April 2018 issue by Cynthia Thompson

Volume 8 : Issue 4

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Talent

Talent Management and Recruiting

Management

Strategy

Link in to Your

Recruiting Advantages

Highlights from the SHRM Employment Law & Legislative Conference March 12-14

Donna Merriweather,

SHRM-SCP, SPHR 2018 ARSHRM Conference Chair

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Join us for our 1st Annual HR Executive Conference Cruise! We are combining a robust Human Resources Executive Conference with an exciting cruise to the Bahamas October 22-26. You can earn a boat-load of HRCI business recertification credits and SHRM PDCs, learn from a line-up of top-notch keynote speakers, and network with your peers from Arkansas, Alabama, Georgia, Kentucky, Mississippi, Tennessee and other states in the US for this innovative concept in HR conferences. It is everything that a land-based conference offers - except that it moves! We will be sailing on the Royal Caribbean Mariner of the Seas from Miami.

Day 1

Mon.

Oct. 22

Miami: EMBARK

Depart 4:00 pm

Day 2

Tue.

Oct. 23

Nassau: DOCKED Arrive 8:00 am

Depart 11:59 pm

Day 3

Wed.

Oct. 24

Coco Cay: TENDERED Arrive 7:00 am

Depart 5:00 pm

Day 4

Thu.

Oct. 25

Cruising: CRUISING

Day 5

Fri.

Oct. 26

Miami: DEBARK Arrive 7:00 am

Register before June 1, 2018 to obtain the early bird registration rate of just $599 (plus the cost of your stateroom). We have four stateroom options including an interior room for $499, a promenade room for $549, an ocean view room with balcony for $649 and a Junior Suite with balcony for $919. The cost of your stateroom is â&#x20AC;&#x153;all-inclusiveâ&#x20AC;? based on double occupancy and includes your lodging, all meals, most ship activities, taxes, port fees, pre-paid gratuities, security fees and licenses. Does not include alcohol or Internet. These may be purchased separately. Please email cynthia@hrprosmagazine.com or give me a call at 901.598.0123 and let me know if you are interested in attending our 1st Annual HR Cruise and Executive Conference! Or, if you are ready to make your purchase visit hrcruise.com! HR Professionals Magazine is partnering with Aspect Marketing and Communications, Inc. for this innovative conference and will assist in managing the HR Executive Conference Cruise for our guests.

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Presents

Online SHRM-CP® | SHRM-SCP® Certification Exam Prep Class Online classes begin May 2 and will meet twice per week for 12 weeks on Monday and Thursday evenings from 6:00 PM to 7:30 PM.

SHRM Learning System® Participant Materials

The total cost of the SHRM-CP® | SHRM-SCP® Online Certification Exam Prep Class is $995 plus shipping You may pay by PayPal, credit card or check. Spring Exam Window May 1 – July 15, 2018 For more information visit shrmcertification.org Deadline to register is April 25 Contact cynthia@hrprosmagazine.com OR visit our website at www.hrprofessionalsmagazine.com About the instructor: Cynthia Y. Thompson is Principal and Founder of The Thompson HR Firm, a human resources consulting company in Memphis. She is a senior human resources executive with more than twenty years of human resources experience concentrated in publicly traded companies. She is the Editor | Publisher of HR Professionals Magazine, an HR publication distributed to HR professionals in Alabama, Arkansas, Florida, Georgia, Kentucky, Mississippi, and Tennessee. Cynthia has an MBA and is certified as a Senior Professional in Human Resources (SPHR) by the Human Resource Certification Institute and is also certified as a Senior Certified Professional by the Society for Human Resource Management. She is a faculty member of Christian Brothers University. Cynthia was appointed to a six-year term by Tennessee Governor Bill Haslam to serve on the Tennessee Board of Appeals in 2014. She was recently named SHRM-Memphis HR Executive of the Year. 4

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Contributing Writers

Austin Baker Bruce E. Buchanan William Carmichael Harvey Deutschendorf Brad Federman Tim Goldstein Stewart Gott Murray L. Harber Russell Jackson Daveante Jones Kim LaFevor Lisa S. Lewis Kelly Majdan Jerome Pinn Cammie Scott John Simmons Martin Thompson Janie Warner Evan S. Weiss Board of Advisors

Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR Terri Murphy Susan Nieman Robert Pipkin Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2018 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.

Features

6 note from the editor 7 Profile: Donna Merriweather, 2018 ARSHRM Conference Chair 8 Highlights of the 2018 SHRM Employment Law & Legislative Conference in Washington, D.C. March 12-14 26 HR Practitioners as ‘Strategic Asset Decision Makers’: Not a Business Partner, but ‘Part of the Business’ 35 Leadership Success 58 5 Ways Emotional Intelligence Compels Us to be More Adaptable

Educational Opportunities for HR Professionals

4 Online SHRM Certification Exam Prep Class Begins May 2 11 WGU Tennessee Bachelor’s and Master’s Degree Programs Fully Aligned with SHRM’s HR Curriculum 15 Florida International University Online Master of Science in HR Management 27 Athens State University Human Resource Management (SHRM-Aligned Program) 43 Vanderbilt Peabody College Leadership & Organizational Performance Professional Graduate Program 49 University of Memphis – The Only AACSB-Accredited Academic Training in HR Management in the Memphis Metropolitan Area

Employee Benefits

24 Wellness Programs: What is the Return? Are We Asking the Right Questions? 30 The Unintended Consequences of Maternity Leave 36 Motivating Savings with Financial Wellness and Plan Design 56 Healthy Workplaces Offer Resources for All Generations – The Changing Workforce

Talent Management and Recruiting

Industry News

16 Talent Management Tactics Without Strategy = Talent Loss 20 Looking for Talent? Link in to Your Recruiting Advantages 23 RecruitCon 2018 – Groundbreaking Talent Strategies for the Future of Business 40 Book Look – Talent Wins! The New Playbook for Putting People First 42 Sum Total Systems Helps Organizations Develop Productive Talent and Build the Right Leaders to Achieve Success 45 Compensation HR Software Solutions That Simply Fit 50 Autism & Neurodiversity, The Secret to Your Tech Workforce

Employment Law 12 2017 EEOC Statistics 18 Hiring with Temp Agencies and Staffing Firms – Guidelines and Challenges For Reasonable Accommodation Under the ADA 32 Avoiding Liability When Providing References 38 NLRB - The Boeing Company Case Marks a Return to Civility and Common Sense for Workplace Rules 41 Cross, Gunter, Witherspoon & Galchus, P.C. Seminars 44 Employee Whistleblower Protections and Recent Developments for Public Companies 46 Updating Anti-Harassment Training to Reflect the New EEOC Guidance 47 Working Boomer Advocate 52 I-9 Joint Employer Case Provides Tips for Employers 53 Ogletree Deakins Presents a Complimentary Employment Law Briefing in Memphis April 20

3 Join us for our 1st Annual HR Executive Conference Cruise October 22-26

10 8th Annual WTSHRM Human Resources & Employment Law Spring Conference in Jackson May 2

23 RecruitCon 2018 in Nashville May 10-11

28 ARSHRM State Conference & Expo in Hot Springs April 4-6 48 SHRM-Memphis 2018 HR Excellence Awards February 20 54 2018 ALSHRM State Conference & Expo in Birmingham May 1-2

55 SHRMGA HR Legal Summit with Lilly Ledbetter in Savannah May 4 57 TPMA Annual Conference in Franklin April 23-27 59 KYSHRM 34th Annual Conference in Louisville August 28-30 May 2018 Issue Features Employment Law and Employee Benefits and

Alabama SHRM State Conference in Birmingham May 1-2

SHRMGA HR Legal Summit with Lilly Ledbetter in Savannah May 4

Deadline to reserve space April 15

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a note from the editor

HR Professisonals Magazine is partnering with Fisher Caught a photo op with SHRM president and CEO, Johnny C. Taylor Jr. during a press briefing at the 2018 SHRM Employment Law & Legislative Conference in Washington, D.C. March 12-16

Phillips Memphis and Judy Bell Consulting to bring our 2nd Annual Supervisor and Manager Training to Memphis on April 13. This year it is especially exciting because we are including "Active Shooter Training," which is currently a very hot topic. Learn how to protect yourself should this situation occur in your workplace. It will be at the Crescent Club and is in partnership with SHRM-Memphis. There is limited seating, so you will want to register as soon as possible. HR professionals can earn 7.50 SHRM

The highlight of this issue has to be the 2018 SHRM Employment Law & Legislative Conference in Washington, D.C., March 12-14. As you know, this is my favorite SHRM Conference, probably because I am a political junky. My favorite presentation is always the Washington Outlook by SHRM VP Government Affairs, Mike Aitken. It is also very exciting to visit Capitol Hill and see the U.S. senators and congressmen. This year, as last year, the Conference sold out! SHRM Advocacy Team members from all over the country visited their legislators to lobby for the Workflex in the 21st Century Act, H.R. 4219. This SHRM-supported bill would provide guaranteed paid leave and Workflex for all employees at participating employers, while granting those employers relief from varying state and local requirements. This ERISAcovered plan would pre-empt state and local paid leave and Workflex laws. It would be a voluntary program rather than one mandated by the government. I think you

PDCs and HRCI recertification credits! We are very excited to announce our 1st Annual HR Executive Conference Cruise that will be October 22-26 on the Mariner of the Seas! Please see our announcement on Page 3 and 4 of this issue for details. You may also visit our website, www.hrprofessionsalsmagazine.com, to register. There will be a black tie optional cocktail reception on the first night followed by dinner and a surprise special keynote speaker. The rest of the Conference will be held on October 25 while we are cruising at sea. The best

will enjoy the pictorial highlights on Page 8-9. I also had a great time interviewing

part of all is that you will earn 8.00 SHRM PDCs and

several thought leaders during the conference. Visit our Facebook page to view the

HRCI business recertification credits. Please register

Facebook Live videos from the Conference.

by June 1 to receive $100 off on the cost of registration. We are also seeking sponsors for this event.

We are now looking forward to the 2018 spring SHRM Conferences. We are proud

Details are also on our website. All sponsors receive

to be media sponsors for the MSSHRM State Conference in Tupelo April 2-4,

complimentary registration for the Conference.

the ARSHRM Conference in Hot Springs April 4-6, and The TN SHRM Strategic Leadership Conference in Nashville April 27. We are also media sponsors for the

Our monthly complimentary webinar sponsored by

SHRM Talent Management Conference in Las Vegas April 16-18. We are also

Data Facts, Inc. will be on April 19th at 2 PM. The

covering the TPMA (Tennessee Personnel Management Conference) in Franklin

topic will be announced by email. Please mark your

April 23-27. Can you say "WOW?" I will bring you real-time coverage from each of

calendars and plan to join us! You will earn 1.00

these conferences on Twitter, Facebook, and LinkedIn. Please follow me on Twitter

SHRM PDC and 1.00 HRCI credit. Watch for your

at @cythomps. We will also have highlights of these excellent conferences in the

email invitation! If you are not on our distribution list,

May issue. Watch for instant notifications of our Facebook Live interviews in real

you can opt in on our website, www.hrprofessionals-

time. Be sure to Like Us on Facebook so that you will receive them.

magazine.com, in the upper right hand corner.

Cynthia@hrprosmagazine.com @cythomps

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on the cover

Donna MERRIWEATHER DONNA MERRIWEATHER, SHRM-SCP, SPHR Chair of 2018 Arkansas SHRM Conference & Expo

Donna Merriweather is currently serving as Chair of the 2018 Arkansas SHRM Conference & Expo. This is Donna’s second time to serve in this strategic role for ARSHRM. She also services on the ARSHRM State Council as the State-Director Elect. Donna was recognized by her peers as Arkansas’ Outstanding Professional in Human Resource Management in 2003 and the West Central Arkansas Human Resource Professional of the Year in 1998 and 1996. She is a founding member of the West Central Arkansas Society for Human Resource Management Association. Donna is currently with Bear State Financial, Inc, the holding company for Bear State Bank, and is the Executive Vice President & Chief Human Resource Officer. Her extensive background in human resources for financial industry and manufacturing industry has provided her the ability to focus on the importance of the human resource role within these industries. Donna is a graduate of the National School of Human Resources at the University of Colorado in Boulder, the Bank Management School at the University of Arkansas in Fayetteville, and the National Park College in Hot Springs. Donna earned her SHRM-SCP in 2015 and her Senior Professional in Human Resource Management (SPHR) in 2001. Donna has been a member of SHRM for over 30 years. 

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2018 SHRM EMPLOYMENT LAW & LEGISLATIVE CONFERENCE HIGHLIGHTS MARCH 12 – 14, WASHINGTON, D.C.

1 Johnny C. Taylor Jr., SHRM president and CEO, welcomed attendees to the 2018 SHRM Employment Law & Legislative Conference. 2 Michael P. Aitken, SHRM vice president, Government Affairs, presented the Washington Outlook at the opening general session. 3 Lisa Horn, SHRM director of congressional affairs and executive director of Employers for Flexibility, spoke on the Workflex in the 21st Century Act, H.R. 4219.

4 Donna Brazile, former interim DNC Chair and political strategist; and Sean Spicer, former White House press secretary, were keynote speakers on Monday. 5 Gloria Borger, chief political analyst, news division, CNN, was a keynote speaker on Tuesday. She presented an insider’s view from Washington. 6 Peter Sagal, host, “Wait Wait. . .Don’t Tell Me!,” National Public Radio (NPR), discussed responding to today’s political climate on Tuesday.

7 & 8 Victoria Lipnic, acting chair of the EEOC; and Jonathan A. Segal, partner, Duane Morris, LLP, were keynote luncheon speakers on Tuesday. They discussed a fresh focus on workplace harassment. 9 Bob Carragher, SHRM senior state affairs advisor; Margo Vickers, SHRM’s chief external relations officer; and John Walkoe, SHRM’s technology network administrator, were at the reception for the SHRM Advocacy Team. 8

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1 Congressman Scott Peters (D-CA) spoke at the breakfast meeting for the SHRM Advocacy Team on Capitol Hill. 2 Congressman Bradley Burn (R-AL) with members of the ALSHRM Advocacy Team at the breakfast meeting on Capitol Hill

3 Members of the ARSHRM Advocacy Team with Senator John Boozman (R-AR) on Capitol Hill 4 SHRMâ&#x20AC;&#x2122;s Lisa Horn with the members of the SHRMGA Advocacy Team

5 Members of the KYSHRM and LASHRM Advocacy Team 6 Cynthia with members of the TN SHRM Advocacy Team

7 Members of the FLSHRM Advocacy Team 8 Attendees at the Conference support the Workflex in the 21st Century Act, H.R. 4219. 9 SHRM members at the welcome reception held in the Library of Congress.

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You’re invited to attend the

8th 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 2, 2018

Join us for an informative day where we will explore how to survive in the HR Jungle including:

Wednesday 8:00 a.m. to 4:00 p.m.

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

Beware! Sexual Misconduct in the Workplace – Learn how to effectively and legally respond to incidents of sex-related misconduct on the job. Performance Management Safari – A panel of HR administrators and attorneys will discuss innovative approaches to rewarding excellence and addressing performance concerns. Avoiding Danger: Workplace Violence – Explore strategies on how to prevent and respond to violence occurring in the workplace. It’s a Jungle Out There! - Employment Case Studies – An interactive discussion of recent employment law cases and the application of relevant concepts and HR strategies. Legal Aspects of Employee Discipline and Investigations – A creative presentation by employment attorneys on how to address employee discipline and conduct workplace investigations.

Lunch is provided. Explore our impressive showcase of HR-related exhibitors. Door prizes and more. Registration Fee:

$100 for WTSHRM Members $125 for non-WTSHRM Members Join WTSHRM for only $25 at: wtshrm.shrm.org/join

wtshrm.shrm.org/events

The registration deadline is Thursday, April 26, 2018. Register early as seating is limited. You may pay by check or credit card. Questions: eamicone@raineykizer.com This program has been submitted for 6 recertification credit hours through HRCI and SHRM.

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2017 EEOC Statistics By EVAN S. WEISS

The Equal Employment Opportunity Commission (the “EEOC”) has released certain statistics relating to the types and number of Charges of Discrimination (“Charges”) filed with the Commission during Fiscal Year 2017. The statistics reveal several interesting trends while reinforcing patterns that remain remarkably consistent.

Retaliation Claims Continue to Rise; Harassment Claims Do Not To begin, in a continuing trend, statistics show that retaliation claims are increasingly prevalent in Charges handled by the EEOC. For the ninth time in the last eleven years, the EEOC reported resolving more retaliation claims than it had in the preceding year. For example, in Fiscal Year 2017, 48.8% of all new Charges filed with the EEOC contained a retaliation allegation. This represents only a modest increase from the 2016 number of 45.9%. The long-term trend in retaliation claims, however, is more significant. Two decades ago, in 1997, retaliation allegations appeared in only 22.6% of new Charges. While the total number of new Charges filed with the EEOC fluctuates from year to year—often mirroring the general state of the economy—the percentage of allegations under different theories of discrimination has, for the most part, remained remarkably consistent. Only disability discrimination and retaliation allegations appear on a significantly larger share of new EEOC Charges in 2017 than they did in 1997. Further, the growth in retaliation Charges over that timeframe dwarfs the growth in disability Charges. While prominent in the news, the number of new Charges alleging sexual harassment has recently remained steady. There were approximately 1,000 fewer sexual harassment Charges filed with the EEOC in 2017 than in 2010, when the EEOC started releasing harassment-specific data. The number of sex-harassment based Charges has remained between 6,750 and 7,000 in each of the last four years. Generally, sex-based discrimination has appeared on roughly one-third of all newly filed EEOC Charges each year since 1997.

The #MeToo Effect? These statistics beg an interesting question: why has increased public attention on issues of sexual harassment, through movements such as #MeToo, not translated into an increase in EEOC filings? The most straightforward possibility is that it takes time for new allegations of harassment to reach the stage of an EEOC Charge. If so, we may see an uptick in these types of claims in the coming years. Further, the EEOC accepted public comment on new harassment guidelines in 2017. If and when new guidance is published, that also may lead to more Charges being filed with the EEOC. It is also possible that, even as increased public discussion of the prevalence of sexual harassment reduces the social stigma attached to reporting harassment, many of the pressures of not reporting harassment to an employer—including the possible fear of professional retaliation—may remain. Companies seeking to combat workplace harassment should strive to make clear that professional retaliation will not occur. This will lead to more people coming forward, which, while perhaps painful to deal with in the short term, will help a company rid itself of unseen harassment. Companies that encourage this dialogue and handle complaints properly can also avoid the pitfalls that lead to harassment and retaliation Charges being filed. 12

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Should Companies Change What They Are Doing? In recent months, many companies have been coming to the realization that their corporate culture needs revamping when it comes to workplace harassment. Even where well intentioned, the practices and policies in place for dealing with workplace harassment are often inadequate. Of course, the first goal should be to eliminate sexual harassment from the workplace. But, both the public attention on the issue and the EEOC statistics provide an important additional lesson that the Company’s response to complaints of harassment is also critical. One way to both combat harassment and fear of retaliation is for the Company to actively encourage employees to come forward. Corporate America in general, and each company within its own walls, must strongly communicate to employees that they should tell the appropriate company representative if they are the victim of, or witness to, workplace harassment. Once a complaint is made, companies must conduct a thorough and well-documented investigation, communicating with those involved throughout the process. The company should also tell employees who report harassment to tell human resources if they feel a co-worker or supervisor is retaliating. In taking these steps, the Company will: (1) communicate to its employees that it takes harassment and retaliation seriously; (2) make clear that employees should feel comfortable reporting harassment by coworkers and supervisors; and (3) in the event of a Charge or lawsuit being filed, help the company demonstrate that it takes complaints seriously and did not engage in retaliation.

Other Noteworthy EEOC Statistics The 2017 EEOC statistics also contain several other noteworthy pieces of information: • Fiscal Year 2017 marked a noticeable uptick in the amount of EEOCfiled merit-based lawsuits. The EEOC’s 184 merit-based suits in 2017 was more than double the 86 that it filed in 2016. The EEOC is still far short of the more than 250 merit-based lawsuits that it filed each year between 1997 and 2011. The 86 suits in 2016 also represented a significant decrease from the 142 suits filed in fiscal year 2015. Time will tell whether this year’s uptick is the beginning of an upward trend in new suits brought by the EEOC, or part of the overall downward trend that began a decade ago. • The EEOC also appears to have made significant steps in cutting down on its growing backlog of Charges. As of the end of Fiscal Year 2017, the inventory of pending Charges is the lowest it has been in more than a decade. The decrease appears to be a combination of the EEOC having resolved slightly more cases during Fiscal Year 2017 than it did in Fiscal Year 2016 while, at the same time, taking in fewer new Charges. • The EEOC is increasing its efforts to focus on instances of “systemic discrimination.” The EEOC made the highest number of probable cause findings (167) in cases of systemic discrimination and brought the highest number of new lawsuits (30) alleging systemic discrimination in the past six years. Both of those 2017 figures are significantly higher than they have been in any of the past six years. Systemic discrimination now makes up almost a quarter of the EEOC’s active litigation docket.

Systemic discrimination now makes up almost a quarter of the EEOC’s active litigation docket. Conclusion and Takeaways The EEOC’s statistics do not provide a crystal ball into how employment litigation will progress in the coming years. The continuing trends contained in the statistics, however, are useful in reinforcing some important principles. Whether harassment claims increase or remain at their current pace, they still are present in close to one-third of all EEOC Charges. Further, retaliation claims continue to appear on an increasing number of Charges filed. Those numbers should serve as a reminder of the potential consequences of having a corporate culture that permits workplace harassment. Even with an optimal culture, harassment and resulting lawsuits may be inevitable. Applying best practices will serve the company two-fold, both reducing if not eliminating harassment and retaliation and protecting the company in the event EEOC Charges or lawsuits are filed.

Evan S. Weiss, Attorney Martenson Hasbrouck & Simon LLP eweiss@martensonlaw.com www.martensonlaw.com

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Could Confidential Settlements of Sexual Harassment Claims be a Thing of the Past? By RUSSELL JACKSON

ue to the seemingly constant barrage of sexual harassment claims and the accompanying publicity, employers across all industries should be prepared for an uptick in attorney demand letters, EEOC

or state agency discrimination charges, and lawsuits filed including sexual harassment allegations. Where victimized employees (women as well as men) may have previously feared retaliation or reprisal, employees may find today’s environment to be the right platform to raise harassment issues.

For years, confidentiality – or nondisclosure – provisions have been commonplace in settlement agreements relating to employment disputes. The provisions typically prohibit the employee from discussing (1) any information relating to the claims (e.g., the alleged wrongdoing), (2) any information learned during the investigation into the complaint and/or the course of discovery, or (3) the financial terms of the settlement agreement. Certain provisions attach financial ramifications if the employee breaches the confidentiality terms. Confidentiality provisions assure employers that any allegations (true or not) and the monetary amount for which the claim was settled will not be publicly disclosed or shared with coworkers, customers, competitors, or others. Recently, several states have introduced legislation that would restrict confidentiality agreements as they relate to sexual harassment claims. The states that have introduced such legislation include Arizona, California, Massachusetts, New York, New Jersey, Pennsylvania, and Washington. Specifically, the laws would ban the inclusion of nondisclosure or confidentiality provisions in settlement agreements, if the agreements are to resolve sexual harassment claims and allegations. One of the predominant theories behind the proposed legislation is to encourage victims to speak out about unwelcome conduct to which they have been subjected. Ideally, this would promote victims to discuss what happened and to provide a warning to would-be victims. The thought is, for example, if the first woman subjected to Harvey Weinstein’s misconduct was permitted to share her story, Weinstein would not have remained in a position of power and would not have had the opportunity to mistreat others. If victims are allowed to discuss the allegations, it would also potentially deter sexual misconduct in the workplace because harassers would understand that if a complaint is lodged, their conduct would become known. While the intention of the legislation is to deter sexual harassment in the workplace, questions still remain, and the overall effect may be less beneficial to victims than intended. For example, could employers be less likely to settle? Employers may decide they would rather roll the dice in litigation than enter into a settlement that is not confidential. Settling a claim the employer knows will eventually be made public may appear to some as an admission by the employer of guilt; thus, some employers may view settlement as riskier than fighting the allegations in court. Could employers pay less money to settle these claims? Many employers factor confidentiality into their settlement value. Employers are willing to pay a premium because the employee is unable to talk to colleagues, friends, the media (or post on social media) about the alleged conduct and potential claims. If employers do not have that assurance, they may be unwilling to pay as much as they otherwise would. Confidentiality agreements can also provide relief to the employee who raised the claim. Many employees want to “walk away” from the situation and agree to confidentiality provisions because they would rather not discuss it. Without confidentiality provisions, employees may be concerned that they will be subject to negative feedback or that the amount of the settlement could be disclosed, when they prefer that it remain private. Additionally, employees could be concerned

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that potential employers would be hesitant to hire them if they are viewed as having publicly disparaged a prior employer by discussing harassment claims. As the legislation concerning confidentiality agreements in various states proceeds, employers should be on the lookout as it may impact how they plan to handle, investigate, litigate, and potentially resolve sexual harassment claims. Employers should also be aware that the newly enacted tax law does not permit deductions for amounts paid in settlement of claims relating to sexual harassment or sexual abuse, as well as attorneys’ fees paid with respect to any such settlement subject to a nondisclosure agreement. The change became effective on December 22, 2017, and applies to any payment made after that date, including payments made under pre-existing settlement agreements. There are a host of questions relating to the new tax law, including;

The enforceability of arbitration agreements requiring employees to arbitrate sexual harassment claims is another hot topic. Arbitration agreements generally mandate that, instead of filing a claim in court, an employee must pursue her claim in private arbitration. Arbitration is generally a more cost-effective method of resolving employee disputes where a neutral arbitrator – instead of a jury or a judge – decides the merits of the case. However, arbitration agreements have recently come under heavy scrutiny relating to sexual harassment claims. A federal bill – “Ending Forced Arbitration of Sexual Harassment Act” – has been introduced to prohibit arbitration agreements relating to sexual harassment claims. Similar to those disfavoring confidentiality in settlement agreements, proponents of the bill believe arbitrations permit employers to protect sexual harassers because the claims are not being litigated in court. As currently drafted, the bill could potentially impact all employment claims. Employers should keep an eye on this legislation as it could have sweeping effects on the overall enforceability of arbitration agreements between employees and employers.

1) what if the settlement included other claims; 2) what if the confidentiality provision only applied to other claims; 3) whether the law applies to plaintiffs’ legal fees; and 4) whether the terms “sexual harassment” or “sexual abuse” are ambiguous, among other questions. Prior to making deductions for these amounts, employers should seek advice from an employment or tax lawyer.

Russell Jackson, Counsel FordHarrison Memphis Office rjackson@fordharrison.com www.fordharrison.com

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Talent Management Tactics Without Strategy

= Talent Loss

By BRAD FEDERMAN

All too often human resources professionals are overworked and fail to get the traction they desire. Always pushing higher to get boardroom access and develop that true partnership with the C-suite, but in too many cases falling short. Activity is not enough. We must, as human resource professionals, engage in the right activity, at the right time, in the right way, for the right purpose. That means more activity is in most cases not better. Less is more. Why? Because it creates an opportunity for human resource professionals to be more strategic and focus on real results. And the timing could not be better. Here are three reasons why…

1. CEOs have become more connected to how they lead and manage people. Aligning performance, cultural fit and ensuring an inclusive environment has taken on new meaning. Culture has made the headlines in ways that few expected. Cultures that allow for or even encourage bad behavior and poor ethics have proven to affect shareholder value. Culture used to be something progressive companies focused on and others talked about. Now companies cannot afford to leave culture to chance. 2. Data is prevalent. Measuring success of people initiatives, human resources achievements and the state of your culture and employee engagement have never been easier. It also means HR must be accountable and transparent to succeed in today’s economy. 3. Competition and change are at an all-time high. The difference between success and failure can no longer be covered by labor costs, automation and other factors. Having a nimble and productive workforce is paramount and will help organizations survive during innovative disruptions and economic slowdowns.

So how can HR prepare? Focus a little less on tactics and a little more on strategy. A strong talent management strategy is a direct extension of the business strategy. All too often that connection is broken and there are a number of reasons why. Here are 10 reasons tactics take over for strategy and how to avoid them…

1. Recycling may be good for the environment, but not your plan. Last year was last year. It does not matter if it was a good year. It does not matter if you hit the ball out of the park. It is in the past. It no longer counts. Too many rely on and try to preserve what has worked. Even if the talent strategy’s goals and objectives are for the most part staying the same, the world around them has not. Competition, costs, your talent etc. are all moving targets. When it is a new year it should be a new plan. 16

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2. Assuming people know the strategy. Most employees do not know or understand the business strategy let alone the talent strategy and it is not their fault. A company’s talent strategy is rarely communicated to the masses. A strategy only comes to life when people understand, buy into and help execute it. Yes your employees help make the talent strategy successful when invited too. 3. KISS is more than a band. Keep it short and simple. Visuals work well. A talent strategy should be easy to digest and one to three pages. Too many HR departments create lengthy, cumbersome plans that resemble research and books. Does not mean you won’t put work into the planning process? No. Of course you will. It just means the simplest answer/plan is most likely the best one. Think of it as the Occam’s razor of talent strategy. 4. Expertise is not all that it’s cracked up to be. Some HR professionals get caught up in degrees, certifications and more. But here is a little secret - while experience and expertise are important, the customer, market, your competition and business strategy drive your talent strategy. Who is your target customer? What do you do better than your competition from your customer’s eyes? How will you operationally compete in the market place? What are your growth plans? What does that mean for recruiting, hiring, developing and promoting your people? How will you know how to adjust to changing expectations? One company I worked with focused on a service strategy. However, in order to take advantage of a growth opportunity they needed to hire, develop and grow a sales culture. They struggled with organic growth until they recognized the disconnect, and made adjustments. 5. Lack of bandwidth. A plan can only succeed if you have the capability, resources and money to deliver. Make sure your plan fits your budget and resources. And if you have to execute a talent strategy on a dime, don’t do it on the backs of your people. It only leads to poor execution and burn out. Adjust your plan accordingly. Focus on what will have the most impact. Too many try to build a Ferrari when a Toyota will do the trick. 6. Who’s on first? If you have never done a succession plan or have not completed one in a while then it is hard to know where to start. After all, a talent strategy is usually based to a great extent on what you have in terms of talent already and then what gaps exist. Without having a formal process in place most organizations make a great deal of assumptions or guesses that don’t exactly hit the mark. The other problem with lacking in this area are the mixed message that go out to people in the company. Companies lose good people because they do not know where to stand when it comes to company succession. We need to know who we have in our ranks and how ready they are for their next role.

7. Not knowing where you are going. Most talent strategies identify where they are starting and may know the direction or the route towards success. But rarely do these strategies lay out what success looks like. Sometimes it is about wanting wiggle room. Being ambiguous helps reduce accountability. But without a true stake in the ground, progress is usually left out of reach. And other times it is because no one knows what success looks like. However, if you don’t know your destination you probably won’t arrive. 8. Falling for the misdirection. In magic a misdirection is a form of deception, a distraction, making you focus on one thing rather than the other; in essence you miss what is actually happening. The same thing happens in business. We spend our time juggling tasks just trying not to drop the ball. We are always going to get new information, requests, etc. throughout the year and of course we will have to adjust. The problem is we rarely complete a triage analysis of all the requests and changes that appear throughout the year. That usually leads to one of two problems: • Altering your efforts when you when you should not and therefore giving up on your strategy and hurting the business; or • Remaining obstinate in the face of new information and sticking with a plan that is no longer relevant and frustrating the business and your customers.

end data and numbers are only so helpful. We still work with other human beings. Relationships are still the underpinning of how we do business. Technology can be a tool to strengthen relationships, but more often we utilize data and technology to increase efficiency at the cost of trust and relationships. 10. Risks don’t rule. HR tends to worry about the risks of doing something new. They have the reputation in many companies for saying “No” or “we can’t do that.” Maybe it has to do with our origins. We were an outgrowth of legal. But companies need HR to center on opportunities first. HR should be focusing on growth and on helping the organization explore what is possible. After there is buy-in on an idea HR can work through the issues, risks and barriers. HR should be known for a “can do” attitude rather than the opposite.

A good talent management strategy is a roadmap for how we make decisions and where we focus our time and energy. If handled the right way, everyone gets behind it and understands how it ties directly to and supports the business strategy. Most importantly it is becomes a living, breathing proactive effort that makes a difference. Otherwise, HR is transactional and has as much value as an outdated and inaccurate job description.

The trick is knowing when to adjust and when not too. Have an evaluation and feedback loop in place to appropriately amend your efforts. 9. Big data is not the answer. Sure data is helpful. HR departments can use it to measure the effectiveness of learning, strengthen teams, identify skill gaps, determine whether automations or robotics can do certain work and predict job changes through artificial intelligence. But in the

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Hiring With Temp Agencies And Staffing Firms? – Guidelines And Challenges For Reasonable Accommodation Under The ADA By JEROME D. PINN

Many employers using temporary workers from temporary staffing agencies assume that, if a temporary worker has some physical or mental limitations or is unable to work for a period of time due to a health problem, they can safely end the worker’s assignment and ask the staffing agency to place another worker. Such an assumption could prove costly. Although the Family and Medical Leave Act of 1993 is unlikely to apply in such situations, because its job protections do not commence until a worker has been employed for at least 12 months, the Americans with Disabilities Act (ADA) does apply in such situations. The ADA requires reasonable accommodations to be made when needed by a qualified worker who has a disability. Both temporary agencies and the employers that use them are covered by the ADA, provided that they have at least 15 employees.

with disabilities unless doing so would impose an undue hardship. An undue hardship is significant difficulty or expense in providing a specific accommodation. The ADA also prohibits employers from denying employment opportunities to qualified employees with disabilities because of the need to provide a reasonable accommodation. Where a staffing firm and its client are joint employers of a temporary worker with a disability, both are legally obligated to provide a reasonable accommodation that the worker needs to perform the job, if one exists, absent undue hardship. If it is not clear what accommodation should be provided, both entities should engage in an informal interactive process with the worker to clarify what s/he needs and to identify the appropriate reasonable accommodation. Some temporary assignments, as opposed to “temp-to-hire” assignments, may be of a short-term nature. Some temporary jobs become available on short notice and last for only a brief period of time, during which certain tasks must be completed. In such cases, a staffing firm or client can establish undue hardship by showing that the work assignment had to be filled on short notice and that the accommodation could not be provided quickly enough to enable the staffing firm worker to timely begin or complete a temporary work assignment. In “temp-to-hire” scenarios, the undue hardship defense is less likely to be available to either the staffing firm or its client when a temporary employee reports a need for reasonable accommodation. For example, if a temporary worker is typically hired as a regular employee of the client at the 180-day mark, if a temporary indicates approximately 180 days into an assignment that he will need back surgery and an 8-week leave of absence, it may not be safe for the employer to simply end the worker’s assignment. It may be necessary to provide the worker the leave of absence. In another example, if a temporary employee who has been assigned “regular” type of work (rather than work of a purely short-term nature) has a heart attack or stroke, it would not be legally safe for either employer to simply end the assignment. Rather, a leave of absence of reasonable length might be required to comply with the ADA.

The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcement of the ADA, and the courts, both have found that staffing agencies and the employers that use them are in most cases “joint employers” of temporary workers. Joint employers each bear legal responsibilities to comply with the ADA. The EEOC has issued some guidance on what staffing agencies and employers should do to comply with the ADA when temporary workers have health-related limitations on their ability to do their assigned job. The ADA requires employers to provide reasonable accommodations to the known physical or mental limitations of otherwise qualified individuals 18

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That is not to say that every temporary employee who needs time off to deal with a medical issue is entitled to take a leave of absence. There will be situations in which the client employer may be able to ask a temporary agency to end a worker’s assignment if he/she will not be able to maintain regular and predictable attendance while on a temporary assignment expected to be of limited duration. In a recent case, Punt v. Kelly Services (10th Cir. 2017), a temporary employee (Kristin Punt) employed by Kelly Services and assigned to work at GE Controls Solutions, filed suit under the ADA after Kelly ended her temporary assignment at GE when she missed numerous shifts after receiving a cancer diagnosis. Kelly had assigned Punt to GE as a temporary receptionist for approximately two and a half months. According to GE,

the essential functions of the receptionist job included being physically present at the reception desk during business hours in order to greet and direct all visitors. During the time of her assignment as a receptionist at GE, Punt never worked a full 40-hour work week. She was absent on six occasions, late to work on three occasions and left work early on three occasions. In her absence, Kelly had to have another temporary employee take over the receptionist duties as well as her own responsibilities. Punt attributed her absences to her recent breast cancer diagnosis. When Punt informed both employers that she would not be able to come to work for a week and possibly longer due to her medical issues and potential surgery, GE asked Kelly to end Punt’s assignment, because she was not fulfilling the needs of the position. Kelly informed Punt of this decision, but Punt never asked Kelly if the agency could assign her to work with another employer. The court found that Punt’s request for accommodation in the form of at least a full week off was not reasonable because she was essentially asking to be relieved from an essential function of the receptionist position, being at work. Punt had also violated Kelly’s policy by not contacting Kelly to inform it that she was available for other assignments. The court explained that a reasonable accommodation is one that “presently, or in the near future,” will enable the employee to perform the essential functions of the job. An employee must inform the employer of the expected duration of the impairment, which Punt did not do. She essentially requested an ongoing leave of absence of unknown duration, which the court found was not reasonable under the facts regarding her assignment. In addition to the vague nature of Punt’s request for leave, the court focused on her unique role as a temporary receptionist. The court noted that the ability to report to work is especially critical for short-term assignment temporary employees. The court found that Punt’s request

The court explained that a reasonable accommodation is one that “presently, or in the near future,” will enable the employee to perform the essential functions of the job.

would have meant either letting the receptionist job sit vacant, or filling it with a “super-temporary employee” who would sporadically fill in. The court held that the ADA did not require such burdensome arrangements. The Punt/Kelly case does call into question whether a leave of absence is reasonable for a temporary employee, especially when an assignment was expected to be short-term and there was no one else readily available to fill in when the employee was absent. As can be seen, each situation involving a temporary employee who needs an accommodation to do a temporary job must be evaluated case-by-case. Variables affecting the outcome of what may be required under the ADA include the nature of the temporary assignment, its expected length, the number of individuals in such positions, reasonable accommodation(s) that may be available (identified through the interactive process and/or requested by the employee), and its impact on the client employers’ operations. Because the issues can be complex, it may be advisable to consult with legal counsel in such situations.

Jerome D. Pinn Member Wimberly Lawson Wright Daves & Jones, PLLC Knoxville, Tennessee office jpinn@wimberlylawson.com

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Looking for Talent?

Link in to Your Recruiting Advantages

In today's labor market, the individual worker wields more power as businesses face increasingly steep competition for the best talent in their industry. For smalland mediumsized businesses (SMBs), built-in recruitment advantages of the past — such as faster upward mobility and higher levels of employee visibility — are no longer enough to combat today's recruitment challenges. Recruitment strategies are becoming disproportionately important within the overall structure of modern organizations. There's just one big problem, according to a recent LinkedIn study of 21,000 global professionals interested in working at a small- or medium-sized business, a lot of these organizations are not fully utilizing their potential recruitment advantages.1 That's a shame since, as LinkedIn's analysis shows, many of the advantages that SMBs enjoy aren't necessarily expensive to implement. More than ever before, recruitment today requires real, human insight. Traditional recruiting strategies and SMBs According to LinkedIn's analysis, 87 percent of global professionals want to work for SMBs. That's an incredible level of opportunity, and this knowledge should embolden smaller organizations to work even harder to keep up with larger competitors. An overarching takeaway from the survey was that, if a SMB can get its pitch under the nose of job-seekers, its unique charms can help that business compete for top talent with some of the world's biggest players. The problem is that — simply by definition — SMBs are not as well-known as their larger counterparts. As a result, job seekers can't become applicants to your organization if they don't know that your company is hiring. Visibility is key Recruitment for small- and medium-sized business owners should start from within. By encouraging and even incentivizing current 20

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employees to become brand ambassadors, SMBs can cut through the oversaturated digital sphere and land quality candidates. Referral incentive programs are one common approach. You can also get meaningful returns from simply making it clear to workers that they’re an important part of the recruiting machine and the success of the business overall. Eventually, you can then leverage that involvement by connecting interested job-seekers with current employees, for a particularly powerful cultural impact. According to LinkedIn's survey, 48 percent of workers who were hired at a SMB hadn't heard of the company itself upon first finding the job. This means that difficulty finding the best workers can't be chalked up to any widespread bias against small or little-known brands. It also indicates that it's very worthwhile to invest in enhanced visibility. This means that an organization's social profiles and web presence need to be groomed and updated on a regular basis to ensure the most relevant information is readily available and easily communicated to prospective employees. You don't want to miss the chance to pitch to the masses of workers who, statistically, will be open to considering the right offer from your organization — if they only knew about you. As a social network, LinkedIn is perfectly positioned to look into the best ways of getting such a message out. What they found was that, while recruitment firms and job-posting websites do lead to a significant number of SMB hires (14 and 13 percent of new SMB hires, respectively), it's really the "friends and family network" that most determines success. Nearly a quarter of respondents — 23 percent — said they got their job at an SMB through someone they knew. Show and tell your applicants about your culture Once potential employees are considering a position, it's important to make sure they’re given precisely the information they most want to know. Therefore, it's essential to understand not just what your ideal applicant wants, but who they are, so you can begin to figure out how best to appeal to them. That means understanding the people you're taking on board, both through existing resources and more proactive efforts. For example, by working with outsourced recruitment experts, it's possible to get statistical-level insight into both current and prospective workers. These partners are able to use their wealth of recruitment expertise and data about applicants across industries to build out prospective employee profiles and better understand the needs of your current workers.

LinkedIn reported that 66 percent of those surveyed wanted more clear communication about a SMB's culture and values. Just what a worker thinks constitutes "culture and values" varies widely, and can extend from working conditions to larger social stances. It's so important specifically because there's so little standard. Workers can infer a lot from where a company chooses to focus in these crucial communications. So don't miss every opportunity to showcase what it is that makes your organization unique, and not just someplace else with an employee friendly "culture." Another 55 percent of respondents said that their early education about a business should pertain to its perks and benefits structure, while 50 percent wanted information on a firm's mission and vision. As one respondent said: "Give a realistic day in the life of a person in that job." Remember that people are making deeply personal decisions that will affect everything about their lives. Your business needs to ensure that you don't become so obsessed with trying to wow an applicant with generic verbiage that you leave them without a concrete understanding of the job (or your company). Developing effective recruiting strategies will need to become an ongoing process — one that doesn't begin just when a new position opens up. Potential candidates should be educated about your company and its values on a continuous basis. This way, they’re more likely to have a base of familiarity when they hear about the right opportunity to join your company. Your best applicants aren't yet applicants, so help them discover what you do as soon as possible to get them interested. Finding the right talent is only going to get more difficult, so organizations must prioritize the allocation of resources required to get the job done. The overwhelming majority of workers today actively want to join your SMB operation. The trick your organization needs to master is figuring out the best way to help them do it. ADP has you covered Topline talent is very interested in working for small- and medium-sized businesses. But whether you have five employees or 300, having the right strategy in place to get the word out remains central to success. ADP's HR outsourcing solutions can help you do just that, and more. From tailor-made recruitment plans to strategic communication initiatives, ADP has the expertise you need to lock down your industry's best and brightest. 1 LinkedIn, Talent Trends for Small to Mid-Sized Businesses: Data on How Candidates Want to Be Treated, 2016.

– Emily, Solar Wrangler

“You found the right employee. I found a purpose.” Finding that perfect fit for a job isn’t easy, but it’s the key to building a successful team. See how insight-driven recruiting and smart talent management solutions from ADP can help your business find the perfect person for the job. Visit adp.com/hellotalent to see how we can streamline your business’s talent management and make work larger than a paycheck. ADP, the ADP logo and ADP A More Human Resource are registered trademarks of ADP, LLC. Copyright © 2018 ADP, LLC.

Healthcare Screening and Monitoring 101:

Whether your hospital, rehab facility, doctor or dentist office, or retirement center has a long-standing screening program, or if you are developing one from the bottom up, there are 5 things to know about healthcare employee screening and monitoring.

5 Things HR Pros Need to Know

By STEWART GOTT

Respect the consequences of non-compliance. Healthcare HR professionals need to always keep compliance in the forefront of their minds and weave it into every aspect of the policy. Two main pieces of this are: Fines: As mentioned above, failing to follow federal guidelines on healthcare hiring and monitoring can rack up enormous penalties. Expired licenses that go unchecked or employing a person who has been placed on an exclusion list can incur fines that are potentially crippling to absorb. Lawsuits: Litigation is rampant in general, and employment lawsuits specifically are boiling over. If a patient is injured or dies because of a healthcare worker that is not licensed or who should otherwise not be working in the field, the healthcare institution could very well find themselves on the end of a costly lawsuit.

HR professionals understand the importance of hiring well-qualified people who contribute to a safe, productive workplace. Those who work in the healthcare field face even more challenges in this area. For one, their employees are frequently responsible for a patient's life or death. In other industries, an employee's mistake may result in a customer not receiving their shipment on time or being on hold for too long. A healthcare employee can literally cause permanent physical harm to patients through ineptitude, carelessness, or willfulness. Secondly, the healthcare industry faces much more regulation than the average sector. The Office of Inspector General (OIG) can levy fines for non-compliance that add up to major costs for a healthcare organization. Simply running a background check before hiring a healthcare employee won't protect the company from these fines. This environment makes it critical for healthcare HR professionals to invest time in creating a policy for conducting an effective healthcare hiring and monitoring policy on applicants and employees that is thorough and compliant to meet all regulations. 22

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So, with the consequences of non-compliance firmly accepted, HR should...

Avoid only thinking about pre-employment screening. A comprehensive background check on applicants who are applying to work in a healthcare facility is essential. But it doesn't end there. An ongoing monitoring plan helps minimize the event of an expired license, sanction, or drug use becoming an issue in the workplace. With fines adding up every day for missing these issues, and the fact they open the facility up to costly negligent lawsuits, HR must....

Craft a beginning-to-end employee monitoring strategy. Along with recruiting and interviewing qualified applicants, healthcare HR pros need to formulate a screening process so they decrease the risk of a person who would do harm to the patients they serve, or the organization's reputation, making it on the employee roster. After that, HR needs to set an ongoing monitoring process in place, in writing, detailing what will be required of each applicant and employee, along with when and how. This policy needs to be easy to under-

stand both by the hiring and department managers as well as the employees and followed consistently. All of this takes knowledge and a deep understanding of background checks and ways to monitor current employees. That's why HR needs to make sure they...

Choose a vendor partner experienced in healthcare screening and monitoring. Going with the cheapest background screening provider is not the best way to protect the workplace and insulate a healthcare organization from the threat of fines and litigation. HR should speak with several vendors and ask them specifically about the products they offer that can help build a total pre-and post-hiring solution. Request references from other healthcare clients and make certain there is proper customer support in place. A reputable background screening provider will be instrumental in the success of the long-range plan. Taking care of the details is important, but while all the screening and monitoring is progressing...

Don't forget the importance of the candidate experience. Finally, HR must remember that, while this in-depth screening and monitoring is necessary, it must be handled delicately. Callously demanding applicants be screened can make them feel like criminals, which turns honest, well-qualified job seekers off. Train hiring managers and other employees involved in the onboarding and monitoring process to explain the process and the reasons behind it. The candidate experience doesn't have to be ruined by a solid process that protects the company from fines and litigation. Hiring for healthcare positions while staying in compliance and promoting a positive candidate experience can feel like walking a tightrope. By crafting a thoughtful, thorough plan of action and working with a background screening company that functions as a valuable vendor partner, HR pros can balance both sides successfully.

Stewart Gott National Account Executive sgott@datafacts.com www.datafacts.com

Research Shows That: 79% of job seekers use social media in their job search, so you need a strong social strategy if you expect to land the talent you want. By 2020, at least 55% of the workforce will be Millennial, so you should understand what unique qualities they look for in a position. Employers on average spend $4,000 to fill an open position, so you need to make sure the hires you place are set up to last.

VISIT RECRUITCON.BLR.COM TO REGISTER TODAY Recruiting is changing and businesses are hard pressed to keep up. While the potential for landing star candidates is high, so is the competition. RecruitCon 2018 showcases today’s best practices for supercharging acquisition efforts, new technologies to streamline recruiting, effective analytics trends to support employers’ evidence-based talent decisions, and so much more. Join us for this 2-day accredited conference along with the nation’s top talent acquisition and recruiting experts.

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You’ll learn: • How you can leverage algorithms over resumes to find the best match for your organization • What unique benefits top companies are rolling out to attract (and keep) great talent • How to prepare for the legal and managerial challenges of the ‘Human Cloud’—a more temporary and mobile workforce • How to build a recruiting operating system that really scales • How compliance risks impact talent acquisition policies • How to ramp up your recruiting initiatives on a budget • How to integrate video interviewing to completely revolutionize your hiring process • And more!

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10/23/17 12:24 PM

Wellness Programs: What is the return? Are we asking the right questions? By AUSTIN BAKER

Engagement is two-way street so perhaps we should be looking at the disconnect and how to close the divide. According to research from leading global advisory, brokering, and solutions company Willis Towers Watson, a majority of employers (56%) believe their wellbeing programs have encouraged employees to live a healthier lifestyle. Only 32% of employees agree. Employees in poor health are twice as likely to be disengaged at work and take almost three times as many days off as employees who are in very good health. The research shows employers have been using programs with significant financial incentives and believe employees are on board with this approach as 54% of employees say their employers should financially reward them for living a healthy lifestyle. Are we using the right metrics? We all know about ROI, but is Value on Investment (VOI) a better way to supplement the measure of outcomes? WellSteps, a wellness vendor, says that a VOI includes the following elements: Reduce employee health risks Improve employee job satisfaction Improve employee productivity Improve employee morale Attract or retain talented employees Improve employee energy levels at work Increase on-the-job safety Impact business performance and profitability

One of my mentors; Bobb Biehl once said to me, “If you ask profound questions, you’ll get profound answers. If you ask shallow questions, you’ll get shallow answers. And if you ask no questions, you’ll get no answers at all.” As our team started searching for wellness resources, we found ourselves pondering this paradox, as so many companies are looking for the right answers or solutions for their employees. But are we really asking the right questions? Some background in the research includes the following revelations: • Corporate wellness programs are nearly an $8 billion industry in the United States alone, and the segment is expected to grow another 7.8 percent by 2021. Globally, it’s a $40 billion industry. • Worker illness and injuries cost U.S. employers $225.8 billion annually, or $1,685 per employee. In addition, $1 trillion is lost due to unaddressed employee chronic disease each year, according to the Milken Institute. • A study by the University of Louisville found that every dollar invested in a wellness program generated $7 in healthcare savings. The study also revealed that changing certain behaviors decreased the average number of health risks among employees from 5 or more health risks to 0 to 3 risks. Perhaps we should be asking about the other factors that are related to workplace wellness and employee engagement. The International Foundation of Employee Benefit Plans survey also found that among employers offering and measuring wellness efforts, more than half saw a decrease in absenteeism, while 66 percent reported increased productivity and 67 percent said employees are more satisfied. 24

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Improve comradery and team effectiveness Reduce presenteeism Have fun Sally Pace, CEO of Connect Healthcare Collaboration, takes a more holistic approach to workplace wellness and our interview with her revealed a more comprehensive viewpoint and approach.

What is the best way to measure wellness programs? Sally Pace: “While most traditional wellness programs are designed to offer a broad lens for an entire population, a different approach can often drive a reduction in an employer’s healthcare spend, as well as more meaningful outcomes. 80 percent of benefits spend is generally driven by about 20 percent of employee population, and their needs are complex and unique.”

80 percent of benefits spend is generally driven by about 20 percent of employee population

How do we shift the mindset and behavior of employees to meet them where they are and put engaging solutions in front of them? Sally Pace: “This shift in mindset, a desire to reach that 20 percent, allows Connect Healthcare Collaboration to develop programs and solutions that are highly customized and tailored to the drivers within an entire insured population. They focus on both the physical and the social/ emotional. We all can appreciate that, if your accounting manager is dealing with the reality of her son’s drug addiction, asking her to participate in a steps challenge only scratches the surface of her health and well-being issues. Instead, companies can now look to build a bridge between what has traditionally been offered, and begin to implement programs with partners such as Connect that address the root causes of escalating benefits spend.”

We have been on this journey for a while, what is the next evolution in workplace wellness? Sally Pace: “For the past four decades, almost all of healthcare spending has gone toward what drives a small portion of the outcomes, stealing from what drives the vast majority of outcomes. Adopting the principles of the Health Rosetta and adhering to the standards of groups such as Intel’s Validation Institute, Connect aligns employers with an accurate mix of solutions to address physical environment, social and economic factors, health behaviors, and clinical care in the wellness programs they structure. This is in contrast to the decades of focus on clinical medical services alone.”

Putting it all together A focus on the right questions for our own workplaces will reveal different solutions based on employee demographics, the nature of the work and workplace culture. What questions should we be asking ourselves to help us arrive at the right solutions that will drive the returns that are more than measurable on spreadsheets? What questions can your company ask to drive better wellness outcomes for your employees and drive down medical spend at the same time?

About the Author Austin Baker is the President of HRO Partners, a human resources consulting and benefit administration and enrollment firm as well as a National Enrollment Partner Member representing the largest boutique, full service insurance and enrollment firms in the country. A veteran of more than 16 years in the human resources industry insurance and benefits industry, Baker is responsible for managing a multi-faceted human resources consulting company with public workforce programs and services focused on companies in the southeastern United States. Austin is a frequent speaker on a variety of leadership and benefit topics representing thought leadership and innovative practices in the HR industry. For more information, call Baker at 1-866-822-0123, visit www. hro-partners.com or connect with the company at www.facebook.com/hropartners, http://www. linkedin.com/in/jaustinbaker or http://twitter. com/jaustinbaker hropartners

jaustinbaker

@jaustinbaker

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HR Practitioners as ‘Strategic Asset Decision Makers’: Not a Business Partner, but ‘Part of the Business’ By KIM LAFEVOR

As HR professionals we are called upon to make important decisions every day. We know that measurement and data-driven decision making are key components to organizational effectiveness and provide business intelligence for providing our organizations a competitive advantage. Serving an interdependent relationship with all other business operations, HR transactional, operational, and strategic decisions are within the DNA of the firm’s balanced scorecard. These operational and strategic business targets and identified initiatives are not separate from the business, but operate within the business and a part of the business. To affirm this point, Johnny C. Taylor, Jr., President for the Society for Human Resource Management (SHRM), noted recently at the 2018 Employment Law & Legislative Conference in Washington DC to a broad group of HR practitioners from across the United States, “we’re not a business partner, we’re part of the business.” There are several areas of HRM practice identified that reveal discrepancies between actuarial predictions and HRM decisions and related application: 1) recruitment, 2) staffing, 3) performance management, and 4) compensation. As evidence of this premise, one contemporary survey of human resource practices found notable differences between identified strategic practices to meet desired organizational outcomes versus chosen HRM implemented practices. Each of these are outlined below, as well as a presented discussion on the relevance of effective HR decision making, the emerging constraints that interfere with sound HR decision making and suggested countermeasures. To begin, as prudent HR practitioners, we know that recruitment provides a key strategic advantage to ensure that the right talent is hired for an optimal job-person fit. Based on this premise, we need to be assured that our recruitment and hiring practices yield the talent that will provide the organization with the necessary KSAOs for a competitive advantage. However, while we know this and that quantitative analysis of recruitment source using yield ratios can make our recruitment strategies more efficient, less than 15% of employers utilize/calculate yield ratios and those that know how are limited to an alarming 28% of practitioners. In the staffing process, we also know there is empirical evidence that demonstrates direct HRM practices that can reduce turnover. For example, realistic job previews provide an applicant with an objective review and exposure to the job in which they are applying before accepting any job offer and is known to reduce turnover, yet less than 20% of companies are using realistic job previews (RJPs) in high turnover positions. Since we know that on average the associated costs of attrition can be 6-9 months of a job incumbents salary, this can mean a substantive cost to the organization. Weighted application blanks (WABs), which direct emphasis on applicant KSAOs that are most important to job position, have also been found to reduce employee turnover. Yet, less than 35% of HR practitioners are familiar with WABs and less than 5% of organizations use them. HR practitioners can be best guided through the deployment of actuarial models of prediction in the recruitment and selection process based on known success factors in employment. Yet, less than 5% of companies utilize actuarial prediction. Central to effective Human Capital Management Strategy (HCMS) is a well-managed Performance Management Process (PMP). Within the framework of a well-outlined HCMS is a performance evaluation process that focuses on outcomes and deliverables, or Key Performance Indicators (KPIs) as a quantifiable measure to evaluate the success of an employee and his business unit or team’s performance. Although we know this to be true, more than 60% of organizations still employ subjective, trait-based performance evaluations on their rating scales. While we know that training raters for accuracy in objective performance evaluation and risks of observation bias can significantly improve the validity and reliability of the performance evaluation process, less than 30% of organizations provide formal training to raters. To add to the conundrum, we know that managers who evaluate the performance of their direct reports play a crucial role in ensuring these practices are effective, yet less than 35% of managers are evaluated themselves on their performance related to performance evaluation. Compensation is also a strategic decision. It contributes to our ability or inability to attract the best talent for our organizations, retain needed talent, and provide incentives that drive sustained performance. Compensation research suggests that traditional administration of merit-based pay systems are fundamentally flawed. While such evidence points to the avoidance of linking merit-based systems 26

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into an employee’s base salary, more than 75% of companies do so. Comparatively, gainsharing is suggested to show great promise as an effective pay-for-performance compensation system, yet less than 5% of organizations employ it. Based on reasons to include those for which we have already identified, there continues to be an increasing amount of emerging evidence that contends that progressive HR practices have a direct and significant effect on organizational performance. As we have already clearly established, HR practitioners are ‘within the business’ and make decisions as ‘part of the business.’ Therefore, are there occasions in which there ever a delta between what we know and what we decide? Since our chosen strategies represent an integrated and coordinated set of commitments and actions to facilitate and build upon an organization’s core competencies, it offers an opportunity for organizations to enjoy a competitive advantage over their rivals. In a recent study, it was concluded that HR decision making linkages to organizational strategy had some specific linkages: 1. Business cost reduction strategies are aligned with the utilization of effective HRM strategies 2. Business innovation strategies are aligned through the facilitation of HRM strategies 3. Business quality-enhancement strategies are positively related with the application of HRM strategy HR decisions must demonstrate support for creating a culture of accountability. Human capital can provide a major source of strategic agility and innovation, however the Board of Directors and the organization’s managers must be thoughtful about decision making that fosters an effective Human Capital Management Strategy (HCMS). Many HR practitioners do effectively employ actuarial, evidence-based decision making. However, as presented in the framework of this article, there continues to be a gap in knowing and doing that persists in many organizations. Why is this so? The answer includes the following four primary categories:

1.Traditional versus Modern Views of HRM The field of Human Resource Management has experienced a tremendous evolution in disciplinary practice over the past two centuries. If we use a well-accepted definition of HRM that covers all employment relationships and situational contexts, the historical framework of HRM traces back to include the time period and early beginnings of civilization when the Egyptian Pharaohs and Chinese Emperors directed thousands of laborers in the building of the Great Pyramid and Great Wall, respectively. With these early beginnings of human resource practices emerged an evolving discipline which has transitioned from a traditional view treating

employees as a commodity within a market to today’s generally accepted philosophy that embraces a system of people management that is guided by informed decision making.

2. Flawed Organizational Strategies When organizational strategic and operational goals are not the right ones to move an organization forward and compete effectively in its market space, integrated and supporting HR decisions, even when well executed, leads to limited success.

3. Lack of HR Competencies and Knowledge While many HR practitioners have adequate knowledge and understanding of HR actuarial knowledge to adequately understand and apply in making effective decisions in support of Human Capital Management Strategy, there remains some who lack the preparation, guidance and training.

4. B oard’s Limited/Absent Use of HR Practitioners in Organizational Decision Making Oftentimes, an organization’s Board of Directors turns to HR to assist with executive compensation and succession planning. When this is the case, it is a clear indication that HR practitioners have only a part-time seat at the table and not integrated into the business as part of the business. If the aforementioned limitations can be mitigated, HR practitioners can truly operate and function as ‘part of the business.’ If this desired state can be achieved, what would be aims related to HR decision making? The answer suggests that effective HR Decision Making required an integrated performance management focus on the following:

 Decision making that works in tandem with other systems within and on behalf of the organization  Communicating these integrated approaches and practices to provide employees with a clear and consistent message  Providing important measures of accountability (i.e. KPIs)  Establishment of HR Policies that support the organization’s culture, mission, and business plan  Institution of Proper Appraisals/Performance Feedback Loop  Institution of Rewards for Important and Exceptional Contributions (and reinforcement), as appropriate  Promotion and Succession Planning, based on merit  Actively engaging/involving employer stakeholders in key organizational decisions The role of HR practitioners have proven to be dynamic and increasingly engaging in managing business operations. The expertise of HR professionals with Human Capital Management Strategy makes them an essential resource in being ‘part of the business’ and making decisions. However, to achieve the best possible decision making, HR practitioners must be integrated as an interdependent part of the business, equipped with the competencies needed for operational and strategic navigation, and have a clearly identified organizational direction through soundly guided strategic business plans. After all, HR practitioner are ‘not a partner,’ but a meaningful ‘part of the business.’

Dr. Kim LaFevor, DBA, SHRM-SCP, SPHR Dean, College of Business Athens State University General Motors Labor Relations (ret) kim.lafevor@athens.edu

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The Unintended Consequences of Maternity Leave By JANIE WARNER

are hearing more and more about a push for companies to provide paid family medical leave. In fact, the Tax Cuts & Jobs Act passed in the fall of 2017 provides companies a tax credit for providing paid leave to employees below a certain salary threshold.

One particular area of leave has prompted several states to institute a requirement of employers to provide paid pregnancy leave. Hailed as a great step forward in providing economic protections for women, we now see there may be an unintended consequence – inadvertent discrimination. The Pregnancy Discrimination Act (PDA) was passed in 1978 as an amendment to the Civil Rights Act of 1964. The PDA not only added protections to women while they were pregnant and following childbirth, but also to women seeking medical treatment in order to become pregnant. These protections prohibit employers from using any aspect of pregnancy as a reason to discriminate in regards to hiring, paying, retaining or promoting an employee. But is a company policy allowing paid or unpaid maternity leave actually discriminatory on its face against certain employees? 1. A Maternity Leave policy only protects women. Therefore, it is presumed that men are excluded. Technically, transgendered women could be excluded as well, depending on how the policy is worded. Discrimination based on gender is presumed. 2. A Maternity Leave policy protects women of child-bearing age. All women beyond child bearing age are excluded. No additional time to take care of any other reproductive organ issues. So, discrimination based on age is implied. 3. A Maternity Leave policy protects women of child-bearing age who can actually become pregnant. A woman who, for whatever reason, is unable to become pregnant does not have the same protection. Therefore, discrimination based on a disability is evident. 4. A Maternity Leave policy often provides paid leave (sometimes because of state or local laws) during periods of incapacity for any pregnancy-related issue. It is as if to say that because an employee was able to get pregnant, they deserve pay that other employees with illnesses or injuries do not. 30

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While most employers want to provide some additional benefits to mothers, they also want to treat all other employees equitably. How can that be done? First of all, remember that employers are always allowed to provide better treatment to employees than federal or state laws require. Therefore, if a state has a paid maternity leave law, an employer may choose to extend that to other employees at their discretion. While the employer may have concerns over the cost of such a program, because it would be a discretionary benefit, parameters could be set for what types of medical leaves would be eligible for the paid time. Secondly, an employer can change a Maternity Leave to a Paternal Leave – or even better, just a Leave of Absence (other than Family Medical Leave). This policy can provide the protections needed for women who are trying to conceive or become pregnant as well as any other employee who presents with an issue that affects his/her work/life balance. Figuring out how to balance the needs of a diverse workforce with the needs of the business is paramount in the current economy. When unemployment is low, the demand for quality employees increases. It becomes even more imperative to find ways to show that every individual is valued – not just those who become pregnant. Insurance products available to cover shortand long-term disabilities are a good way for companies to shift the risk of the costs for any medically necessitated leaves. Exploring those with a qualified insurance broker is the best way to determine which products best meet the needs of the company. Lastly, the best companies to work for are those that constantly challenge themselves to be better. Looking at their employees as their characteristics (age, race, ethnicity, gender, pregnant, etc.) essentially labels them. When organizations recognize the PERSON first, discrimination is far less likely to be the outcome. Treating everyone equitably and with respect, dignity and fairness goes a long way in making a company an “employer of choice”. Let’s start there.

Janie Warner Senior Consultant Regions Insurance, Inc. Janie.Warner@Regions.com

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Avoiding Liability When Providing References By DAVEANTE JONES

roviding references can be a very tricky practice. References play a critical part in the applicant selection process for prospective employers. A reference containing the wrong information, however, can lead to an employer being liable to the former employee or prospective employer. In

addition, employers have to be wary of states’ laws on what information

As long as the employer discloses the information listed, it is presumed to be acting in good faith and immune from civil liability for the disclosure or any consequences of disclosure. If the information disclosed was false, and the employer had knowledge of its falsity or acted with malice or reckless disregard for the truth, however, the employer loses immunity.

they can disclose about a former employee when providing a reference.

State Law on Providing References The majority of states have laws regarding employers’ rights when providing references. Some of the things these laws include are: (a) the requirement that employers gain consent before disclosing information about a former employee to a prospective employer, (b) the types of information that employers can disclose about the former employee (sometimes allowing more information to be disclosed to childcare and healthcare employees), (c) the parties who may request information about a former employee from an employer and (d) potential immunity from liability. For example, in order to potentially qualify for immunity from civil liability, Arkansas requires that employers obtain written consent from the former employee before disclosing information about the former employee’s job history to a prospective employer, unless the employer and prospective employer are school districts. The prospective employer has to receive consent from the employee either in the application form in bold letters and in larger typeface than the largest typeface in the text of the application form or in a separate form from the application. That consent should then be forwarded to the former employer. The former employer, however, is not required to disclose employment history to a prospective employer. Employers in Arkansas are allowed to disclose information about former employees such as: (a) date and duration of employment, (b) current pay rate and wage history, (c) job description and duties, (d) the last written performance evaluation prepared prior to the date of the prospective employer’s request, (e) attendance information, (f ) results of drug or alcohol tests administered within one year prior to the prospective employer’s request, (g) threats of violence, harassing acts or threatening behavior related to the workplace or directed at another employee, (h) whether the former employee was voluntarily or involuntarily separated from employment and the reasons for the separation and (i) whether the former employee is eligible for rehire. A school district employer may also disclose to a prospective school district employer any additional information that may have some bearing upon the hiring of the former employee. 32

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Liability to Former Employee Providing false information about a former employee can open employers up to liability in many ways. The most obvious avenue for potential liability is defamation. Being that the employer is providing the false information to a third party and the dissemination of that information is surely to cause the employee damages in not being able to obtain employment, the situation provides the perfect ingredients for a defamation claim. On the same note, it can also open employers up to potential tortious interference claims because of the interference with the former employee obtaining employment. Employers also open themselves up to potential retaliation claims. For example, Title VII’s protections extend to former employees as well as current employees. Therefore, providing negative references on former employees who may have made a claim of discrimination or harassment, or who have participated in an investigation, can be fraught with danger.

Liability to Prospective Employer Just as providing false information about a former employee can lead to potential liability to the former employee, providing false or misleading information about a former employee to a prospective employer can open up a former employer to liability to the prospective employer.

For example, in Kadlec Medical Center v. Lakeview Anesthesia Associates, a Louisiana anesthesia services provider provided referral letters that contained glowing reviews and did not disclose an anesthesiologist’s past negligence and drug addiction while working there. While working for his next employer, a Washington hospital, the anesthesiologist’s negligence while under the influence of drugs led to a hospital patient being left in a permanent vegetative state. The hospital was found responsible for the anesthesiologist’s conduct and eventually settled with the patient’s family; the hospital then sued the anesthesia services provider for misrepresenting the anesthesiologist’s work history. The Fifth Circuit Court of Appeals found that the anesthesia services provider’s misrepresentation about the anesthesiologist’s drug issues in its referral letters injured the hospital based on the patient accident and settlement because of the anesthesiologist’s negligence while under the influence of drugs. In Randi W. v. Muroc Joint Unified School District, a number of school districts provided letters of recommendation containing unreserved and unconditional praise for a former employee, despite their knowledge of complaints and charges of the former employee’s sexual misconduct with students. The employee was eventually hired by another school district based on the recommendations. While working for the new school district, however, the employee sexually assaulted a student. The student and her family sued all of the parties involved and the school districts that provided the recommendations were found liable by the California Supreme Court for misrepresenting the employee’s work history.

Having a set reference policy in place can help avoid the potential for liability. Check your state’s laws to know what you can disclose without fear of liability. Establish a practice of written documentation when evaluating employee performance. Treat employees’ personnel records as confidential to deter negligent disclosures. Have all reference requests referred to one person who examines the employee’s personnel file and discusses the reference with those who are knowledgeable of the employee’s performance if needed. Avoid off the record references (especially by supervisors) and stick to written references. Keep the reference fact-based and do not provide false or unsubstantiated information. Finally, unless there are special circumstances, sticking to the dates of employment, position held and rates of pay is always the safest way to go.

Avoiding Liability When Providing References There are many things that can go wrong when providing references. That should not discourage employers from providing them—whether positive or negative—however. Information about an employee can be very critical to a prospective employer. In some situations, they are absolutely necessary. The Muroc case discussed above is the perfect example.

Daveante Jones Associate Attorney Wright Lindsey Jennings Dljones@wlj.com www.WLJ.com

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Leadership Success By CAMMIE SCOTT

Millennials today average four job changes before the age of 32. Many leave because “they don’t feel empowered”. The ability to cast a vision and empower employees to achieve organizational objectives are key functions of leadership. Leaders are failing to create a sense of loyalty and duty among employees. Everyone leads. Some are better at it than others. Some lead small teams while others lead large teams. Some don’t even recognize their position as a position of leadership. As an HR professional, you play a key role in the development and execution of company strategy. Here are 4 things you can do to increase your ability to lead in your field and your organization. 1. Do an Assessment – Set aside some time to assess where you are with your leadership skills. Do an inventory of your skills. What do you do well? What do you need to improve? What have you learned? What do you need to learn? There are hundreds of online tools you can access at no cost or for a small fee. Carefully select a few of your peers and ask them how you are doing as a leader. Look for peers who will be honest and help you grow. Remember not everyone wants to see you grow and succeed.

We are drowning in knowledge and thirsting for leadership. Leaders inspire people, cast a vision, and set the tone. They make things happen and ultimately move the world to action. Leaders drive themselves, companies, and the organizations they are a part of to success. They transform vision into reality. Leaders come in all shapes and sizes. Some have years of experience in a given field, while others are new to the scene bringing new ideas, new insights and new ways of doing business. Leaders inspire the people around them to do more, see more, seek more for themselves and their teams. They possess dazzling social skills, great emotional intelligence, insights into the pulse of the organization, and the ability to focus on the vision and the tasks that must be accomplished to move towards completion. As a professional, you must recognize your role as a leader and the crisis of leadership companies are facing. Forbes magazine reports that nearly one-third of employees don’t trust management. They don’t buy into the vision or trust the people in leadership to do the right thing. Distrust creates turnover and reduces retention rates, driving up operating costs.

Millennials today average four job changes before the age of 32. 34

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Think about the people who work under you. Ask for some feedback from them. You may be surprised at the gap in how you view yourself and how they view you. There may be things you think you are doing well and they do not or there may be things you think you are not proficient in performing that they think you do well. Seek out your boss or people above you and ask them how they view you as a leader. Let them know you want to grow your leadership skills and are asking for their help. Sometimes it is best to go to your direct boss and sometimes you will connect better with another person. 2. Develop a Plan – Take the information you obtain from your assessment and review it. Are there any consistencies? What about inconsistencies? Are you viewed the way you want to be viewed? Are you in the position you want to be in or do you desire to make a move? Based on the information received from the assessment think about these items: a. Where are you proficient? b. What skills are lacking? c. Are you where you want to be? If not, then where do you want to be? A goal is something you aim for and a plan is something you do. When you write down your dreams and desires they become goals. Goals become plans when you break them down into doable steps. Plans move you to action and action moves you to success. In the words of the great Yogi Berra, “If you don’t know where you are going you might end up someplace else.”

Focus on what makes you unique. What can you do that others can’t or don’t do well. In order to do this, you may need to let go of a few things. A trapeze artist must let go of where they are before they can go on to the new. In order to go on you must sometimes let go. It all begins in your mind. Thoughts are powerful. The mind, your mentality, exerts more influence than the physical world. A strong vision creates a definitive purpose. It inspires people to follow you.

Success is a habit. A habit is defined as an action you easily take over and over without thinking. In order to establish a new habit, you must do it over and over and over again. Know where you are in reaching your goals and if you need to redirect. An airplane is off course 90% of the time, but they arrive at their destination. You will get off course. Keeping the score and knowing the score puts you back on course.

We are all leaders whether we want to be or not.

3. Take Action – Organizations and people alike spend hours creating strategic plans only to put them on a shelf. Execution is key. Take action IMMEDIATELY. What can you do right now? Today? Even small steps still move you. What you do today determines the outcomes of tomorrow. Will Rogers says, “Even if you are on the right track you’ll get run over if you sit still”. Action propels you to the next step. An object or a person in motion tends to stay in motion. While an object or person at rest tends to stay at rest. Are you resting on the successes of yesterday or are you actively seeking the adventures of tomorrow? Make a conscious choice to go for more. You will have discipline or regret. There is no time like the present to take action. 4. Keep Score – Plans create faith and faith creates follow through. Keep score. Know where you are. Plan for re-evaluation at predetermined intervals.

We are all leaders whether we want to be or not. Often the hardest person to lead is ourselves. “Men are not prisoners of fate, but of their own mind.” Franklin Roosevelt. In order to grow your leadership skills, your life skills, you must make a conscious decision to grow and to change. You must determine where you want to go and how you plan to get there. Make a choice to go for more rather than merely protecting what you have. Knowledge is power, but the real power is in using it. In the words of the great philosopher Yoda to Luke Skywalker, “Try you mustn’t, do you must”. To find a new path, you must look in a new place. Take some time today to remember your history and discover your destiny.

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

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reporting back to you, letting you see how many employees have adopted the program and where they are along their path. Most programs will not give you specific employee data, as in who is doing what, you don’t want to know that anyway, but you do want to know if your employees are engaged and if they are using the program. Some financial wellness providers will also help by providing education material to distribute to employees to keep the program top of mind and encourage their continued participation long after the initial excitement (i.e. resolution) has faded away. By KELLY MAJDAN

Motivating Savings with Financial Wellness and Plan Design

Don’t want to be that involved? Then work with your record keeper to find out what type of education material they have regarding their program and how they might help you to roll the program out to your employees.

January through March are the peak motivation months. This is that special time of the year when people are eager to make positive strides toward physical, financial, professional, or personal goals. It also means that as we celebrate the arrival of Spring, resolution season has just about come to an end. On average, 42% of Americans make money-related resolutions. However, according to Statistic Brain’s 2017 “New Year’s Resolution Statistics”, in less than 6 months, half of the once dedicated forget about their goals. Which can pose real challenges for some to stick with any financial resolutions made in the first three months of the year, especially when it takes longer than 6 months to reach a meaningful savings goal.

Whether you implement a plan or not, encourage your employees to maintain an active list of financial goals. This will help them set a savings path and may help you to determine if a more focused financial wellness program or specific education topics are warranted.

How can you, as a plan sponsor, encourage the resolution momentum to continue and inspire your employees to save for retirement long after the resolution excitement has faded? The good news is there are ways to help employees stick with their financial resolution goals, you just need to decide which way you choose to do so. What follows are some suggestions on what to look for in a holistic financial wellness program, as well as plan design tips aimed at increasing participation and savings rates.

Plan Design

Financial Wellness Programs We’ve all heard the saying, “if you don’t know where you’re going, any road will get you there.” Unfortunately, many Americans do not have a financial plan, nor a roadmap, in place to achieve their financial goals. So, it is not surprising that the American Psychological Association found that 64% of Americans say that finances are their largest source of stress. As a retirement plan advisor, my job would be so much easier if every one of your employees were focused on saving for retirement; but the reality is, if they are financially stressed, retirement is the last thing on their minds. Depending on the age and financial situation of your workforce, top concerns may range from meeting monthly expenses, to paying off debt, saving for college, to caring for aging parents. It’s important to understand that saving is a lifelong journey and that each of your employees may be in a different spot along their path, what is difficult for many is keeping the act of saving constant as they encounter bumps and curves along the way. Implementing a financial wellness program is one way to encourage employees to either start on their financial journey or help them recover from some of the bumps they may have encountered along their path. These plans come in various shapes and sizes and can be very hands on or on demand by accessing the tools provided by your plan’s record keeper. When evaluating what a plan that is suitable for your employees, keep in mind how active you want to be with the program, how much money you want to spend and if you would like the program to be more interactive with your employees or more passive in nature. If you decide to implement a more active and hands on financial wellness program for your employees, look for a program that will be able to track employee usage and will provide 36

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Beyond the holistic efforts of financial wellness that address the financial hurdles your employees face, there are steps you can take from a plan level that can encourage positive savings habits. Automatic features such as auto-enrollment and auto-escalation are two plan design features that can help you pursue goals of increasing participation and deferral rates. Auto-enrollment is a plan design feature that gets new hires saving from the get-go. Vanguard’s research in “How America Saves” shows that plans with auto-enrollment have participation rates reaching up to 90%, whereas plans with voluntary enrollment fall short at an average of 63% participation. You may also consider adding features that enroll (or backsweep) workers who may not have been previously enrolled in your 401(k) plan. This sometimes is a more difficult hurdle to manage, but if your plan has low participation this might be one worth considering. Solving the participation problem is a great start, but you also want your employees to be saving at a rate that will have a more meaningful impact on their retirement savings. One way to help is by implementing an auto-escalation feature. According to

the PSCA 60th Annual Survey of Profit Sharing and 401(k) Plans, of the 36.4% of plans offering auto-enrollment about half also offer auto-escalation. The reason why this is so important is that studies have found that the average deferral rates are lower for plans that have adopted auto-enrollment without an auto-escalation feature vs. plans with voluntary enrollment. This stems from a lower starting rate for auto-enrollment plans, typically at 3%, and the fact that many employees once enrolled in their plan, rarely increase their deferral rate over time, even though they know they should. When implementing auto-enrollment (or re-enrollment) consider enrolling employees into the plan at a modest 5% or 6% savings rate, then increase the deferral by a set percentage each year until a more meaningful rate is reached. Optional formulas: Deferral Goal

Starting Deferral

Annual Increase

Years to Accomplish

10%

5 years

10%

2.5 years

15%

5 years

If auto-enrollment is not the path you choose, another way to encourage employees to save more is to stretch your match across a higher deferral percentage. Let’s say your match is 100% on the first 3%, consider 50% on the first 6% of salary deferred. By stretching your match across a higher deferral percentage, it encourages employees to do what they need to do and that is to save more. Implementing a stretch match with

an education program focused on auto-escalation can help employees wade into the savings water, rather than jumping into the high deferral percentage deep end. Ultimately, this helps employees reach their savings goals by saving more of their pay over time.

Plans with Impact Most employers know that good things happen when employees are financially sound, or at least have a path to get there. When employees feel like they are on solid financial ground they are healthier and happier, which means they are less likely to switch jobs and tend to be more engage when at work. Implementing any changes that can encourage financial wellness, whether it be through a financial wellness program or by plan design, will be seen as an added benefit by most employees, allowing employers to present a more appealing benefit package for recruiting, retaining, rewarding and eventually, retiring their employees.

Kelly Majdan, AIF, QPFC, CRPS Managing Director, AR & So. MO Strategic Retirement Partners www.srpretire.com Securities offered through Kestra Investment Services, LLC (Kestra IS), member FINRA/SIPC. Investment advisory services offered through Kestra Advisory Services, LLC (Kestra AS), an affiliate of Kestra IS. Strategic Retirement Partners is not affiliated with Kestra IS or Kestra AS. This information was developed as a general guide to educate plan sponsors and is not intended as authoritative guidance or tax/legal advice. Each plan has unique requirements and you should consult your attorney or tax advisor for guidance on your specific situation.

401(k) | 403(b) | 401(a) | Defined Benefit | ESOP | 457 | Executive benefits | HSA

3(21) and 3(38) Investment Consulting Fiduciary Governance and Education RFP and Benchmarking Participant Education Plan Design

SRP is a nationwide independent retirement plan consulting practice whose professionals advise employers and plan fiduciaries in the understanding and fulfillment of their responsibilities to the plan, participating employees, and beneficiaries. Our advisors currently consult on nearly 600 corporate and non-profit plans representing the retirement aspirations of tens of thousands of employees. It’s a huge responsibility – one that we wake to every day with a renewed and unparalleled commitment to excellence. As of January 1, 2018

The Boeing Company Case Marks a Return to Civility and Common Sense for Workplace Rules By MARTIN THOMPSON

December of 2017, the National Labor Relations Board (NLRB or the Board) issued its decision in The Boeing Company (Boeing), which overruled Lutheran Heritage Village-Livonia, to establish a new standard for evaluating the validity of employer rules, policies and handbook provisions under the National Labor Relations Act (NLRA or the Act). The 3-2 decision in Boeing, one of a few parting decisions involving Board Member Philip Miscimarra, contains a balancing test which considers the potential impact on NLRB rights of the rule(s) in questions and the employer’s reasons for the rule(s). The issue in Boeing was whether the mere maintenance of a facially neutral policy is unlawful under the Lutheran Heritage “reasonably construe” standard, which is known as prong one of the three-prong standard set in Lutheran Heritage. Under Lutheran Heritage, if a rule does not explicitly restrict activity protected by Section 7 of the NLRA, the violation is dependent upon a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. In Boeing, the administrative law judge ruled that the employer maintained a no-camera rule that employees could “reasonably construe” to interfere with the exercise of protected rights in Section 8(a) (1) of the NLRA. In making his findings, the judge disregarded any reason submitted by the company to support such a rule, including that it was required to have such a rule as a contractor to the federal government and for national security reasons. Upon appeal of Boeing to the Board, the NLRB first noted that the no-camera rule in issue was “facially neutral.” It did not explicitly restrict activity protected by Section 7 of the Act; it was not adopted in response to NLRA-protected activity; and it was not applied to restrict such activity. In effect, it did not violate the other standard and prongs set in Lutheran Heritage. So, the only basis for finding such a rule unlawful was due to prong one in the Lutheran Heritage “reasonably construe” test. This prong has been used to challenge the most basic work rules and has created much uncertainty for employers, unions, employees, as well as the Board and various courts. The Boeing case was intended to overcome several defects inherent with the test set forth in Lutheran Heritage. Knowing these corrective results can help employers fashion the justifications they will need to support any rules, policies or handbook provisions that may get called into question by the Board: 1.

From now on, under Boeing, the Board will not decide if a rule, policy or handbook provision violates NLRA protected rights without taking into account any legitimate justifications associated with the policies, rules or handbook provisions.

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Contrary to the impact of the “reasonably construe” test on handbooks, policies and rules, the Boeing test underscores that employees are best served by having employment policies, rules and handbooks, and that perfection in drafting is not always needed.

The Boeing test will permit the Board to recognize that some types of Section 7 activity may lie at the periphery of the NLRA, and it will afford greater protection to Section 7 activities which are central to the Act.

The Boeing test will permit the Board to differentiate, to a sufficient degree, between and among different industries and work settings, and to take into consideration specific events that may warrant a conclusion that particular justifications outweigh a potential future impact on some type of NLRAprotected activity.

The Boeing decision also noted that the prong-one test had invalidated many common-sense rules that most people would expect every employer to maintain. Such rules covered confidentiality, use of logos and trademarks, use of social media, etc., and were held to be unlawful. The Boeing Board stated it did not believe Congress intended the NLRA in 1935 to invalidate rules that require employees to “work harmoniously” or conduct themselves in a “positive and professional manner.” Yet, this is exactly what happened in at least one case set in a hospital that had a rule that nurses and doctors should foster “harmonious interactions and relationships.” The new test set by Boeing for evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, requires the NLRB to consider two things: (1) the nature and extent of the potential impact on NLRA rights, and (2) the legitimate justifications associated with the rule. Importantly, the Board added, “We emphasize that the Board will conduct this evaluation, consistent with the Board’s ‘duty to strike a proper balance between . . . asserted business justifications and the invasion of employee rights in light of the Act and its policy.’” Boeing also set up three categories of employment rules. Category 1 includes rules that the NLRB designates as lawful to maintain, either because (a) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (b) the potential adverse impact on protected rights is outweighed by justifications associated with the rules. Examples of Category 1 rules are the no-camera rule in Boeing,

the “harmonious interactions and relationships” rule mentioned above for a hospital, and other rules requiring employees to abide by basic standards of civility. The Board noted for Category 1 rules that, while their maintenance may be lawful, the application of such rules may violate the NLRA, depending on the facts of each case. Category 2 includes rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on such conduct is outweighed by legitimate justifications. Category 3 includes rules that the Board designates as unlawful to maintain because they would prohibit or limit NLRA rights, and the adverse impact is not outweighed by justifications for the rule, such as a rule prohibiting employees from discussing wages or benefits with one another. These categories represent a classification of results from the Board’s application of the new test; however, the categories are not part of the test itself. As the test is applied in future cases, it is expected that the Board will decide what types of additional rules fit into which category, and some rules may need to be moved from one category to another. However, such changes are not expected to occur frequently. Applying this new test to Boeing, the Board decided that the company lawfully maintained its no-camera rule that prohibited employees from using camera-enabled devices to capture images or video without a valid business purpose and an approved camera permit. The Board’s decision reasoned that although the rule potentially impacted the exercise of NLRA rights, the impact was slight and outweighed by important justifications like national security concerns.

Employers already appreciate this and other decisions coming from the current NLRB, as these cases indicate that the ‘rule of reason’ is coming back to the Board after being stifled for many years under the Obama-era. Now, under Boeing, companies have at least an opportunity to present a “justification” defense to the Board’s scrutiny of workplace rules. Where companies can show justifications for their rules that otherwise would have been considered unlawful under the “reasonably construe” test of Lutheran Heritage, such rules now have a fair chance of passing the balancing test set up in Boeing. This does not mean all rules can be justified. Boeing had some pretty solid reasons for its no-camera rule that most companies may not be able to present to support their rules. Here, the reasons for the rule were objective and were required by outside parties as an obligation. Obviously, the more subjective the reasons, the more scrutiny the Board may give to the rules in question. Additionally, the reasons may not rise to the same level of justification as rules imposed by third parties. So, employers should review their policies, rules and handbook provisions to consider if some of them should be revised or modified to better fit the Boeing test, should the justifications ever need to be presented. At least now the Board will consider these reasons, and that makes the balancing test of Boeing more acceptable and workable for employers and employees. In Boeing, Board Chairman Philip Miscimarra was joined by Board Members Marvin Kaplan and William Emmanuel in the majority opinion; Members Mark Gaston and Lauren McFerran dissented in the opinion.

Martin Thompson, Attorney Fisher Phillips mthompson@fisherphillips.com www.fisherphillips.com

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Structure and Layout

Talent Wins! The New Playbook for Putting People First By WILLIAM CARMICHAEL

“What is the key to the future of your company? Better yet, who is the key to the future of your company, and what are you doing to unleash his or her potential?” These two direct questions begin the introduction of a most remarkable book that, in my opinion, will forever change the way you look at talent recruitment, talent management and the development of talent within your organization. Simply put, it will be worth the short time it will take you to read it . . . period! Talent Wins: The New Playbook for Putting People First by Ram Charan, Dominic Barton and Dennis Carey pushes the HR talent paradigm in such a way that it will challenge any forward-thinking executive to rethink their current strategy. It provides, as our authors so aptly state, “radical advice for reinventing talent and the HR process.” Talent Wins is nothing short of brilliant and very well may be a game changer for those responsible for human capital.

Why Does the Talent Paradigm need to Change? I am reminded of a time when HR rarely had a seat at the leadership table, much less being asked to provide input on organizational strategy. Not so today. HR is becoming more and more a force to be reckoned with and for good reason. HR knows who the players are, knows their strengths and weaknesses, and perhaps most importantly, is coming to understand the business side of it all. Yet organizations are reluctant to change traditional thinking. I venture to say that most executives today do recognize the competitive advantage of human capital and yet the talent practices their organizations use are stuck in the twentieth century. Let’s face it. Many organizations, large and small, still operate on a “if it ain’t broke, don’t fix it” mentality. Typical HR talent-planning processes (which are too expensive and take too long to implement) are designed for predictable environments, traditional ways of getting work done, and organizations where lines and boxes still define how people are managed. Am I saying that the HR process is broken? Absolutely not! But to be brutally honest, it has stagnated, and this is a dangerous position to be in for any organization trying to survive in a highly competitive environment where human capital is now the most critical asset an organization has. As work and organizations have become more fluid and business strategy is no longer planning years out but about sensing and seizing new opportunities, and adapting to a constantly changing environment, companies must deploy talent in new ways to remain competitive. Fundamentally written for CEOs and leaders across the organization, Talent Wins provides a fresh and much needed framework for transforming how companies acquire, manage, and deploy talent for today’s agile, digital, analytical, technologically driven strategic environment. It is not uncommon to hear the new catch phrase- that a company has “reinvented itself ”; a term used to describe an organization that has fundamentally changed before our eyes. And like it or not, changed so that it can better compete in the marketplace. Talent Wins addresses not just the need for organizational change but rather how it can reinvent itself via the HR domain. In this extrodinary work, the authors provide deep, expert insight and advice for what needs to change and how to change it. This book shows leaders how to bring the rigor that they apply to financial capital to their human capital thereby elevating HR to the same level as finance in their organizations. 40

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Mentioned earlier, Talent Wins is not long. 167 pages to be exact. It also is not linear by design as each chapter could essentially stand on its own. But readers will benefit most by starting at the beginning and for good reason. Its Seven Chapters are written as a “Talent Playbook” where the authors have laid out strategy for needed change and perhaps more importantly, exactly how to implement it. Chapter One, for example, identifies three steps every CEO needs to take to effect a talent-first transformation. Chapter Two takes you through the four steps needed to ensure that your organization’s board of directors is aligned with and is supportive of your effort to have talent drive strategy. In other words, these first two chapters are about aligning the top of your company, your CHRO and CFO. In Chapter Three, the authors show how to create a more horizontal, flexible structure that connects and multiplies talent while Chapter Four tackles a second organizational imperative; how to radically reinvent HR. This one was one of my favorites! Chapter Five takes a bit of a turn by emphasizing a move from the organization to the individual. Here it provides a “road map” for continuously scaling up people’s talent in rewarding and productive ways. Chapter Six reviews what it takes to create a Merger & Acquisition strategy for talent, so that you can find, attract, and successfully integrate talented people from the outside, or as the authors would prefer, using one’s peripheral vision for the good of the organization. And finally, Chapter Seven is about us. Those in HR leadership who need to be completely tuned-in to the vision of the company and its direction into the future. Suffice it to say, I enjoyed this book immensely and you will too! Who Will Benefit Most from This Book? CEOs, CFOs, Senior Human Resource Professionals and organizational leaders. ABOUT THE AUTHORS: Ram Charan is an expert on corporate governance. Dominic Barton is the global managing partner of McKinsey & Company. Dennis Carey is Vice Chairman of Korn Ferry, where he recruits board directors, CEOs, and their direct reports.

William Carmichael, Ed.D Professor | Strayer University william.carmichael@strayer.edu www.strayer.edu

the foundation on which SumTotal built the Suite for an unparalleled, holistic and mobile-first approach to optimizing the capabilities of a workforce. Unifying information and actions from across the Suite— even from third-party systems—makes access to critical development and people insight more straightforward, reliable and actionable than ever. Core Platform includes:

SumTotal Systems Helps Organizations Develop Productive Talent and Build the Right Leaders to Achieve Success This month we are highlighting SumTotal Systems, a Skillsoft Group company. SumTotal provides the world’s only unified and native Human Capital Management (HCM) solution that connects the critical capabilities HR organizations need to recruit, engage, develop and reward their workforce. With roots in learning management, SumTotal’s award-winning Talent Expansion Suite also includes solutions for talent management, talent acquisition, workforce management, and HR management. These solutions leverage the SumTotal Core Platform, which allows every role in an organization, from individual contributors to managers and leaders, to access actionable insight and critical tasks with an engaging and flexible system that people naturally use every day. SumTotal’s content aggregation approach across custom, Skillsoft, and 3rd party content (Udacity, Harvard Business, etc.), as well as machine-learning algorithms and artificial intelligence, are built into its platform to improve searching, matching and coaching recommendations. Learning recommendations and mobile and social capabilities offer pervasive and unified information making access to critical development and people insight straightforward, reliable and actionable. The SumTotal Talent Expansion Suite encompasses the following solutions: • Core Platform makes it simple for every role in an organization, from individual contributors to managers and leaders, to access actionable insight and critical tasks with an engaging and flexible system that people naturally use every day, uniting talent acquisition, learning, talent, workforce, and HR management. Core Platform is 42

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o Employee Profile & Organization Charting o Career & Development Planning o Social & Gamification o Native Mobile App for iOS, Android and Windows o Reporting & Analytics • Talent Acquisition streamlines the hiring lifecycle from talent needs to onboarding. By combining easy-to-use tools such as career sites, social recruiting, requisition workspaces, new hire portals, asset libraries and more for candidates, employees, and managers, Talent Acquisition offers a powerful and streamlined administrative experience for recruiters and human resources. Talent Acquisition includes: o Recruiting o Onboarding • Learning Management provides a robust learning delivery solution that connects people to the precise activity and content they need, where and when they need it. A configurable Learner Dashboard makes it easy for learners to prioritize areas of development and keep on top of their learning plan and progress. With delivered, pre-configured widgets learners can quickly change the view to suit their evolving interests or priorities. Customers can create and support simple-to-complex learning delivery needs, including blended learning programs that keep learners engaged. Mobile capabilities enable learners to receive notifications on their devices or consume courses and content even when they’re not in the office. Learning Management includes: o Training & Compliance o Content Aggregation o Extended Enterprise o Growth Edition • Talent Management offers intuitive and personalized tools that engage employees in pursuing their self-directed paths for development and career growth while ensuring their efforts align with the goals and business demands of their teams and the broader organization. Managers leverage tools such as Resumes for a comprehensive view of their employees and can mentor their employees with Career Plans to explore and

grow competencies and coach career mobility by addressing gaps. Talent Management cultivates effective managers and leaders, boosts employee capabilities and loyalty, and connects every role in an organization to development opportunities. Talent Management includes: o Performance Management o 360 Feedback o Compensation Management o Succession Planning • Workforce Management is designed to protect and grow an organization’s bottom line by deploying the right people for the job at the right time and cost. Automated processes help organizations ensure workplace compliance and provide leaders the data and tools to significantly improve time management activities with Occurrence Tracking, single-click and free-form time entry, drag-and-drop scheduling, and real-time access to content, accruals and more. Employees benefit from self-service tools to submit absence or leave requests, trade shifts, enter availability, and see their schedules. Data and actions are combined with learning and talent strategies, making access to critical time and payroll insight simple, reliable, flexible and actionable. Workforce Management includes: o Time & Attendance o Scheduling o Absence Management • SumTotal HR Management provides a single consolidated view of employee data across the workforce from a centralized location. Personal data, demographics, dependents, eligibility, position/job, company assets and more can be viewed globally. HR Management includes: o Core HR o Payroll & Benefits Management o Expense Management The SumTotal Talent Expansion Suite is available for organizations of all sizes with curated modules and deployments specifically designed for small and medium-sized businesses, such as Growth Edition for learning management and Rapid Deployment for workforce management. The majority of SumTotal customers adopt its multi-tenant cloud offering, although they can deploy the same technology into a private cloud or on-premise. SumTotal serves a wide variety of customers worldwide in many different industries such as Airlines, Financial Services, Government, Healthcare, Higher Education, Manufacturing, Pharmaceuticals, and Retail. Following are

a few examples of how SumTotal customers benefit from the Talent Expansion Suite: Corning, one of the world’s leading innovators in materials science, needed to ensure that their Learning Management System (LMS) could successfully onboard new and mid-career hires, engage employees, plan for succession of leaders, develop technical experts and do so for a multi-generational workforce. Corning used SumTotal’s Learning Management to update Corning Learning Central (CLC), a portal that enables more than 50,000 geographically dispersed employees to access multiple learning resources via a variety of delivery methods and all in compliance with regional regulations. This update led to the elimination of more than 600 hours of change management instruction through the introduction of one five-minute system overview for all users. The solution also resulted in a 43% increase in learner satisfaction, 69% increase in manager satisfaction, 49% increase in administrator satisfaction. Misys, a global financial services provider, needed to improve interaction between staff and managers across the business, and it needed a way to cascade its corporate vision and annual operating plan to all staff. Mysis determined that identifying key talent and skills was critical for delivering the business plan and creating the growth platform the organization envisioned.

Misys selected several SumTotal Talent Expansion solutions, including Learning, Talent and Workforce Management, to accomplish these objectives. Using the solutions, Misys created a catalog of courses and training programs that enable employees to complete learning at a time and place suitable for them. The solutions also provide Misys the ability to examine any area of employee performance and HR data in great detail. Located at the center of North Carolina’s Piedmont Triad region, High Point is a thriving city of more than 102,000 residents. The city provides a wide range of services and employs a diverse workforce that ranges from 1,300 to 1,500 individuals. High Point had managed its workforce via a legacy mainframe-based system, which included a mix of manual and automated solutions that were developed in-house to address time and attendance requirements. Due to complex business rules and labor policies, the city’s legacy solution was heavily customized, with limited ability to provide an accurate view of workforce needs. It also lacked the decision support tools and metrics needed to change schedules and rosters for employee groups quickly. High Point selected SumTotal Workforce Management for Time & Attendance because of its ability to deliver dynamic scheduling capabilities and absence management as

well as ensuring payroll accuracy for workforce operations. Also, the solution’s fully integrated applications for time and labor management, employee scheduling and leave management help to ensure payroll accuracy and enable High Point to reduce internal costs and meet external government regulations. SumTotal has earned numerous accolades for its usability, technology, and innovation. Earlier this year, The Craig Weiss Group ranked SumTotal as a Top 10 Learning Management System provider. In 2017, SumTotal won Gold in Brandon Hall Group’s Excellence in Technology Awards for having the Best Advance in Time and Labor Management. Also last year, SumTotal received two honors from Nucleus Research. The analyst firm recognized SumTotal as a Leader in its Talent Management Technology Value Matrix for the third year in a row. Nucleus Research also named SumTotal a Leader in its 2017 Workforce Management Technology Value Matrix. Further, Aragon Research acknowledged SumTotal as a Leader in its Aragon Research Globe™ for Corporate Learning, 2017: The Race to Modern Learning. To learn more about SumTotal and its Talent Expansion solutions for learning management, talent management, talent acquisition, workforce management, and HR management, visit their website.

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Employee Whistleblower Protections and Recent Developments for Public Companies By JOHN SIMMONS

or publicly traded companies, the recent case from the Supreme Court of the United States, Digital Realty Trust, Inc. v. Somers (February 21, 2018) addressed whether someone claiming whistleblower protections under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) was required to have actually reported the concern to the Securities and

Exchange Commission (“SEC”). Dodd-Frank and its whistleblower protections provide a monetary award for whistleblowers along with protections from retaliation by an employer. Dodd-Frank itself defined a whistleblower as one or more individuals who provide information of a securities law violation to the SEC. (15 USC 78u-6(a) (6)). However, the SEC’s implementing regulations changed this definitional requirement so that it required disclosure to the SEC for a whistleblower to be covered by the award portion of the whistleblower protections but not for the retaliation portion of these protections. In Digital Realty Trust, Inc. v. Somers, the Plaintiff Mr. Somers had been a vice president of Digital Realty Trust, Inc. He was fired shortly after he allegedly reported potential securities law violations. Mr. Somers’ report was made to senior management at Digital Realty Trust, Inc. but not to the SEC. Among Mr. Somers’ several claims, he pursued a claim for retaliation under the whistleblower provisions of DoddFrank (15 U.S.C. 78u-6). Digital Realty Trust, Inc. moved to dismiss Mr. Somers’ claim for retaliation under Dodd-Frank because Somers

it should also be pointed out that The Sarbanes-Oxley Act of 2002 (“SOX”) has a similar whistleblower protection from retaliation and that the SOX protections allow for but do not require reporting to the SEC. In other words, the SOX protections are significantly broader.

SOX Whistleblower Protections The Sarbanes-Oxley Act of 2002 has its own prohibition against retaliation against a whistleblower, but SOX has a broader group of persons, compared to Dodd-Frank, who can be told of the problem by the purported whistleblower. SOX allows the report from an employee who reasonably believes some conduct constitutes mail fraud, wire fraud, bank fraud or securities fraud to be made to a “[f ]ederal regulatory or law enforcement agency[,]” “any member of Congress or any committee of Congress[,]” or “a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover or terminate misconduct).” An employee is also protected as a whistleblower under SOX if the employee causes to be filed, participates in or assists with a proceeding that the employer knows about and that relates to mail fraud, wire fraud, bank fraud, securities fraud, any SEC rule or regulation or any other federal law that addresses fraudulent conduct towards shareholders. (18 USC 1514A(a)). Dodd-Frank has similar protections for whistleblower activities with and toward the SEC and also expressly protects disclosures “required or protected” under SOX. However, under Dodd-Frank, one still has to qualify as a “whistleblower” as set out in Digital Realty Trust, Inc. As is apparent, an employee has more options under SOX to qualify as a whistleblower than would apply under Dodd-Frank.

had not made a report to the SEC.

Who Is Covered by SOX and Its Protections

In support of Mr. Somers’ argument that he was not required to make a report to the SEC before asserting his claim for retaliation, he pointed to the SEC’s final rule, 17 CFR 240.21F-2, which did not require a report to the SEC in order for someone to qualify for the protections against retaliation under Dodd-Frank. The Supreme Court disagreed with Mr. Somers’ argument and held that the statutory definition in Dodd-Frank governed and that this definition included the requirement that the information of a potential securities law violation had to be provided to the SEC before someone would qualify as a whistleblower. In doing this, the Supreme Court simply applied the statutory definition of a whistleblower under Dodd-Frank.

SOX whistleblower protections in section 1514A extend to any employee of a publically traded company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934, and this includes a subsidiary or affiliate whose information is included in the consolidated financial statements of a covered company. Section 1514A’s prohibition on retaliation also expressly extends to the actions of any “officer, employee, contractor, subcontractor, or agent” of the company.

While the Digital Realty Trust, Inc. decision could be read to narrow significantly the whistleblower protections for employees of publicly traded companies since it requires employees to know enough law to realize they have to make a report to the SEC before they get fired, 44

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Even More Protection under SOX SOX also amended a criminal statute that protects whistleblowers from retaliation in employment. Specifically, 18 U.S.C 1513(e) provides that “[w]hoever knowingly, with intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer

any truthful information relating to the commission … of a federal offense” is subject to fine or imprisonment. These protections apply to publically traded companies and their employees. Parenthetically, section 1513 also applies to private, non-public businesses.

Other Potential Whistleblower Protections In addition to the retaliation protections contained in Dodd-Frank, SOX and the employment and civil rights laws that human resources professionals deal with regularly, such as Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act of 1967 (“ADEA”), The Americans with Disabilities Act (“ADA”), and the Fair Labor Standards Act (“FLSA”), there are a large number of other federal statutes that also have whistleblower protections for employees. The Occupational Safety and Health Commission (“OSHA”) has been tasked with investigating and addressing retaliation claims under many of these statutes. OSHA’s Whistleblower Investigations Manual catalogues these statutes and the investigation process applicable to claims under them, including such statutes as the Surface Transportation Assistance Act; the Federal Water Pollution Control Act; the Clean Air Act; the Comprehensive Environmental Response, Compensation and Liability Act; the Energy Reorganization Act; the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century; SOX; the Pipeline Safety Improvement Act; the Federal Railroad Safety Act; the National Transit Systems Security Act; the Consumer Product Safety Improvement Act; the Affordable Care Act; the Consumer Financial Protection Act of 2010; the Seaman’s Protection Act; and the FDA Food Safety Modernization Act. While often overlooked in comparison to such statutes as Title VII, the ADEA, the ADA and the FLSA as employment decisions are being made, these other statutes also provide a federal body of law that touches on many employment decisions. When an employer is analyzing a proposed course of action that involves an employee who could claim to be a potential whistleblower, an employer should assess whether any of these statutes would apply to the potential claim, and the employer should determine what the relevant standard is for the employer to demonstrate its actions were non-retaliatory.

Under these statutes, employees benefit from an employee-friendly investigation process. These same statutes typically require an employee asserting a whistleblower claim to show the employee’s protected activity was a contributing factor in the adverse action by the employer. Then the employer has to show it would have taken the same action in any event. In addition to all these protections, there are also the many and diverse protections under the laws of the various states. All this is to say that there are many employee whistleblower protections available today and that Digital Realty Trust, Inc. v. Somers has not left legitimate whistleblowers without protections.

John Simmons is a shareholder in Littler’s Memphis office. His employment litigation experience extends to single and collective wage and hour class actions, as well as discrimination and harassment. He advises clients in a variety of industries, including emerging technologies and venture capital, and business restructuring. John may be reached at jwsimmons@littler.com.

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SHAKE IT UP, STEP IT UP: Updating Anti-Harassment Training To Reflect The New EEOC Guidance

By LISA S. LEWIS

Last year, the U.S. Equal Employment Opportunity Commission (“EEOC”) published draft enforcement guidance regarding workplace harassment. The final guidance, revised to reflect public input, is expected to be released soon. The new guidance updates and replaces several of the current guidance documents on harassment mostly generated in the early nineties. This article focuses on the training-specific portions of the draft Guidance and an underlying 2016 EEOC Task Force Report, but first reviews why updated training practices are important for employers. WHY UPDATED ANTI-HARASSMENT TRAINING MATTERS

Prevention The Guidance and Report emphasize that, while past workplace trainings have primarily focused on avoiding legal liability, training can and should serve as an effective tool for prevention as well. Preventing unlawful conduct from occurring in the first place not only benefits an employer’s bottom line (defending a lawsuit, even successfully, is pricey) but also creates a more respectful workplace in general, which results in innumerable tangible and intangible benefits, legal liability aside. The potential preventative effect of the training recommendations makes them worthy of consideration.

Protection Next, in many cases, training is essential to protecting against liability in the event harassment has occurred. Specifically, if the harasser is a supervisor, and the harassment did not result in a tangible employment action, an employer may limit its liability if it can prove a two-part affirmative defense, the first step being that the employer acted reasonably to prevent and promptly correct harassment. Likewise, if the harasser is not a supervisor, the employer is liable for that person’s unlawful harassment if the employer failed to act reasonably to prevent the harassment or to take appropriate corrective action in response to the harassment. Both of these situations generally require an employer to show that it (i) had a policy against harassment, including a process for addressing complaints, and (ii) provided effective training on the policy. Cases across the country show that training can be the make-or-break determination for legal liability. For example, in Hawkins v. AnheuserBusch, Inc., 517 F.3d 321, (6th Cir. 2008), the employer, which had an anti-harassment policy and did some general training on the policy, nonetheless lost summary judgment on a claim of co-worker harassment because it failed to take steps aimed at correcting the 46

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harassing behavior, including, first and foremost, by giving individual training to the harasser regarding his specific conduct. On the flip side, in Williams v. Barnhill's Buffet Inc., 290 F.App’x 759 (5th Cir. 2008), the Fifth Circuit relied on evidence that the employer regularly conducted anti-harassment training for its employees, including at the start of employment and almost yearly thereafter, in concluding that the employer had exercised reasonable care to prevent a supervisor’s harassing behavior. In sum, training matters. To realize the full benefits of training, however, employers need to ensure that they are providing the right type of training, which is where the EEOC’s new Guidance comes into play. OVERVIEW: NEW GUIDANCE ON EFFECTIVE HARASSMENT TRAINING The agency’s recommendations for effective training address the structural and substantive “best practice” components of anti-harassment training, and also review additional types of training, beyond the scope of unlawful harassment, that may help prevent workplace harassment. The EEOC explains that, structurally, harassment training should be: • Championed by senior leaders; • Repeated and reinforced regularly; • Provided to employees at every level and location of the organization; • Provided in all languages commonly used by employees; • Conducted by qualified, live, interactive trainers; • Routinely evaluated by participants and revised as necessary; and • Tailored to the specific workplace and workforce. Substantively, effective harassment training for all employees includes: • Descriptions of unlawful harassment and conduct that, if left unchecked, might rise to the level of unlawful harassment • Examples that are tailored to the specific workplace and workforce; • Information about employees’ rights and responsibilities if they experience, observe, or otherwise become aware of conduct that they believe may be prohibited; • Explanations of the complaint process; and • Explanations of the range of possible consequences for engaging in prohibited conduct.

Additionally, because supervisors and managers have additional responsibilities with respect to harassment, supervisors should receive additional training that includes: (1) information about how to prevent, identify, stop, report, and correct harassment, such as the potential risk factors for harassment, realistic methods for addressing harassment that supervisors observe or otherwise learn of, and explanations of the confidentiality rules associated with harassment complaints; (2) an unequivocal statement that retaliation is prohibited and will not be tolerated, including an explanation of prohibited conduct; and (3) explanations of the consequences of failing to fulfill their responsibilities related to harassment, retaliation, and other prohibited conduct.

New Approaches: Workplace Civility Training and Bystander Intervention The EEOC also identifies two additional types of training that may help prevent workplace harassment: workplace civility training and bystander intervention training. Workplace civility training focuses on what employees and managers should do rather than on what they should not do. The training usually includes: • an exploration of workplace norms, including a discussion of what constitutes appropriate and respectful workplace behavior; and

Bystander intervention training seeks to empower co-workers and give them the tools to intervene when they witness harassing behavior. Most bystander intervention trainings involve the following aims and/or components: • Create awareness – enable bystanders to recognize potentially problematic behaviors; • Create a sense of collective responsibility – motivate bystanders to step in and take action when they observe problematic behaviors; • Conduct skills-building exercises on appropriate intervention; and • Provide bystanders with resources they can call upon and that support their intervention. It is worth noting that the EEOC discusses these trainings in the context of prevention rather than legal liability. In sum, effective workplace training is not only important but also something that evolves over time. The EEOC’s upcoming revised harassment Guidance provides employers a good opportunity to check their current training practices against the agency’s “best practices” to ensure their training is both practically and legally effective.

Lisa Scatamacchia Lewis, Associate

• a skills-based component, including training on interpersonal skills, conflict resolution, and effective supervisory techniques.

Ogletree Deakins – Memphis lisa.lewis@ogletree.com www.ogletreedeakins.com

Working Boomer Advocate Attorney Dan Norwood 254 Court Ave Memphis, TN 38103 901.834.9292 workingboomeradvocate.com

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Highlights from the 2018 SHRM-Memphis HR Excellence Awards At the Memphis Bioworks Foundation

February 20, 2018

George Mabon HR Executive of the Year

Alex Smith,

Austin Baker,

City of Memphis

Cynthia Thompson,

HRO-Partners

HR Professionals Magazine (Recipient)

Emerging Leader

Brigette Wilson,

Patrick Crowder,

Save the Childen

Tyler Stegall,

Bureau of Naval Personnel

City of Memphis

Andrew Stanley,

MLGW (Recipient)

Memphis HR Champion

Angela Lamb, Lifeblood

Carol A. Farris,

Regional One Health

Charlene Mitchell, Hueyâ&#x20AC;&#x2122;s

David Estel, Data Facts

Jessica van Eyck, Vaco

Virginia Leonard, MLGW

Dr. Kathy Tuberville, University of Memphis (Recipient)

Student of the Year

Lifetime Achievement Award

Tiyana Childress,

(L-R) Brigette Wilson, SHRM-Memphis President-Elect; Tisch McDaniel, Recipient of the Lifetime Achievement Award; and Verlinda Henning, President of SHRM-Memphis

University of Memphis

Undergraduate, executive MBA, and doctoral courses offered. Topics include HR management, staffing organizations, employee training & development, compensation & performance appraisal, and employee relations.

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Autism & Neurodiversity, The Secret to your Tech Workforce By TIM GOLDSTEIN

OMG,

He said what to who? Problems again with a top technical person being truthful, brutally truthful. I can’t even begin to count the number of times I was your problem. You’re already dealing with the neurodiverse without knowing it. Likely, your results vary between little and none.

You’ve heard the term Neurodiversity. Heavy weights like SAP, Microsoft, EY, DXE, JPMorgan Chase and others have discovered a hidden tech workforce by using concepts from neurodiversity to integrate autistic workers. One in 68 children in the USA has Autism Spectrum Disorder (ASD) and probably the same in adults. 35% of autistic individuals graduate college, 12% have an IQ over 120, and 80% are unemployed. Amazingly, many of these individuals have the logical thinking and problem-solving skills which tech jobs demand. James Mahoney, JPMorgan Chase, told me the first cohort in their Autism at Work program performed 43% better after a few months training compared to their peers who had years on the job! The secret path to recruiting and retaining this magical group has been found and marked by the Autism at Work programs of the world’s biggest companies. Neurodiversity gives us concepts that are key to diversifying and engaging the tech workforce. A case study from Harvard University shows the benefits of the neurodiverse approach. Benefits go beyond the tech workforce and include improved manager ratings from all workers after the managers were trained to use a neurodiverse approach. Neurodiversity seems so wonderful, now what is it? Neurodiversity is the simple idea that the way our brains are shaped and wired varies just as much or more than any other part of our bodies. These variations are though to create differences in the way we perceive and process the world. To picture the concept, imagine a cloud filled with little pieces like confetti and glitter, each representing a specific way to perceive and process the world. This cloud of pieces is neurodiversity, every way a human brain can work. Now we group these pieces into similar styles and a large amount are in one group. We call that group neurotypical (NT). Not special or normal, just the largest single group. Everything outside of this group is called nerodiverse (ND) and includes people with autism, dyslexia, OCD, or anyone who perceives and processes the world differently than the NT group. The major take-away is even within the same group there are differences and the further a piece is from you, the more they appear to live in an alien world. For many of us neurodiverse tech types, our world is much closer to the logical world of Vulcan than you may believe. I, as do many with autism, like my routines including what I eat for lunch. I was on a kick with a particular potato bread for my daily roast beef sandwich. Shopping each week with my wife Karen, an NT, and we would end up in the bread aisle. I rapidly scanned the writing on the labels looking for my favorite bread. Karen would just point and say, “It’s right there.” After 1-1/2 years, I finally asked how she found it so fast. She pointed to the end of the label and said, “I just look for this big orange circle.” Talk about a different way to perceive and process the world. I am all about the words and Karen is looking at colors and patterns. And her way worked much better. People who have worked in organizations with technical and business groups are familiar with the friction and communication gap between them. The distance apart in the Neuro Cloud creates a barrier to reaching your organization’s goals. From the bread example alone you see I

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live in a world which is very different from Karen’s. Neither view is right as they are equally valid. But each view has a different set of strengths and weaknesses. By adopting proven steps, this perennial problematic gap can become your organizations greatest source of creativity and innovation. To avoid confusion, I am going to introduce some terms and how they fit together. Autism and Asperger’s were combined into a single disorder called Autism Spectrum Disorder (ASD). Asperger’s and High Functioning Autism (HFA) are the more gifted, less challenged area of ASD in the Neuro Cloud. Because there are so many who may not be clinically diagnosable with ASD but display many of the traits, I like to use the term “A”SD Lister. Think of these people as your tech superstars who are like Hollywood “A” Listers. They are necessary to succeed, but definitely hired for their skills and talent, not their behavior. All of the “A”SD Listers are considered neurodiverse as are people with many other conditions including OCD, Tourette’s Syndrome, ADD/ADHD, plus many others who simply think differently than neurotypicals. With all the positive “A”SD Listers have, why isn’t everyone one hiring them? Just like a slice of potato bread has 2 sides, “A”SD Listers are much the same. We have covered some of the strengths of logical thinking, creativity, unique perspective, and amazing concentration. But these much-needed traits frequently go along with challenges in communication and social ability. This group is known for their lack of filter when they are speaking, frequently don’t make eye contact, and often answer yes/no or worse, go on forever with tech details no one else understands. They also tend to stay on the sidelines and not get involved in organization social events. The challenging traits which are associated with autism vary from one individual to the other. While most consider me very high functioning to the point they are shocked to find I am autistic, I still struggle with a range of autistic challenges. Some of my biggest challenges are missing the between the lines message when communicating, rigid black & white thinking, anxiety, and meltdowns. Even with these challenges, I am able to connect and communicate comfortably with diverse individuals or a large audience. This alone makes me far more an exception than an example. The extreme range of traits and severity make the autistic a difficult group to identify and discuss in a blanket fashion.

There are some stereotypes of us “A”SD Lister types which I believe came about to help and have now become limiting beliefs. One of the biggest misconception is we like to do repetitious work that other don’t. As an individual solidly in the “A”SD Listers camp with Aspergers’s, I hate doing repetitious things! What I love is hyperfocusing and staying in the pleasurable flow of the “living in another world” sensation it brings. If the task is something that engages me, I will often enjoy doing it for long stretches repeatedly. Every employee needs to be matched with appropriate work. When considering an autistic worker for a repetitious task, consider whether they have an interest in it, not just are they autistic. Interests for most of us in the “A”SD Lister club are long lasting. I’ve pursued some for decades.

TimGoldstein.com HE SAID WHAT? TO WHO? AGAIN!

We have covered why people with Autism Spectrum Disorder and the broader “A”SD Lister group can be valuable long-term employees in many technical roles. Also covered were some of the challenges this group brings. If you are ready to bring unique insight and perspective into your organization this is the groups. What’s unique to you is normal for them. Are you ready to make the changes to become an organization that benefits from all perspectives of the Neuro Cloud? Embracing and integrating the neurodiverse “A”SD Lister can be done as a process, one manageable step at a time. While some organizations can implement everything all at once, for most a slower inside out approach works best. Awareness is the foundation and for most groups having an outside speaker who is an “A”SD Lister is most effective. You get first-hand experience explaining this group instead of studies of what we are like. An “A”SD Lister is more effective helping those who already work there comfortably self-identify. Step two is educating managers, HR, and co-workers how best to work with people far from themselves in the Neuro Cloud. Managers may need to learn new methods, but these methods improve all workers performance. Step three is to engage assistance from local agencies that can help provide specific autistic job coaching services. Step four will have you looking at your entire hiring process and creating an “A”SD Lister friendly version. This covers recruiting, interviews, and, super important, on boarding. Step five finally has you reaching out to a community of new candidates. The next tech superstar in your company just might be someone who looks at the floor when they speak.

The next tech superstar in your company just might be someone who looks at the floor when they speak.

Whisper, Nudge, Kick in the Butt. Autism at Work & Neurodiversity What do these companies know?

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Tim Goldstein

Neurodiverse Communication Specialist Tim Goldstein Neurodiverse Communication Specialist TimG@WiserLtd.com www.TimGoldstein.com

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I-9 JOINT EMPLOYER CASE PROVIDES TIPS FOR EMPLOYERS By BRUCE BUCHANAN

There were only several decisions by Office of Chief Administrative Hearing Officer (OCAHO) in 2017, which was caused by a vacant Administrative Law Judge (ALJ) position. In its last decision of 2017, U.S. v. Integrity Concrete/ American Concrete, 13 OCAHO no. 1307 (2017), OCAHO substantially reduced the penalties assessed against Integrity Concrete, Inc. but increased the penalties against American Concrete, Inc., which essentially acted as joint employers. INTEGRITY CONCRETE Integrity Concrete was served with a Notice of Inspection (NOI) in January 2015. Thereafter, ICE served Notice of Suspect Documents on Integrity listing eight employees whose I-9 forms could not be verified as authorized to work. Integrity responded none of the eight employees were employed anymore. About seven months later, Integrity was served with a Notice of Intent to Fine (NIF), which charged the company with the failing to timely prepare I-9 forms for five employees, failing to ensure that three employees properly completed Section 1 of their I-9 forms, and failing to properly complete Section 2 or 3 of the I-9 forms for 16 employees. ICE assessed a fine of $24,684 based upon a baseline penalty of $935 and 5% enhancement for lack of good faith and seriousness of the violations. In Integrity’s answer, it challenged the penalties asserting it was a small employer, numbering 28 employees, which should account for a 5% statutory reduction in the penalties, bad faith should not have been found, and the penalties assessed would place an undue hardship on the company. AMERICAN CONCRETE American was served with a Notice of Inspection and a Notice of Suspect Documents listing four employees whose I-9 forms could not be verified as authorized to work. American responded none of these employees were employed at its company.

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ICE served a separate NIF on American alleging it failed to timely prepare I-9 forms for 10 employees. ICE proposed a fine of $5,390 based on a baseline penalty of $440 plus 5% enhancements for lack of good faith, seriousness of the violations, and employment of three undocumented workers. American filed an Answer asserting it should have received 5% mitigation for each of these factors: small size of its workforce (48 employees), and good faith, and the non-statutory factor of leniency toward small businesses. OCAHO’S DECISION The first factor discussed was whether Integrity and American should receive 5% mitigation for being small employers. ICE asserted the fact that both employers had small workforces was inappropriate for determining whether they were small employers. ICE argued it should focus on gross sales and gross assets. The ALJ for OCAHO disagreed and applied appropriate caselaw to find both to meet the definition of small employers; thus, they were entitled to the statutory 5% mitigating factor. Next the ALJ focused on whether Integrity and/or American should be assessed 5% enhancement/mitigation for bad faith/good faith. ICE asserted one reason for a finding of bad faith: backdated I-9 form. Although backdating alone is insufficient to support a finding of bad faith, the ALJ found several factors supported a finding of bad faith. However, the ALJ noted the use or non-use of E-Verify is not a factor which should be reviewed in determining good faith/bad faith. Concerning the employment of undocumented workers as an enhancement factor, the ALJ stated ICE failed to provide any evidence of their undocumented status. Rather, their enhancement was based on inclusion in the Notice of Suspect Documents. As the ALJ correctly pointed out, an allegation of undocumented status, which is essentially what placement on a Notice of Suspect Documents means, is not sufficient to prove undocumented status. Thus, no enhancement was added for this factor. Another issue involving Integrity was whether it established an inability to pay/hardship. The ALJ did not find such, despite a loss of over $600,000, because Integrity paid approximately $500,000 in salaries and benefits – much of which was paid to its shareholders. In determining the amount of the penalties, the ALJ was disturbed by the fact that $935 was the baseline penalty for Integrity while only $440 was the baseline penalty for American. Although the ALJ correctly noted the difference in the percentage of errors on the I-9 forms was the basis of the different baseline penalty, he found the companies should be assessed at approximately the same dollar amount and compliance rate alone is insufficient to justify wide variation. Thus, the ALJ assessed $400 baseline penalty for substantive paperwork violations and $500 for failure to prepare I-9 forms. Integrity was found to have committed five violations in Count 1 and each assessed at $500, with the enhancement factor for seriousness of the violations and mitigation factor for the small size of the business cancelling each other. Accordingly, Integrity is liable for $2,525 under Count I. Under Counts II and III, Integrity was liable for substantive violations for failure to properly complete three I-9 forms and 19 substantive paperwork violations, all assessed at $400 each. Therefore, Integrity is liable for $11,325. American was found liable for 11 substantive violations for failing to prepare and/or present I-9 forms. Each of these violations will be assessed at $500, which includes the $500 base fine, with the enhancement factor for seriousness of the violations and mitigation factor for the small size of the business cancelling each other. Accordingly, American is assessed a total civil penalty of $5,500, which is actually an increase of $110. CONCLUSION It is expected that OCAHO will be back to speed once they get an ALJ. In the meantime, now is a great time to conduct an internal I-9 audit under the supervision of an experienced immigration compliance attorney. To find out more about internal I-9 audits as well as other employer immigration compliance issues, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at http://www.amazon.com/dp/0997083379.

Bruce E. Buchanan, Attorney Siskind Susser PC bbuchanan@visalaw.com www.visalaw.com 52

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APRIL 20, 2018

YOU’RE INVITED The Memphis office of

OGLETREE DEAKINS presents a complimentary

EMPLOYMENT LAW BRIEFING An informative and educational briefing to address the latest labor and employment law topics impacting all employers

LOCATION

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Presenter: Audrey M. Calkins Ogletree Deakins

The Crescent Club 6075 Poplar Avenue, Suite 909 Memphis, TN 38119 (901) 861-5060 Friday, April 20, 2018 2:00 p.m. – 4:00 p.m. Presentation 4:00 p.m. – 5:00 p.m. Cocktails and Networking (Registration will begin at 1:30 p.m.)

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Don’t Get Caught With Your “Breaches” Down! Learn How To Prevent, Identify, and Address Hacking and Other Unauthorized Computer Access

How to Conduct an HR Audit Presenter: Cynthia Y. Thompson The Thompson HR Firm

Complimentary (A cocktail reception and program materials are included.)

REGISTRATION Register online at www.ogletree.com or contact Tamara Caradine at (901) 767-6160 or tamara.caradine@ogletree.com. We have submitted this program to the HR Certification Institute and SHRM for review and are applying for Tennessee CLE credit.

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2018 ALABAMA SHRM State Conference & Expo #alshrm18

MAY 1-2, 2018

BIRMINGHAM, AL Birmingham-Jefferson Convention Complex East Exhibition Hall 2100 Richard Arrington Junior Boulevard North Birmingham, AL 35203

KEYNOTE SPEAKERS

Scott Lesnick

HR Professionals Making the Impossible, Possible: Implementing the Never Give Up Perspective

Coach Sherry Winn Unleash the Winner Within You

Dr. Samuel Jones Closing The Gap Between Average & Excellence

To register visit alshrm18.eventbrite.com 54

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Healthy Workplaces Offer Resources for all Generations

- The Changing Workforce

By MURRAY L. HARBER

he modern workforce is changing across the United States where the Millennial generation is transforming the way work is done, where it is done, and when it is done. This shift is, workers are forcing employers to think differently about the use of technology, workstation design, and the benefits being provided. It is reported that by 2020, Millennials will represent over 50% of the workforce. Millennials are not scared to changed jobs as they are confident in their ability to find work anywhere and they want their job to have purpose and meaning. They seek out employers that offer modern perks such as wellness programs, onsite fitness, flexible work schedules, and

training and development for their careers paths. As the other generations move toward the end of their careers and retirement, they continue to work hard to have a secure future during retirement. They often do not maximize or optimize their employer provided benefits as they focus on the specific job duties. The difference between the generations has caused employers and specifically the Human Resource Professional to reconsider how they operate, provide support, and create meaningful benefits to attract and retain top talent. Healthy workplaces are a key attractor to all of the generations. “Being recognized as a “Mississippi’s Healthiest Workplace” gives us an advantage to attracting,

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motivating, and retaining top talent in the marketplace including the new millennial generation who are seeking out employers who offer a healthy culture, resources for wellbeing, and community involvement.” Joyce Plunkett, VP of Human Resources, Southern Farm Bureau Life Insurance Company

Healthy Workplaces and Recognized Healthy Employers In Mississippi, employers can be recognized as a healthy employer by completing a survey and meeting the minimum standards of a healthy workplace. For those employers who are doing more than the minimum standard, they can apply for the 2018 Healthiest Workplace Awards to compete with companies from across the state. Categories are broken into the public sector including cities, counties, and state agencies; and private sector including small, medium, large, and mega-large as well as a health systems category. To learn more visit www.msbgh. org/awards. These recognition and awards programs are a collaboration of the Mississippi Business Group on Health, the Mississippi Business Journal, and the Mississippi State Department of Health. The Mississippi State Health Improvement Plan, also known as UpRoot Mississippi, www. uprootms.org, has included objectives for the business community to offer healthy workplaces.

Wellness to Wellbeing The Gallup-Sharecare Wellbeing Index (www.well-beingindex.com) has been in existence for ten years and measures each state’s status in Wellbeing, a composite of purpose, social, financial, community, and physical. This new measure is making its way into the employer space where leading companies are using this model to shape their workplace programs and benefits being offered. Southern Farm Bureau Life Insurance has been awarded the Healthiest Workplace in

Mississippi, two out of the last three years. They began with a wellness program and have built a comprehensive employer health management strategy, showing great results in cost saving, improved morale and workplace culture that supports healthy lifestyles. SFBLI has a healthy campus with an onsite health clinic, a healthy cafeteria and an exercise room, along with many programs to support healthy behaviors and discounts to local businesses. The leadership still wanted to do more to adapt to the changing workforce as they are an employer-of-choice. SFBLI is leading the way by evolving their wellness program to a wellbeing framework to encompass all employee benefits, workforce development, and wellness programs. This new approach will leverage their internal program and resources along with their employee benefits to support the whole person and their overall wellbeing. This approach will continue to engage the employees of all generations along with their families into adopting healthy behaviors, personal growth and development, and engagement into the communities where they live, work, and play. “As we continue to improve our health promotion program, we are moving from the topic of Wellness being seen as things to do, to a more holistic view of our employee’s well-being. We want to encourage our employees to look at their overall well-being in the areas of personal, career and physical growth while supplying them with tools needed to reach their goals.” Matt Ginn, Manager of Corporate Training, Communication, and Health Promotion

Murray L. Harber, Executive Director Mississippi Business Group on Health mharber@msbgh.org www.msbgh.org

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Gives Us the Ability to Get to the Real Issues Quickly

∞ Ways Emotional Intelligence Compels Us to be More Adaptable By HARVEY DEUTSCHENDORF

“ It is not the strongest of the species that survives, nor the most intelligent that survives. It is the one that is most adaptable to change.” ~ Charles Darwin ~ Unless you are living in a cave somewhere, you have noticed that the rate of change in the workplace is increasing exponentially. Technological changes are evolving rapidly. Artificial intelligence and the capability of algorithms to pull together massive amounts of information quickly and accurately make most jobs that have any kind of routine or repetitive nature, will be susceptible to being taken over from humans. Segments of work in virtually all fields will see some disruption from automation. Already reeling to keep up with the rate of change in the workplace, employees and management realize that the degree of adjustment will only increase. To further add to the disruption, millennials, whose presence in the workplace is increasingly felt, have their own ideas of what work should look like. Added to the change mix is the dynamic of markets, social media, globalization and diversity. While adaptability has always been an important part of thriving in the workplace, it is rising in importance as the pace of adaptation relentlessly speeds up. Whether we are at the entry level in an organization, or the CEO, all roles will require a high level of ability in order to cope effectively with the pace of change and thrive in the workplace of tomorrow. Here are 5 ways that emotional intelligence encourages adaptability:

Keeps Us From Falling into Familiar, Comfortable Patterns When confronted with change, our default is to fall back into out comfort zone. Our first instinct is to take the easy way out, to stay with what we know. Emotionally intelligent people will be more aware that this is happening and be able to overcome the urge to stay with the tried and true than to move into new unchartered territory. Their awareness of their own behavior patterns and emotional drivers gives them a real advantage in dealing with altering variables. From Brené Brown’s Daring Greatly, “Vulnerability is not weakness, and the uncertainty, risk, and emotional exposure we face every day are not optional. Our only choice is a question of engagement. Our willingness to own and engage with our vulnerability determines the depth of our courage and the clarity of our purpose; the level to which we protect ourselves from being vulnerable is a measure of our fear and disconnection.”

In any change, there will be resistance that is buried below the surface and will sabotage the change process if not uncovered and dealt with. People may want to be seen as being open to change can often have underlying reasons to resist. Group pressure may force them to keep those underlying feelings hidden. Emotional Intelligent people innately know and experience intuitive understanding of the feelings of others and are able to predict and have insight to work with resistance that others will display. This awareness facilitates communicating in such a way that they are able to address the unspoken and hidden fears that others may have, even though they have not expressed those fears directly. Their awareness of verbal nuances and non-verbal cues allow them to be able to hone in on, and address what is going on underneath the surface in both individuals and groups. This increases the likelihood they will be a buy in to the new direction or changes that are being considered with harmony and trust.

Helps Us Deal More Effectively with Surprises and Setbacks With change there will inevitably be setbacks, surprises and failures. Without the ability to deal with these obstacles, the change process will be under attack and there will be pressure to return to the old way of doing things. Emotional intelligent people will be better prepared to deal with the disappointments and fears that will come up when things don’t go as planned, as they seldom do. Control of their impulses allows them to avoid reacting until they have thoroughly thought things through and decided on how to move forward. Their listening ability allows them to bring in, and actively listen to others to come up with a group consensus. Instead of looking to lay blame for setbacks, they will be focused on a solution.

Helps us Manage Our Emotions and Stay Calm Under Pressure Change brings up emotions from both ends of the emotional spectrum, excitement and anxiety. Being aware of the emotion and the ability to turn it into an ally to help move through a major disruption gives emotionally intelligent people a major edge.

Allows Us to Work Through Diverse Opinions and Multiple Perspectives Instead of insisting on their way, or looking for the one right way, emotionally intelligent people are aware that their perspective, knowledge and beliefs have limitations. That baseline of belief allows them to be more open and accepting of ideas that are new for them or even contrary to what they have believed in the past. This openness eases them to go along with new and untried initiatives and be willing to take risks that will become increasingly important to thrive and stay relevant in the new economy. Instead of increasing the friction in the workplace, they will be the lubricant that allows ingenuity and initiative to flow more freely and a birthplace for opportunity to grow and flourish. 58

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Harvey Deutschendorf is an emotional intelligence expert, internationally published author and speaker. To take the EI Quiz go to theotherkindofsmart.com. His book THE OTHER KIND OF SMART, Simple Ways to Boost Your Emotional Intelligence for Greater Personal Effectiveness and Success has been published in 4 languages. Harvey writes for FAST COMPANY and has a monthly column with HRPROFESSIONALS MAGAZINE. You can follow him on Twitter @theeiguy.

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