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Volume 1 : Issue 1
www.HRprosMemphis.com
Premiere Issue
Proposed NLRB
Election Rules
JUDY BELL Appointed to State Position
NewADA Revisions
New Laws
Guns in the
Workplace
Diversity & Leadership EMPLOYEE Privacy Claims SHRM-Memphis 2011 Board of Directors
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The largest law firm in the Mid-South that devotes its prac ce to represen ng management in all areas of labor rela ons, employment law and human resource consul ng.
Kiesewe er Wise Kaplan Prather, PLC
3725 Champion Hills Drive • Suite 3000 • Memphis, Tennessee • 38125 • 901-795-6695
www.kiesewe erwise.com
Cer fica on as a labor and employment specialist is not currently available in Tennessee.
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Contents the Premiere Issue
www.HRprosMemphis.com Editor Cynthia Y. Thompson, MBA, SPHR Publisher The Thompson Firm LLC Art Direction Brantley Bowden & Co. Contributing Photographers Skipworth Contributing Writers V. Latosha Dexter, SPHR Charles L. Cavagnaro, Jr Jonathan C. Hancock Whitney M. Harmon Tanja L.Thompson Board of Advisors Austin Baker Jonathan C. Hancock Ross Harris, CFA, CPA Diane M. Heyman, SPHR John E. Megley, III, Ph.D Terri Murphy Susan Nieman Robert Pipkin Michael R. Ryan, Ph.D Contact HR Professionals of Greater Memphis: 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.HRprosMemphis.com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@HRprosMemphis.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Of Greater Memphis Magazine is published every month, 12 times a year by The Thompson 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 Of Greater Memphis Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. © 2011 The Thompson Firm This publication is pledged to the spirit and letter of Equal Opportunity Law.
Features 4 5 9
Letter from the Editor Profile Judy Bell Proposed NLRB Election Rules The Time to Act is Now!
12 14 18
Who’s Who? the HR Scene and Events Calendar Guns in the Workplace Tennessee’s New Gun Law
Departments
Columns
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13
Leadership Digger Phelps on Leadership
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EEOC Update
17
Employee Relations
New ADA Regulations Managing Military Employees Effectively
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SHRM-Memphis Bulletin Letter from President, Austin Baker
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Small Biz Best Practices From Hire to Fire
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Diversity Understanding Generational Differences
Benefits Health Care Reform Update
21
HR Ethics Ethics CEG on Workplace Romance Policies
25
Employee Privacy Claims
Next Issue Employment Law Tennessee SHRM Conference in Chattanooga
Industry News 8 13 16
Job Postings New & Announcements SHRM Foundation
stay current Follow Us! www.HRprosMemphis.com
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Editor’s Letter
A new era in Human Resources
Welcome to the Premiere Issue of HR Professionals of Greater Memphis. I am so excited about bringing this first-of-a-kind publication to you! The mission of the magazine is to serve you, the HR professional, and advance the HR profession in the Greater Memphis area. We are partners with SHRM-Memphis as the voice of the HR community. I am so proud to be a member of one of the largest SHRM Chapters in the country, as well as the SHRM international organization with over 250,000 members. As a past president of SHRM-Memphis and founder of the SHRM Executive Roundtable in Memphis, I am aware of the issues that impact our profession and our community. We will be your advocate on state and national legislation affecting our workplace and our profession.
Volume 1 : Issue 1
We will also showcase the best of the best in our profession from Memphis and the surrounding communities with profiles of a key HR professional in each issue. You will also meet a member of the SHRM-Memphis Board of Directors each month. In addition, there will be editorials on topics of importance to you such as benefits, compensation, employee relations, HR technology, performance and training. We will also bring you articles about diversity, ethics, and leadership, which will inspire you.
www.HRprosMemphis.com
Premiere Issue
It has been an exhilarating month as I have visited many organizations and attended many group meetings in our community searching for the current hot buttons that are keeping you awake at night. I have had the pleasure of meeting and talking to many business and community leaders who have both challenged and inspired me. I have never been more proud to be a member of the human resources profession as I experienced the sincere respect these leaders have for the work we do.
Proposed NLRB
Election Rules JUDY BELL Appointed to State Position
NewADA Revisions
New Laws
Guns in the
Workplace
Diversity & Leadership EMPLOYEE Privacy Claims SHRM-Memphis 2011 Board of Directors
I have to agree with Coach “Digger” Phelps, former head basketball coach at Notre Dame, who said on his recent visit to our city that Memphis is experiencing a cultural, economic, and social renaissance. I hope you enjoy this premiere edition and that you too will be challenged and inspired as I have been. What a wonderful time to be an HR professional in greater Memphis and to be a part of this renaissance!
Cynthia Y. Thompson, MBA, SPHR Editor
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on the cover
JUDY Appointed to State Position W. BELL
Chances are if you are a human resource professional in greater Memphis, you have been touched by Judy Bell in some way. Judy is a servant leader who has worked in the human resources industry for more than 30 years. But, then who is counting? It has been said, “If you enjoy your work, you will never work a day in your life”. Judy certainly loves her work, finding joy in helping others succeed. Judy, a past-president of SHRM-Memphis, has been appointed to the distinguished position of Administrator with the State of TN Department of Labor and Workforce Development. There she will direct HR for a department of more than 2,000 employees. She took her new post on June 1 and serves under fellow Memphian Karla Davis who was hand-picked by Governor Haslam in January to be the Commissioner. Judy Bell grew up in Memphis with the expectation that she would be a teacher. After all, her dad was principal of Craigmont High School and her mom was a teacher. So, she began her journey to HR at Memphis State University, as it was known then, and was student teaching at Harding by age 19. It did not take her long to figure out this was not her calling. She dropped out for “just one year”, and got a job at Union Planters Bank. She ended up staying there for 17 years where she became manager of Employment Services.
Judy began her recent stint as a Senior Consultant for Inner Active Consulting in 2010 where she was soon leading personal development training, facilitating the Phoenix Seminar, and speaking on the topic of emotional quotient. She has always been involved in SHRM and served as Chair of the State Conference Committee in 1995. She was the recipient of the Professional Excellence Award in HR for the state of Tennessee in 2001, and was elected President of SHRM-Memphis in 2002. She served on the charter committee that founded the SHRM Executive Roundtable in 2006. Judy Bell is more recently known as the vision behind the SHRMMemphis' wildly successful Ethics Career Emphasis Group (CEG) which meets quarterly to discuss ethical leadership in business, and leaves the leadership of the group in very capable hands with her rock star committee. Judy has lead SHRM-Memphis in so many ways and we are so proud of her many achievements. Beyond SHRM-Memphis, Judy has earned many other accolades including: Congressional Recognition for Community Service in 2001, Selected as one of "50 Women Who Make a Difference" by Memphis Woman Magazine in 2002, Named Woman of the Year by The Leukemia & Lymphoma Society in 2003, and awarded the Smart Award by Girls Inc, Memphis in 2008. Judy has also served in several volunteer roles in state government, among them was Chairperson for the Workforce Employer Outreach Committee in Shelby County for the past five years. Its mission is to provide a direct link between Tennessee’s employer community and the Commissioner of the Department of Labor and Workforce Development. It should have come as no surprise to Judy when she received the call from Commissioner Davis asking her to serve as the Head of Human Resources for the Department of Labor and Workforce Development.
{finding joy} in helping others succeed Following her banking tenure, Judy became manager of Employment Services at Delta Life and Annuity and was there for 3 ½ years. She was then recruited by MATCU in 1997 and was quickly promoted to supervise all staffing and compensation, employee relations, compliance, and training as well as risk management, asset recovery, and liability insurance; rising to the C-Suite as Chief Administrative Officer and second in command to the CEO.
We extend heartfelt congratulations to Judy as she begins her new career with the state. We are very proud of her many years of service to the HR community in Memphis and we know that Judy Bell will continue her personal mission of helping others thrive and succeed in the workplace - on a state level now. ■
www.HRprosMemphis.com
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Speaker at the recent Lipscomb and Pitts
LEADERSHIP
Breakfast held at the Botanic Gardens. This is the largest gathering of business leaders and decision makers in the Memphis community.
Lipscomb & Pitts Breakfast Club Featured “Digger� Phelps Before a crowd of some 400 business and community leaders, Richard “Digger� Phelps, former head basketball coach at Nortre Dame, challenged us to work handin-hand to provide stronger educational opportunities for the young people of Memphis. "If we can save kids, then I'm not worried about families. They'll be OK," Phelps said. "You've got to come together as a team in Memphis and realize you're a sleeping giant. Giving your money is fine, but you've also got to give of yourself and mentor these children. When people give the excuse that they don't have time to volunteer at least an hour a week to mentor a kid, I say, 'Oh, really? Well guess what? Skip lunch one day if that's what it takes. Make the time.' " Coach Phelps believes that Memphis’ potential is as mighty as the Mississippi River, and
stated that Memphis has always been the gateway to the South. "Speaking as an outsider, you don't know the power you have here. I love coming here because of who you are and what you believe in, and I think you're poised to be the gateway not just of the South, but of the United States." Memphis is experiencing a cultural, economic and social renaissance according to Phelps. He cited the recent commitments by several companies to come to Memphis and create jobs, the recent success of the Grizzlies, and President Obama’s visit to Booker T. Washington High School as examples. Phelps said Memphians must work hand-in-hand to provide stronger educational opportunities for our young people. University of Memphis head basketball coach, Josh Pastner, said. "His message about mentor ing should be a challenge to all of us to get involved and make this a better community." â–
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ADVOCACY Know where they stand. On the NLRB’s recent proposal to shorten the time it takes to have union-organizing elections within companies: SS en en aa ttororLL aa ma ma rrAA le le xa xa nd nd ee rr–– “The NLRB seems determined to make the jobs picture worse. Encouraging rushed elections will incentivize employers to send jobs overseas instead of creating them at home.”
––SS ee nn atatoo rrBB ob obCC oo rkr kee rr “I firmly believe the National Labor Relations Board (NLRB) has completely overstepped its bounds in recent months, not only with the rulings regarding so-called “snap” or “quick” elections and disclosure requirements, but with their wellpublicized actions against Boeing. Tennessee is a proud rightto-work state, and it is shocking to me that NLRB would attempt to legally block a company from opening a new facility in a right-to-work state. For this reason, I have joined with Senator Alexander and others as a co-sponsor of S.964, the Job Protection Act, which would prevent NLRB from taking this sort of action against Boeing or any other company. S.964 is currently before the Senate Health, Education, Labor, and Pensions Committee. In the meantime, NLRB’s complaint against Boeing is moving through the administrative court system. More recently, NLRB published new proposed rules that would, as many have argued, put major elements of the Employee Free Choice Act (EFCA) into place without Congressional approval. I have opposed EFCA since I was elected to the Senate, and have both voted against the bill and co-sponsored legislation in direct opposition to it. Both proposed rules would greatly impede the rights of employers to effectively and legally communicate with their employees about their workplace.”
RR ep ep re re se se ntntaa ttivi veeMM aa rsr sha haBB la la cc kkbu bu rrnn–– “The NLRB’s recent proposal to rush union elections is purely political. What our country needs is economic growth, not job-crushing proposals that will push jobs overseas.”
JOB Postings Sr. Human Resource Generalist (Compensation) Regional Medical Center at Memphis Human Resources Manager Great American Steamboat Company Human Resources Coordinator Mitsubishi Electric Power Products, Inc. Human Resources Trainer Technicolor Human Resources Representative Technicolor Human Resources Manager Technicolor Compensation Analyst Methodist Le Bonheur Healthcare Director, Human Resources Methodist Le Bonheur Healthcare Memphis Regional Human Resources Manager Guardian Community Living, LLC Human Resources Manager Evergreen Packaging Senior Corporate Recruiter Strategetics Technology, Inc., Recruiting Specialist UT Medical Group
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RET SEC LOT BAL
The Time to Act is Now!
Proposed NLRB Election Rules On June 21, 2011, the National Labor Relations Board (NLRB or Board), proposed new procedural rules (the Proposed Rules) that would substantially affect employers’ (and correspondingly employees’) substantive rights regarding NLRB secret ballot elections. Although the Board claims the Proposed Rules are simply intended to streamline the election process, reduce unnecessary litigation, and utilize more advanced communication technology, commentators at the Board’s July 18-19, 2011 open forum on the Proposed Rules highlighted that the Board’s true purpose is to limit an employer’s role in the election process and increase union representation. Consistent with the concerns of employers and business groups, sole Republican Board Member Brian Hayes dissented to the Proposed Rules, and underscored the majority’s real motivation in proposing these rules. Hayes commented as follows,
“Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.”
Content of Proposed Rules –
Advanced Technology, But Not The Age of Enlightenment
Several of the Proposed Rules provide for more technologically advanced communication. First, the Proposed Rules provide that election petitions may be filed electronically with the Board.
Employers also must submit a list of the eligible voters, commonly referred to as the Excelsior list, in electronic format to the Board within two work days (currently employers have seven days) from the time the election is directed. Under today’s law, this voter list must only contain the names and home addresses of eligible voters. But the Proposed Rules would require employers to also include employee telephone numbers and email addresses. Notably, the Proposed Rules do not clarify whether the email addresses are work or personal addresses. While providing work email addresses causes concerns about the effect of applicable email usage and no solicitation policies, production of personal email addresses and home telephone numbers is equally problematic because it may infringe on employee privacy. The Proposed Rules also shorten the time that an employer has between the petition and any pre-election hearing from 14 days to 7 days. The Proposed Rules further require an employer to submit a Statement of Position before the pre-election hearing explaining its position on (1) whether the Board has jurisdiction, (2) whether the employer agrees the proposed unit is appropriate, (3) if the employer does not agree to the unit, its contention and description of the most similar unit it concedes is appropriate, (4) individuals’ whose eligibility the employer intends to contest and the basis for the contention, (5) any election bar, and (6) the employer’s position regarding the type, date, time, and location of the election. Furthermore, under the Proposed Rules, the employer is precluded from raising additional issues that contest the appropriateness of the unit and/or the eligibility of individuals not raised in the Statement of Position. www.HRprosMemphis.com
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Another significant change in the Proposed Rules is that employers will generally not be permitted to litigate preelection issues regarding individuals’ eligibility to vote in the election unless the issues involve 20 percent or more of the proposed unit. The most significant practical effect of this change is that more often during elections there will be uncertainty as to whether particular individuals are eligible voters or supervisors. The failure to identify statutory supervisors on the front end not only limits effective communication with employees, but also creates the increased potential for unfair labor practice charges and added postelection litigation or even rerun elections.
Additionally, the Proposed Rules limit the Board’s review of Regional Director decisions. The Proposed Rules entirely eliminate preelection review by the Board. Thus, parties must seek review of Regional Director decisions in a single, post-election request. Under the current rules, the parties have a right to request Board review of a Regional Director’s pre-election decision within 14 days. Although the Board’s review of preelection decisions is discretionary, the current rules discourage Regional Directors from scheduling an election until 25-30 days after their decision was issued where a request for review has been filed, so that the Board has time to consider any request. The Proposed Rules also give the Board discretion to deny review of post-election disputes, thereby eliminating any automatic right that the parties previously had to Board review.
The Practical Effect – The Times They Are A Changing
Although the Proposed Rules do not substantively restrict an employer’s legal right to communicate with employees pre-election, the practical consequence of the Proposed Rules is that employers will have almost no time to communicate their position. Section 8(c) of the National Labor Relations Act protects an employers’ right to communicate with employees so long as the communications “do not contain a threat of reprisal or force or promise of benefits.” Although the Proposed Rules are in large part procedural, their combined effect raises a serious question as to whether the resulting shortened pre-election time deprives 10
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NLRB
Election Rules The Proposed Rules also shorten the time that an employer has between the petition and any pre-election hearing from 14 days to 7 days.
Preparing for the Proposed Changes – The Time to Act Is Now
employers of their substantive Section 8(c) rights. As critics of the Proposed Rules have noted, employers must have the opportunity to speak to be able to effectively exercise their rights under the Act. The right, without the ability to exercise it, eviscerates that right. There is no doubt that the Board’s Proposed Rules, if effectuated, would radically reduce the number of days from petition to election. Today, the median time from petition to election is around 40 days. Board Member Hayes suspects that the timeframe under the Proposed Rules would be 10-21 days. These so-called “quickie” elections do little to protect employee rights and instead are aimed at eliminating employer communication with employees. Make no mistake, labor’s preference is that the employee electorate is not a fully informed electorate, but rather that they hear only the union’s side of the story. That is, of course, the purpose of popular union neutrality agreements and the proposed Employee Free Choice Act. The Board’s Proposed Rules would move us one giant step closer to that reality of eliminating employer communication during a union organizing campaign. The bottom line is the Proposed Rules are not about protecting employees’ rights, but are about securing new union members at the expense of employers’ and employees’ rights.
Because of the likelihood of drastically reduced campaigns, employers are advised to act now to preserve their union-free workplaces. Waiting until an election petition is filed to take action may be too late. Employees must act now to establish and maintain positive employee morale. Tolerating unfair treatment, poor communication, or lack of appreciation of employees (even if in the face of good production or good customer service) likely will result in union success under the Proposed Rules. It also would behoove employers to analyze potential voter unit issues, and particularly Section 2(11) supervisory status in the workplace. Waiting until a petition is filed to determine who the employer’s “supervisors” and resulting communicators will be in a campaign similarly will be too late. Indeed, the only sure chance of remaining union-free under the Proposed Rules will be avoiding the petition in the first place – by committing to positive employee morale and establishing a strong trust bond with employees. If one of your business goals is to remain union-free, take heed and act now. ■ Tanja L. Thompson Partner, Kiesewetter Wise Kaplan Prather, PLC
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NEWADA
REGULATIONS BY LATOSHA DEXTER
Businesses face major new compliance challenges as a result of recently implemented changes in the Americans with Disability Act (ADA). The ADA was amended in 2009 with the goal of dramatically expanding the population of employees considered “disabled.” The regulations implementing the amendments went into effect on May 24. By the EEOC’s own estimates, an additional 12 to 38.4 million employees became “disabled” at the stroke of midnight on May 23. These new regulations reiterate one point over and over again: The purpose of the amended statute and the newly published regulations is to make it easier for employees to establish a disability. Although the basic definition of disability is retained, the terms necessary to determining of whether a disability exists are substantially expanded. The final regulations clearly emphasize that: • “Substantially limits" is to be construed broadly, to the maximum extent allowable under the law. • "Substantially limits" does not need to prevent or severely or significantly restrict a major life activity. • The determination of whether an impairment substantially limits a major life activity should not be extensive and the individualized assessment to determine if someone is substantially limited requires a degree of functional limitation "lower" than the standard before the enactment of the ADAAA. • The ameliorative effect of mitigating measures, other than ordinary eyeglasses or contact lenses, should not be considered in determining whether an impairment "substantially limits" a major life activity. • An episodic or in remission impairment meets the definition of disability if it would substantially limit a major life activity when
active. • The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.
In addition to the inclusion of “major bodily functions” as a “major life activity”, the regulations add activities such as interacting with others. “Regarded as” has also been broadened and requires no showing of substantial limitation by the employee. Further, the regulations state that the “regarded as” prong is the primary method for bringing a claim when an accommodation request is not at issue. So what do these changes mean for employers? Basically now everyone is disabled. An employer should no longer focus on whether a disability exists because it likely does. The focus now is on the whether the disability needs to be reasonably accommodated and/or whether the employer is administering employment actions fairly. Below are some tips for the prudent employer to limit their liability: • Review your job descriptions to ensure they accurately reflect the “essential” job functions. • If you require post-offer medical examinations, review your processes and make sure that automatic disqualification does not occur based on specific medical conditions. • Do not spend a lot of time trying to determine if an employee is “disabled”. You should reevaluate your procedure for requesting medical information and make sure that it is not unduly burdensome for an employee to establish that she has a disability. While you may still make inquiries, do not engage in extensive analysis. • Understand the reasonable accommodation process. Because little
time will be spent determining whether a qualifying disability exists, the employer must show that it engaged in the interactive process, including having policies and procedures in place to notify employees of accommodation processes, maintaining communication with employees, and documenting employer efforts. In the past, employers were successful in challenging claims based on whether a “disability” existed. However, in the future the focus will likely be on whether an employer has met its obligation to accommodate. • Forget about mitigating measures (other than glasses or contact lenses). The employee having available medication or a hearing aid dramatically improving their hearing is irrelevant. • Understand the interaction between FMLA, workers’ compensation and the ADA. An FMLA “serious health condition” or workers’ compensation injury now possibly is also a “disability” under the ADA. • Review your medical leave/termination policies and practices. Permitting an employee one (1) year of leave and then following up with automatic termination will become an improper failure to engage in an individualized assessment or consideration of reasonable accommodation options. • Train your front line. Make sure that your front line supervisors and managers know that the ADA exists and can recognize situations that potentially trigger a response on your part.
In its preliminary regulation impact analysis, the EEOC estimated that the resulting increase in reasonable accommodation requests could range from 2 million to 6.1 million. As a result of these changes, operating costs are almost certain to increase for most employers with a large workforce. However, with sound policies and procedures in place, employers can limit their exposure to ADA claims and better defend against such claims if they are filed. ■ Latosha Dexter, SPHR Attorney, Rainey Kizer Reviere & Bell, PLC
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memphis 2011 Board of Directors
President Austin Baker President of HRO Partners and Owner, Owen Brennan's Restaurant
Vice President-Membership Yvette Brooks, PHR Director, HR Analytics & Technology Methodist Le Bonheur Healthcare
Past President Deneen Al-Sadi, PHR Manager of Employment City of Memphis
Vice President-Membership Audrey Darnell, PHR Human Resources Representative FedEx Trade Networks
Secretary Charlene Mitchell, PHR Human Resource Manager Huey’s Inc.
Vice President-Programs Julieanna Walker, PHR Workforce Development Consultant
Vice President-Hospitality Lisa May Vice President, Marketing Data Facts, Inc.
Not Pictured: Vice President-Communications, Ted Archdeacon, SPHR: Human Resource Manager,Brother Industries (U.S.A.), Inc.
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Vice PresidentCommunications Rolana Bourland Human Resource Generalist Cummins Mid-South
Executive Roundtable Chair Diane Heyman, SPHR Global Head of Compensation and Benefits Hilton Worldwide
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SHRM-MEMPHIS
EDITORIAL CALENDAR
Look for these topics in future issues.
BULLETIN
Letter from the President
2011 PRESIDENT OF SHRM-MEMPHIS
Your Volume of HR Expertise. EMPLOYMENT LAW
Tennessee SHRM Conference in Chattanooga BENEFITS & HEALTH CARE REFORM
Greater Memphis Benefits Council and HR Professionals in Healthcare COMPENSATION/PERFORMANCE MANAGEMENT
Mid-South Compensation Association and HR Professionals as Compensation Analysts STAFFING AND RECRUITING
Corporate Recruiters and NWMS SHRM Chapter PAYROLL AND HRIS TECHNOLOGY
HR Professionals as Payroll Managers of Top 10 Companies EMPLOYEE DEVELOPMENT AND TRAINING
Employee Development and Training Managers NEA SHRM Chapter & American Society of Training and Development DIVERSITY
Diversity Leaders in Greater Memphis and HR Professionals in the Public Sector RETIREMENT PLANNING & 401(K)S
HR Consultants & HR Professionals in Retirement Planning HR IN FINANCE
HR Professionals in Financial Institutions HR IN EDUCATION
HR Programs in Local Universities and HR Professionals in Education LEADERSHIP
HR Professionals in Publicly Traded Companies ASSESSMENTS & BACKGROUND CHECKS
HR Professionals as Employment Managers EMPLOYMENT LAW
HR Professionals as Employee Relations Managers BENEFITS AND HEALTH CARE REFORM
HR Professionals as Benefits Managers COMPENSATION/PERFORMANCE MANAGEMENT
HR Professionals as Compensation Analysts For advertising information contact: HR Professionals of Greater Memphis, Ads@HRprosMemphis.com.
Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors.
GREATER MEMPHIS
NEWS& ANNOUNCEMENTS AWARDS | PROMOTIONS | NEWS | RECOGNITIONS
Dear HR Professional, SHRM-Memphis would like to work with you to help you accomplish your professional and community improvement goals. I am so happy to have the opportunity to serve as the president of SHRM-Memphis this year, we are having a great time and we are growing our footprint in the community through outstanding partnerships with HR professionals and organizations in the Memphis area. If you are not a member, please reach out so that we can show you how you can grow with us. If you are a member and want to get more connected, you could not have picked a better time to do it. We are one of the largest associations in the Memphis metropolitan area! We see a huge opportunity to marshal our resources toward some amazing things for you and for our community. In January we held a Board Vision retreat and I wish you could have been there to experience the passion that our volunteers have for helping you succeed in HR. That is why we are all here right; to succeed in our profession, to be among friends who have the same goals and of course to have a great time doing it. This year we are setting out on a new course to do three things. First, we want to reconnect to you! This year is about thanking you for your service and membership. We want to celebrate your professional successes and even provide an outlet to work on your greatest challenges. We work every day as volunteers to serve you the member and to advance the profession of HR. We want you to be engaged in SHRM-Memphis in a powerfully authentic way. After all, this is your professional home base and you are among friends. The second thing we want to do is to help make the ground in which we farm more fruitful. That is the community that we live in and our talent pool from which we recruit. Does this seem like a tall order? I don’t think it is considering that we are probably the largest metropolitan organization in existence and we have the support of many organizations that we will be partnering with us going forward. This goal will require data, strategy, patience, vision and passion and we are up to the challenge. In 2011 and beyond we are poised to make substantive changes in the community. We can help our community be better; after all we do this for our own organizations! Why can’t we do it for a metropolitan area? The third major goal is to position SHRM-Memphis as the voice of HR in Memphis! That starts with you speaking out and us listening, but it also comes from us amplifying your voice. You have the mic at SHRM Memphis and we want you to speak out. Speak out about state and national legislation that affects our workplaces. Speak out about how we can improve the community that we live and work, and speak out about HR’s future role in organizations and where we are headed as a profession. We are forming key alliances with Mayor Wharton and Mayor Luttrell’s offices as well as the Chambers and many other very important organizations. Through SHRM-Memphis you have a “seat at the table” and these organizations have a ready ear to help us move HR in Memphis forward. We are bringing you more meetings, better speakers, more socials, really cool community building opportunities and a fun environment to make it happen. So what are you waiting for? Get connected and attend an event so that you can be a part of something great today! Sincerely,
Send us your news: Does your company have news to share? E-mail employee recognitions, Business Calendar items and Announcements to News@HRprosMemphis.com. Headand-shoulders photo submissions are welcomed, but should be high-resolution quality (300dpi). Calendar announcements should be submitted three weeks prior to the date of the event.
Austin Baker SHRM-Memphis 2011 President President@shrm-memphis.org www.shrm-memphis.org www.HRprosMemphis.com
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(L-R) Kathy Tuberville with University of Memphis Office of Academic Internships and Kevin Gallagher, Ph.D graduate assistant, and David Allen, Ph.D, at the University of Memphis display outside Hardin Hall at the Botanic Garden.
Hayley R. Isaac, Associate Director of Christian Brothers University's MBA Program and Julie Hagar, Administrator to MBA Programs at the Lipscomb & Pitts Breakfast Club Meeting at Botanic Garden.
Women on the Move Meeting (L-R) Ginna Word with Vaco Resources, Shelley Baur, author of Integrity-Based Communications; and Lindsey Roberts with Vaco Staffing at the recent women on the Move meeting at the Crescent Club where Shelley was speaker.
Baker Donelson Breakfast Briefing
Attorneys Brent Siler and Joann Coston-Holloway facilitated a recent Breakfast Briefing on FMLA.
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Attorneys Emily Walker & Jay Ebelhar spoke on Employee Privacy Claims at a recent Breakfast Briefing.
L-R Attorneys John Simmons and Matthew Gallagher with Kisewetter Wise & Kaplan hosted HR Bytes in August. They discussed the hiring process.
Lunch ‘N Learn
John Duncan, VP of Membership Development for the Greater Memphis Chamber of Commerce and Pat-Kerr Tigrett at the Lunch 'N Learn held at the Ron Terry Center at First Horizon Bank.
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th 8 CALENDAR of EVENTS f 9 Jeremy Park, Director of Communications with Lipscomb & Pitts facilitates a recent Female Business Leaders Luncheon at the Napa Café.
Lisa Lichtertman Leach and Nicole H. Bermel, facilitated the HR Lunch Bytes seminar on revisions in ADA regulations.
9.14.11 Kick-off Meeting for University of Memphis SHRM Student Chapter 4:30 PM – 6:00 PM at the Wilson School (Holiday Inn) Classroom Building Room 129 9.14.11 Building Cases For & Against Social Media (Seminar) 8:30a-10:00a at University of Memphis Theatre 9.15.11 Baker Donelson Breakfast Briefing at 165 Madison Ave. 8:15 AM – 9:30 AM
Jennifer Blake with the Centre Group speaks at a recent SHRM-Memphis Compensation and Benefits CEG meeting about the results 2011 Memphis Salary and Wage Survey.
9.20.11 SHRM-Memphis HRO Senior Executive Forum with CFOs 7 AM – 11AM at The Holiday Inn at the University of Memphis
9.22.11 Reception with Richard Sheirer hosted by Baptist 5:30p-7:30p at the Children’s Museum of Memphis
Recent Chamber Mixer in Collierville at the Avenue Crossing
9.21-23.11 SHRM TN State Conference in Chattanooga 9.22.11 Mid-South Compensation Association 11:30 AM – 1:00 PM At The Holiday Inn at the University of Memphis 9.25.11 Dress for Success with James Davis 8:00a-9:30a at James Davis
Pam Green, SHRM's Chief U.S. Membership Officer was the guest speaker at the August SHRM-Memphis luncheon meeting at the University of Memphis Holiday Inn. She spoke on "The Future of HR - What's next for the Profession?"
L-R Dr. James Posner, Lori-Turner Wilson, Bill Burtch, and Darrel Uselton at the Greater Memphis Chamber of Commerce Small Business Council Breakfast at the Racquet Club in August. Lori spoke on Securing Your Base - Reaching and Keeping Your Best Customers.
Barbara Richman and Joel Myers at the Greater Memphis Chamber of Commerce Small Business Council Breakfast at the Racquet Club.
9.27.11 Leading Tomorrow Lunch Series hosted by U of M 12p-1:30p at the U of M. No charge to attend. 10 business leaders and 10 students talking about leadership and the job market. 9.28.11 SHRM-Memphis Compensation and Benefits CEG Meeting 7:30 AM – 10:00 AM at the Holiday Inn at the University of Memphis
Northwest MS Chapter Meeting 11:30 AM -1:00 PM At the Baptist Memorial Hospital DeSoto Room 10.6.11
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RECOGNIZED FOR OUTSTANDING CONTRIBUTIONS TO MILITARY EDUCATION AROUND THE WORLD $PVODJM PG $PMMFHF BOE .JMJUBSZ &EVDBUJPO
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The SHRM Foundation
Scholarships
The SHRM Foundation is a 501(c)(3) nonprofit affiliate of the Society for Human Resource Management (SHRM). The Foundation is a legally separate organization, and is not funded by SHRM membership dues. The SHRM Foundation is governed by a volunteer Board of Directors from the HR profession, including academics, practitioners and representatives from SHRM.
SHRM Foundation Vision The SHRM Foundation is the globally recognized, premier source of human capital thought leadership and research.
SHRM Foundation Mission The SHRM Foundation advances global human capital knowledge and practice by providing thought leadership and educational support; and sponsoring, funding and driving the adoption of cutting edge, actionable, evidence-based research.
The SHRM Foundation awards $170,000 annually in education and certification scholarships to professional and student SHRM members, and doctoral students. Educational resources. The SHRM Foundation's Effective Practice Guidelines series makes research findings easily accessible to HR practitioners. The Foundation has also created a series of educational DVDs for SHRM chapter programming, staff trainings, and executive education sessions. The SHRM Foundation is grateful for the generous support of its major donors, the HR Certification Institute, the Society for Human Resource Management (SHRM) and the J. J. Keller Foundation. To fund its programs, the SHRM Foundation conducts an annual fundraising campaign. â–
The SHRM Foundation's work includes: Innovative academic research grants. The SHRM Foundation is a leading funder of HR research. Over the past three years, the SHRM Foundation has awarded more than $1.8 million in grants to fund rigorous, original academic research with practical implications for HR management practice. 16
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The SHRM Foundation is the globally recognized, premiere source of human capital thought leadership and research.
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Managing Your Military Employees Effectively Employee Relations
Did you know that you
must comply with the Uniformed Services Employment Rights Act (USERRA) even if you are a company of only 2 employees? As long as one of you is “the boss” you are covered under this act and need to know your rights as an employer as well as your employees’ rights if they are uniformed service members or are members of the National Guard or Reserves. There are 7 Reserve forces that fall under USERRA plus the Public Health Service. However, Guardsmen and Reservists deal with it the most. Most of them are accountants, truck drivers, managers, police officers, welders, and doctors who make America’s government and economy the strongest in the world. But, when they receive the call, they are soldiers, sailors, airmen and Marines. They are the people who make America’s forces and security the strongest in the world. Almost half of the U. S. Military is comprised of men and women serving in the Guard and Reserve, and 20,000 of them live in Tennessee! The support of the business community is needed to maintain the militia tradition that has kept our country strong. Winston Churchill once said, “The Reservist is twice the citizen”.
range from $1,500 to $8,000 per hire and are a credit against your income taxes payable. You may go to www.vetjobs.com that provides automated qualification of all available tax credits for each veteran applicant in addition to screening tools to help the employer select the best candidates.
Tax Credits for Hiring Veterans
SHRM’s Focus on Military Hiring
And did you know that if you hire a veteran, you are eligible for tax credits? They
Over 15 months ago, SHRM signed a statement of Support with the Employer
G E N E R A L E M P L OY E E P R OV I S I O N S
Here are some of the general provisions of the act that your employees are entitled to. A leave of absence for the period necessary to perform military service whether that service is voluntary or involuntary. Restoration in employment with seniority, status, and rate of pay as if continuously employed. Persons are not to be discriminated against in hiring, retention of employment, promotions or other benefits because of present military affiliation or intent to join the military or Reserves.
G E N E R A L E M P L OY E R P R OV I S I O N S As the employer, you have rights also:
You have a right to advance notice of an employee’s military duty except in very rare situations. You have a right to proof of an employee’s military duty.
Dan F. Callahan, III, Tennessee representative for ESGR; and Mary Ann Epperson, PHR, ESGR volunteer, recently facilitated a presentation for the SHRMMemphis Compensation and Benefits Career Emphasis Group at the Hyatt Place on Winchester.
Support of the Guard (ESGR), pledging to focus special attention on providing resources and training to HR on successful recruitment and retention of serviceconnected employees. At this time more than 275 SHRM Chapters and 31 State Councils have signed their own ESGR Statements of Support helping make SHRM a key voice in the effort to increase employment opportunities for returning veterans and protecting jobs for those called to active duty. Once a year in August officials from the ESGR sponsor a breakfast for Memphis employers and present Patriot Awards to those with outstanding service to the “Statement of Support” program. For more information, please visit www.esgr.org/sos.
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B Y J O N AT H A N H A N C O C K & W H I T N E Y H A R M O N
Legislative actions often closely follow sensational media coverage,
a phenomenon recently demonstrated by the introduction of "Caylee's Laws" in states across the country. In the employment world, such reactionary legislation can often be disruptive, especially when enacted legislation dictates major changes to the rules governing the employer/employee relationship. Following media coverage of a litany of incidents involving workplace violence and the almost constant coverage of gun violence in today's society is the recent enactment in certain states, including Tennessee, of workplace protection laws. This article addresses the context in which these laws have been passed, briefly examines the form of this legislation, and comments on the immediate impact Tennessee's new law has on employers in this state.
The legislative enactment of workplace protection laws, which are broadly defined as laws that protect an employee's right to bring firearms onto an employer's premises if they could carry the weapon in other public places within the state, started in Oklahoma with a lobbying effort from the National Rifle Association's Institute for Legislative Action. These laws also appear to be a legislative reaction to the widespread implementation by employers of workplace violence and other policies that, among other things, often prohibit employees from bringing firearms on an employer's premises. These policies even extend in some cases to vehicles owned and leased by the employer. Such policies often include zero tolerance principles when addressing things like employee aggression, violence against co-employees, and the possession of weapons on an employer's premises. In practice, these policies frequently become the justification for disciplinary actions in instances where the employee's conduct, or their possession of a weapon, is considered threatening. Before examining the mechanics of workplace protection laws, employers must understand the risk management concerns presented by employee violence. First, and most often cited, is the fact that 18
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under the Occupational Safety and Health Administration's (OSHA's) "General Duty" clause employers are required to create "a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." In addition to employees, employers are required under this clause to provide protection for all vendors, clients, visitors, solicitors, and anyone in the general public who is on the employer's property. A second consideration is equally daunting, and it encompasses the civil tort liability that often accompanies incidents of employee violence. Should the employer have known that the employee may cause harm to others, and if so, did the employer act reasonably under the circumstances? What if the employer allowed the employee who caused the harm to work around tools that could be used as weapons without first conducting a background check or psychological exam? Is that negligent? If so, depending on who is harmed, and perhaps contingent on the application of the state's worker's compensation exclusivity rule or statute, such a claim could have catastrophic civil ramifications for employers.
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Before we explore the new legislation in Tennessee, it is helpful to examine the state of the law in contiguous states like Mississippi and Arkansas. In Mississippi, the legislative pronouncement reads as follows: (1) Except as otherwise provided in subsection (2) of this section, a public or private employer may not establish, maintain, or enforce any policy or rule that has the effect of prohibiting a person from transporting or storing a firearm in a locked vehicle in any parking lot, parking garage, or other designated parking area. (2) A private employer may prohibit an employee from transporting or storing a firearm in a vehicle in a parking lot, parking garage, or other parking area the employer provides for employees to which access is restricted or limited through the use of a gate, security station or other means of restricting or limiting general public access onto the property. (3) This section shall not apply to vehicles owned or leased by an employer and used by the employee in the course of his business. (4) This section does not authorize a person to transport or store a firearm on any premises where the possession of a firearm is prohibited by state or federal law. (5) A public or private employer shall not be liable in a civil action for damages resulting from or arising out of an occurrence involving the transportation, storage, possession or use of a firearm covered by this section.
Mississippi Code Annotated § 45-9-55. Private employers in Mississippi are allowed under this law to prohibit guns on the workplace premises, even if locked in a vehicle, so long as the parking lot or garage is not available to the general public. Public employers are also offered limited immunity under Mississippi's workplace protection laws. Arkansas employers have less guidance than those operating in Mississippi, as there is currently no statute or regulation that governs firearms on a private employer's premises in Arkansas. Tennessee recently joined a small number of states by enacting workplace protection legislation, and Tennessee employers can now allow handguns on their property under a bill, S.B. 519, signed into law by Governor Bill Haslam on March 31, 2011. While Tennessee law already allowed employers to permit employees to possess weapons on their property, the new statute specifies that an employer’s decision to permit handguns at work does not constitute an occupational safety and health hazard for Tennessee employees. Tennessee's new law specifically clarifies that employers who permit employees to carry weapons on their property do not, by that act, create an unsafe workplace, thus creating an exemption to OSHA's General Duty clause. While an administrative law judge did recently rule against an employee who raised a claim that allowing handguns did violate OSHA's General Duty clause, the Tennessee Occupational Safety and Health Administration had responded to that ruling by announcing that such decisions would be made on a case-by-case basis. Tennessee Code Annotated Section 39-17-1359 (a)(1) states: An Individual, corporation, business entity or [government entity]… is authorized to prohibit the possession of weapons by any person who is at a meeting conducted by, or on property owned, operated, or managed under the control of the individual, corporation, business entity or government entity.
Under this statute, an employer in Tennessee may prohibit possession of firearms on their property so long as notice is posted. Notice language must be substantially similar to the following: As authorized by T.C.A. § 39-17-1359, possession of a weapon on posted property or in a posted building is prohibited and is a criminal offense.
So long as the notice is posted and in English, it becomes a criminal offense in Tennessee to possess a weapon in a building or on property that is properly posted. In fact, possession of a weapon on posted property is a Class B Misdemeanor in Tennessee, and is punishable by a fine of $500. However, following the enactment of this law, some employers that opted to allow handguns found themselves facing complaints that this allowance violated OSHA's General Duty clause. In response, Tennessee legislature enacted SB0519/HB0283, which provides that an employer permitting a person with a handgun carry permit to carry a handgun on the employer's property does not constitute an occupational safety and health hazard to other employees.
Since OSHA can be preempted by state laws, this solves the problem for employers in Tennessee facing claims that the practice of allowing guns violates OSHA's General Duty clause. While Tennessee's legislature did clear up many of the issues arising under OSHA's General Duty clause, it does not provide employer immunity. Conversely, the statute specifically states that "nothing in this section shall be construed to alter, reduce or eliminate any civil or criminal liability that a property owner or manager may have for injuries arising on their property." The state of the law in Tennessee is therefore this – employers may allow guns on their property without violating OSHA's General Duty clause, or may choose to prohibit guns and comply with the statute's posting requirements, but in either event there will not be statutory immunity and employers are therefore left to their own devices to guard against claims of negligence and/or other civil claims. New gun laws like Tennessee's obviously have the tendency to put employers in a legal conundrum. Compliance with the law allowing guns on the premises puts employers at risk of violating their obligation to protect their employees, while noncompliance with the law could subject them to civil and/or criminal liability, and to penalties in some states. What if an employee works in one state but regularly visits a facility or work site in another state that has a different law addressing guns in the workplace? Does the employer have to make an exception, and if so, under which law should the exception be made? And what happens if an incident of violence occurs in Tennessee and the crimes are committed by an employee allowed to have a gun in his or her vehicle? Is the employer now absolved of liability, or do Tennessee employers need to add scrutiny to all employees now allowed to carry firearms to work? Unfortunately, for now, employers in Tennessee are left without clear answers to the questions above and the many others that are raised by the enactment of Tennessee's new law. But there are thankfully still a number of good practices that can help employers avoid liability while maintaining a legally compliant workplace. Consider some of the following suggestions: 1. Draft, implement, and revise as necessary a policy that prohibits workplace violence. Make sure all employees understand what this policy prohibits and the consequences for violations. 2. Consider security measures that control access to areas like parking lots where firearms can be stored. Restrictions to access can be tricky, but having trained security personnel monitoring such areas can greatly limit the likelihood an enraged employee can make it to his or her car and back to cause harm without notice and an opportunity to avoid the harm. 3. Train HR employers, managers, and supervisors to spot employee conduct that could be troubling. Similarly, make sure these "control group" employees know when to keep a watchful eye on employees, i.e., when bad news is being delivered, during termination meetings, etc. 4. Don't be too liberal with gun access. Remember that, at most, these laws only allow employees to bring guns to work for storage in a locked area in the employee's car. Do not expand that right, as allowing a gun to be locked in a locker, etc., may not be covered as an exception to OSHA's General Duty clause. 5. Involve the authorities at the first sign of a problem. Waiting too late invites criticism that more could have been done to avoid the worst scenarios.
Whitney Harmon Baker Donelson Bearman Caldwell & Berkowitz, PC
Jonathan Hancock Baker Donelson Bearman Caldwell & Berkowitz, PC
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While employers are trying to figure out how much it is going to cost them to comply, 26 states have sued on the basis that the individual mandate provision of the federal health care reform law is unconstitutional.
The Patient Protection & Affordable Care Act, aka Health Care Reform
B Y C Y N T H I A Y. T H O M P S O N , M B A , S P H R
Let’s begin with a short review. In March 2010 legislation was passed mandating major changes to health care practices in our country. The following mandated benefits became effective six months after the legislation on all existing health insurance plans: • Prohibitions on lifetime limits and rescissions • Restrictions on annual limits • Limitations on excessive waiting periods • Requirement to provide coverage for non-dependent children up to age 26 who do not have an employer offer of coverage
In 2014 group health plans must prohibit pre-existing condition exclusions and annual limits. Most of us agree that these provisions were much needed. But wait, there’s more. Here are some of the other mandates:
• Health Care Exchanges • Employer penalties for not offering coverage and for offering unaffordable coverage, as well as penalties for offering low-value plans • Tax on high-value plans • No penalty for waiting periods • Employer-provided free choice vouchers • Automatic enrollment procedures and long-term-care enrollment procedures • Restrictions on cafeteria plans • Incentives for wellness
Meantime, while employers are trying to figure out how much it is going to cost them to comply, 26 states have sued on the basis that the individual mandate provision of the federal health care reform law is unconstitutional. On August 12, the 11th U.S. Circuit Court of Appeals in Atlanta ruled that the individual mandate provision of the 20
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federal health care reform law is unconstitutional upholding the decision of a federal district court in Florida. The decision declared that the individual mandate is not authorized under the Commerce Clause of the U.S. Constitution, which permits the federal government to regulate interstate commerce. Legal experts predict that the matter of the mandate’s constitutionality will hit the U.S. Supreme Court in the upcoming term rather than waiting for all of the federal appeals courts to decide the cases pending as a result of the August 12 ruling. SHRM Position: SHRM has traditionally aligned with other employer groups and associations on the issue of health care reform. SHRM supports the goal of providing access to health coverage to all Americans. While SHRM endorses the continuation of an employerbased system, the problem of the uninsured is not a problem solely to be resolved by employers and payers. SHRM supports legislation to 1.) Improve health care quality through increased use of health information technology; 2.) Provide greater cost and quality information to payers and patients; and 3.) Preserve employer flexibility in offering health care benefits. Talking Points: SHRM supports health care reform efforts but is concerned about proposals that limit employer flexibility in designing health benefit plans. Health benefit mandates, however well intended, drive up the cost of health care plans for both employers and employees. Over a hundred million Americans have health, retirement and other valuable benefits voluntarily provided by their employer under a nationally uniform framework established by the Employee Retirement Income Security Act (ERISA). As such, SHRM opposes efforts to erode ERISA and the employer-based system. Congress should not erode what works to fix what is broken. SHRM strongly supports efforts to develop standards for a national health information network. HR professionals understand that electronic medical records can improve patient outcomes and coordination of care while reducing duplication and inefficiencies in the health care system, all of which can reduce costs for employers and employees. ■ We welcome opposing view points and invite you to send your thoughts to Cynthia@HRprosMemphis.com. We will publish them in the next issue.
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ETHICS Career Emphasis Group Meeting
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(L-R) Joyce Margulies, Esquire, Margulies Employment Law Consulting, Dr. Chuck Pierce, Professor of Human Resource Management, University of Memphis, Randy Hutchinson, President of the Better Business Bureau of the Mid-South, Judy W. Bell, Founder of the Ethics CEG.
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Joyce Margulies, Esq., of Margulies Employment Law Consulting; and Dr. Chuck Pierce, Professor of Human Resource Management at the University of Memphis, led a debate on “Managing Human Capital Issues from a Legal and Ethical Perspectiveâ€?. One of the challenging questions discussed was, “Should your company have a workplace romance policy prohibiting co-workers to date? Dr. Pierce has conducted intense research on this topic. His research shows that employees who participate in a lateral (coworker or peer-peer) workplace romance sometimes experience increased levels of job performance, job satisfaction, and to a lesser degree organizational commitment. Thus, Dr. Pierce's recommendation is that organizations should implement organizationally-sensible rather than legal-centric workplace romance policies. Those who disagreed with Dr. Pierce felt that allowing co-workers to openly date increases the possibility of sexual harassment charges and litigation. Everyone agreed that having a policy will not prevent co-workers from dating or falling in love. However, having a policy in place will facilitate disciplinary action if the policy is violated. Some companies require employees to disclose if they are dating a co-worker so that one of them can be transferred to a different department or location. In the event, relocation is not possible; one employee would need to find another job. If the relationship is not reported, both may be terminated. Another option is to have a policy that prohibits dating between a supervisor and a direct report only. This type of relationship can cause problems with other direct reports who perceive the direct report who is dating the supervisor as receiving special treatment. This can be very disruptive to productivity in the work group. Also, there is a much higher probability of a sexual harassment charge in this situation if the relationship goes sour. â–
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From Hire to FIRE
Small Business Practices
These are the facts: the number one type of case filed in federal court is criminal, i.e., the federal government going after drug dealers, corrupt politicians, and the like. The second most filed type of case is employment-related. In the last decade there has been a 200% increase in employment law cases filed in federal court. The South leads in ADA case filings and 75% of all cases filed involve discharge. Even if you win your case, you still have to pay your own attorney fees.
Avoiding Problem Employees
One of the best methods to handle an employment problem is to not hire one in the first place. The hiring process begins with a good application, pointed interview questioning and ends not with the applicant accepting the job, but with the probationary period. Make sure that you have a wellprepared application designed to screen out potential problems, even before they become your employees. The application should be drafted and reviewed by an employment lawyer and should stress previous work experience and future goals. Make sure your application lets the applicant know he is “employed at will”, subject to drug testing, and that any omissions or false statements on his application may subject him to discharge. 22
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In-depth Interviewing
Review the application with the applicant. Press strongly about the applicant’s prior work experience. Ask hypothetical questions. These questions can really reveal whether you may be looking at a problem employee.
Effective Use of the Probationary Period
During the probationary period, managers should not only evaluate objective criteria such as job performance and attendance, but also evaluate subjective areas like attitude and willingness to be a team player. Most employees are at their best attitude-wise when they first begin employment, so if an employee shows signs of becoming a problem in this initial period, steps should be taken to deal with the situation immediately before it becomes a bigger problem.
Handling Problem Employees
The most important advice in dealing with a problem employee is to actually deal with the problem employee – don’t be afraid to confront a problem employee. Chances are this person is adversely affecting morale and production in the workplace and can cause you problems down the road.
Handbooks and Progressive Discipline
I strongly recommend that every employer have a handbook. It only makes common sense. Society can only operate effectively when its people understand what is right and what is wrong. While there are pros and cons of having a handbook, the pros outweigh the cons. A handbook lets employees know the consequences of their actions. Much more than that however, a handbook is an invitation for your company to communicate to employees all the great benefits your company has to offer. Critical to this entire process is the need for someone knowledgeable in human resources to administer this plan. The system should have a mechanism for reporting problems, which goes above and beyond simply filing a complaint with a supervisor. The immediate supervisor should not have the final call in discipline. Rather, another manager, preferably human resources, should review this decision. Finally, a handbook should contain a procedure to report claims of discrimination, harassment, and retaliation. Rule breakers usually do not get sympathetic attention in a business where employees know
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that the rules are fair and that they are consistently applied. But there is where the rub occurs. The rules must be applied consistently. Periodically conduct employee surveys to determine whether they feel the rules are being applied consistently and fairly. Employee perceptions are the reality of the workplace.
Protecting Against Wrongful Termination
If a problem employee slipped past your screening procedures, and your investigation of the incident reveals that discharge is warranted, you must pull the trigger. I cannot tell you how many times I have been involved in a lawsuit where the supervisor says, “I should have fired him when I had the chance.” Generally, if an allegation is made warranting discharge, you should suspend the employee “pending the outcome of the investigation” after you have interviewed the employee. There should be a specific rule or offense the employee has violated. The employee should be aware that his conduct subjects him to termination because you gave him a handbook and you have a receipt to show it.
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If others have committed the same offense and have not been discharged, you should have documented the mitigating factors present in the current situation that distinguishes it from other situations where employees were not discharged. You should have investigated all the facts thoroughly. Remember that anyone can sue, but not everyone is protected under the law. You must be careful when discharging: a. minorities b. females c. those over 40 years of age d. employees with serious health conditions or with chronic attendance problems e. employees with disabilities f. employees who have complained of illegal conduct g. employees with worker’s compensation injuries
You should also consider whether a severance agreement and release is appropriate and whether an exit interview would be appropriate under the circumstances. Please be certain to get advice from an attorney before preparing a release agreement as the laws continue to become stricter regarding what agreements will be
upheld in court. Not every termination is the result of a violation of company rules, but is still difficult for the employee to accept. Here are some more tips for successful termination of employees. When the termination is not the employee’s fault, but is the fault of a reduction in force, reorganization, or some similar problem, try the following approach: 1. Explain the situation that brought about the termination. 2. Explain what your company has done to try to avoid the situation. 3. Explain that the decision has been made to let the employee go. 4. Express confidence in the employee and praise the employee’s good service as applicable. 5. Explain what benefits will be offered and what assistance may be offered as far as finding a new position. 6. Give the employee time to react and listen to his reaction. ■
Charles W. Cavagnaro, Jr Attorney with Evans | Petree, P. C.
"You've got
to come together as a team in Memphis and realize you're a sleeping giant...” -“Digger” Phelps
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Understanding
GENERATIONAL DIIFFF EE REE NC NE CE SS What’s your Generation? No matter what generation you belong, understanding and discussing generational differences are a hot workplace diversity issue when companies are facing not just four, but now five generations at work. Some of us may be on the edge of one generation and act more like the other. Others believe they are in one generation and look at the chart to be surprised to find they are in another. Regardless, age-diversity in the workplace affects work practices. Perceptions towards the different groups and their work styles are very real. Generational differences and the natural tension between the groups have been noted as one of the top ten trends of major concern in some form for HR Professionals in surveys since 2005 as so noted in the SHRM February 2011 Workplace Forecast. Boomers retiring and/or staying longer than Gen X’ers created a “gray ceiling” on the top positions. Generational “values” differ in perspectives on working to retirement and work/life balance. Companies looking ahead have a valid concern in meshing the groups in their complex workforces, as well as finding the highly skilled future workforce needed.
The May 2011 SHRM HR Magazine’s cover article Managing the Generations written by Adrienne Fox describes each generation in a section called “Talkin Bout My Generation.” A stereotype is an oversimplified characterization of each generation. In a learning environment, employees can learn that stereotypical generational descriptions do not apply to every person and every situation, but can be used to see how values of each generation were developed. More highly engaged workforce organizations that invest in generation diversity learning have less tension, better solutions to issues and a greater understanding between generations within work groups. As professionals tasked with finding and retaining the best of the best and then creating a highly engaged workforce, you must first know the complexity of your workforce and your organization’s current and future needs. The second challenge is to create a learning environment where culture solutions are created that embrace needs of the different generations . An example may be different communication methods. Traditionalist, Boomers and some Gen X’ers may prefer e-mail communications while other Gen X’ers , Millennials and Gen Z ‘ers prefer the newer social media methods. Whatever your challenge, know the complexity of your workforce and teach them to know themselves as a critical starting point. ■
The Generations Year Born
Nicknames
2011 Ages
1925-45 1946-64 1965-80 1981-95 1996 -
Silent Generation or Traditionals Baby Boomers Generation X Millennials, Me First Generation or Generation Y Generation Z , Generation 2020 or Digital Natives
66-86 47-65 31-46 16-30 16 or less
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Elizabeth Merrell Sellers VP Human Resources, Wunderlich Securities, Inc.
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Employee PRIVACY CLAIMS What is the extent of an employer's right to monitor employee communications
and/or to discipline employees for improper Internet use, Facebook or blog postings, or other communications? What legal rights to privacy does an employee have and what claims may an employee bring against you for invading his or her privacy?
Use of Social Media
There is a whole new world of technology available to employees today including Facebook, My Space, LinkedIn, Twitter, blogs, camera phones, instant messaging, and the list goes on and on. It seems that everyone is using social media for business as well as for recreation. The use of social media in the workplace is becoming more and more acceptable. But its use still causes problems and concerns for employers. Two of the most often asked questions are whether it is legal for an employer to check the social media of applicants? Can you use social media in making hiring decisions? The answer to both questions is “Yes”. However, employers must be consistent in their practice of reviewing social media of applicants. You should not check My Space only some of the time. If you use social media to screen applicants, you must be consistent and check My Space on every applicant every time. Another question that arises is whether to post open positions on Facebook. Many companies are now using Facebook and Twitter to attract and retain customers. Should they post open positions on their company Facebook accounts also? The answer again is “Yes”. This practice is perfectly legal as long as you post all positions. If you only post certain positions, it makes your company liable for disparate action claims or unintentional discrimination, which could attract the attention of the EEOC should a disgruntled applicant file a complaint. However, employers should not post job openings exclusively to social media because many job applicants will not have access to computers or the Internet. Chances are that members of different protected classes will have less access to a computer and/or Internet, thus unintentionally denying access to jobs to members of those protected classes and potentially giving rise to claims of disparate impact claims.
Protected Concerted Activities
What can an employer do about an employee who posts unflattering remarks about his supervisor on Facebook or other social media sites? Employers should not discipline employees who post unfavorable comments about their supervisor on social media. The National Labor
Relations Board recently backed the case of a woman who was fired by American Medical Response of Connecticut Inc. for Facebook postings that were critical of her supervisor. Under the National Labor Relations Act – “whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that". Be aware that although your company has no union workers, your employees are still protected under the NLRA and may engage in protected concerted activities including discussions about salary. Your company handbook should not require confidentiality concerning employees discussing their salary with other employees.
Personal Use of Company Internet
Many companies have policies prohibiting the personal use of the company Internet. They may also have a policy regarding an employee’s right to privacy which advises the employee that the company computers and Internet are not for personal use and there should be no expectation of privacy. However, such a policy does not entitle the employer to view an employee’s personal emails because the employee was using the company computer and Internet to access his personal email account from the workplace, unless the company specifically included personal email accounts in the right to privacy policy. A company is not protected in this situation because personal email is not considered employer client communication. You should always consult an attorney before viewing an employee’s personal email. There are many state and federal laws governing employee privacy and employer rights. Among these are the Wiretap Act, the Electronic Communications Privacy Act, Public Disclosure of Private Facts, Intrusion Upon Seclusion Act, False Light and Federal Trade Commission Guidelines to name a few. You should be aware of your employee’s rights as well as the employer’s rights before implementing disciplinary actions. ■
...“whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions,...” www.HRprosMemphis.com
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Distinguish yourself. NEW AT CBU r SHRMÂŽ Learning System/Human Resource CertiďŹ cation Exam Prep: Classes meet every other Saturday, September 13 through December 3. Call (901) 321-3291 or email efrankli@cbu.edu. www.cbu.edu/shrm
r Physician Assistant Program: Inaugural class begins January 2012. The Master of Science in Physician Studies is ohort-base ed and consists consists of a 27 month/7 month/7 /7 semest er cohort-based semester urriculum. Applied Applied for for provisional provisional accreditation. accred ditation. curriculum. w ww.cbu.e edu/P PAS www.cbu.edu/PAS
r RNN to to BSN Program: Program: 18-month 18-month BSN program program a with nursing classes asses one nigh nightt per week, week, blending classr classroom ssroom and online teaching. begin eaching. New Ne ew cohorts cohorts beg in in Spring Spring and nd Fall. Fall. www.cbu.edu/nursing w ww.cbu.e edu/nursing
Your future. Ourr tradition. a 26
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OUR JOB:
Know labor and employment law
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OUR GOAL:
Be a valued part of your business team There’s no one-size-fits-all solution to labor and employment issues. That’s why we partner with clients to understand and help meet their specific goals. Our team approach offers a full-service L&E department within a full-service firm, so our clients get what they need, when they need it. And we’re proactive, providing on-the-ground customized training
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Included in Best Lawyers in America 2011’s list of the top ten firms in the nation for Employee Benefits Law and Workers’ Compensation Law, and in the top fifteen for Labor and Employment Law Named by Benchmark: Litigation (2009) as a “Recommended Firm” in Louisiana, Mississippi and Tennessee
and education programs to prevent problems before they occur. Clients know it’s not only what we do, but how we do it, that matters most. It’s how Baker Donelson has helped clients for more than 120 years.
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The Rules of Professional Conduct of the various states where our offices are located require the following language: THIS IS AN ADVERTISEMENT. Ben Adams is Chairman and CEO of Baker Donelson and is located in our Memphis office, 165 Madison Avenue, Suite 2000, Memphis, TN 38103. Phone 901.526.2000. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers. FREE BACKGROUND INFORMATION AVAILABLE UPON REQUEST. © 2011 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
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