August 2020 Digital Issue of HR Professionals Magazine by Cynthia Thompson

Volume 10 : Issue 8

www.HRProfessionalsMagazine.com

SCOTUS

Expands Ban on Sex Discrimination

Profiles of ERISA and Employee Benefits Attorneys Latest SHRM Research on

Employee Benefits

Retirement Readiness and the

Silver Tsunami Addressing Systemic Racism in the Workplace

Patrick Smith,

SHRM-CP, PHR Chair of KYSHRM

Open Enrollment Communications in the Age of

COVID

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Features 4 note from the editor

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

The Thompson HR Firm, LLC Art Direction

Park Avenue Design Contributing Writers Christina Biddle William Carmichael Lymari Cromwell Harvey Deutshendorf Brad Federman Donna K. Fisher Katherine Fernandes Matthew G. Gallagher Murray L. Harber Jimmy Hinton Bob Horton Wes Hudnall Joel Lee Carley McRee Susan McCullah Chris Menard Erin Haynes Reed Liz Sheffield Casey Sword

Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine.com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2020 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.

5 Patrick Smith, SHRM-CP, PHR, Chair of KYSHRM 12 Addressing Systemic Racism in the Workplace 42 Book Look: The Shield of Silence by Lauren Stiller Rikleen 43 Congratulations to These Recently Certified HR Pros! 47 Are Slow Background Checks Holding Up Your Hiring Processes?

HR Strategies for Handling COVID-19 in the Workplace 6 SHRM Research – Divining Future Employee Benefits in a Pandemic 21 COVID-19 Employee Handbooks 24 Open Enrollment Communications in the Age of COVID 28 Six Months with COVID-19 - What HR Should Have Learned 34 Our Response to the Community During COVID-19 46 Seven Ways to Lead Remote Workers with Emotional Intelligence

Employee Benefits and Compliance 10 Is Your Open Enrollment Communication Effective – and Compliant? 14 The Employer Role in Financial Well-Being 22 A Great New Way to Significantly Reduce Your Health Benefit Expenditure 26 Retirement Readiness and the Silver Tsunami 32 How to Help Employees Take Charge of Their Benefits

Profiles of ERISA and Employee Benefits Attorneys 36 Ogletree Deakins 37 Littler 38 Friday Eldredge & Clark LLP 40 Bass, Berry & Sims

Employment Law 16 Workforce Reduction Options Amid COVID-19 19 Tennessee Workers’ Compensation Handbook 20 SCOTUS Expands Ban on Sex Discrimination 30 When is Fear a Protected Reason for Not Coming to Work? 31 Working Boomer Advocate

Top Educational Programs for HR Professionals 41 Affordable Online SHRM Certification Exam Prep Class Begins October 19 43 Affordable Online HRCI | PHR | SPHR Exam Prep Class Begins August 17 48 WGU Tennessee HR Program Fully Aligned with SHRM Curriculum

Industry News 8 SHRM-Memphis 2020 Legal Day August 11 9 2020 SHRMGA State Conference in Stone Mountain September 30-October 2 18 WTSHRM 11th Annual HR & Employment Law Conference in Jackson October 23 29 2020 NCSHRM Virtual State Conference & Expo September 16-18 September Issue features Updates on Employment Law and Employee Benefits Plus the Latest on HR Management and the Coronavirus Pandemic Deadline to reserve space August 15

44 Pharmacy Trends, Litigation, and Legislation www.HRProfessionalsMagazine.com

a note from the editor

are honored to have Patrick Smith,

If you are not yet a certified HR professional, you have two

SHRM-CP, PHR, Chair of KYSHRM, on

excellent opportunities coming up! Our next Online HRCI Certi-

the August cover. Patrick has been

fication Exam Prep Class begins August 17. You can register on

involved as a SHRM volunteer since 2002. He has served

our website to join this class now. The deadline to register is

as Treasurer, President-Elect, President and Past President

August 10. We will also be offering the Online SHRM Certification

of the LSHRM Chapter in Louisville before becoming involved with the KYSHRM State Council. Patrick is the Human Resources Manager for the law office of Stoll

Exam Prep Class again this fall on October 19. These classes are affordable and convenient! You can take them from the comfort of your home on your own computer.

Kennon Ogden PLLC. I know you will enjoy learning more about him in his professional profile on Page 5.

Mark your calendar now and plan to join us for our monthly webinar sponsored by Data Facts. You will earn 1.00 SHRM PDC

Our special emphasis this issue is on employee benefits and compliance. We are excited to present profiles of

and 1.00 HRCI credit. It will be August 27 at 2 PM. Watch your email for details.

some of the top ERISA and employee benefits attorneys in the Southeast in this issue. We hope this section will serve as a guide when you need a qualified attorney to assist with your employee benefits issues during the

cynthia@hrprosmagazine.com @cythomps

pandemic, and as you plan for open enrollment season.

ADVERTISING MATERIAL

Congratulations, Patrick! Your SKO colleagues applaud your service as KYSHRM President this year. As our valued Human Resources Manager, Patrick Smith, PHR, SHRM-CP, serves his Stoll Keenon Ogden colleagues with great compassion and professionalism. We’re proud of his service this year as Chair of the Kentucky SHRM State Council and know that Patrick’s leadership will help sustain KYSHRM’s success for years to come.

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Patrick

SMITH

Patrick Smith, SHRM-CP, PHR KYSHRM Chair Patrick holds a Bachelor of Science in Business Administration from the University of Louisville majoring in Management /Leadership. He also holds a Master of Science in Business

Patrickâ&#x20AC;&#x2122;s first experience with SHRM began in 2002 when he attended his first local chapter meeting. As a regular attending member, he was asked to consider leadership and became the Hospitality Chair. His engagement in leadership led him to become the LSHRM Chapter Treasurer, President-Elect, President and Past President. During his tenure on the local board, he expanded his interest with the Kentucky SHRM State Council. He served as Best Places to Work Director 2 years, State Conference Director 3 years, State Treasurer for 5 years and Chair Elect for 2 years. He currently is serving as Chair with 3 years remaining in his term.

Communications from Spalding University receiving the Spalding University Leadership Award in 2011. He is a certified Mediator and holds SHRM Certified Profession (SHRM-CP) and HRCI Professional in Human Resources (PHR) Certifications.

Patrick is the Human Resources Manager for the law office of Stoll Keenon Ogden PLLC, located in Louisville, Kentucky. He has over 20 years of progressive HR experience having served roles in technology, healthcare, financial and law industries. He has benefited from the SHRM network of HR leaders who have guided him during his career. The biggest HR challenges he has faced over the years is to be flexible and adapt to the unique cultures in the various types of industries he has held in his HR leadership roles. In addition to serving the HR community, he served as President Elect, President and Past President of the Kentucky Association of Legal Administrators. He was Chairperson for the Worksite Wellness Council of Louisville Awards program. He is still an active volunteer in the disabled community serving 17 years as Logistic Chair in support of the annual Ken-Ducky Derby fundraiser for Harbor House of Louisville. He was honored by this organization with the Volunteer of the Year Award in 2019. You are invited to connect on LinkedIn: linkedin.com/in/patrick-smith-phr-shrm-cp-3792a810

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Divining Future Employee Benefits in a Pandemic

By CASEY SWORD

mployee benefits have continuously evolved since the 1900s, long before COVID-19. However, the pandemic has changed work for the foreseeable future and any trends we may have witnessed in employee benefits will likely follow suit. Pending a COVID-induced recession (if we’re not already in one), there is a possibility that employers will suspend or limit their offerings. We’ve seen this before. During the Great Recession, although employee benefits remained relatively stable, offerings experienced a downward trend. Many organizations shifted the cost of benefits on employees in order to assuage the rising expenses of employee benefits. And in the years since, several factors have shaped the benefits landscape. In the 2019 SHRM Employee Benefits report, healthcare and retirement were the leading benefits in importance to the American workforce. In addition, one-fifth of organizations reported that they had increased healthcare benefits since 2018. Wellness benefits were also experiencing a steady rise: 20 percent of organizations increased these offerings in 2019 despite employers ranking wellness near the bottom in importance to their workforce. While there is still so much uncertainty around future workplace trends right now, one thing remains: Employee benefits will always play a crucial role in attracting and retaining talent, improving overall health and wellbeing, and so much more. As organizations prepare their 2021 benefits packages, it’s important to note that this is one of the least predictable economic periods of the last several decades. It is entirely possible that information available now may not be as relevant a few months or even weeks down the road.

WHAT MIGHT WE SEE FROM FUTURE EMPLOYEE BENEFITS? Telehealth Services One of the most notable changes we will likely witness in 2021 is the rise of telehealth services—a trend already set in motion but aggressively propelled by the COVID-19 pandemic. Most large employers already offer telehealth services, but employee utilization rates have typically been low. Over the past few months, however, many employees have had no choice but to resort to telehealth services in order to access care during the pandemic. Not only is this convenient for employers and employees alike, it can mitigate increasing health insurance plan costs, as telehealth services are often cheaper than comparable in-person treatments. As a result, there is a clear incentive for organizations (especially small businesses and those whose health plans are self-funded) to provide, expand, and communicate telehealth services to employees. Telehealth services are also important for assisting organizations in expanding healthcare access to underserved urban and rural communities. Often these communities have limited availability of physicians and must travel to receive care. Sometimes they go without treatment completely due to the lack of in-person services and knowledge about available telehealth services. Organizations will have a larger role 6

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to play in bridging the healthcare disparity gap and should continue to provide telehealth services and communicate the advantages of these services to employees.

Flexible Work Benefits Although remote work was a growing trend before COVID-19, it would have taken much longer for organizations to tackle such a disruptive change unprompted. Like telehealth services, the pandemic has catalyzed the remote work shift that has been in the making for years. Now organizations will need to decide if they want to make remote work a core part of their benefits portfolio. A SHRM study on remote work during COVID-19 found that more than 70 percent of American workers would prefer working remotely either full-time or part-time if they had the choice. What’s more, 68 percent of organizations report they probably or definitely will adopt broader or more flexible work from home policies for all workers. This will be largely impactful in knowledge-work organizations headquartered in expensive metro areas—especially if a recession becomes a reality, the lure of relocating to areas with lower cost-of-living will be strong for employees who don’t need to be physically present in an office. As the economy begins to reopen, it is also plausible that employers will continue to offer flexible work benefits that may have been expanded or added due to COVID-19—at least on a case-by-case basis. Some of these benefits include flexible scheduling, compressed workweeks, and part-time work—all of which are necessary for vulnerable employees and those with childcare or eldercare responsibilities. Many employees in the return-to-work phases are grappling with unpredictable school schedules, their personal health, and potentially exposing their clients or family to COVID-19. SHRM Research found that of organizations currently providing childcare accommodation to employees during the pandemic, 1 in 10 plan to keep these policies indefinitely. Organizations might also begin offering additional assistance such as referral services, subsidized care, or on-site care facilities to those with caregiving responsibilities who are called back to their worksite. Even employees without dependents may need extra flexibility, as public transit remains disrupted in most metropolitan areas.

Wellness Offerings During the COVID-19 pandemic, one-third of employers saw an increase in requests for information about Employee Assistance Programs (EAPs). With the continued necessity

Investment and Retirement There is a chance that we may witness across-the-board tightening of certain benefits into 2021 as organizations decide how to navigate current and post-pandemic economic uncertainty. Several organizations have already announced that they are reducing or deferring 401(k) matching funds. Conserving cash in this way is relatively normal during hard times—we witnessed this in the Great Recession, where more than 200 major companies suspended their matching contributions to ease cash flow constraints. Many of these cuts were temporary and reinstated post-recession, however.

for remote healthcare options, an ongoing strain placed on employees by the pandemic, looming recession, and other stressors, the importance and usage of EAPs will see an upward trajectory. SHRM Research has found that as many as 1 in 5 employees still struggle often with symptoms related to depression in the course of the pandemic. Further, more than 40 percent of employees feel burnt out, drained, or exhausted from work during this time. Like telehealth options, many employees who never used EAPs may have recently tried them and found them useful. While virtually all EAPs provide some type of clinical counseling, other EAP benefits that workers may need to access in the pandemic era and post-pandemic era include child or eldercare referrals, legal and financial counseling, and even pet care resources.

There are still many employers who are easing access to 401(k) assets rather than suspending their contributions. In addition, there are also new retirement planning options that were recently passed in the SECURE Act. Some key takeaways from the Act include allowing long-term part-time employees to participate in their employer’s retirement plan, offering small business tax incentives to set up automatic enrollment for workers, allowing open multiple employer plans, among others. Innovative organizations looking to switch up their retirement offerings to better fit new staffing plans may soon take advantage of these options if they haven’t already. Lastly, there is a new provision under the CARES Act that authorizes employers to make tax-free contributions of up to $5,250 directly to employees’ student loan accounts— the same limit as employer payments for current education. Previously, the provision only allowed for an exclusion from an employee’s income for educational assistance provided by an employer. While the newly instated tax exemption is valid only through the end of 2020, there is a chance it could be adopted as a permanent change to the tax code. For employees with outstanding student loan debt, this benefit could be incredibly important if a recession comes to pass and those with high-interest student loans are unable to refinance. Employers should weigh these new incentives before deciding if any changes need to be made to their existing educational-assistance programs. Organizations will have to keep an eye on the shifting sands of benefits compliance, as continuing legislation related to the public health crisis and those designed to stave off a recession will continue to impact employers well through 2021.

Organizations are prioritizing wellness more than ever before, but it is still possible that certain benefits such as gym/fitness memberships and on-site engagement activities may be at risk in organizations that are impacted financially by the pandemic and recession. This is especially true for small to medium-sized organizations. Many employers are still uncertain when they will call their employees back to the worksite (if at all). Even after a partial or complete phase-in, wellness benefits such as these may still be unavailable for the foreseeable future. Employers may choose to save by cutting these programs, or continue to offer them remotely or in-person but with limited capacity. While they may be some of the first to go, organizations shouldn’t forget that the wellness programs they ultimately keep could very well save on healthcare costs in the long run.

Although there is still so much uncertainty around future employee benefits, the pandemic has set in motion a slew of potential new offerings and has even expedited some trends. Until open enrollment in November, organizations should consider how their employee benefits can help them stand out now and in the post-COVID phase.

Casey Sword

Research Specialist Society for Human Resource Management casey.sword@shrm.org shrm.org www.HRProfessionalsMagazine.com

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Is Your Open Enrollment Communication Effective – and Compliant? By LIZ SHEFFIELD

To ensure engagement, HR leaders should choose from a variety of communication methods to deliver and reinforce open enrollment messages. At some point in their careers, most HR leaders have probably wished for a crystal ball that would reveal the secrets about their workforce desires regarding open enrollment communication. Facing an ever-growing challenge of recruiting top talent in a marketplace with a low unemployment rate, using data to clearly and effectively communicate the benefits an organization offers can not only address individual needs for employees, but also minimize compliance-related risks. Because communicating benefits to your employees effectively is only actually effective if you're doing so in a state of compliance.

Why Open Enrollment Communication Matters According to the ADP Research Institute® report, Fixing the Talent Management Disconnect: Employer Perception vs. Employee Reality in the U.S. Midsized Market, understanding benefits options matters to employees. In fact, 60 percent of employees said they feel it's important for organizations to take time to effectively inform new employees about the policies, benefits and organizational culture. Therefore, communication at the forefront is critical. "In particular, they want to understand company goals and work hours," according to the report. "Therefore, when work hours have not been set out in detail during the interview phase, a discussion about work hours during onboarding becomes even more important." So it's important that your open enrollment strategy focuses on engaging your employees throughout the process — and beyond. Doing so can influence how well employees understand the benefits offered, respond to changes in costs and take ownership to manage what's available to them. The Society for Human Resources Management offers further pointers for open enrollment communication. Tips include keeping things simple — such as the messaging involved in engaging your workforce, as well as the process of actually signing up once the message is communicated — as well as bringing higher-ups into the conversation prior to launch to get buy-in. 10

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Use a Variety of Communication Channels

5. Paper Mailers

To ensure engagement, HR leaders should choose from a variety of communication methods to deliver and reinforce their messages, including these five vehicles.

While the need to send paper packages with complete benefits information to each employee may no longer have the effectiveness it once did, based on your employee population, there will likely be some information you need to provide in this manner. Make sure your enrollment methods are accessible to everyone. If you find people aren't enrolling because of limited awareness or access, you may need to provide paper enrollment forms or mail a postcard reminder about the enrollment process.

1. Social Media Building enthusiasm around the benefits you offer can help engage employees in the open enrollment process. Social media offers a way to drive momentum while also keeping your message simple and relevant. Use your organization's internal social media channels to share deadlines, outline employee options and provide links to resources that contain more information. It's also a perfect vehicle for gathering feedback. To illustrate how organizations can effectively utilize social media, SHRM also notes that some have held Twitter chats about enrollment, and the sheer ubiquity of smartphones have made engaging through social a no-brainer; additionally, text messages can be set up through third-party platforms. Finding out how to exactly engage your entire workforce could start with a test of a smaller batch of employees. 2. Online Portals Employee benefits plan information — such as medical, dental, life insurance or disability insurance — should be available online for employees. With easy access to these necessary documents via a human capital management (HCM) system or intranet, your employees can compare coverage options and review rates to make informed decisions based on their needs. Having online access to documents is also a way to manage Affordable Care Act (ACA) compliance, which requires the plan administrator to make a summary of benefits and coverage available to participants prior to enrollment. 3. Personalized Services Even with all the information at their fingertips, employees will likely still have questions. Providing personalized services — whether by meeting, phone or online chat — can allow your employees to get answers to specific questions and feel supported by a benefits expert who delivers individualized service. Work with your benefits provider or HR team to determine the best approach for information sessions based on your budget and employee population. 4. Frequently Asked Questions When you conduct in-person, phone or online chat sessions, be sure to take note of common questions about plans. Do so in a confidential, anonymous manner and then use those questions to create an FAQ document that can assist employees with questions. This can be a valuable resource for new employees who will be enrolling after they're hired. Providing an FAQ sheet can be an easy way to demonstrate that you're listening to employees and that you understand what matters most to them in making benefits-related choices.

Use Human Capital Management Technology to Streamline the Process and Minimize Risks According to ADP Research Institute, most organizations have multiple people in different roles working together to make decisions about managing ACA requirements. Ensuring access to correct and current data is paramount to ensure ACA compliance; failure to comply can result in substantial penalties. Unfortunately, many employers are not prepared to meet all of the ACA's compliance requirements. A core reason for the lack of preparedness is an insufficient integration of key data. And the ACA is only one piece of the extremely complex puzzle that is employee benefits compliance. There's no denying that administering benefits in today's workplace can be complex. At a minimum, benefits administration requires integration of data between payroll, time and labor management, benefits providers and the HR department. Incorrect or unavailable data can create issues from unhappy employees to unproductive workflow to potential tax penalties. Having the right HCM platform in place can automate open enrollment procedures and minimize risk by doing the following, allowing for easy access and clear communication by: • Eliminating excess paperwork • Introducing employee self-service options • Providing better employee and employer access, reducing unnecessary overhead costs • Increasing digital reach and reporting Implementing an HCM solution is one way to help HR leaders communicate important open enrollment messaging, streamline the enrollment process and minimize employer risks related to compliance. With this type of system support, those same leaders can have more time to create the

Liz Sheffield, SHRM-CP

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Addressing Systemic Racism in the Workplace

WARNING

(And you should heed it)

By BRAD FEDERMAN

2020 thus far has been a unique year consisting of a pandemic, a financial crisis, and racial injustice protests and riots. Businesses are being asked to juggle more matters than ever before. But what ball should they focus on? All of them? As foolish as it is, many businesses are choosing to ignore some of these crises. With the pandemic causing significant financial pressures, most businesses are largely focused on the bottomline. After all, making money is central to most companies. We are ruled by the mighty balance sheet. In response to these pressures, businesses are furloughing associates and laying off team members, including their Human Resources Diversity/Inclusion executives. At first glance, this decision may seem to be cost effective and prudent, but it can also be detrimental to a company both culturally and financially. You have probably heard of Starbucks, the largest coffee chain in the world and a well-run company to say the least. Starbucks has been very involved in the community for years and is seen as progressive on many issues. Even they have struggled with these matters. One of their employees wrote a racial slur on a man’s cup instead of his name. Between this incident and another incident involving two African Americans in Philadelphia, Starbucks closed 8,000 locations for an afternoon in order to provide racial bias training to 175,000 employees. One afternoon does not sound that particularly concerning until you realize they lost an estimated $12,000,000 in sales revenue in one day, and the hard work for brand loyalty of a portion of their customer base. This happened in May of 2018 and unfortunately Starbucks is back in the news. Recently they claimed, like many other companies, that they supported Black Lives Matter. Actions speak louder than words, however, they banned their employees from wearing Black Lives Matter apparel. It is difficult to rebound from missteps like these. People began to boycott, costing the company money. They did overturn their previous decision not to allow the workers to express their support through clothing. Starbucks has also clarified their commitment to ending systemic racism. However the damage was done and their stock price has dropped nearly 12%. Of course, part of the financial difficulty was caused by the pandemic but the damage to their brand and reputation was also clear. The challenge companies face is that they can’t dip their toes into these issues. Once you wade in the waters the measuring stick people use to determine your commitment is high. Employees and consumers are watching every move and the path can be a minefield. It would be foolish to think that Starbucks was the only major corporation to grapple with these challenges. 12

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Other companies going through similar complications include: Gap, Target, Taco Bell, Papa John’s, Dove Soap, Volkswagen, and Disney. They all have one particular thing in common; every mistake could have been prevented with a broader and stronger commitment to inclusion and equity. Companies can no longer use window dressing efforts to demonstrate they are inclusive and reactive piece meal attempts backfire because companies end up responding to negative reactions and press. Demands for racial equity have resulted in many high level employees and executives being fired or removed. Recently, the co-founder of Reddit, Alexis Ohanian, was forced to resign from the company after fifteen years. The CEO of CrossFit, Greg Glassman, had to resign after receiving massive backlash for a comment he made regarding the death of George Floyd. Adam Rapoport, editor-in-chief of Bon Appétit, also stepped down recently. There are numerous examples that illustrate to us this problem is more common than many believe. We need to invest in the proper inclusion interventions. If there was ever a time to do so, it is now. Developing an inclusive company that values equity requires commitment. Creating a real sustainable change entails a culture change that is measured in years, not events or initiatives. Too many companies turn to the obligatory training. While training is a good tool it is often not the answer and certainly, by itself, won’t help you cross the finish line. Here are a few things companies must start to address through the eyes of inclusion and equity: • Revamping job descriptions and job postings for more inclusive language • Rethinking your recruiting processes and sources • Changing the way you screen, interview and select employees • Reviewing compensation practices that may accidentally yet inherently discriminate • Approaching the performance evaluation and promotions process differently

• Revising policies so they represent a broader group of employees • Running marketing ideas through a uniquely different lens • Make D&I, Equity and Equality a part of the overarching organizational strategy and tie it to measurable goals • Create a fully resourced and trained D & I team and invest in D & I training for HR/Senior Leaders • Train executive leaders at every level to go through comprehensive and experiential diversity and racial sensitivity training by competent consultants

With everything going on in the world, you might think that it’s most productive if you just focus on survival, but that would be ill-advised. That decision can easily backfire. We are working with companies that have made that mistake and are suffering from social media backlash, protests in front of their place of business, and even worse. Most executives and business owners feel badly when these things occur. They often feel misunderstood and uncomfortable. What they don’t understand is that ignoring challenges does not make them go away. It only delays dealing with the problem and makes the problem feel almost insurmountable. Waiting or ignoring these challenges only hurts your bottom-line, your employees, your customers and puts your brand at risk. It also negatively impacts the community. Imagine if Franklin Templeton had made a strong culture change prior to their ex-employee, a white woman walking her dog, engaging with a black man bird watching in Central Park might have gone if she had been able to learn and address her issues prior to that day. In the words of John Armstrong, “You don't ask a juggler which ball is highest in priority. Success is to do it all.” We have an opportunity to change our world if we choose to juggle without running out of hands.

• Require members of the D & I team or proxy member to be present when making decisions at all executive/senior level interviews • Empower the appropriate people to challenge decisions because Transformational Culture changes require you to value truth and authenticity over political correctness to ensure equality and equity in the workplace.

Brad Federman, CEO

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

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

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The Employer Role in Financial Wellbeing By KATHERINE FERNANDES

Wellbeing is a term that is used often and historically focuses on physical or mental/emotional health. However, those aspects are just a few components to the multi-dimensional equation that is total wellbeing. Tom Rath and Jim Harter, who quite literally wrote the book on wellbeing, have proposed there are actually five core components of wellbeing all of which require satisfaction in order for a person to live a healthy and whole life: Career, Social, Community, Physical and Financial. Wellbeing: The Five Essential Elements. Employers have a huge role to play in the overall wellbeing of their employees. In fact, there is great opportunity in creating a workplace that provides support in each of the five dimensions of wellbeing. A well employee is likely an engaged employee and an engaged employee is much harder for your competition to poach. Financial Wellbeing is a growing focus of many corporate engagement strategies. The labor market is historically tight and employee earnings have been on the rise. Yet, a 2017 Prudential report The State of Wellness in America found that more than 50% of employees report feeling at least moderate levels of financial stress. It is important to note that financial stress impacts individuals of all ages and income levels. Younger employees may delay funding their retirement plans in lieu of paying off lingering student loan debt. Older employees may delay their desired retirement start date in order to continue working. All employees experiencing financial stress are more likely to be less engaged at work and to experience related health issues such as fatigue, depression, anxiety and obesity. Seeing and understanding these signs provides Human Resources with directional guidance on what strategies and solutions to use in their company. Findings from Gallagher’s 2019 Retirement Pulse Survey reveal that a total of 65% of employers have either launched a financial wellbeing program or are considering adding one. Employers have an opportunity to reevaluate their current strategy in supporting employee Financial Wellbeing and to deploy some of the following new tools into the total employee rewards package to recruit, retain, reward and engage their workforce. 14

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STUDENT DEBT RELIEF The Pew Research Center has found that two in five employees under 30 are carrying student loan debt at an average of $17,000 while many older employees are incurring new debt to support children or grandchildren pursuing higher education. With no end in sight to rising tuition costs it’s a great time for employers to roll out new tuition support or student debt relief programs like: • Save-Up Contributions toward existing 529 plans for employees saving for a child or grandchild’s education. • Student Loan Debt repayment programs which provide employer contributions toward repaying existing student loans. Think $50+ per month in employer contributions toward student loan debt repayment.

FINANCIAL COUNSELING AND EDUCATION RESOURCES In the 2019 Gallagher Benefits Strategy & Benchmarking Survey over a third of employers indicated they provide a resource for employees to use regarding financial counseling or education. This can be something as inexpensive and easily deployed as an online resource or something more robust like onsite financial counseling sessions. Financial themed lunch & learn sessions are also a great way to allow employees to engage in their own financial wellbeing.

VOLUNTARY BENEFITS These increasingly popular plans (Critical Illness/Accident/Hospital Indemnity) provide employees with the option to purchase coverage for themselves which will pay out should they experience certain health events. These products provide additional income allowing employees to focus on getting better rather than financial strain.

MATCHING EMPLOYER HEALTH SAVING ACCOUNT (HSA) CONTRIBUTIONS With HSA Qualified plans being the second most popular medical plan offering (second only to PPO plans), more employees than ever have an HSA. These triple tax advantaged accounts allow employees to save, accumulate and spend their HSA dollars without incurring taxes (provided the expenses are eligible). As employees get older and account balances grow they start to look and feel more like a secondary retirement account which can ultimately be used for Medicare premiums and health expenses in retirement. Employer contributions toward the account can be funded as a matching contribution up to a maximum annual amount. This strategy incentivizes employees to set their own funds aside and helps create a larger account balance to be used for health expenses well into retirement.

EXECUTIVE BENEFITS Core benefit plans like company-paid life or disability insurance are often structured to provide a level of income replacement commiserate with the average employee wage. Many times the benefit maximums on these plans are not high enough to account for the higher incomes of the highly compensated or key employee population. And in fact, these valued employees are under-insured. Itâ&#x20AC;&#x2122;s important to make sure that even our higher earning employees are adequately covered for a disability or life event.

These tools along with a competitive core retirement program go a long way toward supporting employee Financial Wellbeing and in turn maintaining a present and engaged team at your organization.

This material was created to provide accurate and reliable information on the subjects covered, but should not be regarded as a complete analysis of these subjects. It is not intended to provide specific legal, tax or other professional advice. The services of an appropriate professional should be sought regarding your individual situation. Gallagher Benefit Services, Inc., a subsidiary of Arthur J. Gallagher & Co., (Gallagher) is a non-investment firm that provides employee benefit and retirement plan consulting services to employers. Securities may be offered through Kestra Investment Services, LLC, (Kestra IS), member FINRA/SIPC. Investment advisory services may be offered through Kestra Advisory Services, LLC (Kestra AS), an affiliate of Kestra IS. Certain appropriately licensed individuals of Gallagher are registered to offer securities through Kestra IS or investment advisory services through Kestra AS. Neither Kestra IS nor Kestra AS are affiliated with Gallagher. Neither Kestra IS, Kestra AS, Gallagher, their affiliates nor representatives provide accounting, legal or tax advice. GBS/Kestra-CD(344046)(exp032021)

Katherine Fernandes, CEBS

Area Vice President, Health & Welfare Consulting Gallagher Benefit Services, Inc.

Better. Itâ&#x20AC;&#x2122;s something all companies strive for. Better outcomes from better performace. But how do you get there? Visit ajg.com

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Workforce Reduction Options Amid COVID-19 By LYMARI CROMWELL and BOB HORTON

This article was originally published by Bass Berry Sims on March 23,2020.

The

economic repercussions of COVID-19 have been immediate and in many cases, debilitating, to American business

across all industries, from food & beverage to manufacturing to healthcare. Challenges faced include governmentmandated closures of certain “non-essential” businesses and

Obviously, a rotating furlough can be a bit more difficult to implement logistically and may create more of a challenge from an administrative standpoint as payroll for each group switches from paid to unpaid. Keep in mind that exempt employees must be paid their normal salary for any week in which they perform any work, so rotating furloughs beginning with a new workweek are ideal. The upsides to a rotating furlough may include employee morale and a distribution of the compensation loss across the entire department instead of centralizing it in a select few of the department’s employees.

reduced demand of products and/or services. As business revenue plummets, many companies are faced with the need to cut significant human capital costs in order to keep their business afloat. Below are some options for companies to consider as they work to address reduced staffing needs. Furlough While the term furlough is used to describe various arrangements, typically a furlough is an unpaid leave of absence. A furlough is often ideal for employers who anticipate a temporary need for reduced staffing. Employees on furlough are still technically employed by the employer and, as a result, may be able to remain on the employer’s group health plan(s) if permitted by the terms of the plan(s). Employers may require employees to pay the applicable employee portion of the premium during the furlough. If the employer’s group health plan(s) is not available to employees on furlough, COBRA coverage would commence. Also, many states allow for unemployment compensation to employees on an unpaid furlough.

Rotating Furlough An example of a rotating furlough is to take a department and divide it into two groups: Group A and Group B. Group A goes on unpaid leave for two weeks, then returns as Group B goes on unpaid leave for two weeks. The rotation continues for the entirety of the furlough period. The key here is making sure that each group contains all of the positions needed to keep the department running smoothly while the group on furlough is on leave. 16

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Reduced Hours or Pay Reducing the hours of a non-exempt employee is fairly straightforward, in that non-exempt employees must only be paid for the number of hours actually worked. When considering reducing the salary of an exempt employee (perhaps as a component of reducing the number of hours worked by a salaried employee), remember that a key requirement for most exempt employees is that they be paid on a “salary basis” meaning the same salary amount must be paid every week regardless of the number of hours worked or the amount of work available each week. A fluctuating reduction in salary that varies from week to week will be seen as an attempt to circumvent the salary basis requirement. However, reducing the amount of salary paid to an exempt employee is acceptable if it is for an extended (even if temporary) time period (such as six months) without variation. Employers must be mindful that an exempt employee must earn at least $684 per week to maintain his/her applicable exemption under the Fair Labor Standards Act (FLSA). When cutting the hours of full-time employees, employers should be mindful of whether the cut will render the employee ineligible for benefits.

Voluntary Leave or Voluntary Reduction in Pay Companies may also consider seeking volunteers to take an unpaid leave of absence or reduction in pay. Some companies have found their executive team amenable to reduced pay for a specified amount of time to assist with the company’s cash flow. For those executives under an employment agreement, employers should enter into a written amendment to the employment agreement memorializing the

temporary reduction in pay and acknowledging that such reduction is voluntary and does not constitute a breach of the employment agreement or good reason to terminate the employment agreement. Some companies have also found that there are employees in the workplace willing to volunteer to take an unpaid leave of absence to avoid potential COVID-19 exposure. Before resorting to mandatory cuts, those companies have taken advantage of reduced human capital costs provided by employees who have responded to calls for volunteers to take an unpaid leave.

Finally, with respect to any employment action addressed above, employers should review applicable state law, the Worker Adjustment and Retraining Notification Act (WARN), and any state mini-WARN laws to ensure compliance. Generally, WARN does not apply to layoffs lasting less than six months or to a reduction of hours unless hours are reduced by more than 50% during each month for a six-month period. WARN also contains an “unforeseeable business circumstances” exception and “faltering company” exception that may relieve the employer from being required to provide WARN notice a full 60 days in advance.

Lay-Offs or Terminations

We realize many of our clients are facing difficult choices. Please contact any of our labor & employment attorneys if we can assist you as you navigate those choices.

Termination of employment is obviously another option for businesses fighting to stay afloat during these difficult economic times. Many companies are analyzing their workforce to determine the bare minimum of positions that are needed to run the business successfully during the next several months. As is the case in all instances of group layoffs, employers should analyze their decision-making process to ensure that it does not have a disparate impact on any protected class and may consider providing some severance to laid-off employees in exchange for a release of claims. The current market is not ideal for job seekers, and therefore, terminated employees may be more incentivized than usual to bring a lawsuit for discrimination; provided, however, that employers will not have a difficult time proving a legitimate non-discriminatory reason for the layoff given the rapid economic downturn.

Lymari Cromwell

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

Bob Horton

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

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

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

Centered to deliver. bassberry.com

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You’re invited to attend the

11th Annual

October 23, 2020 Friday 8:30 a.m. to 4:00 p.m.

Registration opens at 8:00 a.m. at

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

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

Join us for an informative day where we will dive deep in critical issues facing human resources, including: ♦ Workers’ Comp Pumpkin Patch – Review a checklist of Workers’ Compensation guidelines to make sure you are complying with all current legal regulations. ♦ Bobbing for Apples and the ADA Interactive Process – Learn how to engage in an interactive process with a disabled employee seeking workplace accommodations. ♦ Tricks or Treats - Social Media and HR – Exploring the impact and legal concerns of social media in the workplace and using it as a tool for HR. ♦ Skeleton in the Closet: Employment Case Studies – An interactive discussion of recent employment law cases and the application of relevant concepts and HR strategies. ♦ HR Spooktacular – An interactive session that will test your knowledge of key legal standards and principles on a wide spectrum of HR issues.

Lunch is provided. Explore our impressive showcase of HR-related exhibitors. Great door prizes. Registration Fee:

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

wtshrm.org

The registration deadline is Friday, October 16, 2020. Register early as seating is limited. You may pay by check or credit card. This program has been approved for 5.5 recertification credit hours through HRCI and SHRM.

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To learn more visit MLeeSmith.com/tnwc-handbook

The Tennessee Workers’ Compensation Handbook, 11th Edition, by Wimberly Lawson Attorney Fred Baker, is the comprehensive resource for anyone who interacts with the Tennessee Workers’ Compensation System. It is designed for HR personnel, attorneys, paralegals, risk managers, claims adjusters, mediators, benefit managers, claims analysts, and judges. Now fully updated and edited for 2020, the Tennessee Workers’ Compensation Handbook, 11th Edition, gives clear, authoritative guidance that will help you navigate the challenges of the new Tennessee Workers’ Compensation landscape. Please call or email Brenda Copeland at (931) 372-9123 or bcopeland@wimberlylawson.com for more information and to order your copy.

Packed with crucial compliance and practice guidance to help you manage the sweeping changes to Tennessee workers’ comp laws.

New 11th Edition!

Your new edition will cover: • Updated rules on Court of Workers’ Comp Claims and ADR; • New rules on Uninsured Employers Fund Benefits; • Clarification about attorney fee awards; • Legislative changes on Drug-Free Workplace Program; • New case law updates on medical panels; • New penalties, and more!

… With authoritative information on: Claims and Defenses; Compensable Injuries; Coverage Issues; Death Benefits; Disability Benefits; Interaction with Employment Laws; Medical Benefits; Occupational Diseases; Penalties; Practice and Procedures; Second Injury Fund; Subrogation & Third-Party Actions, and more. www.wimberlylawson.com

FREDRICK R. BAKER is a Member in the Cookeville, Tennessee, office of Wimberly Lawson Wright Daves & Jones, PLLC, which he joined in 2001. His law practice includes an emphasis in workers' compensation and employment discrimination, as well as ADA and FMLA compliance. Fred is the Editor of the Tennessee Workers' Compensation Handbook, published by M. Lee Smith Publishers. He is also Legislative Co-Chair of the Upper Cumberland Society of Human Resource Management, and is Tennessee's representative for the National Workers' Compensation Defense Network. Fred has an AV Preeminent® Rating - which is the highest possible rating given by Martindale-Hubbell, the leading independent attorney rating entity. He is also listed in The Best Lawyers in America® in the field of Workers' Compensation Law/Employers, and in Mid-South Super Lawyers® in the area of Workers' Compensation. He received his Bachelor of Arts degree in Philosophy, summa cum laude, from Transylvania University and his law degree, magna cum laude, from the University of Tennessee.

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SCOTUS

Expands Ban on Sex Discrimination

By DONNA K. FISHER

In a landmark decision, the U.S. Supreme Court expanded workplace protections to include gay and transgender workers. The decision in Bostock v. Clayton County, Georgia resolves an issue that had divided courts and afforded protections dependent upon the state where a person worked.

for unlawful discrimination. Liability can also be found through “mixed motive” cases where an employer-defendant admits to being motivated partially by an unlawful reason while also claiming it had a legitimate reason and would have taken the same action even in the absence of the unlawful motivating factor—known as the “same action” affirmative defense.

What the Court Said

If the employer denies any illegal motive, it puts employees to a higher standard of proof to show unlawful discrimination. Should the employees prevail, however, they are entitled to the full panoply of remedies under Title VII, including back pay, damages, injunctive relief, reinstatement, etc. On the other hand, if the employer relies upon the same action affirmative defense and the employee prevails, the remedies are limited to declaratory relief, injunctive relief, attorneys’ fees and costs.

In a 6-3 majority opinion, the Court held that Title VII of the Civil Rights Act of 1964’s ban on employment discrimination because of “sex” covers discrimination based on sexual orientation and gender identity. Now, employers with fifteen or more employees are prohibited nationwide from discriminating against gay and transgender employees and applicants for employment. The Court’s interpretation of “sex” discrimination in Bostock is similar to the Court’s rulings that sexual harassment and motherhood—although not specifically mentioned in the statute—can fall within Title VII’s sweep. The Court concluded that, “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex” because “to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”

What Standard of Proof is Required? In Bostock, the Court addressed the standard of proof required under Title VII and laid out two ways to find liability for discrimination based on race, color, religion, sex or national origin (called “status discrimination”). Liability can be found using either the “but-for” causation standard or the “motivating” factor standard. The Court focused on the “but-for” standard, which means that “but-for” an employee’s sexual orientation or gender identity, the employer’s adverse employment action would not have occurred. But, does sexual orientation or gender identity (or other protected categories) have to be “the” but-for cause or just “a” but-for cause? The Court opined that an employee’s sexual orientation or gender identity does not need to be the sole but-for cause for an employer’s decision as long as it is a but-for cause. The Court noted, however, that Title VII liability for status discrimination could be pursued under the “motivating” factor test. An employee can satisfy the motivating factor test by showing that the employer’s professed lawful reason for an adverse action is a mere pretext 20

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The protected basis in Bostock was sex, but the holding is equally applicable to cases alleging race, color, religion and national origin discrimination under Title VII.

What are the Practical Implications? The majority opinion in Bostock punted the question regarding the consequences of its decision. While acknowledging employers’ concerns over the practical implications on sex-segregated restrooms, locker rooms, and dress codes, the Court said it was leaving these issues for future cases. Although the Court left resolution to another day, the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA), as well as some state and local governments, have addressed these issues. With regard to restroom usage, the EEOC and OSHA take the position that employees should be allowed to use the facilities that correspond with their gender identity. The EEOC has ruled that an employer cannot deny transgender employees access to common restrooms; require them to undergo or provide medical proof of surgery to allow the employee access to a restroom that corresponds to the employee’s gender identity; and cannot require a transgender employee to use a single-use restroom instead of the restrooms commonly available to other employees. Additionally, there are state and local ordinances governing restroom usage that must be considered. As for dress codes, the EEOC’s stance has changed. In the past, the EEOC and many courts had taken the position that sex-specific dress codes did not violate Title VII as long as the dress codes were

not arbitrarily enforced and did not favor or affect one sex over the other but were equally burdensome on the sexes. Now, the EEOC takes the position that employees are entitled to dress according to their gender identity. The EEOC brought one of the three lawsuits underlying the Bostock decision representing a transgender female. When the employee—who had previously dressed as a male—announced she was transitioning to a female and would begin wearing women’s clothes, she was fired. Under the Bostock decision, the termination was unlawful because it was based on transgender status. Because of the Bostock decision, internal complaints, administrative charges, and lawsuits for sex discrimination are likely to increase. Employees who have remained closeted and/or not felt comfortable transitioning may now be more open. As a result, employers must take proactive steps to mitigate the complaints and potential damages.

What Employers Should Do Employers should consider revising their EEO and non-discrimination/anti-harassment policies to explicitly include sexual orientation and gender identity. Although the Bostock Court uses the terms “homosexual” and “transgender”, the preferable and more modern terminology is “sexual orientation” and “gender identity.”

that employees fully understand what “sex” discrimination means. Dress codes should be gender neutral and applied consistently. Some dress codes simply advise employees to dress professionally or appropriately for the job. Others may spell out more detail. In doing so, the key is to focus on the clothing or accessories themselves and avoid dictating gender-specific rules. For example, instead of saying, “men may not wear earrings; women may wear one earring in each ear” say “employees may wear one earring in each ear.” Multi-user restrooms can still be sex-segregated, but employees should be allowed to use the restrooms and other sex-segregated facilities consistent with gender identity, regardless of sex assigned at birth. Transgender employees should not be forced to use single-user restrooms. Single-user restrooms should be gender neutral. Develop a plan for an employee who is transitioning in consultation with that employee. The plan should cover the employee’s preference for handling communications with other employees and the timing of such communications. Some transgender employees may prefer a gradual transition in which fellow workers are notified of the transition but the employee delays presenting in the new gender role while other employees prefer a quick transition and notification. Discuss any name and pronoun changes with the employee. And, educate the employee’s supervisors and managers on their role in ensuring a smooth transition.

Training sessions for supervisors and employees should be conducted to ensure everyone is aware of the new law. Discrimination based on sexual orientation and gender identity should be incorporated as a specific topic in all EEO and non-discrimination/anti-harassment training so

Donna K. Fisher, of Counsel

Ogletree Deakins Memphis donna.fisher@ogletree.com www.ogletreedeakins.com

COVID-19 Employee Handbooks Most organizations are in the process of either reopening or making plans to return to an operational status soon. It’s an ideal time to review your employee handbook and update your employment policies to address the post COVID-19 world in which we now work. Certain policies should be updated in light of federal legislation such as the Families First Coronavirus Response Act ("FFCRA"), and other policies to protect your employees – and your company.

• Sick Leave • Vacation and Travel

• Remote Work and Teleworking • Business Contingency Planning

William Carmichael, Ed.D, can help you customize your organization’s employee handbook and make it COVID-19 compliant now! Don’t wait until it’s too late!

Contact Bill at 901.228.5255 or by email at wcarmchl@gmail.com www.HRProfessionalsMagazine.com

A Great New Way to Significantly Reduce Your Health Benefit Expenditure By JOEL LEE

The work of human resource professionals has never been easy. Consistently and equitably balancing business imperatives with human capital investment opportunities requires initiative and a balanced perspective on how to make things work in a resource constrained corporate budget. On one hand, they seek to build a well-trained, well-compensated and personally secure workforce deeply motivated to making the business successful. On the other hand, they are charged with doing that even as HR budgets get tighter every year. Healthcare costs grow relentlessly forcing difficult trade-offs in building talent, in creating strong cultures and in improving competencies within the company. Every human resource professional knows that what happens outside the workplace can often be a direct threat to the performance of individual staff but have little bandwidth or budget that can be allocated to influencing the environment outside. FEDlogic was established five years ago with a dual purpose in mind – to offer support for working families at no-cost by connecting them with the right federal and state benefits and to offer those benefits to employees while reducing their employer’s health benefit costs. FEDlogic experts have held federal and state government positions specializing in Medicare, Medicaid, Social Security and programs for the disabled. FEDlogic experts advocate for employees and their families to secure public benefits perfectly tailored to their needs. By finding options for workers that offer better health coverage at a lower cost to the employee, FEDlogic reduces the insurance cost borne by the employer. By helping workers build more stable lives, the company benefits by having more reliable and better focused employees. By connecting workers with more effective and more affordable healthcare coverage, employers can significantly reduce their overall health benefit expenditure.

Take a look at a few cases where FEDlogic has been especially valuable: • Employees or their spouses are eligible for Medicare at costs to them that are below their cost for the employer-sponsored health plan; and many times provide better coverages • Workers or their dependents who are faced with a disabling condition from an accident, illness, or a cancer diagnosis may be eligible for federal health coverage and disability benefits • Low wage-earning families may find their state’s Medicaid program allows them or their dependent children to qualify for health benefits even if one or both parents are working • An employee or dependent who develops end stage renal disease can quickly get on Medicare- providing much needed relief to that family from a financial and health coverage perspective all while saving the employer as much as $250,000 a year • Employees and their spouses are educated to maximize their Social Security retirement, spousal, children, and widow benefits. 22

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Frank Cardenas, the founder and CEO of FEDlogic, learned early on about the value of supportive federal programs. When his immigrant parents found that his older sister, Alex, was not progressing the way she should as an infant, they struggled to understand why. With little knowledge on available benefit programs, along with difficult language barriers, Frank’s parents struggled implement Social Security Disability Insurance. Once they were finally able to apply, it allowed Alex to continue her progress with financial support and training services that made all the difference to his family. From that early experience Frank understood how critical federal programs could be for families. He went to law school and began work at the Social Security Administration as a Senior Adjudicator and Congressional Liaison. It was there he learned the real sweep and power of federal programs. He also learned how difficult it was to advocate for families within the constraints of federal rules. It was with this in mind that he and his wife Elizabeth, founded FEDlogic, a mission-based company that offers federal and state benefit advocacy and education. It is a solution that FEDlogic believes every employer should consider both to help their workforce but also to reduce their health insurance expenses. Today, the company and its team of experts have more than 300 clients in dozens of industrial sectors from banking to accounting, from transportation to health care. FEDlogic is endorsed by the Tennessee Hospital Association and has partnered to provide navigation to their network of hospitals in Tennessee and nationally. Every one of FEDlogic’s clients has experienced a return on investment in their first year of implementation. So confident is the company in the value of its service that it guarantees if it fails to produce a positive ROI, it will provide the services at no charge for the second year.

FEDlogic works with best-in-class employers and their HR departments to recognize how and when to help a family in crisis or through a life transition. Once a company has implemented service and informed it’s employees of their new benefits available through FEDlogic, participation by the employee is strictly voluntary. When an employee calls into FEDlogic, an expert is assigned, and a phone consultation is arranged. That expert looks at each individual situation to determine any programs available that may provide better assistance, lower cost, or provide more coverage. The experts educate the employee on those benefits available to them, and if the employee decides to move forward, they are helped every step of the way from initial application through final disposition on an unlimited basis. Some of the most enthusiastic supporters are health benefit brokers. They have found in FEDlogic a partner who can help by significantly reducing health insurance costs and at the same time helping workers and their families. Anita Blackmer, FEDlogic’s Business Development Officer, has had first-hand experience as a former benefits consultant. She explains, “Prior to joining [FEDlogic], I found employees needed assistance and the practical help in understanding federal and state benefits. The bonus for me is that by finding better coverage for themselves or family members, my clients spent significantly less money on healthcare and could offer a richer benefit plan to all of their employees. It was a true win-win for my clients and their workforce.” When the COVID 19 pandemic was creating huge disruptions to the workplace, the FEDlogic team stepped up and worked with clients to help furloughed employees file for unemployment compensation both to support those families and to better ensure the employees would be available for recall when the pandemic recedes. One hospital client with 12,000 employees was faced with sudden and dramatic furloughs. Within days the FEDlogic team was on the ground and within three weeks had conferred with nearly 1000 workers and their families and helped them navigate through state unemployment, federal stimulus benefits, and other COVID 19 relief support.

“FEDlogic is here to help support families when they need help the most,” said Founder Frank Cardenas, “…whether that is helping them in understanding their Medicare and retirement benefits, if they have been affected by a major illness and need help, or if they are lower income and need other healthcare options besides that of their employer – FEDlogic will always be there to help these individuals. Families gravitate to those service providers who advocate for them, who don't pressure them into anything, who don't have a sale to make to them – which is why FEDlogic’s engagement from our corporate clients has been so high.”

For more information visit www.fedlogicgroup.com or contact Anita Blackmer, Chief Business Development Officer, at 615-948-3648 or by email at anita@fedlogicgroup.com.

NAVIGATING FEDERAL & STATE BENEFITS

What’s good for your employees is good for you.

Best in class employers care about the wellbeing of their workforce and know that doing the right thing can be good for all. FEDlogic reduces healthcare costs for you and your employees by carefully navigating complex federal and state programs.

Expert and compassionate support for families includes: • Medicare Enrollment • Social Security Retirement • Social Security Disability • Medicaid, Marketplace & COBRA Navigation • Unemployment Benefits

Talk with us to find out how we can help your employees and your business.

Learn more at FEDLogicGroup.com Contact Anita Blackmer anita@fedlogicgroup.com www.HRProfessionalsMagazine.com

Your Company Voice Regardless of delivery method, keep the following in mind while crafting your message.

Open Enrollment Communications in the Age of COVID

By CHRISTINA BIDDLE

COVID-19 continues to dominate the news and although many states have eased restrictions, social distancing guidelines are still recommended for the near future with no foreseeable end in sight. This presents unique challenges for organizations when communicating with employees in group settings, for example during Open Enrollment. However, now more than ever employees need to hear important guidance and direction from leadership as well as how to access company resources and benefit information. This may require companies to consider new ways to communicate with employees. Here are a few examples of popular communication solutions that may help you continue to inform and engage your workforce.

Telephonic Resources Services that allow for mass “voicemail drops” let employees hear the human element and tone of voice from your leadership. In a time where many people are craving interaction, this may be a good option for quick updates and moraleboosting messages. Mass texting is another very effective tool when sending simple, yet targeted messages. Some vendors provide both services in one platform.

Web Pages or Portals While many companies have added public pages to their existing websites specific to their COVID-19 operational response, those with non-desk employees may consider adding a private page that workers can access and check for company updates, announcements, policies, procedures, and important benefit plan access. Organizations with HRIS or benefit administration portals may leverage their web platform if the system allows for customization.

Or, utilize an app or service that can replace email altogether and provide a way for conversations to take place. Some mobile services combine communication abilities with additional operational resources such as scheduling, hosting of handbooks, policies and other files, internet links and more, right from a smartphone.

Printed or Mailed Materials To respect social distancing, if you are providing printed communications such as a memo or Open Enrollment overview, you may want to leave copies in a common, yet low-traffic area. Neither snow nor rain nor heat nor COVID-19 can hamper the U.S. postal service. If you have a brief communication, such as directing where employees can find the latest company updates, a basic postcard can be a quick-hit with reduced postage costs. Other layouts, such as tri-folds or letters in envelopes are appropriate when more information needs to be conveyed but can add to your overall production time and costs.

Video or Phone Conferencing For those needing face-to-face or group meetings, video conference platforms or group conference calls are a great option. Just be sure to set some ground rules such as muting lines and using a chat feature for questions if your population is new to this setting. Many video conferencing tools include free trials which will allow you to test ease-of-use and compatibility with your needs.

Combining Efforts

Those Without Company Email

Consider utilizing a combination of techniques to keep your communication channels open. For example, if a current or new resource site is being utilized, use a voicemail drop and text, while following up with a postcard mailed to homes.

You may encourage those who do not have company-provided email access to opt-in to sharing their personal email addresses for company-related communication.

If web conferencing is being used, designate which meetings will be phone-only, but provide options for video sharing to increase engagement.

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 Be clear and compassionate. Although you may be communicating to your employees as a group, individuals have unique needs and concerns. While your message should be fact-based, in this unsure environment it is important to include the “human element.”  Be transparent with your action plan, even if it is fluid. Employees need to know what actions you are currently taking for your business operations or with Open Enrollment, and what changes you may be preparing for.  Keep it concise. Information fatigue happens and can happen fast. If you have a lot of information to relay, consider breaking it into separate topics, or, condense information to the most important touch-points then provide direction to where full details can be found.  Designate who communicates what. Streamline what is sent and who on your team is responsible to avoid duplication of efforts, conflicting statements, and the aforementioned information fatigue. If your organization includes multiple departments, develop a process for over-arching communications, departmental, or job-specific messaging.  Don’t underestimate your employees’ technical capabilities. People in all age groups have adopted technology in their lives. You know the saying, “There’s an app for that” – with online banking, video calling family members, various streaming services for entertainment, people are embracing technology now more than ever. Social distancing efforts have many of us longing for human interactions. It may require you to take a little extra time this year to get creative with both delivery methods and messaging. Taking an interactive and encouraging approach may help not just get your message across but may also brighten your audience’s day.

Christina Biddle

Marketing Communications McGriff Christina.Biddle@McGriffInsurance.com

Most brokers say they have all the answers.

We start with a lot of questions. Every organization has unique needs. We want to know yours before we talk about solutions. McGriff specializes in delivering innovative employee benefit strategies to help manage costs, increase employee engagement and allow HR more time for strategic initiatives. Let us design a benefits program tailored to your organization.

To learn more, visit McGriffInsurance.com and select Employee Benefits.

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impact of the Great Recession and the recent COVID-19 market volatility has added additional financial stress and caused many mature workers some hesitancy in their retirement timeline.

RETIREMENT READINESS and the

Silver Tsunami

Helping older workers become financially stable is proving to be in the best interest of many employers. Financial instability leads to lower productivity in the short term and could prompt workers to delay retirement even if they become disengaged in the long run. But if employers are playing an increasingly vital role in helping employees prepare for retirement, what steps can they take to ensure their workers’ success?

START WITH EDUCATION Financial stability in retirement doesn’t just happen – it takes years of planning and commitment. While many workers are still living paycheck to paycheck, the idea of saving for retirement can seem an unattainable goal. For many, the first step towards reaching financial stability is understanding where they currently are, and the gap between where they want to be – this starts with education.

By ERIN HAYNES REED

BABY BOOMERS - the age group

born between 1946 and 1964 – have been known for their hard work ethic, loyalty, stability, and reliability in the workplace. But with 10,000 Baby Boomers turning 65 every day, America’s workforce and population is getting closer to retirement. And in other news, the sky is blue, and grass is green. All joking aside, employers across the country have a huge task in preparing for the “silver tsunami” and dealing with the challenges of this population leaving the workforce. Many employers are finding that one of the biggest concerns surrounding this generation is retirement readiness. Better life expectancy is allowing employees to work past the traditional age of retirement, not only because they can, but because they must. Research by the Insured Retirement Institute found that 45% of Boomers have no retirement savings, and out of the 55% who do, 28% have saved less than $100,000. Additionally, there has been a shift in retirement plan offerings. According to research from Willis Towers Watson’s “Retirement Offerings in the Fortune 500”, over the past two decades employers have transitioned from providing Defined Benefit Plans (pensions) to Defined Contributions Plans (401(k)). Traditional Defined Benefit Plans provided employees with the information on exactly how much lifetime income they would have, well before they decided to retire. Now, as many workers rely on Defined Contribution Plans, employees are left feeling vulnerable, as the responsibility for financial stability is more heavily reliant on their actions and comprehension of their employer’s benefits. Furthermore, the 26

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Recent trends indicate that companies are providing employees with financial education through financial wellness programs. According to a study conducted by Prudential, 83% of companies surveyed offer financial wellness programs, and another 14% planned to offer them by this year. That means a vast number of employers are equipping workers to help address their personal finances by accessing information on an array of financial topics such as budgeting, debtrepayment, and saving for retirement. The programs themselves have a variety of tools as well. Some employers offer online financial guidance through articles or videos, while others provide a collection of services both online and in person, including workplace seminars or assistance by phone. Either way, the purpose of financial wellness programs is to supply employees with a foundation of knowledge that provides them with better insight into their personal financial situation and the opportunities they have to reach their personal financial goals.

KEEP THEM ON TRACK According to the Transamerica Center for Retirement Studies (TCRS), retirees who had a written plan prior to retirement had a total household savings of $553,000 as compared to $8,000 for retirees who did not have a plan. That’s 70 times greater. But having a plan in place isn’t the only challenge. Over the course of a lifetime, there are endless events that could derail a perfectly good retirement plan, such as marriage, children, buying a new home, divorce, health challenges, job loss and many more. The key is to stay focused. “There are a variety of ways you can keep your plan on track,” explains Jim Trujillo, CFP®, retirement plan advisor at ARGI. “Once you’ve developed a goalbased plan, make sure your money is working the way you want it to. Periodically review your spending and saving, monitor your investments’ performance and your personal risk tolerance, make sure you are insured correctly in case of a financial emergency – these are a couple ways to ensure you’re on the right pace towards your goals. However, individuals are ultimately responsible for the management of their personal financial affairs, and they may need help along the way from a licensed professional. Nowadays, it’s common for retirement plan advisors to offer one on one financial advice as part of their participant services offering. This gives retirement plan participants the opportunity to discuss their personal finances with a financial professional and to gain advice on what their next steps should be.”

MAKE RETIREMENT A SMOOTH TRANSITION

SOURCES

One way to ensure an easy move into retirement is to have an open line of communication from the beginning. Retirement is a very personal situation and can mean a number of things for different individuals. Knowing the employee’s retirement intentions ahead of time can help employers better prepare them for the road ahead. However, studies show this is an area that needs much improvement. A survey by TCRS found that 44% of current retirees say they would have liked more information and advice from their employer about retirement. What’s more, two-thirds of respondents in the study said their employer did nothing to help them transition into retirement. With this gap in guidance, employers have the opportunity to better communicate and educate their employees’ nearing retirement. But what if the employer needs to conduct a reduction in force? Early retirement programs offering severance payouts, outplacement services, or pension payouts may be an enticing offer for workers nearing retirement age. Often, these voluntary early retirement plans can be complex and contain a wide variety of options available to the offeree. More and more companies experiencing attrition are collaborating with a financial professional to help guide them and their employees through these intricate situations. The issue of the silver tsunami exiting the workforce is not going away any time soon. Employers that work more closely with their providers to establish clear solutions that fit their workforce’s needs and align with their objectives, programs, and measurements are front runners in making the transition from employee to retiree a smooth one.

https://www.transamericacenter.org/retirement-research/retirementsurvey?year=2019 https://www.myirionline.org/docs/default-source/defaultdocument-library/iri_babyboomers_whitepaper_2019_final. pdf?sfvrsn=0&mod=article_inline https://www.willistowerswatson.com/en-US/Insights/2020/02/ global-benefits-attitudes-survey-report https://www.transamericacenter.org/docs/default-source/resources/ articles/tcrs2019_wp_seven-ways-employers-can-do-more-to-helpworkers-prepare-for-retirement.pdf https://www.transamericacenter.org/docs/default-source/retireessurvey/tcrs2018_sr_retirees_survey_financially_faring.pdf https://www.prudential.com/wps/wcm/connect/4a5f07b4-d5374d8b-97de-954f1619e4cc/B-and-B_Exec_Summary_Flyer_rF2_DIG. pdf?MOD=AJPERES&CVID=mHAdqtx&CVID=mHAdqtx&CVID=medk zq1&CVID=medkzq1&CVID=medkzq1&CVID=medkzq1&CVID=medkz q1&CVID=medkzq1&CVID=medkzq1&CVID=medkzq1&CVID=medkzq 1&CVID=medkzq1&CVID=medkzq1&CVID=medkzq1&CVID=medkzq1 &CVID=medkzq1&CVID=medkzq1

Erin Haynes Reed Corporate Solutions ARGI ErinReed@argi.net www.argi.net

ONLY 55% OF BABY BOOMERS HAVE RETIREMENT SAVINGS*

BABY BOOMER WORKFORCE

28% OF THOSE WHO ARE SAVING HAVE LESS THAN $100,000*. Create a financial wellness program to help your employees find financial clarity and prepare for on-time retirement. Get started at WWW.ARGI.NET/CORPORATE • 866.568.9719 Respective services provided by ARGI Investment Services, LLC, a Registered Investment Adviser, ARGI CPAs and Advisors PLLC, SCA CPAs and Advisors, PLLC, ARGI Business Services, LLC, and Advisor Insurance Solutions. All are affiliates of ARGI Financial Group. *Source: Insured Retirement Institute www.HRProfessionalsMagazine.com

SIX MONTHS WITH COVID-19:

What HR Should Have Learned By SUSAN MCCULLAH

While we didn’t climb out of our basements after months of isolation and find zombies roaming our front yards, the COVID-19 pandemic definitely shook up both our personal and professional lives in unexpected ways. Six months in, things have changed drastically. It’s now no big deal to avoid shaking hands at all costs, wearing a mask everywhere, and getting married on a Zoom call.

action to track progress and serve clients. Hotels, for example, implemented contact-less check-in. In the future, HR’s ability to creatively utilize digital solutions to keep employees and organizations functioning can be traced, at least in part, from the past six months.

As we slog through the sixth month of this pandemic, we need to look at what we’ve learned and how it can shape the future in a positive way. Here are 7 lessons HR should have learned from the COVID-19 pandemic.

Nothing creates stress and disengages employees more than worrying about their job security. HR teams that were successful at sharing plans and laying out specific goals were the ones that kept panic to a minimum and morale as high as possible. Frequent, detailed updates, even simple check-ins without new information, kept communication lines open and viable, which comforted and assured employees.

AGILITY IS AWESOME Work from home? Will do. Wear a mask at work? No problem. Perform different work tasks temporarily? On it. Meet virtually? You betcha. The list of required workplace changes could go on indefinitely. Adapting decisively shows a company’s ability to bob and weave when it needs to do so. This means having employees willing to adjust, and leaders capable of conveying the importance of the changes being made, while rallying everyone into agreement. Companies that tackled these changes early on progressed well with little risk to their employees. A STRONG PLAN B IS THE BOMB Can we please stand up and applaud Plan B? Companies that had an alternative to Plan A were miles ahead when the U.S. got sideswiped with the coronavirus in March. Those that subscribed to “it will never happen to us” floundered and flailed to throw one together. HR should now realize like they never have before the importance of secondary plans such as employees working from home, being able to change up the workspace, and working alternating shifts. COMMUNICATION IS CRUCIAL Getting a clear, concise point across was put to the test during this epidemic. Employees were scared of getting sick and worried about paying their bills. HR needed to be able to explain what was happening, how it would affect each employee, and how long it would last. In addition, communication was often virtual, making it even more challenging. The last six months have tested HR in a trial by fire on their ability to communicate clearly and effectively. HR always knew communication with employees was essential, and it should be even more evident now.

TRANSPARENCY IS ESSENTIAL

WE WILL BE BETTER PREPARED NEXT TIME If we had a nickel for every time companies have said “we should have…” in the past six months, well, we wouldn’t be sitting here reading this article! While we could have never predicted this event, HR can use it to learn and grow. Emergency plans, helpful tools, and easy-to-adopt policies can be written up for the future. Doing this helps companies avoid stumbling badly like some companies did at the beginning of COVID-19. AND… AN EMERGENCY IS NO TIME FOR RIGIDITY, NEGATIVITY, OR LACK OF LEADERSHIP HR should review what was done right and what could have been done better during the first few months of the coronavirus pandemic. Knowing how to react and what needs to be done is important, but so is knowing how NOT to react and what SHOULDN’T be done. Failing to react at all ended up being a big mistake, as did not having employees who could be motivated to get onboard and learn new tools. In addition, a lack of leadership cost some businesses big. HR should take these past actions and examine them to identify the weak points. Are there certain employees who hindered handling the pandemic successfully? Was leadership sluggish, or vacant? Were there other stumbling blocks? If so, these problems are big ones that need to be addressed appropriately. COVID-19 is nobody’s idea of fun, but HR can take the past six months and learn from it. By studying each employee’s, and the company’s, response and adaptability, HR can proactively make the organization ready for if and when something like this happens again. Being prepared protects the company and gives employees greater confidence in staying gainfully employed.

DIGITAL IS PRICELESS We know we are dependent on digital tools to function productively and efficiently, and this was never more obvious than during the pandemic. Virtual environments allowed employees to work from home with little disruption to the flow of productivity, and other tools were called to 28

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Susan McCullah

Marketing Manager – Background Screening Data Facts, Inc. susan@datafacts.com www.datafacts.com

2020

North Carolina SHRM CONFERENCE & EXPO

NCSHRMCONFERENCE.COM

September 16-18, 2020 VIRTUAL CONFERENCE

Featured Speakers

KELLEY EARNHARDT MILLER

CARLOS DAVIS

CORETHA RUSHING

DR. BRYAN ROBINSON

When is Fear a Protected Reason for Not Coming to Work?

By MATTHEW G. GALLAGHER

The pandemic has brought with it a host of legal issues surrounding workplace health and safety issues. One of those issues is whether and under what circumstances an employee’s fear of infection constitutes a protected reason for refusing to come to work. Employee fear of infection impacts employers in nearly every industry and employment setting and, as infection rates continue to rise in many areas of the country, employers will continue to encounter requests for accommodations based on employees’ fears of contracting the virus.

Health Organization, providing and training employees on COVIDrelated workplace safety rules and the use of PPE, assessing and implementing appropriate administrative and engineering controls, and timely and effectively responding to employee complaints. Against this backdrop, a generalized fear of contracting the virus will not insulate an individual employee’s refusal to work from adverse employment action.

While a generalized fear of contracting the virus, standing alone, generally will not support an employee’s request for accommodation, there are circumstances in which an employee’s refusal to work may be protected. This article addresses the ways in which employers can mitigate the legal risks associated with refusals to work based on fears associated with the virus and employers’ potential leave and accommodation obligations in connection with these increasingly common scenarios.

What if an employee fears coming to work based on an identifiable high risk of severe illness due to COVID-19?

OSHA Standards and An Employer’s Affirmative Legal Duty of Care to Employees Employers are bound by the general duty of care established by the Occupational Safety and Health (OSH) Act, which requires employers to provide a safe and healthy workplace for all employees. Under this general duty of care, employers must ensure that workplace conditions meet or exceed the applicable safety and health regulations in the state where they are located. In addition to this legal duty, employers have a vested interest in ensuring employees feel safe and comfortable at work. Uncomfortable workers are likely to be distracted and disengaged, which may negatively impact productivity or customer service and lead to other unsafe working conditions. Some OSHA requirements may apply in preventing occupational exposure to COVID-19. Among the most relevant are the Act’s General Duty clause, which requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm” and Personal Protective Equipment (PPE) standards, which require using gloves, eye and face protection, and respiratory protection. Moreover, OSHAapproved State Plans may have different or more stringent requirements. To limit exposure to OSHA claims, employers must take reasonable steps to assess and mitigate the risks posed by COVID-19, including staying informed of the facts and practices recommended by the CDC and World 30

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If an employee cannot work (either at the worksite or remotely) or is limited in their ability to work because of an underlying health condition, the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA), and similar state or local laws, likely protect the employee. Thus, if an employee refuses to work because of their condition, an employer should treat that request or refusal as a request for accommodation under the ADA and equivalent state or local laws. Such a request triggers the employer’s obligation to engage the employee in the interactive process. In doing so, employers should be aware that some orders and public health guidance may require that employees who are part of the “high-risk” population be afforded specific accommodation(s). Prior to the pandemic, an employer could rely reasonably on the ability to seek documentation during the interactive process for disabilities that were not obvious. During the pandemic, however, there may be limits on an employer’s ability to seek documentation or other information from a health care provider to verify an employee’s job-related restrictions and/or need for accommodation. Employers must be flexible regarding their expectations about, and engagement in, the interactive process and stay abreast of specific return to work requirements imposed by these orders and public health guidance that might impact an employer’s approach to the interactive process. Ultimately, if there are no reasonable accommodations that enable the employee to return to work and the employee cannot perform their essential job functions remotely, the employee may qualify for FMLA (or an equivalent state or local law) if they meet the law’s eligibility criteria and their condition is an FMLA-qualifying “serious health condition.” Assuming an employee meets the eligibility criteria, the

employer must analyze on a case-by-case basis whether the employee has a “serious health condition” for which leave can be taken. Given potential limited access to a health care provider, an employer may also need to approach certification deadlines with more flexibility by allowing a longer period for submitting certification.

What if employees do not want to work because they live with or are in contact with family members who are considered to be at risk of severe illness due to COVID-19? Under the ADA and applicable state and local disability laws, an employer’s obligation to reasonably accommodate an employee is limited to accommodating an employee whose own health condition limits their ability to perform the essential functions of their job. There are, however, some laws that permit employees time off to care for a family member who is ill. The FMLA and its state or local law equivalents provide employees with protected time off to care for certain family members who are ill or need health care-related treatment. An employee’s eligibility for time off for a family member’s “serious health condition” must be evaluated on a caseby-case basis, just as must be done for the employee’s own condition. Mandatory paid sick and safe time (PSST) laws also allow an employee protected time off from work to care for a family member. During the COVID-19 pandemic, some enforcement agencies have indicated that they construe their respective PSST laws as permitting an employee to take PSST to care for a family member who has heightened vulnerability to COVID-19 (rather than actually being ill with COVID-19).

To the extent that an employee is not covered by FMLA (or state and local equivalents) or PSST laws, but wants to avoid the workplace out of a general fear of being exposed to the virus and potentially infecting a family member, such absences are not necessarily protected by more generally applicable laws. However, executive orders and/or accompanying public health guidance issued may require more flexibility in this regard, as well. Therefore, employers should review the various laws providing protected time off to care for a family member and consult any applicable orders or public health guidance, which may indicate an obligation to accommodate or a preference for permitting telework where possible. Additionally, regardless of the basis of employees’ fears, where two or more employees engage in a concerted refusal to work, employers should be conscious of potential protections afforded employees under the National Labor Relations Act. As COVID-19 will impact employment for the foreseeable future, it is likely that many employers will encounter employees reluctant to work based on a fear of infection, particularly as infection rates continue to rise. Employers with questions about what accommodations and leaves must be provided to these employees should consult counsel.

Matthew G. Gallagher, Shareholder

Littler Memphis mgallagher@littler.com www.littler.com

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

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

Super Lawyers

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How to help employees take charge of their benefits By JIMMY HINTON, WES HUDNALL, and CHRIS MENARD

If there’s anything certain about the current work environment, it’s that it’s …uncertain. As a human resources manager (and an employee yourself), you’re likely besieged with questions and concerns about whether and when your employees can safely return to the workplace, if you have the technology and resources to support remote work for an extended period, and how your company will manage the financial pressure of a slowed economy — and that’s just for starters. With fall benefits enrollments just around the corner, you may also face uncertainty about how to effectively communicate with employees and help them select and enroll in the benefits they need. Never an easy undertaking, it’ll be more challenging than ever this year when employees are stressed, distracted and geographically isolated. You can play an important role in ensuring employees have the support and resources they need to combat this uncertainty, take charge of their benefits, and protect their families from whatever the future brings.

Benefits matter more than ever, but … If this year has taught us anything, it’s the importance of our health and the value in taking every opportunity to protect it. But despite the daily reminders of how vital it is to protect our physical, emotional and financial health, many workers seem unwilling to set aside the time to understand their needs and options. In fact, research shows nearly 3 in 4 employees rush through their annual enrollments each year. A recent Colonial Life survey1 showed 41% spend less than 30 minutes considering their workplace 32

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benefits at enrollment time. An additional 32% spend just 30 to 60 minutes learning about their benefits choices. Think about that: The large majority of employees spend an hour or less on decisions that can have a significant financial impact on them and their families for a year or longer. Surprisingly, employees who are the least confident in their knowledge of the benefits available to them at work are most likely to rush through the enrollment process. Nearly 90% of employees who reported not understanding their benefits “at all” said they plan to spend less than an hour on enrollment this year. And that’s bad news for your employees and your business, because employees who don’t understand their benefits participate at lower levels, engage less strongly with the company, and don’t value the considerable investment you’re making in the benefits package.

Offering benefits isn’t enough Your company can help employees become more engaged in their benefits program by providing both comprehensive communication about benefits options before the enrollment and opportunities for employees to get personalized support during enrollment — even in a virtual environment. The virtual aspect of benefits education and enrollment is one thing that should actually be easier this year. All of us have been forced to accomplish more things remotely, from staff meetings to doctor visits. Many employers are taking that lesson and applying it to this year’s benefits enrollment. Another recent survey2 showed the number of employers who plan to offer employees the opportunity to enroll via videoconferencing or co-browsing with a benefits counselor has nearly doubled, from 23% in 2019 to 42% this year. And

22% will offer individualized, real-time support through telephone enrollments, about the same as last year. Those virtual “high touch” enrollment methods will replace in-person meetings for many employers: Only about a third will enroll in person this year, compared to nearly half a year ago. The number of employers planning to use online selfservice enrollment increased a bit from 47% to 54%. These trends are likely to continue long term, as more benefits providers and enrollment companies develop technology solutions to deliver a personalized experience for employees in multiple locations and situations. Virtual meeting technology can be complemented by call center resources, online scheduling and a wide variety of engaging digital communications, including e-postcards, custom websites and videos, and mobile apps to reach employees when and where it works best for them. Be sure your benefits provider can offer a broad spectrum of innovative benefits communication and enrollment solutions this year. By implementing the right strategies and tools designed to help your employees to take charge of their benefits, you’re certain to have a more successful enrollment this fall. 1 Online survey of 1,200 U.S. adults administered March 23–30, 2020 by Dynata on behalf of Colonial Life 2 Online survey of 4,077 U.S. employers administered June 11–16, 2020 by Dynata on behalf of Unum

Jimmy Hinton Mississippi Territory Sales Manager, Colonial Life & Accident Insurance Company jhhinton@coloniallife.com Wes Hudnall Arkansas Territory Sales Manager, Colonial Life & Accident Insurance Company whudnall@coloniallife.com Chris Menard Tennessee Territory Sales Manager, Colonial Life & Accident Insurance Company cmenard@coloniallife.com

Committed to our customers — and our communities We offer our insurance benefits to every worker with a family and future to protect. And a helping hand to the communities where we work and live. See what we can offer you.

ColonialLife.com ACCIDENT  CANCER  CRITICAL ILLNESS  DISABILITY  DENTAL  LIFE  HOSPITAL INDEMNITY Insurance plans are underwritten by Colonial Life & Accident Insurance Company, Columbia, SC. ©2018 Colonial Life & Accident Insurance Company. All rights reserved. Colonial Life is a registered trademark and marketing brand of Colonial Life & Accident Insurance Company. 10-18 | AD-104

Our Response to the Community During COVID-19 By CARLEY MCREE

For

the employees of Southern Farm Bureau Life Insurance Company, and most of the world, our daily lives came to a halt in March 2020, as we all had to find ways to adjust and quickly change our way of life. At SFBLI, much of the day-to-day work in the Corporate Communication and Training Department is focused on our community outreach efforts. With many employee volunteer days planned for 2020 that had to be put on hold along with our large employee-driven fundraising effort held in conjunction with our summer employee picnic, we had to adapt and find new ways to continue our community outreach efforts. As we knew, many of our partners were, of course, still serving in our communities.

We reached out to many of our community partners to identify

We highlighted our community partners in several other ways

their current and most pressing needs at that moment. To

as well. Employees were encouraged to purchase Mustard Seed

kick-off our community giving efforts, we encouraged our

art through their online shop and support the Metropolitan

employees to submit “Messages of Hope” and words of encour-

YMCA by providing resources to help with food costs for

agement to Make-A-Wish MS kids. We asked that employees

the youth in Hinds County and the surrounding area. SFBLI

post these on social media so that the “Wish Kids” whose wishes

continued to be the title sponsor of Canopy’s 5K4Kids and,

were postponed could see the encouragement of many fellow

most recently, the Farm Bureau Watermelon Classic befitting

Mississippians! We also partnered with Canopy Children’s

the Mississippi Sports Hall of Fame and Museum. While

Solutions and asked employees to purchase items for kids who

encouraging our employees to remain active, we participated

were quarantined away from their homes. This was a small way

in two virtual races with Canopy Children’s Solutions and the

that our employees could give back and brighten a kid’s day.

Mississippi Hall of Fame and Museum. The virtual 5K’s were

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a way to keep our employees engaged with their health and well-being, to continue supporting our community partners, and to get families outside!

Legal Challenges are Coming at HR Professionals from Every Direction

Southern Farm Bureau Life Insurance Company was in a unique position that we had the resources and opportunity to feed those on the frontlines as well. In partnership with the Mississippi State Medical Association during April and May, we were able to provide relief for physicians and healthcare workers working in hospitals and clinics in Hinds, Madison and Rankin Counties. With an on-site Café at the home office building on Livingston Lane, operated by Sodexo, Southern Farm Bureau Life Insurance Company and the Sodexo staff prepared over 500 meals and delivered them to various health care workers and facilities in the tri-county area. Several Southern Farm Bureau Life Insurance Company employees delivered these meals throughout both months.

That’s Why Rainey Kizer Makes Your Business Our Concern

This partnership was a small way that SFBLI could show our appreciation and thanks to the frontline heroes who have been and are continuing to work tirelessly to protect Mississippians during the COVID-19 pandemic. Our company’s slogan “Your Friends for Life,” emphasizes one of our employees’ common threads of the desire to help others, be they family members or members of our community. We understand that for most of us, these are uncertain and scary times. However, despite those feelings, our employees are still moved to ask, “How can I help?” As we continue to navigate the COVID-19 pandemic, we will continue to look for opportunities to be a friend to our community partners.

As the issues facing HR executives become more frequent, challenging, and complex each year, you need a law firm that provides advice invidualized for you specific needs. This is why you should know the employment law attorneys at Rainey, Kizer, Reviere & Bell, PLC. For over 40 years, our AV-rated firm has advised businesses, non-profit organizations and government agencies on all aspects of employment law. To learn more, please call.

Memphis

Nashville

901.333.8101

615.613.0442

Jackson

Chattanooga

731.423.2414

423.756.3333

Carley McRee, FLMI, ACS Program Development Coordinator

Corporate Communications and Training Southern Farm Bureau Life Insurance Company cmcree@sfbli.com www.sfbli.com

Tennessee does not certify specialists in the area of employment law.

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ERISA

Profiles of and Employee Benefits Attorneys The focus of our August issue is retirement planning and compliance. This is a very complex function of the HR profession that requires expert legal advice. We are excited to bring you some profiles of highly successful ERISA and employee benefits attorneys in your areas that are available to assist you. We hope that you find this guide helpful as you work through the ever-changing regulations and requirements necessary to assist your employees with their retirement planning.

Ogletree Deakins has one of the largest teams of employee benefits, executive compensation, and Employment Retirement Income Security Act (ERISA) litigation practitioners in the United States. As part of a firm that focuses on labor and employment law, Ogletree Deakins’ ERISA Litigation Practice Group applies technical litigation experience and employee benefits knowledge to clients’ needs. For over 25 years, Ogletree Deakins attorneys have been representing employers, insurers, and employee benefits plans in litigation involving the denial of life, health, disability, and retirement benefits; breaches of fiduciary duty; bad faith; claims of misrepresentation; and subrogation and reimbursement.

Tom Henderson

Bill Gray

SHAREHOLD E R | ME MP H IS

O F C O UN S EL | AT L A N TA

Tom 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.”

Christina Broxterman SHAREHOLD E R | AT LAN TA

Christina represents clients in the areas of qualified and non-qualified retirement plans, health and welfare plans, ERISA compliance, COBRA administration, compliance with the privacy rule under HIPAA, and other federal laws relating to employee benefits matters. Christina assists clients in designing and drafting plans, advises clients with regard to the legal requirements for operating and administering plans, and prepares and submits filings to the Internal Revenue Service, Department of Labor, and the Pension Benefit Guaranty Corporation. She also negotiates and drafts employee benefit provisions in various types of mergers and acquisitions, and performs related due diligence.

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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.

Ruth Anne Collins Michels S HA R EHO L DER | AT L A N TA

Ruth represents clients in the areas of qualified retirement plans, health and welfare plans, fiduciary compliance best practices, nonqualified deferred compensation plans, ERISA compliance, COBRA administration, HIPAA privacy regulations, and compliance with other federal laws relating to employee benefits matters, including the Affordable Care Act. Her practice focuses on assisting clients in ensuring their retirement and health/welfare plans remain compliant with the myriad tax laws and new health care reform requirements.

John Morrison

Christopher C. Guthrie

SHAREHOLD E R | AT LAN TA

AS S O C I AT E | AT L A N TA

John’s practice encompasses all aspects of executive compensation and employee benefits, focusing on the design and analysis of executive compensation arrangements and related corporate governance and disclosure matters. He also has extensive experience advising on executive compensation and employee benefit issues in connection with mergers and acquisitions; corporate restructurings; and financings, including change of control and retention agreements and golden parachute excise tax mitigation strategies.

Chris focuses his practice on qualified and non-qualified retirement plans, ERISA compliance, executive compensation arrangements, health and welfare plans, and taxation. While in law school, Guthrie served as President of the GSU Moot Court Board for the 2016 – 2017 academic year and was a student advocate in the Philip C. Cook Low-Income Taxpayer Clinic, where he received the Ginny and Kelly Smith Tax Clinic Fellowship for three semesters and the J.B. Moore Award from the Atlanta Bar Association – Tax Section for exceptional client service while working in the Clinic.

Robert Ellerbock

Taylor Bracewell

OF COU N S E L | BIRMIN GH AM

AS S O C I AT E | AT L A N TA

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.

Taylor focuses his practice on qualified and non-qualified retirement plans, ERISA compliance, executive compensation arrangements, health and welfare plans, and taxation. Bracewell has extensive experience advising clients regarding deferred compensation arrangements, particularly with respect to tax-exempt clients such as credit unions and private foundations. Further, Bracewell provides counsel to tax-exempt clients regarding the tax implications of deferred compensation arrangements.

At Littler, we understand that workplace issues can’t wait. With access to more than 1,500 employment attorneys in over 80 offices around the world, our clients don’t have to. We aim to go beyond best practices, creating solutions that help clients navigate a complex business world. With deep experience and resources that are local, everywhere, a diverse team of the brightest minds, and powerful proprietary technology, we deliver groundbreaking innovation that prepares employers for what’s happening today, and what’s likely to happen tomorrow. Because at Littler, we’re fueled by ingenuity and inspired by you.

Wesley Stockard

J. René Toadvine

SHAREHOLD E R | LIT T LE R AT LAN TA

S HA R EHO L DER | L I T T L ER C HA RLOT T E

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.

J. René Toadvine maintains a nationwide practice that focuses on representing management in all facets of employee benefits matters, including employee benefits tax issues; the Employee Retirement Income Security Act (ERISA) and benefits planning; executive compensation; employee benefits in mergers and acquisitions; and bank finance and ERISA issues in securitizations. René designs and drafts employee benefits and executive compensation plans with adherence to compliance regulations, including qualified and non-qualified retirement plans; health and welfare plans; severance plans; disability plans; equity compensation; and deferred compensation.

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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

PA RTNER | LIT T LE ROC K

PA RT N ER | 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

PA RTNER | LIT T LE ROC K

PA RT 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 the design, implementation, maintenance and administration of tax-qualified retirement plans (including defined benefit pension plans, profit sharing plans, 401(k) plans and ESOPs), 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.

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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 PA RTNER | LIT T LE ROC K

Brian C. Smith focuses his practice on retirement plans (including defined benefit plans, profit sharing plans, 401(k) plans, ESOPs, 403(b) plans and 457(b) plans) and nonqualified deferred compensation plans for financial institutions, business entities, professional corporations and governmental and non-profit organizations. Brian assists plan sponsors and fiduciaries with ERISA regulatory compliance, state and federal tax issues and local legislation affecting retirement plans. In addition, he represents plan sponsors and fiduciaries with respect to plan audits by the Internal Revenue Service and the Department of Labor. Brian has been with the firm since 2003.

RETURNING TO WORK DURING COVID-19

Joshua M. Osborne PA RTNER | LIT T LE ROC K

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.

Jeremiah D. Wood PA RTNER | LIT T LE ROC K

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 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.

You have questions, we have answers Our Employee Benefits attorneys have written several articles to help provide clarity in these uncertain times. CARES Act Impact on Retirement Plans and Welfare and Fringe Benefits Changes to Group Health and Retirement Plans Retirement Plans During the Pandemic

www.FridayFirm.com/Coronavirus

Attorneys At Law www.FridayFirm.com www.HRProfessionalsMagazine.com

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

David Thornton

COU NS E L | N AS H VILLE

M EM B ER | M EM PHI S

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.

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.

Doug Dahl M EM BER | N AS H VILLE

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

Noah Black AS S O C I AT E | N AS HV I L L E

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.

M EM BER | N AS H VILLE

Curtis Fisher advises public and private companies on all aspects of employee benefits, including the design, drafting and operation of qualified plans and health and welfare benefit plans. A significant amount of his practice is devoted to employee benefit and executive compensation matters related to merger and acquisition transactions. In the past two years alone, Curtis has provided advice in more than 25 merger or acquisition transactions.

Catherine Norton AS S O C I AT E | M EM PHI S

Catherine Norton works with clients on the design, implementation and administration of health and welfare benefit plans, qualified benefit plans, and deferred compensation packages. She also provides diligence and support on employee benefits and compensation issues arising in corporate transactions.

Fritz Richter M EM BER | N AS H VILLE

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.

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Brett Good AS S O C I AT E | N AS HV I L L E

Brett Good provides advice to companies on federal tax and employee benefit matters, including qualified retirement plans, equity incentive plans, executive compensation arrangements, and health and welfare plans. He regularly advises clients on compensation and employee benefit issues that arise in connection with mergers and acquisitions, financings, and other corporate transactions. Prior to rejoining Bass, Berry & Sims, Brett was an associate with Goodwin Procter LLP in Silicon Valley.

Affordable Online SHRM-CP® | SHRM-SCP® Certification Exam Prep Class Online classes begin Oct. 19, 2020 and will meet twice per week for 12 weeks on Monday and Wednesday evenings from 6:00 PM to 7:00 PM.

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Deadline to register is October 12, 2020 Contact cynthia@hrprosmagazine.com OR visit our website at www.hrprofessionalsmagazine.com

About the instructor: Cynthia Y. Thompson is Principal and Founder of The Thompson HR Firm, LLC, a human resources consulting company in Memphis, TN. She is a senior human resources executive with more than twenty years of human resources experience concentrated in publicly traded companies. She is also the Publisher | Editor of HR Professionals Magazine, an HR trade publication distributed to HR professionals in Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina and Tennesse. The mission of the publication is to inform and educate HR professionals. Cynthia has an MBA and is certified as a Senior Professional in Human Resources by SHRM and HRCI. Cynthia is a faculty member at Christian Brothers University in Memphis teaching Human Resource Management. Cynthia also teaches online HR Certification Exam Prep Courses for HRCI and SHRM. She is a sought-after speaker on HR Strategic Leadership. www.HRProfessionalsMagazine.com

The Shield of Silence By WILLIAM CARMICHAEL

is beyond me that workplace harassment and bullying still exists today. And regardless of the business or industry, where should we lay the blame for the toxic culture of malicious abuse that saturates our workplaces? To quote a legal scholar, “The problematic environment stretches far. It includes our schools

and colleges, our social media platforms, even our public institutions. Anyone whose eyes are open knows the problem is real. Less obvious is why this toxicity began, what it feeds on, why we tolerate it, and whether we will ever do anything about it.” In The Shield of Silence: How Power Perpetuates a Culture of Harassment and Bullying in the Workplace, Lauren Stiller Rikleen harnesses evidence-based research, countless interviews, and the power of her own intelligence and legal experience. She identifies not only some of the most pernicious root causes of harassment but ventures into how we might overcome its destructive presence.

As Rikleen articulates, the second factor and perhaps the more destructive is secrecy. Quoting from a Bloomberg Businessweek article about a class action lawsuit against Goldman Sachs, the author highlights, “a culture that fetishizes secrecy and loyalty, that discourages victims from reporting their mistreatment.” Indeed, what Rikleen identifies is that the problem is not just discouragement; the problem is also punishment for speaking up. The result of those consequences is a code of silence. And with silence, the problem persists in all its forms. My initial response to this harmful dynamic was, “Secrecy yes . . . but loyalty to whom?” Of course, the answer to that question often results in actions by those with power that express, “Not to the victims.”

And What About Training? A Culture of Abuse According to the author, “Allegations of sexual assault, harassment, and other misconduct are in no way confined to those in positions of privilege. As this book makes clear, it is an endemic result of a culture that devalues women, leaders who do not place a priority on respect and inclusion, and entrenched biases that bloom within structures and processes that fail to support systems to challenge those biases.” The book also reveals the two dominant factors that perpetuate a culture of abuse: fear and secrecy. Whether or not you’ve experienced workplace harassment, you will nonetheless recognize both factors in an instant, because you’ve likely witnessed them. While a victim may ultimately settle on outrage, anger, frustration—any number of emotions, the first one that everyone experiences who has been targeted by a harasser is fear. It comes most noticeably in cases of physical violence or coercion. Mostly, it triggers a basic fear for one’s safety and bodily integrity. Yet it arises in other forms, just as debilitating. For instance, even a misplaced suggestive or risqué comment engenders fear in the target and renders questions such as, “Will I lose my job? Will he come after me? Will anyone listen? Will anyone believe me and even if they do, will they care?” Understanding that your actions may trigger fear in others unfairly teaches us that the harasser’s real intent is power, not sexual gratification.

www.HRProfessionalsMagazine.com

While The Shield of Silence: The Shield of Silence: How Power Perpetuates a Culture of Harassment and Bullying in the Workplace is validating for anyone who has endured episodes of mistreatment, harassment, and unchecked bullying, it offers so much more. Critically, it sets forth a blueprint for how organizations can go about changing their cultures, not just their policies or practices, but the essence of what has kept them from advancing toward a spirit of alliance and cooperation in eliminating one form of oppression in our workplaces. Clearly this blueprint, among other things, is the need for continued training but there is more than meets the eye here. Unfortunately, most harassment training tends to focus on the prevention of legally actionable behaviors rather than that of influencing true behavioral change. This is where Rikleen’s suggestions to leadership about how to induce real change is so beneficial.

Why This is a Must Read I recommend The Shield of Silence to anyone who has suffered bullying or harassment at work. I recommend it more urgently to anyone who has perpetrated it or allowed it to continue after learning of it. I recommend it most enthusiastically to those in a position of authority in any organization that hasn’t thoroughly eliminated bias from his or her workplace. Finally, this book is an invitation to consciousness. Bullies sometimes may not even know they are bullying because their way of functioning is all they know. Their lack of awareness is not a justification and should never be one. Nonetheless, this book can help invite awareness. Ultimately, this book compellingly argues that sexual harassment and other negative behaviors will not be stopped unless the condition that drives victims and bystanders into silence, is eliminated.

Structure and Layout

ABOUT THE AUTHOR:

Lauren Stiller Rikleen, president of the Rikleen Institute for Strategic Leadership, is a nationally recognized speaker, consultant, and trainer who provides practical strategies for changing workplace culture, removing obstacles to women’s leadership and advancement, minimizing the impacts of unconscious bias, and strengthening multi-generational teams.

At 176 pages, The Shield of Silence can easily be read over a weekend although I encourage readers to not hurry this one as each of its nine chapters deserves a second walkthrough. And like a textbook, readers will appreciate a very structured and practical layout that is linear by design. Topics are well researched as demonstrated by a Notes section that, quite honestly, is remarkable. So is its Appendix whereby Rikleen provides an informative and descriptive look into #MeToo movement as surveyed by the Women’s Bar Association of Massachusetts. This one is worthy of your time!

Who Will Benefit Most from This Book? Human Resource Professionals, Corporate Trainers, Management (at all levels)

William Carmichael, Ed.D

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

Congratulations to these newly certified HR professionals who recently passed their HRCI exam!

Ramona R. Rook, PHR

Senior Human Resources Director at Lone Star Communications, Inc. North Little Rock, Arkansas

Haley Fordham, MBA, PHR HRIS Analyst at Cooperative Energy Hattiesburg, Mississippi

Our next Online HRCI | PHR | SPHR Certification Exam Prep Class begins August 17, 2020. Deadline to register is August 10, 2020. www.hrprofessionalsmagazine.com

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Litigation, and Legislation

Pharmacy Trends,

mployer-sponsored health and pharmacy plans continue to experience rising costs in their drug expenditures. During these times of economic slowdown, financial uncertainty, and a greater focus on expense control, employers have an opportunity to look at different ways to manage drug spend. There are some good examples of employers in Mississippi and in the Southeast working to reduce the waste and unnecessary cost and also promoting good patient consumerism. However, more employers need to step up and take more meaningful action by identifying key levers and moving to value-based benefit designs which reduce barriers to high valued services, products, and programs. Employer-sponsored health plans have worked with Pharmacy Benefit Managers (PBMs) over many years to process claims between the pharmacy and the plan. They have been around since the early 70’s and 80’s and have grown to doing more than their initial intention. These additional efforts have caused friction with the local and independent pharmacies as they usually must pay a higher price due to contracting and volume differences. Also, PBMs offer programs that steer plan members to specific pharmacies and to mail-order programs which also causes friction with local pharmacies. These programs are promoted as cost savings to the plans and their members and have worked to improve compliance and cost. With all this friction, it is important that employers begin to work with proven transparent PBM’s who share data and assist with looking at ways to improve value of the investments into these benefits plans. 44

www.HRProfessionalsMagazine.com

By MURRAY L. HARBER

POLICY & LITIGATION There is an increasing number of lawsuits popping up across the country questioning the fiduciary responsibility of the managers of the health plans putting into question effective use of plan assets. Plan sponsors need to be able to secure good quality data and to know where their money is being spent. Across the country there is a movement to change both state and federal statues to change the way the PBMs operate. The U.S. Supreme Court will be making a ruling on a case “Rutledge vs PCMA” which will decide if states have the right to regulate PBM’s. This case began in Arkansas and worked its way through the U.S. Court of Appeals Eight Circuit. ERISA is the current overseer of employer-sponsored plans from a federal level and limits the control of state regulation of PBMs. When this decision is released, it will give clarity to the situation and actions can be taken thereafter with a more a more focused image. Currently, different states are passing similar but different local legislation which has conflicting policies and questions about the effect on patient care. In Mississippi, legislation passed this session related to PBM’s gives the Board of Pharmacy more control and shortens the deadline to pay claims from 15 days to 7 days called “prompt pay” in the law. The law also eliminates the “claw back” process where currently PBMs can retroactively change the fee after the claims as been adjudicated. The law also requires PBMs to share with pharmacies their Maximum Allowable Cost (MAC) list and send out timely communications on updates to the list. It is reported that these efforts will “level the playing field” for all pharmacies in the state.

TRENDS Specialty pharmacy costs within the health plan can be an area that can elevate way beyond the needed costs. For example, having an infusion in the hospital will cost more than an outpatient facility or physician’s office which is much more than being delivered during a home health visit. These site of care options influence the overall cost of care drastically both to the patient and the health plan. Pharmacy costs continue to change through the costs and complexities of the complicated supply chain of planning, designing, testing, developing, selling, distributing, dispensing, and delivering. Due to all of these so called “middlemen” cost of drugs increase drastically. Typical PBMs business models include ingredient cost and cost of dispensing as primary variables. Employers are wanting more integrated programs and services which provide value. Middlemen continue to add to the cost of drug claims that was the subject of “Drawing a Line in the Sand” published by the Midwest Business Group on Health in 2018 that was coauthored by Randy Vogenberg, PhD, FASHP who is the Board Chair of Employer Provider Interface Council (EPIC). “Dr. Vogenberg underlined that employers are caught in the middle with specialty drugs. To aid employers an employer toolkit was developed that support health benefits professionals in making critical and informed decisions, which can be found at www.specialtyrxtoolkit.org.” Adding in delivery and in depth consultation such as Medication Therapeutic Management can improve both adherence and satisfaction. The Veterans Administration (VA) was one of the first to develop then fully implement MTM in the late 1970s-to-mid80s. Since PBM’s usually do not pay for that level of service, plan-sponsors have to implement themselves.

A NEW FOCUS FOR EMPLOYERS There is a large employer in Mississippi, who has kept their pharmacy claims to under 10% - the national average is around 15% - currently in pharmacy cost as a percentage to total costs. They do this by having members pay cash for all medications where they have a joint medical and pharmacy deductible and then the plan pays 100% for generics and 80% for brand medications. Their efforts have improved the knowledge of true cost of the medications to both the provider and the patient. Several employers work with local pharmacies to deliver onsite as well as having mail-order medications shipped to the workplace to each person. Key action items from Dr. Randy Vogenberg, a thought leader who has been in the business for over 30 years, has three pathways for success for employer-sponsored plans which are as follows:

Complete Transparency – Employers need to know what they are getting and what they are paying for it. The employer has a fiduciary responsibility – if you do not know what you are paying for then they have skirted their fiduciary responsibility.

More Efficient Supply Chain – with technology today, you do not need all the middlemen and there is opportunity for continuous process improvement in managing the cost and quality of the supply chain.

Member’s Best Interest – Add in more value-based solutions, evolve consumer education, and reduced barriers to access and compliance. Plan sponsors need to do more in communicating, incenting, and engaging plan members.

In 2020, the National Alliance for Healthcare Purchasing Coalitions released a report from its Employer Roundtables on Drug Cost. Some of the recommendations include eliminating rebates, site-of-care solutions, full transparency, and other waste-reducing and value-generating programs and services. There are new ways of contracting with manufactures and distributors to reduce the number of transactions between the producer and the end user. As pharmacy and medical drug related claim costs continue to rise as a greater percentage of total cost, plan sponsors can do more to stem the tide by taking an active role in understanding and designing value-based benefits.

Murray L. Harber

Executive Director Mississippi Business Group on Health www.msbgh.org www.HRProfessionalsMagazine.com

Seven Ways to Lead Remote Workers with Emotional Intelligence By HARVEY DEUTSCHENDORF

The COVID-19 crisis has resulted in many more people working from home. This has accelerated a trend that was already well established. A 2016 Gallup Poll showed that 43% of office workers were already working from home part of the time. According to Global Workplace Analytics, 56% of the workplace could work at home at least part of the time. The main driver of the push to remote work in the past was organizations wanting to attract and retain top talent. Surveys showed that 80% of employees wanted to work from home at least part of the time. Aware of this desire by their staff, organizations began to adjust to increasingly allow their staff to work remotely. The incentive to allow their people to work from home since COVID-19 has shifted somewhat to cost savings. Global Workplace Analytics estimates that an organization can save $11,000 per year by allowing staff to work at home. Many organizations that have been forced to have their staff work from home during this crisis will have a powerful reason to continue to do so. One major issue, however, remains. Engaging staff, making them feel appreciated and part of the organization has always been a struggle. Having their people working remotely will only accentuate this problem. Using emotional intelligence to lead remote workers provides a solution.

Seven Ways to Lead Remote Workers with Emotional Intelligence 1. Think about and personalize your communication. Even though they are working remotely, your staff will still have the need to feel heard. Think about your mode of communication in terms of what your staff prefer individually, whether it be email, Skype, Zoom, Google Hangout or phone. One size does not fit all. If not sure, check-in with them. This will make them feel they have some sense of control and appreciate the effort you are making. There will of course be occasions, such as staff meetings, where this will not be possible. 2. Have some face to face and voice to voice time. Physical distance also creates psychological distance, making it more difficult to connect on an emotional level. While not as ideal as face to face, connecting in a way that allows us to see and hear the other person is crucial to maintaining the connection necessary for workers to feel a sense of belonging.

interests, hobbies and passions can help staff feel more of a sense of belonging. Encourage staff in their free time to connect with colleagues around common interests. 5. A cknowledge and celebrate successes, special occasions and milestones. One of the hallmarks of a healthy workplace is the extent to which they celebrate the contributions and successes of their staff as well as their acknowledgement of special events in the personal lives of their staff. While it may not be as powerful as being physically present, virtual get-togethers to recognize staff, teams and special events such as birthdays and new babies are crucial in creating camaraderie and a sense of belonging. 6. S how empathy in times of tragedy and illness. One of the most difficult things for some managers is knowing how to respond to a staff member who has become ill or lost a loved one. The manager can take the lead to find out what the affected person needs from him or her and from their colleagues. People handle loss and grief in different ways. The role of management is to find out what the best way is to support the person. This may be a time for a personal note or card. 7. L ook for opportunities to get together physically. While it may not be possible, or difficult for some time due to COVID-19 restrictions or distances, look for opportunities for staff to get together physically. While we can do a lot virtually, personal contact will always be the best way for people to get to know one another and feel connected. Look for times and opportunities to get together either formally as a company function, or informally to enjoy a fun event together.

3. Use conference calls to share stories and experiences. Managers can take the lead on conference calls by telling stories of their own struggles and personal situations. Doing so will encourage others to do so and give everyone a sense that they are in this together. A good way to start meetings is with a short check-in with everyone on how they are feeling as well as their struggles, challenges and triumphs from the last time they met. It is crucial that managers model this behavior as their staff will take their cue from their leaders as to how much they can and should share. 4. Look for ways to share what you have in common. For many people, the social aspect of sharing a physical workplace may be the activity that they will miss the most. Leaders can openly share their personal interests, preferences and experiences to show their human side. A platform that allows staff to connect around shared 46

www.HRProfessionalsMagazine.com

Harvey Deutschendorf is an emotional intelligence

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

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