsubsidiary controlled group occurs where a company owns 80% of one or more others.

A brother-sister controlled group is where five or fewer individuals (estates or trusts) together own at least 80% of each company and more than 50% of each company taking 26

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into account each person's ownership interest only to the extent that it is identical with respect to each company. Plus there are situations which we term “constructive ownership rules” where one person can be considered to own the interest held by another (e.g., parent considered to own the stock owned by his/her minor children).

The IRS developed the ASG rules to address a perceived abuse with service providers, such as doctors, dentists, CPAs and attorneys, structuring their organizations to avoid being considered part of a controlled group. This enabled them to do certain things the IRS disliked, such as setting retirement plan provisions to favor the highly compensated.

There are three types of ASGs and although the rules are much too complex to cover in detail here, to once again greatly oversimplify, they generally apply where a company is performing services for another company or the two companies are regularly associated in performing services together.

Two types of ASGs require a service organization (which is a company, such as a law firm or engineering firm, where capital is not an income producing factor) and a measure of common ownership. But the third type – a management services group – can exist without any common ownership at all!

Constructive ownership rules apply here as well to attribute the ownership from one person to another in certain circumstances.

So…figuring out who is part of your corporate family can be complicated. But why is having a firm grasp of who is/not part of your corporate family so very important?

Here are just a few reasons: • You must include your controlled group or ASG members in determining whether your company is an applicable large employer (ALE) member for pay or play purposes; • You are required to identify controlled group and ASG members as part of ACA reporting for an ALE member (i.e., in Part IV of Form 1094-C – and this form includes a penalty of perjury statement); • You must run most nondiscrimination testing required for benefit plans under the tax code, including for cafeteria plans (Section 125 testing), self-funded plans (Section 105(h)) and 401(k) plans (e.g., 410(b) coverage testing) on a controlled group or ASG basis; and • Structuring your medical plan to cover employers that are not part of controlled group generally creates what we call a multiple employer welfare association or “MEWA” which is subject to additional federal and state rules.

Let’s take a minute and look at that last bullet point in more detail. It’s pretty common, especially among small and mid-size businesses, for owners to want to cover all the companies in which they have an interest under one plan. It can allow them to get a better deal on the coverage and perhaps cover a business that wouldn’t otherwise have access to a group health plan. But it’s important to understand that you typically only want to include companies that are part of the same controlled group in your group health plan. To do otherwise will create a MEWA. Most folks try to avoid creating MEWAs (although there can be reasons to do so) since they are subject to additional federal and state rules. These rules can be particularly significant if not downright problematic if the plan is self-funded (e.g., application and reserve requirements, annual auditing and funding reports etc. and some states even go so far as to prohibit self-funded MEWAs).

You may have noticed the above discussion indicates you can generally only cover controlled group members in your group health plan without creating a MEWA – what about ASG members? While these rules can require companies be considered together for many employee benefit-related purposes, if you include them in the same group health plan it will still create a MEWA. This produces the strange result that an entity must include ASG members in determining ALE status but cannot put them on the same group health plan to possibly avoid the pay or play rules triggered by attaining such status.

To sum things up, the reason you need to understand whether you are part of a controlled group and/or ASG is that it will drive plan design considerations and compliance obligations. It can implicate how you structure your plan, whether you are subject to ACA pay or play and reporting rules, who you can cover under the plan and whether the design will trigger additional tax obligations for your highly compensated employees. Family matters for EB compliance purposes – make sure you know where you stand!

Stacey Stewart, JD

Senior Advisor McGriff Insurance Services Stacey.Stewart@mcgriffinsurance.com www.mcgriffinsurance.com

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THANKS FOR THE TIP: U.S. DOL's Proposed Rule and Potential Enhanced Availability of "Tip Pools"

By XAVIER D. LIGHTFOOT and GRANT B. OSBORNE

The Fair Labor Standards Act of 1938 ("FLSA"), for decades, has permitted employers to pay some workers a lower minimum hourly wage than would otherwise be due if the workers receive at least a minimum amount per month in the form of customers' tips. The law regarding this established and well known tradition of many employees' reliance on gratuities continues to evolve.

The United States Department of Labor ("DOL"), on December 9, 2019, closed its extended comment period that allowed the public to weigh in on the DOL's recent Notice of Proposed Rulemaking ("NPRM") regarding the DOL's regulation of employers' use of customers' tips.

Notably, the NPRM would do away with federal regulations that prevent certain employers from implementing mandatory "tip pools" requiring the participation of both tipped and non-tipped employees.

The proposed change is certainly a win for employers in the hospitality industry, but there are still challenges that employers must bear in mind.

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BACKGROUND AND SHIFT IN 2011 The NPRM was issued in response to the Consolidated Appropriations Act of 2018 ("CAA") that amended Section 3(m) of the FLSA. Section 3(m), known as the "tip credit" provision, allows an employer to take a "tip credit" toward its minimum wage and premium overtime pay obligations to non-exempt tipped employees. An employer's tip credit may not exceed $5.12 per hour. That is the difference between (a) the minimum required hourly cash wage that employers, who are covered by the FLSA, must pay in "direct wages" to non-exempt "tipped" employees (of $2.13) and (b) the minimum hourly wage (currently $7.25) that employers must otherwise pay to employees in accordance with the FLSA. To take the tip credit, an employer must satisfy certain FLSA-requirements, such as a provision of notice to its employees providing: (1) the amount of direct wages that the employer is paying its tipped employees; (2) the amount claimed by the employer as a tip credit; (3) that the employer's tip credit cannot exceed the amount of tips actually received by the tipped employee; (4) that tipped employees may retain all of their tips, with the exception of a valid tip pool; and (5) that the employer cannot take the tip credit unless the tipped employee has been informed of such tip credit provisions. The FLSA permits employers to implement tip-pooling arrangements that require the sharing of tips among employees who "customarily and regularly" receive tips.

In an attempt to attract and retain valued employees who are not customarily or regularly tipped by customers, such as "kitchen staff," some restaurants have begun to implement mandatory tip pools involving both "front" and "back of the house employees." Such arrangements mean that servers are required to contribute their tips to a pool that is shared with non-tipped workers, e.g., cooks and dishwashers.

The use of such arrangements has been litigated and is now approved with the passage of the CAA. For example, the United States Court of Appeals for the Ninth Circuit, in Cumbie v. Woody Woo, Inc., ruled in 2010 that the FLSA does not prevent this kind of tip-pooling arrangement by employers who do not take a tip credit (i.e., who pay non-overtime hourly wages of at least $7.25).

But such judicial pronouncements are not the last word. In 2011, the DOL revised its regulations to provide that "tips are the property of the employee whether

or not the employer has taken a tip credit." This regulation sought to end tip-pooling arrangements that involved tipped and non-tipped workers. But it has not done so and has been the subject of much litigation throughout the country that has resulted in conflicting decisions.

CAA AND DOL ENFORCEMENT As discussed, the CAA amended Section 3(m) of the FLSA, and the resulting amendments have had various effects. First, the CAA made clear that the FLSA prohibits employers from keeping employees' tips, regardless of whether the employer takes a tip credit. Employers, as a result, may not lawfully include managers and supervisors in their tip pools (as explained below). Second, the CAA suspended federal regulations that were designed to prevent employers who did not take a tip credit from creating mandatory tip pools that include both tipped and non-tipped employees. (Such employers, as a result, may now lawfully implement such tip pools.) Third and finally, the CAA provides the DOL with authority to impose civil monetary penalties of as much as $1,100 per violation on employers who unlawfully keep their employees' tips.

The CAA, as one can see, has dramatically changed the law. The NPRM, if adopted, would change the law too, by: (1) requiring use of the DOL's "duties" test for executive employees in determining whether an employee is a "manager" or "supervisor" under the FLSA; (2) eliminating the so-called "80/20 rule" that determines when an employer may use an employee's tips as part of his or her wages for work that involves performance of both tipped and non-tipped duties; and (3) imposing a recordkeeping requirement that would require employers who do not take a tip credit and employ mandatory tip pools to (i) identify in payroll records every employee who receives tips and (ii) maintain records of the weekly or monthly amount of tips received as reported by each employee.

Under current rules, a non-exempt tipped employee is entitled to a direct wage equal to the federal minimum wage when more than 20% of his or her work during a shift consists of non-tipped-related work. Administrative and practical difficulties have arisen from this rule, and the DOL has admitted that it has confused employers. The newly proposed rule would permit employers to take a tip credit toward wages due for any amount of time that a tipped employee performs tipped and non-tipped duties, so long as the employee performs the non-tipped duties contemporaneously with the tipped duties, or within a reasonable time immediately before or after performing the tipped duties. Such evaluations, as one can readily see, may be fertile territory for debate and, possibly, more than occasional litigation.

The proposed rule does not change the settled doctrine that employers who take a tip credit based on the pooling of its employees' tips and payment of such tips out of the resulting pool may do so only by maintaining tip pools that involve only traditionally tipped employees.

POTENTIAL CHALLENGES As discussed above, under the proposed rule, the DOL will apply its established "duties" test, as an enforcement policy, to determine whether an employee is a "manager" or "supervisor" whose participation in a tip pool would prohibit retention of employees' tips. This would mean, essentially, that the DOL could not find an employee to be a manager or supervisor unless all three of the following factors are satisfied: (1) the employee's primary duty is management; (2) the employee customarily and regularly directs the work of two or more employees; and (3) the employee has the ability to hire or terminate other employees. Because of the DOL's expected enforcement policy, employers, if the proposed rule is adopted, will be able to exclude one or more of the foregoing duties from certain lower-level managers and include them in a tip pool (and base "tip credits" toward wages due on payment of wages out of the pooled tips), without violating the FLSA. Assuming that the DOL's proposed rule is adopted as provided in the NPRM, it will probably be tested in the courts, as neither the FLSA nor the CAA defines "managers" and "supervisors," and employers will seek ways to define those terms as narrowly as possible so that they may provide as many employees as possible with the opportunity to participate in tip pools and earn tips.

KEY TAKEAWAYS AND TIPS Employers who pay at least the full minimum wage to non-exempt and non-tipped employees will be able, if and when the proposed rules have been adopted, to include them in tip pools, so long as they are not "managers" or "supervisors," and be freed of the obligation to track the times in which they perform tipped versus non-tipped work. The CAA and proposed rule make it quite clear that an employer cannot lawfully retain an employee's tips, but the determination as to who is, in fact, a "manager" or "supervisor" will remain up for debate. The most conservative approach will militate in favor of barring all employees who perform any managerial function from collecting tips, whether individually or by participation in a tip pool.

Employers must also keep in mind state-specific wage and hour laws regarding tipped employees. Some states have stricter requirements providing employees with greater protections than the FLSA, and an employer's tip policies must typically comply with both federal and state laws (although there are exceptions).

The law in this confusing area remains in flux. Employers who wish to avoid running afoul of it and thus exposing themselves to troublesome governmental investigation(s) and/or potentially expensive litigation should consult experienced legal counsel for practical advice, as violation of the requirements, whether intentional or not, do not, unlike fine wine, improve with age.

Xavier D. Lightfoot

Attorney, Ward and Smith, P.A. XDLightfoot@wardandsmith.com www.wardandsmith.com

Grant B. Osborne

Attorney, Ward and Smith, P.A. GBO@wardandsmith.com www.wardandsmith.com

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Labor and Employment Law

Rising Stars We are proud to present the 2020 Rising Stars in Labor and Employment Law submitted by our sponsors.

These attorneys are 40 or under and have practiced law 10 years or less.

They are already top performers in their respective firms.

Ogletree Deakins

Ogletree Deakins is a labor and employment law firm representing management in all types of employment-related legal matters. U.S. News – Best Lawyers® “Best Law Firms” has named Ogletree Deakins a “Law Firm of the Year” for nine consecutive years. In 2020, the publication named Ogletree Deakins its “Law Firm of the Year” in the Labor Law - Management and Litigation - ERISA categories. Ogletree Deakins has more than 900 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

Josh C. Harrison

BIRMINGHAM OFFICE

Josh represents employers in all aspects of employment and labor law. An experienced litigator, he has obtained summary judgment for clients in federal employment lawsuits in a number of jurisdictions and has successfully handled appeals before the United States Courts of Appeals for the Fifth, Tenth and Eleventh Circuits and the Supreme Court of the United States. Josh also frequently advises clients regarding wage and hour compliance issues, accommodation and leave issues, and non-competition agreements.

Audrey M. Calkins MEMPHIS OFFICE

Audrey represents employers in a full range of labor and employment matters, including cases involving wage and hour claims, Title VII, ADEA, FMLA, ADA, and comparable state statutes. She also has intellectual property experience that she uses to assist clients with matters involving non-competition, trade secret, and non-solicitation disputes. Audrey regularly leads onsite training for supervisors, management, and employees regarding compliance with employment laws.

Bonnie Puckett ATLANTA OFFICE

M. Tae Phillips

Bonnie leads the firm’s Asia-Pacific practice, advising on all types of cross-border and global employment matters within the Asia region and worldwide. Some of her major work includes preparing contracts, handbooks, and corporate policies designed for worldwide as well as countryspecific use. Bonnie develops business-practical solutions for employers confronting various international challenges from onboarding, to compensation structure, to performance management, to transactional diligence and post-transaction workforce integration, to reductions in force.

BIRMINGHAM OFFICE

Tae focuses his practice on assisting clients with the many labor and employment challenges they face on a daily basis. A significant portion of Tae’s practice consists of employment litigation, and he also assists employers in traditional labor matters such as union avoidance, election campaigns, collective bargaining, and labor arbitrations. Tae is heavily involved in Ogletree Deakins’ Drug Testing Practice Group, where he advises clients on all aspects of drug and alcohol testing.

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Michael Oliver Eckard CHARLESTON OFFICE

Michael represents companies in labor, employment, restrictive covenant, and wage and hour matters in the health care, manufacturing, chemicals, hospitality, transportation and logistics, and retail industries, among others. He regularly advises companies on human resources and labor policy issues. Michael represents his clients in many types of employment litigation matters, including wrongful termination claims, sexual harassment claims, employment discrimination claims, employment contracts, wage and hour claims, trade secrets, and non-compete agreements.

FordHarrison

FordHarrison is a labor & employment defense law firm with 29 offices, including three affiliate firms, and is the sole member of the global employment law firm alliance, Ius Laboris. 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. 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.

Jessica Asbridge, Counsel ATLANTA OFFICE

Jessica Asbridge focuses her practice on the representation of management in both traditional labor and employment matters. She defends employers in relation to discrimination, harassment, retaliation and wrongful termination actions in the federal and state courts and before administrative agencies. In addition, Jessica counsels employers on a variety of issues, including employee terminations, how to avoid/resolve labor and employment disputes and litigation, and Title VII, FMLA, FLSA, and ADA compliance. Jessica has assisted airline clients in grievance resolution matters, including grievance arbitrations, and has represented management in union representation matters before the NMB. Jessica earned her J.D. from Indiana University, Maurer School of Law.

Loren Locke, Counsel ATLANTA OFFICE

Loren Locke focuses her practice on the representation of employers and employees in issues related to business immigration. She works directly with foreign nationals and their employers to help obtain a variety of nonimmigrant and immigrant visas and achieve lawful permanent residence in the United States. Loren also advises on consular practice and responds to Requests for Evidence and Notices of Intent to Deny or Revoke.

She assists clients in the full cycle of PERM including developing labor certification application case strategy, responding to audits, and requesting reconsideration in case of denial. Loren earned her J.D. from William & Mary School of Law.

Destiny Washington, Counsel ATLANTA OFFICE

Destiny Washington has an extensive background representing clients in state and federal courts and before administrative agencies. She has advised clients in all manner of employment law disputes including claims of discrimination, harassment, retaliation, and wage and hour violations. She also has experience in labor relations, counseling clients on the legal issues related to union campaigns, collective bargaining, and arbitrations. Destiny serves as a Co-Editor for the Georgia Employment Law Letter, a Georgia Co-Editor for the 50 Employment Laws in 50 States publication, and is a contributing author for FordHarrison’s EntertainHR blog. She is a veteran of both the U.S. Army and the Louisiana Army National Guard. Destiny earned her J.D. from Tulane University Law School.

David Anderson, Senior Associate ATLANTA OFFICE

David Anderson counsels and represents employers on discrimination and retaliation claims under the FLSA, FMLA, ADA, and Title VII and regularly advises clients on compliant background check policies under the FCRA and applicable state law. He provides guidance to clients on various business litigation matters including the enforcement of noncompetition agreements and claims for misappropriation of trade secrets, false advertising, breach of contract, and breach of fiduciary duty. David has practiced in state court and represented employers in administrative actions with the EEOC and DOL. David earned his J.D. from Emory University School of Law.

P. Maxwell “Max” Smith, Counsel NASHVILLE OFFICE

Max Smith’s legal practice is devoted to the representation of management in employment law matters including litigation and day-do-day counsel.

Max represents companies spanning a broad array of industries including healthcare, financial services, and manufacturing, and has helped his clients successfully resolve both litigation and charges before federal and state courts and administrative agencies. He has handled federal employment law claims on behalf of clients including alleged violations of Title VII, the ADA/ ADAAA, ADEA, FMLA, and FLSA. He has also represented clients in charges of violations of the Tennessee Human Rights Act, the Tennessee Disability Act and the Tennessee Public Protection Act. Max earned his J.D. from the University of Alabama School of Law.

Brian Spring, Counsel ATLANTA OFFICE

Brian Spring advises employers in employee benefit and tax related matters involving the design, implementation, and operation of qualified plans, health and welfare plans, and fringe benefits. Brian also has experience counseling clients in all aspects of executive compensation matters, including the negotiation and drafting of equity compensation plans and awards, employment/severance agreements, and other compensation arrangements. He regularly advises clients on health and welfare matters related to the Patient Protection and Affordable Care Act, HIPAA, and COBRA and executive compensation matters involving compliance with Code Sections 83,162(m), 280G, 409A, and 422. Brian earned his J.D. from Georgetown University.

Katie O’Shea, Senior Associate ATLANTA OFFICE

Katie O’Shea concentrates her practice on representing management in claims involving harassment and discrimination in the workplace, retaliation, and violations of federal and state employment law statutes.

During law school, Katie served as a Notes Editor of the Georgia Law Review, President of the Dean’s Ambassadors, secretary of the Women Law Students Association, and co-founder and treasurer of the Law Literary Society. Katie was a national finalist in the GRAMMY Foundation Entertainment Law Initiative legal writing competition. Katie earned her J.D. from the University of Georgia School of Law.

Amber Arnette, Associate ATLANTA OFFICE

Amber Arnette focuses her practice on the representation of airline employers in employment law and labor relations matters. Amber represents companies of all sizes operating in the airline industry. She routinely defends employers against employment law claims related to wrongful termination, retaliation, discrimination, failure to provide accommodations, harassment, and wage and hour violations. She represents employers in both state and federal court, as well as before administrative agencies on the state and federal level. She also guides airline employers through labor relations issues related to grievance, contract negotiations, and employee communications. Amber earned her J.D. from Emory University School of Law. www.HRProfessionalsMagazine.com

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FordHarrison Continued

Garrett Buttrey, Associate NASHVILLE OFFICE

Garrett Buttrey concentrates his legal practice on the defense and counsel of management in labor and employment law matters. Prior to joining FordHarrison, Garrett served as a legal intern and analyst for the HR Policy Association where he researched and drafted memoranda on labor and employment issues related to the NLRB, EEOC, and DOL. He also drafted amicus briefs on behalf of member companies to various federal U.S. Courts of Appeal regarding NLRB decisions on the certification of micro-units, employee use of employer-provided email systems, and the Board’s evolving definition of a “joint employer.” Garrett earned his J.D. from George Mason University.

Patrick Corley, Associate ATLANTA OFFICE

Patrick Corley's legal practice is devoted to the representation of management in labor and employment law disputes. Patrick handles litigation arising from claims of discrimination under Title VII, the Family and Medical Leave Act, the Americans with Disabilities Act, and the Fair Labor Standards Act. Patrick also counsels employers regarding implementing effective policies and procedures that comply with the law.

Patrick represents clients in state and federal court and also regularly handles charges of discrimination in administrative agencies, including the Equal Employment Opportunity Commission (EEOC). Patrick earned his J.D. from Emory University School of Law.

Courtney Majors, Associate ATLANTA OFFICE

Courtney Majors has experience representing and advising employers in litigation and various legal matters arising in the workplace. She is skilled in drafting settlement agreements, employee separation agreements, EEOC position statements, and employee handbook provisions. She has conducted extensive legal research and drafted memoranda on substantive and procedural issues pertaining to claims arising under Title VII, the FLSA, the ADA, the Equal Pay Act, and the FMLA. Courtney has additional experience advising employers in matters pertaining to collective bargaining agreements and union campaigns and elections.

Additionally, Courtney has worked in-house for a major U.S. airline.

Courtney earned her J.D. from Emory University School of Law.

Mollie Wildmann, Associate MEMPHIS OFFICE

Mollie Wildmann represents employers in all manner of disputes related to labor and employment law. While in law school, Mollie gained extensive legal experience working in private practice as a summer associate and law clerk in three different law firms. She also devoted time advising clients in a pro bono capacity as a student attorney with the University of Memphis School of Law Children's Defense Clinic and completed a judicial clerkship with the Honorable Judge Brian S. Miller of the U.S. District Court for the Eastern District of Arkansas. Mollie earned her J.D. from University of Memphis School of Law.

Littler

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. With deep experience and resources that are local, everywhere, a diverse team of the brightest minds, and powerful proprietary technology, we deliver groundbreaking innovation that prepares employers for what’s happening today, and what’s likely to happen tomorrow. Because at Littler, we’re fueled by ingenuity and inspired by you.

Kathryn S. McConnell ATLANTA OFFICE

Kathryn S. McConnell – Katy is a shareholder in Littler’s Atlanta office, where her litigation and counseling experience spans multiple industries, including retail, food and beverage, construction, staffing, telecommunications, manufacturing, transportation, advertising, automotive, payment solutions, and financing. She is a trusted advisor on all aspects of the employment relationship, a tenacious litigator, and a skilled negotiator. Katy is known for providing practical and business-forward advice both in compliance matters and on litigation matters to her clients. Katy works with her clients to find the best legal solution for their business needs. While Katy’s clients include global and national companies, she has a passion for advising and defending emerging growth companies, small businesses, start-ups, and entrepreneurs.

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Jay Inman

LEXINGTON OFFICE

Jay Inman - Jay is a shareholder in Littler’s Lexington office, where he represents employers throughout Kentucky and Tennessee in a full range of labor and employment law matters arising under federal, state, and local laws. He regularly provides advice, counsel, and training for employers of all sizes, and he has assisted clients with administrative agency investigations and charges, as well as represented clients at various stages of litigation, including trial and, if necessary, appeal. Jay has particular experience with drafting and enforcing arbitration agreements and appellate practice in employment law, and his industries of emphasis include healthcare and manufacturing.

Bass, Berry & Sims

Bass, Berry & Sims advises clients on labor and employment matters from a perspective that connects our clients’ dynamic labor and human resources needs with affirmative strategies. We partner with clients to provide creative, innovative and practical solutions to business problems that have legal ramifications.

Lymari Cromwell

Mary Leigh Pirtie

NASHVILLE OFFICE

Lymari Cromwell counsels clients in all aspects of employment and labor relations law, representing industries as diverse as healthcare, hospitality and manufacturing.

From medical leaves to background checks, Lymari helps employers keep in step with the constantly changing regulations that impact the workplace, and works to ensure correct interpretation and implementation of the laws.

Lymari has assisted with cases ranging from a 3,000-employee wage and hour collective action to a successful federal jury trial in a Title VII discrimination case.

NASHVILLE OFICE

Mary Leigh Pirtle helps human resources professionals and in-house counsel at companies of all sizes navigate complicated and evolving employment law issues. She defends employers in matters of labor & employment litigation in federal and state court, including complaints related to non-compete/non-solicitation agreements, reductions in force, wrongful discharge, discrimination and civil rights, and wage and hour compliance. Her practice also involves drafting employment agreements and restrictive covenants, advising clients on discipline, discharge of employees and employee relations, and drafting policies and employee handbooks.

Laura Mallory

Ginette Brown counsels clients in all aspects of employment and labor relations law, helping employers remain compliant with the constantly changing regulations that impact the workplace.

She has experience litigating cases and counseling clients regarding federal and state employment laws, securities law violations, contract disputes, workplace immigration, and compliance issues. Ginette frequently works with companies on issues regarding employee discipline, wrongful termination, discrimination, defamation, harassment, breach of contract, and other matters.

Kimberly Veirs

NASHVILLE OFFICE

Laura Mallory represents employers in all aspects of labor and employment law. She advises companies on a variety of employment matters and provides counsel to clients with respect to compliance with state and federal employment laws; hiring and termination policies; drug testing and other employment related issues. Her practice also involves the drafting of separation agreements, restrictive covenants, position statements, policies and employment handbooks.

Ginette Brown

NASHVILLE OFFICE

NASHVILLE OFFICE

Kimberly Veirs represents employers in state and federal litigation related to discrimination, retaliation, and wage and hour compliance. Kimberly also counsels clients in all facets of employment law, providing counsel with respect to state and federal employment law compliance, including employment law issues involving the FMLA, ADA, FLSA and OSHA. She advises employers in matters involving employee discipline, wrongful termination, retaliation, discrimination, harassment, wage and hour claims, and other employment-related matters.

Siskind Susser PC

Siskind Susser PC is one of the leading immigration law firms in North America. Our attorneys have experience handling all aspects of American immigration and nationality law. At Siskind Susser, we are committed to providing quality and efficient service to all of our clients. We have initiated and then played a leading role lobbying for a number of immigration-related bills over the last several years. Siskind Susser is a law firm committed to providing quality and efficient service. We constantly monitor developments in immigration law and use state-of-the-art technology for research, client communications, and case management.

Lily S. Axelrod

MEMPHIS OFFICE

Lily S. Axelrod is a Spanish-speaking attorney in the Memphis office of Siskind Susser. Her practice focuses on defending clients in deportation proceedings before the Memphis Immigration Court, including applications for cancellation of removal, asylum, special immigrant juvenile status, and permanent residency. Ms. Axelrod graduated with honors from Harvard Law School, where she served as President of the Harvard Immigration Project and an editor of the Harvard Latino Law Review. Ms. Axelrod also is a member of the American Immigration Lawyers Association, the International Bar Association, and the National Immigration Project of the National Lawyers Guild.

Jason Susser

MEMPHIS OFFICE

Jason Susser is an attorney in the Memphis office of Siskind Susser PC, where his practice focuses exclusively on immigration and nationality law. Mr. Susser represents businesses and individuals in several areas of immigration law including employmentbased immigration, family-based immigration, naturalization, and humanitarian cases. Mr. Susser earned his Juris Doctor degree from the University of Memphis, Cecil C. Humphreys School of Law. Mr. Susser is a member of the American Immigration Lawyers Association, American Bar Association, and the Memphis Bar Association. He is licensed and admitted to practice law in Tennessee.

Johnna Main Bailey MEMPHIS OFFICE

Johnna Main Bailey is an attorney in the Memphis office of Siskind Susser, where her practice focuses on family-based immigration and removal defense. She earned her Juris Doctor from John Marshall Law School. She has experience in Adjustment of Status, Asylum, Cancellation of Removal, Deferred Action for Childhood Arrivals (DACA), Naturalization, VAWA, U visas, and Withholding of Removal.

Johnna is a member of the American Immigration Lawyers Association and is licensed to practice in Georgia and Arkansas.

She is the current chair of the Mid-South Immigration Advocates, a nonprofit dedicated to providing immigration representation to low-income clients. www.HRProfessionalsMagazine.com

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Ward and Smith

Ward and Smith is a full-service North Carolina law firm with more than 35 practice groups, ranging from Agribusiness to Zoning. We serve businesses and individuals from offices in Asheville, Greenville, New Bern, Raleigh, and Wilmington. www.wardandsmith.com

Hayley Wells

EMPLOYMENT & LABOR: EMPLOYER ASHEVILLE OFFICE

Hayley's practice focuses on advising individual and corporate clients in matters of covenants not to compete, employment discrimination, discipline and termination, harassment, wrongful discharge, wage and hour issues, personnel policies and procedures, and preparation of employee handbooks and employment agreements. She also chairs the firm's Alcoholic Beverage Law Practice Group.

Devon Williams

EMPLOYMENT & LABOR: EMPLOYER RALEIGH OFFICE

Devon leads Ward and Smith's Labor and Employment Practice. Her practice focuses on a wide range of labor and employment issues, including wage and hour matters, federal contractor compliance, employment discrimination and harassment, employee discipline and termination, personnel policies, and background checks. In matters relating to employee benefits, she concentrates on issues confronting welfare benefit plans (such as medical, dental, and other plans) and their sponsors, including the provisions and impact of the Affordable Care Act.

DATA FACTS Promotes Julie Henderson to Vice President, Background Screening Sales Julie Henderson joined Data Facts in 2014 and immediately made her mark on the company with her ability to understand client needs and her drive to succeed. She is a top-level expert at assisting organizations with their background screening policies and best practices. Since joining Data Facts, she has been awarded the Data Facts top sales award, the Eagle Award, 3 times and Data Facts' top company award, the Diamond Award, once.

A Memphis native, Julie holds a Bachelor of Science degree from the University of Memphis and is FCRA Certified. She is an active member of the Society for Human Resources Professionals (SHRM), both on the national level and with the local Memphis chapter.

Data Facts CEO, Daphne Large, advised, “Julie has excelled in everything she has done since the day we hired her. She upholds our company’s core values admirably.

In addition to performing an outstanding job in sales, she possesses the unique talent of being a highly effective sales manager. Julie is an asset who cares deeply about our customers, our entire team, and Data Facts. I can’t wait to see all that she accomplishes in her new role.”

Julie assumed her new position January 1, 2020.

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The Department of Labor’s New Regulations to Determine JointEmployer Status for FLSA Liability

By BENJAMIN P. KAHN

On

January 16, 2020, the U.S. Department of Labor, Wage and Hour Division (“DOL”), published a new final rule on joint-employer status under the Fair Labor Standards Act (“FLSA”) in the Federal Registry, which will be effective March 15, 2020. If two companies are joint employers of an employee, they are jointly and severally liable for compliance and damages under the FLSA. The DOL updated its joint-employer regulation to promote certainty for employers and employees, reduce litigation, promote greater uniformity among court decisions, and to encourage innovation in the economy. The regulations set out two scenarios where there could be joint employer status. The first scenario encompasses the situation where a third-party simultaneously benefits from the employees’ work for the employer. The second scenario is where the employee works for two different employers that are sufficiently associated to be considered joint-employers. Because the first scenario entails a more complicated analysis and is a more common focus of litigation, this article is dedicated to it.

The three most significant parts of the new regulations are 1) the adoption of a four-factor balancing test to determine joint-employer status, 2) the identification of factors that are not relevant to joint-employer status, and 3) eleven helpful examples to help employers and courts apply the new regulations.

Four-Factor Balancing Test to Determine Whether A Third-Party Is a Joint-Employer

harassment policies and background checks, and to including standards in its employee handbook without raise joint-employer issues.

The regulations also give companies further leeway by including a very narrow definition of “indirect control.” The third-party exercises “indirect control” of the employee only if they give “mandatory directions to another employer that directly controls the employee.” What is explicitly not included as “indirect control” are the thirdparty’s requests, recommendations, or suggestions.

Essentially, as long as the employer can voluntarily make the decision after receiving the request from the third-party, the mere ability to make the request is not relevant to the third-party’s joint employer status. This can include the third-party requesting for the employer to remove an employee, as long as the ultimate decision to remove or ultimately terminate the employee is the employer’s voluntary decision. This can also include a third-party (such as an association) offering its members’ employees optional benefits including group health coverage and a pension plan.

(iv) Maintains the employee’s employment records.

In addition to the four factors, the regulations concede that “additional factors may be relevant” to determining joint-employer status but emphasize that such additional factors must indicate that the third-party “exercises significant control over the terms and conditions of the employee’s work.” In the supplemental information, the DOL explained that it included the possibility of “additional factors” to recognize that courts do not “blindly” apply the four factors.

The regulations emphasize that the third-party must actually exercise, directly or indirectly, one of these four “indicia of control” to be considered a joint-employer; it is not enough that the third-party has the ability or power to take action as to the employer. For instance, contractual language that grants or reserves the third-party the right to take one of these actions, alone, is irrelevant unless the third-party actually takes the action.

Irrelevant Factors to the Determination of Joint-Employer Status

Hence, third-parties do not have to contractually concede control of who is doing work for them and how that work is being done in fear of automatically triggering joint-employer status. Additionally, third-parties can contractually require employers to comply with specific legal obligations, meet health and safety standards, or include monitoring and enforcement agreements without creating joint-employer status. A third-party’s requirements also can include requiring the employer to be FLSA compliant, to institute anti-

The DOL deemed irrelevant numerous factors, which in the past have been used to argue jointemployer status exists. Most significantly, the regulations indicate that “whether the employee is economically dependent” on the third-party has no relevance to the third-party’s joint-employer

The four factors to analyze the potential joint-employer’s relationship with the employee are whether the potential joint-employer: (i) Hires or fires the employee; (ii) Supervises and controls the employee’s work schedule or conditions of employment to a substantial degree; (iii) Determines the employee’s rate and method of payment; and

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status. The regulations listed other examples of irrelevant economic dependence including (1) whether the employee is in a specialty job or a job that requires skill and initiative, (2) whether the employee has an opportunity for profit or loss based on her skill, (3) whether the employee invests in equipment or material required for the work, and (4) the number of contractual relationships, other than with the employer, that the third-party has entered into to receive similar services. Deeming these factors as irrelevant to the issue of jointemployer status is significant because they allow the third-party to be more appropriately focused on its direct and indirect relationship with the employee and the four primary factors, without having to worry that action taken by the employee or economic realities, including the third-party’s overall business model, will undercut the analysis and create a joint-employer status. Of course, it is unknown how closely courts will follow the DOL’s direction that economic dependence is irrelevant.

Examples of Joint-Employer Status Analysis

Perhaps the most sweeping part of the new regulations is that whether the thirdparty and employer are in a franchisor-franchisee relationship has no relevance to whether the third-party has joint employer status with the employer.

Additionally, included as not being relevant were brand and supply agreements and similar business models. The DOL explained that these types of relationships are based on business relationships and economic features of business models –rather than the relationships between employers and employees, which is the focus of the FLSA. Other economic relationships that are irrelevant to the joint employer status is if the employer operates a business on the thirdparty’s premises, if the third-party and the employer jointly participate in an apprenticeship program, and if the third-party provides the employer with a sample employee handbook. The regulations also allow the third-party to require quality control standards and to specify and monitor the size, scope, and deadlines of projects.

Conclusion

120 YEARS OF DOING THE WRIGHT THING.

In addition to the technical elements, the DOL provided eleven samples of common situations to help illustrate how the regulations should be applied and to give guidance to companies.

Included in the examples are restaurants, offices hiring a janitorial company, packaging companies, staffing agencies, associations with members, large national companies with other businesses in their supply chain, large franchisors, and retail companies contracting with maintenance companies. The examples are not intended to be industry specific and can be widely applied, and courts will likely fill in the gaps.

The new joint-employer regulations give companies the ability to take steps to avoid joint-employer status and will require courts to examine the actual relationship between companies and workers to determine joint-employer status, instead of the labels put on those relationships.

Benjamin P. Kahn

bpk@kullmanlaw.com The Kullman Firm www.kullmanlaw.com

Since 1900, Wright Lindsey Jennings has promoted progress and positive social change. We are dedicated to growing our state and our communities, annually supporting more than 120 organizations through philanthropy and volunteerism. We strive to advance the practice of law, proactively developing knowledge in emerging legal areas and industries. Wright Lindsey Jennings’ pioneering spirit serves our clients, our communities and our firm well.

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37

Bans and Such

By JOHN HAWKINS

To address this issue, 17 states and 20 local bans (as of February 2020) were passed to eliminate the use of the salary history question with regard to employment decisions. These differ slightly. For example, some states allow employers to ask about salary history but cannot discriminate against the candidate if they decide not to divulge the history.

Other states have banned the question entirely AND the use of it (even if the applicant volunteers it) to make hiring decisions. If employers hire in these states, cities, and parishes, they must adhere to the rules of that area. Can this be confusing? Absolutely!

“What is your current income?”

What should companies do?

For decades, employers asked job seekers this question without hesitation. A candidate’s income was considered an open book that HR and hiring managers felt privy to without compunction. Salary information could be used to figure out the type of compensation package an applicant would accept, and even what they were worth.

Whether your company operates and hires in geographical areas where there’s a ban on asking about salary, or your organization is simply taking steps to reduce pay disparity, reviewing how you’re using the salary history question is a smart move. Employers can address the salary history question ban while still maintaining successful hiring practices in several ways.

Actions

HR

Should Take Regarding the Salary History Question

Certain conclusions were drawn from a job seeker’s salary history. If it was too high, employers might decide to pass over offering the person the job because they were “too expensive”. If it was too low, the applicant could be perceived as not qualified enough or further along in their career path to handle the expectations of the position they were seeking.

All this is evolving, and HR must be ready.

What happened?

Once a staple of the interviewing and hiring process, the salary history question has recently come under fire for a big reason: Pay disparity.

If, for example, a woman and man are vying for the same position, but the woman is making $50,000 a year and the man is making $58,000 a year, the woman’s offer may be lower than the man’s. The philosophy here is that the salary history question keeps the gender income gap (in 2019 it was estimated that a woman makes 79 cents to a man’s dollar) from narrowing.

Without the question, both parties will be offered the same salary which, over time, helps close the gender pay gap.

Since a position’s salary is open to negotiation, there are usually no hard-and-fast numbers that employers don’t budge from. The salary history question typically sets the starting point higher for men than it does for women.

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Train! Train! TRAIN Your People The first action is to address your hiring team and make certain they understand what is and is not acceptable and/or legal.

Explain why the salary history question is no longer part of the interviewing and hiring process and answer their questions. Help them replace the inquiry with other questions that will give them an understanding of the applicant without overstepping.

Document your policy on the salary history question in all training material and your employee handbook.

Follow Industry and Location Salary Guidelines Compensate your employees fairly and without discrimination by staying competitive and relevant to your company’s geographic location and industry. Use online industry sources to research the income that every position you hire for should be compensated. Benchmarking off geographic averages helps you document how pay is determined for everyone and keeps employees who do the same work from dealing with wide income discrepancies. This makes the salary history question less important to your process.

Use Other Ways to Determine A Candidate’s Hireability (yes, we made that word up) While the size of a job applicant’s salary was previously looked upon as a way to gauge a person’s worthiness to be hired, there are other, better ways to determine that. Assessment testing is a powerful tool to learn about a candidate’s attitudes and behaviors about work, for example.

In-depth interview questions and mock job projects are other ways to gather concrete information on the job seeker and their potential fit within your organization. Finally, employment verifications and reference checks can assist in gaining background information on job candidates’ abilities and skills.

With several states and cities banning the salary history question, and more in the process of doing so, it’s essential for employers to look at alternate ways to interview and hire their job candidates.

They should also review the way salaries are determined and streamline them based on uniform information. Over time, these efforts will close the gender pay gap and every worker will be paid fairly for their positions.

Set A Salary Range Instead of basing a job offer on what a job candidate currently pulls down, set up a pay range for every position in your company. This is a fair approach and helps everyone who does similar jobs be paid similar wages. In addition, if a person is qualified for the job, he or she won’t be lowballed because they have been underpaid in the past. Over time, these processes will even out the playing field.

John Hawkins

Senior National Account Executive jhawkins@datafacts.com www.datafacts.com

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39

Constitutional Amendments on Right to Work:

Tennessee

Steps Up to the Plate

By JAMES V. THOMPSON

New legislation in Tennessee’s General Assembly seeks to cement into public policy the state’s long-standing “Right to Work” laws. Senate Joint Resolution 648, introduced in early January 2020, would propose a new amendment in the Tennessee constitution, reading as follows: It is unlawful for any person, corporation, association, or this state or its political subdivisions to deny or attempt to deny employment to any person by reason of the person's membership in, affiliation with, resignation from, or refusal to join or affiliate with any labor union or employee organization.

This language is already familiar in Tennessee’s jurisprudence. Tennessee already has an almost identical provision codified at Tennessee Code Annotate § 50-1-201. That statute has been unchanged since its adoption in 1947. Additional Tennessee statutes go even further. State laws specifically prohibit employment contracts that discriminate based on a worker’s membership in, resignation from or refusal to join any labor unions or employee organizations (see Tenn. Code Ann. § 50-1-202), and also prohibit employment discrimination based on a workers’ payment or failure to pay dues, fees, or other charges to any labor unions or employee organizations (see Tenn. Code Ann. § 50-1-203).

These statutes tend to promote workers’ (and employers’) rights over unions. These additional provisions were also enacted in 1947 and have remained unchanged since that time. By these measures, Tennessee law arguably was decades more advanced over the U.S. Supreme Court’s 2018 decision in Janus Currently v. AFSCME, which held a states have taken government employee’s free speech rights trumped a union’s measures to include Right right to assess and collect agency to Work language into dues from employees who were their constitutions. non-union members.

nine

So what makes this new action in Tennessee noteworthy?

First, the proposal would establish Tennessee as one of only a few states to adopt a constitutional amendment protecting employees’ right to work. Currently nine states have taken measures to include Right to Work language into their constitutions. For that matter, only 27 states even have Right to Work laws currently on their books. States began to 40

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enact these laws after passage of the Taft-Hartley Act in 1947, which amended the National Labor Relations Act to prohibit unions from engaging in “unfair labor practices,” such as jurisdictional strikes, solidarity or political strikes, and monetary donations by unions to federal political campaigns. The Right to Work laws banned exclusive union shops on the state level, giving employees further protection from employers who would hire only labor union members or require new employees to become union members.

Tennessee’s constitutional amendment proposal is also extraordinary in light of the three-step, multi-year process required to enact such amendment. Under Tennessee law, a constitutional amendment must be passed by a single majority of both the state’s House of Representatives and Senate in one of Tennessee’s two-year General Assembly sessions. Next, the same amendment must be passed by a two-thirds majority of both legislative bodies in a subsequent two-year General Assembly. The final step requires passage by a majority of voters in a statewide referendum. Thus, a constitutional amendment in Tennessee is neither lightly proposed nor easily completed. By the same turn, a constitutional amendment in Tennessee, once adopted, is not likely to be quickly or easily overturned.

Additionally, the proposed constitutional amendment would apply more broadly. Tennessee’s current Right to Work statute applies to “any person, firm, corporation or association.” A key addition in the proposed amendment is the state itself. Where the current statute omits state government, the amendment specifically includes the “state and its political subdivisions.” Were the amendment adopted, Right to Work protections would then apply to both private-sector businesses and state and local governments. While this may seem insignificant, recall that Janus v. AFSCME, the latest significant U.S. Supreme Court decision on Right to Work laws, specifically involved a government employee and a public employees’ union—not a private business.

The arduous task of amending Tennessee’s constitution also begs the question: why adopt a constitutional amendment for a law that has existed for over 70 years?

Tennessee’s proposed constitutional amendment comes at the same time the legislature in its neighbor state, Virginia, is debating whether to repeal its own Right to Work law. Notably, Virginia enacted its Right

to Work law in 1947, the same year as Tennessee. Equally notable, Democrats recently assumed control of that state legislature. Tennessee’s legislature, in contrast, is solidly Republican: 28 of 33 state Senate seats and 73 of 99 state House seats. Illinois, meanwhile, has Democrats proposing a state constitutional amendment entirely opposite to Tennessee’s version—one which would prohibit Right to Work laws in Illinois. Based on these latest legislative actions, it appears clear that political ideology factors into today’s current Right to Work laws just as strongly as when a Republican-led Congress passed the Taft-Hartley Act over Democratic President Harry Truman’s veto in 1947.

Proponents of the Tennessee constitutional amendment tout the need to protect local workers’ rights, as well as opportunity for job growth in the state, on a more permanent basis. They view Right to Work laws as enticing to employers who may want either to relocate into Tennessee or to expand existing business operations in Tennessee. Tennessee’s Governor Bill Lee made news in 2019 for his public objections to unionization efforts by the United Auto Workers at the Chattanooga, Tennessee Volkswagen facility. Lee argued that the presence of labor unions in Tennessee would make it harder for the state to recruit other businesses and remain economically competitive. Workers at the Chattanooga facility voted against unionizing shortly after Lee’s visit. Business groups as well have voiced support for the Right to Work constitutional amendment. The Tennessee Chamber of Commerce has stated that 88% of its members, including both large and small businesses, support Right to Work protections in the constitutional amendment.

In contrast, opponents point to studies that suggest workers in Right to Work states make less money on average and are more likely to suffer from workplace fatalities than their counterparts in non-Right to Work states. They would rather focus on more immediate worker protections than laws centered on unionization. Opponents also argue that Right to Work laws effectively create “freeloaders,” workers who receive the benefits that unions offer, yet who do not themselves financially support unions and who cannot be fired for their lack of union support.

U.S. Bureau of Labor Statistics data shows 10.3% of wage and salary workers in the U.S. (16.4 million) were union members in 2019. This percentage has decreased from 1983, when 20.1% of wage and salary workers in the U.S. (17.7 million) were union members. The decline in union membership, along with reinforced protections for non-union workers to reap union benefits without giving financial support, likely elevates the importance of Tennessee’s efforts to make Right to Work provisions a more permanent fixture in the state’s law.

The immediate effect of Tennessee’s proposed constitutional amendment on the state’s employers and workers is likely negligible. Private-sector businesses and workers are already covered by current Right to Work laws, and the Janus decision appears to provide similar protections for public-sector employees. However, Tennessee’s proposal, and potential adoption, of a Right to Work constitutional amendment likely fuels momentum for employers and conservative policymakers seeking to avoid entanglement with unions.

Unconventional approaches.

Ingenious results.

At Littler, we’re lawyers. We’re also innovators and strategists, passionate problem solvers and creative disruptors. And we’re committed to helping our clients navigate the complex world of labor and employment law by building better solutions for their toughest challenges.

Fueled by ingenuity.

Inspired by you. littler.com 3424 Peachtree Road NE | Suite 1200 Atlanta, GA 30326 420 20th Street North | Suite 2300 Birmingham, AL 35203 100 North Tryon Street | Suite 4150 Charlotte, NC 28202 333 West Vine Street | Suite 1720 Lexington, KY 40507 3725 Champion Hills Drive | Suite 3000 Memphis, TN 38125

James V. Thompson, Attorney Rainey, Kizer, Reviere & Bell, PLC jthompson@raineykizer.com www.raineykizer.com

333 Commerce Street | Suire 1450 Nashville, TN 37201

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Undocumented Worker Awarded Backpay

By BRUCE E. BUCHANAN

The U.S. District Court for the Western District of Tennessee, in Torres v. Precision Industries, Inc., Case No. 1:16 – cv -01319-STA (Jan. 27, 2020), held an undocumented worker was not precluded from receiving backpay or other damages due to his discharge for pursuing a worker’s compensation claim.

The Immigration Reform and Control Act (IRCA) of 1986 did not preempt Tennessee’s worker’s compensation laws for a retaliatory discharge claim.

Retaliatory Discharge Believe it or not, this case began in 2012 after Torres was discharged by Precision Industries.

Torres was employed by Precision for over 1 ½ years, from January 2011 to September 2012.

Although Torres was undocumented, Precision claims it did not know this as Torres provided a false Social Security card. However, Precision did not obtain an I-9 form from Torres or any other employees.

On May 17, 2012, Torres injured his back at work and thereafter reported it to management.

Management sent Torres to a doctor, who advised him that he needed to be off work for the remainder of the week. Thereafter, Torres returned to work without a medical release, which was a company requirement. Torres continued to experience back pain, which he claimed he reported to management. In August, Torres went to his own doctor. However, the company said their worker’s compensation insurance would not pay the medical bill because the company was not aware of any new injury. After Torres retained an attorney concerning the worker’s comp claim and the attorney spoke to the company, Torres was fired by Precision.

The reasons given were Torres was a disruptive negative force, who tried to extort money from the company, was not a productive worker and had stolen from the company in the past.

The employer’s reasons for discharge proved to be pretextual. Based upon the above facts, the Judge found a retaliatory discharge.

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Is an Undocumented Worker Entitled to Backpay?

The next question is whether Torres is entitled to backpay as an undocumented worker. Precision argued IRCA precluded Torre’s recovery of backpay, citing Hoffman Plastics Compounds, Inc. v.

NLRB, 535 U.S. 137 (2002). Torres disagreed and stated Precision’s position would leave undocumented workers vulnerable to “unscrupulous” employers. The Court found it was “unable to discern a clear and manifest intention of Congress to preempt state laws regulating worker’s compensation.”

Preemption?

According to the testimony at trial, Plaintiff’s immigration status did not factor into his termination, as all parties involved testify that they did not know his status.

Therefore, the Court held in favor of Torres, the undocumented worker.

Conclusion It is expected this litigation will return to the 6th Circuit Court of Appeals. Where it will end nobody knows so stay tuned.

In a similar case, Sanchez v. Dahlke Trailer Sales, Inc., 897 N.W.2d (Minn. 2017), the Minnesota Supreme Court found no preemption and stated: Enforcing labor laws against employers that employ undocumented workers does not stand as an obstacle to the purpose of the federal immigration law.

Rather, such enforcement furthers the IRCA’s goal of discouraging employers from hiring unauthorized aliens. If the worker’s compensation anti-retaliation statute does not apply to employers of undocumented workers, then those employers are in a position to save costs, especially in borderline cases in which they can plausibly claim ignorance of an employee’s immigration status until after he or she becomes injured at work

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

SISKIND SUSSER PC Tennessee’s Largest

The District Court in the case at bar found: Tennessee’s common law claim for retaliatory discharge for filing a worker’s compensation claim likewise requires, as discussed supra, that the filing of the worker’s compensation claim to be a substantial factor in the employer’s motivation to terminate the employee. An employer in Tennessee is fully able to both comply with IRCA and refrain from discharging employees in retaliation for filing a worker’s compensation claim. Thus, the Minnesota Supreme Court’s analysis is instructive on the interplay between Plaintiff’s claim for retaliatory discharge and IRCA. In the case at hand, Defendant did not fire Plaintiff for his undocumented status or for failing to provide proper documentation or for providing falsified documentation. Rather, Defendant fired him within minutes of phone call from his attorney requesting information for his worker’s compensation claim.

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Integrating employee benefits and perks makes a difference in employees’ lives

By MELISSA ROBBINS

At

Southern Farm Bureau Life Insurance Company, our employees are our greatest asset. We strive to provide a supportive and healthy work environment and couple it with meaningful and effective employee benefits and perks. These efforts helps us be an employer of choice with a focus on employee engagement and wellbeing.

We have compiled and integrated a set of employee benefits and perks which provides valuable resources for our employees and their families. Our focus on the integration and effective communication of these resources has optimized participation and engagement to meet employees and their families where they are in their life journey. As HR professionals, we are focusing on changing the perspective of our industry from being the “police” to being the supportive and empowering department we should be to help employees develop their skills, advance in their profession, and navigate the complicated world of employee benefits and perks.

Identifying and Selecting the Right Programs and Vendors With the help of our consultants (HUB and Murray Harber), we have spent the better part of the past fifteen years putting together an elite set of resources which gives access, provides value, and engages employees and their families with a variety career, health, financial and community resources. We take our time to identify needs, use our professional networks and consultants to identify quality programs and providers, and vet them to see if our values and perspectives align.

We have assembled a great set of vendors for our self-insured plan including our TPA (UMR), PBM (RxBenefits), onsite clinic (Vigilant Health), EAP & Behavioral Health (American Behavioral), and a bariatric program (BARINET). We require these vendors to work together to provide a seamless resource for our work family where no matter where they are in their health journey, they can access when they are ready. Annually, we hold a Vendor Summit, where all of the vendors come in for the day and do an annual review of our plans and discuss ways to improve for the upcoming year. Our team and vendors finds this event extremely beneficial to ensure the vision, purpose, and strategies for our self-insured plan and its participants.

We have also worked with our other insurance vendors and financial partners to include them into our ongoing employee training and nationally-recognized health & wellbeing program.

This integration equips our employees to a better understanding and engagement into these resources.

“

I n a candidate driven job market, we are laser focused on offering relevant employee benefits as part of or our overall total rewards packet to attract and retain top talent. Our HUB consultants, Leslie Arcana and Scott D’Aunoy, are top-notch in keeping us informed on market trends and the constant evaluation of our benefit partners. Employee benefits are a huge investment of our Company’s resources and it is very important that we, as HR professionals, are doing our due diligence in protecting this investment in our employees.”

Shonda Kines, SHRM-CP, PHR, CBP, CCP Manager, Human Resources

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Integrated and Multi-Channel Communications is Critical We have a great internal Corporate Communications, Training, and Health Promotion department that works very hard to communicate to employees through multiple channels using a variety of tactics. Our HR team works very closely with this team to create effective communications that takes our benefits terminology and turns it into consumable consumer language. We realize that sharing all the benefits information during a new employee’s first days is overwhelming and a once a year Benefits Fair still does not give employees enough opportunity to truly understand all the benefits afforded to them. We have worked to promote benefits throughout the year in various manners including specific communications, trainings, meetings, and events. We offer employee meetings, include vendors into our employee activities, and provide specific benefits communications through the year to continue the promotion and awareness of each of them. We have promoted our vendors’ web pages and apps, and have included these links within the health portal, which is a centralized portal for our health plan participants.

“

e view our employee health and benefit program as a team effort, where W we do all we can to ensure our employees are the most informed health consumers they can be. Knowledge is power and we know that giving our employees the right information at the right time will allow them to make the most beneficial decisions about their health. Our employees are engaged in our benefits programs and it is always a pleasure to see great utilization and positive health results.”

Matt Ginn, FLMI, ACS - Manager, Corporate Training and Communication

An Employee Success Story When Beverly first visited our onsite clinic, she had a BMI of 51, complex hypertension, type 2 diabetes, severe osteoarthritis, lymphedema, lumbar stenosis, an external stimulator for relief, cataracts, and needed her left knee replaced. She could not have the surgery because she was morbidly obese.

Upon receiving this news, Beverly decided to invest in her health. While she began going to The Clinic in 2015, she increased her engagement to get her health under control. She joined and thrived on The Clinic’s intense diabetes and hypertension care programs, and also had bariatric surgery.

During Beverly’s annual exam The Vigilant Health Nurse Practitioner Navigator noticed some abnormalities on Beverly’s skin and recommended she see a dermatologist. At her appointment, she was diagnosed with a melanoma and basal cell carcinoma, which, since they were caught early enough, were curable. She maintains a relationship with her dermatologist to this day.

During her time visiting The Clinic and after her surgery, Beverly has lost 90 lbs., lowered her BMI to 38, and is off all related diabetes medication. Her hypertension and lymphedema have greatly improved and she is now only on one hypertension medication. Beverly finally had the knee replacement surgery she so desperately needed and is feeling like she received a new lease on life!

“

go into a doctor’s office and the doctor doesn’t touch you. They give you You two or three minutes and ask you a few questions. The Clinic (Vigilant Health) always looks at everything that’s happened in my history and takes the time to treat the whole person and they support me. They look at everything. It’s knowing there is an advocate there to make sure you are on the right path.”

Beverly Ivers, Marketing Operations Administrator

Beverly’s story is just one of many among our employees here at Southern Farm Bureau Life Insurance Company. Having the right partners, who are willing to come together to meet the needs of our employees, has been a game changer for us. We look forward to fostering these relationships and researching even more ways to improve our health and wellness offerings in the years to come.

Melissa Robbins, SHRM-CP, PHR, CBP, FLMI, ACS

Human Resources Consultant Southern Farm Bureau Life Insurance Company MRobbins@sfbli.com www.sfbli.com

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SHRM Learning System® Participant Materials

The total cost of the SHRM-CP® | SHRM-SCP® Online Certification Exam Prep Class is $995 (plus $25.00 shipping)

You may pay by PayPal, credit card or check.

2020 Spring Exam Window May 1 – July 15 For more information visit shrmcertification.org

Guarantee If you do not pass, you can retake the class at no additional charge if you meet these two requirements: – Attend 80% of the scheduled online classes – Score 80% on all 16 HRCP practice quizzes during the program

Deadline to register is April 6, 2020 Contact cynthia@hrprosmagazine.com OR visit our website at www.hrprofessionalsmagazine.com

About the instructor: Cynthia Y. Thompson is Principal and Founder of The Thompson HR Firm, LLC, a human resources consulting company in Memphis, TN. She is a senior human resources executive with more than twenty years of human resources experience concentrated in publicly traded companies. She is also the Publisher | Editor of HR Professionals Magazine, an HR trade publication distributed to HR professionals in Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina and Tennesse. The mission of the publication is to inform and educate HR professionals. Cynthia has an MBA and is certified as a Senior Professional in Human Resources by SHRM and HRCI. Cynthia is a faculty member at Christian Brothers University in Memphis teaching Human Resource Management. Cynthia also teaches online HR Certification Exam Prep Courses for HRCI and SHRM. She is a sought-after speaker on HR Strategic Leadership. www.HRProfessionalsMagazine.com

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7 Ways to Become More Persuasive www.biography.com

BY HARVEY DEUTSCHENDORF

M

“ A man convinced against his will, is of the same opinion still." - Benjamin Franklin

any people believe that the way to persuade others is to win an argument or to pick out flaws in their way of thinking and their perspective. Persuasion does not work this way. While we may temporarily force or entice others to see or do things our way, they will revert to their old ways of thinking as soon as the enticement that we are offering is no longer there. Some people believe we are born with the power of persuasion, some have it and some don’t.

Nothing could be further from the truth.

Like all skills and competencies, persuasion can be developed through continuous practice and refinement of tried and true skills and behaviors.

Here are 7 ways that we can increase our ability to be more persuasive:

Avoid Arguing or Trying to Force Your Thoughts on to Others When we are arguing with someone or they feel they are coerced, there will naturally be a reaction to become defensive and put up barriers. This will work counter to any other efforts that you will make to try to persuade them. In order for persuasion to work, the other party must believe that you are on the same side, not in opposition, that the argument creates.

Actively Listen When someone feels they are heard, they become more open to our ideas. In order for people to feel heard we have to actively listen and avoid the common trap of thinking of how we will respond while we are listening.

We can let others know that they are heard by repeating or paraphrasing back what we heard them say and asking them for clarification or to delve deeper into what they are expressing.

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Allow the Other Person to Do Most of the Talking It is important to allow the other person to feel that they are in control of the situation.

One way of doing this is to allow them to talk while you actively listen. While they are speaking, listen for opportunities to agree and connect with them. See if you can get insights into their values and the reasons they think the way they do.

Look for Common Ground and Points of Connection The more common ground, shared values and connections that you can make with someone, the greater the chance you can persuade them.

People feel more comfortable and trust others with whom they share common beliefs, values and interests. The more you can make them feel comfortable, the more they will trust you and be open to your ideas.

Look for Opportunities to Give Sincere Compliments If there is something about the person you admire or think that deserves praise, let them know. Everyone loves to receive a sincere compliment and receiving one from you makes them more open to anything else that you have to say. It also forges bonds in your relationship and makes them think of you more favorably. Your ability to see the positive in them elevates you in their eyes and gives more credibility to everything you say and do.

Let Them Think That the Idea is Their Own The best way to be persuasive is to plant a seed in someone’s mind and let them believe that they came up with the idea. Instead of trying to force them to do something or demand, make suggestions, which gives them the power to make up their own minds, allowing them to believe that it was

themselves that came up with the idea. Take your ego out of it and allow them to take credit for the idea. An idea that we believe we came up with, or we're partly responsible for always appeals more than one that someone else is exclusively responsible for.

Appear Confident and Knowledgeable If you are not confident in your idea and your grasp of it is not solid you won’t inspire anyone else to have confidence in it. We believe in those who sound confident and appear to know what they are talking about.

If you are not totally convinced yourself, your lack of confidence and hesitation will show up and result in a loss of credibility and a lost opportunity to persuade others. Even if someone is seriously considering your idea, coming across as unsure and not having all the information plants doubt in their mind.

We all want to be confident and sure of the source of our ideas and decisions.

Putting it All Together Becoming more persuasive means developing our skills associated with listening, relating to others and finding common ground to connect. Persuasiveness cannot be forced, it must be carefully and patiently cultivated and developed with practice and persistence.

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.

Alabama SHRM is pleased to invite you to #ALSHRM20. This year we have Alabama SHRM is pleased to invite you to #ALSHRM20. This year we have moved to a full 2 Day conference scheduled for May 11th - 12th at the moved to a full 2 Day conference scheduled for May 11th - 12th at the BJCCBJCC in Birmingham, AL.AL. Our linedup upsome some excellent speakers in Birmingham, Ourteam teamhas has lined excellent speakers who are relevant content audience built around the theme whobringing are bringing relevant contentto to our our audience built around the theme of Embracing Human HumanResources.

Resources. The full schedule will include of Embracing the the Human ininHuman The full schedule will include updates, executive inspiring keynote sessions fromHR HRpractitioners, practitioners, legal legal updates, executive inspiring keynote sessions from panels, sessions for all levels of HR professionals, tools for HR professionals panels, sessions for all levels of HR professionals, tools for HR professionals who have limited resources, diversity, equity, & inclusion sessions, and who have limited resources, diversity, equity, & inclusion sessions, and much more! much more!

Multiple Pricing Options Available: IndividualPricing Conference Registration $419 Multiple Options Available: CorporateConference Registration (5 attendees) $1750 Individual Registration $419 Student Rate: $99

Corporate Registration (5 attendees) $1750 Student Rate: $99

For more information and to register visit https://al.shrm.org/2020conference-information

For more information and to register visit https://al.shrm.org/2020conference-information Content is being submitted for 11.5 re-certification credits with SHRM and HRCI

Content is being submitted for 11.5 re-certification credits with SHRM and HRCI

Statesboro-Area Society for Human Resource Management

2020 WORKFORCE STRATEGY CONFERENCE HR GOLD RUSH: MINING FOR TREASURE IN THE UNTAPPED WORKFORCE Tuesday, May 19, 2020 Nessmith-Lane Conference Center Statesboro, Georgia

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Register now at https://2020_sashrm_workforce_strategy_conference.eventbrite.com

CONFERENCE HIGHLIGHTS The 2020 Workforce Strategy Conference will focus on the challenges and best practices around putting untapped and marginalized workers - veterans, exoffenders, disabled workers, and seniors back to work.

Attend and gain fresh insights, learn new approaches, and take home successful strategies for putting untapped talent back to work. Register now or sign up to become a sponsor or exhibitor. Help us to create “Better Workplaces and a Better World!”

Target Audiences Include: • HR Leaders & Managers • Employers/Job Seekers • Educators • Workforce Training Organizations • Economic Developers • Municipal Leaders • Veterans/Veteran Advocates • Ex-Offenders/Ex-Offender Advocates • Seniors/Senior Advocates • Disabled Workers/Disabled Worker Advocates • Workforce Readiness Stakeholders

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SPECIAL GUEST & KEYNOTE SPEAKER JOHNNY C. TAYLOR, JR., SHRM-SCP President & CEO SHRM Better Workplaces. Better World.

For today’s workers, the route to employment follows many winding paths. To make workplaces better, those pathways must be accessible to more people. During his address, President & CEO Johnny C. Taylor, Jr. will immerse attendees in stories of how access to good jobs can restore dignity, self-worth, marketable skills and financial independence. He will explore the ways our current workplace cultures need to change, and how SHRM and our profession can shape the fast-paced, unpredictable future of work into one that betters our world.

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