Volume 4 : Issue 10 TM
www.HRProfessionalsMagazine.com
Top
Highlights of the
2014 TN SHRM
Labor and Employment Law
Attorneys
State Conference & Expo
EEOC
Guidance on
Pregnancy
Susan Simmons, SPHR
2014 Chair of the
KY SHRM
State Council
When to Seek
Legal Counsel for Employee Issues
Executive
Benefits
As a Strategic
Advantage
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Bringing Human Resources & Management Expertise to You
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of Twitter users are between the age of 35-49 www.HRProfessionalsMagazine.com Editor
Cynthia Y. Thompson, MBA, SPHR Publisher
The Thompson HR Firm HR Consulting and Employee Development Art Direction
Park Avenue Design Contributing Writers
Frank Arcara Bruce E. Buchanan Harvey Deutschendorf Elisabeth Doehring Jennifer Hagerman Kristi H. Johnson Jason Maples Abtin Mehdizadegan Kristen Minton Joel J. Myers Christy Showalter Robert F. Spencer, Jr. Courtney Leyes Tomlinson Board of Advisors
Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR John E. Megley III, PhD Terri Murphy Susan Nieman Robert Pipkin Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©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.
Features 4 note from the editor 5 Profile: Susan Simmons, SPHR
WEB EXCLUSIVES
10 EEOC Guidance on Pregnancy – What to Expect When Your Employee is Expecting
HTTP://HRProfessionalsMagazine.com /Exclusives
14 Executive Benefits as a Strategic Advantage 20 Top Labor and Employment Law Attorneys in TN, AR, MS, KY 24 When to Seek Legal Counsel 44 Wellness Southern Style Part 2
Departments 12 Holiday Parties: How to Avoid Mistletoe Mishaps 16 Immigration: What is the ICE IMAGE Program? 18 Tennessee Court of Appeals Affirms Enforceability of Arbitration Provision in Negotiated Employment Agreements 39 Attention Federal Contractors and Subcontractors: New Executive Order Prohibits Sexual Orientation and Gender Discrimination 40 Wellness: The Best Laid Plans of Mice and Men – Wellness Programs Can Often Go Awry 42 Compensation: Making Pay Matter – Achieving Fit 46 EQ 5 Ways to Harness and Maintain Your Determination
Industry News 6 Highlights of the 2014 TN SHRM State Conference & Expo
Next Issue Highlights of the 13th Annual AR SHRM Employment Law & Legislative Affairs Conference and Highlights of the 2014 KY SHRM State Conference & Expo Employee Benefits Planning and 2015 Health Care Reform Update www.HRProfessionalsMagazine.com
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conferences plus the AR SHRM Leadership Conference in Fort Smith October 15 in our November issue.
a note from the Editor
HR Professionals Magazine is proud to be a sponsor of the Memphis Chamber HR Legal Summit on Friday, October 17, from 7 AM to 11:30 AM at the Hilton Memphis. You can earn 3.00 HRCI general credits. Email Amanda Edmundson at aedmundson@ memphischamber.com or register at memphischamber.com. See the ad below for more details.
October is the beginning of the holidays starting with the Halloween Costume parties and all the beautiful fall decorations leading up to Thanksgiving. Most HR professionals are enjoying the beginning of fall with the annual SHRM conferences. It is our pleasure to bring you the highlights of the 2014 TN SHRM State Conference & Expo in this issue. It was one of the best TN SHRM conferences ever and what a beautiful setting in the Smoky Mountains September 17-19 in Sevierville. If you were unable to attend, I hope you followed me on Twitter for updates. Be sure to check out the pictorial highlights on our Facebook page too!
Welcome to our new Advisory Board member, Ed Rains, Manager Emeritus of the Memphis Daily News Publishing Co. He was with the Daily News for 19 years and currently serves as Government Affairs Liaison. Ed is a graduate of the University of Memphis, and is an “articulate voice for integrity in business and politics.” October is also the month we bring you the top labor and employment law attorneys in Tennessee, Arkansas, Mississippi, and now Kentucky according to the Chambers USA Guide. This is an excellent issue to file away as a reference guide on the top attorneys in your state. We hope you will join us October 23 for our monthly complimentary HRCI webinar sponsored by Data Facts. Our topic will be Trending Your Workforce Management Teams, back by popular demand in time for your 2015 workforce planning. Happy fall to all!
We also had a great time at the 13th Annual AR SHRM Employment Law & Legislative Affairs Conference (ELLA) in Little Rock September 18-19 and the 30th Annual Kentucky SHRM Conference in Louisville September 24-26. We will bring you highlights of these two
Cynthia Y. Thompson | Editor cynthia@HRprosMagazine.com www.HRProfessionalsMagazine.com
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HR LEGAL SUMMIT The perfect opportunity for small & mid-sized businesses to stay in-the-know on important HR & legal workplace issues
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Hilton Memphis / 38120 • 7:00 - 11:30 AM
Contact Amanda Edmundson at aedmundson@memphischamber.com or visit memphischamber.com for more details and to register (Approved for 3.00 HRCI CREDITS and also approved for 3.0 CLE CREDITS) THANKS TO OUR SPONSORS:
(Small Business Council Title Sponsor)
(Program Sponsor)
(Presenting Sponsors) (Program Presented By)
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(Event Sponsor)
Susan
on the cover
SIMMONS
SUSAN SIMMONS, SPHR 2014 Chair of the KY SHRM State Council Susan Simmons is an Executive Vice President for First Federal Savings Bank of Elizabethtown, Kentucky. She’s been with First Federal for 29 years serving in a variety of positions. For the last 19 years, she has served as Human Resources Director. Prior to her taking the HR Director position, the Bank did not have a formal Human Resources Department. Presently, she is Chair of the Kentucky Society for Human Resource Management; previously serving on the council as Secretary, District Director and Diversity Director. She is also a board member of the Elizabethtown Society for Human Resource Management which was chartered under her leadership in 2003 as well as a board member/Secretary for Feeding America Kentucky’s Heartland. From 1995 to 2002, she served on the board of the Young Banker’s Division of the Kentucky Bankers Association, acting as Board Chair her final year. Susan participated in the 1994 Leadership Elizabethtown class and is a current member of the alumni association. She has also served on the United Way committee, as a board member of Hardin County Junior Achievement, and chaired Hardin County’s Relay for Life on five occasions. Susan is a graduate of the Kentucky Bankers Association Banking School and the University of Wisconsin-Madison’s Human Resource Management School. She received her designation as SPHR (Senior Professional in Human Resources) in 2002 and has taught the certification prep course for this designation for several years.
www.HRProfessionalsMagazine.com
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2014 TN SHRM Conference & Expo “Life in the Fast Lane – Keeping up in HR” September 16-19 Sevierville Convention Center Wilderness at the Smokies
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1 2014 TN SHRM Conference & Expo Committee Members (Back row L-R) Jeff Ginsburg, Joana Richardson, John Basler, Mike Willard. (Front row L-R) Rebecca Harmon, Lori Ridings, Leneen Evans, Debbie Light. Not pictured: Becky Jones 2 William Seale spoke in the opening General Session of the Legal Day Seminar sponsored by Wimberly Dawson. His topic was Key Developments in Labor and Employment Law in 2014 and Those Roaring Down the Track. 3 & 4 Fred Bissinger and Mary Dee Allen spoke in Turn 3 of the first Breakout Session on Twisting and Turning Through the ADA – One Size Does Not Fit All. 5 (L-R) Cynthia Y. Thompson, Rebecca Harmon, Danielle Barnes, LeeAnn Foster with the 2014-2015 Tennessee State Board of Appeals. 6 (L-R) Alex Edinger with the NLRB and Howard Jackson presented NLRB Initiatives to Make Unionization Easier for Big Labor, including Fall-out from VW/UAW cases. 7 (L-R) Ashley Griffith and Ed Trent presented Strategies for Best Hiring Practices, Including Background Checks, Privacy Issues and New Regulations. 8 (L-R) Cindy Phelan and Julieanna Walker enjoy relaxing in the Social Media Lounge in the Exhibit Hall at the TN SHRM Conference. 9 Keynote speaker Connie Podesta presented If It Weren’t for Other People, Life Would be Fun. 6
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9 1 (L-R) Rebecca Harmon with Debbie Makey, winner of the James House Williamson Award. 2 (L-R) Trish Holliday and Jeff Ginsburg. From One Cover to Another‌ 3 Shea Lowe was one of the 2014 TN SHRM Conference Scholarship Winners. 4 Chistins Goode was one of the 2014 TN SHRM Conference Scholarship Winners. 5 – 8 The HR Excellence Awards were presented to Lynette Smith, Stephanie Hawkins, John Steele, and Ron Daves. Not pictured are Jackie McClur, Jaclyn Pritchett, and Beverley Cooper. 9 TN SHRM members enjoyed catching up at the Hospitality Suite at the Conference. 10 (L) 10 Incoming TN SHRM State Council Director Valerie Gifford with (R) Outgoing Director Sheryl Ransom. TN SHRM received the Nashville Business Journal Award for the Largest Statewide Professional Trade Organization. www.HRProfessionalsMagazine.com
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Rainey Kizer’s V. Latosha Dexter Identified as
One of the Next Generation of Memphis Leaders
Memphis – V. Latosha Dexter, an attorney in the Memphis office of Rainey, Kizer, Reviere & Bell PLC (Rainey Kizer), and frequent contributor to HR Professionals Magazine, has been identified as one of nine “Next Gen” leaders of Memphis by MBQ: Inside Memphis Business magazine. The Next Gen Leaders were recognized for their “abilities in our executive offices, in our nonprofit boardrooms, and critically, on the street, working to address our community’s biggest social needs with their time and energy.” In addition to her professional accomplishments, the magazine highlighted Dexter’s community leadership positions. These community activities include serving as
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Board Chair of Girls Inc. of Memphis, where she was named “Mentor of the Year” for 2012-2013. She also is a volunteer with the A Step Ahead Foundation and a member of the Leadership Memphis Executive Class of 2014. At Rainey Kizer, her practice focuses on employment law, including discrimination claims and civil rights, governmental law, and education law. She is certified as a Senior Professional in Human Resources and writes regularly on employment law issues for HR Professionals magazine. Dexter is a graduate of the University of Tennessee School of Law, where she was the Student Materials Editor of the Tennessee Law Review. She is a Barrister in the Leo Bearman Sr. American Inn of Court.
She has practiced at Rainey Kizer since law school graduation, save for a stint in the Human Resources Department at FedEx. While at FedEx, she earned the Federal Express Human Resources Award of Excellence. About Rainey Kizer Rainey, Kizer, Reviere& Bell, PLC is AV rated by Martindale-Hubbell and was named a Go-To Firm® by Fortune 500 general counsels. The full-service law firm with offices in Jackson and Memphis represents local, regional, and national clients before state and federal courts and regulatory agencies. For more information visit www.raineykizer.com.
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The
EEOC
Pregnancy Guidance What to Expect When Your Employee Is Expecting: Total and Utter Confusion for HR Professionals
By COURTNEY LEYES TOMLINSON
Picture this familiar scenario: a manufacturing employee comes
The ADA
to you and announces her pregnancy along with a note from her
Title I of the Americans With Disabilities Act (ADA), in part, protects employees/applicants from discrimination because of their disability and requires employers to provide reasonable accommodations for employees/ applicants with disabilities. Congress amended the ADA in 2008 to refocus a company’s analysis, when considering whether to accommodate an individual, on the accommodation, rather than on whether the individual had a disability in the first place. According to Congress, it had become almost insurmountable for individuals with disabilities to obtain accommodations in the workplace.
physician restricting her from lifting anything over 25 pounds. This restriction is related to her pregnant condition only. You have another employee in the same department recovering from a workers’ compensation injury and are accommodating a similar job restriction. What are your obligations under the law? Are you required to also accommodate the pregnant employee? While the Pregnancy Discrimination Act (PDA) mandates that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work, what does this mean?
The Pregnancy Discrimination Act, the Americans with Disabilities Act, and the Equal Employment Opportunity Commission’s (EEOC’s) Recent Guidance
The PDA In 1978, Congress enacted the PDA to clarify that discrimination based on pregnancy, childbirth, or other related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. The PDA encompasses all aspects of pregnancy and all aspects of employment, including hiring, firing, promotions, administration of benefits, and treatment of pregnant employees in comparison with non-pregnant employees similar in their ability or inability to work. Congress passed this statute in response to two Supreme Court’s decisions generally holding that excluding pregnancy-related conditions do not violate Title VII. 10
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The EEOC, which is the government agency charged with enforcing the ADA , issued some guidance on the newly revised statute in May 2011. In this guidance, the EEOC emphasized that while pregnancy, as a condition, is not a disability in itself, an individual’s pregnancy may cause certain conditions, albeit temporary, that may be considered disabilities. The EEOC has proffered examples of pregnancy-related disabilities requiring reasonable accommodations: (1) cervical insufficiency requiring bed rest as an accommodation; (2) pregnancy-related anemia; (3) pregnancy-related sciatica; (4) pregnancy-related carpel tunnel syndrome; (5) gestational diabetes; (6) nausea causing severe dehydration; and (7) pregnancyrelated depression. Therefore, if pregnancy by itself is not considered a disability, employers are not required to accommodate a pregnant employee who has no pregnancy-related disability, right?
The EEOC’s Confusing Guidance On July 14, 2014, for the first time in almost 30 years, the EEOC updated its guidance related to pregnancy discrimination and other related issues. The EEOC did so in response to the rapid increase in pregnancy-related charges, with 5,342 charges having been filed in fiscal year 2013. While the EEOC intended to resolve the confusion inherent in how to treat a pregnant employee’s request for job restrictions, the EEOC’s Guidance created more problems for employers, namely with respect to how employers should treat pregnant employees’ requests for modified job responsibilities. According to the EEOC, while pregnancy is not a per se disability under the ADA, “an employer is obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave, or fringe benefits.” In the guidance, the EEOC specifically likens an employee with a back injury who has a lifting restriction to a pregnant employee with a similar restriction. Do you see the inherent conflict and the resulting confusion caused by the EEOC? On one hand, the ADA states that employers are required to accommodate only pregnancy-related conditions, while on the other, the EEOC states that the PDA requires employers to accommodate pregnant individuals. These conflicting principles are leaving employers (and their attorneys) confused as to what an employer’s obligations and duties are under the law.
Conflict Between the Guidance and How Courts are Interpreting the PDA Further highlighting this glaring conflict between what the EEOC believes are an employer’s obligations under the PDA and the ADA, are the courts’ varying interpretations of the PDA’s mandate that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work. As mentioned above, how does this requirement translate in the real world? This is something that will (hopefully) be settled by the United States Supreme Court during this upcoming year, as the Court just agreed to examine a case out of the Fourth Circuit, Young v. United Parcel Service, 707 F.3d 437 (4th Cir. 2013). In Young, the employee, who was forced to take unpaid leave because she was under certain job restrictions due to her pregnancy, claims that UPS should have provided her with the same accommodations that were offered to non-pregnant employees with similar limitations under the PDA. UPS is arguing that it has offered accommodations to workers injured on the job, those who qualified for ADA accommodations, and those who lost their U.S. Department of Transportation certification – categories Young did not fall into. The Fourth Circuit agreed with UPS, concluding that the PDA does not require employers to provide more favorable treatment to pregnant workers as compared to other, “similarly situated” employees. The Sixth Circuit, which covers employers in Tennessee, and the Fifth Circuit, which covers employers in Mississippi, have taken similar positions. Essentially, the question the Supreme Court will be answering boils down to whether the PDA requires an employer, who provides work accommodations to non-pregnant employees with work limitations, to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.” In other words, is there an accommodations requirement built-in to the PDA?
How to Reconcile the Apparent Conflict Between the EEOC and the Courts What is an employer to do with this apparent conflict? If you are concerned that your policies may become a test case for the EEOC to use as a vehicle to promulgate its position outlined above, then you may want
to consider revising your current light-duty policy and leave policies to provide accommodations for those who are pregnant as outlined below. As an alternative, you may wish to hold any changes in abeyance pending the Supreme Court’s decision in Young. A final alternative is, if limiting lightduty positions and leave as accommodations to those who are injured on the job is very important to your company, then you may want to stay your ground and not change your policies at all. You can also do the following: Review and revise your ADA/Reasonable Accommodations Policies if necessary. Make clear that your organization will be willing to accommodate reasonable requests for accommodations for pregnancy-related disabilities. You can provide examples of what could be considered a pregnancy-related disability as well as examples of reasonable accommodations. Review and revise your light-duty policy subject to the caveats above. If your company has a policy in place that permits only individuals with work-related injuries to engage in light-duty work, that is a valid policy under current Sixth and Fifth Circuit case law so long as you are applying and enforcing this policy consistently with no “good ole boy” exceptions. However, as mentioned above, you may want to consider revising this policy should you want to avoid drawing the ire of the EEOC. Review and revise your leave policies subject to the caveats above. Like any light-duty policies, if your company has a blanket leave policy applicable only to those who have work-related injuries, that policy is valid under the current law so long as you are applying this consistently. However, you may want to consider revising this policy because, under the EEOC’s ADAAA guidance, employers are required to consider leave as a reasonable accommodation for all qualified individuals with disabilities. If you choose to revise your leave policies, you can emphasize that your company will consider additional leave as a reasonable accommodation under certain circumstances, including pregnancy-related disabilities. Train your supervisors on your policies. A company is only is good as its supervisors is the age-old management cliché. Train your supervisors on your (revised) policies and to recognize a request for accommodation from a pregnant employee. Any request for a modified job duty from a pregnant employee should prompt a supervisor to contact HR to consider the request and engage in the interactive process if necessary. Go through your ADAAA analysis and document all employment decisions. As the EEOC emphasized in its Guidance, pregnancy is not a disability by itself. Therefore, if you have a pregnant employee who requests an accommodation, you should analyze this request like any request for an accommodation – determine what is the disability, if any. If there is a disability, analyze the request to determine whether it is reasonable. Document why you deny a certain request. Consult with your legal counsel if you have any questions. This is a confusing subject matter, compounded by the inherent conflict in the ADA, the PDA, court-interpretation, as well as state laws. Contact your legal counsel before you take any action (especially any adverse employment action such as discharge, discipline, etc.) against an employee who is pregnant.
Courtney Leyes Tomlinson, Attorney Fisher & Philips, LLP ctomlinson@laborlawyers.com www.laborlawyers.com www.HRProfessionalsMagazine.com
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How to
AVOID Mistletoe Mishaps with Holiday Parties By KRISTI H. JOHNSON
Holiday parties conveniently combine all the potential areas of employer liability into a single event. For that reason, employers must be particularly aware of the potential legal issues these celebrations pose. The biggest concern relates to alcohol consumption. Other concerns include sexual harassment, religious discrimination, and workers’ compensation claims. Since most employers still want to hold holiday parties, legal liability can be reduced greatly by observing the following recommendations: Abstain from Alcohol: If throwing a holiday party, give serious thought about whether to serve alcohol. The best way to minimize liability is to not serve alcohol at all. This is easier to do if the holiday party is a catered lunch at the company’s office. Consider holding the party on a day (weekday) or time (lunch) that employees are less likely to indulge. If alcohol is served, always serve food and have plenty of non-alcoholic beverages available. Do not have an “open bar” where employees can drink as much as they want. Instead, have a cash bar or use a ticket system to limit the number of drinks. Close the bar at least an hour before you plan to end the party. Remind Employees of Standards of Conduct: Consumption of alcohol lowers inhibitions and impairs judgment. This can cause employees saying and doing things they would not ordinarily do. Remind employees that, while employees should have a good time, the company’s normal workplace rules about harassment and professionalism will be in force at the party and misconduct at or after the party can result in disciplinary action. Hire Professional Bartenders: Do not use supervisors as bartenders. Instruct the bartenders to report anyone who they feel has had too much to drink. Also, ensure that bartenders require positive identification from guests who do not appear to be substantially over 21 years old. Provide Taxi Service to Employees: Arrange for no-cost taxi service for any employee who feels he or she should not drive home. At management’s discretion, be prepared to provide hotel rooms to intoxicated employees. Management On Duty: Let managers know they will be considered “on duty” at the party. They should be instructed to keep an eye on their subordinates to ensure they do not drink too much. Instruct managers they are not to attend any “after party” parties. 12
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Social Host Liability: As host of the holiday party, the employer takes on certain risks relating to the party, most of which concern employees’ consumption of alcohol. Employers can be found negligent with respect to an employee’s injury or be held responsible for, under a theory of respondeat superior, injuries caused by an employee acting in the scope of employment. Worker’s Compensation Implications: If an employee is injured at a holiday party, the applicability of a worker’s compensation statute depends on the state and the specific circumstances. In some states, employees injured at a social event can only recover under the statute if the employee was paid to attend. Other states would allow recovery if the employee was directed to attend the event. Employers should understand their coverage and its exceptions before holding the party. This also is a good time to consider whether other insurance might be appropriate to cover any potential problems that may arise at a party. Sexual Harassment: The holiday party, particularly the holiday party with alcohol, is a frequent source of sexual harassment claims. To lessen the possibility of sexual harassment, consider, besides limiting or eliminating alcohol: (1) reissuing the company’s anti-harassment policy shortly before the party; (2) inviting employee’s family members and significant others; (3) eliminating activities that might encourage too much familiarity, e.g., mistletoe, dancing, Twister, sitting on Santa’s lap; and (4) keep an eye out during the party for inappropriate behavior. If clients also are invited, make sure the company policy reflects, and the employees understand, that sexual harassment is not limited to coworkers but can come from clients as well. Be Mindful of Religious Biases: More than any other time of year, the holidays present several challenges regarding religious issues in the workplace. Invite all employees to the company “Holiday Party,” not “Christmas Party” or “Hanukah Party.” Avoid religious decorations that could be construed as favoring one religion to another, e.g. menorahs and nativities. Displaying only certain religious holiday symbols might make employees of a different faith (or no faith) feel excluded. If employers celebrate through holiday decorations, the best options are religiously-neutral decorations less likely to offend such as Santa Claus, reindeer, snowflakes, and wreaths. Also, avoid scheduling the party on religious holidays that may prevent some employee’s attendance. Try to accommodate dietary restrictions that may be tied to religion. Wage and Hour Implications: Make attendance at the holiday party voluntary; otherwise, non-exempt employees are entitled to pay for attending. Ensure that communications, both written and oral, reflect attendance is voluntary. Inform employees that attendance at the party will be unpaid and not constitute hours worked. Unless exempt employees do not work the week of the party, they will be paid regardless.
Kristi H. Johnson, Attorney Ogletree, Deakins, Nash, Smoak & Stewart, P.C. kristi.johnson@ogletreedeakins.com www.ogletreedeakins.com
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Executive Benefits as a Strategic Advantage
Recruit, Motivate, Reward and Retain the Best Executive Talent for your Business By JASON MAPLES and FRANK ARCARA
While a high unemployment rate may imply an employers’ market in terms of a large pool of applicants, the reality is that competition for talented, experienced executive leadership is fierce. Reduced revenues, tight budgets, greater regulations, and financial uncertainty mean organizations must accomplish more with fewer resources. The need for key leadership to navigate these choppy waters is more critical than ever. How can your company recruit, motivate, reward, and retain top executive talent? Having a comprehensive, well designed executive benefits program is a great start. Enhancing executive benefits can provide a huge advantage at a nominal cost. The Executive Playing Field—Offensive and Defensive There are two primary reasons why Executive Benefits are used to recruit, motivate, reward, and retain key leadership. Offensive Reasons
FIVE STEPS TO BUILDING A COMPETITIVE EXECUTIVE BENEFITS PLAN A well designed executive benefits program is often best to implement in stages. Depending on your company’s industry or size, all five elements may not be applicable or necessary. Step #1: Equalize Group Long-Term Disability and Group Life Insurance Payout Ratios Problem Long-term group disability (LTD) and group life insurance (LI) plans are usually structured to replace a certain percentage of income to a cap. For example, in case of a disability claim, a typical LTD plan may pay 60% of an individual’s base salary to a maximum benefit of $10K/month. In this instance, any person earning more than $200K a year will receive less than 60% of their salary in the event of a claim. A typical group life insurance policy replaces 2X earnings to a cap of $200K, meaning anyone earning in excess of $100K is not receiving full benefits. Finally, these group insurance programs typically insure base incomes only and it is not uncommon for an executive to receive as much as half of their income from incentive compensation programs. Solution One of the easiest and quickest ways to enhance an executive benefits plan is to equalize LTD and LI policies for executives to solve the reverse discrimination issues inherent in these group plans. The plans can be designed to insure all compensation (including incentive compensation) and are easy to implement. Moreover, most of these programs can be provided on either a guaranteed issue or simplified issue basis—saving your executives the frustration often caused by full medical and financial underwriting. This solution will give your top talent the comfort of knowing that their families will be taken care of in the event of disability or premature death.
Highly compensated executives are often frustrated by the limitations imposed in group benefits and ERISA (Employee Retirement Income Security Act of 1974) laws. These constraints make it impossible to replace the same percentage of income at death, disability and retirement as compared to non-highly compensated employees. As a result, highly compensated executives are reversely discriminated against.
Step #2: Implement Nonqualified Deferred Compensation (NQDC) Plans
Defensive Reasons
Solution
If an executive believes that they can accomplish their financial goals (e.g., save enough money for children’s education, save for retirement, ensure that the family has sufficient resources to carry on if the executive dies or becomes disabled) with their current employer, they are less likely to look elsewhere. The reality is, if an executive feels the grass is greener somewhere else, they begin to disengage.
w Executive deferrals only w Restorative matches w Discretionary contributions
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Problem ERISA limits tax-deferred retirement savings contributions to $17,000/year (for 2012) or $22,500 for executives above the age 50. As a result of these limits, highly compensated employees cannot save the same percentage of income on a tax preference basis as compared to non-highly compensated employees. For example, someone making $50K can contribute up to 34% of their income to their 401(k) plan, while someone making $200K cannot even contribute 9%.
Nonqualified deferred compensation plans (NQDC plans), or “top hat plans,” provide highly compensated employees with pre-tax savings opportunities enabling them to contribute up to 100% of their income. NQDCplan distributions and allocations are also more flexible than those under formally funded programs, such as 401(k) plans. When setting up an NQDC, there are three options to consider:
Executive Deferrals
The Benefits
Problem
With this option, the executive simply elects to defer a portion of their compensation (to a maximum of 100%) on a pre-tax basis. In addition, the executive elects a payment schedule for the funds. This can help supplement retirement savings, can fund a child’s college education, or a second home and/or any other financial planning objectives.
w A fully paid long-term care policy that your executives can take with them if they leave your company solves a very real problem for them and their families. As a result, they are free to focus on the strategic needs of your business instead of worrying about their future. w Executives pay no taxes on the benefits received from the policies, and the value of the premiums is not included in their taxable income (though there may be a few exceptions to this). w Your company can use pre-tax dollars to pay the long-term care premiums as long as the amount of premium is imputed to the insured, and you can obtain even lower premiums if multiple policies are purchased under a group plan.
Executive talent is often one of the few sustainable differentiators that organizations possess. So when an executive or key individual is disabled or dies, the business and its investors may suffer not only because of the individual’s lost productivity, but also because the business can no longer benefit from the individual’s intellectual capital, relationships and reputation.
Step #4: Offer Personal Excess Liability (Umbrella) Coverage
Benefit
Restorative Matches In addition to executive deferrals the company may choose to make a restorative match. For example, if a company has a 3% safe harbor match on 401(k) contributions, the IRS under §401(a)17 currently limits the company’s ability to match on income above $250,000. The NQDC plan could allow the company a mechanism to make an executive whole on the company’s match, in this example, 3% on their income above $250,000. Discretionary Contributions NQDC plans also provide the company a mechanism to make discretionary contributions to any employee’s account at any time, for any amount, and with any vesting schedule the company desires. This design strategy can be used for signing bonuses, retention bonuses, profit sharing, to replace stock options, or to incentivize performance. The Benefits w Employers can provide a program to recruit, reward, and retain key talent w Freedom to discriminate and select participants among highly compensated management w Benefits are tax-deductible when paid w Assets which finance the plan are owned as corporate assets w Earnings from assets may accumulate tax-deferred depending on the plan financing option w The company may recover all costs to run the plan depending on plan design w IRS approval is not required—requires only onetime Top Hat filing w No testing, no required audit, and no 5500 reporting Step #3: Offer Executive Long-Term Care Insurance Problem As people live longer and healthcare costs increase, everyone is worried that their retirement savings will not be enough to cover future health emergencies and long- term needs. Solution Offer long-term care policies to reward a specific group of employees who are critical to the success of your business. These policies are not subject to ERISA workplace discrimination laws like other benefits are (e.g., 401(k) plans), so they can be “carved out” for specific employees and their spouses.
Problem Highly compensated executives often have high value personal assets (high value homes, cars, boats and planes) that are at risk in the event of an injury, accident, judgment, or other liability claim. These events can also require large amounts of time away from work to defend. Solution Offer personal excess liability coverage to a defined group of executives. A group policy can enable executives the ability to obtain higher limits of coverage than they could on their own, and at discounted rates. The Benefits w Access to high limits of personal liability coverage (up to $50 million) with little underwriting scrutiny. w Flexibility in the design of the program. The company may choose who is eligible and the participants can choose their own limits. w Discounted group premium. This benefit can be paid by the employer, employee, or any combination of the two. Due to the group aspect of this coverage, significant premium savings are evident— especially at higher limits. w Automatic coverage. For mandatory programs, in which the entire group is included for coverage, new employees are automatically granted coverage upon employment. This helps close gaps and allows the company to fully leverage their benefits. Step #5: Consider “Key Person” Insurance
Solution Obtain “key person” insurance. This insurance is for the business, not the executive. It provides funds to the business and/or its investors to cover expenses associated with finding qualified replacements and to cover revenue deficits in the event of the loss of a critical employee. While the tangible benefits go to the company or its investors, all executives benefit. They can rest assured that the company is prepared to withstand the loss of a key executive. The company has planned ahead and will most likely not suffer long-term financial hardships or insolvency. Executives know that their plans and livelihood will not suffer greatly because of a business that struggles after the loss of a key executive. The Right Executive Benefits Plan Can be a Powerful Recruiting and Retention Tool High-growth companies succeed because they find creative ways to hire, motivate and keep “A” Players. A comprehensive, well designed executive benefits program that incorporates most or all of these five steps will serve your business well. A small investment in time, energy, and financial resources will give your company a boost when competing for executive talent.
Ashley Pace
Lockton’s Memphis Office 901 757 6902 apace@lockton.com
Brad Owens
Lockton’s Memphis Office 901 757 6901 Bowens@lockton.com
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What is ICE’s IMAGE Program and Should Employers Enroll? By BRUCE E. BUCHANAN
I
mmigration and Customs Enforcement (ICE) - Homeland Security Investigations (HSI) created IMAGE (ICE Mutual Agreement between Government and Employers) in July 2006 to build relationships with employers that strengthen hiring practices and encourage employer compliance in ensuring a lawful workforce.
Initial IMAGE Program Initially, IMAGE got off to a slow start with very few employers enrolling in the program. One of the initial problems was that employers had to agree to an ICE inspection as part of IMAGE but ICE was not agreeing to waive any fines or penalties for substantive errors. Thus, most employers could not see any real advantage to enrolling in IMAGE.
ICE Changes IMAGE to be More Employer-Friendly Most likely as a result of low enrollment, ICE changed the IMAGE program several years ago to waive any fines if substantive violations were discovered on fewer than 50% of the I-9 forms. However, ICE still has the authority to issue fines if more than 50% of the I-9 forms contain substantive violations although the fines would be at the statutory minimum of $110 per violation. Don Baker, the Section Chief for Worksite Enforcement in Washington, D.C., stated at a recent seminar in Atlanta, ICE-HSI has not fined any employer with more than 50% error rate even though it has the authority to do so. As the Mr. Baker stated, no employers would enroll in IMAGE if they knew they were going to be fined. And this is exactly why most employers have been reluctant to enroll in IMAGE.
What is IMAGE? In order to enroll in IMAGE, an employer must sign IMAGE Agreement. In signing the Agreement, an employer is agreeing to a number of actions. Specifically, they are: 1. Within 60 days of signing the agreement, enroll in the Department of Homeland Security’s E-Verify program and process all future employees though the E-Verify program; 2. Within 120 days of signing the agreement, establish a hiring and employment eligibility verification program, or provide evidence of an existing program, that includes (a) at least one annual internal I-9 form audit and (b) hiring procedures to prevent the employment of unauthorized workers. 3. Agree to fully implement the IMAGE program for a minimum of two years; 4. Submit to an ICE I-9 inspection and to resolve any identified deficiencies; 5. Participate in the Social Security Number Verification Service (SSNVS) but only to be used for payroll purposes, not for employee verification; 6. Establish an internal compliance and training program related to the hiring and verification process; 7. Establish self-reporting procedures to inform ICE of violations or deficiencies; 8. Establish a tip line for employees to report activity, which relates to the employment of unauthorized workers and a protocol for responding to credible employee tips; 9. Report immediately to ICE the discovery of credible information of suspected criminal misconduct in the employment eligibility verification process; 10. Ensure that contractors and subcontractors establish procedures to comply with employment eligibility verification requirements. Encourage contractors and subcontractors to use IMAGE best practices, including E-Verify; 16
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11. Establish appropriate policies to avoid anti-discrimination allegations during the I-9 form, E-Verify and SSNVS processes; 12. Maintain copies of any documents accepted as proof of identity and employment authorization with the I-9 form for all new hires. ICE agrees to the following: 1. Waive any applicable files if substantive violations are discovered on fewer than 50% of the Forms I-9 reviewed as part of the inspection. In instances where more than 50% of the Forms I-9 contain substantive violations, ICE agrees to either mitigate any applicable files or issue fines no higher than the statutory minimum of $110 per substantive violation; 2. Refrain from conducting an additional I-9 form inspection for a minimum of two years, absent the existence of specific and credible evidence of knowingly employing undocumented workers; and 3. Grant the employer ample time to resolve discrepancies discovered during the I-9 form inspection. ICE-HSI is actively promoting IMAGE. They have IMAGE coordinators and are holding seminars with employers and some attorneys promoting IMAGE.
Conclusion Each employer, with the advice of immigration compliance counsel, needs to make their own decision as to whether to enroll in IMAGE. Many of its aspects, use of E-Verify, conduct an annual internal audit, establish an I-9 Compliance policy, train personnel on the correct procedures, do not engage in citizenship status or national origin discrimination, and maintain copies of documents supplied for employment authorization, should be incorporated in a sound I-9 Compliance policy. The major drawback is granting ICE access to your facility to conduct an I-9 audit. As one HSI-ICE official stated their agency is there to help employers. However, it reminds me of the old saying, “I’m with the government and I’m here to help you.” Thus, the decision to enroll in IMAGE is a difficult one.
Bruce E. Buchanan, Attorney Siskind Susser P.C. bbuchanan@visalaw.com www.visalaw.com
EMPLOYERS LAWYERS
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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 www.ogletreedeakins.com LAW FIRM OF THE YEAR Litigation – Labor & Employment LAW FIRM OF THE YEAR Employment Law - Management
Tennessee Court of Appeals Affirms Enforceability of Arbitration Provision in Negotiated Employment Agreement
By JENNIFER HAGERMAN
The Tennessee Court of Appeals recently affirmed a trial court’s order enforcing the arbitration clause of an employment agreement holding that the arbitration provision was freely negotiated and was not unconscionable. In Trigg v. Little Six Corporation, 2014 WL 3734577 (Tenn. Ct. App. July 28, 2014), the plaintiff argued that the arbitration clause should not be enforced due to the “unconscionably high” costs involved in arbitration. The Tennessee Court of Appeals applied a “totality of the circumstances” test in rejecting the plaintiff’s argument and noted, among other factors, that (1) the parties had negotiated the terms of the agreement; (2) the plaintiff had the opportunity to review the agreement, consult an attorney and revoke the agreement; and (3) the plaintiff had failed assert, much less establish, that he was unable to pay the arbitration expenses or even that the expenses would pose a financial hardship.
Case Background The plaintiff began his employment in 1987. Prior to entering into a new employment agreement in 2007, the plaintiff held equity in the employer and had been promised additional equity. Under the terms of the 2007 employment agreement, the employer paid the plaintiff $1,578,599 for his equity interest and continued the plaintiff’s employment at-will in his same position at the same annual salary of $154,472. The employment agreement also provided that plaintiff would receive a payment of $50,000 if the employer terminated plaintiff without cause. The parties agreed to submit any disputes relating to the agreement to arbitration and that the expenses of the arbitration would “be borne equally by the parties.” In 2012, the employer terminated the plaintiff without cause. Approximately one year after his termination, the plaintiff filed suit against the employer alleging claims of common law retaliatory discharge, age and religious discrimination under the Tennessee Human Rights Act, and violations of the Tennessee Public Protection Act. The employer filed a motion to dismiss or to stay and compel arbitration. The plaintiff opposed the motion on the grounds that the arbitration provision was unenforceable. In granting the employer’s motion, the trial court found that the agreement was not a contract of adhesion, it was the product of arm’s length negotiations between the parties, and that the plaintiff was a well-educated, well-paid and high level professional who was presumed to know the potential costs involved in arbitration. The plaintiff sought an interlocutory appeal, and the trial court and Tennessee Court of Appeals for the Eastern Division granted his request.
Tennessee Court of Appeals’ Analysis On appeal, the court began by finding that the Tennessee Uniform Arbitration Act (“TUAA”) governed, and, therefore, issues relating to contract formation must be decided by the court, as opposed to an arbitrator. The court then stated that arbitration provisions are generally considered valid and enforceable under the TUAA and that the Tennessee Supreme Court has stated that such provisions are favored. Despite this status, the court noted that “Tennessee courts have refused to enforce such agreements when they have been found to be unconscionable.” An agreement is unconscionable when its provisions are “so one-sided, in view of all the facts and circumstances, that the contracting party is denied an opportunity for meaningful choice.” In determining whether an agreement is unconscionable, the Tennessee Court of Appeals considers both “(1) procedural unconscionability, which is the absence of the meaningful choice on the part of one of the parties and (2) substantive unconscionability, which refers to contract terms that are unreasonably favorable to the other party.” 18
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The court stated that the plaintiff did not claim procedural unconscionability, as the plaintiff had negotiated the terms of the agreement, had read the arbitration provision and reviewed it with legal counsel, had the opportunity to revoke the agreement after signing, and was a highly compensated employee who dealt directly with the employer’s owners. The court also found that the agreement was not a contract of adhesion. According to the court, the plaintiff’s unconscionability argument rested entirely on his claim that the potential arbitration costs were “too high” and that he could not afford such costs. The court, however, did not find this argument persuasive. The court stated that viewing the “totality of the circumstances” the plaintiff had not met his burden of establish that the arbitration costs would be prohibitive. The court focused on the fact that “the only information plaintiff presented regarding his finances” was a statement that he had been unable to find an equivalent position and that his annual income was around $25,000 per year. The court then noted that the plaintiff had received “significant financial benefits from the employment agreement, a part of which he now challenges,” including the approximately $1.5 million buy-out payment, his $154,472 annual salary plus benefits, and the $50,000 severance payment. In addition, the court found that the plaintiff had “easy access” to the arbitration rules and fee information. The court concluded that the agreement was “neither manifestly one-sided nor unfair.” While the court held that the agreement was not unconscionable, the court did express concern over “an agreement that has the effect of imposing a $10,000 to $30,000 price tag on having legal claims heard and decided.” The plaintiff also argued that the arbitration clause was void against public policy, but the court rejected this claim on the same grounds it used to deny the plaintiff’s claim that the agreement was unconscionable.
Practical Applications The Tennessee Court of Appeals decision in Trigg demonstrates that Tennessee law continues to favor arbitration provisions, especially when such provisions are part of a negotiated agreement. Factors such as the opportunity for time to review and consult with an attorney, the education and compensation level of the individual involved, and potential financial hardship will also be considered by the court under the totality of the circumstances approach. Given the court’s concern over the amount of the arbitration fees, employers should strongly consider either a fee-splitting approach or allowing the arbitrator(s) to assess the fees and costs.
Jennifer S. Hagerman Attorney, Burch Porter & Johnson PLLC jhagerman@bpjlaw.com www.bpjlaw.com
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TOPAttorneys Labor & Employment Law
HR Professionals Magazine congratulates you on a job well done! It is our pleasure to introduce the 2014 Chambers USA list of top labor and employment law attorneys in TN, MS, AR, and KY. 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 www.chambersandpartners.com. This list is not inclusive and represents the firms that responded to our inquiry.
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 their clients. They treat your legal issues as business issues. Founded in 1943, the firm has more than 300 attorneys in 31 offices. Their range of experience and knowledge enables them 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).
Tom Birchfield is the managing partner of the Louisville office, which he helped open for the firm in 2009. Prior to 2009, he was the chairperson of the labor and employment practice group of a large regional law firm. Tom has represented employers exclusively for over 25 years in federal and state courts and before various administrative agencies throughout the nation. Tom assists employers with their employment practices liability prevention efforts by conducting training, counseling, reviewing and revising policies and preparing severance agreements. Tom also represents companies in collective bargaining, arbitrations and proceedings before the National Labor Relations Board.
Ray Haley is a partner in the Louisville Office. He has practiced labor and employment law for more than 30 years. Ray represents employers in a variety of industries, including healthcare, manufacturing, transportation and rehabilitative services. His representation of clients involves defense of all forms of civil rights and wrongful discharge claims in state and federal courts, labor litigation before state and federal agencies and courts, as well as arbitration of labor disputes. Ray regularly advises clients concerning compliance with virtually all employment-based state and federal mandates, and union related matters. Ray is "AV" Peer Review Rated by Martindale-Hubbell, has been listed in Kentucky Super Lawyers since 2007, Super Lawyers Corporate Counsel Edition – 2010, The Best Lawyers In America since 2006, and Chambers USA, America's Leading Business Lawyers since 2004.
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Jeff Savarise is a partner in the Louisville office and Chair of the firm's Automotive Manufacturing Practice Group. Jeff practices exclusively in the areas of labor and employment law on behalf of employers, where he handles cases in a number of state and federal jurisdictions. He also provides a variety of preventive maintenance and employment training programs especially geared to the automotive industry. Jeff received the "Distinguished Alumni Award" given to alumni of the University of Akron Law School who have demonstrated significant achievement in the field of law and have made significant contributions to their community. Jeff is "AV" Peer Review Rated by Martindale-Hubbell and has been included in the Kentucky Super Lawyers list since 2007. He has also been listed in The Best Lawyers in America since 2006 and in Chambers USA, America's Leading Business Lawyers since 2003. Jeff was recognized as a Labor Law - Management Lawyer of the Year by Best Lawyers in America for 2014. Jeff was named to the 2014 BTI Client Service All-Stars, an exclusive group of attorneys singled out for client service excellence.
Laurel Cornel is an associate in the Louisville office. Her practice involves representing employers in litigation of employment disputes involving Title VII, the FMLA, retaliation, breach of contract, and wrongful termination claims. She also has experience advising and representing employers in administrative actions. While in law school, Laurel was a member of the Kentucky Law Journal. Laurel was listed in Chambers USA, America's Leading Business Lawyers in 2013. She was selected for inclusion in Kentucky Super Lawyers Rising Star in 2013.
Cross, Gunter, Witherspoon & Galchus, 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 tenth 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, transportation law and government 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 or Sport. She was appointed by Arkansas Governor Mike Beebe to the Commission on Uniform State Laws in 2013. Ms. Witherspoon 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. She is also a Fellow in the College of Labor and Employment Lawyers. 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. In 2014, he was named a Fellow in the College of Labor and Employment Lawyers. He currently serves as Chairman of the National Legislative Committee of the Associated Builders and Contractors of America (ABC), and is past Chairman of the Statewide Board of Directors for Junior Achievement of Arkansas and past 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. 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 in the firm’s Little Rock office. 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 on the Boards of Directors for Fulbright Elementary PTA and VOCALS – Volunteer Organization, Center for Arkansas Legal Services. Missy was named an Arkansas Business 40 Under 40 in 2011 and one of Soirée Magazine’s “Women to Watch” in 2013. 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.
Legal Challenges are Coming at HR Professionals from Every Direction
That’s Why Rainey Kizer Makes Your Business Our Concern As the issues facing HR executives become more frequent, challenging, and complex each year, you need a law firm that provides advice individualized for your specific needs. This is why you should know the employment-law attorneys at Rainey, Kizer, Reviere & Bell PLC. For over 30 years, our AV-rated firm has advised businesses, nonprofit organizations, and government agencies on all aspects of employment law. To learn more, please call.
r a i n e y k i z e r . c o m
Memphis 901-333-8101
Jackson 731-423-2414
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Littler Mendelson, P.C. Firm Overview: Littler is the largest global employment and labor law practice, with more than 1,000 attorneys in over 60 offices worldwide. Littler represents management in all aspects of employment and labor law and serves as a single source solution provider to the global employer community. Consistently recognized in the industry as a leading and innovative law practice, Littler has been litigating, mediating and negotiating some of the most influential employment law cases and labor contracts on record for over 70 years. Littler Global is the collective trade name for an international practice, the practicing entities of which are separate and distinct professional firms. For more information, visit: www.littler.com. Paul E. Prather is a shareholder in Littler’s Memphis office. He represents management exclusively in all areas of employment and labor relations, including state and federal employment litigation and in administrative proceedings before the National Labor Relations Board, the Equal Employment Opportunity Commission and the United States Department of Labor. With more than 30 year of success in defense litigation, including jury trials, he is a frequent lecturer and author for management and legal groups on labor and employment law issues.
Jonathan E. Kaplan is a shareholder in Littler’s Memphis office. He has devoted his entire career to representing management clients exclusively in all areas of labor relations, employment law, and human resources management. His practice spans litigation, training, and consulting, in which he has handled matters in more than 40 states and Canada. Jonathan practices extensively before the NLRB across the country, and also has been admitted specially to practice before the state courts in California, Florida, Illinois, Indiana, Kentucky, Michigan, New York, and Ohio. He also is a frequent speaker before management and legal groups and has published numerous articles on labor and employment issues. Jay W. Kiesewetter is a shareholder in Littler’s Memphis office. He devotes his practice to representing clients in the traditional areas of labor relations and employment law. He counsels employers in all aspects of union-free management and advises non-union companies facing union organizing activity. Jay represents employers in unfair labor practice and representational proceedings before the National Labor Relations Board and the United States Courts of Appeal. In addition, Jay works with companies that have unions to improve union-management relations and represents management in contract negotiations, arbitrations, and labor disputes. Jay has assisted numerous clients in developing preventive strategies to reduce their exposure to future legal and/ or human relations problems. Jennifer Robinson is a shareholder in Littler’s Nashville office. She has been the lead defense attorney in more than 30 wage and hour class and/or collective actions involving claims of misclassification, overtime and minimum wage violations, 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, Jennifer defends employers in single and multi-plaintiff lawsuits involving claims of discrimination, harassment, failure to accommodate and breach of contract. Eric Stevens is a shareholder in Littler’s Nashville office. He has over 30 years of experience representing clients - focusing on healthcare and financial institutions - in labor relations and employment litigation. He represents both union and non-union employers, providing counseling to avoid litigation as well as defending clients in both court and administrative proceedings. Eric regularly speaks to industry groups and business roundtables on new developments in the law and issues that can directly affect their operations. He provides training on discrimination, harassment, wage and hour and related topics for private employers, public employers and governmental entities. 22
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Eva C. Madison is a shareholder in Littler’s Fayetteville office. She represents and advises employers of all sizes in all aspects of employment law, with a primary focus on employment litigation, including discrimination and harassment cases, as well as individual and collective wage and hour claims. Additionally, she counsels employers on strategies for minimizing potential litigation and provides advice on personnel matters and practices and the practical and legal implications of everyday employment decisions. She has particular experience advising employers on human resources systems, including selection systems, job analysis and training. She also provides management and employee training. LaToi D. Mayo is a shareholder in Littler’s Lexington office. She has advised, counseled and defended employers in regard to labor, employment and immigration matters for the past nine years. She has successfully litigated in both state and federal court. LaToi also has expertise in Kentucky’s Workers’ Compensation issues, including benefits claims disputes. Working most frequently with financial institutions and local city governments, LaToi has notable expertise with discrimination issues. LaToi routinely presents at seminars focusing on labor, employment and immigration topics for a variety of professional organizations in Kentucky. She also conducts training for managers, supervisors and the general workforce and provides compliance counseling. Emily H. Morris is a Littler attorney who advises and represents employers in a broad range of employment matters, appearing in state and federal courts. She regularly handles discrimination, harassment, and retaliation issues. Emily also has experience advising clients in connection with the increasing number of social media issues which employers face in the employment context. Susan C. Sears is a shareholder in Littler’s Lexington office. She has a local, regional and national employment defense law practice that is exclusively focused on legal issues in connection with the employee-employer relationship. For the past 16 years, she has counseled management on a wide spectrum of day-to-day personnel issues. She also has a strong record of litigation success, defending employers in state and federal court and on the administrative level against claims of alleged discrimination, harassment, retaliation, and wrongful termination, as well as alleged violations of the numerous state and federal statutes governing employers. Practicing before federal and state courts and administrative agencies, Susan has specific experience providing litigation defense.
Tangled up in new laws? Don’t lose momentum. Contact Littler today.
www.littler.com • Littler Mendelson
333 West Vine Street, Suite 1620 Lexington, KY 40507 859.317.7970
3725 Champion Hills Drive, Suite 3000 Memphis, TN 38125 901.795.6695
333 Commerce Street, Suite 1450 Nashville, TN 37201 615.383.3033
When to Seek
Legal Counsel
for Employee Issues By KRISTEN MINTON and CHRISTY SHOWALTER
E
ven the most experienced HR professional occasionally needs the advice of an employment attorney. As HR professionals, we are faced with over 50 categories of regulations that affect every aspect of the employment relationship. From ADAAA, FMLA and EEOC to FLSA, OWBPA and DOL – everything in HR involves a potential risk. You certainly do not want to seek legal advice for every employee issue; however, with it costing an average of over $75,000 simply to defend a legal challenge (and that is if you “win!”), it is important to know when to seek outside help. Savvy HR administrators do not want to be scouring the internet once they receive a lawsuit to find a good employment lawyer. The best approach is to develop a relationship with a good attorney on the front end before you wind up in litigation. Not only can an attorney offer subject matter expertise and practical experience, but also an attorney’s outside perspective is often helpful in resolving employment-related matters. A good attorney can provide an unbiased point of view and remove any emotional attachment to the situation or individuals involved. The following examples demonstrate situations in which the advice of an attorney on the front end can be invaluable.
Administrative Investigations and Audits While every employer will call their attorney when they receive a lawsuit, some employers do not think to reach out to their attorney when they are notified of an administrative charge, audit or investigation. Instead, some employers elect to respond to notifications themselves, such as an EEOC Complaint, an I-9 Audit, or a Wage and Hour Investigation. What they may not realize is that their response could be used as evidence against them in a future lawsuit. In addition, they may not have a full understanding of their rights and obligations throughout the process. By contacting an employment attorney on the front end, employers can reduce the likelihood that their response is shown as Exhibit A in a lawsuit.
Document Preparation and Review Employer-employee relationships are documented in many ways, including contracts, non-competition clauses, employee handbooks, accommodation requests, benefit summaries, performance reviews, disciplinary documentation and severance agreements. These documents must comply not only with a myriad of federal laws and often more restrictive state and local laws, but also with the complex body of common law created by the courts as well as guidance from regulatory agencies. Employers must avoid creating unintentional promises or obligations in each document while clearly communicating expectations. While sample templates are often a good starting point, it may be worthwhile to consult an attorney to assist with the preparation or review of these documents and to help ensure that they are appropriate for your specific organization and situation before creating legal liability.
Leave of Absence and Disability Administration While most requests for a leave of absence or an accommodation are fairly routine and are easily administered, these processes can also create headaches when trying to navigate often conflicting state laws, proper forms, intermittent leave and benefit continuation. To complicate matters more, these situations often demand very fact-based determinations and require detailed documentation 24
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throughout the process. A thorough understanding of the overlap of FMLA and ADA is also critical, especially as an employee exhausts FMLA protection and may require an extended leave or other reasonable accommodation. An attorney can provide not only advice, but also training to ensure procedures are in place to respond properly and timely to leave or accommodation requests. By seeking advice on the front end, employers can learn to manage leave (and abuses of leave) more effectively, as well as to engage in the interactive process more compliantly, saving money in the long-run.
Wage & Hour Compliance Wage and hour laws are a source of a number of employment-related risks, as it is common for employers to misinterpret or misapply these intricate regulations. Wage-related errors can be costly, as they often affect an entire class of employees. In fact, wage and hour litigation has outpaced all other types of workplace class actions in recent years. One of the most common errors involves the classification of exempt and non-exempt employees. If your classifications were not developed with the assumption that all employees are eligible for overtime pay unless you can identify a specific exception exempting the employee, then you may benefit from a consultation with an employment attorney. Pay practices such as non-discretionary bonuses, payment of non-exempt employees on a salaried basis, the employment of tipped workers, or the utilization of piece rate or shift differential pay each require unique and complex overtime calculations. It is often worth the expense of a consultation to ensure proper procedures are in place on the front end before you have a class of employees incorrectly compensated.
Employee/Independent Contractor Classification Employers mistakenly believe that the employer and worker may decide whether to classify an individual as an independent contractor or an employee. It is a much more complicated decision than just whether to issue a worker a form 1099 or a form W-2. There can be many unpleasant surprises for the uneducated employer if they improperly classify a worker as an independent contractor rather than an employee. Improper classification can result in liability for withholding taxes, failure to pay minimum wages or overtime or unemployment compensation. It could also result in litigation for retirement, health and workers’ compensation benefits offered by employers. Additionally, with the upcoming implementation of the Pay or Play Rules under the Affordable Care Act, improper classification could directly impact large employer status and may result in unanticipated penalties. As each agency and governing body uses similar but different factors to make a determination regarding the status of a worker, smart HR administrators will consult with an attorney familiar with this area of the law when first faced with a contractor relationship.
Reasonable Expectations Keep in mind that a good lawyer may charge an expensive rate. Talk with colleagues and local lawyers in the community to find recommendations for an attorney who specializes in your needed area. You don’t want to spend your money to educate a lawyer, even if he or she will charge a cheaper rate. In addition, make sure you understand the billing and fee arrangement; neither side will like a surprise when it comes to fee or billing issues. Finally, get your lawyer involved sooner rather than later. Generally, attorneys have other pressing legal matters, and giving them ample time will create a better result for all parties. Don’t be penny wise and dollar foolish by trying to handle all employment-related issues internally. Even the small problems can snowball into very large problems. Know your limits and don’t be hesitant to consult with an attorney if you need help.
Kristen Minton Associate General Counsel Regions Insurance, Inc. kristen.minton@regions.com
Christy Showalter Senior Human Resource Consultant Regions Insurance, Inc. christy.showalter@regions.com
SETTING YOU ON THE RIGHT PATH
FOR SUCCESSFUL BENEFITS MANAGEMENT Monitoring changes with today’s employee benefit laws can be overwhelming for even the most seasoned HR professionals. And, with more than 50 categories of regulations, nearly every aspect of the employer-employee relationship is impacted. Regions Insurance is able to assist you each step of the way in navigating today’s benefits rules, while helping you manage and protect your organization’s growth, profitability and people.
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Tom Hayes Employee Benefits Practice Leader tom.hayes@regions.com 479-684-5259
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Find Regions Insurance offices in these states: Alabama, Arkansas, Georgia, Indiana, Louisiana, Mississippi, South Carolina and Tennessee
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 more than 700 lawyers located in 45 offices across the United States and in Europe. Ogletree Deakins is the “Law Firm of the Year” in both the Employment Law - Management and Labor Law - Management categories in the 2014 edition of the 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.
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. 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 is also active in the ABA’s Labor and Employment Section where he currently serves as the Section Delegate to the ABA House of Delegates. 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. Mr. Frazier was included in the most recent editions of The Best Lawyers in America and Chambers USA.
Elizabeth Washko is the Managing Shareholder of the Nashville office. Ms. Washko represents management in a wide variety of employment litigation matters, including discrimination, harassment, retaliation, FMLA, FLSA, wrongful termination, breach of contract, and covenant not to compete cases. Ms. Washko is a frequent speaker and writer on topics relating to all types of employment issues and works with clients on preventive strategies to avoid discrimination, retaliation and other employment claims. Ms. Washko is a graduate of Rutgers School of Law and joined Ogletree Deakins in 2000. Ms. Washko is a member of the Labor Standards Legislation Subcommittee of the ABA’s Labor and Employment Section. She is a regular contributing editor to the ABA’s FLSA Treatise and annual supplements.
Louis Britt is a Regional Managing Partner and 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."
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.
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Steve Kramer 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.
Balch & Bingham LLP Firm Overview: Balch & Bingham LLP is a corporate law firm recognized nationally for its counsel and deep experience in regulated industries including energy, financial services and healthcare, and its highly regarded practices in business, environmental, government relations, labor and employment and litigation. With more than 250 attorneys and lobbyists across offices in Atlanta, Georgia; Birmingham and Montgomery, Alabama; Gulfport and Jackson, Mississippi; Jacksonville, Florida; and Washington, D.C., our firm is known for its collaborative, multidisciplinary approach. Balch & Bingham’s professional, collegial culture is inspired by nationally ranked attorneys who combine business intelligence and industry leadership with high-quality legal counsel to anticipate and respond to corporate challenges both creatively and proactively. We manage our client partnerships with efficient processes and transparencies that result in an uncommon, value driven client experience. Balch & Bingham was founded in 1922. R. Pepper Crutcher, Jr., partner with Balch & Bingham LLP, 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 (www.acareview.com). 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.
Armin J. Moeller, Jr.’s practice with Balch & Bingham LLP focuses primarily on labor relations and employment law issues and 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.
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Bass, Berry & Sims Firm Overview: The labor and employment law team is known as a strong team of litigators and counselors with particular recent involvement in non-compete work and employment issues relating to the healthcare sector. Defends employers against the full range of discrimination claims and offers traditional labor law expertise, including in union avoidance and contract negotiation. They are experienced in management side labor practice and employment law litigation and counseling, including informational and decertification campaigns, contract negotiations and arbitrations; retaliation, discrimination and whistleblower claims; FLSA DOL investigations and class/collective actions; and a myriad of other issues including FMLA and state law leaves of absence, I-9 compliance, independent contractor classification and non-competes. Bill Ozier of Bass, Berry & Sims has practiced more than 40-years as a labor and employment attorney and has earned national praise that includes 30 consecutive years of recognition in Best Lawyers in America® for labor and employment and top-tier rankings in Chambers USA for his "well documented and focused process" on labor and employment matters (from Chambers USA 2013). Bill's ability to provide practical employment advice while remaining mindful of the cost/benefit considerations for the business has resulted in numerous long-term client relationships. One such relationship includes the representation of a prominent Tennessee university and academic medical center in the defense of employment discrimination claims, including tenure denial cases, student lawsuits and general labor and employment advice. Bill represents a wide variety of clients – including a number of Fortune 500 companies – from a broad scope of industries, including manufacturing, distribution, retail, education and healthcare. Tim Garrett of Bass, Berry & Sims helps employers solve complex issues related to all aspects of labor and employment law, providing in depth counseling and developing creative solutions to underlying business issues. He is an experienced trial lawyer, defending employers of all sizes in employment litigation claims across the country. His work has ranged from defending a major university during a significant wage and hour collective action involving thousands of employees to the successful defense of a major healthcare provider in a gender discrimination / retaliation case. In addition, Tim has served as nationwide labor and employment counsel for the largest nonprofit dialysis company in the U.S. Named a top management lawyer in Nashville in 2013, and recognized by both Best Lawyers in America® and Chambers USA for several years, Tim has earned a national reputation for counseling employers through the maze of complex employee issues.
Bob Horton – As chair of Bass, Berry & Sims Labor & Employment Practice Group, Bob Horton represents management in all areas of labor and employment law. Bob's practice consists primarily of counseling clients regarding employment issues and defending companies against all manner of employment claims throughout the U.S. Bob has substantial jury trial experience and has obtained defense verdicts in discrimination and retaliation lawsuits across the country. With a robust non-compete practice, Bob has assisted employers in drafting non-compete agreements on a state by state basis, enforcing non-compete agreements by way of obtaining injunctive relief, and defending the company and new employees against claims of breach of non-compete agreements with prior employers. Bob assists numerous public companies and executives in the negotiation of employment agreements, as well as executive departures and subsequent issues that arise from equity grants in various forms.
Michael Moschel of Bass, Berry & Sims provides counsel on complex labor and employment issues to employers from industries as diverse as healthcare, aerospace, automotive and commercial printing. Known as "a good traditional labor practitioner" (from Chambers USA 2013), a significant portion of Michael's practice involves collective bargaining agreement negotiations, labor arbitrations, contract administration, defense of unfair labor practice charges and strike guidance. Much of Michael's traditional labor work is for government service contractors, particularly Department of Defense contractors. He also advises numerous healthcare employers, particularly hospice companies on labor and employment challenges unique to this industry.
Jennifer P. Keller is chair of her firm’s Labor and Employment Law 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.
Herb Gerson, Co-Managing Partner, 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 and is a member of the Executive Committee of Ius Laboris, the global HR law firm alliance of which FordHarrison is the sole U.S. member firm. He earned his JD from Emory University School of Law in 1973 and is licensed to practice in Georgia and Tennessee. He was recently recognized as an “Eminent Practitioner” by Chambers USA and is a fellow of the College of Labor and Employment Lawyers. He is also listed in The Best Lawyers in America. 28
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P E R F EC T A L I G N M E N T. Relationship. Reliability. Respect. At the center of Bass, Berry & Sims' Employee Benefits and Labor and Employment practices. We listen, and we respond with creative yet practical counsel. Connecting your dynamic human resources needs to affirmative strategies. • Day-to-day employment counseling and litigation support • Employee benefit plans and compensation arrangements • Training and auditing programs • Traditional labor law Offering a constant source of information and insight through our blog: tennesseelabortalk.com
N A S H V I L L E K N OX V I L L E M E M P H I S WA S H I N G T O N D C bassberry.com
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.
E. B. (Chip) Chiles IV, is Managing Member of an Arkansas firm and focuses his practice on business-related litigation. He regularly advises and defends businesses faced with employment issues, including wage-and-hour disputes; wrongful termination claims; allegations of age, race, sex, and disability discrimination; claims of retaliation; hostile workplace allegations; the validity of covenants not to compete; confidentiality issues; contract negotiations and disputes; and ERISA benefits litigation. He is recognized as one of the top lawyers in the nation by Chambers USA’s Guide to America’s Leading Lawyers for Business, The Best Lawyers in America®, Benchmark Litigation, and named one of the top 50 lawyers in Arkansas by Mid-South Super Lawyers.
Jackson Lewis P.C. Firm Overview: Founded in 1958, Jackson Lewis is dedicated to representing management exclusively in workplace law. With over 770 attorneys practicing in 55 locations throughout the U.S. and Puerto Rico, Jackson Lewis is included in the AmLaw 100 and Global 100 rankings of law firms. U.S. News - Best Lawyers "Best Law Firms" named Jackson Lewis the 2014 "Law Firm of the Year" in the Litigation-Labor and Employment category. To learn more about our services, please visit us online at www.jacksonlewis.com. James R. Mulroy II is the Managing Shareholder and Litigation Manager of the Memphis, Tennessee office of Jackson Lewis P.C. 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, who have listed him among the top 100 attorneys Tennessee and top 50 attorneys in Memphis, and Best Lawyers in America as well as being “AV Rated” in Martindale Hubbell.
Jackson Lewis applauds Memphis Office Managing Shareholder,
James R. Mulroy II,
for being recognized by Chambers and Partners as one of 2014’s top labor and employment attorneys in Tennessee! With over 770 attorneys practicing in 55 locations throughout the U.S. and Puerto Rico, Jackson Lewis provides creative and strategic solutions to employers in every aspect of employment, labor, benefits and immigration law. Jackson Lewis was recognized as the 2014 Law Firm of the Year in the category of Litigation – Labor & Employment, and ranked in the First Tier nationally in the categories of Employment and Labor Law on behalf of Management in U.S. News – Best Lawyers® “Best Law Firms.” To learn more about our services, please visit us online at www.jacksonlewis.com.
JAMES R. MULROY, II 999 Shady Grove Road, Suite 110 Memphis, Tennesee 38120 MulroyJ@jacksonlewis.com • (901) 462-2600
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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 positive employee relations. In 2006, Arnold co-authored, Simple Solutions, with Tom Schmitt from FedEx and published by John Wiley & Sons. Representing the Tennessee Chamber of Commerce and Industry, Arnold was the lead witness in a 2011 two-day hearing before the National Labor Relations Board regarding proposed rule changes designed to speed elections for unionization of companies.
Bingham Greenebaum Doll LLP Firm Overview: Bingham Greenebaum Doll LLP is a regional law firm providing progressive business, litigation and government services to clients ranging from Fortune 500 businesses and Global 1000 companies to small, regionally based organizations across a variety of industries and sectors. The firm is both locally accessible and nationally connected with offices in Indiana, Kentucky and Ohio. In addition to its regional presence, Bingham Greenebaum Doll LLP provides international representation to a multitude of clients and is a member of TerraLex®, an association of independent law firms in nearly 100 countries, providing the firm and its clients with quick access to advice on the laws of foreign jurisdictions. Philip C. Eschels is a partner in the Labor and Employment practice group at Bingham Greenebaum Doll. He represents employers in defending against employment-related claims in both federal and state courts. He also represents clients involving covenants not to compete and the protection of trade secrets. Phil also counsels employers and trains management personnel concerning a wide range of employment-related topics, including harassment, how to prevent discrimination lawsuits and how to minimize potential liability when hiring, disciplining and firing employees. Phil has written many articles and co-authored How to Avoid Legal Problems in Hiring and Firing in Kentucky. He is admitted to practice in Indiana (1984) and Kentucky (1985).
Wendy Bryant Becker represents employers in all phases of employment law at Bingham Greenebaum Doll. In particular, her practice includes the litigation of employment discrimination and wrongful discharge cases, representation of employers before the EEOC, state and local Human Rights Commissions, and general counseling to employers on hiring, firing, wage-hour and other day-to-day employment matters. Wendy is currently a member of the Kentucky Bar Association’s Labor and Employment Law Section and a board member of the Fayette County Bar Association (2014-2016). She is admitted to practice in Ohio (1981) and Kentucky (1983).
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Wyatt Tarrant & Combs LLP Firm Overview: The 27 lawyers of Wyatt’s Labor and Employment Team understand the daily demands managers and supervisors face. Whether you are a Human Resources Director for a large company, a CEO for a small start-up serving as your own HR manager, or supervising employees in any other capacity, effectively managing people is the key to your organization’s success. Wyatt’s Labor and Employment lawyers have experience in resolving all manner of employment difficulties. Ed Hopson concentrates his practice in all areas of labor and employment law. On a national and regional basis, he has handled a wide range of employment and labor law matters, including employment discrimination cases, wrongful discharge and related tort cases, FMLA matters and litigation, union organizing campaigns, NLRB unfair labor practice cases, collective bargaining negotiations, strike preparation/planning, strike/injunction litigation, labor arbitrations, mediations, OSHA cases, and wage-hour matters. Mr. Hopson’s distinctions include Chambers USA: America’s Leading Lawyers for Business in Labor and Employment Law; recognition by his peers in Kentucky Super Lawyers as one of the “Top 10 lawyers in Kentucky;” Woodward/White’s The Best Lawyers in America® in the areas of Employment Law-Management, and Labor & Employment Litigation. Mr. Hopson also edits the “Wyatt Employment Law Report” blog. Debra Dawahare concentrates her practice in the areas of employment law and general litigation. She regularly counsels employers with regard to employment issues, such as handbooks, policies, hiring, discipline and discharge. She has authored and co-authored numerous publications, including the Kentucky Chamber of Commerce’s The Kentucky Unemployment Compensation Handbook. Ms. Dawhare’s distinctions include Chambers U.S.A.: America’s Leading Lawyers in the area of Labor & Employment since 2004. Clients interviewed by Chambers USA describe Ms. Dawahare as "extremely professional," "top-notch" and "one of the top litigators in the region." She has also been recognized by Kentucky Super Lawyers® as one of the “Top 25 women attorneys in Kentucky,” and Woodward/White’s The Best Lawyers in America® in the areas of Employment Law-Management and Litigation-Labor & Employment. George Miller concentrates his practice in the areas of labor and employment law and eminent domain law. Mr. Miller is a frequent speaker on topics related to labor and employment law, and a regular contributor to the Kentucky OSHA Journal. He is the past President of the Labor and Employment Law Section of the Kentucky Bar Association. Mr. Miller’s distinctions include Chambers USA: America’s Leading Lawyers for Business, in the area of Labor & Employment. Clients interviewed by Chambers USA say that Mr. Miller "provides amazing leadership" and is "an excellent labor lawyer who does a great job for clients." He has also been recognized by Kentucky’s Super Lawyers® and Woodward/White’s The Best Lawyers in America® in the areas of Labor Law-Management and Employment Law-Management.
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Loren Prizant practices primarily in the areas of labor and employment law, defending individual and class action employment matters, workers’ compensation claims, unemployment claims and labor disputes in a variety of forums, including federal and state administrative agencies and courts. He also provides advice to employers on personnel policies and procedures, employee discipline, sexual harassment investigations and termination decisions. He is listed in Chambers USA, Super Lawyers, and Louisville Magazine’s Top Lawyer’s 2014 in labor and employment law – defense. Mr. Prizant graduated from the Brandeis School of Law, magna cum laude, in 2004 and is licensed to practice in Kentucky and Indiana.
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.
Stites & Harbison, PLLC Firm Overview: Stites & Harbison is a preeminent, full-service law firm providing advocacy and counsel to multinational corporations, financial institutions, pharmaceutical companies, health care organizations, private companies, nonprofit organizations, family-owned businesses, and individuals. The firm places an emphasis on managing sophisticated transactions, challenging litigation, and complex regulatory matters on a daily basis. Stites & Harbison is one of the largest law firms in the Southeast region, and is routinely honored with national and international awards. In recent interviews with U.S. News & World Report / Best Law Firms, clients indicated they “... received excellent service and value with Stites & Harbison;” that the firm is “... adept at handling a variety of matters for business;” and that “Stites & Harbison stands head and shoulders above any law firm I have used during my career, and there have been many. Their knowledge, exemplary service and quick responsiveness to customer needs can at times be jaw-dropping.” Shannon Hamilton is a seasoned litigator and counselor on behalf of employers with complex employment law issues. She has lead trial counsel experience in employment litigation and has tried numerous cases to verdict. Her employment litigation practice focuses on defending employers against sexual harassment and retaliation claims, covenants not to compete, non-solicitation and confidentiality agreements. Shannon is also the firm’s Chief Talent Officer (CTO) where she is responsible for overseeing all firm recruiting, professional development, and diversity efforts. The CTO works closely with the Chairman of the firm to align the firm’s talent managing efforts with the firm’s strategic plan.
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Friday, Eldredge & Clark, LLP Firm Overview: As Arkansas’s largest law firm, we serve Fortune 500 companies and entrepreneurs, non-profits, governmental entities, and private individuals in Arkansas and throughout the United States. Our main office is in Little Rock, the center of government and finance in Arkansas. Our Fayetteville and Rogers offices serve the rapidly growing economy in Northwest Arkansas. We work closely, whether as local counsel or regional counsel, with some of the finest firms in America. We are proud to be members of the Southern Law Network comprising many of the leading law firms with offices in 13 states, including Alabama, Arkansas, the District of Columbia, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, and Virginia. Joseph B. Hurst, Jr.’s is head of the firm’s Employee Benefits Practice Group, where he has practiced for 33 years. His practice includes the design, implementation and administration of qualified plans (including defined benefit pension plans, profit sharing plans, 401(k) plans and ESOPs), nonqualified deferred compensation plans and welfare plans for financial institutions, regular business organizations, professional corporations, and governmental and non-profit organizations. In addition, he acts as counsel to sponsors and fiduciaries with respect to ERISA controversies. He has been listed in The Best Lawyers in America since 1989 and Chambers USA and Mid-South Super Lawyers since 2008. Dan Herrington works with his management clients to help ensure their employment decisions can withstand legal scrutiny. Dan has successfully defended those decisions before state and federal agencies and courts, including the EEOC, Arkansas Supreme Court and U.S. Court of Appeals for Eighth Circuit. He has been recognized as one of America’s Best Lawyers by the publication of the same name. Twice voted as one of the top attorneys for labor and employment law by the readers of Arkansas Business and Soiree, Dan has been named to the Mid-South Super Lawyers list of top labor and employment attorneys. A. Wyckliff Nisbet, Jr. - Partner/Tax Department - An honors graduate of both the University of Arkansas and Georgetown University, Mr. Nisbet has practiced law at Friday, Eldredge & Clark since 1974. Specializing in employee benefits and taxation, Mr. Nisbet has more than 30 years’ experience representing employers in the design, implementation, and administration of tax-qualified retirement plans, non-qualified deferred compensation, and executive compensation. He also represents and counsels employers in employee welfare benefit programs. Mr. Nisbet is consistently listed as a top-ranked lawyer in Chambers and Partners USA, Best Lawyers in America, and Mid-south Super Lawyers. He is a Fellow in the American College of Tax Counsel. Mike Moore is a partner with the firm of Friday, Eldredge & Clark LLP. He attended the University of Arkansas at Fayetteville where he received a B.S. Degree in Administrative Management and a J.D. He has practiced with the Friday firm since 1982 with an emphasis on employment discrimination defense. He specializes in litigation of discrimination cases, wage-hour matters, sexual harassment, wrongful discharge, FMLA and employee and supervisor training. He is also a frequent speaker on a variety of employment law topics. Mr. Moore is top-ranked by Chambers USA: America’s Leading Lawyers for Business, a publication respected for the caliber of its research on listed lawyers. Mr. Moore is also acknowledged in The Best Lawyers in America and in Mid-South Super Lawyers. 34
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Your trusted human resources attorneys providing customized training, advice, litigation avoidance and defense. Fridayfirm.com
Elizabeth Robben Murray | 501.370.1543 Christopher J. Heller | 501.370.1506 Michael S. Moore | 501.370.1526 Daniel L. Herrington | 501.370.1571 Ellen Owens Smith | 501.370.1578 Khayyam M. Eddings | 501.370.1471 H. Wayne Young, Jr. | 501.370.1402 Amanda J. Fray | 501.370.3309
The Kullman Firm Firm Overview: The Kullman Firm was founded in 1946 with one area of practice, and one focus: labor and employment law on behalf of management. We strive to keep our record of excellence and have hundreds of years of cumulative experience which is invaluable to employers seeking assistance in navigating their companies through today's laws and regulations. While many laws have been added since our beginning 68 years ago (Title VII, ADA, ADEA, FMLA, OSHA, ERISA, COBRA, OFCCP, etc.), we still maintain our original philosophy, which is more important than ever – it takes a 100% commitment to give clients the advice and guidance they need and deserve. Peyton S. Irby, Jr. - Mr. Irby has more than 40 years of experience guiding his clients through complicated employment issues. He is past chair of The Mississippi Bar's Section of Labor and Employment Law and is a member of the Section of Labor and Employment Law of the American Bar Association. He has also been elected as a Fellow in the College of Labor and Employment Lawyers. He is also listed in The Best Lawyers in America® and "Chambers USA-America's Leading Lawyers for Business." In addition, Mr. Irby is the editor of Mississippi Employment Law Letter, a monthly newsletter on employment law published by BLR Publishers. Taylor B. Smith - Mr. Smith has 50 years of experience in the practice of law. He is a Fellow of the American College of Trial Lawyers and is listed in The Best Lawyers in America®. He also has been identified as a Mid-South Super Lawyer by Mid-South Magazine, and he is one of only two lawyers in Mississippi meriting the rating of “Star Individual” in Chambers and Partners.
Williams & Anderson PLC Firm Overview: Williams & Anderson PLC provides the highest quality legal services with discretion, loyalty and dedication to their clients. The firm represents large and small, traditional and emerging businesses. It is known for finding creative and efficient solutions to difficult problems. The firm was named as a ‘Leading Firm’ in Chambers USA 2014 edition. The firm also offers a specialized outside counsel platform to better serve business clients of all sizes. Philip E. Kaplan of Williams & Anderson PLC in Little Rock has five decades of experience in employment and labor law matters. He has practiced in the area of employment law, civil rights, and business litigation since his licensing by the Commonwealth of Massachusetts in 1962. From 1962 until 1967, he was a field attorney with the National Labor Relations Board in St. Louis. In January 1968, he was licensed to practice in Arkansas. Mr. Kaplan is a member of the American Board of Trial Advocates (ABOTA), the American College of Trial Lawyers (ACTL), and the American Academy of Appellate Lawyers (AAAL). He has been a member of the Board of Governors of the Arkansas Bar Association and the Chair of that organization. He is a Fellow of the American Bar Association Foundation.
Williams&Anderson PLC
where business turns for legal solutions Williams & Anderson PLC’s HR team provides the highest quality legal services with discretion, loyalty and dedication to their clients. The firm represents large and small, traditional and emerging businesses. It is known for finding creative and efficient solutions to difficult problems. The firm also offers a specialized outside counsel platform to better serve business clients of all sizes. According to Chambers USA 2008, the firms’ human resource team acts for a variety of national and international clients who applaud the lawyers’ “absolutely top notch service and representation.”
Contact: Philip Kaplan: 501.396.8432 Marie Bernarde Miller: 501.396.8454 Bonnie Johnson: 501.396.8417
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Watkins & Eager PLLC Firm Overview: Established in 1895, Watkins & Eager PLLC is a full-service, diversified law firm, specializing in a multitude of practice areas. These areas include an extensive real estate, banking, corporate and business practice, as well as a broad trial and appellate practice. The lawyers of Watkins & Eager possess exceptional legal expertise and have achieved numerous notable distinctions. Six of the firm's lawyers are members by invitation only to the prestigious American College of Trial Lawyers. Best Lawyers in America® has named thirty-five attorneys in its exclusive listing, representing thirtyeight practice areas. Chambers USA-America's Leading Lawyers for Business® has recognized Watkins & Eager and eighteen of its attorneys as "Leaders in their Field" in multiple areas of law. The national rating service Super Lawyers has named twenty-four Watkins & Eager attorneys as 2013 Mid-South Super Lawyers, and two attorneys as Mid-South Rising Stars. Kenneth E. Milam has exclusively practiced labor and employment law for thirty-five years and has successfully litigated numerous employment discrimination cases before jury and bench trials in state and federal court. Conducted numerous NLRB union election campaigns, unfair labor practice trials, contract negotiations and arbitrations. Successfully represented clients before the Wage Hour Division of the Labor Department and Office of Federal Contract Compliance. Counsel employers on day-to-day personnel matters. His experience includes: Co-Counsel for the American Truckers Association's constitutional challenge to constitutionality of ERISA restriction for multi-employer pension plans and Lead Counsel in successfully defeating an extension of liability to individual managers and supervisors under Mississippi's at-will employment law. Kenneth has been listed in The Best Lawyers in America® for since 1989 and was Best Lawyers Lawyer of the Year for 2014 in Employment Law Management, 2013 Arbitration and 2012 Labor Law Management. A compilation of Kenneth’s publicly available case activity and results is available at www.watkinseager.com. Walter J. Brand heads the Employment and Labor Practice Group at Watkins & Eager PLLC, where he has defended employment litigation for more than twenty years. Mr. Brand approaches his practice with the view that successful defense of employment claims begins long before a lawsuit is filed and requires three essential components: (1) fair, accurate and documented handling of personnel actions based on updated employer policies; (2) cogent explanation of employer action before the EEOC and other agencies which is consistent with documented employer business decisions; and (3) nuanced deposition, evidentiary and legal strategies designed to efficiently position cases for successful resolution by motion or trial. A compilation of Mr. Brand’s publicly available case activity and results is available at www.watkinseager.com. Mr. Brand represents employers across numerous economic sectors, including in the automotive, poultry processing, propane, banking, financial, physician, hospital and medical service industries. He is rated AV by Martindale Hubbell and is consistently recognized in the area of employment litigation defense in Best Lawyers, Chambers & Partners, and Super Lawyers. He is a member of the American Employment Law Council and regularly serves as an instructor and contributing author on human resources administration.
Employment and Labor Practice Group Walter J. Brand (601) 965-1863 wbrand@watkinseager.com Kenneth E. Milam (601) 965-1852 kemilam@watkinseager.com Amy C. Felder (601) 965-1940 afelder@watkinseager.com Robert B. Ireland III (601) 965-1829 rireland@watkinseager.com
Watkins & EagEr
Spencer M. Ritchie (601) 965-1988 sritchie@watkinseager.com
Attorneys and Counselors at Law
Leaders for Management in Employment Watkins & Eager PLLC Located in the Historic Emporium Building 400 East Capitol Street • Jackson, Mississippi 39201 Telephone: (601) 965-1900
www.watkinseager.com
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Labor Law
Employment Discrimination, Retaliation and Harassment Litigation • Employment-related Tort and Contract Litigation • Employment and Management Advice • Employee Discipline and Discharge • Labor Relations • Wage and Hour • HR Policies and Training Free background information available upon request.
Byron Freeland has thirty years experience in civil litigation including employment law, defense of ERISA claims for insurance companies and self insured plans; defense of policy claims for death and disability benefits; OSHA matters; and litigation and arbitration of construction contract disputes. Attorney for Arkansas Racing Commission since 1975, handling various administrative issues including litigation before Arkansas and United States Supreme Court. Chambers and Partners USA: Leading Business Lawyers (Labor & Employment), The Best Lawyers in America© since 2005 in the field of Employment Law – Management and Labor Law - Management, Super Lawyers (Labor & Employment) since 2007. Kathlyn Graves represents management in labor and employment law. She has experience representing clients in regional class action discrimination lawsuits. Kathlyn defends employers in charges of discrimination filed with the Equal Employment Opportunity Commission and in whistleblower retaliation actions. She counsels on employment decisions and complying with various federal and state statutes as well as assisting in developing personnel policies. Best Lawyers in America (Employment Law – Management, Labor Law – Management, and Litigation – Labor and Employment); Super Lawyers (Labor & Employment, Employment Litigation, Business Litigation); Chamber USA America's Leading Labor & Employment Lawyers. Member, American Arbitration Association Employment Dispute Resolution Panel. 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. Donna King Perry is a Partner in the Labor and Employment Department. She focuses her practice in the areas of labor, employment and general litigation. Her practice includes all aspects of pre-litigation investigation, evidence and witness preparation, trial and appellate work, and responding and participating in agency investigations, including the Equal Employment Opportunity Commission and Kentucky Commission on Human Rights. Donna has arbitrated dozens of union matters and presented cases before the National Labor Relations Board. Donna provides training to management, supervisory and human resources personnel and is a regular speaker at continuing legal education seminars.
Dylan H. Potts practices in Arkansas and routinely litigates employment actions including defending clients sued directly by the EEOC. He has represented employers in all aspects of the EEOC charge process including mediation, on-site investigations, and conciliation and has defended companies facing Department of Labor charges for both Family Medical Leave Act violations and Fair Labor Standards Act violations. Dylan has significant experience in negotiating and enforcing Employment Agreements, Severance Agreements and Covenants Not to Compete and routinely assists clients with upper-management transition. Dylan is routinely recognized for his accomplishments in the field of employment law by such publications as Chambers and Partners USA: America’s Leading Lawyers for Business and Super Lawyers. Kathy Quesenberry is a Partner in Labor and Employment Department. Kathy has tried nearly 20 cases to jury verdict in Jefferson, Fayette, Montgomery, Barren, Simpson, and other Kentucky counties, as well as the Eastern and Western Districts of Kentucky, defending individual and class action employment and discrimination cases. She provides advice and counsel to employers on personnel policies and procedures, employee discipline, and harassment investigations. Kathy develops training for managers and HR professionals on hiring, firing, FMLA, wage and hour laws, and a variety of employment-related topics. Her clients range from national and international corporations to smaller family-owned businesses. Jeff Spillyards represents companies in litigation employment issues and class action suits. Jeff has experience in appellate matters in Arkansas and with the Eighth Circuit Court of Appeals. Jeff represents employers in Title VII litigation, ADA, Age Discrimination in Employment Act, and FMLA. He advises employers on labor and employment matters and under ERISA related to employee benefit claims. Jeff represents insurance companies, manufacturing companies, and other business entities in various class action lawsuits in state and federal courts in Arkansas. The Best Lawyers in America© since 2014 for Litigation – Labor and Employment. 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.
Brian Vandiver represents clients on employment matters and has experience in federal court litigation including employment discrimination, disability and religious accommodation, wage and hour, family medical... leave, mass layoff, and criminal background checks. In addition, his state court litigation experience includes breach of employment and non-compete agreements, trade secrets misappropriation, negligent hiring and retention, and other state common law claims against employers. He routinely advises and trains management in all areas of employment law and human resources. Best Lawyers in America - Labor and Employment Law (2008 - present); Mid-South Super Lawyers - Labor and Employment Law (2009 - present).
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Jim Waide’s law practice in Mississippi emphasizes employment discrimination and civil rights cases. He is licensed to practice law in all state and federal courts in Mississippi, as well as the western district of Tennessee. He is admitted to practice before the United States Supreme Court, the United States Court of Federal Claims, the Fifth Circuit Court of Appeals, the Second Circuit Court of Appeals, and the United States Court of Appeals for the Federal Circuit. Waide has been selected as one of the Best Lawyers in America by Best Lawyers®, to Memphis Magazine’s “Best Lawyers in Mississippi,” and as a Super Lawyer by Super Lawyers®.
Barbara Childs Wallace practices in Mississippi and holds an LL.M in Labor and Employment Law and has over thirty years experience in this area. In 2010, Ms. Wallace was elected as a Fellow in the College of Labor and Employment Lawyers. Ms. Wallace has been listed in Best Lawyers in America in the area of Labor and Employment law for over ten years. She is also routinely listed as a Mid-South SUPER LAWYER in the area of Employment & Labor. Since 2003, Ms. Wallace has been listed as a Leading Lawyer in Labor and Employment Law by Chambers USA. One hundred percent of her practice is dedicated to representing and defending employers in labor and employment matters.
R. Eddie Wayland concentrates his national practice in the representation of management in all areas of Employment and Labor Law and related litigation. He has also been listed in every edition of Chambers USA America’s Leading Business Lawyers. Eddie was recognized as one of the top lawyers in the country by the national The American Lawyer magazine. He has also been selected as one of the top 150 lawyers in Tennessee by both Business Tennessee and Super Lawyers magazines. Mr.Wayland 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.
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.
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News for Federal Contractors and Subcontractors: New Executive Orders Prohibit Sexual Orientation and Gender Identity Discrimination and Require Reporting of Labor Law Violations By ROBERT F. SPENCER, JR.
Additional Protections for Federal Employees and Federal Contractors’ Employees On July 21, 2014, President Barack Obama signed an Executive Order (the “Order”) to prohibit employment discrimination based on sexual orientation and gender identity, meaning gay, lesbian, bisexual, or transgendered status. The Order amends Executive Order 11246 of September 24, 1965 and explicitly prohibits discrimination by federal contractors and subcontractors on the basis of an employee’s or applicant’s sexual orientation or gender identity. Previously, the discrimination ban on federal contractors only extended to discrimination based on race, color, religion, sex or national origin. The Order requires the Secretary of Labor to prepare regulations to implement the new requirement within 90 days. The amended discrimination ban will apply to federal contracts entered into on or after the effective date of the rules promulgated by the Secretary of Labor.
Federal Contractors Face New Reporting and Disclosure Regulations; Predispute Arbitration Agreements Prohibited Additionally, President Obama signed the Fair Pay and Safe Workplaces Executive Order (the “Order”) on July 31, 2014. According to the White House, the Order’s purpose is to “promote economy and efficiency in procurement by contracting with responsible sources who comply with labor laws.” The Order will govern new federal procurement contracts where the estimated value of the supplies acquired or services required exceeds $500,000. The Administration expects implementation to begin in 2016 after the Federal Acquisition Regulation (“FAR”) Council promulgates regulations and the Department of Labor issues guidance for compliance. The Department of Labor estimates there are approximately 24,000 businesses with federal contracts, employing about 28 million workers.
Disclosure Required for Labor Law Violations The Order requires prospective contractors to disclose labor law violations in order to obtain a federal procurement contract, and thereafter, during the period of the contract, update that information every six months. Specifically, the prospective contractor must disclose whether there has been any administrative merits determination, arbitral award or decision, or civil judgment rendered against the prospective contractor in the past three years for violations of the following laws and Executive Orders:
• Fair Labor Standards Act; • Occupational Safety and Health Act of 1970; • Migrant and Seasonal Agricultural Worker Protection Act;
Administration claims that contractors will only be required to “report once in one place,” even if a contractor holds multiple contracts across different federal agencies.
• National Labor Relations Act;
Certain Arbitration Agreements Banned
• Davis-Bacon Act;
For contracts exceeding $1 million, contractors may not require employees to enter into predispute arbitration agreements for claims arising under Title VII of the Civil Rights Act of 1964 or any other tort relating to sexual assault or harassment. Thus, the decision to arbitrate may only be made with the voluntary consent of employees only after such a dispute arises. This predispute ban will also apply to subcontracts where the estimated contract value exceeds $1 million.
• Service Contract Act; • Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity); • Section 503 of the Rehabilitation Act of 1973; • Vietnam Era Veterans’ Readjustment Assistance Act of 1974; • Family and Medical Leave Act; • Title VII of the Civil Rights Act of 1964; • Americans with Disabilities Act of 1960; • Age Discrimination in Employment Act of 1967; • Executive Order 13658 of February 12, 2014 (Establishing a minimum wage for contractors); or • Equivalent state laws, as defined in guidance issued by the Department of Labor. Further, contractors will be required to collect similar information from their subcontractors when the subcontractor’s contract value exceeds $500,000 and is not for commercially available off-the-shelf items.
Penalties for Violations The Order requires each federal agency to designate a senior agency official to act as a Labor Compliance Advisor to assist contracting agencies and prospective contractors in complying with the new reporting requirements. The Order directs the Labor Compliance Advisor to prioritize attention to “serious, repeated, willful, or pervasive violations” and to provide guidance on whether contractors’ actions demonstrate a lack of integrity or business ethics. The Labor Compliance Advisor will help agency officials determine the appropriate response to labor violations. Such a response could include the decision not to award a contract or exercise an option, terminate the contract, or to make a referral to the agency suspending and debarring official.
The predispute arbitration ban will not apply to contracts or subcontracts for commercial items or commercially available off-the-shelf items. Also, the ban will not apply to employees who are covered by a collective bargaining agreement negotiated between the contractor and a labor organization representing them or to employees who have already entered into a valid arbitration agreement prior to a contractor bidding on a contract covered by the Order. However, the predispute arbitration ban will apply if the contractor is permitted to change the terms of the contract with the employee or if the arbitration agreement is renegotiated or replaced.
Paycheck Information Disclosure The Order also requires contractors to provide their employees performing work under the contract with certain documentation each pay period. The contractor must disclose information concerning the employee’s hours worked, overtime hours, pay, and any additions made to or deductions made from pay. If an employee is exempt from the overtime compensation requirements of the Fair Labor Standards Act (“FLSA”), the documentation furnished need not include a record of hours worked so long as the contractor informs the employee of his or her overtime exempt status. This section of the Order will be considered fulfilled if the Secretary of Labor determines the contractor is complying with substantially similar state or local information disclosure requirements.
Website for Reporting Requirements The Order directs the General Services Administration to develop a single website for contractors to meet the new reporting requirements and any other practicable reporting requirements. The
Robert F. Spencer, Jr. The Kullman Firm rfs@kullmanlaw.com www.kullmanlaw.com www.HRProfessionalsMagazine.com
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The Best Laid Plans of Mice & Men:
employees, any class of dependents may participate in the wellness program, the reward must not exceed 30 percent of the total cost of coverage in which the employee and the class of dependents are enrolled. These numerical limits were updated in June 2013 as a result of changes made by the Patient Protection and Affordable Care Act. The 30-percent maximum is increased by an additional 20 percent—up to a total of 50 percent—to the extent that the added amount is for a program designed to prevent or reduce tobacco use.
Americans with Disabilities Act
Employee Wellness Programs Can Often Go Awry By ABTIN MEHDIZADEGAN
E
mployer wellness initiatives have emerged as a critical part of group health plan design as more employers strive to create flexible, effective, and psychologically-healthy workplaces while attempting to contain rampant medical costs. Wellness initiatives are best conceptualized as benefit plans, and as benefit plans go, wellness programs
are fairly simple. Typically, wellness programs attempt to encourage—through the use of incentives such as premium discounts and other rewards—healthy lifestyles and behaviors that will result in reduced medical claims. While they are fairly simple arrangements, wellness programs raise a surprising number of non-trivial legal concerns. The most important of the issues peculiar to wellness programs are how to comply with (a) the Health Information Portability and Accountability Act of 1997 (HIPAA) health factor nondiscrimination rules, (b) the Americans with Disabilities Act of 1990 (ADA), and (c) the Genetic Information Nondiscrimination Act of 1990 (GINA). This article provides a brief over of those non-trivial legal issues.
HIPAA First, it is important to note that not all employers are subject to HIPAA. Rather, HIPAA applies to, among other categories, group health plans. HIPAA prohibits group health plans and insurers from charging similarly situated individuals different premiums or other contributions or denying eligibility based on certain health factors. This is known as HIPAA's “nondiscrimination” provision. There is a limited exception to this nondiscrimination provision to give health plans flexibility in designing “wellness programs,” which are defined as programs of health promotion or disease prevention. Programs with incentives that otherwise would be considered discriminatory are permitted if they meet certain criteria, including a numerical limit on monetary rewards or penalties. Many wellness programs—like programs to reimburse health club memberships, waiving deductibles on prenatal care, and giving free nicotine patches to individuals trying to quit smoking—need not meet these criteria because they do not discriminate to begin with: they are considered “participatory” programs. Discriminatory conduct would include charging higher premiums based on various health factors. For wellness programs that are “health-contingent” rather than “participatory,” the total reward may not exceed 30 percent of the cost of coverage under the program. If, in addition to 40
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Group health plans, even if they meet the wellness program exception enumerated above, still must satisfy the prohibition of discrimination based on disability under the ADA. Specifically, the ADA restricts employers' use of “disability-related inquiries and medical examinations.” These inquiries include any “questions likely to elicit information about a disability” and, at all times, must be job-related and consistent with business necessity. In the context of wellness programs, ADA liability often arises where employees are required to undertake health risk assessments, which the EEOC views as a disability-related inquiry unrelated to the job. Notwithstanding, like HIPAA, the ADA has an exception for wellness programs that are “voluntary.” Wellness programs are not voluntary where punitive triggers—like higher premiums or deductibles—attach to employees who do not cooperate in the program. For purposes of illustration, suppose an employer requires participation in a health risk assessment as a requirement to obtain coverage under its self-funded group health plan. The health risk assessment includes answering a short health-related questionnaire, taking a blood pressure test, and providing blood for use in a blood panel screen. Information from the assessment goes directly and exclusively back to the employee; the employer receives only the aggregated data. In this case, the EEOC would find that the health risk assessment was not voluntary because individuals who do not participate in the assessment are denied a benefit (i.e., penalized for non-participation) as compared to employees who participate in the assessment. Moreover, in most cases, requiring all employees to take an assessment as a prerequisite for obtaining health insurance coverage does not appear to be job-related and consistent with business necessity. Therefore, it would likely violate the ADA. While many health-related questions would be considered disability-related, other more lifestyle-related questions regarding diet and exercise are generally permissible.
Likewise, plans also must examine a wellness program's effect on specific medical conditions. If the program would prohibit individuals with disabilities from participating, like a program that required running or walking as a specific exercise, ADA liability may attach if a reasonable alternative exercise is not permitted for those individuals. On the other hand, a more generalized program allowing a choice of exercise would not violate the ADA because alternative standards exist for those who cannot comply with the regular standards.
Genetic Information Nondiscrimination Act GINA prohibits discrimination based on genetic information and restricts the collection and use of such information by employers and health plans. What many employers often overlook is that the definition of “genetic information” includes familial history. In the abstract, the statement such as, “my mother is a breast cancer survivor” is considered genetic information. Because “genetic information” includes family history, GINA affects any wellness program feature that asks for or would elicit such information. Like the ADA, GINA has been interpreted to restrict the use of financial incentives to complete a health risk assessment. An incentive may only be offered to complete a health risk assessment that does not request genetic information. The form must explicitly state, however, that such information should not be provided. Notwithstanding, a plan may offer a premium discount to participants who provide evidence that they had an annual physical, even if the health care provider who conducted the exam asked for family medical history, as long as the plan itself is not collecting such information. For best practices, all materials describing the discount should include a statement advising the participant not to submit any health information, or the physical's results, to the plan for this purpose.
Best Practices of Wellness Programs
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. Finally, and most importantly, all wellness programs—which are designed with the best intentions—should avoid common liability traps that occur when program administrators rigidly apply eligibility and participation rules. Under HIPAA, employers must provide reasonable alternative standards to obtain the program reward, and under the ADA, employers must provide reasonable accommodations so that employees may safely participate in the program—a privilege of employment— without discrimination.
Conclusion The amount of a company's investment in developing a wellness program— in terms of management, employee time, and financial resources—will be just the tip of the iceberg if wellness programs are not designed or implemented in compliance with HIPAA, the ADA or GINA. To avoid liability, employers should seek attorney representation to independently evaluate the efficacy and legality of each distinct wellness program.
Abtin Mehdizadegan, Associate Cross, Gunter, Witherspoon & Galchus, P.C. abtin@cgwg.com www.cgwg.com
SISKIND SUSSER PC
First and foremost, to the extent that employers obtain protected health information, medical information, or genetic information—even for authorized purposes or even inadvertently—employers must keep the information in a confidential file separate from the employee’s personnel records in a manner consistent with the way any other individually— identifiable medical information must be kept under the ADA. Second, employers should be prepared for inadvertent or “water cooler” type disclosures within the workplace. It is only natural that supervisors will develop relationships with employees that may result in the disclosure of family medical history. Recognizing these workplace dynamics, the GINA regulations contain a safe harbor provision that all employers should consider. Where genetic information is obtained from legitimate requests for medical information—such as FMLA documents, fitness for duty reports, and ADA accommodation requests—the receipt of such information will be considered “inadvertent” and permissible so long as the employee and health care provider, as the case may be, are directed not to provide such information. A mandatory notice must be provided when requesting medical information from an employer-proved physician, which may arise in the context of a second or third medical opinion under the FMLA or workers’ compensation examinations. In this context, the employer must instruct the company physician not to collect genetic information and to take measures to prevent the collection of such information from occurring in the future. To take full advantage of the safe harbor provisions of GINA, employers should include the following statement in all relevant forms:
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Making Pay Matter –
Achieving
“Fit” By JOEL J. MYERS
2. Gaming the System People have the capacity to be remarkably creative, particularly when there is a potential for personal gain. It is fairly common for sales people to defer a sale at month or quarter-end and push the sale into the next measurement period. This provides a running start on the subsequent period’s quota. This is particularly true if there is a diminishing reward for above quote sales. Before the ink is dry on a new incentive plan, we often find sales people dedicating themselves to discovering how to maximize earnings under the new scheme.
3. Pay Disparities
A
A sluggish economy means that many companies are not able to vary the percentage of merit pay increases more than 0.5 to 1.0%. That is not enough truly to recognize star performers. Companies protect their financial resources and are reluctant to commit funds to raise salaries and benefits. Once money is committed it becomes a fixed cost and is difficult to pull back if the economy contracts. An alternative that many organizations use is incentive compensation. Performance-based awards can be a meaningful way to recognize the best performers. Incentive payments come from incremental earning. They are essentially “self-funding”. If they aren’t earned in the following year, they aren’t paid. Incentives are an example of extrinsic rewards. They represent pay that is contingent on an employee or a team achieving pre-established objectives. This is in contrast to intrinsic rewards that are not necessarily performance-driven. Intrinsic rewards may be designed to appeal to a variety of individual priorities such as a sense of accomplishment, sense of affiliation, or shared passion for an organization’s mission or purpose. Consultants and behavioral scientists speak out against the potentially corrupting influence of extrinsic rewards. We witnessed this in the collapse of some well-established financial institutions that ignited the recent recession. However, if extrinsic rewards are thoughtfully designed and administered, they can bring healthy focus to important organizational priorities. Avoiding common problems associated with incentive reward programs requires fore thought. To help prevent repeating mistakes of the past, following are five pitfalls to avoid in plan design.
1. Unexpected Consequences When designing a plan, it is critical to consider all of the “what ifs”. After all, the aim is to create win-win, not win-lose situations – and to make awards that inspire peak performance. For example, a division GM wanted to reward his team for the extraordinary effort and creativity that they put into achieving an impossible, high-profile task. The effort had been monumental, requiring many consecutive weekends and long hours of work. His team had missed family activities for weeks, in many cases creating hardships and causing working spouses to make alternative arrangements for child care. His reward was to schedule a boondoggle weekend in a resort location, including of golf and spa treatments, without spouses. He nearly had a mutiny. 42
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A company’s reluctance to objectively differentiate performance levels and allocate rewards accordingly is another reason why pay-forperformance plans fail. Effort-results-reward equity is very important. Top performing employees are offended if unmotivated and/or ineffective associates receive the same reward that they do. The best people have a right to expect more.
4. Long- & ShortTerm Balance There should be balance between payouts for long- and short-term rewards but one size does not fit all. The relative weight between long- and short-term rewards depends on a company’s circumstances and where a participant is in the management hierarchy. If the company’s survival is in the balance, incentives need to be tied to those actions that will yield critical time-sensitive results. If the company’s priorities are balanced between current-year execution and longer-term strategies, senior leadership rewards need to be balanced or weighted toward longer-term results. For participants below the C-Suite level, rewards should be weighted toward annual performance. At this level, the link between annual results and reward should be more explicit.
5. Risk-Taking We have seen in the recent financial collapse how the potential for extraordinary gains can tempt people to take risks that go beyond prudent action. Such temptations can cause people to behave in ways that are inconsistent with their sense of integrity. That’s not to say they have malicious intent, it’s just that such behavior often becomes accepted and the moral compass slips. It is important to have checks and balances to throttle ambition. An effective contingent reward plan should cause participants to make choices between risk and reward and choose what will yield the best results for all concerned.
In designing an incentive plan, one of the most important decisions is how to measure performance. It can become complicated, especially when success depends on the contributions of teams of people rather than individuals. Following are five considerations regarding performance measures:
allow all employees to benefit from the company’s gains. Such plans have replaced across-the-board pay increases. This recognizes employees’ contributions while controlling an increase in fixed costs.
It is common to see variable compensation plans that assess results relative to budgets. Budgets typically represent some targeted level of performance compared to the previous year. Normally, each year is expected to be better than the last. Using budget as the benchmark puts a lot of pressure on the accuracy of the planning process. It invites gaming to build contingencies into the budget. Building incentive plans based on budgets rewards predictability, which is appealing to Wall Street. But it may also cause executives to be risk-averse to the extent that viable opportunities may be missed. If a unit has a windfall one year, that success holds consequences in the following year as targets are set unrealistically high. On the other hand, if a unit has a disappointing year and current year targets are missed, participants may get a free ride the following year, as targets are set too low.
In the end, employers should consider three key questions when designing an extrinsic reward system:
1. Measuring Performance Relative to Budget —
2. Relative Performance Measures —
An alternative to establishing targets relative to budgets is to compare performance against a group of peer companies or against industry standards. At one time, selecting a group of peer companies was relatively easy. However, with the mergers and acquisitions that have occurred in recent years, there are fewer independent companies with which to compare. For example, in the mid 1980’s, a study of publically traded timber and wood products companies included 14 companies. Of those, three remain as independent companies today. Another approach is to use a scenario plan. Performance targets may be adjusted as selected economic indicators change. For example, the mortgage insurance business is driven by home sales and mortgage interest rates. As these independent variables fluctuate, so does potential for mortgage insurance sales. The threshold for earning an incentive should be adjusted accordingly. This allows the company to alter its assumptions during the measurement period, keeping the plan viable even when the market changes.
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Does the reward system balance performance and behaviors in both the short and long run? Does the reward system allow the flexibility that is necessary to adapt to a dynamic, global marketplace? Does the reward provide the all-important “Fit” with the company’s mission, strategies, and culture?
Joel J. Myers, CMC Principal, The Centre Group jmyers@thecentregroup.com www.thecentregroup.com
3. Year-Over-Year Growth —
A growth-track strategy is compelling. Disney used to say they expected to grow at an annual rate of 15-20%. In the early 2000’s, that may have been possible, but as the economy faltered and discretionary expenditures in many families shrank, that goal became unsustainable. High growth companies, particularly start-ups, will also find it difficult to sustain high growth expectations. For example, a 10% growth objective for a $10.0 million company represents $1.0 million in additional revenue. The same 10% growth for a $50.0 million company is $5.0 million, five times greater.
4. Outcomes vs. Behaviors —
In business planning, having measurable performance objectives and a viable execution plan are both essential. Focusing on the “what” allows a company to calculate and “score” progress. Company culture is just as important as quantitative measures. “How” a company does business builds loyalty – from customers and employees. Top executive incentives in public companies place heavy emphasis on maximizing total shareholder return. In many situations, this has been achieved at the expense of employees and preservation of strong corporate culture. This motivation led to many companies moving manufacturing offshore. Thousands of employees lost their jobs. Management lamented the loss of employee loyalty and morale. In many cases, product quality and value of the brand suffered. Now there is a growing desire to bring operations back to the United States. “Made in America” has become market differentiator. Statistics show that companies that are recognized as the best companies to work for are also among the best performing companies.
5. Rewarding Collaboration —
Lone Rangers are a dying breed. Virtually everything that a company does involves others in decision-making and execution. Achieving results is a team endeavor. Reward systems should recognize this reality. Many companies have implemented “success sharing” reward systems to
Where the focus is on: • Cost Savings • Policy Development • Customized Services • Online Technology • Satisfied Transferees
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43
Wellness Southern Style
By ELISABETH A. DOEHRING
This is Part 2 of 3 articles on health and wellness trends in Tennessee, Mississippi, and Arkansas.
Role of Leadership
According to Derek Yach, MBChB, MPH, and Executive Director of the Vitality Institute, “The data on obesity is powerful. Levels of obesity in this country and in the South are becoming more evident with the arrival of the Affordable Care Act. Prevention was clearly seen before as the role of government. Local community leaders and employers now realize that they need to become more involved in Mississippi, Arkansas, Tennessee and the entire southeast.”
Three areas of focus were raising awareness, teaching personal accountability, and individual onsite coaching. Beginning in March 5, 2014 and over the course of five months the company as a whole to date has lost a combined 1,000 lbs.
Leadership combined with HR is key to an overall successful wellness rollout. HR wages an uphill battle unless the CEO and company leaders are first involved in the overall wellness program, explains Yach. “CEOs invest in new equipment capital. Likewise they need to invest in human capital. Many more leaders are now requesting budgets for wellness.”
Roberts is aware of her role as wellness guru. She says with a laugh in her voice, “If people saw me dashing into McDonalds after work they’d loose respect! So instead for breakfast I’ll have a smoothie. It’s all about choices. Healthy habits are contagious.”
The CDC’s 2012 Study of Prevalence of Self-Reported Obesity for Adults listed Mississippi at 34.6%. A second 2012 Study from CDC’s Behavioral Risk Factor Surveillance System on “Prevalence of Diabetes 2012” showed the United States average at 9.7%. Overall Mississippi numbers were higher with an average of 12.5%. Another glaring indicator from the CDC’s Behavioral Risk Factor Surveillance System 2012 report lists the prevalence of obesity with a BMI of 30.0-99.8 as averaging 27.6% for the United States overall. Rate for Mississippians was 34.6%. The further breakdown was 30.2% for whites and 43.2% for blacks.
Vending machines were high on Roberts’ initial hit list. “Honeybuns were #1. Sure–we got alot of kickback. Convenience paves the way for food temptations. We want the ‘right choice’ for our employees. Rather than a honeybun our employees now opt for a Nutri-Grain Bar.” No guerilla snack warfare. Instead the company has reached a middle ground. Vending snacks on the left remained the same. Selections on the right are now healthier.
Mississippi Corporate Role Models
Mississippi companies track these numbers. Consequently they are leading the way in wellness programs for their employees. Numerous HR and Benefits professionals are paving the way for workforce wellbeing and innovation.
Innovation and Employee Engagement
Peavey Electronics’ wellness program hits the high notes. The company has a 300-500 employee base. Located in Meridian, Peavey Electronics is one of the largest audio equipment manufacturers in the world. A who’s who of musicians play Peavey composite acoustic guitars—including Clint Black, John Taylor of Duran Duran, Ted Nugent, and Gary Rosington of Lynyrd Skynyrd. Karin Roberts heads up “Peavey Wellness.” Roberts brought in innovative ideas and ramped up employee engagement. “It starts at the top. Owners and founders, Hartley and Mary Peavey, are truly inspiring,” says Roberts. Nearly fifty years ago the couple started the company. “The Peaveys come into work everyday and live and motivate our employees towards wellness.” In 2013 Roberts zeroed in on a program that addressed the highest risk sectors. “It started with a scan of the health of our employees. Two key findings were obesity and diabetes. With the link between these two findings, this is where we chose to start.” According to the Mississippi State Department of Public Health, in 2010 Mississippi ranked first in the nation for overall diabetes prevalence. Over 270,000 adult Mississippians had Type 2 diabetes–this equated to over 12% of the entire adult population. 44
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In addition Roberts works closely with her vendor All Brand Foods out of Bay Springs, Mississippi. Peavey’s Wellness Manager scours monthly sales reports. Within a six-month period, the “healthy choice” snacks had already increased from 8% to 36%. Roberts also observed that more employees are now bringing in homecooked meals. “Our people realize that they save money if they cook at home.” “I quickly noticed when my family moved here that we had a high obesity rate in Mississippi. Also that we’re the most economically disadvantaged state. However there are so many ways to eat healthy that cost less money. When you eat ‘real food’ you are happier and healthier at work. We advocate cooking at home. Employees now come to me and eagerly talk about new kitchen recipes as well as innovative cost-sensible meals and snacks for work.”
Employees have embraced “Peavey Wellness”. At all five worksites around Meridian employees are outside on walking breaks. Photos are posted on the walls. High fives fly when an employee loses or even gains ½ pound. Roberts works in conjunction with Human Resources Director Walter Birge. “This is new uncharted territory,” explains Birge. “It’s awe-inspiring to see these results. You do good by your employees because it’s the right thing to do.”
It’s What You Eat
Southern Farm Bureau Life Insurance Company (SFBLIC) is based in Jackson. Founded in 1946, the company has 650 employees in their home office. The main focus SFLBIC’s “WellnessWorks!” program is for employees and family members to live healthy lifestyles. Employees who meet five health benchmarks or enroll in a plan of care receive a $30 monthly reduction in medical premiums. Leadership established an onsite medical clinic in 2010. SFBLIC has teamed up with onsite cafeteria vendor Sodexo to provide healthy foods known as “Mindful Options”. A “mindful option” is offered at each station. The employee cafeteria also features a full salad bar.
Prevention and Education
Jim Brown, Vice President of Benefits, heads up the Trustmark wellness program. Now celebrating its 125th year, Trustmark employs 3,200 people. Over 2,100 are in Mississippi with another 115 located in Tennessee. “Fatback and fried food will become less the norm in Mississippi as more of our own workforce and other worksites in the state become better educated on nutrition,” says Brown. The Trustmark benefits professional has already observed more employees selecting baked and rotisserie chicken in the cafeteria. Back in 2003 the Jackson-based financial institution began looking at preventative healthcare. “When you look at controlling costs you get the most for your healthcare dollar with prevention and education,” says Brown. In 2010 Trustmark started a healthy workplace initiative with BCBS of Mississippi. In the same year the company went smoke free and set up employee Health Risk Assessments. By 2011, 70% of Mississippi-based employees had participated in Trustmark’s HRA’s. From 2010-2012 Trustmark recorded a 10% reduction in obesity and a 4-5% reduction in morbid obesity. “Obesity drives it all—from hypertension to diabetes to heart disease,” says Brown. Today Fit Bits are becoming more and more popular. Trustmark workers are also utilizing new nutrition plan apps. “People realize that they need to take a personal investment in their health with food,” says Brown. The community microwave sat dormant in the morning. Today workers line up to heat up their heart-healthy oatmeal.
Shift Schedules Work With Wellness
Winchester Ammunition is located in Oxford. The ammunition manufacturer has two locations of Rimfire and Centerfire and an extensive workforce of 1,200—112 salaried and 1,064 hourly employees. The twenty-four hour operation runs on three eight-hour shifts. Both sites operate 6 days a week. “A lot of our people were eating ‘grab and go’ kind of foods,” says Alicia Thompson, HR and Benefits Specialist for Olin-Winchester. Thompson is a seasoned pro with two decades of benefits experience, the last of these three years at Olin-Winchester.
Thompson immediately recognized the need and started the push for a new local wellness program. “High claims were driven by nutrition choices,” says Thompson. ‘Farm to work and table’ means a lot to Thompson. Always seeking out ways to improve employee wellbeing, Thompson personally stopped by the Oxford Farmers Market and invited the group to attend Winchester’s first health fair. “Socioeconomic factors have people eating what they can afford to eat. Society has gotten into quick fix food,” explains Thompson. Healthier choices now make up Winchester’s vending machine selections. Thompson adds that her sites are currently in discussions to initiate obesity-focused wellness programs. “Changing habits is not hard to do. HR and Benefits as a whole have a professional duty to focus on helping their employees make healthier lifestyle choices. Once this is done obesity-related health issues in the South will be addressed. I am a huge proponent and advocate of a well-implemented worksite wellness program.”
Farm to Work to Table
Peavey Electronics, Southern Farm Bureau Insurance Life Insurance, Trustmark, and Winchester HR and Benefits leaders know the value of sustainable farming and fresh vegetables and fruits in general. Mississippi farmers markets are growing by leaps and bounds. In 2006 Mississippi had 22 farmers markets. Last year that number increased to 83 markets. “This includes both covered and some open-air sites. People want to know where their food is derived. They seek out the source. In addition there is a trend to eat healthy,” according to Susan Head with the Mississippi Department of Agriculture and Commerce.
New Day in Health and
Wellness For Mississippi
According to Greg Payne, Mississippi SHRM Director Elect, “The days of Mississippi being lowest on the list for health and wellness are fading. Companies recognize the business value of wellness for their employees and are stepping up to the plate. We have much work to still do and I applaud my Mississippi HR colleagues for making these first steps.”
Elisabeth A. Doehring, CWWPM,GPHR, PHR President, North American Center for Worksite Wellness™ nacworkwell@gmail.com www.HRProfessionalsMagazine.com
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5 Ways
to Harness and Maintain Your Determination By HARVEY DEUTSCHENDORF
“ Enclose your heart, in times of need, with the steel of your determination and your strength. In doing this, all things will be bearable.” – Lora Leigh, Broken Wings
I
n every success story, the longest chapter is the one on Determination. While success demands many things from us, willpower and determination always come up at the top of the list. Many people believe that we are born with determination and those that succeed are simply the fortunate ones who are born with an abundant supply. However, ask any successful person and they will tell you they were not born with more determination, they always found a way to harness and use what they have more effectively.
Eliminate distractions and time wasters
Here are 5 Ways to harness your determination.
Real emergencies come up and we will have to deal with them. The majority of situations that do come up to distract us, are not emergencies and do not require us to respond right away. Many of these situations will resolve themselves in their own with time. When we are working on a difficult task, it is tempting to jump to something that is easier. Responding to these requests immediately will only set you up to receive more. By not responding, you are sending a message that you are a strong willed, focused person who is very busy and over time you will be bothered less by trivial, time wasting matters. Successful people have found the willpower to stay focused on the most important work first until it is completed.
Set up your day the night before
Regenerate and keep up your energy
Before you go to sleep, make some basic decisions about what you will do tomorrow, such as what you will wear, have for lunch and the route you will take to work. It is easier to pack a healthy lunch the night before than to decide what you are going to have with a hot dog vendor parked in front of your workplace. The same applies when it comes to spending money. Decide on a budget and stick to it. Make a decision the night before that you won’t check your emails or surf the net before you have finished the more important tasks that need to be completed. Stick to your schedule and at the end of the day close your eyes for a few minutes and take in how good you feel to be in charge of your day. Getting into the habit of planning your day in advance will remove your easiest decisions off the table, making it easier to avoid getting sidetracked and wasting time and energy on small unimportant things. While spontaneity can be fun when you are on vacations, dating or hanging out with friends, it is an inefficient way to plan our workday or move towards achieving our goals.
Take a quick break when working on something if you feel your energy fading. Take a brisk walk, run, stretch or whatever creates results for you to take a brief retreat from the work and regenerate. Instead of trying to force yourself when ideas stop coming, it is usually better to get away and take your mind off what you are doing. You will come back to your task with renewed vigor and a sharper mental focus. Instead of eating a large meal at lunch, snack on healthy food, such as fresh fruit and vegetables during the day. Drink plenty of water and get into a regular exercise program. Arrange a routine with these matters, so that you don’t have to think about them, they just become part of your daily regime.
Do the most difficult things first The most difficult duties will not get easier the more we fret about or put them off. We will only waste energy that would be better spent by just digging in. Get after the hardest job right away while you are still fresh and have the energy. Research has shown that our minds are sharpest in the morning and that is when we should tackle the tough jobs. After these are out of the way, we can relax and take care of the more routine work that doesn’t require much in the way of mental strain, ability and energy. Becoming disciplined and getting the hard jobs done sooner rather than later, gives us a sense of satisfaction and frees up energy that we might otherwise spend thinking or worrying over having to do them. Since we are going to have to do them anyway, we might as well do them as efficiently as possible with a minimum of energy expended. 46
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Constantly remind yourself of your ultimate goals Create a vision board, a mind movie or some system that serves as a constant reminder of what you are working towards. The “why” behind the goal is crucial as it will serve as a motivator. Suppose the reason that you want to earn ten million dollars is to start a school in a third world country. Have a clear vision of what the school would look like so you can imagine it on a regular basis. Set aside regular time daily, if only five minutes, to visualize this goal. The more details you can put in, the better. Become emotionally involved with the visualization by putting music, videos or anything that provides you with an emotional charge. The emotional connect is hugely important, as this will motivate you to keep moving towards your goal.
Harvey Deutschendorf Emotional Intelligence Expert, Speaker, and Author of The Other Kind of Smart Harvey.eiguy@shaw.ca www.theotherkindofsmart.com Twitter@theeiguy