HR Professionals Magazine by Cynthia Thompson

Volume 8 : Issue 8

www.HRProfessionalsMagazine.com

Profiles of ERISA and Employee Benefits Attorneys

The Top 5 Signs

Your 401(k) Plan is Aging

Reliable Leadership –

The Influence of Details

Previews of

SHRM Fall Conferences

Cindy R

Norﬂeet,

SHRM-SCP, SPHR KYSHRM Government Affairs Director

Association Health Plans – DOL Final Regs

International Presence. Local Knowledge. EMPLOYERS AND LAWYERS, WORKING TOGETHER Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. The firm has more than 850 lawyers located in 53 offices across the United States and in Europe, Canada, and Mexico.

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You will receive 8.00 SHRM PDCs and 8.00 HRCI Business Credits for attending all of the sessions.

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Bringing Human Resources & Management Expertise to You

75%

of people in the workplace have been affected by bullying. www.HRProfessionalsMagazine.com Editor

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

The Thompson HR Firm, LLC HR Consulting and Online HR Certification Classes Art Direction

Park Avenue Design Contributing Writers

Austin Baker Bruce E. Buchanan William Carmichael Frank L. Day Jr. Harvey Deutschendorf Brad Federman Jeanne J. Fisher Murray L. Harber JonVieve D. Hill Stuart Jackson David S. Jones Lisa May Ann E. Sartwell Stacey L. Stewart Paul Vitale Board of Advisors

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

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Features

5 note from the editor 6 Profile: Cindy R. Norfleet, SHRM-SCP, SPHR, KYSHRM Government Affairs Director 14 Why Can’t We Have Civil Conversations Anymore? 20 Winning Talent in the Age of the Gig Economy 24 Should You Use Social Media in Your Background Screening Process? 30 Reliable Leadership – The Influence of Details 48 Book Look: The CEO Next Door 54 Five Emotionally Intelligent HR Policies Your Work Culture Will Suffer Without

Employee Benefits

18 The Top 5 Signs Your 401(k) Plan is Aging 28 Association Health Plans – A Foundation to Understand the Conversation 29 McGriff Insurance Services: Employee Benefits Consulting, Property & Casualty, and Business Insurance 32 Employers, Healthcare and Economic Development in Mississippi 33 Governor’s Health Care Economic Development Summit in Jackson August 18 47 2018 Memphis Business Group on Health Annual Conference in Memphis August 22

Profiles of ERISA and Employee Benefits Attorneys

34 Ogletree Deakins 35 The Kullman Firm 36 FordHarrison Wright Lindsey Jennings 37 Bass Berry Sims 38 Friday Eldredge & Clark LLP 40 Littler Cross, Gunter, Witherspoon & Galchus, P. C. 41 Evans Petree PC

Employment Law

10 Will the Supreme Court Resolve the Circuit Split About “Sex?” 12 Minding Your Business: Managing Mental Health in the Workplace 16 Harassment Remains in the Headlines 22 Pay Equity Top of Mind for Employers, for Good Reason 42 Medical Marijuana in Arkansas: Stumbling Toward 2019 (or Beyond) 44 Scotus Upholds Trump’s Travel Ban 52 Is Your Organization Guilty of Immigration-Related Discrimination?

Educational Opportunities for HR Professionals

3 Excellence Through Leadership in LaGrange, GA October 18-19 7 Sullivan University Classes Begin September 24 25 WGU – The University of Real-World Skills for Real-World Jobs 26 Leadership Louisville – The Leadership Green Room 27 Cross, Gunter, Witherspoon & Galchus, P.C. Seminars 55 Online SHRM-CP | SCP Certification Exam Prep Class Begins October 15

Industry News

7 34th Annual KYSHRM Conference-at-a-Glance in Louisville August 28-30 11 ALSHRM Strategy in the Sand Conference in Orange Beach September 28 46 Preview of 2018 ARSHRM ELLA Conference in Little Rock September 20-21 49 Preview of the 2018 SHRMGA Conference in Savannah September 5-7 50 SHRM-Memphis Chapter Meeting at the DoubleTree June 19 51 Preview of 2018 TN SHRM Conference & Exposition in Sevierville September 19-21 September 2018 Issue Features Employment Law and Employee Benefits Update

September issue will be distributed at the 2018 TNSHRM Conference & Exposition in Sevierville September 19-20 and the 2018 ARSHRM ELLA Conference in Little Rock September 20-21

Deadline to reserve space August 15

a note from the editor

It’s an honor to have Cindy R. Norfleet, SHRM-SCP, SPHR, and

Some of the #SHRM18 attendees in Chicago from Alabama, Arkansas, Georgia, Kentucky, Mississippi, and Tennessee

Director of KYSHRM Government Affairs, on our cover. You will enjoy reading about Cindy’s career and accomplishments on page 6. We are looking forward to covering the 34th Annual KYSHRM Conference in Louisville August 28-30. This is always a fantastic conference! A few of the keynote speakers include Dr. Brad Shuck with the University of Louisville speaking on “Going Beyond the Surface of Employee Engagement,” Jack Uldrich speaking on “How to Future Proof HR Against the Top Workforce Trends Transforming Tomorrow,” and Annie Meehan, speaking on “Leading a Life of Impact.” We will bring you Facebook Live updates from the

I am so excited about our August issue because we have some great

Conference and also on LinkedIn and Twitter. So be sure to follow

information you need to know about ERISA and retirement planning!

me on Twitter at @cythomps to receive our updates. See Page 8 and

This is a very challenging function for many HR professionals unless

9 for the Conference-at-a-Glance.

you are an expert in employee benefits. There are lots of legal pitfalls and continuous new regulations that you need to be aware of. We are happy to provide an excellent guide to some of the top ERISA and employee benefits attorneys in Alabama, Arkansas, Georgia, Kentucky, Mississippi and Tennessee beginning on Page 34. If your attorney is listed, please let them know how much you appreciate their assistance. If you are searching for legal assistance, I’m sure you will

Mark your calendar now and plan to join us for our monthly webinar sponsored by Data Facts. It will be Thursday, August 23 at 2 PM. We are continuing our topic on developing business acumen that we hope will provide business recertification credits for you as well as increase your knowledge, and help you make an impact in your organization. Watch your email for details.

find the perfect attorney from your area in this special section. We have several educational and informative articles on this topic that you will want to clip and save for future reference. Don’t miss the article on the highly anticipated final DOL regulations on association health plans by Stacey Stewart with McGriff Insurance. Jeanne Fisher with ARGI has contributed an excellent article on the top 5 signs your 401(k) plan may be aging. Stuart Jackson with Wright Lindsey Jennings has provided an article on the long-awaited ruling from the Arkansas Supreme Court on medical marijuana.

cynthia@hrprosmagazine.com cythomps@twitter

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

Cindy on the cover

R. NORFLEET

CINDY R. NORFLEET, SHRM-SCP, SPHR KYSHRM Government Affairs Director Cindy graduated in December 2004 with her Bachelor of Arts in Organizational Management from Midway college and immediately started her Masters in Human Resources the following January. She graduated in May 2007 with an MA in Human Resource management from Webster University. Cindy obtained her PHR in January 2007 and her SPHR in January 2012. Cindy Earned her SHRM-SCP in January 2015.

Cindy Norfleet’s career in Human Resources began in a 1999. As with a lot of other Human Resource Professionals she fell into the role and really enjoyed it. At that time she was working a company that was just starting, Intrust Healthcare, and everyone wore multiple hats. Cindy helped with benefits, personnel files, workers comp, FMLA, coordinating referrals for therapy and billing. In July 2003 Cindy moved to Elizabethtown and accepted a job with Communicare as and Human Resources assistant working primarily with benefits and FMLA. During the past 15 years Cindy has worked gradually learned and performed most all of the duties within her HR department. In July 2013 Cindy promoted to Chief Human Resource Officer. Cindy was introduced to Elizabethtown SHRM (ESHRM) in 2003. Since that time she has held several different volunteer board position including; secretary, Membership, president-elect, president, special events, and currently College relations. Cindy became familiar with the state HR council during her stint as president of ESHRM in 2012. Cindy was the state council’s Western District Director from 2013 to 2016 and now holds the position of Legislative Chair. As a part of the Legislative Chair Cindy volunteered to be a part of the SHRM Nationals A-Team, this is a team that helps makes voices hear on public policy issues that impact the workplace. These are typically the go to people to meet with lawmakers and help to activate local chapter to upcoming events and policies that could impact the workplace. Cindy has volunteered on board of Feeding America KY Heartland serving as a member of their HR committee from July 2012 to June 2018, additional was the secretary for the board from July 2017 to June 2018. During her voluntary role with Feeding America she assisted with polices and procedures, assisted in completing a market survey on their salaries and assisted with setting up a salary scale for their position. Each year the committee would review annual raises and bonuses and make recommendation to the president. Cindy was also available to assist with HR related items as they happened within the agency. In January 2018 Cindy became a voluntary member of the board for Helping Hand of Hope serving on their HR committee as well. So far with this committee she has assisted with reviewing raises, participated in a strategic planning day, assisted with a new job description and provided input on personnel matters. 

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Classes start September 24

sullivan.edu

For more information about program successes in graduation rates, placement rates and occupations, please visit: sullivan.edu/programsuccess.

presented by

Aug. 28-30, 2018

Omni Louisville Hotel â&#x20AC;¢ Louisville

NEW LOCATION! The Brand New Omni Louisville Hotel

KEYNOTE SPEAKER LINEUP

Brad Shuck

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4 p.m. | Tue., Aug. 28

8:45 a.m. | Wed., Aug. 29

12 p.m. | Thu., Aug. 30

Going Beyond the Surface of Employee Engagement: Exploring the Principles that Matter in Human Resources

Business as Unusual: How to Future-Proof HR Against the Top Workforce Trends Transforming Tomorrow

Leading a Life of IMPACT

Learn more and register at KYSHRMCONFERENCE.COM 8

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presented by

CONFERENCE SCHEDULE Tuesday, August 28, 2018 8 a.m. 8:30 - 11:30 a.m.

10 a.m. - 4:30 p.m. 12 p.m. 12:30 p.m. 2 p.m. 2:15 p.m. 3:45 p.m. 4 p.m. 5 p.m. 6:30 p.m.

Preconference Workshop attendee registration Preconference Workshops: 1 | Business Acumen for the HR Professional 2 | HR Thought Leader Summit: Compassion, Humanity, and You at Work 3 | Be the Exceptionâ&#x20AC;Ś7 Steps to Transformation Exhibitor registration and setup Attendee registration Concurrent 1.5-hour workshops Snack break sponsored by Steptoe & Johnson PLLC Concurrent 1.5-hour workshops Beverage break sponsored by Steptoe & Johnson PLLC Keynote | Going Beyond the Surface of Employee Engagement: Exploring the Principles that Matter in Human Resources | Brad Shuck, Ph.D., Associate Professor, University of Louisville Welcome Reception w/ Sponsors & Exhibitors sponsored by Integrated Corporate Wellness Solutions LLC HR Marketplace opens 34th Annual Kentucky SHRM Conference day one adjourns

Wednesday, August 29, 2018 7 a.m. 7 a.m. 7:30 a.m. 8:30 a.m. 8:45 a.m. 10 a.m. 11 a.m. Noon -1:45 p.m. 1:15 p.m. 1:45 p.m. 2:45 p.m. 3:45 p.m. 4-6 p.m. 5:30 p.m. 7 p.m.

Attendee registration HR Marketplace opens Continental breakfast sponsored by HRI Dental Concurrent 1-hour workshops Session change/Beverage break Keynote | Business as Unusual: How to Future-proof HR Against the Top Workforce Trends Transforming Tomorrow | Jack Uldrich, Global Futurist, Speaker, Author Mid-Morning break sponsored by Incipio Workforce Solutions Concurrent 1-hour and 1.5-hour workshops Buffet lunch sponsored by Littler Mendelson, P.C. Concurrent 1.5-hour workshops Concurrent 1-hour workshops Afternoon dessert break sponsored by Anthem Blue Cross and Blue Shield of Kentucky Concurrent 1.25-hour workshops Exhibit tear down and move out Networking Reception held at PBR Louisville: A Cowboy Bar (at Fourth Street Live!) sponsored by Lockton 34th Annual Kentucky SHRM Conference day two adjourns

Thursday, August 30, 2018 7 a.m. 7:30 a.m. 8:30 a.m. 8:45 a.m. 10 a.m. 10:30 a.m. 12 p.m. 2:30 p.m.

Attendee registration Continental breakfast Concurrent 1-hour workshops Session change/Beverage break Concurrent 1.25-hour workshops Coffee break Concurrent 1.25-hour workshops Keynote Luncheon | Leading a Life of IMPACT | Annie Meehan, Professional Speaker sponsored by Hanna Resource Group $2,500 cash giveaway (must be present to win) 34th Annual Kentucky SHRM Conference adjourns

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Will the Supreme Court Resolve the Circuit Split About

“SEX?” By FRANK L. DAY JR.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment “because of . . . race, color, religion, sex, or national origin.” The term “sex” is not defined in the statute, and the legislative history includes few references that can be used to help determine the intended extent of this protected class. Hence, it has fallen on the courts to determine what Congress intended.

but these amendments had never been adopted as law. The Ninth Circuit generally set forth the reasoning of these decisions in Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662-663 (9th Cir. 1977) In Holloway, the Ninth Circuit rejected the notion that the plain language of Title VII protected against discrimination on the basis of sexual orientation by stating,

In the early years following the adoption of Title VII, few would have argued that the law prohibited discrimination on the basis of sexual orientation. At that time, it was even unclear whether Congress intended Title VII to provide men the same protections as it provided women. This debate continued until 1983 when the Supreme Court determined that discriminating against a male employee because of his sex was also unlawful.

Giving the statute its plain meaning, this court concludes that Congress had only the traditional notions of “sex” in mind. Later legislative activity makes this narrow definition even more evident. Several bills have been introduced to amend the Civil Rights Act to prohibit discrimination against “sexual preference.” None have been enacted into law.

The current debate is now whether discrimination because of “sex” also encompasses discrimination on the basis of sexual orientation. Until recently, the courts that had addressed this issue had generally held the term “sex” did not encompass “sexual orientation.” Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) (holding that the definition of “sex” does not include sexual orientation); Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000) (explaining that sexual orientation claims are not cognizable under Title VII); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006) (sexual orientation is not a prohibited basis for discrimination under Title VII). Many circuit courts reached this decision by finding that Congress had on several occasions proposed amendments to Title VII to make sexual orientation a protected category, 10

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Congress has not shown any intent other than to restrict the term “sex” to its traditional meaning. Therefore, this court will not expand Title VII’s application in the absence of Congressional mandate. The manifest purpose of Title VII’s prohibition against sex discrimination in employment is to ensure that men and women are treated equally, absent a bona fide relationship between the qualifications for the job and the person’s sex. Id.

The long-established trend of holding that discrimination on the basis of sexual orientation is not actionable recently came to an end when the Second and Seventh Circuits issued en banc decisions in Zarda v. Altitude Express, Inc., 883 F.3d 100, 131 (2d Cir. 2018), and Hively v. Ivy Tech. Comm. Coll. of Indiana, 853 F.3d 339, 351-52 (7th Cir. 2017), respectively, overruling precedent in their circuits that had previously held that Title VII does not prohibit employment discrimination on the basis of sexual orientation. In both of these decisions, the courts determined that as a matter of statutory interpretation the meaning of “sex” could include sexual orientation and rejected the notion that the law should be limited to the traditional definition of “sex.” The question of whether Title VII extends beyond the traditional view and encompasses sexual orientation was also recently presented to the Eleventh Circuit Court of Appeals in the case of Bostock v. Clayton County, Georgia, 723 Fed App’x 964 (11th Cir. 2018). This case is noteworthy because it was unclear whether the Eleventh Circuit would reaffirm the traditional view of Title VII or side with the Second and Seventh Circuits and interpret the law more broadly. Ultimately, the Eleventh Circuit in Bostock affirmed the trial court’s holding that sexual orientation is not protected by Title VII, relying on its binding precedent as the basis for its holding. The plaintiff has filed a petition for certiorari with Supreme Court to seek review of this decision. This petition for certiorari is currently pending with the Supreme Court. While it is statistically unlikely that the Supreme Court will accept the Bostock case for review, the existing split among the circuits does provide an additional incentive for the Supreme Court to take up

the issue. When the Supreme Court finally decides the issue, it is very likely that the outcome will depend on the approach that the majority of the Court takes to statutory interpretation and their view on the role of the courts in the federal system. Until the Supreme Court rules on the matter, no uniform definition of sex for the purposes of Title VII liability will exist among the federal appeals courts, and employers operating on a nationwide basis will be subject to different standards depending on the locations in which they operate.

Frank L. Day, Counsel FordHarrison fday@fordharrison.com www.fordharrison.com

Strategy in the Sand September 28, 2018 Perdido Beach Resort strategyinthesand.com

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Minding Your Business: Managing Mental Health in the Workplace BY JONVIEVE D. HILL

April 3, 2018, Cat Greenleaf, creator and host of NBC’s popular talk show “Talk Stoop,” filed a lawsuit against her employer and supervisor for breach of contract and disability discrimination after she was fired following the death of a close friend. According to Greenleaf, she suffered from depression and obsessivecompulsive disorder, which she spoke openly about with guests on her talk show. She also invited guests who had publicly admitted to having mental health issues to speak about their battles on her show. After the death of her close friend, Greenleaf relapsed into a severe depression. She sought medical treatment and continued to successfully tape episodes of her hit show. Greenleaf openly shared her relapse with her producers and supervisor. Specifically, Greenleaf texted one of her producers stating “[I’m] in the throes of deep grieving [and] going to see a grief counselor tomorrow . . . I’ve been crying and throwing up a lot, which is why I think it’s time for some pro help here,” including that she had already made “an appointment with an MD. . . .” Greenleaf claims that within days of discussing her relapse with her employer, her supervisor telephoned her at home and fired her on the spot. Greenleaf argues that her employer’s reasons for her termination are a pretext for discrimination due to her mental illness. This pending lawsuit along with the media coverage surrounding the recent suicides of designer Kate Spade and chef Anthony Bourdain have stirred up considerable dialogue regarding mental illness. Because mental illness can be difficult to diagnose and also seriously impair an employee’s ability to function, it can create a legal quagmire of issues for employers. Companies need to be equipped to successfully navigate the multitude of issues presented by actual or perceived mental disability in the workplace to successfully manage their employees, create an inclusive work environment, and avoid potential liability from lawsuits similar to the one filed by Cat Greenleaf.

Mental Health Conditions Are Covered By the ADA The Americans with Disabilities Act (“ADA”) provides certain protections to individuals with a “physical or mental impairment” that “substantially limits” one or more major life activities. As with physical impairments, a mental health condition does not have to be permanent or severe to be protected under the ADA. However, if the condition makes an employee’s work-related tasks more difficult, uncomfortable, or time-consuming to perform, it may be considered a “disability” under the ADA. If symptoms come and go, as is the case with certain mental illnesses, the focus will be on how debilitating the symptoms are when present. An employer must be judicious and deliberate in the actions it takes at every stage of the employment process, from hiring to firing, to ensure it does not run afoul of the ADA and other Equal Employment Opportunity (“EEO”) laws. 12

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Hiring – Ensure Employment Screening Practices Do Not Constitute a Medical Exam Although personality and psychological tests are being utilized more frequently by companies to screen large applicant pools, employers who utilize this type of testing should be certain that it would not be deemed a source of potential discrimination. First, employers are not permitted to conduct any test that would be considered a “medical examination” until after a conditional offer of employment is extended to an applicant but prior to when that individual starts work. Under the ADA, a medical examination is a procedure or test that seeks information about an individual’s physical or mental impairments or health. A test that measures if an individual has anxiety, depression, or any other type of mental illness would likely constitute a medical exam. Even if the exam is given at the appropriate time of the hiring process, it must be administered to all individuals entering the same job category, be job-related and be consistent with business necessity. If an employer subsequently revokes the offer after conducting the medical examination, the employer has the burden of proving that the revocation was job-related and consistent with business necessity. Even if the personality or psychological test is deemed to be neutral on its face (seemingly impacting all applicants or employees equally), it may violate EEO laws if it has a discriminatory impact on a protected class of individuals. If the test disproportionally impacts one class of persons, the burden is once again on the employer to show that it is job-related and consistent with business necessity. As a result, employers need to be careful not to overuse such tests and should avoid testing when it does not relate to an employee’s job function.

What to Do when An Employee Discloses a Mental Health Condition Employers must walk a precarious tightrope when it comes to inquiring about an applicant or employee’s mental health condition. On the one hand, an individual has a right to privacy regarding his or her mental health. However, an employer is responsible for ensuring that an employee is able to successfully and safely perform his or her role. Generally, the only circumstances in which an employer can inquire about a mental disability are the following: 1) if the individual requests a reasonable accommodation, 2) after a conditional job offer is extended but before employment begins (if the other criteria discussed above is met), 3) if the employer is engaging in affirmative action for people with disabilities, and 4) if objective evidence exists that an employee may be unable to do his or her job or poses a safety risk to self or others because of the apparent condition.

If an employee’s performance or behavior in the workplace becomes an issue, the employer should privately meet with that individual, layout the performance issues, and give him or her an opportunity to share information. If the employee does not reveal a mental health condition, employers should follow their normal performance management procedures. Employers are cautioned about referring an employee to an Employment Assistance Program (“EAP”) prior to having objective information regarding that person’s disability. Several courts have held that employers who referred employees to EAPs based upon behavioral issues have wrongfully perceived that employee as having a disability and violated the ADA. If the employee shares that he or she is struggling with a mental illness, such as depression, the employer should seek medical confirmation and engage in an interactive process to explore reasonable accommodations.

Reasonable Accommodation: Being Creative and Nimble in the Interactive Process If a reasonable accommodation would help an employee with a mental disability do his or her job, the employer must provide one unless the accommodation involves significant difficulty or expense. If there are multiple effective accommodations, the employer may choose which one to provide. The Equal Employment Opportunity Commission (“EEOC”) has provided the following examples as possible accommodations for individuals with a mental health condition: altered break and work schedules; a quiet office space; devices that create a quiet office space such as noise cancelling headphones; changes in supervisory methods such as providing written instructions instead of verbal communications or opting for one-on-one supervision instead of group meetings; specific shift assignments; working from home; and allowing for time off for medical leave. An employer should always document in writing any efforts at providing the employee with a reasonable accommodation. Under the ADA, an employer must engage in the interactive process once an employee requests an accommodation for a disability. An employer cannot terminate an employee for requesting an accommodation and cannot pass the

expense of the accommodation on to the employee. A detailed policy to guide managers and human resources specialists through the interactive process can help ensure compliance with the law, especially when it comes to requests for accommodations for mental health conditions. While it is impermissible to terminate an employee on account of the employee’s mental illness, an employer is also not required to employ an individual who cannot perform his or her job or poses a direct threat to safety of self or others. The question of whether an employer has sufficiently engaged in the interactive process is factspecific and varies from situation to situation. As a result, employers are advised to consult with legal counsel prior to terminating an individual with an actual or perceived disability.

Final Thoughts Employers must consider mental health issues and the impact such conditions may have on their employees. With the increasing attention to mental health issues, it is important that employers provide work environments in which individuals with mental health conditions are able to succeed. In order to provide these types of inclusive environments, while also shielding themselves from potential disability discrimination claims, employers should continuously review their employment applications and policies as well as training procedures to be sure they comply with the law.

JonVieve D. Hill, Attorney Martenson Hasbrouck & Simon LLP jhill@martensonlaw.com www.martensonlaw.com

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Why Can’t We Have Civil Conversations Anymore? By BRAD FEDERMAN

75% of people in the workplace have been affected by bullying, according to a study noted in Forbes. A company I recently read about had to pay an employee $600,000 in damages because of her manager’s bullying-reflective behaviors. Our political landscape and cultural behaviors are bleeding into the workplace. Incivility is on the rise in the workplace whether expressed online or within the physical office. Norms are breaking down. It is becoming more common to hear statements like: • “ You are an idiot. How did you make it through the interview process?” • “What the hell is wrong with you?” • “ You are so stupid. You probably voted for (fill in the blank with the candidate of your choice).” • “You have a target on your back!” Some people have been subject to expletives, even in front of guests and customers. Incivility can manifest itself through more subtle means as well, such as providing the silent treatment or talking negatively about co-workers and using them as an example of warning to others. I have experienced workplace incivility. At my first job, one of my co-workers tried to make me look bad in front of our boss. Thank god it backfired and he was hoisted onto his own petard. I was not equipped to handle that, as it was my first job. I once had a VP that felt self-importance. He invited me into his office. At first, he tried buttering me up in an attempt to make me feel important. Then, he proceeded to try and throw me off by removing his socks and shoes and then clipping his toe nails. At that point, he asked me to spy on my boss. He did not like her and wanted to find an excuse to fire her. When I refused to be his spy, he threatened me. One client I work with has a leader that berates and puts down employees. He justifies it based on deadlines, pressure, and the fact that the employees make mistakes. However, he can hold his employees accountable without being Attila the Hun. This is an example of excuse making, to justify bad behavior. In today’s workplace, the challenge is that it is happening more frequently and most people do not have the skills to cope with it or work through it. The reality is that this is not professional behavior. So why do people make these excuses? Someone recently asked me to answer this question. “We're looking at the same thing, but see it differently. You have your opinion, and I've got mine. Why can't we discuss our opinions without name calling?” Amazing. He wanted to know why two grown adults can’t disagree without name calling and attacking each other. Explaining the reasons is easy. 14

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There are three core reasons why people behave this way: 1. Ignorance. They have an uneducated viewpoint; even if they are right, they can't explain why or defend it. They just believe it to be true. So when they are challenged or presented with facts that contradict their perspective, they get defensive and angry. It is a form of self-protection, albeit not a productive one. Unfortunately, once they get frustrated, they become willfully ignorant. Willfully ignorant individuals are fully aware of facts, information and resources yet refuse to recognize and utilize them. For these types of people, living is more comfortable with their eyes closed. In some cases, they choose this path because accepting certain information may rock their core or foundation. In other instances, it breaks with their values or beliefs. Regardless of the reasons, change is difficult for someone like this. They will run up against a wall and refuse to back down. People who are willfully ignorant may engage in personal attacks to preserve their ideas and views of the workplace. The conundrum…ignorance never solves a problem. Just remember, “There are two ways to be fooled. One is to believe what isn't true; the other is to refuse to believe what is true.” 2. Control. Some people have a need to control their environment and those around them. It makes them more comfortable to foster a false reality that they can create a predictable outcome. Control is fear in action. The only thing we can truly control is ourselves, and many of us can't seem to handle that. These individuals are very goal-oriented, and they like predictability. However, problem-solving is unpredictable. Otherwise, it is just theatre. And in many cases that is precisely what we are watching, theatre. People open up problemsolving when they already know their course of action. Then they try leading people where they want them to go. When individuals resist or try to move in a different direction, the controller comes out and can be quite uncivil. 3. Ego. People attach their self-worth and identity to their ideas. When you do not agree with their opinion, they feel rejected. What people need to remember is that their idea is not them. They are much more than an idea, and they also hold more value. The ego operates out of self-interest. People who suffer from this pursue approval and recognition at all costs. They must be viewed as correct. They will be resistant to feedback because that means, in their mind, they were not right. Because the idea ties to their ego and sense of self-worth, they can become difficult to work with and misbehave.

Here are a few ways to improve at maintaining civility in the workplace and determine what you need to work on: • Don’t make the conversation about you. • When you get defensive, ask yourself why. • Seek to learn and understand and the results will come.

• Think about why you struggle with trusting others. • Admit you have control issues. • Question your beliefs and assumptions. • Recognize a little chaos or unpredictability is not necessarily a bad thing. • Admit you have a bias and perspective.

• Take steps to become self-aware.

• Allow someone else to be in charge.

• Do the opposite of what your emotions are telling you.

• Identify your triggers.

• Ask yourself: What do they see that I do not? Or why do they view it that way? •D etermine: Would you rather be right or get something done? • Focus on what you can actually control.

75% of people in the workplace have been affected by bullying, according to a study noted in Forbes.

• Focus on changing your communication style. • Get a coach. • Ask for feedback.

Ultimately, curiosity, empathy and an opportunity outlook are what leads to amazing conversations, debates, and problem-solving. When we can learn to listen to each other and our concerns, we will be able to co-discover and co-create the future we want and need. I am hopeful more people will find empathy and curiosity over time. We need to see each other as neighbors, co-workers, teammates and fellow citizens. When we view working with each other as an opportunity, we will be moving in the right direction. I am hopeful those that disagree not only can and will discuss opinions without name calling but that they will eventually co-create organizations and futures in the best interest of all. We all have a lot of growing up to do in the meantime.

• Acknowledge that no one is perfect. • Compassion, compassion, compassion…for yourself and others.

STRENGTHENING BRANDS

Brad Federman, Chief Operating Officer F&H Solutions Group bfederman@fhsolutionsgroup.com www.fhsolutionsgroup.com

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HARASSMENT REMAINS IN THE HEADLINES By ANN E. SARTWELL

Harassment remains in the headlines. In just a two day period in June, the EEOC brought eight separate harassment based lawsuits under a variety of theories. Three of the eight cases allege harassment by owners. All allege sex harassment, but several include explosive racial language as well. And then there is the touching- lots of it. Add in a dash of non-existent policies, training, and investigatory follow-through, and infuse the mixture with a soupcon (or sometimes a gobbet) of apparent retaliatory animus, and it is sure fire recipe for employer trouble.

the manager must take over the table. “Red” behavior (overtly sexual comments or touching, or repeated inappropriate comments, especially after being told they are unwelcome) means the patron must go. Lipnic reminded the attendees that the EEOC plays multiple roles - as the agency with expertise, as an educator, and as enforcer. Two days later, the agency’s role was clear: "With the suits filed this week," Lipnic said, "we are enforcing the law." It also appears that the EEOC’s harassment enforcement efforts reflect some of the broader #MeToo and Time’s Up storylines. One case filed by the EEOC has factual allegations akin to some leveled at celebrity chef Mario Batali in recent months. Brought against Georgina’s Taqueria in Michigan on behalf of sous chef Jessica Wethern and a class of similarly situated female employees, it alleges that chef and owner Anthony Craig engaged in a pattern of egregious verbal and physical sexual harassment. When Wethern complained to Craig, she was allegedly immediately stripped of authority and had her hours cut. Days later, she gave a written complaint to a manager. Ten minutes later, Craig fired her. If Craig had had the benefit of counsel before making this particular employment decision, the advice would likely have been a resounding, “No, chef!” In California, the EEOC sued Tapioca Express, a small bubble tea franchise chain, and two of its franchisees (with interconnected ownership) for subjecting a class of female employees to sexual harassment. The agency said the owner routinely inappropriately touched young women and made repeated sexual comments. The behavior was reported to Tapioca Express in 2013; however, the franchisor took no action against the harasser/owner. More than two female employees felt compelled to quit as a result of the escalating abuse, the EEOC alleges.

A few days earlier, Acting Chair Victoria Lipnic, along with Commissioner Chai Feldblum, reconvened the Select Taskforce on the Study of Harassment in the Workplace, which had issued recommendations in 2016. Since the report’s release, the commission has been busy advocating for and providing employers new training programs that focus on respect and inclusivity rather than legal definitions. The EEOC has still not finalized its Proposed Guidance on Sexual Harassment in the Workplace, and it is unlikely to do so unless and until the President’s nominees are confirmed and/or there is greater clarity from the courts on hot button issues like Title VII’s application to sexual orientation discrimination.

The EEOC Tapioca Express filing falls on the heels of recent nearsimultaneous EEOC charges against McDonalds stores by 10 individuals in different cities represented by attorneys from Altshuler Berzon and Outten & Golden LLP. Those complaints are being supported with funding from Time’s Up Legal Defense Fund, administered by the National Women's Law Center Fund, and are organized with the help of the Service Employees International Union advocacy group Fight for $15. Ironically, the SEIU and Fight for $15 fired or accepted the resignations of several key leaders in the wake of internal sex harassment and misconduct investigations last Fall, just as the #MeToo wave was breaking.

Significant portions of the meeting focused on the introduction of legislation at local, state and national levels, including the passage of industry specific measures such as Chicago’s “Hands Off Pants On” Ordinance that requires safety alert buttons and employee protective policies for housekeeping staff. The meeting also spotlighted innovations like third party administered employee complaint platforms. Business owners also presented their own ideas.

The EEOC's Birmingham District Office sued Master Marine, Inc., for allowing lead welder Chad Carr to sexually and racially harass a male Asian-American welder at its Bayou La Batre, Alabama, headquarters. The behavior included multiple touchings in the buttocks and genital areas and blatantly racist remarks. The EEOC claims Carr also racially harassed African American employees, regularly referring to them as "n----r," "monkey," and "boy," and that he threatened to discipline at least one of them. The employees made oral and written complaints regarding Carr, who left the company for unrelated reasons at least six months after the behavior is alleged to have begun. Expect questions about Carr’s supervisory status, the timing of the company’s knowledge of his behavior, and the conduct of its investigation (if any) to be important in this case.

Erin Wade, a former lawyer, shared a solution tailored for her mac and cheese restaurant. Three years ago she confronted a disconnect between her vision of her business as a safe place for employees and her workers’ reality. She and the staff devised a simple color-coded system. Now, if a staff member reports “yellow” behavior (unsavory staring or creepiness) and requests that a manager take over a table, they do so, no questions asked. “Orange” behavior (comments with sexual undertones) means

The Los Angeles District Office filed suit against Sierra Creative Systems, alleging it subjected a class of mostly Spanish speaking female workers to ongoing verbal and physical sexual harassment and retaliation. The supervisor rubbed the backs of female employees while making comments about their underclothes and "accidentally" grazed their breasts with his elbows while they were working at printing machines. The EEOC also charged that employees were called (in Spanish) “whores,” “sluts,” “cows”

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and “donkeys,” “useless,” “stupid,” and “ignorant.” Acquiescence to his conduct was demanded in exchange for shift assignments and hours. Despite repeated oral and written complaints (even notarized ones) the company did nothing to stop this abuse, and those who reported the misconduct were told that the supervisor was just “machismo,” and were subjected to harassment and retaliation. Real Time Staffing, Inc., was sued for allegedly allowing a group of female employees on temporary assignment at the Inspection of Public Records Act Unit of the Albuquerque Police Department to be harassed. The EEOC said the women were subjected to pervasive comments about breasts and buttocks; referred to as "prostitutes," "sluts" and worse. It also claimed they were grabbed on their breasts, hit on their rears, had objects thrown at them, and that one was even kicked in the vaginal area. That case arises in the middle of a separate whistleblower lawsuit brought by the ousted public records supervisor who is at the heart of the underlying facts of this case. The agency's Dallas District Office in turn sued G2 Corporation, doing business as Screen Tight, for harassment and constructive discharge. The company had no harassment policy or training. Marta Luna claims she was subjected to unwelcome physical and verbal harassment at the hands of her production manager and another high-level corporate officer. The complaint alleges the manager made up a task of cleaning restrooms in order to create an opportunity to make sexual comments and attempt to force himself on her. The attempted assault was interrupted only by the surprise arrival of a coworker. The EEOC said that the vice president also made graphic, intimidating comments to her, and that the production manager made a physical gesture threatening harm at her the next day. She quit thereafter.

The EEOC's St. Louis District Office sued Prime Inc., a large trucking company. The EEOC stopped using the alleged harasser as a trainer because of his behavior but kept him on as an “independent contractor” and continued providing him with Prime employees as co-drivers. It did not warn a new female driver about the harasser's past misconduct or warn him not to harass her. For six weeks he allegedly talked nonstop about sex in graphic and violent terms and told her she would lose her job and commercial driver's license if she reported his behavior. The EEOC also sued Total Maintenance Solutions, a Cincinnati-based cleaning company, for allegedly subjecting an employee to a sexually hostile work environment and retaliation. Aaliyah Thomas endured unwanted touching, sexual comments, overtures, ogling, hugging, comments about her body and repeated calls at night during non-work hours suggesting a sexual relationship. She complained repeatedly to the harassing owner, including by text, and was subsequently fired in retaliation for her complaints, the EEOC said. Of course, all of the facts in the above paragraphs are just the “facts” as alleged in the complaints. Regardless of the ultimate outcome of these cases, this much remains clear- employers need to set clear boundaries for behavior, create policies and procedures that take the unique circumstances of their workforces and environments into account, and follow through with swift and appropriate consequences for anyone who violates expectations.

Ann E. Sartwell, Attorney Wimberly Lawson Wright Daves & Jones, PLLC Knoxville, Tennessee Office asartwell@wimberlylawson.com

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apid improvements in technology have affected nearly every aspect of our lives. We order car rides with the click of a button on our phones and payback friends via Venmo. (Does anyone still carry cash around?) Even grocery shopping is changing with innovations in online ordering and meal-delivery kits.

The retirement industry is no different, and advances in technology have improved everything from day-to-day administration, deferral uploads and investment lineups. It has become very easy for an experienced 401(k) advisor to spot ‘aging’ plans.

Here are the top 5 signs your company’s 401(k) plan is falling behind the times. 1. You are still taking paper - It’s a new era, folks - and long gone are the days where your employees should actually have to submit a (gasp) paper enrollment form! I highly recommend all participant documentation be moved online. It can be easier on you and the employee. Enrollment forms, beneficiary changes, loans and distributions can now be completed online. For those comfortable with their smart phones, mobile apps are often the easiest resource. In fact, I would argue more of your employees have access to a smartphone than a desktop computer. If you have a population not as comfortable with technology, find an advisory firm that will assist with enrollments. At ARGI, we sit down with employees and complete the online registration with them. For those of you shaking your head…yes there are still plans out there taking paper! 18

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The Top 5 Signs Your 401(k) Plan is Aging By JEANNE J. FISHER

2. The majority of your funds are still actively managed – How you decide what funds you include in your company’s 401(k), versus how you manage your personal investment accounts, is a whole different decision-making process. As a fiduciary, your goal is to provide an efficient lineup with all of the necessary asset classes for a participant to create a diversified portfolio. You also must have a process for objectively reviewing a fund’s performance relative to its peers and a benchmark. Passively managed funds are specifically designed to track closely to an index, or benchmark. They also have much more competitive expense ratios. Given this, you are seeing a large shift away from active funds and towards passive funds in employer-sponsored retirement plans. There are arguments for providing both options to your employees, but if your plan has only a few, or no passive funds at all, you’ve left a significant investing void for your participants.

3. Your HR Department is distributing notices – One of my first questions to HR Professionals is, how are you distributing participant notices? The number of notices required by the Department of Labor has grown substantially over the last few years. The administrative work required to keep a plan in compliance is becoming a significant burden. News flash – you have other things to do with your time! Platforms have heard you loud and clear. Most of the major recordkeepers/TPAs now offer some form of administrative offloading or support. If you aren’t using your current platform to assist with these things, call and ask what programs they have available. If you have a large database of employee emails, you can often receive this support for free. There could be a minimal charge for printing and postage to distribute notices to terminated participants, but often the benefit of your saved time far exceeds the cost.

“

„

The administrative work required to keep a plan in compliance is becoming a significant burden.

4. You still have retail share classes – Take a look at the investments in your 401(k). Do you see any with the letter “A” after the name of the fund? That is the first indicator your 401(k) may not be taking advantage of lower-cost share classes. Just as with everything else in life, there is a benefit to ‘buying in bulk’ in a 401(k). It’s the same reason we buy toilet paper from Sam’s! Because 401(k)’s are larger accounts of pooled assets you may qualify for a lower-cost share class. I liken share classes to seats on an airplane. You can have two people board a flight in Nashville and fly to New York. They will both arrive there at the same time and experience the same turbulence. If the plane crashes, well, they both go down with plane. But in this instance, one person paid first-class tickets and the other paid coach. Advisors who specialize in employersponsored plans are particularly sensitive to share classes. This has been a key target in fiduciary litigation, as the plan sponsor must prove they have completed full due diligence on funds and made the best decision. How are you going to defend paying higher fees in a mutual fund when you qualify for a group discount?

5. You do not offer a Roth deferral – This is the big one, and I believe the most egregious oversight, that can be found in a 401(k) plan. Since 2006 participants have had the opportunity to save post-tax dollars in their 401(k). Unlike the traditional deferral, employees choose to forego the tax deduction today. However, the account grows tax-free and is distributed tax-free in retirement. This can be a huge benefit for your younger, lower-income

40%

participants. Each employee’s situation will differ, but as a general rule of thumb, we recommend anyone under 40 elect the Roth deferral option. John Hancock now offers a dynamic auto enroll feature that automatically enrolls employees with an income less than $50,000 into the Roth. Now think about your employee base. How many are under the age of 40? How many earn less than $50k/year? With a simple plan amendment and one new payroll code, we can implement this improvement with virtually no cost to the company. Modernizing a company’s retirement plan can feel like a huge undertaking. In reality, all five of the issues identified above can be addressed very easily. If your plan is starting to ‘show its age’, find an advisor who specializes in employer-sponsored plans. We know what the latest trends, technology and best practices are, and would love the opportunity to share them with you!

Respective services provided by ARGI Investment Services, LLC, a Registered Investment Advisor, ARGI CPAs & Advisors, PLLC, ARGI Business Services, LLC, and Advisor Insurance Solutions. All are affiliates of ARGI Financial Group.

Jeanne J. Fisher, CFP, CPFA, MBA ARGI jeannefisher@argi.net www.argi.net

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Winning Talent in the Age of the Gig Economy It used to be that an organization’s greatest threat to their talent was from their competition. Now, however, businesses large and small are losing workers to the most threatening outside employer of all: workers themselves. New research from UpWork1 shows that, in just nine years, freelance workers could account for the majority of the U.S. workforce. Many of those new freelance workers are entering the workforce for the very first time, but the rest are losses from the traditional workforce. Employers, therefore, need to be prepared to find as many ways as possible to both attract contract workers and retain employees who may find that lifestyle appealing.

Even happy freelancers crave employee benefits It's a fallacy that workers, millennials included, don't care about benefits — they just care about different benefits than their parents. In its report titled Evolution of Work 2.0: The Me vs. We Mindset,2 the ADP Research Institute® found that millennials (and high-powered applicants of all kinds) increasingly favor benefits that allow increased flexibility and easy integration with daily life.

Benefits packages are a great opportunity to offer current and potential employees a combination of freedom and security.

Today, benefits like student loan repayment and unlimited vacation have almost as much power as traditional forms of alternative compensation, such as medical and dental coverage. Workers increasingly expect that even traditionally demanding professions can fit into a healthy and relatively stress-free overall lifestyle. You'll notice that these are all benefits a (good) freelance gig can provide. These days, freelance jobs can offer almost all the rewards of a traditional one, from reliable income to social interaction with a team.

Retain, retain, retain Many current freelancers were once salaried employees. Likewise, your current workforce is fair game to enter the gig economy. If anyone comes to the conclusion that your working experience isn't for them, they have every opportunity to leave and go find freelance work elsewhere. Therefore, to attract contract workers and prevent an exodus from your own ranks, it’s critical to create a benefits plan that combines what workers enjoy most about freelancing, with what they might miss most while freelancing. Forward-thinking employers have realized this means combining a somewhat free-form working schedule with a highly customizable benefits package. In some cases, it can be useful to simply allow workers to choose their own benefits pathway. For example, some workers might prefer a set annual bonus, while others may prefer extra time off. The rise of the gig economy should also push organizations to recognize that they need to prioritize flexibility. That means lots of organizations are being forced to give up some control — that is, the sort of control that freelancers are used to having when working for themselves. You can demand a certain volume of work and a specific deadline for it, but freelancers will naturally prefer to stay free agents if you don't give them the flexibility they’ve come to expect. 20

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Remember that benefits packages are a great opportunity to offer current and potential employees a combination of freedom and security — benefits that both the gig economy and traditional work offer.

Benefits data can light the way A large part of success in today’s labor market comes down to how well you can leverage data-driven people insights to discover which benefits workers want the most. Exit interviews, worker satisfaction surveys and even pilot projects aimed at assessing the impacts of different plans are some of the available options. It's not just about asking workers which benefits they desire (though that's an important part of the process), but also about observing their reactions to real opportunities and changes in coverage. Through focused data collection you can determine the profile of your perfect worker and then create an employment package that attracts such individuals.

Don’t be afraid to reach out for help According to ADP’s Evolution of Work 2.0: The Me vs. We Mindset,2 “46 percent of employees globally would consider a job that offered the same wages they receive today, or slightly less. Conversely, employees may choose not to move companies if the pay, benefits, actual job or career advancement opportunities are not noticeably better than their present employer. These competing factors are exactly why large corporations and small businesses alike need to think about bringing in outside benefits administration specialists. These individuals’ sole job is to stay on top of these trends and track them to the increasingly atomized demographics of the U.S. workforce. Outsourcing partners can provide you with the most accurate insights about workforce trends and furnish you with valuable benchmarks to measure against. Such a partner should have the expertise needed to analyze any organization's workforce, diagnose potential problems, prescribe preemptive solutions and administer benefits packages on an ongoing basis. With a better ability to recruit (and retain) the right type of worker, even in the face of a freelance-dominant market, your business should be able to employ its talent management strategies more successfully. The real challenge is to stay ahead of the curve, as both large-scale and individual changes in preference impact your workforce. Organizations that strive to understand the modern worker, and then use that intelligence to engineer benefits packages that appeal directly to their unique needs, should find that the allure of freelance work presents much less of a threat to their workforce.

ADP® can be your guide Whether you’re looking to better understand your employees’ needs, benchmark benefits offerings across your industry, or optimize your benefits administration, ADP’s expertise can help keep your organization on track for success. 1 Upwork, “Freelancing in America 2017,” 2017. 2 ADP® Evolution of Work 2.0: The Me vs. We Mindset, 2017.

– Emily, Solar Wrangler

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

Pay Equity Top of Mind for Employers, For Good Reason

John Simmons, Shareholder Littler - Memphis Despite being known for many years as a tangible disconnect with far-reaching implications, pay equity – or lack thereof – is top of mind among C-level executives and senior HR leaders. For some context on pay equity and its resurgence as a front-burner topic, we turned to a frequent collaborator, John Simmons, attorney with the Memphis office of Littler Mendelson, P.C.

1. Why is the issue of pay equity in the forefront now? Hasn’t this been an issue in HR circles and the C-Suite for a long time? JS: Statistics show a long-standing gap between men and women in pay, and this gap has not been eliminated with the passage of time and various laws prohibiting discrimination. The applicable laws have provided employers with several defenses to pay claims and have placed the burden on a plaintiff or the government to show discriminatory treatment. While there has been success for plaintiffs on these claims, there is a perception by some that it is too hard to establish a case of discrimination in pay and that employers have too many defenses. This has led to renewed efforts by state and local governments to address what is perceived to be a long-term problem of pay disparity.

2. Aren’t there laws in place to prevent pay equity disparities? Are there any new laws or regulations that are bringing a renewed focus on this issue? JS. Title VII of the Civil Rights Act of 1964 requires a plaintiff claiming discriminatory pay to prove by direct, statistical or circumstantial evidence that an employer intentionally discriminated against the plaintiff based on sex in setting the plaintiff’s pay. This same type of procedure applies to other protected categories as well. The fact of a disparity is not sufficient proof by itself to establish a claim. If a plaintiff establishes a prima facie case of discrimination, then the employer must offer a non-discriminatory reason— basically any reason but sex (or the other protected categories under the law)—that the employer claims led to the decision. Then the employee has to demonstrate this reason is both false and a pretext for sex discrimination (or other discrimination). A significant part of the battle in this area has involved what types of reasons will suffice for an employer’s differing treatment. For instance, an employer may offer subjective reasons for the difference or cite to the demands of the marketplace because a man was paid more elsewhere and will demand higher pay to take a job offer. There also is an argument that 22

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in some instances, men are more prone to negotiate pay, which also leads to higher-paying offers than their comparable female co-workers receive. The Equal Pay Act (“EPA”), which is part of the Fair Labor Standards Act, has been in place since 1963. The EPA prohibits an employer from discriminating on the basis of sex by paying someone less than another employee of the opposite sex in the same establishment while performing equal work in a job the performance of which requires equal skill, effort and responsibility and which is performed under similar conditions. An employer may also raise as a defense that the differing pay is based on a seniority system, a merit system, a system that measures earnings by quality or quantity of production or a “differential based on any factor other than sex.” An employer has many ways to attack an EPA claim. As an example of an effort to reduce an employer’s defenses, in Rizo v. Yovino, No. 16-15372 (9th Cir. Apr. 9, 2018), the U.S. Court of Appeals for the Ninth Circuit held that basing a pay decision on an employee’s prior salary does not constitute a factor “other than sex.” The Ninth Circuit held that to be defensible, the differential must be related to a legitimate, job-related factor such as education, experience or ability. Tennessee has its own equal pay act that is very similar to the federal EPA. Tennessee prohibits discrimination among employees in the same establishment based on sex for “comparable work” in jobs requiring “comparable” skill, effort and responsibility and performed under similar working conditions. Tennessee also provides the same four defenses to employers as does the EPA: a seniority system, a merit system, a system measuring quantity or quality of production and any other reasonable differential besides sex. The current movement for equal and fair pay is based on the belief that employers have too many arguments to defend themselves against unequal and/or unfair pay claims. The on-going pay disparity has led to several state and local laws that eliminate some of the defenses an employer may assert. For example, a growing list of jurisdictions prohibits an employer from even asking for an applicant’s prior salary history. There are also attempts to change the laws in other ways such as by expanding the protected categories beyond sex, expanding the right to compare workers in other locations or in a larger geographic area or throughout the entire company (rather than limiting comparisons to persons in the same establishment), expanding the definition of substantially similar work or extending the comparison to “work of comparable character” or “comparable work,” effectively shifting the burden of proof to the employer, prohibiting reliance on prior salary history to justify a disparity, requiring disclosure of the pay scale, requiring that factors used to determine pay be “job related” and consistent with “business necessity,” providing for pay transparency, and requiring an employer to demonstrate the entire pay gap results from the proffered reason.

3. What is the best way to assess a company’s pay practices to determine if there is a gap in pay equity? JS: An assessment involves three basic steps. First, an employer must determine what the groupings are for substantially similar jobs for comparison purposes, and then the employer must gather the pay data for those groupings. The second step will involve a statistical analysis of pay and pay gaps in the groupings. Third, where any potential problem is identified, the assessment will look to see if there is a non-discriminatory explanation. An explanation can include information on factors such as skill, effort, location, tenure, education, licensing and any other lawful factor that may explain the pay disparity. Whether in response to an assessment or simply as part of the ongoing management of pay practices, employers should attempt to avoid problems in the event a claim is asserted. Thus, employers should consider having a periodic review of the company’s job descriptions to ensure they correspond to actual jobs. Employers should consider reviewing for fairness the pay for each job compared to similar jobs in the organization. If it looks unfair and unequal to an employer, a judge and jury will probably not like it either. An employer

should value work that requires similar skills in a similar manner even if the jobs and skills are not interchangeable. Also, consider establishing pay bands for each job and the criteria for placement in a band and movement through the band. Consider requiring specific approval and a significant reason to go outside a pay band for a job. A significant reason can relate to the applicant and/or the market, but an employer should be sure it has the data to back up the special treatment. Also, avoid having similar names for jobs that are not similar, especially where one job is paid significantly more than the other job. As for treatment among employees, time on the job or in a particular area of work is important and can justify differing pay, but at some point the time in the job alone becomes less relevant. In other words, there may be a significant difference between those who have been in a job for 1 year compared to those with 10 years of experience in the same job, but the difference between 10 years and 15 years of experience may not be all that significant. Finally, it can be helpful to have a basis to assert a claim of privilege over the internal assessment. That is a good reason to have a lawyer involved.

4. If pay gaps are identified, what advice would you have for management? JS: If a gap that looks worrisome is identified, the employer should first determine what led to the gap. If the pay gap is based on a legitimate, non-discriminatory reason, then it is not illegal. An employer can then address the gap by addressing the underlying employee differences. This may involve training or other opportunities. If the employer is not comfortable with the reason for the gap, then an employer should plan on how to close it with adjustments in pay in a timeframe that is acceptable for the employer. It is recommended that this assessment be conducted as part of the employer's normal pay review process.

5. Once pay equity disparities are identified and corrected, how could an employer turn the corrected practices into a competitive advantage? JS: When an organization has no pay gap, it is probably offering a rate to minorities and women that is above the market, as most markets will have women and minorities earning less than non-minorities and males. In other words, fixing the pay disparity leads to immediate advantages in pay compared to competitors in the marketplace.

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

jaustinbaker

@jaustinbaker

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Should You Use Social Media in Your Background Screening Process? By LISA MAY

HR Professionals understand the importance of properly vetting their employees. Making certain the job candidate has the skills and education that are listed on the resume (and doesn’t have recent, dangerous crimes or drug use in their past that could be detrimental to the workplace) is an important responsibility. With the eruption of social media, hiring professionals have been tempted to peek at job candidates’ profiles. It could be argued, after all, that the individual shares posts, tweets, and photos of themselves. Why not use those to build a clearer picture and form opinions about them during the hiring process? There are several considerations employers need to think about before jumping on Facebook or scouring Twitter for information on their newest job candidate. Here are three of the main ones: •D iscriminatory information. HR Professionals who investigate an applicant’s social media profiles may see information they shouldn’t. Pictures or posts sharing the job candidate’s race, religious or political beliefs, or giving evidence to a disability are all examples of information employers can’t use to make hiring decisions. Once you see it, it’s impossible to prove it didn’t factor into the hiring decision. Gaining access to protected class information during the decisionmaking process can set employers up for discrimination lawsuits. • Privacy issues. Social media is still evolving, and the rules that go with it are too. Should employers have a right to look at a person’s social media engagement and use it to decide whether she would be a good hire? This continues to be a dicey issue, and there is little legislation guiding employers at this time. However, if you decide to use social media for background screening, it’s smart to take actions to ensure the candidate’s privacy isn’t invaded. For example, never ask for an applicant’s social media passwords, or friend them to gain access to more information. • Consistency in screening. Litigation avoidance in screening job applicants hinges on consistent processes. Employers can’t screen people only when they have a “gut feeling” or when the candidate has too many piercings or tattoos for their liking. Using social media for background screening is no different. HR Professionals should make a list of sites that will be screened and the information they will be searching for if they decide to use social media to screen job applicants. 24

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If your organization currently uses or is planning to use social media to screen job applicants, here are some guidelines. • Get authorization. Talk to the applicant in advance and tell them they will be the subject of a background check that will include their social media profiles. Ask them, as you would with any background check, to sign an authorization agreeing to be the subject of a background screening report. • Screen everyone the same. Implement processes for using social media screening the same way other, more traditional methods of background screening tools are used. Document a list of the sites you screen, the information you search for, and how it is weighed into the hiring decision. For example, if Instagram is not normally used for screening, don’t peruse it solely for younger candidates. • Follow traditional background screening protocol. It’s crucial to follow adverse action procedures if you decide not to hire someone based on information found on their social media profiles. Send a notice of pre-adverse action, and then 5-7 business days later, follow up with a notice of final adverse action. This gives the applicant a chance to dispute the information if it was uncovered in error. • Don’t use it alone. Finally, social media screening should never take the place of other background check reports like criminal records searches or drug screening. Social media profiles might offer up some helpful insight into the candidate’s history and fit within the company culture, but it won’t paint a complete picture by itself. HR professionals should plan on using it in addition to, not in place of, regular background screening. • Consider using a third-party vendor for checking social media profiles of potential job candidates. They can mask any information that hiring managers should not see, which maintains compliance with EEOC regulations. A third-party screener helps reduce the chances of a discrimination lawsuit. Employers who are thinking about adding social media screening into their background check processes should consider hiring a third-party vendor to handle the task. Doing so frees up manpower and protects the company from seeing private or restricted information that could get them sued. Social media screening as part of the hiring process is becoming more common as a greater number of people create profiles and share information across social media channels. Before HR Professionals look at applicants’ social media, they need to think about the consequences and put protocols in place that protect the job seeker as well as their company.

Lisa May, Senior Vice President Data Facts, Inc. lisa@datafacts.com www.datafacts.com

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Association Health Plans – A Foundation to Understand the Conversation

By STACEY L. STEWART

The Department of Labor helped heat up the summer by issuing its highly anticipated final regulations on association health plans on June 19, 2018. Despite the relative similarity to its previously issued proposed regulations, the final guidance set the benefits world abuzz. It seems like everyone is trying to figure out what these regulations really mean for the health insurance market and what will happen next. But let’s not get ahead of ourselves! Before we can speculate as to the future, first we must understand our past and present. This article will break down the basics behind the association health plan concept to hopefully give you a better foundation to understand the excitement and controversy surrounding them. Since association health plans are intended to be a type of ERISA plan, perhaps the best place to start is with how ERISA characterizes the types of plans an employer may offer its employees. ERISA generally breaks down plans into three main types: single employer plans, multiemployer plans and multiple employer plans. So where does an association health plan fall? Knowing the answer to that question is absolutely central to understanding much of the conversation around these plans. The first type of plan, a single employer plan, is one maintained by one employer or employers who are sufficiently related based on common ownership (under what are generally referred to as the “controlled group” rules) to be considered one employer for benefit plan purposes. While these rules are quite complicated, the bottom line is they set the ownership bar relatively high – requiring generally at least 80% common ownership. A multiemployer plan is a type of plan maintained pursuant to one or more collective bargaining agreements with multiple contributing employers, i.e. “union plans.” Finally, a multiple employer plan is one maintained by more than one employer who are not sufficiently related to be considered a single employer for benefit plan purposes under the controlled group rules mentioned above (and which is not a multiemployer plan). Looking at the three basic plan types, you can likely easily tell that an association health plan fits into the third category of plans – multiple 28

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employer plans. More specifically, as a group health plan, that makes it a type of multiple employer plan referred to as a multiple employer welfare arrangement or “MEWA.” So there it is! The one little acronym that can elicit all manner of big reactions. MEWAs have a troubled past, to put it mildly, going back to at least the 1970s. A common scenario kept arising where unrelated employers pooled funds for typically self-funded health coverage (perhaps at the recommendation of a promotor) only to find that when it came time to pay significant claims there were little to no funds available. There were issues with promotors charging large administrative fees, general fund mismanagement, failure to maintain adequate reserves, and even outright fraud. To many, the key problem was lack of proper regulation, particularly of self-funded MEWAs who often claimed that ERISA prevented state insurance law from regulating such plans. Congress responded with legislation in 1983 to specifically subject MEWAs to both federal AND state law. Since then some states have taken decisive action in this area. When states act, it is typically to institute requirements such as registration, annual reporting, minimum reserves and actuarial opinions and audits to assess fund solvency. California, for example, enacted substantial MEWA-related regulations going so far as to prohibit the formation of any new selffunded MEWAs after 1995. Other states have been slower to act, and we do still have some MEWA friendly states. But the bottom line is that MEWAs, particularly self-funded ones, are potentially subject to extensive regulation under both ERISA and state law which, depending on the state, may be robust or even insurmountable. Now that we have the historical background down, let’s turn to why a group of employers might want to form an association health plan or MEWA. The stated purpose of the new DOL rule, prompted by President Trump’s Executive Order on October 12, 2017, is to expand access to affordable health coverage. How does this structure, as a technical matter, further that goal? We need just a little more background to answer that question. When you have a MEWA, ERISA either applies at the plan level so that, in essence, the plan is

treated as a single employer plan or it applies at the employer level so that each participating employer is viewed as having its own plan. For ERISA to apply at the plan level to a MEWA, a bona fide association of employers must sponsor it and their “bona fide” status is generally determined based on a commonality of interest test. The new rules provide an alternate, easier path to be considered a bona fide association of employers so that ERISA applies at the plan level. For example, the new path allows for employers, including some sole proprietors, in same trade, industry, line of business or profession or that have a principal place of business within same state or metropolitan area to meet these requirements. Also, an association may be formed for the primary purpose of offering insurance so long as it also has at least one substantial business purpose that is not related to that purpose. If ERISA applies at the plan level, then all of its requirements, such as the Form 5500 filing, plan document and summary plan description (SPD) requirements, can be satisfied at the plan level. Contrast this with the opposite scenario where each employer is considered, in effect, to maintain their own plan and must separately satisfy applicable ERISA requirements. Perhaps the most significant advantage of ERISA applying at the plan level is that the combined employee count of all participating employers determines whether the small or large insurance market rules apply. Hence, small employers grouping together under these new rules can possibly access the more favorable large employer market potentially avoiding the community rating rules and the requirement to provide an essential health benefits package. Plus they may benefit from increased bargaining power in the marketplace. At last we have reached the answer! The new association health plan rules provide an easier path for employers to group together in a MEWA where ERISA applies at the plan level potentially allowing them access to more affordable coverage. But we cannot forget our history. Association plans are not new! They are MEWAs and, as such, carry a lot of baggage. Are MEWAs really the best protagonist for our story? Time will tell. Many groups, from carriers to insurance brokers to state authorities, are mobilizing to work with or against association health plans. One thing is for sure – it will be an interesting ride.

Stacey L. Stewart, Senior Advisor McGriff Insurance Service stacey.stewart@ mcgriffinsurance.com www.mcgriffinsurance.com

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reliability means ‘repeatabil-ity’ or ‘consistency.’ A measure is considered reliable if it would give us the same result over and over again; assuming that what we are measuring is unchanged.”

Reliable Leadership The Influence of Details

Seven behaviors are easily identifiable and worth considering in the quest to become a reliable leader. Trustworthiness—Do you consider yourself a trustworthy person? Many criticize political leaders, news commenta-tors, our children’s teachers, and so on, for lacking trustworthiness. Despite the area of life, dedicated leaders model the words they speak again and again. A loyal devotion is part of their makeup, and approachability is a direct result of the fact that they can be trusted with matters of large or small proportion.

By PAUL VITALE

“It’s all in the details,” or at least that is what I have been told my entire life. It is not the mountain; it’s the tiny grains of earth that make up the mountain that really count. When exercising a Google search for examples that speak to the significance of details, you are likely to find pages and pages of interesting dialogue. Hemingway coined a quote that is quite resounding, “Every man’s life ends the same way. It is only the details of how he lived and how he died that distinguish one man from another.” In a world where everyone seems to be looking for the next “big thing,” it’s the smaller happenings that are so often overlooked. Recently, I had the distinct pleasure of presenting during a “Year Beginning Meeting” to associates at Walmart. Prior to arriving in Bentonville, Arkansas, I sat down with the book, Made in America, written by the company’s founder, Sam Walton. A wealth of sound knowledge and intriguing history was shared throughout, but I found myself most engrossed in Sam’s ten rules for building a business. Traits including commitment, communication, motivation, and sharing were all at the forefront of this remarkable man’s philosophy. When dissecting all ten, it was quite obvious that a detailed approach, along with reliable follow through, made the rules more than just a handful of slogans; they were methods on how to prevail for the long-term. They were strategies of a reliable leader. Regardless of whether it is the founder of the world’s largest employer, an assembly line employee who works countless overtime hours, an elementary schoolteacher who tutors students on weekends, or a carpenter building homes in the next subdivision; possessing the ability to be depended on to handle details consistently is a key attribute in steadfast leaders. Reliable leadership today is just that—individuals who can be counted on under routine circumstances as well as during unfavorable or unexpected situations. When asked, “What is Reliability?”, Kendra Cherry, author of The Everything Psychology Book, gives this answer: “Reliability refers to the consistency of a measure. The Research Methods Knowledge Base supports this response in its own theory of reliability. In research, the term

Reliable leadership today is just that— individuals who can be counted on under routine circumstances as well as during unfavorable or unexpected situations. 30

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Dependability—Those who lead others well exercise one critical action: They show up. Not only once in a while, but all the time. Their names are often called because others can depend on them. Why is dependability so crucial and do you consider yourself dependable? Businessman Floy L. Bennett once remarked, “Dependability is more important than talent. Dependability is a talent, and it is a talent all can have. It makes no difference how much ability is possessed if we are not responsible and dependable.” Commitment—No other word means as much in the realm of leadership. Commitment is defined as simply being dedicated to a cause or activity. From warriors, coaches, and parents, to presidents and prime ministers, the utterance of the word commitment spells “gut-check” time. Regardless of where the commitment lies, ask yourself: Is it sound or does it waver; is it built on truth or is it pretentious? Even though they often find themselves stretched too thin, influential people are faithful to a cause and see it through, start to finish. When you commit, do you bring your best? Empowerment—Negativity is often one of the primary culprits that burden individuals at home, within their communities, and in the workplace. Empowering others with the choice to find the optimism in any given situation is a practice that is employed by strong leaders. Through a sincere and steady approach, those in charge communicate empowerment by encouraging people, both verbally and nonverbally. Are you willing to be the lightning rod for others? Respectfulness—Countless examples of disrespect can be seen in any corner of the world. According to the American Psychological Association, incivility is a growing problem, and one of the places where it becomes “toxic” is at work. Is

extending respect to others part of your daily routine? Researcher Jennie Trudel of Indiana Wesleyan University-Marion discovered that 75 to 80 percent of people have experienced a lack of respect from a fellow colleague at some time. Forty-one states now have anti-bullying laws due to the fact that 71 percent of American students report incidents of bullying as a problem in their schools (National Education Association). Those who lead strong live strong; and respectfulness toward others plays a major part in positive outcomes. What begins at home spreads throughout the landscapes of everyday life, and leaders who influence others realize how habit-forming home practices can become, especially in regard to respect.

like depend-ability, the experience of effective leaders is maximized when things must be accomplished in a timely and accurate manner, and when the ability to avoid errors is of the essence.

Flexibility—Making any type of modification can feel uncomfort-able and awkward; yet, being able to implement this strategy is essential to overall achievement. Is adaptability one of your strengths? When asked about the significance of change in his own life, Steve Jobs, the founder of Apple, once said, “For the past 33 years, I have looked in the mirror every morning and asked myself: ‘If today were the last day of my life, would I want to do what I am about to do today?’ And whenever the answer has been ‘No’ for too many days in a row, I know I need to change something.” Through their inherent ability to listen and learn, those who lead others to new heights do so by making the necessary adjustments when a change is required.

A leader establishes his or her steadiness in the details. Each time trustworthiness, dependability, commitment, and empowerment are exercised, along with respectfulness, flexibility, and accuracy; the foundation of reliability grows stronger.

Accuracy—When your name is called, can you be counted on for your accuracy? The responsibility that is shouldered by the masses is of great weight. Nonetheless, accuracy as it relates to all areas of life is monumental. From being on time for a parent-teacher conference, to making a sales pitch without any errors, accuracy is another characteristic that breeds confidence in the minds of those being lead. Much

If you ask me, the speed of each passing day has only increased. Practicing reliable leadership is more important today than ever before. At a time in our history when technology continues to be amped up, lawmakers are struggling to find compromise, the economic recovery isn’t yet where we hope it to be, gun violence is prevalent on the streets, and common courtesy is lacking in our schools; reliable leaders are imperative.

Legendary basketball coach John Wooden once said, “It’s the little details that are vital. Little things make big things happen.” In the end, it’s the basic fundamentals that separate the reliable from the unreliable…the influence of details. ©Paul Vitale—President of Matt Birk and Company, LLC, Paul is a professional speaker and author based in Arkansas. He travels the globe presenting seminars and keynote presentations to various organizations while contributing content to regional and national publications. For additional information, visit mattbirkandcompany.com or call 501-626-2630.

Paul Vitale, President Matt Birk and Company, LLC pvitale@paulvitale.com www.mattbirkandcompany.com

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Employers, Healthcare and Economic Development in Mississippi By MURRAY L. HARBER For many HR Professionals we look at health benefits and healthcare as a cost which continues to rise year over year. However, company leadership also sees the core business of generating revenue, providing jobs, and supporting the communities where their business is conducted as key to longevity and continued economic growth. When companies look to start or expand in Mississippi, they look at many factors including the economic climate, the educational and workforce development system, and the quantity and quality of the healthcare system. Healthcare is an economic development lever to attracting and retaining industry in any state. This year, the Annual Healthcare Summit presented by the Mississippi Business Group on Health along with the Mississippi College School of Business will merge with the Governor’s Healthcare Economic Development Summit. This event occurs every five years, which is presented by the Office of the Governor Phil Bryant and the Mississippi Economic Council’s Healthcare Solutions Institute. The event, which will be held on August 16th, will show the collaboration between many of Mississippi’s organizations and companies who are working together to improve the economic growth and the overall health and wellbeing of all Mississippians. There is a great line up of speakers who will share information on how economic development works, employers who have shown best practices in employer health, local and national healthcare leaders along with the release of a landmark economic impact study on the Mississippi Gulf Coast. We expect over 500 participants at this year’s event, which will be held at the Jackson Convention Complex. To find out more about the event including sponsorship and registration, visit healthcaresolutions.ms.

ECONOMIC DEVELOPMENT In Mississippi, Governor Phil Bryant has been pushing healthcare as an economic driver in the state during his tenure. He has led the development of healthcare zones to stimulate innovation where he often quotes that for every new doctor in the state, there is a $2 Million dollar affect in economic impact. Governor Bryant will be the morning keynote where his will share his vision of healthcare as an economic development driver and the results during his tenure as Governor. Darin Buelow of Deloitte Consulting LLP will share how economic development works to bring innovation and new industries into a state. Tray Hairston, J.D., of Butler Snow will share the information of a landmark economic development study on “An Invest in Health and Economy of Mississippi and the Gulf Coast”. This year’s Summit will showcase how we have been engaging the business and medical communities in the common goals of growing the health care industry in Mississippi to increase access, improve outcomes and create more employment and economic opportunities for residents. Phil Bryant, Governor, State of Mississippi

EMPLOYERS IMPROVING HEALTH Employers not only boost the economy, they provide salaries and benefits for their employees and their families. Employee health and wellbeing is an important aspect to an employer as they affect the employer in absenteeism, productivity, and total health costs. Many companies across Mississippi are providing their employees and their families with information, resources, and programs to improve health, health consumerism, and the use of the medical system. 32

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The Mississippi Business Group on Health is leading the charge in helping employers offer evidence-based best practice approaches. The MSBGH builds collaborations with other organization to educate and inform employers across the state on these approaches. At the Summit, several of Mississippi’s Healthiest Workplace Award winners who are also MSBGH members will share their stories and approaches. Billy Sims, SVP from Southern Farm Bureau Life Insurance, Edmond Hughes, VP of Administration and Human Resources for Ingalls Shipbuilding, and Jim Brown, First VP and Benefits Manager for Trustmark National Bank, and will serve on a panel and discuss their programs and why employer health is an important aspect of economic growth and development. Bringing together business leaders and healthcare providers highlights the importance of healthcare as an economic driver, as well as the vital need for a healthy workforce in Mississippi.” Scott Waller, CEO Mississippi Economic Council

HEALTHCARE SOLUTIONS In Mississippi, health systems are some of the largest employers. They also deliver care to all Mississippians and play a key role in the health of our state and the state’s economy. Dr. Clay Hays, Cardiologist from Jackson Heart who is also the Chair of the MEC’s Healthcare Solutions Institute will kick off the day at the event. He will share his views on the importance of healthcare as a driver of economic development. He has assembled an outstanding group of national healthcare leaders including Barbara L. McAneny, M.D., Oncologist and current President of the American Medical Association along with James Young, M.D., the Chief Academic Officer of the Cleveland Clinic who will present on the importance of healthcare workforce development and the National Diabetes and Obesity Research Center on the Mississippi Gulf Coast. There are several other speakers who will discuss the healthcare workforce development including Dr. James Turner, Dean of the William Carey Medical School and Kim Hoover, Dean of the Nursing School at UMMC. Physicians, nurses, and hospitals are tasked with taking care of the people of our state. This requires an economic investment in our communities both large and small. The 2018 Governor’s Healthcare Economic Development Summit will provide examples of how medicine is an economic driver. Clay Hays, M.D., Chair, Mississippi Healthcare Solutions Institute

This 2018 Governor’s Healthcare Economic Development Summit will bring together many business executives, healthcare leaders, government officials, and many who are in the economic development space together to share the many success stories in Mississippi. The future is bright on building a stronger economy in Mississippi with healthcare and employers working together to foster a culture that supports health and business development. Do not miss out on this Landmark event! We hope to see you there.

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

SAVE THE DATE

Thursday, August 16, 2018 8:00am-1pm Jackson Convention Complex healthcaresolutions.ms

Hosted by Governor Phil Bryant FOCUSING ON: Economic Development Collaborative Health Care Workforce Readiness Mississippi Employer Panel Tomorrow’s Health Care Panel

Sponsorship Opportunities

Presenting Sponsor $ 10,000

Executive Sponsor $ 5,000

• Company Logo Prominently Displayed in Lobby • Governor’s Reception and Signage • Company Logo in Event Program • Reserved Priority Luncheon Table (two tables of 8) • Company Booth Space (optional)

• Company Logo Prominently Displayed in Lobby • Governor’s Reception and Signage • Company Logo in Event Program • Reserved Priority Luncheon Table (table of 8) • Company Booth Space (optional)

Company Booth Space Available

Visionary Sponsor $ 2,500

Strategic Sponsor $ 1,000

• Company Name Listed in Event Program • Sponsor Signage • Reserved Priority Luncheon Table (table of 8)

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To sponsor, visit healthcaresolutions.ms

Co-hosted by Office of Governor Phil Bryant, Mississippi Economic Council, Mississippi Business Group On Health, Mississippi Development Authority & Mississippi State Medical Association

601-969-0022 • To sponsor, visit healthcaresolutions.ms www.HRProfessionalsMagazine.com

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

Christina Broxterman

MANAGING S HA RE HO L D E R | M E M P H I S

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.”

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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.

Bill Gray

John Morrison

AT LANTA

AT L AN TA

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. In recent years Bill has assisted employers who have received, or are potentially liable for, large claims from multiemployer pension plans.

Johnâ&#x20AC;&#x2122;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.

Ruth Anne Collins Michels

Robert Ellerbock

AT LANTA

B I R M I N G H AM

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.

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.

Dwayne O. Littauer 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.

SH AR E H O L DER | N E W O R L EAN S

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.

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Timothy F. Kennedy C O UN SEL | M E M PH I S

FordHarrisonâ&#x20AC;&#x2122;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.

Tim Kennedy focuses his practice on advising clients on legal issues pertaining to retirement plans, health and welfare benefits, executive compensation arrangements, and fringe benefits. His experience includes assisting employers in complying with the Internal Revenue Code and ERISA and advising employers on best practices in the design, implementation, and administration of employee benefit plans. Tim routinely drafts and reviews employee benefit plans and executive compensation arrangements, negotiates employee benefit plan service provider agreements, prepares Internal Revenue Service determination letter filings and voluntary compliance program submissions, and counsels employee benefit plan fiduciaries on their duties under 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 FordHarrisonâ&#x20AC;&#x2122;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 Arkansasâ&#x20AC;&#x2122; 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.

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.

Susie Bilbro

Fritz Richter

COUNSE L | NA S HV IL L E

M E M B E R | N ASH VI L L E

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 MEMBE R | NA S HV IL L E

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.

Curtis Fisher

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 â&#x20AC;&#x201C; all focused on helping employers navigate complex government regulation.

David Thornton M E M B E R | M E M PH I S

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 ASSO C I AT E | N ASH V I L L E

MEMBE R | NA S HV IL L E

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.

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.

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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: Americaâ&#x20AC;&#x2122;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 ER | 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: Americaâ&#x20AC;&#x2122;s Leading Lawyers for Business, Labor and Employment: Employee Benefits and Compensation and selected by attorney peers for inclusion in Mid-South Super Lawyers.

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. 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) plan) 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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Wesley E. Stockard SH AR E H O L DER | AT L AN TA

Littler is nationally recognized for taking a practical solutionsoriented 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.

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.

Shella B. Neba SHAREHO L D E R | ATL A NTA

Shella B. Neba represents and counsels employers in a broad range of employment matters arising under federal and state law. She concentrates her practice in the areas of employment litigation, employee benefits, and employment practices audits. Her litigation practice includes cases involving, discrimination and harassment in the workplace, civil rights matters, wage and hour compliance, and violations of employment statutes. In her employee benefits practice, she counsels employers and management regarding compliance with Consolidated Omnibus Budget Reconciliation Act (COBRA), Health Insurance Portability and Accountability Act (HIPAA) and Employee Retirement Income Security Act (ERISA).

Richard W. Black SH AR E H O L DER | AT L AN TA

Rich Black is an experienced employment litigator who focuses on representing employers in complex employment litigation matters, including class and collective actions in the wage and hour, employment discrimination, and ERISA breach of fiduciary duty areas. Rich’s practice also focuses on advising employers with respect to compliance measures that reduce wage and hour disputes and other employment-related issues. Rich has advised and defended a wide range of employers in putative class and/or collective action matters, including employers in the retail, technology, financial services, computer services, communications, energy, pharmaceutical, construction, hospitality, travel, and transportation industries.

Amber Wilson Bagley 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.

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DI R E C T O R | L I T T L E R O C K

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.

EVP-MBJ-QtrPg-Mech-v2.pdf

Evans Petree PC was founded over 100 years ago and is a full-service law firm composed of 49 attorneys. The firm represents a diverse local, national and international clientele. Evans Petree PC offers counsel in a wide variety of practice areas including corporate, private equity/transactional, real estate, banking, construction, litigation, employment law, private client, tax planning, wills and estates, health care, family law and employee benefits. The attorneys in the employee benefits group work closely with management, business owners, accountants, actuaries, financial advisers, and other professional consultants to achieve a comprehensive, effective, and efficient result for compensation and employee benefits issues for all types of entities and employers, ranging from large to small, including governmental employers, tax-exempt employers, and private employers. Our team provides representation to myriad benefit plans, including retirement plans, health plans, deferred compensation plans, and other postemployment benefit plans and trusts (OPEB).

11/2/16

2:44 PM

More than experience. More than advocacy.

MORE THAN L AW.

Frank N. Stockdale Carney SHAREHO L D E R

Mr. Carney's practice is grounded in federal, state, and local tax codes and regulations. He works directly with clients in employee benefits, tax planning, and estate planning. He understands the need to navigate these complex laws while providing options for each unique situation. His practice areas include but are not limited to the following: • Employee and welfare benefit plans of private, tax- exempt, and governmental employers • Other post-employment benefit trusts • Executive compensation • Corporate and individual tax planning • Estate planning • State and local sales and corporate franchise/excise taxes • Health law Mr. Carney is a member of the American, Tennessee, Memphis and Shelby County Bar Associations, American Society of Pension Professionals and Actuaries, National Association of Public Pension Attorneys, National Association of Bond Lawyers, and the NHLA/ AAHA American Health Lawyers Association. He is AV-rated by Martindale-Hubbell. Mr. Carney was recently selected by his peers for inclusion in The Best Lawyers in America 2018 in the fields of Employee Benefits (ERISA) Law, ERISA Litigation, and Tax Law for the ninth year.

E VA N S P E T R E E . C O M

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The Big Question: When Will Medical Marijuana Be Available?

Medical Marijuana in Arkansas: Stumbling Toward 2019 (or Beyond) By STUART JACKSON

When the voters of Arkansas passed the Arkansas Medical Marijuana Amendment in November 2016, employers were not quite sure how to deal with the issue. Many questions were being asked, including a) would all Arkansas employers be covered, b) what rights and protections would employers have, and c) when would medical marijuana be available? The passage of Act 593 by the General Assembly in 2017 provided some answers, but it only went so far. The biggest question now – timing – is in the hands of the Arkansas Medical Marijuana Commission, the courts and possibly a soon-to-be named outside consultant.

Act 593 Clarified Employer Obligations Regarding Medical Marijuana In early 2017, the General Assembly passed and Governor Hutchinson signed into law Act 593, which provided significant protections for employers (now specifically defined as those with 9 or more employees in Arkansas), including: 1. A llowing employers to have and enforce drug-free and substance-abuse testing policies that apply to both applicants and employees; 2. P ermitting the discipline of an employee if there is a good faith belief that he or she used or possessed medical marijuana on site or during work hours in violation of an employer’s policy; 3. P ermitting the discipline of an employee if there is a good faith belief that he or she was under the influence of medical marijuana on site or during work hours in violation of an employer’s policy; and 4. A llowing an employer to exclude a person (an employee or an applicant) from a safety-sensitive position if there is a good faith belief that person is a current user of medical marijuana. Be sure to note the difference between simply being a current user and actually being under the influence at work – a current user might never be under the influence at work. But, a word of caution -- just because one has the right to do something under the protections added by Act 593 doesn’t necessarily mean that one should. With the mix of state and federal employment-related issues swirling around medical marijuana, employers need to be very careful how they treat employees with a medical marijuana card. For example, anyone possessing a medical marijuana card may very well have a disability covered by the Americans with Disabilities Act and the Arkansas Civil Rights Act. Kneejerk personnel decisions will not serve employers well. 42

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When the Amendment first passed, many thought medical marijuana would be available to Arkansans by the end of 2017. As the complexity of the issues became apparent, that timeline was pushed back to early 2018, and then mid-to-late 2018. Now, with court challenges raging and the Arkansas Medical Marijuana Commission contemplating the possibility of hiring a consultant to score applications, the best answer seems to be, “Who knows?” The courts got involved in a big way in March 2018 when a Pulaski County Circuit Court Judge concluded that the Commission’s licensing process and decisions relating to the pending award of five cultivation facility licenses “violated Amendment 98 to the Arkansas Constitution . . . violated due process of law, resulted from improper procedure, and were arbitrary and capricious.” The Arkansas Supreme Court reversed that decision, basically finding that the plaintiffs jumped the gun by filing their complaint too early. See Arkansas Department of Finance and Administration, et al., v. Naturalis Health, LLC, et al., No. CV-18-356 (Arkansas Supreme Court June 21, 2018). But, the most interesting part of the Supreme Court’s opinion was Chief Justice Kemp’s concurring opinion, which (although short) packed a powerful punch: This court will not rewrite administrative-agency rules, nor will it substitute its judgment and discretion for that of the agency. See, e.g., Wright v. Ark. State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992). The court may, however, reverse an agency decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are in violation of constitutional provisions or made upon unlawful procedure. See Ark. Code Ann. § 25-15-212(h)(1), (3) (Repl. 2014). The MMC has a constitutional duty to adopt rules necessary for its “fair, impartial, stringent, and comprehensive administration” of the Arkansas Medical Marijuana Amendment. See Ark. Const. amend. 98, § 8(d)(3). I urge the MMC to review its rules and procedures and to cure any deficiencies. (emphasis added). The Commission decided to forge ahead with the five original picks for the cultivation facilities, although complaints and protests concerning those five picks have been turned over to the enforcement arm of the state’s Alcohol Beverage Control division for “investigation and, if warranted, adjudication by ABC.” This had already been in the works since the Commission has no real mechanism to investigate complaints, but stay tuned – things could get even more interesting if one of the successful cultivation applicants is disqualified. Additionally, during its July 12 meeting, the Commission considered the possibility of hiring an outside consultant to score the 203 pending dispensary applications for the 32 available licenses, and in fact asked the state’s Legislative Council to approve a rule to allow it to do so. The Legislative Council approved the rule on July 19. Despite this new rule, the Commission is not totally convinced that an outside consultant is the way to go – at least one Commissioner seemed inclined to go forward with the Commission scoring the applications itself.

Where does that leave things? With more legal challenges to the award of the cultivation licenses proceeding and the possibility of an outside consultant being hired to score the applications for dispensary licenses, the whole process is stuck in neutral. Medical marijuana isn’t going to be available in Arkansas any time soon -- probably not until sometime in 2019.

Planning for Medical Marijuana Even though medical marijuana probably won’t be available in Arkansas until 2019 or beyond, start planning now – it’s going to get here eventually. Here is a list of things to do: 1. Take a hard look at your written job descriptions, especially the ones you consider to be safety-sensitive. Update them as needed and be sure to indicate in writing which ones are in fact safety-sensitive. But, don’t lose your common sense when determining whether a job is safety-sensitive. 2. F or truly safety-sensitive positions, make it a requirement that an applicant or employee disclose to your HR Manager that he or she is using medical marijuana. The timing of the disclosure for applicants could be tricky – we suggest after a conditional offer of employment has been made. 3. M ake sure your handbook is up-to-date and include in it prohibitions against the use and possession of medical marijuana at work or during work hours (if you so choose) and being under the influence of medical marijuana at work or during work hours. 4. Talk to your MRO about how positive tests for marijuana will be reported if the person tested (an applicant or employee) has a medical marijuana card. 5. D on’t lose sight of the fact that other employment laws, like the Americans with Disabilities Act, the Family and Medical Leave Act and the Arkansas Civil Rights Act, may come into play not because of the use of medical marijuana, but because of an underlying health issue. Once medical marijuana becomes available, Arkansas employers will be faced with all sorts of scenarios – from the long-time employee who is legitimately in need of medical marijuana to the employee who posts a video on Facebook of himself or herself using medical marijuana at home to whether a job is legitimately characterized as “safety-sensitive.” Mistakes in handling employee use of medical marijuana will result in lawsuits and the types of damages and costs one sees in discrimination litigation. Think through the various scenarios, make sure you understand the law, and be ready to make a level-headed decision on how to react. Stuart Jackson has been practicing in the labor and employment field for over twenty-five years and heads up the Labor & Employment Team at Wright Lindsey Jennings, and as of late has been focused on medical marijuana and wage and hour collective and class actions. You can contact him at wjackson@wlj.com.

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

SCOTUS Upholds Trump’s Travel Ban BY D AV I D S. J O N ES

Tuesday, June 26, 2018, The Supreme Court upheld President Trump’s most recent executive order implementing a travel ban from certain countries (“Travel Ban 3.0”). Travel Ban 3.0 applies to individuals from Libya, Iran, Somalia, Syria, Yemen, Chad, North Korea, and Venezuela. In upholding the ban, Justice Roberts, writing for the 5-4 majority, wrote "The Proclamation is squarely within the scope of Presidential authority." Many expected Travel Ban 3.0 to be upheld given the President’s wide authority on the subject and that it addressed the due process concerns raised by the first two bans and tried to steer clear of the “Muslim Ban” moniker applied to the prior bans by citing national security concerns and adding North Korea and Venezuela to the list.

Travel Ban 1.0 The original ban (“Travel Ban 1.0”), signed on January 27, 2017, banned entry for 90 days by individuals from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen, all Muslim-majority countries, indefinitely halted refugees from Syria, and halted the admission of all refugees to the United States for four months. Based on the ban’s application to Muslim-only countries and the President’s prior comments during the campaign about banning all Muslims, Ban 1.0 was seen as a “Muslim Ban.” Additionally, Ban 1.0 prioritized refugee claims by victims of religious-based persecution. This was interpreted as an exception for Christians, further suggesting that the ban was a “Muslim Ban.” The Trump administration also had provided inconsistent information on whether Lawful Permanent Residents would be covered by the ban, although the Department of Homeland Security had stated it would admit Permanent Residents on a case-by-case basis and subject them to a thorough security review. A federal judge in Massachusetts blocked a part of the ban on due process grounds, and a federal judge in Washington State later blocked the ban nationwide, finding that the President had exceeded his authority. The Ninth Circuit later upheld the Washington judge’s ruling. Rather than fight the courts, the Trump administration rescinded the travel ban and issued a new one. 44

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Travel Ban 2.0 Travel Ban 2.0 was signed on March 6, 2017, and applied to Libya, Iran, Somalia, Syria, Sudan, and Yemen; Iraq having been removed. Federal District Court Judges in Hawaii and Maryland immediately issued injunctions, preventing the ban from ever taking effect. The administration appealed and lost both rulings before the Fourth and Ninth Circuits, respectively. The Fourth Circuit held that the ban violated the First Amendment’s establishment clause, stating that the ban "continues to exhibit a primarily religious anti-Muslim objective." The Ninth Circuit held that the order exceed Presidential authority. The administration appealed to the Supreme Court, which allowed a limited part of the ban to go into effect on June 26, 2017. Justices Thomas, Alito and Gorsuch, dissented on the grounds that the Supreme Court did not go far enough in lifting the injunctions. Thomas also expressed concern that the "court's remedy" would "prove unworkable." Specifically, the Supreme Court’s remedy was to allow the 90-day travel ban on individuals from the listed countries, but with the qualification that the ban could not be applied to those individuals who can demonstrate “a bona fide relationship to a close family member or entity in the United States.” The Supreme Court did not, however, define “close family member,” which was interpreted by the administration to include only grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, and sisters-in-law. Fiancés were initially not included in that definition, but the administration later added them to the exemption. On July 13, 2017, the same Federal Judge in Hawaii held that the administration’s definition was unduly restrictive and expanded the definition of close family member. The Ninth Circuit upheld that decision on September 7, 2017, and the administration then filed a motion with the Supreme Court, asking for clarification on its ruling regarding the exception for “close family member[s].” The Supreme Court declined, leaving the Hawaii District Court injunction in place and as a result, the broader definition of close family member. On October 11, 2017, the Supreme Court dismissed as moot the cases regarding Travel Ban 2.0 since they had already expired.

Travel Ban 3.0 With the expiration of Travel Ban 2.0, the Trump Administration issued Travel Ban 3.0. Unlike the first two bans, Travel Ban 3.0 has no expiration, but also does not include refugees. The administration justified the eight countries on the list based on national security grounds such as not sharing

sufficient information on their citizens, not cooperating on immigration matters, or having ties to terrorism. While the order expands the ban to non-Muslim countries, for Venezuela, it only applies to government officials and their families, and as a general rule, North Koreans do not travel to the United States because of existing sanctions and lack of diplomatic relations. Lawful permanent residents, dual nationals (i.e. those with a second nationality not on the list), and those holding a visa on October 18, 2017 (the effective date of the ban) were exempted in version 3.0. On October 17, 2017, the District Court in Hawaii issued a Temporary Restraining Order on the ban with respect to Iran, Libya, Syria, Yemen, and Somalia, but not North Korea or Venezuela. On the same day, the District Court in Maryland issued an opinion and preliminary injunction blocking enforcement of the ban on individuals from Iran, Libya, Syria, Yemen, and Somalia, who can establish that they have "a credible claim of a bona fide relationship with a person or entity in the United States." Later, on October 20, 2017, the District Court in Hawaii converted the temporary restraining order to a preliminary injunction. The Ninth Circuit then on November 13, 2017, issued a partial stay of the District Court in Hawaii’s preliminary injunction, allowing it to apply to individuals from Chad, Iran, Libya, Syria, Yemen, and Somalia who can establish that they have "a credible claim of a bona fide relationship with a person or entity in the United States" as was done in Maryland. On December 4, 2017, the Supreme Court of the United States stayed the preliminary injunctions issued by the District Courts in Hawaii and Maryland, allowing Travel Ban 3.0 to take effect pending appeal. No prior version of the ban had been permitted to go forward in its entirety. Subsequently, on December 22, 2017, the Ninth Circuit Court affirmed the injunction, but only with respect to foreign nationals who have a bona fide relationship with a person or entity in the United States. The Ninth Circuit also stayed its own order pending Supreme Court review.

purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices. The text says nothing about religion.” The Court also noted that “since the President introduced entry restrictions in January 2017, three Muslim-majority countries—Iraq, Sudan, and Chad—have been removed from the list….” The Court considered this evidence that the ban will remain in force only so long as necessary to ‘address’ the identified ‘inadequacies and risks….’” Lastly, the Court noted that the Executive Order “includes significant exceptions for various categories of foreign nationals…” and that it “creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants.” By contrast, the Dissent largely cited the religious animus towards Muslims as evidence of a First Amendment Establishment Clause violation.

The Future of the Ban The decision by the Supreme Court sends the case back to the Ninth Circuit, but the Court’s rulings make it unlikely that this and any further challenges will be successful. Additionally, any future bans with the same structure are likely also to be upheld. The Administration will reevaluate each country on the list every six months to determine whether to remove it from the list, but otherwise Travel Ban 3.0 is expected to stand for the foreseeable future.

David S. Jones, Regional Managing Partner Fisher Phillips djones@fisherphillips.com www.fisherphillips.com

Supreme Court’s Reasoning The Supreme Court heard oral argument on April 25, 2018 and issued its decision upholding the Executive Order on June 26, 2018. In a 5-4 opinion along “party lines,” the Court held that "The president has lawfully exercised the broad discretion granted to him under 8 U. S. C. §1182(f ) to suspend the entry of aliens into the United States." Specifically, §1182(f ) provides that:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. The Court found that the broad language of this regulation permitted the President’s executive order. The Supreme Court also declined to consider statements made by the President regarding a Muslim ban, finding that assuming it is permissible to “look behind the face of the Proclamation to the extent of applying rational basis review, [t]hat standard of review considers whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes.” The Court then found that “[t]he Proclamation is expressly premised on legitimate

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HOT TOPICS FOR 2018 SHRM Public Policy Initiatives Arkansas and Federal Legislation - What's Happened and What to Expect Arkansas Medical Marijuana Law in Motion Cybersecurity Employer Immigration Compliance - Hot Topics Preventing Violence in the Workplace KEYNOTE: Emily M. Dickens SHRM’s Chief of Staff

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Are employees the real disruptors?

Transparency is essential to a more balanced health care market and employers play a key role in demanding and using publicly reported information to drive disruptive change.

Traditional HR and benefits methods no longer meet the needs of your employees. You must create an agile, adaptive, constantly iterating approach to thrive.

Leah Binder, CEO, The Leapfrog Group

Maura Cawley, Partner, Mercer

Begging for PBM disruption? Smart employers aren't accepting double-digit increases in pharmacy costs but are building what works, holding plans and PBM's accountable, and challenging standard business practices. Carolyn Pare, President/CEO, Minnesota Health Action Group

Heather Sundar, Senior Vice President, Archimedes

Disruption in our own backyard?

Matt Harmon, Vice President, AutoZone

Dinesh Sheth, Founder/CEO, Green Circle Health

AutoZone and Green Circle Health are building a single HR benefits platform that puts AutoZoners in charge of their own health and all their benefits. This case study presents lessons learned and employee engagement and savings results that exceed expectation.

Want a healthier labor pool? Forward-thinking employers can develop community and neighborhood strategies to build a pipeline of productive workers. Alisa Haushalter, Director, Shelby County Health Department

Neil Goldfarb, President/CEO, Greater Philadelphia Business Coalition on Health

More speakers addressing disruption in health plans, care delivery & a trivia contest will be announced soon! www.HRProfessionalsMagazine.com

The CEO Next Door By WILLIAM CARMICHAEL

I venture to say that most of us at one time or another have met their organization’s CEO (Chief Executive Officer) and perhaps even had the opportunity to talk with him or her. And you likely came away with questions such as; what makes them different, what was their background, how do they spend their day, or what do they really focus on? The truth is, they are not so different from you or I but there is a tremendous difference in how they approach their role and the behaviors they exhibit. In The CEO Next Door: The 4 Behaviors that Transform Ordinary People into World-Class Leaders, authors Elena Botelho and Kim Powell provide a rare glimpse into exactly what these behaviors are.

What is Needed to be a CEO? Now obviously, not everyone can become a CEO and many of those with sufficient qualifications have no interest in accepting the responsibilities that are involved. The reality is that on average, the tenure of a CEO in a U.S. company today is about half what it was only 10-12 years ago. Reasons vary but most would agree that the business world today is more volatile, more uncertain, more complex, and more ambiguous than at any prior time that I can remember. Why then do some choose to lead organizations in such an uncertain time and what are the four specific behaviors that allow these individuals to excel? This is the question that Botelho and Powell ask and answer. From a database of more than 17,000 CEOs and C-suite executives, they analyzed over 2,600 leaders. They coupled this analysis with 13,000 hours of interviews and two decades of experience advising CEOs and executive boards to distill the common attributes of successful CEOs.

What are These Behaviors? Botelho and Powell focus on the “Four Genome Behaviors” that separate great leaders from the rest: great leaders are Decisive (they make fewer decisions, make them faster, and “get better every time”); great leaders Engage for Impact (they lead with intent, understand the players, and build relationships through routine); great leaders are Radically and Relentlessly Reliable (they embrace “the thrill of personal consistency,” set bold but realistic expectations, “stand up to be counted on,” and adopt the drills of highly reliable organizations); and finally, great leaders Adapt Boldly (they “ride the discomfort of the unknown,” respect but are not hostage to the past, and “build an antenna for the future”). Great leaders are women and men who hold themselves to very high standards for personal character and professional achievement. Only then can they hold others to the same very high standards. The feel-good message that resounds throughout this book is believable because it is counterintuitive. The book dispels literally every instinct one might have about elitist society, i.e., you need to decide you want to become a CEO at a young age, you need an Ivy League degree, or you need a flawless resume. As it turns out, many CEOs in real life did not take this path. This does not mean, of course, that there are no proven strategies that prepare you for leadership. According to The CEO Next Door, launching your career at the top is about a mix of going broad (earning generalist credentials) early in your career, going deep mid-career (building a set of measurable results that amount to a track record) and ultimately going high (making step-change moves and decisions about the context of your role and the needs of the organizational unit you are running that impact the whole organization). Botelho and Powell observe, “Every year we assess an additional 250 CEOs who are added to the data set. We are unaware of any other firm that knows as much about what CEOs do, how they got the role, and how they manage the daily grind, sweat, and tears.” 48

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Both authors contend, “Here’s the key: Becoming a CEO isn’t necessarily about background or good fortune. It’s about performance, about behaviors that most of us can master with hard work, close attention, and techniques [the HOW] we share in this book.” Presumably they agree with me that great leaders are not deities and well aware of that. They master the “Four Genome Behaviors” over time and help others to do so. And they will be the first to point out that they cannot succeed without associates who personify the same behaviors. They recognize and practice the wisdom of an African proverb: “To go fast, go alone. To go far, go together.”

Structure and Layout The CEO Next Door consists of 11 chapters divided into three sections. The first hundred pages deal with the book’s leading question. Then come 60 pages on how to get a CEO job and 80 pages on navigating the challenges of the role. I commend Botelho and Powell on their skillful use of several reader-friendly devices that include uniquely relevant quotations and mini-commentaries as well as bullet point checklists and “Key Takeaways” sections at the conclusion of each chapter. These devices will facilitate frequent review of key material later. I also recommend keeping a lined notebook near at hand while reading the book in order to record comments, questions, and page references.

Who Will Benefit Most from This Book? Senior Human Resource Professionals, Senior Management

About the authors: ELENA L. BOTELHO grew up in Azerbaijan and Russia in a family of mathematicians and earned her MBA from Wharton. She has advised more than 200 CEOs and boards over nearly two decades, first as a strategy consultant at McKinsey and currently as a partner at jhSMART and Yoda for CEOs. KIM R. POWELL grew up in Atlanta, Georgia, and earned a BA from the University of Notre Dame and an MBA from the Kellogg School of Management. For nearly twenty years, Kim has applied her passion for helping people to her role as a trusted advisor to CEOs and high-potential leaders, first at the Boston Consulting Group and now at ghSMART.

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

Featuring Opening Session Keynote on s t r e b o R e n n a Je Featuring Final Session Keynote nd a l e p o C e e m i A

25th Georgia Safety, Health & Environmental Conference https://www.georgiaconference.org/

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SHRM-Memphis Chapter Meeting DoubleTree Hotel June 19, 2018

1 Judy Bell, Judy Bell Consulting, was the speaker at the June SHRM-Memphis Chapter meeting. Her topic was â&#x20AC;&#x153;Succession Planning and Leadership Development.â&#x20AC;? 2 Kathy Tuberville welcomed attendees. 3 Sylvia Joure introduced the meeting sponsor. 4 Tyler Stegall announcing the July meeting, HR Connect

5 David Estel, Julie Henderson, Mark Stuart 6 Robin Robinson, Miranda Griffin, Lisa Shurden

7 Latrice Freeman, Chrissy Jacks-Barrett, Talma Crawford, Chris Van Hecken 8 Beth Sicillano, Danielle Tudor, Andy Campora 9 Shiv Malhotra, Shelley Kemp

10 Attendees 11 Vaco Memphis was the sponsor of the June meeting. 12 Audience 50

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SEPT. 19-21, 2018 | WILDERNESS AT THE SMOKIES

Registration Open NOW! Go to tnshrm.org KEYNOTE SPEAKERS

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Sevierville Convention Center, Sevierville, TN $99 per night “SHRM/TN Conference” 877-325-9453

Is Your Organization Guilty of Immigration-Related Discrimination? By BRUCE E. BUCHANAN

The Immigrant and Employee Rights Section (IER) of the Civil Rights Division of the Justice Department reached settlements with three companies in the past few weeks over discrimination claims under the Immigration and Nationality Act’s (INA) antidiscrimination provision, which makes it unlawful for an employer to discriminate against an individual in the recruitment and hiring process based on citizenship status, unless authorized by law.

TRIPLE H SERVICES SETTLEMENT IER reached a settlement agreement with Triple H Services LLC, a landscaping company, resolving an investigation into whether Triple H discriminated against qualified and available U.S. workers based on their citizenship status by preferring to hire temporary workers with H-2B visas. The IER’s investigation found that although Triple H went through the motions of advertising over 450 landscape laborer vacancies in five states, it did so in a manner that misled U.S. workers about the available positions and prevented or deterred some from applying. The IER found Triple H did not consider several qualified U.S. workers who applied for positions in Virginia during the recruitment period, instead it hired H-2B visa workers. In several states where jobs were available, Triple H prematurely closed the online job application process for U.S. worker applicants, filled positions with H-2B visa workers without first advertising the jobs to U.S. workers in the relevant locations, or advertised vacancies in a manner that did not make the postings visible to job seekers using state workforce agency online services. The IER concluded Triple H effectively denied U.S. workers access to jobs based on its preference for hiring temporary H-2B visa workers to fill the positions. The Justice Department touted this settlement agreement as part of the Division’s Protecting U.S. Workers Initiative, which is aimed at targeting, investigating, and taking enforcement actions against companies that discriminate against U.S. workers in favor of temporary visa workers. Acting Assistant Attorney General John Gore said, “The Department will continue to fight to ensure that U.S. workers are not disadvantaged because of their citizenship status.” Under the settlement, Triple H must establish a backpay fund, with a cap of $85,000, to compensate certain individuals who were harmed by its practices; pay $15,600 in civil penalties to the U.S. government; engage in enhanced recruitment activities to attract U.S. workers; train its Human Resources personnel on their legal obligations to not discriminate by viewing a free online IER webinar presentation; and be subject to departmental monitoring and reporting for a three-year period. 52

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SETPOINT SYSTEMS SETTLEMENT Setpoint Systems Inc. an Ogden, Utah, engineering company, resolved an investigation by IER, which found that from 2015 to 2017, Setpoint Systems had an unlawful policy of hiring only U.S. citizens for professional positions and refusing to consider otherwise qualified non-U.S. citizens based on the company’s erroneous understanding of the International Traffic in Arms Regulations (ITAR). ITAR regulates specific exports of defense articles and services and limits the access of certain sensitive information to U.S. citizens, U.S. nationals, lawful permanent residents, asylees, and refugees. ITAR does not authorize employers to only hire U.S. citizens. Under the settlement agreement, Setpoint Systems will pay $17,475 in civil penalties to the United States for the alleged unfair immigration-related employment practices; ensure all job advertisements have been reviewed by legal counsel or an employee who is trained on anti-discrimination laws; and be subject to departmental monitoring and reporting requirements for three years.

J.C. PENNEY SETTLEMENT J.C. Penney Corporation, Inc. settled two investigations by the IER concerning whether it unlawfully rejected a lawful permanent resident’s valid work authorization documentation and whether it unlawfully reverifying the work authorization of a certain non-U.S. citizens. The first investigation was prompted by a lawful permanent resident’s charge alleging J.C. Penney violated the INA’s anti-discrimination provision when J.C. Penney fired her in August 2016. The investigation found J.C. Penney had improperly rejected the worker’s unexpired Permanent Resident Card as proof of her work authorization. The second investigation found J.C. Penney had unlawfully reverified the work authorization of certain non-U.S. citizens solely based on their citizenship status, even though those non-citizens had presented the same type of valid work authorization documents as U.S. citizens when first hired. The IER also found J.C. Penney unlawfully requested specific immigration documents from certain workers during the process of reverifying their work authorization because of their immigration status. Among other things, the INA prohibits employers from (1) rejecting valid work authorization documents, (2) limiting a worker’s choice of documentation to present for employment verification or reverification purposes, and (3) subjecting employees to different or unnecessary documentary demands, based on the employee’s citizenship, immigration status, or national origin. Under the terms of the settlement, J.C. Penney will pay a civil penalty of $14,430 to the United States; pay

$11,177.60 in back pay to the worker who filed the charge; require HR personnel to take an open book multiple choice test on the I-9 process; honor employees’ documentation that appears genuine and relates to the person; not request more of different documents than required by law; and be subject to departmental monitoring and reporting requirements for two years.

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

TAKEAWAYS IER continues to be busy investigating and settling charges of immigration-related discrimination. If the discrimination is against U.S. citizens, the IER and the Justice Department will be touting it as an example of its initiative under the Buy American, Hire American Executive Order. Furthermore, the IER continues to be creative in its settlements. As an example, HR personnel at J.C. Penney will be required to pass a test. For answers to many other questions related to the IER and immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at http://www. amazon.com/dp/0997083379.

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Greater Memphis Employee Benefits Council Meeting Crescent Club Memphis

July 12th, 2018

(L-R) Donna Winfrey, Linda Yoakum, (behind Donna Winfrey,) Preston Cox, Antoinette Wiseman, Frank Carney, Speaker; Sponsor, Scott Barnes; Lu Harvey, Don Lamb, Russell Hendricks, Linda Tripp in front of Don Lamb. Frank N. Stockdale Carney, attorney with Evans Petree, was the guest speaker at the July meeting of the Greater Memphis Employee Benefits Council. His practice is grounded in federal, state, and local tax codes and regulations. He works directly with his clients in employee benefits, tax planning and estate planning. His topic was, “Employee Benefits Hot Topics Overview.” See more about Frank N. Stockdale Carney on Page 41.

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Photo: Getty Images

Five Emotionally Intelligent HR Policies Your Work Culture Will Suffer Without Anthony Bourdain CNN Host of Parts Unknown

By HARVEY DEUTSHENDORF

Recently we were shocked by the suicide of celebrity chef, author and host of popular CNN Series Parts Unknown, Anthony Bourdain. The way CNN handled the loss is a master lesson on emotional intelligence in the workplace. Regular programming was halted in order to do a tribute to Anthony and allow his coworkers and friends to share memories of him and publicly grieve. This brought light to the alarming trend, that as a society we have trouble dealing with. The suicide rate jumped 24% between 1999 and 2017 and now accounts for 1 in 7 deaths for males and 1 in 14 for females. Another alarming trend is the rate of opium addictions talked about in https://www.fastcompany.com/40478377/i-lost-my-brother-to-opioid-addiction-hereshow-employers-can-address-the-crisis. Mental health issues and addictions have always been difficult to deal with in the workplace. Congress passed legislation in 2008 requiring coverage for mental illness and substance abuse programs be offered in as unrestricted a way than other treatments. However, the devil is in the details and advocates claim that in fact many employees still face barriers in receiving recommended mental health and substance abuse programs. Gandhi stated, “A nation’s greatness is determined by how it treats its weakest members." People who are struggling with grief, mental health issues and addictions are the most vulnerable in our workforce. A great work culture is one that goes out of their way to care for and about them.

Have Open, Flexible Policies Susan Bartel, Associate Professor of Higher Education Leadership at Maryville University of St. Louis is doing research on grieving and loss in the workplace. She states “Not only does compassion benefit the employee but it can also contribute to productivity. Many people need or use distraction to help manage their grief work and their jobs can be a healthy distraction. Allowing longer bereavement leave gives employees an opportunity to adjust slightly to a new way of life before having to reengage in the world at large. If they feel their grief is recognized and understood they are more likely to contribute to the organization even earlier than they could otherwise.” This increase commitment to work and loyalty to the organization can benefit both the employee and the company. standard policy of three days of bereavement leave adopted by most organizations today, does not send the message to their people they will be supported in their time of greatest need. After the death of her husband, Sheryl Sandberg revamped Facebook’s HR policies to include twenty paid leave days for bereavement. Policies around addictions and mental health should be generous and well promoted throughout the organization to ensure that all staff are fully aware of them.

Ongoing Marketing of Programs and Services Available The only way that many staff in organizations find out about what is available to them when facing difficult issues is through a notice on a bulletin board, leafing through their benefit package or union booklet. Many employees are not aware of what is available to them. Organizations need to make more of an effort by regularly putting out information through both social media, regular announcements and tying in messaging to events that are happening in the news. Staff meetings and events would be another excellent opportunity to remind staff of what they have available to them and this could be scheduled on a regular basis. Links to and information on organizations such as the National Suicide Prevention Lifeline should be prominently displayed on the organization’s internet and staff regularly reminded that they are there.

A Visible and Active EAP (Employee Assistance Program) Many organizations have an EAP but they are often in the background and staff have to dig up and find information on how to contact them and what they offer. Staff may receive the message that these programs are something the company is obligated to offer but doesn’t really encourage them to use. EAP need to be much more proactive, holding regular meetings with staff to describe their services and encourage staff to use this helping hand up. Staff can be encouraged to share or write letters of endorsement (anonymously if they prefer) regarding the help that they received from their EAP. Program members should be regularly updated and take ongoing training in areas of grief, addictions and suicide prevention. They could be especially active during national events such as National Suicide Prevention Week and National Drug Awareness 54

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Week, ensuring staff are aware of what is available. Many staff are not aware of these larger initiatives and EAP could do more to raise awareness.

Management Visibly Promoting Awareness and Sharing with Staff When it comes to addiction issues and suicide prevention, many staff are afraid to speak out and seeking help due to what they perceive as stigma attached to these issues, whether it is real or imagined. Observing management actively encouraging awareness and launching initiatives to talk about and help staff in areas of grief, suicide prevention and addictions is one of the most effective ways of taking some of the stigma away. Especially when it comes to addictions and suicide, many staff feel that admitting to problems in those areas will prevent them from being considered for promotion. If possible, having someone from management talk about their own struggles in these areas would go a long way towards giving employees permission to do so themselves and take some of the fear out of acknowledging their own struggles.

Promote and Encourage Self-help Groups Amongst Staff There are tremendous resources of knowledge, information and support amongst most staff in organizations. Unfortunately, these internal resources are rarely sought out, organized and encouraged to share resources and offer support to their own members. Some companies encourage and support staff by holding AA meetings onsite. EAP could offer these self-help groups as an extension of the work that they do by helping to organize and facilitate groups as well as train staff leaders. Clearly, issues around confidentiality would have to be addressed and worked through. While organizations may look at these programs in terms of financial cost and lost work time, there is a great benefit to organizations that implement them. Having these programs creates a considerable amount of good will for the organization, both internally and externally. Employees who feel the organization cares about them will be more engaged and put more effort into their work and will also want to stay, decreasing costly turnover. Customers and those outside the organization, will have a positive view of the company and that positive view of the organization will be a strong recruiting tool, attracting new talent. 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.

Presents

Online SHRM-CP® | SHRM-SCP® Certification Exam Prep Class Online classes begin October 15 and will meet twice per week for 12 weeks on Monday and Wednesday evenings from 6:00 PM to 7:30 PM.

SHRM Learning System® Participant Materials

The total cost of the SHRM-CP® | SHRM-SCP® Online Certification Exam Prep Class is $995 plus shipping You may pay by PayPal, credit card or check. Winter Exam Window December 1, 2018 - February 15, 2019 For more information visit shrmcertification.org Deadline to register is October 10 Contact cynthia@hrprosmagazine.com OR visit our website at www.hrprofessionalsmagazine.com About the instructor: Cynthia Y. Thompson is Principal and Founder of The Thompson HR Firm, a human resources consulting company in Memphis. She is a senior human resources executive with more than twenty years of human resources experience concentrated in publicly traded companies. She is the Editor | Publisher of HR Professionals Magazine, an HR publication distributed to HR professionals in Alabama, Arkansas, Florida, Georgia, Kentucky, Mississippi, and Tennessee. Cynthia has an MBA and is certified as a Senior Professional in Human Resources (SPHR) by the Human Resource Certification Institute and is also certified as a Senior Certified Professional by the Society for Human Resource Management. She is a faculty member of Christian Brothers University. Cynthia was appointed to a six-year term by Tennessee Governor Bill Haslam to serve on the Tennessee Board of Appeals in 2014. She was recently named SHRM-Memphis HR Executive of the Year. www.HRProfessionalsMagazine.com

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Social Media Screening = Smart Hiring 70% of employers in the U.S. understand the importance of online behavior in today’s digital world, but most are screening candidates’ social media in an ineﬃcient or illegal way. Data Facts provides an FCRA-compliant social media hiring report that discovers a candidate‘s online presence. Our report presents acconable adverse informaaon on a potennal candidate, allowing companies to make beeer informed hiring decisions while proteccng them from unnecessary risk. HR professionals can easily idennfy potennally violent or illegal behavior, demonst demonstraaons of racism or intolerance, and sexually explicit behavior during the pre-employment screening process. That’s just another reason you can trust Data Facts to help you hire the right candidate faster, easier and smarter.