September 2017 alshrm issue

Volume 7 : Issue 9

TM

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2016 Final Rule on Overtime

Exemptions

Demanding Inquiries on Parity for Mental Health and Substance Use Benefits

2017 ARSHRM ELLA Conference at-a-Glance

Anniversary Issue ALSHRM

Strategy in the Sand Conference at-a-Glance

Denny Smith,

PhD, SHRM-CP President, Tennessee Valley Chapter SHRM

From the CFO’s

Point of View

D E S U C O F S E E Y O L P E BENEFIT M N O E H P IT E W K E K TE RIS

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WEB EXCLUSIVES HTTP://HRProfessionalsMagazine.com /Exclusive

Bringing Human Resources & Management Expertise to You

Number of firms ready for people analytics rose to 32% in 2016 from 24% in 2015 www.HRProfessionalsMagazine.com Editor

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

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

Park Avenue Design Contributing Writers

Bruce E. Buchanan William Carmichael Jill Christensen Sarah Colley Dale Conder Jr. Harvey Deutschendorf Benjamin M. Ebbink Rebecca Gatesman Matt Ginn Donna Glover Murray L. Harber Thomas L. Henderson Alan Large Carolyn McNairy Tim Orellano Cammie Scott Christy Showalter Melva Tate Deborah D. Tobey Wayne Young Board of Advisors

Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR Terri Murphy Susan Nieman Robert Pipkin Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles.

All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors.

HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2017 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.

Features

2 Eliminate Distractions and Mitigate Risk with One Employee Benefit 4 note from the editor 5 SHRM Leader Profiles 14 Talent Analytics: The Best Way to (Actually) Know Your Employees 16 In Memory of Ron Daves with Wimberly Lawson 18 The CFO’s Point of View: Four Important Ways HR Can Move the Needle Toward Higher Revenue 24 Strategic Onboarding: Creating a Culture Immersion to Retain Top Talent 28 Strategic HR vs. Tactical HR 32 Performance – and People, Too 36 When Diversity asked for Innovation’s Hand in Marriage 40 Book Look: Negotiating the Nonnegotiable 46 Will It or Won’t it? The EEOC Revised EEO-1 Report 50 5 Reasons Empathy is Becoming the Number One Leadership Skill

Employee Benefits

12 ERISA is Complicated – Don’t Get Lost in the Details 26 Fallacies and Facts of the FMLA 38 To Tweet or Not to Tweet – Open Enrollment Strategies 44 The Business of Healthcare in Mississippi 45 MSBGH & MC School of Business Healthcare Summit

Employment Law

10 Demanding Inquiries on Parity for Mental Health 11 Hot Topics in Employee Benefits and Executive Compensation in Memphis October 10 22 The NLRB is Still in Business – Watch Your Handbooks!

30 2016 Final Rule on Overtime Exemptions 34 Court Ruling Means We’re One Step Closer to a Unionized Gig Economy 37 The 2017 HR Legal Summit in Memphis October 12 42 EEOC vs. Bass Pro Outdoor World, LLC 48 Raise Act: Is it Good Immigration Policy for Employers and America?

Educational Opportunities for HR Professionals 21 UAB COLLAT School of Business Human Resource Management 23 University of Louisville M.S in Human Resources & Organizational Development 32 Vanderbilt Peabody College Leadership & Organizational Performance Graduate Program

Industry News

6 2017 ARSHRM Employment Law & Legislative Affairs Conference at-a-Glance in Little Rock September 14-15 8 Register for the 2017 SHRM Georgia State Conference in Brunswick October 8-10 9 HRMIDSOUTH Conference & Exposition in Nashville October 1-4 Awarded 20 Business Credits 20 ALSHRM Strategy in the Sand Conference at-a-Glance in Orange Beach September 29

October ISSUE

Profiles of Top Labor & Employment Law Attorneys Listed in Chambers & Partners Employment Law and Employee Benefits Update October Issue Included in the Attendee Conference Bags at the HRMIDSOUTH Conference in Nashville Oct 1-4 and the SHRMGA State Conference in Brunswick, GA Oct 8-10 Deadline to reserve space September 10

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3

note from the editor Can you believe we are celebrating six great years at HR Professionals Magazine this month? I want to take this opportunity to thank our readers, our sponsors, and our contributors who have made our success possible. It is an honor to be the official media sponsor for the SHRM State Conferences in Alabama, Arkansas, Georgia, Kentucky, Mississippi, and Tennessee. It is a pleasure to work with the SHRM leaders and volunteers in each of these states as we travel through our distribution footprint. Hats off to the fantastic SHRM Public Affairs Team who graciously works with us throughout the year to bring you coverage of the SHRM Employment Law and Legislative Conference, the SHRM Talent Management Conference, and the SHRM Annual Conference each year.

We begin our celebration this month in Little Rock at the ARSHRM Employment Law and Legislative Affairs Conference.

We have included the Conference at-a-Glance for you on Page 7. We end this month at the Perdido Beach Resort in Orange Beach for the ALSHRM Strategy in the Sand Conference.

You will find the Conference at-a-Glance for this excellent event on Page 20. We are excited to announce that we will bring you live video updates from these conferences on Facebook!

We hope you will join us for updates where you will get instant feedback from these outstanding conferences. This month we salute two outstanding HR leaders and SHRM volunteers on our cover. Jill Hilton, SHRM-SCP, SPHR, is Chair of the ARSHRM ELLA Conference. Denny Smith, PhD, SHRM-CP, is President of the Tennessee Valley SHRM Chapter in Alabama. I know you will enjoy reading their professional profiles.

Don’t forget to register for the HRMIDSOUTH Conference & Exposition October 1-4 in Nashville. This conference has been awarded 20 hours of strategic business credits and 21 hours of general credits! See Page 9 for details. We look forward to seeing our TNSHRM friends at the Opryland Hotel. From there, we will travel down to Jekyll Island in Brunswick, GA for the 2017 SHRM Georgia State Conference. You will find registration details on Page 8. We are looking forward to seeing our SHRMGA friends at the Westin on Ocean Avenue. We will also bring you live video updates from these conferences. So stay tuned!

Congratulations to the Central Arkansas Human Resources Association on receiving the SHRM Excel Platinum Chapter Award 2016! Our apologies to CAHRA for inadvertently leaving them out of our July article.

Mark your calendar now and plan to join us for our monthly webinar sponsored by Data Facts. It will be Thursday, September 28, at 2 PM. We are continuing our series on developing business acumen that we hope will provide lots of strategic business recertification for you as well as increase your knowledge and help you make an impact in your organization.

Watch your email for details!

Cynthia Y. Thompson, MBA, SCP, SPHR | Editor Cynthia@hrprosmagazine.com www.hrpofessionalsmagazine.com Twitter @cythomps 901.598.0123

GMEBC Meeting (L-R) Preston Cox, Account Executive with Unum; Chirag Chauhan, Partner with The Barnett Group; Ed Green, Regional Sales Director with TASC Online; Carolyn McNairy, Compliance Services VP Sales with TASC Online; Esha Rock, Co-director of Client Services with The Barnett Group. Carolyn McNairy was the speaker at the August meeting of the Greater Memphis Employee Benefits Council.

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Denny on the cover

SMITH

DENNY SMITH, PHD, SHRM-CP President, Tennessee Valley Chapter SHRM Denny Smith currently serves as President of SHRM’s Tennessee Valley Chapter, proudly supporting over 100 members by providing professional development, networking, and current information and research in the field of Human Resources, in addition to influencing legislation on state and national levels.

In his role as Director of Testing and Assessment for Calhoun Community College, Denny understands the need for partnerships and collaboration between colleges, employers, and the community to promote student success, advance a qualified workforce, and contribute to stronger local economic development. For this reason, he is an advocate for workforce solutions, like those offered by the national nonprofit organization, ACT, Inc. The cornerstone of ACT workforce solutions — ACT® WorkKeys® Assessments — has a proven track record of helping HR professionals in organizations measure essential workplace skills among job seekers and build career pathways, for over two decades.

The best part?

Successful completion of WorkKeys Assessments enables job seekers to attain the ACT® WorkKeys® National Career Readiness Certificate® (NCRC®), a portable credential that reflects essential work skills capabilities and is a strong predictor of job performance success.

For HR professionals, the program provides measurable insights into a job candidate’s skills, suitability for a particular position’s essential requirements, and opportunities for future training. Best of all, SHRM grants members professional development credits for participating in continuing education programs on WorkKeys solutions.

Furthermore, ACT offers a community-based framework with its ACT® Work Ready Community designation, which is an economic benefit to attract employers. It allows states or counties to demonstrate that they have a robust workforce development effort in their area, by offering WorkKeys Assessments and encouraging employers to adopt and recognize the WorkKeys NCRC.

Work Ready certification makes communities more economically attractive, and Denny believes it positions his community as a leader in workforce development by: • ensuring employers and industries have a more qualified workforce ready to fill their jobs, • allowing educators and policymakers to measure and close skills gaps, and • providing economic developers with the on-demand reporting needed to market the quality of their workforce.

ACT Work Ready Communities is truly a tailored approach to meet local priorities, from boosting economic development to closing the skills gap and growing a skilled workforce.

Currently, 30 states issue the WorkKeys NCRC in statewide or regional programs while 24 states are actively pursuing the ACT Work Ready Community certification.

Denny is particularly proud of the new collaborative partnership budding in his home state of Alabama. The Alabama Peace Officers Standards and Training Commission (APOSTC) now partners with the Alabama Community College System to offer WorkKeys Assessments to all Law Enforcement and Correctional Officer academy applicants. This allows peace officers to conveniently schedule times to complete the WorkKeys assessments at local community colleges across the state.

Denny is passionate about the benefits of ACT Work Ready Communities, and would be happy to talk to any SHRM member interested in learning more about the initiative, and how it spurs workforce and economic development. His email address is: dennis.smith@calhoun.edu.

There are several opportunities to learn best practices from fellow regional leaders in workforce development and earn professional development credits. These include a workforce solution webinar, and an ACT Workforce Summit, scheduled for Nov. 8-10, 2017 in Austin, TX. 

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PRESENTING SPONSOR

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

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Program Thursday, September 14

SPONSOR/SPEAKER

7:00 - 10:00 a.m.

Registration

8:00 - 9:15

Keynote Speaker:

9:15 - 9:30

Break

9:30 - 10:45 a.m.

Healthcare Reform: Fall 2017 Update

10:45 - 11:00 a.m.

Break

11:00 - 12:15

NLRB

12:30 - 2:00

Lunch Workplace Violence Mark Malcolm – AJG Preparing for Guns in the Workplace Arkansas

2:00 - 2:15 p.m.

Break

2:15 - 3:30 p.m.

Regulations, Retirement, and Generations

3:30 - 3:45 p.m.

Break

3:45 - 5:00 p.m.

What's New at the EEOC

LOCATION 2nd floor DoubleTree Lobby

Governor Asa Hutchinson

Robinson Center

Andrew Malhowski - AJG

Robinson Center

Bruce Cross - CGWG

Robinson Center Doubletree Hotel Ballroom

Kelly Majdan - SRPRetire

Debra Finney - EEOC

Robinson Center

Robinson Center

Friday, September 15

SPONSOR/SPEAKER

7:00 - 8:00 a.m.

Continental Breakfast

8:00 - 9:15 a.m.

Keynote Speaker: The Washington Outlook: HR's Public Policy Agenda

9:15 - 9:30 a.m.

Break

9:30 - 10:45 a.m.

Preparing the Workplace for Medical Marijuana

10:45 - 11:00 a.m.

Break

11:00 - 12:15

Preventing Sexual Harassment from the Top Down: Lessons Learned at Fox News, Uber and Binary Capital

Mike Aitken - SHRM

Stuart Jackson & Erika Gee - WLJ

Jill Hudson - AJG

LOCATION

Robinson Center

Robinson Center

Robinson Center

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HRMIDSOUTH 2017

Conference & Exposition October 1-4, 2017

6

Peyton Manning

www.mtshrm.org/MSconf17

Registration:* *Group discounts available.

Michael Burcham

Call Shannan Duggin 615-499-5150 or shannanduggin@mtshrm.org Sponsorship and Exhibitor information at www.mtshrm.org/MSconf17

Presenting Sponsors:

Legal & Legislative

Register Now!

John Daniel Super Sunday Keynote February 1 – August 31 ...................$595 September 1 – October 1 ..............$695

Compensation & Total Rewards

Credit Approval Panel

H U M A N R E S O U R C E S A S S O C I A T I O N

Michael Burcham Awards Luncheon Keynote

Employee Benefits

HR Technology (new!)

MT HRA

Announced as Keynote Speaker

HR Strategy & Business Management

Talent Acquisition & Management

B Y

Peyton Manning

Conference has been granted 20 Strategic Business Credits Earn up to 21 recertification credits in learning tracks:

OPRYLAND HOTEL & CONVENTION CENTER

P R E S E N T E D

John Daniel

®

DEMANDING INQUIRIES ON PARITY FOR MENTAL HEALTH AND SUBSTANCE USE BENEFITS ARE ON THE WAY

By THOMAS L. HENDERSON

Administrators of ERISA-covered group health plans are required to provide extensive information to participants in those plans. A recent draft form letter promulgated by the United States Departments of Labor, Health and Human Services and Treasury, coaches participants to request even more information. Specifically, the letter urges participants to focus on obtaining comprehensive and detailed plan information concerning the parity of mental health and addiction benefits with available medical and surgical benefits under the plans. Based on the information they may obtain, participants may discover a new avenue to challenge denials of mental health and substance abuse benefits.

A. Background 1. The Mental Health Parity and Addiction Act Under the Mental Health Parity and Addiction Act, most health plans must ensure that the mental health and substance use benefits they offer are in parity with medical and surgery benefits offered. Also, any mental health and substance use limitations must be comparable to those applied to medical and surgery benefits. This includes financial requirements such as deductibles, co-pays and out of pocket limits as well as treatment limits. Six classifications of benefits are analyzed individually: in-patient in-network, in patient out-of-network, outpatient in-network, outpatient out-of-network, emergency, and prescription drugs.

2. ERISA Disclosure Requirements ERISA requires administrators to make substantial disclosures to participants and beneficiaries. Of course, a summary plan description (SPD) must be provided within 90 days after an employee becomes 10

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a participant. The SPD must be written in a manner calculated to be understood by the average participant and must be sufficiently accurate and comprehensive to apprise participants of their rights and obligations under the plan. Additionally, when a modification or change to the plan is made that constitutes a material reduction in covered services or benefits, then a summary description of that must be provided no later than 60 days after the adoption of the modification or change.

In addition, upon a written request by a participant or beneficiary, the administrator must furnish the plan description, reports, contracts or other instruments under which the plan is established or operated.

This provision requires the production of any documents indispensable to the operation of the plan, according to the Sixth Circuit Court of Appeals. Where there is any doubt as to a particular document, disclosure should be made where it would help participants understand their rights.

By far, however, the majority of disputes about ERISA’s disclosure requirements arise from requests for information after a claim for benefits has been denied. Plans are required to establish and maintain reasonable procedures for appeals of adverse benefit determinations.

Among other requirements, to be deemed “reasonable,” plans must contain processes and safeguards to verify that claims are made in accordance with governing plan documents and that, where appropriate, plan provisions are applied consistently with respect to similarly situated claimants.

Also, the appeal must provide a “full and fair” review of the adverse determination. To be deemed “full and fair,” the participant must be provided, upon request and free of charge, copies of all documents, records and other information relevant to the claim for benefits. Information is relevant to a claim if it (1) was relied upon in making the benefit determination, (2) was submitted, considered, or generated in the course of making the determination, even if it was not relied upon, (3) demonstrates compliance with the obligation to treat claims in accordance with plan documents and consistent application with respect to similarly situated claimants, or (4) constitutes a statement of policy or guidance concerning the denied benefit.

B. The Letter On June 18, 2017, Labor, HHS and Treasury released the form letter.

According to the release, the letter is designed to help participants exercise their rights to mental health and substance abuse benefits. The information that employees should seek includes both general information about mental health and substance use benefits and specific information that may have resulted in the denial of such benefits, according to the background explaining the form.

Specifically, as to parity issues, the letter requests to be provided (1) the specific plan language regarding a plan limitation and identify all of the medical/surgical and mental health and substance use disorder benefits to which it applies; (2) the factors used in the development of plan limitations and the evidentiary standards used to evaluate the factors; (3) the methods and analysis used in the development of the limitation; and (4) any evidence that the limitation is applied no more stringently, as written and in operation, to mental health and substance use disorder benefits than to medical and surgical benefits.

C. Now what?

Obviously, administrators can expect to receive these requests when mental health/substance abuse benefits are denied. Responding to these requests will require much effort. Since responses to requests for information under ERISA must generally be given within 30 days of the request (or the administrator may be hit with monetary penalties), those efforts must begin before the requests come in. The first step will be to determine whether the plan even has all of this information.

Certainly, the plan language will already have been determined, as well as the benefits to which a limitation applies. However, the remainder of the information required by this letter will most likely have to be researched by the employer, the insurer, the TPA and actuaries. Legal advice will be necessary to address the evidentiary standards and the comparative evidence as to the parity of limitations. Once all of that information is obtained, it will need to be analyzed to ensure compliance with the parity requirements and to ensure the response is legally adequate.

Another significant effect of the letter is that it paves the way for additional arguments for participants when their claims for such benefits are denied. Since ERISA requires a full and fair review of the claim denial, and requires consideration of the treatment of similarly situated individuals, a claim that the provisions are not in parity as required by the Act appears to be an issue properly raised on appeal.

Generally, it is not difficult to provide the administrative record on the claim for benefits. To respond to this type of request, however, information and documents outside the record must be obtained, analyzed and provided. Once provided, the participant can raise arguments that the denial was based on plan provisions that are not in parity with medical and surgical provisions. Certainly, “parity� will often be in the eye of the beholder, and most likely to be finally decided by a Court.

Thomas L. Henderson, Managing Shareholder Ogletree Deakins-Memphis Thomas.Henderson@ogletreedeakins.com www.ogletreedeakins.com

Hot Topics in Employee Benefits and Executive Compensation Complimentary Breakfast Briefing Tuesday, October 10 | Memphis Hilton With the new administration, the landscape of employee benefits and executive compensation is ever changing.

Join Tiffany Downs and Tim Kennedy from FordHarrison to get an update on what has changed and what is expected to change and recent trends and best practices.

For more information and to register, visit www.fordharrison.com/MemphisBenefitsBriefing.

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ERISA is Complicated - Don’t get lost in the details.

By CAROLYN MCNAIRY

While many know the acronym ERISA and what it covers – worrying about the complexities of this federal law can drive anyone to distraction. Here’s the low-down on what you need to know about reporting and disclosure under ERISA. We all know that ERISA (the Employee Retirement Income Security Act) governs both Qualified Retirement Plans (Pension, Profit Sharing, and 401(k) Plans) and Health and Welfare Benefit Plans (e.g., group life, health, dental, and disability insurance plans and other fringe benefit plans). Ad that it is enforced primarily by the Department of Labor (DOL) through the Employee Benefits Security Administration (EBSA).

But are you aware that almost every private sector employer and benefit plan is subject to ERISA, including benefits not provided through insurance, such as health care Flexible Spending Accounts (FSA) and severance pay? Or that, depending on the extent of an employer’s involvement, even voluntary insurance programs may be considered ERISA plans? It’s important to understand the nuances of this federal law so you don’t get lost in the complexity.

ERISA Reporting and Disclosure Requirements ERISA requires employers • Summary Plan Description (SPD) to maintain benefit plans • Summary of Material Modification (SMM) according to written plan • Summary Annual Report (SAR) documents and prescribes when and how to deliver the • Annual or event-driven Notifications documents. Employers must • Form 5500 disclose certain information participants in a Summary Plan Description (SPD) and any SPD changes in a Summary of Material Modification (SMM).

Employers with 100 or more Participants must report certain information to the DOL annually on Form 5500 and participants must receive a summary of all Form 5500s in a Summary Annual Report (SAR). If an employer has less than 100 participants, they still may be required to file a Form 5500 if they do not have an SPD containing specific provisions.

ERISA Written Plan Document and Summary Plan Description (SPD) Requirements ERISA requires employers to have written Plan Document and Summary Plan Descriptions (SPD) for each separate welfare benefit plan, each containing very specific information. It’s important to know that while insurance carriers may supply Certificate Booklets (sometimes called Certificates of Insurance, Certificates of Coverage, Evidence of Coverage, Carrier Summary Plan descriptions or Certificates of Coverage (COCs) those documents do not contain all of the required ERISA language and are not in compliance.

To avoid that, add a document to the certificate of Coverage. This document in effect “wraps” the required ERISA language around the carrier certificate so that together the documents ensure an ERISA Compliant Plan Document and SPD. The federal law is so detailed with regard to ERISA protections it is easy to suffer financial consequences for non-compliance, make sure you have all the proper pieces in place.

ERISA Form 5500 and Summary Annual Report Requirements In general, employers must file a Form 5500 return for any fully insured and/or unfunded plan that has 100 or more participants as of the beginning of a plan year.

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Those employers with less than 100 participants must file a return if their benefit plan is funded (i.e., a benefits trust is in place).

Additionally, the employer is required to produce and distribute a Summary Annual Report (a summary of the Form 5500).

On July 21, 2016, the Department of Labor (DOL), the Internal Revenue Service (IRS), and the Pension Benefit Guaranty Corporation (PBGC) (together called Agencies in this Fact Sheet) will publish in the Federal Register a Notice of Proposed Forms Revisions to the Form 5500 Annual Return/Report Series. This proposal includes eliminating for group health plans the current exemption from Form 5500 reporting for small insured and self-insured welfare benefit plans beginning with ERISA plans years that begin on or after 2019.

“For those entities that are not in compliance with the law, the Department projects the rules could result in up to $140ML in additional fines and penalties” (Source: DOL FAQ) DOL ERISA Enforcement Efforts The DOL enforces disclosure requirements through plan audits and other initiatives aimed at ensuring benefit plans of both large and small employer are ERISA compliant. While a plan audit looks at ERISA requirements as a whole, the DOL does have a focus on the disclosure and reporting requirements, specifically the Plan Document and SPD. Recently the DOL has contacted employers who have filed for their pension plan but have not filed a Form 5500 return for their health and welfare plans. In such correspondence, the DOL states that it is aware “that some employers who appropriately file Form 5500 for their retirement plans are unaware that filings should also be made for their health and welfare benefit plans” and that the DOL is “seeking to ensure employers who are so required are compliant.”

In cases where the employer determines the need to file a past Form 5500, the DOL refers the employer the option of filing under its Delinquent Filer Voluntary Complain Program (DFVCP) allowing reduced penalty amounts.

NOTE: An employer can face fines of up to $2,097/day for each Form 5500 that it files late. The penalty for late delivery of an SPD, SMM, and SAR to a Participant is $112/day.

These penalties apply to each Plan, they are cumulative, and they are not subject to a statute of limitations. As an example, an employer that has three separate Plans (life, medical and dental), which files its Form 5500s just sixty days late, can be fined up to $125,000 in the maximum penalty were to be applied! Additionally, not following ERISA can expose an employer to unnecessary, time consuming, and expensive employee lawsuits.

Don’t get lost in compliance – ensure you follow the law!

The DOL increased non-compliance fines and penalties in August 2016 and again in January 2017. With heavier cost implications, you must be ERISA compliant. Sure, it’s complicated, but with a little time and effort – you’ll find your way.

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

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TALENT ANALYTICS: The Best Way to (Actually) Know Your Employees

By REBECCA GATESMAN

Every business would love to be able to look into the future, and increasingly, advanced talent analytics allow employers to do just that. So as finance leaders, it falls on your shoulders to allocate an appropriate amount of resources for this new technology — which means digging into the potential ROI of each option.

To get started, it's important to understand advanced talent analytics. This new piece of technology applies existing applications of big data and predictive analytics to your human resources, and is a rapidly growing field of management technology. By applying metrics to the humans that make your business tick, your executives will likely be able to make better decisions.

What Gets Measured Gets Managed By eliminating much of the subjectivity that has been a part of management and employee evaluation, talent analytics offers these four benefits.

1. Better Hiring, Happier Employees

By comparing historical data of your most successful employees with those who have applied to your firm, the often tedious task of sorting through applications to find the best fits (both in qualifications and culture) will be automated. In the long run, this means your organization could look forward to a happier workforce with lower employee churn.

2. Training as Needed

According to the report by The Economist Intelligence Unit (EIU) and supported by the ADP Research Institute®, Strategic Drift: How HR Plans for Change, "there are signs that traditional skills are not being replaced 14

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internally, suggesting a failure to train younger staff to replace people when they retire." Training, of course, has always been a sore spot for organizations, and it's often either too little, too late, or unnecessary. By tracking your employees' performance, your organization can be better informed about when training would help an individual succeed and be more productive, or whether it could be skipped altogether.

3. Intelligent Promotions

Just as data can tell you when an employee is struggling, it can also tell you when one is excelling. Your organization will have constant data pointing to employees who could be making a bigger difference in productivity if promoted, or even laterally repositioned. This can reduce the rate of retraining and employee terminations. In fact, according to Strategic Drift: How HR Plans for Change the "large majority (76%) of respondents say they will do more to find internal opportunities for employees to prevent job-hopping."

4. Ability to Compare Internal Data to Market Forces

While advanced HR analytics can paint a vibrant picture of what's going on inside your business, to really make the most of this information, make sure to compare what you learn internally to what's happening outside of your organization.

It's important to note here that in order to get the best results, make sure your data is focused on objective measurements. In order to create real ROI, the temptation to record subjective measurements such as quarterly reviews and peer ratings must be resisted.

As author and founder Marcus Buckingham explained in Harvard Business Review, "We must...admit to ourselves that the systems

we currently use to reveal our people only obscure them. We will have to redesign almost our entire suite of talent management practices. Many of our comfortable rituals — the year-end performance review, the nine-box grid, the consensus meeting, our use of 360's — will be forever changed."

The Race Has Begun While all of those benefits could offer significant ROI for any business, it's still the early stages of HCM analytics. Deloitte reports only about a third of businesses today use workforce analytics. And between many talent management systems adding analytics to their capabilities, and SaaS options available "off the shelf," the number of firms that report feeling ready for people analytics rose to 32 percent in 2016, from just 24 percent in 2015.

Ask The Right Questions When it comes to deciding if your business would see significant benefit from people analytics, take a look at your objectives. Are you in a highly competitive market, where qualified applicants are sought after and courted by multiple businesses? Do you have a high rate of employee churn? Are there a significant number of employees who feel unprepared for their tasks?

Collecting data about the people that make up your organization, and then analyzing that data can be the best thing you do for your business — or the worst thing. As with all information, it depends on what you do with it.

As seen on Boost, powered by ADP (adp.com/boost) Sign up for Boost, powered by ADP, for timely insights you need to elevate the impact of your greatest asset – the people who power your business. (adp.com/boost)

Rebecca Gatesman Rebecca Gatesman is a Boston-based freelance writer and marketing consultant. She specializes in creating content for software tools, financial agencies and marketing technologies. Her work appears in Fast Company, Computerworld, CIO, Financial Executive International and many others. Rebecca is a master at making complex industries accessible and compelling to consumers of all walks of life.

– Emily, Solar Wrangler

“You found the right employee.

I found a purpose.”

Finding that perfect fit for a job isn’t easy, but it’s the key to building a successful team. See how insight-driven recruiting and smart talent management solutions from ADP can help your business find the perfect person for the job.

Visit adp.com/hellotalent to see how we can streamline your business’s talent management and make work larger than a paycheck.

ADP and the ADP logo are registered trademarks of ADP, LLC. ADP A more human resource. is a service mark of ADP, LLC. Copyright © 2017 ADP, LLC.

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Wimberly Lawson Loses A Firm Leader

Ron Daves joined Wimberly Lawson in 1986 Ronald Gordon "Ron" Daves, 74, of Knoxville, Tennessee, passed away on August 9, 2017. Ron was born in Ellenboro, North Carolina, to Roy and Hester Beam Daves. Ron graduated from East Tennessee State University in 1968, and proudly served in the United States Marine Corps from 1962 to 1965. He was an investigator for the Tennessee Human Rights Commission for several years before receiving his Doctor of Jurisprudence degree from the University of Tennessee in Knoxville. Ron was a member of Wimberly Lawson Wright Daves & Jones, PLLC and practiced in the area of labor and employment law since 1986.

Ron is preceded in death by his mother and father, Roy and Hester Daves, step-mother Hazel Daves, and his step daughters Jenny Berg and Kirsten Berg Newman. He is survived by his wife of 33 years, Karen Cottrell Daves; sons, David (Marti) Daves, Scott (Karen) Daves, and Ronald Gordon "Chip" Daves; grandchildren, Meredith, Emily and Chad Daves, and Emily Cottrell Newman; brother, Gerald "Jerry" (Nancy) Daves, and sisters, Connie Daves Cavanaugh and Betty (Giles) Grandy.

Ron was a member of Concord Presbyterian Church. He was known for his caring personality. He enjoyed going above and beyond in helping others. His tender heart and loving character were shown in his relationship with Karen. He and Karen enjoyed going to the movies, playing Scrabble at all hours of the night, and taking scenic drives together. Ron had a love for motorcycles and enjoyed boating, fishing and being outdoors with family and friends.

In lieu of flowers, memorials may be made to the KiMe Fund, c/o East Tennessee Foundation, 520 West Summit Hill Drive, Suite 1101, Knoxville, Tennessee 37902. Click Funeral Home Farragut Chapel, 11915 Kingston Pike is serving the Daves family. www.clickfh.com

NOTE FROM THE EDITOR

Ron Daves was one of the finest people I have ever worked with. He was always congenial, professional, and kind.

We at HR Professionals Magazine will miss him greatly. We extend our deepest sympathy to his family and colleagues.

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Participating in Ongoing MultiDepartment Communication

The CFO’s Point of View -

By ALAN LARGE

Four Important Ways HR Can Move the Needle Toward Higher Revenue

In the “jungle” of business, HR Professionals and CFOs don’t automatically strike you as natural friends. One may think the other has little impact on them or their progress and initiatives.

Unfortunately, a disconnect between the two areas is common, which can be detrimental to a smoothly functioning, cohesive business unit.

Because these departments are far more connected than one would think at first glance.

People. Strategy. Execution. Cash. The key to sustaining and scaling up or growing any business is attracting and keeping the right people, creating a truly differentiated strategy, driving flawless execution and having plenty of cash to weather the storms and capitalize on opportunities that arise unexpectedly. We are taught and reminded of this in the book "Scaling Up" by Verne Harnish. While the concept sounds simple enough, it’s actually a formidable, strategic high wire act of balance and flexibility mixed with focus and resiliency.

Great companies recognize early on that leaders and departments cannot operate at maximum effectiveness in silos. Cooperation and collaboration among leaders and across departmental boundaries is a foundational requirement and key in achieving aggressive company goals, especially year-over-year.

Human Resources has many more layers to their responsibilities than just hiring and firing people. HR professionals play an integral role in helping identify, attract, and retain the right people and in making sure they are in the best seat, working on the most important tasks and duties, and performing to the best of their abilities. After all, human capital is often considered the most valuable of company assets.

HR is often thought of as an administrative expense. However, smart HR professionals quickly learn how to showcase their value by positively contributing to the bottom line.

There are four important ways, from my CFO point of view, where HR Professionals can be directly involved in moving the needle toward higher company revenue and play a part in directing the company toward success.

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We have found this to be a success in our own company. Educating all department leaders and holding them accountable for understanding and appreciating their peers’ roles and goals have made a significant impact on our bottom line. An essential action to achieve this has been leadership meetings. Coming together on a regular basis and being able to share ideas across departments breaks down the perceived barriers and assists everyone involved in widening their company viewpoints.

HR professionals need a seat at the table to educate their peers in the valuable work HR does. It is just as crucial for HR to better understand their unique role in helping create the company strategy and their role in executing HR throughout the organization.

Realizing Money Talks As a CFO, one of my main priorities is making sure that HR clearly understands how the business makes money, the consequences of over-spending, what our financial goals are, and how HR is instrumental in helping us attain those goals.

In most companies, employee salaries and benefits are a big chunk of the overall budget.

HR needs to understand our total human capital spend compared to our revenue and their role in monitoring that expense. HR needs to be accountable for determining and understanding our turnover rate, the costs associated with it, sharing it with other leaders, identifying reasons for it and being a driver of solutions to reduce that rate.

HR has an awesome responsibility to help drive forward what we believe is foundational to our success. Employees are the heart of HR, and the lifeblood of a company. A primary Data Facts philosophy is that Data Facts takes care of our people, our people take care of our clients, and our clients take care of Data Facts. Marrying the organization’s budget with people management is key for HR professionals to directly help move the needle forward.

Developing Relationships The more HR knows and understands the logistics of the operations’ and sales team’s goals and initiatives, the better positioned they are to help execute on the company strategy.

In addition to fostering a cohesive relationship with the CFO and accounting team, seeking out and building personal connections with operations teams and top sales producers helps build an atmosphere of collaboration and finger-on-the-pulse type insights.

Making Data-Driven Decisions

By HR having a seat at the table, they gain essential information that they should use to drive their moves. HR leaders must be able to think in numbers and put sharp analytical skills into play so these numbers stay in balance with overall company needs and expenses. Full transparency in key performance metrics, with both leading and trailing indicators, should be at their fingertips. Our company believes it to be paramount that this information is shared with HR. HR uses this information to create positive results in working with other leaders in the organization in hiring, training, retention, benefits, policies and procedures and more.

Transparency in data of these metrics along with sharing other key financial performance data is crucial for a top leadership team, including HR, to be able to understand all the moving parts and pieces of the puzzle of an organization as it manages people, strategy, execution and cash. Knowledge is power, but only if you use it. We expect people to use it.

There are few, if any, companies that only want to be in business for the next few years. We all want to survive, grow, and thrive. HR leaders and CFOs have a substantial role to play in this success, and make a significant impact into the organization’s level of prosperity or failure.

Each department should make understanding the other’s point of view and important knowledge they can learn from each other a top priority. A strong, respectful relationship between HR professionals and the CFO help build a stronger company with a solid foundation and an eye toward long-range growth and sustainability.

Alan Large, CFO Data Facts, Inc. alarge@datafacts.com www.datafacts.com

www.HRProfessionalsMagazine.com

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Debbie McGee - “Innovation 101: Think Globally”

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21

is The NLRBiness us B n i l l i St ur o Y h c t a –W s! k o o b d n Ha

Reference Inquiries Policy. Notably, “confidential company information” was NOT defined and narrowly tailored, which no doubt caused this policy to be unlawful.

By DONNA GLOVER

While employers wait to see if the Trump Administration will produce a kinder, gentler National Labor Relations Board (NLRB), the NLRB is still in the business of punishing employers for workplace policies that ostensibly violate employees’ rights under the National Labor Relations Act (NLRA).

As a quick refresher, Section 7 of the NLRA generally provides that covered employees have the right to unionize, bargain collectively and to engage in other protected concerted activities for “the purpose of collective bargaining or other mutual aid or protection.” As such, employers may not interfere with, restrain or coerce employees’ exercise of their Section 7 rights. The NLRB has repeatedly held that any employer policy or work rule would be unlawful if that policy restricts employees’ protected activities, if employees could reasonably construe the policy or rule language to prohibit protected activity, if the policy or rule was created in response to union activity, or the employer applied the policy or rule in an effort to restrict employees’ protected activity.

In BCG Partners, Inc. 28-CA-178893 (May 10, 2017), Administrative Law Judge Robert Ringler found that 17, yes 17, of the company’s policies were unlawful. In brief, a few examples of the violations ALJ Ringer found are as follows: • Responsive Action Policy – BCG’s policy allowing for discipline against employees who provide false information during an investigation was unlawful because it was overly broad.

Relying on NLRB precedent, the ALJ ruled that the policy would have been lawful if it allowed for discipline related to “maliciously false” statements, not just false statements.

• Conflict of Interest Policy – In part, the BCG’s policy provided that: “We expect our employees to … always avoid activities … inconsistent with the best interests of the Company and our clients. Business dealings that reasonably appear to create a conflict between the interests of an employee … and the Company or a client are unacceptable. The Company recognizes the right of employees … to engage in activities outside of their employment that are unrelated to our businesses. However, the employee … must disclose any possible conflicts ….” The ALJ determined that the policy, which banned conflicts of interest and required disclosure of same, was unlawful because it could reasonably be construed to bar Section 7 activities conflicting with BCG’s interests – like union activity.

• Outside Employment and Business Activities Policy – The ALJ applied the same reasoning as it applied to the Conflict of Interest Policy discussed above. This Policy mandated that employees obtain approval to engage in any outside work activities that might present a conflict of interest.

• Reference Inquiries Policy – The Company’s policy requiring information requests to be forwarded to Human Resources was unlawful because it might be construed to ban employees from engaging in their Section 7 rights to discuss wages or other workplace issues amongst themselves or with a union.

• Confidentiality Policy – The Company’s policy allowing for disciplinary action up to and including termination of employment against employees who disclose confidential company information was unlawful because employees could interpret the policy as restricting employees’ ability to engage in Section 7 protected activity, the same reasoning applied to the Company’s 22

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• Company Property Policy – The employer’s policy banning non-work-related use of the Company’s facilities and equipment, which provided that, “Offices, cubicles, desks, computers, file cabinets, lockers, and vehicles are Company property and must be maintained according to Company rules and regulations. All Company property must be used solely for the Company’s benefit 10 and business purposes, and not for the employee’s … personal benefit (or the benefit of any other person or entity). The Company’s property includes its … premises, equipment … and supplies, as well as proprietary information and intellectual property (e.g., … non-public information, … customer, vendor and employee lists, confidential information and materials) ….” was an unlawful ban on solicitation and other protected activity under NLRB precedent. The same was true for the Company’s Use of Information Technology Policy and its Telecommunications Usage Policy – both found to be unlawful for the same reason.

• Tape Recording Policy – BCG’s Policy prohibiting employee’s from recording conversations without prior approval was found unlawful because it infringed upon employees’ rights to engage in protected activity. The ALJ opined, “This policy, which prohibits unauthorized workplace recordings, unlawfully and over-broadly encompasses recordings made for one’s own mutual aid and protection (i.e., it even covers recordings where the company may lack an overriding interest in its prohibition).”

• Respectful Workplace Policy – The Company’s policy seeking courtesy and respect, and admonishing employees to avoid fights and offensive language “essentially bar[red] any disrespectful workplace commentary, [was] unlawful, inasmuch as employees could reasonably construe this rule to ban statements of criticism toward their employer, which are generally protected.”

• Social Media Policy – The Company’s policy requiring employees to obtain consent before posting about the Company on social media was overbroad under the NLRB prior decisions.

Compass Point: So, the NLRB is still in business, and employers should take heed. The BCG Partners’ decision, in which 17 policies were attacked, is a stark reminder to employers to comb through employee handbooks and policies for language that may violate employees’ rights to engage in protected, concerted activity under the NLRA.

Donna M. Glover, Associate Baker Donelson Baltimore Office dglover@bakerdonelson.com www.bakerdonelson.com

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Strategic Onboarding:

Creating a Cultural Immersion to Retain Top Talent

By SARAH COLLEY

In

the ever increasing competition for top talent, you can get your talent acquisition process to a well-oiled machine, but if there is a revolving door, the work never ends nor is it effective.

The average turnover rate in the healthcare industry is 16.9%, creating much opportunity around retention (PWC/Saratoga ASHHRA HR Metrics Tool Benchmark Results Calendar Year 2016). Top talent must be retained and the first key element to retention of new talent is the onboarding process. The “onboarding” word gets thrown around in the industry and there are many definitions. Some of those onboarding definitions are: • “The process of integrating new employees into the organization, of preparing them to succeed at their job, and to become fully engaged, productive members of the organization” (http://www. silkroadtech.com/documents/White_Paper/index.htm).

• “Bringing employees into a company, making sure they know what’s expected of them, making sure they know how they’re going to add value, making sure they understand how they fit” (“Faster Isn’t Always Better for Onboarding”, Talent Management Magazine/Lisa Rummler, March 2007).

• “Onboarding is the process by which new hires are emotionally, physically and professionally integrated into the established culture and operations of their new employer” (https://www.hrzone.com/ hr-glossary/what-is-onboarding).

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What is the difference between Onboarding and Orientation?

Orientation is an event while onboarding is a process.

High performing organizations have both orientation and onboarding. A few years ago, like many organizations, ours had a mundane and regulatory-based orientation process and not much of an organized onboarding process. Realizing this was not an effective strategy, a multi-disciplinary team set out to revamp the process, led by Human Resources and Marketing. Orientation shouldn’t be about what the regulatory requirements dictate that new employees learn, but instead should be an immersion into the organization’s culture and brand.

The original orientation process touched on all things we had to tell employees in a non-interactive process. It was traditional lecturing and slides. Most of the presenters were managers or directors, but you did not see the presence of executives with the exception of the CEO stopping in for a few minutes to say hello and welcome. After the orientation was revamped, it became an immersion into the desired culture. Much of the regulatory required training was moved to a more interactive session or electronic learning. The orientation process now has four hours during our two-day orientation experience of executives including the CEO immersing the new hires into our mission, our vision, our expectations and standards of conduct, our brand, how to create customer experiences, communication expectations, connecting the why behind our work and finishing with all new hires committing to our brand promise and celebrating with a reception that all executives and hiring managers attend to welcome our new employees.

Onboarding begins from the moment an offer is made, and for our organization, lasts around 90 days while the new hire immerses into our culture and becomes fully integrated and a productive employee. We revamped a position to be an Onboarding Coordinator. This individual works with each new hire to ease any anxiety of their new position. The Onboarding Coordinator reaches out to them before they begin to answer any logistical questions, help remove any barriers that may exist for them, and then greets them when they arrive for orientation, along with facilitating the orientation. The Onboarding Coordinator continues through their first ninety days to follow up with the new hire to check in and see if all is well or if there any issues or barriers that need to be addressed to ensure they have been fully integrated into our culture and are becoming a productive employee.

During the onboarding process, we also ensure that our new hires are educated well on our benefit offerings so that they can understand what is offered to them and what plans are best. Utilizing an outside enrollment company has given us more resources to provide thorough education.

The Purpose and Goals of Strategic Onboarding: • Quickly integrate the new hire into the organization’s culture.

• Ensure the employee feels valued and welcomed.

• Provide consistent information to all new hires.

• Understand the new hire’s expectations and what is expected from them.

• Reduce turnover and increase retention of top talent.

How do you measure the success of a Strategic Onboarding Program?

While our organization has had much anecdotal success, our reduction in turnover overall and within the first year indicates success. Our overall turnover has reduced by 1.3% which equates to 35 people. Hard dollar savings for 35 people is almost 1 million dollars in turnover costs. The reduction in first year turnover shows us that we can retain top talent with the right onboarding program. We also have to insist that the culture in the area where they go to work reflects that of the organization’s expectation. Our scores on questions around understanding and the competitiveness of benefits have also increased.

The anecdotal success is most rewarding with this change in strategic onboarding. While we often receive feedback in orientation about “how it’s the best orientation they have ever attended” and “they have never seen one quite like it”, the best story is through one of our van shuttle drivers. Some of our senior executives went out to recognize this shuttle driver who was nominated and chosen for one of our Brand Promise Awards. After receiving the award, he said, “I just completed my first year anniversary and I remember in orientation the presentation of how we could make a difference regardless of our role. I realized I wasn’t just a shuttle driver that I am a shuttle driver and I too can make a difference.” He has done just that. His customers, both employees and visitors, are delighted by him as he drives them from the parking garage to the facility. He makes their day and sometimes sings to them with a song he wrote about organization. We talk a lot in orientation about creating experiences and the necessity of every role which he completely understood and acted upon. We also celebrated another employee, an environmental services technician, who was seen giving the jacket off his back to a homeless man outside of our parking garage. These employees were immersed into our culture and understood the impact they have upon others which is at the core of our mission. Strategic onboarding and immersing all new hires into our culture has helped us retain the top talent we are bringing into our organization and ultimately ensuring that we are delivering better service and care to our patients.

Sarah Colley, SVP | CHRO Regional One Health smcolley@regionalonehealth.org www.regionalonehealth.org

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25

Fallacies and Facts of the FMLA

By CHRISTY SHOWALTER

As we mark the 24th anniversary of the Family and Medical Leave Act (FMLA), it’s sobering to note that this well-intentioned legislation is still creating as much confusion among employers today as it did when first introduced. For many HR Managers, the administration of this complex regulation is anything but straightforward and, based on my experience as an employment attorney and HR consultant, often tops the list of HR challenges.

Whether it’s determining when FMLA applies, decoding a medical certification, managing the always-tricky intermittent leave or understanding the overlap of the Americans with Disabilities Act (ADA) or related state regulations, leave administration is filled with traps for the unwary. Add to these challenges the task of training front-line supervisors to recognize (and report!) potential FMLA events and to avoid interference with an employee’s FMLA rights, and you may agree with one employer’s concern that, “It’s easier to get FMLA wrong than right.” Even 24 years later, there continue to be a number of misconceptions regarding the application of the FMLA. Following are a few of the most common I find when counseling employers: FMLA isn’t really an issue for our company … we’ve never had anyone ask for “FMLA” leave. Have you ever had an employee request a few weeks off following a surgery or the birth of a child? Or missed a week of work due to an on-the-job injury? Or even missed a day here and there due to migraine headaches or another chronic condition? Even though the employee may not have used the magic word, “FMLA,” it is likely the company had “sufficient information” to reasonably determine that FMLA may apply, triggering not only specific notice requirements but also liability if any negative employment action – from a negative performance review to termination - is taken as a result of these absences.

An employee is only required to provide “sufficient information” that makes the employer aware of the possible need for leave. It is then the employer’s responsibility to initiate the FMLA process. Not surprisingly, “sufficient” is not clearly defined in the regulations; however, effective call-in procedures, well-documented leave requests and internal FMLA training can help employers better evaluate each request to minimize risk.

Knowing when FMLA applies isn’t that complicated … our managers know to contact HR if an employee misses more than three days of work due to an illness. While this practice is absolutely a great starting point, it is often overlooked that the FMLA recognizes at least five other definitions of a “serious health condition” that do not require an absence of more than three days (it may also be worth mentioning that the regulations technically refer to more than three calendar days of incapacity – not three work days).

Do your managers also know to contact HR if an employee has had an overnight hospital stay, suffers from a chronic condition (think migraines, diabetes, asthma) or experiences morning sickness that causes the employee to miss work? Or if the employee calls in to take care of a parent, child or spouse for these reasons?

Your managers are often in the best position to know why employees are missing work. It is critical that managers be trained to recognize all circumstances that may qualify as a serious health condition to ensure these absences are properly reported to HR and to reduce the risk of the manager unintentionally interfering with an employee’s FMLA rights.

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We don’t really worry about FMLA eligibility … we go ahead and offer 12 weeks of FMLA leave to all employees, whether they are eligible or not. There is nothing wrong with a more generous approach to leave. It’s important to note, however, that the Department of Labor has taken the position that an employer may not designate leave as FMLA if the employee hasn’t met the eligibility requirements (i.e., 12 months of employment, 1,250 hours of service, and employment at a location with 50 or more employees within a 75-mile radius). While an employer is certainly permitted to offer additional leave under a separate company policy – or may even be required to offer non-FMLA leave under a separate law, such as the ADA – the employee will still have the full 12-weeks of protected leave available once FMLA-eligible.

When an employee isn’t able to return from FMLA leave, we immediately terminate employment per our policy. If an employee exhausts the 12-week FMLA entitlement and is still unable to return to work, it’s true that the employee loses protection under the FMLA, including reinstatement to the same or equivalent position. Employers should, however, be very cautious in taking such a blanket approach in terminating employment. Other regulations, such as the ADA and state leave and workers’ compensation laws, may require additional leave as well as extended job protection. For example, after exhausting FMLA leave, an employee could request two months of additional leave for continued medical treatment, triggering the ADA’s interactive process and an individualized assessment of what accommodation may be reasonable. The EEOC has specifically acknowledged that extended leave may be a reasonable accommodation under the ADA (although, unfortunately, the EEOC has not provided any maximum time frame for this additional leave, adding to the difficulty of this leave administration!). Accordingly, it is important that HR work closely with employees exhausting FMLA leave to determine whether any additional leave may be needed and how much may be reasonable.

As we head toward the 25th Anniversary of the FMLA, it’s a great time to make sure you haven’t fallen for any of these common fallacies and that your policies are consistent with the federal guidelines and best practices. Make it your goal to take a refresher class in FMLA, to review and update your leave policies, and to conduct internal training. By taking these simple steps, you can make sure you are positioned to get more right than wrong when it comes to leave administration.

Christy Showalter, JD, MBA Certified PPACA Professional Senior Human Resource Consultant Regions Insurance christy.showalter@regions.com

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Strategic HR

vs.

Tactical HR

By JILL CHRISTENSEN

A seat at the adult table – virtually everyone wanted it as a child and as adults, many HR professionals are still yearning for it. What does that seat look like today? A spot on the senior leadership team, reporting directly to the president or CEO, and a voice in the most important decisions that are made pertaining to the company. Although every HR professional who I speak with knows the value of being a player on the team that occupies the “C-Suite,” many do not understand how to secure it and keep it.

What the Numbers Tell Us Today Oxford Economics conducted a Workforce 2020 study on behalf of SAP. The first report from the study focused on HR’s seat at the table or their weight in the strategic business decisions of their organizations. It suggests that “people management will need to become more strategic and evidence-based to accommodate the increasingly flexible and diverse workforce of the future.”

The study showed that 52% of respondents say workforce issues drive strategy all the way up to the board level, and 53% say that workforce development is a key differentiator to the growth of the firm and bottomline results. However, 24% of respondents said HR is consulted after highlevel decisions have already been made and 26% said HR is not consulted at all about business planning.

Why This Conundrum Exists Why is HR often “boxed out” of giving input on key decisions? According to Sheryl Kovach, president and CEO of Kandor Group, an HR consulting firm in Houston, “It could be in part due to the fact that HR professionals don’t always have the best reputations among employees. When there’s a layoff, HR is involved. If a discipline problem arises, HR finds its way into the mess. As health care premiums rise, HR delivers the news. With all of these negative instances, many employees have developed feelings of apprehension toward HR.” However, I believe that if HR showed up first and foremost as a strategic value-added partner vs. a tactical implementer, the feelings of apprehension would dissipate. And this is where HR needs to take accountability for its role in have a permanent seat at the kids table in most companies.

The Path Forward for HR How can HR shift this dynamic? It begins with HR professionals shifting their mindset. They must begin to look at HR issues from a business perspective and not just a people perspective, and through this shift a seat at the table can be earned. Executives want you to ask yourself, "Is this going to create business value for the organization and if so, how can I measure the impact?" This mindset shift is critical for HR, as it shows that you are thinking strategically about how your organization can help the company meet or exceed its goals.

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What does this look like in practice? Tony Deblauwe, a senior director of HR at symphony.com in Palo Alto, CA, penned the following chart listing tactical vs. strategic HR actions: Tactical vs. Strategic HR Actions

TACTICAL

STRATEGIC

Employee Relations Focus on policies, compliance and discipline as well as company events and community issues

Engage employees to drive business results and see them as investments rather than costs

Attraction & Selection Recruit and hire, temporary staffing

Create an employer brand and develop talent pipeline based on what the business needs

Employee Development Basic skills training, new hire orientation

Training and development solutions that drive business results while developing careers

Performance & Rewards Performance management, benefits, compensation structures, job descriptions

Cascading business goals down to workforce and rewarding based on goal achievement

As you can see, making the leap from looking at HR issues from a people perspective to a business perspective simply involves a mindset shift.

And while every HR function is not covered in the chart above, this new approach can be applied to every area which HR owns and is accountable for driving results.

Employee Engagement as an Example My area of expertise is employee engagement and helping companies re-engage workers who are sleepwalking through their day, giving you zero discretionary effort. In the vast majority of global companies, HR owns employee engagement (or culture change) and is responsible for driving improvement in the overall employee engagement survey score.

according to Gallup,

87% of employees are not engaged

However, from my experience, few HR organizations approach the global employee disengagement epidemic strategically (according to Gallup, 87% of employees are not engaged). Instead of creating a strategic plan, and engaging senior leaders and mangers in the execution of the plan, many HR organizations brainstorm tactical actions that they can roll out to re-engage workers. This can range from the company picnic to creating an interactive PPT for new hire orientation to writing flexible benefits policies to coordinating a company-wide volunteer day.

Happy is Not Engaged While these actions make people “happy” in the moment, they don’t drive employee engagement. Happy is not the same thing as engaged. Engaged is when your employees trust leaders and feel an emotional connection to your company. Happy is a feeling people get when the office dog licks their face while they are drinking a free beer at the company picnic.

The result? Employee engagement is viewed as a temporary HR program or initiative, and we all know what employees think about Programs du Jour. In addition, one-off actions, like the ones listed above – even when pieced together – do not equate to a strategic employee engagement plan, which will yield massive measurable improvements in your culture and bottom-line results. Bottom-line, HR has been responding inappropriately to the employee engagement crisis for decades, and my guess is it may be approaching other areas of responsibility equally as inappropriately.

Then There’s Reality However, we can’t lose sight of the fact that HR will always have responsibilities in the tactical weeds (administration, policies, procedures, systems, processes, reports), which are routine tasks focused on short-term outcomes.

The key? If the tactical is not executed well, it will overshadow anything

good that HR does strategically. It’s nearly impossible for senior leaders to hear your thoughts about strategic matters when tactical matters are wreaking havoc on the organization and its employees. Therefore, HR must have its tactical house in order at all times, so it can be viewed as a group that has the skill and bandwidth to chime in on more strategic matters.

Key Takeaways A seat at the adult table is not elusive. Think about it - in time - you got there in your personal life and you can get there in your business life. For starters, embrace these three lessons: • In order to “shift” how HR is viewed, HR professionals must shift their mindset and look at HR issues from a business perspective and not just a people perspective.

• When HR’s tactical house is in order, senior leaders are more likely to consider consulting HR before high-level decisions have been made.

• A seat at the adult table is not a given, it must be earned by HR through respect, small wins, executing flawlessly on tactical matters, adding value, and strategic thinking.

I can see the place card on the walnut table in the Board Room now. It says “Reserved for HR.” To your success.

Jill Christensen Employee Engagement Expert.

Best-Selling Author. International Keynote Speaker. jill@jillchristensenintl.com www.jillchristensenintl.com

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29

2016 Final Rule on Overtime Exemptions

By WAYNE YOUNG

The status of the proposed changes to the white-collar exemptions (“2016 Final Rule”) continues to be a hot topic in the HR legal community, specifically the dramatic proposed increase in the salary threshold for those exemptions. Many are still asking about the status of those changes or what employers can expect in the future.

On November 22, 2016, a federal judge in Texas halted the effective date of the 2016 Final Rule via a preliminary injunction that applied nationwide.

The reasoning for the injunction reached beyond the amount of the salary threshold, however, and suggested that the Department of Labor had no authority to set any minimum salary threshold at all in defining and delimiting the exemptions. The court reasoned the white-collar exemptions as crafted by Congress contemplated only a particular set of duties for the exemptions and not any particular minimum salary. The DOL appealed that decision to the Fifth Circuit Court of Appeals and the case is still pending.

As we all know, earlier in November 2016 there as a change voted on with respect to the presidential administration. The conventional wisdom was that President Trump’s DOL would likely take action that would abandon the effort to raise the salary threshold for the white-collar exemptions so dramatically. President Trump’s eventual pick for Secretary of Labor, Alex Acosta, suggested the threshold salary for the white collar exemptions should be raised to a range around $33,000 per year. This is of course significantly less than the threshold proposed in the 2016 rule of $47,476 per year.

There was no development of note in the first half of 2017 with respect to the 2016 Final Rule. Then in a reply filed with the Fifth Circuit in July 2017, the Department of Justice arguing the appeal from the temporary injunction on behalf of the DOL abandoned the government’s argument defending the increased amount of the salary threshold in the 2016 Final Rule. In the brief the government also previewed that it intended to undertake further rulemaking to determine what the salary level should be. The DOJ, however, shrewdly maintained that the DOL did have the authority to decide a minimum salary threshold for the exemptions.

Another development that impacted the status of the 2016 Final Rule occurred very early on in the Trump Administration. On February 27, 2017, President Trump signed Executive Order 13777 entitled Enforcing the Regulatory Reform Agenda. This order tasks federal agencies with identifying regulations for repeal, replacement or modification that, among other things, inhibit job creation, are outdated, or impose costs that exceed benefits.

With that backdrop on July 26, 2017, the DOL published a request for information (RFI) seeking public comment on a series of questions concerning the white-collar exemption rules. The questions themselves shed some light on the thought process within the DOL as it relates to a potential new rule. Below is a summary, with a few comments, on the eleven specific questions in the RFI. 30

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1. What data should be used to update the salary threshold, e.g. measure of inflation, the methodology used in 2004, etc.? Would setting the salary level using any of these methods require changes to the duties test?

The DOL is in search of a way to update the salary threshold that makes sense in light of how the current threshold was set in 2004. The method used in 2004 was to set the salary at the rate of the bottom 20 percent of salaried employees in the lowest wage earning census region. The 2016 Final Rule used similar methodology but set the threshold of 40 percent of salaried employees in that region.

2. Should the regulations contain multiple salary levels? If so, how should the levels be set?

A criticism often heard among employers is that a uniform salary threshold does not make sense in light of the broad range of income levels and costs of living across the country. The DOL is acknowledging that comment and appears to be contemplating setting the salary by geographic area. While that would more appropriately reflect the economics of different regions of the country and different costs of living, it would be an administrative challenge for those employers with operations in multiple areas. Also another reality of the modern economy is the location where an employee works can be a nebulous concept. The question also asked about a different salary threshold depending on the size of the employer, presumably with larger employers required to pay a higher salary.

3. Should the regulations set a different salary threshold for different exemptions, specifically should the salary threshold for executives and administrators be lower than that of professionals?

This is another potential idea borrowed from prior versions of the rules. The “one-size-fits-all” method of setting the salary threshold is obviously coming under intense scrutiny. The challenge with this change would be that employers would have to specifically identify ahead of time the applicable white-collar exemption in order to make sure the appropriate salary was set.

4. Should the salary threshold relate at all to the former long and short tests?

The prevailing theme of the questions is the search for some methodology to set the salary thresholds. They are not ruling out borrowing the old methodology from prior versions of the rules.

5. Did the 2016 Final Rule salary threshold effectively eclipse the role of the duties test? If so, at what level does the duties test no longer fulfill its historical role in determining exempt status?

This is a nod to the business community that the DOL hears them with respect to the arguments against the proposed salary threshold in the 2016 Final Rule. This question begs the follow up question posed from the federal judge’s order: is any salary threshold consistent with the duties test?

6. What changes did employers make (e.g. payroll, time keeping, changing status, changing hourly rates, etc.) in light of the proposed 2016 Final Rule and what was the impact of those changes?

This is an interesting question designed to peek into the crystal ball to get an idea of what would have happened had the 2016 Final Rule gone into effect. The DOL could be searching for data to support a drastic lowering of the proposed salary threshold in the 2016 Final Rule.

7. Would a strictly duties test be preferable? And if so, what should such a duties test look like?

This gets at the heart of whether the DOL should line up with the federal judge’s reasoning and abandon any effort to set a minimum salary altogether. If this method is adopted, it would be a significant change in wage and hour law of course. A pro of such a solution would be it would eliminate the salary threshold

barrier to correctly classifying individuals who should be exempt. A con would be employers could expect the duties test to get much stricter should the DOL adopt this approach. The DOL may prefer this solution in part because it would allow them to get in front of a potential adverse ruling from the Fifth Circuit.

8. Does the salary threshold in the 2016 Final Rule exclude from exemption some historically exempt positions?

This question gets at what the impact would have been with the drastic change proposed in the 2016 Final Rule.

9. Were the provisions related to inclusion of certain bonuses and commission in the minimum salary appropriate?

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A unique feature to the 2016 Final Rule that arguably broadened the exemption was the allowance of certain bonuses and commissions in the computation of the minimum salary. The amount of such bonuses and commissions that could be credited toward the salary threshold was capped at 10 percent, however. Hopefully if the DOL intends to keep the salary threshold, they will consider broadening the definition of “salary basis” to include more types of compensation and allow employers and employees more flexibility with respect to types of compensation.

10. Should there be multiple compensation levels for the highly compensated employee exemption?

The increase to the highly compensated employee threshold was another sticking point with a lot of employers from the 2016 Final Rule. Much like with the salary threshold for the white-collar exemptions, it appears the DOL is considering adopting a multi-tiered approach to the threshold for highly compensated employees that could vary based on geographic area or a host of other factors similar to the ones suggested for the salary threshold for the white-collar exemptions.

11. Should the salary threshold(s) be automatically updated on a periodic basis, and if so, how?

The icing on the cake so to speak for many employers from the 2016 Final Rule was that the aggressively high salary threshold would actually increase even more beginning on January 1, 2020 and again every three years based on updated salary data. The DOL hopefully seems to be reconsidering the wisdom of this methodology and looking for a better alternative if automatic updates should be implemented.

The DOL’s questions squarely address the concerns the employment law community had with the 2016 Final Rule. Considering all of the DOL’s activity in recent months, the ultimate takeaway is to expect a much more workable rule with respect to the white-collar exemptions. Many had feared the chaos that would ensue if the Texas federal court’s order was reversed at the Fifth Circuit. Given the government’s position on the rule, that seems to have been avoided. Although if the DOL publishes a new rule while the lawsuit is still pending, it is unclear what impact that would have.

The DOL has instructions for how to provide comments in various forms in response to the questions on their website at https://www.federalregister. gov/documents/2017/07/26/2017-15666/request-for-information-definingand-delimiting-the-exemptions-for-executive-administrative. The comment period is open until September 25, 2017.

Christopher Elizabeth Heller Robben Murray

Michael S. Moore

Daniel L. Herrington

Ellen Owens Smith

Khayyam M. Eddings

H. Wayne Young, Jr.

Marshall S. Ney

Allison C. Pearson

400 West Capitol Avenue I Little Rock AR, 72201 3425 North Futrall Drive Suite 103 I Fayetteville, AR 72703 3350 S Pinnacle Hills Pkwy Suite 301 I Rogers, AR 72758

Wayne Young Wayne Young is a partner with the firm and a member of the Labor and Employment Law Practice Group. He was named the 2017 Russell Gunter Legislative Advocacy Award Recipient by the Arkansas SHRM. The award recognizes outstanding contributions of time and effort in local, state or federal legislative advocacy on behalf of the Human Resources profession.

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31

PERFORMANCE – AND PEOPLE, TOO

By DEBORAH D. TOBEY

As part of our two-year master’s degree program in Leadership and Organizational Performance, the first thing I usually ask the students at the beginning of a course is to share why they chose our master’s program.

Virtually every one of them say something like, “I love people and I want to help people.” At that point, I (figuratively) slap them, and say “Nope, sorry, your job is not to help people – it is to help your organizations succeed!”

Of course, there is more to it than that. We execute people-based interventions to help our organizations succeed. The best by-product of that work lies in the fact that these interventions not only improve human performance - they help people as well. But make no mistake: our work is about identifying, developing, and improving human performance that supports our organizations’ goals.

Implementing performance analysis begins with the foundation that underlies our work: organizational goals. After data gathering and

analysis, organizations make decisions about how they “do business” based on whether the goal(s) are to solve a problem (e.g., low profits or revenue, low customer satisfaction, decreasing market share, waste, turnover), capitalize on an opportunity (e.g., new use for a current product/service, new customer base, competitor collapse, new challenges facing constituents), or support a strategy (e.g.,, being eco-friendly, employer of choice, children-centric, having a specific culture).

Using organizational goals as the foundation, our job is to identify the human performance that will help the organization achieve these metrics.

Two key questions to answer here:

• What products/results/outcomes are expected from employees to support the organization’s successful achievement of its goals?

• What should (new) employees do, and/or what should (existing) employees do differently to achieve these expectations?

We implement our own datagathering and analysis to answer these questions by identifying: • How employee products/results/

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outcomes are measured, and how they are achieved • How employees are performing now vs. how they should be performing • What employees need to be able to perform including skills, resources, expectations, prioritization of tasks, confidence, and motivation We now know what employees need to do differently, and what they need to make that happen, so based on that analysis, we then select interventions that will provide what is needed by the employees to perform to the desired goal(s). Here is a list (not complete, by any means): Change Management Coaching Competency management Continuous improvement Education Ergonomic design Group task facilitation Group process facilitation HIPO development Hiring Processes & systems Learning & development Leadership development Management development Teambuilding

On-boarding Performance management Performance consulting At this point, it’s time to design, implement, and evaluate the selected interventions, by delivering them ourselves, managing an external vendor, or handing the work off to another department according to our organization’s functional structure.

What is critical is that the work we do is predicated on thorough and thoughtful performance analysis processes. Otherwise, we can trap ourselves into delivering intervention(s) that don’t make any difference in human (or organizational) performance. It’s Performance – and People.

Deborah D. Tobey, Ed.D. Senior Lecturer in Leadership & Organizations Department of Leadership, Policy and Organizations Peabody College Vanderbilt University deborah.d.tobey@vanderbilt.edu

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Court Ruling Means We’re One Step Closer To A Unionized Gig Economy

By BENJAMIN EBBINK

T

he battle over organizing workers in the on-demand economy continues to heat up. Recently a federal court in Washington dismissed a lawsuit filed by the U.S. Chamber of Commerce and others challenging the City of Seattle’s landmark ordinance that essentially authorizes ride-hailing drivers to unionize. However, the law remains on hold as an injunction remains in place pending the outcome of related litigation.

Back in April the court granted a preliminary injunction against portions of the ordinance, which was seen as a significant blow for the ordinance and union organizing efforts aimed at this industry. But now it is the unions’ turn to celebrate, as a federal judge has granted the City of Seattle’s motion to dismiss the lawsuit.

To recap briefly, the ordinance seeks to require ride-hailing apps to provide driver contact information to aid approved drivers’ associations – such as the newly formed App-Based Drivers Association (affiliated with Teamsters Local 117) – in contacting the drivers to determine if they want to unionize. In January 2017, the Teamsters made formal requests for the ride-sharing companies to provide it with drivers’ names, license numbers, telephone numbers, emails, and addresses; the deadline to provide this information was mid-April.

This prompted litigation. One such case, filed by the U.S. Chamber of Commerce on behalf of members such as Lyft and Uber, argued the ordinance violates federal antitrust law because Seattle’s ordinance permits independent contractors to collectively join together to fix prices and terms of service, reducing competition. The Chamber also alleged the ordinance is preempted by the National Labor Relations Act (NLRA) and violates several other state and federal laws, and argued that this ordinance has the potential to cripple the for-hire driver industry and the on-demand economy as a whole.

In the August 1 ruling, the federal judge essentially rejected the arguments and ruled, among other things, that the ordinance did not violate federal antitrust law, nor was it preempted by the NLRA. 34

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First the antitrust issue. Under federal law, it is unlawful for private economic actors (such as businesses) to set prices they will accept for their services in the marketplace (think of all those stories about milk or other commodity “price fixing” from your history class). However, there is an exception (known as “state action immunity”) to this prohibition for states and municipalities to restrict competition for state policy reasons. Under this exception, the challenged law must (1) be clearly articulated and affirmatively expressed as state policy, and (2) must be actively supervised by the state (or municipality) itself.

With respect to the Seattle ordinance, the judge ruled that it satisfied both prongs of this test. First, the court held that the underlying state laws “clearly delegate authority for regulating the for-hire transportation industry to local government units and authorize them to use anticompetitive means in furtherance of the goals of safety, reliability, and stability.” The court declined to “second-guess” the means the municipality has chosen to promote these goals.

Second, the court held that there was sufficient “active supervision” by the state (or here the municipality) over the otherwise anticompetitive conduct of the private parties. The court pointed to the active role played by the

City’s Director of Finance and Administrative Services in ensuring that the policy objectives of the ordinance are furthered, including the designation of drivers as qualified and the ability to accept or reject agreements bargained between the parties or established via arbitration.

Next, the court moved to the issue of NLRA preemption, similarly finding no grounds to rule the ordinance ran afoul of federal law in this regard. Under the NLRA, there are two main types of federal preemption.

“Garmon preemption” refers to when a state or local law regulates activity that arguably falls within the federal NLRA. Here the court pointed out that the plaintiffs had not argued that the drivers at issue were employees (who fall under the jurisdiction of the NLRA) – in fact, they specifically argued to the contrary that they were independent contractors (who do not fall under the jurisdiction of the NLRA). Therefore, the court held, “because no party has asserted that for-hire drivers are employees, the issue will not be considered or resolved in this litigation.”

The second type of preemption, or “Machinists preemption,” refers to where the local action regulates activity that Congress intended to leave unregulated. Here, because the ordinance sought to allow independent contractors to bargain, the issue, then, is “whether the exclusion of independent contractors [from the NLRA] represents a congressional determination that workers in that category should be prevented from bargaining collectively or whether the exclusion reflects a willingness to allow state regulation of the balance of power between independent contractors and those who hire them.” The court looked at the legislative history of the NLRA and held the latter, finding that Congress was “indifferent” to the labor rights of independent contractors. Therefore, this was not conduct that Congress specifically intended to leave unregulated and “Machinists preemption” did not apply.

While the recent decision is a big blow to opponents of the ordinance, this isn’t the final word on this case. The Chamber of Commerce has already announced it will appeal this ruling to the 9th Circuit Court of Appeals.

And importantly, the court’s injunction issued in April remains in effect as it also applied to a lawsuit filed by Uber and Lyft drivers. The injunction will remain in place unless and until the court takes further action in that lawsuit.

So this case remains one to watch, as we are still a long way from getting a final answer on this question. But in the meantime, proponents of the effort to unionize gig workers will likely trumpet this decision as they seek to compel other cities and states to follow Seattle’s lead.

Benjamin M. Ebbink, Of Counsel Fisher Phillips Sacramento Office bebbink@fisherphillips.com www.fisherphillips.com

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35

When Diversity asked for Innovation’s hand in marriage

By MELVA TATE

I have to think that Inclusion was a bit surprised when Diversity came home and shared his plans to add to their union. You see, Inclusion has been married to Diversity since the early nineties. And their marriage, although sustaining a few bumps and bruises along the way, has been very productive.

Despite the turmoil in our society, organizations have the additional task of dealing with the globalization of business that has produced fast-paced, and competitive environments. And despite all the societal challenges, they realize two things: they must be diverse and they must be innovative.

Since their union, no one has mentioned Diversity without immediately thinking of and adding his beautiful bride Inclusion, to the conversation.

Diversity & Inclusion became like so many other famous duos that mandated the declaration of both names for the announcement to be complete.

If I said Batman, you would immediately think of Robin. If I said Sonny, your response would be Cher. Mickey, you automatically have an image of Minnie and her big smile. Albert and Costello, Bert and Ernie; you get the picture.

The drivers for an organization’s diversity management program, supported by innovation and inclusion, are clearly recognized and respected. We have demographic trends that have led to a changing workplace profile. Companies are more aware of the tie between their diversity and inclusion initiatives and their organization’s brand.

They also realize the importance of D&I to proactively adhere to laws and regulations and eliminate, or at least minimize, employee lawsuits.

But now Diversity has extended his hand to Innovation. Not divorcing Inclusion, but adding Innovation to the marriage. Like an episode of Sister Wives or Big Love, Diversity, Inclusion and now, Innovation has found a way to make this marriage work.

The discussion of diversity is or should be top of mind for all of us. We can’t get away from the debate about our differences. It’s everywhere. If you closed your eyes and simply heard the chatter, you would think we were in the era predating the signing of The Civil Rights Act of 1964 – Title VII and the civil rights movement that followed.

Turn on the television, scan through the radio, or log on to social media, something about our differences, our diversity, is trending or leading the headlines. The Muslim ban, build the wall, transgender individuals and their use of a public restroom, and the recent tragedy in Charlottesville, VA. We’re all talking about what makes us different. But why does this remain a challenge for us?

My favorite definition of Diversity defines it as a mosaic of people who bring a variety of backgrounds, styles, perspectives, values, and beliefs as assets to the groups and organizations with which they interact. Whether the “variety” is based on religion, race, ethnicity, sex, and gender, or one of the numerous factors of our differences that make America the great melting pot that it is.

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To Lead D, I&I – Leaders must have cultural agility The term, “been there – done that”, is even more significant for leaders to be effective in managing diversity, inclusion, and innovation. Leaders must have cross-cultural agility which is their ability to adjust their behavior to work with other leaders and employees as their authentic selves.

To Lead D, I&I – Leaders must have self-awareness Emotional intelligence and self-awareness will allow leaders to be more attuned to their unconscious biases. Unchecked, a leader’s unconscious biases will stifle innovation.

We see this in their failure to recruit diverse talent, assign creative projects, interaction with certain team members, and most detrimental, their unwillingness to listen to their team’s ideas and suggestions.

To Lead D, I&I – Leaders must encourage employees to share their voice Effective communication is vitally important for diversity, inclusion, and innovation.

Employees must be provided a platform to share their voice and to voice their concerns. Without a safe space or platform to share concerns, we’ll see many more bold documents like the “Google Manifesto.”

To Lead D,I&I – Leaders must allow their team to draw outside of the box To effectively lead diversity, inclusion, and innovation, leaders must abandon the status quo and give their teams permission to draw outside of the lines. They realize to develop them into catalysts for innovation, and spark greater creativity, there should be no, or very limited, boundaries. They realize that organizations can no longer be static, but must operate with a virtual, mobile and global mindset to remain competitive.

To Lead D,I&I – Leaders must be empathetic It is not only important for leaders to have cultural agility, but they must be empathetic. They must pause, search inward, and be willing to put themselves in a team member’s shoes. True- they may never experience the challenge, but to simply imagine what it would “feel like” if they did.

Because Innovation said yes, we all benefit from the union The I do’s are done, a wet-juicy kiss sealed the deal, and now it’s time to throw rose petals and celebrate. We all benefit when diversity, inclusion, and innovation decided to form a trinity.

Employees in D,I&I environments seek was to be innovative without fear or failure. They embrace opportunities to be creative and realize that just because we’ve always done it this way, does not mean today is not the day for change. We see a stronger desire to collaborate, that by design, builds stronger teams and teamwork. And to HR Leader’s delight, we see fewer complaints, grievances, absenteeism, and more.

The benefits to employers are numerous: more money, more market share, customer focus and increased productivity. This in turn yields, a stronger company reputation, and brand.

Research has provided undeniable evidence that diversity is a primary key that unlocks innovation.

In environments where employees are encouraged to share their voice and draw outside of the lines, new products are developed, new service lines are implemented and new ideas have fostered.

HR practitioners must think strategically and partner with senior leadership to create an organizational culture that embraces the union, thereby generating the best ideas from people in all levels of the organization and incorporating them into business practices.

Melva Tate, PHR/CLC Tate & Associates, LLC melva@tateassociatesllc.com www.tateassociatesllc.com

2017

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To Tweet or Not to Tweet

Open Enrollment Engagement Strategies

By CAMMIE SCOTT

Change or Be Changed Some decisions are tough to make. This morning I worked with the executive team of a group of just over 30,000. The decision was made to terminate the Director of Information Systems. He was a long time employee who had been very committed to the organization.

His mistake was in failing to realize that methods of communication and the way data is transferred and received has changed. Instead of being viewed by his peers as an asset he was viewed as a bottleneck. Employees desired ways to find company and customer information on their own. Instead of embracing their desires, he asked everyone to come to him and make requests.

Perception is Belief The benefit season is upon us. This is the time of year when employers are reviewing budgets and making decisions on allocating resources. For most employers, benefit expenditures are second only to wages and staffing costs yet most employees have no idea of the cost, what is available or how to use it. Employees may not perceive the real value of what is being offered to them. A lack of understanding leads to a lack of value.

The demographics of the workforce have changed. There are now 5 generations working.

Each of these have unique values, desires and values. Boomers prefer paper communications and face to face classroom style teaching. Millennials grew up with computers and smart phones. They look for apps and ways to find information online. The challenge comes in communicating and engaging across all generations and skill levels.

Remember the How Employers sometimes make the mistake of focusing all the effort on what to offer and not enough on how to offer it. The labor market is tough. Employers are struggling to find and retain top talent. Benefits are an important component of attracting good recruits and reducing turnover. Problems are encountered when employees don’t value what is offered to them or how it benefits them.

According to Pew Research within the next 4 years Millennials will make up half of the workforce. They desire quick self service solutions that can be accessed 24/7. They want to be engaged at all levels. The Digital Generation follows them. There has never been a time in their life when they did not have a computer. The demand for online services and quick solutions will only increase with their entrance to the workforce.

The gentleman I described at the beginning of this article could not make this shift. He could not transform his style of work and communications to match that of a changing workforce.

With all of the regulatory changes and compliance issues, it can be hard to develop a communication strategy that will engage not only Millennials, but all generations in the enrollment process. In the end it is all about communication and employee engagement.

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Tips and Tricks 1. Help! Enlist the help of your broker. They work with a variety of different employers and see what works and what doesn’t work. They often know of communication pieces that are already created by carriers or their organization that can be customized to suit your individual needs.

Recent studies suggest employers are leveraging the skills of brokers more and more. Ask them for help and suggestions.

2. Plan – Develop a communication plan early and follow it. Having a plan that details who will do what by when can help alleviate stress in so many areas. This is especially true when you are changing plan designs or altering policies.

3.

Messaging – This is a great time for companies to emphasize company values and mission. Employees want to be a part of something big. They want to feel they are moving the organization forward. They want to feel valued. Help employees draw the line between benefits and the value the company places on them as employees. This can easily be overlooked or missed. If the employees do not perceive the value of programs then it really doesn’t matter what you spend on them. The old saying, “they don’t care what you know until they know you care” rings true. This is a great time to let them know you care. Marketing and communication departments can offer assistance in creating and crafting your messaging.

4. Execution – It’s not enough to make a plan.

You must actually implement it. Someone has to make the reminders for the paychecks, send the emails, upload the data and test they system.

Have a timeline and stick to it.

5. Communicate – Think outside the box on educating and reminding employees of upcoming

enrollments. When in doubt, over communicate. It takes a number of times and methods to get employees ready to make decisions. Tell people exactly what you want them to do and when you want them to do it.

• Put reminders with pay stubs • Hang posters • Send email reminders • Mail postcards to their house. Often one person in a family makes the insurance and benefit decisions and that may not be the employee.

• If you don’t have one, consider a closed Facebook group for company information • Tweet about it. Yep, you heard that right. Many Americans get much of their news and communications on Twitter. If you don’t believe me just ask the President. This can also be an effective tool in recruiting new employees and gaining notoriety as an employer who cares for employees.

• Put together a video campaign. This can be done with YouTube, Vevo or other media including dare I mention the dreaded Snapchat. Employees like short, bite sized bits of information dripped out to them as opposed to long drawn out presentations.

• Use a text message service. These are great not only for open enrollment, but for introducing new policies, recognizing people and disseminating information.

cultures and those who do not read well. Make it easy to understand and comprehend.

7. Have fun! We live in a culture who loves to be entertained. We love videos and engagement. Think of all the cat videos and funny baby videos. Use those to your advantage. Play a game where you post clues on Twitter. Do a quiz at the end of a meeting for fun prizes. It doesn’t have to cost a lot of money to get people moving, talking and engaging with one another. Make it a meeting people want to come to instead of a necessary drudgery they must endure.

In the End We are all guilty of looking only at what is before us and not at the big picture; the grand scheme of what is before us. Open enrollment can be a great time to build relationships and enhance your own professional skillset. Take a few minutes to learn about industry terms and trends.

Hone your planning skills. Execute on the tasks assigned and grow your credibility as a person who can be trusted to get the job done.

Increase your ability to manage projects and improve your communication skills. Choose to grow yourself and make this enrollment season a time to look forward to instead of a dreaded time of meetings and technology struggles. Embrace the challenge and conquer the beast of the enrollment season.

6. Simplify – Use pictures and graphics. The easier you can make the communication and the process, the more success you will have.

Be sensitive to those who speak other languages, come from different

Cammie Scott, President CK Harp & Associates cscott@ckharp.com www.ckharp.com

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39

Negotiating the Nonnegotiable: HOW TO RESOLVE YOUR MOST EMOTIONALLY CHARGED CONFLICTS

By WILLIAM CARMICHAEL

INTRODUCTION What do you think about when you hear the phrase ‘to negotiate’? The dictionary defines it as “to confer with another so as to arrive at the settlement of some matter.” This sounds simple enough. And if you have ever attended a negotiation workshop or seminar you certainly took away the three fundamentals of how to negotiate; First. know what you want . . . Second, know what you must have . . . And third, know what you are willing to accept! Most business leaders would refer to this as the negotiation paradigm; a fixed way of looking at something so that there is a mutual outcome. But what if the planned outcome is not easily negotiable or at least not in your mind?

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Negotiating the Nonnegotiable: How to Resolve Your Most Emotionally Charged Conflicts by Daniel Shapiro completely changed how I look at negotiating. Regardless of what we are trying to resolve, we must first realize that emotions are at work on both sides and the better we can understand – truly understand the intricacies of what those emotions are and the people involved, the outcomes we desire will never happen.

Negotiating the Nonnegotiable introduces a new paradigm for resolving conflict and is one that speaks as much to the heart as to the head.

NEGOTIATIONS INVOLVE EMOTIONS! I had heard of Daniel Shapiro, the founder and director of the Harvard International Negotiation Program. I also was reasonably familiar with his work over the last two decades with getting global leaders to sit down across the table from one another in hopes of reaching consensus on a multitude of insurmountable topics. Shapiro’s approach to resolving conflict, to put it mildly, is completely unorthodox. He helps us to understand that conflict resolution begins and ends with people who approach the conflict with their own unique set of values. He then taps into these values and lays them bare so that the reader can understand why the other person is acting the way they are. In other words, he gets to an emotional understanding of the person as well as the situation.

Negotiating the Nonnegotiable begins with a true story from war-torn Yugoslavia twenty five years ago, where a young woman named Veronica was in one of his workshops for teenage refugees. It was during this country’s breakup and bloodshed, Veronica had been held and forced to watch as her captors slit her boyfriend’s throat. As I read about this event, the question that immediately came to my mind was “how in the world can someone negotiate themselves out of something as catastrophic as this”?

Shapiro is first and foremost a trained psychologist and has been involved in negotiations ranging from hostage situations with police to work in the Middle East with Palestine and Israel as well as with Fortune 500 CEOs. From these he draws real life examples of emotionally charged situations that can become almost impossible to resolve.

Now what makes things so hard to work out? Unlike negotiating one’s salary, a promotion, trying to get the best deal on a car or working through a performance problem, we become lost in our emotions, and as Shapiro says, “You can’t solve emotions. You have to get beneath our emotions to the root of identity: who are you and who am I: What are the values we cherish and what do they mean to us? Negotiation takes place in that space between us.”

The first step he says is to listen to each other. There are so many barriers of getting to a collaborative phase. He talks about the five lures that draw us into tribalism and what takes listening off the table. Tribes are adversarial, self-righteous, and closed. To again quote Shapiro, “We get lost in emotion (vertigo), we do the same things over and over (repetition compulsion), have certain things we just won’t discuss (taboos), feel that what we cherish is attacked (assault on the sacred), and we position ourselves to advance our own agenda (identity politics).”

In Negotiating the Nonnegotiable, Shapiro has broken down all the pitfalls we face in negotiation and given us tools to try to get beyond what can seem to be an impossible task.

He uses charts, acronyms, and steps to help break the process down into manageable and focused parts. For example, to try to break the repetition compulsion, there is the TCI method- Trigger, Cycle of Discord, and Impact. The method of evaluating your connection with another is REACH- Recognition of existence, Empathic understanding, Attachment Care, and Hollowed kinship. It honestly feels like he has covered every possible variable for conflict and the resolution.

A part of the book that has direct meaning for me is on reconciliation. We have all felt wronged in our lives, and we have hurt others. Here, Shapiro does a really nice job of going over the process of reconciliation and forgiveness, and just what this means. In conflict resolution, he emphasizes the “we,” where we strive for harmony, not victory. Negotiating the Nonnegotiable presents a model of negotiation that is backed by research and experience.

aligned into four topical sections; each building upon the previous. Section 1 helps us understand why we typically fall back into “The Tribes Effect” when faced with human dilemma. It explains why we act the way we do. Section 2 describes “The Lures of the Tribal Mind”; the behavior we cannot stay away from. Section 3 is titled “Bridging the Divide” which defines how and why we can and can’t reach consensus. Section 4’s “Reconciling Irreconcilable Differences” carefully explains why conflict exists in the first place and how we can implement a “unity of understanding.”

Read this book! It will change the way you look at human conflict and resolution. It did for me!!

WHO WILL BENEFIT MOST FROM THIS BOOK? Senior managers, Senior Human Resource Professionals and organizational leaders.

SOMETHING TO CONSIDER Negotiating the Nonnegotiable is not, I repeat . . . not a quick read. It is also not a handy reference guide you can pick up and quickly find exactly what you are looking for when faced with a delicate matter. Instead, what readers will find is an excellent resource on human behavior written by an experienced, knowledgeable psychologist who has been in the trenches. Here, Shapiro provides psychological theory and its intended application for conflict resolution but does in common-sense language. Fifteen chapters are carefully

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

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41

Y Y EEOC V. BASS PRO OUTDOOR WORLD, LLC

By DALE CONDER JR.

In

2011, the EEOC sued Bass Pro claiming that the retailer’s hiring practices discriminated on the basis of race and national origin. The Government also claimed that Bass Pro retaliated against employees who complained about the discrimination. According to the EEOC there were 50,000 victims of the alleged discrimination. The EEOC came up with this figure in an odd way. Because 50,000 African Americans and Hispanics unsuccessfully applied to Bass Pro over a ten-year period, the Government concluded that there must be 50,000 victims of discrimination. EEOC v. Bass Pro Outdoor World, LLC, --- F.3d ---, 2017 WL 1540853 at *1 (5th Cir.) (Jolly, Judge dissenting from the denial of en banc review). (The denial of en banc review was the result of a 7-7 tie in the Fifth Circuit’s voting.)

EEOC’S CONCILIATION EFFORTS Under Title VII, the EEOC must engage in conciliation of the dispute.

42 U.S.C. § 2000e-5(b). Here, the EEOC notified “Bass Pro that it had reasonable cause to believe that Bass Pro had engaged in discriminatory practices.” EEOC v. Bass Pro Outdoor World, LLC, 826 F.3d 791, 805 (5th Cir. 2016). The parties then engaged in an eleven-month-long process that involved face-to-face negotiations and negotiations by letter. Id. But the EEOC never identified any of the alleged 50,000 victims until after the mediation. Id. at 804 n. 74. And the EEOC only identified victims when pressed by the district court. EEOC v. Bass Pro Outdoor World, LLC, --- F.3d ---, 2017 WL 1540853 at *2 (Jolly, Judge dissenting from the denial of en banc review). Bass Pro argued that the EEOC had to identify the individuals and try to resolve the individual claims for the conciliation process to be effective. Id. The Fifth Circuit rejected this argument and held that the EEOC’s conciliation efforts satisfied its duty. Id. at 805. The court concluded that Bass Pro was on notice as to the claims against it. Id. And because § 706 permits pattern-and-practice claims, the EEOC’s failure to negotiate on behalf of individual victims was not a problem. Id. It was the Fifth Circuit’s holding on the pattern-and-practice claim that prompted the en banc vote.

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The Fifth Circuit’s initial opinion was decided by a three-judge panel. Bass Pro filed a motion for the case to be reheard en banc, i.e., by the full Fifth Circuit. Because the vote on the en banc petition was evenly divided, the Fifth Circuit denied the motion for a rehearing.

But six of the seven who favored rehearing filed a statement dissenting from the denial. The dissenters were only concerned about the holding that allowed the EEOC to pursue a “pattern-or-practice case under both or either § 706 or § 707 . . . to claim individualized punitive and compensatory damages for each of the 50,000 persons.” EEOC v. Bass Pro Outdoor World, LLC, --- F.3d ---, 2017 WL 1540853 at *1 (Jolly, Judge dissenting from the denial of en banc review).

CAN THE EEOC GO BOTH WAYS? In the movie The Wizard of Oz, Dorothy asks the Scarecrow for directions to the Emerald City. The brainless Scarecrow, after pointing first one way and then the other, says “of course, some folks do go both ways.” The Wizard of Oz, Metro-Goldwyn Mayer 1939.

And it’s allowing the EEOC to go both ways that concerned the six judges in their dissenting statement.

SECTIONS 706 AND 707 As the dissenters noted in their statement, “the notion that § 706 and § 707 are dichotomous with respect to suits brought by the EEOC is hardly a novel proposition.” EEOC v. Bass Pro Outdoor World, LLC, --- F.3d ---, 2017 WL 1540853 at *4 n. 9 (Jolly, Judge dissenting from the denial of en banc review). Under § 706, individuals can seek compensatory and punitive damages caused by defendants’ discriminatory conduct; the EEOC can bring this action as the representative of the alleged victims. But the statute’s language does not mention allowing a plaintiff to pursue a patternand-practice claim. On the other hand, § 707 explicitly authorizes such a claim. The Fifth Circuit’s holding allows the pattern-andpractice claims to be brought under § 706 too.

THIS CREATES PROBLEMS FOR EMPLOYERS Although the EEOC claimed there were 50,000 victims, it was never able to identify more than 200 individuals, and this was after three years! The Constitution’s Seventh Amendment gives every litigant the right to a jury trial. U.S. Const. Amend. VII. Will this subject Bass Pro to between 200 and 50,000 jury trials?

The Fifth Circuit’s answer is that a jury will be empaneled to decide the pattern-and-practice case. Then a second jury would be empaneled to decide the punitive-damages issue. EEOC v. Bass Pro Outdoor World, LLC, --- F.3d ---, 2017 WL 1540853 at *13-14 (Higginbotham, Judge responding to the dissent from the denial of en banc review). This is likely to increase the costs of these cases for employers. The Fifth Circuit’s response that the decision presents the parties with years of unmanageable litigation is “that the parties would settle their claims.”

EEOC v. Bass Pro Outdoor World, LLC, 826 F.3d 791 at 801.

This opinion gives the EEOC leverage in pursuing cases. The EEOC will now pick and choose from the § 706-§ 707 cafeteria. The EEOC will exercise this power to force employers to settle.

The district court denied this motion. The district court held that the EEOC could not have known about these applicants before it issued its letter of determination because they had not applied for jobs.

Therefore, the EEOC could not have conciliated these claims.

But after six years, Bass Pro and the EEOC reached a settlement agreement. According to reports, Bass Pro will pay $10.5 million to settle the case. The money will be used, in part, to compensate victims of the discrimination. In addition, Bass Pro will establish an office of diversity and inclusion. The director of this office will make sure that Bass Pro complies with the terms of the settlement agreement. The Fifth Circuit’s settlement rationale seems to have worked.

Finally, this case reveals a significant divide on the Fifth Circuit.

The dissenting statement was sharp and to the point. This prompted Judge Higginbotham, the author of the panel opinion, to respond to the dissenting statement. But this was not the end: Judge Edith Jones then issued her statement joined by two other judges that took Judge Higginbotham to task for defending the panel’s opinion. Very unusual!

SUBSEQUENT DEVELOPMENTS Apparently not satisfied with its 50,000 victims, the EEOC asked the district court to add as plaintiffs those individuals who applied for employment after the EEOC issued its letter of determination.

Dale Conder Jr., Attorney Rainey, Kizer, Bell & Reviere PLC dconder@raineykizer.com www.raineykizer.com

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43

The Business of Healthcare in Mississippi

T

By MURRAY L. HARBER and MATT GINN

he worlds of employer health and healthcare providers continue to move toward greater alignment and the two business perspectives are working to provide more value in care delivery and payment. Employers, insurance brokers and consultants, and plans will meet on the campus of Mississippi College for the 8th Annual Healthcare Summit on October 10th 2017 to hear the latest national trends in health-related employee benefits including health, pharmacy, along with adoption of value-based benefit and value-based care initiatives in Mississippi and across the USA. The summit is a collaboration between Mississippi College’s School of Business and the Mississippi Business Group on Health to discuss the cost, management, and planning of the business of healthcare and employer well-being.

NATIONAL TRENDS IN PHARMACY & HEALTH The day will begin with Dr. Bruce Sherman, Medical Director for Employers Health Coalition in Columbus, Ohio where he will discuss national trends in health and pharmacy benefits in employers and health plans. He will be followed by a presentation on understanding your pharmacy benefit program and ways to expand the value of this investment. Speciality Pharmacy has been a rising cost for several years as site of care costs, bio-similars, and added layers of margin are driving these increases.

During the day, employers, health plans, and health providers will share ideas and specific solutions that they are incorporating into their process to help improve the value of their investments into health and well-being. There will be a group of employers, healthcare executives, and medical professionals who will discuss research on population health, clinical integration, and alternate payment models. Also discussed during the day will be information on how wages affects healthcare and health plan utilization.

The Mississippi Business Group on Health will be sharing information about it’s Health Data Set and the ways it will help support and employer’s understanding of their health costs and identify areas for improvement by benchmarking with other Mississippi employers. Members of the MSBGH have access to members-only resources such as the Preferred Vendor List, “How to” Toolkits, and resources for healthy lifestyle, healthcare consumerism, condition management, and well-being.

OPIOIDS and EMPLOYERS The topic of Opioid abuse is a growing concern for employers, law enforcement, and healthcare providers. A panel will discuss the solutions that employers can do to provide policy, programs, and supportive resources for the various aspects of the Opioid epidemic.

Gaye Fortner, CEO of HC 21 will discuss how their coalition is working to provide education and how they have used their data warehouse to identify concerns which helped to reduce risk and improve outcomes.

MISSISSIPPI COLLABORATIONS The summit will offer Human Resource (SHRM), Insurance, and Healthcare Executive continuing education credits for those professions. Collaborative partners for the summit include the State Chapter of SHRM, Capitol Area SHRM, Mississippi Association of Self-Insurers, the Mississippi Association 44

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of Health Underwriters, and the Mississippi Association of Health Plans.

The aim is to have all perspectives of the system -- payers, plans, providers, and purchasers -- together to learn from experts, hear some success stories, and provide a venue for dialogue about ways to improve the system in Mississippi. We hope that you will join us for a day of learning and discussing ways to improve the business of healthcare in Mississippi.

To learn more about the 8th Annual Healthcare Summit including registration and sponsorship please visit the www.business.mc.edu or the events section at www.msbgh.org.

Murray L. Harber, Executive Director Mississippi Business Group on Health mharber@msbgh.org www.msbgh.org

Matt Ginn, Manager, Communication, Training and Health Promotion mginn@sfbli.com www.sfbli.com

DATE SAVE - the -

DATE

MSBGH & MC SCHOOL OF BUSINESS present the 8th Annual

HEALTHCARE SUMMIT HEALTHCARE SUMMIT MSBGH & MC SCHOOL OF BUSINESS present the 8th Annual

October 10, 2017 8:30 A.M. - 3:00 P.M.

Mississippi College Anderson Hall

October T H E B10,U2017 S I N E SMississippi S of H ECollege A LT H C A R E

8:30 A.M. - 3:00 P.M.

Anderson Hall

Cost, Management, & Planning The Mississippi Healthcare Reform Summit brings together national T H E B experts U S I Nand E key S Sstate of leaders H E A inL government T H C A R and E business to healthcare address the most pressing topics businesses face in managing healthcare programs and costs. Summit participants will hear directly from our state’s policy makers, medical leaders and corporate professionals on the leading The Mississippi Healthcare Summit brings together national system. edge of the changes Reform sweeping through our state’s healthcare healthcare experts and key state leaders in government and business to address the most pressing topics businesses face in managing healthcare programs and costs. Summit participants will hear directly from our state’s policy makers, medical leaders and corporate professionals on the leading edge of the changes sweeping through our state’s healthcare system.

Cost, Management, & Planning

W W W. B U S I N E S S . M C . E D U / H E A L T H - C A R E - S U M M I T www.HRProfessionalsMagazine.com

45

Will It or Won’t It? The EEOC Revised EEO-1 Report

on requests from several business associations based on poor validation, cost and time to implement and the Paper Reduction Act. So We Wait and See. Congress could act by cutting their budget to fund the implementation of the new EEO-1.

So We Wait and See. President Trump’s daughter, Ivanka, has publicly stated her interest in wage equality and childcare, so We Wait and See.

What is involved in the revised EEO-1? It is not good.

By TIM ORELLANO

On September 29, 2016, the Equal Employment Opportunity Commission (EEOC) announced the revised EEO-1 that is required by all employers with 100 or more employees and all federal contractors (50 or more employees) to file a revised EEO-1 that will collect summary employee pay data by March 30, 2018.

The revised EEO-1 is very controversial and has received major push back comments from SHRM, business, industry trade groups, consultants, law firms, the National Chamber of Commerce and many others that the revised EEO-1 is burdensome, will cost millions of dollars to implement and that the justification and cost estimates by EEOC was not valid.

On the other hand, civil rights groups have submitted comments that it is a way to uncover pay equity problems.

Under the prior white house administration, the EEOC’s five member board voted for the revision with the only dissenting vote by Victoria Lipnic who stated it was not the best way to address pay equity issues. President Trump has selected Janet Dhillon to serve as the next EEOC Chair and Commissioner.

Dhillon was the general counsel of Burlington Stores and spent 13 years at Skadden Arps Slate Meagher & Flom LLP President Trump will have the ability to appoint one more Republican Commissioner once Jenny Yang’s term expires in July. It would take another majority vote to pull back the revised EEO-1 for further assessment of the cost and benefit which is what Ms. Lipnic has publically stated she believes is necessary. Until the one board appointment is made So We Wait and See. The Office of Budget and Management (OMB) is currently evaluating the revised EEO-1 based 46

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On March 31, 2018, private employers, including federal contractors, with 100 or more employees must include summary compensation and hours-worked data in their annual EEO-1 report. Specifically, to report employees’ W-2 earnings and hours-worked data, broken down by gender, race, ethnicity, and by 12 pay bands in each of the 10 EEO job categories. If employees are exempt from overtime requirements and do not keep time records, then the employer may use 40 hours as a “proxy” (or 20 hours if an exempt employee is part-time). If exempt employees keep time records, the actual number of hours worked must be used. For nonexempt employees, the hours worked must reflect what actually appears in payroll records, including overtime hours.

Starting with the EEO-1 report of 2017 data, the "workforce snapshot period" will be October 1 to December 31, 2017. Each employer may choose any pay period during this three-month "workforce snapshot period" to count its full and part-time employees for the EEO-1 report. You will not file a 2017 EEO-1.

The W-2 pay would be reported in 12 “pay bands.” Employers would tally and report the number of employees whose W-2 pay for 12 months was in each pay band and for each EEO-1 job category by establishment. Of course, these pay band have nothing to do or is aligned with your compensation plan.

Here are the pay bands: (1) $19,239 and under; (2) $19,240 – $24,439; (3) $24,440 – $30,679; (4) $30,680 – $38,999; (5) $39,000 – $49,919; (6) $49,920 – $62,919; (7) $62,920 – $80,079; (8) $80,080 – $101,919; (9) $101,920 – $128,959; (10) $128,960 – $163,799; (11) $163,800 – $207,999; and (12) $208,000 and over.

Employers would tabulate and report the number of employees whose actual total W-2 earnings for the prior 12 months fell within each pay band. For example, an employer would report on the total W-2 earnings in the EEO-1 that it employs 25 African American men who are Craft Workers in the third pay band ($24,440-$30,679).

According to EEOC most employers’ existing HRIS and pay systems include W-2 earnings data elements and should be an easy task.

What!? Easy for them to say.

Now What: – Keep up to date with this issue. It could be late 2017 before we know anything definitively. Of course, I am monitoring this issue and will notify everyone as this issue progresses.

– Review your EEO job categories to ensure the job titles are properly classified in one of the ten EEO-1 job categories each position.

I see many inconsistencies in job title classifications and this will have a major impact in the compensation portion of the revised EEO-1. Also double check you industry code since it will be used to target industries and companies for OFCCP or EEOC discrimination investigation.

– Review compensation policies to ensure that a gender bias does not persist and self audit your pay. As you know, I prepare a compensation summary analyses with your AAP. Should you uncover pay that cannot be explained for job related reasons, then we can prepare a more detail pay equity analysis under attorney-client privilege.

– Discuss with IT or your payroll vendor what system changes and payroll software can be cross-referenced with HR records of employees’ race, ethnicity, and sex. If the two databases cannot work together, create a reporting plan with appropriate internal timetables.

– Conduct a test in August to determine how the data necessary to complete the new EEO 1 form so that the technology systems are able to gather and manipulate the pay data in the ways required by the new EEO-1 Report.

– Review the new form. Take an aspirin first.

Details about the Revised 2017 EEO-1 can be found here: https://www.eeoc.gov/ employers/eeo1survey/2017survey.cfm

– Wait and See whether to not move forward with any final system changes until guidance is provided from EEOC on what the filing timeline and specifications will be. The EEOC may offer an extension if the pay component will be required in 2018, which would afford organizations the necessary time to appropriately set up or calibrate their systems to provide the required pay data.

systems that are used to collect and track gender and race data may not be linked with the systems that track compensation and hours worked. March 2018 is only a few months away, which does not give you much time to confirm that systems will allow the collection and reporting of the required information or to make any necessary changes to those systems.

In summary:

During the 2017 National Industry Liaison Group annual conference, that I was privilege to speak at, Commissioner Lipnic acknowledged that “time is of the essence” and contractors and employers need to know soon what will be done with the report so they can start making investments and system changes necessary to comply. She reported that in response to a petition by the U.S Chamber, the Office of Management and Budget is re-evaluating the burden estimate associated with the revised EEO-1 report. In connection with its review, Commission Lipnic shared she has written to the newly appointed head of the Office of Information and Regulatory Affairs (OIRA), the office within the OMB tasked with review of the report, pointing out the impeding March 2018 reporting deadline, requesting OIRA have a response by the end

The revised EEO- 1 is force feeding aggregate employees into the same pay band and then falsely conducting statistical analysis assuming all the employees are similarly situated in pay bands that are not aligned with an employers pay system and will imply great disparities in pay by definition.

Can you say there will be many false positives? There are many other problems with this revised form that this alert is not intended to cover such as how it will be used, access by third parties, unsubstantiated audit investigations by EEOC and OFFCP; and high cost to employers to defend to name a few.

Completing the new EEO-1 Report will be a costly and time-consuming endeavor. HR

of month – before the Labor Day holiday. In Commissioner Lipnic’s words “I have done everything I can think of to do to get people to focus on this.”

There are many unknowns about what will happen. So what can you do?

I urge everyone to review the EEOC web site Revised 2017 EEO-1 web site, contact your congress man/woman and OMB to express the cost and time involved your concerns about the revised EEO-1 report. Let your voices be heard and don’t wait to test your data systems.

Tim Orellano, PHR, SHRM-CSP President The Human Resources Team timorellanohrteam@comcast.net www.thehumanresourcesteam.com

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47

RAISE Act: Is it Good Immigration Policy for Employers and America?

On

August 2, 2017, Senators Tom Cotton (R-Ark.) & David Perdue (R-GA) introduced Reforming American Immigration for a Strong Economy (RAISE) Act with the support of President Trump. Senator Perdue has

stated this legislation will return to the United States’ “historically normal levels of legal immigration.” Is the RAISE Act a good idea for the United States – from an employer’s perspective and a moral perspective?

Key Points of RAISE Act The following are the key points of the proposed RAISE Act: 1. Establish a Skills-Based Points System – It will replace the current employment-based green card visa process with a system that would prioritize applicants by points based on education, English-language ability, high-paying job offers, age, record of extraordinary achievement, and entrepreneurial initiative. Experience does not count for any points. Age is a crucial factor with the younger you are (not including a minor), the more points you get. The total quota of visas remains at 140,000 (this number would include spouses and children) per year for visas in EB-1, EB-2, EB-3 and EB-4 categories. Employment-based numbers are to be divided with a limit of 50% being available in each six-month period. Applicants who apply will remain in the eligibility pool for 12 months and then will have to reapply.

By BRUCE E. BUCHANAN

children. Additionally, the age for an adult “child” for immediate relative sponsorship will be changed from 21 to 18.

4. Reduce the number of family-based green cards – Total family-based green card numbers will be reduced from a base 226,000 to about 88,000. This number will likely use all the 88,000 numbers, meaning only immediate relatives, who are spouses and children under 18 of U.S. citizens, will be able to immigrate.

5. Grandfather in potential immigrants awaiting entry under immigration categories eliminated by RAISE Act if their entry into U.S. is scheduled to occur within 1 year of RAISE Act’s enactment. However, if one is “in line” and their number is not called within the one-year grandfathering clause, one permanently loses their place in line and may not ever be able to get back in line.

2. Cut Total Immigrant Visas – It will reduce the annual distribution of green cards from 1 million to about 500,000. Although the sponsors state this level of visas returns the number to historical levels, it treats the number of immigrants in 1900 as the same as the number of immigrants in 2017, even though the U.S. population quadrupled during that time. To understand historical levels, one must control for the population of the country at that time.

6. Parents of U.S. citizens – They will be eligible for a “W” non-immigrant visa for up to five years with the possibility of extending if the citizen child continues to reside in the US. Parents will not be eligible to be employed or eligible for any public benefits.

3. Change meaning of Immediate Family – It will retain immigration preferences for spouses and minor children of USCs and permanent residents (LPRs) while eliminating preferences for USCs petitioning for parents, adult children or siblings and LPRs petitioning for adult

7. Eliminate Diversity Visa Lottery – RAISE Act would eliminate the 50,000 visas allocated to this lottery.

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8. Cap refugee admissions at 50,000 per year – The INA set a limit of 50,000 in the early 1980s for three years, but since then, the INA has permitted the President to set the level, which until 2017 was significantly higher than 50,000.

How Does Skills-Based System Work Here’s how the skills-based points system works: a. Applicants earn points based on education, Englishlanguage ability, high-paying job offers, age, record of extraordinary achievement, and entrepreneurial initiative; b. Applicants must reach 30-point threshold to be eligible for employment-based visa; and c. Eligible applicants enter pool of potential immigrants from which USCIS twice a year invites highest scorers to file full applications and undergo security vetting.

Conclusion Although everyone agrees our immigration system is broken, the RAISE Act does not appear to be the tool to fix it. Instead, the RAISE Act would cause serious problems for employers seeking to hire foreign nationals through employment-based visas. Additionally, this bill is contrary to American values and those magical words on the Statute of Liberty - “Give me your tired, your poor, your huddled masses yearning to breathe free…”. Luckily, there is very little chance this legislation will ever become law.

“ Give me your tired, your poor, your huddled masses yearning to breathe free…”

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

The tie-breaking factors, in descending order are education (the higher the degree, the better), English skills, and age.

Employer Issues with RAISE Act

SISKIND SUSSER PC

Historically, the United States has valued the ability of companies to sponsor employees. So, would this legislation impact that ability of employers? Yes, because the perspective employee that an employer seeks may not have sufficient points to immigrate under the meritbased system. A points-based immigration system would take the decision of who counts as a qualified individual away from employers and give the government more influence.

Furthermore, the RAISE Act fails to increase the number of employment-based green cards at a time when our nation needs to do so to attract the “best and the brightest”. The RAISE Act is also harmful to graduates from U.S. universities and would remove lowerskilled immigrants from the U.S. immigration system, even though these immigrants contribute positively to the U.S. economy.

Tennessee’s Largest Business & Employment Immigration Practice

IMMIGRATION LAWYERS green cards business visas

Family-Based Visa Issues The United States has always valued the ability of families to sponsor family members. Often immigrants desire to sponsor their parents or adult children in order to keep the family unit together in the long term. This legislation would deny this ability to keep the family unit together permanently, which I think all would agree is contrary to our values. The Act's very narrow grandfather period is not enough and would unfairly penalize thousands of family-based immigrants who have been patiently waiting for years in a visa backlog.

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5 REASONS

Increased Collaboration Between Team Members Not only do employees that feel valued and appreciated want to do more in their work, they want to do more for their fellow employees. When empathy is demonstrated at the top, it is passed down throughout the organization resulting in an increase in teamwork, a decrease in staff conflict and a decrease in workplace disruption. This collaboration will result in better coordinated work effort and increased productivity

Empathy is Becoming the Number One Leadership Skill

By HARVEY DEUTSCHENDORF

“ Real empathy is sometimes not insisting that it is okay but acknowledging that it is not.” ~ Sheryl Sandberg ~

According to recent studies carried out by the Development Dimensions International, empathy is the biggest single leadership skill needed today. http://www. ddiworld.com/global-offices/united-states/press-room/what-is-the-1-leadershipskill-for-overall-success. In a global survey DDI discovered that the top ten performing businesses in the 160 studies the “Global Empathy Index” generated 50% more net income than the bottom ten performers. According to Richard S. Wellins, Ph.D., Senior Vice President of DDI, “Being able to listen and respond with empathy is overwhelmingly the one interaction skill that outshines all other skills.” Other research has backed up DDI findings. Dianne Crampton at Gonzaga University found that “Empathy is a universal team value that promotes high commitment and cooperation in the workplace. “ Becoming aware of the importance of their leaders developing empathy, companies are responding with sending their leaders to empathy training.” According to the Wall Street Journal 20% of employers now offer empathy training which is up substantially from ten years prior. https://www.wsj.com/articles/companies-try-a-new-strategyempathy-1466501403 Here are five Reasons that empathy is becoming the number one leadership skill:

Increased Employee Retention One of the struggles that every organization faces is retaining talented staff. One of the most common cited reasons for people leaving an organization is lack of trust in and appreciation from those they report to. Empathy increases trust, a sense that staff are valued and cared about. Whether in our personal relationships or part of an organization, we will be more likely to stay when we feel like we are heard, appreciated and cared about. Developing and use of more empathy by leaders goes a long ways towards effecting people to stay.

Increase in Staff Engagement Have you ever noticed that when someone close to you notices how you are feeling or tells you much they appreciate something you have done for them?

You automatically have the urge to do more for them. In terms of employee engagement, it is known that when leadership demonstrates to employees that they care, the reciprocity reaction kicks in and they want to put in more effort.

Somehow many organizations miss this basic, yet very important point when it comes to leadership behaviors. Successful organizations are aware of this and their leaders continuously look for ways to notice, compliment and look for ways to show their appreciation to their staff.

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Increase in Job Satisfaction and Decrease in Absenteeism Staff that feel witnessed, heard and appreciated feel more satisfied with their work and as a result miss fewer days on the job. As the level of job satisfaction decreases, so does the level absenteeism. Staff who feel less commitment to the organization will feel less motivated to come to work.

Their rational is that since nobody cares, so why should they. Increased absenteeism decreases morale as coworkers who have to pick up the slack become resentful. This can create a downward spiral in terms of employee morale and absenteeism rates.

Increase in Bringing Up New Ideas and Creativity People who perceive they are part of an organization and feel heard and appreciated, tend to risk more and look for ways to add increased value to the organization. They are more likely to put time and energies coming up with new ideas, processes and methods to improve their own work and move the organization forward. Their commitment to the organization makes them feel that their success and that of the organization are interrelated, boosting their desire to find new, better and more efficient ways of working.

Putting it All Together Increased empathy of management in any organization results in many benefits to the well-being, commitment and desire for staff to give their best. This is a win-win situation for all concerned as the final outcome is an increase in efficiency, productivity and success of an organization.

As rising numbers of studies come to this conclusion, businesses will increasingly come to realize that greater leader empathy is not some feel good, soft skill, but rather an essential tool that their leaders will need to keep their organization competitive and successful.

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

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