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Volume 3 : Issue 10 TM

Highlights of 2013 TN SHRM Conference & Expo Highlights of 2013 TN AR SHRM Employment Law and Legislative Conference


Responds to Attack on Its Criminal Background Checks Guidelines


Labor & Employment Law Attorneys Accommodating the Intellectually Disabled

Dennis Stull,

SPHR, CDE President, MT SHRM

Highlights of 4th Annual Mississippi

Health Care

Reform Summit





What you don’t hear can still hurt you. The things employees say when you’re not around can cause legal troubles for you. Fisher & Phillips provides practical solutions to workplace legal problems. This includes helping you find and fix these kinds of employee issues before they make their way from the water cooler to the courthouse.

1715 Aaron Brenner Drive • Suite 312 • Memphis, TN 38120 • 901.526.0431






Bringing Human Resources & Management Expertise to You


increase in FLSA lawsuits filed since 2000. Editor

Cynthia Y. Thompson, MBA, SPHR Publisher

The Thompson HR Firm HR Consulting and Employee Development Art Direction

Park Avenue Design

Features 4 Note from the Editor 5 Profile: Dennis A. Stull, SPHR, MBA, CDE


12 EEOC Responds to Attack on Its Criminal Background Checks Policy

The World’s Greatest Little Coffee Shop by Harvey Deutschendorf, author of The Other Kind of Smart

19 Top Attorneys in Labor and Employment Law in TN, MS, AR

Contributing Writers

Martha Boyd Latosha Dexter Donna S. Galchus Voss W. Graham Jennifer Hagerman Timothy Lindsay Tanja J. Thompson Jeff Weintraub Board of Advisors

Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR John E. Megley III, PhD


Departments 16 OFCCP: Navigating the Final Rules that Change Affirmative Action Plans 30 FLSA: Wage and Hour Worries 32 ADA: Accommodating the Intellectually Disabled 34 EEOC v. United Airlines – Mandatory Reassignment as a Reasonable Accommodation 35 NLRB: Obama NLRB is “Guarded” In Its Ruling on Company’s Electronic Media Policy 36 ER: Employee Handbooks – Formality Can Be Your Friend 38 Retention: Is it Time to Watch you Retention Rates?

Terri Murphy Susan Nieman Robert Pipkin 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 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. ©2011 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.

Industry News 6 Highlights from the 2013 TN SHRM Conference Agenda 11 Highlights from the 4th Annual Mississippi Health Care Reform Summit 14 Highlights from 2013 AR SHRM Employment Law and Legislative Conference

Next Issue Highlights from AR SHRM Leadership Conference in Russellville, AR Highlights from HR Legal Summit in Memphis, TN WT SHRM Annual HR and Employment Law Fall Conference in Jackson, TN


a note from the Editor

Happy Fall to all! We are celebrating the fall with lots of HR conferences and opportunities to earn HRCI credits. We had so much fun at the 2013 TN SHRM Conference in Nashville last month! I hope you will enjoy reading the highlights in this month’s issue. We also have highlights of the 2013 AR SHRM Employment Law and Legislative Conference in Little Rock. Don’t forget to “Like” us on Facebook and view all the photos from the conference activities. You might have an opportunity to connect with one of your HR friends you haven’t seen in a while! Take a look at I hope you were following me on Twitter for both conferences as I brought you up-to-the minute descriptions of the Conferences and presentations. We had the privilege of attending the 4th Annual Mississippi Health Care Reform Summit at Mississippi College in Clinton, MS on October 8. Be sure to read the highlights on page 11. Special thanks to Billy Sims, Director of HR at Southern Farm Bureau Life Insurance, in Jackson, MS for inviting us to this outstanding Conference. Special thanks also to the Capitol Area Human Resources Association in Jackson and to the Mississippi SHRM State Council for sponsoring this wonderful summit. Meet Shannon Pierce I am delighted to introduce Shannon Pierce as the newest member of the HR Professionals Magazine team. Shannon is our new Relationship Management Consultant and will be assisting us grow through developing new sponsorships and relationships in the HR community in TN, MS and AR. Shannon is a graduate of Mississippi State University and recently returned to Memphis from Morristown, TN, where she was in Sales and Marketing for the Hello! Morristown Magazine. Shannon is also an experienced Employee Benefits Specialist and will be a great asset to our team! You will have the opportunity to meet Shannon at our next Strategic Leadership for HR Executives Seminar. Stay tuned for more details. Please join us on October 22nd from 4:30 to 6:00 PM CST for “How to Be a Human Resource Strategic Business Partner: An Overview of HR Strategic Leadership.” Here is the link to register. You may also email Judith Tavano at for more details. This will be an interactive online workshop sponsored by the University of Arkansas Global Campus. The workshop has been approved for 1.5 HRCI strategic business credits. Don’t forget about our monthly complimentary webinar sponsored by Data Facts. This month’s presentation is called “Topgrading – Strategies for Hiring A Players”, and will be on October 30 at 2 PM. Be watching for our monthly eBlast with registration details or email for the registration link. HRCI strategic business credit is also pending for this event.

Cynthia Y. Thompson | Editor

Sign up for our RSS News Feed to receive up to the minute HR Alerts on changing legislation affecting our workforce.


Dennis a. Stull on the cover

Dennis A. Stull, SPHR, CDE President, MT SHRM

Dennis is the Director of Human Resources for Ghertner and Company, a property management firm establish in 1968, and named a 2013 Top Place to Work Company by The Tennessean. Dennis has over twenty years of human resource management and business operations experience including consumer goods, automotive manufacturing, energy, retail, restaurant, healthcare, consultant services, and property management industries. He has worked with start-up ventures to more established and maturing organizations; all of these operations have shaped his unique HR career.

Dennis graduated Cum Laude with a BS in Management and a MBA degree from Indiana Wesleyan University. He earned the Professional Human Resources (PHR) certification in 1998, and the Senior Human Resources Professional certification (SPHR) in 2000 from the Human Resources Certification Institute. In 2013, Dennis earned the Certified Diversity Executive (CDE) certification from The Society of Diversity, and was awarded the James House Williamson Award recognizing outstanding contributions to the Human Resources profession in the state of TN.

Dennis has been a national member of the Society of Management for Human Resources (SHRM) since 1998, a member of Middle Tennessee Society for Human Resources Management (MT|SHRM) since 2008, and has served as the Communication Chair, President-Elect and is currently serving as the President on the Board of Directors. In 2012, he re-established a Diversity & Inclusion Chair position on the MT|SHRM board which has been working in tandem with other TN based D&I organization including Middle Tennessee Diversity Forum and the Tennessee Diversity Consortium to achieve greater D&I collaboration in the state of TN. Dennis was invited to join the National SHRM Diversity & Inclusion Panel for 2013. Dennis joined The Society of Diversity in 2013. Dennis has also previously served as the Legislative Affairs Director for the IndySHRM Chapter in 2007 – 2008 and the Indiana State SHRM Diversity Director – North in 2008. In addition to giving back to the HR Profession, Dennis has been helping those who make the decision to continue or “re-start” their educational journey by doing adjunct faculty and Visiting Professor work since 2003. He continues to teach online courses with Indiana Wesleyan University. He has also enjoyed the opportunities to instruct onsite courses with Concordia University (2007-2008), Aquinas College (2009-2010), Devry University, and Keller Graduate School (2010-present). 


Highlights from the

2013 Tennessee SHRM Conference & Exposition day, Mon t.16 Sep

day, Sun t.15 Sep

What Sets You Apart? Insider Secrets of Executive Selection Inspirational Leadership – Leading and Creating Possibility

John Daniel, EVP, and Chief HR Officer for First Tennessee National Corporation, shared his perspective on guidelines for leadership in action.

Disaster Planning and Recovery

Shelly Trent, SPHR, Field Services Director – Southeast Region, SHRM, Alexandria VA., spoke on issues to consider when developing and implementing a disaster recovery plan and resources that will aide you in planning for and reacting to a disaster.

How to Motivate Employees (While Spending Virtually No Money)

Gary Manor is Executive Director, 21st Century Leadership Institute. This session explored ways to maintain morale in your organization, while not depleting the budget.


Legal and Legislative Panel

Gene Mage, Executive Director for the Center for Executive Education at Belmont University, was the presenter at this workshop. Participants discovered what decision makers really look for when assessing executive talent for mission-critical roles.

Fred Bissinger is Regional Managing Member of Wimberly Lawson Wright Daves & Jones and was the moderator of the legal and legislative panel discussion on EEOC Strategy – the defense perspective. Other panelists were Jan Harris, Shareholder with Ogletree Deakins Nash Smoak Stewart, PC; Anne Martin, member Bone McAllester Norton; and Sally Ramsey, Senior Counsel with Constangy, Brooks & Smith, LLP.

Behavior Interviews – More Than Meets the Eye

Michelle Hinton is a Recruiter with Hospice Compassus. In this session, participants learned about the three types of motivational fit and how to use motivational fit to sell the job to the selected candidate to increase the likelihood that your candidate will accept the job offer.

How to Think Like a CEO

Bonnie Cox is Founder of the Power Training Institute and her presentation focused on the important business drivers that influence an organization and how to effectively communicate with your top executives.

day, Tuest.17 Sep

Dennis Stull, MT SHRM President, with Trish Holliday.

Creating a Mentoring Culture

Trish presented The Effect of Employee Engagement on Corporate Image. She is a member of the Department of Human Resources’ executive team as Chief Learning Officer for the State of Tennessee.

Leigh Ann Roberts with J. D. Papa & Roberts, PLLC, is a civil mediator. In this session participants learned the benefits of a mentoring culture and how it creates loyalty and agility and can help ensure a successful future for your organization.

401(k) Plan Compliance Violations & Corrective Procedure

Jeanne Fisher, CFP, MBA, is a Qualified Plan Specialist for ARGI Financial Group in Louisville, KY. She and Kristin Dunlevy, also a Qualified Plan Specialist for ARGI, highlighted the most common Qualified Plan compliance violations and procedures for correcting and preventing future violations.

a rd s n Awons o e h i Luc sentat P re

Keynote Luncheon Presentation on Strategic Business Management

Dr. Michael Watkins wrote the “onboarding bible”, The First 90 Days. He is Chairman and Chief Intellectual Officer at Genesis Advisers. He has helped thousands of executives navigate their transitions into new roles.

2013 Human Resources Professional Excellence Awards

Bill Cooper presented the 2013 Human Resources Professional Excellence Award to Verta Ross.

2013 Student Scholarship Awards

Bill Cooper, Awards Chair of the TN SHRM State Council, presented the James House Williamson Scholarship Award to Kesleah Hall. Kesleah is a student at Belmont University.

Bill Cooper also presented Treva Richardson with the 2013 Human Resources Professional Excellence Award.

Bill Cooper presented the Joseph Paul Goddard Scholarship Award to Josh Scull. Josh is a student at the University of Tennessee at Knoxville.

2013 James House Williamson Award

Bill Cooper (L) and Art Smith (R), Executive Director of MT SHRM, presented the 2013 James House Williamson Award to Dennis Stull (C), President of MT SHRM. This is Tennessee’s most prestigious Human Resources Award.


18 ept. e S , y a tiv nesd isla We d a l & L e g Leg

Union Avoidance – HR’s Strategic Role in Keeping the Workplace Union Free

Kim Vance is a Shareholder with Baker Donelson in Nashville. Her presentation explored how HR professionals can successfully develop and implement a union avoidance strategy into their company’s business plan.

How to Conduct an FLSA Self-Audit

Kara Shea is Labor and Employment Practice Group Leader for Butler Snow in Nashville. This presentation provided a step-by-step guide to help HR professionals learn how to conduct a full self-audit for wage and hour compliance.

Special Thanks to Our Sponsors Who Participated in the Exposition!

Data Facts

LifeSigns | The Prevention Group



Waddell & Reed Memphis

Colonial Life

The 4th Annual Mississippi Health Care Reform Summit was held October 8th at Mississippi College in Clinton, MS. The Summit brings together national health care experts and key state leaders in government and business to address the most pressing topics businesses face in managing health care programs and costs. Summit participants heard directly from our state policy makers, medical leaders and corporate professionals on the leading edge of the changes sweeping through Mississippi’s health care system. Sponsors of the Health Care Reform Summit were Mississippi College School of Business, CAHRA, Southern Farm Bureau Life Insurance Company, Mississippi Business Group on Health, the Mississippi SHRM State Council.

Kristena Gaylor, Ph.D., Asst. Professor of Economics & Management at MC School of Business presented Health Care Reform and the Economy.

Pepper Crutcher, Partner, Balch & Bingham, LLP spoke on Health Care Compliance & Exchanges.

Cheryl Larson, VP, Midwest Business Group on Health, discussed the Effectiveness of Business Coalitions.

The Mississippi SHRM State Council was a sponsor of the Health Care Reform Summit. (L-R) Billy Sims, Susan Holland, Janna Rogers, Lori Chester, Jan Farve, Christy Wright, Shannon Crowe.

Murray Harber, Mississippi Business Group on Health, was the moderator for a panel discussion on the ROI of Managing Employee Health. Ty Harrell, Director of Insurance & Human Resources, Electric Power Associations of Mississippi; and Jim Brown, VP Benefits, Trustmark Bank were panelists.

Thomas Prewitt, M.D., HDI Director, Horne, LLP presented Changes in Health Care Delivery and How They Impact the Business Community.

Bill Ray, President and CEO, BankPlus, provided a CEO’s Perspective on Health Care Management.

Chris Byrd, Director of the Mississippi SHRM State Council welcomed participants and invited them to attend the MS SHRM State Conference in May 2014 at the Beau Rivage in Biloxi.

Al Stubblefield, President, Baptist Leadership Group; President Emeritus, Baptist Health Care spoke on Quality Health Care in Changing Times.

Marshall Bouldin, Chief Medical Officer, Diabetes Care Group, discussed Reinventing Health Care: Successful Disease Management.

Jeffrey A. Drozda, CEO, Mississippi Association of Health Plans, closed the Summit with his presentation on Health Plans Perspective of Health Care Reform.




The EEOC Responds to Attack on Its Criminal Background Checks Policy By Jeff Weintraub and Jennifer Riley

In April of 2012 the EEOC released updated guidance regarding the use of criminal background checks in employment. This guidance – Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 – has been heavily criticized by courts and employers since its release, yet the EEOC continues to file federal lawsuits accusing employers who consider criminal histories in hiring of violating Title VII of the Civil Rights Act of 1964 (“Title VII”). In late July, nine state attorneys general drafted a letter to the EEOC seeking reconsideration of the guidance on criminal background checks and raising concern regarding two EEOC lawsuits, filed in June, challenging criminal background exclusions under Title VII. The EEOC responded to the letter on August 29, 2013, explaining, what the EEOC termed, “misunderstanding” of the guidance. The Updated EEOC Guidance Use of criminal background checks is a common practice among employers; however there is a risk that the use of such checks may violate the anti-discrimination provisions of Title VII. The EEOC’s guidance on the matter builds upon the long-standing policy that, if an employer uses a criminal background check that results in an adverse impact on a protected class, then the employer must present a “business necessity” for the particular selection criteria and show that the criteria is job-related. The updated guidance goes on to expand the EEOC’s discussion of disparate-treatment analysis by providing examples of how analysis of an applicant’s criminal record may lead to unfair treatment. Violations may occur if: • A  n employer treats criminal history information differently for different applicants or employees based on their race or national origin. • An employer’s neutral policy, e.g., excluding applicants from employment based on express criminal conduct, may disproportionately impact some members of a Title VII-protected class if the policy is not consistent with business necessity and job-related. Also included in the updated guidance are two scenarios that the EEOC considers will consistently meet the “job-related” and “business necessity” defense. One is that the employer’s criminal screening process is drafted so as to take into consideration the nature of the crime, the time elapsed since commission, and the nature of the job, and additionally provides an opportunity for an individualized assessment of the applicants otherwise excluded by the screen to determine whether the policy as applied is job-related and consistent with business necessity. The Attorneys General Letter The letter attacks the EEOC on seemingly taking the position that the use of bright-line criminal background checks in the hiring process violates Title VII. The letter articulates a belief that the EEOC solidified a position that a neutral policy using prior criminal convictions as a job screen has a disparate impact on minorities. The letter also berates recent cases brought by the EEOC against BMW Manufacturing Co. LLC and Dolgencorp LLC, a Dollar General Corp. subsidiary, saying, “We believe that these lawsuits and your application of the law, as articulated through your enforcement guidance, are misguided and a quintessential example of gross federal overreach.” The lawsuits In the cases brought against Dollar General and BMW, the EEOC alleges that the employers have used criminal background checks to disproportionately exclude African-Americans from their workforces. 12

The suit against Dollar General was brought on behalf of two applicants who were denied employment following criminal background checks; one rejected applicant claims she was denied employment even though a felony conviction was incorrectly attributed to her. More specifically, the EEOC attacks the company’s policy that rejects job applicants convicted of any one of 100 specified criminal offenses on the grounds of disparate impact. Dollar General denies the EEOC’s allegations and states that its screening processes are structured to foster a safe place for employment. However, the EEOC argues that the employer’s screening processes created a “gross disparity” in the treatment of black job applicants versus white applicants, with ten percent of black applicants failing the criminal checks compared to only seven percent of white applicants. In the BMW case, the EEOC brought suit on behalf of 69 AfricanAmerican workers who were terminated when BMW switched contractservice providers and required its contract workers to reapply and submit to a criminal background check. The checks revealed that 88 employees had convictions in violation of the BMW policy and that 80 percent of the violators were African-American. The EEOC asserts that BMW’s policy disproportionately affected African-Americans and does not consider the nature of the crimes nor the time passed since they were committed. Nonetheless, BMW maintains that its policy complies with the law. Summary of EEOC Reply to the Attorneys General The EEOC’s reply discards most of the statements made by the state attorneys general as incorrect misunderstandings. The EEOC responds that the agency’s guidance on the issue in no way requires individualized assessments of all applicants and employees, but instead, simply proposes a two-fold procedure for employers. Employers are encouraged to first use a targeted screen of criminal records that considers the nature of the crime, the time elapsed, and the nature of the job. Then, as a second step, the letter states, the guidance encourages employers to provide opportunities for individualized assessment for those people who are screened out. With respect to the EEOC’s BMW and Dollar General lawsuits, the EEOC comments that, while the merits of the cases will be determined in court, each is a challenge of a criminal history screening process that the EEOC has found disproportionately impacts African-Americans, is not job-related, is not consistent with business necessity, and is thus in violation of Title VII. As we all await further judicial decisions, employers may wish to examine their criminal background checks policies. While we think the EEOC is off-base here, employers that don’t want to become the next test case might consider avoiding blanket checks, instead examining whether such checks are justifiable based on the type of position in question.

Jeff Weintraub Managing Partner Memphis Office Fisher & Phillips LLP

Jennifer Riley Paralegal Fisher & Phillips LLP

Burch, Porter & Johnson PLLC

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HIGHLIGHTS FROM THE 2013 AR SHRM Employment Law & Legislative Affairs Conference

Legislative Panel (L-R Front Row) Kelly DeStefano, Director of AR SHRM; Jane English (R), Arkansas State Senate District 34; Stephanie Amerson, 2013 ELLA Chair; (L-R Back Row) Courtney Sheppard, Lobbyist for the AR SHRM State Council; Arkansas Rep. Bruce Cozart (R) of Hot Springs, District 24; Arkansas Rep. Mark Biviano (R), District 46; and Arkansas Rep. John Blaine (D), District 7; Steve Schulte, J.D., SPHR, Past AR SHRM State Director. Courtney Sheppard was the moderator for the legislative panel that was held following the closing luncheon on Thursday, September 18. He led the Q & A session on new and pending state and federal legislation impacting the HR community in Arkansas.

e-Discovery Jamie Jones is a partner in the Business and Class Action Litigation Group at Friday, Eldredge, and Clark, LLP. She led a lively discussion on electronic documentation and communication in the workplace. HR professionals are often confused about what documentation and communication to retain and what to discard regarding employee discipline and termination issues.

Managing Smartphones in the Workplace Ellen Owens Smith is a partner in the Labor and Employment Litigation Section of Friday, Eldridge & Clark, LLP. Her presentation about managing smartphones in the workplace was very informative and timely for HR professionals as many employees now have a smartphone with them at all times, which can cause wage and hour issues as well as security problems.

OFFCP: Navigating the Complexities of Recent Compliance Changes Donna Gulchus, Director with Cross, Gunter, Witherspoon & Gulchus, P.C. spoke on the new and pending changes to OFCCP regulations. Please see Donna’s article on Page 16 for a comprehensive update to these changes related to the OFCCP. Donna was recently named one of the top labor and employment law attorneys by Chambers and Partners. Read more about her on page 26.

Capitol Building in Little Rock Great view of the Arkansas State Capitol Building from the Pinnacle Room at the Marriott Hotel during the Reception on Wednesday night sponsored by Cross, Gunter, Witherspoon & Gulchus, P.C.


A Labor Arbitrator’s Perspective of Discipline and Discharge Dr. Robert Wayland, Ph.D., SPHR, retired as the Director of Employee and Labor Relations and Associate Professor of Management (tenured) at Eastern Illinois University in 2007. Dr. Wayland was granted a lifetime certification as a Senior in Human Resources from the Society for Human Resource Management. He continues an employee and labor relations consulting practice for various organizations. His presentation was very informative from a labor perspective on the topic of employee discipline and discharge.

Health Care Reform Panel (L-R Top Row) Robert Thompson (D) representing the 20th District of Arkansas, Tom Hayes, Employee Benefits Practice Leader for Regions Insurance Group. (L-R Bottom Row) Cammie Scott, President and Owner of CK Harp and Associates; Cathy Van Zant, RHU, with Brown Hiller Clark and Associates; Amber Wilson Bagley, Director, with Cross, Gunter, Witherspoon & Gulchus, P.C. Tom Hayes was the moderator for the Health Care Reform Panel on Wednesday afternoon. He led the panel and attendees in a lively Q & A session covering the impact of the new Affordable Care Act on HR professionals. They also discussed the impact of the new Health Care Insurance Exchanges effective October 1, 2013.

The Marriage of Diversity and Affirmative Action Sybil Randolph, PHR, is Managing HR Consultant at Berkshire Associates, Inc. She spoke on diversity and affirmative action compliance.

Proposed Legislative Changes Danna Young serves on the Arkansas State Board of Review. Donna was previously an employment and immigration lawyer from 2004-2009. She spoke on proposed changes in immigration law.

Bullying in the Workplace Stuart Jackson, attorney with Wright, Lindsey, & Jennings, LLP spoke on bullying in the workplace and ways that HR professionals might handle it. Stuart was recently named one of the top labor and employment law attorneys by Chambers and Partners. Read more about him on page 22.

Aaron Mankin, Iraq Veteran and Wounded Warrior, was Keynote Speaker for the Opening General Session on September 18 (L) Thomas Dunlap, PHR, is the Federal Legislative Affairs Director for AR SHRM. (Center) Arkansas State Representative Sue Scott, and (R) Aaron Mankin, Iraq Veteran and Wounded Warrior. Aaron is Spokesperson for Operation Mend and gave a moving opening presentation on September 18 at the 2013 AR SHRM ELLA Conference at the Marriott in Little Rock. Sue and Aaron received the 2013 AR SHRM Friend of the Human Resource Profession Award.

Best Hiring Practices Tim Orellano, PHR, is President of the Human Resources Team in Little Rock. His presentation was on best hiring practices and strategies to prove you hired the best.

The HR Regulatory and Judicial Outlook for the Obama Administration Nancy Hammer, Manager for Regulatory and Judicial Affairs in the Government Affairs Department of SHRM, was the keynote luncheon speaker on September 19. Nancy presented an HR regulatory and judicial outlook for the Obama Administration.

Conducting Effective Internal Investigations Missy Leflar is Director of HR for the City of Fayetteville, AR, and is also an experienced employment law attorney. Her topic was conducting effective internal investigations, which HR professionals are always interested in learning more about.

Can Employees Pack Heat at Work? The discussion about guns in the workplace is one of the most controversial topics in the HR community today. Brian Vandiver with Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. spoke on this topic on Thursday, September 19. Brian was recently named one of the up and coming labor and employment law attorneys by Chambers and Partners.


What You Know Might Hurt You - Navigating the OFCCP’s Final Rules that Change Affirmative Action Plans By Donna S. Galchus

I. BACKGROUND Federal contractors and subcontractors are likely all-too familiar with this phone call from HR or your affirmative action plan (AAP) compliance specialist: “It is time to update the affirmative action plans!” Last year, when you received this call—with respect to the “women and minorities” plan—it is likely that you gathered applicant data, prepared spreadsheets and updated written materials to reflect new goals and changes in your recruiting sources. For the individuals with disabilities and veterans plans, the process likely required minimal updating. This year, the call will sound a lot different, reflecting two significant rule changes propounded by the Office of Federal Contract Compliance Programs (OFCCP) regarding hiring and employment of protected veterans and disabled individuals. II. THE RULES As a brief primer, the OFCCP is an agency within the United States Department of Labor (DOL) that enforces affirmative action plan compliance by federal contractors. Being awarded a federal contract is considered to be a privilege, not a right, and is thus conditioned on affirmatively committing to the practice of equal employment opportunity. Contractors are expressly prohibited from subjecting workers and applicants to discrimination, harassment, retaliation or termination because of their sex, race, national origin, religion, disability or because they are a protected veteran. The final rules, which take effect on March 24, 2014, make significant changes to AAP compliance requirements under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), relating to protected veterans, and Section 503 of the Rehabilitation Act of 1973 (Section 503), relating to disabled individuals. Generally, contractors must comply with VEVRAA where the contract totals over $100,000. Contractors are subject to Section 503 where the federal contract at issue exceeds $10,000. A. VEVRAA The VEVRAA Final Rule changed several requirements for government contractors with respect to hiring procedures and data collection. Specifically, the Rule requires contractors to take the following actions: (1) Set Hiring Benchmarks: The Final Rule requires that contractors establish annual hiring benchmarks for protected veterans. Contractors must use one of two methods to establish their benchmarks. Under one method, contractors may choose to establish a benchmark equal to the national percentage of veterans in the civilian labor force, which is currently eight percent. In the alternative, contractors may establish their own benchmarks using certain data from the Bureau of Labor Statistics and Veterans’ Employment and Training Service/ Employment and Training Administration, as well as other factors that reflect the contractor’s unique hiring circumstances. It is important that these are referred to as “benchmarks” and not goals. (2) Increase Data Collection: Contractors must now document, update annually and retain for three years several quantitative comparisons for the number of veterans who apply for jobs and the number of veterans they hire. (3) Invite Applicants to Self-Identify: Contractors must invite applicants to self-identify as protected veterans at both the pre-offer and postoffer phases of the application process, and must also allow the current workforce such opportunity. The Final Rule provides sample language. 16

(4) Incorporate an Updated Equal Opportunity Clause: Specific language must be used when incorporating the equal opportunity clause into a subcontract by reference. (5) List Jobs as Required by State Office: When listing job openings, contractors must provide such information in a manner and format permitted by the appropriate State or local job service. (6) Allow OFCCP Certain Record Access: Contractors must allow the OFCCP to review documents related to a compliance check or focused review, either on-site or off-site, at the OFCCP’s option, informing the OFCCP of all formats in which the records are maintained. B. Section 503 The Section 503 Final Rule is similar to the VEVRAA Final Rule in that contractors must follow the same procedures outlined above with respect to data collection, self-identification, incorporation of an equal opportunity clause and records access by the OFCCP. The Rules are different in that, under Section 503, contractors must strive to hire individuals with disabilities to comprise at least seven percent of employees in each job group. The OFCCP says these are meant to be aspirational and are not designed to be quotas. Likewise, they are to conduct an annual utilization analysis and assessment to establish specific action-oriented programs to address areas requiring mitigation. Section 503 presents many unique challenges to employers not inherently present under VEVRAA. The number of employees with disabilities changes over time, employees and applicants may be reluctant to self-identify as disabled, and because these regulations refer to “goals,” it is unclear whether employers will be able to use the same binomial test analysis to determine underutilization currently used on females/minorities plans. II. WHAT YOU DON’T KNOW MIGHT HURT YOU The old adage, “what you don’t know won’t hurt you” is an axiom for HR Professionals familiar with the litigation exposure certain applicant questions may beget. With the self-identification requirement, employers are placed in an uncomfortable position. On the one hand, failure to comply may result in the OFCCP rescinding the federal contract award. On the other, if an applicant is not selected, employers may face increased exposure to discrimination claims. It is not yet clear how the self-identification requirement will impact litigation exposure, but one thing is certain: contractors should prepare for the implementation of the new changes. Contractors will be required to comply with most of the requirements of the new rules by March 24, 2014, although the rules give contractors additional time to comply if their plan year ends after the effective date. This year, do not take the call from HR for granted. Determine when your plan year begins and when you are required to come into immediate compliance. If your plan year is not grandfathered in, begin working with your compliance specialist immediately. Doing so will save you time, money and employee resources in the long run, and just may save your business from losing a lucrative contract.

Donna S. Galchus, Director Cross, Gunter, Witherspoon & Galchus, P.C.



Working Together in Mississippi Ogletree Deakins lawyers in Jackson, Mississippi work closely with Human Resource professionals, business executives, and inhouse counsel to anticipate, prevent and resolve legal issues in the workplace. Our experience and knowledge of our clients’ industries and legal challenges enable us to serve their interests effectively and efficiently.

We remain committed to providing our clients with an insider’s view of the workplace issues of the day. With more than 650 attorneys in more than 40 offices located in the United States and Europe, the firm combines local knowledge and strength with national resources.

Jackson office attorneys L-R: Timothy Lindsay, Robin Banck Taylor, Kristi Haskins Johnson, Bert Ehrhardt 100 Renaissance • 1022 Highland Colony Parkway, Suite 200 • Ridgeland, MS 39157 • 601.360.0995 LAW FIRM OF THE YEAR Litigation – Labor & Employment LAW FIRM OF THE YEAR Employment Law - Management

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It is our pleasure to introduce the 2013 Chambers USA list of top labor and employment law attorneys in TN, MS, AR. Chambers and Partners annually publish their leading guides to the legal profession. A team of 100 highly-qualified full-time researchers identify and rank the world’s best lawyers and law firms based on in-depth, objective research. Their researchers conduct thousands of confidential interviews with lawyers and their clients worldwide. For more details about Chambers and Partners research, please visit their website at This list is not inclusive and represents the firms that responded to our inquiry.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Firm Overview: Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. The firm has 700 lawyers located in 45 offices across the United States and in Europe. Ogletree Deakins was named “Law Firm of the Year” in both the Litigation – Labor & Employment and the Employment Law – Management categories in the 2013 edition of U.S. News – Best Lawyers “Best Law Firms” list. In addition to handling labor and employment law matters, the firm has thriving practices focused on business immigration, employee benefits, and workplace safety and health law. Ogletree Deakins represents a diverse range of clients, from small businesses to Fortune 50 companies. Timothy W. Lindsay has practiced exclusively in the field of labor and employment law on behalf of management since 1987. With more than 25 years of litigation experience, Tim has served as lead counsel for public and private sector employers in defense of civil actions involving Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Fair Labor Standards Act, the Family and Medical Leave Act, ERISA, the First and Fourteenth Amendments to the United States Constitution, and various employment related claims under state law such as wrongful discharge, defamation/slander, infliction of emotional distress, invasion of privacy and breach of contract. In addition to defending civil actions in court, Tim has represented management before various state and federal administrative agencies such as the Equal Employment Opportunity Commission, National Labor Relations Board, Mississippi Workers’ Compensation Commission and Mississippi Department of Employment Security.

Keith Frazier’s practice is in Nashville. Since beginning his practice of law in 1985, Mr. Frazier has represented management in the area of labor and employment law with an emphasis on preventive activity and employment litigation. Mr. Frazier served in the past as President of the Tennessee Bar Association Young Lawyer’s Division and as a member of the Tennessee Bar Association Board of Governors; Mr. Frazier also serves as the management co-chair for the budget committee of the ABA’s Labor and Employment Section. On the civic front, Mr. Frazier recently completed a term as Vice Chair of Existing Business/Workforce Development for the Nashville Chamber of Commerce. In that capacity Mr. Frazier served on the Chamber’s Board of Governors and Executive Committee. He also is a member and former Chair of the Chamber’s Employers Council. Mr. Frazier was included in the most recent editions of The Best Lawyers in America and Chambers USA.

Herbert C. Ehrhardt’s law practice in Jackson, MS began January 1977. Bert has extensive litigation experience, and has served as lead counsel in cases throughout the country, including Alabama, Arkansas, Florida, Louisiana, Mississippi, Ohio, Pennsylvania, Tennessee, and Texas. He has defended employers in cases arising under Title VII, state fair employment practices statutes, the Equal Pay Act, the Fair Labor Standards Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Family and Medical Leave Act. He has served as lead counsel on numerous class actions, including FLSA collective actions. Bert has obtained summary judgment in over 50 cases, and has tried 17 cases to verdict. He has successfully handled hundreds of EEOC charges, and numerous NLRB hearings and trials.

Tim Palmer is an experienced litigator concentrating on employment litigation and general civil litigation in state and federal courts. Palmer’s legal career spans more than two decades and he is based in Ogletree Deakins’ Nashville office. Palmer’s practice focuses on the defense of employment litigation, including discrimination claims, defense of personnel actions, and defense of employee benefit disputes. He has been selected as one of America’s leading business lawyers in labor and employment by Chambers USA and is named to the Best Lawyers in America and Super Lawyers lists. Palmer earned his J.D. from Vanderbilt University School of Law.

Fisher & Phillips LLP Firm Overview: Fisher & Phillips LLP represents employers in the Mid-South and nationally in labor and employment matters. The firm’s attorneys are committed to providing value to our clients. We treat your legal issues as business issues. Founded in 1943, the firm has more than 285 attorneys in 31 offices. Our range of experience and knowledge enables us to bring efficient and practical solutions to today's labor and employment law problems. Jeff Weintraub is the Regional Managing Partner of the Memphis office of the national management-side employment & labor firm Fisher & Phillips LLP. Jeff represents employers in jury trials in employment, harassment, and “whistleblower” lawsuits, wage and hour cases, as well as union elections and the like, in all courts and agencies, including the U.S. Supreme Court. He is licensed in Tennessee, Mississippi, Arkansas, and Missouri. He teaches the Labor & Employee Relations segment in SHRM’s HR Certification Course and trains supervisors in such matters around the U.S. Jeff has been included in The Best Lawyers in America for the last 16 years, as well as Mid-South Super Lawyers. The Memphis Business Quarterly selected Jeff as a Power Player in Employment Law, and he is included in the World's Leading Labour & Employment Lawyers (UK).


Employers in Nashville and throughout the Southeast rely on Robert E. Boston for strategic advice as well as hands-on representation in labor or employment litigation matters. Known as litigation strategist and tactician, Bob helps clients look beyond the reactive way of thinking to develop solutions to their litigation and employment issues. His amicable style and intellectual approach to problem-solving balance a formidable courtroom presence and willingness to do battle. Chambers USA recognizes Bob as a leading labor and employment attorney, and Best Lawyers lists Bob as a leader in five separate categories: Bet-the-Company Litigation; Commercial Litigation; Employment Law-Management; Labor Law- Management; and Litigation-Labor & Employment. Armin J. Moeller, Jr.’s practice focuses primarily on labor relations and employment law issues, but includes health law, business litigation, arbitration and contracts. He represents employers in maintaining non-union status, collective bargaining negotiations and arbitration. He defends employers against harassment, discrimination and retaliation claims; handles EEOC, NLRB, OSHA and other agency claims through judicial process; drafts and defends employment severance, noncompetition and confidentiality contracts; employment standards and affirmative action; advises clients regarding federal contractor compliance issues; and conducts client/management training programs. Some of Mr. Moeller’s distinctions include: listed in Human Resource Executive's "Top 100: The Nation's Most Powerful Employment Attorneys”; The Best Lawyers in America, and Chambers USA, America’s Leading Lawyers for Business.

R. Pepper Crutcher, Jr. is a counselor to and advocate for businesses and entrepreneurs in the Southeast. He is the leader of his firm’s Affordable Care Act compliance practice, Mr. Crutcher has negotiated ACA compliance terms of union contracts and regularly advises employers, employer organizations and allied interests regarding their ACA obligations. He is a frequent speaker on the subject of employer ACA compliance and he is a contributing blogger for the Affordable Care Act Review ( His litigation docket normally includes labor arbitrations, NLRB charges, and single employee suits. Mr. Crutcher also has defended consolidated, multi-district FLSA litigation and Sarbanes-Oxley and False Claims Act whistleblower investigations and suits. Some of Mr. Crutcher’s distinctions include being AV-rated by Martindale-Hubbell; The Best Lawyers in America, and Chambers USA, America’s Leading Lawyers for Business. R. Eddie Wayland has been listed in every edition of the Chamber’s USA, America’s Leading Business Lawyers since its inception. Based in Nashville, Tennessee, Eddie concentrates his practice in the representation of employers and management in employment and labor law matters throughout the country. He has litigated cases to conclusion in over 30 states and has argued successfully before the United States Supreme Court. He has also been listed by his peers for over 20 consecutive years in the book, Best Lawyers in America and has been awarded the Martindale-Hubbell peer review rating of “AV Preeminent”, which is the highest possible rating in both legal ability and ethical standards.

Littler Mendelson is the world’s largest labor and employment firm exclusively devoted to representing management. With over 950 attorneys and 57 offices throughout the U.S. and globally, Littler has extensive resources to address the needs of U.S.−based and multi−national clients from navigating domestic and international employment laws and labor relations issues to applying corporate policies worldwide. Established in 1942, the firm has litigated, mediated and negotiated some of the most influential employment law cases and labor contracts on record.

Littler Mendelson, P.C. 3725 Champion Hills Drive, Suite 3000 • Memphis, TN 38125 • 901.795.6695 20

Littler Mendelson, P.C Firm Overview: With offices in Memphis and Nashville Littler Mendelson is the world’s largest labor and employment law firm exclusively devoted to representing management. With over 980 attorneys and 57 offices throughout the U.S. and globally, Littler has extensive resources to address the needs of U.S.-based and multi-national clients from navigating domestic and international employment laws and labor relations issues to applying corporate policies worldwide. Established in 1942, the firm has litigated, mediated and negotiated some of the most influential employment law cases and labor contracts on record. Paul Prather served as a clerk for the Chief Judge of the United States District Court in Memphis. Since then he has devoted his career to representing employers in all areas of employment relations law. As a trial lawyer, he has represented employers in civil litigation in more than 20 states, trying many cases successfully to conclusion before juries. He has been annually recognized by his peers in Best Lawyers in America and in Chambers USA: America’s Leading Business Lawyers, and as one of the Top 50 lawyers in Memphis in Mid South Super Lawyers. Mr. Prather has also been recognized as a fellow of both the College of Labor and Employment Lawyers and a Fellow of Litigation Counsel of America and is also listed in The Best Lawyers of America. Jennifer Robinson has extensive experience defending employers against wage and hour class and/or collective actions involving claims of misclassification, minimum wage violations, unpaid overtime, and missed meal and rest breaks. She also counsels, trains and conducts audits for clients to ensure compliance with federal and state wage and hour laws. In addition to her wage and hour practice in Nashville, Jennifer has defended employers in more than 100 single and multi-plaintiff lawsuits involving claims of discrimination, harassment, failure to accommodate and breach of contract.

Jonathan Kaplan has devoted his entire career to representing management clients exclusively in all areas of labor relations, employment law, and human resource management. His Memphis practice spans litigation, training, and consulting, and in which he has handled matters in more than 40 states and Canada. Mr. Kaplan also is a frequent speaker before management and legal groups and has published numerous articles on labor and employment issues. He is listed in the Best Lawyers in America, Chambers USA: America’s Leading Lawyers, and Super Lawyers named him as one of the top 100 lawyers in Tennessee. Eva C. Madison’s practice is in Fayetteville and she represents and advises employers of all sizes in all aspects of Discrimination in Employment Act, the Arkansas Civil Rights Act, the Family and Medical Leave Act, the Fair Standards Act, and the Arkansas Minimum Wage Act, along with employment contract disputes and non-competition agreements. Eva is listed among The Best Lawyers in America and Chambers USA’s America’s Leading Lawyers for Business. She is an adjunct professor at the University of Arkansas School of Law, where she has taught a course on employment discrimination since 2004. Eva earned her J.D. from the University of Arkansas, summa cum laude and her B.S. from Vanderbilt University, magna cum laude.

Jay Kiesewetter began his career as an attorney with the National Labor Relations Board and has devoted his practice to representing clients nationwide in the “traditional” areas of labor law. He counsels employers in union free management and advises non union companies facing union organizing activity. He also represents employers in litigation before the NLRB and U.S. Courts of Appeals. In addition, Mr. Kiesewetter works with companies that have unions to improve union management relations and represents management in contract negotiations, arbitrations, and labor disputes. He is listed in Best Lawyers in America, Chambers USA: America’s Leading Lawyers, Top One Hundred Super Lawyers in Tennessee, Top 50 Super Lawyers in Memphis, and Business Tennessee’s “150 Best Lawyers in Tennessee.”

Arnold Perl focuses his Memphis practice on labor and employment law. He has successfully argued many cases before various United States Courts of Appeals, and is admitted to practice before the United States Supreme Court. He has extensive experience counseling organizations on remaining union free. He leads a uniquely effective leadership development program for all levels of management. In 2006, Arnold coauthored, Simple Solutions, with Tom Schmitt from FedEx published by John Wiley & Sons. The book offers guidance and real-world insight on making collaboration work, tailoring leadership styles to fit team needs, assembling great teams and inspiring people.

Bill Ozier - Bill’s long career has focused on assisting clients in the day-to-day operations related to labor law and in defense of age, gender, national origin, religion, disability, retaliation and race discrimination claims; sexual harassment matters; union avoidance; and collective bargaining agreements including both disciplinary actions and contract interpretation. His experience earned him recognition in The Best Lawyers in America®, Who’s Who in American Law, Lawdragon 500 and Lawdragon 3000 Leading Lawyers in America, and in American College of Trial Lawyers.


Wright, Lindsey & Jennings LLP Firm Overview: Wright, Lindsey & Jennings LLP is a full-service law firm with offices in Little Rock and Rogers, Arkansas. Founded in 1900, the firm now consists of some 67 lawyers. Interaction among the practice groups enables the firm’s members to address legal issues while remaining sensitive to the business considerations inherent in every legal matter. The firm strives to understand each client’s particular needs and to address them in a costefficient and timely manner. John D. Davis concentrates his Little Rock practice in the areas of labor and employment law and workers’ compensation. He spends a considerable amount of his time advising clients in connection with a variety of employment-related matters, including terminations, severance agreements, wage and hour issues, union avoidance, union negotiations, arbitrations, personnel policies, and compliance with federal, state, and local employment laws. Davis has received an AV® Preeminent™ 5.0 out of 5 Peer Review Rating through Martindale-Hubbell, and is listed among The Best Lawyers in America, Chambers USA and Mid-South Super Lawyers. Michelle M. Kaemmerling’s practice focuses on employment and commercial litigation in state and federal court, including appeals. She has also represented a number of defendants in employment and consumer class action lawsuits. In addition to her litigation practice, Kaemmerling regularly advises employers regarding compliance with state and federal employment laws and develops personnel policies, employment agreements, covenants not to compete, and other employment-related contracts. She has practiced law in the Little Rock for more than ten years. Kaemmerling has been recognized as a “Rising Star” by Mid-South Super Lawyers and as a “Leader in the Field” by Chambers USA.

Stuart Jackson has practiced employment law in Little Rock for over twenty years. He advises employers on compliance with the civil rights laws and developing personnel policies, employment agreements, and covenants not to compete. Jackson also defends employers in federal and state court litigation and appeals under the civil rights laws, including claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act, and the Arkansas Civil Rights Act. In 2009, Governor Mike Beebe appointed Jackson to serve as a Special Justice on the Arkansas Supreme Court to hear the case Arkansas Department of Correction v. Williams. He currently serves on the Arkansas Bar Foundation Board of Directors as a representative for the Central Bar District. Jackson has been recognized by Chambers USA as a “Leader in the Field” since 2005 and has an AV® Preeminent™ 5.0 out of 5 Peer Review Rating through Martindale-Hubbell. John G. Lile has practiced law in Arkansas for almost 50 years. Peers in employment litigation describe him as “experienced, honorable and straight-forward.” Another client said he is “excellent in the courtroom with well-rounded experience.” His practice in Little Rock concentrates on product liability defense, employment defense, and commercial litigation. Lile has been acknowledged by The Best Lawyers in America, Mid-South Super Lawyers and as a “Senior Statesman” by Chambers USA.

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113 years of history & 67 attorneys & 2 locations & 33 practice areas & hundreds of jury trials & countless successful results for our clients | ATTORNEYS AT LAW (L to R) Lee Muldrow, Neemah Esmaeilpour, Troy Price, Jane Kim, John Lile, John Davis, Michelle Kaemmerling, Stuart Jackson, David Jones | Not pictured: Delanna Padilla, Regina Young 22

Jane A. Kim’s Little Rock practice centers on defending employers in state and federal court litigation involving claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act, and the Age Discrimination in Employment Act. Kim also advises and provides training to employers on compliance with civil rights law. Chambers USA listed Kim as an “Associate to Watch.” She has been recognized as a "Rising Star" by Mid-South Super Lawyers since 2010 and was named to the inaugural Arkansas Business list of "Women to Watch" in Central Arkansas. Lee J. Muldrow has been engaged in general litigation and workers’ compensation defense in Little Rock for over thirty years. His litigation practice primarily involves a wide variety of insurance defense cases, including copyright, trademark, and trade dress litigation. His workers’ compensation practice entails representing employers, self-insured companies and insurance carriers. Muldrow is listed in The Best Lawyers in America in the areas of “Worker’s Compensation Law” and “Health Law,” Chambers USA and Mid-South Super Lawyers. He has also received an AV® Preeminent™ 5.0 out of 5 Peer Review Rating through Martindale-Hubbell.

Watts, Donovan & Tilley, P.A. Firm Overview: Watts Donovan & Tilley is a full service litigation law firm with a subspecialty in employment law. The firm is counsel to employers throughout Arkansas. We defend discrimination and wrongful discharge claims at the administrative, trial, and appellate levels. Watts, Donovan & Tilley is nationally recognized as one of the elite litigation firms in Arkansas. In addition to representation in contested matters, the firm provides counsel to employers on sensitive labor issues. We understand that our clients' need for aggressive effective representation also requires a commitment to confidentiality and privacy. The firm focuses on the education and health care sectors, with extensive representation of public and private entities. The firm has recognized expertise in ERISA matters. Please give us a call, or visit our website, David Donovan is one of the select few Arkansas litigators who is both an accomplished trial and appellate lawyer. A member of the both the American Board of Trial Advocates and the American College of Trial Lawyers, David has represented employers in employment and ERISA litigation. Recognized by Chambers & Partners (USA) as one of the top labor and employment lawyers in Arkansas, David has litigated some of the most important cases before the Arkansas Supreme Court and the Eighth Circuit Court of Appeals on employee disability and ERISA claims. Janet Pulliam’s practice areas are employment and labor, health care, commercial, educational law, and class action litigation. She counsels and advises clients on best practices to avoid litigation, internal investigations, employment contracts and separation agreements. Chambers (USA) report: "seasoned employment attorney. . . who is lauded for her honest and unvarnished advice."(2009) She is certified in mediation and conflict resolution in health care by The American Health Lawyers Association. Janet is Vice Chair of the ABA Health Law Sections, Employee Benefits and Executive Compensation Interest Group. Member of the American Board of Trial Advocates, the Best Lawyers in America and Arkansas, as well as, Super Lawyers for the Mid-South.


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Baker Donelson Firm overview: Baker Donelson has more than 70 labor and employment attorneys offer litigation defense services for administrative and court proceedings at the federal and state level, advice on pre-litigation strategies to reduce legal risks, policy analysis and drafting, compliance audits, management training and labor negotiation. Attorneys are spread across the Firm's seven states and Washington, D.C., are licensed in 14 states, and have handled matters in 40 states and the District of Columbia. Jennifer P. Keller is Chair of Baker Donelson’s nationally-recognized Labor & Employment Department. Resident in the firm’s Tri Cities TN/ VA office, she practices throughout the Southeast and advises and defends clients on a wide variety of issues, including discipline and terminations, benefits, leave, disability accommodation, policy formulation and enforcement, and similar matters. She routinely provides training on harassment and discrimination prevention, drug-free workplace, union avoidance and other issues. Licensed in Tennessee and North Carolina, she has been listed since 2010 in Chambers USA: America’s Leading Business Lawyers, listed since 2011 in Mid-South Super Lawyers; listed since 2008 in The Best Lawyers in America; and listed in Lawdragon as one of the 40 Up and Coming Corporate Employment Lawyers since 2011. Edward R. Young’s practice is in Memphis, but he has a nationwide practice representing public and private management in all phases of labor relations and employment law, including litigation, union avoidance and collective bargaining. He has over 40 years’ experience representing clients in state and federal courts on issues dealing with EEOC, NLRB and the U.S. Department of Labor. He has litigated matters in more than 20 states and in Canada. Listed since 2008 in Chambers USA: America’s Leading Business Lawyers. Listed in The Best Lawyers in America. AV® Preeminent™ Peer Review Rated by Martindale-Hubbell. Listed in Mid-South Super Lawyers. Timothy B. McConnell’s practice is in Knoxville, and he defends clients in matters arising under Title VII, the ADA, ADEA, FMLA, FLSA, Sarbanes-Oxley and state-specific employment laws before administrative agencies (the Department of Labor, EEOC, Tennessee Human Rights Commission, OSHA) and in cases filed in federal and state courts. He also advises employers on matters including union avoidance and campaigns, FMLA administration, reductions in force, wage and hour issues, employee handbooks and workplace harassment. Listed in The Best Lawyers in America since 2010. Listed in Chambers USA: America's Leading Business Lawyers since 2012.

M. Kim Vance represents management in every aspect of labor and employment law in Nashville. She defends companies in employment litigation; presents in-house management training programs to reduce employment related legal risks; counsels management clients through auditing human resources policies and practices; and develops pre-litigation strategies to improve available defenses. She has represented management clients in State and Federal Courts and in defense of administrative proceedings. Listed since 2008 in Chambers USA: America's Leading Business Lawyers. Listed in Mid-South Super Lawyers since 2008. Listed in Best Lawyers in America. Steven H. Trent concentrates his Johnson City practice in labor and employment law. He represents employers before the NLRB and other state and federal agencies and advises employers on many topics, including union avoidance and FMLA administration. His multi-state practice includes defending claims under the Americans with Disabilities Act, Title VII claims, age discrimination claims, Equal Pay Act claims, FMLA claims, breach of contract claims and retaliation claims of virtually every kind. Listed in Chambers USA: America's Leading Business Lawyers since 2007. Listed in The Best Lawyers in America since 2005. Listed in Mid-South Super Lawyers in 2009 and 2011. Brooks Eason’s Jackson, MS practice includes complex business litigation and employment disputes. He has successfully defended clients in numerous employment matters, including class and collective actions and individual suits alleging discrimination on the basis of race, gender, age, religion and disability as well as claims of sexual and racial harassment and suits under the FLSA. He has served as lead counsel for employment litigation for the largest employer in Mississippi for 20 years. Listed in Chambers USA: America's Leading Business Lawyers since 2007. Listed in The Best Lawyers in America since 2010 AV® Preeminent™ Peer Review Rated by Martindale-Hubbell.

J. Randall Patterson concentrates his Mississippi practice in labor and employment law. He represents employers before the EEOC and other administrative agencies, as well as in state and federal court. He also advises employers on policies and procedures, reductions in force, wage and hour issues, employee handbooks and general employment issues. Mr. Patterson is experienced in ERISA litigation, antitrust and white-collar criminal defense. Listed in Chambers USA: America's Leading Business Lawyers since 2007. AV® Preeminent™ Peer Review Rated by Martindale-Hubbell.


We’re the Resource in Human Resources Customized management training Compliance audits Policy and strategy analysis Litigation defense Immigration services Labor negotiation Listed among FORTUNE magazine’s “100 Best Companies to Work For” – four years in a row! and Listed as a “Go-To Law Firm” in labor litigation in “Who Represents America’s Biggest Companies,” Corporate Counsel’s annual survey of outside counsel to the Fortune 500 companies.

ALABAMA • FLORIDA • GEORGIA • LOUISIANA • MISSISSIPPI • TENNESSEE • TEXAS • WASHINGTON, D.C. THIS IS AN ADVERTISEMENT. Ben Adams is Chairman and CEO of Baker Donelson and is located in our Memphis off ice, 165 Madison Avenue, Suite 2000, Memphis, TN 38103. Phone 901.526.2000. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers. ©2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

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Teresa Rider Bult is a partner in her Nashville office of national labor and employment law firm. She primarily focuses her practice on mediation and employment litigation defense, and has successfully tried both jury and non-jury cases in the employment context. She has become known for effectively handling sexual harassment cases with complicated factual scenarios. She also has extensive experience successfully litigating all types of discrimination and wage claims, including class claims, at both the trial and appellate level. Teresa dedicates herself to work closely with clients to resolve difficult human resources issues before they transform into litigation. To that end, she often provides audit services to firm clients to analyze human resource compliance issues. She frequently speaks and provides training on relevant legal topics based on her experience, such as harassment and termination procedures. A graduate of the Pepperdine University School of Law, Teresa is one of the leaders of her firm’s Women’s Business Circle Network and has been recognized for her efforts by being named a finalist of the Nashville Business Journal’s Women of Influence Awards for 2013. She has been named a Mid-South Super Lawyer and has been recognized by Chambers and Partners USA. Louis Britt III concentrates his practice in Memphis on employment litigation and advice, representing private and public employers in a broad range of employment matters. He handles employment discrimination and harassment cases (Title VII, ADA, ADEA and FMLA), wage/hour matters, enforcement and defense of restrictive covenants contained in employment agreements, and employment-related torts. He is experienced in complex and class action litigation, and has tried cases in state and federal courts across the country. Louis has extensive experience in public sector representation in both litigation and collective bargaining. He received his JD from Tulane University Law School. He was also named as Best Lawyers' 2014 Memphis Labor Law - Management "Lawyer of the Year." Herb Gerson focuses his Memphis practice on managing all areas related to traditional labor relations and employment law issues. He devotes much of his practice to counseling clients on avoiding employment discrimination claims and developing a positive work environment. Herb is also the practice leader for his firm’s Global Legal Services practice group. He earned his JD from Emory University School of Law in 1973 and is licensed to practice in Georgia and Tennessee. He is a fellow of the College of Labor and Employment Lawyers and a Fellow of Litigation Counsel of America. He is also listed in The Best Lawyers in America. Michael Moschel has been representing management in labor and employment matters exclusively since 1995 and has become one of the leading managementside traditional labor lawyers in the Southeast. He has successfully represented employers in various campaigns, negotiations, work-stoppage counseling and unfair labor practice proceedings before the National Labor Relations Board. Michael litigates and advises clients regarding various employment issues including restrictive covenants agreements, wage and hour compliance, discipline and discharge, reductions in force, discrimination and civil rights, sexual harassment and I-9 compliance. He is listed in The Best Lawyers in America® and Chambers USA for his labor and employment practice.


Cross, Gunter, Witherspoon & Gulchus, P.C. Firm Overview: Chambers USA has named Cross, Gunter, Witherspoon & Galchus, P.C. (CGWG) a leading Labor and Employment law firm in the state of Arkansas for the ninth consecutive year. CGWG’s team of attorneys are highly adept in handling a wide range of labor and employment defense matters, including discrimination litigation, collective bargaining, benefits advice, employment contracts, complex immigration matters, development of constructive employee relations, Workers' Compensation, and the development of company employment policies and procedures. Preventive law strategies and exceptional educational programs are hallmarks of CGWG’s services. We offer customized training programs to help employers and HR professionals minimize legal exposure and navigate workplace challenges.

Carolyn B. Witherspoon practices in the areas of labor and employment defense and transportation law in Little Rock. She is a frequent contributor to legal publications on topics involving employment and personnel issues. Ms. Witherspoon is active in the Arkansas and American Bar Associations; is a member of the prestigious Union Internationale des Avocats, an international society of legal professionals recognized before the United Nations; and also serves as an arbitrator for the Court of Arbitration for Sport. She is a 2005 recipient of the Charles L. Carpenter Memorial Award from the Arkansas Bar Association and is listed among the top lawyers in the nation by Best Lawyers in America, Chambers USA: America's Leading Business Lawyers, Mid-South Super Lawyers and was named to the Mid-South Super Lawyers Top 50 list of attorneys in Arkansas. J. Bruce Cross practices in Little Rock in the areas of labor and employment defense law. His practice includes work before the NLRB, the EEOC, the Wage & Hour and OFCCP Divisions of the Department of Labor, as well as related federal and state court litigation. He is past chair of the American Bar Association’s Committee on the Development of the Law under the National Labor Relations Act. He is listed in Mid-South Super Lawyers, Chambers USA and Best Lawyers in America, and was named to the Mid-South Super Lawyers Top 50 list of attorneys in Arkansas. He currently serves as Chairman of the National Legislative Committee of the Associated Builders and Contractors of America (ABC), Chairman of the Statewide Board of Directors for Junior Achievement of Arkansas and Chairman of the Board of Directors for the Museum of Discovery. Mr. Cross received his undergraduate degree from the University of Notre Dame and his JD degree from the University of Arkansas School of Law.

Donna Smith Galchus’ Little Rock practice focuses on employment discrimination litigation, wage and hour, affirmative action compliance and immigration law. She is listed in Best Lawyers in America in Immigration Law; Chambers USA: America’s Leading Employment Lawyers; Mid-South Super Lawyers; and was named to the Mid-South Super Lawyers Top 50 list of attorneys in Arkansas. Ms. Galchus is a member of the Arkansas Association of Women Lawyers; Pulaski County, Arkansas and American Bar Associations; American Immigration Lawyers Association; Mid-South Immigration Lawyers; Fellow, College of Labor and Employment Lawyers; Chair, Eighth Circuit Credentials Committee; American Employment Law Council; and the Arkansas Bar Foundation. She serves on the Boards of Editors of the treatise on the Fair Labor Standards Act and the treatise on Age Discrimination, and has written and published various articles in Labor and Human Resource Trade Journals. Missy McJunkins Duke is a Director in the firm of Cross, Gunter, Witherspoon & Galchus, practicing in the areas of labor and employment law, and immigration law. She is an active member of the Arkansas and American Bar Associations’ Labor and Employment Sections. She has been appointed by Arkansas Governor Mike Beebe as Commissioner on the Arkansas Early Childhood Commission and as a member of the Arkansas Advisory Committee to the United States Commission on Civil Rights. She is also serving a six-year term on the Arkansas State Board of Law Examiners. Missy is active in the community, serving organizations such as Reach Out and Read Arkansas and Arkansas Advocates for Children and Families. Missy was named an Arkansas Business 40 Under 40 in 2011 and one of Soirée Magazine’s “Women to Watch” in 2013.

Benjamin H. Shipley’s Fort Smith-based practice includes work before the National Labor Relations Board, the Equal Employment Opportunity Commission and the Arkansas Employment Security Division, as well as related federal and state court litigation. He is an active member of SHRM and is the immediate past president of the Western Arkansas Human Resource Association. Ben is also an active civic leader, serving on the boards of Leadership Fort Smith, Westark Area Council (Boy Scouts) and the United Way of Sebastian County, among many others. He is listed in Best Lawyers in America for Labor and Employment Law, Mid-South Super Lawyers and Chambers USA: America’s Leading Lawyers for Business.


Marcus M. Crider defends some of the world's largest employers in manufacturing, healthcare, transportation, and retail as well as hospitality companies, start-up companies and family-owned businesses in

What are you Working on today?

labor and employment matters. Marcus' experience includes numerous federal jury trials involving alleged violations of Title VII, the Family and Medical Leave Act, the Americans with Disabilities Act, and the Uniformed Services Employment and Reemployment Rights Act, and common law retaliation. He also defends

Workers’ compensation EEOC Products LiabiLity defense EmploymEnt-RElatEd ImmIgRatIon transportation LaWWrongfuL discharge


Labor reLations


Civil litigation

employers in matters ranging from complex multi-plaintiff claims involving the Equal Employment Opportunity Commission, the Department of Labor, the Office of Federal Contract Compliance Programs and the National Labor Relations Board. Chambers USA recognizes Marcus as a leader in the Labor & Employment field.


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Stanley E. Graham represents major employers in the retail, hospitality, automotive, information services,


and manufacturing with complex employment issues.

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and strategic planning that serve clients' specific goals

heaLth care reform compLiance

HealtH Care lawcoLLective Bargaining


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Stan provides immediate access, risk mitigation advice, in litigation and daily advice and counsel. A former assistant attorney general, Stan has the experience to take a matter all the way through the litigation, trial, and appellate process, and the knowledge to offer strategic alternatives that best meet the client's goals. Chambers USA lists Stan Graham as a leading Labor and Employment Attorney, and he is AV-rated by Martindale-Hubbell. Stan is also recognized by

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Best Lawyers in the categories of Employment Law-Management and Litigation-Labor & Employment.

Mary Dohner Smith is a partner in the Nashville


office of a national labor and employment law firm. She has experience involving every aspect of the employment relationship. She has been involved in complex litigation involving all aspects of Title VII, the ADEA, the ADA, the FLSA, USERRA, retaliatory discharge, and state law claims for breach of contract, fraud, negligence, and negligent and intentional infliction of emotional distress. Before joining Constangy, Mary worked in Human Resources in both unionized and non-unionized facilities. As a result, Mary believes strongly in working closely with clients to resolve issues before they become lawsuits. Mary also enjoys speaking and providing training on relevant legal topics based on her experience, such as the re-employment of soldiers pursuant to USERRA, harassment and termination procedures. A graduate of

LaBor and empLoyment LaW immigration LaW civiL Litigation

Marquette University School of Law, she has been named a Mid-South Super Lawyer Rising Star; is the past president of the Lawyers’ Association for Women’s (LAW) Marion Griffin Chapter in Nashville; and is a recipient of the Patriot Award from the Employer Support for the Guard & Reserve (ESGR). She also serves on the Tennessee Bar Association

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Board of Governors.


Jackson Lewis LLP Firm Overview: With 750 attorneys practicing in 54 locations nationwide, Jackson Lewis provides creative and strategic solutions to employers in every aspect of employment, labor, benefits and immigration law. Recognized as a firm that “corporate counsel would most like to have by their side in headto-head competition” in the BTI Litigation Outlook Report 2013, our firm has one of the most active employment litigation practices in the U.S. To learn more about our services, please visit us online at James R. Mulroy II is the Managing Partner and Litigation Manager of the Memphis, Tennessee office of Jackson Lewis LLP. Mr. Mulroy has more than 30 years of trial and litigation experience in federal and state trial and appellate courts as well as before administrative judges and tribunals. He has represented clients in dozens of labor and employment, civil rights, unfair trade practices and public accommodation cases as well as a variety of class actions and multi-party lawsuits. Mr. Mulroy regularly counsels clients on a broad spectrum of employment-related issues, including employment and separation agreements, personnel policies and handbooks, EEO training, FLSA and FMLA compliance, restrictive covenants, and reductions-in-force. Mr. Mulroy has been ranked in Chambers USA, Mid-South Super Lawyers and Best Lawyers in America as well as being “AV Rated” in Martindale Hubbell. Tim Garrett - Tim has extensive experience representing and counseling employers in all aspects of employment discrimination and traditional labor law, including knowledge in wage and hour collective actions and leave of absence claims and issues. Tim’s experience and nationwide litigation practice have earned him recognition in The Best Lawyers in America® and Chambers USA. Waverly D. Crenshaw, Jr. is recognized for his experience handling multi-plaintiff and class action discrimination, harassment, and retaliation cases, as well as wage and hour collective actions. He is also relied upon to review and help shape policies and procedures that impact a company's risk for significant employment-related exposure. Chambers USA lists Waverly as a leader in the Labor and Employment field. Additionally, Best Lawyers recognizes Waverly in the categories of Employment Law-Management and Litigation-Labor & Employment. Waverly has also been honored as one of the "150 Best Lawyers" by Business Tennessee magazine, and he is AV-rated by Martindale Hubbell.

William A. “Zan” Blue, Jr. is a partner and the head of the Nashville office of a national labor and employment law firm. He has tried many cases before juries, judges and administrative agencies in employment discrimination, union-management and employee benefits cases. Zan has presented arguments to several federal and state appellate courts. He advises companies concerning structuring the relationships with workers and clients, whether as employment, leased employee or independent contractor arrangements to minimize legal risks and provide a positive work environment. He advises and represents employers in union campaigns, contract negotiations and with respect to unfair labor practice allegations and corporate campaigns. He also does extensive training programs for all levels of management concerning harassment, discrimination and union avoidance. A graduate of the Vanderbilt University Law School, Zan has been named several years to Best Lawyers in America and has received top legal ranking recognition by Chambers and Partners USA.

Jackson Lewis applauds Memphis Office Managing Partner,

James R. Mulroy II,

for being recognized by Chambers and Partners as one of 2013’s top labor and employment attorneys in Tennessee! With 750 attorneys practicing in 54 locations nationwide, Jackson Lewis provides creative and strategic solutions to employers in every aspect of employment, labor, benefits and immigration law. Recognized as a firm that “corporate counsel would most like to have by their side in head-to-head competition” in the BTI Litigation Outlook Report 2013, our firm has one of the most active employment litigation practices in the U.S. To learn more about our services, please visit us online at JAMES R. MULROY, II 999 Shady Grove Road, Suite 110 Memphis, Tennesee 38120 • (901) 462-2600


Kramer Rayson LLP Firm Overview: Kramer Rayson has dedicated itself to the representation of businesses and business owners in Tennessee since its inception in 1948. The firm is committed to providing superior, cost-effective legal services covering the gamut of issues its business clients face. Kramer Rayson has 28 attorneys with significant practices in labor and employment law, healthcare, corporate/business, government relations, tax, estate/planning/probate, litigation. The firm is regularly employed by corporate counsel, government agencies, and public and private entities, as well as individuals either doing business or involved in litigation in Tennessee. We are proud to have two of our Labor and Employment attorneys recognized for the work in this publication. Steve Kramer joined Kramer Rayson LLP in 2003 and his practice areas cover employment, labor, corporate and sports law. He has practiced labor and employment law for over 30 years, representing management. His labor and employment practice encompasses every aspect of the National Labor Relations Act, collective bargaining, employment discrimination, wrongful discharge, harassment, retaliation and working with management teams to proactively develop and maintain sound employment policies and practices. Mr. Kramer’s practice and client base is national in scope. He previously served as Vice President of Human Resources and General Counsel for AGC Glass, Inc., from 1992-2003. Prior to that, Mr. Kramer spent 10 years in private practice as a partner at Hunter, Smith & Davis and Baker Donelson law firms. Mr. Kramer has been a frequent speaker at seminars on a variety of legal topics. He is a member of the Regional Board of Directors for First Tennessee Bank and served as Chairman of the Kingsport Economic Development Board for 10 years. He serves on the Board of Directors for the Northeast State Community College Foundation and the Regional Boys and Girls Club Foundation. Edward G. Phillips has practiced labor and employment law for over 34 years, representing management exclusively. His labor and employment practice includes counseling involving union avoidance, collective bargaining, employment discrimination, wrongful discharge, harassment, employment policies, and wage and hour issues. His litigation experience includes employment discrimination, retaliation and harassment cases in federal and state courts, defending multi-plaintiff and class-action cases, FLSA, ERISA and USERRA actions, civil service trials, and enforcement and defense of non-compete/unfair competition cases. Mr. Phillips has been named annually by his peers as a leading employment lawyer since the 2004 edition of Chambers USA: America's Leading Lawyers for Business, since the 2000 edition of Best Lawyers in America for his employment law practice, and since 2006 in Mid-South Super Lawyers published by Law and Politics Media. Bob Horton serves as chair of his firm’s labor and employment practice, drawing on his 20 years of experience to lead the team. Bob both litigates and advises clients on a day-to-day basis regarding various employment-related issues, including discipline and discharge, discrimination and civil rights, sexual harassment, and non-competition agreements. He also assists clients with various disability and leave issues under ADA and FMLA, wage and hour issues, drug and alcohol testing, veterans’ employment rights, union avoidance and other issues. Bob’s experience has been recognized in Chambers USA and Mid-South Super Lawyers.

Human Resources Professionals often need prompt and accurate legal advice. Kramer Rayson attorneys have been advising Tennessee employers, both large and small, for over 60 years. We listen to you and work hard to help you achieve your employment goals. You are not just another client to us.

Over 60 Years of Service


Wage& HOUR Worries - Common Mistakes and Trending Issues

By Jennifer Hagerman

Wage and Hour litigation is the fastest growing segment of employment law. The number of lawsuits filed in federal court alleging violations of the Fair Labor Standards Act (“FLSA”) has increased over 300% since 2000. In the face of this quickly growing area of the law, employers must be more focused than ever on ensuring that they are in compliance with the law. The following is a summary of some common mistakes and trending issues in wage and hour litigation.

Common Mistakes - Failing to Pay Overtime or the Proper Amount of Overtime According to the FLSA, non-exempt employees must be paid overtime compensation for all hours worked in excess of forty during each workweek. Employees may not work “off the clock,” either voluntarily or involuntarily. While employers may adopt policies which prohibit unauthorized overtime, employers may not refuse to pay for unauthorized time worked, including overtime (disciplining an employee for unauthorized overtime is the proper response). In addition, overtime must be calculated based on a seven-day workweek, not based on a pay period, and must be one and one-half the employee’s “regular rate” of pay. If an employee works two separate jobs for the same company, then overtime is based on the total time worked in both positions. - Misclassifying Employees Salaried employees are not necessarily exempt employees. To qualify as exempt, an employee must be paid $455 per week or more, be paid on a salary basis, and have duties that fall within one of the exemptions under the FLSA. Positions commonly misclassified as exempt include secretaries, bookkeepers and computer help desk employees. Employers who presently classify all salaried employees as exempt should seriously consider an internal wage and hour audit. - Failing to Pay for Training Time Employees must be compensated for time spent in training UNLESS all four of the following factors are satisfied: (1) attendance is outside regular working hours; (2) attendance is voluntary; (3) training is not 30

directly related to the employee’s job; and (4) the employee does not perform productive work during the training. If even one of these factors is not met, then the employer must pay for training time. - Not Properly Compensating for Travel Time While employers do not have to compensate employees for time spent on their daily commute, some travel time is compensable. An employee must be compensated for time spent traveling during the work day. Travel away from home during working hours is also compensable, even if it is not a working day. Employers are not required to pay employees for travel away from home outside working hours, however, unless the employee is driving. For example, if an employee travels to a conference via plane on a Sunday evening, then the travel is not compensable, but if the employee drives herself to the conference on Sunday evening, then it would be compensable.

Trending Issues - Unpaid Interns The practice of using unpaid interns has recently come under scrutiny from the DOL. A compliant unpaid intern program must ensure that the benefit is to the intern, not the employer, and that the focus is on training, not particular tasks. An unpaid internship should be similar to educational training. The intern should not displace regular staff and should not necessarily be given a job at the conclusion of the internship. Finally, the intern must understand that no wages will be paid.

work-related emails or communications on mobile devices are more likely to work off the clock and that time may be compensable. While de minimus activities, meaning activities that take insubstantial or insignificant periods of time beyond the scheduled work hours, need not be paid, work conducted through remote access and use of mobile devices outside of scheduled work hours must be recorded and compensated. Employers should consider implementing a policy prohibiting non-exempt employees from working remotely or from mobile devices without prior approval or, for heightened protection against wage and hour violations, implementing a comprehensive remote device policy. - Failing to Provide Tip Credit Notice Employers that have tipped employees and take a “tip credit” against the minimum wage – i.e., the employer pays a low rate and takes a credit for the tips received by the employee – must provide tipped employees with tip credit notice. Employers should confirm that the tip credit notice, which may be posted at the place of employment, is current with 2011 regulations. The tip credit notice must include: (1) the amount of the cash wage; (2) the amount of tips to be credited towards minimum wage; (3) a statement that the employee is entitled to retain all tips except in situations involving valid tip pools; and (4) a statement that the tip credit will not apply unless the employee has been informed of the credit. Failure to provide employees with notice of tip credit may result in liability for the full minimum wage.

- Mobile Devices and Remote Access Non-exempt employees who have remote access or receive or send

Jennifer Hagerman Attorney, Burch Porter & Johnson PLLC

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Accommodating the

“Intellectually Disabled” By Timothy W. Lindsay


nyone who has worked in human resources for any length of time is no doubt familiar with the Americans with Disabilities Act and at least possesses a basic understanding of the ADA’s requirement for accommodating a qualified individual with a physical disability. 29 U.S.C. §12102, et seq. Accommodation for physical limitations is a common practice in the workplace and, typically, fairly simple to implement due to the objective nature of the disability or medical restrictions, i.e. limitation in standing, walking, lifting, pushing or pulling. A less common occurrence in the HR world is dealing with proposed accommodations for a non-physical disability, or what the EEOC now terms as an “intellectual disability.” However, we have seen a rise in claims involving a failure to accommodate an intellectual disability by both applicants and employees. This article provides insight as to how the EEOC views “reasonable accommodation” of individuals with an intellectual disability to arm you with some knowledge and information when confronted with accommodating intellectual disabilities in the workplace for the first time.

I. What is an Intellectual Disability? An “intellectual disability” is a disability that can be characterized by significant limitations both in intellectual functioning and in adaptive behavior that affect many everyday social and practical skills most of us take for granted. According to one source, an estimated 2.5 million Americans have an intellectual disability. A diagnosis of intellectually disabled usually arises when: (1) the individual’s intellectual functioning level (IQ) is below 70-75; (2) the individual has significant limitations in adaptive skill areas as expressed in conceptual, social, and practical skills; and (3) the disability originated before age of 18. As a result of the changes made in 2008 by the Americans with Disabilities Act Amendments Act (“ADAAA”), it is clear that an individual with an intellectual disability will be covered by the anti-discrimination and reasonable accommodation provisions since he/she is substantially limited in brain function and other major life activities such as learning, reading, and thinking. 29 CFR §1630.3(j)(3)(iii).

II. Accommodating the Intellectually Disabled The necessary or required accommodation will, of course, be contingent upon the stage of the employment process or relationship between the individual and employer. As you probably know, the ADA views an employer’s obligations toward applicants and employees differently.

A. Applicant Status Of course, an employer may not ask if an applicant has any kind of disability in the pre-offer stage or before employment. Such pre-employment inquiries must be limited to the individual’s qualifications for, or performance of, the job for which he/she has applied. Should an 32

employer reasonably believe that an applicant’s “known” (either because it is obvious or because it was voluntarily disclosed) intellectual disability may interfere with or prevent the performance or a job-related function, the employer may ask the applicant to describe or demonstrate how, with or without reasonable accommodation, he/she will be able to perform the essential functions of the job. For the application and interview process, the EEOC suggests that the following reasonable accommodations may be applicable for an applicant with a known intellectual disability: o Providing someone to read or interpret application materials; o Demonstrating, rather than describing, what the job requires or the job’s essential functions; o Modifying tests, training materials, and/or policy manuals; and o Providing an expanded interview instead of requiring a written test (allowing the applicant to demonstrate his/her ability to do the job).

B. Post-Employment Status Many of the accommodations available for employees with a physical disability are applicable to those with an intellectual disability, such as reallocation of marginal tasks, reassignment to a vacant position that is more suitable, modified work schedule or shift change, acquisition or modification of equipment/devices, etc. However, the accommodation requirements for an employee with an intellectual disability go well beyond what many consider the ADA norm. For instance, with respect to job training, the EEOC has proposed the following accommodations for employees with an intellectual disability: o Provide instructions at a slower pace; o Private one-on-one training, as opposed to group training; o Use charts or pictures for illustrative purposes; o Allow additional time to complete training; o Provide a tape recorder to record directions/ instructions as a reminder of the necessary steps in a job task; and o Provide a “job coach” who can assist the employee in how to do the job. Further, when it comes to the performance evaluation process or disciplinary proceedings involving an employee with an intellectual disability, the EEOC proposes as an accommodation that the employer allow the employee to bring someone with him/ her to the evaluation or disciplinary meeting to help the employee ask questions and understand the purpose of the meeting and/or the evaluation/disciplinary results from the meeting. While the EEOC does not expound on who this “someone” may be,

the person accompanying the employee may be a co-worker, supervisor, or counselor – anyone he/she has a trusted relationship or feels comfortable with at the time. The EEOC readily accepts that poor job performance is usually unrelated to a medical condition and should be handled in accordance with an employer’s existing policies and procedures governing performance. However, if an employer reasonably suspects that an intellectual disability is the cause of an employee’s performance problem, the employer is obligated under the ADAAA to meet (or “interact”) with the employee to determine what reasonable accommodation, if any, can be implemented to allow the employee to perform his/her job effectively.

III. Conclusion When dealing with an otherwise qualified individual who has an intellectual disability, remember to think beyond the normally accepted and well-practiced ADA accommodations. Each situation will present a different scenario and whether a reasonable accommodation can be provided for the intellectual disability will depend on the specific job and its essential functions. Unless accommodation of the intellectual disability causes an “undue hardship” for the employer or the individual poses a “direct threat” to himself/herself or others even with accommodation, then the obligation of providing one or more of the accommodations proposed by the EEOC should be considered by the employer.

Timothy W. Lindsay Managing Shareholder Ridgeland Office Ogletree, Deakins, Nash Smoak & Steward, PC

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E.E.O.C. v. United Airlines

Mandatory Reassignment as a Reasonable Accommodation By Latosha Dexter

After the amendment of the Americans with Disabilities Act in 2009 and implementation of the regulations in 2011, employers were prepared to treat almost every physically and mentally impaired employee as disabled. It was clear that an employer’s focus should move from an analysis of whether a disability existed to an analysis of whether the disability or impairment could be reasonably accommodated. Showing that it engaged in the interactive process, maintaining communication with employees, and documenting accommodation requests and approvals became the primary focus of employer efforts. And it was understood that the future emphasis of disability cases before the courts would likely be on whether an employer has met its obligation to accommodate. The EEOC regulations provide some guidance about what constitutes a reasonable accommodation. Modifications or adjustments to the work environment and part-time or modified work schedules are pretty clear cut accommodations. However, what about an employer’s duty to transfer or reassign an employee to a vacant position? The ADA includes “reassignment to a vacant position” as a possible “reasonable accommodation” for disabled employees. 42 U.S.C. § 12111(9). But is reassignment mandatory or at the employer’s discretion? Is an employer required to bump other employees who may qualify for the open position? According to the Seventh Circuit, the answer to both of these questions is typically “yes”. In E.E.O.C. v. United Airlines, Inc., 693 F.3d 760, 761 (7th Cir. 2012) cert. denied, 133 S. Ct. 2734, 186 L. Ed. 2d 192 (U.S. 2013), the court was tasked with review of United Airlines’ transfer policy as it related to disabled employees. United Airlines’ policy for reassignment of disabled employees allowed for a "transfer . . . [to] an equivalent or lower-level vacant position" in some instances. However, the policy was clear that the transfer process was competitive. Consequently, disabled employees were given preferential treatment in the form of unlimited applications, guaranteed interviews, and priority consideration over a similarly qualified applicant. But they would not be automatically placed in vacant positions. After investigating a number of discrimination charges filed by United employees located in San Francisco and Chicago, the EEOC filed a lawsuit alleging that the policy violated the ADA which includes reassignment as a possible reasonable accommodation. According to the EEOC, reassignment to a vacant position for a qualified disabled employee should be required even if other candidates were more qualified. In February 2011, the district court, bound by an earlier court opinion that held that a competitive transfer policy did not violate the ADA, dismissed the EEOC’s case against United. On appeal, the Seventh Circuit Court of Appeals reversed holding “that the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.” The Seventh Circuit stated that preferences will sometimes prove necessary and that absent a particularized showing of undue hardship the existence of neutral policies might not defeat an accommodation claim. In reaching its determination the Seventh Circuit relied to some extent on the U.S. Supreme Court holding in U.S. Airways v. Barnett, 535 U.S. 391 34

(2002). In Barnett, the Supreme Court considered whether the reasonable accommodation requirement of the ADA took precedence over an established seniority system. The Supreme Court held that an employer's showing that a requested accommodation conflicts with seniority rules is ordinarily sufficient to show that an “accommodation” is not “reasonable.“ However, the Supreme Court refused to say that a seniority system could never be subordinate to a reasonable accommodation stating that an employee could show that special circumstances warrant a finding that, despite the seniority system's presence, the requested accommodation is reasonable on the particular facts. The Court wrote that “the simple fact that an accommodation would provide a “preference” – in the sense that it would permit the worker with a disability to violate a rule that others must obey – cannot in and of itself, automatically show that the accommodation is not “reasonable.”” Thus, Barnett left the door open for the holding in the United Airlines case. The Seventh Circuit first noted that Barnett applied to seniority policies and not to policies that required selection of the best-qualified applicant. “While employers may prefer to hire the best qualified applicant, the violation of a best-qualified selection policy does not involve the propertyrights and administrative concerns (and resulting burdens) presented by the violation of a seniority policy.” Further, the Supreme Court holding acknowledged that accommodation through appointment to a vacant position is reasonable absent a showing of undue hardship. The Seventh Circuit, therefore, instructed the district court to conduct the Barnett analysis of first considering if mandatory reassignment is ordinarily, in the run of cases, a reasonable accommodation. Secondly, if mandatory reassignment is ordinarily reasonable, the court must then determine if there are fact-specific considerations particular to United's employment system that would create an undue hardship and render mandatory reassignment unreasonable. United appealed to the United States Supreme Court who subsequently denied the petition for review, allowing the Seventh Circuit opinion to stand. Although the Seventh Circuit opinion is not necessarily binding on Tennessee, Mississippi and Arkansas employers, the Supreme Court’s refusal to hear the appeal is important as it shows its continued support for its holding in Barnett. Further, the holding is in line with the EEOC’s enforcement guidance which means the EEOC has been given more fodder for charge investigations. Basically, employers need to know that the mere existence of a disability-neutral rule such as a seniority system or a consistently applied policy of hiring the most qualified candidate may not defeat a disabled employee's request for reassignment to a vacant position for which he or she is qualified. An employer should be prepared to make a particularized showing of undue hardship in order to defeat such a claim.

Latosha Dexter, SPHR Of Counsel Rainey, Kizer, Bell & Reviere PLC

Obama NLRB Is “GUARDED” In Its Ruling On Company’s Electronic Media Policy By Tanja L. Thompson

In a surprise ruling, the National Labor Relations Board (“Board”) passed on the opportunity to revisit the prior administration’s Board decision in Register Guard, 351 NLRB 1110 (2007). Perhaps in the wake of Noel Canning and its aftermath, the Board felt it was not the right time to find another company in violation of the National Labor Relations Act (“the Act”) based on the existence of a facially neutral company policy. In Register Guard, the Board under President Bush sanctioned the newspaper’s policy that prohibited the use of its email system for non-work-related solicitations. Specifically, the newspaper’s policy prohibited employees from using the company’s email system “to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job related solicitations.” Notably, the newspaper had allowed use of its email system for other non-work-related purposes, such as jokes, baby announcements, party invitations, offers for sports tickets, and the newspaper’s periodic solicitation in support of its United Way campaign. In accordance with other cases finding no statutory right to company property such as bulletin boards, the Bush Board found the union had no statutory right to use the newspaper’s email system for protected concerted activity. The Board ruled that an employer may lawfully prohibit “non-work-related use of its e-mail system” unless “it acts in a manner that discriminates against Section 7 Activity.” Section 7 of the Act states in pertinent part: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Thus, the then-new Register Guard standard meant that employers could draw a distinction, for example, between charitable and non-charitable solicitations, personal solicitations and commercial solicitations, and personal solicitations and organizational solicitations – even if this resulted in barring union-related solicitations – as long as the union-related solicitations were treated the same as similar solicitations and were not singled out for more restrictive treatment.

Your Internet System – Is it the Modern Day “Water Cooler”? Since President Obama has been in office, management attorneys have anticipated the Board overturning the Register Guard decision if given the opportunity. Labor unions loudly objected to this decision, arguing the Board should view union-related communications on a company’s email system as the modern day equivalent of standing around the water cooler talking about a union. The opportunity to overturn precedent, however, presented itself in Weyerhaeuser Co., 359 NLRB No. 138 (2013), and the Board chose not to comment on the status of Register Guard and affirmed the Administrative Law Judge’s (“ALJ”) decision to the extent it relied upon the rationale in Register Guard.

Valid Internet Policy Allows for Limited Personal Email In Weyerhaeuser, the Board upheld the ALJ’s finding that the employer’s Electronic Media Policy, which limited use of company email to “business purpose only” with limited exceptions for personal use, was lawful. The Policy states: [T]he company’s electronic media, including intranet, Internet, extranet, telephone and messaging services are to be used for business purposes only.

Finding the policy lawful under Register Guard, the ALJ deferred reconsideration of this precedent to the Board. The Board, to the surprise of many, failed to overturn the decision despite the urging of counsel for the Acting General Counsel. Instead it found the “facially neutral” policy lawful. The Board did, however, find a violation in the employer’s issuance of an Informational Notice to internal union representatives warning them that the time that they were spending composing and sending emails during work hours had risen to an unacceptable level. The Board found the Informational Notice unlawful because it singled out emails sent by union representatives and related to union business. Unlike the broader Electronic Media Policy, the Board found the Informational Notice to be facially discriminatory and, therefore, unlawful. While it would not be surprising for the “new” Obama Board to reconsider the Register Guard case now that a five member Board is in place, the good news for now is that the Register Guard decision remains the law and employers may continue to restrict the use of their email systems for solicitation, or even certain types of solicitations, so long as they do so in a non-discriminatory fashion and do not single out union-related solicitations.

Review Your Current Policies Of significance to employers today is that you are not yet in a position where you have to prohibit all personal use of email simply to avoid having your email systems be used for union organizing or other union-related purposes. Still, to continue to take advantage of the current law, employers should be careful to draft and implement policies that are not discriminatory on their face and do not otherwise interfere with employees’ Section 7 rights. Employers should review their current policies in this area and determine whether they conform to Register Guard and the other recent NLRB policy cases finding violations for interference with employees’ rights under the Act. It is also important to ensure that neutral policies are enforced as written, and in a non-discriminatory manner. Simply having a policy that allows no personal use of company email is not likely the best solution, as these policies are difficult to enforce. Targeted review of union-related emails through a monitoring system will also be deemed problematic by the Board. As we have seen with other policies, such as those governing social media use, detailed policies with specific examples of prohibited conduct that are crafted in a neutral fashion are a company’s best bet given the Board’s heighted scrutiny of employer policies.

The Policy also allows limited personal use with the consent of an employee’s supervising manager if the use does not adversely affect: productivity; work performance; network performance; [the Company’s] goodwill or reputation; [or] the cost of doing business.

Tanja L. Thompson Shareholder, Littler Mendelson



employer meets all the requirements, the employer can avoid a claim that an employee's (or, more likely, class of employees') exemption from the overtime requirements of the Fair Labor Standards Act was destroyed by improper salary deductions.

Formality can be your friend

• Policy on Meal/Break Periods: States are all over the map (pun intended) with respect to legislating meal and break periods for employees. In Tennessee, employers are required to provide a single 30-minute unpaid meal break to employees who are scheduled to work at least 6 hours, with some exceptions. Tennessee does not require rest breaks, but some other states do. Include meal and break policies be in the handbook so employees understand that they are required to take these breaks (and can be disciplined for not doing so).


By Martha L. Boyd


ith all the responsibilities that accompany starting a new business, new employers put employee handbooks last on the list of priorities. In the early years of a business, formalizing policies that have previously gone unwritten may seem a nuisance, and such formality may be received with disdain by the employees who have helped build the business. But formalizing your business policies and procedures into a handbook can be helpful to both you and your employees by ensuring that employees understand what is expected of them and putting in writing key provisions that can protect you in the event of a claim of discrimination or wrongful discharge. Key provisions to include in your handbook are as follows: • Equal Employment Opportunity Policy: Employers need to clearly communicate that they do not tolerate discrimination or harassment on the basis of a legally-protected status, such as race, creed, color, religion, sex, national origin, and any other characteristic protected by law. More importantly, they need to communicate to employees where and how to report discrimination and harassment within the company. A company with no reporting mechanism has no effective way to address such actions early, and may have employees take their complaints directly to a federal or state agency or to court, rather than trying to resolve the issue in-house. Plus, when the Equal Employment Opportunity Commission (EEOC) receives a charge of discrimination or harassment, their investigators will look for the company's EEO policy. A company without such a policy may be a prime target for a more in-depth investigation.

• Wage and Hour Policies: You should include in your handbook a strong policy stating that employees may never work without recording their hours (working "off the clock"), and that if they are ever asked or directed to do so, they should refuse and report the request immediately to the highest level of the company. This policy would make it much more difficult for an employee to claim that he was required to work without compensation; it puts the onus on him to refuse such a requirement and to report it. Additionally, to keep costs under control, include a policy prohibiting employees from working unauthorized overtime and specifically stating that employees who do work unauthorized overtime will still be compensated in accordance with the law but may be disciplined for doing so. For employees who work remotely or independently, put the additional onus on them to notify their supervisors when they are approaching 40 hours in a workweek to obtain guidance on whether to work overtime or to quit working so the company does not incur the cost of overtime. Along the same lines, employers should include a "safe harbor" policy that gives exempt employees a remedy when deductions are inadvertently taken from their paychecks. Such a policy should require the exempt employee to notify the employer of the improper deduction and assure the employee no retaliation for raising the issue. The requirements of the "safe harbor" are spelled out in 29 C.F.R. § 541.603(d); if an 36

• Vacation: Similar to meal/break laws, states vary in whether employers must compensate employees for accrued but unused vacation/paid-time off ("PTO") at termination. In many states, employers aren't required to pay out unused vacation at termination, but in some states, like Maryland, employers must compensate employees for unused vacation upon termination unless they notified the employee at the time of hiring that unused vacation would be lost or forfeited. Addressing the issue up front, in the employee handbook, manages employees' expectations and ensures compliance with the law. In states where compensating employees is optional, employers may consider using vacation payout as an incentive for some other desirable behavior, like returning all company property or providing two weeks' notice of resignation. • Welcome // "about us" statement: Often overlooked as "fluff," the handbook's "welcome to the company" statement can be a valuable tool, communicating the company's key values and goals. This statement can be helpful later on when you have an employee whose conduct is inimical to those goals, but whose conduct is not specifically prohibited by the code of conduct. It's helpful for the company to be able to say to an administrative agency or court, "Look, proper treatment of customers is so important to us that it's even in our mission statement. When this employee began arguing with our customer, he violated that most important tenet. Our decision had nothing to do with discrimination, and everything to do with our company's core values." Fluff can be helpful. Resistance to formalizing policies into a handbook is natural; it means that employees can no longer expect the special treatment they may have become accustomed to in the company's infancy. But it's a critical step in the development of a company, providing protection for you and ensuring your employees understand the rules.

Martha Boyd, Shareholder Nashville Office of Baker Donelson

Legal Challenges are Coming at HR Professionals from Every Direction

That’s Why Rainey Kizer Makes Your Business Our Concern The issues facing Human Resources executives are becoming more frequent, more challenging, and more complex each year. Whether you are navigating the Affordable Care Act, tracking changes in the Family Medical Leave Act, or staying current with the latest revisions in workers’ compensation law, trusted attorneys are invaluable. This is why you need to get to know the employment-law attorneys at Rainey, Kizer, Reviere & Bell PLC. At Rainey Kizer, we make your business our concern. For more than 30 years, our AV-rated firm has advised businesses, non-profit organizations, and government agencies on all aspects of employment law; and represented our clients in state and federal courts and before state and federal regulatory agencies. If you would like to discuss how we can help you, please call.








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Is it Time to Watch Your Retention Rates? By Voss W. Graham

If you haven’t noticed, the economy is picking up. This can spell trouble for some companies. The agencies responsible for tracking employment, retention and job satisfaction have been advising who ever would listen that a storm is brewing regarding employee turnover. Recently, speaking to a new college graduate of computer science, he informed me about a new wave of job seekers. When I asked exactly what he meant by “new wave” I was told the real job competition is coming from people who have jobs currently and are looking for new positions with different companies. In addition, he shared his employed friends were collectively looking for better jobs within better company cultures. So, the bottom line is while the unemployed are still looking for jobs in record numbers, they are competing with experienced people who have jobs currently. In fact, many of these job seekers are looking for lateral positions – even at the base level positions. Certain sectors or functional areas are offering greater opportunities for new jobs and higher salaries. The Information Technology people are first in line to start the momentum shift. The experienced high performers are being offered very high salaries compared to their current salaries, and they are moving. While this information is disturbing, it is expected. Why is it expected you may ask? Because surveys conducted by the big employment sites and agencies have discovered an alarming trend. People are looking forward to the economic recovery SO THEY CAN LEAVE THEIR CURRENT EMPLOYER! And, by all counts, the percentages are very high – estimating to be in the 50% range. Why is this happening to our organizations at a time when stability and continuity are needed to better serve our customers? There seems to be several key issues and these include… • A lack of fairness on the part of managers with their staff…  This is the biggest reason people leave a company. The immediate supervisor, manager or executive lacks the people skills or empathy to keep people engaged in their current positions. One reason given is these managers are not being trained in people skills and are strictly promoted due to technical skills. It is better to have managers with high levels of people management skills – if you want to maintain a stable workforce. • Overworked individuals… With the tightening of budgets and reorganizations, it appears most people are actually performing multiple jobs as compared to pre-recession days. While tightening of budgets leads to excessive efficiency efforts on the part of managers, this leads to lower productivity from overworked individuals. When the managers blame their people for not working hard enough, the exit doors swing open.

the manager is out to get them. While this may sound extreme, it is found to be a common management flaw. Teach your managers in basic behavioral styles with best management practices with their team (other behavioral types). • More demands being placed on already highly stressed individuals… The more talent an employee has, it appears the more tasks, activities, projects and committee meetings are required. At first, they are capable of keeping up with the pressure. Then the lack of training, time off to relax or overlooked promotions (because the manager has not prepared others to back fill the position) take their toll on the employee. The unfortunate issue is these individuals are your high performers. When they leave, you have an immediate talent gap which is very difficult to replace. Top-grading does not start by running off your high performers. • Talented young people not getting the development they want… This is new for most managers and executives. The Gen Y people expect to be involved, to be developed on any topic/skill they prefer and communication should be open all the time. These Gen Y individuals are usually very talented and knowledge even if they are lacking in experience. They make up for what they don’t have with high levels of energy, technology knowledge (and skill) and social networking, of which their managers have little mastery or expertise. • Low to no salary increases… Due to the low growth years, budgets have been cut to the bone and raises are very small to non-existent in current jobs. When other companies are committed to top grading they are willing to raise the stakes to acquire new talent – seems like top grading is a competitive thing. It appears retention of existing employees is being ignored at the strategic levels. With more emphasis upon efficient productivity, the problem is growing in pent-up emotional stress. Thus, people will be leaving organizations in large numbers unless the organizations begin to place retention at the highest priority level. With the extended use of short time horizons, executives and managers are not worrying about retention. Yet, it appears their customers are worried about it. Their shareholders should be worried, due to all the research regarding stock value and the level of employee retention showing a direct correlations to growth in stock values after recessions. Take a moment over the next couple of days and give thought to how people are being recognized for their efforts during this period of difficult times. The recovery is coming and the job opportunities will be increasing, so what are you doing today to keep your best talent in-house? To replace talent is to replace both knowledge and historical prospective. Be careful in your evaluation of what is important and necessary. Your organizations long-term results could be impacted.

• Lack of employee recognition for existing jobs being done well… Now this is an interesting case due to possible behavioral style issues. There is one style group whose major theme in life is to be appreciated. Appreciated for their effort, results and performance. When these people are paired with introverted managers lacking people skills – the employee feels no love or attention. Thus, the employee begins to feel 38

Voss W. Graham Sr. Business Advisor | CEO InnerActive Consulting Group, Inc.

October 2013 final  
October 2013 final