May 2019 Issue

Volume 9 : Issue 5

TM

www.HRProfessionalsMagazine.com

SHRM Annual Conference

June 23-26

2018

in Las Vegas

EEOC

Statistics

Free Speech in the Workplace

Kim

LaFevor,

DBA, SHRM-SCP, SPHR

Dean, College of Business

Athens State University

How to Handle

Workplace

Stress

Older Workers-

A Solution to Today’s Labor Shortage

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Employers and Lawyers, Working Together Our innovations serve in-house counsel’s and human resources professionals’ needs for technology and tools related to compliance with federal and state laws, litigation, legal project management, and workplace training. Visit www.ogletree.com/innovations to learn more.

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

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420 20th Street North, Suite 1900 | Birmingham, AL 35203 | 205.328.1900

JACKSON OFFICE

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MEMPHIS OFFICE

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Online HR Certification Classes

Bringing Human Resources & Management Expertise to You

EEOC sexual harassment charges up

13.6% in 2018 www.HRProfessionalsMagazine.com Editor

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

The Thompson HR Firm, LLC Art Direction

Park Avenue Design Contributing Writers

Austin Baker Jennifer Blake William Carmichael J. Bruce Cross Karuna Dave Frank L. Day Morgan Pike Epperson Brad Federman Jeanne J. Fisher Kim LaFevor LeeAnn Bailes Foster Geoffrey Lindley Kisha Moliere Mary O. O’Neill Ann E. Sartwell Greg Siskind James B. Taylor Tracy Webster Board of Advisors

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

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

Features

Employment Law

Top Educational Programs for HR Professionals

Industry News

4 note from the editor 6 Profile: Kim LaFevor, DBA, SHRM-SCP, SPHR 12 Pivot and Reset Your Staffing Paradigm 15 Meet the PassionHR Team 16 Beware of Oncoming Turnover 22 The Technology Side of Background Screening HR Must Know 24 Trends Employers Utilize to Become a “Best Place to Work” 32 3rd Annual Supervisor and Manager Seminar in Memphis June 21 35 Ready for a Payroll & HR Solution Makeover?

46 Book Look: Reinventing Jobs – Nine Lies About Work by Marcus Buckingham and Ashley Goodall 54 Surviving Alpha People

9 UAB’s Collat School of Business: A New Home for HR Education 13 Athens State University is Your Best Path to a Successful Career in Business 23 WGU Bachelor’s or Master’s Degree Fully Aligned with SHRM’s HR Curriculum 47 University of Illinois School of Labor

Employee Benefits

10 Stress, More Than Just a Feeling?

11 HealthMed – Targeting and Bringing Awareness to Employees’ Stress Levels 28 Payroll Connectivity and HR Bandwidth Considerations Prior to Initiating a Ben Admin Vendor Search 29 Comprehensive Employee Benefit Solutions 30 The Crushing Burden of Debt . . . and How You Can Help 33 The Greater Memphis Employee Benefit Council Meeting March 7

14 Second Chance Employment 18 States and Municipalities Continue to Fill the Paid Leave Gap 20 The FCRA Deceptively Dangerous 32 Legal Protections for Transgender Employees 34 2018 EEOC Statistics Illustrate the Agency’s Continued Emphasis on Enforcement 38 Farewell to Purple Communications. . .We Hope 39 Abtin Mehdizadegan Named Director at Cross, Gunter, Witherspoon & Galchus 40 Does Free Speech Exist in the American Workplace?

42 Does the FLSA Require Paying Employees for Employer-Sponsored Volunteerism?

48 J-1 Visa Sponsorship Assists with Interns and Trainees 51 BPJ’s Tannera Gibson Named Best of the Bar

5 SHRM Annual Conference & Exposition in Las Vegas June 23-26 7 Schedule for 2019 ALSHRM Conference & Expo in Birmingham May 14-15 26 Highlights from the 2019 SHRM Employment Law Conference in Washington, D.C. March 18-20 36 Highlights from the ARSHRM 2019 HR Conference & Expo in Hot Springs April 3-5 44 Highlights from the SHRM-Atlanta HR Conference SOAHR 2019 50 Save the Date 39th Annual KYSHRM Conference in Louisville August 28-30 52 WTSHRM 9th Annual Human Resources & Employment Law Spring Conference in Jackson May 1 53 SHRM-Memphis 2019 Legal Day Conference March 19

June 2019 issue features Profiles of Super Lawyers and highlights from the 2019 ALSHRM Conference, TN SHRM Strategic Leadership Conference, and the TPMA Conference PLUS Employment Law and Employee Benefits Updates Deadline to reserve space May 15 www.HRProfessionalsMagazine.com

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a note from the editor

We were on the road almost the entire month of April covering the important SHRM state conferences for the May issue. It all started in Hot Springs Arkansas with the ARSHRM 2019 HR Conference & Expo. One of the highlights of the conference was “The Fearless Food Fight” sponsored by Blue Cross Blue Shield of Arkansas to feed 30,000 hungry people in their state. Be sure to review the photos on Page 36-37. We also have some fantastic Facebook Live videos from the conference. (www.facebook.com/hrprofessionalsmagazine.com) Cynthia and Charles at the office of Senator Marsha Blackburn (R-TN) on Capitol Hill. We had a great time with the SHRM Advocacy Teams from Alabama, Arkansas, Georgia, Florida, Kentucky, Louisiana, Mississippi and Tennessee at the SHRM Employment Law Conference in Washington, D.C., March 18-20.

Pictorial highlights are on Page 36-37.

From Hot Springs we drove to Nashville for the SHRM Talent Conference where over 1,000 HR professionals gathered at the Gaylord Opryland Hotel to learn about the new SHRM initiatives to

You are going to love this issue! In March we kicked off the spring

“Get Talent Back to Work.” SHRM has several new initiatives to encourage employment in this tight labor

conference season at our nation’s capitol at my favorite SHRM

market including a new toolkit. Visit the website,

Conference – The 2019 SHRM Employment Law Conference. Some of

www.GettingTalentBakeToWork.org, and take the

the greatest legal minds in the country gather in Washington annually for

pledge! We will bring you the exciting highlights from

this most educational and informative conference. In addition, we get

this conference in our June issue. We will also have

to visit Capitol Hill and talk to our congressmen and senators about the

exciting highlights from the 2019 ALSHRM Conference

issues impacting our workplace. If you are not already a member of the

in Birmingham May 15-16 and the WTSHRM

SHRM Advocacy Team, I encourage you to join! (https://bit.ly/2XtILJI)

Conference in Jackson May 1 in our June issue.

Next, we traveled down south to Atlanta for the SHRM-Atlanta HR

We are excited to announce our expansion into Florida

Conference SOAHR 2019 held at the Cobb Galleria Center March

and Louisiana. Welcome to HR Tampa, NOLA SHRM,

25-27. This is one of the largest SHRM chapters in the country with over

and Greater Baton Rouge SHRM to our distribution

2,000 members! Over 1200 were in attendance to hear some of the top

footprint! Stay tuned for details about our complimentary

thought leaders in the HR community including our own Greg Hare with

monthly webinar sponsored by Data Facts on May 30.

Ogletree Deakins and Marty Martenson with Martenson Hasbrouck &

You will earn 1.00 SHRM and HRCI recertification credit.

Simon LLP. Special thanks to them for being sponsors for this event.

Littler was also a sponsor of this fabulous conference. Be sure to catch our Facebook Live videos with Greg and Marty along with Kathryn McConnell with Littler. They offered some great legal advice for HR professionals! Check out the conference on Page 44-45.

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Cynthia@hrprosmagazine.com @cythomps

CREATING BETTER WORKPLACES From bold new ideas that are TRANSFORMING HOW WE THINK ABOUT WORK to pragmatic tools for solving everyday HR challenges, the SHRM Annual Conference & Exposition will empower you on your journey to CREATE A BETTER WORKPLACE.

KEYNOTE SPEAKERS

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

Martha Stewart Emmy Award-Winning Television Show Host, Entrepreneur, Bestselling Author

REGISTER TODAY annual.shrm.org

Brené Brown Author and Researcher, University of Houston

Vineet Nayar Founder and Chairman of Sampark Foundation

Blake Mycoskie Founder and Chief Shoe Giver, TOMS

Kim LaFevor on the cover

Kim LaFevor, DBA, SHRM-SCP, SPHR, Dean, College of Business, Athens State University Dr. Kim LaFevor, DBA, SHRM-CP, SPHR has served as Dean of the College of Business for Athens State University for the past 5 years. Previously, LaFevor spent 7 years as Department Chair for Management, Human Resources Management, and Management of Technology. While serving as Chair, LaFevor redesigned the HR program and secured National SHRM alignment recognition for the university’s bachelor’s degree in Human Resource Management. Also, she chartered the SHRM Student Chapter, a student chapter that has been awarded Outstanding and/or Superior Chapter SHRM Merit recognition each year by National SHRM since its inception.

In addition to her work with Athens State University, LaFevor has also taught human resource management and business management curriculum collegiately at the associate, baccalaureate, masters and doctoral level spanning a period of 28 years at both public and private academic institutions. She has designed business and HR programs, including an Executive MBA program that became the largest in that state and successfully designed and aligned with National SHRM graduate curriculum standards for HR education. LaFevor also consults in the areas of leadership development, recruitment and selection, performance management, compensation administration, labor relations, HR legislative affairs, and academic business accreditation.

Prior to her full-time assignment in the academe, LaFevor enjoyed a 22-year career with General Motors where she spent the majority of her tenure with the General Motors Labor Relations Staff holding increasingly responsible HR/LR related positions as a Training and Organizational Development Consultant, People Systems Crew Leader/Labor Relations Manager, People System Training and Organizational Development Business Team Leader, Leadership Development Advisor (Senior Business Advisor to Plant Managers), and Plant Personnel Director-General Motors/ Saturn Service Parts Warehousing Operations, a role in which she served until she began a second career in the academe.

LaFevor currently serves in several professional and civic roles to include President for the Tennessee Employee Relations Research Association (TERRA), State Director-College Relations for the Alabama Society for Human Resource Management (AL-SHRM), Board Member & Legislative Officer-Shoals Society for Human Resource Management (Shoals SHRM), Advisor to the Tennessee Labor Management Foundation, Advisory Council for Cyber Huntsville, Past President for the Alabama Association for Higher Education in Business (AAHEB), Dean Representative-Labor Employment Relations Association (LERA)University Council of Industrial Relations and Human Resource Programs (UCIRHRP), Accreditation Council for Business School Programs (ACBSP) National Legislative Committee, and National SHRM Advocacy Team-A Team Captain-4th Congressional District.

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LaFevor has served on the AL SHRM State Council as the Director for AL SHRM College Relations for the past 6 years. She founded the AL SHRM State Student Leadership Conference in 2014 and added the HR Games Competition in 2015. As a servant leader, LaFevor works diligently with HR leaders and other business professionals to provide HR professional development opportunities for students to attend events such as the Alabama Labor Employment Relations Research Association (AL LERA), Tennessee Employment Relations Research Association (TERRA), AL SHRM State HR Conference, AL SHRM Capital Hill Visit in Washington DC, AL SHRM HR State Legislative Conference and AL SHRM professional chapter fall conferences held by local chapters throughout the state.

In collaboration with National SHRM this year, she was integrally involved in the launch of the 1st Annual AL SHRM/Mississippi SHRM Workforce Readiness Seminar & SHRM HR Case Competition.

LaFevor has served as a thought leader in HR and has authored HR articles in both peer reviewed journals and practitioner-based publications, including those published in the International Journal of Business Excellence, Strategic Management Quarterly, International Journal for Enterprise Information Systems, Technology Interface Journal, HR Professionals Magazine, and HR Alabama Magazine. She has also served as a reviewer for human resource, labor relations, and employment law textbook publishers and professional publications for over two decades.

LaFevor has been nationally recognized as an HR Fellow, Pearson “One” Professor, HRM Hall of Fame, and National Woman of Achievement. She has served as a SHRM National Foundation Scholarship Judge, Pearson Scholarship Judge, Phi Theta Kappa International Honor Society Judge, as well as a Judge for ACBSP’s Teaching Excellence Awards in Business Education. This year, LaFevor was selected for 1 of 23 nationwide competitive Fellowships with Association of Governing Boards of Universities (AGB) for the AGB Leadership and Governance in Higher Education Program---Pathway to the Presidency.

A native of Detroit, Michigan, LaFevor has a Bachelor of Science Degree with dual majors in Psychology and Personnel Psychology, a master’s of science degree in Human Resources Management, and a Doctorate of Business Administration with dual majors in Management and Education.

She holds certification as a GM Internal Development Consultant through the UAW-GM Human Resource Center and Myers-Briggs Type Indicator (MBTI) through Otto Kroeger & Associates. Additionally, she holds professional HR certifications through the Human Resource Certification Institute (HRCI) as a Senior Professional in Human Resources (SPHR) and through the Society for Human Resource Management (SHRM) as a SHRM Senior Certified Professional (SHRM-SCP). 

T

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TuesdayTuesday May 14th May 14th

Conference Registration Conference Registration 11:00 am6:00 pm.............................................................................................................................................Escalator/ Lobby 11:00 am6:00 pm.............................................................................................................................................Escalator/ Lobby Day 1 Mega Sessions 1:00 pm 5:20 pm Day 1 Mega Sessions 1:00 pm - 5:20 pm 1: Two Questions Will Save Us All SessionSession 1: Two Questions Will Save Us All Presented by: Kate Bischoff, Thrive Law Consulting................................................................................................BJCC Presented by: Kate Bischoff, Thrive Law Consulting................................................................................................BJCC Session 2: Never Assume Anything: Recruitment Marketing Personas Session 2: Presented Never Assume Anything: Recruitment Marketing Personas by: Katrina Kibben, Three Ears Media......................................................................................................BJCC Presented by: Katrina Kibben, Three Ears Media......................................................................................................BJCC Session 3: In the Mix: Motivating, Managing, & Mentoring Millennials Session 3: Presented In the Mix: Managing, & Mentoring Millennials by:Motivating, Rashida Dore-Wilson, Alabama A&M University.............................................................................BJCC Presented by: Rashida Dore-Wilson, Alabama A&M University.............................................................................BJCC Marketplace Happy Hour: Drinks, Appetizers, Cash Prizes!

5:20Happy pm - 6:30 pm.................................................................................................................................................................BJCC Marketplace Hour: Drinks, Appetizers, Cash Prizes!

5:20 pm - 6:30 pm.................................................................................................................................................................BJCC

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Wednesday Wednesday May May 15th 15th Conference Conference Registration: Registration: 6:30 6:30 am am 8:30 8:30 am.................................................................................................................................................Escalator/Lobby am.................................................................................................................................................Escalator/Lobby Hot Hot Breakfast Breakfast ...BJCC ...BJCC 7:00 7:00 am am - 8:00 - 8:00 am............................................................................................................................................................... am...............................................................................................................................................................

Welcome Welcome && Announcements Announcements 8:00 8:00 am am - 8:30 - 8:30 am..................................................................................................................................................................BJCC am..................................................................................................................................................................BJCC Opening Opening Keynote: Keynote: The The Future Future ofof HR: HR: Establishing Establishing New New HR HR Norms Norms that that Put Put People People First, First, Dr. Dr. Jarik Jarik Conrad, Conrad, Ultimate Ultimate Software Software 8:30 8:30 am am - 9:45 - 9:45 am..................................................................................................................................................................BJCC am..................................................................................................................................................................BJCC Break: Break: visit visit with with vendors, vendors, move move upstairs upstairs for for concurrent concurrent sessions sessions 9:45 9:45 am am - 10:00 - 10:00 am.......................................................................................................................................................................... am.......................................................................................................................................................................... sions: sions: 10:00 10:00 am am - 11:15 - 11:15 am am Concurrent Concurrent Ses Ses Achieving Achieving Compliance Compliance with with Foundational Foundational Pieces Pieces - One - One Rung Rung atat aa Time Time Presented Presented by: by: Tae Tae Phillips Phillips && Josh Josh Harrison Harrison with with Ogletree Ogletree Deakins......................................................................East Deakins......................................................................East MM How How toto bebe aa Successful Successful HR HR Newbie: Newbie: Find Find Your Your Resources/Find Resources/Find Your Your People People K-L K-L Presented Presented by: by: Jazmine Jazmine Wilkes, Wilkes, Ignite Ignite Fueling Fueling Innovation.....................................................................................East Innovation.....................................................................................East Working Working for for aa #1#1 Company Company - What - What isis it it Like?

Like?

Presented Presented by: by: Juanita Juanita Phillips, Phillips, Intuitive...................................................................................................................East Intuitive...................................................................................................................East N-O N-O Lunch Lunch Networking Networking Round Round Tables Tables / Visit / Visit with with Vendors Vendors 11:15 11:15 am am - 12: - 12: 3030 pm.................................................................................................................................................................BJCC pm.................................................................................................................................................................BJCC Concurrent Concurrent Sessions: Sessions: 12:30 12:30 pm pm - 1:45 - 1:45 pm pm Effective Effective Harassment Harassment Prevention Prevention inin the the #MeToo #MeToo Era Era Requires Requires More More than than aa Policy Policy MM Presented Presented by: by: Mac Mac Greaves Greaves && Kary Kary Wolfe Wolfe with with Jones Jones Walker Walker LLP........................................................................East LLP........................................................................East Better Decisions Begin with Better Data Better Decisions Begin with Better Data Presented by: Steven Rondone, U.S. Bureau Labor Statistics.............................................................................East K-L Presented by: Steven Rondone, U.S. Bureau ofof Labor Statistics.............................................................................East K-L Improving Employee Engagement and Retention through Your Managers Improving Employee Engagement and Retention through Your Managers N-O N-O Presented by: Anne Tomkinson, DC Public Charter School Board..........................................................................East Presented by: Anne Tomkinson, DC Public Charter School Board..........................................................................East Concurrent Concurrent Sessions: Sessions: 1:55-3:10 1:55-3:10 Employment Employment Law Law Update Update Presented Presented by: by: Warren Warren Lightfoot Lightfoot with with Maynard, Maynard, Cooper, Cooper, and and Gale.........................................................................East Gale.........................................................................East MM Emerging Emerging Trends Trends and and Best Best Practices Practices inin Employee Employee Benefits Benefits K-L K-L Presented Presented by: by: Scott Scott McDuffie, McDuffie, Willis Willis Towers Towers Watson..............................................................................................East Watson..............................................................................................East How How toto find find Confidence Confidence inin Conflict Conflict Presented Presented by: by: Kwame Kwame Christian, Christian, American American Negotiation Negotiation Institute.........................................................................East Institute.........................................................................East N-O N-O Break: Break: visit visit with with vendors, vendors, move move back back downstairs downstairs for for closing closing session, session, coffee, coffee, last last chance chance toto bid bid onon silent silent auction auction -3:30 pm.....................................................................................................................................................................BJCC 3:10 3:10 pm pm -3:30 pm.....................................................................................................................................................................BJCC Closing Closing Keynote: Keynote: Putting Putting the the Human Human back back into into HR, HR, Laurie Laurie Shakur, Shakur, Rakuten Rakuten Marketing Marketing 3:30 3:30 pm pm -4:15 -4:15 pm.....................................................................................................................................................................BJCC pm..................................................................................................................................................... ................BJCC

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UAB’s Collat School of Business: A New Home for HR Education The University of Alabama at Birmingham’s Collat School of Business has opened a new, state-of-the-art home for innovation and business education.

Located in the heart of Alabama's business center, the Collat School of Business offers an engaging learning environment with classrooms extending well beyond the walls of the UAB campus. Its unique location allows faculty to integrate the practical experiences of leading companies - from Fortune 500 corporations to entrepreneurial startups - into the programs offered. Students gain valuable, real-world experience through a wide variety of internships and other opportunities in the business community.

The new building features leading-edge technology and multi-purpose classroom spaces to accommodate small-group learning, as well as showrooms for entrepreneurial projects and sales presentations, labs for behavioral research, and spacious common areas indoors and outdoors.

The Collat School of Business draws students from a variety of educational backgrounds with diverse life experiences, but as a group, they share a common drive. They are unafraid

of sacrifice; they are willing to earn their success.

Collat students understand the practical application of education to their careers, and so they demand more of themselves, their professors, and their fellow students. They go beyond the classroom and engage in real world business opportunities to prepare for long-term career success.

The Collat faculty's teaching skills complement their students’ uncompromising efforts. Professors are accomplished researchers, publishing papers and textbooks that contribute to the ever-growing body of knowledge within the business disciplines. But they are more than just skilled teacher-scholars. They are also deeply experienced professionals, having worked for some of the world’s leading companies: Ford, Deloitte, United Airlines, Motorola, Procter & Gamble and U.S. Steel to name a few. It’s this combination of faculty scholarship and professional experience that makes a UAB business degree both practical and relevant.

Human Resource Management Degree In 2017, the Collat School of Business developed its previous management concentration in human resource management into a popular, full-blown major. There are 150 students currently majoring in Human Resource Management and minoring in other areas of interest, such as social media or business administration.

An advisory council of human resource professionals working in the field advises Collat’s HR curriculum to ensure classes and course materials offer the most relevant information for human resource graduates entering the workforce, and that their knowledge, skills and abilities meet the needs of modern organizations hiring HR professionals. The curriculum is aligned with SHRM’s guidelines, and the student SHRM chapter is one of the largest and most active organizations on campus.

The curriculum covers various aspects of human resources and employment relations, including compensation, recruiting/staffing, employment law, leadership, and workplace diversity. More than 125 students have enrolled in the major and are available for internships, which are a graduation requirement.

For information about how to recruit Collat’s top human resource management graduates, visit uab.edu/collatcareerservices. For more information about the UAB Collat School of Business and its Human Resource Management program, visit uab.edu/business.

The University of Alabama at Birmingham

THE SOUTHEAST’S HOME FOR HR EDUCATION With the opening of our $37.5 million state-of-the-art home, UAB’s Collat School of Business announces its arrival on the world stage. We’re already an established regional force in business and human resource management, but our new education and technology center brings together the greatest minds in business to innovate, create, and rethink the way the world does business.

Learn more at uab.edu/business www.HRProfessionalsMagazine.com

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Stress, more than just a feeling?

By TRACY WEBSTER

STRESS HAS BECOME AN EPIDEMIC. More than half of the population experience regular physical symptoms caused by stress. Just over a third feel like they are living with extreme stress and 48 percent feel their stress has increased over the past five years. Stress is more than just a feeling; it served as an important evolutionary function for our prehistoric ancestors. As humans, it’s perfectly normal to experience mild stress and it has a positive short-term benefit because it does release a hormone called cortisol. This stress hormone can give a “quick burst of energy, heighten memory, increase heart rate and a lower sensitivity to pain,” which can be advantageous in high stake situations.

As humans evolved, the challenges we face have shifted from acute stress (like an animal attack) to constant stress. Many people experience high levels of both internal and external stress. Stress overload alone can produce serious mental disorders. Sources of stress overload vary, depending on individual circumstances. Medical problems, socio-economic situations, job stress, interpersonal crises, and other sources can lead to or contribute to stress overload.

Stress overload can have an impact on memory loss, weakened immune function, fat gain, muscle loss and anxiety. Stress overload can also contribute to opioid and other substance abuse. That is why it’s crucial that we measure and learn how internal and external stress overload can affect lives.

Metabolic Syndrome and Stress Metabolic Syndrome is an insidious precursor to chronic disease condition. It is selfmanageable with conscious alterations in lifestyle, however, our ability to manage it is affected by stress, worry, and anxiety. Obesity is a large factor in developing metabolic syndrome. Stress can cause people to turn to food for comfort. Emotional eating occurs when people eat to deal with stressors, often overeating high-calorie sweet or fatty food. A recent study of over 1,000 subjects and their habits showed that stress/depression emotional eating can have an impact on obesity and that emotion/stress management may prove effective in obesity prevention.

Stress is hard enough to handle in small doses, but chronic stress can have complex, detrimental effects on your emotional health (which in turn, ends up impacting your overall health). While the benefits of maintaining good nutrition and managing your calories are well established, it is becoming clear that how you address the triggers of stress is just as important when you are constructing your diet plan.

Consider the findings of a study conducted by the University of Chicago’s Department of Medicine. The expressed purpose of the study was to determine the relationship between sleep loss and cortisol levels. The study concluded that when your body doesn’t get enough sleep, your cortisol levels can rise anywhere from 37-45%.

The increased cortisol levels can seriously threaten your mental and physical health.

Even partial sleep loss is enough to raise your cortisol levels and bring on an entire host of problems that come along with it.

Fortunately, there are plenty of tools you can utilize. Making sure you get enough sleep is crucial to managing both your stress levels and your mental health.

The fact that chronically elevated stress levels have a negative effect on humans is hardly a revelation these days. Corporations can benefit from understanding and measuring stress in each department so they can analyze the information and formulate plans to help their employees.

The more we study stress and try to understand how it specifically affects the human body, the more we realize that it might be one of the underlying issues holding us back in the pursuit of a healthier, happier more productive life.

DON’T LET STRESS HOLD YOU BACK!

Stress and Sleep Sleep, both quantity and quality, also affect your health. Stress can have a negative impact on your sleep. The average adult needs 7-9 hours of sleep per night, and about a third of adult’s report getting less than 6 hours of sleep every night. Chronic stress can make it harder to fall or stay asleep, resulting in an endless cycle.

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Tracy Webster, CEO HealthMed, Inc. tracy@healthmedinc.com www.healthmedinc.com

TARGETING AND BRINGING AWARENESS TO EMPLOYEES’ STRESS LEVELS.

MEASURE AND DETECT YOUR STRESS. Researchers have found that stress is the single most important factor in predicting workers’ compensation claim occurrence and cost Human resources experts agree that behavioral health problems are eroding corporate bottom lines as never before Forty-three percent of workers polled said their job was having a negative impact on their levels of stress Stress was at the top of the respondents’ list, above eating or sleeping habits, weight levels or social or family life The most insidious workplace stress is chronic stress which is consistent, unrelenting and can be deadly Chronic stress is the worst for your health, and unfortunately, it’s the kind that is most common in the workplace

“Stress has a negative impact on overall health and return to work outcomes, and a growing body of evidence supports that.”

Trey Gillespie, Senior Director, Workers’ Compensation, Property Casualty Insurers Association of America.

As many as 90 million workdays are lost each year due to stress-related issues Productivity suffers as a result of stress and it leads to mistakes, missed deadlines, lateness and trouble getting along with co-workers The National Institute of Stress found that it costs U.S. businesses more than $300 billion a year in the guise of stress-related absenteeism, turnover, diminished productivity and medical, legal and insurance costs

CONTACT US SO WE CAN HELP. Call us at 888.277.1051 www.healthmedinc.com

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PIVOT AND RESET YOUR STAFFING PARADIGM:

Older Workers Offer a Job Ready Solution to Today’s Labor Shortage

By KIM LAFEVOR

Introduction Got jobs? Of course you do. With the sunset of 2018, a startling problem in the U.S. employment landscape began to more clearly and fully emerge: There are serious shortages in the US labor supply, yet there remain untapped pools of labor sources. As HR practitioners, we have placed a great deal of attention and resources towards being an employer of choice for Millennial employees (born 1980-1994). Their positive impact has been stalwart and influential, although it can be argued the best is yet to come from this powerful segment of workers who represent about one-third of today’s workforce and they continue to rise into mid, senior level and C-Suite positions and effectively contributing to operational and strategic navigation. We have also taken calculated steps to do the same with Generation Z (born 1995-2010) now entering the workplace and uniquely differentiated from the preceding Millennial generation. However, such coordinated focus with these targeted sources of talent has had unintended outcomes. It has redirected our attention away from a key talent pool that provides a solution to pivot and reset our staffing paradigm in a more comprehensive way— Older Workers.

Source: U.S. Bureau of Labor Statistics

Older workers 55 to 75 are the largest and fastest growing group of worker prospects and job seekers in the U.S., both as white and blue collar job candidates. Economists project that the number of individuals over age 65 will more than double by 2050. This projection, according to the U.S. Bureau of Labor Statistics, is expected to be in stark contrast to other age groups in the workforce that will remain generally unchanged through 2024 (Tossi & Torpey, 2017). The data suggests that a viable and readily available talent pool of older workers offer a significant solution to current workplace shortages. So, why are HR planning strategic and tactical plans not aimed, at least in part, with the recruitment and selection of this talent segment?

While the “underutilized pool of potential talent” spans across several populations of viable and job ready workers, the cornerstone of this article emphasizes the growing tsunami of talented older workers who can offer an immediate solution and can substantively move the pendulum forward in responding to workforce needs of U.S. companies, both in skilled and non-skilled areas.

If this is the case, and appears almost too good to be true, this poses an obvious question. Why is this segment of older workers not more actively pursued to fill job vacancies that many argue are impossible to fill?

Describing the Current Labor Shortage: Older Workers Offer a Pragmatic Solution Although the past two decades brought higher levels of job seekers than job openings, a reversing trend over the past year has yielded more job vacancies than job seekers. In March 2019, the U.S. Department of Labor reported 6.5 million workers sought to fill 7.6 million job openings reflecting a bulging delta between supply and demand of labor needed. To elevate concerns, according to the research and projections, this swing is expected to worsen (Campbell, 2019).

With this labor deficit on all fronts, employers must find new and expanded networks and sources of workers. Among potential pipelines are the growing group of older workers who have given up on finding employment following downsizing in recent recessionary years (2001, 2008-2009), and thereby not reflected among the reported unemployment numbers of job seekers, and older workers who are actively seeking employment yet face societal barriers that prevent them from entering the job market that so desperately needs them.

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Source: U.S. Bureau of Labor Statistics

Is there Unintentional, Uninformed Biases and Regulatory Overstretch towards Older Workers?

In this progressive era of equal employment opportunity, one would surmise that assumptions and biases have been mitigated through regulatory oversight. For older workers, protections can be found within Title VII and the Age Discrimination in Employment Act (ADEA) which contains provisions for fair and equitable treatment in employment of older workers.

However, enforcement has produced mixed messages. A recent 2019 7th Circuit Court decision with Kleber v. CareFusion Corp. (17-1206) held that the ADEA related disparate impact age discrimination does not extend to outside job applicants. This ruling raises more questions than it answers about regulatory guidance to employers and discerning legal avenues for older workers.

The intent of legislative provisions sought to neutralize stereotypes and biases influencing decisions in the employment process to include unfair discrimination in selection, performance appraisals, pay raises, promotions, and training opportunities for older workers. Misplaced negative views of older workers have been debunked by a growing body of research that suggests otherwise (Stone & Tetrick, 2013). This solidifies the premise that barriers do exist for this population of older workers who offer unmatched experience, motivation towards organizational engagement, and significant ability to contribute to the workplace in ways that can produce meaningful organizational results and outcomes.

Thoughtful and Intentional Employment of Older Workers: HR Professionals have the Answer

1) Expand our recruitment strategies to include this rich pool of older workers

HR professionals who influence the recruitment and staffing functions have an opportunity to look at the sources and methods in recruiting from the existing pool of older workers that are ‘job ready’ and viable labor source with strategic advantages. As workforce labor shortages increase over the next two decades, organizations will need to grapple with effective strategies to recruit, retain and reengage the older workforce if they are to meet their staffing needs. Older worker prospects tend to fall primarily into one of following five categories:

2) Ensure mechanisms are in place to eliminate age-related biases in the selection process, and

1) Those who are presently in the labor force and wish to retire to pursue a second career, but fear leaving the job will result in an inability to reenter the workforce with present lack of focus and interest on older workers as job prospects 2) Those unable to find reemployment following downsizing in recent recessionary years and have aborted any future job search 3) Those that have been unable to save adequately for retirement and are actively seeking employment to supplement federally provided assistance, such as Social Security and Medicare which falls short in keeping up with the cost of living 4) Those who live in rural and unincorporated regions of the country where unemployment remains high 5) Those who are actively looking for a position but are met with biases centered on assumptions of older workers being “overqualified” or “incapable” of performing effectively the essential job functions of a position

3) Institute and employ workplace policies that are appealing to attract and retain older workers Furthermore, we can also consider three primary policies that can prove attractive to aging worker prospects: 1) Provide support for employee caregivers as older workers tend to have responsibility for caring for even older parents 2) Providing flexible workplace policies that allow for flexible scheduling, telecommuting, phased retirement, wellness programs, family leave and paid sick leave 3) Providing training and education to keep technology skills honed and to remain current with best practices in the respective industry (Whitman, 2014) The labor shortage problem is clear, but one solution lies in the renewed focus on employing older workers. With these aforementioned approaches, organizations have the opportunity to utilize older workers to solve not only their labor shortage, but enable this group to make important contributions to productivity and high impact deliverables in the workplace.

Kim LaFevor, DBA, SHRM-SCP, SPHR Dean, College of Business Athens State University Kim.LaFevor@athens.edu www.athens.edu

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13

Second Chance Employment The Risks, Rewards, and Requirements for Hiring Applicants with Criminal Convictions

By MORGAN PIKE EPPERSON and MARY O. O’NEILL

The prevailing attitude towards hiring applicants with criminal convictions is shifting. The Society of Human Resources Management advocates for this “second-chance employment,” and increasingly, cities and states are passing “ban the box” laws prohibiting employers from requesting conviction information on employment applications.

Now, the federal government is getting in on the act (literally) with the bipartisan First Step Act. The Act provides prisoners retroactive “good time credit” and incentives for participating in prerelease programs; and requires the Bureau of Prisoners to release low and minimum-risk prisoners to prerelease custody in halfway houses or home confinement.

Second chances sound great in theory, but what does this attitude-shift mean for employers? Many employers find it difficult to recruit qualified applicants in light of the low unemployment rate – currently 4%. The labor shortage, combined with the potential increase of applicants with criminal convictions due to “ban the box” efforts and the First Step Act, may necessitate hiring applicants with criminal convictions.

When is it Okay to Hire (or Choose Not to Hire) an Applicant with a Criminal Conviction?

Many employers conduct background checks during the hiring process, but employers must walk a fine line between restrictions on background checks and the risks of not conducting background checks. Employers should ask themselves: DoesApplicableStateorFederalLawMandateaBackgroundCheck?

Look for federal, state, and local laws that mandate checks for particular industries. These laws typically prohibit hiring applicants with convictions related to the specific industry. For example, many states prohibit hiring convicted sex offenders as teachers, and the National Child Protection Act requires childcare providers to screen for convictions related to the safety and well-being of children, elderly, or disabled persons.

Does Your State Allow Negligent Hiring Claims?

Negligent hiring claims provide for claims against the employer for injuries caused by an employee where the employer knew or should have known the employee might cause a particular injury because of his criminal history. Generally, the employee’s conviction must be related to the injury – for example, a banking employer knowingly hiring an applicant convicted of identity theft, could be responsible if the employee steals a customer’s identity. If your state allows negligent hiring claims, check whether the state provides immunity or favorable presumptions for conducting background checks, or for the applicant participating in rehabilitation programs. For example, Tennessee immunizes employers hiring applicants with criminal records that have received a certificate of rehabilitation. And Florida courts presume an employer was not negligent where the employer conducted a background check that did not reveal information showing unsuitability for the particular job.

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Does Your Current Background Check Policy Comply with Applicable Federal, State, and Local Laws?

Do Any Applicable Laws “Ban the Box” or Require Consent?

While some states may mandate background checks for certain jobs, many states have adopted “ban the box” laws, prohibiting employers from checking criminal history until an employment offer is made. Some states (Alabama, for example), and the Fair Credit Reporting Act, require the applicant’s consent before conducting a criminal background check.

Check out the Equal Employment Opportunity Commission’s and Federal Trade Commission’s co-published FCRA guide, Background Checks: What Employers Need to Know. The FCRA requires employers conducting criminal background investigations to provide the applicant clear and apparent notice – in a stand-alone document – that the employer may obtain criminal records. Then the applicant must provide written consent.

If the employer does not hire the applicant because of investigation results, the employer must provide a copy of the report and summary of FCRA rights. (The Consumer Financial Protection Bureau has a summary of rights on its website.) The employer must then provide the applicant a reasonable time (usually five days) to discuss or dispute the report before the employer refuses to hire the applicant.

Have You Narrowly Tailored Your Policy to Comply with EEOC (or state fair employment agency) Guidance?

Most employers know Title VII prohibits employers from discriminating because of race, gender, national origin, color, or religion, but how can an employer violate Title VII because of an applicant’s criminal conviction?

The EEOC’s guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights act of 1964, is not binding, but courts often follow it, and the EEOC may investigate potentialTitle VII violations.

The EEOC takes the position that an employer should not ask about criminal convictions during the application process. Employers risk EEOC investigation or charge if the employer’s criminal-conviction policy creates a disparate impact on a protected class of applicants. For example, the guidance notes, a policy that excludes all applicants with convictions may disproportionately affect minorities. Finally, employers should apply criminal conviction policies in a consistent and neutral manner, without regard to an applicant’s race, gender, national origin, color, or religion.

To withstand EEOC scrutiny, narrowly tailor your policy to identify criminal conduct sufficiently related to the specific job. The policy should consider the nature and severity of the criminal conduct, the time elapsed since the conduct, and the nature of the job sought.

Does Your Policy Allow Individualized Exceptions?

This may seem contrary to the “neutral and consistently applied” guidance, but the EEOC recommends employers notify applicants when a policy may exclude an applicant based on criminal conviction and give the applicant opportunity to explain why an exception should apply, or to clear up inaccuracies in the record. So what factors may point towards exception?

What Should Recruiters Be Looking for in Applicants with a Criminal Conviction?

Bobber, who said the best strategy is to speak directly with the complaining employees. Talking points may include:

• Successful, post-conviction work history – applicants having had a job since release, supported by the prior employer’s positive reference

• Handbooks, codes of conduct, training, policies, etc. that state all employees must treat one another with respect

• Lengthy and successful work history before conviction

• Pointing out all employees must work cooperatively for a successful company

• Positive employment and character references

• The convicted employee has paid her debt to society

• Post-conviction rehabilitation efforts, such as education or training

• The convicted employee is managed by a parole officer, providing incentive to behave

• Convictions that are unrelated to potential job duties, e.g., possession for marijuana for a non-safety sensitive job • Single offenses, or low number of offenses, i.e., not a repeat offender • Significant amount of time between conviction and application – an applicant who committed offense at age 18, now 40, with no other criminal history

How Should Employers Handle Complaints from Co-Workers Who Do Not Want to Work with Employees with a Criminal Conviction?

Once an employer determines to hire an applicant with a criminal conviction, the employer may face complaints from employees who do not want to work with the convicted employee. Employers should first endeavor to keep criminal convictions confidential. Maintaining confidentiality is not only prudent in light of federal and state privacy laws but can also prevent employee complaints. I asked my colleague, Bernard

• Complaining employee may report inappropriate behavior to Human Resources, pointing out existing reporting policies or procedures • Estimated 1/3 of U.S. adults have criminal conviction; working with these employees is a fact of life

Morgan Pike Epperson, Associate Ogletree Deakins – Birmingham Office morgan.epperson@ogletreedeakins.com www.ogletreedeakins.com

Mary O. O’Neill, Counsel Ogletree Deakins – Birmingham Office mary.o’neill@ogletreedeakins.com www.ogletreedeakins.com

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15

Beware of

Oncoming Turnover

By BRAD FEDERMAN and JENNIFER BLAKE

Compensation has short term motivational power. Pay is not a tool that creates sustainable engagement. Companies that attempt to utilize pay to satisfy their employees will consistently fall short. On the other hand, compensation can and often is a source of dissatisfaction when it is not competitive. Now is the time to be concerned regarding the competitiveness of your compensation program. Beware of oncoming turnover.

People are already leaving companies, and it will only get worse.

One of the significant benefits touted by those in favor of the Tax Cuts and Jobs Act of 2017 was the positive impact it would have on jobs and employee pay. The expectation was, with the corporate tax rate dropping from 35% to 21%, companies would use some of those tax savings to invest in the salaries of their employees.

Some corporations shared part of their savings with employees in the form of bonuses and increased salaries. For example, First Tennessee Bank paid about 70% of its workers a $1,000 bonus at the end of 2017 and, in the first half of 2018, the bank increased the base wage rate for current employees to $15 per hour.

In April 2019, Bank of America announced it is raising its minimum pay rate to $17 per hour, and increase pay in increments to $20 per hour by 2021. Additionally, the bank froze health care cost increases for lowerpaid employees. The bank’s Chairman and CEO, Brian Moynihan, stated, “With the success our company has…we have to share success with our teammates.”

Several large retailers also announced plans to raise their minimum wages to the $11 to $15 per hour range.

Generally, however, wages don’t seem to be keeping up with other economic indicators, such as accelerating growth in GDP and steady job growth. The WorldatWork 2018-2019 Salary Budget Survey found the average salary budget increase predicted for 2019 was 3.1%, compared to 3.0% in 2018. Salary budgets have increased ever so slowly since 2009 when the average budget increase was 2.3%; that’s less than 1% over the past ten years.

With a tight labor market, low unemployment, and a healthy market, why aren’t employee wages going up? Josh Bersin, founder of Bersin by Deloitte, is a global industry analyst covering HR talent, leadership, and HR technology. Bersin suggests an interesting theory regarding the lack of salary growth in his October 31, 2018, online article on Forbes, “Why Aren’t Wages Keeping Up? It’s Not the Economy, It’s Management.” His theory: HR and business leaders are afraid to raise wages.

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Bersin points to an economic term called “sticky wages”, when workers’ pay doesn’t adjust quickly to changes in labor market conditions. Bersin states: In this theoretical construct, wages are slow to rise because they’re even slower to fall. So, managers hold on to cash and delay salary increases because they know how hard it will be to cut them later.

One of the major flaws of this theory, Bersin points out, is that when a business downturn does happen, the company doesn’t have the option of reducing pay because their employees are already underpaid. They are then forced to lay people off.

So, what would happen if your company was paying people fairly all along?

Here is one possibility.

At one point in my career, I began working for a community hospital that was recovering from a difficult economic downturn. During the economic crisis, in place of reducing wages or instituting layoffs, the employees came together and agreed to take voluntary time off without pay (at measured intervals to ensure patient safety). The hospital recovered and increased its profile in the community as a great place to work. The experience seemed to bond employees together in a way that, as a newcomer, I envied!

Voluntary turnover is now at a ten-year high. If your organization has not yet been impacted by increased turnover, it probably will be soon. According to Mercer’s 2018/2019 U.S. Compensation Planning Survey, 78 percent of business leaders put retention at the top of their organization’s list of concerns, and attracting applicants was a top concern for 73 percent.

Employers who recruited talent recently can tell tales about the tight labor market. Recruiters complain about candidates not showing up for interviews, or worse, not showing up for their first day of work! ManpowerGroup’s Employment Outlook Survey for the second quarter of 2019 shows 24% of U.S. employers have plans to hire and 72% plan to keep their workforce levels steady. For employers, it is NOT a buyer’s market.

Although employers do not have control over all the variables that make attracting, recruiting and retaining talent, a challenge, fair and competitive pay is an element which many organizations can control. Unfortunately, too few employers are intentional, strategic and proactive when it comes to managing their compensation plans.

Be Intentional Organizations are intentional about pay when they can articulate their overall philosophy about total rewards. An executive leadership team that knows its

mission and how to operationalize it, also understands that planning for and managing total rewards is a critical part of any strategic plan and operating objectives. A well-defined compensation philosophy will identify the organization’s total rewards elements, how the total rewards support the overall business strategy, and define the organization’s competitive market position relative to pay and benefits.

Be Strategic For many hiring managers, strategy means finding out the pay expectations of their top-choice candidate and doing whatever is necessary to get HR to say “yes.” A strategic pay plan, however, relies on the organization’s compensation philosophy to guide the development of pay and benefits that will attract and retain top talent from the competitive market. The competitive market might be different for various types of jobs, which may require slightly different pay strategies.

Compensation strategy means making thoughtful pay decisions based on data and the organization’s values regarding fair pay among its workforce. For example, if the organization already identified specific jobs that are especially market sensitive, factor in offering candidates a premium hiring rate into the pay plan. No one is surprised, and internal equity is not compromised.

When the market shifts, proactive employers don’t wait for employees to come groveling for a raise. When increases in pay are warranted based on market indicators, pay ranges and employee salaries, if necessary, are adjusted accordingly.

Typical fallout from pay plans that are not regularly updated is compression, where new hires receive pay the same or more than current employees.

Today’s hiring managers need to remember they are operating in a seller’s market. Employees who feel slighted or stuck have options. Namely, they can leave their company and accept a new job elsewhere, one that pays five to ten percent more than what you’re paying them.

While recruiting top talent is a multi-faceted proposition with many moving parts, don’t overlook the obvious. If your organization’s pay practices are out of sync with the market, fix it. Although candidates evaluate many factors when considering job offers, if your salary offer isn’t even in the ballpark, you will have struck out in the first inning.

When it comes to your current workforce, pay may not be the reason employees stay with your organization, but in this environment, it can be the reason they leave.

Be Proactive Pay plans are not carved in stone (the last decade notwithstanding).

Employers who maintain an understanding of the competitive salary market and consistently update their pay plans, will attract, recruit and retain talent from a position of strength. Hiring managers can look top candidates in the eye and make salary offers with confidence.

STRENGTHENING BRANDS

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

Jennifer Blake, SR HR Consultant F&H Solutions Group jblake@fhsolutionsgroup.com www.fhsolutionsgroup.com

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17

TRENDS FOR 2019

- States and Municipalities Continue to Fill the Paid Leave Gap

By JAMES B. TAYLOR

Certain U.S. federal laws require employers to provide leave to their employees (paid or otherwise) in specific situations. While the leave provided to employees by federal law is often limited in scope and in context, many states and municipalities are stepping in to guarantee additional forms of paid leave to employees.

The Family and Medical Leave Act (“FMLA”) The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for certain family and medical reasons. In the private sector, a “covered employer” for FMLA purposes is any employer who employs 50 or more employees in 20 or more workweeks in the current or preceding calendar year. An “eligible employee” under the FMLA means an employee who (1) works for a covered employer, (2) has worked for the employer for at least 12 months, (3) has worked at least 1,250 hours for the employer during the 12 month period immediately preceding the leave, and (4) who works at a location where the employer has at least 50 employees within 75 miles.

In terms of the amount of leave provided by the FMLA, eligible employees may take up to 12 workweeks of leave in a 12-month period for one or more of the following reasons: (1) the birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care; (2) to care for a spouse, son, daughter, or parent who has a serious health condition; (3) for a serious health condition that makes the employee unable to perform the essential functions of his or her job; or (4) for any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status. Additionally, an eligible employee may take up to 26 workweeks of leave during a "single 12-month period" to care for a covered servicemember with a serious injury or illness, when the employee is a close relative of the servicemember.

Notably, the FMLA requires that an employer continue its employee’s group health insurance coverage under the same terms and conditions as if the employee had not taken leave. In addition, upon return from FMLA leave, an employee must be restored to his or her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.

The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) The provisions of USERRA protect civilian job rights and benefits for veterans and military reserve members. Notably, employers are not required to compensate employees for periods of leave or absence covered

by USERRA. Under USERRA, an employee who is subject to a military deployment may have the right to protected leave from employment or the right to re-employment after covered deployments of up to five years, depending on various circumstances. Generally, USERRA provides that returning service-members are reemployed in the job that they would have 18

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attained had they not been absent for military service (the long-standing "escalator" principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority – including health and pension plan coverage for service members.

The Americans with Disabilities Act (“ADA”) The ADA applies to employers with 15 or more employees and to employment agencies, labor organizations and joint labor-management committees with any number of employees. In terms of employees, the ADA protects individuals with a disability who are qualified for their job, meaning they have the skills and qualifications to carry out the essential functions of the job, with or without accommodations. An individual with a disability is defined as a person who: (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment.

Generally, the ADA requires that employers provide disabled employees with “reasonable accommodations” necessary for them to perform their job and which do not cause an “undue hardship” on the employer. While reasonable accommodations under the ADA can include workplace modifications, they may also include, in certain scenarios, allowing an employee to take a period of unpaid leave in order to accommodate that employee’s disability. However, there is no set or specifically-mandated leave period required by the ADA as appropriate accommodations may depend on the individual employee’s circumstances. As such, the amount of leave a disabled employee may be entitled to take under the ADA is examined on a case-by-case basis. Yet, despite this fact, employers are not required to provide leave under the ADA where such would result in "undue hardship" to the employer. Various cases have examined how much leave may constitute a “reasonable” accommodation in certain circumstances or whether a certain amount of leave is a de facto “undue hardship,” but no bright-line rule has been established on this issue nationally.

The Fair Labor Standards Act (“FLSA”) Despite certain ongoing misconceptions regarding the benefits provided to employees by the FLSA, the FLSA does not require that an employer provide employees with leave, paid or otherwise. For example, the FLSA does not require leave to be provided to employees for bereavement or funerals, holidays (federal or otherwise), jury duty, personal or sick time, or vacation.

Federal Government Contracting Laws While the FLSA does not require employers to provide their employees with paid or unpaid leave, where the employee is working under a federal government contract or subcontract, employers may nevertheless be required to provide certain forms of paid leave to their employees. In this context, two federal laws may apply: (1) the McNamara O'Hara

Service Contract Act (“SCA”) or (2) the Davis-Bacon Act (“DBA”). The SCA applies to contractors and subcontractors providing services to the federal government on contracts in excess of $2,500. The DBA applies to contractors and subcontractors on federally funded or assisted contracts in excess of $2,000 for the construction, alteration, or repair (including painting and decorating) of public buildings or public works.

family leave programs, which would require eligible employees to receive paid time off for family-related reasons, including paternity and maternity leave. In the past few years, California, New Jersey, New York and Rhode Island have all implemented programs to provide paid family leave to eligible employees. In addition, Washington State and Washington D.C. have enacted similar laws that will go into effect in 2020.

In addition to requiring the payment of specified prevailing wages to employees working under federal contracts and subcontracts, the SCA requires that employers provide covered employees with paid federal holidays and paid vacation – typically 80 hours after one year of service on the contract, with employee entitlement increasing with additional years of service. Further, the DBA may require employers to provide covered employees with paid vacation and/or paid federal holidays, depending on the requirements of the applicable DBA Wage Determination.

Additionally, while paid employee sick leave is generally not required by federal employment laws, ten states have enacted laws that mandate eligible employees receive paid sick time: Arizona, California, Connecticut, Maryland, Massachusetts, New Jersey, Oregon, Vermont, and Washington.

Washington D.C. has also implemented a similar ordinance. Notably, the provision of paid sick leave to employees is a growing trend not only among states but also among municipalities. For example, Seattle, Los Angeles, San Diego, and San Francisco, among many other municipalities, have enacted paid sick leave ordinances granting (in many cases) very generous paid sick leave benefits to eligible employees.

Trends for 2019: States and Municipalities Continue to Fill the Paid Leave Gap As outlined above, federal leave laws provide relatively narrow coverage to employees and generally do not require that employees be paid during leave periods. In addition, these federal employee leave laws are not likely to be substantially expanded or added to in 2019 or the near future.

However, over the past few years and continuing into 2019, a growing number of states and municipalities have made efforts to step in and fill the employee “paid leave gap.”

While the FMLA requires leave to be provided to employees in certain cases, the required leave does not have to be paid (unless the employer allows the employee to substitute other paid leave during the FMLA leave period). On this front, a growing number of states have implemented paid

Beyond paid family and sick leave benefits, several states and municipalities have started to aggressively implement policies requiring paid employee leave for a host of various reasons. In looking ahead to 2019 and beyond, employers should definitely review the applicability of state and municipal paid leave laws in addition to federal laws, as the states and municipalities appear to be increasingly working to fill the paid employee leave “gap.”

James B. Taylor, Attorney Martenson Hasbrouck & Simon LLP jtaylor@martensonlaw.com www.martensonlaw.com

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19

The FCRA - Deceptively Dangerous

F

By ANN E. SARTWELL

air Credit Reporting Act (FCRA) claims present very real and potentially expensive sources of employer woe. By its terms, the FCRA applies to “consumers.” However, in the employment setting, the FCRA frequently comes into play in the course of third-party “background checks” conducted prior to employment and in connection with promotion or reassignments. Background checks that include personal interviews about a person’s character or reputation are considered “investigative consumer reports.” Accordingly, the FCRA applies not just to credit reports on individuals, but also to criminal background results and information obtained from individual interviews or other sources.

FCRA compliance intersects with other hiring and retention legal concerns. Some, like traditional state and federal antidiscrimination laws like Title VII of the Civil Rights Act of 1964 or the Tennessee Human Rights Act, are familiar. Others, such as state and local “fair chance” or “ban the box” legislation, are emerging. Whether due to its hyper-technicality or to the fact that most disputes about its application are not based on “juicy” facts, many professionals do not know much about the duties the FCRA imposes on employers. A brief (and very incomplete) review is in order.

When obtaining background information reported by a third party (a “consumer reporting agency”), employer duties include prior stand-alone disclosure of intent to obtain a report and the receipt of the individual’s signed authorization. If the employer might use the information it receives to take adverse action (e.g., not hiring someone or terminating existing employment), it must, prior to the action, provide the applicant both a copy of the report and a summary of their rights under the law. After a “reasonable time,” if the adverse action is then taken, the employer must provide the individual notice of the action and specific information about the agency that provided the report itself.

Employer obligations for workplace investigations (e.g., harassment or financial misconduct, to name a few) are different. Under the Fair and Accurate Credit Transactions Act (FACTA), which amends the FCRA, employers need not notify the employee of the investigation or obtain

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consent. If the third party provides information on which the employer actually takes adverse action, the employer must give the target a summary of the nature and substance of the report (not the sources or identities of individuals interviewed). In short, FCRA requirements are specific and technical whether they relate to routinely executed background checks or investigations of potential misconduct or compliance with laws and internal policies.

In that specificity and technicality lies the danger. By April Fool’s day of 2019, more than 640 cases were filed. All indications are that 2019 filings will top the more than 4,000 case filings in 2018. While the federal district courts with most FCRA actions were concentrated in large cities in Illinois, New York, California, Florida and Georgia, over 150 different federal district court divisional offices handled FCRA cases last year.

The stakes are real. Pet store retail giant Petco reached a $1.2 million class action settlement in November of 2018 over its failure to conform to the FCRA’s disclosure requirements and to provide prior adverse action notice. See Feist v. Petco Animal Supplies, Inc., 2018 U.S. Dist. LEXIS 197186 (S.D. Cal. Nov. 16, 2018). In January of 2019 Wal-Mart lost its argument in federal district court against standing and class certification in a case alleging faulty disclosure and notice violations for a class of approximately 5,000,000 individuals (no, that is not a “typo”- up to 5,000,000 individuals may be entitled to recovery). Not surprisingly, Wal-Mart has appealed. See Pitre v. Wal-Mart Stores, Inc., 2019 U.S. Dist.

LEXIS 11590 (C.D. Cal. Jan. 17, 2019).

Other cautionary examples abound. In late February of 2019, a settlement of $2.3 million between Delta Air Lines and lead plaintiff Joseph L. Schoefield (in a class of more than 44,000 members) received preliminary court approval. See Schoefield v. Delta Air Lines, Inc., N.D. Cal. Case No-3:18-cv-00382-EMC. One enterprising pro se plaintiff, Corey Groshek, garnered several hundred thousand dollars in “private enforcement” of FCRA disputes (i.e., demand letters and suits) over the course of eighteen months and in 2017 used some of the proceeds to self-fund the publication of his debut novel marketed to middle schoolers.

In addition to failing to provide prior adverse action notice, one significant source of exposure is failure to follow the FCRA’s “stand-alone” disclosure requirements. Section 1681(b)(2)(A)(i) of the Act states: “Except as provided in subparagraph (B), a person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless– (i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes. . .” The only exception to the stand-alone disclosure requirement is that the authorization signature line can be included with the disclosure. The Federal Trade Commission blogged advice in 2017 regarding obtaining lawful authorizations and providing adequate notice. https://www.ftc.gov/news-events/blogs/ business-blog/2017/04/background-checks-prospective-employees-keeprequired. To reduce risks of a faulty disclosure and authorization claim, the FTC advises, “keep it simple.” According to the FTC, keeping it simple includes:  Do not include a release from liability for conducting, obtaining or using the report;  Do not include a certification by the prospective employee that all information in his or her job application is accurate;  Delete any requirement that the prospective employee acknowledges that your hiring decisions are based on legitimate nondiscriminatory reasons; and  Scrub overly-broad authorizations that permit the release of information that the FCRA doesn’t allow to be included in a background screening report, like bankruptcies that are more than 10 years old.

Not every technical violation of the law is a claimant’s slam-dunk and employers have enjoyed some success at dispensing with claims based on “standing.” Article III of the U.S. Constitution grants federal courts the jurisdiction to hear “cases” and “controversies.” In order to come within that jurisdiction, plaintiffs need to demonstrate an injury traceable to the defendant that could likely be redressed by a favorable decision. Under a recent Supreme Court decision, Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), FCRA claimants must do more than allege a bare procedural violation, divorced from concrete harm, to satisfy the injury-in-fact requirement of Article III of the U.S. Constitution. In short, not every exclamation of, “A-ha! Your FCRA process is lacking!” results in a win for the disappointed applicant or employee.

The Spokeo Supreme Court decision did not bring an end to disputes about standing. On remand, the Ninth Circuit determined that an individual could meet the concreteness requirement where he alleged he was unemployed but actively seeking employment, could show that at least one third party had already requested a report on him, and that he suffered mental harm as a result of inaccurate, inflated reporting about his employment background, education and marital status (the Spokeo case did not involve a claim against Spokeo as an employer, but in its capacity as a “people search engine”). See Robins v. Spokeo, 867 F.3d 1108, 1117 (9th Cir. 2017).

Federal district courts outside of the Ninth Circuit, sometimes within the same circuit, have applied their own gloss to the Supreme Court’s “injury-in-fact” requirement in the employment context. Sometimes employers prevail on the standing issue on one part of a claim and lose

on another. For example, the U.S. Court of Appeals for the Seventh Circuit (covering Illinois, Indiana and Wisconsin) recently affirmed the dismissal of an applicant’s claim that her disclosure and authorization form contained extraneous information in violation of the FCRA, but at the same time held she could pursue claims that she was not given a copy of her consumer report before the employer took adverse action against her. See Robertson v. Allied Sols, LLC, 902 F.3d 690 (7th Cir. 2018).

The United States District of New Jersey recently rejected a claim similar to the one raised in the Pitre v. Wal-Mart, Inc., case above. See Baccay v. Heartland Payment Sys., LLC, 2019 WL 337585 (D. N.J. Jan. 28, 2019). Josephine Baccay worked for less than two months before “voluntarily resign[ing]” and bringing a putative class action suit against her former employer. She admitted she knew her employer would run a background check but nonetheless went forward with the online application. According to the Baccay court, the receipt of a disclosure notice with extraneous information did not meet the concrete injury requirement. In actuality, the disclosure form itself was “clean” but Baccay argued that because the authorization line was part of the application, the application form should be considered in conjunction with the disclosure form. Even taking that generous approach, the court had no difficulty dispensing with her claim. Baccay admitted that the supposedly faulty notice did not confuse her, distract her or deprive her of any of the information that she had a right to under the FCRA. Note that the court did not hold that all employers are automatically “off the hook” for getting their FCRA disclosure, authorization or notice obligations wrong, simply that this individual could not show the required injury.

One day after the Baccay decision, the full Ninth Circuit Court of Appeals refused to consider an entire “employment packet” in connection with a FCRA disclosure but ruled that any extraneous information in the FCRA disclosure form itself, even information related to state-mandated expansions of consumer rights, is unlawful. See Gilberg v. Check Cashing Stores, LLC, 913 F.3d 1169 (9th Cir. 2019). Desiree Gilberg worked for five months before voluntarily resigning and filing her class action lawsuit. The disclosure form she filled out included FCRA information, California “mini-FCRA” information, and similar state law disclosures for several other different jurisdictions. The Ninth Circuit agreed with the employer’s contention that its notice was “conspicuous” but concluded it was anything but “clear.”

Ignorance is not bliss given the technical complexity of the FCRA, the growth in state law consumer protections and the potential risk of individual or class action lawsuits. Consider a comprehensive, privileged audit by legal counsel of existing background check policies and procedures to maximize the benefits of the information consumer reports provide about potential and existing employees while minimizing the risks of time consuming and potentially expensive litigation. At a minimum, review any in-house forms and those utilized by any third-party vendor your organization uses. A final practical reminder: make sure to use the updated Consumer Summary of Rights form. Effective September 21, 2018, the new form incorporates changes required by recent legislation that amended the FCRA to require notice of the availability of “national security freezes” to those protected by the law.

Ann E. Sartwell Senior Associate Wimberly Lawson Wright Daves & Jones, PLLC Knoxville, Tennessee office asartwell@wimberlylawson.com www.HRProfessionalsMagazine.com

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The Technology Side of Background Screening HR Must Know

By TAMMY HENRY

By the very definition of the title Human Resources professional, the focus is primarily on, well, humans. HR is responsible for employee interactions, policies and procedures, choosing the best new hires, and many other responsibilities involving people.

Efficiency is a driving force in investing in automation. Even if you don’t realize it, it’s working behind the scenes during your background checks.

In certain cases, automated process can deliver cleaner data, faster than if it were pulled by humans.

While HR pros typically use technology in their daily jobs, they rarely take a deep dive into the inner workings of their technology providers.

Knowing what’s “behind the curtain” is valuable and needs to be explored.

Address this by: Talk to your background screening provider and ask them what percentage of their revenue they are spending on automation upgrades.

Technology has permeated the workplace and its influence resides across all job titles. HR especially needs to understand the way technology plays a part in choosing and managing the company’s human capital.

Today we are talking about technology and how it pertains to an organization’s success with their background screening process. Here are 5 facts HR Pros must know about the technology side of background screening.

Fact #4: Data Security Should Be A Top Priority

Fact #1: Your Company Deserves Frequently Updated Software HR needs to ask their background screening provider how often they update their software. HINT: A blank look is not an acceptable answer.

Being forced to wait for critical software updates can hinder your ability to receive the information you need to make nimble hiring decisions, and your awesome candidate could end up working for your competitor.

Plus, the more lax the company is in performing updates, the less secure your entire system becomes.

Address this by: Open a discussion with your provider about the frequency of platform updates and the type of upgrades they entail. Find out how often they update their databases. Ask them to explain what the next few updates involve. Don’t be put off if your account executive doesn’t know the answers. Ask that they involve IT in the conversation.

This isn’t a secret to anyone because we’ve all seen the problems that arise with data that’s not as secure as it should be. Due to the personal nature of the information used, your background screener needs stringent stop-gaps in place to protect your job applicants’ data. Failing to do your due diligence on this can set your organization up for a disastrous breach that can have long-term effects on the company’s reputation, sales, and recruiting.

Address this by: When speaking to your potential or current vendor, make certain the conversation includes a deep dive into their security standards.

Know exactly who has access to your data and confirm the provider undergoes consistent and thorough security audits. Ask them where they store the data (confirm if it’s in the U.S. or stored overseas). Request a copy of their privacy policy. Finally, ask questions about their plan, timeframe, and cost of recovering your data in the case of a disaster.

Fact #5: Technology +Human Interaction =Success

Fact #2: Expect Platforms to Be Cloud-Based

Yes, HR professionals need to embrace and educate themselves on the latest advancements in technology and automation. It’s vital to step out of their comfort zones and learn about new ways of receiving needed information.

That doesn’t mean forgoing a commitment to human involvement. The best, most effective processes are still the ones that marry both into a single unit of performance.

Achieving a high-functioning, fully scalable, automation-friendly platform hinges on a platform being cloud-based. Private or data centerhosted services can no longer compete in terms of flexibility, cost-effectiveness, and overall functionality. Gaining access to the most progressive server technology means embracing the cloud.

Address this by: Become a liaison between your background screening provider and your organization. When you engage in conversations about technology, share what you learn with your team, and the C-Suite. Use your knowledge to help your team become comfortable working with automation and technology, instead of being intimidated by it.

Address this by: Make sure your background screening provider is cloud-based by asking about their server functions and the scalability of their infrastructure.

In conclusion, HR pros must branch out from their focus on humans and spend some time familiarizing themselves with the technology surrounding how they get their jobs done. A simple way to accomplish this is by talking with your background screening provider and asking for explanations on the technology side of the operations. This will give you a more in-depth understanding of the process and prepare you for the upcoming plans that will positively affect they way you perform.

Fact #3: An Investment in Automation Is A GOOD Thing Even though we may never see it directly, automated technology drives many of the processes that are critical to ordering and receiving background check information. If your provider doesn't understand the importance of automation, then you will eventually fall behind. Today’s technology providers must embrace some form of automation to be able to build better, more enriched, higher-functioning experiences for their clients and the end users.

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Tammy Henry Vice President of Client Success thenry@datafacts.com www.datafacts.com

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Rise Above – Trends Employers Utilize to Become A “

By AUSTIN BAKER

With national unemployment at a 17-year low, businesses are working overtime to recruit, engage, and retain talent. We have all seen articles that provide tips, tricks, or “hacks,” that could make your workplace a “Best Place to Work,” but what really makes a company deserve these honors?

Think for a moment about what would make you feel most excited to get to work in the morning. We recently had the opportunity to sponsor the annual Memphis Business Journal’s “Best Places to Work” event and found that past nominees and winners all have three common focuses that make their companies truly “Best Places to Work.” The intense focus on and intentional development of their culture, personalized employee recognition, and quality of the physical workspace create the pillars of attracting talent, engaging employees, and maximizing workplace efficiency.

Dynamic Company Culture To build a dynamic company culture, employers must first understand what their culture is by answering the following questions: • Why does our company do what it does (i.e. Mission Statement, History)?

• What do we believe (i.e. Values)?

• Where do we want to go with the company (i.e. Vision)?

These three questions are what will mold your company’s culture moving forward. Aside from the numerous benefits options and perks you can implement for employees and prospects to be attracted to your organization, our research on the “Best Places to Work” recipients saw these trends in their culture alignment: Enhanced Employee Training Competitive companies use training for both succession planning and employee retention.

Almost 90 percent of Millennials say professional development and career growth is important to them.

If an employee sees that their company is not investing in them through training and education, then they’re going to leave for a company that will. Training proves to employees that they are valued and shows them that management supports their future advancement. In addition, if you don’t invest in employee training, any internal promotions to management will be grossly unprepared.

Additionally, employers noted the desire for cross-training opportunities and the option to develop into roles that are not necessary currently in existence. By customizing training that enhances the unique skill sets of individual employees, employers have been able to improve retention rates and spend less on hiring over time.

90 percent

Almost of Millennials say professional development and career growth is important to them.

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Best Place to Work” Focus on the Employee Experience More companies than ever are taking an “Employee First,” approach and shifting from the “Customer First,” mentality of yore. If employees are unhappy or under stimulated, then they are going to do the bare minimum in their jobs. However, when employees feel respected and cared for in a healthy work environment, they want to go above and beyond to create a positive customer experience.

Focusing on the employee experience will also help with retention, leadership training, and recruitment. If your employees aren’t appreciated or treated well, they won’t hesitate to walk out the door — and tell all of their friends that your company should be avoided.

Valuing Employees At times, you may feel the need to shower your rock star team with unique staff appreciation perks — free food, beautiful office space, company trips, gym memberships, competitive bonus plans, and more.

But the evidence shows that effective team communication – not pricey perks – is the best way to keep your top employees engaged. Keeping employees looped into both long-term “bigger picture,” goals of the company, as well as short-term plans and goals are easy way to keep everyone on the same page.

Collecting regular employee feedback goes a long way towards strengthening your company culture.

And conducting surveys regularly is win-win: you’re both empowering employees to make their voices heard and informing your plan of action for aligning your culture with your business goals.

Pulse surveys allow employers to uncover trends in employee morale, get feedback on a new initiative, follow up on a survey with action delivered variables, check in on the progress of company-wide initiatives, and ask targeted questions. That being said, once you’ve asked, you must also close the feedback loop by letting employees know what the results of the survey were. If employees are constantly being asked for input, but then never informed on what their opinion helped to influence or change, it can actually be counter-productive and even damaging to culture and morale.

Physical Workspace Design Employees who enjoy and like the environments they are a part of will be more engaged, productive, happy, and healthy. There are numerous reports and studies such as Gensler's Workplace Index, The Leesman Index, Steelcase, and others that explore the relationship between the physical space and business performance metrics, productivity, and what employees’ value. So, what should organizations be doing and thinking about?

Conversation Leads to Collaboration Leads to Innovation One of the most effective ways to get people talking and, eventually, innovating, is to remove the physical barriers that keep them separated. It seems silly to think that members of different departments won’t talk to each just because they can’t see each other, but this is what happens in most traditional workplaces. It leads to “information silos” where, for example, sales and marketing may actually be working close to each other but have no idea what the other is doing.

Once you facilitate communication by updating the work environment, you’ll start to see those teams talking, sharing ideas, and coming up with new, better, more innovative solutions to problems.

Keep Underlying Goals in Mind If you’re nervous about changing your work environment and culture so radically, talk to each department and find out what their biggest goals and challenges are. Marketing may want to start making better videos for social media campaigns. IT might be tired of keeping track of dozens of different models of computers, laptops and phones because each department uses something different.

What if Marketing had a designated space for recording video—soundproofed, well-lit, with storage for any props or equipment they may use? What if, because everyone had shared workstations instead of assigned offices and cubicles, IT was able to streamline and standardize the equipment issued?

As you make the changes to your work environment, keep these goals in mind and do what’s needed to support each department. This also shows your commitment to supporting your employees and improving their everyday experience at work.

Austin Baker, President HRO-Partners

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

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

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

hropartners @hropartners

www.HRProfessionalsMagazine.com

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2019

SHRM EMPLOYMENT LAW & LEGISLATIVE CONFERENCE MARCH 18-20, 2019 WASHINGTON, D.C.

HIGHLIGHTS Let SHRM be your guide to understanding the complex legal landscape that affects your organization. You’ll gain an insider’s look at the current agendas of the presidential administration and Congress, as well as public policy issues that impact the workplace. When you ensure that you are operating in compliance with legislative regulations, you’re creating a better workplace by protecting not only your employer, but also your entire staff.

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WHO SHOULD ATTEND

1 Emily M. Dickens, J.D., SHRM Corporate Secretary and Chief of Staff, welcomed attendees to the conference. 2 Johnny C. Taylor, Jr., SHRM President and CEO, SHRM-SCP, hosted an interview spotlighting the Trump administration’s Pledge to America’s Workers and its goal to partner with the country’s largest employers to train and reskill American ■workers of all ages. 3 The conference kicked off with a Fireside Chat Reception at The Hamilton Live in Washington.

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Senior HR professionals who need to know what’s next in workplace law & legislation HR managers seeking to build compliant organizations and manage risk Business, policy, and legal professionals interested in how workplace law impacts them

4 Learn more and REGISTER NOW at

5 6 conferences.shrm.org/law

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4 Bob Carragher, SHRM Director, State Strategy & Engagement, was moderator of the fireside chat that was a deep dive into the issues impacting work, the worker and the workplace at the state level. 5 Representative Ruth Briggs Kind, Delaware House of Delegates, participated in the fireside chat.

6 Delegate Mark Levine, Virginia House of Delegates, also participated in the fireside chat. 7 Lisa Horn, SHRM VP Policy Engagement, presented “25-Plus Years After Enactment of the FMLA, Will Paid Family Leave Become a Reality?” Adrienne Schweer, Bipartisan Policy Center, was also a presenter.

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8 Caught a photo op with Jonathan Segal, partner, Duane Morris LLP, following his presentation, “All Politics is Local – Unless Your Employer is Not.” 9 Joseph Beachboard, shareholder, Ogletree Deakins, discussed “The Supreme Court Speaks…Are You Listening?” 10 “Overtime Redux: Here We Go Again!” was Tammy McCutchen’s topic. She is a principal in Littler Mendelson’s Washington D.C. office. 11 Amy Showalter presented “Overcoming Advocacy Challenges” at the SHRM Advocacy Team breakfast for SHRM members visiting Capitol Hill. The breakfast was held at the historic Union Station.

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12 Greg Hare, managing shareholder for Ogletree Deakins Atlanta office, spoke on “What’s Today’s Excuse? Enforcing Attendance Rules, But Offering Reasonable Accommodation.” 13 The Arkansas SHRM Advocacy Team at the SHRM Advocacy Team breakfast at Union Station. 14 The Florida SHRM Advocacy Team at the SHRM Advocacy Team breakfast at Union Station. 15 Ben Baker with the Mississippi SHRM Advocacy Team and a staffer at the office of Senator Cindy Hyde-Smith (R-MS) on Capitol Hill. 16 A member of the Tennessee SHRM Advocacy Team at the office of Senator Marsha Blackburn (R-TN) on Capitol Hill. 17 Susan Seip of Louisiana SHRM Advocacy with a staffer at the office of Senator John Kennedy (R-LA) on Capitol Hill.

www.HRProfessionalsMagazine.com

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Payroll Connectivity and HR Bandwidth Considerations Prior to Initiating a Ben Admin Vendor Search

By KISHA MOLIERE

With over 300 technology providers in the market place, the search for a benefits administration (“ben admin”) solution can be quite a daunting task. One often neglected step in making this process more palatable is first assessing your organization’s current payroll platform connectivity capabilities and HR bandwidth. Committing to this initial appraisal will help make the search more streamlined and assist your benefits consultant in directing you to the most appropriate solutions.

Payroll/HRIS Platform Connectivity Outside of eliminating manual processes of reporting benefits eligibility to your carriers, two of the most essential features of a good ben admin solution are benefits data accuracy and efficiency. Ideally, employee demographic and benefit election information should have one point of manual entry, resulting in data being synchronized across your payroll, ben admin and carrier systems. This is important in order to ensure that carrier eligibility is accurate, thereby eliminating access to care issues. It also reduces the thousands of dollars per year employers spend erroneously on benefits errors when, for example, an employee has been terminated in payroll, but due to discrepancies caused by inefficiencies in the data processing flow, the carrier is not notified and continues billing.

An employer can address these concerns by asking itself the below critical questions: Do we want a ben admin solution encompassed within one product that includes applicant tracking, onboarding, time keeping and payroll? Or, do we want “best in class” platforms in each of those areas that can communicate with one another? Theoretically, it would be great to have all of these functions in one platform - and there are indeed companies that offer them. However, in practice it is rare to see these all-inclusive products perform each of the functions well. For example, many companies with proven track records in payroll have struggled to develop benefit admin modules that rise to the same level as their core product. As a result, the current market trend is that many top tier payroll vendors are developing API (Application Programming Interface) connectivity with leading ben admin vendors, resulting in clients having access to excellent solutions from different vendors that have near real time connectivity with one another.

Can our current payroll/HRIS system communicate with a separate ben admin system? If your current system accepts deduction imports from a ben admin vendor (via import files, EDI file feeds, etc) there will be a significant savings in time for your payroll processing, as well as a reduction in data entry errors. Likewise, if your current payroll system can generate an export file of new hires, status changes and demographic changes in a ben admin vendor’s format, most ben admin platforms can accept that information and eliminate manual entry of these type transactions in their system. And as mentioned above, some 28

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payroll and ben admin companies have developed near real-time API connections, which eliminate duplicate data entry, imports or EDI files all together. If your current system doesn’t have these features, it may be time to consider a change, or at least have the understanding that this will leave in place the potential for costly discrepancies between your payroll, ben admin and carriers systems.

HR Capabilities and Bandwidth Does our staff possess the skill to produce the typical data requirements to implement a new ben admin platform? You should honestly assess whether (1) your employees can efficiently and accurately compile the demographic and current election data - in the vendor’s specified format - that will be required to populate the ben admin system, and (2) whether they can conduct an audit of the current benefit payroll deductions versus the eligibility data of each of your carrier partners to insure that your eligibility and billing are accurate prior to populating a new system. These are essential steps for smooth implementation of a new ben admin platform. The last thing you want to experience is the result of loading a new system with errant data that can then corrupt the information in your carrier system once EDI files begin. Fixing this type of faux pas is truly a monstrous task that can go on for months.

If your staff is not capable, due to skillset or bandwidth, of performing the above, be sure to ask prospective partners if they can perform these tasks on your company’s behalf, and if they charge additional fees to do so.

Does our HR staff have the bandwidth to effectively administer the daily tasks of ongoing benefits administration? Genuinely assess whether your employees have the ability and/or capacity to audit payroll vs carrier bills on a monthly basis - as well as process new hire enrollments and benefit changes due to changes in employment status and/or Qualifying Life events. If the answer is no, consider partners that provide ben admin technology and outsourcing of these tasks in their service model. Although there will be costs involved, it is often offset by the savings of no longer over paying on premiums.

While there are a myriad of other considerations when evaluating which vendor to eventually select (cost, security, configuration flexibility, platform accessibility via mobile devices and apps, decision support tools, communication modules, etc.) this critical self-evaluation will help you establish realistic goals so that your consultant can direct you to partners that will make implementation and ongoing benefit administration pain free for your HR staff and employees.

Kisha Moliere Benefits Administration & Technology Services McGriff Insurance Services

Strong Carrier Partnerships Innovative Solutions Financial Analytics and Underwriting Valuation Services

Compliance Retirement Plan Consulting Benefits Administration Technology Insurance Placement Strategic Advice Human Resources Advisory Flex and COBRA Plan Administration Communications Compliance and Regulatory Expertise Local Support Actuarial Valuations and Analysis Employee Engagement Clinical Wellness Benefit Plan Design Strategy

Comprehensive employee benefit solutions.

You have our word on it.

McGriff Insurance Services specializes in delivering innovative employee benefits that help manage costs, increase employee engagement and allow HR more time for strategic initiatives. Let us design a benefits program for your organization. To learn more, visit McGriffInsurance.com and select Employee Benefits, or call 1-877-682-8510.

Š2019, McGriff Insurance Services, Inc. All rights reserved.

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The Crushing Burden of Debt…

And How You Can Help

By JEANNE J. FISHER

“I’m tired, sore and tense.”

“My job overwhelms me.”

“I’m snapping at my family.”

“I’m burnt out.”

These common complaints have become the butt of many memes shared around social media, with several people chiming in “this is sooooo me!”

Chronic stress is the result of suffering from emotional pressure for prolonged periods of time, and our bodies have a very real biological response to it. When we feel threatened, our nervous system releases a flood of hormones, our blood pressure rises, and our muscles tighten. All of this is to prepare us for emergency action, often referred to as fight or flight.

Unfortunately, chronic stress is prolonged. Unlike an acute stress event – a near car accident – events that provoke chronic stress don’t exactly have an end or a resolution. Our bodies never get the opportunity to expend the extra energy, causing a constant state of cyclical adrenalin rush. Hence the reason individuals dealing with chronic stress often feel ‘burnt out.’

A recent study from Varo Money found that 30% of Americans are “constantly’” stressed about money. This is no surprise as three out of four Americans live paycheck-to-paycheck, and nearly 60% of Americans couldn’t cover a $500 expense.

A recent study from Varo Money found that 30% of Americans are “constantly” stressed about money.

The increasing debt load we carry (credit card, automobile and student loan debt being the most notorious culprits) is certainly a catalyst for our money concerns and inability to manage short-term expenses. Personal debt may not seem like a business related issue, but many employers, and more specifically human resource departments, are leading the charge of financial wellness through initiatives and resources for employees struggling with debt.

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Student Loan Repayment Programs – According to the website Student Loan Hero, 44 million borrowers owe a collective $1.5 trillion in student debt. This averages out to nearly $50,000 per individual!

Employers recognize that younger generations care far more about their immediate burden of student debt rather than long-term benefits. As such, Student Loan Repayment Programs (SLRPs) are becoming an attractive and impactful benefit for a younger workforce.

The beauty of this benefit is its flexibility. SLRPs are not subject to stringent ERISA requirements, and you can customize the program to meet your company’s needs. You can determine who is eligible, how much the benefit is, and even tie performance goals to the benefit.

Most SLRP programs today are paid after-tax, meaning that any benefit paid is taxable to the employee. However, a private letter ruling (PLR) issued by the IRS last year allowed a company to make a match into the company’s retirement plan if the employee showed proof of monthly student loan payments. While PLRs are specific to a company, and should never be taken generally, this is a clear step the IRS is open to linking SLRPs into existing tax-advantaged benefits.

Health Savings Account Education – According to a CNBC report, the number one cause of bankruptcy and hardship withdrawals from 401(k)s is medical debt. High-deductible health plans are on the rise and many Americans are adopting them for the lower monthly premiums.

Unfortunately, health care in the U.S. is also expensive and people are underestimating the high deductible.

The HSA is specifically designed for individuals to save for medical emergencies in a tax-efficient way, and to accommodate the higherdeductible. While HSA usage is on the rise, most American’s still can’t correctly explain how the benefit works. Merrill Lynch’s Annual Workplace Benefits Report found that 76% of employees say they understand how an HSA works, but only 12% could accurately describe them.

Benefits departments should take time to educate employees on the HSA and strongly encourage participation. Employees should save enough in their account to cover their annual deductible, and once the cash minimum is met, account holders may be able to invest the funds for tax-deferred long-term growth.

Retirement Plan Loans – In many ways, the ability to take a loan from your 401(k) can be a good thing. But more often than not, loans are abused and misunderstood. Yes, it is a positive that you are borrowing from yourself and paying back interest. Unfortunately, taking a loan from your 401(k) leads to future bad habits. Once you take a 401(k) loan, you now have another debt payment automatically being taken from your paycheck. Because of this, Fidelity estimates 15% of borrowers stop making additional contributions immediately and 20% decrease their contribution in the first year. In our experience, borrowers tend to be repeat offenders, continuing a cycle of poor money management and “robbing Peter to pay Paul.”

Every 401k plan is required to allow for hardship distributions. Hardships allow a participant to make a distribution from their account, while employed, for things like a medical emergency, eviction or foreclosure on your home, funeral expenses, etc. For the most part, anyone suffering a real financial hardship will have access to their 401k. Given this, we recommend benefits departments help their participants make better financial decisions by not allowing 401k loans in the plan. At the very least, educating their employees regarding the pros and cons of borrowing from their retirement.

Independent companies and 401(k) advisors partner with businesses to provide targeted educational workshops. These informative presentations should be based on specific topics to fit their employees’ wants and needs.

Whether its basic financial education or retirement planning, focused presentations are a great way to engage employees and ensure they can receive the crucial financial advice to help them meet their goals.

Unfortunately, many employees don’t have access to meet individually with financial advisors. In our experience, employers who provide this essential benefit see employees move out of financial struggle and into financial success. Individuals who are “financially fit” are not weighed down by the stress of their debt, and instead can focus on their long-term financial objectives.

No, we don’t expect employers to solve the debt crisis we face. But providing some key benefits to employees can relieve financial stress and make all the difference in a person’s life.

Jeanne J. Fisher, CFP®, CPFA Financial Wellness Programs – Unfortunately, many employees in today’s workforce are increasingly concerned about short-term financial issues like budgeting and paying down debt. In addition, we see that more and more Americans’ wealth is tied up in their workplace plans.

Thus, employers are best positioned to provide the type of financial education employees desperately need.

ARGI Financial Group JeanneFisher@argi.net www.argi.net

Respective services provided by ARGI Investment Services, LLC, a Registered Investment Advisor, ARGI CPAs & Advisors, PLLC, ARGI Business Services, LLC, and Advisor Insurance Solutions. All are affiliates of ARGI Financial Group.

We’re not salespeople.

We’re educators.

Are you confident your company’s 401(k) plan has the following?

Compliant Plan Design & Operation Efficient Investment Options Competitive Fees for Service Access to Financial Education Prudent Decision-Making Process

We want to help you check every box.

Schedule a plan review by contacting Respective services provided by ARGI Investment Services, LLC, a Registered Investment Adviser, ARGI CPAs & Advisors, PLLC, ARGI Business Services, LLC, and Advisor Insurance Solutions. All are affiliates of ARGI Financial www.HRProfessionalsMagazine.com

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IN PARTNERSHIP WITH

3rd Annual

SUPERVISOR AND MANAGER TRAINING

at

The Crescent Club Memphis

June 21, 2019 7:30 AM to 5:00 PM

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

KIM HODGES Managing Shareholder Ogletree Deakins Memphis

TAMMY HENRY VP of Client Success Data Facts

TRACY WEBSTER

Learn what you need to know to protect your organization against legal action and limit compliance issues in your workplace.

You will also learn what to do in the event of an active shooter.

CEO HealthMed, Inc.

JEFF WEINTRAUB Partner, Fisher Phillips

LEEANN BAILES FOSTER •A CTIVE SHOOTER TRAINING BY TERRY DONALD WITH THE SHELBY COUNTY OFFICE OF PREPAREDNESS

CEO of Team Foster HR Strategy

JUDY BELL, • WAGE AND HOUR UPDATE AND THE NEW OVERTIME PROPOSAL

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

• SURVIVING ALPHA PEOPLE • HOW TO AVOID PERSONAL LIABILITY AS A MANAGER • BACKGROUND SCREENING IN THE ERA OF MEDICAL MARIJUANA

DAN NORWOOD Norwood & Atchley Law Firm

• GETTING TALENT BACK TO WORK • SUCCESSION PLANNING

CYNTHIA Y. THOMPSON,

• AGE DISCRIMINATION IN THE WORKPLACE

MBA, SHRM-SCP, SPHR Editor | Publisher HR Professionals Magazine

• METABOLIC SYNDROME AND STRESS

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

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TO REGISTER, GO TO WWW.HRPROFESSIONALSMAGAZINE.COM COST: $129. PRE-REGISTRATION IS REQUIRED LIMITED SEATING AVAILABLE 8.00 SHRM and HRCI recertification credits pending

Greater Memphis Employee Benefits Council Meeting Thursday, March 7, 2019

(L-R) Linda Tripp, Antoinette Wiseman; Jim Horrell, Principal with Mercer Health & Benefits LLC; Linda Yoakum, Esha Rock, and Preston Cox. The topic was “Mercer’s National Survey of Employer-Sponsored Health Plans.”

@WLJEmployment

We know our way around a courtroom.

We also know you’d rather not be there in the first place.

From sexual harassment to employee leave to social media, our labor and employment team offers training on a wide variety of issues to help HR departments achieve best practices in the workplace. Our goal is to help you prevent employee claims that could lead to agency investigation or even litigation.

Let us put our experience to work for you.

www.HRProfessionalsMagazine.com

33

2018 EEOC Statistics Illustrate the Agency’s Continued Emphasis on Enforcement

By FRANK L. DAY

W

hen President Trump took office promising to cut regulations and create an environment that was more favorable for business, many political and legal commentators speculated that his pro-business agenda would force the Equal Employment Opportunity Commission (EEOC) to devote less time and resources to enforcement actions. Multiple publications released by the EEOC summarizing the agency’s activity during 2018 show that these predictions missed the mark.

The EEOC’s emphasis on enforcement through litigation continued in 2018. In fact, the EEOC actually filed more lawsuits in 2018 than it had in 2017, which was a banner year for the agency. During 2017, the EEOC filed 184 merits lawsuits, which are those alleging a substantive claim of unlawful discrimination. This past year the EEOC filed 200.

This data confirms that the EEOC remains focused on increasing its impact through litigation.

In addition to the lawsuits the EEOC filed during 2018, the agency also filed 29 amicus curiae briefs in appellate cases to which it was not a party. The EEOC is not capable of monitoring all cases appealed, so it has a program by which attorneys representing employees can request that the EEOC submit a “friend of the court” brief in support of their position. Thus, employers should note that the EEOC’s efforts to influence the development of employment discrimination law through litigation also occurs in the appellate context in lawsuits that the agency did not file. In short, the trend of the EEOC filing more lawsuits and continuing to aggressively pursue its mandate through litigation has actually picked up momentum.

Not surprisingly, the #MeToo movement led to an increase in the number of charges alleging sexual harassment filed with the EEOC in 2018. The number of sexual harassment charges filed in 2018 increased by 13.6 percent over the prior year.

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One of the biggest stories of the year was the “Me Too” movement, and the EEOC was quick to embrace the cause. In June 2018, the agency circulated a press release to state, “EEOC Files Seven Suits Against Harassment.” A short time thereafter it announced, “EEOC Files Seven More Suits Against Harassment.” These announcements were an early indicator of the agency’s increased focus on claims alleging sexual harassment. The agency later admitted that it had timed the filing of these lawsuits for publicity to emphasize the unlawfulness of sexual harassment.

The data released by the EEOC confirms that in 2018 the agency devoted significantly more resources to combating sexual harassment than it had in prior years. In a rare move, the EEOC even published specific statistics relating to its sexual harassment enforcement efforts.

This publication noted, “[t]he EEOC filed 66 lawsuits challenging workplace harassment [during 2018], 41 of which alleged sexual harassment. This [action represented a] more than 50 percent increase in suits challenging sexual harassment over FY 2017.” The EEOC filed these lawsuits on a nationwide basis on behalf of employees who work in many different industries.

Not surprisingly, the #MeToo movement led to an increase in the number of charges alleging sexual harassment filed with the EEOC in 2018. The number of sexual harassment charges filed in 2018 increased by 13.6 percent over the prior year. Data released by the EEOC also confirms that the agency took a more aggressive approach to its investigation of sexual harassment charges. According to an EEOC publication, “[f ]or charges alleging harassment, reasonable cause findings increased by 23.6 percent to nearly 1,200 in FY 2018.” Furthermore, the EEOC successfully conciliated 498 charges alleging harassment, a 43 percent increase from the prior year. It was also noteworthy that through administrative enforcement and litigation, the agency recovered nearly $70 million for employees alleging that they were victims of sexual harassment. This recovery represents a significant increase over the $47.5 million EEOC recovered in 2017.

The EEOC also embraced the #MeToo movement by offering new resources on its webpage, which experienced increased traffic. In fact, the number of hits on the agency’s sexual harassment website more than doubled during the past year. To provide additional information about sexual harassment, the EEOC developed two new publications.

The first is for employees, and it is titled, “What to do if you believe you have been harassed at work.” The second was issued to assist employers with compliance, “Promising Practices for Preventing Harassment.”

In addition to the internet resources it offered on the subject, EEOC staff conducted over 1,000 outreach events on harassment for more than 115,000 individuals and employers. Furthermore, the agency “reconvened the Select Task Force on the Study of Harassment in the Workplace for a public meeting, ‘Transforming #MeToo into Harassment-Free Workplaces,’ to examine difficult legal issues and to share…strategies to prevent harassment, including app-based reporting, simple color-coded reporting, and panic buttons for hotel workers.”

The most significant points an employer can glean from the EEOC’s 2018 data is that popular sentiment can influence the agency’s enforcement priorities, but its commitment to aggressive enforcement remains unchanged. In fact, one could argue that the data shows that the agency is continuing to ramp up its enforcement efforts while also devoting more time and resources to outreach and education, which is at least in part intended to ensure that individuals who are possibly the victims of unlawful discrimination file charges.

During 2018, the EEOC received 554,000 calls and e-mails and handled over 200,000 inquiries concerning potential discrimination claims. This traffic was driven in part by the agency’s launch of a nationwide online inquiry system and appointment systems, which are now part of the EEOC’s Public Portal. This new resource resulted in a 30 percent increase in inquiries and over 40,000 intake interviews. From these figures, one can conclude that by making it easier for employees to seek assistance and to file charges, the number of inquiries will continue to increase. It is important for employers to note that while the EEOC is devoting significant resources to enforcement, it is also working to eliminate any barriers that may prevent employees from seeking its assistance, which may contribute to an increase in charges.

During 2018, the EEOC received 554,000 calls and e-mails and handled over 200,000 inquiries concerning potential discrimination claims.

The significant increase in lawsuits filed by EEOC and the increasing number of charges filed by individual employees are trends that employers should not ignore. The Trump administration has not slowed the EEOC’s enforcement or outreach efforts as some expected; in fact, the data suggests that the odds of facing an EEOC charge or other action are continuing to increase for all companies. In this climate, prudent employers will update their employee handbooks and other policies while also offering appropriate training to managers and/or other employees about harassment and discrimination. Although these proactive steps cannot prevent all claims, they could make a favorable outcome more likely. Indeed, companies that devote real effort to preventing discrimination can always emphasize these good faith efforts in response to any EEOC charge, which is a helpful first step in avoiding a finding of reasonable cause.

Frank L. Day, Partner FordHarrison fday@fordharrison.com www.fordharrison.com

www.HRProfessionalsMagazine.com

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HIGHLIGHTS FROM THE ARSHRM 2019 HR CONFERENCE AND EXPO • APRIL 3-5 • HOT SPRINGS, ARKANSAS Please view our Facebook Live videos from the conference at www.Facebook/hrprofessionalsmagazine.com

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1 Caught up with some of the 2019 ARSHRM State Council members attending the conference. (L-R) Sara Staley, Kinyata Gray,Teri Roper, Holley Little, Michael Smith, Cathleen Hoffman, Broderick Daniels, Jill Hilton, Donna Carter, Dale Clinton, Patti Airoldi ,Tracy Stell, and Beth Elder. 2 The 2019 ARSHRM Conference Committee members were Michael Smith, Tara Mauk Arthur, Beth Elder, Allison Ramsey, Anna Hicks, Nikki Skinner, Holley Little, Teri Roper, Cathleen Hoffman, Jill Hilton, Broderick Daniels, Dale Clinton, Donna Carter, Kim Finne, Heather Smith. Not pictured: Sheila Moss.

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3 Cathleen Hoffman, MBA, SHRM-SCP, SPHR is the 2018-2019 Director of the ARSHRM State Council. Cathleen also served as the Vendor Relations Chair for the conference. 4 Teri Roper, SHRM-CP, PHR, is the Chair of the 2019 ARSHRM Conference & Expo. 5 Dale Clinton, PHR, was the Exhibitors Chair.

6 Jeb Steen, Senior Account Executive with Delta Dental, discussed the new benefits they are now offering in Arkansas. Delta Dental was the presenting sponsor. 7 Bruce Cross is a director in the firm of Cross, Gunter, Witherspoon & Galchus, P. C., in Little Rock. He presented “Federal Legal Update.”

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8 Blue Cross Blue Shield of Arkansas sponsored “The Fearless Food Fight” to feed 30,000 people in Arkansas. (See www.thepackshack.org) for details.

9 SHRM Student Chapter Volunteers from the University of Arkansas Little Rock and the University of Central Arkansas.

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10 (L-R) Kim Hodges, Managing Shareholder of Ogletree Deakins Memphis office; and Dee Ann Hays, Shareholder at Ogletree Deakins Tampa office, presented “Winning Strategies for Employee Handbook & Policy Updates.” 11 (L-R) Attorneys Lee Muldrow, Stuart Jackson, and Erika Gee with Wright Lindsey & Jennings presented “Medical Marijuana In the Arkansas Workplace.” 12 Minnie Lenox, Director of Human Resources for the City of Hot Springs, presented “HR: Becoming a Strategic HR Partner.”

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13 Donna Merriweather, SHRM-SCP, SPHR, State-Director Elect for ARSHRM, spoke on “Leading Thru Difficult Change.” 14 Michelle Kaemmerling, attorney with Wright Lindsey & Jennings, discussed “From Planning to Practice: LGBTQ Inclusion in the Workplace.” 15 Tim Orellano, PHR, President of The Human Resources Team in Little Rock, presented “Walking the Compensation Tight Rope.” 16 Sheila Moss, SHRM-SCP, SPHR, owner of Information Solutions Team. is known as “The I-9 Lady” in the Arkansas HR community. Her topic was “This is Your Circus, and Those Form I-9s are Your Monkeys.”

17 Judith Tavano, SHRM-SCP, SPHR, presented “Assisting Separating & Retiring Military Officers for Careers in Civilian Workplace.”

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18 Kelli Burris (L) and Beth Elder, SHRM-CP, PHR (R) presented the 2019 ARSHRM Professional of the Year Award to Patti Airoldi.

(Center) 19 Sherry Johnson, SHRM-SCP, CAE, is the SHRM Field Services Director for Alabama, Arkansas, Louisiana, Mississippi and Texas. Sherry was also a speaker and presented SHRM’s new initiatives to “Get Talent Back to Work.” 20 Ken Caulkins and Reed Quillen with ADP 21 Tyler Rogers with McGriff Insurance 22 Greg Dickey and Nancy-Margaret Wehby with Ogletree Deakins 23 Cammie Scott, President, and Toni Fitzpatrick with CK Harp & Associates 24 Bruce and Blair Johanson with DB Squared

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37

Farewell to Purple Communications

…We

Hope

By J. BRUCE CROSS

T

he National Labor Relations Board (NLRB) issued an invitation to file briefs last year in the Caesars Entertainment Corporation, d/b/a Rio All-Suites Hotel and Casino case (Caesars) on whether the Board should “adhere to, modify, or overrule its 2014 decision in Purple Communications, Inc.” The Board also requested briefs to discuss what standard the Board should use if Purple Communications was to be overruled, and whether any exceptions should be carved out for the use of other forms of communications other than employers’ email systems. The cut off time to submit briefs was in October of 2018, and now the question as to whether the Board will return to its pre-Purple Communications standard concerning employer property rights or whether it will keep its current precedent unchanged, awaits answer.

The Purple Communications Case In 2014, under the Obama-era Board, the NLRB issued its holding in the Purple Communications case. The Board’s decision in Purple Communications was the first major attempt by the Board to redefine the nature of employer property rights. At the heart of the issue in Purple Communications was a company policy that essentially stated that all electronic correspondence sent on company equipment (email) was the property of the company and should be used for business purposes only. This policy was challenged after an unsuccessful representation election was conducted by a local union. The NLRB’s General Counsel argued in its charge that the employer’s policy was overly broad because it prohibited the use of company email for “engaging in activities on behalf of organizations or persons with no professional or business affiliation with the company,” thus interfering with the employees’ exercise of Section 7 rights.

The NLRB’s General Counsel did concede that ruling in its favor would require overruling the NLRB’s previous holding in Register Guard. Under the Board’s previous precedent set forth in the Register Guard case, the NLRB recognized that employers had the right to restrict employee use of email systems for certain types of personal purposes. Specifically, in the 2007 Register Guard decision, the Board affirmed an employer’s property right to let employees use email for certain personal purposes, while at the same time prohibiting employees from using their work email for the purpose of soliciting support for participation in an outside organization or cause.

In its argument to overrule the Register Guard precedent, the NLRB’s General Counsel asserted that the precedent failed to appreciate the importance of electronic communications among employees in the modern workforce. Among other things, the General Counsel cited statistics showing that email communications were becoming the more prevalent method of communication and that it is only expected 38

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to grow in the future. In response, Purple Communications and several amicus briefs argued just the opposite. The opposition, Purple Communications and other interested employers, first contended that granting employees’ unrestricted access to company email accounts for non-working purposes could lead to unintended consequences, such as increased spam and a heightened risk of viruses to email systems that could cause disruptions to workplace efficiency. Second, the opposition argued that in-person conversations among employees while at work (“water cooler discussions”) during non-working time still protected Section 7 rights without any of those negative consequences. Moreover, if email communications were allowed to be sent to individuals or entities outside of the company, then there would exist a risk of disclosure of confidential and proprietary information, whether intended or not, due to the fact that many employers would be required to adjust their firewalls and other security software to allow outside emails to be exchanged among their employees. Third, Purple Communications and interested employers argued that the increased use of personal communication devices with cellular and internet capabilities, as well as the availability of free and publicly available email and social media accounts, provided employees’ with the opportunity to have any desired conversations while off work.

For these reasons, these employers contended that Section 7 rights were still protected without any infringement on employers’ property or increasing the risk of security breaches, lost productivity, or email system failures and that, therefore, the standard set forth in Register Guard was the appropriate rule with regard to access to, and use of, company email. Notwithstanding the arguments raised by interested employers and other business groups, as well as the extensive arguments raised by the dissenting board members, the majority of the Board overturned Register Guard and issued the now current Purple Communications rule.

In sum, the Board’s departure from the Register Guard standard in Purple Communications was seen by many, employers in particular, as an ill-advised departure from the principles and precedent previously set forth and enforced by the Board. To that end, many employers and business groups (including the Arkansas State Chamber of Commerce and other Arkansas based organizations) took the Board up on its invitation to file briefs in Caesars. These employers and businesses argued that the Board should overrule its decision in Purple Communications with the opportunity presented in Caesars and return to its previously held standard in Register Guard.

Caesars Entertainment Case Caesars, a Las Vegas casino and hotel, is owned and operated by Caesar’s Entertainment, Inc. Caesars maintains an 84-page employee

handbook which it distributes to its workforce of approximately 3,000 employees, about 1,700 of whom are union-represented.

At issue in this case are nine handbook rules, the maintenance of which is alleged to violate Section 8(a)(1) of the National Labor Relations Act (Act) that states an employer is in violation of the Act if it maintains workplace rules that “would reasonably tend to chill employees in the exercise of their Section 7 rights.” Specifically at issue was whether Caesars work rules that prohibited certain computer usage were in violation of the Act. The Administrative Law Judge’s (ALJ) recommended decision that was pending before the Board in this case was essentially overruled by the Purple Communications decision, as it was based on the Register Guard presumption that the Act does not grant employees the presumptive right to use their employer’s email system. Instead of applying the Register Guard standard, the Board then applied its holding in Purple Communications retroactively, remanding Caesars to the Chief ALJ to allow for the introduction of evidence under the new Purple Communications test. The ALJ then found Caesars’ computer usage policy to be in violation of Section 8(a)(1) of the NLRA under the Purple Communications standard.

On appeal, Caesars asked the Board to overrule Purple Communications and, implicitly, to return to the holding of Register Guard.

Abtin Mehdizadegan Named Director at Cross, Gunter, Witherspoon & Galchus

We are pleased to announce that attorney Abtin Mehdizadegan has been named as a new Director of Cross, Gunter, Witherspoon & Galchus, P.C.! Abtin joined the Firm in 2013. Since that time, his years of service have made significant contributions to the Firm and its clients. Abtin is no stranger to hard work and he dedicates his practice to traditional management-side labor and employment defense, general litigation, and appellate advocacy in state and federal courts. Given his commitment to excellence

What’s Next?

in the practice of law, Abtin has received the Spirit of Maine Award from the University

Based on the current makeup of the Board, it is hopeful that we will see a change to the Purple Communications standard. Specifically, employers would like to see the Board return to its far more workable and rational Register Guard standard. Until then, HR professionals should have their Company’s policies drafted in line with the holding in Purple Communications, while waiting to see what changes occur to the standard once the Board rules in the Caesars case.

of Maine, his alma mater (2010), for his professional accomplishments and the Pro Bono Attorney of the Year Award (2017) by the Volunteer Organization of the Center for Arkansas Legal Services for his representation of an indigent client before the Arkansas Supreme Court. Abtin’s accomplishments have also been recognized by the Mid-South Super Lawyers for his dedication to employment law (2018); Arkansas Business magazine as a member of its Class of “20 in their 20s, the New Influentials” (2017); by HR Professionals magazine as a Rising Star in Employment Law (2015-18);

by Arkansas Life magazine in its Top Attorneys feature (2016). Prior to joining the Firm, Abtin graduated with honors from the University of Arkansas at Little Rock William H. Bowen School of Law (2013), where he served as a member of the National Trial Team and as Editor-in-Chief of the Law Review. In addition to his practice, Abtin is engaged in numerous civic organizations, and he also serves as a member of the Bowen School’s Adjunct Faculty, where he teaches Employment Law to upper-level law students.

We are excited to welcome Abtin as the Firm’s newest Director, and look forward

J. Bruce Cross, Director Cross, Gunter, Witherspoon & Galchus, P.C. bcross@cgwg.com www.cgwg.com

to his continued commitment to providing our clients with exceptional and zealous legal representation.

www.HRProfessionalsMagazine.com

39

Does Free Speech Exist In The American Workplace?

By GEOFFREY A. LINDLEY

Congress shall make no law . . . abridging the freedom of speech[.]

U.S. Constitution, Amendment I.

The concept of “freedom of speech” is “as American as baseball or apple pie.” Therefore, it is not surprising that Americans often cite their “free speech” right in defense of their words, regardless of the context within which such words are spoken or written. In the workplace, it is not uncommon for an employee to claim that “freedom of speech” or the “First Amendment” protects them from discipline. But is that true? As outlined in this article, “it depends.”

The First Amendment prohibits the federal government from limiting one’s right to speak freely. This prohibition is made applicable to state and local governments through the due process clause of the Fourteenth Amendment (i.e., the doctrine of incorporation). Gitlow v.

New York, 268 U.S. 652 (1925). However, it does not apply to private actors, including private employers. But what about the government as an employer?

First Amendment Protection Because they are covered by the First Amendment, governmental or public employers have a legal obligation to not infringe upon their employees’ free speech rights. However, while individuals do not surrender their First Amendment rights when they become government employees, their rights are not unlimited. Public employees’ speech is protected from discipline by their employers if the following criteria are met.

First, the speech must be made by the employee as a private citizen and not pursuant to his or her official duties. As noted by the United States Supreme Court, “[w]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Second, the employee’s speech must be about a matter of public concern. Connick v. Meyers, 461 U.S. 138 (1983). Speech involves a matter of public concern if it relates “to any matter of political, social, or other concern to the community” as opposed “to matters of only personal interest[.]” Id. at pgs. 146-47.

Lastly, a public employee’s free speech interest must trump the employer’s interest in maintaining an efficient workplace. Pickering v.

Board of Education, 391 U.S. 563 (1968). Important factors in the Pickering balancing test include whether the speech at issue “impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the [public employer’s] regular operation[.]” Rankin v. McPherson, 483 U.S. 378, 388 (1987).

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Additional Legal Protections As noted above, the First Amendment generally has no effect on a private employer’s right to control its employees’ speech. However, there are other legal protections for employee communications.

Concerted Activity

The National Labor Relations Act protects the rights of private non-management employees’ to engage in concerted activity. 29 U.S.C. § 157. This protection applies to both union and non-union employees.

And while employers can limit such speech to an employee’s own time, employees are free to openly discuss and even complain about the terms and conditions of their employment on their own time, including before and after work, in the lunchroom, and on social media.

Opposing Discrimination or Harassment

Federal employment laws such as Title VII of the Civil Rights Act of 1964 and state fair employment practices statutes, such as the Tennessee Human Rights Act, allow employees to oppose workplace discrimination and harassment or participate in an investigation, proceeding, or hearing regarding any such complaints. However, employees are not free to engage in racist, sexist, or other discriminatory and harassing speech without facing discipline. In fact, employers who allow such speech to go unchecked risk being found in violation of applicable employment laws.

Retaliation Protection

Various federal and state laws protect employees from retaliation for filing workers’ compensation claims, for reporting safety violations, and for blowing the whistle on their employer’s illegal activities.

For example, Tennessee’s “whistleblower” statute prohibits the discharge or termination of an employee “solely for refusing to participate in, or for refusing to remain silent about, illegal activities.” Tenn. Code Ann. § 50-1-304(b). “Illegal activities” are “activities that are in violation of the criminal or civil code of this state or the United States or any regulation intended to protect the public health, safety or welfare.” Id. at § 50-1-304(a) (3).

Political Affiliation and Activities

The Civil Service Reform Act of 1978 protects certain federal employees from political affiliation discrimination. However, no federal law explicitly protects private employees who express their political views in the workplace. Nevertheless, some states and municipalities provide protection for employees against adverse employment action related to their political activities or other off-duty conduct.

For example, employers in California are prohibited from discriminating, retaliating, or taking any type of adverse action against employees or applicants because they have engaged in political activity. California also protects employees whose family members have participated in protected political activity. Cal. Lab. Code §§ 98.6(a), 98.6(e), 1101, 1102. Other states have similar prohibitions, including New York, Louisiana, Colorado, South Carolina, and the District of Columbia.

Connecticut goes as far as to extend the free speech protections of the United States Constitution to private employees. Conn. Gen. Stat. § 31-51q. Some states that protect political activity by private employers exempt religious or public employers from those laws or do not protect speech that materially conflicts with the employer’s proprietary or business interest.

Managing Employee Speech As demonstrated, while “free speech” is a term of art referencing a protection generally applicable only to public employees, all employees have some form of legal shield for their speech, depending on the nature and context of the speech at issue. Therefore, before disciplining an employee for the employee’s verbal or written communications, consider the following.

• Is the employer public or private?

• Who is speaking? Is the employee in a management position or under a written contract?

• Is there an applicable collective bargaining agreement?

• What is the nature of the speech? Is it activity protected by law, such as reporting discrimination?

Unconventional approaches.

Ingenious results.

• Where did the speech occur?

At Littler, we’re lawyers. We’re also

• What jurisdiction’s law governs?

innovators and strategists, passionate

In addition, employers should make sure their employee handbooks and policies adequately address expectations regarding employee speech, both verbal and written and on and off the job. While employers have more ability to control their employees’ speech while they are working, employees should understand that their off duty conduct can be cause for discipline. For example, disclosing an employer’s confidential information on social media, posting inappropriate photos while wearing a company shirt, or sending harassing texts to a co-worker after hours may all be grounds for discipline up to and including termination.

While both public and private employees do have protections from adverse employment action for certain types of speech, they cannot say anything they want without fear of employer discipline. So long as an employer is careful to know the legal parameters and prudently advises its employees of its expectations, it has the ability to make sure its employees’ speech does not negatively impact its business interests.

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.

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Geoffrey A. Lindley, Attorney Rainey Kizer Reviere & Bell, PLC glindley@raineykizer.com www.raineykizer.com www.HRProfessionalsMagazine.com

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Does the FLSA Require Paying Employees for EmployerSponsored Volunteerism?

By KARUNA DAVE

V

olunteerism is an effective way for governmental and non-profit organizations to maximize their impact while minimizing costs. In recent years, as corporate social responsibility has received increased attention in academia and the media, corporations have grown to play a larger role in global, national, and local efforts to remedy

broader societal issues. Corporate volunteering initiatives have grown exponentially over the last decade, as consulting groups and popular business publications, including Deloitte and Forbes, continue to laud corporate volunteerism as beneficial for company morale, productivity, and brand perception. However, these organizations also incur risk, as employers, of running afoul of the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA), which specifically excludes individuals who “volunteer” from its definition of “employees” to whom the wage requirements apply.

To avoid an obligation to pay wages for hours worked, the proposed initiative must be truly voluntary. The FLSA was intended to prevent employers from skirting minimum wage and overtime requirements through “coercion or undue pressure” to volunteer, not to discourage volunteering. For the purpose of the statute, a “volunteer” is without any promise, expectation, or receipt of wages for services rendered. In contrast, an “employee” acts in the interest of his or her employer and is subject to its direction and control. Keeping this distinction in mind, promoting civic engagement through volunteering remains a valuable way to enhance corporate culture or maximize community impact.

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On March 14, 2019, the Department of Labor (DOL) addressed whether participation in an employer-sponsored community service program would be considered “hours worked” under the FLSA, in an opinion letter. The program at issue provided opportunities for employees to volunteer for activities sponsored by their employer or which they themselves selected. The employees who chose to participate were compensated only to the extent their activity took place during normal work hours. At the end of the year, the employer awarded discretionary bonuses to the employees who made greatest community impact through the program, considering how many hours each employee volunteered. The employer proposed tracking volunteer hours through a mobile device application. Even with a tracking application, the opinion letter found the program did not result in hours worked under the FLSA. Notably, the opinion confirms that employers may provide a financial incentive for volunteering, within reason. The DOL identified three mandatory criteria for any discretionary bonus awarded as a result of time spent volunteering: (1) the volunteering must be optional; (2) an employee that does not volunteer will not suffer any adverse impacts on his or her working conditions or employment prospects; and (3) a bonus for choosing to volunteer is not guaranteed. In

other words, an employee who chooses not to participate in a volunteering initiative must be able to earn the same discretionary bonus by satisfying other criteria. Should an employer choose to incorporate volunteer time as a factor in a discretionary bonus program, it should ensure that the achievements of employees who choose not to volunteer will also satisfy its criteria for the bonus program.

The recent opinion letter also clarifies that compensating employees during normal work hours does not destroy the rule that, by definition, volunteer time entails a total lack of any expectation of compensation.

Though compensation is not required for volunteer time outside of normal work hours, other factors may trigger an obligation to pay wages. Employers that sponsor or partner with organizations as part of a social responsibility or volunteer initiative should take care— though not addressed in the recent opinion letter from the DOL, a relationship may qualify as a single enterprise under the FLSA. Occasional sponsorship is a safer approach, as is choosing volunteer opportunities that are unrelated to employees’ duties.

LCYFFL0118

Public entities and non-profit employers seem to be more frequent targets of litigation, perhaps because there are more likely to be opportunities for employees to “volunteer” for their employer. Volunteers commonly receive nonpecuniary benefits for their services. In some cases, providing benefits to volunteers in return for their services can weigh in favor an “employee” classification. In such cases, courts apply an “economic realities” test to determine whether the particular

circumstances of an arrangement favor classifying workers as volunteers. Though less frequently litigated, these rules apply equally to for-profit employers too. Public entities and non-profits should take care to ensure that volunteer services are used effectively.

Legal consequences aside, employers can encourage employees to volunteer in a variety of ways including, as the DOL has recently confirmed, factoring volunteer time into a discretionary bonus plan.

Volunteering gives employers a competitive edge in attracting and retaining talent, especially for the younger generations. Research has shown that volunteerism is effective for the development of leadership and communication skills and is proven to help individuals and organizations succeed. Before launching a volunteer initiative, employers should consider an array of civic engagement opportunities and evaluate which are appropriate in light of its business and workforce. Consulting with an employment attorney is an effective means of ensuring the particular risks presented by the operations of an employer are addressed at the outset, to maximize community impact and avoid potential legal exposure.

Karuna Dave, Attorney The Kullman Firm – New Orleans kd@kullmanlaw.com www.kullmanlaw.com

SFBLI.COM www.HRProfessionalsMagazine.com

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Highlights from SHRM-Atlanta’s annual conference, SOAHR 2019 Cobb Galleria Center | Atlanta | March 25-27 Please view our Facebook Live videos from the conference at www.Facebook/hrprofessionalsmagazine.com

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1 2019 SHRM-Atlanta Board of Directors and Volunteer Leadership Team (From Top L-R) Bob Collins, Akilah Charlemagne, Holly Bail, Jeanne Artime, DeRetta Cole Rhodes, Barbara Bell-Dees, Lars Minns, Helene Lollis, Christine Browning, Karan Rhodes, Dwight Thompson 2 At the SHRM-Atlanta Booth (L-R) Jessica Edenfield, Jackie Choice, Akilah Charlemagne, Jeanne Artime, Cynthia Thompson, Linda DeMaris, Lee Evans, and Anne Gildea-Olt

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3 Felix Massey is SHRM Field Services Director for the Southeast. 4 Jeanne Artime, CEO of SHRM-Atlanta, with Greg Hare, Managing Shareholder for Ogletree Deakins Atlanta office. They welcomed attendees to the reception sponsored by Ogletree Deakins. Greg was also a speaker and presented “Headline News: Hot Topics in Employment Law.” 5 Commissioner Mark Butler with the Georgia Department of Labor spoke on “Workforce Trends and GDOL.” 6 “How to Conduct a Legally Defensible Employee Investigation with Effective Documentation” was the topic Marty Martenson presented. Marty is an attorney with Martenson Hasbrouck & Simon LLP. 44

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7 Linda Smith and Lars Minns were keynote speakers at the opening general session. Their topic was “Seize Your Power: Lessons from the Meanest Woman Alive.” 8 Jeff Nischwitz discussed “Shake Up Your Culture…One Shift at a Time.” 9 “Hiring Good Employees When Good Employees are Hard to Find” was presented by Jennifer Sandberg.

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10 Kathryn Stokes McConnell and Shea I. Geyer at the Littler booth. Kathryn is a Shareholder with the Littler Atlanta office. She spoke on “How to Handle Violence in the Workplace.” Shea is Regional Marketing Director for Littler. 11 (L-R) Renee Shull, HR Manager with WinCup, at the Data Facts booth with Maddie Bradin, National Account Executive; Julie Henderson, Director of Sales; and Stuart Gott, National Account Executive.

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12 Kornelious Bankston discussed “Personalizing Health with Genetic Insights: Cancer, Heart Disease, Medications and More.” 13 Rob Prinzo presented a “Procurement Workshop: Best Practices for Buying HR Software and Services.” 14 “Measures that Matter: The Ultimate Cheat Sheet for HR Metrics” was Denise Cooper’s topic. 15 (L-R) CaryAnn Liner, affirmative action plan specialist; and Annabelle Smith, paralegal; with Martenson Hasbrouck & Simon and Simon LLP in Atlanta.

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16 (L-R) Taylor Derringer, Business Development Associate; Stephanie Broughton, Director of Business Retirement Plan Services; and Erin Haynes Reed, Director of Business Development at the ARGI booth. 17 Dr. Dennis Koerner, President and CEO of ITN Workforce Analytics, presented “Innovations in the New Age: How Diversity & Digital Drive Innovation.” www.HRProfessionalsMagazine.com

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It is important to note that within each topic or ‘lie” lays a ‘truth’ which the authors carefully drive home with each topic. The nine topics discussed are: LIE

NINE LIES ABOUT WORK:

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BY WILLIAM CARMICHAEL

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The best plan wins

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The best intelligence wins

3

The best companies cascade goals

3

The best companies cascade meaning

4

The best people are well-rounded

4

The best people are spiky

5

People need feedback

5

People need attention

6

People can reliably rate other people

6

People can reliably rate their own experience

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People have potential

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People have momentum

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Work-life balance matters most

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Love-in-work matters most

9

Leadership is a thing

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We follow spikes

A Freethinking Leader’s Guide to the Real World

Introduction So many of us are Marcus Buckingham fans and for good reason. His talent lies in providing excellent advice in a colorful and informative manner. Co-authored with Ashley Goodall, who is certainly no novice to human performance himself, this latest work will strike a positive nerve with readers. Nine Lies About Work: A Freethinking Leader’s Guide to the Real World takes our most standard and accepted stereotypical understandings of how organizations act and turns them on their heads. It is not that they mean to disarm us, rather, they expose the myths that we have openly and honestly accepted as facts within organizational behaviors.

Misconceptions about behaviors?

Surely not!

The book begins with a paradox. To quote the authors, “Why do so many of the ideas and practices that are held as settled truths at work wind up being so deeply frustrating to, and unpopular with, the very people they are supposed to serve?” Naturally, I asked myself what these truths were? In this case, truths are those norms we accept as required behaviors. For example, organizations promote the concept of engagement, which as an accepted canon for most companies carries with it the expectation that it will forever be in use. This just makes perfect sense . . . right? After all, doesn’t any organization want engaged, productive employees? Interestingly, Buckingham and Goodall drive home the point that ‘engagement’ as an active trait has likely run its course.

Our authors make clear that other workplace attributes such as strategic planning, performance feedback and work-life balance, each falls prey to our overuse and reliance upon systems, processes, and procedures beyond our control. The questions Buckingham and Goodall pose are not that these aren’t necessary, but rather, each has a natural life-cycle. Certainly goal-setting, is a normal part of business and is not likely to change.

However, what the authors do challenge is the accepted pattern of cascading the goals that for the most part becomes a ritualistic spinoff.

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TRUTH

People care which company they work for

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I firmly believe that organizational goals should and must be shared with stakeholders.

However, this necessary allocation is not what our authors are concerned about, rather, the meaning behind the goals. Certainly, inconsistent meanings to be sure. What this book stresses is a “don’t tell them what you value, show them.” The fact is, rituals are fine but they have to have the same meaning to everyone.

So then . . . what now?

“The problem,” as our authors so aptly state “is that too many leaders (HR and otherwise) have brought into certain notions and stereotypes about what motivates and inspires people.” One of these, Lie # 5, is that people need and require feedback. Feedback, as in regular and continuous. But this feedback, as regular and continuous as may be practical, typically serves only one benefactor. One can argue this logic but the point Buckingham and Goodall make is that what employees actually need is advice and guidance.

Now this next one gave me a jolt of sorts!

The authors call this one Lie # 7, or “people have potential.” However, the fact is that most companies only invest in development programs for their high performers as a means of building their pipeline of future leaders yet invest little to nothing for those performing at a lower scale. And for those companies who believe that “our people are our best asset,” if they truly are, may need to rethink this intonation.

Structure and Layout Marcus Buckingham’s books tend to use an odd number of main points (5, 7, 9, etc.) in an effort to help readers connect to and retain the information and Nine Lies About Work has this structure. Readers will likely find some topics more significant. As an example, Lie # 8 ‘Work-life balance matter most’ caught my attention quickly so that is the one I read first.

True, this topic does relate to earlier ones but stands on its own.

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People care which team they’re on

This is an excellent read and one I highly recommend!

Who Will Benefit Most from This Book?

HR Senior Leadership, Senior Organizational Leaders, Organizational Strategists About the authors: Marcus Buckingham is a global researcher and thought leader focused on unlocking people’s strengths, increasing their performance, and pioneering the future of how people work. He is head of all people and performance research at the ADP Research Institute and the author of several bestselling books. Ashley Goodall is Senior Vice President of Leadership and Team Intelligence at Cisco. He is also the coauthor with Marcus Buckingham on “Reinventing Performance Management,” the cover story in the April 2015 issue of Harvard Business Review.

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

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Our experienced faculty and industry experts hold weekly virtual class sessions, where students’ professional experiences provide deeper entry into course topics. The MHRIR curriculum is designed to build business acumen and a strong foundation in human resources and labor relations. Annetta Allison, Human Resources Coordinator at Illinois Public Media, designed a change management plan to align her organization’s structure with a new strategic plan, “I used [the final project] as a tool to gain approval from our executive committee on how I would execute the reorganization. The Executive Director said that my preparation helped make their decision an easy one.” In each course, students are encouraged to apply their coursework to their careers.

being offered online, I was excited for the opportunity to experience the program virtually, expand my network of HR professionals … and enhance my knowledge of Labor and Employment Relations,” said Annette Gorzelany, current student and HR Generalist at Boeing.

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39 47

J-1 Visa Sponsorship Assists with

Interns and

Trainees

By GREG SISKIND

F

or more than a half century, the US government has operated an exchange visitor visa program. The visa is called the J-1 and it is administered by the US

Interns are barred from working in unskilled or casual labor positions or positions involving childcare, elder care, or medical patient care or contact. Finally, interns cannot work in positions requiring 20% clerical or office support work. And the federal government monitors for compliance with this requirement much more closely than in the past.

Department of State. In earlier decades, it was managed by the US Information Agency which later was merged into the

State Department. J-1 Exchange Visitor Visas are used for a variety of programs ranging from camp counselors and au pairs to international scholars and physicians. There are two

As for the fields, interns are permitted to work, the following are approved by the State Department: • Agriculture, Forestry and Fishing;

• Arts and Culture;

programs of particular interest to human resource managers

• Construction and Building Trades;

– the intern and the trainee programs.

• Education, Social Sciences, Library Science, Counseling and Social Services;

The intern J-1 program is designed to allow college and

• Health Related Occupations;

university students or recent graduates to get hands-on

• Hospitality and Tourism;

experience in their occupational fields at US businesses and

• Information Media and Communications;

get exposure to American culture. Qualifying applicants can accept internships up to 12 months. The J-1 intern’s studies must have been outside the US and the studies must have taken place within the 12 months prior to the exchange program start date.

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• Management, Business, Commerce and Finance; • Public Administration and Law; and • The Sciences, Engineering, Architecture, Mathematics and Industrial Occupations.

J-1 visa applicants are sponsored by exchange programs and placed at qualifying employers. Employers generally take the lead in identifying a J-1 program and the list of exchange programs sponsoring interns can be found at https://bit.ly/2T6tfEW. As of April 2019, there are 89 authorized programs. They all differ in the types of fields they’ll sponsor, the nationalities on which they focus, and they can differ on fees and processing speeds.

As for basic requirements applicable to all employers, here are some of the basics: 1. E mployers complete a DS-7002 form that includes

a training plan for the intern that outlines both the employment experience to be gained and the employer’s plans for providing cultural experiences; 2. E mployers must comply with all government health and safety laws; 3. H ave sufficient resources, plant, equipment and trained personnel available;

employment” which are jobs normally filled by full-time or part-time employees. Training also cannot duplicate the trainee’s prior work experience or training.

The fields eligible for trainees are the same as listed above for interns. The list of eligible J-1 trainee sponsors can be found at https://bit.ly/2SfvNMG.

The requirements for J-1 trainee host employers are largely the same as for J-1 interns including ensuring the opportunity genuinely provides training and the J-1 is getting plenty of supervision. Also, the J-1 home residency requirement is an issue for trainees as well.

Many employers that have had a positive experience with a J-1 trainee decide to pursue employing the J-1 once the internship or trainee periods is over. This is sometimes possible if the home residency requirement does not apply or has been waived and an appropriate work visa option is available. Often this is a challenge because of the limit on H-1B visa availability.

4. P rovide continues supervision an mentoring by experienced staff; and 5. E nsure that interns obtain skills, knowledge, and competencies through structured activities such as classroom training, seminars, rotation through various departments, on-the-job training, attendance at conferences and similar learning experiences.

If you sponsor a J-1 intern, be aware that many interns will be subject to a requirement to return their home countries for a two-year period.

This is usually based on the J-1’s field and nationality being listed on a Department of State Skills List. If this applies, the J-1 will be barred from switching to another non-immigrant category within the US, barred from obtaining an H-1B or L-1 visa at a consulate or getting a green card. Waivers are sometimes available with the most common route being based on getting a no objection letter from the home country government.

More experienced individuals can sometimes look at coming to the US as a J-1 trainee. The trainee category is available to individuals with university degrees or professional certificates from foreign postsecondary institutions and who have at least one year of foreign work experience in his or her professional field. Alternatively, the person can have five years of foreign work experience in their field. J-1 trainee programs can last up to 18 months.

The same restrictions on working noted above for interns (such as bars on unskilled or casual labor) apply to trainees as well. Trainees are also specifically barred from taking positions that are considered “ordinary

Greg Siskind Siskind Susser, PC Immigration Lawyers gsiskind@visalaw.com www.visalaw.com

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BPJ’s Tannera Gibson Named Best of the Bar Congratulations to Tannera George Gibson for being named Best of the Bar in the Private Firm – Large category by the Memphis Business Journal.

Gibson was born and raised in Memphis and received both her undergraduate and law degrees from the University of Memphis. Her practice focuses on municipal law, employment law, healthcare liability, and commercial and business litigation. She is the first female African-American member at the firm, which she joined in 2009.

According to the Memphis Business Journal, one of Gibson’s nominators for the Best of the Bar said she was “a consummate professional, mentor, and friend. I have admired Tannera in court, laughed with her on the phone, learned from her as a professor, and benefitted from her wisdom as a mentor. It doesn’t get any better than T.” Nathan Bicks, managing attorney of the firm, agrees. “Tannera is a wonderful advocate for our clients and an established leader in our profession. We are proud to see her take her rightful place in the long line of BPJ lawyers who serve the greater Memphis community. And we are grateful that the community has recognized the talents we see her display every day.”

A TRADITION OF

Attorneys left to right: Lisa Krupicka, Tannera Gibson, Gary Peeples and Jennifer Hagerman

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You’re invited to attend the

9th Annual

Presented by: THE WEST TENNESSEE SOCIETY FOR HUMAN RESOURCE MANAGEMENT In coordination with: THE LAW FIRM OF RAINEY, KIZER, REVIERE & BELL, P.L.C.

May 1, 2019 Wednesday 8:00 a.m. to 4:00 p.m.

Join us for an informative day where we will explore totally rad HR compliance topics including: FMLA – Gag me with a spoon! Explore the top principles employers need to keep in mind when managing FMLA issues in the workplace.

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Not Happen’en! Marijuana and the Workplace – How do recent changes in the law affect employer policies and alter employer legal obligations toward their employees?

Like a Totally Better Employer Handbook – In 2019 what policies and language should employers include in their handbooks and what should they avoid?

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

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Lunch is provided. Explore our impressive showcase of HR-related exhibitors. Great door prizes.

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

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52

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Record-breaking attendance at the March 2019 SHRM-Memphis conference—legal community provides great learning for participants!

Surviving Alpha People

By LEEANN B. FOSTER

I will just say it,

John 10:10 is my very favorite Bible verse.

There. I did it. I brought the Bible into professional magazine. Hang with me here. John 10:10 tells us that we are not made to only survive. We are made to thrive. Well, if you have thrived while dealing with Alpha People, please give me a call. You are a superhero.

Merely surviving Alpha People is a win!

However extroverted and people-loving you are, dealing with Alpha personalities is draining and often times defeating. What is an Alpha Person (AP)? An alpha person has a dominant personality. An AP is usually outgoing, ambitious, and straight-forward.

In article by Mary Wright in Curious Mind Magazine describes Alpha People as follows:

Alpha People love being alone. They say what is on their minds without holding back. They do not care what others think about them. They are not pushovers.

The speak with their actions, not with words. They are protective. Their passion is often seen as bossiness. They have strong beliefs and are perfectionists.

They are very hard workers. They only do things that they love.

Does Ms. Wright’s description bring anyone to mind? It brings two people to mind for me, one male and one female. During my 30-year career, these two people, let’s call them Deanna and Jude, behaved very poorly while interacting with our employees. Both were peers of mine. My other teammates and I survived. The situation was not pretty at times.

We could have been so much more productive and a much higher functioning team.

Deanna was the type that always had her phone in her face during conversations and meetings. Her time was much more important than anyone else’s. She never greeted a person first. You had to speak first or be ignore. She stomped throughout the office, busted into conversations, and pulled a chair up to many tables where there was no room.

Deanna’s boss was highly intimidated by her; therefore, she had no coaching regarding her poor behavior. She prided herself in being the office “B”. Her team members always agreed with her to her face but spoke their honest opinions to each other after she left 54

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the meeting. She did not play well with other females. She repeatedly positioned herself between the President and others.

4. Always respond to the AP even if he is being aggressive. Show that you recognize his views. Doing so will help build rapport.

I never stood my ground with her. I was passive and agreeable. I was intimidated. Sadly, I did nothing to help her grow. Nothing! I have very few regrets looking back over my career, but this relationship is one of them. Deanna needed boundaries. She needed someone to care enough about her to be honest with her.

5. Do not be apologetic for any reason.

Repeatedly apologizing will make you sound passive. People will be less likely to notice you.

Now for Jude! Jude blew into the organization like a tornado. And – he left a lot of damage. He was really a mean man. He bullied everyone, even the CEO. Jude would say many times per day that one of our employees was “stupid”. He constantly insinuated that no one worked but him. He would call all hours of the day, even on Sundays. If you didn't answer his call, you would get it!

This guy had no idea what he was doing. He changed his plan repeatedly. No vision. No mission. No nothing. The organization was broken soon after his arrival. However, this time I stood up to the AP. I pointed out the confusion and dysfunctionality. I could not change his behavior, but I changed mine. I stood strong. I was confident. I was assertive.

I got so much more done because I would not stop until I got the attention I needed for my initiative. It felt good.

The ten tips below (from HR Zone) will aid you in moving from surviving to thriving when in the presence of an Alpha Person.

1. Clearly inform the AP regarding the impact of his behavior. Let him know how it makes you feel when he raises his voice. For example, “When you raise your voice with me. I just get defensive and feel resentful. I would prefer it if you could lower your tone and we could talk about this properly instead of arguing.”

6. Be aware of your tone, volume, and pace.

Do not whisper, whine, falter, or speak too slowly. You do not want to come across as nervous, unconfident, or uncertain.

The AP will ignore you if you sound like a pushover.

7. Be keenly aware of your body language.

Stand straight, firm, and maintain eye contact.

8. Challenge the Alpha Person’s behavior.

Do not allow her to talk over you or interrupt you.

9. Use the Broken Record technique. Repeat your point over and over again until you have the impact you desire. Doing so shows that you are no longer going to accept being ignored.

10. Do not let him take advantage of you.

Say No! Again, do not feel the need to apologize. Stand your ground. Give the reason you must say “no” and explore alternatives. Do not be passive and stand your ground. Your agenda is as important as his.

Assertiveness is not a natural state. It is a skill that has to be learned and practiced. To ‘act’ assertive, it really helps to ‘think’ assertive.

That means changing your beliefs, thoughts, and feelings to increase your self-esteem and confidence. Look at it this way, it is much easier to convince other people that you deserve to be treated with respect if you truly believe it yourself!

2. Plan what you are going to say. Use “If, Then” statements. If she does this, then I will say that. Practice! Be clear, concise, and direct. Do not get into long arguments. Make your points clear. Make sure that you sound convincing.

3. Be powerful in stating your case by using “I” statements. “I think/I believe/I feel, etc.” This shows that you are entitled to your opinion.

LeeAnn B. Foster | Head Coach Leadership & HR Consultant www.teamfosterhrstrategy.com

Compliance with Compassion… … using your head, your heart, and your hands to nurture your employees.

TEAM FOSTER HR STRATEGY provides comprehensive human resources consulting services for small to mid-size businesses. Offering turnkey solutions for clients, Team Foster is committed to compliance with compassion. With 30 years of industry experience, LeeAnn excels at relationship management, conflict resolution, and employee engagement. Team Foster works with you to motivate and manage HR issues from the inside out – supporting your existing human resources team and coaching your staff to solve problems with an integrated approach. Team Foster HR helps you build a collaborative corporate culture to further your business goals and strengthen your performance.

LeeAnn B. Foster | Head Coach Leadership & HR Consultant +1 865-719-1177 mobile WWW.TEAMFOSTERHRSTRATEGY.COM

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