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Volume 1 : Issue 2

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the TOP

Labor & Employment

ATTORNEYS

SHRM Tennessee

Conference

in Chattanooga

Dr. Bob

An Interview with

Nelson

Responding to an EEOC Charge

HR Professionals as ER Managers

Austin Baker

2011 SHRM-Memphis President

New Summary Judgement STANDARD New Laws - Tennessee’s

Mississippi Workers’ Comp Law


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The largest law firm in the Mid-South that devotes its pracce to represenng management in all areas of labor relaons, employment law and human resource consulng.

Kieseweer Wise Kaplan Prather, PLC

3725 Champion Hills Drive • Suite 3000 • Memphis, Tennessee • 38125 • 901-795-6695

www.kieseweerwise.com

Cerficaon as a labor and employment specialist is not currently available in Tennessee.


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Contents

Human Resources & Management Expertise the TOP

Labor & Employment

ATTORNEYS

SHRM Tennessee

Conference

in Chattanooga

www.HRprosMemphis.com Editor Cynthia Y. Thompson, MBA, SPHR Publisher The Thompson Firm LLC HR Consulting and Employee Development

Art Direction Brantley Bowden & Co. Contributing Photographers Skipworth Larry Kuzniewski Photography Contributing Writers V. Latosha Dexter, SPHR Jonathan C. Hancock Whitney M. Harmon Tanja L. Thompson Louis P. Britt III Thomas J. Walsh Jr. Jeff Weintraub Jasmine Johnson Board of Advisors Austin Baker Jonathan C. Hancock Ross Harris, CFA, CPA Diane M. Heyman, SPHR John E. Megley III, PhD Terri Murphy Susan Nieman Robert Pipkin Michael R. Ryan, PhD

Features 4 5 6

Letter from the Editor Profile: Austin Baker Tennessee’s Employment Law Tennessee’s New Summary Judgement Standard

8 10 15

Top Attorneys in Greater Memphis Who’s Who? Mississippi Employment Law No Retaliatory Discharge Statute for Workers’ Comp

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the HR Scene and Events Calendar

Departments

Columns

7

12

SHRM-Memphis Bulletin

14

NWMS-SHRM Conference

20

Small Biz Best Practices

Advocacy e-verify New Immigration Law

13

Leadership An Interview with Dr. Bob Nelson

16

Employee Relations HR Professional as ER Managers

18

EEOC Charge Stats 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.

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Responding to an EEOC Charge

EEOC Update Employer Warning New NLRB Poster Requirements

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Tennessee SHRM Conference Bridging the Gap

Industry News 26 27

The Release Party News & Announcements

Next Issue Benefits Update The Latest in Health Care Reform

stay current Follow Us! www.HRprosMemphis.com

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on the Agenda.

a note from the Editor

so much is changing.”

“Staying current is more important than ever before –

Our focus in this issue is employment law and with our deadline looming, I flew to Chattanooga for the 19th Annual 2011 Tennessee SHRM Conference and Exposition on September 21-23 hosted by the SHRM Chattanooga Chapter at the Chattanooga Convention Center, in order to bring you the latest developments in this very important area. Jonathan Hancock and Whitney Harmon discuss Tennessee’s new summary judgment standard in their article titled “Tennessee’s Wild Tractor Ride”. It is our pleasure to bring you the Chambers and Partners list of top labor and employment law attorneys in Memphis. Chambers and Partners annually publish their leading guides based on their in-depth, objective research. The 2011 edition of Best Lawyers in America was also recently released and is based on a rigorous national survey involving detailed evaluations of lawyers by lawyers. Watch for these results in a future issue. We know you will enjoy reading about HR professionals who are employee relations managers on page 16.

Want to know the hot topics for HR professionals in Mississippi? Check out the photos and topics discussed during the recent NWMS SHRM Conference. Dr. Bob Nelson was the keynote speaker at their conference as well as the Tennessee SHRM State Conference, and I had the privilege of interviewing him while he was in town. Dr. Nelson presented me with my very own copy of his new book, Ubuntu!, which he personally autographed for me! I know you will enjoy learning about this inspirational author and guru of employee motivation. Did you know Mississippi has no retaliatory discharge statute for filing worker’s comp or reporting whistleblower activity? Be sure you read Jeff Weintraub’s and Jasmine Johnson’s article on this timely topic. As promised we bring you the best of the best in our profession in greater Memphis with an in-depth profile of Austin Baker. It was an exciting month and I’m looking forward to bringing you the latest on benefits and healthcare reform in our next issue. Best wishes for a beautiful fall season in greater Memphis!

Cynthia Y. Thompson, Editor Cynthia@HRprosMemphis.com

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on the cover

AUSTIN

Baker

LEADING HUMAN RESOURCES INTO A NEW GENERATION.

Want something done in Memphis?

Just contact J. Austin Baker III, or Austin Baker, as most of us know him and he will make it happen! Austin is an entrepreneur and community leader who believes in Memphis. Austin’s latest business venture, HRO Partners, provides human resources outsourcing services to government and businesses in Memphis. Austin’s experience also includes 10 years of operating EServ, an employee benefits brokerage that serviced customers in over 17 states. In 2007 EServ won the “Small Business of the Year Award” at the annual Small Business Chamber Awards. Austin is also a principle with his father Jim Baker in Owen Brennan’s Restaurant in Memphis. Austin is 2011 President of the Society for Human Resource Management in Memphis (SHRM-Memphis), which boasts over 1,100 members and is one of the largest chapters in the US. ough only 30, Austin is already considered a “mover and a shaker” in Memphis. In 2009 the Memphis Business Journal selected Austin as the “Top 40 Under 40 Award” recipient, and in 2010 the Fogelman College of Business awarded Austin “Entrepreneur of the Year”. As an Eagle Scout, Austin has dedicated his life to service through non-profit leadership and mentorship education including service as the Chairman of the Board for the Small Business Chamber. Currently Austin serves on Mayor Luttrell’s Young Professional Council, Memphis Fast Forward People First Board, as well as the City of Memphis branding committee. Austin also serves on the Boards of the Workforce Investment Network (WIN) and the University Neighborhood Development Corporation.

Austin is a member of the U of M Fogelman College of Business and Economics Alumni Chapter, and is the co-founder of the Memphis Institute for Leadership Education Program (MILE) with Dr. Bob Taylor who is Chair of the Department of Management. MILE brings business leaders back to U of M as mentors to some of the most promising talent the Fogelman College of Business and Economics has to offer. In April 2010 Austin led a group of students to create the very successful Spirit of Memphis Campaign to restore civic pride in Memphis. During the Spirit of Memphis movement, an estimated 20,000 people took an oath of citizenship to the City at more than 27 pep rallies. In addition, Austin is the founder of the Memphis Eagle Scout Association (MESA), dedicated to engaging and connecting an estimated 10,000 Eagle Scouts in the Memphis area. Austin, a graduate of the Fogelman College of Business (BA Management 04), is a life member of the Alumni Association and a Society of the Shield member. Austin met his wife Page when he was a freshman at U of M. ey have two sons, James and Asher; and they attend Grace St. Luke’s Church. I Pictured above (L-R) Dr Rajiv Grover, Dean of the School of Business; Dr. Shirley Raines, President of the University of Memphis; Austin receiving the “Entrepreneur of the Year Award” om the Fogelman College of Business and Economics www.HRprosMemphis.com

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•OVERT URNED • Tennessee’s New Summary Judgment Standard

TENNESSEE’S WILD TRACTOR RIDE

and Its Impact On Retaliation Claims. B Y J O N AT H A N C . H A N C O C K & W H I T N E Y M . H A R M O N

T

he Tennessee General Assembly legislatively overruled two Tennessee Supreme Court decisions by statutorily changing Tennessee's summary judgment standard to more closely track the federal standard during the final days of its 2011 session.

Employers, particularly HR professionals, are oen required to devote significant time to claim evaluation and risk/benefit analysis when confronted with employee complaints that could result in litigation. is process is complicated for everyone involved as there are usually a number of moving parts implicated, and, consequently, an analysis of these variables oen requires lots of experience and hard work. is analysis can become almost impossible when the fundamental concepts on which it is based change unexpectedly. at is exactly what happened on September 20, 2010, when the Tennessee Supreme Court surprised the legal and business community with its announcement in Gossett vs. Tractor Supply Co. of a new legal standard for summary judgment in employment cases litigated in Tennessee state courts. Tennessee employers suddenly found themselves on a somewhat wild ride as they tried to factor the change mandated by the Tennessee Supreme Court into their claim evaluation analysis. Summary judgment motions are oen used by employers in discrimination, harassment, and retaliation lawsuits to obtain a favorable result prior to enduring the expense and disruption of a trial. Since 1984, Tennessee state courts have decided summary judgment motions in employment cases using the same analytical framework that the federal courts use in analyzing claims arising under Title VII and other federal employment laws. Under this framework, which is oen referred to as the "McDonnell Douglas framework" aer the 1973 U.S. Supreme Court decision in which it was first articulated, employers 6

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who offer evidence of a lawful reason for a challenged employment decision are generally entitled to summary judgment, meaning they win the case, unless an employee can present evidence that the proffered legitimate, nondiscriminatory reason for the adverse action of which the employee complains is actually discrimination in disguise. e Tennessee Supreme's Court decision in Gossett, among other things, announced that Tennessee state courts will no longer use the McDonnell Douglas framework, but rather that summary judgment will be granted only if employers present evidence "that affirmatively negates an essential element of the nonmoving party's claim or show that the nonmoving party cannot prove an essential element of the claim at trial." e Tennessee Supreme Court's decision followed its 2008 decision in Hannan vs. Alltel Publishing Co., in which the Court somewhat radically changed the summary judgment framework for all civil cases litigated in Tennessee state courts. In the court's opinion in Gossett, authored by then Chief Justice Janice Holder, the Tennessee Supreme Court concluded that summary judgment should not have been granted in the employer's favor despite the fact that it transferred an employee who complained of sexual harassment to another position as a remedial measure. e Court held that the fact the employee was reassigned shortly aer alleging her supervisor had sexually harassed her was evidence enough to defeat summary judgment, no matter what explanation the employer offered. I


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ADVOCACY

How to prepare for changes.

the NEW Immigration Law

On June 7, 2011, Gov. Bill Haslam signed legislation seeking to make sure Tennessee employees are legally authorized to work in the U.S. This bill is a weaker version of its original, which mandated all employers use the federal e-Verify program to prove their employees are legally in the country. The new bill (HB1378) exempts employers with five or fewer employees and allows them to keep a copy of the new hire's driver's license instead of using e-Verify. The legislation requires businesses with more than five employees to obtain a copy of a new employee’s driver’s license or utilize the e-Verify system, but provides a safe harbor for employers who use e-Verify if the worker is later found to be in the country illegally. Although the internetbased e-Verify system operated by the Department of Homeland Security allows employers to verify employment eligibility based on social security number, it cannot verify that the person providing the social security number is the lawful owner of the number. Although the government maintains the system is 97.4 percent accurate, it does not protect against identity fraud. A biometric system such as fingerprinting is needed to ensure the integrity of the process. Penalties: An employer who is a first-time offender will be issued a warning if the employer complies with all remedial action requested by the Tennessee Department of Labor and Workforce Development and did not knowingly violate the employment verification provisions of the Act. An employer who has been found to have violated the employment verification provisions of the Act will be assessed $500 for the first violation, $1,000 for a second violation and $2,500 for a third or subsequent violation. In addition to these civil penalties, first-time offenders will also be assessed an additional $500 for each employee or non-employee who was not verified through the e-Verify program or for whom an identity / employment authorization document was not requested. For second and third violations, employers will be fined an additional $1,000 or $2,500, respectively, for each employee or nonemployee. An employer who fails to submit evidence of compliance with the employment verification provisions of the Act, within 60 days

Know where they stand. Senator Lamar Alexander – “We should increase our law enforcement’s ability to enforce existing laws and expand the current electronic employee verification system to ensure that those being hired are supposed to be here.”

of a final order, will •NEW LAW• have its business Lawful Employment Act Imposes New license suspended Immigration-Related Requirements on Employers until the employer remedies the violation. The Tennessee Department of Labor and Workforce Development will also post a publicly available list on its website of any employer against whom a final order has been issued. e-Verify, an internet-based system operated by the Department of Homeland Security in partnership with the Social Security Administration, allows participating employers to electronically verify the employment eligibility of their newly hired employees by entering their name and a social security number. It is free to employers in all 50 states, including Tennessee where more than 4,000 businesses have voluntarily participated in the system. The e-Verify system is 97.4 percent accurate. The signing of the new Tennessee law comes after the Supreme Court ruled in May in favor of an Arizona law that requires businesses to verify the employment eligibility with e-Verify. The practical effect of the decision is to uphold the right of states to require employers to use the e-Verify program. According to conversative estimates, there are more than 110,000 illegal immigrants in the state’s workforce. Supporters say the legislation is needed to crack down on illegal immigration, while opponents say it could cost businesses time and money. SHRM Position: To ensure effective enforcement of immigration laws, the federal government must provide U.S. employers with a fast and reliable method to confirm whether new hires are legally authorized to work in the United States. However, the current I-9 verification system and e-Verify are unreliable and susceptible to identity fraud. As a result, SHRM will continue to advocate for an effective employment verification system, as embodied in the New Employee Verification Act. (www.shrm.org) I How does e-Verify affect your company? Send feedback to: feedback@HRprosMemphis.com

Senator Bob Corker – "Having a mechanism for employers to know the people they are hiring are here legally is critical to ensure that jobs are filled by the legal workforce. I'm supportive of efforts to expand and improve upon the current system." www.HRprosMemphis.com

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Labor & Employment

Louis P. Britt III concentrates his practice on employment litigation and advice, representing private and public employers in a broad range of employment matters. He handles employment discrimination and harassment cases (Title VII, ADA, ADEA and FMLA), wage/hour matters, enforcement and defense of restrictive covenants contained in employment agreements, and employment-related torts. He is experienced in complex and class action litigation, and has tried cases in state and federal courts across the country. Louis has extensive experience in public sector representation in both litigation and collective bargaining. He received his JD from Tulane University Law School. He is also listed in The Best Lawyers in America.

Herb Gerson focuses his practice on management side issues related to traditional labor and employment matters. He devotes much of his practice to counseling clients on avoiding employment discrimination claims and developing a positive work environment. Herb earned his JD from Emory University School of Law in 1973 and is licensed in Georgia and Tennessee. He is a Fellow of the College of Labor and Employment Lawyers and a Fellow of Litigation Counsel of America and is also listed in The Best Lawyers in America.

Victoria Holladay practices employment law representing clients on a national/regional basis ranging from NYSE traded corporations to small privately-held companies. She has extensive experience in litigation involving discrimination/FLSA class action lawsuits, trade secret misappropriation, and non-compete covenants' enforcement. She has handled a widerange of legal matters under federal/state statutes, including employment discrimination, wrongful discharge, tort/contract cases, NLRB charges, and wage-hour matters. Victoria is an experienced advisor to General Counsel and executives on the legal/practical impact of 8

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employment issues arising out of strategic business plans. She received her JD from University of Mississippi School of Law in 1987 and is also listed in The Best Lawyers in America.

Paul Prather After serving as a clerk for the Chief Judge of the United States District Court in Memphis, Mr. Prather has devoted his career to representing employers in all areas of employment relations law. As a trial lawyer, he has represented employers in civil litigation in more than 20 states, trying many cases successfully to conclusion before juries. He has been annually recognized by his peers in Best Lawyers in America and in Chambers USA: America’s Leading Business Lawyers, and as one of the Top 50 lawyers in Memphis in Mid South Super Lawyers. Mr. Prather has also been recognized as a fellow of both the American College of Labor and Employment Lawyers and the Litigation Counsel of America. He is a founding member of both the Wage & Hour Defense Institute and the Management Labor and Employment Roundtable and is active in the labor and employment law sections of the Memphis, Tennessee and American Bar Associations.

Jay Kiesewetter began his career as an attorney with the National Labor Relations Board and has devoted his practice to representing clients nationwide in the “traditional” areas of labor law. He counsels employers in union-free management and advises non-union companies facing union organizing activity. He also represents employers in litigation before the NLRB and U.S. Courts of Appeals. In addition, Mr. Kiesewetter works with companies that have unions to improve union-management relations and represents management in contract negotiations, arbitrations, and labor disputes. He is listed in Best Lawyers in America, Chambers USA: America’s Leading Lawyers, Top One Hundred Super Lawyers in Tennessee, Top 50 Super Lawyers in Memphis, and Business Tennessee’s “150 Best Lawyers in Tennessee.”

Jonathan Kaplan has devoted his entire career to representing management clients exclusively in all areas of labor relations, employment law, and human resource management. His practice spans litigation, training, and consulting, in which he has handled matters in more than 40 states and Canada. Mr. Kaplan also is a frequent speaker before management and legal groups and has published numerous articles on labor and employment issues. He is listed in The Best Lawyers in America, Chambers USA: America’s Leading Lawyers, and Super Lawyers named him as one of the top 100 lawyers in Tennessee.

Edward R. Young has a nationwide practice representing public and private management in all phases of labor relations and employment law, including litigation, union avoidance, and collective bargaining. Over 40 years' experience representing clients in state and federal courts on issues dealing with EEOC, NLRB, and US Department of Labor. He litigated matters in over 20 states and Canada. He is a member of the Memphis, Tennessee and American Bar Associations.

James Mulroy II practices workplace litigation and counseling on behalf of management, including class and collective actions, discrimination, wage and hour, non-competition agreements. He is a Fellow in the College of Labor and Employment Lawyers, Arkansas, Tennessee, Mississippi and Illinois Bar Associations. He is a former Navy JAG, AV Rated by Martindale Hubbell; Listed in Best Lawyers since 2006; Listed in Super Lawyers since 2007; Memphis Business Quarterly Top Lawyers. B.A. - Rhodes College; MBA – University of Memphis; JD – University of Tennessee.


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Frederick Lewis practices labor and employment law, litigation and union avoidance. Has represented companies in a number of class/ collective action cases involving claims of discrimination, wage-hour violations, and disability discrimination. Fellow, The College of Labor and Employment Lawyers; Fellow, Tennessee Bar Association; Federal Bar Association (former president of Memphis chapter), ABA Litigation Section, ABA Labor and Employment Section. Admitted to practice in Tennessee, U.S. Supreme Court, U.S. Court of Appeals (3rd, 5th, 6th, 7th, 8th, 9th, 11th, and District of Columbia Circuits), and various U.S. District Courts. Author and frequent speaker on employment law topics.

Kelly S. Gooch’s practice focuses on employment litigation and counseling including discrimination, harassment, retaliation, ADA, FMLA, torts, wage-hour, collective actions, employment contracts, and reductions in force. Practice before federal and state courts, EEOC, and other administrative agencies. She is a member of the Tennessee Bar Association; Memphis Bar Association, Labor and Employment Section (past chair and board member); Defense Research Institute; Women Lawyers Alliance; Society for Human Resource Management. She has an AV rating, MartindaleHubbell. University of Memphis, JD, 1990 (Law Review); Murray State University, BS, 1984 (cum laude).

David P. Jaqua’s practice includes employment litigation; arbitration and mediation; traditional labor practice, including representation campaigns, NLRB hearings and negotiations; management counseling and training. AV-Rated, Martindale-Hubbell; The Best Lawyers in America, Labor and Employment Law; Chambers USA, Americas Leading Lawyers for Business, Labor and

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Employment; Mid-South Super Lawyers, Employment and Labor; Fellow, Tennessee Bar Foundation. He is a member of the American Bar Association (Labor and Employment Section); Tennessee Bar Association (Labor and Employment Section); Mississippi Bar. Tennessee Bar Foundation. University of Mississippi, J.D., with honors, 1976; United States Naval Academy, B.S., Mathematics, 1973.

Bart N. Sisk has a traditional labor practice including representation campaigns, union decertifications, NLRB hearings; business immigration law; management consulting and training; employment litigation. He is a member of the American Bar Association (Labor and Employment section); American Immigration Lawyers Association; Louisiana Bar Association; Tennessee Bar Association; Memphis Bar Association. AV-rated, Martindale-Hubbell; Chambers USA, America's Leading Lawyers for Business, Labor and Employment; Represented employers across the United States, Puerto Rico, and the Caribbean faced with union organizing, including multi-facility organizing and corporate campaigns. University of Tennessee, JD, with honors, 1984; Memphis State University, BBA, cum laude, 1981.

Arnold Perl focuses his practice on labor and employment law. He has successfully argued many cases before various United States Courts of Appeals, and is admitted to practice before the United States Supreme Court. He has extensive experience counseling organizations on remaining union free. He leads a uniquely effective leadership development program for all levels of management. In 2006, Arnold coauthored, Simple Solutions, with Tom Schmitt from FedEx and published by John Wiley & Sons. The book offers guidance and real-world insight on making collaboration work, tailoring leadership styles to fit team needs, assembling great teams and inspiring people.

the HR PROFESSIONALS MAGAZINE of Greater Memphis

congratulates you on a job well done! It is our pleasure to introduce the Chambers and Partners list of top labor and employment law attorneys in Memphis. Chambers and Partners annually publish their leading guides to the legal profession. A team of 100 highly qualified full-time researchers identify and rank the world’s best lawyers and law firms based on in-depth, objective research. Their researchers conduct thousands of confidential interviews with lawyers and their clients worldwide. For more details about Chambers and Partners research, please visit their website at www.chambersandpartners.com. The 2011 Edition of Best Lawyers in America was also recently released and is based on a rigorous national survey involving detailed evaluations of lawyers by lawyers. Watch for these results in a future issue.

Note: The Martindale-Hubbell Peer Review Ratings help buyers of legal services identify, evaluate and select the most appropriate lawyer for a specific task at hand. Lawyer Ratings serve as an objective indicator that a lawyer has the highest ethical standards and professional ability and are used by buyers of legal services to justify their hiring decisions. Combined with the Martindale-Hubbell® Client Review Ratings, self-reported professional credentials and other fact-based performance data, the Peer Review Ratings contribute to the comprehensive view of a lawyer. Please see peer review ratings of all attorneys at www.martindale.com.

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SHRM-Memphis

WHO’S who? Getting to know your Board Every issue we spotlight Board members,chairpersons and prominent leaders in the HR and business community.

Jonathan C. Hancock has served as the

It’s easy to ge get et caught up in day-to-day bu usiness and not business see potential hazards ahead. At Butler l Sno Snow, w, ourr eeyes yes are are al always lways trained d on the futur e. We We w o in close par ork tnership future. work partnership with emplo yers,, pr oviding practical advice employers, providing and helping them pr epare for potential prepare w orkplace issues before befor efore they they arise. ar ise. With With workplace an in-depth under standing tanding of each client’s client’s understanding b usiness,, our Labor and Emplo yment team business, Employment

Legislative & Governmental Affairs Co-Chair for the SHRM-Memphis Board of Directors since 2005. He has also served in this capacity for the SHRM Tennessee State Council since 2009. Jonathan is a Shareholder with Baker Donelson’s Memphis office and represents employers and management clients regarding all aspects of employment law. Jonathan represents employers and management clients regarding all aspects of employment law, including employee counseling and termination, proactive employee training, and the handling of employee complaints and claims, whether made informally to the employer or filed as part of a lawsuit in state or federal courts across the country. Among Jonathan’s outstanding career achievements, one most notable to SHRM members is his serving as Lead Counsel for state chapters of SHRM as amicus curea in the matter regarding adoption of the initial pleading standard by the Tennessee Supreme Court. Due to his efforts, effective July 1, the Tennessee Supreme Court decision in the Gossett v Tractor Supply Co was legislatively overruled by the Tennessee General Assembly changing Tennessee's summary judgment standard to more closely follow the federal standard previously observed prior to Gossett. (Read about it on page 6.) Mr. Hancock is a frequent speaker and writer whose articles have appeared in BNA's Employment Discrimination Law, the American Bar Association's Labor and Employment Law Newsletter, the University of Memphis Law Review, and other publications. Mr. Hancock regularly speaks on employment and civil litigation topics for a variety of clients and groups including the Society for Human Resource Management, the National Association of Legal Administrators, the Memphis Bar Association and the Tennessee Bar Association, among others. Jonathan obtained his B.S. degree from Millsaps College in 1993 and his J.D. from the University of Mississippi School of Law in 1996.

helps companies mitigate itigate rrisk isk and manage challenges with confidence. confidence onfidence. Our culture culture of teamw ork,, innovation innovation and unparalleled teamwork, ser vice is our defining ng differ ence. service difference. To T o lear learn n mor more, e, visit www w www.butlersnow.com. w.butlersnow.com.

free bbackground ackground informa information ation available available upon request. request. This ad author authorized ized by by Donald D Clark,, Jr., Jr.,, Chair Chairman. man . 10 20 Highland Highl and Colony Colony Parkway, Parkw way, Suite 1400, 1400,, Ridgeland, Ridgeland,, MS 39157 39157 1020

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Whitney M. Harmon

is Legislative &

Governmental Affairs Co-Chair for the SHRMMemphis Board of Directors and is an Associate with Baker Donelson’s Memphis office. Whitney also represents employers and management clients regarding all aspects of employment law. She has extensive litigation experience representing clients in employment matters before the Equal Employment Opportunity Commission, and in various state and federal courts. Whitney’s notable career achievements include securing "No Cause" findings for multiple employers before the Equal Employment Opportunity Commission, Tennessee Human Rights Commission and other state agencies. She has also successfully handled audits by the Department of Labor's Wage and Hour Division, OSHA, and the OFCCP for employers. She received her B.A in 2001 from Transylvania University and her J.D. from the University of Kentucky College of Law in 2004.


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HAPPENINGS

Relationship Building: Finance & Human Resources 1

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A half day seminar and roundtable discussion on best practices of HR from the CFO’s point of view and how the relationship between CFO and HR Executives is working in Greater Memphis was held at the University of Memphis Holiday Inn on September 20th.

1 Professor David Allen was facilitator for 3

4

the panel. 2 Panel members from First Horizon National Corporation were John

SHRM-Memphis Student Kickoff Meeting Several Board members helped facilitate the recent kickoff for the SHRM-Memphis Student Chapter at the Wilson School of Hotel Management at the University of Memphis and spoke about their careers in human resources. Carol Danehower, PhD, and Associate Professor at the University of Memphis; and Kathy Tuberville, Coordinator of Academic Internships for the University of Memphis, also assisted with the kickoff on September 14.

5 Yvette Brooks, SPHR, and VP/Membership; and Julieanna Walker, PHR, and President-Elect

6 Jason Callahan, Treasurer

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Daniel, Executive Vice President & Chief Human Resources Officer; and William C. Losch III (BJ), Executive Vice President & Chief Financial Officer.

3 Panel members

from Monogram Food Solutions were Raymond R. Stitle, Chief People Officer;

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and David Dunavant, Chief Financial Officer.

4 Panel members Brian L.

Wenger, CAPT, USN Director, Business Operations of the Department of Navy Personnel Command and Jennifer J. Blevins, Director of Human Resources Services for Navy Personnel Command.

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Upcoming HR Forum! Recruit – Relocate - Retain November 2, 2011 from 8:00 - 10:00 AM University of Memphis The Leadership Academy, in partnership with SHRM-Memphis and the University of Memphis Office of Academic Internships, presents the 4th Annual Recruit Relocate Retain HR Forum. Join us as we explore best practices and share cutting-edge resources available to HR Executives for attracting and retaining talent in Memphis. Complimentary breakfast provided. To register, please visit http://recruitretain.eventbrite.com. For more information contact Rashana Lincoln at rlincoln@leadershipacademy.org.


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LEADERSHIP

An Inspiring Inverview with

Dr.BOB

NELSON BY CYNTHIA THOMPSON

Q. What company today represents the best example of how to motivate employees using recognition? Is there a direct correlation between recognition and turnover in companies that have a culture of recognition? Dr Nelson: Recognition has the greatest impact on turnover and is the most proven factor according to Gallop’s research. A Gallup Poll of two million employees at 700 American companies found that productivity is directly related to employees’ relationships with their immediate supervisors. One of the main ways to improve these relationships is to effectively recognize the efforts and accomplishments of others.

Q. You are an accomplished author having written several books including 1001 Ways to Reward Employees, . . . and your latest, Ubuntu! When you have a chance to relax and read a good book, what type book do you choose? Who is your favorite author? Dr Nelson: My rule is I wait until two people recommend a book to me. My favorite genre is non-fiction. I read the type of books you like to read. In Ubuntu! we merged philosophies; I’m practical and my coauthor, Stephen Lundin, is more ethereal – speaks from the heart. I enjoy parables----you can see the purity. I have an MBA in organizational behavior and a PhD in management and human behavior, and I believe one of the best books is The Greatest Management Principle in the World by Michael LeBoeuf.

Q. Most of your work focuses on how to motivate employees. What do you consider the greatest “de-motivator” in the workplace today? Dr Nelson: Policy manuals and rules and restrictions are the greatest de-motivators. One person messes up and you have to create a new policy. Continental Airlines went from worst to first. They reduced their policy manual from 300 pages to five pages. (From Worst to First: Behind the Scenes of Continental’s Remarkable Comeback by Gordon Bethune, former CEO of Continental Airlines.) I also like Nordstrom’s policy manual. It’s one line, “Use your best judgment”.

Q. Where does pay rank as a motivator, especially incentive pay such as bonuses? There have always been controversial theories about pay as a motivator. What do you think? Dr Nelson: Pay is always in the top two or three. Money ranks number one in companies where people get paid for performance – bonus pay. It’s not important unless you are rewarded with money. Drucker says all incentives that start financial become de-motivators, entitlement. Money, promotions, benefits are not enough tools; we must expand our toolbox-----we must treat people better.

Q. What motivates you? Are you ever “down”? Dr Nelson: I’m never down; the show must go on. Today, all my links (in my presentation) went down and I had to re-embed 11 videos! I’m basically an introvert, and I do have some challenging days like when I have jet lag. My greatest motivator is spending time with my family; next would be having the chance to influence others. I remember a recent Fox broadcast about Las Vegas and keeping “up” in a down economy. It’s a very glamorous industry--- but, it’s all about engagement.

Q. Do you believe people leave “managers, not companies”? Dr Nelson: How long an employee stays in a company depends on their relationship with their immediate supervisor according to Robert Half. (“A company that wants to improve its retention rates, in my opinion, should look first to helping its managers develop better supervisory and managerial skills,” says Steve Kenney, regional manager of professional staffing services at Robert Half International, Inc., in Minneapolis. “That’s the key to keeping people happy. The offices and the businesses that have the most turnover either tend to take that for granted or don’t feel it’s important.”)

Q. You mention that you studied under Dr. Peter Drucker in the Peter F. Drucker Graduate Management School (at Claremont Graduate University in Los Angeles) and worked closely with him on your doctoral studies. What did you learn from him that has meant the most in your career? Dr Nelson: He had an incredible European teaching style. He would start out simple and go off on tangents, but he would always come back and tie it all back together. He was brilliant. I

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NWMS SHRM membership is comprised of a diverse group of human resources professionals at all levels of management and in most all discipline categories. eir public and private sector employers run the full gamut from associations, government, third party service providers, healthcare, manufacturers, hospitality – lodging and gaming, distribution centers, 3rd Party logistics firms, professional firms, and other service providers.

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NWMS SHRM Conference in Olive Branch e Northwest Mississippi SHRM chapter was organized in 2004 to better serve the human resources practitioners in the northwestern corner of Mississippi encompassing the counties of Marshall, Tunica, Tate, and Desoto and is the ‘youngest’ chapter in the state.

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1 BOARD OF DIRECTORS Front Row (L-R) Lynn Mallet, Treasurer; Tisch McDaniel, Past President; Courtney Tomlinson, Membership Co-Chair Back Row (L-R) Tim Anderson, Vice-President Programming; Gail Cervetti, Membership Co-Chair; Janna Rogers, Vice President; Pete Bacon, 2011 President

2 Tisch McDaniel, Past President accepts Award of Appreciation from Pete Bacon, 2011 President.

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3 3 Dr. Bob Nelson, keynote speaker, “Motivating the Millennials”

4 Jeff Weintraub Managing Partner Weintraub & Stock “Fired for Complaining”

5 Robin Hutton, Partner Weintraub & Stock “Social Media at Work”

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The Annual HR Training Seminar

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with tracks for both the seasoned as well as the more entry-level HR practitioner, was held in August at Whispering Woods Hotel and Conference Center in Olive Branch. The keynote speaker was Bob Nelson, PhD, President of Nelson Motivation, Inc. He is a best selling author of multiple books including 1001 Ways to Reward Employees and The 1001 Rewards and Recognition Fieldbook. His newest book Ubuntu!, is co-authored with Dr. Stephen Lundin who co-authored the mega-million copy best-selling Fish! Series. All attendees received personally autographed copies of Ubuntu!

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MISSISSIPPI EMPLOYMENT LAW

Narrow Exception for Retaliatory Discharge for Filing Workers’ Comp or Reporting Illegal Activity

the WHISTLEBLOWER

&FILER

the Worker’s Comp

Mississippi is an at-will employment state. This means that an employer may terminate an employee for good reason, bad reason, or no reason at all, excepting only reasons independently declared legally impermissible. BY JEFF WEINTRAUB & JASMINE JOHNSON

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n general, at-will employees do not have any legal recourse in Mississippi against

In comparison, under Tennessee law, an employer may discharge an at-will employee with or without cause, but not on account of the employee’s filing of a workers’ compensation claim or on the basis of various important Tennessee public policies. Unlike Tennessee, Mississippi has yet to permit a their employers for an unfair or retaliatory discharge.

cause of action against an employer for terminating an at-will employee for filing a workers’ compensation claim, though the State has created a limited exception to allow employees to sue their former employers for being retaliatorily terminated with regard to certain specific public policies. In 1993, the Mississippi Supreme Court decided to carve out a narrow exception to its at-will employment laws. This exception, allowing an at-will employee to bring a retaliatory discharge claim against an employer, is commonly known as the public-policy exception. The exception states, “whether there is a written contract or not: (1) an employee who refuses to participate in an illegal act shall not be barred from bringing an action for damages against an employer; (2) an employee who is discharged for reporting illegal acts of his employer to the employer or anyone else is also not barred from bringing an action against an employer.” Mississippi has yet to expand this exception to include those employees who are fired for filing workers’ compensation claims or to those employees who are fired for threatening to report illegal activities to a government agency.

Since its decision in McArn, the Supreme Court of Mississippi has not allowed the exception to be applied in cases where the plaintiff fails to rely on the refusal to engage in an illegal act or the reporting of an employer’s illegal acts as the cause of the employee’s termination. The first time the Mississippi Supreme Court was confronted with a plaintiff who asserted a retaliatory discharge action for filing a workers’ compensation claim was before the McArn exception was established. In Kelley v. Mississippi Gas Co, the Court determined that an employer has the absolute power to terminate an employee atwill when that power is being exercised to prevent the employee from asserting the employee’s statutory rights under the Workers’ Compensation Act. The Court again was faced with this issue in 2003 in Buchanan v. Ameristar Casino, where it upheld its decision in Kelley, stating that, because the plaintiff ’s termination did not meet the requirements set forth in the McArn exception, she had failed to sufficiently state a cause of action. Since 1981 and even after the establishment of the public-policy exception in 1993, Mississippi courts have refused to expand or establish an exception allowing retaliatory discharge actions for employees who file workers’ www.HRprosMemphis.com

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compensation claims. The Mississippi judiciary has consistently punted the ball to its legislature for it to resolve this issue: “Mississippi Workers’ Compensation Law is a legislative creation … the legislature alone has the power to create and modify the statute … to modify the statute would overreach [the court’s] judicial authority.” In each instance where the Court has been faced with this sort of case, it basically has played hot potato and tossed the issue back to the legislature. For employers, this means that the Court, for example, has refused to acknowledge a public-policy exception to the employment at-will doctrine allowing employees to bring retaliatory discharge claims against their employers for filing worker’s compensation claims. However, it is important for employers to remember that laws are ever-changing and that the legislature could decide to enact a new statute regarding this issue. Justices also are known for changing their past practices and adopting new ones. Even though it is not currently illegal in Mississippi to fire an at-will employee for filing a workers’ compensation claim, employers should not adopt such a practice. It may not be legal for long.

Most States besides Mississippi have workers’ compensation retaliatory discharge statutes or causes of action. It would not be surprising if Mississippi soon decided to follow suit. So, the remaining questions for employers in Mississippi: Will the State, either by statute or a judicially created cause of action, permit employees, as most other States do, to sue their former employers for being terminated for filing a workers compensation claim or for threatening to report the employer for engaging in illegal activities? So far, Mississippi has resisted efforts to expand the McArn exception, but it is the writers’ view that, eventually, one or both of these causes of action will be sanctioned by the State. In informal discussions, some Mississippi plaintiffs-side employment attorneys also predict that, sooner or later, the State will embrace such causes of action. The message for Mississippi employers? Don’t be the test case that changes the law! Avoid situations where it might appear that you have terminated an employee for filing a workers compensation claim or for threatening to report an assertedly illegal activity to a government agency. I Shaw v. Burchfield, 481 So. 2d 247, 253-54 (Miss. 1985). | 2 For purposes of this Article, a retaliatory discharge occurs where an employer terminates an employee for engaging in some legally protected activity, i.e., filing an EEOC claim. | 3 Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn. 1993). | 4 McArn v. Allied Bruce-Terminix Co., 626 So. 2d 603 (Miss. 1993). | 5 Id. at 607. | 6 Kelley v. Mississippi Valley Gas Co., 397 So. 2d 874, 876 (Miss. 1981). | 7 Buchanan v. Ameristar Casino Vicksburg, Inc., 852 So. 2d 25, 27 (Miss. 2003). | 8 Washington v. Woodland Village Nursing Home, 25 So. 3d 341, 358 (Miss. Ct. App. 2009). 1

Jasmine Johnson Law Clerk for Weintraub Stock PC and is a third year law student at the University of Memphis Law School

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Jeff Weintraub Managing Partner Weintraub Stock PC

HR Professionals as Employee Relations Managers Employee Relations is concerned with preventing and resolving problems involving employees and managers, which arise out of or affect the workplace. Employee Relations (ER) Managers are charged with handling employee grievances, employee discipline, and employee rights. They must know their company’s policies and procedures and enforce them.

Linda M. Bacon HR Compliance & Risk Director at First Tennessee Bank

Linda Bacon is the HR Compliance and Risk Director for First Tennessee Bank in Memphis where she has worked for 30 years. She has been in Human Resources for the past 27 years. Linda holds a Bachelor’s of Business Administration from the University of Memphis and enjoys resolving situations with employees and the company.

Rachelle Hart Sr. Employee and Labor Relations Specialist at St. Jude Children’s Research Hospital

Rachelle Hart is Sr. Employee and Labor Relations Specialist at St. Jude’s Children’s Research Hospital and has held this position for the past three years. She holds a B.S. in Industrial/Organizational Psychology from the University of WisconsinParkside and is certified as a Professional in Human Resources (PHR) by the Society for Human Resource Management, and is also a Certified Labor Relations Specialist (CLRS). She has been in the human resources field for over 13 years and is currently working on her MBA at Webster University.

Patricia Richardson Manager, HR Consulting at Hilton Worldwide

Patricia has held her position for a year and a half. She has a Bachelor of Business Administration with a concentration in Management. Patricia is trained in Six Sigma and is currently enrolled at Union University pursuing a Masters in Christian Studies. Her passion is people, and she appreciates the opportunity to mentor, help and impact team members in a positive way while supporting the goals of the company. Patricia has been in the Human Resources field for six years and says her work provides a real sense of accomplishment and gratification on a daily basis.

Jay Lifschultz Manager of Associate Engagement at ServiceMaster.

Jay Lifschultz joined ServiceMaster in October 2010 as the Manager of Associate Engagement supporting the Company’s leading brands, including Terminix, TruGreen, Merry Maids and American Home Shield. Jay holds a degree in classics from the University of Arizona and earned his law degree cum laude from Tulane University Law School where he also received the Samuel Lang Award for outstanding performance in Labor Law. He started his career in Human Resources in 2005, clerking at a boutique labor and employment law firm while in law school. Jay enjoys his work at ServiceMaster where he helps drive the culture that makes associates feel valued and respected, and instills in them a passion for serving their customers.


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SCENE

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CALENDAR of EVENTS

1 Tennessee Personnel Management Association 2011 Officers Officers are (Back row L-R) Richard Stokes, Human Resources Consultant for the University of Tennessee Institute for Public Service; Peter Voss, Director of Personnel for the City of Bartlett; Celeste Taylor, Human Resources Director for the City of Martin; Alan Jones, HR Manager of Administration DBE Liaison for the

November 2

Metropolitan Knoxville Airport Authority (Front Row L-R) Paula Taylor, Personnel Investigator for the Knox County Sheriff's Department in Knoxville; Lynn Henning, Human Resources Director for the City of Jackson; and Casta Brice, Human Resources Director for the City of Tullahoma. Not pictured are Kristi Inman, HR Manager for the City of Sevierville; Fredia Black, HR Officer for the City of McMinnville; and Michael Worsham,

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Human Resources Director for the City of Brentwood. 2 TPMA

The West Tennessee SHRM Chapter will hold it’s annual legislative conference at Union University. For more information contact John Carbonell at Union University. Phone: (731) 661-5081.

November 3

Association President, Peter Voss, and Gary Petree, UT MTAS Training Program Manager. 3 Breakfast Buffet at L & P Breakfast 4 August L & P Breakfast Club Meeting (L-R) Kevin Adams - CB Richard Ellis Memphis; Johnny Pitts - Lipscomb & Pitts Insurance; Dave Carlson Smith & Nephew; Chad Pregracke, Guest Speaker with Living Lands &

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Waters; Don Young - Smith & Nephew; Jeremy Park - Lipscomb & Pitts Breakfast Club 5 Dayle Savage, Ed.D., Assistant Professor of the Practice of Leadership and Organizations at Vanderbilt University’s Peabody College was the

Northwest MS Chapter presents “Getting It Done While Getting Along” from 11:30 AM to 1:00 PM. Kimberly Medlock/Speaker, Trainer, Coach and Author, President of Productive Matters, Memphis, TN, will be the speaker. Member cost $20, Nonmember cost is $25. Location: Baptist Memorial Hospital DeSoto, the DeSoto Room (North Entrance) 7601 Southcrest Parkway, Southaven, MS 38637. Registration deadline Monday, Oct. 31. RSVP to nwmsshrm@gmail.com

November 8

July speaker at SHRM-Memphis at the Holiday Inn University of Memphis. Her

Northeast Arkansas SHRM November meeting on Workforce Development with Shelle Randall from 3:00 PM to 5:00 PM at the ASU Delta Center 5501 Krueger Dr. Jonesboro, AR. www.neashrm.shrm.org

topic was Learning by Design. 6 Etheldreda Collins, MD, was the September speaker for the Greater Memphis Employee Benefits Council meeting at the Crescent Club. Larry Lowe with Humana Insurance Company is VP of Programs and introduced Dr. Collins who is with Concentra. Her topic was Wellness and Lifestyles. 7 Mary Hamm and Jennifer Hagerman, attorneys with Burch, Porter & Johnson spoke at a luncheon seminar at the Memphis Bar Association on Hot Topics in Employment Law.

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“You will be the same in 5 years as you are today except for the books you read and the people you meet.”

November 16 SHRM-Memphis Lunch Meeting at the University of Memphis Holiday Inn from 11:30 AM to 1:00 PM. Speaker is Joel Bishop with O.C.Tanner Company. His topic is “The Carrot Principle”. Cost is $20 for Members and $30 NonMembers. Register at www.shrmmemphis.org.

- Charlie Tremendous Jones 6

7 www.HRprosMemphis.com

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EEOC UPDATE

BY LATOSHA DEXTER

EEOC Charge Stats and the Rise of Retaliation Claims BY LATOSHA DEXTER

In January the EEOC released its statistics for its fiscal year 2010, ending September 30, 2010. Charges reached an unprecedented high of 99,922 as compared to the 93,277 charges received in FY 2009. The numbers reflect a seven percent increase and the largest number of annual charges received in the Commission’s 45 year history. The Commission received 36,258 retaliation charges in 2010. These numbers continue the 2009 trend of retaliation surpassing race charges. Racial charges totaled 35,890 charges in FY 2010 as compared to 33,579 in 2009. Also charges based on sex, national origin, religion and disability increased. In its first year of enforcement, the Commission processed 201 GINA charges. In addition to the charge increase, the EEOC also filed 250 lawsuits, settled another 285 suits, and resolved 104,999 private sector claims. The Commission secured more than $404 million from employers – the highest level of monetary relief ever obtained by the Commission. The charge numbers are not surprising considering the legal, political and economic environments. The continuing recession has resulted in more employees losing their jobs. Job loss directly associates with an increase in discrimination charges as employees 18

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struggle to define a reason for their inclusion in a reduction in force. In a time when jobs are scarce, employees are willing to take any steps necessary to retain or re-obtain employment. Increased enforcement efforts by the Obama Administration also play a part in these increased numbers. Budget increases and an increased number of investigators have led to more investigations and more aggressive tactics by the EEOC, including more on-site investigations and increased usage of its subpoena power. Employee friendly revisions to the Americans with Disabilities Act culminating with the ADAAA and the introduction of GINA as an additional avenue for discrimination complaints have eased the way for employees to find a basis for filing a charge of discrimination. As we approach the end of FY 2011, don’t be surprised if the numbers are even higher than those of 2010. The greatest significance in the 2010 statistics was that retaliation claims comprised 36.3% or over

1/3 of all charges filed - surpassing the historically insurmountable race discrimination claims. With the lower burden for establishing adverse action adopted by Burlington Northern and the Supreme Court’s recent 2011 decision in Thompson v. North American Stainless approving third-party retaliation, retaliation claims are extremely attractive to plaintiff’s attorneys. Employers find themselves in a catch-22 as they are seemingly held hostage by unproductive, policy breaking employees who have filed internal or external complaints. What do you do with the employee who files a complaint one month and then violates the attendance policy for hundredth time the next month? What about the employee who files an EEOC charge and then three months later violates a major conduct policy? Also, once litigation commences the claims can be especially difficult to defend as they often turn entirely on the employer’s motivation. Well, all is not lost. An employer can take proactive steps to minimize the risk of retaliation claims.

• Know what actions are considered “adverse”. Any negative action deterring a reasonable employee in the same situation from making a complaint can qualify as retaliation. Many employers make the mistake of assuming that only ultimate employment actions


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EEOC UPDATE

such as termination, demotion, discipline or reduction in pay constitute adverse actions. However, hostile behavior or attitudes, harassing conduct, denial or withholding of training opportunities and unpleasant assignments are just a few examples of actions found to be adverse by courts. Also, action taken after the end of the employment relationship can create a retaliation claim. For example, giving a former employee a negative reference could lead to a retaliation claim if that former employee has previously filed complaints against you.

• Policy, policy, policy. As always you should have a company policy against retaliation, preferably a stand alone policy affirming the company’s commitment to non-retaliation and requiring reporting of retaliation. Just like a good sexual harassment policy, the nonretaliation policy should also include alternative mechanisms for making reports of retaliation.

• Training. No policy is complete without training for at least management employees. Train managers on how to respond to complaints, how to maintain confidentiality and how to be alert for and how to identify potentially retaliatory harassing work environments. Also, never make the assumption that your managers know how to treat a complaining employee. Ignoring or treating the complaining employee like a pariah can be just as costly as if they have micro-managed or harassed the complainant. • Complaint-specific Communication. Communication is a component of any good complaint investigation. Sending the internal complainant a letter advising them that retaliation is not permitted and providing a specific procedure for them to make such complaints during the pendency of the investigation greatly helps. A jury may be less sympathetic to a plaintiff when they find out she received specific guidance regarding making a retaliation complaint and failed to give the employer any opportunity to address the matter in-house. You can take this a step further and provide documentation to management, especially in regard to external complaints to the EEOC, and if necessary, certain co-workers that retaliation will not permitted. Follow-up, even after the investigation has been concluded, is always required. • Consult legal counsel. Before taking adverse action, especially when close in time to the complaint, consult with your legal counsel. Legal counsel can work with human resources to ensure that the action under consideration is justified under the circumstances, is consistent with previous actions, and supported by appropriate documentation. Legal counsel can also advise you about the laws and views of your jurisdiction toward the facts of the situation. I Latosha Dexter, SPHR Attorney, Rainey Kizer Reviere & Bell, PLC

“A leader is one who sees more than others see, who sees farther than others see, and who sees before others do.” – Leroy Eims www.HRprosMemphis.com

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SMALL BIZ BEST PRACTICES

HOW TO RESPOND to an EEOC Charge B Y L O U I S P. B R I T T I I I A N D T H O M A S J . W A L S H J R .

“An official-looking envelope from the Equal Employment Opportunity Commission (EEOC) lands on your desk.” Red Flag! – One or more of your employees or applicants has filed an EEOC charge of discrimination, alleging that your company violated one or more of the four federal laws the EEOC enforces: Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Equal Pay Act (EPA). What do you do? You need to respond to the EEOC, of course, but you have some serious work to do before that.

1: Look for things that could result in early dismissal. The charge of the complaining individual (“the charging party” or CP, in EEOC jargon) must be timely, i.e., filed within 180 or 300 days of the last date on which the alleged discrimination occurred, depending on the state. If the charge is untimely, ask the EEOC to dismiss it. If CP was an employee of a temporary agency who worked on your premises and not your employee, apprise the EEOC of such facts and ask for a dismissal. However, they may still investigate both the Company and staffing agency as a joint employer. If you have fewer than 15 employees for a Title VII or ADA claim (or fewer than 20 for an ADEA charge), advise the EEOC and ask for a dismissal. However, the EPA covers nearly all employers. 2: Try to determine how the EEOC has classified the charge. The depth of your internal investigation into the charge will hinge on some obvious factors — the nature of the charge, the number of people involved, etc. — but it may also vary with how seriously the EEOC itself treats the charge. EEOC field offices internally classify incoming charges as A, B, or C. “A” charges are the most serious, those that will most likely result in a cause finding. A typical “A” charge may involve a systemic/pattern or practice, or a class action claim, or one that involves an area of developing law or an activity the EEOC happens to be targeting. The “A” charge has been reviewed by the EEOC’s legal department to determine if it is “litigation worthy” before being served. The EEOC gives “A” charges priority treatment, and so should employers. 20

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The EEOC will assign “B” to those charges that appear to have merit, but are not on the same level as “A” charges. The EEOC feels it needs more information to make that call. “C” charges are those that, for various reasons, appear to have little, if any, merit. The EEOC may dismiss those without requesting information from the company. How do you know how the EEOC has rated your charge? A few EEOC offices may actually show the letter A, B, or C at the end of the file number on the charge form, but most do not. If the EEOC does not offer the parties the opportunity to mediate, that is a strong indication it is an “A” charge (except that no EPA charges are mediated). Highly detailed charges and those with multiple CPs are likely “A” candidates. Regardless of classification, any investigation you conduct must be reasonable and must have as its goals (1) a determination of what happened and why, recognizing that absolute factual certainty is elusive; and (2) a commitment to address any problems you uncover. At the same time, just as the EEOC prioritizes charges in order to manage its resources, your company needs to do the same. If you know it’s an “A” charge, you’ll want to devote immediate, substantial resources to the investigation and to the written response to the EEOC. If you know it’s a “C” charge, take a more relaxed approach. If you don’t know how the EEOC has classified it, you need to do as full an investigation as you can within reason, based on your own assessment of the charge’s seriousness.


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SMALL BIZ BEST PRACTICES EDITORIAL CALENDAR 3: Conduct an investigation. Now you’re ready to investigate. Start by reviewing the company’s written records, everything you can think of that might be pertinent. Check the applicant’s application and resume, or the employee’s personnel file. Also look at records showing how the company treated other employees in comparable situations. Finally, identify any applicable company policies, and note whether the company followed them in this instance. Ensure all documents, including those electronically stored and e-mails, are preserved for the duration of the life of the charge and subsequent litigation, if that occurs. Once you complete the document gathering, talk to people. Start by interviewing persons directly involved, including the CP (if available), the accused, and any witnesses. Speak to anyone else who may have relevant firsthand knowledge. Take good notes. Make clear to everyone that you’re conducting a fact-finding investigation, that you want to know the truth, and that no one will suffer retaliation for telling you the truth, even if the truth hurts the company. Say those things, and mean them. The EEOC takes very seriously retaliation claims by those involved in an investigation. 4: Prepare a Position Statement. Armed with your investigation results, you’re ready to prepare your response to the EEOC, the Position Statement. Your investigation may not be complete by the deadline. For that reason it’s best to include in the response a disclaimer that your response is subject to amendment if your ongoing investigation reveals additional facts. In the Position Statement, respond specifically to the allegations in the charge. Start with a general summary of why the company isn’t liable. Then give your side of the story in a plain-English narrative – the pertinent facts and how the facts apply to the law. Identify key documents and witnesses in support of your position. In the EEOC’s words, “an effective position statement is clear, concise, complete and responsive.” You are explaining what the company did, and why it acted for legitimate, nondiscriminatory reasons. Although the EEOC’s request for information may be very broad, it is best to limit your response to only those particular allegations at issue, the relevant personnel

policies and information on comparables. Avoid wholesale disclosure of information. 5: Cooperate with the EEOC as long as it makes reasonable requests. After you file the Position Statement, the agency has several choices. It could make a determination based on what it already has. It could ask you for more information. It could also hold a fact-finding or on-site conference. You should reasonably cooperate with any EEOC on-site investigation, but you also have a right to negotiate about such things as the time, date, scope, and other terms of the investigation. If you feel an EEOC request is too burdensome, or involves information that is irrelevant or confidential (e.g., trade secrets), you may ask the EEOC investigator to narrow the request. If you and the investigator come to a stalemate on the document production, the EEOC may issue a subpoena for the documents. Although you can file a motion in court to quash the subpoena, be aware that courts generally give the EEOC wide latitude in its investigatory efforts. Under Title VII, the ADA, and the ADEA — but not the EPA — the CP must receive a right-to-sue notice from the EEOC before suing the company. The CP may ask for the notice almost any time in the process. If the CP makes no such request before the EEOC completes its investigation, which should be (but sometimes is not) completed within 120 days, the EEOC will then render a decision on whether the charge, or any part of it, has merit. Be warned, however, if the EEOC issues a cause finding, settlement may be difficult, as the agency typically takes a very hard line approach. I

Look for these topics in future issues. 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

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.

Louis P. Britt III Managing Partner Ford & Harrison LLP

NEWS & The Hotwire

ANNOUNCEMENTS AWARDS | PROMOTIONS | NEWS | RECOGNITIONS

Thomas J. Walsh Jr. Partner Ford & Harrison LLP

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.

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BRIDGING TENNESSEE STATE SHRM CONFERENCE

the gap

Hats Off to SHRM Chattanooga! Over 600 HR professionals from the State of Tennessee and approximately 100 exhibitors met in beautiful Downtown Chattanooga September 21-23 for the annual State SHRM Conference. The location of the conference rotates between Knoxville, Chattaooga, Nashville, and Memphis. The 2012 Conference will be held in Memphis next year. SHRM Chattanooga Chapter was the hosting Chapter and we congratulate them on the excellent conference they held.

Conference Committee (from left to right): Frank Davis, Susan Harris, Lynnette Smith, Valerie Gifford, Nita Brandenburg, Frances Flowers, Janet Leamon, Don Wilson, Shawn Pellington. Not pictured: Merri Mai Williamson, Kathy Reid-Papson, Jennifer Shields

Angie Davis, Shareholder with Baker Donelson’s Memphis office, discussed “Workplace Investigations and Background Checks”. Several attendees lined up with questions following her presentation.

The James House Williamson Scholarship Award went to Devin Washington who attends UT-Chattanooga and is a candidate for M.S. Industrial-Organizational Psychology. The Joseph Paul Goddard Scholarship Award was presented to Stephanie L. Sexton, a student at UT-Knoxville who is a candidate for M.S. Human Resources Management.

The 2011 TN SHRM Awards Luncheon was held on Thursday. The recipient of the 2011 Human Resources Professional Excellence Award was Nita Brandenburg. This award recognizes contributions to the HR profession by any HR professional working in the State of Tennessee. Nominees are selected by a panel of state council members and is based on service to the chapter, the HR profession, the community, and professional history.

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Jennifer Keller heads up the labor and employment practice group with Baker Donelson, and she spoke on “Efficiently and Effectively Managing the Costs of Employment Litigation and Claims”.

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Phillip Baker, Shareholder with the Johnson City office of Baker Donelson, discussed Tennessee Workers’ Compensation Issues and provided overview of recent changes to the law and the practical effects on the changes on claims going forward.

Steve Goodwin, Shareholder in the Memphis office of Baker Donelson, facilitated a session on “How the New National Labor Relations Board Will Impact Your Business”.

The Legal Conference was sponsored by Baker Donelson and was held on Wednesday, September 21. Here are a few of the speakers and topics that were covered.

The Legal Conference concluded with a litigation panel discussion where questions were fielded from the attendees. Panel participants were (L-R) Harry Burnette, Patti Dungan, and Celeste Bradley. Jonathan Hancock was the facilitator.

Day 2: Shelly Trent, SPHR, is the Southeast Region Field Services Directorfor SHRM, and is the main point of contact for State Councils, Chapter Presidents and other volunteer leaders in DC, Kentucky, North Carolina, South Carolina, Tennessee, Virginia, and West Virginia. She communicates and promotes SHRM’s vision and strategic objectives and ensures that chapters maintain affiliation standards. She spoke on Thursday afternoon about what’s new at SHRM.

Concurrent sessions were held in the afternoon. One of the sessions was a legal roundtable presented by 14 attorneys from six Tennessee law firms. James H. Stock with Weintraub Stock PC headed up the Employee Relations roundtable.

Dr. Wayne Sotile led one of the concurrent sessions on Thursday afternoon. His topic was “Thriving with Change: Promoting Passionate Leadership and Resilience Through Difficult Times”.

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Is your

posterup? \\\\\ EMPLOYER WARNING ///// New NLRB Notice Posting Requirement to Take Effect On August 25, 2011, the National Labor Relations Board (NLRB) issued a Final Rule requiring employers to post a notice explaining employees’ rights under the National Labor Relations Act (NLRA). The rule applies to all employers covered by the NLRA, regardless of whether or not their workforces are unionized. NLRA covered “employers” include virtually all private sector employers, but do not include government employers or private employers covered by the Railway Labor Act. The current effective date of the rule is November 14, 2011. B Y TA N J A L . T H O M P S O N

•NEW LAW • Employers are required to post a notice explaining employees’ rights.

CONTENTS OF THE NOTICE The Notice primarily informs employees of their right to organize, join or assist a union, to engage in other concerted activity for mutual aid and protection, such as bargaining collectively or taking other concerted action with co-workers to improve wages and working conditions, including the right to strike and picket, as well as the right to refrain from any of these activities. The Notice also gives examples of unlawful employer and union conduct and instructs employees as to how to contact the NLRB with questions or complaints. Although the NLRB rejected comments that suggested the Notice should contain more information regarding the rights of employees to refrain from union activity, it also noted that NLRA Section 8(c) protects an employer’s right to express any “views, argument, or opinion” “if such expression contains no threat of reprisal or force or promise of benefit.” Thus, employers who wish to post a separate notice legally 24

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expressing their opinions regarding unionization may do so as long as it is done in a noncoercive manner. NLRB AUTHORITY TO CREATE THE RULE As part of the rulemaking process, the NLRB previously posted the proposed rule for comment in the Federal Register for a 60-day period and accepted over 7,000 public comments – the majority of which opposed the proposed rule. Although the NLRB made limited modifications to the proposed rule in response to these comments, most provisions remained unchanged. Now former Chair Wilma Liebman and current Board Members Mark Pearce and Craig Becker approved the final rule while Member Brian Hayes dissented, expressing his opinion that “a reviewing court will soon rescue the [NLRB] from itself and restore the law to where it was before the sorcerer’s apprentice sent it askew.” As expressed in the comments to the proposed rule, several employer-friendly groups question whether or not the NLRB has the authority to issue a rule requiring

employers to affirmatively post a notice and to penalize employers who fail to do so when the Act itself provides no such posting requirement or authority. As predicted by some, the new requirement has become the subject of litigation as the National Association of Manufacturers (NAM) has already filed suit over this issue. NAM filed suit in the United States District Court, District of Columbia on September 8, 2011, alleging that the rule was promulgated in excess of the NLRB’s statutory authority under the NLRA and, therefore, must be held unlawful and set aside under the Administrative Procedures Act. Further, in accordance with the allegation that the rule is unlawful, the NAM suit challenges the rule’s provisions regarding penalties, including the creation of a new unfair labor practice, for failure to comply. Additionally, one week after the final rule was issued, Representative Benjamin Quayle (R-AZ) introduced a bill to repeal it. Titled the Employee Workplace Freedom Act (H.R. 2833), the bill seeks to repeal the rule as well as prohibit the NLRB from promulgating or enforcing “any rule that requires employers to post notices relating to” the NLRA.


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POSTING REQUIREMENTS obtain copies of the Notice from the NLRB notice will be unaware of the requirement In the meantime, employers should prepare to Regional offices, or from the NLRB’s and when notified of the oversight by the comply with the final rule, which sets forth website at www.nlrb.gov. Additionally, the NLRB, will comply with the posting specific requirements for notice posting or NLRB will provide employers with requirement. As a result, it has been face a possible unfair labor practice charge. translated copies of the Notice in the predicted that many unfair labor practice Employers are charges will be dismissed. Notably, the In a workplace where at least 20% of the employees required to statute of limitations in such cases may still are not proficient in English and speak another post the 11x17be tolled. Tolling, however, is not language common to each other, the employer must inch Notice in automatic. Tolling only applies to unfair post a second notice in that language. conspicuous labor practice charges filed by individuals, places readily not by unions. Additionally, if the employer seen by employees, including all places where language(s) requested by the employer. In establishes that the employee had actual or the employer typically posts other personnel the event the NLRB does not have a constructive knowledge that the alleged rules and policies. Additionally, those translated copy of the Notice readily conduct was unlawful, tolling will not apply. employers who regularly available, The NLRB also noted that it will consider publish personnel rules and employers evidence regarding a union’s representation policies on internet or who have presence and activity in determining intranet sites, must also post requested, whether tolling is appropriate where an the notice on those sites, at but not yet individual represented by a union files a least as prominently as other received, charge. Finally, where the NLRB’s General notices and policies. notices in a Counsel can prove that the employer’s Employers may comply with foreign failure to post was knowing and willful (i.e. the electronic posting language the employer had actual knowledge of the requirement by posting an will not be rule, yet refused to comply), such refusal can exact copy of the NLRB’s held liable be used as evidence of unlawful motive in an poster on the internet or for failing unfair labor practice case alleging other intranet site, or by posting a violations of the NLRA. link titled “Employee Rights Although the rule reserves under the National Labor the NLRB’s authority to Relations Act” on the internet invoke other undefined or intranet site. Notably, penalties, the NLRB does electronic posting is required in not have the authority to Employers can obtain copies of the Notice addition to the physical posting levy fines. As evidenced by from the NLRB Regional the NAM lawsuit, the requirements. The final rule offices, or from the eliminated the proposed NLRB’s authority both to NLRB’s website at requirement that employers also make this rule, as well as www.nlrb.gov. provide the Notice to employees enforce it, is questionable. via email, voicemail, text messaging, or related electronic IMPACT ON EMPLOYERS communications if the employer customarily to post the notice in the foreign language communicates notices to employees in that until the NLRB provides the employer with While the NLRB’s new rule does not alter manner. a translated version of the Notice in the employees’ rights under the NLRA, the applicable language. required posting may result in more In workplaces where at least 20% of employee discussion regarding unionization. ENFORCEMENT AND employees are not proficient in English and As a result, employers may wish to consider PENALTIES speak another language common to each training managers and supervisors on other, the employer must post a second The NLRB also considered, but rejected, responding to employee questions regarding notice in that language. If an employer’s voluntary compliance as an enforcement the posting as well as relay the employer’s workforce is made up of two or more groups mechanism. Instead, an employer’s failure to position on unionization to all employees. who are not proficient in English and those post may be treated as an unfair labor Additionally, where there is concern about groups total at least 20% of the workforce, practice in violation of Section 8(a)(1) of the possible risk of union organizing, it the employer must post the notice in the the NLRA. Further, it can be grounds for would be prudent for employers to conduct language spoken by the larger of the two tolling the 6-month statute of limitations for an analysis of workplace morale and identify groups and provide individual copies of the filing an unfair labor practice charge against potential areas of union vulnerability. I notice in the second language to employees the employer. The NLRB expects, however, who speak that language. Employers can that most employers that fail to post the

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Celebrating the Release! of the Premiere Issue of HR Professionals of Greater Memphis

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Sincere thanks to the Sponsors and Contributors for your support!

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5 1 Eileen Kennedy with Cigna and Lori Wimberly with Mercer 2 Recognition of Charter Sponsors 3 Chip Cavagnaro with Evans Petree and Ann Saccomano with Fed Ex

4 Latosha Dexter with Rainey Kizer Reviere & Bell and Sarah Little with

Congratulations Rob Binkley and John Burleson On being selected by your peers for inclusion in the Workers’ Compensation Law (Employers) Section of the 2012 edition of The Best Lawyers in America.Ž

Methodist LeBonheur Healthcare

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5 David Jaqua and Bart Sisk with Butler Snow 6 Jeremy Park with Lipscomb & Pitts 7 Colleen Taylor and Della Franklin with the Crescent Club, co-sponsor of the event

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M E M P H I S / J A C K S O N / w w w. r a i n e y k i z e r. c o m

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David S. Jones

Returns to Memphis Jackson Lewis LLP is pleased to announce that David S. Jones, a partner in the law firm, has moved from the firm’s Las Vegas Office to join our Memphis office. He has practiced law exclusively in the area of immigration for more than ten years, handling all types of immigration matters. He represents clients in matters relating to both benefits and enforcement and in proceedings before USCIS, DOL, ICE, CBP, DOJ and the Department of State. David regularly advises clients on complex employment immigration matters such as temporary employment visas, labor certification, extraordinary ability petitions for artists and entertainers, outstanding professor/researcher and national interest waiver petitions for academics and researchers, and numerous other types of immigration petitions and applications. He has extensive experience in assisting companies with hires or transfers of employees from outside of the U.S. in industries such as: agriculture, banking and finance, chemicals, construction, energy, entertainment, healthcare, education, hospitality, information technology, insurance, logistics, manufacturing, mining, recycling, research, restaurant, retail and sports. David is a regular speaker at immigration law conferences, including the American Immigration Lawyers Association annual conference. He also frequently participates in outreach programs educating the bar and public about immigration law issues, and with pro

bono immigration clinics, radio interviews, and seminars. David has a reputation as an authority on immigration law, providing legal counsel to an array of clients including major national and international corporations, global entertainment groups, entrepreneurs, and the world’s most accomplished artists, athletes, and researchers. David’s move to Memphis enhances the firm’s immigration law resources in the Mideast Region. David was a panelist for Illegal Immigration and the State’s Response, which was held at Rhodes College on September 22. The program examined state legislative efforts to control illegal immigration and the Constitutional and civil rights ramifications. Other panelists were Bryce Ashby, an employment, labor and civil rights attorney with Donati Law Firm, and a local law enforcement official. I

RECOGNIZED FOR OUTSTANDING CONTRIBUTIONS TO MILITARY EDUCATION AROUND THE WORLD Council of College and Military Education

For nearly 30 years, Webster University has been an Academic leader with the military. With facilities at 55 bases and military installations coast to coast, Webster offers you unparalleled opportunities to pursue a highly respected graduate program to advance your career.

One of the top Midwest Universities for Master’s Degree Programs • Master of Business Administration (MBA) • MA in Information Technology Management

• MA in Human Resources Management • MA in Management and Leadership

Navy College Office | 5722 Integrity Drive | NSA Mid South | Building S-241 901-873-1531 | E-mail: memphis@webster.edu | www.webster.edu/memphis www.HRprosMemphis.com

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HR Professionals of Greater Memphis