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EARN YOUR M.S. IN HUMAN RESOURCE MANAGEMENT.
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Itis a pleasure to introduce Jon Lowe, Chief People Officer at DailyPay, a leading provider of HR technology services. Jon is a seasoned professional with a distinguished career in human resource spanning manufacturing, global fintech and HR tech sectors. Before venturing into the fintech realm, Lowe established himself as a prominent HR leader during his tenure of over seven years at Amazon where he supported company expansion and success in both the Canadian and US markets.
We are excited to welcome South Carolina to our distribution footprint in this issue, which currently includes Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, North Carolina, Mississippi, Tennessee, and Texas. There are approximately 7,000 SHRM members and 13 SHRM Chapters in South Carolina. We invite you to meet the South Carolina SHRM State Council on Page 14-15. We look forward to bringing you live coverage on Facebook of the South Carolina SHRM State Conference in Myrtle Beach, September 18-20.
A special shout out to the HR Florida and Ohio SHRM attendees and SHRM members on the Royal Caribbean Explorer of the Seas HR Conference Cruise! We are honored to be the official media sponsor for the cruise March 3-8. We will bring you live coverage of the conference speakers on our Facebook page. Watch for the photo spread in our April issue. Special thanks to Chad Sorenson, Past Director of HR Florida,
and Karen Fagnilli, Past Director of Ohio SHRM, for making the cruise happen! We know attendees will love this exciting adventure sailing the Caribbean while picking up SHRM and HRCI credits! Attendees will enjoy the networking and “floating” educational experience! We are looking forward to more of these cruise opportunities from Mike Medoro with Aspect Marketing and Communications, Inc. See Mike’s “Welcome” on Page 10. We hope you can join us on the 2025 HR Conference Cruise. Check out the details on Page 11.
We are excited to present our 5th Annual Supervisor and Manager Conference in partnership with SHRM-Memphis on May 21 at the University of Memphis Holiday Inn. Our theme will be “Upskilling Your Leadership Competency.” Special thanks to our presenting sponsor, the University of Memphis Department of Management and Fogelman Women in Leadership Program. We have some top-notch speakers and sponsors lined up for you! See Page 7 for details!
cynthia@hrprosmagazine.com @cythomps
Cynthia Casey is an HR Generalist, with Keesler Federal Credit Union in Gulfport, MS. She recently passed her SHRM-CP exam! Cynthia has a long career in operations, customer service and support which led to her promotion into Human Resources. She transitioned to Keesler Federal Credit Union in 2022 as a Human Resource Generalist with a focus on employee relations and employee engagement. She is a huge advocate of growth and learning. While working in the hospitality industry, she obtained her Lean Green Belt Six Sigma certification and a Human Resource Management Certificate from Cornell University. She has received many awards and recognitions over the years for her customer service and contributions to the community. Her positive attitude and perseverance are apparent at work and in her personal life where she raised her son as a single parent while growing her career. She can now add SHRM-CP to her list of accomplishments!
Cynthia said, “I took your advice seriously, and I studied at least 5-6 nights per week with extra study on the weekends of at least 3-4 consecutive study hours. The SHRM Learning System was a great asset to me being able to retake quizzes over and over which helped me to understand the questions better and the SHRM way of thinking. Supportive co-workers, friends, and family along with my strength, determination, and positive forward thinking were all very important in the process! I knew I would eventually pass; but I had a personal goal of passing on the first attempt. I did it! Thank you for leading our classes and providing tips and guidance along the way. Feel free to share my story in your future classes if anyone gets down or thinks it is too hard. It is hard but it can be accomplished.”
Jon Lowe is a seasoned professional with a distinguished career in human resources within spanning manufacturing, global fintech and HR tech sectors. Currently serving as the Chief People Officer at DailyPay, a leading provider of HR technology services, Lowe brings valuable expertise gained through HR leadership roles at prominent firms, including eToro and Revolut. In these roles, he served as the Head of U.S. Human Resources and Head of North American Human Resources, respectively.
Before venturing into the fintech realm, Lowe established himself as a prominent HR leader during his tenure of over seven years at Amazon where he supported company expansion and success in both the Canadian and US markets.
An alumnus of Queen's University and Toronto Metropolitan University, Lowe holds a Honors Bachelor of Arts, and an MBA in Strategic Human Resource Management. Lowe is an active member of the human resources community and is actively involved with the Society for Human Resource Management (SHRM), TRSM mentorship program; and a former committee member with the Human Resources Professionals Association (HRPA).
IN PARTNERSHIP WITH
PRESENTING SPONSOR
Fogelman Women in Leadership Program and University of Memphis Department of Management
Co-Hosts
“Upskilling Your Leadership Competency” at The University of Memphis Holiday Inn
May 21, 2024
7:30 AM to 5:00 PM
Win 7 Nights @ Sandestin Golf and Beach Resort Miramar Beach, Florida
Value = up to $3,000.00
Contact LeeAnn Foster at leeann@teamfosterhrstrategy.com to schedule.
JUDY BELL, SHRM-CP, PHR, CPBA, CPVA
Judy Bell Consulting
LEEANN BAILES FOSTER
CEO of Team Foster HR Strategy
Co-Emcees
CYNTHIA Y. THOMPSON, MBA, SHRM-SCP, SPHR Editor | Publisher
NEVA MCGRUDER BURKE “Update on Blue Oval City”
JANIE WARNER, SHRM-SCP
VP National HR Practice Leader
CHRISTY SHOWALTER, JD, MBA
Sr. Employee Benefits Compliance Officer
“The 5 Love Languages at Work: Risks and Rewards of Tapping Into Employees’ Motivators”
BRAD FEDERMAN, CEO PerformancePoint, LLC
“Upside Down World: A Leader’s Role in Times of Uncertainty and Change”
Continental Breakfast and Lunch included Networking Reception at 5 PM Meet our speakers and get answers to your questions.
TAMMY HENRY
VP of Client Success
JULIE HENDERSON
Chief Revenue Officer
“Changes in Employment Verifications”
8
DR. KATHY TUBERVILLE, SHRM-SCP, SPHR
Keynote Speaker
University of Memphis Associate Professor of the Management Department and Director of Fogelman Women in Leadership Programs
DR. DENEEN LESTER, SHRM-CP, PHR Senior Manager-Executive HR Leader, Salvation Army Talk Show Host – Let’s Talk HR with Dr. Deneen
Regional Vice President, Southeast “Re-engaging Teams Post-Pandemic”
LUCINDA KENNING, MBA, SPHR
Founding Partner
“Future-Proofing Work: Unleashing HR’s Potential”
RODRICK D. HOLMES, ATTORNEY
Reifers Holmes & Peters, LLC
“2024 Employment Law Update”
TIM KECK
Senior Consultant
“Active Shooter”
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Employees are searching for innovative wellness support from their employers. Whether a benefit is a more formalized benefit that is part of your official total rewards plan, or an informal offering designed to spark interest and engagement, HR has a unique opportunity to shape a competitive, holistic and, dare we say, FUN wellness strategy.
The COVID-19 pandemic shifted not only the ways in which we work and would like to work but also shifted the importance of our physical and mental health to the forefront. As we spend most of our time working, it’s only natural that our wellness approaches should encompass employee needs and desires to help support their holistic well-being. As HR professionals, we also can influence decision makers and resource allocation when we can show the tangible correlation of our wellness offerings to HR and organizational strategy and goals (i.e., the impact of benefits offered to recruiting initiatives, retention goals, employee satisfaction survey results, etc.)
When engaging employees with wellness initiatives, it’s important to make opportunities fun and interactive. Even though most individuals know the importance of healthy behaviors, many are reluctant to
participate with coworkers. Wellness portals are one example of how employers can launch healthy programs where employees self-report or track their progress. Having great incentives for participation can be motivation enough for many. When employees see the same water bottle sitting on coworkers’ desks, they ask how they got one, and the engagement starts to skyrocket. Incentives don’t have to be costly but more as a symbol of dedication and commitment to health.
When launching wellness programs, it’s vitally important to show equity for all, including options for employees with mobility restrictions, remote working locations, and healthy recipes that are culturally diverse. A fun way to increase awareness is through a monthly newsletter highlighting a focus of the month. For example: October is Breast Cancer Awareness Month, and it’s important for employees to know that rates vary by race and ethnicity. An article highlighting those differences can provide individuals with information on how to follow up with their personal physicians. Highlighting monthly screenings with information for all is a way to embrace diversity and health simultaneously.
A healing room is a space dedicated to emotional health and wellbeing. Have you ever needed a moment to just regroup? In the workplace, there are times when employees just need a few minutes to reflect, recenter or step away. A healing room is a calming and relaxing space dedicated for times when someone needs a few minutes to process something challenging or unfavorable. It is inexpensive to create, and in the world of cubicles, open doors and little privacy, provides an area for employees to take a moment. Healing rooms typically have a comfortable chair, dim lighting, relaxing music and calming pictures. Some have aromatherapy scents like lavender, sandalwood or orange available to aid in relaxation. For privacy and to encourage use, the room shouldn’t be in an area of heavy traffic.
Have you ever considered a humor workshop as a wellness offering? Humor has been proven to link to stronger resiliency, less stress and increased trust in relationships. Bringing in a humor expert to lead a workshop that gets employees out of their comfort zone and into the laughter space can teach them valuable tools for utilizing humor to build connection and get through tough times at work and in their personal lives. It also brings them together outside of the day-to-day work tasks to have some fun and collaborate with colleagues in a very different way than they’re used to.
Perhaps bringing in a stand-up comedian for the next employee summit or town hall to break the ice with some laughter is an option. Recreating the popular TV show “Whose Line Is It Anyway?” is also a fun idea to bring some levity to the workplace. In sticking with the fun approach to wellness (because, who doesn’t love fun?), consider unique challenges such as a sleep contest where participants can use a sleep tracker or app to compare restful sleep scores, partnering with a local animal shelter for puppy yoga or kitten stress therapy, or offering accessibility-friendly obstacle courses (mental or physical) for team building.
Healthy employee habits often translate to healthy family habits. What are you doing to embrace not only the health of those you work with but their entire family? For example, a frequent struggle for breastfeeding mothers is the concern about where they will breast pump at work. Pumping breastmilk for your newborn while sitting in a bathroom stall doesn’t sound very inviting. A healing room could serve a dual purpose as a breast-pumping station for mothers that have returned to work.
Having a health screening with a work picnic or potluck is possible when engaging a healthcare partner. Building a relationship with a healthcare system opens resources for lunch-and-learn activities featuring guest speakers that can highlight health topics of interest. Events don’t need to be large to be impactful. Remember that while new mothers don’t want to breast pump in bathrooms, it’s the perfect location to have materials about domestic violence along
with resources for assistance. It’s important to have these types of resources in every restroom. For those dealing with violent relationships, using a restroom at work may truly be the only time they are alone to research options or to reach out for help.
We’ve seen a shift not only in the need, but also employe expectation, for better and more conveniently available mental health support as part of wellness and benefits programs. In addition to any formalized plans like Employee Assistance Programs (EAP) or subscriptions to teletherapy or meditation apps, also consider small touches such as bringing plants to the office, a gratitude or high-five board to recognize colleagues and just share things you feel good about, offering surprise days off “just because,” or even a game room – because playing giant Tic Tac Toe always leaves folks in a good mood! You might also consider a “healthy meal” get-together, a family-style lunch where everyone contributes a healthy dish and comes together for the meal, and you formally close the office so there are no interruptions and no work talk – just getting to know one another.
Ultimately, your workforce has its own unique needs, challenges and opportunities to support employee wellness and engagement. Conducting focus groups, 1:1 “stay” interviews, and regularly surveying employees to get their feedback versus assuming what they need is always valuable. You may find that the wellness initiatives most in demand are around organizational culture; when we spend most of our time at work, if we are dealing with the high-level stressors of a toxic culture, stressful interactions with disrespectful coworkers, or burnout from the workload, all the goat yoga in the world can’t combat an unhealthy environment.
As with any initiative or change, start small. Aim for your top one to three areas of opportunity based on employee needs and clearly lay out the business case for decision makers for budget allocation and a measurable ROI. Remember: what works for employees now can shift dramatically year over year, so a constant pulse on the needs of employees will always point you in the right direction!
Cambi
DNP, MBA
Welcome to the HR Conference Cruise!
Welcome to the HR Conference Cruise!
We’re delighted that you decided to embark on our unique HR Conference at sea and are ready to learn, network, and have fun on the EXPLORER OF THE SEAS!
We’re delighted that you decided to embark on our unique HR Conference at sea and are ready to learn, network, and have fun on the EXPLORER OF THE SEAS!
This conference is our 12th HR Conference Cruise and again unites three terrific state councils. Thank you to our partners: HR Florida, NY State SHRM, and Ohio SHRM State Council. The goal of our partnership is to combine a robust Human Resource conference with an exciting cruise to tropical islands and gorgeous getaways - while earning recertification credits and networking with our peers.
This conference is our 12th HR Conference Cruise and again unites three terrific state councils. Thank you to our partners: HR Florida, NY State SHRM, and Ohio SHRM State Council. The goal of our partnership is to combine a robust Human Resource conference with an exciting cruise to tropical islands and gorgeous getaways - while earning recertification credits and networking with our peers.
We have a full schedule of top-notch speakers and a “boat-load” of recertification credits. We have two ports of call in Falmouth, Jamaica and Labadee, Haiti. I’m certain that the weather will be much better than what our typical winter weather is my state of Ohio! Fingers crossed.
We have a full schedule of top-notch speakers and a “boat-load” of recertification credits. We have two ports of call in Falmouth, Jamaica and Labadee, Haiti. I’m certain that the weather will be much better than what our typical winter weather is my state of Ohio! Fingers crossed.
Our HR Conference Cruise schedule has been pre-approved for 16.25 SHRM Professional Development Credits (PDCs) and for 16.25 recertification credits from the HR Certification Institute. This program contains our agenda, information on our speakers, handouts, and note pages for your use. Recertification information is included in the back of this HR Conference Cruise program. SHOUT OUTS to HR Florida and Ohio SHRM for certifying our programs.
Our HR Conference Cruise schedule has been pre-approved for 16.25 SHRM Professional Development Credits (PDCs) and for 16.25 recertification credits from the HR Certification Institute. This program contains our agenda, information on our speakers, handouts, and note pages for your use. Recertification information is included in the back of this HR Conference Cruise program. SHOUT OUTS to HR Florida and Ohio SHRM for certifying our programs.
You will find similar information in our conference app, including copies of our speaker handouts as well as links to our four pre-conference webinars. You’ll have ON DEMAND access to the webinars for up to 60 days after the completion of the sailing.
You will find similar information in our conference app, including copies of our speaker handouts as well as links to our four pre-conference webinars. You’ll have ON DEMAND access to the webinars for up to 60 days after the completion of the sailing.
Thank you again for attending the 2024 HR Conference Cruise. If you purchased the internet package - please remember to tweet/post about your experience!
Thank you again for attending the 2024 HR Conference Cruise. If you purchased the internet package - please remember to tweet/post about your experience!
Sincerely,
Sincerely,
Michael G. Medoro
Michael G. Medoro
Aspect Marketing and Communications, Inc.
Aspect Marketing and Communications, Inc.
THANK YOU TO OUR STATE COUNCIL PARTNERS!
3 MARCH 2025
8 MARCH 2025
HIGHLIGHTS
CONFERENCE CENTER
VOYAGER OF THE SEAS
Five webinars and eight on board sessions - 16 credits. Target is 50-60% business credits. 5 night sailing; sessions are held on sea days.
LOGISTICS NETWORKING
Depart from Port Canaveral (Orlando), two ports of callPerfect Day at Cococay, Bahamas and Cozumel, Mexico.
During sessions in the conference center; on board, at dinner, and on excursions.
Hear from national and international speakers on topics of interest for the HR community.
INFORMATION:
deadlineforreportingdatafor2022wasdelayeduntilDec.5, A B C 5
WE WANT TO HELP. Would you like to download a VERY handy 2024 compliance calendar?
If so, visit: https://www.thebenefits.group/blog, SCROLL to the ver y last posting at the bottom of the page and click the image to download your copy. There is a calendar for every month of the year and – on the ver y back page – are links to model notices for your most common and important compliance needs. Benefitsuperhero.com
2023.TheEEOCwillupdateitsEEO-1data collection website toannouncewhenthedatacollectionperiodwillopenin2024.
COBRA NOTICES COBRA General Notice: Provide a general notice of COBRA rights to each covered employee and spouse (if any) within 90 days after their health plan coverage begins. Employers often include this notice in their plan’s open enrollment materials. The DOL has a model notice that employers may use. COBRA Election Notice: Notify qualified beneficiaries of their right to elect continuation coverage under COBRA following a qualifying event. This notice must be provided no later than 14 days after the plan’s receipt of the notice of a qualifying event. For qualifying events where the employee (or covered dependent) is not required to notify the employer of the qualifying event, the election notice must be provided within 44 days of the qualifying event (or loss of coverage, if later). The DOL has a model notice that employers may use. Notice of COBRA Unavailability: If you deny a request for COBRA continuation coverage (or for an extension of COBRA continuation coverage), provide the individual with a notice of unavailability of COBRA coverage. The notice must be provided within 14 days after the request for COBRA continuation coverage is received, and it must explain the reason for denying the request. Notice of COBRA Early Termination: If COBRA coverage terminates early, give the qualified beneficiary a notice of early termination. The notice must explain why the coverage will terminate earlier than the end of the maximum coverage period, provide the date the coverage will terminate and describe any rights the qualified beneficiary may have to elect other coverage. The notice must be provided as soon as practicable following the decision to terminate coverage early. Notice of Insufficient Payment: If a qualified beneficiary makes a timely premium payment, but the amount of the payment is short by an insignificant amount, notify the qualified beneficiary of the shortfall and provide a reasonable period of time (e.g., 30 days) to pay the missing amount. FAMILY AND MEDICAL LEAVE ACT (FMLA) NOTICES General Notice of FMLA Rights: Post a general FMLA notice where it can be readily seen by employees. Also, provide this notice to employees by including it in the company’s employee handbook, if one exists, or distributing a copy to each new employee upon hiring. The DOL has a model poster for employers to use. FMLA Eligibility Notice: When an employee requests FMLA leave, or when you learn that an employee’s leave may be for an FMLA-qualifying reason, notify the employee of their eligibility to take FMLA leave within five business days, absent extenuating circumstances. The DOL has a model eligibility notice (Form WH-381) that employers may use. FMLA Rights and Responsibilities Notice: Each time the eligibility notice is provided, give a notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. This notice may be accompanied by any required certification form. The DOL has a model rights and responsibilities notice, which is included in Form WH-381
grant
Plan Documents: Provide copies of certain plan documents within 30 days after a written request by
a participant and beneficiary and have copies available for examination. These documents include the latest SPD, SMMs, Form 5500, trust agreements and other instruments under which the plan is established or operated. WELLNESS PROGRAM NOTICES HIPAA Wellness Notice: HIPAA’s nondiscrimination rules apply to wellness programs offered in connection with group health plans. To comply with HIPAA, health-contingent wellness plans (i.e., those that require individuals to satisfy a standard related to a health factor to qualify for a reward) must provide a notice informing employees that there is an alternative way to qualify for the program’s reward. This notice must be included in all plan materials that describe the terms of the wellness program. Americans with Disabilities Act (ADA) Wellness Notice: The ADA imposes nondiscrimination requirements on certain wellness plan designs. To comply with the ADA, wellness plans that collect health information or involve medical exams must provide a notice to employees that explains how the information will be used, collected and kept confidential. Employees must receive this notice before providing any health information and with enough time to decide whether to participate in the program. 17 12 www.HRProfessionalsMagazine.com
STATE DIRECTOR
Karen B. Smith, SHRM-CP, PHR, CSP KSmith@gpsjobs.net
SECRETARY
Christi Sheppard, SHRM-CP cmsheppard69@gmail.com
DIRECTOR ELECT/CONFERENCE CHAIR
Bryan Gates, SHRM-CP, PHR BGates@lhomes.org
IMMEDIATE PAST STATE DIRECTOR
Teresa Vaughn, SHRM-SCP, SPHR tv@jjins.com
MEMBERSHIP DIRECTOR
Joy Crile, SHRM-CP and PHR jcrile@outlook.com
TREASURER
Abbey Hightower awells@greenwoodcr.com
DIVERSITY DIRECTOR
Ray Lattimore SHRM-SCP, SPHR Ray@marketplacestaffing.com
CONFERENCE EXHIBITOR CHAIR
Leonard Lowery, DrBA, MHR, PHR llowery@kingstree.org
DISTRICT DIRECTOR – LOW COUNTRY Coastal, Tri-County, LowCountry Star Ross sross@atlas-tech.com
DISTRICT DIRECTOR-WESTERN Anderson, Oconee-Pickens, Piedmont, Greenwood Robyn Knox, SHRM-SCP, SPHR robyn@theHRBconnect.com
CERTIFICATION DIRECTOR Amanda Fallaw afallaw@wesleycommons.org
SHRM FOUNDATION DIRECTOR Karen Roberson, SHRM-CP kroberson@ccdsnb.org
DISTRICT DIRECTOR – UPSTATE Greenville, Rock Hill/York, Spartanburg Angelia Simpson, SHRM-CP, PHR asimpson@greenwoodcpw.com
LEGISLATIVE DIRECTOR
Kelly Scheib, SPHR, SHRM-SCP, RCC kscheib@crunchbase.com
COMMUNICATIONS DIRECTOR Jamie Rohrer jrohrer@trustmarkbenefits.com
EMERGING HR PROFESSIONAL DIRECTOR Mandi Macomber mandi.macomber@aalberts-ips.com
DISTRICT DIRECTOR-MIDLANDS Florence, Sumter, Orangeburg, Columbia Elliott Wilson, SHRM-SCP,PHR elliott.wilson@trcstaffing.com
WORKFORCE READINESS DIRECTOR
Steve Nail, JD, SPHR snail@andersonuniversity.ed
COLLEGE RELATIONS DIRECTOR
Mariel McAllister mmcallister@icerecycling.com
SHRM FIELD SERVICES DIRECTOR Dianna Sporcic, SHRM-SCP, SPHR dianna.sporcic@shrm.org
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OnJanuary 31, the Sixth Circuit published a cautionary tale regarding the “reasonable belief” doctrine involving an employer that fired a disabled employee for a positive drug test for “marijuana.”
In Fisher v. Airgas USA, LLC, Fisher was an operation technician who used power tools, worked with combustible gases, and drove a company vehicle. Fisher was diagnosed with liver cancer, and when he required surgery, the company gave him eight weeks of leave. When Fisher returned from leave, he was experiencing significant pain as a result of ongoing treatment, and he began to use “Free Hemp,” which was not prohibited by Airgas’ policies.
Shortly thereafter, Airgas selected Fisher for a random drug test, which the drug testing vendor HireRight reported to be positive for “marijuana.” Fisher denied using marijuana, asked for a retest, and explained his use of Free Hemp might have caused the false positive. Airgas agreed to retest but used the same sample for the retest and did not alert HireRight that Fisher had been using “hemp” or inquire whether hemp could cause a positive test for marijuana. Fisher personally contacted HireRight about the issue, and HireRight’s Chief Medical Officer informed Fisher by email that he had tested positive for “THCA” rather than “THC,” which is more commonly associated with marijuana use.
Airgas terminated Fisher for marijuana use, and Fisher sought reinstatement, arguing that the positive test was caused by the hemp and was mislabeled as positive for marijuana use. Airgas denied reinstatement, and Fisher sued, claiming that his firing was motivated by disability discrimination. Airgas argued that it fired Fisher because it had an “honest belief” that Fisher had used marijuana, as reported by HireRight.
The “honest belief doctrine” holds that if an employer had an honest belief regarding its nondiscriminatory reason for a discharge decision, the reason would not be deemed to be a “pretext” for unlawful discrimination, even if the evidence later demonstrates that the belief was mistaken. However, the honest belief doctrine requires that the employer must make a “reasonably informed and considered decision” based on the “particularized facts” before the employer in order to successfully rely on the honest belief doctrine. Here, the Sixth Circuit held that Airgas could not take advantage of the honest belief doctrine because Airgas failed to inquire of HireRight regarding Fisher’s explanation for his positive test result before firing him.
This case again highlights the value of engaging in a reasonable investigation regarding what the employer perceives to be misconduct justifying termination before making a termination decision.
If you have any questions regarding this decision or about how the reasonable belief doctrine may apply to your decisionmaking process, please contact the author.
Reprinted from the Bass, Berry & Sims HR Law Talk Blog
Robert Horton bhorton@bassberry.com
As chair of the firm’s Labor & Employment Practice Group, Bob Horton represents management in all areas of labor and employment law. Bob’s practice consists primarily of counseling clients regarding employment issues and defending companies against all manner of employment claims throughout the U.S.
Bass, Berry & Sims listens and responds with creative yet practical counsel. We stay on pace with the complex and rapidly evolving employment landscape, connecting your dynamic human resources needs to proactive strategies.
Relationships, reliability, and respect – at the center of our Labor & Employment and Employee Benefits practices.
Successful control of access to physical resources for any company is dependent on the relationship between Human Resources, the Security team, and the IT department.
Human Resources is the core for employee data management and plays an integral role in how the security team and IT department manage risk for access control of a facility. The security team assesses the risk and areas of concern and works with the IT department on controlling the access points. HR is the source for job definitions, schedules, roles, and up-to-the minute employment status for proper enforcement. HR can also reinforce security measures or assist in addressing bad behavior identified in a properly utilized access control system.
The phrase “You’re only as strong as your weakest link” can draw attention to concerns with the implementation and coverage of the access control mechanism of doors, gates, and elevators of your facility. Does your facility have access points that do not have status monitoring (open/closed) or missing control mechanisms that former employees, competitors, or outsiders could easily use to access your business?
Perhaps all your access points are secure, but a weak link could be internal staff giving access to unauthorized individuals. This could easily be done in two ways:
One method is simply propping open a door with an object to give free access. One method to address doors being held or propped open is to add a buzzer or alarm by the door that activates when the door is open longer than a specified period of time. While this approach helps, it does not adjust the behavior of the individual that did it. This measure has more of an impact when the perpetrator remains near the annoying buzzer and may stop doing it in the future. A better option to address this method can also be used to address a second weak link referred to as “Tailgating”.
Tailgating is when someone follows an authorized person through the door or gate, or someone simply holds open a door for someone else to enter. This bad behavior reduces the effectiveness of the access control system but may not always be with malicious intent. Some staff may feel it is impolite not to hold the door open or speak up when someone follows them through a controlled door, so proper assistance and reminders are beneficial to break the bad habit.
What options can help identify when tailgating occurs so it can be addressed properly? One option is the integration between the access control system and a surveillance system enabled with video analytics. The access control system recognizes when a door is open and can utilize the surveillance system to determine if more than one person enters the doorway or gate. The access control system can log the event with the
associated badge holder and then it can trigger a variety of actions. For example, the event could be included in a scheduled report, or it could activate a popup window in the security room for viewing the video playback, or an email alert might be sent to the appropriate manager with an image. Immediate feedback could include an audible alert at the doorway to remind them of the violation. These measures can also be utilized in the first scenario of someone propping the door open, the surveillance system can provide a video clip of the time it was propped open to identify the person to follow-up to address the situation.
These measures can provide improved safety and security for a business. Why should HR be interested in these available measures? Tracking and understanding which employee, contractor or visitor created the unsafe environment by propping a door open or allowing a stranger to enter the building with them is critical to help them make the necessary adjustments to manage and reduce these risks. How many warnings has an individual had on these safety or security violations? Is there a record of these events?
Another concern is knowing when a credential has been compromised. For example, a badge is used at two different offices in different states on the same day or accessing opposite ends of a facility within minutes of each other that could never be physically reached in that amount of time. This could be a flag that someone’s credential has been cloned and should be addressed immediately.
This leads to the next point that focuses on technology risks in the implementation and management of the access control that should be of concern.
Outdated technology such as using badge readers that utilize older 125khz frequency without encryption that can easily be cloned or utilizing brute force attack on the reader with a device that can easily be purchased and used from a popular online store. These outdated readers create a false sense of security. From the lowest threat of a teenager having fun cloning their parents’ badge to a disgruntled employee or competitor gaining access that will create a significant event for your business are areas of concern for HR. This scenario with old readers can be addressed with 13.56Mhz frequency with encryption. The complexity in the solution is determining the level of encryption for your risk and where is the encryption utilized. Is it just between the credential and the reader or the entire path to the control software on a server?
Another technology implementation concern is in the configuration of the control system and how it’s aligned with job responsibilities, departments, and shift schedules. Add in visitor management and contractor access and this can quickly become an HR nightmare to know who has access to what and when.
Additionally, there is a crossover between security risks and safety concerns for certain high-risk areas that can affect HR. While only certain approved individuals may be allowed into these areas, there are safety concerns that the person is wearing all their Personal Protective
Equipment (PPE) before entering the controlled area. While a sign by the door may help, a better method is utilizing an additional video analytic service from the surveillance system that is connected to the access control system. When a user provides their credentials the access control system will first check with the surveillance system to ensure that all appropriate PPE is being used before granting access or at least alerting the person of noncompliance before giving access. These alerts or incidents can be addressed through HR to reduce employee safety risks.
A common challenge or frustration for HR is when an urgent change is needed in an employee’s job status. The process flow, the number of systems involved, and the time required to make the adjustment and ensure it is completed properly can raise a variety of concerns. Whether it is onboarding a new employee, scheduling departures, bringing on temporary workers / contractors or just giving visitors access to key resources, the process flow between HR and the execution of the changes with the access control system can be frustrating. Are there additional manual steps that could be skipped or misapplied? Will the change take place at the correct time or at the time of a critical project or event requires the adjustment?
The integration points of the access control system and the process flow defined in advance can make this task seamless or very frustrating. For example, can the access control system be synchronized with the employee management LDAP? Can the access control system inherit the organization units for entitlements to ensure continuity? Are there reporting capabilities or open integration to a centralized reporting
system to have the necessary insight to current definitions, permissions, and activity? Is it difficult or even impossible to identify who accessed what and when across the entire organization?
These points are just a few areas of concern to consider when evaluating the risks and proper usage of your access control management system and its effect on HR. While some of these points have simple solutions to address, others require technical insight of capabilities, industrial standards, and product roadmaps. This is where the value of a Trusted Technology Partner is critical. There is a significant difference between a technology installer and a Technology Partner. An installer will happily implement a piece of technology without considering the impact on your business strategy, goals, and total cost of ownership of the technology. A trusted technology partner will conduct a risk assessment to understand the current landscape, existing process flow for employee/contractor management and provide options for mitigating the risk according to your company’s goals and budget. They will also assist in working out a master plan that can be reached through multiple phases if necessary to align with internal initiatives.
As a strategic partner with SafeHaven Security Group, we partner with companies and government agencies in the Midwest to improve the services in your facilities.
Jeremy Spears Chief Technology Officer Mid Central Technologies www.midcentralcompanies.com/technology
With an increasing prevalence of chronic diseases and the need for more personalized care, the Institute for Healthcare Improvement in 2008 issued the “Triple Aim” challenge: improved quality outcomes, greater affordability, and improved population health. The challenge clearly had a direct influence on the landmark Affordable Care Act, 14 years old this month.
Today, as the evolution of healthcare beyond physical treatment and medication continues, technology has become an inextricable part of the story. That’s why now is the time for employers and health plan managers to prepare for a new wave of treatment called prescription digital therapeutics, or PDTs.1
Traditional healthcare has focused on physical interventions such as surgery and physical therapy along with pharmaceutical interventions such as traditional medicines and vaccines. However, PDTs are an entirely new class of treatment. The demand was fueled by the need to provide personalized behavioral, wellness and mental resources for a growing number of people with chronic diseases.
Mobile health apps, wearables and digital therapeutics have become commonplace. So has telemedicine, electronic medical records, patient portals, and the integration of artificial intelligence (AI) and advanced analytics into healthcare devices. In 2021 healthcare technology companies raised approximately $39.7 billion in capital, more than double the previous year’s $18.1 billion.2,3
PDTs utilize digital content, often in the form of apps, games, or virtual reality to treat and/ or cure a number of conditions. PDT developers have focused their research on several important conditions, including post-traumatic stress disorder, opioid use disorder, ADHD in children, asthma, and diabetes. The Federal Drug Administration (FDA) has approved several new PDTs and we can expect this area to continue to grow significantly in the coming years.4
• May be tailored to each patient and adjusted throughout the course of treatment
• Often less expensive than traditional therapies
• Fewer side effects than medications, since they are behavior-based
• May be added to a comprehensive treatment plan without concern about interactions with current treatments
There is currently no standardized reimbursement model for PDTs, however, several Pharmacy Benefits Managers have already developed digital health formularies. As the landscape becomes more competitive and PDTs are differentiated, we’re likely to see a more traditional formulary management approach, including preferred products, steptherapy, and formulary exclusions.6,7
Examples of PDTs on the market today include:
• Propeller for asthma or COPD
• EndeavorRx for ADHD
• Freespira for post-traumatic stress disorder
• SparkRx for adolescent depression
• reSET for substance use disorder
Despite their promise, PDTs have not caught on in the traditional landscape of benefit reimbursement because they aren’t traditional treatments, e.g., prescription drugs or medical procedures. PDTs can stand on their own as a therapy or be used in conjunction with other devices, such as a sensor that attaches to an asthma inhaler to help monitor patient behavior.
The Access to Prescription Digital Therapeutics Act of 2023 (S.723/H.R.1458) would create a benefit category for PDTs under Medicare and Medicaid. Like traditional prescription medications, PDTs covered under Medicare/Medicaid would need to be FDA-approved and considered necessary for coverage. It’s unclear if this Act will pass since Congress is still exploring a legislative vehicle (e.g., spending bills) for its inclusion.8
Technology and digital literacy are now considered significant social determinants of health, impacting an individual’s ability to take advantage of various health-related resources. Technology-related health equity in the U.S. healthcare system, referred to as “techquity,” should be considered to ensure that vulnerable and underserved populations can benefit from new healthcare technologies.5
Many factors influence techquity, including internet access, affordability, language, accessibility features and privacy concerns. Consumers don’t fully trust the healthcare system to provide the best treatment. In a 2021 global study, 49% of U.S. adults surveyed said they were concerned about privacy. And when asked whether their healthcare system provides the same level of care to everyone, only 27% of U.S. respondents agreed, and 46% disagreed, thus ranking the U.S. near the bottom in health equity (21 out of 30 countries).9
“There is no one ‘czar or king’ when it comes to equity; collaboration across big and small organizations is essential…we need to work together to create conditions of equity.”
– Adimika Arthur, Executive Director, HealthTech for Medicaid (HT4M)9“When it comes to transparency, we sometimes say the truth will set you free. Together, as an industry, we need to approach transparency within the spirit of a safe harbor so that we can critically evaluate our offerings and monitor our outcomes to ensure equitable outcomes for all.”
– Dick Flanigan, Senior Vice President, Cerner9“On a patient level, techquity is the experience of somebody who walks into a healthcare setting and feels they are valued and cared for by both the healthcare system itself and the technology. We want individuals to have confidence in healthcare because they believe, feel and know that equity is there.
– Dr. Esther Choo, Emergency Physician and Professor, Oregon Health and Science University9
References
1. https://www.nasdaq.com/articles/now-is-the-time-to-invest-in-digital-therapeutics
2. Micca, Peter, Simon Gisby, Christine Chang, and Maulesh Shukla. Trends in Health Tech Investmen Deloitte Insights https://www2.deloitte.com/us/en/insights/industry/health-care/health-tech-privateequity-venture-capital.html
3. Digital Health Market Insights on Share, Application and Forecast Assumptions 2022-2030 https:// www.marketwatch.com/press-release/digital-health-market-insights-on-share-application-and-forecastassumptions-2022-2030-2022-02
4 https://www.medgadget.com/2022/10/global-digital-therapeutics-market-to-hit-sales-of-24143-3million-by-2030-astute-analytica.html
4. TECHQUITY https://www.techquity.mn/about
6. https://www.fiercehealthcare.com/health-tech/highmark-expands-coverage-prescription-digital-therapeutics-app-makers-see-momentum
7. https://hitconsultant.net/2019/12/12/express-scripts-launches-first-digital-health-formulary-for-appsdevices/
8. https://dtxalliance.org/understanding-dtx/product-library/
9. Ipsos Global Health Service Monitor 2021
Chris Hollman, PharmD Senior Pharmacy Practice Consultant McGriff
Chris.Hollman@McGriff.com
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By optimizing benefit plan selection, design, management, and employee engagement, McGriff MORE Insights can help turn your benefits program into a real differentiator that aligns with your organization’s culture and business objectives. Visit McGriff.com to learn more.
I started my career in human resources decades ago at a major retail brand. It was an entry-level position, having just completed my undergraduate studies in business dabbling in human resources courses. From there, I moved up the HR career ladder, expanding my interactions with leadership teams and boards of directors, increasing talent retention and improving employee satisfaction while furthering my learning through the education and work required to complete two master’s degrees followed by my doctorate. My career journey took me into the higher education, managing benefits, compensation, payroll, HRIS and so much more. From there, I had the good fortune to join the business faculty focusing on HR and organizational development while continuing to be the CHRO for an organization in the optics, laser and photonics space. I was recruited away to be the CHRO for MSRB – the financial regulatory body of the Municipal Securities Market and it was from that position I moved into my current role as the CEO of HRCI and recently founded HRSI. What I have experienced is that every day presents the opportunity to learn something new and make a difference where it matters most: with people.
It certainly wasn’t surprising that my entry into HR started with an education in business and human resources. Nor was beginning in a large retail organization where multiple HR professionals supported scores of hourly workers across numerous locations. Sure, my segue into higher education, science and finance might have seemed unexpected; however, the service deliverables were similar: employee relations, compensation, benefits, HR, payroll, employee engagement and many other less traditional HR activities like being an interim CFO, leading organizational strategy and opening a restaurant.
Which brings me to my incredible delight at where the HR profession is heading, making it one of the most exciting career opportunities in any organization, large or small, centralized or distributed, global or regional. Our redefined normal has simultaneously redefined – and reimagined – HR.
As companies were challenged by helping employees balance the pressures created by the COVID pandemic with achieving business goals, HR stepped up. Working hard to help transform how work happens while supporting business leaders faced with painful restructuring decisions, HR became the heartbeat by unifying people and processes in new ways. Accelerating digital transformation down to the paycheck-level helped increase operational efficiencies and engage employees wherever they worked. Using modern technologies such as augmented reality, HR was able to ensure captivating onboarding and support productive skilling and reskilling.
Revolutions are rarely quiet, and the one taking place in HR is well evidenced. Chief People Officers command annual salaries upwards of $450K. New HR positions – such as the Change Management Director – help employees adjust to work changes and can also earn hundreds of thousands. HR Business Partner Managers provide policy guidance
and align HR strategies with company goals. All of these roles, as well as more traditional HR titles, require business acumen, a skillset previously determined as lacking according to a global survey conducted by Korn Ferry.
Connecting HR’s efforts to the goals of the business requires a sea change in how we hire for this role. A recent scan of HR directorlevel job openings finds consistent requirements for people analytics to provide insights on improving employee development, the ability to support change efforts and provide compensation planning, scaling policy development, program delivery and workforce design.
Bringing these skills front-and-center means our revolution needs to reach into the higher education system to make sure HR professionals are prepared. In a recent article, Harvard Business Review covered the intersection of spatial computing and human resources as a crucial component in talent acquisition – especially for neurodivergent candidates. With employees experiencing disruption in so many aspects of their lives, their work experience is also impacted, necessitating increased focus on HR’s effective communications and change management skills. Similarly, AI has created threats and opportunities that are not well understood, requiring HR to be knowledgeable about what it might mean in the context of a company’s culture.
Researchers at McLean & Co. say that “HR’s involvement as a partner in planning and executing organizational strategy has increased from 36% in 2021 to 50% in 2024.” The same report states that when HR is highly effective at building talent, employees are 2.6 times more likely to be highly proficient in leadership skills and almost twice as likely to be more proficient in team skills. That means, as HR professionals, we need to invest in ourselves first so that we can be the starting point for better business outcomes and skills-based initiatives.
The first quarter of 2024 has lacked the enthusiasm typically reserved for turning the page into a new year. It hasn’t surprised me, especially given the degree of geopolitical conflict, the unknowns created by artificial intelligence, and increasingly difficult efforts to recruit top talent. HR has the unusual and enviable position to be both ally and seer during these ground-breaking times. As every flight about to take off starts: Buckle your seatbelts and put your oxygen mask on first. Invest in you and keep learning – obtain your HRCI certification if you haven’t already because you need to be ready for what’s next in the HR revolution.
2024 TENNESSEE SHRM STATE COUNCIL
8 Dr. Derriell Springfield, Strategic Partnerships Manager for WGU Tennessee, with Dr. Kim Estep, Regional VP, Southeast, with WGU. 9 Robert Half Talent Solutions 10 Alight 11 Vanderbilt Health
By JON LOWE
This month marks four years since the global outbreak of the COVID-19 pandemic. Four years ago, almost feels like a lifetime. Often, you hear people talk about the comparison “before COVID” and “post COVID.” Emerging from those very dark times, many of us took the opportunity to have a “life reset” and reevaluate many aspects of our lives, from how we live to how we work. We took a moment to make changes… changes for good.
Like most HR professionals at the time, there was no playbook for managing a team during a global health crisis. The safety and health of our team members became our top priority. For the first time, this notion of flexibility and work-life balance morphed from a nice perk to an essential one. Whether you needed the flexibility to work from home or needed flexible hours to care for young kids, it became critical to build the needs of our team members into the calculus of what work looks like to ensure they bring their best selves to work every day.
That concept hasn’t changed for me since those dark days in 2020. I believe it’s critical we continue to lead with empathy and understanding as it relates to the needs of our workers. What can we do as HR leaders to help strengthen that bond with our team members to show that, just like we did four years ago, we are here to help provide employees with the opportunity to be their best every day? It’s about empowerment. Empower employees with the tools and technology they need to live the life they want and actively remove friction points where they exist.
I’m fortunate to currently work for a mission-driven company where the ideals of uplifting employees to be their best version of themselves are baked into the corporate DNA. At DailyPay, we partner with the country’s most forward-thinking companies to offer a financial wellness benefit and work tech platform that is both empowering and uplifting while providing the flexibility workers crave in a post-pandemic world. With increased choice and control over their pay through earned wage access, employees can pay bills on time, make the purchases they need to, and save for the future–all at the press
financially solvent and avoid the vicious cycle of debt.
Four years ago, earned wage access became a must-have benefit so employees could have the liquidity and flexibility they so desperately needed to make purchases – from medicine to toilet paper – to survive during the outset of the pandemic.
Four years later, that empowerment and flexibility over their pay is something employees expect.
Four years ago, we changed the way we lived and worked for good. Now it’s time we changed pay for good.
Jon Low, Chief People Officer
Get
HR professionals are well aware that keeping up with employment law must be a top priority.
One significant trend in the past few years is clean slate laws. These laws aim to provide individuals with certain criminal records a fresh start by limiting the visibility of their past offenses to potential employers. For HR departments, understanding and adapting current policies to these laws are essential to ensure compliance and fairness in hiring practices.
Clean slate laws are legislative measures designed to help individuals with certain criminal records move forward with their lives by restricting the disclosure of past convictions to potential employers after a certain period. These laws typically involve expunging or sealing criminal records for qualifying offenses.
According to the National Conference of State Legislatures, 77 million Americans have a criminal record. This number includes arrests, criminal charges, and convictions.
The goal of clean slate laws is to reduce the barriers to employment that individuals with past convictions face, allowing them to secure meaningful work opportunities and successfully reintegrate into society.
While clean slate law specifics vary by jurisdiction, they commonly include these key components:
1. Automatic expungement or sealing. In some cases, certain low-level offenses (such as misdemeanors) may be automatically expunged or sealed from a person’s criminal record after a predetermined period of time without reoffending.
2. Petition-based expungement. Individuals may have the opportunity to petition the court for the expungement or sealing of their criminal records, typically after demonstrating rehabilitation or meeting specific eligibility criteria.
3. Limited disclosure. Once a record is expunged or sealed under clean slate laws, employers may be prohibited from considering those past offenses during the hiring process or accessing them through background checks.
4. Non-discrimination. Clean slate laws often include provisions that prohibit employers from discriminating against applicants or employees based solely on their expunged or sealed criminal records.
A growing number of states have recognized the need for fairer and more inclusive employment practices and proactively enacted clean slate laws. According to the Clean Slate Initiative, 12 states have passed clean slate regulations since 2018: Pennsylvania, Utah, New Jersey, Michigan, Connecticut, Delaware, Virginia, Oklahoma, Colorado, California, Minnesota, and New York.
In response to evolving attitudes toward criminal justice reform and fair employment opportunities, legislatures have been increasingly active in passing clean slate laws. These recent legislative developments signal a concerted effort to address the barriers faced by individuals with criminal records seeking employment.
Connecticut: January 1, 2024
Connecticut’s Clean Slate Law automatically erases:
• Any classified or unclassified misdemeanor with a 7-year waiting period from the person’s most recent conviction.
• Class D, E, or unclassified felonies or any conviction while operating under the influence with a 10-year waiting period from the person’s most recent conviction. This law is expected to wipe 81,000 Connecticut residents’ criminal records clean.
New York: November 16, 2024
Under New York’s Clean Slate Act:
• The office of court administration will seal eligible convictions entered before the effective date within 3 years.
• Convictions NOT eligible for sealing are sex crimes, sexually violent offenses, and Class A felonies (except for drug convictions).
• The law does NOT apply to federal crimes or convictions in other states.
• The waiting period is 3 years for a misdemeanor and 8 years for a non-A felony.
Clean slate laws make it essential for HR departments to review and adjust their background screening policies to ensure compliance while maintaining effective risk management practices. Some steps HR professionals should take are:
Keep abreast of the clean slate laws applicable where your organization operates
and maintains employees. Consult legal counsel or industry experts for guidance on how to interpret and implement them.
Experienced background screening vendors understand the intricacies of clean slate laws, including the specific eligibility criteria for expungement or sealing of criminal records in different jurisdictions. They can update their systems and procedures to align with these laws, ensuring that expunged or sealed offenses are not improperly disclosed during background checks. Additionally, vendors can guide employers on how to manage the complexities of clean slate laws and make informed hiring decisions while remaining compliant with legal requirements.
Review and update screening criteria to account for the limitations clean slate laws impose. Adjust policies to exclude consideration of expunged or sealed offenses that are no longer relevant to job performance or pose minimal risk.
Educating hiring managers
Train hiring managers and relevant personnel in the implications of clean slate laws and the importance of fair and equitable hiring practices. Emphasize the legal obligations and ethical considerations surrounding the use of criminal background information in hiring decisions.
Enhancing compliance procedures
Implement robust compliance procedures to ensure adherence to clean slate laws and other relevant regulations governing background screening and employment practices. Document all steps taken to demonstrate good faith efforts towards compliance.
Embrace the opportunity clean slate laws present to promote diversity and inclusion in the workforce. Recognize the potential talent pool represented by individuals with past convictions who have demonstrated rehabilitation and a commitment to positive change.
HR departments must familiarize themselves with clean slate laws and make necessary adjustments to their organization’s background screening policies. This effort can promote fair and compliant hiring practices while providing individuals with past convictions the opportunity for a fresh start.
Data Facts | www.datafacts.com
workers
Do you agree? How does this information affect your talent engagement strategies?
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Effectively running a business requires employers to reflect on the past, deal in the present, and prepare for the future. Preparation for the future requires being ready to handle a wide range of potential issues – issues that could harm the employers, their employees, and/or their business. It is indispensable for businesses to have policies and procedures in place so that if the worst does happen, they are ready.
One of the most detrimental issues that an employer could face is a lawsuit. Lawsuits are time-consuming, expensive, and interrupt the flow of business. There are many different areas of law that are pertinent to employers, but in this article, we will discuss just one of them: General Liability.
General Liability, though superficially vague, is a complex area of law. It covers a myriad of different issues – including car accidents, property damage, slips and falls, product liability, advertising injury, defamation, and various other types of personal injury. Because of the breadth of the potential angles of attack, employers should make sure they are ready for any one of these.
The damages that accompany a general liability action provide an even greater incentive for employers to be ready. Employers could find themselves liable for medical bills, future medical expenses, pain and suffering, emotional distress, lost wages, and legal fees/defense costs. In addition to these already mounting potential costs, there are consequences that businesses may not even realize – such as the interruption of the flow of their business, including time and energy of their employees and executives – and damage to their business reputation, such as damage to brand-name, and loss of good will.
With the extensive list of potential losses – both tangible and intangible – employers should take action to protect themselves well in advance of a claim or lawsuit. How though, can employers do this?
There are several preemptive actions that employers should take to prepare themselves. First, they should have a policy and
plan in place for reporting and investigating incidents and claims; second, they should have a data preservation and retention policy - including one for electronically stored information (ESI); and thirdly, they should make sure all employees are trained on policies and procedures for incident reporting and data/evidence retention policies.
In the event that an incident does occur, employers should follow their incident/claims investigation procedure, including – and especially – documentation of the facts of the incident at the time of the occurrence. Employers should take action to record the personal data – and personal statement – about what happened, they should identify the witnesses, and they should get witness statements. The collection of this information could be indispensable in defending a suit for a general liability action.
Regardless of the type of the incident, another immensely valuable action that employers can do is take pictures and videos. To the greatest extent possible, employers should ensure that photographs and videos are taken of the scene of the incident – including the damages (if possible), and the injuries (if possible). This data should be saved and secured with multiple copies made. Primarily, and as soon as possible, employers (or their agents) should endeavor to discover and document (1) what occurred; (2) who was involved; (3) when/where the incident occurred; and (4) when, where, and by whom any and all photos/ videos were taken.
In addition to collection and retention of the data on the incident, employers should also have in place an Evidence Preservation Plan for ESI and hard evidence. Data that should be preserved –in addition to the above – include emails, texts, incident reports, and any and all other related documents/information. This is a very important step for employers to take, as it will be pertinent for defending an action. Although this likely includes a great deal of information, and sounds complex, that is exactly why it is so important to have an Evidence Preservation Plan in place. It will be far easier to tackle this task if there is already a policy and procedure in place that employees are trained to execute.
Usefulness of data evidence at trial is not the only incentive that employers should have when it comes to ensuring that their evidence is preserved. If a court discovers that a party destroys evidence, or simply fails to adequately keep and protect critical evidence, it has the power to assess penalties against that party. This is possible regardless of whether the damage or destruction was intentional. In addition to the penalties assessed, courts can also impose sanctions on those parties who lose or destroy evidence, and the failure to adequately protect and store evidence could lead to that evidence being stricken or excluded entirely – including testimony about such evidence. This failure to properly act could also lead to an adverse inference of negligence or improper actions, special (and harmful) jury instructions, or dismissal and/or default judgment.
Each one of those penalties and sanctions are completely within the court’s discretion, and are determined on a case-bycase basis, usually by the trial judge. Although that is the case in the majority of the situations, it is also possible for these issues to go to a jury for determination. In either case, these problems can be avoided if employers have adequate policies and procedures in place.
Apart from preparing for future issues, employers should learn from previous ones. In the event an incident arises, employers should review that happened – with all those involved – immediately after the incident occurs. They should also use those incidents as teaching opportunities, and learn how to prevent –
and handle – similar incidents in the future, as well as take action regarding those people involved. Beyond making policy and procedural changes, employers need to counsel and train those employees whose actions or inactions caused (or contributed to) the incident, and, if necessary, discipline repeat offenders.
Effectively running a business requires employers to reflect on the past, deal in the present, and prepare for the future. Preparation for the future requires being ready to handle a wide range of potential issues, including lawsuits. General liability claims include a wide range of actions – any of which could be detrimental to a business. Employers should be prepared with effective data/evidence collection and retention policies for both ESI and hard evidence, and their employees should be trained to effectively execute those procedures. It is of paramount importance that employers take steps to prepare, not only because this data could be indispensable at trial, but also because courts can (and will) impose penalties and sanctions on parties who fail to act/prepare (regardless of whether their shortcoming was intentional). Employers must learn from the past, teach (and, if necessary, discipline) their employees, and adjust their procedures to make sure they continue to be prepared.
Brendan M. Walsh, Associate bwalsh@wimberlylawson.com Wimberly Lawson Wright Daves & Jones PLLC www.wimberlylawson.com
Recently, federal law shifted to focus on providing more rights to employees who may face sexual harassment and sexual assault in the workplace. In March 2022, the United States Congress enacted the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which precludes employers from mandating that their employees participate in arbitration for sexual harassment and sexual assault claims.
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act applies to disputes or claims that arises or accrue on or after the date of the enactment, which was March 3, 2022. The Tennessee Court of Appeals recently clarified whether the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act applied prospectively or retroactively.
Grimsley v. Patterson Co., LLC, 2023 Tenn. App. LEXIS 462 (Tenn. Ct. App. Nov. 7, 2023).
Patterson Co., LLC hired the Plaintiff Natalie Grimsley as a Neighborhood Sales Manager in 2014. Id. at *1-2. Throughout her time at Patterson Co., LLC, Ms. Grimsley signed numerous agreements, which contained sweeping arbitration provisions. Id. at *2. Ms. Grimsley signed the most recent agreement containing a robust arbitration provision in January 2021. Id. at *2-3. In 2021, Patterson Co., LLC hired Michael Bottoms who began supervising Ms. Grimsley. Ms. Grimsley alleged that Mr. Bottoms made sexual remarks toward her and sexually harassed her. Id. at *2-3. She also alleged that Patterson Co., LLC “did not have any corporate safeguards, such as a human resources department, employee handbook, or sexual harassment policy, and that the absence of safeguards empowered Mr. Bottoms to continue this behavior.” Id. at *2. Ms. Grimsley sued Patterson Co., LLC for sexual harassment, and Patterson Co., LLC “moved to compel arbitration.” Ms. Grimsley argued against compelled arbitration, arguing that although the alleged sexual harassment she endured predates the enactment of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, the law still applied in order “to further Congress’s stated desire to support victims of sexual harassment.” Id. at *4. The trial court held that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment
Act applied to Ms. Grimsley’s case because what matters is not that the claim or dispute arose or accrued after the law’s enactment but that she filed her Complaint after the law’s enactment. Id. The Tennessee Court of Appeals disagreed and reversed the trial court’s ruling. Id. at *5.
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act clearly states that “[t]his Act, and the amendments made by this Act, shall apply with respect to any claim or dispute that arises or accrues on or after the date of enactment of this Act [March 3, 2022].” Id. at *6-7. On appeal, “Ms. Grimsley argues that the word ‘claim’ links to the word ‘arise’ and the word ‘dispute’ links to the word ‘accrues.’” Id. at *7. In her interpretation, “‘arises’ would be the date the Plaintiff knew or should have known of a dispute [and] . . . [t]he word ‘accrues’ would be the date the lawsuit was filed (or the date the dispute accrued related to the arbitration provision).”
The Tennessee Court of Appeals rejected this interpretation of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act for numerous reasons. Id. at *8. For example, the conventional understanding of when “the latest potential date that a dispute or claim arises or accrues is the date when a plaintiff becomes aware of her injuries.” Id. at *9. Additionally, “this conventional understanding is in accordance with how courts have interpreted similar language in the context of Title VII sexual harassment claims in which the key dates are linked to when the plaintiff knew or should have known of the discriminatory act or when the adverse employment action is taken.” Id. Further, “Congress expressly employed the language of the case filing in addressing the scope of the Act but did not do so in setting the effective date of the Act.” Id. Lastly, the clear language of the statute, which includes “‘dispute or claim’ and ‘arises or accrues’ ‘after the date of enactment’ . . . has plainly provided for prospective rather than retroactive application of the Act.” Id. at *12. Therefore, the Tennessee Court of Appeals “reverse[d] the trial court’s decision because the harassment of the Plaintiff and her constructive discharge occurred prior to the effective date of the Act.” Id. at *1.
On December 7, 2022, President Biden signed the Speak Out Now Act into law. The Speak Out Now Act explicitly bans all nondisclosure clauses and non-disparagement clauses regarding a sexual assault or sexual harassment dispute that is “agreed to before the dispute arises .
. . in which conduct is alleged to have violated Federal, Tribal, or State law.” S.4542(4)(a). This prohibition applies to all agreements, regardless of when they were executed, if the sexual assault dispute or sexual harassment dispute was brought under federal, tribal, or state law on or after December 7, 2022. S.4542(5). This means that unlike the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, the Speak Out Now Act does apply retroactively.
The National Labor Relations Board echoed the Speak Out Now Act in its ruling in McLaren Macomb, 372 NLRB No. 58 (Feb. 21, 2023). While not explicitly about sexual harassment or assault, the opinion found that sweeping confidentiality and non-disparagement provisions in severance agreements violate the National Labor Relations Act. Id. Such provisions could “reasonably tend to coerce the employee from filing an unfair labor practice charge or assisting a Board investigation into the Respondent’s use of the severance agreement.” Id. Additionally, similar provisions could preclude “an employee from assisting coworkers with workplace issues concerning their employer, and from communicating with others, including a union, and the Board about his [or her] employment.” Id.
Employers should review their existing agreements with their employees to account for these recent federal changes. If employers require employees to participate in mandatory arbitration for employment
does not apply to sexual harassment or sexual assault claims or disputes that occur on or after March 3, 2022. For sexual harassment and sexual assault claims or disputes that arose prior to March 3, 2022, that are subject to mandatory arbitration, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act should not preclude those claims or disputes from being arbitrated.
Under the Speak Out Now Act, employers should review the non-disparagement and nondisclosure provisions in their agreements with their employees to determine whether they violate the Speak Out Now Act. Although these agreements usually contain a severability provision that aims to protect the parties to the agreement by making each clause severable if a clause is voided, it is best practice to eliminate the unenforceable clause going forward. Additionally, employers may wish to revise these agreements altogether and have employees re-execute them subject to each agreement’s modification clause. While reviewing these agreements, employers should add language (if they do not already have similar language) that explains to employees that the non-disparagement provision, the nondisclosure provision, and the agreement will not be interpreted or enforced to infringe on employees’ rights under the National Labor Relations Act.
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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, a human resources consulting company in Memphis. She is a senior human resources executive with more than twenty years of human resources experience concentrated in publicly traded companies. She is the Editor | Publisher of HR Professionals Magazine, an HR publication distributed to HR professionals in Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Tennessee, and Texas.
Cynthia has an MBA and is certified as a Senior Professional in Human Resources (SPHR) by the Human Resource Certification Institute and is also certified as a Senior Certified Professional by the Society for Human Resource Management. She is a faculty member of Christian Brothers University. Cynthia was appointed to serve on the Tennessee DOHR Board of Appeals by Gov. Bill Haslam in 2014.
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