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Volume 7 : Issue 11

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www.HRProfessionalsMagazine.com

Simplifying the Transition to a

Self-Funded Health Plan

Special Issue on Employee Benefits Planning and Compliance Highlights of

2017 Fall SHRM

Conferences

Gradifi – The New

Benefit to Help Your Employees Pay Down Student Loan Debt

Open Enrollment: Using Nobel Prize Winning Research Compliance – Now is the Time

to Refocus!

Laura K. Clayman,

JD, SHRM-CP Client Resource Team – Senior Advisor Regions Insurance, Inc.

Spotlight on Pharmacy


Bringing Human Resources & Management Expertise to You

88% of employers with 5K+ EEs have a self-funded health plan www.HRProfessionalsMagazine.com Editor

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

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

Park Avenue Design Contributing Writers

Austin Baker Simon Bouchez Bruce E. Buchanan William Carmichael Harvey Deutschendorf Karen Dix Sean Dryden Timothy Garrett Alex Gramling Dorothy Knapp Mary Celeste Moffatt Carolyn McNairy Timothy A. Palmer Cristie Upshaw Travis Katherine Suttle Weinert Curtis Woody 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. ©2017 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 2 Employees’ Identities Mean the World to Us 4 note from the editor 5 Profile: Laura K. Clayman, JD, SHRM, Senior Advisor, Regions Insurance 8 SHRM Recertification Means Money for Your Chapter 12 The State of Recruitment for Small Businesses 20 Let’s Talk Turkey About Background Screening 46 Book Look: Total Alignment: Tools and Tactics for Streamlining Your Organization 50 7 Ways to Develop a Challenge Culture at Work

Employee Benefits 9 Gradifi – Exciting New Benefit to Help Your Employees Pay Down Student Loan Debt 14 Compliance – the Time is Now to Refocus 22 Finding the Perfect Holiday Gift for Employees 24 Open Enrollment: Using Nobel Prize Winning Research to “Nudge” Working Americans Part 1 26 Simplifying the Transition to a Self-Funded Health Plan 36 Spotlight on Pharmacy 37 Highlights from the 2017 MBGH Conference in Memphis August 23 45 Highlights from the 8th Annual MSBGH and Mississippi College Healthcare Summit in Clinton October 10

Employment Law 10 Highlights from the 2017 Memphis Chamber HR Legal Summit on October 12 16 EEOC Must Reconsider Wellness Rules 28 DOJ and EEOC Disagree on Title VII and Sexual Orientation 32 The Dynamics of EE Benefits: Is a Beyonce Concert Really Abuse? 34 NLRA Protects Striker’s Racists Insults 40 Daveante Jones Joins Wright Lindsey Jennings 42 Assistance Animals in the Workplace 44 Highlights from Littler Memphis Seminar August 17 48 Sarah T. Laren Joins Littler Kentucky 49 Effects of Termination of DACA on Employers

WEB EXCLUSIVES HTTP://HRProfessionalsMagazine.com /Exclusive

Industry News 6 Highlights from the 2017 HRMIDSOUTH Conference & Exposition in Nashville October 1-4 18 Highlights from the 2017 ARSHRM ELLA Conference in Little Rock September 14-15 23 SHRM-Memphis 2017 HR Excellence Awards November 14 30 Highlights from the 2017 ALSHRM Strategy in the Sand Conference in Orange Beach September 29 38 Highlights from the 2017 SHRM Georgia State Conference in Brunswick October 8-10 47 Statesboro–Area SHRM Receives Best Project of the Year for Its Workforce Readiness Conference

December Issue

Compensation and Performance Management

Deadline to reserve space November 10

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a note from the Editor It is an honor to have Laura K. Clayman on our November cover. Laura is an attorney and a senior certified human resource professional, holding a SHRM-SCP professional HR designation. She is a Senior Advisor with Regions Insurance, Inc. You do not want to miss her exciting career profile on Page 5. Laura has been with the Client Resource Team since 2015 and has been instrumental in developing and implementing education initiatives for employees. She is a member of NOLA-SHRM and enjoys speaking at local SHRM events.

It was a pleasure interviewing Mike Aitken, SHRM VP of Government Affairs, about his presentation, “The Washington Outlook,” at the 2017 ARSHRM Employment Law and Legislative Affairs Conference in Little Rock in September.

You are going to love this issue, which focuses on employee benefits planning and compliance! We have articles on some of the topics that keep you awake at night, including one on simplifying the transition to a selfinsured health plan by Alex Gramling. We know you are struggling with your prescription drug plan. So we asked Cristie Upshaw Travis to provide an article with tips on how to more effectively manage prescription benefits. We also know that this is a stressful time for you and your benefits managers as you are in the midst of open enrollment with your employees. Be sure to check out Austin Baker’s article on using Nobel Prize winning research during the open enrollment season. Compliance is always a challenge in human resources as we manage so many functions for our employees from onboarding to payroll to FMLA issues, and terminating the employment relationship. I highly recommend that you read Carolyn McNairy’s excellent article on compliance in this issue.

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This issue also includes coverage of many of the SHRM fall conferences that you have been looking forward to. In addition to the highlights in this issue, you can find exclusive video interviews with the conference leadership, the keynote speakers, and some of the top concurrent speakers from each conference on our Facebook page, www.facebook/ hrprofessionalsmagazine.com, and also on YouTube. Please Like us on Facebook, and follow me on YouTube at Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR. Once you Like our Facebook page, you will receive instant notifications anytime we are bringing you interviews such as these, or important breaking news or updates on HR events in your area. Our December issue will cover the latest compensation and performance management issues and solutions. Please mark your calendars and plan to join us November 30 for Building a Leadership Powered Company, Pt 2. Watch your email for your invitation. If you are not currently on our email distribution list, please visit our website and click on Subscribe. Wishing you and your family a lovely Thanksgiving season as we begin the holiday celebrations.

cynthia@hrprosmagazine.com @cythomps on Twitter


Laura K. CLAYMAN on the cover

LAURA K. CLAYMAN, JD, SHRM-CP SENIOR ADVISOR – Client Resource Team Employee Benefits Division of Regions Insurance Laura earned her bachelor’s

Laura Clayman is a Senior Advisor on Regions Insurance’s Employee Benefits Client Resource

degree in Mass Communications

Team. The team consists of senior-level experienced HR professionals and law-trained

from the Louisiana State

employment and ERISA associates dedicated to proactively monitoring changes in employee

University in Baton Rouge,

benefit regulations that may affect a client’s employee benefits program.

Louisiana. She continued her

Laura joined the Client Resource Team in 2015, right on the cusp of Affordable Care Act

studies at LSU, receiving her

reporting requirements. Her immediate goal was to educate employers on the potential penalties

Juris Doctorate and bachelor’s

associated with the Employer Shared Responsibility Mandate and find solutions to make the

degree in Civil Law in 2003. She is proud to have obtained her SHRM-CP certification in 2015 and is a member of NOLA-SHRM. She enjoys speaking at local SHRM events and sharing stories with HR professionals.

reporting process less burdensome. Laura has proved instrumental in developing and implementing education initiatives for employers. Her team accomplishes this in many ways, including presentations, webinars, newsletters and alerts. Laura travels across Regions Insurance’s footprint updating employers on hot topics to keep their employee benefit welfare plans compliant. In Laura’s former professional life, she actively practiced law before transitioning to litigation support consulting. In both consulting and law practice, Laura worked closely with clients to identify strategic goals, and develop and implement effective plans to achieve those goals. She has no regrets about leaving the world of litigation and finds her professional joy in helping employers stay up to date on the constantly changing world of HR and benefits. Laura lives in New Orleans, LA with her husband, Jeff and good dog Lillie. Laissez les bons temps rouler! 

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HIGHLIGHTS

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1 Rebecca Harmon, SHRM-CP, PHR, MBA, 2017 TN SHRM State Director, welcomed attendees to the Conference. Please check out our Facebook Live video with Rebecca at www.facebook.com/hrprofessionalsmagazine. 2 Peyton Manning, former NFL quarterback for the Indianapolis Colts, was the keynote speaker for the opening general session on Monday. His topic was “18 Keys to Leadership for HR Professionals.” 3 John Daniel, EVP and Chief Human Human Resources Officer for First Horizon National Corporation, was the opening keynote speaker October 1. His topic was “HR’s Role in Developing Organizational Resiliency During Financial Crisis.” Please check out our Facebook Live video with John at www.facebook.com/hrprofessionalsmagazine.

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4 Greg Grisham, attorney with FordHarrison’s Memphis office spoke on “The Ultimate Legal/HR Audit: An HR Attorney’s Perspective.” 5 Tim Garrett, attorney with Bass Berry & Sims, presented, “Recent Developments Under the National Labor Relations Act – Case Studies and Practical Guidance.” (See Page 42 for Tim’s article on this topic.) He also moderated, The Trump Administration- A Panel Discussion of “The Administration and its Impact on the Employment Landscape,” during the closing session. 6 Josh Wright, Chief Economist at iCIMS, discussed “Getting Over Your Data Fears and Getting a Grip on Hiring Trends.” 7 Josh Golden, Area Senior Vice President at Arthur J. Gallagher & Co., spoke on “Pharmacy Program Management: Pitfalls, Challenges, and Best Practices.” 6

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8 Fredrick J. Bissinger, Regional Managing Member of Wimberly Lawson, discussed “What to do About Sexual Harassment.” Check out our Facebook Live video with Fred at www.facebook.com/hrprofessionalsmagazine. 9 Stephanie Hawkins with MT SHRM, and Michael Burcham, CEO of Narus Health. He was the keynote luncheon speaker on October 3. He presented, “Thinking Like a CEO.” 10 Dr. Kimberly Estep, Chancellor, WGU Tennessee, was interviewed on Facebook Live with Cynthia at www.facebook.com/hrprofessionalsmagazine. Checkout the online degree programs through WGU that are aligned with SHRM’s curriculum.

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11 Tiffany Coursey, President of MT SHRM, presented John Basler, SHRM-CP, PHR, Past President of the TVHRA SHRM Chapter, the 2017 TN SHRM HR Excellence Award. 12 Eric Stevens, Labor and Employment Law attorney and Shareholer with Littler Mendelson, PC, presented, “Top 10 Handbook Policies.” Please check out our Facebook Live video with Eric at www.facebook.com/hrprofessionalsmagazine. 13 Rebecca Harmon, 2017 Director of the TN SHRM State Council, received the James House Williamson Award by Tiffany Coursey, President of MT SHRM, at the Tennessee HR Awards Luncheon October 3. 14 Tiffany Coursey, President of MT SHRM, presented Janice Shipman of the WTSHRM Chapter the 2017 TN SHRM HR Excellence Award.

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15 Dr. Trish Holliday received the 2017 TN SHRM HR Excellence Award presented by Tiffany Coursey, President of MT SHRM. 16 Art Smith, Executive Director of TN SHRM, kicked-off and welcomed the conference attendees at Monday morning’s Opening General Session. 17 The 2017 TN SHRM State Council 18 The 2017 TN SHRM Conference Volunteer Committee 19 The TVHRA Chapter in Knoxville invited Tennessee HR professionals to attend the 2018 TN SHRM Conference in Sevierville September 19-21, 2018.

19 www.HRProfessionalsMagazine.com

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SHRM Recertification Means MONEY for Your Chapter and State Council for 2017

By DOROTHY KNAPP

W

hat am I talking about?! How can they get money for you recertifying in 2017?? In case you haven’t heard, SHRM has a recertification “incentive” plan for chapters and state councils in 2017. By being a member of a chapter, you are already a member of your state. And SHRM is offering chapters a “bonus” of $20 for each member who has designated that chapter as primary and recertifies his/her SHRM certification. Your state will also receive $10 for every person who recertifies by December 31, 2017. That’s a great boost to both your chapter and your state council - $30 total in your name! And, by the way, SHRM members who are not in a chapter will qualify for the $10 bonus money to be sent to the state in their name as well. One note of importance – recertifying before your due date does not change the recertification month in the future, which is your birth month. That means if your recertification date is April 30, 2018 and you recertify in December of 2017, your next recertification date will be April 30, 2021. Any classes you take in between December 2017 and April 2018 will not feed into a future recertification. But, they will certainly feed your personal inventory of knowledge and competencies.

Dorothy Knapp, SHRM-SCP SHRM Field Services Director Society for Human Resource Management dorothy.knapp@shrm.org

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Why did she borrow $67,928 for tuition? She did it to work for you.

Now there’s a job benefit that helps your employees pay off their student loans. Gradifi is gratitude.

Learn more at gradifi.com or call 1-844-GRADIFI


2017HRSULEGAL IT 2017 SU IT PRESENTED BY THE SMALL BUSINESS COUNCIL OF THE GREATER MEMPHIS CHAMBER SOME OF THE TOPICS INCLUDED ARE:

Protect your business by finding out what you need to know through these interactive sessions on the latest employment laws and hot topic issues.

The Gig Economy and Employment Laws Trump Administration Outlook • Immigration Update Discrimination & Harassment • Diversity in the Workplace Fair Labor Standards Act

CLE, HRCI and SHRM credits will be available

BREAKFAST KEYNOTE SPEAKER: Philip A. Miscimarra, Chairman of the National Labor Relations Board (NLRB)

Thursday, October 12, 2017 • Memphis Botanic Garden • 750 Cherry Rd, Memphis, TN 38117 • 7:00am - 3:00pm PRESENTED BY THE SMALL BUSINESS COUNCIL OF THE GREATER MEMPHIS CHAMBER Questions? Contact Tunga Lee: tlee@memphischamber.com or 901-543-3571

SOME OF THE TOPICS INCLUDED ARE:

Protect your business by finding out what you need to know through these interactive sessions on the latest employment laws and hot topic issues.

The Gig Economy and Employment Laws Trump Administration Outlook • Immigration Update October 12, 2017 Discrimination & Harassment • Diversity in the Workplace S M A L L B U S I N E SS CO U N C I L CLE, HRCI and SHRM credits Pwill Botanic Garden RE SEbe NTE available D BY TH E GRE AT ER M EM PHIS C HAM B ER Fair LaborMemphis Standards Act SMALL BUSINESS COUNCIL TITLE SPONSORS

SMALL BUSINESS COUNCIL PROGRAM SPONSORS

BREAKFAST KEYNOTE SPEAKER: Philip A. Miscimarra, Chairman of the National Labor Relations Board (NLRB) HR LEGAL SUMMIT SPONSORS

Thursday, October 12, 2017 • Memphis Botanic Garden • 750 Cherry Rd, Memphis, TN 38117 • 7:00am - 3:00pm Questions? Contact Tunga Lee: tlee@memphischamber.com or 901-543-3571

S M A L L B U S I N E SS CO U N C I L

SMALL BUSINESS COUNCIL TITLE SPONSORS

SMALL BUSINESS COUNCIL PROGRAM SPONSORS

P RE SE NTE D BY TH E GRE ATE R ME MP H IS C H AM B ER

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1 Phil Trenary, President and CEO of the Greater Memphis Chamber, welcomed attendees to the Summit. 2 Jeff Weintraub, Regional Managing Partner of the Fisher Phillips Memphis office, was the co-emcee of the event. Jeff also presented, “Sexual Harassment: A Bad Day at Black Rock.” 3 Arnold Perl, attorney with Glankler Brown, introduced the keynote speaker, Philip Miscimarra. 4 Philip Miscimarra, Chairman of the National Labor Relations Board, was the keynote speaker. He discussed the state of the NLRB and held a Q & A session.

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5 & 6 Judy Bell with Judy Bell Consulting, and Austin Baker, President of HRO Partners, were co-emcees of the Summit sessions. 7 Robbin W. Hutton, Partner with FordHarrison, spoke on “Employment Issues for the Gig Economy.” 8 Lisa Lichterman, Shareholder with Littler Mendelson, discussed “FMLA Leaves of Absence.”

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9 Lisa Krupicka, member of Burch, Porter & Johnson, PLLC, presented “Fair Labor Standards Act/Collective Actions.” 10 Bill Cash, Area Director of EEOC Little Rock Area Office, presented, “EEOC’s Preventative Sexual-Harrasment Training.” 11 Latosha Dexter, Deputy University Counsel at University of Memphis, discussed “Pregnancy Discrimination Update.”

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12 David Jones, Partner with Fisher Phillips, provided an immigration update. 13 Imad Abdullah, Associate General Counsel at Regional One Health, spoke on “ADAAA Update.”

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14 “The Trump Effect: The Top Workplace Law Developments and What to Watch for in the Future,” was the topic Kim Hodges, Shareholder with Ogletree Deakins presented. 15 Monica Wharton, Senior Vice President and Chief Legal Officer at Methodist Healthcare, spoke on “Diversity/Females in the Workplace.” 16 Maureen Holland with Holland & Associates, PC, discussed employee discrimination.

www.HRProfessionalsMagazine.com

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How HR Professionals Use Technology to Hire the Best Candidates By S  IMON BOUCHEZ, CEO OF MULTIPOSTING, AN SAP COMPANY

The rise of social recruiting, software and online tools is rapidly changing the HR landscape and how recruiting is done. While there is no single factor that’s driving the rapid pace, finding qualified candidates with the correct skillset for the job is a motivator. However, despite the skills gap in the marketplace, the hiring process has become increasingly competitive in our healthy economy. That means hiring professionals can’t seem to find the candidates with the skills they need to fill a role, while at the same time facing heavy competition for available talent. This is where technology comes in.

Reaching out to more passive candidates could help alleviate the hiring challenge by identifying the needed skills in potential employees. Passive candidates are often interested in learning about open positions, even if they’re not actively looking to leave their jobs. In fact, 89% of talent said being contacted by a hiring professional could prompt them to quickly accept an offer. Using social professional networks helps connect both passive and active candidates with hiring professionals. Research also shows that social professional networks are the #1 source of quality hires, followed by internet job boards and employee referrals.

We’re seeing an increased reliance on social media and an upgrade in HR systems. Overall, hiring professionals are relying on technology to source more candidates, and are using multiple platforms to improve the hiring process. Here’s a breakdown of how HR professionals are using technology to hire the best candidates for the job.

Posting Across Multiple Job Boards Today’s HR professionals are relying heavily on job boards to source talent and manage the hiring process. According to our 2017 Survey of Small Business Hiring Challenges, 78% of HR professionals use online job boards, and 93% post jobs on more than one board.

However, hiring professionals are also struggling to manage the technology they’re using. Seventy-nine percent said they find it challenging to post to multiple job boards. There’s also the question of which job boards to use to find the most qualified candidates for the job. In a saturated marketplace with multiple tools to choose from, 79% of respondents said it’s challenging to identify those ideal job boards.

Finding Qualified Candidates Finding qualified candidates to fill open roles continues to be a challenge for HR professionals. In addition to intense competition for top talent, a skills gap among candidates continues to be a challenge for 84% of HR professionals who participated in the survey. Respondents reported seeing a skills shortage in their applicants when monitoring the issue over a 12-month period.

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Using Social Media in Tandem with Job Postings Posting on multiple job boards isn’t the only way hiring professionals are finding candidates and managing the hiring process. Social media networking is also driving the hiring process as more recruiters are leveraging it in tandem with job boards. Ninety-two percent of hiring professionals surveyed said they used social media platforms during the hiring process. Specifically, 87% of hiring professionals report they use LinkedIn to find more candidates.

Another way social media helps in the recruiting process is by raising brand awareness. According to AdWeek, 74% of hiring professionals are specifically using social networks to attract talent through branding and awareness. However, they're not simply looking at what people are posting on social media. Hiring professionals are also checking to see how long an employee has worked with a company and what mutual connections they share to make an introduction.

Leveraging Software to Help Recruit In addition to an increase in the use of social media tools, hiring professionals are increasingly using software to help in the recruiting process, with research showing there is room for growth in the types of software HR departments may be using. For example, Bersin by Deloitte found that 47% of companies have HR software that is over seven years old.


Automating tasks is appealing to recruiters and hiring professionals looking to alleviate everyday office challenges and stresses. Among those surveyed, 84% wish they had more automation and less paperwork to deal with on an ongoing basis. So it shouldn’t come as a surprise that using HR software has led to a reported improvement over previous methods. Only 48% use any type of specific software: HR, ATS or job posting – and 55% use basic office tools.

Simplifying Recruitment and Hiring with WorkConnect

Upgrading HR software and systems could make a big impact on a business’s bottom line. Companies with newly-upgraded HR systems see cost savings of 22% per employee. HR professionals appear to be taking note and pushing to update their systems. Research from Gartner found spending on cloud-based HR software is growing faster than spending on installed or on-premises HR software. Cloud-based HR software will be 50% or more of total HR technology spending by 2017.

Fortunately, technology providers that specialize in recruitment and hiring have introduced new solutions, services and tools that can help companies meet these goals. With intuitive job posting and candidate management processes, these tools, such as WorkConnect by SAP, reduce the stress of the hiring process. Recruiters can reach multiple job boards, track and manage candidates, and easily collaborate on team feedback, all from a single tool. Using tools that support effective recruiting and efficient applicant management, companies can attract the right talent for the right positions at the right time.

A Focus on Automating Tasks It’s unsurprising that technology is driving trends in human resources, but how it’s being used continues to evolve. As more hiring professionals look to leverage the latest tools or update their HR software and systems, we could see a rise in how it automates the recruiting process and continues to shape the industry. And today’s technology and online tools can now be leveraged affordably, making them more accessible for small businesses, including those that may be exploring HR software for the first time.

### Simon on LinkedIn: https://www.linkedin.com/in/simonbouchez/ Simon on Twitter: @SimonBouchez

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find the right people for your small and midsize business. WorkConnect by SAP helps remove the stress of hiring with easy job posting and candidate management. Post to over 50 industry-leading job boards with just one click. Get started today for as low as $27/month.

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Compliance…. The time is now to re-focus By CAROLYN MCNAIRY

During the past several months, most employers have been concerned about the Affordable Care Act (ACA) and the potential of “repeal, repair or replace.” With the unknowable legislative change, employers must refocus on everyday challenges of other long-existing, unwavering Federal regulations. A business that isn't aware of its HR responsibilities is clearly headed for trouble. The regulators, the DOL, the HHS and the IRS have increased the number of audits to ensure employers are compliant and not violating employees’ rights. In addition to potential fines and penalties imposed by the regulators, employees are awarded hundreds of thousands of dollars through private litigation. Let’s review the top four Compliance issues related to benefits and leave of absence: COBRA, ERISA, HIPAA, and FMLA. COBRA: The Consolidated Omnibus Budget Reconciliation Act of 1985 COBRA applies to employers with 20 or more employees working more than 50 percent of the typical business days of the previous calendar year. COBRA requires employers to provide eligible employees and their dependents(who would otherwise lose group health coverage as a result of a qualifying event) with an opportunity to continue their group health coverage, including any medical, dental and vision coverage; FSA, HRA, Wellness and EAP programs. COBRA requires a number of notices/disclosures, such as: - Initial/General COBRA Notice - Notice to Plan Administrator - COBRA Election Notice - Notice of Unavailability of COBRA - Notice of Early Termination of COBRA - Notice of Insufficient Payment - Premium Change Notice PENALTIES FOR VIOLATION • IRS imposed excise tax penalties of $100 per day ($200 if affecting more than one family member) • Statutory penalties of up to $112 per day under the Employee Retirement Income Security Act (ERISA).

ERISA: The Employee Retirement Income Security Act of 1974 ERISA applies to all private sector employers offering health and welfare benefit plans to employees (including group health plans) unless specifically exempted. Church and government plans are not subject to ERISA. There is not an exception for small employers... 14

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ERISA imposes a variety of compliance obligations on the sponsors and administrators of group health plans. For example, ERISA establishes strict fiduciary duty standards for individuals operating and managing employee benefit plans and requires that plans create and follow claims and appeals procedures. ERISA document and disclosure requirements: - SPD - SMM - SAR (if form 5500 required) - Plan documents (must also be furnished to participants within 30 days of written request) - Notices (some are annual, others event drive) PENALTIES FOR VIOLATION • Statutory penalties: Can range from $112 to $2097 per day • Criminal penalties: Individuals may now be fined up to $100,000 and jailed up to 10 years, and companies may face up to $500,000 in fines for ERISA violations.

- or information for which there is a reasonable basis to believe could be used to identify the patient. PENALTIES FOR VIOLATION • Under the Privacy Rule, falling victim to a healthcare data breach, as well as failing to give patient’s access to their PHI, could result in a fine from OCR. The minimum penalty for: - Unknowingly violating HIPAA is $100 per violation. - Reasonable cause for violating HIPAA is $1,000 per violation. - Willful neglect of HIPAA, but the violation is corrected within a given time period, is $10,000 per violation. - Willful neglect of HIPAA, and the violation remains uncorrected, is $50,000 per violation. The maximum penalty for all of these is $50,000 per violation, with an annual maximum of $1.5 million for repeat violations. Covered entities and individuals who intentionally obtain or disclose PHI in violation of the HIPAA Privacy Rule can be fined up to $50,000 and receive up to one year in prison. If the HIPAA Privacy Rule is violated under false pretenses, the penalties can be increased to a $100,000 fine and up to 10 years in prison.

ERISA form 5500 requirements:

FMLA: The Family and Medical Leave Act of 1993

Applies to plan administrators of ERISA plans, unless exempted. Small health plans (those with fewer than 100 participants) that are fully-insured, unfunded or a combination of fully-insured and unfunded, are exempt from the Form 5500 filing requirement.

FMLA applies to private sector employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, as well as all public agencies and all public and private elementary and secondary schools.

HIPAA: The Health Insurance Portability and Accountability Act of 1996 The HIPAA Privacy and Security Rules apply to health plans, health care clearinghouses and health care providers that transmit health information electronically (covered entities), unless an exception exists. The rules also apply to business associates (service providers to covered entities) that use protected health information (PHI). A self-funded health plan with fewer than 50 participants that is administered by the employer that established and maintains the plan, is exempt. Plans include, medical, dental, vision, FSA, HRA, Wellness and EAP programs. The HIPAA Privacy Rule governs the use and disclosure of an individual’s PHI. The HIPAA Security Rule creates standards with respect to the protection of electronic PHI. What is considered protected health information under HIPAA? PHI includes: - a patient's name, address, birth date and Social Security number; - an individual's physical or mental health condition; - any care provided to an individual; or - information concerning the payment for the care provided to the individual that identifies the patient,

Carolyn McNairy, Compliance Services Vice-President TASC Online carolynm@tasconline.com www.tasconline.com

The FMLA provides eligible employees with job-protected leave for certain family and medical reasons. An employer must maintain group health coverage during the FMLA leave at the level and under the conditions that coverage would have been provided if the employee had not taken leave. The FMLA requires employers to provide the following notices/disclosures: - General Notice - Eligibility/Rights and Responsibilities Notice - Designation Notice PENALTIES FOR VIOLATION • Failure to post can result in fines of about $100. • employer may also be liable for costs related to seeking reinstatement – including lawyer bills

Employers must post a written notice of employee rights under the FMLA in a conspicuous place and near where other such notices are posted. According to the Department of Labor, "The FMLA also gives employees the right to file a complaint with the Wage and Hour Division, file a private lawsuit under the act (or cause a complaint or lawsuit to be filed), and testify or cooperate in other ways with an investigation or lawsuit without being fired or discriminated against in any other manner”. Management employees can be personally held accountable for FMLA violation. These are four of the most costly federal regulations to employers. Statistics show that of all the employers subject to these regulations, the majority are non-compliant in one or more areas. The time is now as we approach a new year to review your internal procedures and consider outsourcing. If you think the cost of compliance is too expensive . . .try non-compliance.


Don’t Get Trapped in the Compliance Maze Many HR professionals get lost trying to follow and complete the maze of federal regulations for employee benefits and risk getting hit with penalties and fines. TASC is here to help. Our compliance experts understand the rules and regulations of Health and Welfare laws to ensure compliance for your benefits...so you don’t have to.

Avoid the compliance maze and risk of penalties. Choose TASC. Contact us today:

1.888.595.2261

salesinfo@tasconline.com


EEOC MUST RECONSIDER WELLNESS RULES BY MARY CELESTE MOFFATT

Wellness plans have become increasingly popular and as such they have increasingly become the focus of several governmental agencies regarding compliance issues. Wellness programs often involve collection of employee medical information which falls under the purview of the Americans with Disabilities Act (ADA) and the Genetic Information Non-discrimination Act (GINA). Therefore, the Equal Employment Opportunity Commission (EEOC), (which oversees enforcement of the ADA and GINA), has some authority regarding wellness plan compliance. In 2016, the EEOC issued Final Regulations regarding wellness plans as they relate to: (1) the GINA; and (2) the ADA. The Final Regulations were applicable to employersponsored wellness programs as of the first day of the first plan year that began on or after January 1, 2017.

In October 2016, the American Association of Retired Persons (AARP) filed suit in the United States District Court for the District of Columbia against the EEOC, alleging that portions of the Final Regulations violated the ADA and the GINA. In addition, the AARP's Complaint asked the Court to vacate portions of the Final Regulations and to issue a preliminary injunction to stay the applicability date of January 1, 2017 until resolution of the pending case. Without getting too deep into the weeds on this very complex case and subject matter, in December of 2016, the District Court denied AARP's motion for a preliminary injunction and the Final Regulations became applicable on January 1, 2017. In March of 2017, the EEOC filed a Motion to Dismiss (alleging lack of standing) or in the Alternative for Summary Judgment. Shortly thereafter, the AARP filed a Response in Opposition to the EEOC's Motions and a Cross Motion for Summary Judgment. In an Order issued on August 22, 2017, the District Court found the AARP has associational standing on behalf of its members and the Court then turned to consideration of the competing Motions for Summary Judgment. But first, a little background…. Readers will recall that wellness plans offered as part of a group health plan are regulated in part by the Health Insurance Portability and Accountability Act (HIPAA) and the Affordable Care Act (ACA), which permit a covered entity to offer a participant premium discounts or rebates on copayments and/or deductibles in return for the participant's compliance with a wellness program. 29 U.S.C. Section 1182(b)(2)(B); 26 U.S.C. Section 9802(b); 42 U.S.C. Section 300gg-4(b). A full discussion of the applicable laws and regulations regarding incentive limits and wellness plan compliance is beyond the scope of this article; however, very generally, the ACA allows up to 30% of the cost of coverage as an

Wellness plans, like their human participants, come in a variety of shapes and sizes. 16

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incentive for the employee's participation in a healthcontingent wellness program. (Note: smoking cessation and tobacco-related plans may be permitted to offer incentives up to 50% of the cost of self-only coverage, depending on the nature of incentive; however, this is not at issue in the AARP v. EEOC case.) Wellness plans, like their human participants, come in a variety of shapes and sizes. For example, a “health-contingent, outcome based wellness program” requires an individual to satisfy a standard related to a health factor in order to obtain a reward. In contrast, a "participatory only wellness program” may either not provide a reward or not include any conditions for obtaining a reward based on an individual satisfying a standard that is related to a health factor. In addition, wellness programs may (but are not required to) be related to a group health plan either by limiting the program only to health plan participants, or relating the reward to the health plan, such as a premium incentive for participation. There are some, but very few restrictions on participation-only programs; for example, such programs must be made available to all similarly situated individuals. In contrast, healthcontingent wellness programs are more regulated, and, for example, must comply with the non-discrimination guidelines under applicable regulations. The more it is tied to a group health plan and to a particular healthrelated outcome, the more a wellness program will be subject to regulation. Sponsors of wellness programs should review the terms with legal counsel to ensure compliance with the applicable statutes and regulations, as well as assessment of whether incentives offered may be taxable. Both the ADA [42 U.S.C. §12112(d)(4)(B)] and the GINA [42 U.S.C. §2000ff-1(b)] limit the ability of employers to obtain medical and/or genetic information and restrict the employer's use of such information, but both allow the collection of such information when it is part of an employee health program, benefit plan, or wellness program and (along with other requirements) that the employee's participation in the program is "voluntary" -- but neither statute defines the term "voluntary." In the Final Regulations, the EEOC addressed the permissible amount of the incentive employers could use to encourage employees to participate in a wellness program, concluding that a financial penalty or incentive could not exceed 30% of the cost of self-only coverage in order for the plan to be considered "voluntary." Specifically, the Final Regulations under the ADA provide that an employer's use of incentives … in employee wellness programs whether in the form of a reward or penalty, will not render the program involuntary if the maximum allowable incentive available under the program … does not exceed … 30% of the total cost of self-only coverage. 29 C.F.R. §1630.14 (d)(3). The Final Regulations under GINA also adopted the 30% maximum inducement for the employee's spouse to provide information about current or past health status.


The incentive level is only one part of the voluntariness requirement. Among other requirements, the EEOC makes clear that wellness programs must be "reasonably designed to promote health or prevent disease" and if the program exists merely "to shift costs from an employer to employees based on their health" it will not be considered to be reasonably designed. In its Motion for Summary Judgment, the AARP argued the EEOC failed to explain (1) its departure from previous EEOC policy regarding incentives, (2) its choice of the 30% incentive level, and (3) its exemption of spousal medical history from GINA's protections. The AARP alleged the 30% level is inconsistent with the term "voluntary" as used in the ADA and GINA because employees will be forced to participate in order to avoid the 30% penalty and, thus, forced to disclose their protected information when they might otherwise choose not to do so. The AARP also asserted that the penalties/incentives would take a "particularly heavy toll" on older workers, who are more likely to have less-visible disabilities and thus are at risk of exposure to discrimination through non-job-related medical inquiries and exams. In response, the EEOC contended that the 30% incentive level (1) was used to "harmonize its regulations with HIPAA," (2) is consistent with "current insurance rates," and (3) is based on comment letters submitted to the proposed regulations. In its Order and 36-page Memorandum Opinion issued on August 22, 2017, the Court thoroughly analyzed but ultimately rejected all of the EEOC's arguments, concluding that the agencies' decisions in the Final Regulations were "arbitrary and capricious," in that the EEOC had failed to provide a "reasoned explanation" for those decisions. The Court did not vacate the Final Regulations in order to avoid "disruptive consequences," but remanded the Final Regulations to the EEOC for reconsideration. The Court further ordered the EEOC to file a status report regarding its review by September 21, 2017.

On August 30, 2017, the AARP filed a Rule 59(e) Motion to Alter or Amend the Order, which included a request that the Court reconsider its decision against vacating the Final Regulations. On September 11, the EEOC filed a response to the AARP's Rule 59(e) Motion, arguing that the Final Regulations were relied upon in design of 2018 health plans so that "to pull the rug out ‌ at this late date would be manifestly unfair." As of the submission of this article to print, the Court has not ruled on AARP's Rule 59(e) Motion. Despite the Court's August 22 ruling, at present, the Final Regulations are still applicable. However, wellness plan sponsors are advised to stay tuned because of the potential for developments as a result of the Court's August 22 decision. In the future days, we will be assessing (a) the Court's decision on the AARP's pending Rule 59(e) Motion, (b) the EEOC's status and schedule report to be submitted by September 21, 2017; (c) the results of the EEOC's reconsideration of its Final Regulations, pursuant to the Court's remanding of those Regulations to the agency; and (d) of course, whether the EEOC decides to appeal the August 22 decision. (U.S.D.C., Dist. Columbia, 1:16-cv-02113; AARP v. EEOC).

Mary Celeste Mofatt, Attorney Member, Morristown office Wimberly Lawson Wright Daves & Jones, PLLC mmoffatt@wimberlylawson.com

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Little Rock | September 14-15

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1 (L-R) Jill Hilton, SHRM-SCP, SPHR, Chair of the 2017 ARSHRM Employment Law and Legislative Affairs Conference, and Cathleen Hoffman, SHRM-SCP, SPHR, Director of ARSHRM State Council. 2 Arkansas Governor Asa Hutchinson was the opening keynote speaker.

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PRESENTING SPONSOR 3 2017 ARSHRM ELLA Conference Committee with Governor Hutchison 4 Mike Aitken, SHRM VP of Government Affairs, presented “The Washington Outlook.”

September 14-15, 2017 • Little Rock, Arkansas • ELLA.ARSHRM.com

5 5 Thomas Dunlap, SHRM-SCP, PHR, ARSHRM Government Affairs Director 6 (L-R) Thomas Dunlap, Wayne Young, Steve Schulte. Wayne is the recipient of the 2017 Russell Gunter Legislative Award. 18

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7 Sheila Moss, SHRM-SCP, SPHR, 2017 ARSHRM Conference Committee 8 (L-R) Cindy Kolb and Jess Sweere, attorneys with Cross, Gunter, Witherspoon & Galchus, PC, accepted the SHRM When Work Works Award for the sixth consecutive year. Donna Merriweather, SPHR, is Director-Elect of ARSHRM.

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9 Debra Finney presented “What’s New at the EEOC.” 10 Stuart Jackson and Erika Gee, attorneys with Wright Lindsey Jennings, presented “Preparing the Workplace for Medical Marijuana.” 11 Bruce Cross, Attorney with Cross, Gunter, Witherspoon & Galchus, PC, presented an update on the NLRB.

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12 Kelly Majdan spoke on regulations, retirement and generations. 13 Mark Malcolm and Joey Sylvester were the luncheon speakers. They spoke on workplace violence.

14 14 Attendees at the 2017 ARSHRM ELLA Conference www.HRProfessionalsMagazine.com

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Let’s Talk Turkey About

Background Screening By SEAN DRYDEN

Once we roll into the fourth quarter, HR professionals know the holidays are just around the corner. Extra time off, good food, and time with family are all at the top of our year-end list of things to do. The end of the year is also a time that businesses need to review their set business practices and make sure they have the best hiring system possible going into the New Year. Failing to do this puts the organization at risk because outdated or incomplete policies, or processes that are not in compliance with new legislation can pose costly risk. These oversights open companies up to missing the best job candidates, as well as costly litigation if their hiring process is faulty or unfair. This should include reviewing and revamping your background screening policy. HR professionals must evaluate these five questions for background screening to be effective:

applicant. It also sets your company up to be liable in discrimination lawsuits. Decide who you want to screen, what you need to know about each job applicant, and which tests or verifications you will order on each person. Develop a written policy that outlines this plan, and train every employee involved in your hiring process on the importance of using it consistently.

B. Be suspicious. It’s a cold hard fact that about half of all resumes and job applications contain a mistruth. They can range from lying about a criminal history to fudging dates of employment to creating fictitious references. Don’t assume you can sniff out exaggerations, or complete whoppers, just by interviewing the person. Look at resumes with a critical eye and verify all the information that that is relevant to the position.

1: Is our background screening policy telling us what we need to know?

Speaking of relevance…

2: Is the process structured to fit the job the applicant is being screened to fill?

C. Make it relevant.

3: Does the test provide protection against hires that may be unqualified, unfit, or violent? 4: Have we made sure it is fair and does not discriminate? 5: Do we have measures in place that follow the regulations the FCRA and our state and local laws demand? So, let’s talk turkey about your background screening policy and procedures! Follow these guidelines to improve your pre-employment screening policy going into the new year:

A: Be consistent. Haphazardly screening job candidates based of a “gut feeling” or how much time you have is not going to give you a clear picture of every 20

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Consistency is vital, but not every position in the company needs to be screened in the same manner. A person who is applying as a heavy machinery driver may not need a credit check, but he would need a Motor Vehicle Records check and a drug test. On the other hand, a top-level executive may very well need a credit check, along with an in-depth reference check and thorough employment verification. Setting definitive perimeters in place for each position in your company goes a long way toward maintaining practices that are not discriminatory and protecting the workplace.

D: Make it complete. The cost of hiring the wrong person and then letting them go is conservatively estimated at 25% of their annual salary. This doesn’t even add in the damage an unqualified person

could potentially do to your relationships with your customers and vendors, the morale of your top-performing employees, and your brand’s reputation. The bit of extra time it takes to conduct a comprehensive background check and verify all their information can be a big return on investment in protecting the company from a bad hire.

E. Make it accurate. Screening a person’s background is not an exact science. Remember, the information retrieved on the candidate is only as accurate as the person who found it for you. Do not try to have someone in your office perform the background check. Hiring an experienced background screening company to handle this for you should be a top priority in establishing an effective policy. Choose a company that has been in business a long time, that is accredited by the National Association of Professional Background Screeners (NAPBS), and that has licensed private investigators on staff.

F. Be compliant Many states and cities are enacting individual laws and regulations that govern hiring. Make sure you are well-educated on your state’s laws. Follow any ban-the-box regulations and limitations on using salary history and credit reports as part of the hiring process. Also know how to handle the situation if information is returned from the background check that causes you to not hire the potential candidate. Sending out a pre-adverse action letter, giving the applicant a chance to tell his or her side of the story, and then, after a decent period of time, following up with a final adverse action letter is crucial in maintaining a compliant, lawful hiring process. Follow this plan every single time. The take away here is an effective pre-employment screening policy is an integral part of a safe and successful hiring process. It’s important to have a set standard in place, and revisit the policy periodically to maintain its positive impact on the workplace. A set background screening policy is a strong stepping-stone toward a safe and secure workplace. And THAT is a big reason to be thankful! Gobble! Gobble!

Sean Dryden National Account Executive sdryden@datafacts.com www.datafacts.com


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Finding the Perfect Holiday Gift for Employees The Holiday Gift Check Program unlocks the mystery of choosing a universally loved employee gift. By KAREN DIX

hen it comes to selecting the best holiday gifts for your employees, the old adage “you can’t please everyone” comes to mind. A token of appreciation often ends up unappreciated in a desk drawer, while a gift card from a store may not suit the employee’s shopping taste. Holiday parties are a wonderful gesture but may feel more like an obligation than a reward in the middle of a busy holiday season. Cold, hard cash is one of the few gifts that everyone likes but is often perceived as it is described—a cold, hard gesture that took little thought to acquire and is taxable as well! Finding something personal and meaningful can be a challenge.

As with any e-commerce product, customer service is key. For the Holiday Gift Check Program, all customer service is based in their corporate office in Illinois. The gift checks are especially popular in industries where shift work keeps employees from their families on the holidays such as: • Manufacturing • Hospitality • Tourist Attractions • Trucking and Logistics • Retail

Most human resource professionals are seeking to solve their main problems associated with holiday corporate gifting: affordability, convenience and meaningful relevance.

“The Holiday Gift Check Program is the perfect solution to my company’s needs during the holiday season. We are able to order gift checks and have them delivered directly to our customers,” said Dia of ReVo Marketing. “I have never encountered any issues and they are a great asset to any company that relies on quick, friendly service,” she said.

Gifting in a Meaningful Way

Gifting without Breaking the Bank

Based in Downers Grove, Illinois just outside of Chicago, the Holiday Gift Check Program pioneered the turkey gift check idea in 1989. It offered a convenient way for companies to thank employees and customers with the gift of a turkey, without the hassle and expense of storing and delivering frozen ones.

• A universal gift, appreciated by all and redeemable at thousands of supermarkets as well as HoneyBaked Ham stores nationwide

Initially, the company was named after a well-known turkey brand and customers could only place orders through mail-in forms. As customers asked for more flexibility in the redemption of the checks, the company changed the former name to the Holiday Gift Check Program and made the checks available for redemption of any brand turkey, ham or festive side dishes for a holiday meal. The gift checks quickly spread in nationwide popularity as an easy, cost effective way for an employer to contribute meaningfully to a special holiday meal with family and friends.

• Available in amounts up to $50, with only a .90/ check fee; “leftover” checks can be refunded at full face value for no fee.

The classic tale “A Christmas Carol” ends with the miser Ebenezer Scrooge gifting a beautiful turkey to the struggling Cratchit family, a touching, caring gesture that is at once generous, meaningful and appreciated. In days past, this was a common “go to” for employers, who would gift their employees with a frozen turkey for the holidays. The gesture is alive and well today, through a different, more modern delivery device known as the Holiday Gift Check Program.

Convenience is Key

Today the Holiday Gift Check Program continues to evolve to meet their customer’s needs. Last year, they added online ordering, with the flexibility to pay by credit card, invoice or wire transfer. They offer expedited and overnight shipping of the turkey gift checks to ensure delivery that is always on time for the holidays. The gift checks are also customizable online and can include a company name, the original thank you message, as well as the employee’s name. New this year is an exciting redemption relationship with HoneyBaked Ham, so the gift checks can be used at more than 400 of their stores nationwide. Byron Duncan, Director of Sales at HoneyBaked Ham, sees partnership with Holiday Gift Check Program as a way to take part in a nostalgic holiday tradition, while increasing exposure to their product. “HoneyBaked Ham has always been a staple at meaningful family meals so it made perfect sense to partner with a company equally dedicated to helping people celebrate good food, friends and family,” he said. 22

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The continuing loyalty of the Holiday Gift Check Program’s customers is due to many things, but particularly the affordability, ease and excellent customer-focus. The company has taken steps to make giving as simple and as affordable as possible for the human resources director. Gift checks are:

• Perfect for all employees to choose a turkey, ham or festive grocery item for a holiday meal

• Customizable with the employee’s name, easily uploaded from a spreadsheet • Expedited and overnight shipping Because of the program’s flexibility, the checks are ordered by the smallest company to Fortune 500 ones. Since its inception, the Holiday Gift Check Program has distributed more than six million gift checks to more than 300,000 companies throughout the United States. Canadian checks are also available. The key to the success of the gift checks is that it taps into the trifecta of meaningful relevance, convenience and affordability for human resources departments. If you are interested in the Holiday Gift Check Program, it’s not too late. Place your order at www.giftcheckprogram.com or call 630.986.5081.


A Night of Excellence…Celebrating the Stars of HR !! Join SHRM-Memphis as we honor the best and the brightest in HR at the

2017 SHRM-Memphis HR Excellence Awards Tuesday, November 14, 2017 Memphis Bioworks Foundation 20 South Dudley Street 5:30 – 8:00 pm

A gala evening of celebration, recognizing the 2017 nominees and winners of the following: George Mabon HR Executive of the Year Award HR Emerging Leader Award Memphis HR Champion Award HR Lifetime Achievement Award HR Student of the Year Award Registration is now open…tickets are only $50 through November 6! To register, please visit the SHRM-Memphis Website at www.shrm-memphis.org.

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Open Enrollment: Using Nobel Prize Winning Research to “Nudge” Working Americans - Part I By AUSTIN BAKER

Richard Thaler just won the 2017 Nobel Prize for Economics for his work in behavioral economics, which breaks the notion of people as rational actors in economic equations and “humanizes” market forces in many ways. This work brings some interesting perspectives for this year’s open enrollment season. We will come back to this and how it relates soon, but for now, let’s talk about what is in front of us as HR Professionals.

It’s that season again… HR department’s favorite time of year… open enrollment. The most common question we get from employees is usually in a somber, droning voice, asking “What changed and how much this year?” Many times, HR departments are looking to take the path of least resistance to try and minimize excess strain on an already strained department. Our team; After sitting down with thousands of employees found that both employers and employees are missing out on one of the best opportunities, for quality interaction that they have all year. For employers, open enrollment is an opportunity to roll out new innovative benefits, drive additional engagement, boost satisfaction and even accomplish other tasks such as cleaning up employee data, rolling out new HR technology, and shaping behavior relating to benefit utilization. For employees, it is an opportunity to make sure that they are still protecting their families and getting the most out of their benefits program. It is a chance for the majority of working Americans to take a pause and assess their changing life needs. The challenge is helping employees make informed decisions about one of the more complex and contingency based areas of their personal planning. For the majority of employees, their employer benefit offerings represent the only financial and insurance safety net that they have. Far too many employees do not even know what questions to ask as it relates to their benefits offerings, they often turn to the person next to them to ask “What did you do”, or they take it home and relegate the task to a spouse, or who is most likely not trained to ask the right questions either. Needs are changing and the financial stability of many employees is not getting better. Higher education costs are soaring, leaving younger workers strapped with significant debt and older workers struggling to help fund their children’s education. Elder care costs are putting financial, emotional and time a variety of age Younger workers are placing a highera time strains strainsononemployees employeesin in a variety of groups. age groups. Younger workers are placing premium on flexibility and paternity benefits.benefits. All the while, of drivenofplans continues to higher premium on flexibility and paternity All theadoption while, adoption consumer driven grow, thegrow, financial hurdle the to access sometimes even basicsometimes care. Many employees stillMany can’t plans increasing continues to increasing financial hurdle to access even basic care. afford an unexpected $500 an bill.unexpected $500 bill. employees still can’t afford The social contract for work has also evolved, increasing turnover among employers, not just for millennials. New data is showing that generation X and boomers are transitioning even more than ever before as the competition for talent is increasing. The most innovative companies are leading the way in introducing new benefits, benefits, both both employer-paid employer-paid and and voluntary. voluntary. Page of benefits communications material will be produced. administration Page after afterpagepage of benefits communications material will beBenefits produced. Benefits technology and communications portals will be updated Other print email commuadministration technology and communications portalsand willbuilt. be updated and and built. Other print nications will be deployed. Yet many surveys Yet show that surveys only 35% employees are and email materials communications materials will be deployed. many showof that only 35% extremely satisfied their benefits. how do benefits. employersSoand advisors use openand enrollment of employees are with extremely satisfied So with their how do employers advisors asusea time meet working whereworking they are and engage them appreciating trulythem underopentoenrollment as aAmericans time to meet Americans whereinthey are and and engage in standing theirand options? appreciating truly under-standing their options? This is where Thaler’s work comes into play for us HR Professionals. I picked up my dusty copy 24 24

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of “Nudge”, a 2008 best seller co-authored by Thaler. The Royal Swedish Academy of Sciences, which is by all accounts a very smart group of people, reviewed the work and claimed that, “Nudge has built a bridge between the economic and psychological analysis of individual decision making.” I think they just described what happens in Open Enrollment. This policy is also credited with clearing the way for negative enrollment into 401(k) plans. So, let’s break this down a bit. Thaler’s body of work includes insights on the ways in which limited rationality, social preferences and a lack of self-control affect decisions that shape market outcomes. (Sounds like some employees that HR professionals have stories on…) Part One of this article will talk about a key area as it relates to strategies for this year’s Open Enrollment, Biases and Blunders. Part 2 will go deeper on the others including: • • Resisting Temptation • • Following the Herd • • Saving for Tomorrow

Part 1: Biases and Blunders: Anchoring We can use decision science to help put different decisions at eye level. For instance, “Anchoring” a medical plan choice as a base plan and placing a couple of other choices in front of employees that are smartly designed can influence which medical plan employees choose. This can produce intended and unintended consequences which can increase or decrease satisfaction. Helping employees ask a few questions to “carrot” them into more consumer driven plans coupled with decisions science can positively impact outcomes for your enrollment.


Availability Another strategy that we can pull from Thaler’s work is around Availability Biases as it relates to guaranteedissue products; these are products designed to be extremely affordable options to create safety nets for major medical expenses. Communications around these opportunities should be targeted and limited. One mistake we see is offering too many of these, which results in fewer decisions being made, because it is simply too much to process. So, too much availability can be a bad thing. Optimism and Overconfidence Everyone thinks they are an above average driver, right? One force that, these strategies are always fighting is optimism and overconfidence as it relates to employees perceived risks which are often uninformed. Specific year-round communications can help overcome this. Fear of Loss and Framing The last two biases relate to Fear of Loss and Framing. When eliminating options, framing the alternatives in the right light is always key to success. On their own, these two biases hold enough sway over our human psyches. I have always said that people will fight twice as hard to keep something that they have rather than going after something new, and this is absolutely true. So, structuring options during passive enrollment situations is important. Default options really matter. Framing changes to keep employees informed and not feeling manipulated is also key to success. What if your doctor says, "Out of one hundred patients who have this operation, ninety are alive after five years," now compare that with "Out of one hundred patients who have this operation, ten are dead after five years". For Part 2 we will go deeper on the other concepts, but in the meantime, try some of these tactics in your open enrollment. Consider hiring a firm with professional benefit communications and counseling experience. People are nudge-able and we can use these tactics to help make sure that working Americans are not left behind in this year’s open enrollment process.

Austin Baker ABOUT THE AUTHOR Austin Baker is the President of HRO Partners a Human Resources Consulting, Managed Services and Technology Firm with an emphasis in Benefit Administration and Enrollment. HRO Partners is a fast-growing provider of Benefit Enrollment Solution that works with many strategic vendor partners. In the past year HRO Partners has saved their clients over 220 Million with their innovative benefit strategies and managed services deployments. Their team boasts more than a 96% average satisfaction score with employees and their clients. 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, http://www.linkedin.com/in/jaustinbaker or http://twitter.com/jaustinbaker

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Simplifying the Transition to a Self-Funded Health Plan By ALEX GRAMLING

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or employers with fully-insured health plans, 2017 has likely been defined by the severity of their health plan renewal. Perhaps the stars aligned and they were dealt a single digit or flat renewal, but chances are they faced a substantially greater challenge. Unfortunately for fully-insured plans, this annual tribulation represents the norm, not the exception. For organizations who consistently struggle with health plan renewals, considering a self-funded strategy could serve as a way to mitigate an otherwise painful process. Small and mid-size employers may be wary of self-funding a volatile risk such as medical claims. However, a series of a few simple steps, and the experience of a knowledgeable consultant, can place organizations in a position to set up a self-funded approach that reaps the benefits while minimizing the potential drawbacks.

Who Should Consider Self-Funding? Conventional wisdom has generally suggested self-funding to employers with a minimum of 200 employees. Despite Kaiser Family Foundation research showing increased prevalence of self-funding since the turn of the century, there still remains a significant adoption gulf depending on the size of the employer. Case in point - only 15 percent of employers with less than 200 workers reported having a self-funded plan in 2017, as compared to 47 percent of employers in the 200-500 employee category, and as much as 88 percent of employers in the 5000+ category. While greater member count is obviously an advantageous quality from a risk-pooling perspective, there is no overarching rule which precludes smaller plans from exploring this route. The lack of size simply places additional scrutiny on proper setup and strategy.

What Are Some of the Benefits of a Self-Funded Health Plan? • Eliminates insurance carrier profit/risk charges • Eliminates state premium tax and the ACA’s Insurer’s Tax • Improved cash flow as claims’ payments are made as they are presented, rather than fully pre-funded as in an insured contract • Exemptions from state-mandated benefits as self-funded health plans are regulated by ERISA • Customization of the benefits package and stop-loss levels to meet the employer’s needs • Additional vendor opportunities as self-funded plans can be administered by both fully-insured insurance carriers and by third-party administrators At the end of the day, the elimination of these percentage-based fees and taxes can represent substantial cost savings, while the enhanced flexibility of a self-funded design places employers back in the driver’s seat of their health plan. 26

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What Are Some of the Potential Pitfalls? • Subjection to greater scrutiny that comes with fiduciary responsibility • An additional assumption of risk as the employer is liable for expenses up to the stop-loss deductible • Less predictable monthly budget as the outlay fluctuates as claims are paid • The administration of a self-funded plan is generally more complex than a fully-insured plan To some employers, these pitfalls may seem like glaring detractions, but a good advisor will have the expertise to mitigate these drawbacks through proper stop-loss structure, sound plan setup and detailed guidance around efficient administrative processes.

Simple Keys to a Strong Self-Funding Evaluation

 Choose a knowledgeable and experienced consultant.

A seasoned consultant will ask probing questions about topics ranging from risk appetite and cash flow constraints to benefit plan participation and long-term direction. More importantly, the consultant should be able to clearly articulate the stop-loss coverage types, contract basis, deductible levels and any additional options they would recommend.

 Collect data from the latest three plans, at minimum.

This should include a review of high cost claimants to identify any persistent risks. This data collection should include the enrollment and claim figures necessary to establish a baseline comparison versus the exposure shown in any stop-loss proposals.

 Be sure to know where members are located and fully

evaluate the administrator and network which will be utilized. Not all networks are created equal and improved discounts will pass to the bottom line of the health plan’s financials.

 Most employers, unless very large, should look to

purchase both individual specific stop-loss coverage (protection against individual catastrophic claimants) and aggregate coverage (protection against total claims reaching a specified threshold). Stop-loss will make or break a self-funded experience so a careful review is in order. The change of a date here or a word there can have substantial effects on the risk exposure.

Ultimately, self-funding may or may not be the optimal solution, depending on the needs and constraints of the business. However, shying away from the topic due simply to the additional complexity, new types of risks or unknown vocabulary means leaving a viable strategy unexplored. Employers who are tired of the same song and dance every year at their fully-insured renewal should take this opportunity to demystify the realm of self-funding and add another option to their long-term planning portfolio.

Alex Gramling Key Relationship Manager Regions Insurance, Inc. Alex.Gramling@Regions.com


Do employee benefit laws remind you of alphabet soup? Regions Insurance is here to provide meaningful solutions that best support your organization’s goals. Our employee benefit advisors and law-trained professionals can help develop the right plan of action and break down all the confusing laws and regulatory acronyms so you’re not left staring at a bowl of alphabet soup.

Tom Hayes Employee Benefits Practice Leader tom.hayes@regions.com 479-684-5259 www.regionsinsurance.com

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The EEOC relied primarily upon its responsibility for enforcing the law as the basis for its interest. The Equal Employment Opportunity Commission is the primary agency charged by Congress with interpreting and enforcing Title VII of the Civil Rights Act of 1964… In furtherance of its strong interest in the interpretation of the federal anti-discrimination employment law… the EEOC offers its views to the Court.

DOJ and EEOC Disagree on Title VII and Sexual Orientation By TIM PALMER

Abraham Lincoln famously declared “a house divided against itself cannot stand.” That truism is no less politically sound today than it was in Lincoln’s time. Unfortunately, the federal government’s current position on whether sexual orientation discrimination is prohibited by Title VII of the Civil Rights Act can only be described as a house divided. On September 26, 2017 the United States Court of Appeals for the Second Circuit, seated en banc in Manhattan, heard oral arguments in the case of Zarda v. Altitude Express. Mr. Zarda filed suit claiming he was illegally fired from his job as a skydiving instructor because he was gay. The lower court held that Title VII does not prohibit discrimination based on sexual orientation and dismissed that portion of his claim. In keeping with established precedent, a three judge panel of the Second Circuit Court of Appeals affirmed that dismissal. However, the full court of appeals decided to review the issue. The Department of Justice appearing at the oral argument on behalf of the United States argued in favor of dismissing the claim. The Equal Employment Opportunity Commission appearing in support of Mr. Zarda argued in favor of reversing the dismissal. The Federal Government is on Both Sides of the Case During oral argument before the full court, Judge Rosemary Pooler inquired of the EEOC how the agency came to adopt its current position on the issue. Prior to 2015, the EEOC had been very clear that sexual orientation itself was not protected by Title VII. In response to Judge Pooler’s inquiry, the EEOC lawyer said the agency decided to take a “fresh look” at the issue after recent Supreme Court rulings and comments from the public. Judge Pooler followed up by asking whether the EEOC also obtained input from the Department of Justice, but the EEOC lawyer was not aware whether the agency had. “It’s a little bit awkward for us to have the federal government on both sides of the case,” Judge Pooler said. “Indeed your honor” was the EEOC’s only reply. A comparison of the opposing arguments advanced by the Department of Justice and the EEOC in their briefs demonstrates just how deep the divide on this issue is, starting with a turf war over who speaks for the government. The Department of Justice’s brief made the Attorney General’s interest clear (citations in the parties’ brief excerpts have been omitted). The United States, through the Attorney General, enforces Title VII against state or local government employers and the United States is also subject to Title VII in its capacity as the Nation’s largest employer… Although the Equal Employment Opportunity Commission (EEOC) enforces Title VII against private employers, and it has filed an amicus brief in support of the employee here, the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade. 28

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The Arguments of the Justice Department and the EEOC are Polar Opposites The two sides’ views of the issue could not be more at odds. The Department of Justice argues that decades of precedent and Congress’s steadfast refusal to amend Title VII to include protections against sexual orientation discrimination support its conclusion that the question should be decided by the legislative branch – not the judiciary. The Department’s brief states as follows, As the Courts of Appeals and the EEOC had long interpreted Title VII until recently, when Congress prohibited sex discrimination, it did not also prohibit sexual orientation discrimination. * * * To be sure, there have since been notable changes in societal and cultural attitudes about such discrimination, but Congress has consistently declined to amend Title VII in light of those changes, despite having been repeatedly presented with opportunities to do so. . . [T]he Supreme Court has resoundingly reaffirmed that the proper role of the judiciary is to apply, not amend, the work of the People’s representatives. The EEOC counters these arguments by noting that statutes are often interpreted to prohibit “reasonably comparable evils” to those prohibited in the actual text of legislation and that Congressional inaction on an issue is not determinative of a proper interpretation. The Commission’s brief argues as follows: [S]ome have argued that Title VII would not have been reasonably understood to protect against sexual orientation discrimination when Congress enacted it in 1964. But as the Supreme Court clearly held when discussing Title VII, statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Beyond the issue of Congress’ intent, the EEOC has advanced three arguments in support of its contention that “sex discrimination” under Title VII includes sexual orientation discrimination. First, the Commission argues that sexual orientation discrimination treats otherwise similarly situated people differently solely because of their sex. Under this argument, if an employer would not discriminate against a woman who dates a man, then the employer cannot discriminate against a man who dates a man. The Department of Justice rejects this analysis because controlling precedent provides when drawing such comparisons the employees must be identical in all relevant respects holding everything constant except the employee’s sex. For a man to be dating a man in the EEOC’s hypothetical, both the sex and sexual orientation in the comparison were changed. Under the Department’s argument,


a legally relevant hypothetical must compare an employer’s treatment of a man dating a man to its treatment of a woman who dates a woman such that both couples’ homosexuality is constant. So long as both were treated equally there could be no sex discrimination. Second, the EEOC argues that sexual orientation discrimination violates Title VII’s prohibition against discrimination based on the sex of those with whom one associates. Here the Commission relies upon precedent from the Second Circuit and other circuits finding it a violation of Title VII to discriminate against employees in interracial relationships. The Department of Justice counters that these cases are not controlling because they arise from discrimination based upon an employee’s own race. For instance a black employee who is discriminated against for marrying a white person would not have been discriminated against if he or she was white. It is the employee’s own race that gives rise to a claim. By contrast, in the Justice Department’s view, an employer who discriminates against an employee in a same-sex relationship regardless of sex is engaged in sex-neutral treatment of homosexual men and women alike. Finally, the EEOC argues that “sexual orientation discrimination involves sex stereotyping because the employees involved do not conform to the norm that men should be attracted only to women and women only to men.” The EEOC argues that “such discrimination is at heart based on gender stereotypes” and under relevant Supreme Court precedent is therefore a violation of Title VII’s prohibition against sex discrimination. However, the Department of Justice responds that allegations of such a stereotype still do not “result in a disparate treatment of the sexes because men are treated no better or worse than similarly situated women.” The Department also notes that sexual orientation discrimination may sometimes be based on moral or familial biases that have nothing to do with the gender of the employee involved. Therefore the discrimination is not because of sex and thus not prohibited by Title VII.

The Ultimate Outcome After Lincoln said a house divided cannot stand, he observed that “I do not expect the house to fall -- but I do expect it will cease to be divided.” One can harbor the same expectation here. In March of 2017, the United States Court of Appeals for the Eleventh Circuit ruled in the case of Evans v. Georgia Regional Hospital that Title VII’s prohibition on sex discrimination does not include sexual orientation discrimination. In so holding, the Eleventh Circuit relied on its own precedent as well as cases from ten other circuit courts of appeals holding that sexual orientation discrimination is not actionable under Title VII. A month later, the Seventh Circuit Court of Appeals, overruling its own precedent, found in Hively v. Ivy Tech Community College that discrimination on the basis of sexual orientation is sex discrimination under Title VII. In so holding the Seventh Circuit became the highest court to ever adopt such a position. Whatever the Second Circuit decides in Zarda, a split in the federal circuits exists that invites the United States Supreme Court to intervene. Only then, will the house cease to be divided.

Timothy A. Palmer, Shareholder Ogletree Deakins tim.palmer@ogletreedeakins.com www.ogletreedeakins.com

We use our best tools to make your job run smoothly and efficiently. FordHarrison is a labor & employment defense law firm with 29 offices, including four affiliate firms, and is the sole member of the global employment law firm alliance, Ius Laboris. Guided by the FH Promise, FordHarrison delivers the highest quality legal service and communication to our clients. www.fordharrison.com

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ALSHRM

Strategy in the Sand Conference PERDIDO BEACH RESORT SEPTEMBER 29, 2017

2017 ALSHRM STATE COUNCIL

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1 Melissa Devore, SHRM-SCP, SPHR, 2017 Director ALSHRM State Council, welcomes attendees. 2 Mary Ila Ward, Director-Elect, was a keynote speaker. Her topic was “Innovation 103: “Balancing Freedom and Rules to Foster a Best Place to Work,” and “Innovation 104: Think Like a Designer.” 3 Melva Tate, with Tate & Associates, was also a keynote speaker. Her presentation was, “Innovation 102: Think Diversity.” 4 Debbie McGee, CPA, GPHR, SHRM-SCP, President and CEO of PZI International Consulting, Inc., was the opening keynote speaker. She discussed “Innovation 101: Think Globally.” 30

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5 Facebook Live with Melissa DeVore. Follow us on Facebook/hrprofessionalsmagazines.com to receive notification of our live presentations and interviews from all the SHRM Conferences. 6 Attendees at the 2017 ALSHRM Strategy in the Sand Conference.

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7 Attendees enjoyed a networking reception before meeting for dinner at Lulu’s. 8 Mike Bean, SHRM-SCP, President PassionHR Consulting, Inc., was 2017 ALSHRM Co-Conference Chair. 9 Rebecca Keating (R) is Outreach Rep with Columbia Southern University in Orange Beach, AL.

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10 Facebook Live with Denny Smith, PhD, SHRM-CP, President of Tennessee Valley Chapter SHRM. See my interview with Denny on our Facebook page, www.facebook.com/hrprofessionalsmagazine. 11 Sponsors for the ALSHRM Strategy in the Sand Conference

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12 & 13 The beautiful Perdido Beach Resort

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The Dynamics of Employee Benefits: Is a Beyoncé Concert Really Abuse? By DAVEANTE JONES

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hether it is ten members of the Beyhive or a hand full of people on the street, if you asked them what would stop them from attending a Beyoncé concert, you probably could count on one hand the reasons that would stop them. Well, Federal District Court Judge John McBryde of the United States District Court for the Northern District of Texas put everyone on notice of when not to attend one—when you’re out on medical leave under the Family and Medical Leave Act (FMLA). It is not every day that an employer catches an employee red-handed abusing their employee benefits by attending a concert, but that is exactly what happened in Jackson v. BNSF Railway Company, Case No. 4:16−CV−00695. On August 1, 2017, Judge McBryde entered an order granting summary judgment in favor of defendant BNSF Railway Company (BNSF) on three claims: (1) an FMLA interference claim, (2) an FMLA retaliation claim and (3) a related state law claim, brought by a recently terminated employee, Michelle Jackson. Jackson alleged that BNSF had interfered with her FMLA rights and retaliated against her for asserting her FMLA rights after she was terminated while on FMLA leave.

The Facts Just to lay out the background, Jackson had been a BNSF employee since 2002. In late 2015, she accepted a position as a marketing manager, relocating from California to Fort Worth, Texas. As a marketing manager, Jackson had to learn her assigned markets, the competitive factors within the markets, the relevant drivers, risks, opportunities, barriers and players within the markets, establish the pricing to ship her assigned commodities on the railroad and develop marketing strategy for her commodities. Taking on all her new job duties, Jackson struggled with her workload. 32

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Jackson realized this, and after an email conversation with her immediate superior, Carrie Whitman, on March 24, 2016, she decided to limit her travel and time away from the office until she was proficient at processing her rate requests. About a month later, a meeting was held where Jackson was placed on a performance improvement plan (PIP). In attendance were Jackson, Whitman, Whitman’s supervisor, Denis Smith and Director of Human Resources, Kelli Courreges. Although Jackson was aware that her performance was subpar, Jackson was caught off guard with the PIP, did not receive it well and ultimately disagreed with being given the PIP. On May 2, 2016, Jackson had a breakdown. Jackson took the rest of the day off and, after a doctor’s visit, emailed Courreges that she would be taking time off on short-term disability but did not have a return date. Over the next two days, Courreges and Whitman each emailed Jackson about work-related issues. While Jackson responded to Courreges and let Courreges know that the issue had been resolved, she did not respond to Whitman and Whitman ended up having to take care of the other issue. On May 9, 2016, Jackson attended a Beyoncé concert being held at AT&T Stadium in BNSF’s suite. A fellow employee who saw Jackson at the concert questioned Whitman about Jackson’s attendance, saying that he thought that Jackson was out sick. Whitman relayed this information to Courreges. After hearing the news, Courreges became concerned that Jackson was abusing her FMLA leave by taking leave to avoid her PIP. Jackson also had not been in touch with Whitman or her team for almost two weeks. In response to the news and her raised concerns, Courreges attempted to set up a meeting with Jackson by leaving Jackson a voicemail on May 13, 2016. Jackson responded by email on May 16, 2016, and said that she had not been released to return to meet and, as soon as she was released, she would be happy to meet and answer questions at that time. Courreges promptly replied to the email and told Jackson they needed to talk by the close of business that day and Jackson could be terminated for failure to communicate if she did not respond. Jackson did not respond.


On May 18, 2016, Jackson was terminated by a letter that informed her that the primary reasons for her termination were poor work performance, her attendance at the concert while being off work and her refusal to communicate when requested to explain her attendance at the concert. While Whitman was Jackson’s immediate superior, Courreges ultimately made the decision to terminate Jackson. At no point during Jackson’s leave did Whitman or Courreges have an understanding or suspicion about Jackson’s condition. Jackson never communicated with Whitman or Courreges about her condition other than the two emails she sent the day she left work after her breakdown and did not know if Whitman or Courreges had any knowledge of her medical diagnosis at the time she was terminated.

Analysis Analyzing Jackson’s FMLA interference and retaliation claims, Judge McBryde spent most of his discussion on Courreges’s suspicion and attempted investigation to determine whether Jackson was abusing her FMLA rights. In denying Jackson’s interference claim, Judge McBryde noted that the evidence showed that BNSF suspected Jackson of committing fraud (claiming a benefit to which she was not entitled) and attempted to investigate that but Jackson refused to cooperate, which led to her termination. Noting cases from the Northern District of Texas, Southern District of Texas, Third Circuit and Seventh Circuit, Judge McBryde expressed BNSF’s right to investigate its suspicion without violating the FMLA as BNSF’s honest suspicion of abuse outweighed Jackson’s substantive FMLA rights. Under the all too familiar McDonnell Douglas framework, Jackson’s retaliation claim failed because she presented no evidence that BNSF’s legitimate, nondiscriminatory

reason—Courreges’s belief that Jackson was abusing her medical leave shortly after receiving a PIP; within days, Jackson attending the Beyoncé concert in BNSF’s suite; and Jackson refusing to discuss her reasons for attending the concert when she claimed to be too ill to work—for Jackson’s termination was pretext for retaliation. Citing the Fifth Circuit, Judge McBryde made it known that, even if Courreges’s assessment had been incorrect, her belief still constituted a legitimate, nondiscriminatory reason for Jackson’s termination. All-in-all, BNSF handled the situation pretty well. From the day Jackson took off work for her medical issue, BNSF attempted to keep engaged. Once legitimate suspicions arose that Jackson was abusing her employee benefits, BNSF attempted to investigate and allow her to tell her side of the story. While one could argue that attending a fun concert is not inconsistent with taking FMLA leave, Jackson doomed her case by not responding to BNSF’s reasonable questions.

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

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Federal Court Shockingly Rules that NLRA Protects Striker’s Racist Insults – Orders Employer to Reinstate “Racial Bigot” By TIMOTHY GARRETT

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Eighth Circuit Court of Appeals recently ruled that a picketer who hurled admittedly racist insults at a busload of African-American replacement workers should not have been fired and must be reinstated with full back pay. The majority, in a 2-1 decision, ruled the racist insults occurred during picketing, were not directed at any particular individual employee, and were not on “display” for an extended period of time. Thus, this mere “package of verbal barbs thrown out during a picket line exchange” did not cause the picketing employee to lose his protected status under the National Labor Relations Act (NLRA). The Court majority affirmed the National Labor Relations Board (NLRB) decision that the company, Cooper Tire & Rubber Company, violated the law when it refused to reinstate the worker after the strike ended. There was a blistering dissent. Circuit Judge Beam launched his tirade by first noting: “No employer in America is or can be required to employ a racial bigot.” The case is Cooper Tire & Rubber Company v. NLRB. The facts show a surprisingly cavalier attitude by the NLRB in protecting a striking worker who admittedly shouted offensive and racist comments at the replacement workers. In what some might conclude as “tone deaf ” reasoning, the NLRB and the Eighth Circuit majority excused the behavior as “impulsive,” which is to be expected in the emotional climate of a strike.

BACKGROUND Cooper Tire was in the midst of a labor dispute. After expiration of a union contract, the Company locked out the employees and prohibited them from working until the parties reached agreement on a new contract. During the lockout, the Company continued to operate with replacement workers. The Union began picketing. On a particular evening, vans with replacement workers drove past a union event on their way into the plant. As one van of replacement workers passed by, one of the picketing workers, Anthony Runion, noticed that many replacement workers were African-American, and he shouted racist taunts based on stereotypical assumptions. Runion engaged in this conduct even though union representatives had instructed picketing employees to refrain from racist, sexist, or sexually explicit language. After the lockout ended, the Company refused to reinstate Runion and terminated his employment for gross misconduct during the picketing.

Round 1: Company Wins Before Arbitrator The Union and Runion filed a grievance, which was taken to arbitration. The Arbitrator denied the grievance. The Arbitrator ruled that Runion’s 34

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conduct was inappropriate and that there was absolutely no reason to “inject race” into picket line exchanges or to express “animosity toward African-American replacement workers by using racial slurs or demeaning racial comments.” Because the conduct was a “clear violation” of the Company’s anti-harassment policies and “so intolerable” as to be gross misconduct, the Arbitrator found the termination lawful.

Round 2: Union Wins Before NLRB At the Union’s request, the NLRB Regional Director refused to defer to the Arbitrator’s decision. The NLRB pursued unfair labor practice (ULP) charges against the Company, claiming that the racist conduct was not sufficiently severe as to cause the employee to lose his protected status. The Regional Director issued a complaint, saying that the Company had terminated Runion for engaging in union activities and thus making the firing a violation of the NLRA. In what some (including this author) consider a shocking ruling, an NLRB Administrative Law Judge (ALJ) found that the racist comments were protected under the NLRA. The ALJ explained that, while offensive, the racist insults did not reasonably tend to coerce or intimidate employees in exercising their rights, and that the comments did not raise a reasonable likelihood of imminent physical confrontation. Since there were no express threats, the firing was “clearly repugnant” to the NLRA. The ALJ ordered the Company to reinstate the picketing worker with full back pay. In a three-paragraph decision, the NLRB affirmed the ALJ’s decision.

Round 3: Case Before Eighth Circuit Cooper Tire appealed to the Eighth Circuit. Several business groups filed briefs in support of the Company’s position. Those groups argued that the NLRB’s position is inconsistent with federal discrimination law, protects racist comments, and essentially requires employers to condone racism in the workplace. Even the NLRB admitted that the striker’s comments were “offensive to the dignity of the African-American replacement workers.” Yet, explained the NLRB, picketing involves “an element of confrontation” and some “impulsive behavior is to be expected.” The NLRB further noted that courts have not found employers liable for discrimination based on only two racially offensive remarks. Please allow a brief tangent: (1) This author strongly disagrees with the reasoning underlying the argument that racist comments should be excused because picketing involves some confrontation and impulsive behavior. True, picketing involves confrontation. Picketing employees are voicing disagreement with a company’s positions in negotiations and trying to gather support for the union’s views. But, on what basis should


racist insults be allowed as a means to these ends? Mere disagreement does not justify racist verbal attacks. If the NLRB continues to allow such behavior, we should not be surprised that such behavior continues. (2) One or two offensive comments are sufficient to prove harassment. In the same month as the Eighth Circuit ruling, another Circuit found that a single racial slur could establish racial harassment. Castleberry v. STI Group (3rd Circuit August 2017). A concurring opinion in another recent case regarding sexually offensive picket line misconduct is instructive here. In Consolidated Communications v. NLRB, D.C. Circuit Judge Patricia Millett criticized the NLRB for “the too-often cavalier and enabling approach that the NLRB’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes. Those decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace. The sexually and racially disparaging conduct that NLRB decisions have winked away encapsulates the very types of demeaning and degrading messages that for too much of our history have trapped women and minorities in a second-class workplace status.”

Round 4: NLRB and Union Win Before Eighth Circuit In a 2-1 ruling, the Eighth Circuit panel ruled against Cooper Tire on the following rationale: The racist comments were not directed at any individual; were not on display for an extended period of time; other cases have upheld the NLRB’s position that racist and sexist comments and gestures do not automatically cause picketing to lose its protected status; and, the comments also were not sufficiently severe or pervasive to create an unlawfully harassing workplace.

Will There be Other Rounds? It is true that conduct during a strike retains heightened protection, and it should. Ordinary misconduct generally should not cause a striking employee to lose protection. But, with all due respect, this is not “ordinary misconduct.” The decision here reads the NLRA as protecting offensive, racist slurs, which undermine the type of workplace the NLRB historically claimed to be protecting and promoting. The position is untenable. The NLRB’s position sacrifices race relations at the altar of protecting striking workers. And, what of the Union’s continuous fight to protect the job of an employee who hurled racist insults? The Union’s taking the matter to arbitration is understandable, especially since the Union might otherwise face a lawsuit for breach of the duty of fair representation. But, what does the Union’s action in pursuing it further say to the African-American employees? And, what does it say about the Union’s views? This writer hopes Cooper Tire continues to appeal, either to the full Eighth Circuit or to the Supreme Court. While there is authority by which a rational academic could justify the decision here, it is incredulous that the Court has held to such academic rationale when there is legally sound authority to rule otherwise. Criticisms of the NLRB noted in the quotations above are justified, but they ring hollow without an actual reversal of the NLRB’s decision protecting racist insults.

Timothy Garrett, Attorney Bass, Berry & Sims PLC tgarrett@bassberry.com www.bassberry.com

Cooper Tire countered that it must apply its lawful policy prohibiting harassment, but the majority explained that, since the policy did not mandate termination, the obligations under Title VII “do not conflict with Runion’s reinstatement.” The majority did issue a caution to the NLRB: We have cautioned the NLRB before against assuming the use of abusive language, vulgar expletives, and racial epithets between employees is part and parcel of the vigorous exchange that often accompanies labor relations. . . . [T]he NLRB’s decisions seem in too many cases . . . oblivious to the dark history such words and actions have had in the workplace (and elsewhere) . . . To be sure, employees’ exercise of their statutory rights to oppose employer practices must be vigorously protected, and ample room must be left for powerful and passionate expressions of views in the heated context of a strike. But NLRB decisions’ repeated forbearance of . . . racially degrading conduct in service of that admirable goal goes too far. But, the majority was not willing to overrule the NLRB. In dissent, Judge Beam was not so unwilling. Circuit Judge Beam noted two issues (1) whether the employee exhibited racial bigotry directed toward African-American employees of Cooper Tire and (2) whether the exercise of such bigotry is protected under the NLRA. Beam wrote: “The answer to question one is clearly yes and the answer to query two is undoubtedly no!” www.HRProfessionalsMagazine.com

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Spotlight on Pharmacy By CRISTIE UPSHAW TRAVIS

With pharmacy costs now accounting for 17% of a family of four’s annual health care spending (2017 Milliman Medical Index, May 2017) and projected to increase greater than 7% in 2018 (early results from Mercer National survey of Employer-Sponsored Health Plans 2017, October 2017), employers must actively manage these benefits to get value for employees, their families, and the plan itself. Here are some specific steps you can take now to more effectively manage prescription benefits. Require your health plan and PBM to follow the Five Rights Framework and Stakeholder Engagement Framework for specialty medications. Costs for specialty medications are projected to grow at approximately two-times the overall cost of prescription drugs in 2018 (15% compared to >7%) and are the major driver of increasing prescription drug costs in employer sponsored health plans. Employers must have a framework to hold their health plans and PBM’s accountable for ensuring that patients receive the right drug, at the right price, in the right place, with the right support, and that the right data is available to inform appropriate oversight and management. This Five Rights Framework, originally developed by the Minnesota Health Action Group, augmented with work from other business coalitions and released by the National Alliance of Healthcare Purchaser Coalitions, sets out specific recommendations that will result in more effective management of specialty medications. Examples include: Right drug: Cover genetic testing that supports improved assessment of correct drug, dose, and duration of specialty drug treatment for the specific patient. Right price: Review drug formulary decisions based on clinical efficacy, price transparency and overall value including patient outcomes (not based on rebates) Right place: Include cost parity across all sites of care for the same drugs and services in all contracts. Right support: Use high-quality programs for adherence and treatment that support the patient and the specific employer’s strategy on population health. Right data: Data should be provided at little or no cost to the plan sponsor and in a mutually agreed upon timeframe that permits analysis and timely action. Get a copy of the complete Five Rights Framework and the Stakeholder Engagement Framework at http://bit.ly/2ywvLHX. Check to see what requirements your plan has for PCSK9s The new cholesterol-lowering medications are an example of specialty medications that require intense management. PCSK9s are intended for adults whose LDL cholesterol remains at dangerous levels even after using the maximum doses of traditional cholesterol-lowering medications (such as statins). These medications cost approximately $1,167 per month, compared to the traditional cholesterol medications which cost approximately $15-$50 per month for generics and $185 per month for brand. 36

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Because failure to control cholesterol with traditional cholesterollowering medications is one of the indicators for prescribing PCSK9s, most insurance plans and PBMs have put robust pre-authorization programs and co-pays in place to manage their utilization. As the Reuters article at http://reut.rs/2yrLSJm indicates, these strategies have significantly impacted the use of PCSK9s. Check with your PBM and health plan to understand the strategies they are using to ensure that those that actually need PCSK9s receive them but those that are not appropriate do not. Review the pre-authorization program to be sure that documentation of medical necessity, including ineffectiveness of traditional cholesterol-lowering medications, is required. Ask your PBM what they are doing to fight the opioid epidemic. Chuck Gamsu, RPh., MBA, Principal at SkySail RX , recommends that employers work with their PBM to adopt the “reduce, restrict, and remove” approach to preventing opioid abuse and addiction. This approach includes: 1. Reducing quantity allowances and refill tolerances 2. Restricting the day supply 3. Remove duplicate therapies, dangerous drug interactions, and unused narcotics through drug take back programs. Cigna has just announced that they will stop covering OxyContin in 2018 (see article at http://reut.rs/2iiJpub ) and CVS Health is limiting day supplies (see article at http://bit.ly/2zj7LqP ).

What is your PBM doing? Use the Understanding PBM Quality, 2016 National Alliance of Healthcare Purchaser Coalitions PBM Assessment with your PBM to discuss your needs and their performance. Results of this assessment of nine PBMs that cover over 250 million lives and account for 80% of the PBM market, show that there is significant performance variation between PBM’s. For example, in the section on Pharmaceutical Management, plan performance ranged from a low of 29% to a high of 77%. With so much variation, it is critical for employers to assess their own PBM’s performance and discuss areas for improvement. This report suggests specific discussion points for you to cover with your PBM and articles from experts on opioids, biosimilars, and formulary exclusions. You can get a copy of the blinded report at http://bit.ly/2hOIyxB . Memphis Business Group on Health members can get an unblended report from Cristie Travis at ctravis@memphisbusinessgroup.org.

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


1 1 Cristie Upshaw Travis, CEO of the Memphis Business Group on Health, welcomed members and guests to the annual conference.

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2 Claire Shapiro, President of the Board of Directors of the Memphis Business Group on Health 3 Greg Mansur, Principal, PwC, was the keynote speaker at the opening session. His topic was “Next Generation Benefits Strategies.” 4 Nancy Averwater, Chief Human Resources Officer for Baptist Memorial Health Care 5 Michelle Thompson, Business Development Manager with Milliman, discussed Mid-South health benefit trends from Lipscomb & Pitts Survey.

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6 Kristof Stremikis, Senior Manager, Pacific Business Group on Health, discussed “Surviving Health Policy Changes (Again.)” 7 Barbara McClanahan, PhD, EdD, Associate Professor, University of Memphis Health Promotion Program, spoke about innovation as a strategy. 8 Laurie Lee, Executive Director, State of Tennessee Employee Benefits Administration, discussed paying for value. 9 Laura Hamill, Chief People Officer of Limeade, presented “Moving from Wellness to Well-Being.”

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10 Scott Conrad, MD, Physician | Advisor, discussed “Creating Value Through Population Health.” Scott was the general session closing keynote speaker. 11 Panel Discussion : Memphis ‘s Fortune 100 Best Companies to Work For (L-R) Alan McKiernon, Human Resource Manager, Baker Donelson; Melissa Carlton, Director Benefits Health & Wellness, St Jude’s Children’s Hospital; Don Hutson, Vice President Talent Management, Methodist LeBonheur Healthcare 12 Attendees at the 2017 Annual MBGH Conference at the University of Memphis www.HRProfessionalsMagazine.com

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1 Rushe Hudzinski, Director of SHRMGA State Council, welcomed attendees to the 2017 SHRM Georgia State Conference on Jekyll Island. Watch our interview with Rushe on www.facebook.com/hrprofessionalsmagazine. 2 Linda Yates, The Image Energizer, Executive Coach, and Author, was a keynote speaker on her book, “Beyond the Clothes: Image and Presence.” Find out more about Linda’s book on our Facebook Live video, www.facebook.com/hrprofessionalsmagazine. 3 Lara Jaye presented, “Being a Mindful Leader.” 4 Dr. James Wilburn, Director of Military Academic Programs at the Georgia Institute of Technology, was a keynote speaker. His presentation was “Integrating Veterans Into Your Workplace.” 5 Larry Benjamin, with the Department of Labor, spoke on “2017 Fair Labor Standards Act.” See our Facebook Live video with Larry on www.facebook.com/hrprofessionalsmagazine. 6 Elga Sickler was a concurrent speaker who spoke on “Helping Your New Hires Stay W.E.L.L. Through Onboarding.” 38

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7 Paula Kitchens, SHRM-CP, PHR, SHRMGA Director Elect, invited attendees to the 2018 SHRMGA Conference in Savannah. 8 Rebecca Szepanski, spoke on “ERISA: Terrifying Tales from the Trenches.” Learn more about Rebecca’s topic on our Facebook Live video, www.facebook.com/hrprofessionalsmagazine. 9 Marty Martenson, Managing Partner, Martenson, Hasbouck, and Simon, LLP, was the closing keynote speaker. Marty’s presentation was “Keeping Both Hands on the Wheel.” Meet Marty on our Facebook Live video, www.facebook.com/hrprofessionalsmagazine. 10 Greg Hawks, Principal at Hawks Agency, was the opening keynote speaker on Sunday. His topic was, “Navigating Workplace Rapids.” Learn more about Greg’s keynote topic on our Facebook Live video, www.facebook.com/ hrprofessionalsmagazine. 11 Joshua McGee received the SHRMGA Student of the Year Award. He earned a dual degree in Business Management and Accounting 11

with an HR certificate from the Savannah Technical College.

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Your Resource for Legal Innovation and Inspiration

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12 Chapter of the Year – Casey Chesser, President of the Columbus Chapter, accepts the Chapter of the Year Award for Columbus SHRM 13 Volunteer of the Year – Craig Southern with SHRM Atlanta accepts the Volunteer of the Year Workforce Readiness Award 14 Leader of the Year – Margaux Kaynard (R) accepts the SHRMGA HR Leader of the Year Award. 15 Community Impact Award – (L) Lee Tompkins, with Middle GA SHRM, accepts the Community Impact Award.

Customized Management Training Compliance Audits Policy and Strategy Analysis Litigation Defense Global Mobility Labor Negotiation www.bakerdonelson.com THIS IS AN ADVERTISEMENT. Ben Adams is Chairman and CEO of Baker Donelson and is located in our Memphis office, 165 Madison Avenue, Suite 2000, Memphis, TN 38103. Phone 901.526.2000. ©2017 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

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ANNOUNCEMENT

Attorney Daveante Jones Joins Wright Lindsey Jennings Attorney Daveante Jones has joined Wright Lindsey Jennings as a member of its Labor & Employment Team, practicing in the firm’s Little Rock office. He represents employers and HR professionals in a variety of employment matters, including discrimination (Title VII, ADEA, ADA, ACRA), minimum wage and overtime (FLSA, AMWA), employee leave (FMLA), employment contracts, severance agreements, covenants not to compete, unemployment claims and EEOC/DOL investigations. Before joining the firm, Jones worked as a law clerk to the Honorable Brian S. Miller, Chief Judge for the United States District Court for the Eastern District of Arkansas.

Jones earned his J.D. from the University of Arkansas School of Law, graduating cum laude in 2016. While in law school, Jones served as an Articles Editor for the Arkansas Law Review and as Secretary/ Treasurer of the Board of Advocates. His article, "Protecting Biometric Information in Arkansas, 69 Ark. L. Rev. 117 (2016)," was published in the Arkansas Law Review. He interned with AT&T, Inc.’s legal department where he witnessed the dynamic between in-house counsel and outside counsel and observed the corporation’s in-house counsel advise the corporation’s business side. Jones was the recipient of the M. Jeff Starling, Jr. Award, given annually by the University of

Arkansas School of Law for excellence in labor & employment law. He also worked in the University of Arkansas School of Law Civil Litigation and Advocacy Clinic representing clients seeking to enforce their rights in a variety of employment law matters. Jones graduated from Ashdown High School. While earning his Political Science degree with a minor in Africana Studies as a member of the Southern Arkansas University Honors College, he served as the polemarch (president) of the Lambda Kappa chapter of Kappa Alpha Psi Fraternity, Inc. and also received the Mulerider Leadership Award.

ADP at the 2017 PMI Memphis Professional Development Day HILTON MEMPHIS | SEPTEMBER 22, 2017

ONE AREA OF PRACTICE. ONE FOCUS. The Kullman Firm has engaged in the practice of labor and employment law on behalf of management since 1946. ! Employment Discrimination Litigation ! OSHA ! Wrongful Discharge Litigation ! Collective Bargaining Negotiations ! Labor and ADR Arbitrations ! Union Representation Cases

! Wage and Hour Law ! OFCCP/Affirmative Action ! ERISA/Employee Benefits ! FMLA Compliance

Offices in Louisiana, Mississippi, Florida and Alabama.

www.kullmanlaw.com

Attorney responsible for content of this ad: Martin J. Regimbal 40

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(L-R) Susan Hanold, Ph.D, Strategic Advisory Services with ADP; Jerry Boswell; Cindy Olson, Former Chief People Officer, ENRON. Cindy was a keynote speaker, and her topic was “Leading Through Values.” Susan Hanold, Ph.D with ADP, was an afternoon concurrent speaker. Her topic was on leadership, “Talent Management Insights and Solutions for Leaders.” PMI Memphis Professional Development Day was held September 22, 2017 at the Hilton Memphis. The event included the presentation of awards and a scholarship. A wine and cheese networking event was held at the close of the sessions.


CGWG@20 Celebrating twenty years in the practice of human resources, labor and employment law.

Ser vice that is second to none. The attorneys at Cross, Gunter, Witherspoon & Galchus are excited to celebrate our twentieth year in practice. Thank you to each client, great and small, for making this milestone possible. Our clients’ policies and procedures have been compliant with the changing law, because we’ve seen those changes coming. Address any compliance issues and protect yourself from litigation.

www.CGWG.com

Little Rock

501-371-9999 Northwest Arkansas

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L a b o r & Em p l oy m e nt L aw | Em p l oy m e nt- R e l ate d Im m i g rati o n | H e a l th c a re L aw | C o nstr u c ti o n L aw P r o d u c t L i a b i l i t y | C o r p o r a te B u s i n e s s L a w | Tr a n s p o r t a t i o n L a w | L i t i g a t i o n D e f e n s e I n s u r a n c e D e f e n s e | G o v e r n m e n t L a w | E s t a te P l a n n i n g & E l d e r L a w | Wa g e & H o u r L a w www.HRProfessionalsMagazine.com

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Assistance Animals in the Workplace By KATHERINE SUTTLE WEINERT

Emotional Support Animals Under the ADA Unlike Title III, Title I of the ADA has not been construed to be limited to only permit service animals in the workplace. A wide variety of animals without or without specialized training may be covered by Title I. This means that an employer may be faced with requests that go beyond the prototypical guide dog. “Assistance animals” are companion animals that provide assistance to an individual, such as providing emotional support. Assistance animals may or may not be specially trained to perform a task in support of a person with a disability. For example, a monkey trained to turn door handles for an individual with limited mobility may be an assistance animal, but would not be a “service animal” under the current definition of the Title III (simply by virtue of being a monkey).

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nimals can be of great service to humans, and determining when the law requires employers to permit an employee to bring an animal into the workplace can be difficult. The federal law governing animals in the workplace is the Americans with Disability Act (“ADA”) and its regulations. If an employer has a “no animals” policy, then permitting the animal is an accommodation that may be offered to an employee under the ADA.

Employment situations are governed by Title I of the ADA. Title I does not have express provisions regarding animals in the workplace. Notably, Title III of the ADA does have express provisions regarding the presence of service animals in public accommodations. Public accommodations are places such as restaurants, hotels, theaters, and retail shops. Knowing a little bit about Title III can help an employer understand its duties in analyzing an employee’s request for accommodation under Title I. Many states have their own laws governing the presence of animals in the workplace and, as always, employers should be mindful of federal, state, and local laws governing the area of animals in the workplace.

Service Animals and Public Accommodations Title III of the ADA expressly permits service animals to accompany their human handlers in public accommodations. Under Title III of the ADA, “service animal” means “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” Under the definition, no other species, other than miniature horses, may be a service animal. The work or tasks performed by a service animal must be directly related to the individual's disability. 28 C.F.R. § 36.104. The prototypical “service animal” is a guide dog for a person with no or limited vision. However, dogs can be trained to provide other tasks such as seizure detection and alert, sound detection for those with significant hearing loss or deafness, and other services for people with disabilities. For an animal to qualify as a “service animal,” the animal must do work or perform a task to assist the person with a disability. The animal’s presence alone, while it may be calming to the handler, is not a “task” to turn a pet dachshund into a service animal. Under Title III, the key in distinguishing between a service animal and an assistance animal— discussed below—is to focus on what tasks the animal performs. If the animal is not trained to undertake a specific task, then it is not a service animal under Title III of the Americans with Disabilities Act. 42

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Sometimes the term “emotional support animal” is used. Unlike service animals trained to perform a task, emotional support animals provide comfort to individuals with conditions such as anxiety disorders through their presence alone. Commonly, emotional support animals are similar to domestic pets. However, an emotional support animal can be any species. As a reminder, be cautious about your use of terminology because “assistance animal” can lead to confusion in states such as California whose laws refer to “service animals” as “assistive animals.” Unlike service animals, assistance animals can be of any breed or species. This means that an employee’s request to bring an iguana to a car factory or a chinchilla to an accounting department should not be rejected out of hand.

Responding to Requests for Service or Assistance Animals in the Workplace Assistance animals are becoming more prevalent in American society, and employers may be wary that an employee is trying to pass off a pet as an assistance animal. When confronted with an employee’s request to bring a service or an assistance animal to work, the employer should treat the request as any other request for accommodation under the ADA. For example, if the employer has a process it uses to handle requests for the provision of specialty equipment, then the employer may be able to use that same framework to handle requests for an assistance animal. After an employee’s request is made, the employer and the employee should engage in the three-step “interactive process” to discuss the requested accommodation. The employee and employer should: (1) exchange information about the employee’s disability and work restrictions; (2) identify potential reasonable accommodations regarding the animal; and (3) reach a satisfactory decision about an effective accommodation.


During the interactive process, the employer may gather information about the animal such as whether it has been housebroken and how it will be cared for during the day, and address concerns regarding workplace safety. Under Title III, the animal’s handler is responsible for cleaning up after the animal and providing all necessary care. Title III also places the responsibility for damage caused by the service animal on its handler. The same principle should apply in setting the ground rules for allowing a service or assistance animal in a workplace setting under Title I. It is unlikely that cleaning up animal waste will be deemed a reasonable accommodation that an employer failed to offer under Title I. However, permitting an employee to have a different break schedule to care for the animal or designating relief facilities for the animal may be part of the reasonable accommodation. Also, mindful of the limitations placed by state laws, during the interactive process the employer may gather information regarding the employee’s disability that generated the request and how the request for the assistance animal supports the employee with his or her disability. A recommended practice is for an employer to engage in the process regardless of how outlandish the request may initially seem. When an accommodation has been agreed upon, an important goal of the interactive process is working with the requesting employee to develop a strong strategy for integrating the animal safely into the workplace.

“certifications” or “registrations” for service, assistance, or emotional support animals, the basis for an organization offering these credentials is not clear. The simple fact that an employee has or has not registered or certified their animal with an organization should not impact the employer’s reasonable accommodation analysis under the ADA.

Animals in the Workplace and Other Employees The analysis of what is a reasonable accommodation may not end with permitting the animal into the workplace. Sometimes employers become concerned that if they permit the service animal or assistance animal, the animal at issue will either make an employee with allergies sick or make another employee fearful. These hypothetical concerns, however, may not be enough of a basis to deny an employee’s request to bring a service animal or assistance animal to work. In the event that there is a conflict between employees regarding the presence of the animal, employers may want to consider whether they can assign the workers to different spaces or provide an enclosed workspace. Engaging in the interactive process, whether with an employee who needs a guide dog or with an employee who is severely allergic to dogs, is the key to successfully navigating an employee’s request for a service or assistance animal in the workplace. Knowledgeable counsel can be of great help in helping guide employers through this process, while taking into consideration all of the applicable laws.

The Registration Myth The ADA does not require service animals have any certification or documentation, in either a Title III or Title I (workplace) setting. Further, service animal jackets, special identification collars, or signage are not required by federal law or regulation to make an animal a “service animal.” Additionally, although there are many organizations on the internet offering

Katherine Suttle Weinert, Counsel Littler’s Birmingham office kweinert@littler.com www.littler.com

A TrA diTion of

Thinking Forward In order to be successful in today’s increasingly regulated workplace, employers must stay one step ahead. Let us put our history of thinking forward to work for you. Burch, Porter & Johnson, PLLC 130 North Court Avenue | Memphis, TN 38103 901-524-5000 | bpjlaw.com

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Littler Seminar

August 17 | Memphis

Become a Human Lie Detector: Tactics for Assessing Employee Truthfulness This was an entertaining and interactive presentation that outlined tactics that can help determine whether someone is lying or telling the truth in the employment context and beyond. Steven W. Likens, Shareholder, and Matthew G. Gallagher, Associate, led the discussion at the Memphis office of Littler.

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MSBGH & MC SCHOOL OF BUSINESS present 8th Annual 8ththe Annual

HEALTHCARE SUMMIT OCTOBER 10, 2017 The 8th Annual Healthcare Summit was held on October 10th, 2017 at Mississippi College in Clinton, MS. The Summit is a collaboration between the Mississippi Business Group on Health and the Mississippi College School of Business. Partnering organizations included the Mississippi Association of Health Underwriters, the Capitol Area Human Resource Association and the Mississippi State Chapter of Society for Human Cost, Management, & Planning Resource Management. Sponsors included Forrest Health, Southern Farm Bureau Life Insurance Company, Merit Health, Vigilant Health, Novo Nordisk, St. Dominic Health, Mississippi Association of Self Insurers, American Behavioral Health, Bancorp South, and HUB International. October 10, 2017 Mississippi College 8:30 of A.M. - 3:00 P.M.health Anderson Hall This year’s summit attracted executives from many the employers, care systems, health plans, and state public leadership. The speakers shared information on a variety of topics including alternate payment models, employer benefits trends, health and the wage earner, and employer concerns with the opioid crisis. Other speakers discussed the Mississippi Business Group on Health and its newly launched “Health Data Set,” which allows participants to better understand their health care spend while benchmarking with other Mississippi employers.

T H E B U S I N E S S of H E A L T H C A R E

“This year’s summit had the highest quality participation regarding having the key business leaders in the room to learn, network, and discuss current issues, trends, and innovations in delivering value-based care which is based on improved quality and more value for the investments that employers are making into their employer health and health care benefits programs,” said Murray L. Harber, Executive Director, Mississippi Business Group on Health.

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C O N TA C T

Phone: 601.925.3214 | Email: mcbusiness@mc.edu | Mail: Mississippi College, Attn: School of Business, MS Healthcare Reform Summit, Box 4014, Clinton, MS 39058 W W W. B U S I N E S S . M C . E D U / H E A L T H - C A R E - S U M M I T

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Presented by MSBGH and MC School of Business

WWW.BUSINESS.MC.EDU/HEALTH-CARE-SUMMIT

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1 Bruce Sherman, MD. Was a keynote speaker. 2 Marcy Buckner, VP of Government Affairs, NAHU 3 Commissioner Mike Chaney and Bob Williams, JD – MS Dept of Insurance 4 Jim Brown, First VP, Trustmark Bank 5 APM Panel: Facilitator: Chris Morgan, MSBGH, Marshall Bouldin, MD; Warren Collmer, Joe Ochipinti, President, UHC-Gulf South 6 Opioid Panel: Facilitator: Deidre Bell, CFO St. Dominics, Panelists: Mike Todaro, Michael Jordan, Gaye Fortner 7 Attendees www.HRProfessionalsMagazine.com

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There’s an overload of email. Here, the authors are not referring to the overload of junk email, which can be eliminated by your computer software. Instead, they are talking about legitimate messages that people receive and cannot ignore. Highly skilled knowledge workers spend too much of their time managing email.

Total Alignment: Tools and Tactics for Streamlining Your Organization By WILLIAM CARMICHAEL

It doesn’t take a rocket scientist to know if an organization is out of alignment. Things somehow are just not right and too often we just can’t put our finger on what exactly what or where the problem is. Sound familiar? Essentially, misalignment is what happens when the way your people spend their time is ‘out of sync’ with your company’s mission. Sound familiar? It does to most companies, but gets far too little attention. This book aims to change all that. No matter what size your company is, Total Alignment: Tools and Tactics for Streamlining Your Organization by Riaz Khadem and Linda Khadem shares proven processes that will get all your people on the same page. To make sure you stay aligned and don’t veer off course like so many companies do, you’ll also learn how to measure and track throughout the year how aligned your people’s results are with the overall outcome your business was intended to achieve.

Is Your Company Misaligned? Check for these Symptoms In strait forward language that readers will appreciate, our two authors share exactly what their research has shown. A company is misaligned when people pursue goals and agendas that are incongruent with each other and do not combine to effectively advance a single purpose. This sounds simple enough but here they carefully describe the extent to which any company is misaligned are by the following symptoms: Decision making takes too long. Slow decision making decreases the momentum needed for growth and puts your company at a competitive disadvantage, particularly when you’re competing with aggressive competitors and more agile organizations. There are too many meetings. Granted, meetings are necessary for exchanging thoughts and ideas, making plans and reviewing progress. But organizations often are stifled by too many long and unfocused meetings that waste time and drain productivity 46

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Silos exist. Silos are departments working as separate units and not sharing information with other departments in the same company and this lack of communication may be intentional or unintentional There’s a lack of clarity of responsibility. When responsibilities are not clearly defined, either no one is taking charge, or someone is taking charge who might not be the right person, or several people are fighting for control. These scenarios have varying effects on the bottom line of the company. When the results are good, people tend to compete to get credit. When the results are bad, people may engage in finger-pointing and assigning blame to each other. There’s a lack of empowerment at lower levels. If the lower levels in your organization don’t feel empowered to make decisions, then you might be experiencing misalignment. The employees on the front line are the ones that sell the product, often deliver the product, and serve the customers. When they aren’t empowered to act and merely wait to receive instructions from their managers, customers suffer and customer loyalty is lost. Communication is selective, protecting individual interests. If you sense that communication among people is not open and freeflowing, or if people are cautious about sharing information, you could have an alignment problem. Information is not owned by turfs. It belongs to the company and should be available to whoever has a legitimate need for it. There’s a lack of motivation in the organization. This is a general malaise you would find in misaligned organizations. It’s the result of multiple misaligned elements described above. Lack of motivation leads to apathy, where people have the attitude of ‘whatever.’ Confusion and rumors proliferate. When alignment is absent, people become confused as to where your organization is going, what they should do and why. When people are left confused for too long, many revert to gossip, sharing opinions and news that could become distracting or destructive. Confusion and rumors are the byproducts of a misaligned organization. If any of these symptoms sound familiar, please read on.

Asking the Right Questions Total Alignment: Tools and Tactics for Streamlining Your Organization carefully ask the right questions about any organization’s alignment strategy: Who are we? What are our core values? What is our purpose? What do we do and why? What is our mission? What does our future look like? How do we get to that future and with what strategy? And perhaps the most difficult of all . . . how do we stay aligned? Unfortunately, what should be simple questions to answer are not for most organizations. Fortunately, Total Alignment takes much of the guesswork out of this by utilizing a surprisingly simple format that any organization can follow. In easy to follow steps as well as providing effective useable templates, the authors show how you can achieve alignment by: • Defining the right alignment progress indicators for each of your people • Supporting these indicators with data to measure progress toward your vision • Creating an alignment map that will serve as a frame of reference for every action • Assigning clear roles and accountability for each initiative and progress indicator • Creating individual scorecards for everyone (including the CEO) to delegate, clarify and align responsibilities and compensation with the organization’s vision, strategy and core values • Scheduling results meetings and “vertical” performance reviews that are upward-focused and future-oriented instead of about past accomplishments • Linking pay to performance based on how well your people’s results are aligned with the goals of your company.

Effective Takeaways! HR practitioners will not be disappointed nor will their leadership in Total Alignment. This can also be said for any manager needing to get to the heart of what might be ailing their organization. And as a professor of graduate business, I am extremely pleased that the concepts our authors share directly apply to the business strategies we teach. From aligning our individual competencies to our organizational strategies and how to measure them, this resource guide hits home!

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


STATESBORO-AREA SHRM

RECEIVES BEST PROJECT OF THE YEAR FOR ITS WORKFORCE READINESS CONFERENCE BY CURTIS WOODY

The Statesboro-Area SHRM chapter in Statesboro, Georgia was recently awarded the “Best Project of the Year” by the SHRM Georgia State Council at the Council’s State Conference held October 8-10 in Jekyll Island, Georgia. The award recognized the Chapter for successfully organizing its recent Workforce Readiness Conference in Statesboro, Georgia. “The Statesboro Chapter of SHRM encompassed the exact learning objectives at their conference and pinpointed essentials for employers on workforce readiness to include: requisite knowledge, skills, and abilities required to succeed in the workplace and ensuring that workplaces are productive by welcoming the new workforce and focusing on the establishment of partnerships and alliances,” said Georgia SHRM State Council Director, Rushe Hudzinski. Themed “Leveraging Community Partnerships to Enhance Workforce Readiness,”” the day-long conference attracted attendees, speakers and panelists from throughout the Southeast Georgia region. The program also featured a diverse slate of speakers and panelists representing state, regional, and local workforce readiness stakeholders. “We are excited and humbled to have been given this award,” said Statesboro Area SHRM Workforce Readiness Chair, Curtis Woody. “All of the credit goes to our sponsors, our local chapter, and our hard working workforce readiness committee.” "We hope that this conference will be the beginning of a partnership with workforce readiness advocates from around the region. “Mainly, we want to focus on how we can partner with other entities to strengthen our region's workforce," said Curtis Woody, District 5 Director for the SHRM Georgia State Council, and Workforce Readiness Director for the Statesboro Chapter. The day's first keynote speaker was Menelik Alleyne, Workforce Innovation and Opportunity Act Services Director for the Georgia Department of Economic Development. “The Workforce Division of the Georgia Department of Economic Development would love to partner with employers in the region to help support their training and professional development needs” said Allenye. Alleyne also encouraged HR professionals to take full advantage of the significant resources that available through his agency.

Another state agency chief, Department of Corrections Commissioner Gregory Dozier, spoke about challenges the department faces as a large-scale employer. He also talked about the state prison system's programs to provide education and job training to offenders. "You want somebody to break that cycle, and so if we can give them a skill while they're with us that they can come back and apply it do doing useful things in the community, we believe that public safety is enhanced," Dozier said in an interview. Georgia Labor Commissioner Mark Butler, who was the last of three keynote speakers at the conference, said that the most common gripe he hears has changed since Georgia’s high-unemployment period a few years ago to "Where are all the workers?" "Even though we keep growing jobs, we also can't fill those jobs," Butler told the SHRM conference attendees. "Yes, you know we want to always talk about growing jobs in Georgia, but we've got to really concentrate on growing the workforce for the jobs we have open here, so creating jobs is no longer Georgia's challenge so much as finding and developing qualified workers,” he said. The conference also included panel discussions on the re-entry of inmates to the workforce, veterans' employment issues, the role of education in workforce readiness, and the important role that employers and HR professionals play in building a strong workforce. This conference was a great start,” said Woody. “We hope that everyone will come out of their silos, overcome their mistrust and suspicion, and work together for the good of our region. As a way of continuing this important conversation,” Woody said, “Statesboro Area SHRM will lead the development of a workforce readiness coalition consisting of workforce readiness stakeholders from across the region.” Our goal will be to come up with real solutions and impactful initiatives that achieve measurable results,” Woody said.

Curtis Woody, MBA, CCT, SHRM-SCP SHRMGA Director, District V, Statesboro

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ANNOUNCEMENT

Sarah T. Laren Joins Littler Kentucky Littler Mendelson’s Lexington office is pleased to announce that Sarah T. Laren has joined the firm as an Associate. Sarah earned her J.D. from the University of Kentucky, as well as a B.A. in French and International Economics with a minor in Japan Studies. During law school, she was a staff member of the Kentucky Law Journal and a Moot Court Board member. Upon graduation, Sarah served as a law clerk for the Honorable David L. Bunning and the Honorable Joseph M. Hood, both U.S. District Court Judges in the Eastern District of Kentucky. Sarah first became interested in labor and employment law during her clerkships, where she had the opportunity to work on several discrimination and harassment cases. Other areas of interest include alternative dispute resolution and regulatory compliance.

LEARN HOW TO RECOGNIZE, RESPOND AND REFER

THURSDAY, NOVEMBER 9, 2017 8 A.M. TO NOON (check-in and breakfast at 7:30 a.m.) Baptist Memphis Education and Conference Center 6027 Walnut Grove Road; parking in adjacent garage

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

Employers learn to “recognize, respond and refer” when domestic violence affects and how to create a safer and more profitable work environment.

CONFERENCE FEE: $50 (LUNCH PROVIDED)

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2017 Conference Host Baptist Memorial Health Care Organized by the Memphis Area Women’s Council and Memphis Employers Alliance Against Domestic Violence


Effects of Termination of DACA on Employers By BRUCE E. BUCHANAN

Since President Trump’s announcement rescinding DACA (Deferred Action for Childhood Arrivals), most of the media has focused on the 800,000 DACA recipients – as it rightfully should be. However, there is going to be another entity impacted - employers of those 800,000 DACA recipients. Not only do employers need to be concerned about the loss of valuable employees, but employers need to be concerned with staying in compliance of immigration laws. It is fundamental immigration law that employees cannot legally work without proof of their identity and work authorization. Thus, when DACA recipients’ Employment Authorization Card (EAD) expire, employers will need to discharge DACA recipients, unless they have found another way to obtain work authorization (which is very unlikely). EAD’S EXPIRATION DATE IS CONTROLLING DOCUMENT Before employers start discharging employees, one needs to be careful not to do so prematurely. During the period of DACA’s work authorization, even beyond March 5, 2018, when the USCIS will no longer approve DACA renewals, DACA employees can be authorized to legally work. It all depends on the EAD’s expiration date. Although no renewal EAD will be issued after March 5, 2018, this doesn’t mean all DACA recipients are not eligible to work after March 5, 2018. Rather, DACA recipients are eligible to work until their EAD expires. As an example, DACA employee Jose Gonzalez has an EAD which expires on March 4, 2018, so he can renew his DACA status and EAD, if the renewal was filed by October 5, 2017. Thus, he will be eligible to work until about March 2020. On the other hand, another employee, Mohammed Ahmed, has an EAD pursuant to DACA, which expires on March 6, 2018. Unfortunately, March 6, 2018 is the date his employment must terminate because he cannot renew his EAD because it expires after the March 5, 2018 cutoff. Thus, employers must be observant of the EAD’s expiration date. At that time, an employer should request a new work authorization EAD, green card, or another document permitting the employee to legally work. If he or she is a DACA recipient, the employee will tell you they can’t renew if it is expiring after March 5, 2018. EADS’ CODES WILL SHOW WHETHER EAD RECEIVED UNDER DACA Should employers try to find out which employees are under DACA? Yes, as it may be helpful for determining how many employees will likely need to be terminated at the expiration of their EADs. However, an employer should not question employees with EADs as to whether they were obtained under DACA - it could be construed as national origin discrimination. How does an employer even know whether the EAD is through DACA, TPS, withholding of removal, or some other means? There is a code on the front of the EAD card. For DACA, the code is C33. This code is different than codes for TPS or withholding - A10, A12 or C19. CAN EMPLOYERS DISCHARGE DACA RECIPIENTS NOW? Some employers may ask why can’t I just discharge DACA recipients now. First, they are probably very good employees – as so many of them are proud to be legally working for the first time in their lives. Second, hopefully Congress is going to pass the DREAM Act or some other legislation that will provide for lawful employment for DACA recipients; thus, employers won’t have to face the issue. As to whether you can legally discharge DACA employees, this is an issue as to whether they are protected individuals under the anti-discrimination provisions of the Immigration and Nation-

ality Act, administered by the Immigrant and Employee Rights Section of the Department of Justice; or any other applicable laws. At present, this issue is uncertain. In Gonzalez-Hernandez v. Arizona Family Health Partnership, an OCAHO decision from 2015, the Court found the employer did not discriminate against the Complainant by not hiring him because a DACA recipient is not a protected individual for citizenship status discrimination. Recently, a lawsuit was filed against Proctor & Gamble (P&G) by a DACA recipient due to being rejected for a paid internship. The Plaintiff based his claim on the Civil Rights Act of 1866 alleging P&G was biased against non-permanent residents, who had work authorization. This lawsuit is currently pending in federal court for the Southern District of Florida. However, a federal judge in the Southern District of New York, in Juarez v. Northwestern Mutual Life Ins. Co, (2014) has held 42 U.S.C. § 1981 (confers legal rights equally to all citizens, including the right to contract) provides protection against discrimination “to all lawfully present aliens.” These cases involve hiring as opposed to discharging. Is that an important distinction? It is uncertain at this time. PENALTIES FOR RETAINING DACA RECIPIENTS AFTER EAD EXPIRES Some small employers may be thinking I’m just going to look the other way and not terminate DACA recipients when their work authorization expires. Although I can understand employers not wanting to hurt their DACA employees, employers need to consider their own situation. If an employer continues to employ a worker after his work authorization expires, is not renewed, and no other work authorization is provided, they are subject to “knowingly” employing an undocumented worker. The fines for such a first offense range from $539 to over $4,384, with a fine of over $3,000 being the most likely. If you have five DACA employees that you retain without work authorization, you are looking at a fine of $15,000 before Immigration and Customs Enforcement (ICE) has even looked at your Form I-9s for substantive violations. So, your heart may tell you to keep DACA recipients without work authorization; but, listen to your head, which is filled with dollar signs for fines and penalties. For the answers to many other questions related to employer immigration compliance, I invite you to read my new book, The I-9 and E-Verify Handbook, available at http://www.amazon.com/dp/0997083379.

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

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7 Ways to Develop a Challenge Culture at Work BY HARVEY DEUTSCHENDORF

“It makes no sense to hire smart people and tell them what to do. We hire smart people so they can tell us what to do.” STEVE JOBS

Getting smart people in organizations to feel free to give feedback and challenge ideas doesn’t just happen. Many long standing organizations such as Kodak, Sears and Borders have failed to adapt to the reality of today’s world have found themselves becoming irrelevant. One of the reasons is that the leaders did not receive valuable information that may have helped the organization turn around. Many leaders find themselves in a vacuum, unwilling to receive or seek information crucial to the health of their organization. In today’s highly competitive, fast moving environment, businesses need to have everyone, and their ideas, on board. It is crucial to develop an environment that promotes and encourages constant feedback and to challenge ideas at all levels. According to Vip Sandhir, CEO and founder of High Ground, creating a challenge culture is key to employee engagement and an organization’s growth and future. Here are 7 Ways to Develop a Challenge Culture at Work: Establishing the right culture The culture of an organization determines the parameters within the people interacting, what is acceptable and expected. It must be made clear to new hires that not only should they feel free to challenge ideas at all levels, it is what will be expected of them. At High Ground, a great deal of time is spent from the outset establishing values and behaviors on a 1:1 basis. Scott Kelly, Chief Human Resource Officer of Hitachi Data Systems, states that “from day one on the job, new employees are not just encouraged, but expected to be self- starters with a solution-oriented mindset who feel empowered to challenge the status quo to drive the best outcomes for our customers and our company.” Building a culture of trust In order for there to be honest, timely and effective feedback, it is imperative that everyone is able to trust management and each other. The building of trust starts at the top with leaders being witnessed not only doing the talk but walking the walk. If employees see any hesitancy of leaders to be challenged or feel that their ideas and feedback will not be welcomed, they will not be willing to take the risk in sharing with them. By demonstrating that they not only seek fresh ideas that are different from their own, but acting upon them, leaders will let everyone know that it is okay to challenge them and each other. According to Scott Kelly at Hitachi Data Systems, “In our fast-paced world, decisions have to be made, and we can’t always wait for a common consensus. In those cases, trust wins out, with employees committing to the new direction.” Continuous, open and timely feedback Practicing open feedback and challenging ideas should not only be reserved for meetings or on occasions reserved for that purpose. To do so sends the message that it is not the norm. It needs to be done regularly and continuously during 1:1 opportunities and during regular interactions that are part of the workplace. When feedback and ideas are bounced around regularly and openly, it gives people the confidence to share, challenge and speak out as they come to see it as just the way things are done around here. At Hitachi Data systems, employees are all expected to give and receive feedback with “emotional 
maturity.” www.HRProfessionalsMagazine.com

While maintaining their values and vision, organizations that are constantly looking for better ways to do things are by nature more open to being challenged at all levels. Forget the idea box that is never opened and when ideas are never implemented. The hallmark of such organizations is creating an environment whereby everyone is always striving towards continuous improvement. People who come up with usable ideas are acknowledged and held up as role models for what the organization stands for. Effort and risk taking are genuinely appreciated

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Constantly challenging the status quo

One of the easiest ways to kill a challenge culture is to create fear around taking risks and failing. This happens when people take risks, fail and then punished, or perceived to be punished for doing so. Starting with management, praise and appreciation needs to be heaped upon people who give their best effort and tried something new even though things did not work as well as expected. Instead of scrutinizing the failure, the focus needs to be on the learning that came from it. This practice must start from the top. It gives the green light for people to take some risk without the fear that they will pay a price if things don’t work out. Establish and share accountability Empowering others to challenge and feel free to give input does not work unless they are held accountable at the same time. In this new model of doing things, everyone takes ownership and credit when things go well and as well as responsibility when things don’t go as planned. In the old top down model when things went awry, staff could place the blame on management for making bad decisions. Management could model the behavior by openly and publicly sharing credit for decisions that worked well and acknowledging their part when things went off the rails. Taking responsibility from the top down will encourage everyone in the organization to do so. Work on developing emotional intelligence Developing an open, safe, trusting workplace where everyone feels free to challenge and share their ideas is easier if the employees are self-aware of how they come across to others with empathetic and well-developed listening skills. As VIP Sandhir of High Ground states, we have to be able to “read between the feelings” in attempting to understand and communicate with each other in the workplace. People who do well in the modern workplace model are those who are open to not only diverse and challenging ideas, but are also looking for ways they can improve themselves.

Harvey Deutschendorf Harvey Deutschendorf is an emotional intelligence expert, internationally published author and speaker. To take the EI Quiz go to theotherkindofsmart.com. His book THE OTHER KIND OF SMART, Simple Ways to Boost Your Emotional Intelligence for Greater Personal Effectiveness and Success has been published in 4 languages. Harvey writes for FAST COMPANY and has a monthly column with HRPROFESSIONALS MAGAZINE. You can follow him on Twitter @theeiguy.


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November 2017 issue  

November 2017 issue