April 2020 Issue of HR Professionals Magazine by Cynthia Thompson

Volume 10 : Issue 4

www.HRProfessionalsMagazine.com

What Do People

Talent Management and Recruiting

Need Now?

Build

Talent Bench

Sheila Moss

2020 ARSHRM

Strength Now!

Conference Chair

The Need for a Business Continuity Plan

The Future of the Organization

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Only 13.9% of employees feel they are at a “high culture” organization. www.HRProfessionalsMagazine.com Editor Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher

The Thompson HR Firm, LLC Art Direction

Park Avenue Design Contributing Writers Bruce E. Buchanan Audrey M. Calkins William Carmichael Lymari Cromwell Harvey Deutschendorf Brad Federman Rosalia Fiorello J. Patrick Gallagher, Jr. Timothy Garrett Tammy Henry Trish Holliday Robert Horton Corinn Jackson Howard B. Jackson Stuart Jackson Lucinda Kenning Kim LaFevor Laura Mallory Elise Hofer McKelvey Mikell Parsch Katie O’Neill Jennifer Robinson Kayla L. Robinson Cammie Scott Richard Works 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. ©2020 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.

Features 4 Excellence Through Leadership in Peachtree City May 7-8 6 note from the editor 7 Sheila Moss, SHRM-SCP, SPHR, 2020 ARSHRM Conference Chair 8 How do Elections Influence the Economy? 19 Athens State University is Your Best Path to a Successful Career in Business 20 Shoals Chapter SHRM Workshop in Florence March 12 38 Book Look: Cohesion Culture: Proven Principles to Retain Your Top Talent 39 Information Solutions 46 Seven Emotional Self-Care Habits

Human Resource Management and Coronavirus Strategies

Employee Benefits 24 What is the Most Important Feature of a Wellness Program? 43 Greater Memphis Employer Benefits Council Meeting March 5

Employment Law 12 Strategies for Handling an EEOC Investigation 16 Harassment Claims Against C-Suite Executives: Tips for Employer Investigations 17 41st Annual Labor & Employment Law Update Conference in Knoxville November 12-13

18 The Need for Business Continuity Management Before, During, and After Covid-19

28 Checklist for 2020 Employee Handbooks

30 What do People Need Now?

32 Alcohol and Substance Use Disorder under the ADAAA

40 Pandemics: Plan But Don’t Panic

Talent Management 10 Envisioning and Elevating the Competitive Advantage of Organizational Culture 14 The Future of the Organization is Now 22 Landing the Best Employees in a Candidate’s Market 23 State of the Art Compensation Management Program 26 Build Talent Bench Strength Now!

42 What’s Hair Got To Do With It? An Update on the Crown Act 44 A Revamped IMAGE Program - Is it Worth Joining? May issue features Employment Law and Employee Benefits Updates Plus the Latest on Human Resources Management and the Coronavirus Deadline to reserve space April 15

29 Working Boomer Advocate 34 Boulo Uncovers a Hidden Workforce 35 Fuel It! Are You Ready for This? 36 Boat Loans and IT Training www.HRProfessionalsMagazine.com

May 7 & 8, 2020 (see Contingency Plan)*

Strategic HR Partners Member Companies - $350* Non-members: - $390* *Rates discounted by $50 when 3 or more register from the same company *For Contingency Plan, see Events at www.strategichrpartners.com or call 706-561-2465 or email mbrown@strategichrpartners.com

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a note from the editor April is always an exciting month because there are usually many excellent SHRM conferences and events happening. As I write this note, we are still looking forward to the 2020 SHRM Talent Conference April 20-22 in Orlando. However, many of the SHRM Conferences and HR events we cover in April have been cancelled or postponed due to the coronavirus outbreak. We are happy to advise that the SHRMAtlanta Conference was rescheduled to August 3-4 this year. We are honored to feature Sheila Moss, SHRM-SCP, SPHR, 2020 ARSHRM Conference Chair, on our cover. We are disappointed that the Conference, usually held in April, has been postponed. We will definitely be there covering it for you when it’s rescheduled. I know you will enjoy reading Sheila’s career profile and learning about her volunteer service to SHRM. She is considered a subject matter expert in employment eligibility compliance and is widely known as the “I-9 Lady.”

You don’t want to miss the 2020 Workforce Strategy Conference, also in Georgia on May 19. This conference is sponsored by the Statesboro Area SHRM Chapter. The keynote will be Johnny C. Taylor, Jr., President and CEO of SHRM. This workshop will focus on the challenges and best practices around putting untapped and marginalized workers back to work. Go to statesboroarea.shrm.org to register. We are all looking forward to the SHRM Annual Conference in San Diego on June 28-July 1. This will be the largest gathering of HR professionals in the world. There will be targeted strategies and practical takeaways across 10 HR areas that delve

into the real workplace issues and help you navigate through them. Keynote speakers include Johnny C. Taylor, Jr.; Mindy Grossman, President and CE0, Director, WW International; and Carly Fiorina, Founder and Chairman, Carly Fiorina Enterprises & Unlocking Potential Foundation. Go to annual.shrm.org/hrm to register. I hope to see you there! Our April complimentary webinar sponsored by Data Facts will be April 30 at 2 PM CDT. The topic will be “How to Increase Your HR Expertise.” Mark your calendar for 2 PM CDT and join us! You will earn 1.00 SHRM PDC ad 1.00 HRCI recertification credit. Watch for your email. If you are not currently receiving an email invitation, please subscribe to our digital subscription on our website.

cynthia@hrprosmagazine.com @cythomps

LCYFFL0220

We are looking forward to the Excellence Through Leadership Conference in

Peachtree City on May 7-8. (See the website for their contingency plan.) This is always a fantastic conference with great speakers! This conference also provides 10 HRCI business credits and 10 SHRM PDCs. The location is the Crown Plaza Hotel, which offers a variety of unique indoor and outdoor event spaces among the tall Georgia pines in a breathtaking setting. Go to www.strategichrpartners.com to register.

WWW.SFBLI.COM 6

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on the cover

Sheila

MOSS

Sheila Moss, SHRM-SCP, SPHR 2020 ARSHRM Conference Chair Sheila Moss, SHRM-SCP, SPHR, is the president of the NOARK, (Northwest Arkansas Human Resources Association, Inc.) and is the Federal Legislative Affairs Director for the ARSHRM State Council. Sheila is currently serving as the 2020 ARSHRM Conference Chair. Sheila has been a frequent speaker at the Arkansas Society for Human Resource Management (ARSHRM) conferences, as well as numerous other events nationwide. She is a facilitator for the University of Arkansas Global Campus and is a volunteer for the Northwest Arkansas Council Workforce Development Committee. In 2019, Sheila became a certified instructor of SOCIAL STYLE & Versatility®. She was named 2017 Northwest Arkansas Human Resource Association (NOARK) HR Professional of the year. She is also the recipient of the 2018 ARSHRM Russell Gunter Legislative Advocacy Award. Sheila is owner of the consulting group, Information Solutions Team. She travels the nation each year presenting human resource related topics, training programs, and motivational encouragement. She is considered a subject matter expert in employment eligibility compliance and is widely known as the “I-9 Lady.” Her consulting group dedicates its nationwide presence to an initiative for increasing positive workplace behavior while specializing in social intelligence, conflict resolution, culture development, team building, career coaching, generational diversity and more. Sheila is certified as a senior professional in Human Resources by the Society for Human Resource Management and the Human Resource Certification Institute.

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How Do Elections Influence the Economy?

election campaigns begin to gain prominence in the media, one may often contemplate the effect they may have on the economy. Gary Stringer, Kim Escue, and Chad Keller of Stringer Asset Management published a wonderful article in ETF Strategist Channel on this topic. Their article suggest that elections do not have major economic impacts based on their analysis of GDP, population growth, labor force growth, and labor productivity. This caused me to wonder about the unemployment rate and jobs that were added/subtracted from the economy, in addition to what economic research may suggest. This article will review economic literature on market influences from my doctoral dissertation, and extend the work of Stringer, Escue, and Keller by examining the unemployment rate and total nonfarm payroll employment. Please note that the contents of this article is based on the opinions of the author and may not reflect the opinions of the Bureau of Labor Statistics.

Review of Economic Literature

This section highlights research from my doctoral dissertation. To obtain the original sources, please consult the dissertation available freely on ProQuest. Elections, terrorist activities, wars, and political scandals have considerable influence on financial markets. Exchange rates react faster to geopolitical events than any other form of financial investment. Research shows that election outcomes have the potential to threaten asset prices and the economy as a whole. A political resignation could potentially cause abnormal returns in the field and affect currency markets. A geopolitical event will have a negative impact on the economy when the event undermines the confidence of investors During political instability, investors seek safety by divesting their investments, which depreciates the domestic exchange rate. The democratic processes contribute to the risk premiums that affect interest rates as political events raise doubts and concern about the government. Presidential candidates often float policies that could strengthen or weaken the economy (depending on your view), therefore causing investors to anticipate uncertainties in which premium will be required for a forward position, thus affecting spot and forward markets. The risk of war also has strong impacts on fluctuations of financial variables. In economic literature, violence has shown to affect asset market reactions and it was found that conflict has significant impacts on prices of currency, oil, stock, commodities, and gold. This shows that markets are sensitive to news about future prospects. The Iraq war increased oil prices while decreasing the value of the US dollar, Treasury yields, and equity prices. Terrorist activities also have a negative on financial markets as foreign investors divest their investments. 8

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By RICHARD WORKS

Trade restrictions make the domestic economy better off by modifying the terms of trade in favor to improve current account balance that appreciate the domestic currency. However, the volume of exports has a positive effect in the GDP. Therefore, regulations limiting exports would negatively affect growth of the economy. Natural disasters and global virus outbreaks provide significant effects on financial markets and economies. Significant adverse impacts from disasters and global virus outbreaks slow down production, which disrupts import and export activities, which will yield a decrease in an economy if the economy is dependent upon exports. Less demand for a domestic currency will occur if the domestic economy is unable to meet foreign demand because of a natural disaster or similar major event.

Unemployment Rate and Jobs Added

Now that we have clearly seen that economic research supports the notion that elections can affect the economy, we will look into two measure of the economy to examine real world examples. Through this analysis, we will see if our findings corroborates economic literature, or if our findings differ, thus adding additional information to the boding of knowledge on this subject. The variables that we will examine are the unemployment rate and the total nonfarm payroll employment (jobs added). See table 1.

According to historical data, it would not matter whether a US President is a Democrat or Republican when it comes to the unemployment rate. The unemployment rate averaged similarly for both parties. On the other hand, history has suggested that Democrat presidents tend of have created more jobs when compared to Republican presidents. However, when looking deeper than the political party, it appears that more is at hand. This suggest that the political party of the President, and thus the presidential election, does not have a major effect on the unemployment rate nor the number of jobs added. This is because, regardless of political views, each President should be working for the good of the country. It would be ridiculous to consider that a President would have the goal of getting people out of work because that would have major effects on the economy and put a major strain on the government since the government is funded by taxes.

So what was going on?

World War 2 was ending as Truman was coming on the scene, but the Korean War came about toward the end of his presidency. After the Korean War ended, the unemployment rate begin in decrease, but in the latter part of Eisenhowerâ&#x20AC;&#x2122;s presidency, a recession followed an increase of the minimum wage. During Kennedyâ&#x20AC;&#x2122;s presidency, the Cuban Missile Crisis happened, and then the US entered the Vietnam War under President Johnson. During the war, a recession took place under Nixon. Then the war ended, and Ford became President, which is when the recession started to end and an expansion occurred.

War. When Clinton was elected, there was welfare reform and the School to Work Act, which was followed by expansion. However, then the Serbian airstrike occurred. When the second Bush president was elected, he also initiated tax cuts, but this effort to grow the economy was undermined by the 9/11 terrorists attacks. President George W. Bush had a rough time with the War on Terror and Hurricane Katrina, then came the financial crisis of 2008. When Obama was elected, he also initiated tax cuts, but the financial crisis caused 26 months of job losses. The Iraq War finally ended and the economy slowly started to grow, then President Trump was elected, and the unemployment rate hit record lows and the stock market hit record highs.

The verdict

It has been clearly documented in economic research that political events can affect financial markets. But the analysis of this paper suggest that political elections do not have a significant effect on the unemployment rate or jobs added. We also saw that the political event that has the biggest negative effect to the economy is war. We also saw that natural disasters can also affect the economy. So for the upcoming election, I would not expect the political outcome to influence future employment. However, future wars or unexpected disasters will have a bad impact. Thus, I concur with Stringer, Escue, and Keller based on unemployment and jobs added.

As the expansion continued, President Carter took charge and raised the Fed rate to 20% to stop inflation, which was followed by a recession. When Reagan was elected, he initiated tax cuts, an increased minimum wage, and a job training partnership act. This resulted in an expansion; however, a recession was underway when President Bush entered the Desert Storm

Richard Works, Economist

Bureau of Labor Statistics â&#x20AC;&#x201C; Washington, D.C. works.richard@bls.gov www.bls.gov

We use our best tools to make your job run smoothly and efficiently. FordHarrison is a labor & employment defense law firm with 29 offices, including three affiliate firms, and is the sole member of the global employment law firm alliance, Ius Laboris. Guided by the FH Promise, FordHarrison delivers the highest quality legal service and communication to our clients. www.fordharrison.com

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Envisioning and elevating the competitive advantage of organizational culture

By J. PATRICK GALLAGHER, JR.

A tight labor market creates pressure to offer the most expensive and extensive compensation and benefits. Under these conditions, resisting the urge to chase quick wins can pay off — if the long game is a focus on culture. Compensation and benefit packages are easily matched or exceeded by competitors. When leadership centers their talent attraction and retention efforts on cultivating a better work environment and experience, they’re investing in a sustainable and profitable approach to talent management. Research has explored the link between culture and business outcomes. Recent findings from Columbia University suggested the intention to change jobs and employers, within a year, was very likely for 48.4% of employees at “low culture” organizations, compared to 13.9% at “high culture” organizations.¹

RECENT FINDINGS FROM COLUMBIA UNIVERSITY SUGGESTED THE INTENTION TO CHANGE JOBS AND EMPLOYERS, WITHIN A YEAR, WAS VERY LIKELY FOR

48.4% OF EMPLOYEES AT

A COMPETITIVE VALUE STATEMENT Good cultural intentions aren’t quite good enough in a competitive talent marketplace where younger generations are known to possess and express a “prove it” attitude — but a well-defined value statement makes a firm commitment. This proposition sets both employee expectations and employer guidelines for meeting them. For instance, it provides the foundation for a rewards package and employee programs that fully support recruitment, retention and cost management goals, as well as shareholder interests. When employees and potential hires consistently experience these stated values, they’re more likely to feel a sense of belonging that builds trust and confidence in the organization. The value proposition is also a unifying force for aligning the hiring, promotion and succession planning processes. It helps attract people with the same ideals who are more likely to stay and grow with their employer.

“LOW CULTURE” ORGANIZATIONS, COMPARED TO

13.9% AT “HIGH CULTURE” ORGANIZATIONS.¹

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SHARED GOALS AND VISION FOR THE FUTURE A clearly articulated and communicated vision makes it easier for employees to relate their roles and goals to the organization’s mission. To keep this connection meaningful, employers should look ahead to the needs of the next workforce generation. Investing in technologies and VISION to periodically measure and address evolving workforce priorities will continually transform the culture, and drive performance. This focus is about helping employees see what’s ahead of them and establishing the plans, partnerships and other support they need to face their futures with confidence. When this happens, they become more engaged and better able to withstand external disruptors like changing economic conditions. In a recent survey analysis, organizations that ranked as top performers — at managing both healthcare costs and HR — excelled at making sure employees know their individual contributions are valued.²,³

CLOSER ALIGNMENT OF INCENTIVES An integrated approach to supporting employees’ health, career interests and financial needs is a compelling bid for attracting highly qualified talent. Prospective candidates recognize the underlying compensation and benefits as a commitment to an exceptional employee experience. And integrating succession planning into talent management further enhances retention efforts and results. It’s important to identify and define roles, make good use of data, and institutionalize talent development and career wellbeing to keep growth opportunities strong. Healthcare benefits are still in high demand with no cost relief in sight. And now that cost shifting to employees is a greater deterrent to securing talent, employers need to home in on the unique drivers of their healthcare spend. Directly addressing these drivers helps keep benefits affordably attractive. At the far end of the employment time span, retirement has been slowed by lack of financial readiness. Employers will be better able to counter these trends if they connect employee and organizational wellbeing with methods and resources that build resilience. Repositioning existing benefits and adding affordable, newer options can provide cost-effective solutions. Total rewards form the backbone of a culture that promotes affinity. The more closely they align with workforce demographics and job types, the more strongly they appeal to employees — and serve as reliable attachment points to the organization.

¹ Columbia University Libraries, Elizabeth Medina, Thesis: “Job Satisfaction and Employee Turnover Intention: What Does Organizational Turnover Have To Do With It?,” February 2013 ² Arthur J. Gallagher & Co., “Best-in-Class Benchmarking Analysis for Midsize Employers,” April 2019 ³ Arthur J. Gallagher & Co., “Best-inClass Benchmarking Analysis for Large Employers,” April 2019 Consulting and insurance brokerage services to be provided by Gallagher Benefit Services, Inc. and/or its affiliate Gallagher Benefit Services (Canada) Group Inc. Gallagher Benefit Services, Inc. is a licensed insurance agency that does business in California as “Gallagher Benefit Services of California Insurance Services” and in Massachusetts as “Gallagher Benefit Insurance Services.” Neither Arthur J. Gallagher & Co., nor its affiliates provide accounting, legal or tax advice. This is just one of 19 articles from Gallagher’s 2019 Organizational Wellbeing & Talent

J. Patrick Gallagher, Jr.

Chairman, President and CEO Arthur J. Gallagher & Co.

Better. It’s something all companies strive for. Better outcomes from better performace. But how do you get there? Visit ajg.com

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Strategies for Handling an EEOC Investigation:

Investigate, Communicate, and Cooperate By KAYLA L. ROBINSON

U.S. Equal Employment Opportunity Commission (EEOC) investigations require a coordinated effort throughout various parts of an organization – including human resources, the legal department, and business operators. With so many sectors of a company involved, it is important for companies to develop strategies for handling these investigations. This article highlights some of the strategies that companies should implement, if they haven’t already, when handling an EEOC investigation, and how to leverage these strategies when navigating the possible outcomes of an EEOC investigation.

Investigate The centerpiece of responding to an EEOC investigation is establishing the factual record. This record will be used in the company’s position statement to the EEOC, the company’s response to any EEOC requests for information, and, if the case proceeds to litigation, the Company’s strategy during the litigation. In light of this, companies should place an early emphasis on investigating the facts underlying the EEOC charge. Ideally, the company has already investigated the facts, particularly in cases where an employee made previous complaints directly to the company. Even if an investigation previously took place, it is important to verify the facts of that investigation. At a minimum, this means re-interviewing the managers involved, reviewing other witness statements, and ensuring all relevant documents have been compiled. This process facilities the company’s response to an EEOC investigation in two ways: first, it enables the legal department to draft an effective position statement in response to the EEOC’s investigation. Second, it refreshes the recollection of managers and other witnesses, which will be valuable if the EEOC requests to interview these individuals.

Communicate This strategy can be divided into three subparts: (1) communication with the EEOC; (2) internal communication; and (3) communication of the company’s position through the position statement. Communication with the EEOC This may seem intuitive; however, it is important for any company to maintain open communication with the EEOC. If a company chooses to use outside counsel for the EEOC investigation, it is important for outside counsel to reach out, as soon as possible, to the EEOC with a letter of representation. Once outside counsel enters an appearance, all EEOC communications will go through counsel, ensuring that all that information is disseminated appropriately throughout the company, and no message goes unnoticed or ignored. Even if a company does not elect to use outside counsel, it is advisable to appoint someone 12

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within the company, ideally from the legal department, to act as the primary point of contact for the company during the EEOC investigation. In addition, it is vital to respond timely to EEOC requests for mediation, requests for information, and to inform the EEOC of any needed deadline extensions. This ensures that the company maintains goodwill with the EEOC and also ensures that no deadlines are missed, which could result in adverse findings against the company. Internal communication Communication internally is vital to navigating an EEOC investigation. HR professionals need to communicate with business operators in order to determine the factual record. Legal professionals, whether in-house or outside counsel, have to maintain open communication with both HR professionals and business operators in order to ensure that information is provided to the EEOC timely, accurately, and effectively. This communication can be achieved in various ways, however, it is always helpful to have at least one meeting, either in person or by phone, with all actors involved in order to facilitate the sharing of information. The Position Statement The position statement constitutes a company’s official response to a charge. Its reach, however, goes much farther than the EEOC investigation process. In general, the position statement should communicate a company’s response to all allegations made in a charge. However, the position statement can also be used by a charging party in a subsequent litigation to demonstrate pretext, meaning that a company’s non-discriminatory reason for taking an adverse action was used to disguise its discriminatory intent. Accordingly, it is essential that a company pay particular attention to the information that is communicated through its position statement. A company’s investigation into the facts and open internal communications throughout the EEOC investigation will help ensure that adequate and accurate information is included in the position statement. In addition, counsel drafting the position statement should ensure that all relevant actors in the company review the position statement – including business operators. Having HR professionals and business operators review the position statement minimizes the potential for factual errors and decreases the likelihood that the position statement could be used to demonstrate pretext in subsequent litigation.

Cooperate Successful participation in an EEOC investigation requires that all parties involved cooperate and work together to achieve the best possible outcome. In addition to the position statement, the EEOC may require a company to respond to requests for information, permit the EEOC to conduct a site visit, or set up interviews. These requests can be unsettling

for a company, but reasonable cooperation, in conjunction with the open communication that a company has established internally and externally with the EEOC, will facilitate any of the aforementioned investigative actions taken.

Possible Outcomes When implementing these strategies, companies should also keep in mind the possible outcomes of an EEOC investigation, and also be mindful of the EEOC’s mediation program. There are three possible outcomes of an EEOC investigation. First, a “no cause” determination can be issued, which means that the charge is dismissed after the EEOC’s investigation, and the EEOC issues the charging party a notice of the right to sue. “No cause” determinations have historically been issued in over half of the EEOC’s investigations. Second, the EEOC may issue a “cause” determination. The EEOC will issue a “cause” determination if it determines during the course of an investigation that there is reasonable cause to believe that discrimination occurred based on the evidence received during the investigation. The third outcome, conciliation, occurs only if the EEOC issues a “cause” determination. After the EEOC has issued a “cause” determination, it will attempt to work with both parties to agree on relief for the charging party. If the EEOC is unable to successfully conciliate the charge, it will issue a notice of the right to sue or, in rare occasions, agree to file a lawsuit on behalf of the charging party. “Cause” determinations historically have been issued in less than 10% of investigations and the EEOC has historically filed suits on behalf of charging parties in less than 5% of investigations.

Shortly after the start of an EEOC investigation, the parties have the opportunity to participate in the EEOC’s mediation program. The mediation program can be particularly useful as it will pause any EEOC investigation into the charge, and the parties will instead determine whether they can reach a resolution. Companies should consider utilizing the mediation program if, after evaluating the charge, the company determines that the factual record is incomplete or may lead to a cause determination.

Overview In summary, when a company is subject to an EEOC investigation, it is essential that all of the actors involved, including business operators, HR professionals, and the legal department, implement the following strategies: (1) investigate the claims fully; (2) communicate openly internally and with the EEOC; (3) effectively communicate the company’s position in its position statement; and (4) cooperate with all follow-up requests from the EEOC. It is also useful to keep in mind the possible outcomes of an EEOC investigation, and be aware of the EEOC’s mediation program, when implementing the aforementioned strategies and navigating through the investigation process. While an investigation may appear daunting at the outset, these strategies will ensure that the investigation yields the best results possible for the company.

Kayla L. Robinson, Attorney

Martenson, Hasbrouck & Simon LLP krobinson@martensonlaw.com www.martensonlaw.com

Martenson, Hasbrouck & Simon LLP focuses its practice

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The Future of the Organization is

NOW By BRAD FEDERMAN

Imagine working in an environment where the risk of a project failing is increasingly high, destructive technology is available to rogue governments and individuals at large, economic stability is in question at times, and/or a pandemic poses a global risk. It should not be that difficult to imagine. We are getting a taste of that at the moment. How prepared is your organization? How prepared is your people strategy? How prepared are your people? In the next ten years your world will change faster and to a greater extent than at any time in the past. Imagine a workplace where Human Resources ceases to exist as a function because of automation, outsourcing and contracted teams. As far-fetched as that seems you must be ready for anything, for what is around the corner will seem foreign to many and may cause you to suffer mental vertigo if not prepared. Admittedly it is difficult to predict the future as there are many complex forces at play and unpredictable events. However we can share trends and their potential impact. Below you will learn about 4 trends that will undoubtedly shape the future workplace.

The Sharing of Talent The employer-employee contract was broken years ago, and it has been evolving ever since. We have moved into an era, expectedly so, where talent is very focused on themselves. There is a “me” mentality. Employees realize that they will have to create income for up to 50 years of their life. Their desire to be sharper and more marketable is driving their choices. At the same time they are becoming increasingly comfortable being in the driver’s seat and contracting for work. The gig mentality is growing. Organizations will lose the ability to maintain the mindshare of their people as they search for the best use of their time and career. Organizations will share talent. Boundaries will disappear. In some ways that will benefit organizations. They will have talent when they need it. However they will have to compete to get the best. Will gig workers organize? Will they get representation? What will that new frontier look like? Will organizations and institutions still hold the power or will it move toward individual?

The Virtual Organization

We have moved into an era, expectedly so, where talent is very focused on themselves. There is a “me” mentality. 14

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For years we have thought about organizations by location and function. As we progress our teams will continue to become more cross-functional and lack a geographic definition. They will be driven by three trends. First, growth will happen in developing countries and wealth distribution will shift towards those areas. One reason for this will be their significant population growth that will feed the talent pool. The second reason for this is that talent will move to places they view as desirable, not where organizations are located. Knowledge workers crave and will deliberately select locations that cultivate their creativity and growth.

The third trending force will be technology and the ability to work with others regardless of location. We are already feeling the initial effects of this change. However in the future it will become more of the norm. If you want creativity, insight, and talent virtual will be the name of the game. Borders and boundaries will fade away to a large extent. Knowledge is not contained or bound. It exists across geographic, political or economic borders. Think of a workplace as a space where people, global networks, meet up to share, learn and create.

Insights over Data Data analytics. We all know what it is and have deemed it important. Organizations have spent exorbitant amounts of money to gather data. Human Resources has focused on HR analytics. But are we smarter for all that time and money spent? Many would argue we are not. We drown in data and yet we still lack wisdom. Insight/ Vision created from data will become the next currency. Those with the talent to help organizations make better use of data and make sense of information will drive the next phase of economic growth. Those insights will be spawned by people with special talents. While workplaces will still gather data and use technology, they will be constructed around people.

Instability and Unexpected Change Change is inevitable. Asia will rise in power with China eventually becoming the largest economy. New economic partnerships and powerhouses will dwarf the European Union. Terrorists will continue to exist and create disruptions to political structures and economies. However, their tactics and approach change. Terrorists will look to attack our technology infrastructures more and more. Experts also expect more pandemics to occur over the next decade. All of these trends will force organizations to manage security issues without harming their ability to be flexible and shift on a dime. That will be a major challenge. More security means difficulty communicating, working, sharing information and more. Those two goals typically conflict with one another. Those that can crack that nut will win. Regardless of how these trends play out one thing is almost certain. We will have to build flexible teams out of contracted, gig-mentality individuals that are located across the globe in areas they deem desirable, moving faster than organizations of today and that our current regulations will allow while still making a profit in times of massive change and uncertainty. So…how prepared are you?

Brad Federman, CEO

PerformancePoint LLC bfederman@performancepointllc.com www.performancepointllc.com

Engaged Employees. Resilient Relationships. Collaborative Cultures. • Customer and Employee Experience • Compensation Strategies • Strategic HR (Analytics) • Leadership & Talent • Diversity & Inclusion • Change & Transformation

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Harassment Claims Against C-Suite Executives: Tips for Employer Investigations

By HOWARD B. JACKSON and ROSALIA FIORELLO

In light of movements such as #MeToo and #TimesUp, companies are preparing management and Human Resource (HR) departments to combat and investigate harassment in the workplace. Many HR professionals are well-equipped to handle such investigations and provide appropriate advice for corrective steps as needed. But suppose the alleged harasser is a C-suite member rather than a rank-and-file employee or low-level supervisor? (“C-suite” members generally include officers and senior management such as President, Vice President, Chief Executive Officer (CEO), Chief Financial Officer (CFO), and Chief Information Officer (CIO).) This article explores ideas for preventive steps that can help reduce the likelihood of receiving such a complaint, and thoughts about how to handle the investigation and follow-up if one does occur. A good starting point is the employer’s policy. The policy should provide information about the type of conduct that is prohibited, including examples. It should provide clear direction regarding how to communicate a concern, usually to a member of the HR department. The policy should provide alternate reporting mechanisms as well. For example, it may state that if the concern is with the CEO, a report should be made to the Vice President of HR, who is authorized to report the concern to the Board of Directors. Alternatively, the policy may provide that a report may be made directly to the Chair of the Board of Directors. The point is to let employees know how to communicate a concern when a high-ranking member of management is the subject of concern. Training is another essential preventive component. It should emphasize that the no-harassment policy applies to everyone regardless of rank, and everyone should receive training regardless of rank. One of the best preventive measures is “buy-in” from the top. For this reason, it is important that C-suite personnel attend and actively participate in the training along with others. This sends a message both to the C-suite members and to others present that the subject of harassment is significant, worthy of time and attention, and taken seriously by the company, including those at the highest levels of the organization. Young employees or temporary workers such as summer interns or under-age minors should not be overlooked, and should also receive training. They may be more susceptible to being taken advantage of by coworkers or superiors, especially members of upper management who could attempt to take advantage of their position. If - despite appropriate preventive measures - allegations of harassment by a C-suite member arise, there are special considerations. First, the organization should notify their employment law attorney and bring them into the situation immediately. There are obvious needs for legal advice, and for decisions on strategic directions as discussed below. The organization should consider whether to retain a third-party investigator. The answer will frequently be “yes,” even if the executive does not directly oversee the highest-ranking HR official. The relationship between the HR officer and the accused – whether congenial or contentious – could create questions about the objectivity of the investigation. In any event, the decision of whether to use a third-party investigator should be made carefully, as the investigation will be important not only to the attempted initial resolution, but to defense of any subsequent legal challenge. 16

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If a third party will be retained, the decision of who to retain is important. Ordinarily, the organization does not want its usual employment law attorney handling the investigative role, because the role of legal counsel and investigator are separate functions. In addition, if the attorney conducts the investigation then he or she becomes a fact witness, and an attorney cannot be both a witness and a legal advocate in the same proceeding. Thus, using the attorney as an investigator would result in losing them as the organization’s defense counsel, if circumstances were to evolve into litigation. The organization should also consult with its employment law counsel to identify an appropriate third-party investigator. Sometimes this can be another attorney in the community, or there are also a variety of experienced HR consultants who can fill this role. Another question is: who will receive the investigator’s report? If the accused is a C-suite member but not the CEO, then it may be that the CEO and the highest-ranking HR official would be the proper recipients. If the accused is the CEO then the investigator should be retained by the Board of Directors and the investigator’s report should be provided to the Board of Directors. With respect to corrective action the usual rules apply. The action to be taken depends on the facts found in the investigation. It is important to assure both the accused and witnesses that no retaliation may be permitted. This is especially important where the accused is a C-suite member because there will almost certainly be widespread perception that if the allegations do not result in that person’s removal then retribution will follow, and this cannot be allowed. It is also appropriate to provide feedback to the accuser after the investigation has concluded and the corrective action (if any) has been decided. Whether the accusations had merit or not the accuser should be provided assurances that retaliation will not be tolerated, and given specific instruction for how to communicate if he or she believes it is occurring. Hopefully preventive measures will be effective and your organization will not have the unfortunate experience of such an investigation. If the issue does arise, work closely with your employment law attorney from the start, as there are many possible twists and turns and receipt of good legal advice along the way can be invaluable.

Howard B. Jackson, Member

Wimberly Lawson Wright Daves & Jones, PLLC hjackson@wimberlylawson.com www.wimberlylawson.com

Rosalia Fiorello, Associate

Wimberly Lawson Wright Daves & Jones, PLLC rfiorello@wimberlylawson.com www.wimberlylawson.com

Newsletter Date

Volume 1, Issue 1

TOPICS OF INTEREST:

41st Annual Labor & Employment Law Update Conference Se v ie rv i l l e C on ve n ti on C en te r Wi l de r ne s s at t h e Sm ok ie s , S ev i er v i l le T N Ju st 30 m in ut e s f r om d o w nto w n K n o x vi l l e!

November 12—13, 2020 Our annual Fall Conference is truly the high point of the year for us — a time to gather with friends and discuss important, contemporary employment law issues. This year the Conference will offer sessions that summarize relevant past year’s developments while offering insight into the employment and labor climate as affected by the upcoming 2020 Presidential, Congressional and State elections. PLEASE PLAN NOW TO JOIN US! Jeffrey G. Jones Firm Managing Member

Impact of the 2020 Elections The U.S. Supreme Court, Religious Liberty, and Title VII Marijuana Legislation and Drug Testing Sexual Harassment and Internal Investigations Agency Updates: NLRB, DOL, EEOC, OSHA, etc. including Joint Employers FMLA, ADA and other Leave Laws Employee Hiring, Retention, and Termination And More!

Our day-and-a-half program covers important legal decisions and societal trends affecting employment.

Approximately thirty employment law attorneys will present more than thirty-five topics that have been carefully selected to address the concerns of all employers, and give you an opportunity to select from a wide array of topics dealt with in detail. Please join us in Sevierville, Tennessee (just 30 minutes from downtown Knoxville) on November 12th and 13th! We promise you an informative, but light-hearted, thorough and practical journey through today’s workplace issues. Hope to see you there!

Jeff Jones

A w o r d a b ou t ou r C o nf e r e nc e M a t e r i a l s

A FEW COMMENTS FROM LAST YEAR

Valuable handout materials for the Conference include not only PowerPoint presentations, but also our 2020 Conference Manual, a handsome hardbound publication that contains outstanding reference articles, written by Wimberly Lawson attorneys, on all important topics discussed in the live presentations.

“Highly organized, with relevant and timely information”

For additional information and/or to register, please contact:

“Very entertaining, fun and interactive!”

Glenda Mahoney, Conference Coordinator

“Presenters were knowledgeable and friendly”

TO REGISTER

Email: gmahoney@ wimberlylawson.com Phone: 865-546-1000

“Location, topics, presenters—well done!” Fax:

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Beyond the Scope of Disaster Response Plans: The Need for Business Continuity Management Before, During, and After COVID-19 By KIMBERLY LAFEVOR

During the COVID-19 event, it seems we are all drinking from a fire hydrant with the volume of information and advice we are receiving from our organization’s internal and external stakeholders, as well as a variety of others, well-intended of course, as to how best to handle this national emergency and pandemic. Hurricanes Katrina, Andrew, and Rita, Virginia Tech Massacre, Y2K bug, Terrorism in London, Madrid, Middle East, and U.S. with the 9/11 attacks, Asian Tsunami, SARS, Earthquakes in Christchurch, Chile, Haiti, and Japan, H1N1, and now COVID-19 , the common trend is that crises are inevitable and far reaching and affecting all types of organizations with broadly different missions, cultures, and organizational aims (Adkins, Thornton, & Blake, 2009). Based on our experiences and exposure to such events, both globally and domestically, we know that crises are inevitable, yet many organizations find themselves at minimum with a disaster response continuity plans (DRCP) or without tangible, well thought out and tested business continuity plans (BCP) to optimize the organization’s ability to deal with the risks. So, based upon any crisis event, such as the COVID-19 pandemic, how can organizations respond? How do we deploy existing disaster contingency response or business continuity plans, and in the absence of them, what are the options? And most importantly, in addition to concern for protecting organizational brand, financial health, and sustainability, how do we keep the ‘human’ embedded in our business continuity management (BCM) response strategies?

Framing an organizational response: What is the difference between crisis response approaches? Every organization should have some form of a crisis response plan. While both are helpful in providing guidance to organizational actions, a BCP is a blueprint to avoid or mitigate risks, while a DCRP is designed to respond to disasters as they occur. A DCRP is a prepared response to a disaster for which the organization has planned and includes six important components: 1) specific procedures to enact when a disaster occurs, 2) identification of primary and alternate team members and their specific duties, 3) notification procedures and alternate meeting site locations, 4) workaround processes to keep the function operational while impacted resources are being restored to business as usual, 5) contact list of all personnel and the functions they are qualified to perform, and 6) identification of all internal and external vendors and each vendor primary and alternate contacts. By comparison, a BCP expands beyond the aims of the DCRP and shares three primary, yet broad and comprehensive elements: 1) identification of major risks of business interruption, 2) development of a comprehensive plan to mitigate or reduce the impact of the identified risk, and 3) training employees and testing the plan to ensure that it is effective (Cerullo & Cerullo, 2004). Whether a DCRP or BCP, these facets in a crisis response is mission critical.

What if my organization does not have a business continuity plan for a crisis response? The stark reality is that a significant number of organizations do not have a crisis response plan. Although they present the most effective response, BCPs have been adopted on a limited basis and approach varies based on type of industry. Organizations that do employ BCP tend to prepare for three primary types of events: 18

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1) natural disasters (31%), 2) electronic disasters (41%), and 3) terrorism/warfare (34%). However, there remains a dearth in organizational preparedness of other events, such as pandemic/employee health (11%), manufacturing disaster (7%), transportation disaster (3%), public relations crisis (7%), corruption/scandal (6%), economic disaster/market collapse (7%), workplace violence (4%), industrial espionage (14%), and financial ruin/bankruptcy (9%) (Adkins, Thornton & Blake, 2009). The current state presents an opportunity for organizations to bridge crisis response plan gaps.

Employing a Business Continuity Management System (BCMS) A Datapro study concluded that without robust planning as much as 43% of companies hit by severe crisis never reopen, and 29% fail within two years (Cerullo & Cerullo, 2004). Therefore, having a comprehensive business continuity management plan can best ensure organizational sustainability. There are three key disciplines related to business continuity management: 1) emergency response, 2) IT disaster recovery, and 3) a business continuity plan. A sound continuity plan takes a holistic view of the business enterprise. It should be preventative, repressive, and corrective. Organizational leaders must keep in mind that a strong business continuity management system: 1. ensures continuity of the organization with processes which are key to the core of the business are controlled for risks 2. focuses on critical business processes 3. addresses the full period of time of any crisis: before, during, and after a disaster 4. employs a permanent and interactive management process (Jedynak, 2013) Effective BCM planning begins with an analysis phase that includes conducting a business impact analysis and risk analysis, creating impact scenarios and then comparing the results against the aggregate crisis preparedness of the organization. Organizations should arm themselves amidst the panoply of risks in today’s global environment with a risk-resilient business continuity management system and enriched solid crisis response capabilities.

Organizational brand, financial health, sustainability, and keeping the ‘human’ embedded in response strategies? Most BCPs are designed at operational effectiveness postcrisis, but do not generally assess and address people-related challenges (Malinen, Hatton, Naswall, & Kuntz, 2018). As

organizational leaders, we have to remember that crises, such as the COVID-19 pandemic, are not just national events, but they also affect individuals and groups who experience them. When crisis occurs, it is a defining moment for an organization to showcase its brand, its business acumen, its financial health, its resiliency, but also reflective of its culture.

convincingly articulate to employees, customers, regulators, and other stakeholders the impact on its operations and controls, as well as staunch assurances of how the organization is enabled to capably respond.

Communication is key as it presents an opportunity for organizational leaders to convey their commitment to duty of care during a crisis to employees, their families, contractors, and customers.

In Conclusion

Key questions to answer: 1. In the short-term, in the absence of a crisis response plan, which employees have the expertise to quickly assist in the development of an organizational response? 2. Where there are DCRP or BCP’s in place, do employees know the crisis response plan? 3. For long-term sustainability, have we audited our existing business continuity management system and made needed changes? 4. Does the adopted crisis response plan clearly define stakeholder responsibilities? What considerations have been made to mitigate and control risks for both internal and external stakeholders? Does the plan balance the welfare of employees with business necessity? 5. Are there robust communication mediums and processes in place to keep stakeholders updated throughout the crisis? Answers to these questions can serve to better prepare organizations for crisis management. According to Samson (2013), “Preparedness is the first step in response, but response is the critical test of preparedness” (p. 57). In a crisis event, such as the present pandemic of COVID-19 , organizational leaders need to

Everything in our economy is interconnected: corporations, small businesses, the housing market, the stock market, unemployment rate, federal government, personal finances, and healthcare (Adkins, Thornton & Blake, 2009). Crises can and will happen that will affect them. As organizational leaders, we must also come to terms that while past losses can serve as helpful indicators, the greatest organizational risk exposure stems from events that management has not yet envisioned (Melton & Trahan, 2009). It is important to remember, a crisis becomes a defining moment that poses a unique opportunity to elevate organizational brand, draw upon business acumen, demonstrate financial health and organizational resiliency with a central focus on both sustaining future business operations, but also duty of care in assuring the well-being of its people.

Kimberly LaFevor, DBA, SHRM-SCP, SPHR, IPMA-SCP, NDC-CDP

Dean, College of Business Athens State University Kim.LaFevor@athens.edu www.athens.edu

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1 (L) Crystal Cooper Wilson, President of Shoals Chapter SHRM (R) Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR, Editor | Publisher of HR Professionals Magazine, was the speaker for the three-hour workshop in Florence, AL on March 12. 2 Shoals Chapter SHRM Board of Directors

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Landing the Best Employees in a Candidate’s Market By TAMMY HENRY

Unemployment rates are staggeringly low, and it could be argued that everyone who wants to work is doing so. How does that affect employers who need to fill open positions? The answer is… a whole lot. When seats stay empty for weeks or months because there are no job candidates to fill them, productivity, efficiency, and even company culture suffer. Morale can plummet because of over-worked employees, and it can create an all-round negative environment. Luckily, there are ways to decrease the ripple effect of a sparse applicant pool. Don’t get stuck with open positions or settle for less-than-stellar people to fill them. Plan ahead to make sure you can still land the best employees, even if it is a candidate’s market.

Nail the Job Description If your hiring process is a journey, the job description is an HR professional’s roadmap. Slapping one together to try to move quickly can backfire with a stack of resumes that doesn’t fit what you really need. Job descriptions should have plenty of details about the requirements of the position and the skills needed to do the work properly. After reading it, candidates should have a clear understanding of the position and whether they are qualified. Don’t let descriptions get stale, because jobs evolve and morph from year to year. Make certain all your company’s descriptions are accurate and up to date, so you begin with a good pool of resumes.

Spice Up the Benefits Millennials especially love benefits and a strong package can entice them to accept a job even if they could pull down more money somewhere else. Plain old health and dental packages aren’t going to woo the candidate you might want the most. Get creative! Think about customized benefits like taking care of student loan debt, offering 22

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vision care, and increasing PTO days. Even small benefits, like casual dress, bring your dog to work, or provided lunch on Fridays go a long way toward looking better than your competition. Yes, these are company expenses, but they are programs that build employee morale and inspire loyalty so you don’t face vacant positions as much as you might now.

doing the same thing for years down the road. From the first touch (job description) through the interview, learning, growth, and advancement opportunities need to be clarified and highlighted. If a job seeker is weighing two or three offers, and everything else is equal, the one with the greatest capacity for growth potential will almost always be the one they choose.

Another big way to land candidates is….

Amp Up Your Giving

Be Flexible

It’s not just a benefit to talk about your company’s benevolence, it’s almost a requirement these days. Modern job seekers want to be a part of making a difference, and this includes working at a place that cares about the less fortunate, the environment, and the good of the world in general. Add conversations about paid volunteer days, coat drives, and other participation in good causes into the interviewing process. Make your applicants feel like it would feel good working at your organization, and you’ll edge out the competitors that aren’t as generous and philanthropic.

Flexibility is number one on most employees’ wish lists. The ability to work from home and fluid vacation days often attracts more higher performers than a fat salary! In addition, options like job-share and projects that allow cross-departmental communication can entice high-quality job applicants to opt for your job over the other ones they are considering.

Tend Your Candidates Like Flowers Gone are the days when job seekers sat by their computers waiting for an offer email. In this hot job market, they just go find a different one! Critically evaluate your candidate experience and address the weak points. Are your hiring managers respectful of the applicant’s time? Are they friendly and welcoming? Do they explain the next step, so the candidate isn’t languishing in the dark, wondering what’s next? Another important factor is to find a background screening partner with quick turnaround times. Making your top choice wait in limbo for 2 weeks while the background report is completed might force him or her to accept a different position at another company.

Finding and landing quality hires in the current low-unemployment environment may be challenging, but it’s not impossible. A little creativity, polish, and commitment to efficiency can increase your company’s chances of snagging your top choices for the positions you need to fill. Use these actionable tips and you will see that you CAN still hire the best employees available, even in a candidate’s market.

The candidate experience should be flawless from the first contact through onboarding.

Showcase Growth Opportunities When job candidates see potential to grow and advance, they’re more likely to choose that path than one where they’ll be stuck

Tammy Henry

Vice President of Client Success thenry@datafacts.com www.datafacts.com

State of the Art Compensation Management Blair and Bruce Johanson have careers in the human resources field and management administration for over 35 years each with specialization in employee compensation programs. Blair and Bruce have implemented several personalized Job Evaluation and Salary Administration Programs for organizations within the public and private sectors. Founded in 2005, DB Squared, LLC, is dedicated to providing a software tool that will increase the productivity of Human Resource staff, improve employee morale and the return for compensation dollars of the organization. JESAP (Job Evaluation and Salary Administration Program) is a program custom-developed by the Johanson Group in 2001. The program is modeled after the firm's proprietary JESAP methodology and job valuing algorithm, which originated in 1985.

Blair R. Johanson Blair R. Johanson, the firm’s president, has over 35 years of business operations experience with a focus on strategic planning, budgeting, hospital and physician management, and marketing and human resource management. Prior to joining Johanson Group, Blair was employed by Pendulum Practice Management Company, Physicians Resource Group, Inc., and Charter Medical Corporation. As a senior vice president, regional operations vice president and hospital administrator, he provided development and operations leadership for numerous physician practices and hospitals. He graduated with a master’s degree in business administration and B.S.B.A. degree in personnel administration from the University of Arkansas at Fayetteville.

Bruce E. Johanson Bruce E. Johanson, a principal officer/partner of the firm, has served in a management capacity in various corporate and non-corporate positions since 1979. Those positions included five years of experience with two major multinational corporations, several years of instructing in various disciplines at the university level, and over 30 years as a management consultant to a diverse client group throughout the United States. He has experience in areas of international business with small, medium and large corporations. Bruce joined Johanson Group in 1986 and served as President of the firm from 1988 until 2000. He received his B.S.B.A. in personnel management in 1978 and his M.B.A. in 1979, both from the University of Arkansas at Fayetteville.

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

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What is the most important feature of a W E L L N E S S program? By KATIE O’NEILL Amazon.com

hen it comes to promoting better health in the workplace, there is no shortage of solutions, products, and confusion. The options can start to sound like a Dr. Seuss book: There are programs for eating, exercise, stress and naps; there are programs in person, by phone, or on apps. While all of these things are important pillars for a program, the most overlooked and important aspect to include in a wellness program is not about incentives, challenges, or a new solution. The most important feature is simply, intention. While intent and meaningful outcomes are the driving force behind investing in a program, they can be lost in the shuffle. Being intentional with the overall strategy and the program components helps to drive a goal and purpose, making more effective use of the invested time and funding. Saving money on healthcare costs or improving health are general end goals, but being purposeful creates a better overall strategic direction. For example, instead of a broad focus of “I want our employees to have lower health care costs”, frame it as “I want our employees to become more invested in their own health and to have the resources and motivation to become healthier”. With this focus, you can evaluate the pieces and parts and determine if they fit the overall intent vs. following a formula that might not work. Here are some examples of how to promote a more intentional approach with workplace well-being: Initiatives and activities fulfill a purpose and not a checkbox Administering a wellness program on top of the many other duties and responsibilities of human resources can be understandably daunting. It can be tempting to wash, rinse, and repeat the same campaigns and activities every year. But, are these activities continuing to make an impact? For example, biometric screenings and health risk assessments may help employees initially become aware of their health status, but after a few years, they can become transactional to achieve an incentive, without any change or action the other 364 days of the year. The environment matches the intended goals Managing weight and chronic conditions amounts to the small things done every day, over time. While one-time events can help promote enthusiasm and motivation, it is important to support on an on-going basis through behavior change. Willpower tends to ebb and flow, but habits shape outcomes. Make sure the healthier choice is the easier choice (keeping unhealthy foods at a minimum in the workplace, and promoting daily walking and stretching breaks).

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The policies match the intended goals Behavioral health and stress management solutions are trending, but often times the workplace policies can contribute or detract from the results. Poor work life balance not only interferes with mental wellbeing, but it can also contribute to decreased morale, poor lifestyle choices, relationship stress, loneliness, and decreased health status. Unused PTO or working during PTO, long commutes, overly taxing workloads, and unescapable stress are counterproductive to creating the space needed for healthy habits to take root. You can put yourself in their shoes One of the most simple and important questions to ask yourself before implementing an initiative, is “Would I engage in this program, if that was my situation? Would this be useful?” For example, watching a short video on a condition might be required to gain an incentive, but will it impact behavior? Is it providing any information that was not already known? Abandon the carrot or stick mentality People can be both predictable and baffling in their behaviors, and boiling motivation down just to reward or punishment can be limiting. Neither of these can replace intrinsic motivation, which can change over time and differ from person to person. Ultimately people make choices based on their habits, and those habits are based on their currency— what is valuable and meaningful to them. Encouraging small, frequent rewards and understanding what people value can help create a better incentive structure. If time is their currency, consider how flexible work schedules or personal care days can help promote making healthier choices. Also, evaluate programs and initiatives that allow everyone the opportunity to improve their health (including spouses) in the areas where they need the most help (physical, mental, social, and emotional health). Navigating the world of workplace wellness can be an overwhelming experience, with many considerations from engagement to compliance. Being intentional with initiatives can help provide the view of the forest through trees. Remember, as Dr. Seuss said, “sometimes the questions are complicated and the answers are simple.”

Katie O’Neill, DC, BS

Vice President, Clinical Wellness Practice Leader McGriff Insurance Services, Inc. Email: Katie.ONeill@mcgriffinsurance.com

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BUILD TALENT BENCH STRENGTH NOW!

BY TRISH HOLLIDAY

“What you leave behind is not what is engraved in stone monuments, but what is woven into the lives of others.” —Pericles The expected mass exodus of retirements did not occur; instead it has been a slow stream of retirements. As a result, many organizations have been considering succession management as an important but not urgent issue for their success. This perspective has often created a lack of preparedness regarding talent and being future-ready. Herein lies the urgency for accelerating leadership development within organizations. When one thinks of what makes a great leader, it is often connected to the relationships that are created with that leader. Leadership is about relationships. Part of a leader’s role is to develop others and help them reach their potential. For business to be successful it needs great talent. Great talent needs to constantly be nurtured and developed. Research suggests that development is a valuable retention tool. Retaining top talent in today’s competitive labor market challenges organizations to manage and develop talent effectively at all levels. Employees who feel that they are growing and developing in an organization are more likely to stay. Moschetto (2019) states, “One area where you can get a big bang for your buck is in employee development. Helping employees build their careers demonstrates respect for them. It shows that their work is appreciated and that you’re concerned about their professional growth.” Organizations with great leaders differentiate themselves with their competitors because talented leaders create high engagement and increased productivity. Developing and training leaders can solve organizations’ largest business challenges. Success is typically connected to organizations that are prepared and demonstrate the ability to leverage opportunities when they occur. Leadership development is about knowing how to exist at the intersection of preparation and opportunity. It is the role of executive leaders in a company to ensure leaders are wellprepared and well-developed. Often times it is about making sure high performing and high potential employees are given the right opportunities that will enhance their development and readiness for even larger and more influential roles in the future. I recall an emerging leader telling me that they would not have stayed with the organization if it had not been for the leadership development program they got to participate in while working for the organization. So many times, we think development programs are too expensive or there is too much to do to take the time out of daily operations to develop future and current leaders. And yet I talk to so many executives who look back and wish they had committed the time and resources to increase the focus on developing their workforce. 26

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I remember when my youngest son got his latest job offer and the confidence it created in him was amazing to see. Then what happened about 9 months into his new role, his supervisor selected him to be a part of a certification program that would allow him to receive a certification in one of his areas of interest and provide him the opportunity to differentiate himself as a contributing member of the team. His level of engagement increased and his commitment to the team and organization increased as he felt valued as a significant contributor of the organization and team. Holliday |Kenning has designed different plays for developing emerging leaders, leaders, senior leaders and executives. While all leaders have common leadership challenges, there are different perspectives of leadership distinct to each leader level. Transitioning from leading self as an individual contributor, to leading teams, to leading other leaders all requires enhanced skills and competencies. The Holliday|Kenning leadership development play ensures an organization can deepen the talent bench strength if there is a commitment to “grow your own” workforce. This approach is comprised of two components: • Advanced leadership development programs for people leaders and • Targeted employee leadership training specifically designed for the needs of each level of leader’s next-place and in-place roles In the EMERGING LEADERS program, the first step is to identify the high performing/high potential employees within the organization to ensure those selected for the Emerging Leaders program are truly interested in leading people. Developing specific criteria and tools that help organizations identify the emerging talent is essential to selecting the right people to lead people. Second, it is important to provide learning and development that increases self-awareness, teaches relational skills, and focuses on evidence-based leadership competencies that prepares early leaders for the shift from managing self to managing others in the future. Some of the components of the Emerging Leaders program include: • Self-assessment to identify current areas of improvement • Exploring important leadership competencies for success • Group coaching to allow emerging leaders to grow together, connect across organizational functions, consider future scenarios and roles, and develop a leadership mindset • Mentoring relationships to expose high-potential leaders to other parts of the business The LEADERS program is for those who lead from the middle. The middle managers and team leaders are the layer of leadership and coordination between top strategic leadership and front-line employees. This layer is critical to organi-

zational success and often operates as the heartbeat of the organization. The Leaders program offers learning in practical management skills and individual topics that are important to the success of leading from the middle. A couple of questions to consider are: â&#x20AC;˘ How are you developing those managers who desire to grow and aspire to leadership positions? â&#x20AC;˘ How are you helping them build the myriad of skills required now and in the future? Recognizing that leading from the middle requires a strong skill set in problem-solving and quality decision making is part of why developing the middle of an organization can ensure a future talent pipeline exists. Our program for middle managers provides the skills needed to succeed. The program teaches managers how to coach and mentor, the importance of collaboration and influence, and how to build effective teams and a strong culture of inclusion. The SENIOR LEVEL AND EXECUTIVE LEADERS program is for those leaders who rise to the enterprise-wide senior-level and executive roles. Within these roles, leaders learn that the complexity of what success looks like increases. Top level leaders are expected to strategically manage as a whole and/or specific business units, no longer just managing groups of leaders. These leaders are expected to act as forward-looking visionaries, driving action through others. Through individual executive coaching, the Senior level and executive leader program teach

how to discuss complex business issues and development goals, increase team cohesion and ability to identify a shared vision, identify areas of improvement and how to lead others for organizational success, and build business acumen and critical industry-specific skills to lead with a systems thinking mindset. By accelerating the development of leaders, organizations are proactively positioning themselves as investors in the performance, productivity, and success of the organization which ultimately leads to a sustainable competitive advantage in the marketplace. In order for leadership development to add value to the organization, it must emphasize the opportunity for a collective leadership mindset and skillset rather than an individualist mindset. The strength of an organization comes with its collective organizational capability where leaders share the same leadership vocabulary and mindset toward the importance of developing others. Leadership development is about identifying and developing potential that in turn offers the organization a bench strength of prepared talent who are ready to handle whatever the future may bring. Accelerating leadership development is a must do for long term success!

Dr. Trish Holliday, SPHR, SHRM-SCP, IPMA-SCP, CPC Founding Partner, Holliday | Kenning trish@hollidaykenning.com www.hollidaykenning.com

Lucinda Kenning, MBA

Founding Partner, Holliday | Kenning lucinda@hollidaykenning.com www.hollidaykenning.com

THE PLAYS TO MAKE IT HAPPEN Customized leadership solutions to grow leaders and drive performance designed and delivered by practitioners for practitioners. We listen to you, and design your program customized for you. Then, we lead your team to learn it, practice it, and launch it.

Contact Holliday | Kenning (Trish@HollidayKenning.com) to learn more about how our Playbook and the LPL model can address your organizational needs. Use our customized solutions to grow your leaders, drive performance, and be ready to thrive in an ever-changing environment.

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Checklist for 2020 Employee Handbooks By AUDREY M. CALKINS

As we enter a tumultuous spring headlined by the COVID-19 and SARS-CoV-2 pandemic (collectively “COVID-19”), employers may be turning to their policies, procedures, and employee handbooks to address their employees’ concerns about working during this time of uncertainty. As companies confront the challenges COVID-19 poses, they may also consider whether to revise their existing policies and procedures. This article aims to provide information you can use to ensure that your company is aware of federal and state guidance regarding current and future public health crises while also determining whether a handbook is right for you, and if so, deciding what terminology and which policies to use.

Does my company need a handbook or formal written policies? Handbooks can demonstrate your company’s compliance with state and federal law, inform employees of workplace rules, and standardize enforcement and discipline. Handbooks easily disseminate information to employees, create objective rules and criteria for unbiased employment decisions, and ease compliance with various notice requirements. Additionally, handbooks can provide affirmative defenses under anti-discrimination/harassment laws and can be valuable in defending unemployment claims. Nevertheless, handbooks can have some disadvantages—usually the flipside of their advantages. For example, employer decisions become more rigid with handbooks, and outdated handbooks can linger and haunt employers with obsolete policies or passé language. Failure to follow handbooks’ policies— even mistakenly or inadvertently—can open employers up to liability (or preclude summary judgment) in some cases. But overall, the benefits of handbooks likely outweigh their drawbacks.

Which policies should I consider including in the handbook? This section addresses provisions that you can consider including in your company’s handbook: (1) the introduction, (2) acknowledgement form, (3) policies in every handbook, and (4) performance, discipline, and termination. Potential policies regarding COVID-19 or other future pandemics are discussed at the end of this article. 1. THE INTRODUCTION

The introduction lays the foundation for your company to assert that its employees are at-will, which allows them to be employed for an indefinite term terminable by either the employee or the company. At-will employment allows the company to terminate employees for any reason (good cause, no cause, bad cause, mistake, etc.) as long as that reason is not unlawful. The at-will employment relationship can change to an implied contractual relationship if the handbook issues an offer to an employee that the employee accepts by continuing to work after receiving the offer. Both a disclaimer disaffirming the creation of any implied contract and an affirmative statement of the company’s intent to provide only an at-will employment 28

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relationship are ways to avoid the creation of an implied contract. Employers should consider putting disclaimers in a different font size or color as well as reserving the right to modify, interpret, and deviate from their handbook policies. Additionally, companies should consider removing promissory statements (“We will do X.”) and replacing them with aspirational ones (“We hope to do X.”). 2. ACKNOWLEDGEMENT FORM

During litigation, employees frequently refuse to admit that they received or read provisions in their handbooks. Employers can combat these assertions by requiring employees to sign and date an acknowledgement form stating that employees received the handbook, acknowledged that they are at-will employees, and had the ongoing oppor tuni ty to read, access, understand, and ask questions about the handbook and its policies. Furthermore, employers should also consider including language regarding their right to modify the handbook. 3. P OLICIES TO CONSIDER INCLUDING IN EVERY HANDBOOK

• anti-discrimination, anti-harassment, and equal employment opportunity policies The handbook should identify only those protected classes to which the company decides to extend protection. At a minimum, the list of protected classes can include a catch-all clause of “any other class protected by applicable law.” Employers should consider including complaint-reporting procedures (with more than one avenue to report a complaint), creating a duty for all employees to report alleged violations of these policies, and strongly prohibiting retaliation against those who complain. The anti-harassment policy can tie into the EEO policy by protecting all protected classes from alleged harassment and creating a rule that employees are responsible for reporting harassment. Companies can consider defining both types of harassment recognized under the law—quid pro quo and hostile work environment—and giving examples of each. This policy can also contribute to an affirmative defense to harassment claims under two Supreme Court cases, Faragher and Ellerth. These cases require employers to implement a meaningful policy, promptly respond to complaints, and take action that is anticipated to correct the alleged harassment. • wage and hour policies Regardless of whether employees are classified as exempt or non-exempt (or full-time or part-time), guidelines regarding these classifications can be included in handbooks as well. For example, companies can draft timekeeping requirements and procedures that both help protect against allegations of required off-the-clock work and provide (1) a complaint procedure for allegedly improper classification or deductions and (2) a disciplinary procedure for falsifying time records. Handbooks can also require pre-approval of overtime, provide that unauthorized overtime might result in discipline, and explain when overtime pay is triggered (and even how overtime will be awarded, allocated, calculated, or required). • leave of absence policies Policies regarding the FMLA (if your company has 50+ employees), the ADA and its reasonable accommodation obligation and associated interactive process, and other leaves of absence required under applicable state law are discussed briefly in the context of COVID-19 below. 4. DISCIPLINE AND TERMINATION

Handbooks often provide disciplinary policies with steps progressing from verbal or written warnings through suspension and termination. Because some transgressions are more severe than others, employers should consider

including a statement that discipline for bad acts could be subject to discipline “up to and including termination.” Additionally, companies should consider avoiding terms like “grounds,” “cause,” and “for cause;” “tenure;” “due process;” and “probationary period” because they could imply that a contractual employment relationship exists.

What about COVID-19? Any article about employers’ policies in the current climate would be remiss if it omitted a discussion of COVID-19 and its effect on employers. COVID-19 may trigger companies’ leave-of-absence or work-from-home policies. Additionally, due to the WHO’s declaration of a pandemic and declarations of a public health emergency from state and federal authorities, other applicable state or federal law may supersede company policies regarding vacation, time off, sick leave, attendance, FMLA, ADA, workplace safety, and workers’ compensation (and likely others). See https://ogletree.com/insights/202003-09/covid-19-faqs-on-federal-labor-and-employment-laws/. In addition to work-from-home accommodations, proactive education of employees, exceptions to attendance policies, and advance determinations of whether time off will be paid or unpaid, employers should not forget their wage-and-hour obligations under the Fair Labor Standards Act and applicable state laws. The Department of Labor has published guidance addressing employee wage scenarios in different COVID-19 situations. See https://www. dol.gov/agencies/whd/flsa/pandemic; https://ogletree.com/insights/202003-10/dol-issues-covid-19-guidance-covering-flsa-obligations-when-dealingwith-coronavirus-and-other-emergencies/. Additionally, OSHA has issued COVID-19-specific advisory guidance with recommended steps all employers can take to reduce employee risk of exposure to the virus. See https://www.osha.gov/Publications/OSHA3990.pdf; https:// ogletree.com/insights/2020-03-10/osha-issues-new-guidance-on-preparing-

workplaces-for-covid-19/. As they respond to the current COVID-19 crisis, companies can consider implementing or altering their crisis management plans in case of a future pandemic and related economic instability or a reduced workforce. See https://ogletree.com/insights/2020-02-25/have-yougone-far-enough-with-a-coronavirus-crisis-management-plan/.

STATE

COVID-19 INFORMATION SOURCES (AS OF MARCH 11, 2020)

Alabama

http://www.alabamapublichealth.gov/infectiousdiseases/2019coronavirus.html

Arkansas

https://www.healthy.arkansas.gov/programs-services/topics/ novel-coronavirus

Georgia

https://dph.georgia.gov/novelcoronavirus

Florida

http://www.floridahealth.gov/diseases-and-conditions/ COVID-19/covid19-toolkit.html

Kentucky

https://chfs.ky.gov/agencies/dph/pages/covid19.aspx

Louisiana

http://ldh.la.gov/index.cfm/page/3835

Mississippi North Carolina Tennessee

https://msdh.ms.gov/msdhsite/_static/14,0,420.html https://www.ncdhhs.gov/divisions/public-health/coronavirusdisease-2019-covid-19-response-north-carolina https://www.tn.gov/health/cedep/ncov.html

Audrey M. Calkins, Associate Ogletree Deakins Memphis audrey.calkins@ogletree.com www.ogletree.com

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

“Focused on fighting age discrimination in employment” 2018 Best Lawyers

Super Lawyers

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What Do People Need

Now? By CAMMIE SCOTT

a relatively short period of time things have changed dramatically because of COVID-19. Schools are closed, restaurants closed, not gambling in Las Vegas, people are sent home to work and…toilet paper is in short supply. People are stressed. Many are anxious. A few are panicked.

Human Resource professionals are uniquely poised to help people during this crisis. This is the time for them to step up, lead and position themselves as true business partners. They have the training and the skillset for change management. They understand employee needs and how to balance them with company policies. They are used to working with stressed out employees who are in crisis. Now is your time to shine!

What do people need during this time? Paychecks help with physical needs such as food, clothing and shelter. However, people have other needs as well. These non-tangible needs often play a bigger role than many think they do.

In a world filled with social media, with everyone appearing to have it all together, people whose lives are crumbling feel double the stress. They feel as if the world is crashing down around them. For years we have pushed technical skills and forgotten social and interpersonal skills. People have forgotten how to slow down, really listen and interact with one another.

How can you as an HR professional make a difference? Here are 5 ways you can meet peoples’ needs, have a positive impact on workers’ lives and grow your validity as a knowledgeable partner.

1. SECURITY – People are afraid. They are afraid they will lose their jobs, afraid they will get sick or a family member will get sick, afraid of 30

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chaos in the community. Now is the time to increase your communications. People are hungry to know what is happening. They check social media, have 5 different news stations with alerts, and watch the same news on TV over and over hoping to hear or see something new. People want to know what is happening.

You need to lead the charge in communicating with employees. Tell them the good the bad and the ugly. Tell them you are spending the extra money to clean. Tell them you are in communications discussing plans. Tell them step by step what is happening. Tell them where they fit in the process. Tell them you don’t have all of the answers, but that you care about them and their role in the organization.

2. ADMIRATION, ACCEPTANCE AND APPROVAL – People need to belong. We have a deep need to be a part of a community to be accepted, approved and even admired. Many people have become what they do. They are at one with their job. They cannot imagine a future apart from it and the fact that they could be sent home to work, laid off or even let go scares them immensely. It causes an underlying turmoil that can boil over into their everyday performance.

To combat this identity crisis, we need to begin to communicate and connect with each other on a more personal level. People who feel they no longer belong do things out of desperation. Sometimes, this can be harmful to themselves and others. Take a walk and talk to people. Find out about them personally. Remind them that they are much more than their position there. Let them know that you care. When tensions are high, this could be the thing that saves you or a co-worker.

3. TIME – People want time more than almost anything. It is the main equalizing force between us all. We can make more money, but we cannot make more time. We all operate within certain time constraints.

For people sent home to work, remind them that they have now gained their commute time back. They can now exercise, read or draw with a child or do that project they have been putting off. For some this may be traumatic as they feed off of the time in the workplace. Get them focused on the future and all the other things they can do.

For people whose kids are out of school or who have an increased workload during this time, share life hacks and tricks that allow you to do things faster. Look for ways to assist them and relieve some of their duties. Think about ways you can integrate technology into streamlining what they do. Offer up resources they can use with children or places they may be able to get help with childcare or meals. Become a resource to them in helping them with their day to day lives.

4. CONTROL – Psychologists tell us that people are hoarding food and supplies because it gives them a sense of control. With all the uncertainty of their lives people crave control. They want to know they can control something even if it is only how many rolls of toilet paper they have.

Some people are panicked. Talk to leads, supervisors, and managers and ask them to be on the lookout for these people. Give them some ways to give people a sense of control. Think ways to allow them to make decisions. Get their focus on the future and on the things they can do instead of the things they cannot do. These can be small. Ask them for

feedback on an upcoming safety class, which rug style they like better, what shirt color do they like for the upcoming company picnic.

5. ESCAPE – People want an escape from the stress of life. People turn to drugs, alcohol or other harmful behaviors as a means of momentary escape and relief. Help employees find ways to have a momentary escape. Teach meditation, have a yoga class, send out a link for a movie at home, put together a list of places they can go on a hike or bike ride and get outside. There are many creative things people can do as an escape and a rest from the daily pressures of life.

Connecting with people, easing their fears and meeting their needs is always the right thing to do. The investment you make today can pay great dividends now and even greater ones later. As word gets out that you are a company who cares about people, recruiting will get easier and employee turnover will be lower and employee loyalty will increase. Now is the time to impact company culture for the better.

These are a few of the things you can do now to have a positive impact on employees’ lives as well as a positive impact on the business. The true physical, emotional and financial tolls on people’s lives is yet to be seen. What is clear is that people are hurting and afraid and many are ill equipped to deal with present day circumstances. As an HR professional with specialized training in change and interpersonal relationships, you have the ability to touch their lives.

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

STRATEGIC PLANNING PARTNERS B U S I N ES S S O LU TIONS F O R A C H AN G IN G WORL D • H u m an Re s o urces As s is t a nce • Trai n i n g P ro g ra m s • Em pl oye e B enef it P ro g ra m s • L e ade r sh i p D evelo p m ent • C o m pl i an ce

2816 N . T ho m p s on S pr i ng dal e , A R 7 2764 479.750.4411 p 479.750.896 9 f www.c k har p.com

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Alcohol and Substance Use Disorder under the ADAAA By ROBERT HORTON, LYMARI CROMWELL, TIMOTHY GARRETT, and LAURA MALLORY

Title I of the Americans with Disabilities Act Amendments Act (ADAAA) prohibits employment discrimination on the basis of a disability and requires employers engage in an interactive process and provide reasonable accommodations. A failure to do so may result in liability. A disability may include alcoholism or substance use disorder, and managing such disabilities can be challenging for employers. While both conditions could be protected under the ADAAA, there are differences in how each condition is treated under the law.

rather, it is essential for all types of disabilities. An employer that acts in bad faith in the interactive process may be liable if it can be reasonably concluded that the employee would have been able to perform the job with a reasonable accommodation. A “reasonable accommodation” is defined as assistance or a change to a position or workplace that accommodates employees with disabilities so they can perform their job without causing the employer undue hardship.

Understanding these differences is essential for any HR professional in implementing a plan after discovering that an employee’s work performance or ability to work is being affected by alcoholism or substance use.

Steps of the Interactive Process

With respect to alcoholism, a person may be considered disabled under the ADAAA if the person can be classified as one of the following:

Every time an employee indicates he or she is having a problem related to a medical condition, the employer should consider whether that is a request for an accommodation.

1. Active Alcoholic – someone not in recovery and actively using alcohol. 2. Recovered or Recovering Alcoholic – someone with a history of alcoholism but who no longer drinks, or someone in a rehabilitation program. While alcoholism is not a per se disability, an individual addicted to alcohol is considered disabled only when the condition is substantially limiting in at least one major life activity, which may include, but is not limited to, the ability to work. Substance abuse under the ADAAA is treated differently than alcoholism. Current users of illegal substances are not covered under the ADAAA. The ADAAA, however, does cover individuals who have completed a supervised drug rehabilitation program and are no longer engaging in the illegal use of drugs, as well as individuals erroneously regarded as engaging in the use of illegal substances while not actually engaging in such use. Like any other impairment under the ADAAA, an employee is considered disabled as a result of having a substance use disorder only when the condition is substantially limiting in at least one major life activity. The ADAAA requires employers to provide reasonable accommodations to qualified applicants or employees with disabilities. A “reasonable accommodation” is defined as assistance or a change to a position or workplace that accommodates employees with disabilities so they can do the job without causing the employer undue hardship, such as too much difficulty or expense.

Use the Interactive Process to Determine Reasonable Accommodation In order to determine the appropriate reasonable accommodation, employers and employees must engage in the interactive process, which requires communication and good-faith exploration of possible accommodations. This interactive process requirement is not limited to alcoholism and substance abuse, 32

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Step #1: Recognize the Accommodation Request

Examples of an accommodation request could include the following: • An employee needs to take time off. • An employee exhausts FMLA leave but needs more time off. • An employee uses medical reasoning as an explanation for absences or performance issues (medication makes it hard to focus, needing extra breaks due to illness, etc.). Step #2: Gather Information An employer is entitled to know that an employee has a covered disability and any resulting limitations. An employer can (and should) require that the employee provide documentation about the disability and any limitations from the employee’s healthcare provider, as well as the duration of any limitations. Employers must also remember to treat as confidential any information or documentation related to an employee’s alcohol abuse or substance use disorder. Such information and documentation should be afforded the same confidential treatment afforded to any other medical documentation related to employees. Step #3: Explore Accommodation Options and Choose an Accommodation Employers should look to past practices to determine if and how a similar situation was previously handled. Also, it is acceptable to invite both the employee and possibly a

healthcare provider to submit accommodation suggestions and take them into consideration. The employer and the employee should interactively seek an “effective” accommodation (one that will allow the employee to perform the essential functions of the job, now or in the near further), that is “reasonable” under the circumstances. Often, even before any undue hardship analysis, an employer may determine that certain requested accommodations are not “reasonable” and thus not required. Seeking legal advice during this process is wise, but it is particularly important if an employer is considering rejecting a possible accommodation as “unreasonable” and not required.

FMLA available, the employee generally is allowed to choose to take leave under the FMLA rather than accept transfer to another job. It is important to remember that an employer is not required to tolerate an employee’s alcohol or substance use at work, poor performance, poor attendance, or other misconduct.

Recovering addicts and alcoholics may be entitled to the following reasonable accommodations: 1. Employer-provided leave. 2. Modified job schedule to attend self-help meetings. 3. Job restructuring. If necessary, the employer should conduct an undue hardship analysis. Generalized conclusions will not suffice to support a claim of undue hardship; but rather, undue hardship must be based on an individualized assessment of current circumstances that show how a specific reasonable accommodation would cause significant difficulty or expense. Generally, if more than one effective reasonable accommodation applies, the employer may choose the accommodation with one exception: putting the employee on leave. If there is another effective accommodation, other than leave, that would enable the individual to keep working, then the employer cannot require that the individual take leave. However, if the employee has

Robert Horton

Bass, Berry & Sims rhorton@bassberry.com www.bassberry.com

Lymari Cromwell

Bass, Berry & Sims lymari.cromwell@bassberry.com www.bassberry.com

Timothy Garrett

Bass, Berry & Sims tgarrett@bassberry.com www.bassberrysims.com

Laura Mallory

Bass, Berry & Sims laura.mallory@bass.berry.com www.bassberrysims.com

GO CONFIDENTLY. Bass, Berry & Sims listens and responds with creative yet practical counsel. We stay on pace with the complex and rapidly evolving employment landscape, connecting your dynamic human resources needs to proactive strategies. Relationships, reliability, and respect – at the center of our Labor & Employment and Employee Benefits practices.

Stay up-to-date on the latest in HR Law. Visit our blog at bassberryhrlawtalk.com.

Centered to deliver. bassberry.com

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BOULO UNCOVERS A HIDDEN WORKFORCE Boulo Solutions is a digital talent acquisition platform that launched in Birmingham. AL in 2018. CEO Delphine Carter saw companies struggling to reach their goals because they couldn’t easily find needed talent due to budget restrictions, low quality short-term labor options, and the nationwide talent shortage. At the same time, 43% of mothers were leaving the workforce due to not having flexible work options but had the skills and passions companies were seeking. Boulo is bridging this gap for over 750 women and over 100 businesses. Boulo’s platform uncovers a hidden workforce, using technology to connect smart, driven women with flex time or project-based opportunities at growth-phase companies, helping both reach their highest potential. Boulo saves companies time and money by filling roles that don’t lead to typical full-time overhead in an average of 5 days. With 80% of job boards showing the same talent and open roles taking more than 40 days to fill, Boulo sets itself apart from other staffing solutions through their matching technology and talent. Boulo’s talent are smart, professional women eager to work, bringing an average of 10 years of experience.

Professional achievement without compromise is attainable with Boulo

Delphine Carter, CEO

Hayley Heard,

Director of Business Development

Led by CEO Delphine Carter, the Boulo team is a dynamic group of women who were all Boulo members to begin with.

“Working with Boulo was just as I had hoped. High caliber talent without the typical overhead cost. I plan to use Boulo again.”

“I love Boulo for their thoughtful approach to job placement.”

Mike Goodrich, First Avenue Ventures

Rajeeyah Shahid, Boulo Member

With no commitment to post a role, the only risk is NOT trying us out. Contact us to find your next A player today. www.boulosolutions.com 34

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Are You Ready for This? With concerns mounting over COVID-19, countless workers have been sent home to work remotely, or not at all. Reaching your employees and ensuring they are maintaining company standards and getting work done has become a challenge for many employers. Do you have documented processes? Do your employees know what to do while working from home? Do you trust they are actually working while kids are home too? These are the questions many companies are facing right now. Since FUEL it was built on the flexibility of working from home or office, our team is wellequipped to handle quarantine mandates dictated in most communities. However, the transition has not been easy for many. Without written procedures or experience handling remote teams, many companies have provided limited communication to employees. This leads to worry for both employees and employers. Employees are left wondering if they will be paid and what they are expected to do while at home. Employers are scrambling to figure out how to make production numbers and cover payroll.

The best prepared organizations during this pandemic are the ones who have written procedures for work expectations along with written policies for how to handle emergency situations. They also have a team of managers who quickly organize to decide how to respond to the situation and clearly communicate with employees. The good news is that it’s not too late. Employing the following strategies will help your employees navigate through the riptide adventure we are now facing. Streamline Processes for Efficiency Some tough decisions need to be made as running your business becomes more difficult. We’ve helped numerous customers by conducting a one-week process analysis and identifying areas to reduce costs. The analysis evaluates skills, resources, and workflows to ensure you are operating efficiently. We have also helped with implementing recommended solutions through process automation, skills training, reduction, and transition plans.

Train Your Managers and Employees Employees who have never worked remotely and managers who have never led remote teams need guidance. Working remotely presents unique challenges such as communication, time management, and distractions. Our webinar and eLearning series enables managers and teams to conquer these challenges for maximum efficiency and productivity. And if you have employees who are unable to work remotely, you have an opportunity to upskill. Virtually Connect with Customers Virtual reality is a great way to boost your business and help reach your customers. Consider the trade shows that were recently canceled and convert those materials into a virtual booth for potential customers to interact and learn more about your products. We have the tools and experience to streamline your processes and to run teams more efficiently. Give us a call and let us help you determine the best ways to navigate through the “new normal” way of doing business.

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(888) 383 - 5488 info@fuelit.us www.fuelit.us www.HRProfessionalsMagazine.com

Boat Loans and IT Training BY MIKELL PARSCH

ot too long ago, at some business or networking function, I was seated next to a gentleman who was a former President of a local bank in Florida.

As we chatted, he told me that his bank issued a good number of boat loans, which, being Florida, made sense. But he told me, his bank developed a rule-of-thumb formula for approving boat loans. It was not an applicant’s ability to afford the payments that mattered, but an applicant’s ability to afford the required upkeep. “We figured it took twenty-five percent of the boat’s value every year just to maintain it,” he said. “And if they could not spend that, in addition to the cost of the boat itself, we didn’t approve the loan.”

Just like a boat, if you don’t invest in training your employees how to use the technology you buy, it will just sit around and rot, losing more value every day.

While spending a quarter of the boat’s value every year just to keep up with it, sounded extreme, it made sense because I had no doubt people tended to overlook that substantial part of being a part time sea captain. That innocuous exchange has stuck with me for a few years now because I think it applies almost perfectly to HR and talent development. Collectively, businesses are pouring literal billions into new technologies such as machine learning and AI, data collection and management, SAAS systems, cybersecurity and upgrades to even the most basic communications and product management platforms. And that’s great. Unlike buying a boat, those purchases aren’t optional, they’re essential business investments. Where the boat analogy holds though, is that too many corporate executives and HR leaders are buying the boat without considering the maintenance costs – not the costs of running IT or managing software applications, but the cost of properly training employees how to use it. Or rather, how to use the technology properly, and get the most out of it. Just like a boat, if you don’t invest in training your employees how to use the technology you buy, it will just sit around and rot, losing more value every day. As the CEO of the largest and most established technology training provider in the world, here’s a rule-of-thumb akin to the boat maintenance one: for every dollar a company spends on new technology, they should spend two on training. Call it the BOAT rule – Best to Onboard AND Train. Without the training, a technology project can sink pretty easily. Thinking about a ratio of training to technology can be tricky because it’s difficult to say precisely how much businesses are spending on their technology acquisitions, upgrades and deployments. Many companies keep those things under wraps and the needs and investments vary widely by sector. But one thing is certain – business technology investments are not slowing down. Corporate training, by contrast, is.

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According to the most recent 2019 Corporate Training Report, U.S. training investments declined 5.3% compared to 2018. And the 2018 Corporate Training Report showed a drop of 6.4% over 2017. Those spending estimates include, “payroll and spending on external products and services.” It’s worth noting again – that includes payroll. That’s a problem. A 2019 report by Harvard Business Review found that two-thirds of business leaders said they planned investments in predictive analytics as a priority and 73% of business leaders said they expect predictive technology to change the job functions of their existing workforce or create new jobs. Yet the same report bluntly found that “Talent is Scarce; Confidence in Training Programs is Scarcer.” As examples, some 58% of those same business leaders “disagreed [or] strongly disagreed they had training programs to build AI or work alongside AI” and two-thirds of them, “disagreed [or] strongly disagreed they had a reskilling program to support employees impacted by AI.” In other words, businesses know tech changes such as AI are coming, they’re even planning to invest in them. But they’re openly skeptical, even dismissive of the idea that their training programs are ready to handle them. Again, that’s a problem. Maybe it’s that some training programs or providers aren’t delivering well enough or quickly enough. That’s possible. But it’s also possible that many corporate and HR officers are undervaluing the essential

nature of technology training, even on what can be considered entry-level office software. According to a survey of more than 1,500 business leaders and IT professionals that New Horizons commissioned last year, less than 40% of companies said they have organized IT training system in place at all. And nearly 60% of business IT professionals say they cannot find time to get their employees needed training. What’s the old motivational adage about failing to plan turns into planning to fail? It fits. You don’t have to outsource your employee training. But cutting it or putting it to the side while continuing to invest in technology is planning to fail. It’s applying for a boat loan while overlooking the costs and commitments to ongoing maintenance – just not a good investment.

Mikell Parsch is the CEO of New Horizons Computer Learning Centers which has provided workforce and workplace training to more than 30 million students since the 1980s and now runs training programs in 35 countries.

Upgrade your skills from the comfort of your own home. Register for online courses today! www.newhorizons.com

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COHESION CULTURE:

Proven Principles to Retain Your Top Talent By WILLIAM CARMICHAEL

The word “cohesion” has such a positive overtone. For example, with objects it implies a state of bonding or of things sticking together. For people, of working well together. For groups, of being in close agreement and for organizations, of forming a united whole. And never has the need for a cohesive culture been greater for organizational leaders. In Cohesion Culture: Proven Principles to Retain Your Top Talent, Dr. Troy Hall successfully makes the case that by “creating Cohesion Cultures in workplaces has a positive impact on performance in all developing states of a group, and that retaining talent through a culture of belonging, value, and commitment, rather than replacing old talent with new talent, is essential for an organization’s survival and growth.” I cannot think of a timelier message for leaders concerned with retaining talent they worked so hard to bring in!

Isn’t Cohesion Culture an Engaged Workforce? In Cohesion Culture’s Introduction, Dr. Hall dispels a widely-held misconception; that employee engagement should be what we as leaders should be striving for. True, as our author will attest, engagement “is the outcome of a team working cohesively within a culture of belonging, value, and commitment,” it is still a singular outcome. What is missing is the “mindset of cohesion,” whereby, “an employee who is engaged through cohesion feels a strong, often unbreakable community bond with his team and the organization.” Interestingly, those in HR, those we might consider best aligned with the cultural needs of their organization too often misconstrue employee engagement as true cohesiveness, when in fact, are two entirely different concepts. Here, employee engagement represents a means to an end while cohesiveness represents shared values, vision, and commitment; what Dr. Hall refers to as the “employees’ sense of belonging.” Another misconception the author brings to our attention deals with incentives. Here, the author makes a convincing point that providing certain “perks,” regardless of their creative intent, is no longer the go-to strategy to keep employees motivated. Monetary or not, these perquisites too often become unintended distractions. 38

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I found the section on self-development for confident leaders to be particularly helpful, as it contains different theories that allow for diversification depending on personality types. In whole or in part, every paragraph of the work has value and is produced with high-quality cohesive prose and an inspirational atmosphere in its lexical choices. Overall, Cohesion Culture makes convincing arguments for its positive and transformative model and will give fantastic new ideas to any leader or manager looking to create positive changes.

Key Takeaways In Cohesion Culture, Dr. Troy offers readers as many clues as possible as to what a Cohesion Culture looks like, how it sounds and what actions need to happen to get it right. As in the previous paragraph, he explores topics like engagement, authenticity, and mindset to provide clarity to the leadership and employee base relative to coaching, performance, and development. In the book, he shares the Talent Retention Model™ that is the result of the Cohesion Culture he and his team at South Carolina Federal Credit Union created, which led to national recognition as “Best Places to Work.” As a former HR practitioner, I found this book to be an extremely effective HR field guide where readers will discover: - The #1 mistake leaders make when it comes to talent retention - What a Cohesion Culture is and how can it help you retain your top talent - How the Talent Retention Model™ can help build a Cohesion Culture™ - Creating a Cohesion Culture™ is essential for long-term business success - Transformative leadership—those who focus on the needs of others and build goal achievement first through relationship then task Early in the book, the author uses the analogy of Cohesion Culture as the framework found in a movie or play where leaders, just as employees, have a role to play. In Act One (Chapters 1 & 2), Dr. Troy discusses the three elements of a Cohesion Culture, how to inspire others to "be the leader," and why engagement isn't enough to retain your top talent. In Act Two (Chapters 3 & 4), he explains how a Cohesion Culture directly impacts productivity and what it looks like in your organization. He then provides the proven principles to build a Cohesion Culture. Finally, Act Three (Chapters 4 & 5) introduces the Talent Retention Model that is a result of the Cohesion Culture that was built at his former employer.

Structure and Layout Throughout the six short chapters, the author shows readers what a cohesion culture looks like, how it sounds, and what actions need to happen to get it right. Each of the chapters begins with a core concept with which readers will become familiar and ends with a summary of lessons learned. Introductory chapters provide readers a map of leadership patterns and protocols. In these, to delineate what’s expected of leaders before they consider cohesion and retention, Dr. Hall articulate values that encourage cohesion as well as mindsets that embolden leaders to commit to their employees’ individual success, which is the key to cohesion. Subsequent chapters center on team dynamics and workplace strategies. In the final section, he provides the specifics on how to execute the talent retention model, its global impacts, and how cohesion generates employee retention.

Who Will Benefit Most from This Book? Organizational leaders at all levels, Human Resource professionals ABOUT THE AUTHOR: Dr. Troy Hall is an expert in talent retention with a doctorate in Global Leadership & Entrepreneurship. As Chief Strategy Officer for South Carolina Federal Credit Union, he has traveled globally speaking with C-Level Executives, Chief Culture Officers and HR professionals on how to build an organizational culture utilizing the Talent Retention Model.

William Carmichael, Ed.D

Professor | Strayer University William.carmichael@strayer.edu www.strayer.edu

Motivate | Engage | Inspire Information Solutions is an HR consulting group widely known as experts in employment eligibility. We have increased our national presence with an initiative to increase positive workplace behavior through national speaking opportunities and corporate training events. •HR Compliance

•Social Intelligence

•Conflict Resolution

•Team Building

•Generational Diversity

•I-9 Compliance

•Leadership Development

•Time Management

•Career Coaching Solutions

•Customized Training

Meet the President SHEILA MOSS Sheila Moss, SHRM-SCP, SPHR, is the owner of the consulting group Information Solutions Team. She travels the nation each year presenting human resource related topics, training programs, and motivational encouragement. She is considered a subject matter expert in employment eligibility compliance and is widely known as the “I-9 Lady.” Sheila is a certified facilitator of Social Style and Versatility.™

Who we are Dedicated Advisors Over the years we have worked diligently to assist companies in achieving compliance with federal regulations. Our talented team of consultants continues to provide specific expertise in employment eligibility along with multiple training subjects, HR support, and a unique approach to the development of individuals, teams and organizations.

RYAN

JUDITH

Operations Manager

Consultant

WETSELL Ryan joined the team in 2000. He began his career by preparing documents in our imaging service bureau, and went on to be our Operations Manager. As the company volved in human resources initiatives, Ryan became a Form I-9 auditor and fraudulent document consultant. He continues to manage his long-time imaging clients with weekly personal visits.

TAVANO

After working in tandem with Information Solutions for many years, Judith “officially” joined the team in 2019. She has been designing, developing and delivering learning and organizational development solutions for over two decades. She is widely known as an expert in workplace generational diversity. Judith believes that learning transfer and organizational transformation begin with uncovering and serving individual and organizational true needs.

AARON

SHACKLEFORD Senior I-9 Auditor / Compliance Officer Aaron arrived in 2006. He began as an imaging specialist in our document imaging service bureau. Aaron led the evolution of the company into the specialized area of employment eligibility. He dedicates himself as an I-9 compliance officer for multiple clients, performs forensic I-9 audits, and leads the client support team.

www.infosolutionsteam.com | 479-717-7090 | www.i9lady.com www.HRProfessionalsMagazine.com

Pandemics:

Plan, but

Don’t Panic By STUART JACKSON

With the flu season in full stride and the potential threat of the coronavirus lurking, what should businesses do to ensure a healthy-as-possible workplace?

First Don’t panic. Instead, begin by looking at what policies your company has in place that would come into play during a significant outbreak: Do you have a sick leave policy? Do you provide employees sick leave or paid time off? Remind yourself and your employees of those policies. Bottom line - give your sick employees incentive to stay home.

Second Consider another reminder to employees, this time about basic common sense – wash your hands frequently, cough into your arm, and if you are sick, do not come to work!

Third Make hand sanitizer gel or wipes available. Hand sanitization is a key way to prevent the spread of many illnesses. If hand sanitizer is not available, good old-fashioned soap will do. Hand sanitization items can be placed in entrance areas, employee lounges or eating areas, next to time-clocks, and bathrooms. Have your cleaning personnel do simple things as well, such as cleaning doorknobs and cabinet handles, to help fight the spread of any contagious illness. Definitely make sure bathrooms (including door and faucet handles) are cleaned daily.

the day can do a lot of good. When there is an outbreak of an illness, check the Center for Disease Control’s website at cdc.gov for useful information about the symptoms of the illness, how it is spread, and preventative measures to take, and share that information with your employees. When and if there is a serious outbreak that shows real potential for hospitalization or even death, more stringent practices can be put into place, such as requiring employees who have been exposed to an illness to “telecommute” or otherwise stay away from work during any incubation period, requiring employees who have been exposed to take a test to determine if they have the illness before being allowed to return to work, limiting travel, checking temperatures of employees as they walk in, sending home employees who show any symptoms of the illness, or even shutting down all or part of an office or facility. Given the variety of circumstances a business could face, give yourself the flexibility to address each situation on a case-by-case basis. Planning, however, is important. Here are some issues to address: • What policies do you already have in place that could impact

Fourth Educate your employees on things they can do to prevent the spread of illnesses. Did you know that some of the most “germy” things in an office are personal cell phones and computer keyboards? A quick wipe of these items and any "high-touch" surfaces at the start of 40

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your reaction to a pandemic or quarantine?

• What would you do if a large part of your workforce could not work due to illness?

Would your normal attendance

your facility? Should these limits

policies need to be modified if

extend to vendors, customers

employees could not work for

and the public in general?

extended periods of time? • On what occasions should • How would you react to a

you consider a partial or total

closure of a school if several of

shut-down of the facility?

your employees have schoolaged children?

• What steps should you take to ensure the confidentiality of any health information related to your ill employees?

• Are there local, state or federal agencies who can provide information or support during a pandemic or quarantine?

• Are there any extraordinary steps that should be taken

• Which employees are critical to

regarding the cleanliness or

your business, and how would

safety of the facility?

you replace them on a shortterm basis? Is cross-training a viable option?

Planning and education are the best ways to address pandemic illness issues in the workplace, whether we are talking about 2009 (H1N1), today or in the future. Start thinking now about how your business will react.

• What happens if an employee displays symptoms or becomes ill at work?

• How would management and staff communicate with each other during a pandemic or

• How can you ensure employees

quarantine situation?

have access to health information and appropriate health care if needed during a

• Should you consider limiting person-to-person contact within

pandemic or quarantine?

120 YEARS OF DOING THE WRIGHT THING.

Stuart Jackson, Partner

Wright Lindsey Jennings sjackson@wlj.com www.wlj.com

Since 1900, Wright Lindsey Jennings has promoted progress and positive social change. We are dedicated to growing our state and our communities, annually supporting more than 120 organizations through philanthropy and volunteerism. We strive to advance the practice of law, proactively developing knowledge in emerging legal areas and industries. Wright Lindsey Jennings’ pioneering spirit serves our clients, our communities and our firm well.

Forward Thinking. Since 1900. EST.

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1900

Little Rock

wlj.com

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What’s Hair Got To Do With It? An Update on the

Employers of all kinds have long implemented employee dress and grooming standards. But before disciplining or terminating an employee based on their hairstyle, employers should make sure they are aware of new state and local prohibitions on hair discrimination in the workplace. Specifically, several states and cities this year have passed or proposed laws banning discrimination against employees and students for wearing hairstyles that are traditionally associated with people of Black or African descent. The trend began in California, which became the first state to pass such a measure. The Creating a Respectful and Open Workplace for Natural Hair (“CROWN”) Act, which was signed into law in July 2019 and took effect on January 1, 2020, amended the California Fair Employment and Housing Act’s definition of race to include traits historically associated with race, including hair texture and protective hairstyles. Protective hairstyles include, but are not limited to, Afros, braids, cornrows, dreadlocks, twists, and knots.

Background Over the past several years, there have been a spate of highprofile incidents in which Black people have been denied employment or participation in school activities or events due to their hair texture or hairstyles. In 2018, a New Jersey high school wrestler was forced by an official to cut his dreadlocks or forfeit his match. A video of the incident was viewed more than 14 million times, the incident became national news, and it led to a firestorm of criticism and accusations of abuse of power and cultural bias. (The referee has since been suspended from his position for two years.) Likewise, in 2020, a Black teen in Texas named Deandre Arnold was told he needed to cut his locks to comply with his school’s dress code or he would not be allowed to participate in his graduation ceremony. The teen and his mother were later invited to attend the 2020 Academy Awards as the guest of director Matthew A. Cherry, who won the best Animated Short Oscar for his film “Hair Love.” The film follows a Black father who is attempting to do his daughter’s hair for the first time. Cherry used his acceptance speech to advocate for the CROWN Act, stating: “‘Hair Love’ was done because we wanted to see more representation in animation, 42

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Crown Act

By JENNIFER ROBINSON, ELISE HOFER MCKELVEY, and CORINN JACKSON

and we wanted to normalize Black hair. There’s a very important issue that’s out there, the CROWN Act, and if we can help get this passed in all 50 states, we can help stories like Deandre Arnold’s to stop from happening.” Instances of discrimination based on natural hairstyle have not been limited to the school setting. A recent study found that a Black woman is 80% more likely to change her natural hair to meet social norms or expectations at work. Black women are also 50% more likely to be sent home or know of a Black woman sent home from the workplace because of her hair. Indeed, California’s CROWN Act expressly notes that “[w]orkplace dress code and grooming policies that prohibit natural hair, including Afros, braids, twists, and locks, have a disparate impact on Black individuals as these policies are more likely to deter Black applicants and burden or punish Black employees than any other group.” Until the CROWN laws, however, this type of discrimination has generally avoided legal scrutiny. Though Title VII of the Civil Rights Act of 1964 has always prohibited discrimination on the basis of race, courts historically have distinguished between “immutable” and “artificial” physical traits, holding that disparate treatment based on immutable characteristics (such as skin color) could give rise to a claim of race discrimination, whereas treatment based on artificial traits (such as hairstyle) could not. In 2018, the U.S. Supreme Court rejected an opportunity to address this issue, declining to consider a lawsuit filed by Chastity Jones, a Black woman who was denied a job opportunity because she refused to cut her dreadlocks. It is worth noting that the EEOC, which initially filed suit on behalf of Jones, already takes the position that personal characteristics associated with race, such as hair texture, are immutable characteristics that may support a finding of discrimination.

Other Jurisdictions Following Suit Following California’s lead, many states have stepped in where the Supreme Court declined to act. Hair discrimination laws have also passed in Colorado, New York, New Jersey, Virginia, and Washington; in localities including Montgomery County, Maryland, and Cincinnati, Ohio; and New York City has issued hair discrimination guidance. Similar legislation is pending in states including Tennessee, Arizona, Colorado, Delaware, Florida, Georgia, Illinois, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Oregon, Pennsylvania, South Carolina, Virginia, Washington, and Wisconsin. Moreover, in December 2019, Sen. Cory Booker (D-NJ) introduced similar legislation at the federal level. Rep. Cedric Richmond (D-La.) introduced companion legislation in the U.S. House, joined by Reps. Ayanna Pressley (D-Mass.), Marcia Fudge (D-Ohio), and Barbara Lee (D-Calif.).

Recommendations Existing federal laws have long limited the ability of employers to enforce dress codes and grooming policies. For example, employers must reasonably accommodate employees with disabilities (such as those required to wear orthopedic shoes or supportive braces) and those with sincerely-held religious beliefs that require particular clothing, head or face coverings, jewelry, or facial hair. With the passage of the CROWN Act in California, New York, and New Jersey, and given the trend of other states and municipalities following suit, employers will need to be more proactive in detecting and preventing bias against race and traits associated with race, including hair texture and natural hairstyles. To that end, employers should consider the following: - Review and update dress codes and grooming policies to ensure that they are neutral and clearly connected to the companyâ&#x20AC;&#x2122;s business interests. Employers may require professional appearance but should refrain from completely banning or restricting particular hairstyles. In the case of health and safety concerns, employers should aim to implement non-discriminatory measures (such as hairnets or hair ties) and should identify options that will accommodate various hair textures and styles. Employers should ensure that dress codes and grooming policies are consistently applied and should avoid restricting employees from holding specific roles (such as customer-facing positions) based on an employeeâ&#x20AC;&#x2122;s or applicantâ&#x20AC;&#x2122;s hairstyle.

- Provide training for employees, especially supervisors, managers, and anyone who makes hiring decisions, to ensure that employees and applicants are not treated unfavorably because of hairstyles or other traits associated with race. - Consider implementing diversity and inclusion training and engaging in efforts to support a racially inclusive working environment. - Keep an eye on legislative and regulatory developments across the country to ensure compliance in all jurisdictions in which the CROWN Act becomes law.

Jennifer Robinson, Office Managing Shareholder Littler Nashville jenrobinson@littler.com www.littler.com

Elise Hofer McKelvey, Associate Littler Nashville ehofer@littler.com www.littler.com

Corinn Jackson, Principal Littler Los Angeles cjackson@littler.com www.littler.com

Jim Horrell presented the Mercer Report on top trends in employer health management - from balancing affordability and choice to creating a culture of health and moving from cost-shifting to future-focused strategies.

GMEBC Meeting | March Luncheon Crescent Club Memphis | March 5, 2020

(L-R) Preston Cox, Co-Chair Programs; Sally Pace, CEO, Connect Healthcare Collaboration; Alexis Giannini, VP Marketing, Connect Healthcare Collaboration; Jim Horrell, Principle at Mercer H & B www.HRProfessionalsMagazine.com

A Revamped IMAGE Program – Is it Worth Joining? By BRUCE E. BUCHANAN

ecently, Immigration and Customs Enforcement (ICE) has been actively soliciting employers to watch an IMAGE ("ICE Mutual Agreement between Government and Employer") presentation and thereafter join the IMAGE program. Is IMAGE better than before? If so, should employers consider joining IMAGE?

IMAGE is a voluntary program established in 2006 by ICE that allows employers to partner with ICE to reduce unauthorized employment. In two recent ICE I-9 inspections, ICE agents have solicited my clients to join IMAGE. In a Tennessee case, ICE offered to issue a Warning Notice in lieu of $40,000 in penalties, if ICE could present an IMAGE PowerPoint to the employer. The employer quickly accepted. ICE agents came to the employer’s facility and presented a PowerPoint presentation that was similar to the one that I attended in 2014 at an ICE conference in Atlanta. In another inspection in Arkansas, ICE agents solicited an employer to join when they went to an ICE office to receive a Warning Notice.

What is ICE committed to under IMAGE? ICE will waive all potential fines unless there are criminal violations. Previously, ICE would waive penalties if substantive violations were discovered on fewer than 50% of the required I-9 forms; and if over 50% of the I-9 forms had substantive errors, ICE would mitigate the fines to the statutory minimum. According to a top ICE official, even before this change, ICE had never fined any employer with more than 50% error rate.

What are Other Changes in IMAGE? Other changes from the earlier version of IMAGE are: • Undergo an ICE I-9 inspection every four years, where previously it was every two years; • Establish a written hiring and employment eligibility verification policy within 120 days, not 60 days; and

What is IMAGE? Employers seeking certification in IMAGE must agree to:

• Allowing some employers under an ICE inspection to join IMAGE during the investigation, thereby eliminating any penalties.

• Complete the IMAGE Self-Assessment Questionnaire (Application); • Enroll in the E-Verify program within 60 days; • Establish a written hiring and employment eligibility verification policy within 120 days; • Agree to conduct a yearly internal Form I-9 audit; • Submit to an initial I-9 Inspection with no further ICE inspections for at least four years; • Commit to follow ICE’s best employment practices; and • Review and sign the IMAGE partnership agreement with ICE. 44

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What are ICE’s Best Employment Practices? The following are IMAGE best employment practices: • Use E-Verify to verify the employment eligibility of all new hires. • Use the Social Security Number Verification Service (SSNVS) for wage reporting purposes. • Establish a written hiring and employment eligibility verification policy. • Establish an internal compliance and training program

relating to the hiring and employment verification process, including completion of Form I-9, how to detect fraudulent identity documents in the verification process, and how to use E-Verify and SSNVS.

The major drawback to IMAGE is granting ICE access to your facility to conduct an I-9 audit. ICE officials like to say, “we’re with the government and we are here to help you.” This motto does not make employers more desirous to join IMAGE.

• Conduct an annual internal Form I-9 audit. • Require the Form I-9 and E-Verify process to be conducted only by individuals who have received appropriate training and include a secondary review process to minimize the potential for a single individual to subvert the process.

If you are concerned about your company’s immigration compliance, including possible employment of undocumented workers, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, available at http:// www.amazon.com/dp/0997083379.

• Establish a procedure to report to ICE/HSI credible information of suspected criminal misconduct. • Ensure that contractors and subcontractors establish procedures to comply with employment eligibility verification requirements and encourage the IMAGE best employment practices. • Set protocols for responding to Social Security Administration no-match letters.

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

• Establish a tip line for employees to report activity that relates to the employment of unauthorized workers and create a protocol for responding to credible employee tips. • Establish policies, practices, and safeguards to avoid anti-discrimination allegations during the Form I-9, E-Verify, or SSNVS processes.

SISKIND SUSSER PC

• Maintain copies of any documents accepted as proof of identity and employment authorization with the Form I-9 for all new hires.

Tennessee’s Largest Business & Employment Immigration Practice

Are these Changes Going to Make Employers Want to Join IMAGE? Among immigration attorneys, voluntarily entering IMAGE is normally frowned upon because of the necessity of undergoing an ICE I-9 inspection. However, have the ICE improvements made it worth joining? If your client is the subject of a Notice of Inspection and you foresee sizable penalties, it well may be best to join IMAGE to avoid penalties. Each employer, with the advice of immigration compliance counsel, needs to make their own decision as to whether to enroll in IMAGE. Many of its aspects may be incorporated in an Immigration Compliance policy - use of E-Verify, if required under state law, conduct an annual internal audit, establish an Immigration Compliance policy, train personnel on the correct procedures, not engage in citizenship status or national origin discrimination, and maintain copies of documents supplied for employment authorization. Thus, an employer may maintain a number of the good points of IMAGE without actually joining IMAGE. But only IMAGE will waive potential I-9 penalties.

IMMIGRATION LAWYERS green cards business visas

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Seven Emotional Self-Care Habits to Develop at Work By HARVEY DEUTSCHENDORF

“Feelings are much like waves. We can’t stop them from coming but we can choose which one to surf.” – Jonatan Mårtensson. When we think of how well organizations look after their employees, we typically think of health and safety areas. Ergonomically correct offices and safety committees have become almost standard practices and expected features in a workplace environment of any size. However, the area of emotional care is still not well understood and practiced in many organizations. There are indications that this is beginning to change, led by millennials whose expectations are permeating the workplace. In 2015, according to the Pew Research Center, millennials spend three times as much as boomers on workout regimens, diet plans, therapy and apps to improve personal wellbeing. In their desire to attract millennials, this change is causing workplaces to take notice and seriously grasp the emotional self-care of their people. Here are 7 Habits to look after your self-care at work:

Being aware of your stressors When it comes to what causes us stress, one size does not fit all. We are all different and need to know what exactly causes us stress. Is it the workload, the people we work with, meeting deadlines? Are we stressed working in a team, or working alone? Do we prefer an environment in which a lot is happening, or do we need a quiet area free of distractions? When I was in university, I found I was able to study more effectively in the student lounge with lots of activity, rather than by myself. Studying alone, without any side activity caused my thoughts to wander, making it difficult to focus. Self-awareness, an essential first step in emotional intelligence, is crucial to knowing what we need to do to look after our emotional needs.

Learning to say no Many of us think, or have been led to believe, that saying no means we are not a good team player, or we miss out on being promoted. However, it is an essential part of letting people we work with that we are at our limit. It is important to frame our saying no in the right context. Instead of sounding like we are whining about the amount of work we have, we can frame it in a way that indicates that we are proud of what we do, the contribution we make and the quality of our work. Let it be known that if you accept the extra work, the quality of the work you do will suffer to the detriment of the team and organization. You may find that this will earn you respect from your colleagues and management and encourage others to do the same.

Ask for help when you need it. There is no benefit to be a hero or a martyr. Asking for help when you need it is not a sign of weakness, it is an indication of someone who knows themselves, is open and a good team player. Consider that others may feel good about the fact that you trust them and their work enough to ask them for help. Only do this when you are genuinely overwhelmed and need help so that you earn the respect of others. We all know people who are more than happy to let someone else do the work that they should be doing. Let your colleagues know when you have some free time and are able to help them with something in return.

Accept all your emotions but chose which you will focus on. Emotions are neither good, nor bad and we all experience many every day. Instead of wasting energy trying to suppress negative emotions, ride them out but don’t keep focusing on them. If you are experiencing positive emotions, you can extend them by focusing on them. In this way you can extend your positive emotional energy.

Be gentle on yourself when things don’t work out as planned. When you have given your best effort and things don’t go as planned, practice being gentle on yourself. Ask yourself how you can use the experience to help you improve in the future. Remind yourself that even the most highly successful people have failed, many countless times, before they reached success. Look at all setbacks as temporary and not indictments of you as a person. All successful people who have overcome obstacles have had this outlook. Instead give yourself credit for stepping up and giving it your all. Pay it forward by supporting others in the workplace who are feeling bad about a setback.

Setting and keeping boundaries We need to set boundaries and let others clearly know where those boundaries are. Do we need a quiet time to mediate, recharge and regenerate? Let everyone know this and be clear that outside of emergencies, you would appreciate not being interrupted during this time. If you are working on an important project with a tight deadline, let everyone know and thank them for helping you by allowing you to focus on this important piece of work until completion. Encourage others to let you and others know when they have an important piece of work and facing a deadline.

Protecting your energy There are certain people at work who can drain your energy if you let them. Sometimes referred to "energy vampires", their attitude and negativity can get in the way of looking after yourself emotionally. Avoid them if you can and limit any interaction that you are forced by circumstances to have with them. When socializing with colleagues at work, avoid talking about areas that you have strong feelings about. Typical areas to avoid are politics and religion. Getting into pointless arguments with coworkers can drain our energy and make working with them in the future more difficult. 46

www.HRProfessionalsMagazine.com

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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