April 2016 ky issue

Volume 6 : Issue 4 TM

www.HRProfessionalsMagazine.com

Talent Management Issue

Highlights from 2016 SHRM Employment Law and Legislative Conference

How Yahoo’s

Performance Ratings

Led to Discrimination

The Opioid

Epidemic

Navigating

Disabilities in the Workplace

Beth Davisson, MBA

2016 President

Louisville SHRM

Top Mistakes

HR Makes in Screening Their Talent

JUST PUT IT ON THE COMPANY CARD…NOBODY WILL NOTICE.

YOU’RE REALLY SHOWING OFF YOUR BEST ASSETS TODAY.

THEY’RE WORRIED ABOUT OVERTIME. I’M JUST WORKING OFF THE CLOCK.

I NEVER WEAR THE SAFETY GOGGLES. THEY LEAVE A MARK.

What you don’t hear can still hurt you.

The things employees say when you’re not around can cause legal troubles for you. Fisher & Phillips provides practical solutions to workplace legal problems. This includes helping you find and fix these kinds of employee issues before they make their way from the water cooler to the courthouse.

1715 Aaron Brenner Drive • Suite 312 • Memphis, TN 38120 • 901.526.0431 www.laborlawyers.com

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Bringing Human Resources & Management Expertise to You

61% of all narcoticrelated deaths are the results of opioid use.

www.HRProfessionalsMagazine.com Editor

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

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

Park Avenue Design Contributing Writers

William Carmichael Dale Conder, Jr. Harvey Deutschendorf Mary Hamm Julie Henderson Jimmy Hinton William Stuart Jackson Lani Lester Chris Menard Kerstin Nemec Tim Norwood Ricky Reynolds Elizabeth Darby Rehm Blake Rogers Keith Rosenblum Greg Siskind Martin Thompson Larry J. Tolbert Janie Warner Board of Advisors

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

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

HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2016 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.

Features 4 note from the editor 5 Profile: Beth Davisson, MBA, President Louisville SHRM Chapter 6 Highlights of the 2016 SHRM Employment Law & Legislative Conference 12 Top Mistakes HR Makes in Screening Their Talent 22 10 Common Transgressions of Today’s Leaders 34 Book Look: On Fire at Work 38 The HR Scene 42 7 Habits of Highly Authentic Leaders

Employee Benefits

14 The Opioid Epidemic – Finding a Better Prescription for Chronic Pain 16 Has Your ACA Ship Come In? 18 Pending New Federal Rules for Fiduciaries Fuel Concerns of Reduced Access and Higher Cost Financial Advice 24 Connect Work and Life with Worklife 26 Highlights from the Value of Onsite & Near-Site Employer Clinics Meeting

WEB EXCLUSIVES HTTP://HRProfessionalsMagazine.com /Exclusive

Next Issue

Special HR Conference Issue - Deadline to submit articles and ads is April 10

Employment Law

10 Social Media in the Workplace – What’s Protected, the Pitfalls and Traps to Avoid 20 Navigating Mental Disabilities in the Workplace 28 Update on Title VII and Religion in the Workplace 30 More Paid Leave Despite Lack of Federal Paid Leave Laws 32 Yahoo’s Reliance on Its Quarterly Performance Review Procedure to Terminate Employees 36 Whatever Happened to the President’s Executive Actions?

Industry News

8 Preview of 2016 MSSHRM State Conference & Expo May 16-18 in Biloxi 31 Preview of WTSHRM 6th Annual HR & Employment Law Spring Conference May 4 in Jackson 38 Preview of 2016 IPMA-HR Southern Region Conference May 15-18 in Memphis 40 Preview TNSHRM State Conference September 14-16 in Memphis 41 Preview of 2016 SHRMGA State Conference September 18-20 in Augusta www.HRProfessionalsMagazine.com

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a note from the Editor I hope you will enjoy the pictorial highlights in this issue. The trip to Capitol Hill on Wednesday was just fabulous. We were able to visit with senators and staffers from Tennessee, Georgia, Kentucky, Arkansas and Mississippi. The reception sponsored

by SHRM’s Advocacy Team on Tuesday evening was a hit also. HR professionals enjoyed mingling and discussing the primary election returns as they came in from Super Tuesday 2.

Caught a photo op with Bob Carragher, SHRM Senior State Affairs Advisor, at the 2016 SHRM Employment Law and Legislative Conference in Washington, DC March 13-16.

As I write this note, I am returning on the flight from Washington, DC and one of the best SHRM Employment Law & Legislative Conferences I have ever attended! The general session speakers were perfect for this election cycle. One of my favorites was Charlie Cook, Editor and Publisher of the Cook Political Report and a political analyst for the National Journal Group. Being the political junkie that I am, I thoroughly enjoyed his analysis and predictions for the 2016 presidential election. His presentation was so educational and entertaining! And we heard Jim Clifton, chairman and CEO of Gallop, who provided wisdom and insight about working with the millennial generation based on his years of experience in the polling industry.

We were honored to hear former Attorney General Eric Holder in an exclusive with SHRM CEO Hank Jackson as they discussed his time in the White House working in the Obama administration. And who will ever forget Doris Kearns Goodwin’s historical perspective of former presidential elections and her relationships with some of our current Presidents. Doris is a presidential historian and Pulitzer-prize winning author. Her presentation was so exciting that one SHRM member was prompted to stand up during the Q & A session and ask her to run for President!

These speakers were phenomenal for sure. But I have to say it is hard to top Mike Aitken’s presentation on the Washington Outlook for HR Public Policy.

Mike is SHRM VP of Government Affairs and his information is so pertinent and descriptive of the current legislative environment and its impact on Human Resources and our workforce! Kudos to Mike and his team for putting together such an excellent conference!

Now we turn our sights to the 2016 ARSHRM Conference in Rogers April 6-8. This will be the 30th anniversary! Hats off to the Conference Committee!

Special kudos to Tim Orellano who has arranged a special VIP Breakfast for past Conference Chairs. We look forward to bringing you highlights of this excellent Conference in the May issue.

We are looking forward to being in Louisville for our Strategic Leadership for HR Executives Compensation Forum on April 28. We have a full day of presentations centered around proposed new regulations on overtime, the new EEO-1 compensation data requirements, updates on ACA reporting, new trends in performance appraisals and more. Please plan to join us and the Louisville SHRM Chapter on April 28 for this very important forum and learn how the proposed new legislation will impact your workforce.

Our monthly complimentary virtual event sponsored

by Data Facts, Inc. will be on April 19th at 2 PM. Please mark your calendars and plan to join us! You will earn 1.00 SHRM PDC and 1.00 HRCI credit. Watch for your email invitation!

Happy Spring to all!

Cynthia Y. Thompson | Editor Cynthia@hrprosmagazine.com www.hrprofessionalsmagazine.com

Sign up for our RSS News Feed to receive up to the minute HR Alerts on changing legislation affecting our workforce. www.HRProfessionalsMagazine.com.

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www.HRProfessionalsMagazine.com

Beth

on the cover

DAVISSON

BETH DAVISSON, MBA Louisville SHRM President Beth is the President for the Louisville Society for Human Resource Management (LSHRM), and has been actively involved with LSHRM since 2010, serving in Chair and Board of Directors roles. With over 500 members, LSHRM is Kentucky’s largest HR Organization and is consistently designated by SHRM as a “Top 10 Most Charitable Giving” Chapter. This year, in partnership with the Lumina Foundation, Beth helped to lead the LSHRM team in developing and administering a localized Talent Alignment Survey to help the HR Profession identify and understand talent gaps in the Greater Louisville Community. Over 250 area businesses participated in the Talent Alignment survey, helping the community come together to focus on the workforce required to support their economic growth needs. Beth helped to rally active participation and collaboration, culminating in a panel-based workshop with local community and civic leaders, to have real-time discussions on workforce alignment and deficiencies.

Beth is a proven human resources strategist and consensus builder, with more than 10 years of experience in the areas of change management, recruiting, professional coaching, and community and strategic planning. Beth has nearly 5 years of experience advocating for workforce needs in both the KY State and US Capitals, helping to improve the workforce and economic conditions of Greater Louisville, and beyond. Beth is currently the Director of Career Services for Health and Medical Programs at Sullivan University. In this role, Beth works with employers, both locally and nationally, to better understand the needs of the workforce, ensure the educational programs offered exceed industry standards, and graduates are gainfully employed in their field of study. Previous employers include The Oliver Group and Greater Louisville Inc. – The Metro Chamber of Commerce. Recently, Beth graduated from The Sullivan University System, Center for Leadership Development program and was also named to the inaugural class of “Top 20 People to Know in Human Resources” by Business First Louisville. Beth was awarded her bachelorette degree in Integrated Strategic Communications from The University of Kentucky and earned her Master of Business Administration Degree from Sullivan University. 

www.HRProfessionalsMagazine.com

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SHRM’s EMPLOYMENT LAW & LEGISLATIVE CONFERENCE

March 14-16, 2016 Washington Renaissance Washington, D.C.

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1 Hank Jackson, SHRM president and CEO, welcomed SHRM members to the 2016 SHRM Employment Law and Legislative Conference.

2 Mike Aitken, SHRM vice president of government affairs, was the opening general session speaker. He presented the Washington Outlook for HR Public Policy. 3 Charlie Cook, editor of the Cook Political Report, spoke on the current political and legislative environment and provided forecasting on the 2016 presidential election during the general session luncheon on Monday.

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4 SHRM’s Hank Jackson and Eric Holder, 82nd Attorney General of the United States and Partner, Covington & Burling LLP, discussed Holder’s perspective on topics from his time at the White House. 5 Jim Clifton, Gallop’s chairman and CEO, was the luncheon and general session speaker on Tuesday. He spoke on the changing will of today’s employees and the latest employer trends. 6 Jenny Yang, chair of the EEOC, discussed the EEOC's Strategic Enforcement Plan on Tuesday.

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7 Doris Kearns Goodwin, presidential historian and Pulitzer prize-winning author, was the closing general session speaker on Tuesday. Her topic was “Every Four Years: The 2016 Presidential Campaign.” 8 Allison West, Esq., SHRM-SCP, SPHR, principal, Employment Practices Specialists, spoke on understanding and investigating retaliation claims. 9 Gregory J. Hare, employment attorney with Ogletree Deakins, Atlanta, discussed learning HR best practices from today’s headlines.

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10 Jonathan Segal, partner, Duane Morris LLP, Philadelphia, spoke on state and local trends and what they mean for multi-state employers.

11 Tammy McCutchen, shareholder with Littler Mendelson PC, Washington, DC, spoke on preparing for the DOL’s proposed final overtime regulations.

12 Senator David Perdue, (R-GA) speaking to constituents during the SHRMGA Advocacy Team visit to Capitol Hill on Wednesday.

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13 Panel discussion on the trending “Gig” economy included (L-R) Gene Zaino, president & CEO, MBO Partners; Judith Conti, federal advocacy coordinator, NELP; Christine Walters, SHRM-SCP, independent consultant and author, FiveL Co.; David Fortney, co-founder, Fortney Scott, LLC. 14 SHRMGA Advocacy Team visits with Senator Perdue (R-GA) staffer during the Capitol Hill visits on Wednesday. 15 ARSHRM Advocacy Team members with Senator John Boozman (R-AR) during the Capitol Hill visits on Wednesday.

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16 KYSHRM Advocacy Team members with Senator Rand Paul (R-KY) staffers during the Capitol Hill visits on Wednesday. 17 TNSHRM members at the general session luncheon on Monday. 18 Scott Richardson of MSSHRM and Justin Scorch of the Council for Global Immigration. www.HRProfessionalsMagazine.com

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TUESDAY NIGHT ENTERTAINMENT

SOCIAL MEDIA GUIDE FOR EMPLOYERS:

What’s Protected, The Pitfalls and Traps to Avoid I. Use of Social Media in the Workplace: Marketing, Product Promotion, Communications, Personal Use, etc.

It is hard to think of any business not having some sort of social media exposure in the workplace, whether it is personal- or business-related. Big or small, businesses have found several advantages using various forms of social media in their overall operations. This invasion of technology has been so rapid that it has outpaced the laws and regulations impacting its use in the workplace, leaving employers everywhere wondering if they have what they need to properly use and protect social media at work.

The widespread use of social media has prompted a new term to cover such usage: social business. This term covers the use of social media for all business purposes, such as marketing products and services, promoting company brands, communicating with persons of interest (customers, consumers, vendors, agents, news media, owners, employees, agencies, etc.), networking, hiring and more.

ADVANTAGES When compared to traditional marketing costs, social business has a minimal hard cost to reach large audiences or disperse marketing materials.

The lower cost basis also allows small businesses to compete more evenly with large businesses, which means the consumer gets the benefit of more companies offering their products and services at competitive prices.

Furthermore, the results of these digital efforts can be known relatively quickly, compared to postal mail. If properly reviewed, such timely information can help resolve problems and keep them from lingering unnecessarily. For example, when Apple had the problem with the antenna on its iPhone not working when a person’s thumb was in a certain position, complaints starting appearing on the Internet. At first, Apple balked and Steve Jobs denied it was a problem. But when the complaints persisted on social media, Apple fixed the problem to the customers’ satisfaction. Issue resolved!

The antenna example at Apple also shows that social business can lead to a deeper relationship with customers. Brand loyalty at Apple is high, but its positive responses to customers on social media create these deep relationships, which, in turn, make customers want to come back for more.

Recent studies showed that: • 84% of CEOs and VPs rely on social media to make purchasing decisions.

• 94% of marketing departments use social media to increase brand awareness and to communicate with over one billion users.

• 81% of individual customers are influenced by friends’ posts on social media when choosing which products to buy.

• For marketing professionals, 70% or more used Facebook to get customers; and the share of marketing budgets spent for social business is expected in five years to more than double from 11% to 24%.

• 57% of surveyed customers are likely to recommend a brand to others if they receive a quick response through social business.

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By MARTIN F.THOMPSON

All this means that social media’s presence in the workplace will only continue to grow.

DISADVANTAGES Companies that permit employees to use Facebook at work lose 1.5% productivity on average. Employee relations may be affected by negative messages or harassment that hinders the ability to work or creates tension between those working together. Breaches in security and damage to a company’s image may occur. Careless employees may cause the inadvertent disclosure of confidential information. Moreover, employees could post something negative about a company, which might be shared with many others using social networks. There are also concerns about customer contact: online relations reduce face-time with customers and may result in less feedback.

II. Potential Liability under Discrimination Laws In 2014, the Equal Employment Opportunity Commission [EEOC] examined the use of social media in the workplace and its impact on the laws enforced by this agency. Two key issues were hiring practices and employee conduct on social media that may cause claims under EEO laws.

For recruiting, social media provides a plethora of information about applicants to help find the right person for the job. However, looking at applicants online can expose employers to protected factors of applicants such as age, religion, disability, genetic information, sex, national origin, citizenship; or to lawful off-duty conduct such as using firearms or tobacco, being politically active, having mixed-race family or friends, etc. This information exposes employers to allegations that they used protected information to make hiring decisions.

Cases alleging discriminatory use of social media for recruiting decisions have shown that, before there can be a violation, some protected factor(s), which the employer used in the process, must be on social media. Also, it is better for the employer not to use social media exclusively. For example, a candidate who was not hired was able to show that the employer learned about his strong conservative religious beliefs from online screening and therefore was able to defeat a summary judgment motion. Also, at its 2014 meeting on social media, the EEOC mentioned a case of first impression that, although unsuccessful, might have succeeded with the right set of facts. In Reese v. Salazar, Sec’y, Dep’t of Interior, a novel theory of disparate impact liability was pled as follows: “That by recruiting for the position in issue through social media, the employer discriminated on the basis of age because its social media recruiting focus put older workers at a disadvantage,” as “older workers use computers less often and less fluently than younger people.”

Cases based on discriminatory harassment show that social media will be viewed just as email and other forms of communication at a company. All may be extensions of the workplace, for which the employers bear responsibility, which includes liability for hostile work environments and discrimination. Conduct by employees away from the physical workplace may nonetheless be held against the employer if it knew or should have known about the misconduct, as when the device used is owned by the employer.

In one case, the plaintiff alleged employees were posting harassing matters on social media. But the company argued it did not maintain the blog site used by the employees, and it could not tell after its investigation into the plaintiff’s complaints that the offending posts came from its employees.

This makes no difference, according to the appellate decision; there was sufficient evidence to impute liability to the employer because the employees accessed the site using the employer’s computers and their blogs discussed workplace issues.

III. Potential Liability under National Labor Relations Act The NLRB has weighed in on the issue of social media, regardless of whether there is a union or not. If communications among employees are about workplace issues or conduct as it relates to their terms and conditions of employment, then it is protected concerted activity under Section 7 of the NLRA. Additionally, policies affecting conduct on social media are now scrutinized under a standard that protects Section 7 rights when: (1) employees would reasonably construe the policy to chill Section 7 activity; (2) the policy was in response to union activity; or (3) the rule as applied restricts the use of Section 7 rights. This impacts policies on confidentiality, social media, prohibiting bad comments about the company, employees or management, use of company information about terms and conditions of work, etc.

The NLRB has also held that if a company permits employees access to its email system after hours, employees may use it for Section 7 rights, including union organizing. Also, the NLRB found that emails are messages sent in mixed-use areas and are not subject to restrictions of literature in work areas.

IV. Potential Liability under Various State Laws Additionally, each state can pass its own social media laws, and many have done just that. Laws protecting employees’ social media account information have been passed in about 25 states, including Tennessee, and another 16 have proposed legislation pending. These laws generally bar employers from requiring disclosure of passwords or usernames, as a condition of employment, without more; and many also permit access for investigative reasons, based on need and showings of interest.

Also, the scope of discovery in litigation varies from state to state, contingent on different standards applied by case law to discovery rules.

Knowing these limitations can make or break a case depending on such discovery being granted or protected.

V. Suggestions The social media trend is not going away or decreasing in the workplace.

The laws covering its use by employers and employees are constantly being created and evolving to fit the next technological development. It is imperative to know what laws apply to your business and how to apply them best for your business and employees. Review all policies affecting social media and employee conduct on social media. They must comply with federal laws, rules and regulations by the EEOC and NLRB, as well as any state laws that may apply. Once you have complied in setting up your social media usage and policies properly, schedule intervals of 6 to 9 months ahead to review the latest new rules and laws to see if they require further changes to fit the ever-changing landscape.

Martin F. Thompson, Attorney Fisher & Phillips, LLP mthompson@laborlawyers.com www.laborlawyers.com www.HRProfessionalsMagazine.com

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TOP MISTAKES HR Makes in Screening Their Talent

By JULIE HENDERSON

Background screening is an integral part of savvy talent management. Companies with comprehensive, consistent screening plans are more likely to eliminate potential employees who would pose risk to the workplace. Background screening helps bring to light false qualification claims and unsavory activities that would be detrimental to a business.

However, a background screening process is potentially wrought with issues that can result in unfair and unsuccessful screening. Eight mistakes HR makes in successfully screening talent are: #8: “Oh no! I threw them away!”

Purging documents too soon Background checks contain highly sensitive information. Employers must appropriately and strictly secure the confidentiality of the information. Retain relevant documents in a secure manner for a period that complies with applicable state and federal laws and regulations. The FCRA’s statute of limitations states an individual must make a claim within two years after learning about a violation. If the violation is not discovered within five years of the violation date, the statute bars an action.

Employers who purge the systems too often risk tossing important documentation that’s priceless if an individual files a claim. Lack of evidence can put the employer on the losing end of any claim! #7: “He had a felony, why am I in trouble?!”

Ignoring adverse action processes If an employer considers an adverse employment action (declining to hire the person) based in whole or part on information in the background report, they must: a) notify applicant b) provide a copy of the background report c) provide “A Summary of Your Rights under the Fair Credit Reporting Act.” (Referred to as “Pre-Adverse Action”) Applicant may contact the background screening company to dispute any information in the background report.

The background screening company re-investigates disputed items and issues an updated report to employer and applicant.

Employer reviews the updated report, making the final employment decision. If the employment decision is adverse, a notice of adverse action is sent to applicant (referred to as “Final Adverse Action.”)

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There needs to be reasonable time (usually at least 5 business days) between the Pre-adverse action letter and the Adverse Action letter.

The National Association of Background Screeners (NAPBS) awards accreditation to companies that prove the strictest of best practices and procedures. To gain accreditation, background screeners submit to rigorous processes to prove they maintain the highest standards of operations. Choosing an NAPBS accredited company ensures you are working with a top performing background screener.

Follow this procedure every time!

#2: “I believed him.”

Taking applicant information at face value

#6: “I didn't know I shouldn't look at that!”

Utilizing irrelevant information

It’s estimated almost half of resumes contain at least one item that isn’t true.

Utilizing criminal history and credit history to screen for employment has recently come under scrutiny.

Exclusion of applicants based on conviction records is prohibited unless the employer shows business necessity.

To establish business necessity, an employer must be able to show that it considered: - nature and gravity of the offense or offenses -time that has passed since the conviction and/or completion of the sentence, and -nature of the position held or sought.

When screening with a credit report, employers need to show the individual's credit history is relevant to the position. While a person who is hired to handle money may need to show good credit history, it may be irrelevant and therefore unfair to utilize a credit report to screen for other positions. #5: “So I didn’t tell you?”

Failing to gain applicant’s consent A key employer responsibility is for employers to disclose in writing to the applicant that they will be the subject of a background report as part of the employment selection process.

This document needs to stand alone, not included in the employee handbook or the application. #4: “I went with my gut.”

Screening erratically Companies practicing inconsistent background screening are asking for trouble. Hiring managers cannot choose to run checks on some applicants and ignore checking others, because of EEOC guidelines, and overall good sense. Screen everyone in the same manner, and keep a list of the type of screening that is performed for each job function. #3: “I found them online.”

Utilizing a non-accredited background screening company Information is only as accurate as the source.

Dubious information sources or sloppy best practices can result in a report that does not adequately screen your talent.

Degree fraud, changing actual employment dates, false references, and inflated job titles are a few of the exaggerations we frequently see on resumes.

Screen your talent by looking at resumes and applications with a critical eye and verifying all information. #1: “But I checked that!”

Misunderstanding criminal records Confusion over criminal records searches is rampant. Here are three pointers: Criminal records are filed by name. Criminal records are not filed by social security number, but by name. It’s essential to spell the name correctly, and search any maiden/alias names.

Criminal searches aren’t one stop shopping.

Different crimes are held in different courts, county, state, or federal. Searching a county won’t show a crime committed in a different county (even just one county over). Federal charges won’t be found in the county in which they were committed because they are held in federal courts. Finally, the widely utilized National Criminal Database is not a complete database, because some county and states don’t report to a database. Multiple types of criminal searches are required to gain a true picture of the applicant.

Each state has its own laws. Some states gather county information, so a state search is complete. Others don’t. Some states have 7 year restrictions. Stay compliant by familiarizing yourself with the laws of the particular states where you conduct hiring.

Employers need to be aware of the pitfalls of screening talent, and prepare for them by crafting a comprehensive but fair background screening policy. Being educated on the background screening process will allow for higher performing practices, more informed decisions, and a more qualified talent pool.

Julie Henderson National Account Executive Background Screening Data Facts, Inc. Julie@datafacts.com www.datafacts.com

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HR Solutions | Payroll | Good Job

The Opioid Epidemic Finding a Better Prescription for Chronic Pain

By KEITH ROSENBLUM MPH, CPCU, ARM, CSP

Opioid-related deaths are continuing to escalate. Sixty-one percent of all narcotic-related deaths are results of both licit (prescribed) and illicit use of opioids. This is more than three deaths per hour in the United States.1 The fastest-growing death rates are for whites ages 25 to 34 and whites 35 to 44 years old, rising five- and threefold respectively since 1999.

These numbers include both prescribed and illegal drugs.2 In 2012, we addressed many of the failures in our workers’ compensation systems that permit unnecessary prescriptions in “Opioids Wreak Havoc on Workers’ Compensation Costs.” The advice remains fundamentally solid. What we didn’t address were the broad underlying causes for this behavior.

Recent advances in science now make that possible.

61%

of all narcotic-related deaths are results of both licit (prescribed) and illicit use of opioids.

There are three deaths per hour from opioids in the United States.

The fastest-growing death rates are for whites ages 25 to 34 and whites 35 to 44 years old.

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There have been major advances that explain the “why” of opioid overprescribing and the escalating frequency of accidental deaths from these controlled substances. Pain complaints, both in workers’ compensation and public health, are the leading reason for medical visits. The most common pain complaints are musculoskeletal, with back pain being the most common of these.3 Opioids and cocktails containing opioids combined with muscle relaxants, antianxiety, anticonvulsant, and sleep medications are used exclusively to address both acute and chronic pain. This may result in long-term overprescribing. Several states are working to abate the adverse consequences, in particular, death from prescribed opioids. Since 2012, ten additional states have joined the four who already have closed formularies for workers’ compensation, which substantially control the unnecessary prescribing of narcotics that treat acute and chronic pain. This trend is expected to continue and gain momentum.

Since 2012, ten additional states have joined the four who already have closed formularies for workers’ compensation.

Since 2012, there has been a plethora of published research addressing chronic pain, especially in workers’ compensation claims, with pointed attention to “why” the underlying reasons for such pain are being largely unaddressed.

Opioids, and chronic opioid therapy, are typically used to treat chronic pain (pain lasting more than three months or past the time of normal tissue healing).

Unfortunately, contrary to medical treatment guidelines, approximately one-third of workers off work with new low-back injuries receive opioids during the first six weeks after injury and usually at the first visit.

Research suggests that receiving two opioid prescriptions during this early time frame is associated with a doubling of the risk of disability at one year.4 One-third of workers off work with new low-back injuries receive opioids during the first six weeks after injury.

Receiving two opioid prescriptions during this early time frame is associated with a doubling of the risk of disability at one year.

Pain experience is a complicated brain-based combination of tissue tenderness, emotions, psychological, and learned behaviors.

In 2013, the AMA Guides5 stated that “Long-term narcotic usage reliably causes worsening of pain, and often more harm than good, for chronic-benign-pain patients. Since narcotic intake creates an artificially severe pain level, and perhaps resultant impairment, a patient receiving narcotics cannot credibly be considered to have reached maximum medical improvement (MMI) or be ratable, because any impairment may not be permanent.”

The question that could not have been adequately addressed in 2012 is now being answered with abundant clarity. The Institute of Medicine, the AMA, the American Academy of Pain Management, the American Academy of Orthopedic Surgeons, and many more have published in the medical literature, research that the pain experience is a complicated brain-based combination of tissue tenderness, emotions, psychological, and learned behaviors. The dentist visit really does hurt more if the patient is afraid. It’s not just about the tooth. Yet physicians are trained to focus almost exclusively on the physical-sensory (tissue) component of this very complex multi-factored problem. Continued and escalated doses of opioids are prescribed, more unnecessary spinal injections or surgery is performed, yet the patient fails to improve. This is no longer considered an acceptable approach to addressing pain and the outdated biomedical model of pain management has now been replaced by the bio-psychosocial pain management model.

Newer research is consistent in its discussion of how the psychiatric and emotional experience is actually predictive of which patients, early in their injury cycle, will experience chronic pain by the presence of personality disorders and other mental health conditions such as anxiety and depression.6, 7, 8 See Lockton’s White paper: Red Herrings and Medical Overdiagnosis Drive Large-Loss Workers’ Compensation Claims

1 lncreases in drug and opioid overdose deaths - United States, 2000-2014. MMWR Early Release; December 18, 2015. http:// mmwr.cdc.gov/mmwr.

2 http://www.nytimes.com/2016/01/17/science/drugoverdoses-propel-rise-in-mortality-rates-of-young-whites. html?smid=nytcore-ipad-share&smprod=nytcore-ipad&_r=0.

3 Deyo, R., et al. Overtreating chronic back pain: time to back off?.

JABFM, January-February 2009; Vol. 22, No. 1.

4 Franklin, G., et al. Workers’ compensation: poor quality health care and the growing disability problem in the united states. American Journal of lndustrial Medicine. 2014, Wiley Periodicals, Inc. 5 Barth, R., Chronic Pain: Fundamental Scientific Considerations, Specifically for Legal Claims. American Medical Association Guides Newsletter. January/ February 2013.

6 Global Spine Journal Vol. 5; Vol. 6/2015.

7 Rosenblum, K., Ross, D., Christian, J. Red herrings and medical overdiagnosis drive large-loss workers’ compensation claims.

February 2015. Lockton Companies.

8 Barth, R. Evaluating claims of injury relatedness, work-relatedness, accident- relatedness, etc.; Summary of the method from the American medical association's AMA guides to the evaluation of disease and injury causation currently in its second edition, copyright 2014.

9 lnstitute of Medicine (US) Committee on Advancing Pain Research, Care and Education. Relieving Pain in America: A blueprint for transforming prevention, care, education, and research. National Academies Press (US); Washington, DC. 2011 10 Howe, C., Sullivan, M. The missing 'P' in pain management: how the current opioid epidemic highlights the need for psychiatric services in chronic pain care. General Hospital Psychiatry. Jan-Feb 2014; 36(1):99-104.

Brad Owens

Lockton’s Memphis Office 901 757 6901 bowens@lockton.com

http://www.lockton.com/whitepapers/Rosenblum_Chronic_Pain_Feb15_revised-lr.pdf

Why are physicians not responding to this new pain management model?

The Institute of Medicine (IOM) has addressed this concern in its statement that “healthcare professionals are not well educated in emerging clinical understanding in pain prevention and treatment.”9 States mandating closed formularies are addressing the immediate issue of overprescribing narcotics to treat pain but are still failing to address the underlying cause of the problem. As recently as 2014, it is still concluded that “opioids may be used in current clinical practice as the de facto and only psychiatric treatment for patients with chronic pain, despite little evidence for sustained benefit."10 As we communicated in our 2015 White Paper on Medical Overdiagnosis, there are now behavioral pain assessments, in the form of no-cost questionnaires, that may easily be conducted with claimants exhibiting early signs of chronic pain. Where assessments demonstrate the potential of delayed recovery, new technologies such as NeuroPAS Global's Neurophysiological Pain Profile, may be used. This new technology identifies the physical and nonphysical components of the patient’s pain experience. Frequently, this information leads to effective care without the need for chronic opioids and debilitating medications.

Much has changed in the last three years to more fully understand the opioid-prescribing conundrum. Focusing on the underlying causes of overprescribing is the desired path for employers.

PERFECT ALIGNMENT. Relationship. Reliability. Respect.

At the center of our Employee Benefits and Labor & Employment practices.

N A S H V I L L E K N O X V I L L E M E M P H I S W A S H I N G T O N D C bassberry.com Blog: bassberrylabortalk.com

@BassBerryLabor

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Has Your ACA SHIP Come In?

Transforming Benefit Offerings to Reduce Your Employee’s and Company’s Healthcare Costs without compromising coverage

By KERSTIN NEMEC and TIM NORWOOD

Health Care Benefits Health Care is generally viewed as the most popular and important benefit in an employee’s compensation package. Employer sponsored insurance (ESI) is a standard expectation to attract and retain talented employees, and to avoid potential tax penalties.

In many industries, such as retail and hospitality, a “one size fits all” benefits strategy does not accommodate the varying employee positions and income levels within a company. If, as an employer, your intent is to offer “affordable health care coverage to all”, it will be necessary to expand the employee benefits package to include a menu of health care options, including State Sponsored Health Insurance Plans (SHIP).

Health Care Reform In the past, State Sponsored Health Insurance Plans (SHIP) were generally only available to children, pregnant women, elderly, disabled, and other adults with certain situations. Under the Affordable Care Act, states were given the option to expand these plans to include working adults between the ages of 19-64, with incomes below 138% of the federal poverty level (approximately $36,000 in most states for a family of 4). This was done in an effort to give more working Americans access to affordable health coverage. There are now 31 states and the District of Columbia that offer this type of coverage.

Alternatives to Employer Sponsored Insurance in Expanded States Employers located in expanded states have the unique opportunity to add these type of plans as a viable health insurance option. If there is a population of employees in your company who struggle with the premium payments, pharmacy costs, and deductibles, in particular family coverage, offering enrollment and education services in the state plans is a solution to improve employees’ lives and budgets.

Adding the state plans to your health insurance options requires careful planning, clear communication, and a focus on who is eligible and how the program can help. Employees need to understand the very real value provided by the state plans, that they may be eligible as working employees, and that the coverage usually provides the same access to doctors and hospitals and often more comprehensive coverage than private plans.

The reality of the State Sponsored Health Insurance Plan is this: • State plans can benefit workers and their families by providing comprehensive, affordable coverage.

• State plans can benefit businesses as the shift in coverage reduces overall company health care costs, and assures a healthier, productive workforce.

How to Add State Sponsored Health Insurance Plan Coverage to Your Employee Benefits Portfolio If your company goal is to lower healthcare costs for your company AND employees, the impact of adding screening and enrollment services for state plans will do both. Crafting a benefits program to meet these needs can best be facilitated by using a provider that offers confidential enrollment services.

Third party enrollment services specialize in identifying, educating, and enrolling eligible employees. Instead of using the valuable and often stretched time of in-house HR departments, outsourced enrollment services have the resources to provide: • Quick on-line screening to determine eligibility • One on one enrollment assistance • Dedicated Case Managers to follow up until the application is approved • Assistance with annual renewals “ We recently added state plans where applicable to our benefits offerings. Med-Enroll has worked with our employees to educate them on their options so they can choose what is best for them and their families. By adding State Health Insurance Plan enrollment services, many of our employees have saved hundreds of dollars each month, and our company significantly reduced overall insurance costs – a true win win situation.”

- Roger Glenn, SVP Human Resources with Gordmans

A Transformed Employer Market Health Care Reform and expanded State Sponsored Health Insurance Plans have created an affordable alternative to lower income employees. Employers who tailor their ESI offerings will meet the varied financial and health needs of their employees, and reduce the overall expense of the employer provided benefits program.

The Benefits and Value of the State Health Insurance Plan

Kerstin Nemec

A myth of state plans is that the benefits are not as good as those offered by private insurance. In fact, employees in State Sponsored Health Insurance Plans report high levels of satisfaction, with a usual source of care, access to specialists, and significantly lower financial barriers to unmet needs.

The value and savings provided to employees are significant – with most state plans available at no, or a very small, premium cost. Families with dependent coverage see tremendous savings as these plans can offer full household coverage.

State health coverage can be comprehensive and covers full medical benefits including preventive, emergency, maternity, vision, dental, and pharmacy. There are typically no deductibles, and very little or no co-pays.

President Med-Enroll, Inc.

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Tim Norwood Executive Vice President Med-Enroll, Inc.

Wimberly Lawson receives coveted awards … Again!

For the third consecutive year, Wimberly Lawson Wright Daves & Jones PLLC has been selected for Fortune magazine's annual list of “Top Ranked Law Firms” in the United States. Editors asked LexisNexis® Martindale-Hubbell® - the authoritative source for information about U.S. lawyers since 1868 - to leverage its comprehensive database of over 1.2 million lawyers and firms in more than 160 countries to identify U.S. law firms of 10 or more attorneys, where at least one out of three of their lawyers achieved the AV Preeminent® Peer Review Rating. This rating indicates the rated lawyer has been deemed by his or her peers to have demonstrated the highest level of ethical standards and legal ability. Martindale-Hubbell Peer Review Ratings are driven by the confidential opinions of lawyers and members of the judiciary who provide reviews of lawyers about whom they have professional knowledge. For more information, please visit www.martindale.com/Press/Fortune-Mag.aspx.

Wimberly Lawson Wright Daves & Jones PLLC has a Martindale-Hubbell Peer Review Rating® of “AV,” which means we are deemed our peers to have very high professional ethics and preeminent legal ability. Only lawyers with the highest ethical standards and professional ability receive a Martindale-Hubbell Peer Review Rating. Martindale-Hubbell Peer Review Ratings were created in 1887 as an objective tool that would attest to a lawyer’s ability and professional ethics, based on the confidential opinions of other lawyers and judges who have worked with the lawyers they are evaluating. The Martindale-Hubbell Peer Review Ratings have remained the most prestigious and widely respected lawyer rating system in the world for over one hundred years. For more information about these ratings, please go to www.martindale.com/ratings.

For the third consecutive year, Wimberly Lawson Wright Daves & Jones PLLC has been selected for the U.S. News – Best Lawyers "Best Law Firms" ranking. U.S. News® and Best Lawyers® (the leading survey of lawyers worldwide) work together to rank law firms in the US, covering 74 National Practice Areas and 122 Metro Practice Areas. The rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. To be eligible for a ranking in a particular practice area and metro region, a law firm must have at least one lawyer who is included in Best Lawyers in that particular practice area and metro region. For more information on Best Lawyers, please visit bestlawyers.com.

Wimberly Lawson Wright Daves & Jones, PLLC is a full-service law firm focusing primarily on Labor & Employment Law defense, Workers’ Compensation defense, and General Liability litigation for businesses and management as well as insurers and governmental entities.

Knoxville 865-546-1000 / Cookeville 931-372-9123 / Nashville 615-727-1000 / Morristown 423-587-6870 www.wimberlylawson.com

The brokerage industry is already regulated by the SEC, by the Financial Regulatory Authority (FINRA) and by state regulators.

Pending New Federal Rules for Fiduciaries Fuel Concerns of Reduced Access and Higher Costs Financial Advice

By LARRY J. TOLBERT, AIF©

If

you are an HR pro dealing with pension plans, benefits administration or employee communications, chances are good you’ve probably heard something about the U.S. Labor Department’s proposal to change the way it defines “fiduciary.”

This is a matter of significant consequence as it would change the definition of fiduciary under the Employment Retirement Income Security Act (ERISA) and it would expand the responsibilities of those who become fiduciaries under federal law.

Presently, the DOL proposal would extend the definition of “fiduciary” to a much larger universe of 401(k) plan advisors and advisors of investors with assets in Individual Retirement Accounts (IRA). The DOL proposal would also require these advisors to give advice that is in the “best interest” of their clients rather than investment advice that is “suitable.”

Practically speaking, however, what would these changes mean to you, your company and your employees?

Well, first of all, the proposed changes will impact a huge number of American savers.

In the U.S. there is about $7 trillion invested in IRAs. And there is more than $5 trillion invested through 401(k) plans.

That’s why a variety of industry groups, including the American Council of Life Insurers, the National Association of Insurance and Financial Advisors, the Securities Industry and Financial Markets Association among others, have been critical of the proposed changes since they first surfaced more than five years ago.

These and other groups have raised concerns about the practical implementation of the proposals, the overall costs of compliance and the potential adverse impacts on investors. They argue the proposals will raise the costs of saving for retirement.

Under pressure from trade associations and members of Congress from both parties, the DOL withdrew its initial proposal in 2010. The DOL brought its proposed changes forward again this past April and hopes to complete implementation of them before the end of President Obama’s term in January.

A report issued Feb. 24th by the majority staff for the U.S. Senate Committee on Homeland Security and Governmental Affairs chaired by Sen. Ron Johnson (R-Wisc.), was critical of DOL, the process it followed and the conclusions it reached in bringing the fiduciary rule forward again.

The report was critical of DOL in its lack of coordination and cooperation with other departments and agencies with responsibilities for financial services regulation, including the Treasury Department and the U.S. Securities and Exchange Commission (SEC).

“Experts have criticized the proposed rule as burdensome and complex, and have challenged the Labor Department’s claims that the rule will generate benefits for investors,” the report said. “These experts emphasize that the rule would actually harm the investors it is supposed to protect; the rule would drive up the price of investment advice and would ultimately decrease the availability of advice for low- and middleincome investors.”

The report estimated the rule could cause a loss of retirement savings of $68 to $90 billion per year and “jeopardize retirement readiness for 11.9 million IRA and retirement participants.”

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Even so, the final version of the DOL fiduciary rule is expected to be publicly released in April, if not sooner, following a final review by the U.S. Office of Management and Budget.

Two bills that would halt the rule are already headed for a floor vote in the House of Representatives, where House Speaker Paul Ryan (R-Wisc.) has already signaled his opposition.

Ryan has characterized the proposed rule as “Obamacare for financial planning.”

“Like Obamacare, the fiduciary rule requires an enormous amount of paperwork and makes recordkeeping more expensive,” Ryan said on his website. “Like Obamacare, it will result in higher costs and fewer options for small businesses trying to get up and running.”

Ryan has characterized the proposed rule as “Obamacare for financial planning.”

“When this rule comes down, we will be ready to do what we can to protect the savings of hard-working Americans,” Ryan has said previously.

A companion bill has not yet been introduced in the U.S. Senate.

Any legislation which seeks to prevent DOL from finalizing its fiduciary rule would also have to survive a potential veto from the White House, though many Democratic lawmakers have also expressed concerns throughout the rule-making process.

In addition, advocates with the U.S. Chamber of Commerce have also signaled they may well push for relief through Congress or the Courts if the final DOL fiduciary rule does not reflect changes they suggested and if their members tell them complying with the new rule will be impossible.

In the meantime, many financial services firms are already moving ahead with plans to invest tens of millions of dollars in new technology platforms to comply with the potential new disclosure and reporting standards they may soon face to serve hundreds of thousands of IRA and 401(k) account holders.

If you are uncertain about how well prepared you, your company and your plan participants are to face the requirements of an uncertain future, please consider collaborating with a skilled retirement plan advisor who can help protect the best interests of plan participants and fiduciaries.

Larry J. Tolbert, AIF©, MBA, CEP Founder, Radian Partners LLC Larry.Tolbert@radianpartners.net www.radianpartners.net ABOUT RADIAN PARTNERS Larry J. Tolbert, founder and managing partner of Radian Partners, is an Accredited Investment Fiduciary, a Certified Estate Planner and MBA graduate of the University of Miami. The firm he founded in 2004 operates from offices in Memphis and Franklin.

Radian is widely known for its adult financial education courses offered with regularity in Tennessee through the UT Martin Office of Extended Campus and Online Studies.

Securities, insurance and advisory services offered through FSC Securities Corporation, member FINRA/SIPC. Radian Partners, LLC is not affiliated with FSC or registered as a broker-dealer or investment advisor. The offices of Radian Partners are located in Suite 150, 6060 Poplar Ave. Memphis, TN 38119, and may be reached by phone at (901) 202-3909.

Navigating Mental Disabilities in the Workplace

By STUART JACKSON

According to the National Alliance on Mental Illness (NAMI.org), more than 43 million adults experience mental illness in any given year. Additionally, NAMI states that 10 million adults (one in 25) experience “a serious mental illness in a given year that substantially interferes with or limits one or more major life activities.”

That translates into a massive number of applicants and employees nationwide who might be in need of an accommodation in any given year. Chances are, you have one or more applicants or employees right now who are currently battling a mental health issue. What should you do to accommodate these individuals appropriately and legally?

This article will address a) the types of mental impairments that your applicants and employees may face, b) how to properly obtain the information you need about those impairments and c) how to accommodate those impairments.

The Types of Mental Impairments Your Applicants and Employees May Face There are any number of mental impairments that can impact a person’s ability to do his or her job, such as: 1. Depression; 2. Obsessive compulsive disorder; 3. Post-traumatic stress disorder; 4. Bipolar disorder and borderline personality disorder; 5. Seasonal affective disorder; 6. Learning disabilities; and 7. Anxiety.

These impairments can impact people in a variety of ways – some may have problems concentrating, some may have organizational issues, some may have attendance issues, some may have problems interacting with others and some may have time management issues.

How to Properly Obtain Information About Employee Impairments While the existence of a mental impairment might be revealed during the application process – perhaps requiring modifications to a pre-employment test for a learningdisabled applicant – it more often comes up when there is a job performance issue.

Perhaps, in response to a write-up or a poor evaluation, an employee discloses that he or she has a mental impairment. Or, in response to disciplinary counseling about tardiness, an employee reveals that he or she suffers from depression and has a hard time getting out of bed. How do you respond?

Your first step will be to request additional information from the employee. Given that mental impairments are not obvious, you are entitled to request information from the employee’s doctor or mental health professional. One option for doing so is to put your request in writing – while describing the employee’s essential job functions and the fact that the employee has disclosed the existence of a mental disorder, ask a) whether the employee can perform the essential elements of the job, with or without accommodation; b) the expected duration of the impairment; and c) for any suggested accommodations. Ask the doctor or mental health professional to respond in writing (perhaps on the form you provide) by a set, but reasonable, date. To ensure compliance, talk to your attorney before sending out the request.

Be sure to include the Genetic Information Nondiscrimination Act (GINA) disclaimer at the end of any written letter to a doctor or mental health professional.

The Equal Employment Opportunity Commission’s (EEOC) model language states, “The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. `Genetic information,' as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or 20

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an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.” Failing to include that safe harbor language could subject you to an EEOC charge.

Finally – and this should go without saying – any information you obtain from the individual or the doctor/mental health professional must be kept confidential. Do not keep any type of medical information in an employee’s regular personnel file.

How to Accommodate Mental Impairments One of the most obvious ways to accommodate (in the general sense) a current employee with a mental impairment who is currently unable to work or needs time for treatment is to offer the employee leave, whether it be Family and Medical Leave Act (FMLA) leave or some other type of leave.

The United States Department of Labor’s Office of Disability Employment Policy offers several other good suggestions http://www.dol.gov/odep/pubs/fact/psychiatric.htm for potential accommodations, which could apply to applicants or current employees, including: 1. Flexible workplaces (think telecommuting or working from home); 2. Flexible hours, such as part-time work hours, job sharing and flexible start and end times; 3. Modifications to the work area, including private areas in which to work, reduction of workplace noise and even natural or full spectrum lighting; 4. Modifications to job duties, including modifying or removing non-essential job functions, dividing large assignments into more discrete tasks or goals and additional training or modified training materials; and 5. Changes to the ways employees are managed, including using written tools such as “to do” lists or step-by-step checklists, using different types of communications (verbal, written or both) to convey work instructions and weekly or monthly meetings to discuss work issues.

The Department of Labor also recommends written work agreements that include agreed-upon accommodations, long-term and short-term goals and, importantly, expectations and consequences for not meeting expectations. Another possible accommodation to consider is a transfer to an open job, although you are not legally required to create a job for a disabled person.

Every accommodation situation will be different, requiring you to sit down with the employee and discuss options that might work. While some amount of leave time might be the ideal accommodation in one case, a flexible work schedule or “to do” lists might be the best options in another. Regardless of what is decided, be sure to document both your discussions with the employee and your attempts to accommodate the employee’s disability.

Don’t be overwhelmed or intimidated by a request to accommodate an employee with a mental impairment. Obtain the information you need to make a reasonable decision and, by all means, talk to the person about ways to get or keep him or her on board.

William Stuart Jackson Partner/Labor & Employment Team Leader Wright Lindsey Jennings wjackson@wlj.com www.WLJ.com

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(L to R) Lee Muldrow, Neemah Esmaeilpour, Troy Price, Jane Kim, P. Delanna Padilla, Regina Young, John Davis, Michelle Kaemmerling, Stuart Jackson, David Jones

Immigra�on • ERISA & Employee Benets • Union Arbitra�ons & Nego�a�ons Wage & Hour • Workers’ Compensa�on • Civil Rights, Leave & Agency Inves�ga�ons

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Ten Common Transgressions

of Today’s Leaders

TRANSGRESSION #3: Suffering from the Sally Field Syndrome

By JANIE WARNER

This month’s HR Professionals issue features several conferences regarding strategy and leadership.” Since leadership and strategy are closely intertwined, it may be a good idea to examine some ways managers veer off the leadership track, as well as some ideas to make a course correction.

TRANSGRESSION #10: Rotating Tires instead of Fixing Flats

Many times a supervisor will deal with underperforming or NON-performing employees by moving them to another department or position hoping against hope that the change in title or location will change the behaviors. A clued-in leader will know that without guidance, coaching and direction, a poor performer will continue to perform poorly.

TRANSGRESSION #9: Being Plaster of Paris Rather than Spandex

Plaster of Paris involves a chemical reaction that produces heat and results in a quickly-set substance as hard as concrete. New managers will often start off with a lot of fire and passion but get stuck with a set of ideas. A successful leader knows the power and value of spandex – that ability to stretch – to expand beyond the perceived limits and achieve new, creative results.

TRANSGRESSION #8: Buying Gadgets instead of Investing in Valuable Assets

Managers like spending money on “things” – a better computer, the latest and greatest phone, a fancy office chair or even a company vehicle. They can forget they have assets – people – that deserve attention, maintenance and care in order to continue to perform. Investing in your people will reap tremendous rewards, and those assets will be around long after the “gadget” is thrown into the recycle bin.

TRANSGRESSION #7: Staying Locked in the Ivory Tower

When an employee is first promoted to a management position, they find their tasks to be challenging and exhilarating. They buckle down and spend more and more time behind their desks doing what they believe is the “important work”. But staying locked in their ivory tower can have detrimental effects on their employees. They start being perceived as “distant”, “uninvolved” and even “uncaring” of the employees who are doing the day-to-day work. Management by Walking Around (MWA) is a tried and true method of staying engaged with staff –the people who make the boss look good (ref. In Search of Excellence, Tom Peters and Robert H. Waterman, 1982, 2004).

TRANSGRESSION #6: Getting an “Off Sides” Penalty

In football, when a player lines up on the wrong side of the line of scrimmage, they are penalized for being “off sides”. Many times, managers forget that they have boundaries they should not cross – for any reason, at any time. Harassment laws were made for those who won’t keep their noses, hands or any other body parts within the confines and boundaries which separate them from their employees. Leaders never forget. They are obsessive about boundaries and are scrupulous about staying within them.

TRANSGRESSION #5: Forgetting the Golden Rule

Treat others as you want to be treated – with respect, dignity and trust. True leaders use this as their internal compass. Enough said.

TRANSGRESSION #4: Being a Theater Critic instead of an Evangelist

It’s easy to criticize and look at a process, group or individual and point out what’s “wrong”.

It’s better to critique making note of issues with artful ways to correct them. It’s BEST to be an Evangelist – one who believes passionately in the process, group or individual, has a vision to create bigger and better things and preaches the message loudly, clearly and with utter conviction.

Then, working alongside the team, they continuously encourage them to be the best they can be.

It can really be a spiritual experience!

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An unforgettable moment in Oscar history was when Sally Field received an award for her portrayal of Norma Ray (a union organizer). Her first response was “You really like me!” Apparently, acceptance was very important to her in her quest for thespian excellence. Sometimes managers seek this approval from their staff and others around them. It defines their day-to-day world – trying to hit upon that one thing that will make everyone like them. However, the role of the boss calls not for likability, but for respect. The best way to garner respect is to seek input from others and sell the organization’s vision.

(See #1 below.)

TRANSGRESSION #2: “It was a collaborative effort in which I accomplished everything”

One of the most important roles in management is delegating. It’s a great way to help employees grow and learn and an efficient way to get more things done. Oftentimes, managers forget that when their employees accomplish something, it’s vital to give them the credit. Though the boss holds the ultimate responsibility, they must also relinquish the glory.

Spread the wealth around and give credit where credit is due. We all know that “what gets rewarded, get repeated.”

TRANSGRESSION #1: “When we get there, I’ll tell you where we are going”

Leaders lead the charge. They're at the front of the pack and reach the peak of the mountain before anyone else, to see what lies ahead. It is imperative for the leader to SHARE that vision; to explain what is around the bend, prepare the team for pitfalls and dangers and make sure that everyone stays on the same path. “Without a vision, the people perish” is a saying that’s especially true in the working world.

When a leader fails to keep the vision in front of the group, it’s far too easy to make up a vision and start down paths that will ultimately cause harm to the organization. When every eye is focused on the same goal, it will be accomplished and everyone can share in the bounty.

Is a true leader perfect? No! Every leader who achieves greatness struggles along the way. Is this list exhaustive? Absolutely not! But if you start with these ten, look at yourself critically and work purposefully toward any needed corrections, leadership will emerge. Ultimately, leadership isn’t LEARNED – it’s EARNED. What will you do today to start earning YOUR leadership stripes?

Janie Warner, MS-HRM Senior HR Consultant Regions Insurance Group, Inc. Janie.Warner@regions.com www.regionsinsurance.com

“What is 6056 reporting?

Am I supposed to be doing this now and what information am I supposed to be tracking?”

“I have three new hires coming on this month. How do I know if they are variable-hour versus full-time and when do I have to offer them benefits?”

Guiding You Through the Tough Questions Your business faces tough decisions every day when it comes to health reform – decisions that impact your benefits program, your employees, and your bottom line.

Let Regions Insurance’s ACA trained professionals guide you down the right path – because it’s our business to run defense for your business.

Tom Hayes

Katrina McKinney

Employee Benefits Practice Leader tom.hayes@regions.com 479-684-5259

Sales & Marketing Coordinator katrina.mckinney@regions.com 205-264-7177

www.regionsinsurance.com

The Coverage You Need.

The Guidance You Trust.

Find Regions Insurance offices in these states: Alabama, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, South Carolina, Tennessee and Texas ©2015 Regions. Regions Insurance is an affiliate of Regions Bank. Products and services are offered by Regions Insurance, Inc., and underwritten by unaffiliated insurance companies.

SM

Connect work and life with WorkLife

By B LAKE ROGERS, JIMMY HINTON, CHRIS MENARD, AND RICKY REYNOLDS

New website helps employees engage and learn for a better life at work (and at home) You probably invest a lot of time and money to keep your employees informed and engaged, to build morale and develop strong connections, and to help them understand the commitment your company makes in their well-being.

Wouldn’t it be great if there was a website that would help you do that?

There is.

Welcome to WorkLife (worklife.coloniallife.com). It’s a new website created by Colonial Life. It’s for consumers — think your employees — and don’t worry, it doesn’t sell a thing.

Instead, the idea is to cover the “news” of the workplace with stories about benefits, healthy living and workplace trends. The site offers helpful information to America’s workers about topics they’re interested in: healthy game day snacks, reducing stress, improving productivity, navigating break room etiquette. It’s the kind of information employees talk about around the proverbial water cooler. And they’re designed to be shared and liked 21st century- style with a simple click.

At the same time, stories on the site will build your employees’ understanding of their financial protection needs and solutions — the very benefits you invest in providing to attract and keep top talent.

There’s a strong need for that education. The unfortunate fact is many of America’s workers just don’t understand their benefits or insurance in general. (You’re not really surprised by this, are you?)

Consider this: • The average U.S. consumer can only answer 3 out of 10 questions correctly in a survey on disability insurance, according to LIMRA. • One out of every five Americans under 25 believe life insurance for a healthy 30-year-old is $3,000 per year — more than 20 times the actual cost, LIMRA found.

WorkLife is part of a new wave of communication called “brand journalism.”

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WorkLife is part of a new wave of communication called “brand journalism.” It’s a way for companies like ours to help educate consumers in an interesting, engaging, shareable way. Many of the world’s biggest brands are using similar strategies to reach consumers directly, without going through traditional news media channels. We’re talking about companies such as American Express, Microsoft, Coca-Cola, Kaiser Permanente and Cleveland Clinic.

In addition to stories on healthy living, job strategies and workplace benefits, WorkLife showcases Colonial Life’s corporate social responsibility efforts and the people behind our brands. We know people want to do business with companies that share their values and are engaged in the greater good. We’re admittedly proud of our company’s community commitment and we think these stories are pretty inspirational, too.

This isn’t all about us, though. We’re using this space to tell you about WorkLife because we think it can help you, your company and your employees, too.

First, check out the site. Then, if you like what you see, let your employees know about it. Your employees — and you! — can even sign up for a weekly newsletter featuring three top stories on the site that week.

Ideally, the benefits education stories will help you build your employees’ financial literacy — ultimately increasing participation in and appreciation for the benefits you work so hard to provide.

When you see a story that clearly explains a benefit you offer, or an issue you see in your office, feel free to share it with others.

And if you have ideas for stories you’d like to see on the site, let us know. Together, we can make this WorkLife work.

Check it out: Excerpts of what you’ll find on WorkLife Three simple office exercises to strengthen your core Your mom was right when she told you not to slouch. That advice will make your workday more comfortable — at least as far as your body goes.

Strengthening your core helps you line up right. And if you already have good posture, core exercises can strengthen muscle, which means you’re stronger and can better support your body through proper posture. You can do several exercises to improve your posture right at work… ______________ Too healthy for disability insurance? Think again.

You’re young, you’re healthy, you have a thriving career. The last thing you need to worry about is disability insurance, right?

Wrong — for two reasons...

The 6 commandments of break room etiquette Oh my gosh, what’s that smell?

It’s not the first thought you want to have when you walk into your office break room.

Reheating last night’s leftover fish and burning popcorn in the microwave are just two of the major faux pas co-workers commit in shared break spaces.

Better keep reading for a few other tips to help you avoid getting the stink-eye from your co-workers... ______________ Colonial Life sees value of workplace veterans Which companies are looking to hire professionals with strong work ethic, dedication to teamwork and goal-setting, sterling leadership qualities, a strong sense of community and a long list of accomplishments?

All of them.

And human resource professionals at Colonial Life have found a treasure-trove of potential employees with those skills among the servicemen and servicewomen of the U.S. military …

Blake Rogers Tennessee territory sales manager, Colonial Life & Accident Insurance Company tblakerogers@coloniallife.com or 615-696-6672

Jimmy Hinton Mississippi territory sales manager, Colonial Life & Accident Insurance Company jhhinton@coloniallife.com or 601-326-2954

Chris Menard Kentucky territory sales manager, Colonial Life & Accident Insurance Company cmenard@coloniallife.com or 502-272-9664

Ricky Reynolds Arkansas territory sales manager, Colonial Life & Accident Insurance Company rcreynolds@coloniallife.com or 501-246-8979

ABOUT COLONIAL LIFE Colonial Life & Accident Insurance Company is a market leader in providing financial protection benefits through the workplace, including disability, life, accident, dental, cancer, critical illness and hospital confinement indemnity insurance. The company’s benefit services and education, innovative enrollment technology and personal service support 85,000 businesses and organizations, representing 3.5 million of America’s workers and their families.

For more information, visit www.ColonialLife.com, www.facebook.com/coloniallifebenefits, www.twitter.com/coloniallife and www.linkedin.com/company/colonial-life.

SIGN UP NOW

We’re coming to Nashville on April 13, 2016 We want you to participate in this very special, complimentary HR Workshop along with your team and other HR leaders from the local community. You’ll take home great ideas, meet interesting people, and earn recertification credits.

Location: Franklin Marriott Cool Springs Nashville, TN Date & Time: April 13, 2016, 8:45 a.m. - 4:45 p.m.

Your day at the workshop will be filled with new ideas and practical advice. Guest speakers and HR leaders will tell you how to:

• overcoming obstacles to employee Your day at the workshop will be filled with new ideas and engagement practical advice. Guest speakers and HR • navigate the "Cs" of tell leadership, and much leaders will you how to: more Nothing compares to a live event, so sign up now. Visit: http://bit.ly/1RUKj7I. Along with great presentations and networking opportunities, you’ll share challenges and solutions with other practitioners. Plus, you can earn 5 HRCI, 5 SHRM PDCs, and APA credits.

• •

overcoming obstacles to employee engagement www.HRProfessionalsMagazine.com navigate the "Cs" of leadership, and much more

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The Value of Onsite & Near-Site Employer Clinics

The Value of Employer Clinics March 17 at the University of Memphis Holiday Inn

March 17, 2016 Registration/Networking 9:15 a.m.

Workshop 10:00 a.m. -2:00 p.m.

Cristie Upshaw Travis, CEO of the Memphis Business Group on Health, welcomed over 60 attendees. She advised, "The value of bringing the three regional coalitions together is that we share the same culture, health conditions, and environment. We understand each other and each other’s employers, employees, communities, and health challenges. It’s great to hear from employers that are faced with the same challenges because you know that many of the successful steps they took may work for you too. I am sure the three coalitions will find other opportunities like worksite health centers where bringing our members and other employers together will benefit everyone."

LOCATION Holiday Inn at the University of Memphis Come hear the latest on why more employers are implementing on-site and near-site clinics and how these clinics are meeting the needs of public and private employers for innovative Employer Panel discusses the evolution of their clinics and what the future health care delivery and employee wellness soholds: (L-R) Hollywood Casino, Southern Farm Bureau Life Insurance, lutions.

Nissan.

Other employers that presented included Trustmark National Bank, Metro-Nashville Public Schools, and FedEx Services.

Sessions will include mid-south employers sharing their experience and best practices as well as nationally recognized leaders in employersponsored clinics.

(L-R) Larry Boress, National Association of Worksite Health Centers; Cristie Upshaw Travis, Memphis Business Group on Health; Murray Harber, Mississippi Business Group on Health; Jeff Townsend, HealthCare 21 Business Coalition.

Hosted by HealthCare 21 Business Coalition, Memphis Business Group on Health, Mississippi Business Group on Health, and the National Association of Worksite Health Centers.

This workshop is a must for employers interested in developing clinics; those looking to make Coalition members attend free so existing clinics even more effective; and health enter your promotional code when care and clinic managers who want to design To Register click here!

Attendees from the Mid-South area learned about the value ofregistering. onsite and near-site employer clinics programs to better meet employer needs. at the meeting held at the University of Memphis Holiday Inn. The “Value of Onsite and Near-site Clinic” meeting in Memphis was a great example of our regional employer coalitions working together to share knowledge of emerging practices with each of our members and employers in the Mid-South who are not members. Each coalition was well represented by employer members sharing their stories of using onsite and near-site clinic model to improve the health of their population and reduce cost within their health plans.

A collaborative learning opportunity for the coalition members and employers in the Mid South.

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policy. Id. To assuage his religious-based concerns, Butcher requested an accommodation that would allow him to continue working but would not force him to sacrifice his religious beliefs. Not an unreasonable request!

Because some employees’ physical impairments prevented them from using the hand scanner, the employer implemented a bypass system that allowed these employees to type in a number. This bypass system prevented the employer from arguing that undue hardship prevented it from accommodating Butcher. But rather than accommodate Butcher’s request, the employer showed Butcher the progressive discipline policy that permitted the employer to fire Butcher if he missed four scans.

With 35 years of employment, Butcher decided that he would retire rather than be fired for remaining true to his religious beliefs. Id. This led to the EEOC filing suit seeking injunctive relief against the employer and damages on Butcher’s behalf.

An Update on Title VII and Religion in the Workplace.

By DALE CONDER

L

ast year, we reviewed the Supreme Court’s opinion in E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028 (2015). In Abercrombie & Fitch, the Court held that for a disparatetreatment claim a job applicant need only show that the need for a religious accommodation was a motivating factor

in an adverse decision. In Abercrombie & Fitch, the Court reminds us that an employer must accommodate a religious practice if it can do so without undue hardship. Id. at 2031. This year, a district court in West Virginia upheld a jury verdict for a miner who objected to his employer’s policy requiring employees to use a biometric hand scanner when clocking in and clocking out.

Beverly Butcher worked at the coal mine for 35 years. And in 2012, the employer enacted a new policy “requiring all employees to clock-in and clock-out by using a biometric hand scanner.” EEOC v. Consol Energy, Inc., 2016 WL 538478 at *1 (N.D.W.Va.). Because of his religious beliefs, Butcher objected to scanning his hand as required by the employer’s policy. Id. He saw the hand scanner as a tool to be used by the Christian Antichrist to identify his followers. Id. Butcher feared eternal damnation if he followed his employer’s 28

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The jury returned a verdict in favor of the EEOC and awarded Butcher $150,000.00 in compensatory damages. The court held a hearing and awarded Butcher $436,860.74 for back pay and front pay.

And the court entered an injunction requiring the employer to provide religious accommodations and to provide Title VII training to the employees.

Following the trial, the employer filed motions seeking relief from the verdict. The employer challenged the sufficiency of the proof on the prima facie case and whether the EEOC established that the employer constructively discharged Butcher.

The EEOC’s prima facie case required proof that (1) the employee “‘ha[d] a bona fide religious belief that conflicts with an employment requirement; (2) [the employee] informed the employer of this belief ’” [after Abercrombie & Fitch the employee is no longer required to inform the employer of the belief ]; and (3) the employee suffered an adverse employment action for refusing to comply with the conflicting requirement. Id. at *2. To rebut the prima facie case, the employer must show either that it accommodated the religious belief or that it could not do so because of undue hardship. Id. The employer argued that the evidence was insufficient to show that the hand-scanner policy conflicted with Butcher’s sincerely held religious beliefs. The employer believed that Butcher’s “‘religious concern dealt with the unknown future of technology’” and it did not conflict with a present belief. Id. In rejecting the employer’s argument, the court noted that there was ample evidence from which the jury could conclude that Butcher believed the

hand-scanner policy was immoral. Id. This included testimony from Butcher that he believed using the hand scanner would be pledging “allegiance to the Antichrist.” Id.

COX, STERLING, MCCLURE & VANDIVER, PLLC AT TO R N E Y S AT L AW

The court also rejected the employer’s attack on the sufficiency of the evidence regarding constructive discharge. Constructive discharge requires proof that the “‘employer deliberately [made] the working conditions of the employee intolerable in an effort to induce the employee to quit.’” Id. at 3. These elements can be met by evidence that the employer failed to make an accommodation despite requests for an accommodation and it can be shown by “evidence that the employer was aware of reasonable accommodations but did not offer them to the plaintiff.” Id. There was ample evidence on this issue. But the motivating-factor test from Abercrombie & Fitch, does not mean employers always lose.

In Nobach v. Woodland Village Nursing Center, 799 F.3d 374 (5th Cir. 2015), the employer fired a nursing home activities aide for refusing to pray the rosary with a patient. Id. at 375. In Nobach, the employer won!

Why? Because the employee’s religious objection to praying the rosary was not a motivating factor in the firing decision. It was not a factor because no one involved in the decision to fire knew or suspected that the employee’s refusal was religious based. The evidence showed that the employee never mentioned to any supervisory-level employees that her religion prevented her from praying the rosary.

There are lessons to be learned from these cases: • It is risky for employers to second-guess employees’ religious beliefs or to discount the sincerity of their beliefs; • If an employer is aware of an accommodation, the employer should offer it rather than remain secure in its belief that the employee would reject it. In Butcher’s case, the employer wanted to offer evidence that Butcher would not have accepted the accommodation even if it were offered (the employer never offered it). The court rejected this evidence as speculative; • Document employees’ disciplinary files. In Nobach, the employer had a record of employee write-ups; • Don’t be stingy with your accommodations.

The jury was probably not impressed that the employer would allow some employees to use the workaround, but did not offer it to Butcher; and • Provide training to those involved in the interview and hiring process as to how to handle situations in which they suspect that an accommodation is necessary.

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

Cade L. Cox, Melanie J. McClure & Brian A. Vandiver

Ranked Among the Best Law Firms for Employment Law in Arkansas

by U.S. News and World Report

Cox, Sterling, McClure & Vandiver, PLLC is a full-service law firm providing high-quality legal service to businesses and individuals throughout the Central Arkansas community.

We offer clients the same resources as many large firms, but with the personalized focus and attention that comes with a small firm. Each of our attorneys has been practicing law in his or her area of focus for more than a decade, bringing knowledge and practical experience to each problem.

We will use all the tools at our disposal to provide you or your business the best legal representation for your needs.

We are conveniently located in North Little Rock, near the Maumelle community, and just a short distance from the legal, business, and financial center of Arkansas.

8712 Counts Massie Road | North Little Rock, AR 72113 Phone: (501) 954-8073 | csmfirm.com www.HRProfessionalsMagazine.com

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MORE PAID LEAVE

Despite Lack of Federal Paid Leave Laws

By ELIZABETH DARBY REHM

The United States truly is a unique country when it comes to paid leave. According to a study by Mercer, the United States falls far short compared to other developed countries by not mandating paid vacation and paid family/medical leave. For example, Japan and Canada require up to 10 annual paid vacation days. European countries are even more generous - the United Kingdom and France require 28 and 30 days of paid vacation, respectively. Not only do these countries require paid vacation, they additionally provide paid parental leave. And mothers are not the only ones getting paid leave. According to the World Policy Analysis Center, 96 countries offer paid paternity leave. Surprisingly, the United States, along with Lesotho, Papua New Guinea, and Swaziland, are the only developed countries that do not require some form of paid maternity leave.

The concept of mandatory paid leave is not new in the U.S., but it has become a hot political topic. For example, in 2015, U.S. Department of Labor Secretary Tom Perez began an ongoing nationwide tour to spotlight the need for paid family leave, an issue which Secretary Perez believes “the United States lags behind the rest of the world.” In September 2015, President Obama issued an executive order requiring federal contractors to provide employees with paid sick leave. Again in January 2016, during his State of the Union address, President Obama reiterated the need for paid leave, just as in previous years.

Lawmakers have also proposed federal legislation including the Healthy Families Act, which would require employers with more than 15 employees to permit each employee to earn 1 hour of sick pay for every 30 hours worked, and the Family and Medical Insurance Leave Act, which would create a federal paid leave program for employees absent from work to care for an employee’s own or a family member’s long term illness. None of these proposed federal laws have gained much traction, however. On a more local level though, several states and municipalities, including California, Massachusetts, Oregon, Washington D.C., New York City, San Francisco, Seattle and others, have passed legislation relating to paid family and or sick time laws.

So what are employers in the United States providing?

Family and Medical Leave. While the Family and Medical Leave Act requires covered employers to provide eligible employees with up to 12 weeks of leave, that required leave is unpaid and a large percentage of the American workforce is not covered by the FMLA either because the employer does not have the requisite number of employees or the employees do not meet the eligibility requirements.

However, employers are providing some significant leave benefits to employees without any obligation to do so. These include: Vacation. Despite no federal mandate, the Bureau of Labor Statistics recently found that 86% of American private sector employees receive paid vacation and 61% receive paid sick leave.

Disability Leave. Many employers also offer Short Term Disability benefits and/or Long Term Disability plans that, in effect, equate to paid leave. While not federally mandated, such benefits are common and employees are taking advantage of these employer-sponsored plans.

Moreover, employers are more frequently offering some very generous leave plans, particularly for maternity and paternity leave. While the tech industry led the way with such benefits, other industries are following in their footpath and offering paid leave that is far more generous than that mandated by many countries.

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Here are just a few examples: NETFLIX recently unveiled an unlimited paid leave policy for new moms and dads, inviting them to take off “as much time as they want” in the year following the birth or adoption of a child.

TWITTER provides birth mothers 20 weeks of paid maternity leave. Meanwhile, new fathers and adoptive parents get 10 weeks paid time off.

GOOGLE grants biological mothers 18 weeks of fully paid and vested maternity leave, with additional paid leave if the mother experiences complications during childbirth. Primary caregivers, regardless of gender, are eligible for up to 12 weeks of paid baby-bonding leave, adoptive and surrogate caregivers included. Non-primary caregivers can carve out up to 7 paid weeks off.

JOHNSON & JOHNSON provides new parents, whether by birth or adoption, grocery and laundry pick-up services.

Mothers get up to 17 weeks of paid leave and fathers nine weeks.

FACEBOOK allows its new mothers and fathers 17 weeks of paid leave. Additionally, it gives them a $4,000 “baby cash” stipend for each child adopted or born.

GOLDMAN SACHS provides new mothers with 16 weeks of paid leave, including four weeks of parenting leave at full pay.

Fathers and non-primary caregivers are eligible for four weeks of paid leave. Paid surrogacy and adoption leave is also offered for up to 16 weeks.

REDDIT offers new mothers and fathers 17 weeks of paid parenting leave within the first year to be taken in two-week stretches at minimum.

BANK OF AMERICA offers employees who have worked at the company for at least a year up to 12 weeks of paid maternity, paternity and adoption leave. If more time is needed, workers can take up to 14 weeks additional time off without pay.

MICROSOFT allows maternity and paternity leave to 12 weeks at full pay, with an additional eight weeks of paid leave for birth mothers. Leave can be taken all at once or in intervals.

Birth mothers also have the option to go out on short-term disability during the two weeks leading up to their due dates.

Based on the highly politicized environment, federal legislation mandating paid employee leave is unlikely in the near term.

However, as private employers are increasingly reexamining their employee benefit packages, some private employers are offering paid leave which far surpasses any proposed legislation.

Thus, while such benefits are not currently federally mandated as in other developed countries, the trend towards coverage is growing and a significant portion of the U.S. workforce already receives some form of such benefits.

Elizabeth Darby Rehm The Kullman Firm edr@kullmanlaw.com www.kullmanlaw.com

You’re invited to attend the

6th Annual

Human Resources & Employment Law Spring Conference Presented by: THE WEST TENNESSEE SOCIETY FOR HUMAN RESOURCE MANAGEMENT In coordination with: THE LAW FIRM OF RAINEY, KIZER, REVIERE & BELL, P.L.C.

May 4, 2016 8 a.m. to 3:30 p.m.

Union University Carl Grant Event Center 1050 Union University Dr. Jackson, TN 38305

Join us for an informative day where you will explore crucial HR compliance topics including:  HR Handbooks - A study of key policies that should be addressed in every HR handbook or policy manual.  Case Studies - An interactive discussion of recent employment law cases and the application of relevant concepts and HR strategies.  HR in Film - A survey of HR issues depicted in films and television shows incorporating strateg2ies that applicable to real-world workplace challenges.

Lunch is provided. Take advantage of our impressive showcase of HRrelated exhibitors. Door prizes and more.

Registration Fee:

Register Now!

$75 for WTSHRM Members $100 for non-WTSHRM Members Join WTSHRM for only $25 at: wtshrm.shrm.org/join wtshrm.shrm.org/events

The registration deadline is Friday, April 29, 2016.

Register early as seating is limited.

You may pay by check or credit card.

Questions: eamicone@raineykizer.com This program has been submitted to provide up to 5.5 recertification credit hours through HRCI and SHRM.

www.HRProfessionalsMagazine.com

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Yahoo’s Reliance on Its Quarterly Performance Review Procedure to Terminate Employees

By MARY HAMM and LANI LESTER

G€G €

S

tacked or ranked performance review systems have been used for decades by large corporations such as Microsoft, Accenture, and General Electric. The goal of these systems is to force managers to make qualitative

assessments of their workforce in order to replace low performers with more productive employees. In recent years, however, these companies have abandoned systems of forced ranking in favor of more transparent assessments that open a dialogue between the reviewer and the employee. The reviewer provides feedback on specific areas of improvement and follows up with the employee to assess performance in those targeted areas so that the employee has notice of what is being evaluated.

Companies have another reason to move away from these types of stacked or ranked review systems: lawsuits.

In his lawsuit against Yahoo Inc., Gregory Anderson, a former online news editor for the company, claimed that Yahoo’s reliance on its quarterly performance review (QPR) procedure to terminate employees violated the Federal Worker Adjustment and Retraining Notification Act or WARN. Gregory Anderson v. Yahoo, Inc., Case No. 5:16-cv-527 (N.D. Cal. Feb. 1, 2016). Anderson also alleged that Yahoo manipulated its QPR procedure to facilitate gender discrimination against male employees and that terminations using the QPR procedure had a disparate impact on male employees.

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According to Anderson’s complaint, Yahoo’s QPR system evaluated employees on a scale from 0.00 to 5.00 by comparing an employee’s performance to those of his or her peers. Depending on the number an employee received, the employee would be categorized as “Greatly Exceeds,” “Exceeds,” “Achieves,” “Occasionally Misses,” or “Misses.” Anderson claims that the scoring criterion was vague when communicated by management to employees, if it was communicated at all. Low performers, such as those in the “Occasionally Misses,” or “Misses” categories, were subject to immediate termination. Anderson alleges that Yahoo required departments to assign a certain percentage of employees to each category, and that the scores and corresponding categories were deliberately changed in recent years to negatively impact a large number of employees.

Yahoo notified Anderson in November 2014 of his immediate termination based on a low performance review score under the company’s QPR system. Anderson’s termination came after Anderson had spent four years in various online media departments within Yahoo and while Anderson was on an approved leave of absence to attend a prestigious fellowship program.

Anderson asserts that the QPR system relied upon by Yahoo to justify his termination, and that of some 600 other Yahoo employees, was used to circumvent the notice provisions in WARN. The WARN Act, codified at 29 U.S.C. §§ 2101–2109, provides a right of action to employees affected by mass layoffs at a single worksite. The law applies to employers who either (1) employ at least 100 employees, excluding part-time employees, or (2) employ at least 100 employees, including part-time employees who collectively work at least 4,000 hours each week, excluding overtime. The law covers any reduction in workforce which results in the termination of at least thirty-three percent of an employer’s total workforce at the site if that reduction will affect fifty or more employees within any thirty day period, or a termination of 500 or more employees within any thirty day period. The law does not apply to employment terminations based on cause. The law permits affected employees or their representatives and local

governments to sue where an employer has failed to provide at least sixty days’ notice to the employee and any designated local government agency in advance of the layoff.

Failure to provide the appropriate notice prior to termination could leave an employer liable for back pay and lost benefits to an affected employee for every day, up to sixty days, for which the employer failed to provide notice.

Back pay is capped at the employee’s average daily rate of compensation for the last three years of employment or the final rate of compensation prior to termination, depending on which number is higher. Additionally, an employer may face a $500 fine for each day the employer failed to notify the designated local government entity in advance of the termination, as well as attorney’s fees.

Since the enactment of the WARN Act in the late 1980s, several states and municipal jurisdictions have enacted similar legislation. Tennessee’s “mini-WARN” Act, the Plant Closing and Reduction in Operations Act, applies to employers of between fifty and ninety-nine employees. Tenn.

Code Ann. §§ 50-1-601 to 50-1-604. The act specifies only that employers notify affected employees and the state commissioner of the Department of Labor and Workforce Development (“TDLWD”) of any closure, modernization, relocation, or policy implementation resulting in the permanent or indefinite displacement of fifty or more employees. The law does not address when notice must be given to affected employees or in what form, but the TDLWD’s website offers guidance on what should be included in the notice.

In his complaint against Yahoo, Anderson alleges violations of the California WARN Act in addition to claims for breach of contract and gender discrimination under both federal and state law. Anderson is not the first to bring suit under the California WARN Act following a large number of performance-related terminations. Space Exploration Technologies Corporation, or SpaceX, was sued in 2014 after laying off 400 of its employees following their annual performance reviews.

The WARN Act does not address for cause terminations, such as firings for low performance reviews, yet Anderson’s claims may be viable because he alleges that Yahoo sought to circumvent the notice requirements through forced rankings in their performance review process. Federal courts have evaluated similar performance review processes in discrimination cases, finding for plaintiffs where they have determined that protected classes were disparately impacted. The theory, however, appears untested in the context of mass layoffs.

When performance reviews have the potential to significantly decrease their workforce, to avoid potential liability, employers should consult legal counsel to ensure that they are complying with both state and federal laws.

Mary Hamm, Attorney, Burch, Porter & Johnson, PLLC mhamm@bpjlaw.com www.bpjlaw.com

Real world solutions to your employee benefits needs.

The world of employee benefits is COMPLEX. At Kiesewetter Law Firm, we understand this complexity.

And we’re here to help.

We are a boutique law firm that focuses on employee benefits, executive compensation and health care regulatory compliance law.

From the day we opened our doors, our focus has been and will continue to be the same— to solve complicated legal issues in collaborative, comprehensive and creative ways while being client driven and cost-effective.

Interested in working together? Give us a call.

Lani Lester, Law Clerk Burch Porter & Johnson, PLLC llester@bpjlaw.com www.bpjlaw.com www.HRProfessionalsMagazine.com

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On Fire at Work

By BILL CARMICHAEL

Last month I reviewed the first of two current management books by Eric Chester, Reviving Work Ethic: A Leader’s Guide to Ending Entitlement and Restoring Pride in the Emerging Workforce. Here, the author reminded us exactly what good ol’ work ethic really looks like – and assured us that it is still alive and well. He then explored seven values we typically learn through our formative years, and explained how each one relates to what employers want in today’s workplace: Positive attitude, Reliability, Professionalism, Initiative, Respect, Integrity, and Gratitude. We learned that workplace values transcend generational differences and that employers share a responsibility of reinforcing these values in today’s work environment. I now fast-forward to Chester’s latest work, On Fire at Work: How Great Companies Ignite Passion in Their People without Burning Them Out. Here the author reveals seven cultural pillars upon which today’s employers should focus in order to attract and retain top talent, for workplace values can be aligned when managers begin to understand what employees’ own expectations are. Much like work ethic, the engagement we want our employees to have is very achievable.

What is “On Fire at Work” about?

As a base term, ‘on fire’ personifies that charismatic behavioral quality we all want to maintain in ourselves and inspire in those we work with. We absolutely know it when it is there. On Fire at Work takes this a step further by allowing the reader to envision this ‘on fire’ attitude with the realities of keeping employees ‘engaged.’ The two can be synonymous, and Chester shows us how by expounding the employer-employee relationship in its truest potential. He states, “like all successful relationships, an ‘on-fire’ employer-employee relationship requires commitment, focus and hard work and especially from the employer because, after all, the employer can best control their side of the ledger.” On Fire at Work’s effectiveness shines through the applicability of its best practices. Instead of introducing us to characters we quickly recognized in the workplace as he did in Reviving Work Ethic, we are now invited to experience how highly effective organizations develop and implement seven pillars of workplace culture; Culture, Alignment, Atmosphere, Growth, Acknowledgement, Autonomy, and Communication. Regardless of the industry, these pillars apply. Each of these pillars are ones Chester developed as a result of his research and work with thousands of organizations.

Why this is a “must read”!

Eric Chester once again utilizes a very simple premise that readers will appreciate; a lack of engagement leads to a lack of productivity, and this lack of engagement can take on many forms.

Unfortunately, a lack of engagement is also a behavioral paradigm that can be lethal. We see it in almost every organization and the truth of the matter is that, as the author so aptly shares with us, “the success of your business is tied directly to (1) the quality of the people you attract to your organization, (2) your proficiency in getting those people to consistently perform up to and even beyond their potential, and (3) your ability to keep them on your payroll for as long as possible.” These are uncomfortable truths that Chester begins to remedy early on by stating that “Engagement isn’t the ultimate goal… it is merely the starting point.” He does so with clarity and a common-sense approach that any manager can identify with.

One of the book’s topics particularly worthy of highlighting is the importance of recognizing the generational differences in every company’s employee base. These differences can often spell 34

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disaster for organizational leadership not prepared to embrace the qualities each brings to the table.

Take for example the delicate issue of effectively managing compensation to a generationally diverse workforce. Here the author approaches wages not from budgetary constraints, but rather from using compensation as a creative means to positively influence an organization’s culture. He speaks of aligning executives’ values with those of employees and providing creative outlets for doing so, illustrating that any organization can address recurrent issues of boredom so it can change for the better.

He shows how a company’s growth directly ties in to its employees’ wants and needs, and helps leaders better understand the significant difference between recognition, which used to be a standard in building morale, to the importance of truly acknowledging the individual as a valued member of the team. Empowering workers so that the company builds an army of ‘intrapreneurs’ is another important theme he covers, as well as discussing the types of communication that enhances what employees need to know, should know, and genuinely want to know.

Structure and layout Chester accomplishes a great deal very quickly by drawing the readers’ attention into situations easy to identify with. He evokes ‘old school scenarios” many readers will find themselves familiar with. As an example, who can forget the manager who uses the, “It’s my way or the highway!” mentality, which unfortunately is still around. And he depicts the ways that some of the most innovative companies and leaders in our country now handle those same scenarios. His short accessible chapters outline the seven pillars, providing insightful glimpses into how successful organizations and their leaders have creatively applied changes needed to their compensation policies, alignment structures, growth, and so on. Each chapter also provides ten recommendations for applying reasonable, innovative concepts. HR professionals especially will appreciate the books’ common-sense approach to identifying and isolating needed changes when dealing with organizational policies, compensational issues, incentive programs, and when faced with redefining company culture. On Fire at Work: How Great Companies Ignite Passion in Their People without Burning Them Out is an excellent cultural field guide and one I highly recommend.

Who will benefit Organizational leadership, HR professionals, Compensation managers

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

Save the Date 2016 IPMA-HR Southern Region Conference

The Joint TPMA/IPMA-HR Southern Region Conference will be held May 15th -18th, 2016 in Memphis at the Memphis Peabody Hotel. The conference registration fee is $295 (early bird – by Feb 29th) or $345 regular registration. The hotel rate at the Peabody is listed below: Room Guest Rooms

Single Rate $160.00

Double Rate $160.00

Triple Rate $170.00

Quad Rate $180.00

Current taxes are 15.95% and the Hotel Services Fee (HSF) is 6.95 per room, per night. The HSF entitles all guests to wireless internet access in guest rooms, unlimited local phone and 800 number calls, complimentary use of the health club, morning newspaper, overnight shoe shine, and coffee and tea service in the Deli each morning at designated hours.

The deadline for reserving a rooms is, no later than, April 12, 2016, at 5:00 p.m. The hotel check-in time begins at 4:00 p.m., and check-out time is 11:00 a.m.

You may choose one of the following as your primary method for reservations: Registration site: http://ipmahrsouthern.org/2016Conf/

Individual Call-In Reservations: As a convenience, your attendees may call our Reservation Department at 1-800PEABODY to make their reservation. To ensure the convention rate, your attendees must identify the group name (IPMA Int'l Public Mgmt. Assn. for Human Resources/So. Reg.) and make their reservation by the cut-off date.

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35

Whatever Happened to the President’s Executive Actions?

By GREG SISKIND

In

November 2014, President Obama took the unusual step of giving a prime time speech to the nation on immigration. Since the beginning of his presidency, he had been working to try and push through legislation to reform a system that virtually no one thinks is working well. After a massive, bipartisan immigration reform bill passed the Senate in 2013, it moved on to the House. But by the summer of 2014, the House leadership had signaled to the President that it would not take up the bill.

In response, the President announced he would undertake a series of executive actions designed to do as many of the things on the immigration reform agenda as he could that don’t require legislation. The announcement was accompanied by the release of 18 memoranda outlining various reforms that would be undertaken. Some were not new ideas and already in the works. Some were surprising and even controversial. The topics covered were expansive and addressed various aspects of the immigration system including employment-based immigration, family-based immigration, the status of long-term undocumented immigrants and removal rules.

Now that nearly a year and a half has passed, here is a quick assessment of four already introduced reform initiatives affecting America’s employers as well as a preview of two more coming soon.

1. Employment authorization for H-4 spouses of H-1B visa holders For years, advocates have argued that many of the best qualified H-1B specialty occupation employees were choosing other countries because the US barred spouses from working. Many other countries offer spouse work permits and the US does as well in other visa categories like the L-1 and E-2. Beginning last May, USCIS began

accepting work applications from H-4 spouses. The key is that it is only available if the H-1B is the beneficiary of a green card application that has reached a certain stage.

The limitation of the rule to only this sub-class of H-4s upset many and it is representative of a theme running through all of these initiatives. USCIS has drawn lines that don’t seem to be tied to limits in the law and are instead based on policy arguments that are not so obvious or convincing.

2. L-1B Specialized Knowledge Memorandum For years, employers filing L-1B intracompany transfer applications for specialized knowledge workers have been adjudicated inconsistently and USCIS has taken contradictory positions on many aspects of these cases. USCIS had been promising they would issue a guidance document that addressed many of the grey areas and would make it easier for employers to know which workers were suitable for the category. In the spring of 2015, USCIS issued the longawaited draft memorandum, but, predictably, it has only raised more questions than it has answered.

The memorandum does clarify the appropriate standard for review in these cases, but, as the American Immigration Lawyers Association noted in its comment on the draft, “it does not outline a predictable, clear adjudicatory framework that is critical to consistency of adjudication, fidelity to congressional intent, and necessary to building and sustaining stakeholder confidence in the program.” The problem is that the memo is so vague that examiners are largely free to continue adjudicating cases as they wish. Yes, it will be helpful to employers to be able to cite specific language in the memorandum in L-1B applications. But these cases will continue to be highly unpredictable.

3. AC21/Employment Authorization Documents One of the most eagerly awaited proposed rules was released on New Year’s Eve last year. The AC21/EAD proposed rule combined three subjects in one massive document. First, it set down rules for many aspects of the H-1B program including cap exemption and extensions based on the American Competitiveness in the Twenty-First Century (AC21) legislation that passed more than 15 years ago. This aspect of the regulation received relatively warm reviews from the pro-immigration community. But there were some areas of concern, particularly relating to physician employers concerned that teaching hospitals will have a difficult time qualifying for cap exemption based on the new language.

The rules also addressed one of the most painfully obvious problems in the immigration system - the per country green card cap that keeps nationals of some countries (notably, India and China) in waits years longer than those from other nations. For example, waits of 20 years or longer are expected for Indian applicants in the EB-3 category while there is virtually no wait for those with other nationalities.

The rule was supposed to make it easier for people in the backlogs to change employers by allowing their green card applications to survive when moving employers and to allow them to get renewable work cards that would allow them to

36

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work for any employer while they sat in the visa queue. Unfortunately, USCIS has drawn lines with this proposal that will make these two proposals inapplicable to or unattractive to most.

The rule does indeed allow green card applications to survive a move between employers as far as retaining a priority date. But a new employer will need to file a new green card application, something that will take many months, cost thousands of dollars and not come with any certainty of actually being approved. Many immigrants will simply deem the risk too great and will choose not to make a move. Lest a company think this is good for employee retention, keep in mind that it also means it is difficult to promote employees to higher level positions, thus wasting years of investing in training and development.

And the work card provision is only available in cases where there are “compelling circumstances” which most experts believe will be very difficult to prove. In short, very little is changing for this community.

The last part of the regulation covers employment authorization documents more broadly. It would do away with the 90 day limit USCIS has on issuing work cards when I-765s are filed. USCIS blames the change on the need to ensure it completes security checks. But USCIS already has the authority to ignore the 90 day limit in such cases. More likely, this is a move designed to make a class action lawsuit challenging USCIS’ routine failure to follow the 90 day regulation simply go away. USCIS has offered a consolation prize - granting an automatic 180 day extension of a work card when an extension application is timely filed. But this does not apply to many types of work cards, does not apply to initial applications and does not cover you if 180 days go by and the case is still pending.

Your Resource for Legal Innovation and Inspiration Customized Management Training Compliance Audits Policy and Strategy Analysis Litigation Defense Global Mobility Labor Negotiation www.bakerdonelson.com 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. ©2016 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

4. STEM OPT In 2008, USCIS issued a memorandum allowing F-1 students receiving degrees in science, technology, engineering and math fields to get 17 months of optional practical training on top of the 12 months that other students get. Employers are only eligible to hire these students if they use E-Verify.

USCIS has just released a final regulation implementing that policy and extending to 24 months the additional work time for F-1s in STEM fields.

The new rule makes some important changes including the following:

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

- Students can base the 24 month extension on an earlier STEM degree as long as it was received from an accredited institution in the US, - Employers must pay a wage that is “commensurate” with “similarly situated” US workers, and

IMMIGRATION LAWYERS

- Employers must prepare a training plan for STEM OPTs Finally, there are new rules in the works that are designed to make the PERM labor certification program more user-friendly and provide a new avenue to obtain a work card for startup company founders. Look for both of these new initiatives to be introduced before the summer of 2016.

And the fate of the work card program for four million undocumented immigrants will be decided by the Supreme Court in June, something that could impact employers across the country.

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Greg Siskind Siskind Susser, PC - Immigration Lawyers gsiskind@visalaw.com www.visalaw.com www.HRProfessionalsMagazine.com

37

SCENE Littler-Memphis Seminar February 11

SHRM-Memphis Meeting at University of Memphis February 16

Greater Memphis Employee Benefits Council Meeting March 3

ONE DAY, MANY SOLUTIONS FR I DAY, M AY 13, 2016

|

8: 0 0 A . M . TO 4 :30 PM

PR ES E N TE D BY: Fi s h e r & P h i l l i p s L L P a n d H R Pr o f e s s i o n a l s M a g a z i n e The labor and employment attorneys from Fisher & Phillips Memphis are hosting a one-day seminar for anyone with responsibility for managing people and policies impacting the workplace.

AGENDA • FLSA Collective Actions • FMLA/ADA/Workers’ Comp • NLRB Concerted Activity • Same-Sex, Transgender Employees • Reinventing Performance Evaluations • Background Checks, Non-Competes & more LOCATION Hilton Memphis | 939 Ridge Lake Boulevard Memphis, TN 38120

CONTINUING EDUCATION CREDITS This program is eligible for HRCI credit.

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For registration information, please contact Nikki Hunter at nhunter@laborlawyers.com.

Be sure to attend our FREE April 28 pre-seminar breakfast, where Courtney Leyes & Jeff Weintraub will present a “short course” on FLSA collective actions.

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Little Rock HR Networking Event in Little Rock Hosted by Brad Owens with Lockton–Memphis February 18

Bass Berry Sims Seminar in Nashville February 23

Scenes from SHRM Employment Law & Legislative Conference in Washington March 14-16

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39

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⠀䔀砀栀椀戀椀琀漀爀 刀攀挀攀瀀琀椀漀渀 漀爀 吀栀甀爀猀搀愀礀 一椀最栀琀 䔀瘀攀渀琀⤀

昀漀爀 愀搀搀椀琀椀漀渀愀氀 焀甀攀猀琀椀漀渀猀Ⰰ 挀愀氀氀 㤀 ㄀⸀㌀㄀㘀⸀㜀㜀㌀㔀

www.HRProfessionalsMagazine.com

41

7 Habits

of Highly Authentic Leaders

In

By HARVEY DEUTSCHENDORF

“I realized I was more convincing to myself and to the people who were listening when I actually said what I thought, versus what I thought people wanted to hear me say.” ~ URSULA BURNS ~

the last number of years, there seems to be quite a lot of media attention on bad leaders. We hear a great deal about the ones who are corrupt, egotistical and motivated solely by their own gain and self-aggrandizement. Stories of employee disengagement, bullying by management and other articles around failures of leadership appear frequently. Despite our seemingly endless desire to hear about the bad leadership, most great leaders quietly giving their best for organizations and society. While not drawing attention to themselves and their achievements, these leaders are making a real positive difference with their staff, organizations and society.

Here are the 7 habits that authentic leaders continuously cultivate: See Their Role as a Privilege and Responsibility, Not a Right Authentic leaders see their role as one of responsibility for bringing out the best in others and doing what is best for the organization within the context of serving their community. They resist entitlement and seeing themselves as special people ordained with special powers and privileges. While others give in to the urge to use their power, authentic leaders are in the habit of making themselves constantly aware of the responsibilities their position's place them in. They are truly grateful for the chance to serve others and are always looking for ways to help others advance.

Develop Their Courage and Self-Confidence Doing what is right, rather than what is popular, takes courage and a belief in oneself and one’s abilities. Authentic leaders know that their decisions will not always be popular and they will be required at times to stand up and defend their beliefs and decisions. They are prepared to do this, believing it is more important to do what is right rather than what is easiest or the most popular.

While they face fears and self-doubt like everyone else, they understand the need to push past them in order to grow.

Show Their True Self to Everyone The reason genuine leaders earn trust and respect is that everyone around them knows that what you see is what you get. The janitor is treated with the same respect as those they are doing business with and those that they report to.

Their wives, husbands, families and friends see the same person as do all the people they work with. They are comfortable in their own skin and see no need for feigning or ego stroking.

Acknowledge Their Imperfections and Mistakes Genuine leaders see others as struggling humans trying to do their best and are willing to give themselves leeway in their own journey of life. They are willing to admit their mistakes and are willing to accept they will never be 42

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perfect. Their aim to learn from their mistakes, take the lessons and move on. Those who report to genuine leaders will be more confident in pushing their own boundaries and making mistakes in the process.

Creativity and innovation will flow in an organization in which leaders are making and acknowledging their own mistakes and encourage their followers to do the same.

Develop Their Emotional Intelligence The most important knowledge, of any leader, is self-awareness.

Genuine leaders are continually growing and developing knowledge of themselves. They see this as essential for building stronger relationships with others and helping them reach their potential. Personal development is seen as a lifelong journey and developing the leadership in others is seen as being an important component of not only their leadership, but their life’s work. Instead of avoiding challenges they look upon them as essential to their growth and development. They see every challenge as an opportunity to boost their own capabilities and growth opportunities, not only as leaders but as human beings.

Treat Others With Empathy and Respect We all have preferences when dealing with others; some we like and others just seem to bring out the worst in us. Genuine leaders are aware enough to know when someone is pushing their triggers and attempt to treat everyone reasonably and respectfully. They make a real effort to treat everyone fairly regardless of their personal feelings towards them.

They are never beyond sincerely apologizing to anyone if they realize later that they have acted rudely or disrespectfully towards them.

Always Looking For Ways to Give Back Whether it is flipping burgers at the company barbecue or coaching little league slow pitch, authentic leaders are the first ones to avail themselves to the service of their organization and community. They see themselves and their roles as part of the bigger picture and look for these opportunities to share their skills and knowledge with those around them. While some might view this as a burden, genuine leaders see recompensing as a privilege and an opportunity to give back as a form of gratitude for what they have received in life.

Harvey Deutschendorf is an emotional intelligence expert, author and speaker. To take the EI Quiz go to theotherkindofsmart.com. His book THE OTHER KIND OF SMART, Simple Ways to Boost Your Emotional Intelligence for Greater Personal Effectiveness and Success has been translated into 4 languages including Chinese.

You can follow him on Twitter @theeiguy.

INTERNATIONAL PRESENCE. LOCAL KNOWLEDGE. LABOR AND EMPLOYMENT LAW At Ogletree Deakins, we understand that our clients’ employment issues often are not isolated to one state, country, or region of the world. Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employmentrelated legal matters. The firm has more than 750 lawyers located in 49 offices across the United States and in Europe, Canada, and Mexico.

Register at www.ogletreedeakins.com/our-insights to receive updates on recent developments in labor and employment law.

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