Volume 9 : Issue 8
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Supreme Court
Keeps Auer, But Dilutes
Profiles of ERISA Attorneys and Employee Benefits Attorneys
EEOC on
Appearance Discrimination
Cut Through the Benefits
Communications Clutter
Its Power
Katie
Adams, PHR Executive Director
KYSHRM
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www.HRProfessionalsMagazine.com Editor
Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher
The Thompson HR Firm, LLC Art Direction
Park Avenue Design Contributing Writers
Jared Alexander Austin Baker Bruce E. Buchanan William Carmichael Harvey Deutschendorf Beth Friedman Jill Goldstone Jane Kim John F. Martin David Meckle Gwendolyn K. Nightengale Mary Leigh Pirtle Mark Rosenberg Sean Sullivan Jim Trujillo James B. Taylor Christian Valiulis Ahu Yildirmaz Board of Advisors
Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR Terri Murphy Susan Nieman Robert Pipkin Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine.com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2019 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.
Features 4 note from the editor 5 Register for Excellence Through Leadership Conference in Atlanta August 15-16 6 Profile: Katie Adams, PHR, Executive Director, KYSHRM 20 The Leadership Green Room – Leadership Development for Your Entire Organization 22 The Essential Guide to License Monitoring for Healthcare Professionals 37 Disrupt Jonesboro 47 Data Facts Announces the Promotion of Julie Wink to President 48 Book Look – The Master Coach by Gregg Thompson
Talent Management 8 Culture Change Starts with Real Talk 10 Digging Into the Why of the Gender Gap Pay
Top Educational Programs for HR Professionals 4 MTSU’s Applied Leadership Program 23 WGU Bachelor’s or Master’s Degree Fully Aligned with SHRM’s HR Curriculum 35 Earn Your Master of Science in Human Resource Management at Roosevelt University 49 Online SHRM Certification Exam Prep Class Begins October 2
Employee Benefits 14 Achieving Sustainable Health Benefit Costs by Focusing Progress on Four Key Drivers 28 Cut Through the Benefits Communication Clutter 40 Profiles of ERISA and Employee Benefits Attorneys Ogletree Deakins
24 The Money Tree: Understanding & Implementing Compensation Analysis
41 The Kullman Firm
26 Retiring an Aging Workforce
43 Bass Berry Sims
39 3 Reasons Your Company Needs Career Pathing 54 7 Habits of Highly Respected Leaders
42 FordHarrison Wright Lindsey Jennings 44 Friday Eldredge & Clark LLP 46 Littler Cross, Gunter, Witherspoon & Galchus, P.C.
Employment Law
12 Appearance Discrimination: A Changing Landscape 16 How Can Companies Talk to Baby Boomers About Retirement 19 Wimberly Lawson Annual Labor & Employment Law Update Conference in Knoxville November 21-22 30 Getting Ready for the Federal Overtime Rules (Again) 32 Cross, Gunter, Witherspoon & Galchus, P. C. Seminars 34 Supreme Court Keeps Auer, But Dilutes Its Power 36 BPJ Member Jennifer Shorb Hagerman Achieves Prestigious Fellowship 50 ABCs of Immigration: Conducting an I-9 Audit
Industry News
7 35th Annual KYSHRM Conference in Louisville August 28-30 9 Highlights from the 2019 SHRM Annual Conference in Las Vegas June 23-26 18 2019 TN SHRM Conference & Expo in Chattanooga September 18-20 21 2019 North Carolina HR Conference in Hickory September 25-27 33 ARSHRM Employment Law & Legislative Affairs Conference in Little Rock September 26-27 52 SHRM-Memphis HR Connect Career Talks July 16 53 24th Annual Mississippi HR Conference & Expo in Tupelo September 16-18 55 2019 ALSHRM Strategy in the Sand Conference in Orange Beach October 11 September 2019 issue features Employment Law and Employee Benefits Updates plus the 24th Annual MSSHRM State Conference in Tupelo, TNSHRM Conference & Expo in Chattanooga, the NC HR Conference in Hickory, and the ARSHRM Employment Law & Legislative Affairs Conference in Little Rock
Deadline to reserve space August 15
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a note from the editor
We
are excited to have Katie Adams, PHR, Executive Director of KYSHRM, on the August cover. You will enjoy learning about Katie in her career profile on page 6. We are looking forward to covering the 35th Annual KYSHRM Conference in Louisville August 28-30. This is always a fabulous event! We will bring you live updates from the Conference on Facebook, LinkedIn and Twitter. So be sure to follow me on Twitter at @cythomps for the updates. We will also be streaming live to bring you interviews on today’s hot topics from subject matter experts at the conference. We are also looking forward to seeing our SHRM friends in Atlanta for the Excellence Through Leadership Conference presented by Strategic HR Partners August 15-16 at the Crowne Plaza Hotel & Conference Center. You can earn 11 SHRM PDCs and 11 HRCI business credits! Check out the excellent speakers and their topics on Page 5. Group discounts are available. I hope you can join us there!
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If you are not yet a certified HR professional, you have two excellent opportunities coming up. Our next Online HRCI Certification Exam Prep Class begins August 21. You can register on our website to join this class now. We will also be offering the Online SHRM Certification Exam Prep Class again this fall beginning on October 2. These classes are affordable and convenient! You can take them from the comfort of your home on your own computer. Mark your calendar now and plan to join us for our monthly webinar sponsored by Data Facts. You will earn 1.00 SHRM PDC and 1.00 HRCI credit. It will be, August 21 at 2 PM. Watch your email for details.
cynthia@hrprosmagazine.com cythomps@twitter
Register for Excellence Through Leadership Conference The Crowne Plaza Hotel & Conference Center Atlanta SW Peachtree City, Georgia August 15-16 2019 This Conference is pre-approved for 11 HRCI Business Credits and 11 SHRM PDCs!
Go to www.strategichrpartners.com to register!
Speakers Mac Fulfer
Charles Little
Attorney, Author of “Amazing Face Reading”
Strategic HR Partners, CEO
Amazing Face Reading as a Science
HR Metrics that HR Leaders Use in Successful Companies
Objectives: • Spot deception using facial clues • Interact more effectively with employees at all levels • Make better selection decisions for hiring best fit
Gregory J. Hare Ogletree Deakins-Atlanta, Managing Shareholder
What You Don’t Know Can Hurt You – What’s New in Employment & Labor Law Objectives: • Hurdles to avoid in discrimination & harassment claims • How to conduct a sensitive investigation • Actions to ensure union avoidance
Dr. Kim Hutton Chief Medical Officer, CareATC
Objectives: • What metrics to track to propel your career • How to use metrics to earn respect from C-Suite • Hold managers accountable with numbers
Margaret Morford The HR Edge, Inc., CEO
Why Should Someone be Led by You
Management Courage: Having the Heart of a Lion
Objectives: • Differentiate leadership from management • Identify 8 essential leadership behaviors • Learn how to create new leaders in your organization
Objectives: • Explore 5 principles of “management courage” • Test your personal “management courage” • Create a personal plan to push your career
How to Lead Wellness & Cost Containment Efforts through On-Site Clinics
Nathan Levy
Objectives: • Identify cost of illness and lack of well-being care to employers • Learn about cost-effectiveness of on-site clinics through cost sharing • Discuss real case studies and positive impacts on workplace
A Proactive Approach to Workers Compensation
Patrick DeCoster
Madelyn N. Brown
Chubb North America, Assistant Vice President
Strategic HR Partners, Executive Director
How Cyber Security Is Affecting Your Business
Your Weakest Link: Training Managers & Supervisors
Objectives: • Why HR needs knowledge of cyber security • Strengthen your defenses & detect threats • Best position your company for what’s ahead
Objectives: • Discuss bottom line impact of weak managers • Assess bench strength of your team • Create action plan for enhanced manager performance
Levy, Sibley, Foreman & Speir, LLC, Partner Objectives: • Understand the current dynamics in workers comp • Study real examples of cases gone bad & how to avoid • Impactful actions you can take today
Katie ADAMS on the cover
KATIE ADAMS, PHR, Executive Director, KYSHRM
Katie Adams is the executive director of the Kentucky Society for Human Resource Management (KYSHRM). Her goal is to expand the KYSHRM brand and develop KYSHRM as a nationallyrecognized leader for its support and development of local SHRM chapters and individual members across the state of Kentucky. The newly created, dual role is in partnership with the Kentucky Chamber of Commerce, where Katie also works with the Senior Vice President of Business Services on special projects. Katie represents KYSHRM on the Kentucky Chamber of Commerce Workforce Center Board and the Kentucky Chamber Workforce Center Employer Workforce Recovery Task Force. She maintains a membership with the Louisville Society for Human Resource Management chapter. Katie has a B.S. in Workforce Leadership, an A.A. in Paralegal Studies from the University of Louisville and completed an internship with the Kentucky Commission on Human Rights. Her 10 years of progressive experience within the field of human resources includes employee benefits, payroll, legal compliance, HR systems and technology, full cycle recruitment, policy development, employee relations, performance management, leadership development and onboarding. Prior employers include Assured Partners, Mortenson Dental Partners, Integrity HR, Inc. and M&P Collections, Inc. When not serving the volunteer leaders of the KYSHRM State Council and its chapter affiliates, Katie pursues her passion for wellness as a volunteer speaker and fundraiser for the American Heart Association. She also serves as a volunteer communications liaison for SCAD Alliance. ď Ž
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presented by
EARN
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KEYNOTES
Meagan Johnson
Eric Ellis
Meredith Oliver
3:45 p.m. | Wed., Aug. 28
8:45 a.m. | Thu., Aug. 29
12 p.m. | Fri., Aug. 30
Zap the Gap: Generational Differences Reexamined
Reducing Implicit Bias Through Effective Performance Calibration
Reframe: The Power of Vulnerability to Unlock Peak Performance
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Culture Change Starts with Real Talk
an ethos of strategic, issuedriven conversations that can improve company cultures. When managers and their reports—and peers with peers—sit down to talk about specific workplace issues, real change can happen. Solving issues like harassment, ageism, skills gaps, inclusion and equity in the workplace is a collective effort. These conversations should not be top-down communication, but should take the shape of pre-planned, one-on-one social encounters, where each person is on equal footing.
Tips for constructive dialogues
By SEAN SULLIVAN, SHRM-SCP, SHRM’S CHRO
We’ve all been there. The uncomfortable workplace. The bad boss. The crabby coworkers. So it may not surprise you that 1 out of every 5 American workers has left or wanted to leave a job due to workplace culture. After a bad day at the office, 45 percent of employees who had been with their companies less than a year admitted to applying for new jobs, according to a 2018 study by the Work Institute. People leave their jobs when they feel unappreciated, overburdened, excluded, unsafe or besieged by personal conflict. Unsatisfying work is a product of an unsatisfying workplace. That is why it is so important that our organizations get workplace culture right. Culture is what motivates and retains talented employees. It’s behind every business decision. And a healthy workplace culture—one that is fair, inclusive, high-functioning and free from harassment—is a critical business asset and force multiplier. To emphasize the importance of strong workplace cultures, SHRM recently launched a national initiative on workplace culture, 8
which debuted at our Annual Conference & Exposition in June in Las Vegas. (You can learn more by visiting www.talkworkculture.com).
Honest conversations Sounds interesting right, but how do we actually make our cultures stronger and healthier? First, we need to understand what’s working—and what’s not. And that requires open, honest conversations with those who experience the culture every day. When employees understand and feel connected to their organization’s beliefs and values— and feel free to share their own—they are more engaged, and productivity goes up. People managers, along with HR, play an outsized role in understanding and shaping workplace cultures on a day-to-day basis, including anything from employee engagement and satisfaction to productivity and profitability. So, what could change if bosses spent as much time listening as managing? That is why SHRM is encouraging people managers and HR professionals to develop
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1. Commit to having the conversation. All too often, strategic, issue-driven conversations are absent from the calendar. Take the time to think through what you really want to talk about, why you want to have the conversation and the desired outcome. 2. Decide who to talk to on your team. Pick an employee you feel has useful insights on your company or team culture. It’s important that the conversation offers opportunities for learning and discovery that can lead to culture change, and that you are inclusive when selecting employees to engage. 3. Select the right time and place. Plan a one-on-one social encounter, like talking over coffee, and choose a meeting spot that’s on neutral ground and convenient. 4. Get into the right mindset. Before the discussion takes place, check any preconceptions and assumptions at the door and be aware of your own unconscious biases. 5. Begin the conversation by setting the stage. Explain why you are interested in the employee’s views and what the outcomes might be. 6. Listen to understand, not to solve. Don’t attempt to address problems or issues in the moment. Ask good questions
and process the conversation as it happens, so you are fully understanding the employee’s views and ideas, not just responding to them. 7. Support a “we” attitude. Using “we” in conversation reinforces that you are in this together and working toward a shared goal of improving culture at your company. We at SHRM invite you to keep the conversation going by visiting www.talkworkculture.com. There you can find conversation starters and more information on the power of culture to shape our workplaces. We can shape better workplaces— and a better world—with a cup of coffee and an honest conversation. “Real talk” can bring people together, solve problems and transform workplace cultures.
Attendees at SHRM’s 2019 Annual Conference & Exposition in Las Vegas had the opportunity to test their culture conversation skills at the Workplace Convos & Coffee experience. This fully functional pop-up coffeehouse was designed to encourage one-on-one dialogue about the issues HR and people managers confront every day. The experience began the moment participants stepped onto an interactive floor, where workplace topics appeared under their feet. As they moved around and encountered others, topics came together to illuminate thought-provoking questions designed to spark critical conversations. The focus on workplace culture at Annual Conference marked the beginning of a SHRM national initiative, which will continue with an experience in late September in New York City.
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1 Emily M. Dickens, J.D., SHRM’s Corporate Secretary and Chief of Staff, and Johnny C. Taylor Jr., SHRM President and CEO, with Adam Gorilitsky, Founder of Got Legs. 2 (L-R) Art Smith, MTSHRM; and Jack Eyer, Managing Partner with Relax, It’s Handled 3 Larry Valenti, President of North Carolina SHRM, and Cynthia Thompson, MBA, SHRM-SCP, SPHR 4 SHRM Volunteers 5 SHRM Research Team 6 Attendees enjoyed Lionel Richie Tuesday evening. 7 SHRM Media and Public Affairs Team 8 From the Flamingo Hotel in Las Vegas www.HRProfessionalsMagazine.com
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Digging Into the Why of the Gender Pay Gap By AHU YILDIRMAZ
Although gender wage discrimination is illegal, the gender pay gap remains a significant issue in the American workforce. While federal law specifically prohibits gender wage discrimination, there are a number of factors that lead to the gender pay gap — for example, promotion tracks or incentive pay practices. That’s because these methods of compensation adjustments are typically conducted without the same degree of oversight as annual compensation reviews, allowing potential biases and skewed perspectives to come into play. Specifically, recruiting, base pay and incentive pay contribute significantly to gender pay inequality. As outlined below, the issues often arise before an employee’s hiring date and then continue to escalate throughout their tenure.
Societal Factors at Work According to the Bureau of Labor Statistics, most of the strides in moving the pay gap from 62 percent in 1979 to its current range of 80-83 percent occurred in the 1980s and 90s. As of 2016, women who work on salary and are full-time employees make about 82 percent of what their male counterparts earn. Traditionally and continuing through today, women work in more office and support roles instead of in the higher paying engineering, finance and operational roles. For example, only 10 percent of women working in professional occupations worked in the high paying engineering and computer fields vs. 46 percent of men, per BLS. Societal factors such as encouraging women to be caregivers, focusing on girls’ physical beauty or artistic tendencies instead of their academic achievements and chiding girls to be “nice” and not assertive are additional contributing factors to a lower pay scale for women.
The Role of Incentives In addition to regular pay, traditionally those who obtain jobs that are more directly tied to profit and loss, such as in engineering or operations, receive larger bonuses than those who work in back-office or support roles. Since women are much more likely to fill these latter roles, they are more likely to receive lower bonuses — or none at all. According to the ADP Research Institute® paper, Rethinking Gender Pay Inequity in a More Transparent World, the gap in bonus pay was a staggering 69 percent. In some fields, such as education and professional and business services, the gap between base pay was statistically insignificant. However, in those and other fields, there was a significant gap between annual bonuses. The large disparity between men and women’s bonuses obviously has a major impact on the total compensation gap in certain fields. Although some of this is due to women having a smaller presence in certain fields, these disparities also appear for comparable peer groups, which means that other factors beyond societal ones are contributing. 10
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Men and Women Negotiate Differently One possible reason to explain the pay gap is that men may be far more likely than women to negotiate overall compensation, which includes their base pay, commissions, bonus and stock options. Conversely, women may be more likely to negotiate their hours and schedule flexibility. In addition, men could be more likely to start negotiations by asking for more than they want or have earned in the past, while women may sometimes start by asking for less than they actually desire. Women may also be more likely than men to accept an offer without negotiating. Regardless of the reasons, women are more often starting out with lower overall compensation in firms that rely on negotiated starting wages to set the employee’s compensation pathway.
Salary Is Often Considered a Measure of Success All successful firms have a success orientation — conscious or unconscious. Nevertheless, how that success is defined can greatly impact how people are identified for promotions. If that success definition is linked to overall compensation amount, women will be at a disadvantage. According to the ADP Rethinking Gender Pay paper, lower salary employees may be overlooked for promotion compared with a higher-paid employee of the same caliber. If a manager’s success orientation is pay, then that manager is more likely to view a more highly compensated employee as more skilled or talented than a lower compensated employee. As this perspective plays out in successive rounds of promotions, the pay gap either widens or becomes entrenched. Essentially, an employee who negotiates lower incentive pay at her time of hire may be inadvertently reducing her career advancement prospects. Ultimately, low overall starting compensation, particularly low incentive pay, has become a major limiting factor that prevents or slows career advancement for women. Hence, lower starting compensation, and its long-lasting impact, is one of the most potent contributors to the ongoing gender pay gap. This article originally appeared on the ADP Spark blog.
Ahu Yildirmaz Co-Head of ADP Research Institute® and Vice President of Corporate Strategy
ADP, the ADP logo, and Always Designing for People are trademarks of ADP, LLC.
What are you #WorkingFor? The things we work for are what define us. At ADP we’re designing a better way to work, so you can achieve what you’re working for. Discover HR, Talent, Benefits & Payroll, informed by data and designed for people. Learn more at design.adp.com
Appearance Discrimination:
A Changing L A N D S C A P E By JAMES B. TAYLOR
Put simply, “appearance discrimination” means discrimination based on an individual’s physical appearance. While a novel concept, this issue is becoming increasingly relevant in modern employment. There has undoubtedly been a growing trend toward the acceptance of formerlytaboo physical expression. Further, there has been a steadily-growing social acceptance of body diversity. For example, up to 30% of college graduates in the United States have tattoos. Likewise, up to 160 million Americans are considered “obese or overweight,” a group including nearly a third of American adult men and women. Of course, there are dozens of other physical characteristics, whether voluntary or not on the part of the individual, that distinguish individuals’ physical appearance, and which may place them outside of traditional business “norms” with respect to employee appearance. The question therefore persists: does an actionable claim exist for “appearance discrimination”? Appearance Discrimination Under Federal Law On the federal level, while there are numerous prohibited forms of discrimination in employment under various laws, there is no direct federal prohibition on “appearance discrimination” in employment, standing alone. However, the concept of “appearance discrimination” has been steadily gaining steam in the employment context over the past decade, with the EEOC indicating that a record number of “appearance discrimination”-related cases have been asserted against employers since 2010. Given the lack of a specific federal “appearance discrimination” law, claims involving such issues are typically couched in the context of prohibited race, sex, or disability discrimination. Over the past several decades, such cases decided under federal law generally appear to be moving toward a growing acceptance of “appearance discrimination”type cases, specifically where the “appearance discrimination” can be tied to the employee’s status as a member of a protected class. Federal “Long-Hair” Caselaw of the 1970s Beginning in the 1970s, federal caselaw established the legal baseline for “appearance discrimination”-type claims. After the enactment of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., courts saw a subsequent onslaught of cases brought in opposition to employers’ grooming and dress policies. In these cases, the “appearance discrimination” aspects of such claims generally asserted that the appearance standard, dress code and/or grooming policy at issue has a prohibited discriminatory effect and/or is discriminatorily enforced with respect to the employee’s protected status (whether that be race, national origin, sex, age, disability, etc.) Many of the initial federal “appearance discrimination”-type of claims were asserted by male employees who wore long hair in violation of their employers’ grooming standards. Other notable cases involved claims asserted by female flight attendants who violated their employers’ body weight requirements. As expected, the long-haired male employees primarily relied on Title VII’s protection against sex discrimination, arguing that, if an employer allows women to maintain long hair in the workplace, banning men from having long hair constitutes disparate treatment based on sex and is therefore unlawful under Title VII. Among these “long hair” cases, the most-cited decision came in the 12
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case of Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084 (5th Cir. 1975). There, the plaintiff sued an employer based on the employer’s refusal to hire him because he wore shoulder-length hair. Id. at 1087. Importantly, the plaintiff’s claim in this case was expressly presented as a “sex-plus” claim – i.e. claims that involve the classification of employees by sex in addition to one other characteristic. Id. at 1088-89. In Willingham, the employer’s dress code required employees who came in contact with the public to be neatly dressed and groomed in accordance with the standards customarily accepted by the business community. Id. at 1087. After a review of the arguments, the Willingham court determined that the employer’s discrimination against the plaintiff was solely based upon its grooming standards policy, and not the plaintiff’s sex. Therefore, Title VII was not violated by the employer’s actions. Id. at 1088. In rejecting the plaintiff’s “sex-plus” discrimination argument, the court determined that the existence of a general sex stereotype may not necessarily constitute the “plus” aspect of a “sex-plus” claim. Id. at 1092. Instead, the court found that the “plus” must constitute an “immutable characteristic” of the employee – a characteristic that does not include how an individual wore his or her hair. Id. To the Willingham court, “distinctions in employment practices between men and women on the basis of something other than immutable or protected characteristics do not inhibit employment opportunity(ies)” in violation of federal law, as the law “sought only to give all persons equal access to the job market, not to limit an employer’s right to exercise his informed judgment as to how best to run his shop.” New Federal Precedent Set by Flight Attendant Caselaw As the 1970s progressed, the majority of federal courts followed the Willingham rationale and typically refused to find Title VII violations based on an employer’s grooming and appearance policies, even where those policies may have had differing requirements based on an employee’s sex. As referenced above, another wave of cases involving “appearance discrimination”-type claims came in the form of several suits challenging employers’ appearance requirements for female flight attendants, requirements which often focused on the flight attendant’s weight. An important decision amongst these cases was the decision of Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir. 1981), rev’d on merits upon reconsideration en banc, 648 F.2d 1223 (9th Cir. 1981), cert. denied, 460 U.S. 1074 (1983). In the Gerdom case, an airline employer was sued by a female flight attendant based on the employer’s appearance standards. The flight attendant in this case was terminated for exceeding her employer’s maximum weight specifications relative to her height. Id. at 603. Under these standards, a flight attendant who was 5’2” could weigh no more than 114 pounds. Id. at 604. The airline employer’s stated purpose for its weight program was “to create the public image of an airline which offered passengers service by thin, attractive women,” whom airline executives referred to as the employer’s “girls.” Id. At the same time, the employer maintained a category of male employees, whose duties overlapped with those of the flight attendants (known as “directors of passenger service”), yet who were not subject to any form of weight restrictions. Id. Based on these facts, the Gerdom court ultimately broke
from the trend of cases following Willingham, and ruled in favor of the flight attendants. Id. at 610. In reaching this conclusion the Gerdom court found that the airline’s weight program for female flight attendants was facially discriminatory as it only applied to women. Id. at 608. Notably, the Gerdom court distinguished this case from others where a grooming policy had different rules for male and female employees but was applied evenhandedly and did not deprive either sex of employment opportunities. See Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir. 1977). Since the time of Gerdom, cases decided under federal law have generally taken an increasingly expansive view of “appearance discrimination”-type claims, particularly where the facts involved show disparate treatment by an employer based on an employee’s federallyprotected status. This can be seen in recent EEOC guidance, where it has taken the position that obesity, particularly when combined with other health conditions, should be viewed as a disability subject to the ADA’s protections against discrimination. The Emergence of State and Local Laws Prohibiting “Appearance Discrimination” A growing list of states, counties and municipalities have enacted protections that go beyond the federal laws regarding employment discrimination. Washington, D.C., for example, has enacted laws prohibiting all personal appearance discrimination. See e.g. Ivey v. District of Columbia, 949 A.2d 607, 615 (D.C. 2008) (distinguishing claim by overweight employee under federal law versus state law, which authorized appearance discrimination claims). Cities, such as Binghamton, New York; Santa Cruz, California; and San Francisco, California have
also enacted ordinances which prohibit discrimination based on weight and height. Madison, Wisconsin and Urbana, Illinois have passed laws banning discrimination in employment based on a person’s “physical appearance” and “personal appearance,” respectively. An example of the operation of these new laws can be seen in Madison, Wisconsin. In general, Madison’s law, like many other local laws on this topic, operate much like federal discrimination laws in the sense that they may allow an employer to base employment decisions on physical experience where such is required by a legitimate business need or necessity. See City of Madison, Code of Ordinances Ch. 39; see also Sam’s Club, Inc. v. Madison Equal Opportunity Comm’n, 2003 WI App. 188 (Wis. Ct. App. 2003) (enforcing employer’s policy against facial jewelry in “appearance discrimination” claim under City of Madison ordinance where the employer showed it had a legitimate business reason for its policy). Given this new and changing landscape, employers should review their personal appearance standards with an eye toward how these standards could be viewed under federal law. In addition, employers should also review applicable state or local law regarding these issues, as several states and cities now provide employees with additional protection from “appearance discrimination” in employment.
James B. Taylor, Attorney Martenson Hasbrouck & Simon LLP jtaylor@martensonlaw.com www.martensonlaw.com
Martenson, Hasbrouck & Simon LLP focuses its practice
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on labor and employment defense and business litigation. Our reputation for excellence has been earned through our dedication to providing innovative solutions to the most difficult problems at an exceptional value. We have forged long-lasting relationships with our clients through our tenacity, skill, and accessibility. Based in Atlanta, in the heart of Buckhead, with two additional offices in California, we have developed a highly flexible representation model that enables us to serve clients of all sizes, across all regions of the country.
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Achieving sustainable health benefit costs
by focusing progress on four key drivers By SETH FRIEDMAN, JILL GOLDSTONE, and MARK ROSENBERG
Spending on employee health benefits is an increasing part of overall expenses, crowding out investment in growth and making the issue an escalating concern for the C-suite. Recently, this routine challenge intensified due to the declining practice of cost shifting through higher employee deductibles, copays and coinsurance rates. What was once a core tactic for cost containment has generally passed the point of diminishing returns. To help solve this latest configuration of the healthcare riddle, employers first need to determine the unique underlying factors driving their healthcare spending, and then implement strategies that directly address them. The starting point is conducting an analysis of organizational data to understand the employee population’s state of health — including the results of health risk assessments as well as healthcare claims utilization and spending patterns. Most employers will uncover four common drivers of health benefit costs. A high prevalence of chronic health conditions such as obesity and diabetes, as well as hypertension and other cardiovascular diseases — often linked to poor health habits — is probably familiar. The prospect of encountering highly variable quality and costs of provider-delivered healthcare is also strong. And escaping the problem of epidemic opioid misuse that affects all U.S. population segments would be unusual. Fortunately, applying effective costcontainment strategies in all of these areas increases the likelihood that overall progress will be greater than the sum of its parts.
Encouraging the use of high-performance narrow networks More employers are recognizing the importance of directing employees to higher quality, lower cost providers and facilities. In 2018, 17% used narrow networks, and that percentage is expected to reach 26% by 2020.¹ Greater transparency of data on quality and cost has made it easier to compare provider care across the country, in local markets and even within a single provider organization. The variation can be shocking. Pricing gaps for some procedures may be as broad as 3-5 times or more, from lowest to highest, depending on the provider and the site of care. Patient health outcomes may also differ significantly, impacting the total cost of care that includes treating complications from a procedure. And unlike most other industries, higher prices in healthcare are not necessarily correlated with higher quality. The primary strategies for helping ensure that employees choose preferred providers are to mandate the use of high-performance narrow networks, or incentivize this option through tiered-network plan designs. Providers include centers of excellence for specific procedures or conditions. When contracting with narrow networks directly or through health plan administrators, employers can negotiate discounted pricing in return for greater patient volume. Contracts may also include payment models that incentivize the providers to deliver better care at a lower cost. Another option is to use healthcare navigators that recommend preferred providers and facilities to employees — an approach that’s available with or without a narrow network benefits plan.
Actively addressing opioid dependency prevention and treatment Promoting population health management programs Across every employee population there’s a distribution of health status from top to bottom. Some people are fit, and others are either at risk for developing chronic conditions or already coping with disease as high-cost claimants. Non-claimants moving down on this scale are ticking time bombs from a healthcare cost standpoint. With the support of health management programs, employees in need can work to prevent chronic health issues from developing or getting out of control. It’s imperative to help at-risk employees stay healthy through programs that identify and engage them in wellbeing programs and the healthcare system. Employees already living with a full-blown health condition also need the proper care to effectively control its effects — helping them avoid the emergency room and inpatient care. In some cases, interventions can even reverse disease progression.
Four Strategies To Address Cost Drivers Of Key Health Benefits 1 Population health management programs 2 High-performance narrow networks 3 Opioid dependency prevention and treatment 4 Proactive management of specialty pharmacy 14
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One of the hard truths of the opioid epidemic is the fact that prescription medications provided through employer-sponsored health plans contributed in large part to the crisis. Tragically, roughly 1 in 4 patients prescribed these drugs for chronic pain misuse them — and around 1 in 10 will develop an opioid use disorder (OUD) requiring treatment for recovery and sobriety.² Among the biggest inhibitors of effective employer action is the stigma of addiction. And many employers just don’t know where to start. Strategies and action plans are now available to help employers confront and better manage the workforce challenges of OUD. A proactively developed, holistic approach to policies, programs and benefits focuses on accessible alternatives in three critical areas — managing chronic pain, removing barriers to evidence-based treatment and educating health plan members to self-advocate. Establishing a comprehensive drug-free workplace policy that includes testing for synthetic opioids supports these objectives. And success is reinforced by giving employees who test positive or self-identify a second chance — allowing them to return to work after treatment. The engine for activating this solution is a well-rounded employee communication platform, which uses supportive messages to emphasize “this could happen to anyone” and “OUD is a disease and not a moral failure.” In addition, this platform can confidentially connect employees and their family members with recovery and treatment resources through an employee assistance program. Guidance for patients on talking with their physician about opioid alternatives, and training for supervisors on identifying and privately addressing at-risk employees also boosts the
potential for positive outcomes. Throughout, transparency and compassion will reduce fear and anxiety about workplace retribution — encouraging employees to come forward and seek treatment. End-to-end solutions like this help employers maintain a safe workplace. They’re instrumental in addressing substance abuse and reducing its heavy financial toll and other costs — by enabling affected employees to once again be productive contributors to the organization.
Seth Friedman National Pharmacy Practice Leader
Seth drives the national pharmacy practice strategy and assists with consulting, auditing, benchmarking, implementations and Medicare Part D support. He focuses on helping clients achieve their pharmacy benefit management goals at significant savings.
Jill Goldstone Area Vice President, Innovation, Mid Atlantic Region
Primarily focused on innovation, Jill brings leading-edge solutions to clients. She recently collaborated on a program to address opioids in the workplace, aimed at resolving stigma and building support and recovery strategies. Jill also assesses vendors to identify capabilities that match clients’ needs.
Proactively managing specialty pharmacy use Increasingly, employers are more actively controlling the growth of spending on specialty drugs. Although these prescriptions are only a small subset of the entire pharmacopeia, they drive about 50% of costs and represent 1%–2% of claims.³ Their redeeming quality is that many represent breakthrough life-changing or life-saving therapies — but the growing number of pricey specialty medications for treating an expanding quantity of conditions poses a challenge. The uncertainty of price and treatment variables sometimes makes it difficult to predict prescription drug costs in a given year. Predictive modeling can more sharply define the cost challenge of specialty drugs, and help employers identify appropriate plan designs and policies. In many cases, those policies will include prior authorization and step therapy as measures for verifying the patient is receiving the right therapy for their needs. Prevalent chronic health conditions, variable healthcare quality and costs, the persistent opioid epidemic, and proliferating specialty drugs form the four quadrants of healthcare cost opportunity. By focusing containment efforts in these areas, employers can build momentum toward more stable, sustainable investments that consistently meet the health needs of employee populations.
Mark Rosenberg Area President, Healthcare Analytics
Mark guides his team in providing clients with accurate quantitative monitoring and an effectively managed health plan experience. He consults on topics such as cost-savings approaches and population health management. ¹Arthur J. Gallagher & Co., “2018 Benefits Strategy & Benchmarking Survey,” November 2018 ²National Institute on Drug Abuse, “Opioid Overdose Crisis,” revised January 2019 ³Gallagher National Pharmacy Practice database 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 Insights. To download the full report, visit ajg.com/owti-2019. © 2019 Arthur J. Gallagher & Co. | 27335P
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How Can Companies Talk to Baby Boomers About Retirement By MARY LEIGH PIRTLE
Bass, Berry & Sims attorney Mary Leigh Pirtle provided insight for an article outlining how companies should discuss retirement plans with their older employees. According to Mary Leigh, an annual review period would be an appropriate time to discuss an employee’s upcoming plans for retirement and any need for succession planning. “Employers should pose questions to employees about retirement plans with the sole goal of understanding staffing needs for future workforce planning,” Mary Leigh explained. “This discussion should be general in nature, should not make reference to the employee’s age or ‘generational’ comments, and should promptly end if the employee indicates that retirement is not a consideration at that point.” In terms of baby boomers training younger colleagues before announcing plans to leave, Mary Leigh points out that it may depend on the position in question and the company’s needs for proper succession planning. “For example, the company may determine that is best practice to have a ‘backup’ employee trained in key positions or roles with steep learning curves.” However, Mary Leigh said the goal behind these training efforts should be securing future workforce planning and should not be dependent on the age of the employees involved.
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Exerpts From “Should Companies Talk to Baby Boomers About Retirement” by Terri Ballman "Many employers require all upper level employees to have a succession plan in place in case of death or disability, so that
“ Don’t claim a position is being eliminated when it’s just being retitled or, worse, not being eliminated at all," she says, and warns that these tactics will be used against you in an age discrimination case.
might be a workaround if there is a real concern," she says. "But that should be directed at all employees of a certain level, not just the older ones." Pirtle agrees that it may depend on the position in question and the company’s needs for proper succession training. "For example, the company may determine that is best practice to have a ‘backup’ employee trained in key positions or roles with steep learning curves," she explains. However, the goal behind the training efforts should be securing future workforce planning, and Pirtle says this should not be dependent on the age of the employees involved.
it’s just being retitled or, worse, not being eliminated at all," she says, and warns that these tactics will be used against you in an age discrimination case. "If older employees are performing poorly, treat them the same as younger employees — with coaching and discipline." Otherwise, treat them as you would any other employee. The full article, “Should Companies Talk to Baby Boomers About Retirement,” was published by MultiBriefs on June 4, 2019, and is available online.
In fact, Ballman advises companies to stop targeting older employees for layoffs or assuming they will retire at a particular age. "Don’t claim a position is being eliminated when
Mary Leigh Pirtle, Associate mpirtle@bassberry.com Bass, Berry & Sims PLC www.bassberry.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.
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SOCIAL EVENT
A unique social event will be held at Southside Social in Chattanooga’s Southside district . Southside Social is a family-friendly boutique bowling alley that offers 10 lanes in addition to 4 bars. Southside Social offers an exclusive atmosphere which creates an exuberant experience, including: lounge seating with flat-screen televisions, and an indoor gaming area with pool tables, skee ball, ping pong, shuffleboard, giant jenga and more. The outdoor courtyard also offers casual seating, fire pits, ping pongtables, horseshoes, and cornhole.
REGISTER
Attendees, Exhibitors, and Sponsors may visit www.shrmchattanooga.com for registration and hotel information. For additional questions regarding the 2019 conference, please email pastpresident@shrmchattanooga.com.
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REGISTER NOW! for the Wimberly Lawson
2019 ANNUAL LABOR & EMPLOYMENT LAW UPDATE CONFERENCE November 21 - 22, 2019 Sevierville Convention Center Wilderness at the Smokies, Sevierville TN “Just 30 minutes from downtown Knoxville!”
CONFERENCE TOPICS INCLUDE: Marijuana, CBD Oil, and Drug Testing; LGBTQ+, Religious Liberty, and Title VII; DOL Update - Including Overtime Calculations and Joint Employers; Navigating Complicated Disability Issues and the ADA; 2019 EEOC Update – Panel Discussion with EEOC and THRC Officials; “You’re Fired!” - The Right Way and the Wrong Way; The Rise of Gen-Z in the Workplace; Employment Contracts, Severance Agreements, and Class Action Waivers, Including Non-Compete and ADEA; The Incivility of Civilization and Conflict Resolution; FMLA and Leave Laws; Tips & Traps in Recruiting and Retention; Social Media in the Workplace; Nancy Drew…or Inspector Gadget? Conducting Effective Internal Investigations; The Deceptively Dangerous Fair Credit Reporting Act – Including Background Checks, etc.; FLSA: Wage & Hour Nightmare Scenarios; Immigration, E-Verify and I-9; Cyber-Security … AND MORE! Accreditations: * 8.0 Recertification credit hours for HRCI (PHR, SPHR and GPHR) and SHRM (PDCs) will be requested * 8.0 Attorney CLE credit hours for TN, GA, VA and KY will be requested
Comments from last year: “Always informative, great presentations!” “Topics are spot-on for the workplace today!” “Presenters are knowledgeable and fun!” “This Conference is one of my favorites!”
For more information, or to register: Please email Bernice Houle at bhoule@wimberlylawson.com or visit us online at www.wimberlylawson.com
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The Essential Guide to License Monitoring for Healthcare Professionals By JARED ALEXANDER
Human Resources Professionals shoulder big responsibility, especially if they work in the healthcare industry. In addition to the normal burdens of recruiting, hiring, and maintaining a competent, productive workforce, Healthcare HR must deal with a plethora of laws and regulations. Failing to understand them properly can cost the organization big.
April 25, 2019: Morganstern Urology in Georgia entered into a settlement agreement with OIG. The settlement agreement resolves allegations that Morganstern employed a physician who was excluded from participating in any Federal healthcare program. SETTLEMENT: $18,810.40 Healthcare employees deal with unique challenges. They’re frequently responsible for a patient's life or death. In other industries, an employee's mistake may result in a customer receiving the wrong product, or accidentally being charged twice. In contrast, healthcare employees can cause permanent physical harm to patients through ineptitude, carelessness, or willfulness.
April 12, 2019: Texas Health and Human Services Commission and Lufkin State Supported Living Center entered into a settlement agreement with OIG. resolving allegations that they employed an individual, a registered nurse, who was excluded from participating in any Federal health care program. SETTLEMENT: $121,068.42 Your doctor or dentist office, hospital, rehab facility, or retirement center may have a long-standing screening program that seems to serve you well. However, it pays to re-visit it periodically to make certain it’s thorough, fair, and protects your organization as much as possible. #1: Understand that non-compliance can be very costly. Healthcare HR professionals need to always keep compliance in the forefront of their minds and weave it into every aspect of the policy. Two main pieces of this are fines levied by the OIG for non-compliance, and lawsuits brought by patients or their families. These are reasons why ever person in the organization should be monitored, and each process should be well-documented and provable if it’s every required.
March 21, 2019: Berea Alzheimer's Care Center in Ohio entered into a settlement agreement with OIG. The settlement agreement resolves allegations that BACC employed an individual who was excluded from participating in any Federal healthcare program. OIG's investigation revealed that the excluded individual, a medical records coordinator, provided items or services to BACC's patients that were billed to Federal healthcare programs. SETTLEMENT: $75,998.54 22
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#2: You should monitor every employee. Just checking the licenses and eligibility of doctors and nurses leaves you vulnerable to risk. Put steps in place that regularly check every employee for the required qualifications to work in the healthcare industry. HR needs to set an ongoing monitoring process in place, in writing, detailing what will be required of each applicant and employee, along with when and how. This policy needs to be easy to understand both by the hiring and department managers as well as the employees and followed consistently.
March 8, 2019: Cleveland Manor Nursing and Rehabilitation in Cleveland, Oklahoma, entered into a settlement agreement with OIG. The settlement agreement resolves allegations that Cleveland Manor employed an individual who was excluded from participating in any Federal healthcare program. OIG's investigation revealed that the excluded individual, an office manager, provided items or services to Cleveland Manor's patients that were billed to Federal healthcare programs. SETTLEMENT: $171,047 #3. Work with a screening and monitoring vendor partner experienced in healthcare. The stakes are too high to pick your background screening provider by price alone. Healthcare organizations must protect themselves from the threat of fines and litigation by choosing the vendor that can get them the most in-depth, up-to-date, complete information possible. HR should speak with several vendors and ask them to explain each of the products they offer that can help create a completely compliant, risk-fighting employee monitoring solution. Request references from other healthcare clients and make certain there is proper customer training and support available to you. A reputable background screening provider will be instrumental in the success of the long-range plan. HR working in the healthcare industry can’t be too careful with monitoring the qualifications and work eligibility of their employees. With the risks of lawsuits and fines, it should be a top priority to keep your finger on the pulse of what is going on in your workplace. Create a complete plan of screening and monitoring existing employees, and step-by-step plans of how to address issues quickly. By proactively resolving issues, you protect the reputation of your company and create a workforce that’s in compliance with industry regulations.
Jared Alexander
Background Screening Thought Leader jalexander@datafacts.com www.datafacts.com
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The Money Tree:
Understanding & Implementing Compensation Analysis By AUSTIN BAKER
As HR embraces the promise of data-driven decision-making, compensation and benefits functions are becoming more strategic, complianceoriented, and data-centric. With low unemployment, acute talent shortages across industries, and an increasingly complex economic environment, the stakes have never been higher for compensation management programs. From attracting great talent to improving engagement and retention, compensation plays a central role in business success.
There are several factors that the compensation analyst will consider when deciding a salary benchmark:
Compensation analytics have emerged as a new discipline built on the foundations of HR analytics, that focuses on optimizing the cost of a workforce to drive bottom line growth. This branch of analytics helps organizations craft an employer brand that effectively communicates a winning employee value proposition. A value proposition that includes both financial and non-financial rewards. In effect, compensation analytics enables HR leaders to reward high-performers adequately, to boost workplace morale, engagement, and retention.
2. Geographic location: The location of the job is also important to consider. In some states, employers pay more than in other parts of the country. Sometimes the difference is based on the area’s cost of living. In other cases, local demand for a particular type of work changes the market value for the job. For instance, a public relations manager in Maine, where the cost of living is around the national average, can expect to earn about $88,380 per year. But in Washington, DC–where the cost of living is very high and thousands of lobbyists are in the market for good PR–this same job earns $170,750.
Perhaps you are starting a new business or organization, and you’re hiring your first employees. Maybe you are expanding operations and adding on new positions. Or you might have noticed that you’ve lost a few good employees to other companies that pay more than you do. In any case if you manage people, you want to pay them fairly, and that means that you need to employ good compensation management practices. One of the best places to start is with compensation benchmarking.
Understanding Compensation Management and Benchmarking: Compensation management is a critical part of talent management and employee retention. It uses financial and total rewards to attract recruits, reduce turnover, spur performance, and boost employee engagement. It is responsible for ensuring that salary and bonuses remain competitive and benefit programs change with the needs of the workforce. The people in this role not only work with data, but are also keen to understanding the complexity of total rewards administration. Compensation benchmarking is the process employers use to determine the market rate for each position within their organization. Someone–usually an HR manager charged with compensation management–looks at all of the organization’s job descriptions, then finds jobs in other companies with similar responsibilities to compare and contrast wage rates. That data along with a multitude of compensation resources are used to deliver a market rate for certain positions. 24
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1. The job responsibilities for each position: This is one of the most important pieces of data to factor into a compensation management report. Employees should expect equal pay for equal work. If you work for Company A and you employ people who are responsible for making 100 widgets per day, you should be paying them around the same as people making the same number of widgets in Companies B and C.
3. Education level: In general, jobs that require higher levels of education pay more than jobs that don’t. But there is also a difference in salary between people with similar job responsibilities at different levels of education. 4. Years of experience: Employees with more seniority at an organization often earn a higher salary than new employees. This is because it’s typical for them to receive a pay raise every year. But even if a person has spent years working at another similar company, having that experience can boost that person’s salary as they’ve had more time to practice and hone their skills or expertise. 5. Determine the job’s internal value to your organization: A job’s internal value is typically based on skills or competencies, and the overall perceived value of contribution the job provides to an organization. Jobs with greater or direct internal impact and contribution to your organization’s strategy and business objectives are more valuable and generally paid more than jobs without the same business impact and contribution to organizational goals and objectives. Several methods can be used to slot jobs into career levels or bands that represent internal value. Positions with similar internal value are generally, but not always, aligned from a competitive external pay standpoint. It’s important to analyze the relationships and make certain that where alignment does not exist it is explainable, legal, and defensible. 6. Consider organizational factors, including budget: Evaluate your budget considerations or constraints and what you paid the last incumbent. Determine the pay mix (proportion of compen-
sation delivered in base salary versus bonus versus other forms of pay) and adjust the base salary as required to reflect a pay mix that differs from the market or that is reflective of your compensation strategy. Be certain to consider individual job experience or any other unique factors when finalizing the compensation package. Recognize that pay is only part of the total reward package. Don’t forget to factor into your pay decision other attractive benefits you provide such as flexible work schedules, engaging career opportunities, fulfilling work, recognition programs, generous time off or health insurance, and retirement benefits. A good compensation analyst will look at all these data and analyze them to come up with an accurate portrayal of the market rate for a particular job, both in salary and non-monetary benefits. Many organizations struggle to set salaries in the ‘sweet spot' of being neither too low to attract top talent, nor too high to attract unwanted attention from the IRS, or worse, the media. Professional compensation consulting can result in significant benefits for the organization, such as: • Increases employee job performance • Enhances team and individual focus • Provides clearer metrics and compensation data • Creates a constant sales process refinement • Optimizes sales weakness management • Clears communications and understanding for any compensation changes • Amplifies recruiting efforts • Engages workers through pay incentives • Increases sales revenue • Creates an efficient compensation distribution
Austin Baker, President HRO-Partners
Austin Baker is the President of HRO Partners, a human resources consulting and benefit administration and enrollment firm as well as a National Enrollment Partner Member representing the largest boutique, full service insurance and enrollment firms in the country. A veteran of more than 16 years in the human resources and insurance & benefits industry, Baker is responsible for managing a multifaceted human resources consulting company with public workforce programs and services focused on companies in the southeastern United States. Austin is a frequent speaker on a variety of leadership and benefit topics representing thought leadership and innovative practices in the HR industry. For more information, call Baker at 1-866-822-0123, visit www.hro-partners.com or connect with the company at www.facebook.com/ hropartners, www.linkedin.com/in/jaustinbaker or twitter.com/jaustinbaker. hro-partners.com company/hro-partners
hropartners @hropartners
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Retiring an Aging Workforce By JIM TRUJILLO
It’s no new news that America has an aging workforce. The U.S. Census Bureau estimates there are roughly 72 million baby boomers today, many of which are in or are coming up on retirement age. Improvements in health care and a decrease in smoking has led to longer, healthier lives, thus many U.S. employees are working longer. This places the burden on the employer to carry rising healthcare costs for senior employees. Many companies are trying to divert this silver tsunami by offering Early Retirement or Voluntary separation packages to keep the ship righted, while others are forced to make reductions involuntarily. Meanwhile, studies show that nearly half of the boomer population may never be able to afford to retire on their own.
The U.S. Census Bureau estimates there are roughly 72 million baby boomers today, many of which are in or are coming up on retirement age.
One of the most prevalent concerns boomers have around retirement is money. Many struggle with questions like, “Will I have enough saved in retirement?”, ”Can I maintain my current lifestyle without my current income?”, or “How am I going to afford everything I want to do in retirement?” The recent PwC survey on Employee Financial Wellness found that financial matters was the number one stressor employees face. More employees cited this stressor more than any other category combined - beating out their job, their relationships and their health concerns. In addition to this, 46% of workers reported spending at least 3 hours per work week thinking about and/or dealing with financial related matters. That’s almost 10% of their work week focused on their personal finances instead of on their job – so it’s not just stressful, it’s time consuming! To add to this stress, many employees are now responsible for funding their own retirement. Over the past two decades, many employers have made the shift from providing employees with Defined Benefit Plans (pension) to Defined Contribution Plans (401(k)). Before this shift, pensions were the primary source of retirement funds for past generations. Now, many employees face the challenge of accumulating and growing their savings to support their individual retirement goals all while supporting their current lifestyles.
But how does a company that wants to protect their employees and maintain a generous brand and culture do this? Financial wellness is a hot topic in the employee benefits space. If utilized correctly, it can be a key component in helping your employees feel more prepared for their non-working years. However, many companies are jumping in on the “financial wellness” bandwagon just so they can check off a box, and unfortunately, it’s at the detriment of their employees. Traditional financial
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wellness programs have focused solely on the basics like saving, budgeting, or debt management. But many employees have found that these broad overviews on a wide range of financial subjects doesn’t necessarily help their personal financial situation. One major indicator that your employees may not be benefitting from your financial wellness program is your employee participation rate. A common theme we come across is employers provide the software, tools, and materials that explain their robust benefits to their employees, but still their employee participation is low. They assume that providing employees with these resources is more than enough for them to fully understand the benefits offered to them, but that may not be the case. Nearly half of all employees do not understand their company’s employee benefits. Did you read that right? Yes, approximately 40% of all employees do not fully understand the benefits offered to them by their employer.* If they don’t understand their benefits, how can they take advantage of them? The reality is, they don’t. Employees who don’t understand their benefits, disengage and potentially leave something on the table. So here we have a recipe for personal financial disaster: a massive aging workforce, nearing retirement, who’s tasked with funding their own future livelihood, all while not fully understanding the current benefits offered to them.
What’s an employer to do? HR teams are now integrating their company’s benefits packages by partnering with financial advisors to provide individualized financial consultations for their employees. Education is a crucial factor in helping your employees fully understand and participate in your company’s benefits. In fact, according to a recent AARP survey, over 60% of companies are now offering one-on-one financial counseling for their employees. This is up from just 22% in 2001. Providing employees with an objective, third-party resource can allow them to ask the personal and sensitive questions that are most important to them. Because the reality is, employees don’t want their employer directly involved with their personal finances. It’s engrained in our culture to not talk about money. Employees can feel uncomfortable at work knowing their employer is privy to their personal financial situation, but it doesn’t have to be an invasion of privacy. Providing employees with an unbiased third-party advisor can take the intimate financial burden off HR’s shoulders, while still supporting your workforce with a critical retirement planning resource. As HR professionals, it’s imperative that you protect your employees and provide them with the tools they need to help them succeed, and one of those tools may be a financial advisor. *Source: https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/dontunderstand.aspx
Jim Trujillo, CFP® CCFS® PPC® Financial Advisor JimTrujillo@argi.net www.ARGI.net
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Cut Through the Benefits Communication Clutter By DAVID MECKLE
Does explaining benefits have you feeling like you’re talking over your employees’ heads? Use these practical tips to help make your benefits communication more engaging and effective.
Know Your Audience Pretty basic, right? It’s a no brainer that tends to get overlooked when it comes to communicating with employees about their benefits. Effective communication requires a clear understanding of the audience and having a clear understanding of what’s important to them. Are your employees younger or older, male or female, single or married with a family, executive or entry level, in an office or in the field? Remember, it’s not unusual to have multiple generations represented in a workforce, and age has a direct impact on how people prefer to receive communications. Think about how Millennials communicate versus Baby Boomers. There’s a big difference. Beyond basic demographic information, do you know what motivates your employees, what their concerns are and what they want from their benefits? Knowing your audience is key to developing messaging that’s relevant, impactful and that drives employees to take action.
Less is More As the saying goes, “Brevity is the soul of wit.” And as we all know, there’s not much brevity when it comes to explaining things like high deductible health plans, coinsurance and out-of-pocket maximums. Complex, wordy benefit guides and hard-to-read medical plan summary charts are common. In today’s world, attention spans are short. Social media has taught us how to communicate in 140 characters or less and we’re still doing 48-page benefit guides wondering why employees don’t understand their benefits. Focus on the key points and make sure you messaging always answers the question, “What’s in it for me?” Try and keep sentences concise, impactful and direct. A good rule of thumb for a concise sentence is 16 words or less. Want to know what your employees do and don’t understand? Conduct a series of informal focus groups or surveys and ask employees what terms, concepts, and acronyms in your current materials they find confusing. Then develop common, easy-to-understand language to explain these complex topics.
Be Conversational A common communication mistake is writing as though you’re addressing a room full of people, or writing for the masses. Keep in mind that people read as individuals, not as a group. Instead, try writing as if you’re having a one-on-one conversation with the reader. Another way of saying it is to write like you speak. It’s a more welcoming, relaxed and engaging style of writing. Set aside the formal writing guidelines and use common, less technical language. Save the legalese from the compliance department for your SPDs. Use positive and strong words like “do, be, new, can” not passive words like “maybe, perhaps, could 28
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and might.” It can be challenging, but whenever possible stay away from the “benefits-speak”, industry jargon and acronyms. When you’re finished, read the message out loud so you can hear how it sounds. If it doesn’t sound quite right, make changes until it flows.
Tell A Story Everyone likes a great story. There’s an aspect to storytelling that appeals to people’s emotions and we have a tendency to respond positively to a story. It also makes your benefits real and personal. Try this technique for this year’s open enrollment. Invite employees to participate in your open enrollment communication campaign and have them tell a story about how their benefits have had a positive impact in their everyday lives. It could be about how your wellness program helped someone quit smoking, or how a flexible spending account helped a single parent save money on childcare, or how supplemental insurance helped pay for an out-of-pocket expense that was not covered by traditional medical insurance. Incorporate these stories into your communications and your employees will become more engaged and better informed. You’ll also find that employees are much more receptive to a message that comes from a colleague than from HR.
Need Help Getting Started? Find yourself with writer’s block every time you start planning communications for open enrollment? Answer these key questions and you’ll be well on your way to developing messaging that gets results. Who am I trying to reach? What do they need to know? What’s in it for them? When do they need to know it? What’s the best way to deliver the message? What do I want to happen as a result of the communication or what action do they need to take? How do they take that action? Where do they go for help?
The Final Word Communications should be attention-getting, thought-provoking, empathy-building, action-inducing and appropriate. And if you’re not achieving at least three of these objectives, odds are the communication will fail. Providing quality benefits is a substantial investment for your company. Improve your communications to get the most out of your investment.
David Meckle, Vice President Employee Benefits Communications Practice Leader McGriff Insurance Services david.meckle@mcgriffinsurance.com www.mcgriffinsurance.com
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Getting Ready For The New Federal Overtime Rules (Again) By JANE KIM
Earlier this year, the U.S. Department of Labor (the DOL) proposed new federal overtime rules related to certain exempt employees under the Fair Labor Standards Act (FLSA). The DOL estimates that the changes will impact approximately one million currently exempt employees (those employees who are presently salaried and not eligible for overtime) nationwide. Here is our take on how we got to the new rules, the changes made, what traps to avoid and how to prepare.
How Did We Get Here? Some History Under current law, which took effect in 2004, employers must pay overtime to employees who both work more than 40 hours per week and earn a salary below $455 per week ($23,660 annually). In 2016, the DOL issued new overtime rules that, among other things, raised the salary threshold for the administrative, professional, executive and computer exemptions, often called “whitecollar” exemptions. Significant changes in the 2016 overtime rules included: an increased minimum salary level for the white-collar exemptions (from $23,660 annually to $47,476 annually, or from $455 per week to $913 per week); an increased total annual compensation requirement for the highly compensated employee exemption (from $100,000 to $134,004); and an automatic adjustment to these salary levels every three years to account for inflation. As the result of numerous legal challenges, the 2016 overtime rules did not go into effect as scheduled in December 2016 and were ultimately invalidated by a Texas federal district court in August 2017. On March 7, 2019, the DOL issued a new rule proposal to change the minimum salary threshold for overtime eligibility.
The Newly Proposed 2019 Overtime Rules The DOL’s newly proposed overtime rules set the salary level for the whitecollar exemptions at $679 per week, which equates to $35,308 per year. Therefore, subject to limited exceptions, employees with a white-collar exemption status must receive at least the minimum salary threshold ($679/ week) in each pay period. In addition, the 2019 proposed rules include:
Preparing for the Transition According to the U.S. Bureau of Labor Statistics, the 2019 overtime rules will impact a markedly fewer number of employees than the 2016 overtime rules (about one million workers as opposed to over four million workers). While many employers may still face bumps in the road while making the transition, at least there is time to prepare by doing the following: 1. Take the time now to review all of your exempt positions. For those employees with lower salaries who typically work less than 40 hours per week, converting them to non-exempt and paying overtime for the occasional overtime hours they might work is the logical option. If you identify the employees with higher salaries who work long hours, you may decide that it makes the most sense to increase their salaries to the new standard because this salary increase likely will be less than what you would end up paying in overtime hours. You may also decide that some currently exempt positions should be non-exempt regardless of whether the positions make $679 a week or more. Because managerial duties are an essential factor in classifying employees as exempt or non-exempt, it would be difficult for a restaurant to claim as exempt a chef whose primary duties include routine food preparation and cooking, and who only occasionally directs line cooks, monitors job assignments and procedures, manages kitchen workers, etc. 2. Start having your soon-to-be non-exempt employees record their time. This will help give you an idea of just how many hours a week they work (which may help you decide what hourly rate to pay them) and will provide the employees an opportunity to get in the habit of accurately recording their time.
1. A total annual compensation requirement of $147,414 (up from $100,000) for the highly compensated employee exemption.
3. Start talking to your employees about the transition and why it’s happening.
2. A commitment to periodic reviews of the minimum salary threshold to maintain salaries in line with future wage rates and inflation. Future updates to the rule would be subject to the public notice-and-comment rulemaking requirements.
Even in the absence of demotions and job duty changes, some of your previously exempt employees may feel as if they have taken a step backward. Help them understand that the transition is not a reflection of their performance and that millions of employees nationwide are facing the same reality.
3. A bonus provision that allows for the inclusion of specific bonuses when determining an employee’s total pay for purposes of the exemptions. Non-discretionary bonuses, incentive payments and commissions that are paid annually or on a more frequent basis can account for up to 10% of the required weekly salary level. Also, employers are allowed to make a final “catch-up” payment (up to 10% of the standard salary level, or $3,530.80) within one pay period after the end of each 52-week period to ensure an employee’s salary level reaches the new minimum level of $35,308. 30
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4. Make sure you have a written policy that warns your employees about working off-the-clock and mandates that they accurately record their time. Also, decide how you are going to handle after-hours work/ communications and implement a written policy. Are you going to take away 24/7 access through computers and smartphones, or are you going to ensure that any after-hours work time is recorded and compensated?
5. Consider the “fluctuating workweek” method of calculating overtime. Using this method results in half-time overtime instead of time-and-ahalf overtime. Keep in mind, though, that it is an extremely complicated method to administer.
Traps to Avoid When Making the Transition Some employers may be thinking, “Can an employer get around the new overtime rules by treating employees as independent contractors?” The answer is an emphatic “no,” unless you want to get in trouble with various government agencies, including the DOL and the Internal Revenue Service. Be careful when trying to limit your newly non-exempt employees to just 40 hours of work per week. Chances are these employees were working more than 40 hours/week before you reclassified them. Following the status change, your newly non-exempt employees may be tempted to work “off-the-clock” for a variety of reasons, so monitor their time carefully and pay them for any time exceeding 40 hours in a week. Also, if you try to limit employees to just 40 hours per week, do not penalize them for working “unauthorized” overtime by withholding payment for their overtime work. The unauthorized work more than likely added value to your business and, more importantly, refusing to pay for overtime work is a violation of federal and state wage and hour laws. Therefore, you should discipline employees for any unauthorized work time (e.g., verbal or written counseling) and always pay them for the time worked. Be aware of how your employees use home computers and smartphones. As soon as you reclassify them as non-exempt, your previously exempt employees will no longer be able to work and communicate with you 24/7 without being paid. They now will be on-the-clock, and you should compensate them for anything other than a de minimis amount of time spent on work-related matters, including
electronic communications. These previously exempt employees may have the hardest time making the transition to recording their time and will need your help in making that transition, as well as your oversight to ensure that they are accurately recording their time. Finally, it is essential to note that placing an employee on salary (or assigning a particular job title to an employee) does not automatically exempt the employee from overtime. Under the FLSA, both an employee’s salary and an employee’s duties determine eligibility for one of the white-collar exemptions. Although the new 2019 proposed rules raise the threshold for the “salary test” for exempt status, the “duties test” remains intact under the new rules. This means that if your employee meets the “salary test” but not the “duties test” for a particular exemption status, then that employee is still eligible for overtime. To meet the “duties test,” the employee’s job duties must primarily involve executive, administrative or professional duties as defined in the FLSA. Employers who choose to pay non-exempt employees on a salary basis must still track all of the non-exempt employee’s time and then calculate and pay overtime for hours that exceed 40 in a workweek. This transition may not be easy—and waiting until the last moment will only make it harder. The comment period for the newly proposed rules just ended, and President Trump is expected to approve and sign the proposed rules soon. It is crucial to take advantage of this available time and to start planning now.
Jane Kim, Partner
Wright Lindsey Jennings jkim@wlj.com www.wlj.com Editorial assistance provided by summer associate Gray Norton.
We use our best tools to make your job run smoothly and efficiently. FordHarrison is a labor & employment defense law firm with 28 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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SUPREME COURT KEEPS AUER, BUT DILUTES ITS POWER By JOHN F. MARTIN AND GWENDOLYN K. NIGHTENGALE
In June 26, 2019, in Kisor v. Wilkie, the Supreme Court of the United States declined to overrule its prior decisions in Auer v. Robbins, 519 U.S. 452 (1997) and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). These cases introduced the practice of judicial deference to a federal agency’s interpretation of an ambiguous regulation. Many courts and scholars criticize Auer deference for various reasons and believed that the Supreme Court’s decision in Kisor would overrule Auer. Instead, the Court upheld the longstanding precedent, but imposed new “guidance” on when to apply Auer deference.
BACKGROUND The litigation stemmed from a disability benefits case in which a Vietnam War veteran and the Department of Veterans Affairs (VA) fought over the meaning of the word “relevant” in a regulation that allowed the agency to grant retroactive benefits based on “relevant official service department records” not considered in an earlier denial of benefits. The veteran claimed new psychiatric reports were such “relevant” records, whereas the VA asserted they were not, arguing they were unrelated to the original denial of his claim in 1982. The administrative law judge (ALJ) presiding over the matter ruled in the VA’s favor, and the Court of Appeals for Veterans Claims affirmed the ALJ’s decision. On appeal, the U.S. Court of Appeals for the Federal Circuit found the term “relevant” to be ambiguous, and invoking Auer deference, affirmed the decision to deny the veteran retroactive benefits. The Supreme Court agreed to hear the case on one issue: “Whether the Court should overrule Auer and Seminole Rock.”
OPINION OF THE SUPREME COURT Although the Supreme Court allowed Auer to live another day, the justices could not agree on its future. All nine members of the Court agreed that the Federal Circuit misapplied Auer and remanded the case for further proceedings. Five justices, in a majority opinion written by Justice Kagan, declined to overrule Auer on the grounds of stare decisis. Justices Ginsburg, Breyer, and Sotomayor joining her opinion in its entirety. Chief Justice Roberts joined most of Justice Kagan’s opinion, but declined to join in her history section (which frankly reads like an ode to judicial deference) and the section specifically rejecting the veteran’s arguments to overturn Auer. Justices Roberts, Gorsuch, and Kavanaugh each wrote separate concurring opinions, agreeing with the decision to remand, but criticizing the majority’s decision to keep Auer on “life support.” Acknowledging that the Supreme Court has sent “mixed messages” in applying Auer without significant analysis of the underlying regulation, Justice Kagan’s opinion expends a great deal of energy telling us when Auer deference does not apply explaining that “it often doesn’t.” 34
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Justice Kagan’s opinion then sets forth a clarification of the rare circumstances when Auer would apply:
First, the regulation must be “genuinely ambiguous.” (Emphasis added.) • “ [I]f there is only one reasonable construction of a regulation—then a court has no business deferring to any other reading, no matter how much the agency insists it would make more sense.” • “ And before concluding that a rule is genuinely ambiguous, a court must exhaust all the ‘traditional tools’ of construction. . . . That means a court cannot wave the ambiguity flag just because it found the regulation impenetrable on first read.” • “ [A] court must ‘carefully consider[]’ the text, structure, history, and purpose of a regulation, in all the ways it would if it had no agency to fall back on.”
If genuine ambiguity remains, the agency’s interpretation must be reasonable. • “[I]t must come within the zone of ambiguity the court has identified after employing all its interpretive tools. (Note that serious application of those tools therefore has use even when a regulation turns out to be truly ambiguous. The text, structure, history, and so forth at least establish the outer bounds of permissible interpretation.)” • “Some courts have thought (perhaps because of Seminole Rock’s‘plainly erroneous’ formulation) that at this stage of the analysis, agency constructions of rules receive greater deference than agency constructions of statutes. . . . But that is not so.”
Even if the agency’s interpretation is reasonable, it still may not receive Auer • “[T]he regulatory interpretation must be one actually made by the agency. In other words, it must be the agency’s ‘authoritative’ or ‘official position,’ rather than any more ad hoc statement not reflecting the agency’s views.” • “[T]he agency’s interpretation must in some way implicate its substantive expertise. . . . So the basis for deference ebbs when ‘[t]he subject matter of the [dispute is] distan[t] from the agency’s ordinary’ duties or ‘fall[s] within the scope of another agency’s authority.’”
The agency’s interpretation must reflect “fair and considered judgment.” • “That means. . . . that a court should decline to defer to a merely ‘convenient litigating position’ or ‘post hoc rationalizatio[n] advanced’ to ‘defend past agency action against attack.’” While spending a majority of the decision explaining what Auer is not, ultimately the majority held that stare decisis cuts strongly against overruling Auer. Even assuming Seminole Rock and Auer were “badly reasoned,” as the petitioner argued, “that is not the test for overturning precedent.” Applying these principles to the Federal Circuit’s decision, the Supreme Court held that Auer deference was inapplicable and found two errors in the Federal Circuit’s analysis. First, it “jumped the gun in declaring the regulation ambiguous.” Instead, courts “must make a conscientious effort to determine, based on indicia like text, structure, history, and purpose, whether the regulation really has more than one reasonable meaning.” Second, it “assumed too fast that Auer deference should apply in the event of genuine ambiguity.” The correct analysis requires courts to “assess whether the interpretation is of the sort that Congress would want to receive deference.” That was not the case here. Since the Board’s decisions have “no ‘precedential value,’” its ruling did not “reflect[] ‘the considered judgement of the agency as a whole.’”
THE DISSENTING “CONCURRENCES” While Justice Gorsuch technically concurred in the outcome—namely, that the Federal Circuit misapplied Auer and that the Court remand the case, he and Justice Thomas, Justice Kavanaugh, and Justice Alito all stated that they believe Auer should have been overruled. Their “concurring” opinions read like dissents.
Calling it a “stay of execution,” Justice Gorsuch wrote: It should have been easy for the Court to say goodbye to Auer v. Robbins.[] . . . This rule creates a ‘systematic judicial bias in favor of the federal government, the most powerful of parties, and against everyone else.’[] Nor is Auer’s biased rule the product of some congressional mandate we are powerless to correct: This Court invented it, almost by accident and without any meaningful effort to reconcile it with the Administrative Procedure Act or the Constitution. A legion of academics, lower court judges, and Members of this Court— even Auer’s author—has called on us to abandon Auer. . . . Instead, a majority retains Auer only because of stare decisis. And yet, far from standing by that precedent, the majority proceeds to impose so many new and nebulous qualifications and limitations on Auer that THE CHIEF JUSTICE claims to see little practical difference between keeping it on life support in this way and overruling it entirely. So the doctrine emerges maimed and enfeebled—in truth, zombified. Chief Justice Roberts and Justice Kavanaugh, joined by Justice Alito, both wrote separate concurring opinions to suggest that “the distance between the majority and JUSTICE GORSUCH is not as great as it may initially appear.” If a reviewing court were to employ the traditional tools of construction that were outlined in the majority’s opinion, the court would almost always reach a conclusion about the best interpretation of the statute without having to adopt or defer to an agency’s contrary interpretation.
KEY TAKEAWAYS Although Justice Kagan and the majority caution that the Supreme Court may need a “special justification” to reverse Auer, the new limitations are ambiguous. The Kisor decision gives federal judges many justifications to decline to extend Auer deference to an agency interpretation of a regulation. But what’s the difference between ambiguous and genuinely ambiguous? What are the benchmarks for an “authoritative” or “official position?” Does
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an agency letter of interpretation count? Must such “positions” appear in the Federal Register? (Our take: not necessarily, but it helps.) Four justices are ready to kill Auer deference, and four wish to save it. Chief Justice Roberts stepped in the middle to save the doctrine, and attempted to limit its application to rare circumstances. With fuzzy guidance, however, many courts are likely to apply Auer in either an inconsistent manner, or worse, a manner contrary to Kisor. Justice Gorsuch’s prediction will likely come true; we will see Auer deference pay another visit to the Supreme Court sometime in the future. Chief Justice Roberts also strongly signaled that while he voted to save Auer for now, he holds no such sentiment for Chevron deference, Auer’s betterknown cousin. “Issues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress,” he wrote. “I do not regard the Court’s decision today to touch upon the latter question.” This article was drafted by an attorney at Ogletree Deakins and is reprinted with permission. This information should not be relied upon as legal advice.
John F. Martin, Shareholder Ogletree Deakins Washington, D.C. john.martin@ogletree.com www.ogletreedeakins.com
Gwendolyn K. Nightengale, Of Counsel Ogletree Deakins Washington, D.C. gwendolyn.nightengale@ogletree.com www.ogletreedeakins.com
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BPJ Member Jennifer Shorb Hagerman Achieves Prestigious Fellowship After an extensive nomination process and 20 years of legal practice, BPJ Member Jennifer Shorb Hagerman has been elected a Fellow of the College of Labor and Employment Lawyers. The College promotes advancement and education in the practice of labor and employment law, and values civility and professionalism as well as legal achievement.
Julia Gibbons of the Sixth Circuit U.S. Court of
Hagerman was nominated by Maurice Wexler, recently retired from Baker Donelson, and supported by recommendations from across the Memphis legal community; nominations for this honor must come from outside a nominee’s own firm.
Hagerman sees labor and employment law a
Hagerman said she was drawn to the practice of labor and employment law through a clerkship with the Hon. Judge
the College in the first year she was eligible,”
Appeals, since many labor and employment cases come through Federal Court. “(BPJ Member) Lisa Krupicka has also been a wonderful mentor, so encouraging and supportive,” said Hagerman. Krupicka is also a Fellow of the College of Labor and Employment Lawyers.
great hybrid practice area, since L&E attorneys do both litigation and non-litigation work for clients, as well as transaction work and contract work. “We are thrilled that Jennifer was elected to said BPJ Managing Partner Nathan A. Bicks. “We are very proud of her accomplishment.”
A TRADITION OF
Attorneys left to right: Lisa Krupicka, Tannera Gibson, Gary Peeples and Jennifer Hagerman
THINKING FORWARD
Being prepared for whatever comes next takes experience and vision. Our practical approach can help you stay one step ahead. Let the attorneys of Burch Porter & Johnson put our history of thinking forward to work for you. B U R C H , P O RT E R & J O H N S O N , P L L C | 1 3 0 N O RT H C O U RT AV E N U E | M E M P H I S , T N 3 8 1 0 3 9 0 1 - 5 2 4 - 5 0 0 0 | B P J L AW. C O M
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3
REASONS
Your Company Needs Career Pathing
BY CHRISTIAN VALIULIS
Have you finally hired that dream candidate? If so, how does your organization plan on retaining these high-performing employees along with the rest of your workforce? Once you’ve filled those open positions, there’s still work to be done to keep your employees from leaving your organization for greener pastures. What if there was a way to decrease your company’s employee turnover rate while increasing employee productivity and engagement? In this article, we’ll discuss the up-and-coming trend of career pathing and the three main reasons why your company needs this tactic in your HR arsenal. We’ll also cover how you can implement this career development tool with the resources you’re already utilizing.
What is Career Pathing? Career pathing is an employee development tool used to help individuals chart out their professional journey in an organization. Not to be confused with a succession plan, a career path is a personalized plan, rather than a standardized process for all employees. Employers can offer this tool to help current and new hires develop a career plan that breaks down the steps needed to reach their goals. These career steps can include specialized skills, positions, training, required revenue goals or quotas, additional education, and required experience. Below is an example of a basic career path for an individual starting their career as an entry-level salesperson and working their way to a senior sales position:
The Current Climate of HR Employee retention must be a top priority for employers or there’s a risk of losing valuable, high-performing workers. Now that the millennial workforce has gained experience, they are no longer working entrylevel positions and are searching for advancements. While older generations have a tendency to stay at the same company, earn promotions, and then retire, today’s trend is focused on open conversations about career objectives. Sixty percent of HR professionals think they’re giving their staff a clear career path, but only 36 percent of employees agree with that statement. The gap in agreeance shows a disconnect between what HR leaders believe employees are looking for in a company career and what is actually being offered. 38
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Why Now is the Time to Implement Career Pathing It’s no longer in the best interest of employers to operate with a “what can this employee do for my company” mindset. Instead, they must start thinking about what the company can do for the individual, especially for employees under 30 in the workforce. Managers need to have open conversations with candidates and staff about what they want to accomplish, as well as how they are going to achieve those goals during their employment. Through these conversations, career development and performance expectations can be set with the best interests of both parties in mind. These types of transparent discussions will also help boost employee morale, decrease turnover, and help create a healthier bottom line. Implementing career pathing is crucial if you want to keep your most valuable workforce employed for more than just a few years. With this proactive approach, you’ll increase employee retention, productivity, and engagement. 1. EMPLOYEE RETENTION In the days of low unemployment rates and the rise of new workforce generations, employers are not only having trouble recruiting talent but keeping those employees long-term. In 2016, millennials became the largest generation in the workforce and businesses are seeing the effects of their presence with a huge emphasis on the employee experience. So it comes as no surprise that one of the common reasons employees leave their current role is due to lacking career training and career growth opportunities. Only 7 percent of employees take positions within their current organizations to advance their careers, which speaks to a majority of companies’ employee experiences. If your employees don’t see the potential for professional growth in your organization, they’ll look for a new opportunity in the gig economy, another company, or with a competitor that offers an exceptional employee experience including career development, mentorship programs, and training tools. By providing these aspects of the employee journey, your workforce has an opportunity to thrive and learn. This benefits the individual employee and your organization. Employees are much more likely to be loyal to their employer if they know career development tools and opportunities are available. Offering training and progression tools like career pathing can deter 86 percent of millennials from leaving their current position. It’s a no-brainer for developing your retention strategy to keep your largest workforce generation as well as top talent in your company. 2. EMPLOYEE PRODUCTIVITY If you could only work in your current role for the rest of your career with no advancement, would your productivity decrease or increase? It's the question companies must ask themselves as many of their employees ponder this thought while completing the same work day in and day out. Employees are more likely to come to work excited about honing their current skills and learning new ones to help them
reach their professional goals. When there are no growth opportunities available, employees become stagnant, diminishing productivity and quality of work. Having a career plan for individuals gives them the motivation to work hard and reach each step in their ultimate career goal. The different career steps ensure the individual is learning new skills, completing various projects, and acquiring valuable experience. Not all employees who start out in the same role or department want the same promotions or have the same ambitions, so it's crucial to personalize career maps for individuals and work towards a goal important to them. 3. EMPLOYEE ENGAGEMENT Employee engagement. A popular buzzword among those in the HR community, and an important one at that. Companies with poor employee engagement often see unsatisfied workers who don’t see their future with the organization or feel their company isn’t investing in them. They quickly become disengaged in their work, disconnect from other team members, and then eventually move on to their next job. By providing career advancement tools to help achieve their career objectives, employees are more willing to stay loyal to a company that invests in their growth. Almost ninety percent of employees who are engaged are less likely to leave their jobs, so it’s imperative to implement career pathing into the employee experience. Professional development is an inexpensive opportunity to boost employee engagement by showing employees your commitment to their growth and success with the company. Individuals can work one-on-one with their manager to develop their
career map in the organization. As a manager, you’ll have the ability to provide transparent, supportive coaching for individuals as they work toward their career aspirations. An engaging employee experience is one that includes a variety of opportunities along with the managerial guidance to choose the right path.
Start Retaining Loyal, High-Performing Employees It’s time to get serious about employee retention, productivity, and engagement at your company. You can’t afford to lose quality employees, and if they’re unsatisfied in their current position they may already be looking for greener pastures. Not sure where to start? Begin by developing career paths with a select group of employees and see what results come from those working toward their ultimate goal. After a few test runs, you can mold the career pathing experience to best meet the needs of your employees and organization. Whether you offer professional advancement to boost retention rates, productivity, engagement, or all of the above, you’re giving your employees the opportunity to take ownership of their career with organizational support.
Christian Valiulis, Chief Revenue Officer APS Payroll cvaliulis@apspayroll.com www.apspayroll.com
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ERISA
Profiles of and Employee
Benefits Attorneys
The focus of our August issue is retirement planning and compliance. This is a very complex function of the HR profession that requires expert legal advice. We are excited to bring you some profiles of highly successful ERISA and employee benefits attorneys in your areas that are available to assist you. We hope that you find this guide helpful as you work through the ever-changing regulations and requirements necessary to assist your employees with their retirement planning.
Ogletree Deakins has one of the largest teams of employee benefits, executive compensation, and Employment Retirement Income Security Act (ERISA) litigation practitioners in the United States. As part of a firm that focuses on labor and employment law, Ogletree Deakins’ ERISA Litigation Practice Group applies technical litigation experience and employee benefits knowledge to clients’ needs. For over 25 years, Ogletree Deakins attorneys have been representing employers, insurers, and employee benefits plans in litigation involving the denial of life, health, disability, and retirement benefits; breaches of fiduciary duty; bad faith; claims of misrepresentation; and subrogation and reimbursement.
Tom Henderson
Bill Gray
SHAREHO L D E R | M E M P HIS
SH AR E H O L DER | AT L AN TA
Mr. Henderson is the Managing Shareholder of the Memphis office. He has represented management in employment and labor relations matters for over 30 years. He has served as lead counsel in numerous jury trials in state and federal courts across the nation. His trial experience includes defending state and federal discrimination and harassment lawsuits, class actions, FMLA claims, ERISA and benefit claims, trade secret and unfair competition matters, and related state law claims. He also handles NLRB elections and unfair labor practice proceedings. Mr. Henderson is listed in “The Best Lawyers in America” in three areas and “Mid-South Super Lawyers.”
In recent years Bill has assisted employers who have received, or are potentially liable for, large claims from multiemployer pension plans.
Christina Broxterman
Ruth Anne Collins Michels
SHAREHO L D E R | ATL A NTA
SH AR E H O L DER | AT L AN TA
Christina represents clients in the areas of qualified and non-qualified retirement plans, health and welfare plans, ERISA compliance, COBRA administration, compliance with the privacy rule under HIPAA, and other federal laws relating to employee benefits matters. Christina assists clients in designing and drafting plans, advises clients with regard to the legal requirements for operating and administering plans, and prepares and submits filings to the Internal Revenue Service, Department of Labor, and the Pension Benefit Guaranty Corporation. She also negotiates and drafts employee benefit provisions in various types of mergers and acquisitions, and performs related due diligence. 40
Bill focuses his practice on the design, establishment, and maintenance of qualified retirement plans, health and welfare plans, and nonqualified deferred compensation plans for employers. His practice extends beyond this, however, with experience in executive compensation, trustee representation, plan terminations, and the employee benefits aspects of corporate transactions.
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Ruth represents clients in the areas of qualified retirement plans, health and welfare plans, fiduciary compliance best practices, nonqualified deferred compensation plans, ERISA compliance, COBRA administration, HIPAA privacy regulations, and compliance with other federal laws relating to employee benefits matters, including the Affordable Care Act. Her practice focuses on assisting clients in ensuring their retirement and health/welfare plans remain compliant with the myriad tax laws and new health care reform requirements.
John Morrison
Christopher C. Guthrie
SHAREHO L D E R | ATL A NTA
ASSO C I AT E | AT L AN TA
John’s practice encompasses all aspects of executive compensation and employee benefits, focusing on the design and analysis of executive compensation arrangements and related corporate governance and disclosure matters. He also has extensive experience advising on executive compensation and employee benefit issues in connection with mergers and acquisitions; corporate restructurings; and financings, including change of control and retention agreements and golden parachute excise tax mitigation strategies.
Robert Ellerbock SHAREHO L D E R | BIRM ING HA M
Bob regularly advises clients concerning qualified retirement plans (401(k), defined benefit, 403(b)), non-qualified plans, fringe benefits, health and welfare benefits, Affordable Care Act compliance, and executive compensation issues. With experience in the retirement plan industry prior to practicing law, Bob draws on his knowledge counseling clients in the design and implementation of all types of employee benefit plans.
The Kullman Firm works with clients in establishing and administering all types of employee benefit plans, including health, disability, retirement, and cafeteria plans. This includes advice concerning the Affordable Care Act, COBRA, HIPAA, withdrawal liability, and qualified retirement plans, such as 401(k) plans, 403(b) plans, 457(b) plans, defined contribution/defined benefit pension plans, employee stock ownership plans, and executive compensation programs. We assist on tax withholding issues and related independent contractor/ employee determinations, withdrawal liability and with other issues relating to multiemployer plans, and we defend our clients in all types of benefit controversies with employees.
Chris focuses his practice on qualified and non-qualified retirement plans, ERISA compliance, executive compensation arrangements, health and welfare plans, and taxation. While in law school, Guthrie served as President of the GSU Moot Court Board for the 2016 – 2017 academic year and was a student advocate in the Philip C. Cook Low-Income Taxpayer Clinic, where he received the Ginny and Kelly Smith Tax Clinic Fellowship for three semesters and the J.B. Moore Award from the Atlanta Bar Association – Tax Section for exceptional client service while working in the Clinic.
Taylor Bracewell ASSO C I AT E | AT L AN TA
Taylor focuses his practice on qualified and non-qualified retirement plans, ERISA compliance, executive compensation arrangements, health and welfare plans, and taxation. Bracewell has extensive experience advising clients regarding deferred compensation arrangements, particularly with respect to tax-exempt clients such as credit unions and private foundations. Further, Bracewell provides counsel to tax-exempt clients regarding the tax implications of deferred compensation arrangements.
One Area of Practice. One Focus. The Kullman Firm has engaged in the practice of labor and employment law on behalf of management since 1946.
Dwayne O. Littauer SHAREHO L D E R | NE W O RL E A NS
Dwayne O. Littauer is a shareholder of The Kullman Firm. His work is devoted principally to counseling clients in establishing, administering and handling benefit controversies concerning employee benefit plans, including health, disability, 401(k), pension, 403(b), and 457(b) plans. Mr. Littauer received his B.A., with honors, from the College of William and Mary and his J.D. from the University of Alabama, where he was on the Alabama Law Review. He received an LL.M. in Taxation from New York University, where he was a Graduate Editor of the Tax Law Review. He is a Board Certified Tax Law Specialist and has been included in Super Lawyers.
Employment Discrimination Litigation Wrongful Discharge Litigation Collective Bargaining Negotiations Labor and ADR Arbitrations Union Representation Cases
OSHA Wage and Hour Law OFCCP/Affirmative Action ERISA/Employee Benefits FMLA Compliance
Offices in Louisiana, Mississippi, Alabama, Tennessee, Florida, and Colorado.
www.kullmanlaw.com
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FordHarrison’s Employee Benefits group assists numerous public and private employers (including many Fortune 500 corporations) with all aspects of their compensation and benefit plans and programs, from design and implementation through termination. Our experience and expertise allows us to advise employers and others regarding all types of qualified and non-qualified retirement and deferred compensation plans, health and other welfare benefit plans, fringe benefit programs, executive compensation plans and agreements, and related matters. We represent employers, plans, insurers and others in courts throughout the country in litigation involving ERISA and other benefit issues.
Bothwell Graham ASSO C I AT E | AT L AN TA
Bothwell Graham devotes his legal practice to the representation and counsel of employers in matters related to employee benefits and executive compensation. Bothwell brings a unique background of analytical thinking and a depth of familiarity of tax law to support his clients in complex legal matters related to employee benefits. His practice includes providing day-to-day counsel to employers in both qualified and non-qualified retirement plans, health and welfare plans, and executive compensation structures, as well as assisting clients in compliance with the constantly evolving obligations under the ACA, COBRA, HIPAA and ERISA.
Tiffany D. Downs
R. Brian Spring
PAR T NER | ATL A NTA
C O UN SEL | AT L AN TA
Tiffany Downs is the head of FordHarrison’s Employee Benefits Practice Group. She advises and assists employers with all aspects of health and welfare plans, qualified and non-qualified retirement plans and executive compensation. She assists with due diligence in mergers and acquisitions and post transaction transition and integration. She advises on compliance with ERISA, Affordable Care Act, HIPAA, privacy, COBRA, and Internal Revenue Code on all types of employee benefit plans and incentive compensation. She assists employers with audits by and corrections programs of the Internal Revenue Service and the Department of Labor.
Brian Spring advises employers in employee benefit and tax related matters involving the design, implementation, and operation of qualified plans, health and welfare plans, and fringe benefits. Brian also has experience counseling clients in all aspects of executive compensation matters, including the negotiation and drafting of equity compensation plans and awards, employment/severance agreements, and other compensation arrangements. Brian regularly advises clients on health and welfare matters related to the Patient Protection and Affordable Care Act, HIPAA, and COBRA and executive compensation matters.
Troy A. Price PAR T N E R | L I T T L E R O C K
At Wright Lindsey Jennings, our Labor and Employment attorneys have experience representing clients in ERISA and employee benefits issues regarding nonpayment of benefits and breaches of fiduciary duties, including litigation resulting from these issues. We have represented employers, pension plans, plan administrators, plan sponsors, fiduciaries, third party administrators, insurance companies and welfare plans, both fully insured and self-insured. Our Labor and Employment team has management-oriented practices addressing all aspects of the employee/employer relationship. We also offer employee and manager training on a variety of issues and provide free educational resources to our clients through quarterly newsletters, employment law luncheons and website articles.
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Troy A. Price has earned a reputation as one of Arkansas’ most esteemed appellate lawyers. In his 20-year practice at Wright Lindsey Jennings, Price has handled more than 50 appeals in state and federal courts and has presented oral arguments more than 15 times in appeals before the Arkansas Supreme Court and Court of Appeals, the Eighth Circuit Court of Appeals and the Eleventh Circuit Court of Appeals. He is also admitted to practice before the Supreme Court of the United States. In addition to focusing on ERISA and other employee benefits litigation, Price is also recognized as an authority in First Amendment law.
Fritz Richter MEMBER | NASHVILLE
Bass, Berry & Sims' highly skilled employee benefits attorneys advise businesses of all sizes from start-up to international Fortune 500 companies on all facets of employee benefits programs, serving as sole employee benefits counsel to a diverse mix of public and private employers and non-profit organizations. Additionally, our team counsels individual CEOs and boards on a wide range of executive compensation arrangements. We partner with public and private employers, benefits consultants and third party administrators in the design, drafting, implementation, amendment, termination and administration of all types of employee benefit plans.
Fritz Richter counsels clients on employee benefit plan design and administration, and compliance with the Internal Revenue Service (IRS), Pension Benefit Guaranty Corporation (PBGC) and Employee Retirement Income Security Act (ERISA). His clients span a wide range of industries, including healthcare, retail and hospitality. Fritz has helped clients navigate hundreds of audits; submitted numerous IRS, Department of Labor and PBGC filings; and crafted a wide variety of employee benefit plan documents – all focused on helping employers navigate complex government regulation.
David Thornton Susie Bilbro COUNSEL | NASHVILLE
Susie Bilbro advises clients on all aspects of employee benefit plan design and administration including compliance with ERISA, the Patient Protection and Affordable Care Act, COBRA and the Internal Revenue Code. She has counseled public and private clients on employee welfare and pension benefits issues, both in connection with corporate transactions and on day-to-day administration.
Doug Dahl MEMBER | NASHVILLE
Doug Dahl provides technical knowledge and advice to companies on a wide range of federal tax and ERISA matters regarding employee benefits, including qualified retirement plans, executive compensation arrangements and health and welfare plans. Doug regularly assists companies with employee benefit issues that arise during and following various corporate transactions and events, such as mergers, acquisitions, dispositions and bankruptcies.
MEMBER | MEMPHIS
David Thornton helps employers deliver retirement, health and welfare benefits to their executives and employees. With more than 30 years of experience, he has developed a diverse practice counseling hundreds of public and private employers and non-profit organizations in drafting, maintaining and administering retirement plans ranging from $1 million to several billion dollars in assets, including many in the $100 million to $500 million asset range. He has deep experience in ESOP transactions, successfully navigating the significant fiduciary duty considerations and tax code requirements involved with these transactions.
Noah Black ASSOCIATE | NASHVILLE
Noah Black works with clients on the design, implementation and administration of qualified benefit plans, health and welfare benefit plans and deferred compensation packages. He also provides diligence and support on employee benefits and compensation issues arising in mergers, acquisitions and other corporate transactions. Prior to joining Bass, Berry & Sims, Noah worked with the U.S. Department of Labor in the Employee Benefits Security Administration where he investigated retirement plans and plan service providers to ensure compliance with Title I of ERISA and negotiated with fiduciaries to resolve ERISA violations.
Curtis Fisher MEMBER | NASHVILLE
Curtis Fisher advises public and private companies on all aspects of employee benefits, including the design, drafting and operation of qualified plans and health and welfare benefit plans. A significant amount of his practice is devoted to employee benefit and executive compensation matters related to merger and acquisition transactions. In the past two years alone, Curtis has provided advice in more than 25 merger or acquisition transactions.
Catherine Norton ASSOCIATE | MEMPHIS
Catherine Norton works with clients on the design, implementation and administration of health and welfare benefit plans, qualified benefit plans, and deferred compensation packages. She also provides diligence and support on employee benefits and compensation issues arising in corporate transactions. www.HRProfessionalsMagazine.com
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Friday, Eldredge & Clark LLP has one of the most experienced employee benefits practice in the region, managing more than 1,000 separate benefits and compensation plans. Our attorneys simplify the lives of human resources professionals in all types of companies, ranging from family owned business to Fortune 500 companies. Every employee benefits attorney at Friday, Eldredge & Clark holds a Master of Laws in Taxation and is experienced in the design, implementation, administration, compliance, and termination of tax-qualified retirement plans (including pension plans, cash balance plans, profit sharing plans, 401(k) plans, and ESOPs), 403(b) plans, 457(b) plans, nonqualified deferred compensation plans and health and welfare plans. The group also works closely with human resources professionals providing requisite fiduciary training and counsel to ERISA fiduciaries.
Joseph B. Hurst, Jr.
David M. Graf
PAR T NER | L ITTL E RO CK
PAR T N E R | L I T T L E R O C K
Joseph B. Hurst, Jr. is the head of the firm's Employee Benefits Practice Group. His works with the benefit needs for financial institutions, regular business organizations, professional corporations and governmental and non-profit organizations. He assists plan sponsors and fiduciaries with regulatory compliance with ERISA, state and federal tax issues and with local legislation affecting retirement and welfare plans. In addition, he acts as counsel to plan sponsors, fiduciaries and participants with respect to ERISA controversies and litigation. He is listed in The Best Lawyers in America, Employee Benefits; ranked in Chambers USA: America’s Leading Lawyers for Business, Labor and Employment: Employee Benefits and Compensation and selected by attorney peers for inclusion in Mid-South Super Lawyers.
A. Wyckliff Nisbet, Jr.
Alexandra Ifrah
PAR T NER | L ITTL E RO CK
PAR T N E R | L I T T L E R O C K
Wyckliff Nisbet, Jr. has practiced at the firm since 1974 specializing in employee benefits and taxation. He has more than 40 years of experience representing employers in the design, implementation and administration of tax-qualified retirement plans, non-qualified deferred compensation and executive compensation. He represents and counsels employers in employee welfare benefit programs. In addition, he works with business owners, professionals and individuals with high net worth in estate planning and wealth transfer planning. Wyckliff is listed in The Best Lawyers in America, Employee Benefits; ranked in Chambers USA: America’s Leading Lawyers for Business, Labor and Employment: Employee Benefits and Compensation and selected by attorney peers for inclusion in Mid-South Super Lawyers.
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David M. Graf concentrates his practice on nonqualified deferred compensation plans, and welfare benefit plans for financial institutions, regular business organizations, professional corporations, and governmental and non-profit organizations. He assists plan sponsors and fiduciaries with regulatory compliance with ERISA, state and federal tax issues, and with local legislation affecting retirement and welfare plans. In addition, he acts as counsel to plan sponsors, fiduciaries and participants with respect to ERISA controversies and litigation. He is listed in The Best Lawyers in America, Employee Benefits and named Lawyer of the Year by the publication in 2015 and 2018. Dave is a frequent speaker on employee benefits matters and an active community member currently serving as mayor of Cammack Village.
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Alexandra Ifrah brings almost 20 years of experience to her clients, working closely with Human Resources leaders, CEOs, CFOs, and business owners throughout the region to provide counsel on complex employee benefits, taxation and executive compensation arrangements. She has focused much of her practice on designing and implementing qualified retirement plans, nonqualified deferred compensation plans, health and welfare benefit plans, and fringe benefit plans for clients including nonprofits, governmental entities, small businesses and Fortune 500 companies. Alexandra also has extensive experience in assisting Human Resources professionals and ERISA fiduciaries in administering their employee benefits plans to comply with all applicable laws and regulations affecting every aspects of the employee benefits offered to their employees. Listed in The Best Lawyers in America for Employee Benefits and named Lawyer of the Year by the publication in 2016, Alexandra joined the firm in 1999.
Brian C. Smith PAR T NER | L ITTL E RO CK
Brian C. Smith focuses his practice on retirement plans (including defined benefit plans, profit sharing plans, 401(k) plans, ESOPs, 403(b) plans and 457(b) plans) and nonqualified deferred compensation plans for financial institutions, business entities, professional corporations and governmental and non-profit organizations. Brian assists plan sponsors and fiduciaries with ERISA regulatory compliance, state and federal tax issues and local legislation affecting retirement plans. In addition, he represents plan sponsors and fiduciaries with respect to plan audits by the Internal Revenue Service and the Department of Labor. Brian has been with the firm since 2003.
Joshua M. Osborne PAR T NER | L ITTL E RO CK
Joshua M. Osborne practice focuses on providing counsel to clients on all aspects of their welfare benefits, retirement plans and executive compensation arrangements. He has extensive experience in designing and implementing group health plans (self-insured and fully insured), cafeteria plans, wellness programs and other welfare benefits and regularly advises clients on the ongoing administration of their benefit programs in order to maintain compliance under the Affordable Care Act, ERISA, HIPAA, COBRA and other applicable laws. Josh regularly assists Fortune 500 companies, small business, non-profit and governmental entities on navigating the complex health care reform laws including 1094/1095 reporting and employer shared responsibility requirements. He has been with the firm since 2006.
CLIENT FOCUSED EVERY DAY
From family-owned businesses to Fortune 500 companies, our EMPLOYEE BENEFITS ATTORNEYS simplify the lives of human resources professionals in areas such as compensation, retirement plans, ERISA & compliance audits.
EMPLOYEE BENEFITS TEAM JOSEPH B. HURST, JR. A. WYCKLIFF NISBET, JR. DAVID M. GRAF ALEXANDRA A. IFRAH BRIAN C. SMITH
Jeremiah D. Wood PAR T NER | L ITTL E RO CK
Jeremiah D. Wood works for a variety of clients, including Fortune 500 companies, local and regional financial institutions, privately held business organizations, professional corporations, governmental organizations and non-profit organizations. Jeremiah assists his clients (as plan sponsors and fiduciaries) with regulatory compliance related to the Internal Revenue Code, ERISA and HIPAA as well as with state and local tax issues (including recent legislation) affecting retirement and welfare plans. In addition, he acts as counsel for his clients with respect to ERISA controversies and litigation and he regularly handles matters that involve correcting errors using the Internal Revenue Service Employee Plans Compliance Resolution System (EPCRS) and the Department of Labor Voluntary Fiduciary Correction Program.
JOSHUA M. OSBORNE JEREMIAH D. WOOD
Little Rock I Faytteville I Rogers
(501) 376-2011
WWW.FRIDAYFIRM.COM
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Littler is nationally recognized for taking a practical solutions-oriented approach to assisting its employee benefits clients. We regularly help employers design, document, review, and operate all types of ERISA and non-ERISA plans and arrangements, including health and welfare, retirement, supplemental retirement, employment, incentive bonus and severance programs. Additionally, we have the knowledge and geographic presence to deliver solutions to any ERISA or other employee benefits litigation problem.
Cross, Gunter, Witherspoon & Galchus, P.C. provides guidance concerning administrative and compliance issues relating to employee benefits, including Department of Labor inquiries, investigations and audits, and the Affordable Care Act. We also practice as labor and employment lawyers and immigration lawyers, in addition to a number of other areas. These areas include insurance defense, construction, health care, products liability, transportation, and commercial litigation.
Wesley E. Stockard
Amber Wilson Bagley
SHAREHO L D E R | ATL A NTA
DI R E C T O R | L I T T L E R O C K
As Co-Chair of Littler’s ERISA and Benefit Plan Litigation Practice, Wesley Stockard advises, represents and trains clients on a variety of labor and employment matters, with an emphasis on litigation and counseling in the areas of public and private employer benefit plan litigation and design, including claims under the Employee Retirement Income Security Act (ERISA); wage and hour compliance and litigation, including claims under the Fair Labor Standards Act (FLSA); employment discrimination and harassment matters; Family and Medical Leave Act (FMLA) compliance; non-compete and non-solicitation covenants; and unfair labor practice charges. He has particular experience with class action and complex litigation matters, including litigation of class and collective ERISA and FLSA claims.
Amber Wilson Bagley, a director in the Firm of Cross, Gunter, Witherspoon & Galchus, P.C., practices in the areas of Employment Law, Employee Benefits, Health Care Law, and Commercial/ Corporate Law. Amber has been named to the Best Lawyers in America, Mid-South Super Lawyers list of “Rising Stars,” Arkansas Business 40 Under 40 (2013), and Soirée Magazine’s readers selected Amber as one of the “Best Lawyers in Little Rock” from 2013-2017.
We’re local, everywhere. Local laws, legal communities, customs and cultures powerfully influence how businesses work, how workplaces function, and how employment issues are resolved. That’s why we’ve been building a law firm with teams all over the world, bringing deep understanding and vital insight to the issues your business is facing, wherever it’s located.
333 West Vine Street | Suite 1720 Lexington, KY 40507 859.317.7970
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Data Facts Announces the Promotion of Julie Wink to President
Legal Challenges are Coming at HR Professionals from Every Direction
Data Facts, a nationwide provider of lending solutions and national and international background screening, today announced the promotion of Julie Wink to President. Wink joined Data Facts in 1995 and was promoted to Executive Vice President in 2005. During her tenure, she has strengthened customer relationships, driven the strategic development of new geographical markets, and forged new complementary partnerships and product lines. As President, she will remain customer focused, serving as an industry visionary and directing key facets of the Lending Solutions Division. She will assume a more prominent role in setting company long-term goals and strategies to ensure Data Facts continues to exceed client expectations and to remain well-positioned to deliver unparalleled value, cutting edge technology and unique, customizable solutions. Wink has been considered a top industry expert for many years. She has held numerous industry-facing leadership positions, having served as the President and Treasurer of the National Consumer Reporting Association and sits on the Education, Legislative and Legal Committees. She has served on the Board of the Tennessee Mortgage Bankers and Nashville Mortgage Bankers Associations. Wink reflected on her time with Data Facts. "When I think about the journey that has led to this position, it is surreal how many brilliant people have invited me to be a part of their story. As Data Facts evolves, I am excited to keep pushing forward and supporting the talent we have in our 100% U.S. based team and the industries we serve. Our passion in helping lenders close more loans faster and easier and in helping companies hire faster, smarter, and easier fuels me every day." Daphne Large, Data Facts CEO, is proud of Wink's accomplishments. "Quite frankly, Julie is extraordinary. She has always kept our customers at the center of her work. This focus and her passion have helped create and deliver the Data Facts Difference. She demonstrates and lives our core values and foundation our company was built upon. Today's announcement is the natural progression of her long and successful career with Data Facts. Our company has a long history of building trust and relationships that last. Together, we will continue to listen to our customers and team as we create solutions for tomorrow's challenges. It is indeed an exciting time at Data Facts!"
That’s Why Rainey Kizer Makes Your Business Our Concern As the issues facing HR executives become more frequent, challenging, and complex each year, you need a law firm that provides advice invidualized for you specific needs. This is why you should know the employment law attorneys at Rainey, Kizer, Reviere & Bell, PLC. For over 40 years, our AV-rated firm has advised businesses, non-profit organizations and government agencies on all aspects of employment law. To learn more, please call.
Memphis
Nashville
901.333.8101
615.613.0442
Jackson
Chattanooga
731.423.2414
423.756.3333
ABOUT DATA FACTS Data Facts provides trusted information to Mortgage Lending and Human Resource professionals, enabling them to reach sound lending and hiring decisions. The company is SOC 2 and WBENC certified, NAPBS accredited, actively involved with various MBA and SHRM chapters, and requires all staff members to hold FCRA certifications. In 2018 Data Facts was ranked by HRO Today's Baker's Dozen Customer Satisfaction Ratings as a top background screening provider.
Tennessee does not certify specialists in the area of employment law.
For more information, contact Data Facts at 901-685-7599, or visit the company website. www.HRProfessionalsMagazine.com
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The Master Coach Well, I could not be more humbled! Here I thought I had a pretty good handle on what a business coach was and then this… The Master Coach: Leading with Character, Building Connections, and Engaging in Extraordinary Conversations by Gregg Thompson comes along. This one, ladies and gentlemen of the jury, is a game changer!
True, coaching does involve advising, mentoring and training, but true coaching is so much more.
What Coaching Is and Is Not Thompson explains that a coach can help a leader develop and communicate character with great success as coaching focuses on the individual rather than the development of the organization. He goes on to tell us a coach is not a friend, counselor, or mentor, but a person of great character who is also skilled with relationships and conversation and can transmit this skill to others. In order to help readers develop their coaching abilities, which, Thompson warns, is not easy, he walks them through creating a coaching culture, communicating ethics and values, developing the characteristics of a great coach, and building long-term relationships.
Then How Is Coaching Supposed to Work?
What Exactly Is a “Coach”? For so many of us, the word “coach” or the verb “to coach” has a singular meaning; that of one who serves as a spirited advisor. Certainly, in sports, the term “coach” needs no explanation yet in business, it’s all over the place as is its intent. For example, as an experienced manager, are you not ask to mentor a new hire? Or advise a co-worker? Or perhaps help train someone new? To our surprise, this is not coaching although we think it is and Thompson does an excellent job of explaining why. To quote from the book’s Introduction, “When done well, coaching is one of the most effective human resource development processes available. To do great coaching work, one must authentically be a coach. Coaching is a complex human-to-human relationship whose ultimate success depends much more on the character and intention of the coach than on any particular method he or she uses.” With this in mind, our author focuses much of the book on the character traits, perspectives, attitudes, values, and behaviors that distinguish great coaches. 48
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The Master Coach is based on the simple but profound 3Cs Coaching Model. This proven approach asserts that to master the art of coaching one must have an exemplary Character that invites the trust of others, be able to form rapid Connections with others at deeply personal level, and have the ability to initiate and guide intense, attitudechanging Conversations. At every step, Thompson reminds readers that coaching is not merely about what the coach says or does; it is about who he or she is. Thompson also differentiates between coaching and teaching. Teaching is a unilateral exercise, with the teacher imparting knowledge to the learner. In coaching relationships, both the Coach and the Talent are learning together. Perhaps the greatest confusion for many occurs between coaching and mentorship. The core difference, according to Thompson, is that a mentor guides the Talent by drawing on past experience, knowledge and wisdom. In contrast, he writes, “The coach opens the door to an inquiry, a discovery and learning process that unfolds in the moment.” Gregg Thompson brings enormous credibility and not just as a Master Coach but also as an accomplished researcher and writer.
Structure and Layout Readers will find The Master Coach to be an effective field guide. Its design contains many elements of a textbook and like a textbook, needs a linear approach. Yes, some chapters stand on their own but benefit will come from starting at the Introduction and following the lessons it has to teach us one at a time. Nineteen short chapters are strategically woven into two main parts that builds much as a fascinating novel does. What readers will also find is that some segments will be deserving of a second read. Not because of complexity but from the valuable lessons it has to impart. Detailed and honest, built on personal experiences with clients and supplemented by insightful lists (e.g., the seven characteristics of a coaching culture; the top 10 ways to build a long-term coaching relationship), The Master Coach is a comprehensive, wellstructured guide for leaders ready to begin their conversations with the people they want to coach.
Who Will Benefit Most from This Book? All management and organizational leaders.
ABOUT THE AUTHOR:
Gregg Thompson is President of Bluepoint Leadership Development, recognized as one of the finest providers of coach-training programs in the world. Having coached many of the most senior leaders in Fortune 100 companies and trained thousands of coaches worldwide, Gregg is uniquely qualified to write the definitive book on what it takes to be a Master Coach.
William Carmichael, Ed.D Professor | Strayer University William.carmichael@strayer.edu www.strayer.edu
Presents
Affordable Online SHRM-CP® | SHRM-SCP® Certification Exam Prep Class Online classes begin October 2, 2019 and will meet twice per week for 12 weeks on Monday and Wednesday evenings from 7:00 PM to 8:00 PM.
SHRM Learning System® Participant Materials
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2019 Winter Exam Window December 1 – February 15, 2019 For more information visit shrmcertification.org
Deadline to register is September 25, 2019 Contact cynthia@hrprosmagazine.com OR visit our website at www.hrprofessionalsmagazine.com
About the instructor: Cynthia Y. Thompson is Principal and Founder of The Thompson HR Firm, LLC, a human resources consulting company in Memphis, TN. She is a senior human resources executive with more than twenty years of human resources experience concentrated in publicly traded companies. She is also the Publisher | Editor of HR Professionals Magazine, an HR trade publication distributed to HR professionals in Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, and Tennessee. The mission of the publication is to inform and educate HR professionals. Cynthia has an MBA and is certified as a Senior Professional in Human Resources by SHRM and HRCI. Cynthia is a faculty member at Christian Brothers University in Memphis teaching Human Resource Management. Cynthia also teaches online HR Certification Exam Prep Courses for HRCI and SHRM. She is a sought-after speaker on HR Strategic Leadership. www.HRProfessionalsMagazine.com
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A B C s of
The Immigration: Conducting an I-9 Audit By BRUCE E. BUCHANAN
Which questions should be asked when preparing for a Form I-9 audit? In order for the auditor to assess Immigration Reform and Control Act (IRCA) compliance practices, he or she needs to interview the employer to determine the following: • Are Forms I-9 completed by a single office in the organization? In the case that they are not, in what manner is this responsibility divided? • If the responsibility for the forms is centralized, how many people are responsible and who are they? • Has each person responsible for Forms I-9 received training in immigration compliance and immigration-related anti-discrimination rules? • Is the employer in possession of a manual or electronic Form I-9 system? If the latter, which specific system is used and when was its implementation date? • Where are the employee files kept, and are they kept in good physical order? • Are Forms I-9 consistently completed on the date of hire? If completed prior to the date of hire, is the form ever completed before the employee has been offered the position and has accepted the offer of employment? • Does the employer instruct employees which documents to present? • Has the employer ever revoked a job offer or terminated an employee because of an upcoming expiration date in Section 1 of the Form I-9? • Before signing Section 2 of the Form I-9, do the employees responsible for the Forms I-9 actually review the original Lists A, B, and C documents in order to determine whether the documents reasonably appear to be genuine and whether they relate to the employee in question? • Does the employer have a system in place to identify and destroy Forms I-9 for terminated employees who are no longer required to be maintained after the retention period? • Does the company keep copies of Section 2 documents in all cases, none, or sometimes? If sometimes, what is the reason behind this inconsistency? • Does the employer have a tickler system to re-verify work authorization and to complete Section 3 of forms requiring such re-verification? Describe the system. • When was the last time an audit was conducted? Was it a full or partial audit? Provide a copy of the audit. • Has the employer had previous immigration audits or been previously audited regarding immigration matters? If this is the case, outline the results. • Has the employer had its Forms I-9 inspected by ICE? • Does the employer use E-Verify? • Does the employer have contracts with government agencies? If so, which government agencies? If so, does the employer use Federal Acquisition Regulation (FAR) E-Verify? • Is the employer compliant with all state laws on immigration compliance? 50
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hould employers prepare a spreadS sheet for a Form I-9 audit? Yes. This spreadsheet needs to include the following information: • The names of all current employees hired since the company opened or since November 8, 1986, whichever is later. • The date of hire of each employee. • The names of all former employees terminated within the last three years. • The date of termination for each employee no longer employed. • Dates of rehire and termination if an employee’s period of employment has been periodic. • Whether a Form I-9 has been located for the current employees identified by payroll records as having been employed by the company since the company opened or since November 8, 1986, whichever is later. • For terminated employees in the last three years, whether Forms I-9 are retained. • Do Forms I-9 need to be retained for all employees terminated in the last three years? • Have the Forms I-9 for employees that no longer have to be retained been purged?
Whether all Forms I-9 records or a random selection for current employees are to be pulled for review is dependent upon the size, budget, immigration history, and overall vulnerability of an employer. In the event a random selection is chosen, the selection should be varied in terms of departments, type of employee, dates of hire, and whether the employee’s form must be re-verified. Similarly, this is applicable to former employees terminated in the past three years, though a random selection is more likely to be applied than such a sample of current employees. Should employers use an audit checklist? Yes. The following should be considered by employers:
Section 1. Employee Information and Verification 1. Is the employee’s name correct, and is it precisely identical to the employer’s records and the supporting documents? 2. Is the employee’s Social Security number properly stated? 3. Is the date of birth properly stated? 4. Is the employee’s address properly stated? 5. Is one of the boxes checked stating the employee is a U.S. citizen, foreign national, lawful permanent resident, or employmentauthorized alien? 6. With regards to the previously mentioned checkbox, is the employee has indicated that he or she is a lawful permanent or an employment-authorized alien, has the applicable “Alien” or Admission number” been included and is there an expiration date? 7. With regards to the previous question, if the employee has indicated himself or herself to be an employment-authorized alien, has he or she stated the employment authorization’s expiration date? 8. Has the employee signed his or her name? 9. Has the employee dated the signature either on or before the first date of employment? 10. If either a translator or preparer has been used, has that person signed and dated the attestation, printed his or her name, and provided his or her address? 11. If a translator or preparer was not used, did the employer check the appropriate box to indicate this?
Section 2. Employer Review and Verification List A (Only to be completed if applicable) 1. If a List A document is used, has a proper document been referenced? 2. If a List A document is used, has the issuing authority been listed? 3. If a List A document is used, has a document number been provided? 4. If a List A document is used, has the document expiration date been provided? 5. If, instead of the actual document, a receipt for a List A document is provided, has the original document been presented within 90 days of presenting the receipt? 6. If a List A document is provided, has the employer left all of the information in List B and C blank? List B (Only to be completed if applicable) 7. If a List B document is used, has a proper document been referenced? 8. If a List B document is used, has the issuing authority been listed? 9. If a List B document is used, has a document number been provided? 10. If a List B document is used, has the document expiration date been provided? 11. If, instead of the actual document, a receipt for a List B document is provided, has the original document been presented within 90 days of presenting the receipt? 12. If a List B document is provided, has the employer left all of the information in List A and C blank? List C (Only to be completed if applicable) 13. If a List C document is used, has a proper document been referenced? 14. If a List C document is used, has the issuing authority been listed? 15. If a List C document is used, has a document number been provided? 16. If a List C document is used, has the document expiration date been provided? 17. If, instead of the actual document, a receipt for a List C document is provided, has the original document been presented within 90 days of presenting the receipt? 18. If a List C document is provided, has the employer left all of the information in List A and B blank? Documentation 19. Are copies of the List or List B/C documents included in the Form I-9 file, and do they appear genuine? 20. If the documents were not provided on the date of hire, was Section 2 completed and the documents shown no later than the third business day after the first day of employment? 21. Do the documents presented appear consistent with the status described in Section 1 (for example, a lawful permanent resident card is shown, but the applicant says he is a U.S. citizen)? Employer Certification 22. Has an authorized representative of the company completed this portion of the form? 23. Has the authorized representative properly listed the date he or she examined the documents? 24. Has the authorized representative signed within three days of the first day of employment? 25. Has the authorized representative signed the form? 26. Has the authorized representative printed his or her name? 27. Has the authorized representative listed his or her title?
28. Has the employer’s name and address been properly stated? 29. Has the authorized representative dated the form? Section 3. Employer Rehire and Reverification (Complete only if applicable) 1. If the employee provided an expiration date for work authorization in Section 1, has Section 3 been completed before the passing of that date? 2. In the event of a name change, has the new name been provided? 3. If the employee is a rehire, has the rehire date been provided? 4. If re-verification is necessary, has a proper document been presented demonstrating continuing employment authorization? 5. If a rehire, does the prior documentation need re-verification? 6. Has a document title been properly stated? 7. Has the document number been properly stated? 8. Has the new expiration date been properly stated? 9. Has the authorized representative of the company properly signed Section 3? 10. Has the authorized representative dated Section 3? If you are interested in learning more about immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, available athttp://www.amazon.com/ dp/0997083379.
Bruce E. Buchanan, Attorney Siskind Susser PC bbuchanan@visalaw.com www.visalaw.com
SISKIND SUSSER PC Tennessee’s Largest Business & Employment Immigration Practice
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1 Austin Baker, President HRO Partners 2 David Archer, Associate Professor, Christian Brothers University
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JULY 16, 2019
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24th Annual Mississippi HR Conference & Expo September 16-18, 2019 BancorpSouth Arena & Conference Center Tupelo, Mississippi
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7 Habits of Highly Respected Leaders By HARVEY DEUTSCHENDORF
The challenge of leadership is to be strong but not rude; be kind, but not weak; be bold, but not a bully; be humble, but not timid; be proud, but not arrogant; have humor, but without folly.” ~ Jim Rohn While someone may have advanced in their organization to a level of leadership, that alone will not earn them respect. Their title and position, corner office, may earn them extra pay and benefits; but respect is something that does not automatically come with the position. It has to be earned and is one of the most difficult things for a leader to acquire. Respected leaders are not always liked by everyone and not always popular. A leader may be well liked as a person yet be a weak leader who is afraid to make difficult decisions, shows favoritism to those who stroke his/her ego, and be quite ineffective. On the other hand, there are leaders who intimidate their subordinates and use fear as a way of getting things done. None of these leaders will earn the respect of their followers. If we take a closer look at leaders who have walked the difficult path that has earned them respect; we will see the following traits.
Willing to do or have done what they expect others to do. Leaders should not ask others to do something that they have not done in the past, nor would be willing to do. They lead by example, and their efforts will set a standard for the rest of the organization. If they are unwilling to put in the extra time and effort into a project that they expect of their staff, they will be seen as hypocrites and lose the respect of those under them. Leaders who are highly respected will put in at least as much time and effort as those that they serve. Often, they will lead by being the hardest working person on their team.
A high degree of self-awareness. Respected leaders have a healthy dose of emotional intelligence and are aware of how they come across and how their works and actions impact others. They use this selfawareness in giving feedback and looking for sincere opportunities to praise the work of others. They monitor their emotions and never speak or act when highly emotional, waiting until they have regained control and had time to think the situation over.
successful, they try to deflect credit and shine it on those who implemented it. When a tough decision needs to be made, they make it quickly and avoid blaming others. Their strong sense of who they are helps them make decisions which they realize may make them unpopular and disliked at times.
Admit their mistakes and take responsibility when things don’t go as expected. While it may be easier to try and weasel out of taking responsibility and try to put the place on others when things go south, respected leaders always take the higher road. They take responsibility even when mistakes were made by someone reporting to them; and it would be easy to shift the responsibility. The buck stops here is a motto that they do more than pay lip service to; they live it. They have their people’s backs and are willing to defend them to those above them when necessary.
Support their people and don’t show favoritism. Insecure leaders want people around them who will not threaten or challenge them and will promote yes people under them. Respected leaders see being challenged and new ideas as a way of helping them grow and become better leaders and people. They are in constant learning, growing mode and are supportive of staff that show initiative. While it is tempting to favor people who stroke our egos, respected leaders rise above that and make a sincere attempt to reward talent, hard work regardless of their personal feelings about the person.
Not afraid to take risks, are open and honest, and encourage those under them to do so. Respected leaders are willing to take risks and live with the consequences, realizing that without some risk; there will be no growth, only stagnation. They encourage those they are leading to take risks and stand behind them when things don’t work out as planned. They believe that openness and honesty are the best way to operate and encourage others to come to them when things have gone wrong instead of trying to hide the problem because they are afraid of repercussions.
A belief that people are striving to do their best. When having to give negative feedback, they look for opportunities to turn it into a learning and growth opportunity for the employee rather than a form of punishment. They would rather be wrong about someone they thought had potential than miss an opportunity to bring out the best in one of their staff. Their motto is to believe in and trust those they are in charge of until they are proven wrong.
Give credit where it is due and do what is right instead of what is popular. Well respected leaders are confident and well grounded, secure in who they are and their abilities. As a result, they don’t run away from making tough decisions even though they may not be popular. When things are going well, they look for ways to give credit to their staff rather than trying to take all the credit themselves. Even when it is their idea that is 54
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Harvey Deutschendorf is an emotional intelligence expert, internationally published author and speaker. To take the EI Quiz go to theotherkindofsmart.com. His book THE OTHER KIND OF SMART, Simple Ways to Boost Your Emotional Intelligence for Greater Personal Effectiveness and Success has been published in 4 languages. Harvey writes for FAST COMPANY and has a monthly column with HRPROFESSIONALS MAGAZINE. You can follow him on Twitter @theeiguy.
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