September 2021 Digital Issue HR Professionals Magazine

Volume 11 : Issue 9

TM

www.HRProfessionalsMagazine.com

How

Marijuana Legalization

is Impacting Employers in the Southeast

11th Anniversary Issue Highlights from the 2021 TN SHRM Conference

Johnny C. Taylor, Jr., SHRM-SCP, CEO of The Society for Human Resource Management

The Use of

Pronouns:

Not as Simple as We Once Thought

Deadline to Register for Affordable Online SHRM CP | SCP Certification is October 25!

What Talent Wants – Tips to Recruit & Retain

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 900 lawyers located in 53 offices across the United States and in Europe, Canada, and Mexico.

www.ogletree.com BIRMINGHAM OFFICE

MEMPHIS OFFICE

420 20th Street North Suite 1900 Birmingham, AL 35203 205.328.1900

International Place, Tower II 6410 Poplar Avenue Suite 300 Memphis, TN 38119 901.767.6160

2 0 21

Join our monthly webinars to earn SHRM and HRCI recertification credits.

Bringing Human Resources & Management Expertise to You

3%

salary increase projected for 2022 www.HRProfessionalsMagazine.com

Features 4 note from the editor

Editor Cynthia Y. Thompson,

5 Profile of Johnny C. Taylor, Jr., SHRM CEO 8 Looking Back 2012-2018

MBA, SHRM-SCP, SPHR

22 HR Outsourcing 101

Publisher

28 A Labor Day Salute

The Thompson HR Firm, LLC Art Direction

Park Avenue Design Contributing Writers Michael Bruno Harvey Deuschendorf Susan Hanold Greg Hare John Hawkins Irene Hendricks Anne E. Hensley, JD Anne Hensley Blair and Bruch Johanson Taylor Flake Lawson Tae Phillips Ed Trent Jim Trujillo

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. ©2021 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.

Top Educational Programs for HR Professionals 9 Emory University – Legal Training for HR Professionals

30 Data Facts Debuts on Inc. 5000 List

19 ECU MBA – Top Ranked Online or On Campus

Talent Management and Recruiting

21 Athens State University Master of Science in Strategic Human Resource Management – 100% Online | Nationwide Best Value!

10 What Talent Wants – Tips to Recruit & Retain 12 How a Values-based Employer Brand Can Position Your Organization to Win the Talent Wars 16 The Rising Tide of Minimum Wage 20 Welcome Employees Back with the Holiday Gift Check Program 26 Background Screening: What to Start Doing, Stop Doing, Keep Doing 42 One Action Leaders Could Start Doing Immediately to Build an Emotionally Intelligent Workplace

Employee Benefits and Compliance 15 Living Your Best Life Means Having Life Insurance 22 Want Employees to Immunize? You May Need to Incentivize!

32 Employee Focused Retirement Plans

Employment Law 14 High Times: How Marijuana Legalization is Impacting Employers in the Southeast 18 The Use of Pronouns: Not as Simple as We Once Thought 34 How to Write a Vaccination Policy for Your Organization

27 Register for Our 4th Annual Supervisor and Manager Conference November 19 in Memphis 37 Save the Date for our September Webinars 38 Register for Online SHRM Certification Exam Prep Class Beginning October 25 44 WGU – Online. Nonprofit. Surprisingly Affordable.

Industry News 6 Highlights from the 2021 TN SHRM Conference in Nashville August 15-18 31 NCSHRM Revision 2021 in Greensboro October 20-22 36 Better + Together Beach Retreat October 7-9 39 SHRM-Atlanta SOAHR Conference September 27-29 40 SHRMGA Conference at Evergreen Resort September September 22-24 41 Arkansas SHRM 2021 Conference & Expo in Rogers September 21 – October 1 October Issue features Employee Benefits Planning and Compliance plus Updates on Employment Law Deadline to reserve space September 15

www.HRProfessionalsMagazine.com

3

a note from the editor

Mildred Sanders Yon

�

September 9, 1935 – August 11, 2021

This issue is special for three important reasons. First of all, I am dedicating this issue to my Mom. She was my biggest fan. She couldn’t wait for her copy to arrive each month to read the note from the editor.

She said that was her favorite part.

The second thing that makes this a very special issue is that

We will kick off year eleven with four important SHRM Conferences in September including the 2021 SHRM Annual Conference in Las Vegas September 9-12, the SHRMGA Conference at the Evergreen Resort September 22-24, the SHRM-Atlanta SOAR21 Conference September 27-29, and the ARSHRM State Conference in Rogers September 29-October 1. It will be a very busy month!

SHRM CEO, Johnny C. Taylor, Jr., is on the cover! What an honor

As you may know, the SHRM Certification Winter Exam

to be on the cover with him! It was also a pleasure interviewing

Testing Window opens December 1. See Page 38 for details

him after his fantastic keynote speech at the 2021 Tennessee SHRM Conference in Nashville last week. Be sure to catch my interview with Johnny on our Facebook page. It was one of his most inspiring speeches ever! The video is a “must-see!”

The third reason this is a very special issue is that we are celebrating 11 fantastic years at HR Professionals Magazine this month! Hat’s off to our sponsors, contributors, and you for making these past ten years so successful! We are honored to be the official media sponsor for the SHRM State Conferences

and the link to apply. Our next Online SHRM Certification Exam Prep Class will begin October 25. The last day to register for our next class is October 18. Register at www. hrprofessionalsmagazine.com. If you are not a certified HR professional, I encourage you to get certified! It will take your career in human resource management to the next level.

Just a reminder about our complimentary monthly webinar sponsored by Data Facts. It will be September 21. Watch your email for your invitation.

in Alabama, Arkansas, Georgia, Florida, Kentucky, Louisiana, Mississippi, North Carolina, and Tennessee. What 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 Talent Conference and the Annual SHRM Conference each year.

4

www.HRProfessionalsMagazine.com

cynthia@hrprosmagazine.com @cythomps

on the cover

Johnny

C. TAYLOR, JR.

Johnny C. Taylor, Jr., SHRM-SCP Chief Executive Officer Society for Human Resource Management Johnny C. Taylor, Jr., SHRM-SCP, is President and Chief Executive Officer of SHRM, the Society for Human Resource Management. He is an active volunteer for education, employment, and other social causes, serving on the boards of the University of Miami, Jobs for America’s Graduates and the American Red Cross and as an advisor to Safe Streets & Second Chances, an initiative to reduce the high rate of recidivism among the formerly incarcerated.

He has served on the corporate board of Gallup, the world’s leading public opinion and consulting firm. Mr. Taylor holds both a Doctor of Jurisprudence and a Master of Arts with honors from Drake University. He obtained a Bachelor of Science with honors from the University of Miami. He is licensed to practice law in Florida, Illinois and Washington, D.C. 

The Society for Human Resource Management was founded in 1948. It was formerly called the American Society for Personnel Administration. SHRM is a professional human resources membership association headquartered in Alexandria, Virginia. SHRM promotes the role of HR as a profession and provides education, certification, and networking to its members while lobbying Congress on issues pertinent to labor management.

www.HRProfessionalsMagazine.com

5

1

2

3

4

5

6 6

www.HRProfessionalsMagazine.com

1 Johnny C. Taylor, Jr., SHRM CEO, delivered the opening keynote message for the conference. He discussed how HR is evolving as the world around us changes. 2 Johnny C. Taylor, Jr., SHRM CEO, presents Frances Flowers, Director of TN SHRM, with Tennessee’s most prestigious honor, The James House Williamson Award. 3 Jason Dorsey, General Session Keynote, presented “Rethinking Generations.” 4 Gwendolyn Tucker, President of Rix International; and Cindy Ogden, President of FUEL it, discussed how to measure and mitigate implicit bias. 5 The 2021 Tennessee State Council (L-R) Bryan Long, Catherine Barnes, Fred Bissinger, Rhonda Livingston, Jim Pew, Brad Federman, Brigette Wilson, Jill Barnes, Deneen Lester, Art Smith, Frances Flowers, Rebecca Hunter, Stephanie Hawkins, Andy Wainwright. 6 Howard B. Jackson, Rosalia Fiorella, and Nicholas B. Snider, attorneys with Wimberly Lawson

7

8

9

10

11

12

13

14

15

16

7 Mary Leigh Pirtle, attorney with Bass, Berry & Sims, spoke on “The Latest Trends in Harassment and Workplace Bullying Lawsuits.” 8 Dr. Trish “Doc” Holliday, SPHR, SHRM-SCP, IPMA-SCP, Ed.D, with Holliday Kenning; and Dr. Kathy Tuberville, SPHR, SHRM-SCP, Ed.D, with the University of Memphis, presented “Get Ready! Succession Planning Now Starts with College Relations Recruiting!” 9 Fred Bissinger, Regional Managing Member of the Nashville Office of Wimberly Lawson, presented an ADA legal update. 10 Coretha Rushing, Board Member, 2U Inc., Benefitfocus, was a General Session keynote speaker. Her topic was “Addressing the Challenges and Dynamics Affecting Work, Workplaces, Leaders and Workers.” 11 2021 TN SHRM Recipients of the HR Excellence Award (L-R) Jill Barnes, (Awards Chair), Tyler Stegall, Lauren Troutman Key, Gary Hall, Brigette Wilson 12 Members of SHRM-Memphis attending the conference. 13 Luther Wright, Of Counsel, with Ogletree Deakins Nashville office, presented “Off Duty Social Media Conduct: When Can an Employer Lawfully Take Action?”

14 (L-R) Faith Stipanovich, Field Services Director for SHRM; and Tiffany Brown, Certification Specialist for SHRM Affiliate Operations, discussed “Advance Your Career with SHRM Certification.” 15 Kevin Ford and Anita Blackmer with Fedlogic. 16 Jason Howard entertained attendees as they headed from session to session. www.HRProfessionalsMagazine.com

7

Volume 5 : Issue 9

Volume 11 : Issue 9

TM

Anniversary Issue www.HRProfessionalsMagazine.com

TM

www.HRProfessionalsMagazine.com

How

Marijuana Legalization

is Impacting Employers in the Southeast

11th Anniversary Issue

A Flak Jacket Against Blowing Up HR

Highlights from the 2021 TN SHRM Conference

SHRM-Memphis HR Excellence

Johnny C. Taylor, Jr., SHRM-SCP,

Awards

CEO of The Society for Human Resource Management

The 50th

Anniversary

of the EEOC

Vanessa S. Burns,

MSA, SHRM-SCP, SPHR President of SHRM-Memphis

Best Kept HR Secret Job Description Software for New FLSA Regs

The Use of

Pronouns:

in Brentwood September 10

Not as Simple as We Once Thought

Deadline to Register for Affordable Online SHRM CP | SCP Certification is October 25!

Volume 3 : Issue 7

Volume 4 : Issue 12 TM

What Talent Wants – Tips to Recruit & Retain

www.HRProfessionalsMagazine.com

Results of the DOMA’s Downfall

The Supervisor

Liability Rule

TM

www.HRProfessionalsMagazine.com

SHRM’s HR Competency Model

Not

Job Descriptions Why HR

Advocacy

Mike Aitken Total Compensation Statements

HR

11 Years of HR Professionals Magazine!

to the Tennessee

Lisa K. Horn

Benefit Forecast for 2015

Human Rights Act

Co-Leader, SHRM’s Workplace Flexibility Initiative

SR Government Relations Advisor

Volume 2 : Issue 6

Volume 6 : Issue 5 TM

TM

www.HRProfessionalsMagazine.com

www.HRprosMemphis.com

Highlights from

2012

2016 MSSHRM Conference

Workplace

AR SHRM

Investigations and

Conference

Confidentiality

Highlights

from the 30th Anniversary

ARSHRM Conference EEOC

DOL Issues

on Transgenders

to Businesses

Guidelines

Gag Order Across the Country Under the Revised

Outplacement –

Persuader Rule

The Hidden Cost of Change

Fitness FOr Duty:

Can an Employer Exclude a Worker Based on Health or Safety reasons?

Director of aR SHRM State Council

Lindsay Carter

MSSHRM Diversity Chair

Kelly K. DeStefano

Highlights

from the 26th Annual

NWMS SHRM Annual Spring Training seminar

do’s & don’ts for Your SOCial MEdia Policy

www.HRProfessionalsMagazine.com

SHRM VP Government Affairs

A Pharmacy Recent

Amendments

Celebrating

Again

Matters

How Will Health Care reform Impact Your Organization?

Professionals in HigHer Education

8

ADP

ACA Seminar

SHRM-Atlanta HR Conference

Why Employee

Stock Ownership Programs Matter to Private Companies

PUT THE LAW TO WORK FOR YOUR CAREER LEGAL TRAINING FOR HR PROFESSIONALS Gain the legal knowledge and skills to navigate contracts and contract drafting, labor laws,

business immigration, dispute resolution, and employment discrimination law. Make an impact in your career with the Juris Master degree by enhancing your knowledge of employment law.

Online and On-Campus Options Scholarship Opportunities Available

“TheEmory Law Juris Master program provided me with the legal knowledge essential for executive level human resources leadership.”

BETSY HAMES

ASSOCIATE DEAN & CHIEF HUMAN RESOURCES OFFICER DUKE UNIVERSITY SCHOOL OF MEDICINE 2014 JM GRADUATE

Learn more: law.emory.edu/jm Email: JMadmission@emory.edu

What Talent Wants: Tips to Recruit and Retain

By SUSAN HANOLD

With the current market, employers are faced with some tough talent decisions. It is now a job switchers’ market, which means employees are likely to make more money by switching companies. Job switchers have been the winners in the pandemic labor market. So, what can employers do to attract and retain top talent?

Prioritize work It is a good business practice to be laser-focused on critical tasks to maintain business continuity and keep operations running smoothly. Take a step back to determine what are mission-critical tasks and which tasks can be put on pause or automated. As you re-evaluate tasks, this is a good time to re-evaluate your talent. This is the time to allow talent to move around to other teams and departments to allow them the chance to leverage new skills or move away from a department that might not be as productive during this market. This can be as simple as talking to your team members in weekly one-on-ones to build focus and motivate and inspire them to reach their goals. Next, consider where the work needs to get done. Is it necessary to be in an office? Is it necessary to be in the same city as it has always been done? Is remote a possibility?

Focus on current talent There is also opportunity now to see how employees are coping with changing work schedules, routines, and the overall work environment. Take time to focus on mental wellness and reducing the chance of burnout. As employers are navigating the uncertainties of defining where to work and how much flexibility to allow or encourage, their decisions will affect the day-to-day experiences and overall wellbeing of their employees. When employers listen to employees about what is going well and how they are doing, employees are likely to be more resilient and more engaged.

The virtual water coolers now have a solid place in the social networks of companies as a place to welcome new employees, reduce isolation and build that social connection.

Focus too on building a culture of recruiters and ambassadors of talent. Recruiting does not have to be looking for talent outside of the company but rather taking advantage of the talent you already have. Is someone looking for a change? Are they anxious to take on new responsibilities?

Help them explore those possibilities.

Forbes shared that a study

by SoFi reveals that due to the onset of Covid-19, 59% of people feel it is more important now than ever that their employers offer financial wellness benefits.

10

www.HRProfessionalsMagazine.com

these short-term solutions will impact the market longer term. Forbes shared that a study by SoFi reveals that due to the onset of Covid-19, 59% of people feel it is more important now than ever that their employers offer financial wellness benefits. Financial wellness can be another differentiator when attracting talent. Financial wellness is a top priority for employees, and they increasingly welcome the role of their employer in providing tools to help them better manage their finances.

Provide skill development The “how” to learn new skills is evolving.

There is an increase in online learning and the use of video. Invest in the technology to put your company ahead on retention and upskilling your talent. Ensure technology allows employees a customizable experience and takes into consideration their individual preferences. When economic changes require businesses to adapt quickly to new market trends, being able to identify and prioritize the skills most essential to keeping business functioning can help your company thrive.

Focusing on your talent matters and can save you time and money down the road. Tips such as providing your employees the training when and where they need it, evaluating your overall hiring process, and prioritizing work will all enhance your retention strategy.

Evaluate your hiring incentives and benefits When it comes to perks and benefits for jobs today, one of the commonly asked questions from candidates to a recruiter is, “Is this job virtual?” The number of job postings that offer “virtual or work from anywhere” options has increased. Bloomberg recently stated that Americans are willing to take a pay cut to never go back to the office. Hiring incentives such as referral payments and appreciation bonuses are heating up the debate as to whether

Dr. Susan Hanold

Vice-President Strategic Advisory Services ADP

www.HRProfessionalsMagazine.com

11

How a Values-based Employer Brand Can Position Your Organization to Win the Talent Wars

By MICHAEL BRUNO

Your Brand is Your Promise A strong employer brand (or employment brand) can separate good employers from great employers. They are the organizations people dream of working for. They are the companies on “best places to work” lists and with raving Glass Door reviews. But what exactly is an employer brand? At its core, a brand is a promise. Think of it this way: your company’s brand identity for its products or services is essentially your promise to customers. FedEx, for example, has cemented strong brand loyalty and a repeat customer base by consistently living up to its promises of fast, trackable delivery service. For most, the FedEx product brand is reliability.

Similarly, your organization’s employer brand is your promise to a separate but equally important constituency: your employees. An organization’s success, growth and, ultimately, its profitability, is inextricably linked to employees’ level of commitment and dedication to their work. Your organization’s promise to these very important people is a combination of elements that collectively comprise your employer brand. And because of rapidly shifting dynamics shaping modern workplaces, your employer brand is more important than ever before.

An Employer Brand Defined Some people mistakenly equate a company’s “culture” with its employer brand. Culture is important, as we’ll discuss, but it’s only a single aspect of an organization’s employer brand.

Let’s look at the individual elements of an employer brand (CLC, Kotler/Porter/Schnarrs), along with some context: • Culture: “Company culture” is a catch-all term that can mean a lot -- or very little. It can be used to describe the general personality of a company: “XYZ Corp. is a very entrepreneurial culture.” (What does that even mean, exactly?!) Others might attempt to define a company’s culture by its outward trappings: open floor plans, amenities, casual dress. In reality, and where the culture “rubber hits the road” is in more substantive manifestations: (genuine) inclusiveness, quality of teams, caliber of management, scalable technology, and active enablement of career development. (We’ll circle back to some of these in a bit.) Keep in mind that a culture a company advertises or espouses and the reality on the ground can be very different things – a disconnect that will diminish an employer brand very quickly.

• Compensation: This element of the employer brand is selfexplanatory, but it is quickly evolving beyond concepts of salary, commission, bonuses, benefits, and retirement. Employees are demanding benefits that facilitate a better work/life balance – such as childcare and eldercare benefits – and progressive employers are listening. In fact, 57% of senior leaders responded that “their organizations are assigning higher priority to care benefits to better support their employees in both work and life” (Care.com’s “Future of Benefits” Report, 2021).

12

www.HRProfessionalsMagazine.com

• Environment: This element can encompass many things but let’s use just one example: the physical work environment, e.g. office/ remote/white-collar v. warehouse/blue-collar. One trend we’re seeing in the current Great Reshuffle is blue collar workers – exhausted, underpaid and overexposed to COVID-19 – applying for white collar jobs with better pay and more flexibility regarding hours and work locations. When you read that service workers are “lazy” or “don’t want to work,” please don’t believe this simplistic myth. After all, these critical, front-line workers largely kept society going during the worst of the pandemic. They still want to work, but many want to change their work environments.

• Product Brand: Remember the aforementioned promise between and company and its customers? Well, this is crucial to its spillover in the employer brand. The overall reputation of a company’s products or services can be a clear differentiator if other elements are equal or close.

• Work/life balance: Perhaps the most dynamic element of the employer brand, this is a concept that is getting its place in the sun. (PerformancePoint’s CEO, Brad Federman, has written that it doesn’t even exist, and advocates for work/life “sway” instead.)

Regardless, a variety of factors influence this element, and it can be hard to read before accepting a job offer. Some things to look out for here include travel, remote work capability, vacation/PTO policy, etc.

The Problem with Pulling Levers Perhaps understanding that they couldn’t be “all things to all people,” some organizations have tried to stand out among competitors by making one or two elements of their employer brand particularly strong. Some companies known for high wages, for example, have tough and demanding internal cultures. Likewise, it seemed that some companies that advertised as “fun” places to work – ping-pong tables, free sodas – could get by with workplaces that blurred the work/life demarcation line. Still, other companies with just so-so compensation attracted scores of eager applicants because of their mission or vibrant, inclusive cultures.

This calculus of levers still exists, but the current talent exodus we’re facing reflects a different reality and employers who want to win long-term will need to rethink this strategy in the context of a valuesbased employer brand.

Things that used to be differentiators – salary, a strong benefits package – are now table stakes. And scores of employees, quickly seeing through cynical schemes designed to keep them at their desks longer, are tired of making trade-offs and voting with their resignations.

Post-pandemic, your employees – the ones you have and the ones you want – are demanding more. They don’t want everything, as the “perfect” organization doesn’t exist. But what they do want is alignment.

They want to work for a company that aligns with their values.

Future-Proof Your Employer Brand The good news is that employers have an opportunity to create sustainable and attractive employer brands by going all-in with an authentic, values-based approach that strives to meet employees at the intersection of professional development and personal fulfillment.

Don’t offer them the moon, empty promises or meaningless “eye candy.”

Instead, offer them a company and workplace they can feel good about being present for every day.

The following are 3 visible but meaningful action steps employers can adopt to take their employer brand from humdrum to premier status: 1. Prioritize your employees’ mental health. There’s a saying that “people remember what happens in the bad times,” and boy, are your employees paying attention to how your organization responded to the COVID-19 pandemic. Did you prioritize your people’s physical safety and mental health? Did you lean into honest conversations about mental health? Did you create safe spaces for these types of discussions? Or did you create unrealistic expectations as a result of a “business as usual” or “soldiering through” mentality?

2. Think your organization is diverse and inclusive? Don’t just say it -- live it. Employees want to work for companies that “walk the walk,” not just “talk the talk” by participating in outwardly visible but hollow proclamations. Are your management and executive teams reflective of the diversity that exists elsewhere in your company? Do your BIPOC and LGTBQ+ team members feel that they can bring their whole, true selves to their jobs? These can be very tough internal questions for an organization, but they are necessary to develop an authentic and welcoming culture for all employees.

3. Help your employees be more marketable -- for your competitors.

Yep, you read that correctly. It’s counterintuitive, but you’ll actually keep your best employees longer and more engaged by facilitating robust career development. Workers in every demographic want essentially the same thing: to be valued, and to grow professionally.

The more actively an employer helps its employees grow, the more loyalty the employees will exhibit in return. We see career development-as-a-benefit growing exponentially in the next decade and a gamechanger for high-performing organizations.

Your Employer Brand in the Age of Empowered Employees The traditional employer/employee social contract is dead. Long gone are the days when employees work for a single company, retiring in their early- or mid-60s with a gold watch and a fat pension. In the era of the 50-year career and the values-aligned worker mindset, your goal as an organization isn’t to keep employees forever, your goal is to keep them productive longer. And you can do that by delivering on your promise to them: that you’ll provide a culture that aligns with their values, a work environment that is truly inclusive, and a platform for continual professional development to keep them sharper and more marketable.

This is your values-based employer brand, and it will determine if your organization is sustainable, profitable, and relevant over the long haul.

Michael Bruno,

Strategy & Growth Leader, PerformancePoint LLC Mbruno@performancepointllc.com PerformancePoint LLC www.performancepointllc.com

www.HRProfessionalsMagazine.com

13

HIGH TIMES:

How Marijuana Legalization Is Impacting Employers In The Southeast

By GREG HARE and TAE PHILIPS

Up until a decade ago, employers generally prohibited marijuana use and excluded from the workplace any employee or applicant who tested positive for marijuana, whether on a pre-employment or post-employment drug test. Companies did not worry about state marijuana laws because of marijuana’s illegal status under federal law. However, those days are nearly over, and state marijuana legalization laws are affecting how employers can run their workplaces.

For many states, the legalization of marijuana has followed a predictable timeline. First, these states legalize cannabidiol (CBD) and other low-tetrahydrocannabinol (THC) products. Then, they legalize medical marijuana, sometimes with employment protections for medical marijuana cardholders and sometimes not. Then, if employment protections were absent, they amend existing medical marijuana laws to add employment protections. Finally, they legalize recreational marijuana.

As this trend has continued, it is challenging for employers to stay ahead of developments and remain compliant with state and federal laws. Employers may have employmentrelated concerns stemming from the legalization of marijuana and the possibility of employees being in the workplace while under the influence. These concerns extend beyond the nuances of the marijuana laws themselves and include disability discrimination and accommodation issues, drug testing rights and responsibilities, state and federal statutory and regulatory compliance matters, workplace safety questions, workers’ compensation implications, employee privacy protections, and more.

The differences in laws from state to state make it even more difficult for employers, who must develop policies and procedures that are compliant in each jurisdiction where they have employees and worksites.

Recent Developments in Georgia In 2015, the Georgia legislature took a giant step by authorizing the use of medical marijuana oil, even though marijuana still remains an illegal drug under federal law.

While proponents of the anticipated medical benefits were very optimistic following Georgia’s legislative action, for the past six years patients really had no legal way to obtain medical marijuana. While various forms of CBD have become ubiquitous throughout Georgia storefronts and gas stations, true medical grade marijuana has remained scarce.

In July 2021, the Georgia Access to Medical Cannabis Commission finally opened meaningful avenues to medical marijuana production and market availability: • The Commission granted six licenses to producers, two with authorization to operate 100,000 square foot grow houses, and the other four limited to 50,000 square feet.

• The licensees will be able to grow, manufacture and sell medical marijuana containing no more than 5% THC, with the idea that users will receive the pain-relieving benefits without the corresponding high of recreational marijuana use.

• Each license holder will be able to operate five dispensaries around the state.

• Medical users must obtain a formal prescription from a doctor and then apply for a low-THC registration card from the Georgia Department of Public Health, before being allowed to make purchases at the dispensaries. ith these developments, Georgia now joins the majority of other states plus the District W of Columbia with functional low-THC versions of medical marijuana programs.

14

www.HRProfessionalsMagazine.com

Marijuana Developments in Other Southeast States ALABAMA

In May 2021, Alabama Governor Kay Ivey signed AL Senate Bill 46 into law, which legalizes marijuana for medicinal purposes effective January 1, 2022. The law does not contain any employment protections for medical marijuana cardholders.

FLORIDA

In the past three legislative cycles, the Florida legislature has introduced separate bills to amend the existing Florida Compassionate Medical Cannabis Act to include a provision prohibiting public employers from taking adverse employment action against medical marijuana cardholders, and to prohibit private employers from discriminating against medical marijuana cardholders. The Florida legislature has also introduced bills to legalize marijuana for recreational use. To date, these bills remain pending, and none have been approved by the legislature.

MISSISSIPPI

In November 2020, Mississippi voters approved a ballot initiative (Initiative Measure 65), which would have legalized medical marijuana. However, in May 2021, the Mississippi Supreme Court ruled that the initiative was unconstitutional—thus overturning the approved measure. Since that development, at the request of Governor Tate Reeves, Mississippi legislators have been working to create a bill to legalize medical marijuana.

NORTH CAROLINA

In the 2021 legislative cycle, the North Carolina legislature introduced bills to legalize marijuana for medicinal purposes. These bills are still under consideration.

SOUTH CAROLINA

In the 2021 legislative cycle, the South Carolina legislature introduced bills to legalize marijuana for medicinal purposes in South Carolina. The bills did not contain any employment protections for medical marijuana cardholders. While the bills were not ultimately approved, it appears that medical marijuana legalization may soon arrive in South Carolina.

VIRGINIA

The 2021 legislative cycle was busy in Virginia, with the Virginia legislature approving (and Governor Ralph Northam signing into law) bills to legalize recreational marijuana effective January 1, 2024, and amending Virginia’s existing medical cannabis oil law to include employment protections for medical cannabis oil cardholders. The latter went into effect on July 1, 2021.

Key Takeaways Legal claims related to marijuana use have dramatically increased in the past few years, and employers across all states may be vulnerable to a variety of legal claims. Employers should carefully consider existing employment protections regarding marijuana use and/or medical marijuana cardholder status, and be ready to adapt their policies and procedures as more jurisdictions enact protections for the lawful use of marijuana in various forms.

There are two broad categories of medical marijuana laws: (1) laws with express protections within the language of the statutes for medical marijuana cardholders (i.e., “antidiscrimination” provisions) and (2) laws without express protections for medical marijuana cardholders. Employers should also be aware that irrespective of whether a medical marijuana law contains an antidiscrimination provision, they should be mindful of the potential disability and accommodation issues inherently at play when dealing with medical marijuana cardholders.

LCYFFL0118

Although recreational marijuana laws have not yet spread through the southeast, employers should be mindful of recent trends around the country, in which a growing number of states have passed recreational marijuana laws containing employment protections (see, e.g., New York, New Jersey, and Connecticut).

In light of the quickly-changing landscape regarding marijuana laws and related issues triggered by state marijuana legalization, Ogletree Deakins recently launched an innovative and company-friendly new product called OD Comply: Marijuana – designed to help employers balance the ever-shifting web of state marijuana laws and proposals, disability discrimination and accommodation obligations, and marijuana-related drug testing laws. Our attorneys have substantial experience counseling employers on an array of employee-relations challenges relating to the legalization of marijuana, with hands-on experience providing business-centric counseling to employers. The OD Comply Tool provides a continuously-updated mechanism to stay current on the ever-changing rules from state-to-state.

Gregory J. Hare, Shareholder Ogletree Deakins – Atlanta greg.hare@ogletree.com www.ogletree.com

Tae Phillips, Shareholder

Ogletree Deakins – Birmingham Tae.phillips@ogletree.com www.ogletree.com

SFBLI.COM www.HRProfessionalsMagazine.com

15

The Rising Tide of Minimum Wage

By BLAIR AND BRUCE JOHANSON

Coastal dwellers are very familiar with rising and falling ocean tides. Those making a living or accessing the ocean for pleasure boating keep an eye on the factors that impact incoming and outgoing tides. Local coastal news and websites provide daily ocean tide levels on a 24 hour basis. Human Resources and compensation professionals are experiencing rising tides associated with local, regional and national employee pay minimums. These professionals are staying tuned to several factors mentioned below that are raising the tide of minimum wages.

Federal, State and Local Minimum Wage Legislation One of the leading drivers for increasing minimum wage is legislation initiated by the Biden Administration on April 27, 2021 which requires federal contractors to be paid a minimum of $15 or more per hour. There are approximately five million individuals representing the federal contract employees. Employees at the minimum before this Executive Order was enacted were being paid $10.95 per hour, so an increase to $15.00 per hour represents an increase in annual wages of $8,424 per employee.

More than 25 states have or will have minimum wage increases during the calendar year of 2021. There are 18 states paying the $7.25 Federal minimum wage and two states paying $5.15 unless the employer is subject to Fair Labor Standards Act (FLSA) and must pay the $7.25 Federal minimum wage. The remaining 30 states and Washington, D.C. have a minimum per hour wage that ranges from $8.75 to $15.20. It is probably no surprise that Washington, D.C. is the winner of the highest per hour minimum at the $15.20 level. California employers with over 26 or more employees are paying $14 and this figure drops down to $13 with 25 or less employees.

The next highest two states are Washington and Massachusetts at $13.69 and $13.50 respectively. The states at $8.75 include Montana, Nevada, and West Virginia. The average per hour rate for all 50 states and Washington, D.C. based on the 2021 calendar increases is around $9.30 per hour. Throughout the U.S., there are also several local minimum wage ordinances that exceed their statewide minimum.

Private Sector Minimum Wage Initiatives Beyond federal and state minimum hourly wages, the next big sector raising the minimum wage tide is the corporate and business sector. Several industry leaders are taking the initiative to raise minimum wages to $13, $15, $20 and more. The following are just a few examples of many.

• Bank of America March, 2020 $20 per hour minimum and $25 per hour minimum by 2025 • Thomas M. Rutledge, CEO Charter Communications $20 per hour minimum in 2021 • Amazon - Starting average more than $17 per hour • Best Buy August, 2020 $15 Minimum and average hourly wages of $17.67 • Costco $16 and Target $15 16

www.HRProfessionalsMagazine.com

• Virginia C Drosos, CEO Signet Jewelers, $15 Minimum (Kay Jewelers and Zales) • Chipotle Mexican Grill $11 to $18 starting wage • McDonalds May, 2021 Average wage $13 per hour • Eugene I. Lee, CEO Olive Garden. January, 2022 $11 Minimum and January, 2023 $12 per hour. Average tipped employee earns greater than $20 per hour • Walmart $11 minimum per hour - Pickers $13 per hour • Marvin Ellison, CEO of Lowe’s - 2019 to 2020 $1.4 Billion investment in incremental wages - one of the highest wage retailers for hourly associates • Kevin R. Johnson, CEO Starbucks - Fairly significant increase in wage and benefits Skilled Labor Supply and Demand Another area where pressure is pushing the minimum wage has to do with supply and demand for various trade positions including master electricians, plumbers and journeymen as well as CDL drivers. With the mass retirements going on with the baby boomer generation, several of these positions have been slow to back fill with the younger generations, thus creating a shortage. As with any shortage, wages tend to increase and there is no exception with these positions.

A March 18, 2021 Business Wire article covered the shortage of skilled trade workers based on a study completed by PeopleReady Skilled Trades organization. The following quote about supply and demand issues for skilled laborers was noted in the Business Wire article. “The skilled trades are in dire need of workers right now, with a particularly high demand for apprentice-level and skilled labor positions. These are steady, well-paying jobs that hold a bright future, even in an unpredictable economic climate,” said Jill Quinn, executive leader of PeopleReady Skilled Trades. “For the millions of Americans who are struggling in their job hunt right now, our message is simple: Consider a career in the skilled trades.”

Public and private organizations and businesses are offering higher wages to attract and retain competent staff. In addition, they are offering internal and external trades training and education to move entry apprentices into journey level and even master level technicians. Most of these organizations and business are covering the cost of the training and education and encouraging employees to take advantage of these benefits so they can meet critical skills needed by the employer to sustain their operations and services.

For some of our municipal clients, an employee entering a skilled trades position can increase their base pay by 15 to 30% from apprentice to level three technician jobs.

Living Wage For the last several years, some organizations have committed to ensuring that their employees are paid at least at a “Living Wage” level. Wikipedia defines the living wage as the minimum income necessary for a worker to meet their basic needs without government subsidies. Some of our clients have requested us to include the living wage concept and terminology in their compensation and benefits philosophy statement. A valuable resource that we have been using for some time is the MIT online Living Wage calculator. As mentioned on their landing page, the answer to “What is the living wage calculator? Families and individuals working in low-wage jobs make insufficient income to meet minimum standards given the local cost of living. We developed a living wage calculator to estimate the cost of living in your community or region based on typical expenses. The tool helps individuals, communities, and employers determine a local wage rate that allows residents to meet minimum standards of living.” The data provided is down to the County level within a state and lists 12 hourly living wage categories from one adult with no children to two adults with three children.

The only drawback with this data is it is updated once a year so depending on when you review this resource, the data may need to be brought to current.

Rising Inflation One remaining factor that has been around for a while that is going to raise the tide for minimum wage is inflation. In a recent SHRM article written

by Stephen Miller and released on August 2, 2021, Mr. Miller sites several sources inclusive of the Conference Board, Wyatt Towers Watson (WTW) and Federal Government Agencies that have completed several studies that indicate that inflation costs will exceed pay increases in 2021 and 2022.

The Federal government releases monthly and annual year over year cost

inflation percentages. Last year’s inflation percentage was 1.7% and the year over year inflation for June, 2021 was 5.4%. Most of the professional organizations and published compensation studies are projecting a return of 3% for salary increase budgets for 2022. Rising costs in inflation will definitely have an impact on rising minimum wage tides.

We are going to end this article by providing an email from one of our clients about the difficulty of filling positions at their organization. He stated, “We are having a hard time hiring for our lowest level jobs. I have a custodian who makes $11.09 an hour.

With minimum wage where it is now, what is being proposed for the future is making it even worse. Is there some form of data for what our lowest or starting pay should be in comparison to minimum wage? We have positions open in Road and Park right now that we cannot fill. Private businesses can use bonuses and other incentives which we cannot. If Target is paying $15 an hour to work in the A/C and we have a job at $11 working outside in the heat, which one would they choose?”

Our recommendation to this client is to start paying the lowest position around $13.50 to $14.00 per hour and start budgeting for a minimum of $15.00 over the next couple of years. This recommendation will be harder for the organizations and businesses where minimum wage requirements are still in the single digit range. There are several factors, some expressed in this article that will raise the minimum wage average to $15.00 and beyond over the next several years. The rising tide of minimum wage is here to stay and organizations need to provide a life raft for their most valuable assets.

DBSquared combines proven technology and seasoned expertise to help bring your total compensation management into perspective. We provide: DBCompensation® (built on the proven Job Evaluation and Salary Administration Program ­ JESAP™ methodology) is a state­of­the­art HR compensation management software application that efficiently combines internal knowledge and expertise with pertinent market information to streamline your compensation strategy and policies. Ultimately simple and elegant, DBCompensation is easily integrated into your business strategy and HRIS environment. Our proven methodology and process combined with thorough and intuitive software development ensure you'll never look back.

Helping clients envision new possibilities is a talented consultant's greatest asset. At Johanson Group, our combined 65 years of experience in all facets of business management enable us to offer the insight and direction that produce meaningful results.

DBDescriptions™ job descriptions software is the cornerstone of an efficient and aligned organizational design.

Whether you need one job description or two hundred our database of descriptions has exactly what you need to adapt or create tailored descriptions for your business; all easily accessed through an intuitive web­based application. Utterly simple and efficient.

www.dbsquared.com info@dbsquared.com

We've helped organizations face the management challenges that come with a rapidly expanding staff and customer base. We also assist new business ventures map out their company's future, both strategically and operationally.

Our signature approach is to listen and fully understand your company so that we can then partner with you to realize your own unique vision.

www.johansongroup.net info@johansongroup.net www.HRProfessionalsMagazine.com

17

The Use Of Pronouns: Not As Simple As Once Thought

By ED TRENT

The societal debate over what the term “sex” means regarding an individual’s gender continues to draw battle lines and create confusion in all sectors of society. In June 2020, the United States Supreme Court issued its decision in Bostock v. Clayton County, Ga. addressing whether Title VII’s prohibition on discrimination because of “sex” covered discrimination based on sexual orientation and/or transgender status, the latter more broadly viewed within the context of gender identity. Because discrimination based on characteristics not covered under Title VII do not create a legal claim for discriminatory termination under the civil rights statute, it would seem logical the Court would first address what the term “sex” means in the statute. In reaching its conclusion, however, the Court determined that it did not need to reach that question but proceeded in its analysis “on the assumption that ‘sex’ signified what the employers suggest, referring only to biological distinctions between male and female.”

While the Court was willing to accept, for purposes of argument, that sexual orientation and transgender status were “factors other than sex” under Title VII, the Court nevertheless concluded in a 6-3 decision that an employer’s termination of an employee because of the employee’s sexual orientation or transgender status was so inextricably intertwined with the employee’s sex as male or female that termination on the basis of sexual orientation and/or transgender status violated Title VII’s prohibition on discrimination “because of ... sex.” The Court, however, expressly left open questions of sex-specific dress codes, restroom and locker room access, and religious objections in various potential scenarios. As a result, the Court left more muddled than clear the question of whether an employer is required to treat an employee consistent with the employee’s gender identity or with the employee’s biological sex. The breadth of this debate is far beyond the narrow focus of this article, which addresses the use of pronouns when referring to persons - namely what most were taught as children, that boys are “he/him” and girls are “she/her”. Now, however, the use or alleged misuse of pronouns may result in employment law claims under Title VII. Interpreting Title VII and bolstered by the Court’s Bostock decision, the United States Equal Employment Opportunity Commission (EEOC) updated its guidance on the application of Title VII when it comes to sexual orientation and gender identity. Specifically with regard to pronouns, the EEOC’s 2021 “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity” states at No. 11 that “in certain circumstances . . . intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.” This guidance, which the EEOC notes does not have the force of law, is consistent with prior guidance issued under the Obama Administration that the use of names and pronouns when referring to individuals should be consistent with the individual’s gender identity, even when the gender identity is inconsistent with the individual’s biological sex.

18

www.HRProfessionalsMagazine.com

This very issue was before the Sixth Circuit Court of Appeals in March 2021 in the case of Meriwether v. Shawnee State University.

There, Professor Meriwether was a 25-year veteran with a spotless record. In his philosophy classes, he addressed his students as “Mr.” or “Ms.” believing a more formal addressing of his students added to the weight of the topics discussed in class, which could include controversial topics being debated in contemporary society. As a devout Christian, he maintains that “God created human beings as either male or female, that this sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual’s feelings or desires.” As a result, Professor Meriwether objected to referring to a male student who identified as female by “Ms.” or female pronouns and vice versa. This became an issue in 2016 when the university emailed all faculty that they were now required to refer to students “by their ‘preferred pronoun[s].’” When he approached his Department Chair about possible accommodations given his religious beliefs, Professor Meriwether was told there were no exceptions. During the conversation, the Department Chair was derisive of the professor’s religious beliefs and even professed that the “presence of religion in higher education is counterproductive.”

Two years later, Professor Meriwether was teaching his Political Philosophy class when he responded to a student’s question with “Yes, sir.” After class, the student approached the professor “demanding” to be addressed as female because the student identified as a woman.

Professor Meriwether declined, believing that to do so would be acknowledging a falsity, namely that a male student could become female. The professor recommended a compromise of referring to the student by the student’s last name. The student objected, making several complaints - to which the university responded by demanding that Professor Meriwether use the student’s preferred pronouns or eliminate all sex-based pronouns and titles (an impossibility). At one point during the saga, the professor offered to use the student’s preferred pronouns provided he be permitted to place on his syllabus an explanation that he was doing so under protest and stating his views on the subject. The school refused this latter accommodation claiming that should the professor state his views on the subject, his expression would be in violation of the university’s antidiscrimination policy.

Although the student continued to participate in class without incident and ultimately received a high grade, the university instituted an investigation, which was viewed as highly flawed by the Court, and ultimately issued a formal reprimand to the professor.

He was told that any further violation would result in further disciplinary action, up to and including termination. His appeal was summarily dismissed with the university refusing to even consider his religious views on the matter, but instead “equating his views to those of a hypothetical racist or sexist.”

The Sixth Circuit reversed the dismissal of the professor’s constitutional claims asserting violations of free speech and of both the Free Exercise and Establishment of Religion clauses of the First Amendment. The Court noted there was no basis to find that Professor Meriwether’s actions created a hostile educational environment. The Court explained: “ When the university demanded that Meriwether refer to Doe using female pronouns, Meriwether proposed a compromise: He would call on Doe using Doe’s last name alone. That seemed like a win-win. Meriwether would not have to violate his religious beliefs, and Doe would not be referred to using propounds Doe finds offensive. Thus, on the allegations in this complaint, it is hard to see how this would have ‘create[d] a hostile learning environment that ultimately thwarts the academic process.’”

It is this observation that will likely have significance for private employers.

The EEOC has noted that while Title VII requires employers to accommodate employee’s religious practices and beliefs, employers are not required “to accommodate religious expression that creates, or threatens to create, a hostile work environment.” Employers certainly should take steps to ensure that no employee is harassed or mistreated based on sexual orientation, gender identity, or religious beliefs on these or other matters.

While it is not always easy to balance the interests of an employee with a gender identity inconsistent with the individual’s biological sex and another person’s sincerely held religious beliefs concerning human sexuality, it can be done.

The Meriwether court points out that it is not either/or but can be both/ and. There was no disputing that requiring Professor Meriwether to affirm that a person can change sexes through the manner and words used to address the person would violate his religious beliefs. It was also clear

that the student had a right to fully participate in the educational program. The court found that both interests were protected using Professor Meriwether’s proposed compromise, even though not to the student’s full satisfaction.

Employers may be called upon to address similar issues in the workplace. In doing so, the starting point is that all employees deserve to be treated with dignity and respect and that there should be a compromise that everyone can live with, even if one or both is not entirely happy with the outcome. This may vary depending on the work environment, the level and frequency of interaction between the employees, and frankly the willingness of the employees to see and respect the other’s point of view.

While the Supreme Court declined to address issues such as pronouns, dress codes, or restroom and locker room access in its Bostock decision, employers will be forced to address those issues. The EEOC has concluded that an employee’s professed gender identity is dispositive of all of these questions without regard to the thoughts, feelings, or religious convictions of any other employee. The courts, however, will continue to wrestle with these questions in light of Bostock. More immediately, employers will first have to address them in their workplaces, and will hopefully do so in a manner that seeks to uphold and respect the dignity of all of their employees.

Edward H. Trent, Member

Wimberly Lawson Wright Daves & Jones, PLLC Knoxville, Tennessee office etrent@wimberlylawson.com

business.ecu.edu/grad/mba

www.HRProfessionalsMagazine.com

19

Welcome Employees Back Holiday Gift Check Program

Yay! Returning to the office, exciting or maybe not? Most companies are challenged with creating a positive enviroment as they bring employees back, especially after many have become very comfortable in their home offices. As fall approaches, most companies will be returning to the office in some hybrid fashion. This is creating new struggles for managers who are faced with the task of creating an upbeat astomphere to get over these new hurdles. One way to ease the transition is to make returning to the office a rewarding experience. Offering postive incentives that says, thank you, we appreciate all you do. This can help ease the adjustment period as employees return. One idea is a fun gift check that can be redeemed for any favorite brand of turkey, ham & festive food items, even deserts and platters. It’s a safe & thoughtful gift that can be customized to fit any incentive budget. What better way to tell valued employees, “thank you for your dedication”. Holiday Gift Checks will fit the needs and tastes of all employees. It is the perfect gift that tells employees, we appreciate your hard work and will delivers cherished memories around the table!

A Million Ways to Say Thanks!

• Welcome employees back to the office with a lunch on us gift check!

• Offer vaccinated employees an incentive gift check.

• Reward them for meeting company initiatives.

• Encourage they comply with any company safety guidelines or protocols.

• Perfect holiday gift for a festive meal for in office & remote employees!

Easy to order, safe to deliver, and enjoyed by all!

• Fast & secure online ordering at www.giftcheckprogram.com • Flexible gift amount to fit any budget—Choose gift denomination $5-$50 • Gift check includes a special message & can be customized with your company’s name for free • Option to personalize with employees’ name on the gift check (only 10 cents more) • Add optional restrictions such as not redeemable for cash, alcohol, or tobacco (eliminates tax concern) • Ordered too many—no worries! Send in ‘leftover’ gift checks for a refund for the full-face value

The perfect incentive or gift solution for employees. Meeting the needs and tastes of all!

Questions? We can help. Call 630.986.5081 or visit Holiday Gift Check Program

20

www.HRProfessionalsMagazine.com

MASTER OF SCIENCE IN

STRATEGIC HUMAN RESOURCE MANAGEMENT

100% ONLINE | NATIONWIDE BEST VALUE PROGRAM OVERVIEW

The Master of Science in Strategic Human Resource Management prepares graduate students for numerous managerial opportunities in the field of human resources.

Students completing the program will acquire the knowledge and skills to lead complex and diverse organizations of all sizes by using comprehensive knowledge and applied competencies of human resources, risk management, human capital strategy, and employee relations to build cultural competence and drive effective performance management.

A concentration option is required, each of which is aligned with a highly-marketable industry credential: Diversity & Inclusion Management People Analytics l Talent Development l l

LEARN MORE: ATHENS.EDU/SHRM

MEDIAN SALARY:

$121,220

NATIONAL JOB GROWTH:

Above Average National median salary for Human Resources Managers Bureau of Labor Statistics, 2020

APPLY TODAY! www.HRProfessionalsMagazine.com

21

Want Employees to Immunize?

You May Need to Incentivize!

By ANNE HENSLEY

As the pandemic continues, and with FDA approval of the vaccine likely imminent, employers are increasingly focused on how the vaccine can or should tie into their business policies.

As of August 13, 70% of the adult population in the United States have received at least one dose of a COVID-19 vaccine.1 With the Delta variant surging and return-to-work efforts on shaky ground, employers are facing almost impossible decisions in a very difficult employment landscape.

According to the Labor Department, a record-setting four million workers resigned from their jobs in the month of April 2021.2 Couple that with COVID fatigue, staffing shortages and recalibrated return-to-work policies, and it has many employers getting serious about vaccination programs.

But what is the best approach? Many employers are not yet ready to require vaccination for employees, particularly because of the factors discussed above. But at the same time, for many employers it’s not just about getting employees back into the office and maintaining their workforce; it’s also about limiting the potential future health care spend for COVID-related illnesses.

Vaccinations are seen as a way to do just that. Could an expenditure now in the form of a vaccine incentive be worth the cost to avoid future health care spend on unvaccinated workers who are unfortunate enough to contract COVID-19? Perhaps it could help avoid increased premiums that might result from the rise in claims and hospitalization? Not to mention that long-haul COVID can now be a disability under certain laws, which is bound to impact overall COVID costs as well.

Depending on how it is designed, a COVID vaccination incentive may very well be considered a wellness program. While wellness incentives are not a new concept to employers (think tobacco surcharges or incentives for those employees who get a physical each year), they can raise many compliance concerns. These concerns, highlighted below, will vary based on the specific wellness program design, and unfortunately a number of unanswered questions remain about vaccination policies and incentives.

• ERISA: An employer paying for medical care in the form of a vaccine may create a group health plan (GHP) subject to the Employee Retirement Income Security Act of 1974 (ERISA). ERISA contains many requirements for GHPs, such as having a plan document, distributing a summary plan description and perhaps filing a Form 5500. However, employers have a relatively easy way to ensure ERISA compliance. They can integrate an ERISA-covered wellness program with their GHP (which would require, among other things, limiting to the program to those enrolled in that GHP). If the program coverage extends beyond the employer’s GPH, however, then the program must comply with ERISA on a stand-alone basis which can be much more difficult given the numerous ERISA requirements.

• HIPAA: An incentivized vaccination program may be considered a wellness program subject to the nondiscrimination provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HIPAA requirements for wellness programs vary depending on the program design. It divides workplace wellness programs into two general categories: participatory wellness plans and healthcontingent wellness plans. The more stringent requirements apply to the latter and certain incentivized vaccination programs may fall into that category.

22

www.HRProfessionalsMagazine.com

If considered a health-contingent program under HIPAA, the program must (1) comply with HIPAA’s dollar limits on incentives, and (2) offer a reasonable alternative standard (RAS) or alternative way to earn the incentive for certain participants who are unable to meet the initial standard required to earn the reward. In general, the HIPAA wellness program incentive dollar limit is tied to the cost of coverage under the employer’s medical plan. HIPAA limits wellness program incentives to 30% of the total cost of medical plan coverage (50% for tobacco programs). If an employer already has a wellness program in place, it may need to consider any incentives offered for the COVID-19 vaccine with the other plan requirements and incentives so as to not violate the incentive limit.

• ADA: When a wellness program involves disability-related inquiries or requires employees to undergo medical examinations, it implicates the ADA. While the EEOC has confirmed that a vaccination is not in and of itself a medical exam, screening questions asked of employees prior to vaccination are very likely disability-related inquiries triggering an ADA analysis. If an employer hosts an onsite vaccination clinic or contracts with a third party vendor to perform the vaccinations on its behalf, then the ADA rules relating to wellness programs must be followed.

ADA rules require that an incentive or surcharge be not so substantial that it renders the underlying action not ‘voluntary’ and that accommodations are provided to employees who are unable to receive the vaccine due to a disability or sincerely-held religious belief. Here is where this gets a bit tricky: If an employer simply asks for proof of vaccination to satisfy the incentive and no other information, it hasn’t made a disability-related inquiry under the ADA. If the program is considered a health-continent program under HIPAA and a RAS is offered, then it is likely that an employer will ask why an employee did not receive the vaccine as part of the RAS offering. The EEOC has indicated those inquiries would be considered a disability-related inquiry subject to the ADA and employers must comply with the ADA’s voluntary wellness program rules, which are currently in a state of flux.

The above is just an initial list of potential compliance concerns.

Other concerns may include the incentive’s impact on ACA affordability calculations, the Genetic Information Nondiscrimination Act and maintaining the privacy of any data collected as part of this program.

Much like the COVID-19 virus itself, things are moving quickly and guidance is bound to change. Employers must weigh employee relations and any legal risks before choosing to incentivize employees to receive the vaccine. Will the incentive backfire?

Will return-to-work plans stall because vaccinated employees will not want to return to the office to work among unvaccinated employees? So much to consider! Employers should consult with their benefits advisors and legal counsel to determine the best course of action for their particular circumstances.

1 https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total.

2 https://www.bls.gov/news.release/jolts.nr0.htm.

Anne E. Hensley, JD

Senior Vice President & Practice Leader ERISA & Employee Benefit Compliance McGriff McGriff.com

Most brokers say they have all the answers.

We start with a lot of questions.

Every organization has unique needs. We want to know yours before we talk about solutions.

McGriff specializes in delivering innovative employee benefit strategies to help manage costs, increase employee engagement and allow HR more time for strategic initiatives. Let us design a benefits program tailored to your organization.

To learn more, visit McGriff.com.

© 2021, McGriff Insurance Services, Inc. All rights reserved. McGriff Insurance Services, Inc. is a subsidiary of Truist Insurance Holdings, Inc.

Whether you have an in-house HR team that’s wrestling with an increased workload, or you own a small business that doesn’t yet have a formal HR function, outsourcing introduces a high degree of flexibility for your organization. Some of the key benefits of outsourcing include: • Improved Scalability – As your business demands evolve, you may need access to HR resources on an episodic basis.

Common scenarios include benefits administration support during open enrollment, recruiting and onboarding services during periods of high growth, periodic salary surveys to ensure you’re paying market competitive rates, and other similar scenarios. Such activities might overload your existing team or require expertise you don’t have in-house but bringing on full-time employees to meet these needs would be impractical.

Outsourcing provides the support you need “on demand.”

• Decreased costs – As with many outsourced functions, leveraging an HRO to support your personnel needs can yield significant cost savings . . . both today and tomorrow. There’s the immediate return of providing valuable services to your business without incurring the time and expense typically associated with recruiting, hiring, training, and managing a new employee.

However, there are also longer-term cost improvements that an HRO relationship will bring to the table. Avoiding fines and penalties due to non-compliance, eliminating reputational risk to your brand associated with violating policies, improved employee retention by helping workers to better understand benefits options and the total rewards they’re receiving, and dozens of other examples . . . they all represent long-term impacts of finding and retaining an HRO partner that acts as a true extension of your team.

24

www.HRProfessionalsMagazine.com

• Standardized processes – One of the most common HR challenges growing organizations face is driving “people processes” standardization across the business . . . particularly if your workforce is spread across multiple locations.

Ensuring different managers are treating employees in a consistent fashion, providing a central resource for all employees – manager and worker alike – can access content that addresses the lion’s share of operational considerations and policies, even delivering access to a standard set of forms and work flows, all help to improve the overall employee experience. Starting this from scratch is timeconsuming and typically involves some level of trial and error but working with an HRO organization can accelerate the entire process.

• Reduced risk – For most employers, compliance has become an incredibly challenging issue. This is due largely to the fact that, from an HR perspective, there are multiple layers of regulations and policies to navigate. Take employee absence and leave, for example. There are federal laws impacting all employers operating within the United States, most notably the Family and Medical Leave Act (FMLA). However, there’s also a constellation of state-specific absence and leave policies – 300+ and counting – that offer provisions not covered by FMLA or are more generous than what FMLA provides. Further, there are now some cities that are creating policies for businesses within their borders. This is just one example of the complexities that come into play. HRO organizations, however, are intimately aware of the policies and practices impacting the communities they serve and can help to ensure you’re addressing regulatory issues in a consistent, focused, and respectable fashion.

• D iversified skills – Given the turbulent nature of 2020, I think we’re all actively aware of the rapid changes that could impact our business. During the height of the pandemic, for example, HRO Partners began fielding questions about employee engagement, change management, and other similar services. When such circumstances arise, you need access to individuals who are skilled in addressing these issues, have access to additional resources, and can ultimately drive the fastest path to resolution.

About us: At HRO Partners, we’ve been serving the small – and mid-sized business community since our inception and we continue to deliver new products and services, each aimed at enhancing your value to the clients and employees they support. With more than 150 businesses, serving over 50,000 employees, and nearly $300 million in enrollment savings to-date, our experience and our track record is second to none. And now, we deliver access to an always available, constantly updated, online platform designed to provide expert advice “on demand.”

We call it “HRO Now,” but you’ll call it the best investment you’ll make in 2021.

Call us today at 866.822.0123 or visit us online at www.hro-partners.com. www.HRProfessionalsMagazine.com

25

Background Screening: What to Start Doing, Stop Doing, Keep Doing

By JOHN HAWKINS

Things change constantly in business.

Staying abreast of trends, laws, and overall best practices is key in running a company, especially for HR pros.

If it’s been a while since you’ve revisited your background screening process, you might have dangerous holes in it, and portions of it may have fallen out of favor in recent years. These are both scenarios that can get you sued!

Here’s a list of what you should start doing, stop doing, and keep doing to make sure your background screening process is the best it can be.

Start Doing Maintain a written background screening policy. A written policy empowers current employees involved in hiring to refresh themselves as needed, and the new people that join the hiring process can access it. A written policy keeps your processes uniform and cohesive across the board. This is the best foundation you can use to ensure a fair and relevant background screening process.

Stop Doing Blanket background screening for every position. A background screening policy must address that different positions need to be screened in different ways. For example, an accountant may need to have their credit pulled during their hiring process but doesn’t need a motor vehicle records search. A warehouse loading position would NOT need their credit checked.

Keep Doing Screening for drug use. Yes, there are states and cities that have legalized cannabis and prohibited screening for marijuana use during the employment screening process. This doesn’t mean your company should stop screening for all drugs! In addition, there are reasons to still screen for recent marijuana use, such as pre-access, post-accident, or reasonable suspicion, just like you would for recent alcohol use.

Start Doing Require written authorization from applicants. A key responsibility of the employer is to disclose screening processes to the applicant. The authorization must stand alone, meaning it does not need to be part of the employee handbook or the application.

26

www.HRProfessionalsMagazine.com

Stop Doing

Start Doing

Screening applicants based on “gut feelings”. If clean-cut, attractive applicants aren’t being screened but the ones with a bunch of tattoos and piercings (or the ones who look like your ex) are, your company could get sued for discrimination. Set a process and stick with it for ALL job candidates vying for the same position.

Following the FTC’s requirements for the proper disposal of private consumer data.

Employers are legally required to protect consumer data. Per the FCRA, current requirements include limiting the dissemination of consumer information to only those with a legitimate need, permissible purpose and authorized by the consumer retaining consumer data in a confidential manner, and destroying data in a secure manner as to render information inaccessible, unreadable, and/or unrecoverable.

Keep Doing Following and understanding the laws in the cities and states your company operates. A few dozen new laws and regulations that effect background screening pass EVERY YEAR! Stay abreast of the regulations in the geographic areas where you do business. Otherwise, you could be out of compliance and open to costly hiring litigation for laws you missed.

Start Doing Requiring more explanation from you vendor. Pay close attention to how your vendor answers your questions and the amount of time it takes them to get back to you with any follow-up information.

They should also be communicating new trends and laws so you can adjust your background check policy accordingly.

Stop Doing Asking applicants about their previous pay. The salary history question has fallen out of favor because it encourages pay disparity. If, for example, a woman and man have applied, but the woman is making $70,000 a year and the man is making $75,000 a year, the woman’s offer may be lower than the man’s offer.

Several states have passed laws banning this question and more are in the works.

Keep Doing Providing training to everyone involved in your hiring process. One-time training isn’t enough education on an important procedure like background screening.

Just one person who doesn’t completely understand your policy can derail it.

Periodically review your policy and any recent changes with everyone involved in your hiring process.

Per the FTC Rules, the following methods are permitted: 1) burning, pulverizing, or shredding, 2) destroying or erasing electronic files and/or 3) after conducting due diligence, hiring a document destruction company.

Stop Doing Asking about criminal history early in the hiring process. Blocking past criminals from landing a job isn’t fair, and several states have “banned the box” altogether. This trend gives job seekers an opportunity to be viewed by their education and experience, rather than being discarded automatically because of their past criminal history.

Keep Doing Following compliant Adverse Action procedures. Deciding not to extend an offer of employment because of information you found in the background check is acceptable.

You just need to follow Adverse Action procedures every single time. This includes notifying the applicant with a Pre-Adverse notification and sending a Final Adverse Action letter after the applicant has ample time to dispute the information (usually at least five business days).

Staying agile and willing to learn and adapt policies is the best advice HR Pros can follow.

Keeping on top of regulations, making certain hiring managers are trained on protocols, and following authorization and Adverse Action procedures consistently set you up with a productive, highly-functioning background screening

John Hawkins

Senior National Account Executive Data Facts jhawkins@datafacts.com www.datafacts.com

Co-Hosts

Co-Emcee Judy Bell, SHRM-CP, PHR, CPBA, CPVA

Dr. Kathy Tuberville, SHRM-SCP, SPHR

Judy Bell Consulting IN PARTNERSHIP WITH

VP Programs, SHRM-Memphis University of Memphis

Ethics, Values, Integrity

Co-Emcee Dr. Deneen Lester, SHRM-CP, PHR, IPMA-SCP

LeeAnn Bailes Foster

4th Annual

CEO of Team Foster HR Strategy

SUPERVISOR AND MANAGER CONFERENCE at The Crescent Club Memphis

Human Resources Manager, Salvation Army Kroc Center West Tennessee District Director, Tennessee State Council of SHRM

5 Principles of a Healthy Organization

Brigette B. Wilson, MBA, MA-HRM, CVA

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

President, SHRM-Memphis

November 19, 2021 7:30 AM to 5:00 PM

Keynote Speakers

The Digital Divide and Its Impact on Today’s Businesses and Employers

Re-engaging With Employees Post-Pandemic

The Change Management of Today Won’t Work Tomorrow

Dr. Kimberly Estep, Chancellor

Janie Warner, SHRM-SCP

Brad Federman, CEO

WGU Tennessee

VP National HR Practice Leader

PerformancePoint LLC

Strategies to Embrace DEI in the Talent Lifecycle

Gain a Competitive Advantage by Creating a Learning Culture

The Biden Administration’s Employment Law Agenda: the first 100 days and beyond

Susan Hanold, PhD

Dr. Trish Holliday, SHRM-SCP, SPHR

Frank Day, Attorney

VP, ADP Strategic Advisory Services

Holliday | Kenning

FordHarrison

Breakout Speakers Caitlin Porter, PhD

Tammy Henry, VP Client Success

University of Memphis

Data Facts, Inc.

How Leaders can Disrupt the Spread of Turnover

Julie Henderson, VP Sales Data Facts, Inc.

Dan N. Norwood, Attorney Working Boomer Advocate

Background Screening Industry Update Age Discrimination in Employment

Breakfast and lunch included Networking Reception 5 PM Meet the speakers and get answers to your questions.

Win 7 Nights @ Sandestin Golf and Beach Resort

11 SHRM and HRCI Recertification Credits (Includes 1 HRCI Ethics Credit)

Miramar Beach, Florida Value = up to $3,000.00 Contact LeeAnn Foster at leeann@teamfosterhrstrategy.com to schedule.

2 0 21

TO REGISTER, GO TO WWW.HRPROFESSIONALSMAGAZINE.COM COST: $149. PRE-REGISTRATION IS REQUIRED LIMITED SEATING AVAILABLE

A Labor Day

— L

SALUTE

By IRENE HENDRICKS

abor Day takes on a new meaning this year. The past year has brought unprecedented challenges to the American workforce. Partnering with America's leading employers and their millions of employees, we hear the challenges so many have faced firsthand at DailyPay.

Over the past year, healthcare workers continued their noble and selfless fight on the frontlines in the war against COVID. Grocery stores and restaurants continued to feed us despite growing consumer demand, a surge in COVID-19 cases, everchanging mandates and often-confusing regulations. Call and customer support centers kept the goods we bought online coming and helped answer our questions about everything from banking to travel. Hospitality workers returned to the job in a new world for an industry that seemed to teeter on the latest news of COVID cases. And retail workers helped keep the economy afloat and maintain the promise of a better tomorrow by keeping the stores we shop in safe and ready for business.

So this Labor Day we take a moment of reflection to appreciate how they redefined the term ‘essential worker.’ The pressure to put food on the table and keep a roof over your head can be overwhelming and stressful enough, and is now compounded with the stress of keeping you and your family safe and healthy.

But as we have seen time and time again during our country’s darkest hours, the spirit of the American worker has shined through. They put fear aside to keep the economy going in the promise of a brighter future.

And HR professionals were there to support them every step of the way with impactful and creative benefits leveraging new technologies to keep employees safe and happy. From tuition reimbursement to free lunches to virtual assistants - the workplace is evolving right before our eyes.

28

www.HRProfessionalsMagazine.com

DailyPay is proud to be one of the benefits that forward-thinking employers offer, providing millions of American workers with the power of choice and control over earned pay. Every second of every day since the pandemic began last March, a transfer was made by a DailyPay user. Whether it was to pay a bill, fund a much-needed vacation or buy supplies to keep a family safe, DailyPay always made sure money was always in the right place at the right time for its users, in good times and in bad. And as our mission grows, so does our team, which just eclipsed 500 employees nationwide.

As we look forward, millions of Americans could be heading back into offices this fall, at least in a hybrid format, further energizing local businesses and bringing a sense of normalcy from Main Street to Wall Street.

Employees will continue to have new expectations as it relates to workplace flexibility and work/life blend. And despite continued uncertainty, the American worker will continue to keep the engine of our economy running as we march forward toward a better tomorrow. Together.

Irene Hendricks

Chief People Officer at DailyPay

72%

80% 80% of the Fortune 200 who offer on-demand pay use DailyPay to create a better culture that increases retention and fosters diversity, equity and inclusion.

72% of workers with increased financial stress due to the pandemic, and 57% of employees who did not are looking for an employer who cares for their financial well-being according to a recent Josh Bersin report.

Learn more at dailypay.com.

Data Facts Debuts on Inc. 5000 List of America’s Fastest-Growing Private Companies Data Facts proudly announces they have ranked number 2818 on the Inc. 5000 List of America's fastest-growing private companies.

MEMPHIS, TN: On Tuesday, August 17th, 2021, Inc. magazine revealed

ABOUT DATA FACTS

that Data Facts, a provider of national and international background

Data Facts’ background screening solutions have provided clients with innovative, transformational technology and a personalized customer experience for 3+ decades. This 360-degree support system is the foundation of our client relationships. In addition, Data Facts is a WBENC certified supplier and has been ranked by HRO Today’s Baker’s Dozen Customer Satisfaction Ratings as a top background screening provider for three consecutive years. In 2019 and 2020, Data Facts ranked #1 and #2 respectively for Overall Midsize Deal Leader for Pre-Employment Screening. Experience the fastest turnaround times, the strongest customer service, and the most accurate information available in background screening with Data Facts… because you deserve a better experience.

screening solutions, has ranked on the annual Inc. 5000 list, which is considered to be the most prestigious ranking of the nation’s fastestgrowing private companies.

The Inc. 5000 list represents a unique look at the most successful companies within the American economy’s most dynamic segment; privately held businesses. Intuit, Zappos, Microsoft, Patagonia, and many other well-known names gained their first national exposure as honorees on the Inc. 5000.

Daphne Large, Founder and CEO of Data Facts, graciously comments on their ranking. “Founding and leading Data Facts for 32 years has been the honor and joy of a lifetime. We are grounded in our foundation that if we take great care of our people, they will take great care of our customers who in turn will take great care of Data Facts. They do

MORE ABOUT INC. AND THE INC. 5000 Methodology

given 2020’s unprecedented challenges. Among the 5,000, the average

Companies on the 2021 Inc. 5000 are ranked according to percentage revenue growth from 2017 to 2020.

To qualify, companies must have been founded and generating revenue by March 31, 2017. They must be U.S.-based, privately held, for-profit, and independent— not subsidiaries or divisions of other companies—as of December 31, 2020. (Since then, some on the list may have gone public or been acquired.) Growth rates used to determine company rankings were calculated to three decimal places.

median three-year growth rate soared to 543 percent. Together, those

About Inc. Media

companies added more than 610,000 jobs over the past three years.

The world’s most trusted business-media brand, Inc. offers entrepreneurs the knowledge, tools, connections, and community to build great companies. Its award-winning multiplatform content reaches more than 50 million people each month across a variety of channels including web sites, newsletters, social media, podcasts, and print. Its prestigious Inc. 5000 list, produced every year since 1982, analyzes company data to recognize the fastest-growing privately held businesses in the United States. The global recognition that comes with inclusion in the 5000 gives the founders of the best businesses an opportunity to engage with an exclusive community of their peers, and the credibility that helps them drive sales and recruit talent. For more information, visit www.inc.com.

and it works. This has never been more demonstrated nor appreciated than now, as we celebrate being named #2818 to the Inc. 5000 fastest growing company list. Congratulations to all the winners and a HUGE thank you to our entire team because this is, indeed, your success.”

The companies on the 2021 Inc. 5000 have been competitive within their markets, but this year’s list also proved especially resilient and flexible

“The 2021 Inc. 5000 list feels like one of the most important rosters of companies ever compiled,” says Scott Omelianuk, Editor-In-Chief of Inc. “Building one of the fastest-growing companies in America in any year is a remarkable achievement. Building one in the crisis we’ve lived through is just plain amazing. This kind of accomplishment comes with hard work, smart pivots, great leadership, and the help of a whole lot of people.”

Complete results of the Inc. 5000, including company profiles and an interactive database that can be sorted by industry, region, and other criteria, can be found at Inc.com.

30

www.HRProfessionalsMagazine.com

www.HRProfessionalsMagazine.com

31

As

EMPLOYEE FOCUSED RETIREMENT PLANS

an HR professional, you might read that title and think, “Duh – aren’t all retirement plans focused on employees?”

Well, yes and no. As pensions have gone by the wayside and 401(k) plans have gained more notoriety, employees have become increasingly more aware of their employer sponsored retirement plans, and the financial benefits they provide.

Over the last 30 years, Defined Contribution Plans, or 401(k), plans have become a popular employer benefit option for saving for retirement. At its most basic level, a 401(k) plan allows employees to save for their personal retirement needs. But, retirement plans can vary drastically with different benefits to the employer or to the employee.

The good news is, there may be opportunity for your company’s retirement plan. Leveraging the features of your company’s retirement plan can add valuable and desirable benefits to your workforce – helping you attract and retain top talent. Here are several options you can consider to help enhance your retirement plan offering.

ELIGIBILITY In my opinion, the first sign of a retirement plan that’s focused on its employees is one that allows for immediate eligibility. This feature allows any employee to sign up and contribute to their account as soon as they are hired.

Why is this so important? Compounding interest. Every contribution matters when saving for retirement – the longer you contribute, the more your money can grow.

Consider this hypothetical example: Jack (45) and Diane (30) begin working at the ABC Company. Diane, a bit younger in her career, starts her salary at $50,000, and Jack enters a manager position at $70,000. ABC Co. offers a 6% match in their retirement plan, and both begin contributing immediately. Both employees intend to retire at age 65, but with very different account balances.

Hypothetical example for illustrative purposes only

32

www.HRProfessionalsMagazine.com

The extra 15 years of contributions has allowed Diane to retire with more than double the savings of Jack, even while making less in annual salary than him. While a few months, or even a year, may not seem like a long to wait, consider the amount of money an employee can lose out on in the long term.

EMPLOYER MATCH While the saying goes “there’s no such thing as a free lunch,” employer contribution matches are the free lunches for retirement savings.

In the hypothetical example, Jack and Diane were provided a generous 6% match for their contributions. This means that for every 6% of their salary that they contribute, ABC Co. will match it. In other words, their retirement savings just doubled!

And while this all sounds great, there is a potential downside to employer contribution matches – the budget. This is an extra expense to your company’s bottom line and must be evaluated at the financial level and as part of your company’s overall employee compensation package.

FEES Back to free lunches, like most things, retirement plans are no exception to the saying. Over the years, plan fees have adapted in different directions depending on the goal of the advisor.

Unfortunately, many non-fiduciary advisors have found ways to hide their fees within the investment, making the plan appear cheaper or even free, when in fact it may not be. This is practice is called revenue sharing and the DOL has been nudging advisors and plan sponsors to avoid it because of its lack of transparency, and rightfully so! Typically, average participants struggle to fully review and understand annual fee disclosures, but with revenue sharing it can be a nearly impossible task. One way to a more transparent fee structure is zero revenue sharing investments under the guidance of a fiduciary advisor.

But what’s up with that word fiduciary? It’s everywhere! A fiduciary on a company’s retirement plan has the responsibility and the

By JIM TRUJILLO

authority to make decisions on the plan and must act for the benefit of plan participants with a high standard of care. ERISA requires that each retirement plan must have a plan administrator and a named fiduciary.

One of the many duties of a fiduciary on a retirement plan is to understand the fees associated with the plan and to ensure that those fees are reasonable. The DOL suggests benchmarking your plan regularly, and it is an industry best practice to do so every 3-5 years.

Through this process you will review all plan fees and services, comparing them to what else is available.

Benchmarking can uncover many details in your plan. One common occurrence is as companies grow, plans can outgrow their current fee structure. Benchmarking can help you identify overpaid fees, providing you leverage to negotiate fee reductions, or if necessary, a change in vendors.

ROTH VS TRADITIONAL OPTIONS The age-old participant question: should I save Pre-tax or Roth? As a retirement plan advisor this is by far the most common questions I get and because of that we always spend a good deal of time educating employees on this. You may be surprised, or not, to hear that some plans don’t even offer the Roth option. But really, what is the difference?

The key between a Traditional or Roth 401(k) boils down to when the participant will pay taxes. A good rule of thumb is the younger you are, the more beneficial a Roth 401(k) can be.

This is because younger investors are typically in lower income tax brackets. Paying taxes now with a tax-free withdrawal in retirement tends to be more beneficial than taking the up-front tax deduction and paying taxes down the road, when they may be in a higher tax bracket.

The Roth 401(k) was introduced in 2006 and provides a great opportunity for young investors to save with tax benefits in mind. Even more so, there is no additional cost to offering it. It’s a great feature to consider, especially as younger generations enter the workforce.

INVESTMENT LINEUP Paralysis by analysis is the saying we use for investment lineups. Take a minute and put yourself in your employees’ shoes. You log in to your retirement plan website, navigate all the way to the investments and see 40+ investment options. Unless they are a day trader on the side, this plethora of choices can be very overwhelming and frustrating. But how do you narrow it down?

One simple way to ensure your company provides the right investment options is to create an Investment Policy Statement (IPS).

An IPS helps ensure sponsors follow a prudent process for selecting investment options and evaluates their progression over time. A financial consultant can help you draft an IPS to get you started.

Once the IPS is created, it’s now time to make the investment options selections. It is our belief that your investment lineup should be easy to navigate, offering a hands-off option, and just enough index options to create a well-diversified portfolio. For us, this typically results in 10-15 index options plus a Target Date series with 5-year increments. This mix of investment options can provide employees with choices that best fit their individual need.

WITHDRAWALS Even though these retirement plans are meant for retirement, employees can feel comforted knowing additional ways to access their

hard-earned money. Outside of your traditional distributions (hardship, termination, death or disability) loans are the most common way an employee can access their savings.

However, I always advise to consider the future use of the provision. Again, these accounts are intended for retirement. Dipping into these savings can potentially impact their long-term goals. If you believe this will be abused by many of your participants then it may not be a good idea to allow for loans. But if you believe your participants will most likely only use in case of emergencies then it can be an appealing feature.

STUDENT DEBT REPAYMENT OPTIONS As the workforce is being fueled by the younger generations, it is important to consider their needs. As a typical millennial, I entered the workforce with the heavy burden of student loan debt. Paying off these loans is part of every decision you make including saving for retirement. I was fortunate to be able to do both, but many aren’t.

To solve for this problem, the government recently filed an extension of a CARES Act provision that allowed employers to contribute up to $5,250 tax-free towards an employee’s student loans each year. With bi-partisan support, it is believed that this extension to 2025 will become permanent. In preparation for this, retirement plan recordkeepers are creating solutions to streamline the administration of that benefit.

There are a few very popular variations of this new benefit. One simply focuses solely on the employer helping to pay down student loan debt directly. The other solution includes a combination of helping them pay down their debt, while saving for retirement. That option looks like this: an employee wants to save for retirement but is burdened by large student loan debt payments. The company wants to incentivize the employee to pay down the debt by providing a match to their retirement plan when provided with a proof of loan payment.

The participant wins because they are paying down debt and saving for retirement, and the employer wins because they are attracting young talent and while benefiting from a tax deduction for the match. We see this as a future evolution of retirement plans and because of that we highly suggest considering it as a benefit.

As you can see, there are many options out there to help you maximize your retirement plan. Be sure to consult with a retirement plan professional to help you decide the features that best fit the needs of you and your company.

Jim Trujillo, CFP®, PPC®

Financial Advisor JimTrujillo@argi.net www.ARGI.net

Let us be a partner in your trusted circle.

Our financial services are focused on creating cultures of wellness, allowing employers to better engage, sustain, and cultivate human capital.

Help your employees find financial clarity with tailored solutions to fit their needs.

FINANCIAL WELLNESS PROGRAMS

RETIREMENT PLAN CONSULTING

INSTITUTION SERVICES

SCHEDULE YOUR COMPLIMENTARY CONSULTATION TODAY

866.568.9719 | WWW.ARGI.NET

Respective services provided by ARGI Investment Services, LLC, a Registered Investment Adviser, ARGI CPAs and Advisors, PLLC, SCA CPAs and Advisors, PLLC, ARGI Business Services, LLC, and Advisor Insurance Solutions, LLC. All are affiliates of ARGI Financial Group LLC. Trust services provided by ARGI Trust, a division of Advocacy Trust LLC.

www.HRProfessionalsMagazine.com

33

How to Write a Vaccination Policy for Your Organization

V

accinations have been a hot topic long before the COVID-19 Pandemic, but with the emergence of the new COVID-19 vaccination, vaccination policies are now at the forefront of the minds of many employers. Because of this, employers are left to make several important decisions regarding vaccinations in the workplace. This article discusses key points in drafting, disseminating and enforcing vaccination policies in the workplace. When writing a vaccination policy for your organization it is imperative that you start by making a decision.

You organization must decide whether vaccinations will be mandatory, non-mandatory or whether you will issue a policy that leaves vaccination optional and at the employee’s discretion. Next, your organization will need to ensure that whatever decision is made is compliant with local, state and federal law before the policy is published to employees.

Finally, your organization should seek to educate your employees about the policy and the rationale behind the policy and offer incentives to encourage compliance with the policy and boost morale.

Make a Decision When thinking about the first step with respect to writing a vaccination policy for your organization, you as the employer have to make a definitive decision on your organization’s vaccination stance. Vaccination policies typically fall into three camps. Organizations typically decide to either (1) mandate vaccinations, (2) issue a non-mandatory vaccine policy or (3) issue a neutral policy that does not mandate vaccination but encourages vaccination. When engaging in the decision making process, it is important to note that each organization should make an individualized decision on their stance. Consider whether a policy’s terms will impact your business model, employee morale and business interruptions. Each organization is different, and what your organization decides to do might be completely different, yet justified, from another business even in the same industry. When gathering the decision makers, below is a list of things that an organization needs to render a decision about: - What vaccinations will be mandatory or non-mandatory?

- What vaccinations will the policy include?

- What level of proof will be required if vaccinations are mandated?

The most important thing to remember during this phase of policymaking is that at the end of the day, you want to publish a policy that is clear, well-defined, compliant, and easy to understand. This will help minimize confusion among your employees and avoid potential employee compliance issues.

34

www.HRProfessionalsMagazine.com

By TAYLOR FLAKE LAWSON

Ensure compliance with Federal, State & Local Laws when deciding on exceptions and exemptions.

It is critical that your organization create and disseminate a legally compliant policy. Vaccination laws are continuously changing across the country which adds an extra layer of difficulty around policy-making.

Because of this, your organization must ensure that someone within the organization is keeping track of the changes in the law and issuing policy updates accordingly.

On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued expanded technical assistance that provided new information about how the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply when an employer provides incentives for employees to provide documentation or confirmation of their vaccination status. The issued guidance provided the following key updates: - Federal Equal Employment Opportunity laws do not stop an employer from requiring employees who physically enter the workspace to be vaccinated for COVID-19, as long as employers remain complaint with the reasonable accommodation provisions of the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964 and other relevant laws. The Equal Employment Opportunity Commission added that from an Equal Employment Opportunity perspective, employers should keep in mind that some individuals and demographic groups face greater barriers to receiving the COVID-19 vaccination than others, and some employees may be more negatively impacted by a vaccination mandate.

- Federal Equal Employment Opportunity laws also do not prevent or limit employers from offering incentives to employees who voluntary provide vaccination status proof when the vaccine was obtained from a third party (not the employer). Additionally, employers should keep the voluntarily shared information confidential pursuant to the ADA. - Employers that administer the vaccine to their employees can offer incentives for employees to receive the COVID-19 vaccination, as long as the incentives are not coercive. The rationale, is that because the pre-screening questions for the vaccine require disclosing protected medical information and disability related information, the employee might feel coerced into disclosing that information.

- Employers may provide employees and their families with information to educate them about COVID-19 vaccines.

When reviewing the issued guidance, remember that this is only guidance issued by the EEOC. Your organization is still responsible for monitoring and complying with all local, state and federal laws as they become available.

Concerns with Maintaining Proof of Vaccination It is critical that your organization keep any documentation submitted about an employee’s vaccination status confidential. When inquiring about an employee’s vaccination status, your organization should be sure to avoid making medical inquiries that may violate the Americans with Disabilities Act. When drafting your policy, consider how the information will be collected and how you will ensure that any information shared will be kept confidential. It should also be communicated in your policy to employees that this information will be kept confidential.

Finally, if vaccinations are mandated at your organization, your policy for verifying vaccination status should be as limited as possible.

Employers should not inquire into an employee’s reason or rationale for their vaccination status as it might solicit disability related information in violation of the Americans with Disabilities Act. Employers should tailor their inquiries to simply asking about the employee’s vaccination status.

Educate and Incentivize Once your policy has been drafted, your organization must prepare to distribute it to your employees. Issuing a vaccination policy of any sort, regardless to whether vaccinations will required or optional, will require a plan. When preparing to publicize the policy, you should seek to educate your workforce on the new policy, communicate the new policy to all employees, and offer incentives for complying with the policy.

As mentioned before, vaccinations have been a hot topic long before COVID-19. An increasing amount of parents are choosing not to vaccinate their children, coupled with the fact that the global COVID-19 pandemic has forced many to make a decision on whether or not to get the vaccine. Because of this, any sort of policy issued might result in disgruntled employees. Of course, it will be nearly impossible to issue a policy that pleases everyone. Think of ways to preserve and boost employee morale prior to and upon the issuance of a vaccination policy. One way to do that is by educating your employees on the rationale and decision-making process for the policy. Providing some sort of education and explanation could help with employees’ understanding and acceptance. Finally, should you seek to incentivize compliance with the new policy, keep in mind the EEOC guidance on what incentives may be offered.

As you begin to gather your organization’s stakeholders and prepare to make critical decisions regarding your organization’s vaccination policy, keep in mind that this area is ever changing. The place you start at might not be where you finish, but as long as your policy complies with the relevant law and is in the best interest of your business, you have accomplished the task.

Taylor Flake Lawson, Associate Attorney Rainey Kizer Review & Bell PLC tlawson@raineykizer.com www.raineykizer.com

Unconventional approaches.

Ingenious results.

At Littler, we’re lawyers. We’re also innovators and strategists, passionate problem solvers and creative disruptors. And we’re committed to helping our clients navigate the complex world of labor and employment law by building better solutions for their toughest challenges.

Fueled by ingenuity.

Inspired by you.®

Atlanta | 404.233.0330 Birmingham | 205.421.4700 Charlotte | 704.972.7000

Lexington | 859.317.7970 Memphis | 901.795.6695 Nashville | 615.383.3033

www.HRProfessionalsMagazine.com

35

Presented by

Presented by Presented by

MEET SPEAKERS MEET THE SPEAKERS Our agenda MEET includes plentyTHE of time forSPEAKERS relaxing and working with your team, Our agenda includes plenty of time for relaxing and working with your team, We have dynamic leadersand inspire and advise.

Our agenda includes plenty of time for relaxing working with your team, Wealso also haveaalineup lineup of dynamic leaders totoinspire and advise.

We Humphrey also have a lineup of Michelle dynamic leaders to inspire andPierce advise.

Thomas Pierce Nash Bobby Thomas Michelle Nash Bobby Humphrey VP Bryant Bank, VP Bryant Bank, Bobby Humphrey FormerNFL VPFormerNFL Bryant Bank,

FormerNFL

Teambuilding

Teambuilding Bill Rush Teambuilding

Bill Rush Principal Consultant Bill Rush Principal Consultant Wm. G. Rush Principal Wm. G.Consultant Rush Wm. G. Rush

Director of Director ofPeople People Michelle Nash Development, Development, Director of People PZI International International Development, PZI International

High Five

High Five Carla Stiles High Five

Carla Stiles Founder, Carla Stiles Founder, Designed By Carla Founder, Designed By Carla Designed By Carla

VP Strategy & Pierce Services VP Strategy & Services Thomas Vintage Hill Consulting Vintage Hill Consulting VP Strategy & Services

Vintage Hill Consulting

Technology is not...

Technology is not...

Greg Tayloris not...

Technology Greg Taylor Founder Greg Taylor Founder Winning Edge Founder Winning Edge Winning Edge

Coaching & Counseling for The Cookie Crumble of What is an Inspirational Marketing Leader?

Coaching &Success Counseling for What is is an anInspirational Inspirational Coaching & Counseling for The TheCookie CookieCrumble Crumble of of What L e aSuccess r Success n m o r e a b o u t o u r sMarketing p e a k e r s a n d r e s e r v e yLeader? our spot Marketing Leader?

BetterTogether21.com BetterTogether21.com BetterTogether21.com

L eL ae ranr nmmo or er e a abboouut t oouur r ssppeeaakk ee rr ss aa n e ss ee rr vv ee yyoouurr ssppoot t nd d rr e INFO@PASSIONHR.NET

WWW.PASSIONHR.NET

888-HR-SERVE

"WE ARE PASSIONATE ABOUT HR AND YOUR BUSINESS SUCCESS"

I N IFNOF@ ET O P@APSASSISOI N OH NR H .RN. N ET

W T WW WW W. .PPAASSSSIIO ON NH HR R .. N NE ET

888888- -HHRR- -SSEERRVVE E

"WE ARE BUSINESSSUCCESS" SUCCESS" "WE AREPASSIONATE PASSIONATEABOUT ABOUTHR HRAND AND YOUR YOUR BUSINESS 36

www.HRProfessionalsMagazine.com

SAVE THE DATES for our

September Webinars!

2 0 21

All of our sponsored webinars are approved for HRCI and SHRM credits.

September 2 at 2 PM CDT

September 14 at 2 PM CDT

Top Trends & Tips in Recruiting:

Embedding a Coach Leadership Culture in your Organization

A Conversation with Industry Thought Leaders Making Waves in the Recruiting and Hiring Tech Space Sponsored by HRO Partners Speaker Amanda Friedl

Sponsored by The Leadership Development Group Speaker is Gale G. Caldwell, MBA, EdD.

Amanda Friedl

Gale G. Caldwell, MBA, EdD.

September 16 at 2 PM CDT

September 21 at 2 PM CDT

How Can Learning Help Retain Employees?

Employee Engagement Strategies

VP of Strategic Partners @JazzHR

Sponsored by Pearson Vue Speaker Dr. Sarah Krawlzik

Dr. Sarah Krawlzik

Cyber Solutions and Training Expert, ICF

Sponsored by Data Facts Speaker Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR

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

The Thompson HR Firm LLC and HR Professionals Magazine

www.HRProfessionalsMagazine.com

37

Presents

Affordable Online SHRM-CP® | SHRM-SCP® Certification Exam Prep Class Online classes begin October 25, 2021 and will meet twice per week for 12 weeks on Monday and Wednesday evenings from 6:00 PM to 7:00 PM.

SHRM Learning System® Participant Materials

The total cost of the SHRM-CP® | SHRM-SCP® Online Certification Exam Prep Class is $995 (plus $25.00 shipping)

You may pay by PayPal, credit card or check.

2021 Winter Exam Window Dec. 1, 2021 – Feb. 15, 2022 For more information visit shrmcertification.org

Guarantee If you do not pass, you can retake the class at no additional charge if you meet these two requirements: – Attend 80% of the scheduled online classes – Score 80% on all practice quizzes

Deadline to register is October 18, 2021 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, LLC, a human resources consulting company in Memphis, TN. She is a senior human resources executive with more than twenty years of human resources experience concentrated in publicly traded companies. She is also the Publisher | Editor of HR Professionals Magazine, an HR trade publication distributed to HR professionals in Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina and Tennesse. The mission of the publication is to inform and educate HR professionals. Cynthia has an MBA and is certified as a Senior Professional in Human Resources by SHRM and HRCI. Cynthia is a faculty member at Christian Brothers University in Memphis teaching Human Resource Management. Cynthia also teaches online HR Certification Exam Prep Courses for HRCI and SHRM. She is a sought-after speaker on HR Strategic Leadership.

38

www.HRProfessionalsMagazine.com

COMMUNITY

Atlanta

SEPTEMBER 27-29, 2021 | COBB GALLERIA CENTRE

IN-PERSON + ONLINE

Join the Atlanta HR CommUnity’s can’t miss conference of the year for everyone in Human Resources or People Management.

KEYNOTES Dr. Tim Elmore Aiko Bethea

CONFERENCE HIGHLIGHTS

• TWO Pre-Conference Sessions will let you dive into learning before the conference even starts.

• All sessions presented during the two days of SOAHR 2021 will be recorded and available to purchase as Bonus Content!

• Every SOAHR registration includes an On-Demand Library of carefully curated, exclusive content vetted for YOU by your HR colleagues.

• Choose from over 20+ in-depth, trend-forward sessions.

• Relevant, timely content delivered by nationally recognized thought-leaders to give you the tools and insights you need to be better prepared in the evolving world of work.

• Why join us at SOAHR CommUnity? You’ll learn, network, share best practices, and have fun alongside other HR practitioners, industry experts, and resource partners in-person and online.

• Visit the expanded Resource Partner Showcase to find solutions from exhibitors displaying the latest and greatest in HR resources.

Save $30 with code HRPRO2021

WWW.SOAHR.NET

Discounts available for groups of 10 or more

Keynotes: Johnny C. Taylor, Jr,, Rob McKenna, Christine Cashen General Sessions: Linda Clark, Keith Sonderling, Donna Morris, Sarita Maybin, Daniel Villao

PRESENTING SPONSOR

One Action Leaders Could Start Doing Immediately to Build an Emotionally Intelligent Workplace “ Culture is the internal brand that ultimately affects the external brand of the company, its services and its products.” - Judy Bell

By HARVEY DEUTSCHENDORF

By now the majority of leaders have heard of emotional intelligence and appear to have bought into the notion it is important to have it in their organizations. In a survey

by Career Builder, 71 percent of employers stated that they valued EQ over IQ and technical skills. Research by Talent Smart found EQ to be the strongest indicator of performance in the workplace. Yet, with all the challenges faced by leaders in the today’s rapidly changing workplace, the idea of building emotional intelligence can seem overwhelming. But what if there was one idea, that could be easily implemented, which would make a major difference?

Ken Blanchard, author of “One Minute Manager” recently updated his classic book.

Although there were major changes due to technological advances, the one thing that remained the same was his advice to catch people doing things right. Bill Taylor, co-founder of Fast Company, wrote in Harvard Business Review, “Leaders who engage in relentless fault-finding can’t help but lead to a culture of bloodless execution. Leaders who celebrate small acts of kindness (and) who reward moments of connection, give everyone permission to look for opportunities to have a genuine human aspect." "I couldn't agree more", says Judy Bell, President of Judy Bell Consulting in Memphis, TN. http://judybellconsulting.com/. Employees live up to or down to our expectations, so we should always encourage and expect the best!

The best thing for leaders to do to build an emotionally intelligent workplace is to focus on their people doing well and recognize and appreciate them for it.

What To Watch For When it comes to recognition and appreciation, one size does not fit all. Many organizations have a staff appreciation day where everyone is involved. The hardest working, creative, high performer receives the same recognition as the employee who is just there to receive a paycheck. This approach can breed mediocrity and even resentment from those who feel they are going above and beyond and giving their all for the organization. Recognizing employees based on their merits and as individuals requires time, effort and commitment from leaders. One way that leaders increase their awareness of what their people are doing well is to spend more time working with them. Leaders must be engaged with their employees, says Judy Bell. This is what sets Leaders apart from Managers. Managers typically do better with tasks. Leaders inspire employees on the human side, says Bell. The best people to do this are the managers that the staff report to directly. They are in the best position to know the actual work that the person is responsible for. While this takes time away from other tasks, it is well worth the effort.

Employees learn to respect and appreciate managers who are willing to step up and keep themselves involved in their everyday work.

Make an ongoing commitment to find people doing something right. There will be times that leaders have to point out to their people when they need to change something.

The problem is that staff will get the impression that they only receive attention when they do something wrong. The important thing is to continually look for ways to give people positive feedback. According to research, teams with high performance get over 42

www.HRProfessionalsMagazine.com

five times more positive feedback than negative. That is well worth keeping in mind when it comes time for doling out feedback.

Everyone loves to be appreciated and recognized. When staff see that happening to them and around them, they quickly pick up that this is a healthy supportive workplace. Feeling better about themselves and their colleagues, they put in more discretionary effort resulting in higher performance for the organization.

Discretionary effort is the work employees give above and beyond and this is priceless for the culture, says Bell.

As an added benefit there would be less turnover and a decrease in the cost of recruiting and bringing new staff on board. Witnessing recognition being a serious focus of the organization increases the number of employees turning their attention on recognizing each other. Those who are looking to be promoted and move up in the company will be more aware that their actions in recognizing colleagues will be one of the considerations. In this way, recognition from the top will spiral and lead to an increase across the organization. While it will still be necessary to catch mistakes and correct them, it will become known that catching someone doing something right is what will be encouraged and rewarded within the organization. Not only will this make for a happier, more engaged workplace, the organization will gain a reputation for being a good place to work. Says Bell, “Culture is the internal brand that ultimately affects the external brand of the company, its services and its products.” Make it count!

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.

Were you promised a prince?

Is your current background screening provider not living up to expectations? Are they making you deal with endless hold times? Do they have slow turnaround times or inaccurate background reports? Experience a relationship built on trust, transparency and consistency while delivering the fastest turnround times in the industry. If you were promised the royal treatment but have ended up with a frog as your background screening provider, it’s time to find your happily ever after with Data Facts.

www.datafacts.com Credit Reports • Criminal Records Search • Driver Monitoring • Drug Screening • Healthcare Monitoring • I-9 & E-Verify • Verifications

You’re ready to reach your potential.

We’re ready to help you.

WGU offers over 60 respected bachelor’s and master’s degree programs online, each designed for motivated, driven people like you.

• ACBSP-accredited degree programs.

• HR program fully aligned with SHRM curriculum.

• Flat-rate tuition between $6,800 and $7,950 per year.

Online. Nonprofit.

Surprisingly affordable.®

Kikuyu C. MBA Management & Strategy

Learn More tennessee.wgu.edu