September 2018

Volume 8 : Issue 9

TM

www.HRProfessionalsMagazine.com

Who’s to Blame for Our

Race Relations Issues in the Workplace?

Is Employee Speech

Anniversary Issue Previews of SHRM Fall Conferences

CheriPresident Sale,

Savannah Area Chapter

Protected

by the 1st Amendment?

Love Agreements

in the Workplace

Unexpected

Loss of Income

Keeping up with changing laws is a full-time job, and you’ve already got one.

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

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You will receive 8.00 SHRM PDCs and 8.00 HRCI Business Credits for attending all of the sessions.

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Bringing Human Resources & Management Expertise to You

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of respondents admitted to having been involved in at least one office relationship. www.HRProfessionalsMagazine.com Editor

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

The Thompson HR Firm, LLC HR Consulting and Online HR Certification Classes Art Direction

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Contributing Writers

Austin Baker Bruce E. Buchanan William Carmichael Matthew R. Courtner J. Bruce Cross Harvey Deutschendorf Benjamin Dudek Kimberly Estep Brad Federman Allison A. Fish Tim K. Garrett Tammy D. McCutchen Karen W. Roche Cammie Scott Kara Spence Angelo Spinola James B. Taylor Theresa M. Waugh Sonya Weathers Linda H. Yates 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. ©2018 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.

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Features

Employment Law

5 note from the editor

10 SCOTUS Reverses Course on Compulsory Union Dues for Public Employees

6 Profile: Cheri Sale, President Savannah Area SHRM

14 Who’s to Blame for our Race Relations Issues in the Workplace?

Us. 16 How HR Can Protect Their Organizations from Unsafe Company Drivers

43 Book Look - Grow Wherever You Work by Joanna Barsh 48 Power of Positive Persuasion

50 7 Reasons to Hire People with Development Disabilities

Educational Opportunities for HR Professionals 7 Legal Training for Non-Lawyers: the Emory Juris Master Degree

11 Leveling Up Through CompetencyBased Education

19 University of Memphis Fogelman College Department of Management 39 Athens State University Human Resource Management (SHRM-Aligned Program)

50 Online SHRM Certification Exam Prep Class Begins October 22

Employee Benefits 24 Adapting Your Benefits Strategy for the Millennial Workforce

26 Loss of Income – Are You Protected?

27 McGriff Insurance Services: Employee Benefits Consulting, Property & Casualty, and Business Insurance 32 Dealing with the “Omarosas” in Your Organization – Insurance Coverage for Terminated Employees

17 Wimberly Lawson 2018 Labor & Employment Law Update Conference in Knoxille November 1-2 20 South Carolina’s New Expungement Law Could Increase Applicant Pool

22 Communication is Critical When Managing Leaves of Absence

28 Nail in the Coffin: DOL Officially Rescinds the 2016 Persuader Rule 34 A Legal Perspective on Hiring Applicants with a Criminal Record 38 Is Employee Speech Protected by the First Amendment?

42 “Love Contracts” as a Tool for Addressing Workplace Relationships

44 Trump Administration DOL Issues First Substantive Guidance on Independent Contractors 45 A Littler Event, Thursday, September 20, 2018 in Memphis – Update on the NLRB’s Changing Views on Handbook Policies and Other NLRB Developments Under the Trump Administration

46 ICE Delivers over 2700 I-9 Audit Notices in One Week in July 2018

Industry News 8 Preview of 2018 SHRMGA Conference in Savannah September 5-7

18 Preview of 2018 Tennessee SHRM Conference & Exposition in Sevierville September 19-21 30 Preview of 2018 ARSHRM Employment Law & Legislative Conference in Little Rock September 20-21

40 Preview of 2018 ALSHRM Strategy in the Sand Conference in Orange Beach September 28 October 2018 Issue Features Profiles of Chambers and Partners Top Labor and Employment Law Attorneys and Employment Law and Employee Benefits Updates Deadline to reserve space September 15

note from the editor

Cynthia with Dr. Trish Holliday, Assistant Commissioner and Chief Learning Officer for the State of Tennessee. Dr. Holliday was the speaker at the annual joint meeting of SHRMMemphis and ATD on August 14. Her topic was “Transforming Learning and Performance."

WOW! We are celebrating seven exciting years at HR Professionals Magazine this month. Hat’s off to our sponsors, contributors, and you for making these past seven years so successful! We are honored to be the official media sponsor for the SHRM State Conferences in Alabama, Arkansas, Georgia, Kentucky, Mississippi, and Tennessee. It is a pleasure working with the SHRM State Councils and the SHRM volunteers in our distribution footprint. I also want to say a huge thank you to the extraordinary SHRM Public Affairs team who graciously works with us to bring you highlights of the SHRM Employment Law and Legislative Conference in March, the SHRM Talent Conference in April, and the Annual SHRM Conference in June each year.

We will begin year eight in Savannah at the 2018 SHRMGA Conference September 5-7. I hope you enjoy reading about Cheri Sale, President of the Savannah Area Chapter, who is on our September cover. The 2018 Tennessee SHRM Conference & Exposition will follow September 19-21 in beautiful Sevierville. The 2018 ARSHRM Employment Law and Legislative Conference will be September 20-21 in Little Rock. Our last

SHRM conference will be the ALSHRM Strategy in the Sand Conference at Orange Beach September 28. What a fantastic ending to a wonderful year of fabulous SHRM conferences. We will also be covering the Excellence Through Leadership Conference in LaGrange, GA October 18-19 at the Great Wolf Lodge. You can earn 8.00 HRCI business credits and 8.00 SHRM PDCs at this excellent conference. On November 1-2 we will be at the Wimberly Lawson 2018 Labor & Employment Law Conference in Knoxville. We will end the 2018 SHRM Conference season in Jackson, TN at the WTSHRM Annual Fall Human Resources & Employment Law Conference on November 7. Be sure to follow us on Twitter @ cythomps, on LinkedIn and on Facebook. Watch for your notifications about our Facebook Live interviews from each of these conferences!

Our next Online SHRM Certification Exam Prep Class will begin October 22. The last day to register is October 15. Just a reminder about our complimentary monthly webinar sponsored by Data Facts. Mark your calendar, and plan to join us on Tuesday, September 25. We are continuing our theme of strategic HR leadership. Watch your email for your invitation!

cynthia@hrprosmagazine.com cythomps@twitter

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Cheri on the cover

SALE

CHERI SALE, SHRM-SCP, SPHR President, Savannah Area Chapter of SHRM Cheri graduated with honors from the Defense Language Institute of Monterey, CA, and is proficient in the Portuguese language. She also attended The College of William and Mary where she studied business administration and management.

Cheri is also a certified Paralegal.

Cheri has been a SHRM volunteer for the past 18 years for the Savannah Area Chapter of SHRM. She is currently serving as President. She previously services as Treasurer, Board member, and Vice President of Marketing and External Relations. Cheri is a SHRM Senior Certified Professional and is certified as a Senior Human Resource Professional by the Human Resource Certification Institution. She is a member of the SHRM Advocacy Team and has lobbied on Capitol Hill on employment law matters. Cheri has also organized conferences and many training events.

Cheri’s career path was mostly influenced by demographics. Born in Germany, she grew up in many countries throughout the world such as Turkey, Ethiopia, Italy, Greece, Portugal and Brazil. She served as a translator and interpreter for the Counsel General at the American Embassy in Lisbon, Portugal for the State Department and some of her businesses have included a boutique in Elvas, Portugal, a marketing venture with DBC Limitada in Rio de Janeiro, Brazil. and a property-management company in South Florida. Prior to moving to Georgia, she was an occasional instructor for paralegals at the Legal Institute in Ft. Lauderdale and was a weekly panelist on a radio talk show in the South Florida market.

Cheri’s introduction to the Human Resources discipline started by having served as the corporate HR manager for TICO, a Savannah-based, multi-state logistic solutions company for twelve plus years.

During her tenure with TICO, Sale felt privileged to have had a mentor in the HR arena. She credits Thor Egede-Nissen, a former HR executive for Great Dane, for cultivating a passion for human resources and introducing her to SHRM. From that moment on, she has been a SHRM member, a legacy-certified senior professional who obtained her SHRM-SCP in the first weeks it was available. Cheri took full advantage of all the benefits of her SHRM membership to launch into a successful HR career. She often relays to her peers that her favorite benefit is the SHRM Knowledge Center. “It has been so helpful to have a sounding board for navigating difficult situations, not to mention that you have access to tools, templates and research so that you always have the most current effective practices.”

Having transitioned from private industry to working in county government in human resources, Cheri currently uses her volunteer leadership position to share and mentor her fellow HR professionals through the activities that SHRM provides. 

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Legal Training for Non-Lawyers: the Emory Juris Master Degree Today’s professionals face growing regulation, intensifying risk and liability concerns, and increasingly complex decision environments. If you are a professional interested in gaining a better grounding in law and regulation to advance your career, Emory Law’s juris master offers the insight and flexibility to help you achieve your goals. This 30-credit-hour master's program can be completed either on-campus (full-time or part-time) or online.

What Our Graduates Are Saying Our students leave our program ready to apply their knowledge in their field of work. Betsy Hames, chief human resources officer, Duke University School of Medicine, and a 2014 JM graduate, says, “My professors challenged my thinking and fostered analytical skill development and sound decision-making. One of the most relevant courses I took was Employment Discrimination, which heightened my ability to look at creative options and minimize organizational risks. With a greater understanding and appreciation for seeing situations from a different perspective, the JM program enhanced the contributions I can make as an experienced HR professional.”

education and healthcare. The Juris Master degree from Emory Law is an exciting opportunity to develop those skills, while remaining on a complementary career path.”

On-Campus and Online Formats Available The campus-based format offers the broadest flexibility of course offerings, with the option to customize the program to your specific interests. It can be completed full-time in nine months or part-time in up to four years.

Courses are offered throughout the day, including limited late afternoon, evening, and summer options.

For students interested in learning about health care law or business law, Emory Law offers 18-month, online courses of study in Health Care Law, Policy and Regulation; and in Business Law and Regulation. The online program is comprised of 10 sequential 7-week asynchronous courses, with 3 three-day residencies.

You can build a curriculum that meets your educational goals, exploring a range of legal topics, such as business law and regulation, child and family law, employment law, environmental and natural resources law, health care law, policy, and regulation; intellectual property law, international business law, and nonprofit and development law.

Exemplary Scholars & Teaching

What Employers Are Saying Employers know the value of legal training for their employees in complementary fields. Steve Sencer, Senior Vice President and General Counsel and Senior Advisor to the President, Emory University, describes the benefits of the JM: “The ability to think analytically, be comfortable with legal concepts, and engage thoughtfully with counsel is an increasingly important advantage, especially in highly regulated industries like higher

More than 60 full-time faculty—expert scholars and talented practitioners alike—along with an accomplished cadre of adjunct faculty, teach at Emory Law. They not only teach you the law, they are also at the forefront of legal scholarship.

For more information about the program, contact Admission Advisor Farah Dharamshi at jmadmission@emory.edu or 404.727.0598.

Put the Law to Work for Your Career Legal Training for HR Professionals Online and On-Campus Options

“The juris master degree helps me navigate the technical aspects of compensation regulations with greater expertise.”

Thomas George Director, Employee Relations Emory University 2015 JM Graduate

Gain the legal knowledge and skills to navigate complex regulatory environments, make informed decisions, assess risk, and advance your career.

Now Online: Complete the online program in 18 months with three short residencies in one of two concentrations: Health Care Law, Policy, and Regulation or Business Law and Regulation On Campus: Complete the on-campus program with a wide range of concentrations, including employment law, full time in 9 months or part-time in up to 4 years Scholarship: Financial aid and 15% Founder’s scholarship available for SHRM-Atlanta members

Learn more at law.emory.edu/jm | Email us at JMadmission@emory.edu

HR Professionals Half-H.indd 1

6/5/18 3:09 PM7 www.HRProfessionalsMagazine.com

Featuring Opening Session Keynote on s t r e b o R e n n a Je Featuring Final Session Keynote nd a l e p o C e e m i A 8

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25th Georgia Safety, Health & Environmental Conference https://www.georgiaconference.org/

2018 SHRMGA Conference-at-a-Glance

Tuesday, September 4, 2018 Tuesday, September 4, 2018 11:00 – 6:00 11:00 – 6:00 Wednesday, September 5, 2018 Wednesday, September 5, 2018 7:00 – 4:30 7:00 – 4:30 8:00 – 9:30 8:00 – 9:30 Session 1 Session 1 9:30 – 10:15 9:30 – 10:15 Ballroom E Ballroom E

10:30 – 11:30 10:30 – 11:30 Session 2 Session 2

11:45 – 1:15 11:45 – 1:15 1:30 – 2:15 1:30 – 2:15 2:30 – 3:30 2:30 – 3:30 Session 3 Session 3

Recording Recording Occupational Injuries Occupational Injuries & Illnesses & Illnesses

Stefanie Corbitt

Stefanie Corbitt SSI OSHA Company SSI OSHA Company

4:00 – 5:00 4:00 – 5:00 Session 4 Session 4

Registration Registration Kids’ Chance Auction Opens at 7:00AM Kids’ Chance Auction Opens at 7:00AM General Session: Opening Keynote Speaker Jeanne Robertson (Savannah Ballroom AB) General Session: Opening Keynote Speaker Jeanne Robertson (Savannah Ballroom AB) Exhibit Hall (No Sessions) Exhibit Hall (No Sessions) Ballroom D Forsyth Johnson Oglethorpe A/B Franklin Ballroom D Forsyth Johnson Oglethorpe A/B Franklin Risk and Reality: Are you ready for Workplace GHS & HazComm, Employment testing Risk and Reality: Arenext you promotion: ready for Workplace GHSGame, & HazComm, Employment Trends in the Investigations The can you your What Couldtesting Go Trends in the next promotion: Investigations The Game, What Could Go Workforce We Succession Planning Pass?can you your Wrong?

Workforce We Succession Planning Pass?

Wrong?

Should be Preparing for yourself?

George Reeves Should be Preparing for yourself? for: Aging and George Reeves Fisher Phillips Greg Duncan Jim Briggs for: Aging and Demographic Shifts Fisher Phillips Greg Duncan Jim Briggs David Harper Velocity EHS Advanced Ergonomics Demographic Shifts David Harper Velocity EHS The Advisory Alliance Advanced Ergonomics Melissa Black The Advisory Alliance Melissa Black MsRE.org., LLC

Pulaski Pulaski Opioids and WC Opioids and WC #CleanUpTheMess #CleanUpTheMess Mark Pew

Mark Pew Preferred Medical Preferred Medical

MsRE.org., LLC

Safety Policies that Safety that ProtectPolicies Employees Protect Employees and Employers and Employers Crystal McElrath Crystal SwiftMcElrath Currie

Safe4 Culture Safe4 Culture Changer Program Changer Program

Telemedics and Telemedics and Medical Treatment Medical Treatment

Selling safety to the Selling safety to the front-line employee front-line employee

Dr. Stephen Dawkins Dr. Stephen CaduceusDawkins USA

Patrick J. Karol Patrick J. Karol Karol Safety

Swift Currie

3:30 – 4:00 3:30 – 4:00

Early Registration Early Registration Exhibitor Setup Exhibitor Setup

Caduceus USA

Dale Lesinski Dale DiValLesinski Safety DiVal Safety

Karol Safety Consulting Consulting

Jerks: How to Lead, Jerks: How to Lead, Manage and ManageThem and Navigate Navigate Them Linda Yates Linda+ Yates Coaching Consulting

Machine Guarding Machine Guarding Hazards in Hazards in Manufacturing Manufacturing

How to avoid being How to avoid the next #mebeing too the workplace next #me too workplace Jonathan Martin Jonathan Martin Constangy, Brooks,

Important Cost Important Cost Containment Containment Methods for Claims Methods for Claims

Training the Next Training the with Next Generation Generation with New Technology New Technology

Doug Brown Doug Swift Brown Currie

Gene Keserica Gene Keserica United CoLab

Swift Currie

United CoLab

Health at Hand: On Health at Hand: On site solutions within site solutions a budgetwithin a budget Katie O'Neill & Katie O'Neill & Melissa Tucker Melissa Tucker USI Insurance USI Insurance

Reynolds Reynolds Asbestos Sample Asbestos Sample Requirements!

And Requirements!

Lead? And Lead?

Georgia 529 Plan Georgia 529 Plan College Savings Plan College Savings Plan

Adult Lead Adult Lead Exposure Exposure

Mitch Seabaugh

Christy Kuriatnyk Christy GA DeptKuriatnyk of Public

Mitch Seabaugh GA Student Finance GA Student Finance Commission Commission

Is Gossip a Form of Is Gossip a Form of Workplace Workplace Violence?

Violence?

Purpose + Passion = Purpose + Passion Profit: Finding the= Profit:to Finding the formula engage and formula to engagewith and align employees align with youremployees organizations your organizations mission and vision mission and vision

Peter Vajda

True Peter North Vajda Partnering True North Partnering

Acoustic Entertainment Atrium Lounge (Sponsored by Synergy Equipment) Acoustic Entertainment Atrium Lounge (Sponsored by Synergy Equipment) Evening Activity (Savannah Ballroom AB) Velcro Pygmies (Sponsored by Worklete) Evening Activity (Savannah Ballroom AB) Velcro Pygmies (Sponsored by Worklete)

Tom Laubenthal

TomEnvironmental Laubenthal The The Environmental Institute Institute

Institute Success

Thomas Dean

Dean GAThomas Tech Enterprises Coaching + Consulting Group Augusta University GA Tech Enterprises Pye Barker Group Afternoon Break (Sponsored by Alternative Construction and Environmental Solutions Inc.) Afternoon Break (Sponsored by Alternative Construction and Environmental Solutions Inc.)

Constangy, Brooks, Smith & Prophete Smith & Prophete

5:00-7:00 5:00-7:00 7:30 – 10:30 7:30 – 10:30

Lunch and Awards Ceremony (Savannah Ballroom AB) Lunch and Awards Ceremony (Savannah Ballroom AB) Exhibit Hall (No Sessions) Exhibit Hall (No Sessions) Fire Protection LEGAL- what to Managing and Fire Protection LEGALwhat to Managing and inspection are you know Leading a Multiinspection areyou you know Leading a Multigetting what Generational getting what you Generational pay for?

Brent Hanson Workforce Hanson pay for?

Workforce SNFBrent Holding Company Melissa Furman Jason DeMent SNF Holding Company MelissaUniversity Furman Jason DeMent Augusta Pye Barker

Chatham Chatham How to How to Confidentially Confidentially Motivate and Motivate Manageand Manage at all Professionals Professionals Levels at all HarveyLevels Smith, CEO Harvey Smith, CEO Institute Success

Kevin McGee Kevin McGee

GA Dept of Public Health Health

Georgia Tech-OSHAGeorgia Tech-OSHADept of Public Health Dept of Public Health Alliance - Onsite Alliance - Onsite Consultation Consultation Program Program Hilarie Warren

Hilarie Warren Georgia Tech Georgia Tech

Thursday, September 6, 2018 7:00 – 8:00 Session 5

Early Riser Session:

Registration Kids' Chance Auction Opens

8:00 – 8:30

8:30 – 9:30 Session 6

Exhibit Hall Open & Continental Breakfast (Sponsored By: Specialty Clinics of Gainesville and Chatham Orthopedic Associates) Ballroom E

Pulaski

Ballroom D

Forsyth

Johnson

Oglethorpe A/B

Franklin

Chatham

Reynolds

The WOW! Workplace

Pushing Through the Plateau: Taking Your Safety Program to the Next Level Mark Pergrem

Igniting Inclusion Through Strengths John Gregory Vincent

Are you prepared for an OSHA inspection Dan Cocoran

Establishing and maintaining successful fatigue management Korrie Mapp

Recent EEO Trends

Unlocking value – shifting perspectives on engagement, EHS and Operational Performance

Opioids and the Workplace: Legal and Psychological Perspectives Michael Elkon, J.D. Andrea Elkton, Ph.D

Internal vs. External EH&S: Considerations for Using Partners to Drive Greater Value

The Intersection Between Safety and Claims

The anatomy of an injury

10 Mistakes in an Employee Handbook

Understanding EPA, Audit Volunteer Disclosures

Steve Heinen

Task Group International

Building a Culture of Change Agility to Improve Employee Engagement

Brad Adler

Kevin D. Smith

Mike Byam Terryberry

SAFEmap

9:45 – 10:45 Session 7

Pritchard and Jerden

Dr. Mark Vettraino

Performance Management Solutions

Combustible Dust Courtney Turner

Process Risk Solutions

Jim Allen EEOC

Mapp Consulting

Building a Comprehensive EH&S Program from Scratch – A Case Study

John Barnard

Aaron Uddin Technology: Creating Habits that Engage and Transform

Andrew Elliott Worklete

Part 1 Leadership Lens: A photographer’s perspective on the art of leadership David Huff Peak One Group

USI Insurance

Freeman, Mathis and Gary, LLP

Mark Liffers

Triumvirate Environmental

Environmental Resources

Exhibit Hall – Visit Exhibitors (No Sessions) Kids' Chance Silent Auction

11:45 – 1:00 Session 8

Lunch Speaker:

1:15 – 2:00 How a Company Uses Exercise to Achieve Best-Practice Injury Prevention Alexi Carli (UPS)

Jon Kabance

Innovate HR!

OSHA Update

Dr. Tina Woodard

Ed Foulke

Capstone Performance

Fisher Phillips

Kurt Petermeyer OSHA

(BIOKINETIX)

3:15 – 3:45

Dethra Giles (Savannah Ballroom AB)

Exhibit Hall – Visit Exhibitors (No Sessions) Kids' Chance Silent Auction Opioid addiction Engaging Employees Immigration epidemic- Impact on in Moving the Legislation Updates Employer and Business Forward Workers Laurie McIntosh SHRM National Chuck Yorke Donna Heidel

DOT Updates

Asbestos NESHAP Enforcement in Georgia

Bruce Bugg

ABF Freight System

Pamela Storm

Consultant

Bureau Veritas

US EPA

Afternoon Break (Sponsored by Innovative Healthcare Corporation) Don't drop the ball on Safety

3:30 – 4:30 Session 10

Columbia Southern University

Julie Harrison

10:45 – 11:30

2:15 – 3:15 Session 9

Dr. Spencer M. Wheeler, Chatham Orthopedics Association (Oglethorpe A/B)

Shoulder and Knee Injuries in the Workplace

7:00 – 4:30

Donna Renee Robitaille

Rite Way Service/ Diversified

The impact of Health and Wellness on Workplace Safety Don Doster goPivot

Developing Safety Managers into Corp Leaders Ed Foulke

CSA and how to use

Workplace Investigations

Jon Swierenga

George Reeves

Thomas Concrete

Fisher Phillips

Flexible WorkplaceStrategy to Manage and Support the Business

Igniting Inclusion Through Strengths John Gregory Vincent

Creating a Sustainable "U" Byron Harris

Fisher Phillips

Jeff Luttrell SHRM MAC

Performance Management Solutions

Columbus State University

Oglethorpe A/B

Franklin

Chatham

Reynolds

Friday, September 7, 2018 Ballroom E

Pulaski

Ballroom D

Forsyth

7:00 7:00 – 8:00 Session 11

Early Riser Session: Workplace Violence

8:00 – 9:00 Session 12

Don Standridge & Donald Caylor

Mohawk Industries

You Can't Bubble Wrap the World Danny Smith SafeStart

Foot and Ankle Injuries in the Workplace

Part II Leadership Lens: A photographer’s perspective on the art of leadership David Huff

Peak One Group

9:00 – 9:30

9:30 – 10:30 Session 13

Dr. Gary Davis, III, Specialty Clinics of GA Orthopedics – (Oglethorpe A/B)

What are your employees doing when you are not watching?

Reducing mobile equipment and pedestrian injuries

Ed Davis

Georgia-Pacific

USI Insurance

Kirk Mahan

A New Era of HR Compliance: What You Need to Know Brian Holladay Martensen, Hasbrouck and Simon, LLC

Politically Correct: Can You Keep Politics Out of the Workplace?

EPA Voluntary Discussion Marv Richardson

Sally Roberts

ERM

How to Use Business Modeling to Increase HR Business Acumen

Human Resources in Regulatory Agencies

Curtis Woody

Dan Roach GA EPD

Morris Communications

Break & Last Exhibitor Time (No Sessions) (Sponsored by BIOKENETIC) Legislative and Regulatory Affairs in the Employment Law World Sarah Lamar HunterMaclean

10:45 – 12:15 Session 14

Johnson Exhibit Hall – OPENS

Why Safety Makes Cents - Selling the Business Value of Safety Matt Thompson TSG Safety

Be a Hero: Save money and cut costs in WC claims

Engaging Through Peak Performance

Jim Anderson

Dub Taylor Consulting

Drew, Eckl & Farnham

Dub Taylor

Work Comp vs Recordable Injuries

Money in Motion

Christina Roll

CNA Insurance

Chubb Insurance

Mega Session – Closing Speaker:

Aimee Copeland

Bob Cauthen

The Triant Group

(Savannah Ballroom AB)

www.HRProfessionalsMagazine.com

9

SCOTUS Reverses Course on Compulsory Union Dues for Public Employees

By JAMES B. TAYLOR

On

June 27, 2018, the United States Supreme Court issued its landmark decision regarding state laws that require public employees to pay certain compulsory union dues. See Janus v. Am. Fed’n of State, Cty., and Mun. Employees, Council 31, 138 S. Ct. 2448 (2018).

The Janus decision represents an about-face in terms of Supreme Court precedent as it overrules a previous ruling by the Supreme Court in the case of Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977). The Abood decision established a framework that would require all public sector employees in a bargaining unit to pay certain union dues, even where an individual employee disagreed with or did not support the union.

The primary question before the Supreme Court in Janus was whether the Abood framework requiring compulsory union dues for public employees was proper under the US Constitution.

The Abood Precedent

Since 1935, the National Labor Relations Act (“NLRA”) has governed labor unions and their relationship with the workers they represent. However, the NLRA does not apply to employees working for federal, state, or local governments or to unions representing public employees. Instead, unions representing public employees are governed by the laws of the individual states. By the time that the Abood case came before the Supreme Court (1977), many states had laws allowing “agency shop” agreements with public sector unions that required that all employees in the bargaining unit pay compulsory union dues, even where an individual employee did not support the union or its political goals. The goal of such agreements, and the state laws which upheld them, was generally to avoid the “free rider” economic scenario which posits that, given a choice of whether to financially support a union or not, employees will choose to not contribute to the union while simultaneously reaping the benefits of the union’s efforts. It was also believed that agency shop requirements furthered the goal of “labor peace” between employees, employers, and unions. Thus, the purpose of requiring the payment of compulsory union dues in an agency shop agreement is to bypass the “free rider” problem and promote “labor peace” by requiring all employees in the bargaining unit to contribute to the union as a condition of employment.

While agency shop agreements uphold the collective interest in unionization by minimizing the “free rider” scenario and labor unrest, they do not do much to protect the individual member’s interest in free expression. All unions, including those in the public sector, are political beings and have distinct political stances and ideals. Public sector unions, in particular, are often quite politically active, using 10

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their members’ contributions as a means to advocate for themselves and their members in various political fora. Invariably, however, there will be a public employee in the bargaining unit who disagrees with or does not support the union’s political goals. For this employee, the legal requirement that he or she must pay funds toward a political goal undertaken by the union that he or she disagrees with appears to violate the First Amendment of the US Constitution, which forbids the government from “abridging the (employee’s) freedom of speech” or infringing on the employee’s right to freely associate. By virtue of the agency shop agreement, the disagreeing employee is effectively compelled to support and associate themselves with political views that he or she may not support.

This crux between the collective benefits of compulsory union dues and the resulting individual detriment to free expression came before the US Supreme Court in the Abood decision. There, a Michigan public school teacher challenged a Michigan law that required the payment of union dues by all members of the bargaining unit to the public sector union. The teacher argued that the forced payment of union dues violated his First Amendment rights by requiring him to financially support political goals with which he disagreed.

In its opinion, the Supreme Court recognized the danger that agency shop agreements carried with respect to the infringement of the individual members’ rights, noting that “[t]o compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests.” Abood, 431 U.S. at 222. In order to find a way to balance the individual members’ First Amendment rights with the collective interest in promoting “labor peace” and avoiding the “free rider” scenario, the Abood court drew a line between the “collective bargaining” efforts of a union and the “ideological activities” of the union. As a result, the court held that, via agency shop agreements, states could lawfully require the payment of union dues to fund collective bargaining, contract administration and grievance adjustment efforts from all members of the bargaining unit.

With regard to funds for use in the pursuit of the union’s political or ideological goals, the court held that these funds could only be collected from those employees who were members of the union who had volunteered to contribute toward such goals.

As a result of the Abood decision, public sector union dues were split into two categories: those that are “chargeable” (funds used for collective bargaining efforts, to which all employees must contribute) and those that are “nonchargeable” (funds used for political or ideological efforts, which must be voluntarily collected from union members).

The Supreme Court Reverses Abood in the Janus Decision

Despite numerous challenges, the Abood decision remained Supreme Court precedent regarding public sector employees for 41 years. However, the Abood precedent was dramatically overruled in a 5-4 decision by the Supreme Court in Janus v. Am. Fed’n of State, Cty., and Mun. Employees, Council 31, 138 S. Ct. 2448 (2018). The Janus case initially began as an effort by Illinois Governor, Bruce Rauner, to oppose agency shop agreements and related policies in Illinois. However, due to the Governor’s lack of standing to bring the case, Mark Janus, an Illinois child support specialist, was substituted as the plaintiff. The plaintiff claimed that he did not support the union’s political goals and contended that “nonmember fee deductions are coerced political speech” and that “the First Amendment forbids coercing any money from the nonmembers.” See Janus, 138 S. Ct. at 2462.

In reviewing the plaintiff’s argument, the Supreme Court in Janus examined the then-existing precedent in Abood. The Janus court found that the Abood framework was “questionable on several grounds.” See Id. at 2463. The Janus court noted that the First Amendment to the US Constitution encompasses “both the right to speak freely and the right to refrain from speaking at all” and that “[c]ompelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command.” See Id. With regard to compulsory union dues, the Supreme Court specifically found that “[c]ompelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns.” See Id. In looking at the effectiveness of the agency shop agreement scenario permitted by the Abood decision, the Janus court focused on the fact that unions have continued to exist and freely operate in many states and contexts where compulsory union dues are not allowed. Thus, the Supreme Court found that the risks imposed upon employees’ constitutional rights by

agency shop agreements are not outweighed by a resulting increase in union effectiveness or by a higher level of “labor peace.” Further, the Janus court rejected the “free rider” argument in holding that a union member forced to contribute to political causes that he does not personally support is “not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.” See Janus, 138 S. Ct. at 2466. Viewed in this light, the Janus court found that the “free rider” argument in favor of the agency shop agreement framework was not a compelling basis to require that public employees pay compulsory union dues.

In sum, the majority decision in Janus concluded that agency shop agreements for public sector employees violate the individual members’ constitutional rights and cannot be upheld. In reaching this conclusion, the Janus court specifically overruled Abood and its “chargeable”/“nonchargeable” union dues framework. While the Janus decision only affects employees and unions in the public sector context, it also serves as a milestone in what appears to be a trend of limiting the power of labor unions at the Supreme Court level. Certainly, the Janus decision and its rejection of agency shop agreements will impact the efforts of unions to establish and consolidate their presence in the public sector workforce in the United States.

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

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Leveling Up Through Competency-Based Education: 3 Reasons Why It Is a Win-Win for Companies and Employees

By DR. KIMBERLY ESTEP

A

lthough many adult learners opt for traditional brickand-mortar schools – typically relying on night and weekend classes to complete bachelor’s and master’s degrees – a growing number of students

and their employers are finding a better fit with online, competencybased degree programs.

Competency-based education (CBE) is a skill-driven learning model that allows students to earn degrees whenever and wherever they want. It is well suited for placebound and pace-bound learners – students whose busy lifestyles make the constraints of traditional, brick-and-mortar education problematic or impossible.

Aside from the obvious convenience and flexibility CBE affords students, the model also offers significant benefits for employers of those students.

Work-based Learning Yields Better Results CBE programs work best when employers play a role in designing the curriculum to help meet their real-life workforce needs.

WGU, for instance, works closely with industry leaders in Tennessee and nationally to align its curriculum with their needs, which produces stronger work-ready graduates.

We know that employers value CBE and the graduates that benefit from knowledge and skills that directly align with their jobs. A 2017 Harris Poll Online shows that 89 percent of our graduates are employed in their degree fields and 98 percent of employers say they meet or exceed expectations.

Employers, Employees Both Save Money WGU Tennessee, where I serve as chancellor, uses CBE for all of its degree programs, and incentivizes students to finish degrees quicker by charging a flat-rate tuition. The self-paced, “all-you-can-learn” model means that students can take as many courses per six-month term as possible, often saving them time and money by condensing their degree programs.

Likewise, employers who offer tuition reimbursement can stretch dollars further through CBE programs that are inherently more affordable due to their online delivery and more efficient because time to graduation is significantly less than at traditional colleges.

Productivity Stays High The flexibility offered through online, CBE programs is important for adult learners who are juggling careers, families and community involvement. They can study and take assessments 24/7, whether it is at a child’s soccer game, on their lunch break or late at night.

Employers, therefore, do not have to worry about a drop in productivity as a result of time constraints that come with attending brick-and-mortar schools, such as commutes or leaving early for classes or to meet professors during office hours.

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Dr. Kimberly K. Estep is chancellor of WGU Tennessee – a nonprofit, online university offering more than 60 bachelor’s and master’s degrees in teaching, business, information technology, and healthcare. Established by Gov. Haslam and the Tennessee Legislature in 2013, it is the state affiliate of Western Governors University – a leading provider of CBE education at scale –and has grown to 4,100 students and nearly 3,000 graduates across the state. Learn more at tennessee.wgu.edu.

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Who’s To Blame for Our Race Relations Issues in the Workplace? :::::::::::::::::::::

By BRAD FEDERMAN

Us.

Whites will be in the minority by the year 2045, according to the Census. We still have 27 more years before this happens, so why focus on that issue now? Because the shift is already beginning to occur and it is having a significant impact on our society and the workplace.

Today, black and white Americans diverge on their views regarding race relations.

According to Pew Research Center, sixty-one percent (61%) of black Americans say race relations are bad, while only forty- five percent (45%) of white Americans feel that way. Neither whites nor blacks feel it is getting better. In fact only twenty

embracing the change. What happens as the changes progress?

Think about the possible issues: · An increase in EEOC charges, stage agency charges and lawsuits · Turnover · Potential backlash from Caucasian employees · The lack of teamwork · Lost opportunities · A tarnished brand and reputation · Poor performance · Loss of revenue If we fail to rise to this challenge, we will fail to maintain our economic successes. More importantly, we will lose ourselves in the process. We are capable of dealing with change, but as so much happens so quickly, we struggle. It is clear that all sides struggle with this issue and change. To highlight these issues at a more personal level, let’s explore three very real and compelling short stories.

No Trust

percent (20%) of whites and 15 percent (15%) of blacks believe race relations are getting better. Individuals interestingly enough want to blame politicians for the challenge we face now and ahead. While politicians can play the division game increasing the wedge between us, they are not the problem…we are.

As a society we must begin to agree on some core ideas. Unfortunately, we are unable to agree on how to address these issues. Forty-one percent (41%) of white Americans say too much attention is paid to race while fifty-eight percent (58%) of black Americans says too little attention is paid to race. When we focus on race, it alienates many Caucasians, and when we do not focus on it blacks are disenfranchised. The only way forward is with a bridge. It is an emotional and complicated subject and that is without infusing the conversation with other aspects of diversity such as Latinos, Asians, gender and age.

Diversity distinguishes and defines the younger generation. Millennials are now twenty-three percent (23%) of the total population and thirty-eight percent (38%) of the working population, according to the Brookings Institute. However, they account for forty-three percent (43%) of the primary working age minorities. Racial diversity is the central, defining and influential characteristic of this generation.

Millennials are leading us toward 2045. They are shepherding the nation and our workplaces toward a clearer and more comprehensive racial diversity.

How does all of this relate to our workplaces? For years we have seen Equal Employment Opportunity (EEOC) cases regarding racial discrimination. These cases have not gone away. In fact, they have remained fairly steady since 1997.

According to the EEOC, in 2017, over 28,500 charges were filed through the agency--more than any other type of discrimination charge. With all of the welldeserved attention given to the #metoo movement, racial discrimination charges are approximately thirty-four percent (34%) of the discrimination charges filed and sex or gender account for approximately thirty percent (30 %).

We have a dramatic shift occurring in our society and workplaces that will change everything from economic mobility, power, relationships, norms and more. It is happening now in front of all of our eyes. Based on the data, we are failing at 14

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When John met his new employee, Jada, he immediately knew something was wrong. He tried to interact a couple of times that day with her, and there was always the uncomfortable feeling. There was no trust. But how could that be? They had just met. John did not have time to do anything wrong. Jada had not applied for the position, so it was not about a disappointment. John decided to ask. After some time trying to coax whatever it was out of Jada, she finally shared what was bothering her. John was white, and she did not trust white people based on her history.

A Rising Star Quits Tom was on the fast track. He was going to be a partner soon at a top public accounting firm. His friends were amazed and awestruck with how well his career was going. He seemed to be on all the right committees and projects. He had impressed someone at the firm and then one day he quit. Tom was talking with his friend Bob. Tom let Bob know he quit. Shocked, Bob asked, “Why?” Bob knew he was set. Tom told Bob that the firm seemed overly focused on him being black. Tom shared that he was not sure if his career was going well because he was black or because they knew he was great. Of course, Tom and Bob knew Tom was great, but Tom wasn’t sure the firm did.

Tom just wanted to be valued for his contribution.

No Way Out Greg, a white male, recently keeps to himself on some issues.

He avoids discussing race at all costs. He has been approached by people he knows and works with about topics such as race.

It is not that he does not want to talk about it. It is just that Greg thinks he can’t talk openly about race without getting in trouble. It is not that Greg is racist or has animosity toward blacks. It is just that he has seen people try who are white and it

usually backfires. They use one wrong word or ask a question out of curiosity, and they are pounced on. They were trying to have a constructive conversation, and within seconds they were no longer a friend or a colleague. Greg does not want that, and he does not want anything to tarnish his career, so he is keeping his head down and steering clear.

7. Find opportunities to create bridges and connections between different types of people. People band together with those with whom they have things in common.

Ironically, most of us want things to get better and we harbor no resentment toward one another. But there is a gulf between many of us that keeps us separated. And it is clear that gulf has an impact on relationships, teams and success. Ignoring it is no longer an option and clearly won’t be going forward.

9. Listen to understand. We need to stop trying to force others to believe what we believe and begin to see through their eyes.

Here are ten things to consider when addressing these issues: 1. Make sure ground rules are set up before trying to address these issues.

We need an open environment and not a free-for-all.

2. Ensure people are discussing the same thing. All too often people define things differently.

3. This takes time. Do not start something you cannot finish. Remember this is a process, not an event.

4. Promote transparency. When there are few secrets, there is little gossip and stories. You want to keep that to a minimum so be open about various topics and issues.

8. Focus on building a culture where everyone feels safe, valued and respected. Empathy goes a long way to help in creating this type of environment.

10. Mix it up. Reach beyond your usual boundaries. People learn when uncomfortable, and that means in new situations with different dynamics. Learn from each other.

Too many people post on social about their anger and fears concerning race and not usually in a productive or useful manner. They receive two types of responses normally. 1.) Supportive responses from people that feel the same way. 2.) Angry responses from those that are hurt. Both types of responses reinforce each person’s initial perspective and those same people bring that to work with them. It is time to stop allowing social networks, politicians, and echo chambers mold our people and our cultures. It is time to stop failing. We have an opportunity in front of us, a seismic shift, and we need to rise to the occasion.

5. Allow people to report concerns and incidents anonymously. Part of an organization’s responsibility is to create a safe environment and a safe way to address issues.

6. Bring people in from different backgrounds to speak with your people.

Individuals are uneasy with what they do not know or understand.

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What actions can HR Professionals take to mitigate these risks?

The good news is there are ways to minimize the chances of employing unsafe or unqualified drivers. HR professionals hiring drivers in any capacity must thoughtfully consider the need to manage them. Three key actions include:

How HR Can Protect Their Organizations from Unsafe Company Drivers

By SONYA WEATHERS

Driving is risky. Rampant smartphone use, construction, weather, and a variety of other factors work against drivers. It’s especially challenging for those who drive for a living. Add to that long hours of exhausted driving, potential issues with drugs or alcohol, and the chances of causing or being involved in an accident are above average.

At first glance, HR Professionals may think this article doesn’t pertain to them if they work in an industry besides transportation.

However, organizations offering deliveries or employing a traveling sales staff are open to the costly risks that having drivers on the payroll brings.

A driver who operates a vehicle as part of their job opens the business up to potential lawsuits and fines. HR professionals should think about implementing driver screening and monitoring into their suite of safe hiring processes to protect their organization from unsafe or unqualified company drivers.

The first smart action is to acknowledge that, even if a driver was well-qualified and legally approved to drive when hired doesn’t mean it will always remain that way.

An employee’s driving history opens an organization up to significant liability if they function as a driver. What if he is caught and convicted of driving under the influence or incurs other serious moving violations? What if his driver’s license is expired? Your business could end up being slapped with a costly negligent hiring claim, devastating public relations press, and expensive litigation.

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Recognizing drivers as unique employees.

Drivers are tasked with operating cars, vans, and trucks, unlike employees that stand behind a counter or sit at a desk. If he or she is under the influence or careless, there could be drastic consequences that aren’t applicable to other company roles. Wrecks, damaged property, personal injuries, and even fatalities can result from driver employees. In addition, drivers who lose their licenses or receive excessive tickets for infractions open the company up to lawsuits or fines that could harm or even tank your organization.

Crafting a thorough pre-employment screening and ongoing monitoring process.

Design a screening and monitoring policy specifically for company drivers. A complete background screening plan before you hire them includes a: • Motor Vehicle Records (MVR) search.

A Motor Vehicle Records search plays an important part in choosing safe, responsible drivers and is the first line of defense if there’s ever a negligent hiring claim made against an employee who drives company vehicles or who drives on company business. Performing a motor vehicle records search enables employers to minimize the risk of bringing on a person with a history of unsafe driving that may put other employees, customers, or the public at risk.

An MVR report accesses driving records and is allowed in all 50 states, although no national database of driving records exists. A motor vehicle records search sheds light on red flags about administrative information, such as the type of license a driver holds, issue and expiration dates, and any restrictions on the license. The search will also uncover illegal information reported on the driver, such as violations, disciplinary actions, convictions, revocations, suspensions, and accidents.

• Drug Test. A drug-addicted driver slipping through your background screening process can end up having disastrous consequences for your organization.

Implement consistent, stringent drug

screening measures such as urine, hair, or saliva testing as part of your background screening process.

Screening potential new drivers before extending an offer to them is a smart starting point when hiring drivers. From there, once they are hired, they will need to be monitored.

This way, if they commit too many infractions or lose their license, you will be apprised as soon as possible.

Many organizations make the mistake of only monitoring their drivers on an annual basis. This isn’t often enough and leaves large gaps of time that can cause big problems for companies. What if the driver loses his license in May, and you don’t screen him until November? That’s 6 months of time that your company is open to lawsuits and fines!

HR professionals should put thought into developing an automated driver monitoring procedure to alleviate this risk. Taking the human error factor out of the process and monitoring driver activity more closely than traditional annual checks closes the loop and cultivates a compliant and legal workforce of drivers.

A consistent screening pattern Uniformity is perhaps the biggest protector when it comes to litigation against your organization. Screening haphazardly or only in certain cases can lead to less than stellar new hires and opens you up to discrimination lawsuits. Your screening and monitoring policy should be written and clear, and all hiring managers must be well-trained on what is expected. Subject all applicants applying for the same type of position to the same pre-screening and monitoring practices.

To serve their clients, hiring and keeping drivers on the payroll is a necessity for many companies in a variety of industries. It comes with increased risk and heavy responsibility.

HR must lead the charge to protect the company and the safety of the workplace by taking precise, actionable measures. With strategic planning and a strong policy of pre-employment screening and post-hire monitoring, companies can be confident the drivers in their employ are operating legally, safely, and with up-to-date credentials.

Sonya Weathers National Account Executive sweathers@datafacts.com www.datafacts.com

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University of Memphis The Department of Management in the Fogelman College of Business and Economics at the University of Memphis offers AACSB-accredited training in human resource (HR) management and organizational behavior. The following faculty have an expertise in these areas: Chuck Pierce, Laura Alderson, Carol Danehower, Kelly Mollica, Kristen Jones, and Kathy Tuberville. They offer undergraduate courses on HR topics such as introduction to human resource management, compensation & performance appraisal, employee relations, staffing organizations, and employee training & development.

The University of Memphis offers MBA and executive MBA courses on topics such as managing human resources and strategic human capital management. They also offer a doctoral research seminar on human resource management. In addition, they have a student chapter of the Society for Human Resource Management (SHRM).

Finally, they have an undergraduate concentration in HR management. For more information, please contact Dr. Chuck Pierce, Chair of the Dept of Management (capierce@memphis.edu; http://www.memphis.edu/management).

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Kathy Tuberville, Ed.D, Instructor www.HRProfessionalsMagazine.com

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South Carolina’s New Expungement Law Could Increase Applicant Pool

By BEN DUDEK

In an effort to increase the state’s potential workforce, the South Carolina General Assembly passed legislation last week that will expand the state’s current expungement law and allow individuals to more easily remove criminal convictions from their records.

The hope is that prospective employees with low-level crimes on their records will no longer be discouraged from applying for jobs; this, then, should make it easier for employers to recruit qualified workers. What do South Carolina employers need to know about this new law?

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New Law Goes One Step Beyond Ban-The-Box Around the country, many states and localities have recently passed “ban-the-box” laws which generally prohibit employers from asking applicants about their criminal record on job applications. Employers covered by these laws are usually allowed to ask about criminal records only after an applicant is selected for an interview or given a conditional offer of employment. Proponents say these laws give offenders an improved chance to reenter the workforce, as employers are forced to first consider an applicant’s qualifications and skills before being swayed by the stigma of a criminal record.

While South Carolina does not have a ban-the-box law, the state legislature has instead taken it one step further: the new law will make it easier for persons to erase certain convictions from their records. Current law permits persons to expunge a first-offense, low-level crime carrying a sentence of 30 days or less from their record following a period of good behavior. The new law removes the “first-offense” requirement and also allows persons to erase multiple convictions arising out of the same sentencing hearing if they are “closely connected.” Significantly, the law also allows offenders to expunge first-offense simple drug possession and possession of drugs with intent to distribute crimes. The law applies retroactively to those offenses committed prior to the law’s passage.

The bill was backed by several prominent business groups, including many local chambers of commerce. Those groups said the legislation

was necessary to expand the potential workforce in the state by removing employment barriers for thousands of offenders. “South Carolina must grow its workforce if our state is to experience continued economic growth and prosperity,” said Greenville Chamber President and CEO Carlos Phillips. “Simple mistakes, including low-level nonviolent offenses, should not result in lifelong sentences.”

However, employers should be relieved to know that the new legislation provides immunity to employers with respect to any administrative claim or lawsuit related to an employee’s expunged conviction. These often arise in negligent hiring, retention, and supervision claims against employers.

The bill was originally vetoed by Governor Henry McMaster on May 19; he said he was unwilling to sign legislation that would have the practical effect of erasing large categories of criminal records and telling employers what they can and cannot consider when making hiring decisions. Both houses of the General Assembly, however, overrode Governor McMaster’s veto by overwhelming margins and passed the legislation on June 27. It will take effect six months after passage, on December 27, 2018.

The law makes clear, though, that if employers somehow become aware of an employee’s expunged offense, they may not use this information adversely against the employee. Therefore, employers should refrain from asking applicants to disclose any expunged offenses on applications or during the hiring process so they do not run afoul of the new law. Although the law does not set out any penalties or specifically allow individuals to sue employers for alleged violations, these issues may develop in the years to come.

What Does This Mean For Employers?

From a practical standpoint, South Carolina job applicants with crimes expunged from their record under the new law will most likely not disclose that fact on a job application or during the hiring process. Employers also will be unable to discover the offenses on a commercial criminal background check.

Benjamin Dudek, Associate Fisher Phillips bdudek@fisherphillips.com www.fisherphillips.com

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Communication is Critical When Managing Leaves of Absence

By TIM K. GARRETT

Knowledgeable employers face a recurring trend – how to manage a leave of absence that lasts for an extended period, in compliance with the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) while meeting operational needs. This article will address these various challenges, after a brief overview of what the law requires.

The FMLA, in general, requires any employer who employs 50 or more employees within a 75-mile radius of a worksite, to grant up to 12 weeks of job-protected leave to an eligible employee with a serious health condition. An eligible employee is one who has been employed for more than 12 months (does not have to be consecutive), and who has worked in the previous 12 months at least 1,250 hours. A “serious health condition” is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider.

The focus of the law is to provide an employee with leave. The FMLA does grant leave for other reasons, which are beyond the scope of this article.

The ADA requires employers with 15 or more employees to provide reasonable accommodation to qualified individuals with a disability. Reasonable accommodation may include granting leaves of absence to employees who are temporarily unable to work. The focus of the law is to provide an effective workplace accommodation such that the employee can remain at work, or return to work as soon as possible.

Communication is Crucial. In managing leaves of absence, communication is crucial. An employer has the right to understand the condition for which the employee needs leave, whether the employee can work (and what, if any, work restrictions there are), and if the employee cannot work, whether the doctor can determine if (and when) the employee can return.

An employer also should maintain communication with the employee regarding the employee’s “leave” status, addressing: (1) the length of time remaining on the leave status, setting a date when the leave status will be “re-evaluated” based upon information available; (2) whether the leave is job protected; (3) the amount of remaining paid time (if applicable); (4) the status of any benefit eligibility (does leave include health benefit?); and (5) whether an offer of alternative employment has been made during the leave (which if rejected could be viewed as a voluntary quit or could impact eligibility for continued workers’ compensation benefits). The communication should invite additional questions or suggestions for how best to assist the employee’s improvement or return to work.

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Leave of Absence Policy. An employer should have a leave policy to govern management of an extended leave. The policy should require an employee to apply for leave. The request should be in writing, and can include submitting a doctor’s note to that effect or suggesting an extended leave is needed due to a certain condition. This information should trigger further inquiry by the employer to determine whether a leave (or other accommodation) is required and if so, what information (including healthcare certification) is necessary to determine if the employee is entitled to leave.

Sometimes, an employer may have enough information to grant leave based upon a doctor’s note alone (such as in a workers’ compensation injury). In other instances, the employer may need additional information to support the leave request. The employer is entitled to request more information, and can delay the leave request pending the additional information (especially for foreseeable leave requests) or grant conditional leave pending such additional information.

An employee receiving performance counseling may explain that she has some limitation or impairment, not previously known, that has impacted performance.

There, the employer can require information to evaluate whether a leave or other accommodation is needed. Generally, however, accommodations under the ADA are prospective only, and the ADA does not require an employer to forgive past performance deficiencies as an accommodation (if employer had no prior knowledge).

EEOC Guidance. The ADA identifies leaves as a possible “reasonable accommodation.” The Equal Employment Opportunity Commission (EEOC) in May 2016 issued guidance on employer-provided leaves as accommodations under the ADA. This guidance highlighted common mistakes employers make in adopting policies for, and in granting, leaves. For example, because leave is a possible reasonable accommodation, employers may have to grant a disabled employee leave even if, under the employer’s policy, that employee may not be entitled to leave. Also, the EEOC in its guidance warns that employers cannot impose on disabled employees an automatic end to their leaves granted as an accommodation, based only on the passage of time or some exhaustion of available leave time.

Unique Challenges. A few unique challenges deserve special mention: Can the employee be terminated automatically if the employee cannot return at the end of a leave? No. The employer should not state that an employee on leave will be terminated if the employee cannot return at the end of the leave. The EEOC considers this practice as inconsistent with the individualized assessment required by the ADA. Rather, the employer should note that, at the end of the leave, if the employee remains unable to return, the employer and the employee will discuss the employee’s condition and the employer’s operational needs.

How long must leave last? Unfortunately, the EEOC has not provided definitive guidance on this question. In reality, given the individualized assessment required, any such definitive is not possible, as various factors come into play, such as what the healthcare provider is saying, what job is in question, what are the prospects for the employee’s recovery, etc.

Always engage in interactive process. The ADA requires that the employer and employee interactively discuss the job demands, the employee’s restrictions, and what options for accommodation are available and advisable. An employer does not have to give the employee the accommodation desired by the employee, but must provide an accommodation that is “effective.” Any interactive discussion should be confirmed in writing.

In intermittent leave situations, the employer must ensure it has appropriate certification. The certification should clarify whether the intermittent leave is needed for instances of “incapacity” or for planned medical treatment. For absences or tardiness, the employer can still require compliance with call-off procedures in its policy.

What if the employee cannot do the regular job under the certification but may be able to do an alternative position that is available? If the employee still has FMLA available, the employee can refuse such an alternative position, because the FMLA entitles the employee to leave. If the employee has exhausted FMLA leave, the employee should be offered the job as a reasonable accommodation and can be terminated for refusing alternative work from which to return from leave (especially if in the employer’s policy, as it should be). If the job is offered as a reasonable accommodation, and if there is not a reasonable accommodation available in the original job at the current pay rate, the assignment to a new job can be at the assigned job’s rate.

If the intermittent absence is for planned medical treatment, the employer can require the employee to consult about what dates and times work best for the operation and may transfer the employee to an alternative position (at same pay) that is more conducive to scheduling. The employer can request a note that planned treatment was provided.

Can the employer have policies requiring no restrictions? No. Any such “100% healed” policies violate the reasonable accommodation requirements of the ADA. What if the employee cannot do the regular job but can do a “light duty” job that is created as a temporary accommodation? The employer is not required to create a job, but if an employer does so, it should be clear that the job offered is a temporary accommodation and will be reviewed at periodic intervals (every 90 days, for example).

If the intermittent absence is needed for periods of incapacity, the certification should provide guidance on the number of times to expect such instances. If the number of times begins to exceed what is certified, the employer can request another certification. The employer should have the employee document the instances as FMLA-qualifying (by email or other “writing”), and most likely (unless certification says otherwise) the employer cannot require a doctor’s note for every such instance.

What about situations involving an employee’s need for intermittent leave for unforeseeable “episodes” of leave due to a chronic condition? If the employee has FMLA, then the employer must provide for such instances of intermittent leave. However, assuming that regular attendance and/or reporting for work on schedule are essential functions, such intermittent leave is not required under the ADA, unless it can be accommodated by adjusting starting or ending times on a regularly scheduled basis.

Tim K. Garrett, Member Bass, Berry & Sims PLC tgarrett@bassberry.com www.bassberry.com

GO CONFIDENTLY. Bass, Berry & Sims listens and responds with creative yet practical counsel. We stay on pace with the complex and rapidly evolving employment landscape, connecting your dynamic human resources needs to proactive strategies.

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Shift In Communications Methods

Adapting Your Benefits Strategy for the Millennial Workforce

By AUSTIN BAKER

The workforce has been going through tremendous change as of recently. In 2014, 36 percent of the U.S. workforce were millennials and by 2020, nearly half (46 percent) of all U.S. workers will be Millennials (Lynch, 2008). By comparison, the generation before them, Generation X (or Gen Xers), represent only 16 percent of today's workforce.

With that being said, we all assume that with a newer workforce comes different priorities and needs in terms of their health benefits selections. Organizations have optimized the effectiveness of their benefits programs by shifting the strategy from “What best suits this organization” to asking, “What do my employees truly WANT” in terms of benefits offerings. With the growing number of millennials in the workforce, we must evolve our benefits strategies to best engage these workers. Organizations must continuously ask: What exactly do millennials want from our benefits? And how do they go about deciding which benefits to choose? Are their preferences stage of life based, or are there larger trends that we should be understanding?

Despite a reputation for being well-educated and tech-savvy, research shows that millennials have low participation rates in employee benefits and are less likely to know about their employers’ benefits compared to other age groups. Instead, we have seen them prioritizing out of necessity, and affordability. Their selection process has trended in many disrupting ways.

How Millennials Select Benefits When it comes to the benefits enrollment process, millennials take a meticulous approach.

In fact, millennials review every single one of their benefit options to see what is available to them. As they review their options, millennials carefully evaluate need and cost, and they “read the fine print.”

Millennials evaluate available benefits using a three-step process: • “ What essential benefits do I need?” Millennials talk about prioritizing medical benefits over everything else, followed closely by dental benefits.

• “ Of the remaining non-essential options, which ones am I interested in?”

Millennials want benefits that feel personalized and useful.

• “ Based on my budget, which of these benefits that I want, can I afford?” Millennials are more cost-conscious than other generations when it comes to benefits. While 50 percent of millennials consider their budget when selecting benefits, only 42 percent of older generations do.

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Rise of Mobile Millennials certainly like their mobile devices — 77% own a smartphone. In addition, this age group accounts for 41% of the total time that all Americans spend using smartphones. In order to communicate with millennials, it must be done in a way that will make the most impact, capture their attention spans and stand out among competing information. Open enrollment and year-round benefits should be no different. Because millennials spend so much time on their smartphones, their benefits education and enrollment process should be provided on these devices, in a format that’s simple and familiar to them. In fact, we are seeing a rising climb of mobile views vs desktop.

According to SimilarWeb's State of Mobile Web US 2015 report, roughly 56 percent of consumer traffic to the leading US websites is now from mobile devices.

Social Media and Digital Marketing It’s important to go beyond face-to-face benefits meetings and paper-based communications, as millennials consume information differently than previous generations — they are accustomed to being fed bite-sized pieces of information. Aim to work open enrollment information into their daily news feed, sharing information that’s easily accessed from their phones, where they can quickly scan and click embedded links to a site where they can take action. By capturing their attention via emails, ad tiles, banners and videos, you can creatively communicate how the benefits work, how to enroll and how employees can save money by taking advantage of offerings like commuter benefits.

Trends in Education Strategy Looking at Benefit Needs From a Stage of Life Perspective Getting married, having kids, starting student loan payments, and buying a house are a few of the major milestones that you may experience in your life. And while many of these life stages are cause for celebration, they’re also reasons to review your benefits that are offered through work.

As your employee’s life situations change, so should the benefits that cover it.

Focus on Impact and the actual “Benefits” Rather than giving an all-encompassing overview of every potential benefit offered to employees, HR leaders should highlight those that make the most sense for millennials and provide information in bite-size portions. It’s also important to be transparent about true costs. Millennials tend to be reluctant to enroll if they are unsure about how the benefits work, how they save, and their out-of-pocket costs.

Benefits communications should include real-life savings examples that allow millennials to better understand how pre-tax contributions can lead to significant annual savings and potential savings for retirement, if HSAs are offered. For example, outlining to employees how an employee making an annual salary of $60,000 can take home $2,025 in tax savings by contributing the maximum amount to an HSA when paired with a high-deductible health plan, may peak their interest.

Shift to Private Exchanges Not all change is cost-effective for all employers. Moving benefit selections to exchanges may be a good solution and is becoming increasingly more common among employers with large millennial populations. There is, in fact, quite a difference between those companies who have added the option to enroll for benefits through an Exchange — 10% between those with high vs. low presence of millennials. Those companies with higher populations of millennials also plan to move more employees to exchanges in the next two to three years.

Millennials are now the most common age group represented by companies. As the numbers continue to grow, employers must evolve their benefits approach to match not only the needs of the existing workforce but the growing needs for them as well. Attitudes and behaviors can vary drastically among this generation and it is important for employers, brokers and enrollment firms to keep this in mind as they look to build benefit strategies to attract and retain talent. Helping younger millennials understand and appreciate benefits relevant to their career and life stage is as important as providing older millennials with benefits and tools they can adapt to their own lifechanging events.

Proper communications and education are proving to be the most effective in helping them engage with their benefits. Bringing in benefits counselors to guide your employees in your enrollments will help them choose the best, and most effective plans for their needs and different stages of life!

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

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

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

jaustinbaker

@jaustinbaker

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Loss of Income: Are You Protected???

By KARA SPENCE

As open enrollment rounds the corner each year, most of us are focused on meeting enrollment deadlines, which can cause us to speed through the process. Often one can be so focused on what medical, dental, and vision plan to enroll in that they forget to allocate adequate attention to the other benefits offered, like disability insurance.

One of the most devastating events that a person can face is an unexpected loss of income. This can affect anyone, regardless of your level of compensation. We all do our best not only to set a realistic household budget but also to set aside some money for the future. Some of us have our finances organized to a “T,” while others are trying to figure it out along the way. No matter which type you are, it is important to remember that disability does not discriminate! So, as you chug along through your enrollment process, you must ask yourself, “Are you protected?”

Many employers offer paid sick days, but what happens if you have exhausted those days and are unable to return to work?

Many employers offer paid sick days, but what happens if you have exhausted those days and are unable to return to work?

In the event that you become disabled and unable to work, you may be eligible for lost income replacement through an employer-sponsored disability plan. This may be 100% employer-paid, partially employer-funded, or a 100% voluntary plan. Depending on how long you are out of work, you may be eligible for Short-Term Disability and/or Long-Term Disability. Let’s take a look at Group Disability Insurance, how it works and why it is so critical to your employee benefits package.

Once your sick leave has run out because of a disability, illness, or non-job-related accident, you may be eligible for Short-Term Disability as outlined by the plan.

SHORT-TERM DISABILITY INSURANCE (STD) Disability plans generally have a defined waiting period before an employee becomes eligible. STD plans usually kick in on the 8th or 15th day of disability. Once eligible, the plan usually provides a percentage of income for a specified duration. This Maximum Benefit Duration may be measured by days or weeks, depending on the plan. Durations of 12 Weeks or 90 Days are common to many group plans with the percentage of income up to a maximum weekly benefit.

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LONG-TERM DISABILITY INSURANCE (LTD) Once you have exceeded the maximum STD benefit duration, your Long-Term Disability plan should come into play. It is extremely important as advisors to ensure that these benefits align so that there is no gap between an employee’s income protection. For example, if the maximum STD benefit duration is 90 days, then your LTD plan should include an elimination period of 90 days providing a seamless transition. Typically, the maximum benefit duration for a LTD plan is outlined using two time periods (the first 24 months of disability & the months thereafter) up to either age 65 or Social Security Normal Retirement Age (SSNRA).

These two time periods are contingent upon your definition of disability as defined by the plan. It is critical to know how your plan defines disability.

DEFINITION OF DISABILITY A common example of a disability definition is the ability to perform the job duties of your “Own Occupation” for 24 months, then “Any Occupation” thereafter. “Specialty Occupation” definitions should be in place to protect employees that have an industry specific occupation with highly specialized knowledge such as a brain surgeon or an attorney with a concentration on a specific area of the law.

Once the eligibility of disability has been made, the amount of income must be determined.

DEFINITION OF EARNINGS Earnings must be specifically defined in order to calculate the percentage of benefit to be paid. An industry standard example would be Annual Salary, excluding bonuses and commissions. In addition to these three types of income, there are a number of variations and combinations of income and taxation stipulations that need to be outlined.

SPEAK UP! The world of disability can be extremely complicated and confusing, and it is our job as a trusted advisor to ask the questions in order to help guide our clients to the right level of protection.

Regardless of the type of employee population or demographic, the contract terms should be adequate and precise to cover an employee at their time of need.

Are YOU Protected???

Kara Spence, Financial Analyst McGriff Insurance kara.spence@mcgriffinsurance.com www.mcgriffinsurance.com

McGriff Insurance Services: Employee Benefits Consulting, Property & Casualty, and Business Insurance

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At McGriff Insurance Services, we go beyond traditional employee benefits consulting. Our specialized, knowledge-based teams provide data-driven solutions for the complex problems employers face today.

With senior-level experienced data analysts, actuaries, and underwriting consultants, we help you manage today’s risks while anticipating tomorrow’s needs.

Tom Hayes Chief Growth Officer - Employee Benefits Tom.Hayes@McGriffInsurance.com 479.684.5259

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© 2018, McGriff Insurance Services, Inc. All rights reserved. Insurance products are offered through McGriff Insurance Services, Inc., a subsidiary of BB&T Insurance Holdings, Inc., and are not a deposit, not FDIC insured, not guaranteed by the bank, not insured by any federal government agency, and may be subject to investment risk.

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Nail In The Coffin: DOL Officially Rescinds The 2016 Persuader Rule

By J. BRUCE CROSS and VICTORIA L. WADLEY

On March 30, 2016, Cross, Gunter, Witherspoon & Galchus, P.C.— joined by Associated Builders and Contractors of Arkansas (ABC Arkansas) and its national organization, the Arkansas State Chamber of Commerce/Associated Industries of Arkansas (Chamber/AIA), the Arkansas Hospitality Association (AHA), the Coalition for a Democratic Workplace (CDW), and the National Association of Manufacturers (NAM)—filed the first of three lawsuits against the Department of Labor (Department) to prevent enforcement of unprecedented “Persuader Rule” regulations. This Rule sought to punish employers, their lawyers, and their consultants with criminal penalties, including up to one year of prison time and fines up to $10,000.00 for failure to disclose confidential and attorney-client privileged information.

On June 27, 2016, the Federal District Court for the Northern District of Texas issued a nationwide injunction holding that the plaintiffs had shown a likelihood of success on their claim that the rule went beyond the Department’s authority by virtually eliminating the advice exemption of the LMRDA. Subsequently, in June 2017, the Department issued a notice of proposed rulemaking (NPRM) to rescind the regulations established by the Persuader Rule. In the proposal, the Department expressed its desire to “further consider the legal and policy objections raised by the federal courts that have reviewed the Rule.” See 83 Fed. Reg. 138, 33827 (July 19, 2018). As a result of the review, the Department made the decision to rescind the rule. The Department issued its final rule on July 17, 2018 which will go into effect on August 17, 2018.

What Was the Persuader Rule & Why Was it Rescinded?

The Persuader Rule was implemented to require employers and their consultants to file a report when they made agreements or arrangements that involved both direct and indirect contact with employees concerning their rights to organize and bargain collectively. This change in the status of reporting to include “indirect” contact was significant.

It meant that engagement in “behind the scenes” activities including recommending drafts of or revisions to an employer’s speeches and communications if those drafts or revisions were designed to influence employees’ exercise of their organizational rights was now a reportable event. In fact, even modifications to handbooks, which could have the effect of persuasion were now reportable activities.

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Three different lawsuits were brought against the Department for reasons including that the rule was contrary to the plain language of the Labor-Management Reporting and Disclosure Act (LMRDA), as well as that its implementation was unconstitutional, arbitrary, and capricious. Upon final review, the Department made the decision to rescind the rule based on the following: (1) The Persuader Rule rested on a misinterpretation of Section 203(c); (2) The Persuader Rule interfered with the attorney client relationship; (3) The Persuader Rule required additional regulatory burdens involving Forms LM-20 and LM-21; and (4) Rescission of the Rule would allow for the allocation of scarce resources to different priorities. See 83 Fed. Reg. 138.

First, Section 203(c) of the LMRDA provided that reporting is not to be required “covering the services of [a consultant] by reason of his giving or agreeing to give advice.” 29 U.S.C. § 433(c). Upon the decision to rescind the rule, the Department provided that the Persuader Rule rested on a misinterpretation of Section 203(c). The Rule explained that reporting is required when a consultant, who has no direct contact with employees, “provides material or communications to the employer, in oral, written, or electronic form, for dissemination or distribution to employees.” Additionally, the Rule said that preparation of “persuader materials” is more than a recommendation to the employer, triggering mandatory reporting. The Department has now postulated that this analysis was a mistake. Further, the Department noted that if the employer has the ability to accept or reject the prepared material, this constitutes “advice” within the meaning of Section 203 (c). Thus, it is not subject to the reporting requirements under the LMRDA. Second, the Department referenced that the Persuader Rule significantly interfered with the attorney-client relationship. The Model Rules of Professional Conduct (MRPC) provide that, absent specific exceptions, “a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.” See MODEL RULES OF PROF’L CONDUCT R. 1.6 (2018). The MPRC’s goal is to encourage businesses and individuals to seek counsel, and a fear of losing confidentiality may result in them making uninformed legal decisions resulting in breaking the law. The Department found this argument by the American Bar Association (ABA) and the Texas Court persuasive. The Court provided, “The Persuader Rule . . . would require lawyers to disclose a substantial amount of confidential client information, including the existence of the client-lawyer relationship and the identity of the client, the general nature of the legal representation, and the description of the legal tasks performed.”

Next, the Department provided that rescission was necessary due to the additional regulatory burdens involving Forms LM-20 and LM-21 imposed by the Persuader Rule. Every person participating in any persuader activity, under Section 203(c), is required to file a report to the Secretary of Labor that includes a detailed statement about the terms and conditions of such arrangement within 30 days of entering into the agreement. This requirement is satisfied in filing a Form LM-20. After filing a Form LM-20, the person was required to also file annually a “report containing a statement of the person’s ‘receipts of any kind from employers on account of labor relations advice or service, designating the sources thereof,’ and a statement of its disbursements of any kind, in connection with those services and their purposes.” Therefore, as required by statute, by filing a Form LM-20, the person was also required to file a Form LM-21. Each of these forms “impose[d] a unique recordkeeping and reporting burden on the filer.” Additionally, the Department recognized that the new Rule would require filing for people who had never been required to file in the past. The Department determined that the burdens imposed by the Rule were substantial because of the additional devotion of time and resources needed to both meet and regulate this requirement.

a result of this requirement, resources would have to be pulled from other vital priorities, a consequence which the Department appropriately determined it was not willing to do. The Department noted that “its scarce resources are better allocated elsewhere than on the enforcement of the Persuader Rule.”

Where The Rule Is Now As a result of the rescission of the Persuader Rule, the Department will continue to apply the longstanding interpretation of the advice exemption that predated the Persuader Rule. The Rule is officially gone. Consequently, employers now have the peace of mind that the confusing and significantly harmful Persuader Rule revision has effectively bitten the dust. Thus, employers can continue to engage with their legal counsel and/or labor relations consultants in the same manner they had done for years without fear of civil and criminal repercussions.

Finally, the Department determined that in order to preserve limited Department resources, the Persuader Rule would impose too large a burden in case investigation efforts. Under the new Rule, enforcement would have required lengthy and more complicated investigations.

These investigations would include, “examining in detail the actions of consultants, their interaction with the employers’ supervisors and other representatives, and the content of attorney communication.” As

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

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DEALING WITH THE “OMAROSAS” IN YOUR ORGANIZATION -

Insurance Coverage for Terminated Employees

By CAMMIE SCOTT

No

matter which side of the fence you sit on politically, the recent firing of Omarosa Manigualt-Newman from the White House brings to light a situation many Americans face each year – termination. It can happen to anyone including celebrities and people who work at the White House. According to the Bureau of Labor Statistics, nearly 2 million people per month are terminated.

No one likes getting fired. It can be embarrassing professionally and devastating financially. Sometimes it is a matter of performance while other times it is simply a change in the business itself such as decreased demand, an organizational change or even natural disaster.

HR professionals are often at the forefront of terminations. They are a valued resource to both the company and the employee. They can help guide managers and supervisors through the process to ensure proper procedures are followed and the employee is treated with dignity. For people who are terminated, HR professionals guide them through getting their last paycheck, any severance packages, vacation time and a myriad of other items.

After the initial sting of the termination, medical insurance is at the top of many terminated employees mind. Where will they get coverage? What will it cost? How long will they be covered under their existing plan? What about pre-existing conditions? What will the benefits be?

Depending on the structure of the company health plan, coverage may end on the day of termination or at the end of the month. Most plans terminate at the end of the month, some on the 15th and a few on the day of termination. If an employee is terminated on the 3rd of the month, they have almost a full month of coverage. If they are terminated on the 28th, they will have a much shorter window of time to pursue other coverage. Here are some coverage options.

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1. COBRA – Under the Consolidated Omnibus Budget Reconciliation Act or COBRA as most people know it, employers with 20 or more employees, who offer health insurance are required to allow employees to pay for and continue coverage. Plan administrators must send a notice to terminated employees within 14 days telling them how to elect coverage.

While they are employed, the company pays a significant portion (50% to 100%) of the premium. When they are terminated, the employee must pay the entire premium. This often causes sticker shock as the plan that was costing them $20/week is now $300+ per month. The total cost of the coverage didn’t change, but the employer is no longer contributing. Coverage usually lasts for 18 months, but may go as long as 36 months in situations of death, divorce and age.

If you have ongoing medical expenses and have met your deductible and out of pocket expenses, this may be the best option for you to finish out the calendar year. Even though the premiums are higher, out of pocket expenses are met. In this situation, information and math are your friends.

2 . TH E MARKE TPLACE – The Insurance Marketplace, the Exchange or Obamacare are all the same thing. This is generally a cheaper option than COBRA and it covers pre-existing conditions.

To see the various options that are available, go to healthcare.gov or seek out the help of a licensed insurance agent. By creating an account, potential insureds can see a list of coverage options available and pricing.

Instead of choosing from one plan or a limited offering with COBRA, there is a list of plans with varying benefits and premiums to choose.

This can be overwhelming to a terminated employee who is facing the pressure of finding a job and in on unsteady ground financially.

However, depending on their income and where they plan to go next, this could save them a substantial amount of money as they may be eligible for a subsidy.

Terminated employees qualify for a special enrollment period or SEP of usually 60 days. Meaning, if a terminated employee wants coverage through the Marketplace, they have about 60 days from the date of their termination to elect coverage. If they do not do so during this time, they will need to wait until open enrollment in the fall.

3 . M E DICAID – Depending on health and income, they may qualify for Medicaid. The program varies by state. Some states have expanded Medicare under Obamacare while others do not and some states such as Arkansas offer a hybrid program. It is generally best for employees to contact their local HHS office to determine eligibility.

Simply telling a terminated employee who you think might qualify for this how to contact the office may be a huge help in their time of need.

It could be the difference in their having coverage and not having coverage.

4 . PRIVATE IN S URAN CE – If a person doesn’t qualify for a subsidy due to income, they may wish to explore their options under private insurance. Plans vary by state with some states offering a variety of plans not available under the Marketplace.

5. S PO U SE’ S I N SURANCE – If a spouse works for a company that offers health insurance, they may be able to enroll. As with other options, there are time limits. This election generally must be made within 30 days of the termination. If not, then they usually have to wait until open enrollment.

This may choose to be a very good option as many larger employers’ pay a portion of the family premium. Pre-taxing the premiums will provide additional savings as well.

6. S H O RT T E RM MED IC AL – If the employee is healthy and only needs coverage for a short amount of time, they may wish to obtain coverage under a short term policy. These policies are considerably less expensive than traditional policies, but do so at the expense of not covering any pre-existing conditions. They are fine if you are in a car wreck or have an accident, but if you have a pre-existing illness such as diabetes, it will not be covered. For someone who is young and healthy it may prove to be a good short term option.

Coverage under these type of policies was recently expanded. Previously under Obamacare you could only have coverage for up to 3 months. The current administration now allows coverage up to 3 years.

7. DO N OTH IN G/GO BARE – This is not an option I recommend, however people do it every day. Terminated employees sometimes unintentionally miss enrollment deadlines or sometimes, they simply choose to go without.

There is a population of people who simply choose to play this game and go without coverage until something happens.

By then it is too late and they must pay the expenses out of pocket until open enrollment.

FIN AL TH OUG H TS - As an HR professional, you are on the front lines of dealing with employees in happy times such as when they are hired or promoted, in desperate times such as death and disability and in difficult times such as being terminated. Having the knowledge to assist them helps alleviate the stress of dealing with the technical side of your job so that you can wholly concentrate on the emotional side of dealing with employees whose world has changed as they have been terminated. Take the time to learn the options so you can be the light of hope to those who are struggling to make it through the day. As Aristotle famously said, “The roots of education are bitter, but the fruit is sweet.”

These plans are not ACA compliant. Meaning they do not cover the 10 Essential Health Benefits outlined in the Affordable Care Act and do not count as Qualified Coverage. However, they may be a short term solution to provide coverage while money is tight. It is a good option for someone moving quickly to a new job or for someone who missed the enrollment deadlines.

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

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33

A Legal Perspective on Hiring Applicants with a Criminal Record

By MATTHEW R. COURTNER

Booming Economy Leads to Fewer Available Workers With the economy growing, the unemployment rate has been steadily declining. The unemployment rate has decreased from 4.9% in January 2016 to 3.8 percent in May 2018—the lowest since April 2000. U.S. Department of Labor, Labor Force Statistics; Joana Ferreira, US Unemployment Rate Falls to 18-Year Low, Trading Economics. While the low unemployment rate is a positive economic indicator, one consequence is that employers in search of workers have a smaller pool from which to hire. Such circumstances may require some employers consider hiring individuals that might not traditionally be given consideration, such as individuals with a criminal record.

Persons with criminal records have historically faced greater obstacles in obtaining employment than persons without a criminal history. And the number of people with a criminal record is rather substantial. Each year, more than 650,000 people are released from prison; that is, on average, more than 10,000 persons each week. U.S. Department of Justice, Prisoners and Prisoner Re-Entry (available at https://www.justice.gov/archive/fbci/progmenu_reentry.html).

“America now houses roughly the same number of people with criminal records as it does four-year college degrees.” Matthew Friedman, Just Facts: As Many Americans Have Criminal Records As College Diplomas, Brennan Center for Justice, Nov. 17, 2015. Thus, employers who have resisted serious consideration of persons with a criminal record are limiting themselves from a large pool of potential employees.

Employers Turning to Applicants with Criminal Records Given the smaller applicant pool than several years ago, employers may be expanding the scope of their applicant pool to include persons with a criminal record. A recent study by the Charles Koch Institute and the Society for Human Resource Management (“SHRM”) found that “many employees, managers, and Human Resources (HR) professionals . . . are open to working with and hiring people with criminal histories.” Workers with Criminal Records, SHRM, May 17, 2018. Approximately two-thirds of HR professionals reported that “their company has experience hiring workers with criminal records”. Id. Similarly, over 80% of the managers and 66% of the HR professionals interviewed valued persons with criminal records “as high or higher” than persons without criminal records. Id. Consequently, employers appear to be more accepting of persons with a criminal history than they perhaps once were.

Potential Benefits of Employees with Criminal Records One benefit of employing persons with criminal records is that employment may help the person avoid recidivism. One study showed that approximately two-thirds of released prisoners were rearrested within three years of release and approximately three-fourths were rearrested within five years of release. Kara McCarthy, 3 in 4 Former Prisoners in 30 States Arrested within 5 Years of Release, Bureau of Justice Statistics Apr. 22, 2014. Of those rearrested, approximately 89% were unemployed. Mike Green, Five Bottom Line Reasons Why Employers Should Hire Ex-Felons, Huffpost Dec. 6, 2017. Employment obviously does not guarantee that a person will not return to crime; however, employment should provide consistent financial stability, which, in turn, may avoid the person seeking money through crime. Indeed, President Obama’s economic study of incarceration and the criminal justice system concluded that “policies that improve access to employment and sufficient wages for individuals with criminal records not only benefit individuals and their families, but also have the potential to decrease recidivism and increase the economic viability for communities.” Economic Perspectives on Incarceration and the Criminal Justice System, President Obama’s Executive Office, April 2016.

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Another potential benefit to hiring workers with a criminal record is the Work Opportunity Tax Credit “(WOTC”). The WOTC is a federal tax credit that employers may receive for hiring, among others, a “qualified ex-felon” (which is defined as a person who is hired within one-year of “being convicted of a felony” or “being released from prison from the felony”). Work Opportunity Tax Credit, I.R.S. (available at https:// www.irs.gov/businesses/small-businesses-self-employed/ work-opportunity-tax-credit#targeted). This tax credit is effective through December 31, 2019, although Congress may reauthorize the credit as it did in 2015. Id. Employers may fear that persons with a criminal history may be more likely to steal or be violent. A recent study by Northwestern University considered, in part, whether such fears are justified. That study “found that ex-offenders who did get hired were no more likely to be fired later than non-offenders.” Roberta Kwok, Should You Hire Someone with a Criminal Record?, KellogInsight Feb. 3, 2017. And, in fact, offenders “were less likely to quit” than non-offenders—saving employers “a significant amount of money in employee turnover costs.”

Id. However, the study revealed that “in sales positions, people with criminal records were more likely to be fired for misconduct.” Id.

Legal Considerations Hiring employees with a criminal record, however, is not without legal concerns. One of the largest concerns employers have is potential civil liability. For example, an employer may face a negligent hiring claim if it hires an employee, who has a history of assaults, and the employee later assaults a customer. An argument could be made that the employer was negligent in hiring the employee by failing to adequately investigate the employee’s background or hiring the employee knowing the employee’s background.

In Tennessee, employers have some protections from civil liability. Under Tennessee law, “[a] person may petition the court for a certificate of employability,” which could be “use[d] in obtaining employment.” Tenn. Code Ann. § 40-29-107(a) & (j) (2018). Employers are granted some protections when hiring persons that have a certificate of employability.

The certificates of employability are not intended to be easily obtained (i.e., a rubber stamp formality), but rather are meant to signify reform from a criminal past. In deciding whether to issue a certificate, courts must “review the person’s petition, the person’s criminal history, filings submitted by any district attorney general, United States attorney, or victim of crimes perpetrated by the petitioner, and all other relevant evidence.” Tenn.

Code Ann. § 40-29-107(h) (2018). To grant a certificate, the court should conclude that the person has established that: 1. H e “has sustained the character of a person of honesty, respectability, and veracity and is generally esteemed as such by the [person’s] neighbors”;

2. The certificate will help him obtain employment or licensing; 3. He “has a substantial need” for the certificate “in order to live a law-abiding life”; and 4. Issuing a certificate “would not pose an unreasonable risk to the safety of the public or any individual”.

Legal Challenges are Coming at HR Professionals from Every Direction

Tenn. Code Ann. § 40-29-107(j) (2018). Employers in Tennessee are granted two protections from civil liability for persons hired that have a certificate of employability. First, employers are immune from negligent hiring claims, provided that the employer knew of the certificate when the person was hired.

Tenn. Code Ann. § 40-29-107(n)(2) (2018). Consequently, if an employer hires an employee because he has a certificate of employability, the employer should be shielded from civil liability for any negligent hiring claim.

Second, for claims “relating to the retention of the person as an employee,” the employer’s liability is limited. Tenn. Code Ann. § 40-29-107(n)(3) (2018). That is, an employer is liable only if the following conditions are met: (A) Th e person, after being hired, subsequently demonstrates danger or is convicted of a felony; (B) Th e person is retained by the employer as an employee after the demonstration of danger or the conviction; (C) [ A victim] proves by a preponderance of the evidence that the person having hiring and firing responsibility for the employer had actual knowledge that the employee was dangerous or had been convicted of [a subsequent] felony; and (D) Th e employer, after having actual knowledge of the employee’s demonstration of danger or conviction of a felony, was willful in retaining the person as an employee.

Id. Thus, by offering protection from civil liability, Tennessee law implicitly encourages employers to hire ex-offenders who have a certificate of employability.

These protections, however, only apply to ex-offenders with a certificate of employability. Tennessee’s traditional rules apply to employers who hire ex-offenders without a certificate of employability. Tennessee law “recognize[s] the negligence of an employer in the selection and retention of employees and independent contractors.” Doe v. Catholic Bishop of Diocese of Memphis, 306 S.W.3d 712, 717 (Tenn. Ct. App. 2008). Specifically, a “plaintiff in Tennessee may recover for negligent hiring, supervision or retention of an employee if he establishes, in addition to the elements of a negligence claim, that the employer had knowledge [or should have had knowledge] of the employee’s unfitness for the job.” Id. Additionally, employers must be mindful of the potential legal implications of background checks and considering criminal records when making personnel decisions. Employers must ensure that they comply with federal and state law, such as Title VII of the Civil Rights Act of 1964 and the Fair Credit Reporting Act, when using background checks and considering criminal records in making personnel decisions. See e.g., EEOC Enforcement Guidance Number 915.002, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, EEOC Apr. 25, 2012.

That’s Why Rainey Kizer Makes Your Business Our Concern As the issues facing HR executives become more frequent, challenging, and complex each year, you need a law firm that provides advice invidualized for you specific needs.

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37

Is Employee Speech Protected by the First Amendment?

In

By KAREN W. ROCHE

the current political climate, speech that was once given little thought has become more divisive than ever. It is now common to see headlines of employers terminating employees based on comments made both in and outside the workplace. While many Americans believe they have the right to free speech and therefore cannot be fired for expressing their views, in reality, whether an employee’s speech is protected depends on who the employer is and what type of speech is at issue.

This article will discuss those issues, specifically looking at speech protections under the First Amendment and National Labor Relations Act (“NLRA”).

only protected by the First Amendment when an employee is speaking as a private citizen. Garcetti v. Ceballos, 547 U.S. 410 (2006). Though the Supreme Court has not provided much guidance on what constitutes speaking as a private citizen, generally, if the employee’s speech is ordinarily within the scope of his/her duties, the speech is outside the protections of the First Amendment and can be regulated by the government employer. Thus, speech about government wrongdoing or incompetence likely does not receive First Amendment protection.

THE FIRST AMENDMENT

Finally, even if a government employee is speaking as a private citizen on a matter of public concern, the employer may regulate his/her speech if its interest in regulating the speech to maintain an orderly and efficient workplace outweighs the employee’s interest in speaking out.

For example, if the speech will interfere with the employee’s responsibilities or create bad relations in the workplace, the government will be given broad discretion to discipline its employees for that speech.

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” Though widely misunderstood to give broad speech protections to all citizens in all situations, it applies only to government actors at the federal, state and local level. Thus, employees who work in the private sector do not have First Amendment protection for their speech in the workplace. While other protections may exist, the First Amendment itself does not prohibit a private employer from firing an employee for speech the employer disagrees with. A recent example is the firing of the protesters at the white supremacist rally in Charlottesville, Virginia last year. Though those protesters were engaged in political speech outside the work place which had no impact on their jobs, their private employers had the right to fire them for engaging in speech with which the employers disagreed.

Because the First Amendment protects citizens from government infringement on free speech, government employees do have some constitutional protections. However, like private employers, government employers have an interest in maintaining standards in the workplace, including around speech. Thus, as the Sixth Circuit has noted, a governmental employer “has far broader discretion to regulate the speech of its employees than it does as a sovereign regulating the speech of its citizens.” Roberts v. Ward, 468 F.3d 963 (6th Cir. 2006).

Ultimately, the government employer’s interests must be balanced with its employees’ rights under the First Amendment.

Courts use a three-part test to determine whether a government employee’s speech is protected. First, government employees’ speech is 38

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If the employee was speaking as a private citizen, the next question is whether the speech pertained to a matter of public concern. This is determined by looking at the content, form, and context of a given statement. Generally, speech relates to a matter of public concern if it discusses to a subject important to the public, such as broad social and political issues. Speech about personal issues and non-political expression usually do not constitute a matter of public concern.

Thus, even as a government employer, you have wide discretion to regulate the speech of your employees. However, even where the First Amendment does not apply, either because the speaker is a private employee or because a government employee is engaged in unprotected speech, federal and state statutes may provide protection. Anti-discrimination laws, such as Title VII, anti-harassment laws, and whistleblower laws, may restrict the type of speech an employer may punish.

Before punishing or restricting speech, employers should determine whether speech might fall into one of these protected categories by asking questions such as whether the employee is expressing religious beliefs, speaking a different language, reporting company violations, or using speech to retaliate against other employees.

THE NLRA The NLRA, which protects employees’ right to unionize, also protects some speech related to improving working conditions. However, as with the First Amendment, the NLRA has its limitations. The NLRA protects “concerted activity.” Thus, in order for an employee’s speech to be protected, the speech must relate to work-related complaints on

behalf of a group of employees. Employees may discuss and complain about their wages, hours, and working conditions. Though it does not protect individual complaints, even vulgar and profane speech about an employee’s supervisor has been found to be protected, as long as the speech relates to a workplace concern. See National Labor Relations Board v. Pier Sixty, LLC, 2017 U.S. App. LEXIS 6974 (2d Cir. Apr. 21, 2017). These protections apply to every workplace, not just those that are unionized.

However, even though such statements may be protected, the National Labor Relations Board (“NLRB”) has recently approved the use of rules promoting civility in the workplace. Previously, the NLRB had held that, because protected speech may include abusive or offensive comments, rules requiring courtesy and respect and/or prohibiting offensive, disrespectful, or negative conduct in the workplace were unlawful. Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).

Last year, in The Boeing Co., 365 NLRB No. 154 (2017), the NLRB reversed that position, instead concluding that civility rules are consistent with protected activities under the NLRA. The NLRB held that civility rules are justified by “the employer’s legal responsibility to maintain a work environment free of unlawful harassment based on sex, race or other protected characteristics, its substantial interest in preventing workplace violence, and its interest in avoiding unnecessary conflict that interferes with . . . productivity and other legitimate business goals.”

unlawful, and those that require individual analysis. The first category consists of rules requiring employees to abide by basic standards of civility, such as rules prohibiting abusive or threatening language in the workplace, negative attitudes in the workplace, failure to work harmoniously with others, and having negative or disparaging conversations about coworkers or supervisors. The NLRB reasoned that these rules do not interfere with the exercise of NLRA rights or have an impact on such rights that is outweighed by the employer’s interest in maintaining a workplace free of harassment, violence, and conflict.

The second category consists of rules that prohibit or limit protected conduct where such impact is not outweighed by the justifications associated with the rule. An example would include a policy prohibiting discussion of wages or benefits. As noted above, the final category includes rules that warrant individual scrutiny of the adverse impact on protected-conduct and whether such impact is outweighed by the need for civility in the workplace.

The Boeing decision gives employers broader discretion to regulate employee speech in the workplace. However, overly broad rules, such as those generally prohibiting offensive speech or conduct by its employees, still may not be used to discipline legitimate criticism of workplace conditions and policies. Employers should be careful to draft policies that are not overly restrictive and may be unlawfully applied down the road.

Under this new standard, although civility policies and rules are lawful, the application of those rules to employees who have engaged in protected conduct may violate the NLRA. The decision set forth three categories of rules: those that are per se lawful, those that are per se

Karen W. Roche, Attorney Burch Porter Johnson kroche@bpj.com www.bpj.com

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41

“Love Contracts”

as a Tool for Addressing Workplace Relationships

By ALLISON A. FISH

In the wake of the #MeToo and #TimesUp movements, many employers are rethinking their workplace fraternization policies (or are considering implementing such policies for the first time). In a study conducted earlier this year by Vault.com, 52% of respondents admitted to having been involved in at least one office relationship. Although romantic relationships among employees are nothing to be afraid of, the potential complications presented by these relationships can create legal risks that employers should keep in mind.

For example, one of the biggest risks employers face in dealing with workplace romance are sexual harassment claims. According to statistics published by the Equal Employment Opportunity Commission, it received 6,696 charges alleging sexual harassment in fiscal year 2017 alone.

“Love contracts,” or consensual relationship agreements, are one tool that has recently come into vogue to address the unavoidable reality of workplace romance. Specifically, some employers are requesting that employees in interoffice relationships affirm in writing that their relationship is consensual, that they are aware of the company’s sexual harassment policy, and that they understand they are free to leave the relationship at any time without fear of retaliatory consequences. While this novel approach could certainly help employers defend against future sexual harassment claims, it is not a foolproof strategy.

For starters, while a love contract is designed to demonstrate that a relationship was voluntary, an employee could nevertheless claim he or she felt pressured or forced to sign it. Similarly, an employee could claim that the relationship was consensual at the time the contract was signed, but that it later became nonconsensual, and thus, that the contract was no longer valid. Furthermore, because employers are strictly liable for quid pro quo sexual harassment involving supervisors, a love contract would not help an employer defend against such claims from a subordinate employee.

With respect to hostile work environment claims, a love contract might help demonstrate that an employee did not subjectively believe his or her work environment was abusive. However, whether behavior meets this standard is largely a question of fact, and a love contract is not likely to be enough, alone, to secure summary judgment in the employer’s favor. In other words, the employer will likely have to spend considerable time and money defending against a sexual harassment claim, even if the complaining employee signed a love contract.

Legal consequences aside, love contracts might not do much to help employers address other potential problems created by workplace romance. A love contract is not likely to placate employees who feel that a coworker has gained a professional advantage due to a relationship with a colleague or supervisor. Additionally, love contracts are unlikely to eliminate speculation and gossip among employees who know about the romantic relationship, which can damage morale and productivity. Moreover, requiring romantically-involved employees to execute love contracts might discourage them from being candid with their employer about their relationship, which defeats the purpose of the love contracts in the first place. Even if employees are willing to cooperate with their employer’s 42

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request that they execute a love contract, the process of executing such a document can be awkward for all parties involved, including human resources professionals tasked with enforcing the requirement.

While these legal and practical concerns might make employers feel like they should ban workplace romance entirely, such a policy is unrealistic and can be challenging to enforce. In addition to love contracts, there are other practices that an employer can implement to protect against the negative consequences of interoffice relationships. The most important step employers should take is implementing a formal fraternization policy and applying it uniformly. The policy should indicate what relationships, if any, are prohibited, and should clearly define those relationships (for example, by clearly defining what constitutes a supervisor/subordinate relationship). If certain interoffice relationships are allowed, the policy should require the involved employees to disclose the relationship to human resources or another appropriate party, and should require employees to refrain from engaging in certain displays of affection while at work. Lastly, the policy should clearly delineate the potential consequences for violating its terms (for example, a written warning or termination).

Furthermore, employers should strongly consider conducting periodic training on their sexual harassment policies and requiring employees to sign an acknowledgment that they received and understood the training offered. The training should provide concrete examples of inappropriate behavior and should inform employees of the mechanisms available for reporting potentially inappropriate behavior. This is a fairly inexpensive way for employers to reduce their legal exposure, both by discouraging inappropriate behavior before it begins, and by bolstering defenses to sexual harassment claims should they arise down the line.

In sum, while love contracts are a tool that may be useful to employers in protecting against some of the risks that workplace romance can pose, they are not infallible nor are they enough alone to adequately combat these risks. Before adopting a love contract policy, employers should carefully consider whether such a policy aligns with their overall culture and how it might affect employee morale. Should an employer choose to adopt the use of love contracts, it should consult with an employment attorney to ensure the contract is drafted in a manner that maximizes its potential benefits and minimizes its potential shortcomings.

Allison A. Fish, Associate The Kullman Firm aaf@kullmanlaw.com www.kullmanlaw.com

Grow Wherever You Work

By WILLIAM CARMICHAEL

An assumption is warranted here. I venture to say that early in your career there was someone you likely sought out for advice and counsel. It could have been a parent, an older friend, a relative perhaps, or even a seasoned manager you knew, but someone you trusted to keep you headed in the right direction at work. Someone to bounce things off of. I will also propose that the particular problem or issue you were encountering may have seemed insurmountable at that time in your career. Certainly no one had ever had to deal with this issue . . . right?

And more than likely their advice was exactly what you needed to hear. The reality is, however, that our careers don’t come with instruction manuals. A new job. A new industry. New people to deal with. And new sets of problems; for after all, isn’t a career a work-in-progress? You bet it is! Grow Wherever You Work; Straight Talk to Help with Your Toughest Challenges by Joanna Barsh, is the closest thing to a career instruction manual as you will find!

Really, a Career Instruction Manual?

Yes and no, and allow me to start with the latter. Grow Wherever You Work is not intended to provide advice on the next step in your career or determine if you need to change jobs or accept a new position. And although Barsh certainly has the credentials needed to do just that, this is not her intent in the book. Instead, what Barsh provides is incredibly insightful advice with handling those common challenges we all tend to find ourselves stumbling into in our careers. For example, what needs to happen when the passion we felt for the job begins to fade? Or how about the overwhelming pressure we must somehow manage when responsibility increases? Or when faced with an unflattering performance evaluation? And by the way, these three examples are taken directly from the first three chapters!

As a business and educational researcher, I am naturally drawn to works that are evidencebased and Grow Wherever You Work does not disappoint. Here, our author does not ask you to accept anything without reasonable ground for it. Empirical in nature, the reader can relate to the situations the individuals find themselves in. Albeit, a first job out of college where the person has no clue what they have just gotten themselves into or an experienced manager faced with getting everyone on-board with a needed project or decision, Barsh draws us in.

These are real people, in real situations that we easily relate to. And the honest truth is that not all of the people being interviewed you will like or agree with.

I said earlier that Grow Wherever You Work is insightful but perhaps more significant is that it is a well-researched hands-on guide that distills the of important work challenges from more than 200 rising leaders in 120 companies. And to borrow from the author, “helps you grow through the challenges you face—not despite them.” I also found that there are two separate genres at work here and both lie within the book’s title; Grow Wherever You Work and Straight Talk to Help with Your Toughest Challenges.

The author teaches us how to:

The bottom line that “Grow Wherever You Work” so tactfully illustrates is that people tend to avoid challenge — and that tendency is what most of us need to work on if we truly want to grow at work.

“Challenge is painful and scary, and it means you’re going to be uncomfortable and you might fail,” Barsh explains. “Yet if you face your challenge, you will grow no matter the outcome.”

Structure and Layout First impressions of the book’s Table of Contents is that it was written to be a linear read but it actually is not. Each chapter stands on its own.

The perfect example of this is when my eyes were immediately drawn to the interesting title of Chapter 11- “When Everything Sucks.” Let’s face it. A title like that deserves reading! My impression also is that Barsh’s intention may not have been to structure this excellent field reference guide as a textbook but it contains the same look and feel as a trusty training manual you retain and reference back to months or even years later. Its twelve short chapters revolve around five basic themes; preparation, questioning, talking through things, being intentional, and taking small steps. Each theme is then carefully woven into the situational interviews taking place. Most effective, however, is Barsh’s strategic use of two critical words during each chapter and scenario, and this is- “So What? “ As innocuous as this simple question may seem, the author’s unique insight is about to unfold and that readers of any generation will benefit from. Suffice it to say “you will be hard-pressed to find a story or category you don’t connect with.”

Who Will Benefit Most from This Book?

Human Resource Professionals, Senior Management, Entry-level Management About the author: JOANNA BARSH is a director emerita at McKinsey & Company, where she has worked for more than 30 years. She has global experience leading growth strategy, performance improvement, organizational effectiveness, and leadership development projects.

Joanna also created the Centered Leadership program to help executives lead transformational change. She is the bestselling author of How Remarkable Women Lead and Centered Leadership.

- Handle rising pressure and recover from colossal mistakes - Bounce back from poor performance reviews and use them to up your game - Get people on board with you and your mission - Deal with office villains like a superhero - Take uncomfortable risks and dare to challenge

William Carmichael, Ed.D

- Grow when everything is falling apart around you

Professor | Strayer University william.carmichael@strayer.edu www.strayer.edu

- Know when it’s time to find another position

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43

Trump Administration DOL Issues First Substantive Guidance on Independent Contractors

BY T AMMY MCCUTCHEN, ANGELO SPINOLA, THERESA WAUGH AND JESSIE BROWN

The Wage and Hour Division of the Department of Labor (DOL) issued a Field Assistance Bulletin (FAB) on Friday, July 13, 2018, titled “Determining Whether Nurse or Caregiver Registries Are Employers of the Caregiver.” Although this FAB focuses on the caregiver registry industry, it provides the new administration's first substantive guidance on independent contractor classification.

Last June, the DOL withdrew its 2015 Administrative Interpretation (AI) on independent contracting but did not replace the AI with other guidance, stating only that removal of the AI “does not change the legal responsibilities of employers under the Fair Labor Standards Act.” The 2015 AI on independent contracting, in a radical shift of direction for the DOL and departure from IRS standards, asserted that lack of control over the worker was not a determining factor for finding independent contractor status. The DOL concluded in the 2015 AI that “most workers are employees under the FLSA’s broad definitions.”

Returning to its historical approach, the DOL in the new FAB states it will consider the “totality of the circumstances to evaluate whether an employment relationship exists” and “will evaluate all factors … to reach appropriate conclusions in each case.” The factors the DOL will consider in the caregiver registry industry indicate a return to the focus on historically important factors, including control of the work performed by the independent contractor. For example, the DOL provided the following guidance regarding common registry practices. The recurring theme, which applies across industries, is that registries may avoid a determination that they are the caregivers’ employer if they avoid controlling and/or becoming involved in the client-caregiver relationship. Helpfully, however, the FAB acknowledges that registries can serve as the liaison between the independent contractors and caregivers without defeating the independent contractor relationship: 44

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• Conducting Background and Reference Checks: Conducting background checks, confirming credentials, and performing other quality-control measures do not indicate employment. Registries can cross the line into employment if they use subjective criteria to evaluate the suitability of independent contractors for referral to clients.

• Hiring and Firing: Once a registry informs a client of independent contractors who meet the client’s objective requirements, the client alone has authority to hire and fire the independent contractor from that engagement. Registries that are more actively involved in hiring, or that fire an independent contractor for violating the law, industry standards, or the client’s directives, may be considered employers.

• Scheduling and Assigning Work: Registries cannot control independent contractors’ schedules or manage the work independent contractors perform. Registries can facilitate initial communications between independent contractors and clients, but, afterwards, the independent contractors and clients must determine the schedule and the scope of work.

• Controlling the Work: Independent contractors and clients must manage their own relationship and the services provided. Registries cannot exercise control by giving training or instructions, evaluating independent contractors’ performance, requiring independent contractors to report to the registry instead of the client in the event of shift cancellations, limiting independent contractors’ work hours or number of clients, or prohibiting independent contractors from working directly with clients outside of the registry.

• Setting the Pay Rate: Independent contractors and clients must set the pay rates, but registries can act as a liaison and advise on typical market rates without straying into employer territory. A third-party payor, such as Medicaid or other government programs, dictating the pay rates does not indicate the registry is the employer.

• Continuous (Hourly) Pay for Services: Charging fees based upon the number of hours an independent contractor works may indicate an employment relationship, as the registry may have an ongoing interest in how many hours the independent contractor works and the accuracy of the reported work hours. One-time fees and administrative charges do not indicate employment.

• Providing Payroll-Related Services: Registries can perform “payroll-related functions,” including collecting clients’ payments and disbursing the payments to independent contractors without being considered the employer. Advancing pay to independent contractors from registry funds, as opposed to waiting for the clients’ payments, may indicate employment.

• Tracking Hours Worked: “Active creation and verification” of independent contractors’ time records point toward employment. Registries are limited to requiring submission of accurate time records and collecting time records that the client has verified or adjusted for purposes of any payroll processing services the registry provides.

• Purchasing Equipment and Supplies: A registry’s operational expenses and investment in office space do not indicate employment so long as the registry does not provide equipment or materials to independent contractors. Investment in training, professional licensing, or insurance for independent contractors point toward employment.

• Receiving EINs or 1099s: Independent contractors acquiring Employment Identification Numbers from the IRS, complying with state law by carrying liability insurance, or being issued an IRS 1099 form are not relevant to whether those individuals have been properly classified as independent contractors.

The FAB provides long-awaited and specific guidance on how to structure independent contractor relationships in the caregiver registry industry but also more generally, and it signals the DOL’s return to the traditional, multi-factor balancing test to determine independent contractor status with a primary focus on control of the worker. This guidance is welcome news for employers following the tougher new California independent contractor standards under the Dynamex decision.

Independent contracting will remain one of the most challenging issues facing the business community because of the stark differences in legal standards between federal and state laws—and even among different laws in the same state (e.g., taxes versus wage-hour versus unemployment). In light of the DOL’s new FAB and the Dynamex decision, businesses should consider reviewing their independent contractor relationships under both federal and state laws. © 2018 Littler Mendelson. All Rights Reserved.

LITTLER MENDELSON®, ASAP® is a registered trademark of Littler Mendelson, P.C.

Tammy D. McCutchen, Principal Littler – Washington, D.C. tmccutchen@littler.com www.littler.com

Angelo Spinola, Shareholder Littler – Atlanta, GA aspinola@littler.com www.littler.com

Theresa M. Waugh, Of Counsel Littler – Orlando, FL twaugh@littler.com www.littler.com

Jessie M. Brown, Associate Littler – Atlanta, GA jmbrown@littler.com www.littler.com

A LITTLER EVENT Thursday, September 20, 2018 Update on the NLRB’s Changing Views on Handbook Policies and Other NLRB Developments Under the Trump Administration Registration & Lunch: 11:30 a.m. – 12:00 p.m. | Program: 12:00 p.m. – 1:00 p.m.

Location: Littler Memphis | 3725 Champion Hills Drive, Suite 3000 | Memphis, TN 38125 For registration, please contact Claire Krummenacher at ckrummenacher@littler.com.

littler.com 3725 Champion Hills Drive, Suite 3000 | Memphis, TN 38125 | 901.795.6695 www.HRProfessionalsMagazine.com

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ICE Delivers over 2,700 I-9 Audit Notices in One Week in July 2018

By BRUCE E. BUCHANAN

Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) were out in force during the week of July 16 delivering Notice of Inspection (NOI)/audit notices. Incredibly, HSI served 2,738 NOIs and made 32 arrests in a one-week period. This is a massive operation and more NOIs than usually are delivered in a year’s time.

ICE’s Delivery of Notices of Inspection ICE announced I-9 audit notices have been served to more than 5,200 businesses around the United States since January 2018. During the first phase of the operation, January 29 to March 30, 2018, HSI served 2,540 NOIs and made 61 arrests. Thus, at the present rate, ICE-HSI will reach over 8,500 NOIs for the 2018 calendar year. This is over 5,000 audits more than the highest previous amount of about 3,100 in 2013.

HSI is currently carrying out its commitment to increase the number of I-9 audits in an effort to create a culture of compliance among employers, according to Derek N. Benner, Acting Executive Associate Director for HSI. HSI’s worksite enforcement strategy focuses on the criminal prosecution of employers who knowingly break the law, and the use of I-9 audits and civil fines to encourage compliance with the law.

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

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Statistical Evidence Failure to follow the Immigration Reform and Control Act can result in criminal and civil penalties. In FY17, businesses were ordered to pay $7.8 million in civil fines and $97.6 million in judicial forfeitures, fines and restitution with Asplundh Tree Experts assessed $95 million. This is the largest payment ever levied in an immigration case.

In FY 2018 to date, HSI opened 6,093 worksite investigations (I-9 audits) and made 675 criminal and 984 administrative worksite-related arrests, respectively. In fiscal year 2017, HSI opened 1,716 worksite investigations; initiated 1,360 I-9 audits; and made 139 criminal arrests and 172 administrative arrests related to worksite enforcement.

How to Prepare for ICE I-9 Audit Will your company be the next target? One of the best ways to prepare for an I-9 inspection by ICE is to hire an immigration attorney, who is experienced in worksite enforcement and immigration compliance issues. Even if you currently have an immigration attorney for employment-based visas, there is a good chance that he or she does not handle worksite enforcement, such as ICE inspections. Therefore, if you have an immigration attorney, reach out to him or her and inquire as to whether they are experienced in worksite enforcement matters. If so, great, but if not, ask him or her to refer you to an experienced immigration compliance/worksite enforcement attorney. You don’t want to wait to do this after ICE shows up at your facility.

The next step is for your immigration compliance attorney to conduct or supervise an internal I-9 audit. Through this audit, numerous errors will be found, most of which can be corrected so that if ICE inspects your I-9 forms, the errors will not be considered substantive errors, for which you can be penalized. And don’t kid yourself, your I-9 forms have lots of errors.

Also, don’t be fooled by the fact that all your employees are U.S. citizens.

You can still have substantive and technical I-9 errors. Another common comment from employers is I’m in great shape as we use E-Verify. Although E-Verify is excellent in establishing who is authorized to work, it cannot locate substantive or technical errors on the I-9 forms.

If an ICE I-9 audit occurs, getting an attorney involved as soon as a NOI is delivered can help an employer in several ways. An attorney may help the company negotiate a few days’ extension in responding to the subpoena.

And/or the attorney may be able to get a reduction in the list of requested documents. Most importantly, an attorney can help the employer prepare to respond in a methodical and thoughtful way.

Being prepared for a NOI/subpoena requires a company to have proper procedures in place upon hiring. The best way to have these procedures in place is with written Immigration Compliance Policy. Under such a policy, every employee responsible for completing I-9 records on behalf of the company should be trained to do so. To many people, it is hard to tell the difference between a green card and a work authorization document issued to a recipient of DACA or TPS. Yet, one represents permanent work authorization that should never be reverified, and the other requires the employer to reverify the I-9 form upon the document’s expiration.

If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon. com/dp/0997083379.

Bruce E. Buchanan, Attorney Siskind Susser PC bbuchanan@visalaw.com www.visalaw.com 46

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The University of Memphis August 22, 2018

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1 Cristie Travis, CEO of the Memphis Business Group on Health 2 Maura Cawley, Partner with Mercer, was a keynote speaker. Her topic was “Are Employees the Real Disrupters?” 3 Leah Binder, CEO, The Leapfrog Group, was a keynote speaker also. Her topic was “Disruption Without Transparency?”

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4 Al Lewis, CEO of Quizzify, led an afternoon general session. 5 Dinesh Sheth, CEO of Green Circle Health, led a breakout session on “Disruption in Our Own Backyard?” 6 Michelle Copenhaver, Aetna, led a breakout session on “Will Health Plans Shake Up the Market?” 7 Carolyn Pare, President and CEO of the Minnesota Health Action Group, led a breakout session on “Begging for PBM Disruption?”

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8 Barbara McClanahan, Associate Professor at the University of Memphis, led a breakout session on “Want to be a Disrupter?” 9 Austin Baker, President and CEO of HRO-Partners, and Shawn King, VP of Enrollment Services at HRO-Partners 10 Sally Pace, CEO of Connect Health Healthcare

www.HRProfessionalsMagazine.com

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Power of POSITIVE Persuasion

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By LINDA YATES

ave you ever tried to get someone to do something they didn’t want to do?

Raising children is a prime example of exercising persuasion. I bore three children, two boys and a girl. My eldest, Trevor has always been hard to persuade, convince, and induce. Early in his life, I had to learn certain “tricks” to get him to do what I wanted and needed him to do. As he became a toddler, I worried about how I would get him to give up his pacifier. Everything I did seemed to make him want to hold on to it longer. I tried to convince him that he was a "big boy" and didn't need his "NUK" anymore. It finally happened during another fun activity, that of toilet training. One day he dropped it in the toilet and boom, he believed the “NUK” was no longer. Like children, your co-workers, colleagues, and customers may be hard to persuade.

6. B eing confident. When we are confident about what we are asking others to believe, our ability to persuade goes up. Confidence breeds confidence. Confidence is synonymous with passion. Passion is attractive and engaging.

Oftentimes when I present I will ask the question – “how many of you are in sales?” a few hands will go up, given the make-up of the group. Are we not all in “sales” of one form or another? Do we not have to persuade, influence and induce many times throughout the day?

8. S carcity. Individuals hate to lose out on an perceived opportunity. Marketers have learned the art of promoting a product or service that may be going away. When we connect with that product or service we will want the said item.

As with sales, persuasion can have negative connotations. Your intent is what will define whether you are persuading in a positive way. The individual that you are striving to persuade will decide if it is positive or negative. The following are some strategies to persuade in a positive way: 1. T rust is the foundation principle in getting others to act. If the individual we are trying to persuade doesn’t trust you then your efforts will stymied. Building trust starts with respecting the other person. We build trust by listening for what is not being said. When we trust another person we have a tendency to be loyal. Think about the people you trust the most. Would they try to persuade you to do something you didn’t feel right about? My guess is no, otherwise you wouldn’t be trusting them. Something inside you would hold back trust.

2. B irds of a feather flock together. When we connect or feel like we have some commonality with the other person we are more likely to persuade. The best salespeople are likeable and can get along with every and any personality type.

3. W alking in their moccasins. When we put ourselves in their shoes we will come across as more empathetic and genuine. Showing empathy builds trust.

7. B eing known as a person with integrity. Your personal image and actions will be your biggest asset. When you act with integrity, others will trust you.

9. B uilding rapport. The best way to establish rapport is to ask “what” and “how” questions.

Finding commonality will open the door to shared experiences and opportunities.

Connecting with another person is where acceptance begins.

10. Being tenacious. When you are persistent and don’t give up you will see your labors rewarded. Persistence and persuasion go hand in hand.

11. Exercise flexibility. When you show that you are flexible you become more likeable. The more likeable you are the more you can persuade.

4. T it for Tat. When you give something to another person, they will often feel compelled to return your generosity. Karma does come back around. This happens all the time in my marriage. My husband and I set the initial expectation about cooking and cleanup. Whoever does the majority of the cooking gets to have a pass at clean-up and doing the dishes.

12. B e willing to walk away. Strong arming someone into doing something you might want them to do, may pay-off in the short term. Yet to persuade in an positive way, for the long run, will need an understanding of when to walk away.

5. A ctions speak louder than words. Our body language has a lasting impact when we are seeking to influence. We pick up on others’ non-verbal messaging such as gestures and posture. If the person you are trying to persuade has closed body language your ability to influence decreases. You have got to get them to open up with their body so they are open to your requests.

13. Two ears vs. one mouth. Your ability to listen more than you are speaking will enhance your ability to persuade. I had an experience where using my ears was more important than my mouth. I was in an interview with

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the managing partner of a professional services firm.

That interview taught me the power of listening. I would start to answer his question and then he would interrupt me with a story. After several attempts to answer the questions I realized that my job was to listen. He kept talking so much he talked himself into offering me the position and I hardly said a word.

Why did your organization hire you? What is your purpose? Are your fulfilling your purpose? Who is it that you need to persuade? To deliver positive results you need to understand what is important. Whose expectations you are trying to meet? To help you meet their expectations, ask the following questions: a. What would you like me to focus on? b. What frustrates you?

14. Smile, even when you are not face-to-face.

Sales professionals have learned the art of putting a smile on their face when they speak on the phone.

You can actually hear someone smiling. When you smile, you project confidence, positivity and kindness.

15. Exercise faith rather than fear. Picking up on non-verbal cues, we can usually tell when another person is nervous. When you are looking to persuade or influence act with faith that all will turn out well.

The power of positive persuasion starts with checking in with our purpose. Your purpose defines everything you do from going to work to achieving your goals. As I get to work with leaders, teams, and individuals I am persuading all the time. I understand why they hire me. They are hiring me to help push them to reach their goals and strategic initiatives. It takes discipline to persuade oneself and be persistent.

c. How can I help you achieve your goals? d. What is your desired outcome?

Execute on the answers to the above questions. Your value will increase within the organization. When your value increases, your ability to persuade also increases.

You have the power to impact others in a positive way. To impact you will need to rely on others to help you. Your ability to persuade others is a must. It will be the doorway to reaching your individual goals. As you put in place these strategies, others will want to help you. You won’t have to rely on any “tricks” like I had to with Trevor.

Linda H. Yates linda@lhyatesconsulting.com The Image Energizer Keynote Speaker, Executive Coach & Corporate Trainer www.LindaHYates.com

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

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wlj.com

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‡ Reasons to Hire People with Developmental Disabilities

By HARVEY DEUTSCHENDORF

I still remember going to my aqua size class when Kent was there. He was a young man with Downs Syndrome. After I got to know him, aqua size became a lot less of a grind and a lot more fun. We would splash each other, come up with goofy sayings and razz each other. It felt like I was released from the pressures and expectations of being a responsible adult and had permission to become real and authentic kid temporarily. When Kent wasn’t there, something was missing. The fun, spontaneity and energy were gone. While 15% of people with developmental disabilities (DD) are employed, 40% would like a job. Matthew Gonnering, CEO of Widen, has hired 5% of his workforce from persons with developmental disabilities and has become a strong advocate for organizations to do so. In his TEDx talk https://www.youtube.com/watch?v=P147-dK4lhA he explains why he feels so passionately about this. While there are concerns that employers have about hiring persons with developmental disabilities, those who have done so report the benefits far outweigh any extra effort required to onboard and keep these deserving people on the company payroll. Findings by the Institute for Corporate Productivity http://cdd. unm.edu/pfe/pdfs/Top4ReasonstoHireSomeoneIDD.pd indicate that organizations that hired intellectually and developmentally disabled workers found the challenges of hiring to be 42% less than expected while the performance ratings were 75% good to great on most factors.

Here are 7 good reasons that it is a good idea for organizations to hire people with developmental disabilities.

Encourage a Positive Attitude Amongst All Staff Most people with disabilities love their jobs and have a positive attitude in the workplace.

This rubs off on those around them and increases this positive inclination of those they work with. People who are likely to complain and gripe are less likely to do so. Seeing coworkers who are less fortunate giving their best with a positive approach makes it likely that negativity will find less support.

More Reliable and Conscientious Happy and proud to have a job, people with developmental disabilities (DD) take less sick days, arrive for work on time more often and return from breaks more promptly than their coworkers. They are hard workers and will take on tasks to the best of their ability. Taking pride in a job well done, they take direction well and are less likely to display a negative attitude and/or arrogance.

An Inspiration to Their Coworkers Developmentally Disabled workers’ upbeat and can-do attitude inspires their coworkers. Teamwork improves as coworkers reach out to help them succeed as part of their team. This helping attitude in turn helps spread cooperation and goodwill amongst all staff across the organization.

Increase Organizational Spirit and Desirability of the Organization as a Place to Work Hiring persons with DD sends the message that inclusion, diversity and equality are important values of the organization. It is a message that appeals to prospective employees, especially millennials.

A recent survey by the US Business Leadership Network found that 68% of millennials believe it to be very important that a company they work for fosters a workplace that is diverse and inclusive.

Customers Prefer Organizations That Hire Persons with Developmental Disabilities A national survey was conducted to find out how customers viewed companies that hired persons with disabilities. They discovered that 92% of customers felt more favorably toward organizations that hired persons with DD. 87% specifically mentioned that they would chose to do business with a company that hired persons with developmental disabilities over ones that did not.

Creates a Ripple Effect with Other Organizations Seeing that your organization has had success in hiring people with DD will encourage and motivate other companies to do the same. When they see the benefits that persons with disabilities have brought to your organization, other organizations will want to follow suit and gain similar benefits. Companies that have fears and misconceptions around hiring people with DD will have their concerns greatly diminished by looking at the success of others that have.

Dedication and Loyalty to the Organization Grateful to have a job, persons with DD are more likely to stay at a job and less likely to look for other opportunities. This decreases turnover and makes for a more stable environment for employers.

While 1∞% of people with developmental disabilities(DD) are employed, ›0% would like a job.

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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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Winter Exam Window December 1, 2018 - February 15, 2019 For more information visit shrmcertification.org Deadline to register is October 15 Contact cynthia@hrprosmagazine.com OR visit our website at www.hrprofessionalsmagazine.com About the instructor: Cynthia Y. Thompson is Principal and Founder of The Thompson HR Firm, a human resources consulting company in Memphis. She is a senior human resources executive with more than twenty years of human resources experience concentrated in publicly traded companies. She is the Editor | Publisher of HR Professionals Magazine, an HR publication distributed to HR professionals in Alabama, Arkansas, Florida, Georgia, Kentucky, Mississippi, and Tennessee.

Cynthia has an MBA and is certified as a Senior Professional in Human Resources (SPHR) by the Human Resource Certification Institute and is also certified as a Senior Certified Professional by the Society for Human Resource Management. She is a faculty member of Christian Brothers University. Cynthia was appointed to a six-year term by Tennessee Governor Bill Haslam to serve on the Tennessee Board of Appeals in 2014. She was recently named SHRM-Memphis HR Executive of the Year. www.HRProfessionalsMagazine.com

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Eeny Meeny Miney Moe. Pick the driver with the DUI and go.

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