August 2021 Digital Issue HR Professionals Magazine

Volume 11 : Issue 8

TM

www.HRProfessionalsMagazine.com

Business Agility: How Nimble Organizations Will Come Out on Top

Profiles of Top ERISA and Employee Benefits Attorneys

Frances

Flowers,

Should You

Mandate

SHRM-SCP, SPHR

Director of Tennessee SHRM

COVID-19

Vaccines?

ALSHRM

Save the Date for our August Webinars

Beach Retreat

October 7-9

Keeping up with changing laws is a full-time job, and you’ve already got one.

EMPLOYERS AND LAWYERS, WORKING TOGETHER Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. The firm has more than 900 lawyers located in 53 offices across the United States and in Europe, Canada, and Mexico.

www.ogletree.com BIRMINGHAM OFFICE

MEMPHIS OFFICE

420 20th Street North Suite 1900 Birmingham, AL 35203 205.328.1900

International Place, Tower II 6410 Poplar Avenue Suite 300 Memphis, TN 38119 901.767.6160

2 0 21

Join our monthly webinars to earn SHRM and HRCI recertification credits.

Bringing Human Resources & Management Expertise to You

63% of workers support their employer requiring that all employees get vaccinated as a condition of employment. www.HRProfessionalsMagazine.com

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 Trent Burner Cat Distasio Tracy Duberman Brad Federman Rosalia Fiorello Stewart Gott Kaitlyn A. Hansen David S. Jones Joel Lee Lisa Marino James A. Paretti, Jr. Jim Trujillo Randy Vogenberg

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. ©2021 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 Frances Flowers, Director of Tennessee SHRM 7 SHRM’s New Research on Returning to Work Post-Pandemic 33 Congratulations to Tiyana Childres-Porter, SHRM-CP! 28 HR Technology: Why Mobile-Centric Solutions Are the Answer

Talent Management and Recruiting 10 Business Agility – How Nimble Organizations Will Come Out on Top 12 Turning the Tide on the Talent Tsunami

Profiles of ERISA and Employee Benefits Attorneys 36 Ogletree Deakins

40 Bass Berry Sims

38 Friday Eldredge & Clark LLP

41 Littler

Employment Law 14 U.S. Immigration Today and Tomorrow 18 Wild After-Hours Halloween Workplace Event Leads to Spook-Tacular Case of First Impression in Tennessee Court of Appeals 34 Mandating COVID-19 Vaccines 41 Rainey Kizer Reviere & Bell PLC

Top Educational Programs for HR Professionals

20 HR Outsourcing 101

16 New SHRM People Manager Qualification Virtual Training

29 Welcome Employees Back with the Holiday Gift Check Program

17 4th Annual Supervisor and Manager Conference November 19 in Memphis

42 The Antidote to VUCA Burnout

19 Your Unique Leadership Development Needs, Met

43 The Leadership Development Group

44 Save the Date for Our August Webinars

51 Data Facts – A Background Screening Partner You Can Trust

45 Affordable Online SHRM Certification Exam Prep Class Begins October 25

Employee Benefits and Compliance

50 The Gold Standard for Professional Development 52 WGU Tennessee HR Program Fully Aligned with SHRM Curriculum

6 A Powerful Web-Based Platform that Reduces Group Insurance Administrative Hassles

Industry News

22 How To Enhance Your Employee Benefits and Reduce Your Costs 24 Preparing for Your Best Open Enrollment 26 Managing Adverse Selection Can Help Lower Costs 30 GERD Disrupts the Workforce and Your Company’s Workday 31 Real World Economic Evaluation Items Checklist Example – EPIC 33 Living Your Best Life Means Having Life Insurance

32 Better Together 21 Beach Retreat in Gulf Shores, AL October 7-9 46 2021 SHRMGA State Conference in Stone Mountain September 30-October 2 47 SHRM-Atlanta Annual SOAHR21 Conference September 27-29 48 ARSHRM State Conference in Rogers September 29-October 1 49 NCSHRM State Conference in Greensboro September 9-12 September Issue features Updates on Employment Law and Employee Benefits Deadline to reserve space August 15 www.HRProfessionalsMagazine.com

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We are kicking off the fall SHRM Conference season with a bang at the Music City Center in Nashville for the 2021 Tennessee SHRM Conference & Expo starring Johnny C. Taylor, Jr., President and CEO of SHRM. He will be our inspiring opening keynote speaker on August 15. He is also delivering the opening keynote in Louisville at the 37th Annual KYSHRM Conference. Hoping to see him in Las Vegas also August 22-25 for the 2021 SHRM Talent Conference. The grand finale for August will be at Kissimmee for the 2021 HR Florida Conference and Expo. It will be an exciting whirlwind month!

September will be just as exciting, as we kick off the month at the 2021 SHRM Annual Conference in Las Vegas – again on the 9th-12th! September 22-24 we are in Stone Mountain for the SHRM Georgia 2021 State Conference. Then we are back in Atlanta September 26-29 for the SHRM-Atlanta Annual Conference. (You can save $30 with code HRPRO2021!) Travel with us to Rogers for the Annual ARSHRM Conference September 29 – October 1. Then travel with us to the Better Together Beach

a note from the editor

Retreat October 7-9, Columbus Day weekend, at beautiful Gulf Shores, Alabama. Bring the family for a weekend of fun in the sun while picking up recertification credits. We close out October in beautiful Greensboro at the NCSHRM State Conference.

Think of the SHRM and HRCI credits you can earn in September and October! See the full page ads in this issue for all the details!

We are so honored to have Frances Flowers, SHRM-SCP, SPHR, and Director of Tennessee SHRM, on our August cover. What an accomplished HR professional for the past 29 years! She started her HR career in 1992 in payroll and is currently a senior human resources business partner at BlueCross BlueShield of Tennessee in Chattanooga. Hats off to Frances! Be sure to read her career profile on Page 5. We applaud her many years of volunteer service to SHRM. We are excited to present profiles of 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 as you plan for open enrollment season. Watch for our eBook coming soon that you may keep at your fingertips.

Want to be a SHRM-CP or SHRM-SCP? If you are not yet a certified HR professional, you have an excellent opportunity coming up!

Our next Online SHRM Certification Exam Prep Class begins October 25. You can register on our website to join our class now.

The deadline to register is October 18. These classes are affordable and convenient! You can take the class from the comfort of your home on your own computer. We are proud of our 80% pass rate! Get certified!

Hope you are enjoying our Thursday sponsored webinars! Mark your calendar now and plan to join us for my monthly webinar sponsored by Data Facts. You will earn 1.00 SHRM PDC and 1.00 HRCI credit.

It will be August 26 at 2 PM CT. We are discussing “Global HR and Your Role.”

Watch your email for your invitation!

cynthia@hrprosmagazine.com @cythomps

Building Healthier Lives and Workplaces We couldn’t serve our home state of Tennessee and our employees with excellence without leaders like our own Frances Flowers.

Frances, thank you for making us a better, more inclusive place to work and for giving decades of your time to help organizations like the Society of Human Resource Management. You’re an example of our company’s calling to serve and care for our communities.

© 2021 BlueCross BlueShield of Tennessee, Inc., an Independent Licensee of the Blue Cross Blue Shield Association

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Frances on the cover

FLOWERS

Frances Flowers, SHRM-SCP, SPHR Director, TN SHRM State Council Frances joined SHRM Chattanooga in 2005. She was elected to the SHRM Chattanooga Board in 1999 and served with the organization until 2018. Over the course of her 19-year volunteer career with the board, she held several positions, including secretary, treasurer, membership director, professional development director and president.

Frances was also chair of the TN SHRM Conference & Expo when it was held in Chattanooga in 2003, 2007, 2011 and 2015.

She was the sponsorship chair for the 1999 and 2019 conferences.

While serving as president of SHRM Chattanooga, she was also a board member of the Tennessee SHRM State Council and has held several positions with the organization, including secretary, treasurer and director elect. She is currently director of the board for 2021 and 2022.

Frances attended UTC and graduated from Covenant College with a B.S. in organizational management in 2001. She obtained her Professional in Human Resources (PHR) certification in 1998 followed by her Senior Professional in Human Resources (SPHR) certification in 2007 and her Senior Certified Professional SHRM certification in 2018.

Frances began her career in the human resources field in 1992, starting out in payroll and working her way up to HR Manager at Air & Hydraulic Equipment, Inc. (AHE).

In her current role as senior human resources business partner for BlueCross BlueShield of Tennessee, Frances oversees all aspects of human resources management for more than 1,000 employees across eight divisions of the company. She conducts strategic workforce planning with management and is responsible for delivering data analytics reporting. Prior to this role, she served as the human resources consultant for the HR call center at BlueCross, acting as the liaison for recruiting, employee relations and human resources business consultants.

Before joining BlueCross, she also worked as an HR manager for Superior Mfg, HR director for Venture Services, and Payroll and Benefits manager for Heil Environmental.

Frances is the 2001 recipient of the Professional Excellence Award from the TN SHRM Human Resources Conference. She was also a recipient of the BlueCross BlueShield of Tennessee Pinnacle Award for collaboration and partnership in 2008. 

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HRASimple supports the health insurance evolution This powerful web-based platform dramatically reduces group insurance administrative hassles In what has been described as an “evolution in health insurance,” a growing number of employers are taking advantage of an Individual Coverage Health Reimbursement Arrangement — more commonly known as ICHRA. Designed as an affordable alternative to costly group health insurance, this federal program is dramatically transforming the way employers offer health insurance to their employees. With an ICHRA, employers provide tax-free reimbursement to their workforce to purchase an individual health plan and, in the process, save an average of 15% compared to traditional group coverage.

To take full advantage of the money-saving benefits of an ICHRA, employers need a way to effectively put it into place. Enter HRASimple, one of the nation’s first and largest innovators to use administrative tools to support ICHRA.

Q: What exactly is HRASimple?

A: HRASimple is a powerful, web-based platform for

administering an ICHRA. HRASimple handles all the administrative tasks, simplifying the employer’s role and lowering costs of implementing and managing an ICHRA.

Q: How is HRASimple different than other ICHRA platforms?

A: Here’s a key difference: Employees have a one-stop site for finding, comparing, and enrolling in plan options. There are dozens of plans from which to choose, including off-market options. Each family member can select a different individual health plan with the level of coverage that meets their specific needs.

HRASimple is a HealthOne Alliance, LLC company. HealthOne Alliance is a founding member of the HRA Council (HRACouncil.org).

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Q: How does the reimbursement process work?

A: The employer is responsible for deciding the

reimbursement amount for employees. HRASimple then pays the monthly premiums on behalf of each employee and reconciles them with the employer.

This eliminates reimbursement delays and saves the employer plan administrator a considerable amount of time each month.

Q: How does HRASimple impact an employer’s bottom line?

A: As noted earlier, HRASimple enables employers

to take advantage of the savings that an ICHRA offers compared to group health plans — with less administrative hassle. Consider the case of Hamilton Health Care System in Georgia. When this renowned organization implemented an ICHRA and used HRASimple to administer it, the results were impressive. Hamilton realized annual savings of $7,285,032 for 2021 for their employee health insurance.

Q: What are some other advantages of HRASimple?

A: Employers have access to HRASimple’s educational

materials to guide them in implementing an ICHRA. HRASimple also performs ongoing platform tasks — including uploading qualified receipts and monthly accounting — and provides a dedicated customer service line with extended hours.

TO LEARN MORE: Call or email Mark Mixer, HRASimple CEO: 706-403-5672 • MMixer@HRASimple.com www.HRASimple.com/save

RETURNING TO THE

WORKPLACE How organizations are transitioning employees back into the workplace post-Covid In order to effectively restore the U.S. economy post-Covid-19, organizations must figure out how to safely return workers to physical worksites. After more than a year of remote work for many sectors of the economy, some workers are hesitant to return to the office.

However, widely available vaccines have helped to improve the attitudes of employed Americans towards going back to work in-person.

The vast majority of Americans who currently work in-person feel comfortable about their health and safety at work, a 15% increase since March and a nearly 30% increase compared to June of 2020.

85%

OF U.S. WORKERS WORKING IN-PERSON FEEL COMFORTABLE REGARDING THEIR HEALTH & SAFETY

American workers who have already returned to their workplaces and those that continued to work in-person throughout the pandemic report being comfortable with their safety in the office at 20% higher rates than those who are still logging into work from home.

The major conditions influencing worker comfort with in-person work are:

number of employees at the workplace (50%)

organizational safety policies and procedures (36%)

proper social distancing protocols (35%)

The Impact of the Delta Variant Over half of U.S. organizations are concerned about the impact of the Delta variant strain of Covid-19, with 60% planning to encourage their workforces to get a vaccine booster shot when it becomes available.

Workers who are already vaccinated are overwhelmingly planning to get a booster shot, while unvaccinated workers are unlikely to get either vaccine.

While organizations can enact policies and procedures to mitigate employee concerns about returning to work, undoubtably, vaccines have had the largest influence on the comfort of employees in the workplace.

Nearly three-quarters of U.S. workers (72%) are fully vaccinated against Covid-19, with almost one-fifth of the remaining unvaccinated workers (17%) planning to get vaccinated in the near future.

92%

45%

OF BUSINESSES ARE CURRENTLY AT LEAST PARTIALLY IN-PERSON

36%

As corporate America reopens its offices, most organizations have either fully or partially returned their employees to in-person work, and less than 10% continue to operate fully remote workforces. For those that have yet to return all employees to in-person work, nearly 40% have a set date for their return.

11% 8%

Partially returned

Fully Fully Remained returned in-person remote

Despite this, organizations may need to plan for more flexibility about work arrangements than pre-pandemic. Almost one-third of employed Americans (30%) would prefer to work remotely in some capacity, and plan to search for another remote or hybrid job elsewhere if their current employer doesn’t give them the option; an 11% increase since April.

American workers are largely supportive of the concept of vaccination mandates from employers, though most organizations are unlikely to take this kind of step. Currently, only 11% of organizations are currently requiring or planning to require vaccination.

However, workers who want to go maskless or stop social distancing may need to get shots—almost onethird of organizations (29%) will require employees to provide proof of vaccination before relaxing safety protocols.

METHODOLOGY A sample of 1,000 employed Americans was surveyed using Lucid. The survey was administered Tuesday, June 22 to Wednesday, June 23, 2021.

For the purposes of this survey, we refer to “employed Americans” as those who are either working as a paid employee or have been temporarily laid off or furloughed due to the COVID-19 pandemic.

Though only 29% of employed Americans say their organization is requiring or planning to require them to get the Covid-19 vaccine...

29%

...almost two-thirds (63%) would support their employer requiring that all employees get vaccinated as a condition of employment.

The HR survey was fielded from June 22 - June 24, 2021. In total, 1,000 HR professionals responded to the survey, of which 200 were sourced from Lucid and 800 were sourced from SHRM membership. Academics, students, consultants, and retired HR professionals were excluded from the survey.

ABOUT SHRM SHRM, the Society for Human Resource Management, is the foremost expert, convener and thought leader on issues impacting today’s evolving workplaces. Learn more at SHRM.org and on Twitter @SHRM.

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63%

NOW MORE THAN EVER NEW POSSIBILITIES FOR THE WORLD OF WORK ARE ACHIEVABLE.

Johnny C. Taylor, Jr., SHRM-SCP President and CEO SHRM

Marissa Andrada

Chief Diversity, Inclusion and People Officer Chipotle Mexican Grill

Brian Niccol

Chairman and CEO Chipotle Mexican Grill

Bert Jacobs

Chief Executive Optimist Life is Good

HEAR REAL, INSPIRATIONAL STORIES FROM CHIPOTLE MEXICAN GRILL, LIFE IS GOOD AND SHRM. Learn their unique perspectives on: • Creating change that positively impacts employees and the bottom line.

• The importance of a dynamic CEO/CHRO partnership in today’s workplace.

• Embracing the power of optimism as a key to leadership and growth.

SHRM21 will equip you with the strategies, tools and critical insights you need to confidently guide your workplace during ever-evolving times.

Space is limited – secure your spot today! shrm.co/shrm21-hrm

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Business Agility: How Nimble Organizations Will Come Out on Top

By CAT DISTASIO

Business agility relies on data, which can help organizations retain talent and reduce turnover, address pay equity and support diversity and inclusion efforts in meaningful ways.

In the world of business, it's impossible to prepare for every possible outcome or chain of events. But when organizations invest in flexibility, it allows leaders to act faster and make better decisions when the need to pivot arises.

Having access to the data you need, when and where you need it, is a major component to business agility. Tools that offer prescriptive insights can be even more valuable, as they help leaders dig into the whys and hows of the challenges they must overcome.

"For leaders, it is about being ready to act by being close to your people and your data," says Linda Mougalian, Senior Division Vice President, Growth Marketing at ADP. "You're ready to act because you have can visualize the trends as they shift, and you know how your people feel. This is incredibly valuable as you look to make key business decisions that will impact both your people and your business outcomes."

There is a growing trend toward tools that help leaders become more nimble in their ability to act — and react — to changing circumstances within their organization and in the world beyond. Part of this is the development of tools that surface key trends and anomalies and then allow leaders to drill down data to a more granular, individual level, to make more educated decisions about their workforce.

The benefits can be numerous. Business agility can help organizations retain talent and reduce turnover, address pay equity and support diversity and inclusion efforts in meaningful ways. Here's a deeper look into how business agility impacts each of these three areas.

Retention and turnover Organizations work hard and invest a lot in finding the right talent. Keeping employees engaged and keeping turnover low are key objectives — ones that often elude leaders if 10

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they're unable to gain insights into why people are leaving the organization. Tools that offer a holistic view of teams can help leaders understand what is influencing employees and help them identify problem areas before it's too late.

"ADP offers dashboards and tools to help leaders uncover the root causes that can lead to costly turn over." says Mougalian. "Employers are struggling to find and keep qualified talent.

The ability to look at risk potential proactively is critical. There are numerous drivers of turnover and they vary by role, team and locations. Tools that can help to identify the relevant drivers allows leaders to be proactive in building plans to retain key talent and making better hiring decisions for long term success. "

By exposing these insights, leaders can identify actual pay equity problems and address them, while simultaneously spotting patterns and trends that can help them create plans to reduce future instances of inequality.

Diversity and inclusion It's been said many times that diversity and inclusion initiatives alone will not and cannot create a diverse organizational culture. True diversity and inclusion can only happen when leaders are personally invested in understanding where their organization is, and then taking conscious action to make change.

Are there other factors within your control that may cause your team members to look for new opportunities outside your organization?

With the right data, leaders can take action to mitigate problems and make work better for employees, which can help them stick around a lot longer.

A diversity and inclusion dashboard offers data-informed insights that can help leaders understand the organization's current state and help to identify opportunities to improve beyond pay equity to hiring and promotion approaches.

Pay equity

Building agility today to do business tomorrow

Visibility is perhaps one of the biggest obstacles to achieving pay equity throughout an organization. A pay equity dashboard can help to shine light on potential inequalities within your organization.

"Having trusted and insightful data allows companies to take action with confidence and then measure their progress." says Mougalian.

"Making improvements often takes a mix of approaches to address unique situations that have emerged over time. Once you can see where you stand you can make a thoughtful plan based upon deeper understanding."

The right tools can illuminate potential problem areas, such as when two employees with the same job title have drastically different compensation. Tools powered by robust data can give leaders a full view of the situation, including years of experience, certifications, education and other factors that can affect pay differences.

When leaders are equipped with the right tools and information, they are ready to respond quickly to all kinds of business challenges. Organizations that invest in tools to make this kind of data easily accessible and readily available when leaders need it can identify opportunities faster and work toward alleviating problems before they get out of control.

As recent events have illustrated, organizations have a better chance at success if their leaders can plan for a number of possible scenarios and be ready to act — no matter what challenges are presented.

"The more insights we can give to business leaders from organizational trends to individual situations, the more confident they can be in planning and making decisions based upon meaningful data they can trust," says Mougalian.

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r ning

th

e T ide on the Tur

F

inally, the pandemic is receding and people are returning to work. Wait! A record 4 million people quit their jobs in April alone? More Americans are quitting their jobs than we have seen within the past 20 years. One survey from Monster found that 95% of workers are considering changing jobs and Microsoft research found that 41% of workers globally are thinking of leaving before the year is out. A stark shift from a year ago when millions of Americans lost their jobs. Call it ‘The Great Resignation’, ‘The Great Reshuffling’ or ‘The ‘Turnover Tsunami.’ The big questions are:

1. What is going on?

2. What has changed?; and 3. What can we do about it?

What is going on?

The world changed and we are never going back to the way it was.

Events unfold every once in a while that shape a generation. The Great Depression, Pearl Harbor, Watergate, the Moon Landing, the Fall of the Berlin Wall, Challenger Disaster, 9/11, and now COVID-19.

During the pandemic many people went through a mindset change causing their values and priorities to shift. The impact of the pandemic was profound. Certain people were dealing with issues of isolation as well as mental and emotional stress. Others felt guilty because they were doing well while people they knew were suffering, front line workers experienced brutal work conditions and hours, and many became accustomed to a walk down the stairs as their commute and working in their pajamas. A migration occurred because it no longer mattered where you lived, people lost loved ones never being able to see them or mourn for them in their traditional manner, many lost their jobs and feared their later years would be negatively impacted, and so much more. Moments like this cause people to reevaluate what is important to them, what they are willing to and not willing to trade, and how they want to live their life. Moments like these change hearts and minds. We have not witnessed anything quite like this before. There are few parallels to be pointed at, none of them recent.

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i

Tu

su T r e nov

m a n

BY BRAD FEDERMAN

What has changed?

Work is no longer about a paycheck. It has to pay for more than the bills. Work is now about accommodating one’s life, life-goals and values. Work is now an expression of who we are and what is important to us. Work is about being valued and being treated fairly.

Many employees are burnt out, want a sense of balance and need to create an experience that highlights self-value. And while a paycheck is not enough, workers are demanding they be paid fair and livable wages. In essence, Americans are finally saying that they want to ‘Work to live and not live to work.’ People had a taste of flexibility and the ability to manage the personal and the professional. They do not want to lose that ability.

Certain employees are quitting without having another job and choosing a lack of security. As we return to work people are resigning as a health precaution for themselves or to protect those around them.

Childcare has created challenges for employees as we congregate at the office again. Those with children want to maintain flexibility in order to support their families post pandemic. That means they desire scheduling time at home and maintaining flexibility.

Many have moved and cannot return to the office. They moved to a place that was more cost effective for them, that had the lifestyle they truly wanted, for a better climate, to be close to family, and more.

They do not want to give that newfound benefit up.

What can we do about it?

1. We must first recognize that the world changed and so did we. Sometimes it is difficult to recognize how we have been affected by recent events, but we must recognize the impact the pandemic has had on society as a whole. Our employees today are not the same employees they were prior to Covid-19.

2. Know that the ability for you to retain your workforce is a differentiator that will impact your revenue, profitability, and customer loyalty/retention. Employee retention is a business issue and right now it is one of the most important issues affecting business success.

3. Not all employees are equal. Their impact and performance, the difficulty to replace that person or train a new employee in that role, and their potential capability will help determine where you need to invest your time and energy.

4. Understand that the reasons why people stay and why they leave are different. Compensation, for instance, can cause people to leave if it is low, but is rarely the reason for sticking around.

Work factors such as job security, benefits, work environment, interesting work all impact retention in some way. Get clear on all of the work factors that are making a difference, positive or negative, in your workplace.

5. Recognize that managers have a great deal of influence on retention well beyond their leadership style. Help them determine what is within their sphere of influence. Too often managers rely on the organization when they can make a difference themselves.

6. Help managers identify attrition triggers such as downsizing, return to work efforts, bonuses being paid out and more to be more cognizant of potential departures. Manty trends regarding attrition are predictable when you know what to look for.

7. Train your managers on picking up on early warning signals employees demonstrate such as changes in behavior, changes in performance, divorce, and death in the family. These early warning signals should provide managers insight and time to address prior to a person deciding to leave if they are paying attention.

8. Train managers on how to hold a Stay conversation and an Early Warning Signal conversation. A proactive effort that focuses on why people want to stay at your organization or why someone may be thinking about leaving will generate an intent to stay when executed properly.

9. Train managers on how to proactively and productively address the team when someone leaves. Transparency, openness, and the ability to express concerns and even the emotional stress of loss allows a team to work through these challenges and then regroup around what is important.

10. If you have not or will not invest in and take the time to tackle steps one through nine then you can always throw money at the problem. But know that money alone won’t fix the inherent issues that exist.

The Turnover Tsunami is the effect of the pandemic. It has forever altered how we live and work. And that is having a profound effect on the employer employee relationship.

Brad Federman, CEO

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

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US Immigration

moneycrashers.com

Today and Tomorrow

By DAVID S. JONES

US Immigration has been subject to regular change over at least the last 25 years. The last four years, however, under the Trump Administration saw the most frequent and some of the most significant policy changes in recent history. It is against that backdrop that we must view the current state of immigration as well as the future to come.

Changes to US Immigration Under Trump

In his first days in office, President Trump used executive actions to implement the so called Muslim travel bans, change policies at the US-Mexico border, and reduce the number of refugees admitted to the US. He issued the Buy American Hire American (BAHA) executive order, which bogged down the immigration system overall. BAHA changed a number of policies, such as deference to prior adjudications, that had been developed to streamline immigration processing, resulting in extensive delays, significant increases in requests for evidence and significant increases in denials.

The Trump administration also changed enforcement priorities, leading to increased ICE enforcement and deportations, and sought to end the Deferred Action for Childhood Arrivals (“DACA or Dreamers”) program, Temporary Protected Status (TPS) for certain countries, and employment authorization for spouses of certain H-1B visa holders.

Additionally, the Trump administration sought to change how the required wages were calculated for H-1B and permanent residence purposes and to give preference in the H-1B lottery for companies that can pay higher wages. Lastly, the Trump Administration introduced an electronic system for the H-1B lottery and modified the selection order to give greater preference to individuals with US master’s degrees.

In response to COVID, the Trump Administration introduced a number of travel bans. Some of these were country / region- based to help prevent the spread of COVID. Others sought to prevent new workers from coming to the US. The issuance of new H-1B, L1 and certain immigrant visas was suspended. These bans crippled many US businesses as they were not able to fill critical positions or move key personnel internationally.

Many of the Trump administration policies were blocked by courts, and reasonable people can debate the pros and cons of others. For example, the electronic system for the H-1B lottery makes it both cheaper and easier for all companies to participate. This means that small businesses who could not afford file for H1Bs in the past now can. At the same time, however, this policy gives larger companies the ability to get a larger share of lottery selections. Does this help or hurt small businesses?

On the other hand, the policy to give lottery preference to companies that pay higher wages clearly would disadvantage small businesses.

Changes to US Immigration So Far Under Biden

In his first days in office, President Biden sought to undo much of what had been done by the Trump Administration. He immediately changed policies with respect to the US-Mexico border, refugees, TPS, DACA 14

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and deportations. While he left the COVID-related travel bans in place and has actually expanded them, President Biden revoked non-COVID related travel bans and BAHA. He also withdrew or delayed several proposed regulatory changes, including the USCIS public charge rule and wage calculation rules.

President Biden issued an executive order on “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” With the revocation of BAHA and this new order, USCIS has returned to giving deference to prior adjudications and is slowly starting to resolve the backlog of cases. This in turn has resulted in fewer requests for evidence and fewer denials.

Proposed Legislation

Immediately upon his inauguration, President Biden sent the U.S. Citizenship Act of 2021 to Congress. This bill would provide pathways to citizenship and strengthen labor protections, reform the legal immigration system (including addressing permanent residence backlogs and inefficiencies), reform the employment verification process, provide additional rights to immigrants at the workplace, and prioritize smart border controls.

Specifically, the bill would provide Lawful Prospective Immigrant status to all undocumented individuals who arrived in the U.S. before January 1, 2021. After five years in this temporary status, immigrants would have access to a green card and lawful permanent residence if they meet certain requirements. After another three years as lawful permanent residents, they would be able to apply for citizenship. This path also would be available to certain individuals who were deported on or after January 20, 2017 and who meet certain other conditions.

The bill would eliminate employment-based per-country caps for employment-based visas in order to equalize wait times for applicants.

Under the current system, Indian and Chinese nationals have significantly longer wait times for permanent residence. The bill also would raise family-based, diversity-based, and employment-based visa caps and eliminate the 3- and 10-year bars that currently prevent many undocumented individuals from ever qualifying for a lawful status. The bill has yet to receive a vote in the House of Representatives and is unlikely to pass in the Senate even if it makes it out of the House.

Two other bills, however, have passed in the House of Representatives: The American Dream and Promise Act and the Farm Workforce Modernization Act. The American Dream and Promise Act would create a path for citizenship for individuals covered by DACA. It passed 228-197. The Farm Workforce Modernization Act would provide a

path to legal status for undocumented farm workers. It passed 247-174.

Neither bill is as extensive as the U.S. Citizenship Act of 2021, which likely gives them a greater chance of success, but are still likely to fail in the Senate. As a result, we are most likely to see any new immigration changes implemented through regulatory and policy changes.

Initially, all NIEs were issued for single entries and for short durations.

On July 6, 2021, however, the Department of State (DOS) posted guidance that NIEs issued in the last 12 months are being automatically extended for 12 months from the date of approval, and for multiple entries, as long as they are used for the purpose under which they were granted. NIEs issued by Customs and Border Protection (CPB) are not covered by this new guidance.

COVID-19 and Global Immigration

With COVID-19 Travel Restrictions and COVID-related consular closures, global immigration will continue to be a problem. It is difficult to get visa appointments, and travel bans generally prevent travel directly from certain countries to the US. With specific exceptions, foreign nationals who have been in any of the following countries during the past 14 days may not enter the United States: China, Iran, European Schengen area United Kingdom (England, Scotland, Wales, Northern Ireland), Republic of Ireland, Brazil or India. US Citizens, immediate relatives of US citizens and Lawful Permanent Residents are exempt. Everyone else must spend two weeks in a third country or obtain a National Interest Exception (NIE).

The NIE requires an applicant to prove, with supporting evidence, that their entry into the United States is a matter of national interest, which should exempt them from the COVID travel bans. The NIE has undergone a number of shifts since the travel restrictions were implemented. Presently, it covers certain travel related to critical US infrastructure, such as healthcare or national defense, and travel to the US to provide a significant economic benefit to the economy. Students continuing a course of study and individuals traveling to the US for humanitarian reasons also are eligible for NIEs.

Conclusion

US immigration is an ever-evolving area of the law, and the last four years in particular have been tumultuous. While major changes are slow to take place, simple policy changes can have a dramatic impact on business operations. Employers should ensure that they stay current on any immigration changes to avoid unwelcome surprises and take advantage of new benefits.

David Jones is an immigration attorney with Fisher Phillips, a national labor and employment law firm that represents employers. He can be reached at djones@fisherphillips.com.

David S. Jones

Regional Managing Partner and Immigration Partner Memphis Fisher Phillips djones@fisherphillips.com www.fisherphillips.com

Innovative, Nimble & Always Evolving Fisher Phillips is a national labor and employment law firm representing employers in labor, employment, civil rights, employee benefits, and immigration matters. Our lawyers are joined by more than 400 attorneys in 36 offices and we are continuing to expand. Our range of experience enables us to bring efficient and practical solutions to today’s labor and employment problems. fisherphillips.com 1715 Aaron Brenner Drive, Suite 312 | Renaissance Center | Memphis, Tennessee 38120 Atlanta Baltimore Boston Charlotte Chicago Cleveland Columbia Columbus Dallas Denver Detroit Fort Lauderdale Gulfport Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis Nashville New Jersey New Orleans New York Orlando Philadelphia Phoenix Pittsburgh Portland Sacramento San Diego San Francisco Seattle Tampa Washington, DC Metro Woodland Hills

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17

Wild After-Hours Halloween Workplace Event Leads To Spook-Tackular Case Of First Impression In Tennessee Court Of Appeals

By ROSALIA FIORELLO

Like Title VII to the Civil Rights Act of 1964, the Tennessee Human Rights Act (“THRA”) forbids workplace harassment and other forms of discrimination on the basis of sex. Recently, the Tennessee Court of Appeals considered the following issue: May an employee bring suit under the THRA if the sexual harassment did not occur at work and did not occur during work hours?

The short answer to the above-stated question is “yes.” The facts of Phelps v. State of Tennessee are relatively straightforward. The Plaintiff, Phelps, worked as a server for a restaurant operated by the State of Tennessee at Paris Landing State Park. In 2017, the restaurant hosted a Halloween party open to the public. The Court noted the party was adults-only because the restaurant’s bar was open, and alcohol was served in abundance.

Once the party ended, a park employee invited Phelps and other co-workers to an after-party at his residence on park property. Phelps claimed at the after-party, an assistant park manager, Walsh, who was second in command of the park, was intoxicated and sexually assaulted her. Phelps also claimed after she reported the incident, the Defendant, among other retaliatory actions, allowed Walsh to continue working around her at the park and to continued harassing and threatening her.

The trial court found that there were genuine issues of material fact as to whether Walsh was Plaintiff’s supervisor; whether he “sexually harassed women at Paris Landing State Park prior to the Halloween party” and Defendant was aware of it; and whether “a reasonable factfinder could conclude that Walsh’s action in grabbing [Plaintiff] by the neck and thrusting his body against her in a sexual manner was ‘extremely serious’ and sufficient to impose liability on the Defendant.”

However, the trial court granted summary judgment to the Defendants because it found that the sexual assault did not occur “in the workplace.” Regarding the retaliation claim, the trial court held that Plaintiff did not establish that Defendant took a “materially adverse action” against her after she reported the assault.

The Appeals Court vacated the decision and remanded the case back to the trial court. In it’s holding, the Court noted that harassment outside of the traditional workplace, “can and often does spill over and affect the victim’s workplace experiences,” and that the following factors should be considered when analyzing such a case: 1) The proximity in time and space to the “traditional workplace;” 2) The relationship of the event to the employees’ work duties; 3) The extent to which the employer planned, promoted, or sponsored the event; 4) The degree to which employees were pressured or encouraged to attend the event and the number of employees in attendance; 5) The employer’s knowledge of any pattern of similar harassment by the offending employee under prior similar circumstances; 6) The extent to which the off-premises harassment impacted the victim’s workplace experience after it was reported to the employer, including whether the victim was forced to continue working with the harasser; and 7) Any other circumstances pertinent to the inquiry.

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It is pertinent to note that prior to analyzing the above-stated factors, the Court found that it would be inappropriate to create a “bright-line principle” that “would disallow a court from considering harassing conduct that occurs away from the physical premises owned or controlled by an employer, or after traditional work hours.” In other words, there is no clear-cut rule to how these cases will be handled in the future. The above-stated factors simply put forth the types of things the Court will consider in future cases such as this one.

To read the full opinion, visit c36da17e-38ff-43cb-bf24-9115a5e3ee86. pdf (tncourts.gov).

While it may be tempting to nix outside work functions all together, holiday and after-hours events are great ways to show employees what they mean to the company and build camaraderie amongst co-workers in a non-office setting. There are ways to prevent your company from becoming the next Phelps decision. The following are a few tips keep such events under wraps.

Do you have a work-related social event policy in your handbook? It is important to remember that your duty of care as an employer may extend to work-related functions. Consult with your employment attorney to ensure your handbook is updated to include a clear and concise policy about events outside the office.

One of the best ways to prevent workplace harassment, whether on the job or at after-hours or a corporate-sponsored event, is to review the policy with employees regularly and before the event in question.

Mandatory anti-harassment training about the company’s specific policy is one way to protect your employees and everyone in your workplace from harassment. Keep in mind the training should be required for all employees at all levels of your organization. When the C-suite team, managers and supervisors are visibly present during training, employees are less likely to dismiss the training’s significance. Further, the presence of upper management solidifies and constructs a workplace culture about what behavior will not be accepted in the workplace.

In conjunction with proper training, it is key to regularly enforce, abide, and encourage reporting for violations of the policy to maintain the culture employers have created. Poor culture can lead to high turnover and ultimately poor business performance. Prior to the event in question, inform all employees that any complaints from the event will be taken seriously, documented, and investigated to conclusion.

Again, if employees understand that harassment or inappropriate behavior will not be tolerated, they will be less likely to act in a method contrary to the policy.

Consult with employment counsel to establish the proper safeguards against sexual harassment claims. Not only will it protect employees, but it will also protect the best interests of the company. After all, the thought of a company with no policies or procedures against events like the one in Phelps is a haunting prospect.

Rosalia Fiorello, Attorney

Wimberly Lawson Wright Daves & Jones, PLLC Nashville, Tennessee office rfiorello@wimberlylawson.com

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Whether you have an in-house HR team that’s wrestling with an increased workload, or you own a small business that doesn’t yet have a formal HR function, outsourcing introduces a high degree of flexibility for your organization. Some of the key benefits of outsourcing include: • Improved Scalability – As your business demands evolve, you may need access to HR resources on an episodic basis.

Common scenarios include benefits administration support during open enrollment, recruiting and onboarding services during periods of high growth, periodic salary surveys to ensure you’re paying market competitive rates, and other similar scenarios. Such activities might overload your existing team or require expertise you don’t have in-house but bringing on full-time employees to meet these needs would be impractical.

Outsourcing provides the support you need “on demand.”

• Decreased costs – As with many outsourced functions, leveraging an HRO to support your personnel needs can yield significant cost savings . . . both today and tomorrow. There’s the immediate return of providing valuable services to your business without incurring the time and expense typically associated with recruiting, hiring, training, and managing a new employee.

However, there are also longer-term cost improvements that an HRO relationship will bring to the table. Avoiding fines and penalties due to non-compliance, eliminating reputational risk to your brand associated with violating policies, improved employee retention by helping workers to better understand benefits options and the total rewards they’re receiving, and dozens of other examples . . . they all represent long-term impacts of finding and retaining an HRO partner that acts as a true extension of your team.

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• Standardized processes – One of the most common HR challenges growing organizations face is driving “people processes” standardization across the business . . . particularly if your workforce is spread across multiple locations.

Ensuring different managers are treating employees in a consistent fashion, providing a central resource for all employees – manager and worker alike – can access content that addresses the lion’s share of operational considerations and policies, even delivering access to a standard set of forms and work flows, all help to improve the overall employee experience. Starting this from scratch is timeconsuming and typically involves some level of trial and error but working with an HRO organization can accelerate the entire process.

• Reduced risk – For most employers, compliance has become an incredibly challenging issue. This is due largely to the fact that, from an HR perspective, there are multiple layers of regulations and policies to navigate. Take employee absence and leave, for example. There are federal laws impacting all employers operating within the United States, most notably the Family and Medical Leave Act (FMLA). However, there’s also a constellation of state-specific absence and leave policies – 300+ and counting – that offer provisions not covered by FMLA or are more generous than what FMLA provides. Further, there are now some cities that are creating policies for businesses within their borders. This is just one example of the complexities that come into play. HRO organizations, however, are intimately aware of the policies and practices impacting the communities they serve and can help to ensure you’re addressing regulatory issues in a consistent, focused, and respectable fashion.

• D iversified skills – Given the turbulent nature of 2020, I think we’re all actively aware of the rapid changes that could impact our business. During the height of the pandemic, for example, HRO Partners began fielding questions about employee engagement, change management, and other similar services. When such circumstances arise, you need access to individuals who are skilled in addressing these issues, have access to additional resources, and can ultimately drive the fastest path to resolution.

About us: At HRO Partners, we’ve been serving the small – and mid-sized business community since our inception and we continue to deliver new products and services, each aimed at enhancing your value to the clients and employees they support. With more than 150 businesses, serving over 50,000 employees, and nearly $300 million in enrollment savings to-date, our experience and our track record is second to none. And now, we deliver access to an always available, constantly updated, online platform designed to provide expert advice “on demand.”

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21

How FedLogic Can

Enhance Your Employee Benefits and Reduce Your Costs

By JOEL LEE

E

mployer-based health benefit plans have been the foundation for helping America’s families get the healthcare they need, when they need it - from the simplest flu shot to the most complex heart transplant.

Employer-based health plans have been a powerful

contributor to so many personal miracles. But what happens when even the best employer plans can’t meet the need? FEDLogic is a company built to supplement the employer’s basic health plan and serve as a resource when the employer’s benefit plan can’t meet a pressing need. Frank Cardenas and Anita Blackmer from FEDLogic often talk about the people, the kind of circumstances they face and the dedicated and remarkable HR professionals they have found through their work.

policy to cover all of her cancer treatment in the future", said Blackmer. “The benefits manager realized much later that the solution not only got the young woman the care she needed but it also saved the benefit plan more than $100,000 in expense.”

Frank Cardenas, CEO at FEDLogic, remembered a case that was heart-rending for the whole HR team. “I got a call late one evening. It was Justin who is the health benefits coordinator for one of our earliest clients. He told me a story about two young people who had met working at his company, fell in love, got married and were expecting their first child”, remembered Cardenas.

“Justin explained the child had been born prematurely and was profoundly disabled. The family had enrolled in the benefit plan with the highest deductible and simply did not have the resources to cover the steep deductible they’d shortly face.”

"Not long ago we got a call from the benefits manager at one of our biggest clients. She was calling to see if there was any way we could help, "said Anita Blackmer, the chief operating officer for FEDLogic. “The HR officer was heart-broken. She just finished talking with one of their best operations team members. The young woman had confided that she had just learned that she had an aggressive cancer. The course of treatments would make it impossible for her to continue working. Of course, COBRA was available for her, but the young woman could simply not afford to pay those costs for more than a month or two.”

“The next morning the FEDLogic team started working to find options for a more affordable option for the baby… Medicaid, Social Security disability, the state’s Child Health Improvement Program. Justin and I spoke with the two young people and walked them through their options. By the time they were prepared to bring their child home, we had uncovered a plan for their child that removed the threat of financial ruin”, said Cardenas. “The client was relieved with the outcome for the parents and surprised to realize how much the child’s near-term care might have cost the benefit plan.”

“FEDLogic’s job was to find a better outcome for this young woman and for our client. Within days, we were able to complete the extensive paperwork for a Social Security Disability claim that would provide income for her since she had lost her job. We also found a better and more affordable healthcare

“We love to talk with brokers about the work we do,” said Blackmer. “They know how difficult it is for their clients to get this information and how hard their client’s benefits team needs to work to help employees with these transitional events. What they

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don’t often realize is how these government benefit programs can help them save on benefit costs – savings that can be invested right back into broader benefits for the company’s employees.”

“It is these kinds of stories that keep us motivated”, said Cardenas. “My wife and I started this company five years ago with the idea we could help families in crisis. And it has given us remarkable opportunities to do that.

With the right information, a solid team of advisors and persistence we’ve found a formula that helps families meet the challenges of navigating the complicated and confusing landscape of federal and state benefits. The story of how our company came to be is a parable in how that depth of knowledge creates value.”

“I was the Congressional liaison for the Social Security Administration and met Ron Perry. He is an executive of LBMC, one of our region’s foremost PEO’s,” recalled Cardenas. “He was introduced to me by a mutual friend who knew I could help answer his questions about Medicare. In the process of talking with him, I realized that he and his wife might be eligible for a Social Security benefit that Congress was about to close. Perry was surprised and very pleased and I told him that my wife and I hoped one day to start a company designed specifically to help people find the right federal benefits – especially when their family was in crisis.”

never leap,” Cardenas continued. “When we met him, he told us how impressed he was with our expertise, our commitment to help and the need he saw among his own clients for the kind of service we hoped to build. He said he also knew how hard it must be for us to take the risk. So he handed us a check to get us over that fear and uncertainty. And with that financial fuel we launched FEDlogic.”

“Our company was started by helping someone work out a federal government puzzle and we continue today using those same tools to help on a much broader scale. We’ve learned over the past five years how people facing retirement, or dealing with a life-altering disease, or making healthcare coverage decisions that are right for them can make them fearful. What we’ve also discovered is that information from a trusted and knowledgeable source can give them the confidence to make a decision and overcome their fear and hesitance,” concluded Cardenas.

If you want to learn more about FEDlogic and how it might work for your company and within your benefit structure, visit their website fedlogicgroup.com or call Anita Blackmer at (615) 948.3648.

“A few days later I got a call at home from Ron asking if my wife and I would meet with him. I’m pretty sure he knew we were reluctant to take the leap of starting a business. With three kids and a mortgage it seemed like we might

Joel Lee

CEO and Senior Partner Lee Strategies

NAVIGATING FEDERAL & STATE BENEFITS

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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

23

PREPARING FO R YO U R BES T O P E N E NRO L L M ENT

By JIM TRUJILLO

E

ven though we’re still well into the warmer months, open enrollment season will be here before you know it. As we’re coming off another year of change and challenges, many companies are reevaluating the new demands of employees and prospective talent, prior to beginning their open enrollment.

It’s no question that employee priorities may have shifted throughout the last 18 months, and with those shifts come differing opinions, wishes, and expectations on what employers can provide. Open enrollment is an opportunity for companies to meet these new wants and needs, as well as demonstrate their concern for employee well-being.

While this open enrollment season may present some challenges, it’s never too early to begin preparing for one of the HR industry’s busiest times of year. Here are some items to consider to help make your company’s open enrollment season the smoothest one yet.

company offers should support your unique culture and workforce dynamic. It may be your employees are more concerned about physical health, or financial wellbeing. If that’s the case possibly consider adding options to your comprehensive package that support those wishes.

MEASURING SUCCESS Now that you have a comprehensive benefits package to present, how do you measure success for your company’s open enrollment?

HR teams want to understand how well their employees engage with communications, and ultimately, how that impacts enrollments. But what exactly should you measure? This may look different depending on your company’s metrics, but there are some standard measurements to consider: • Number of enrollments by a certain date

E STA BLI S HI N G YOUR B ENEF ITS OF F ER ING S Most HR professionals understand that competitive benefits packages can impact employee attraction and retention. Because of this, many industry professionals are turning their attention to creating robust offerings to meet their employees’ ever-evolving needs.

But first things first – you must evaluate your current benefits offering to understand where any gaps may, or may not, be. Remember the age-old phrase, “if it ain’t broke, don’t fix it?” If you look at your comprehensive package and there isn’t room for improvement, well go buy yourself a lottery ticket because you may be one of the luckiest people around. The reality is, most benefits packages have the opportunities for enhancement in some way, shape, or form – it’s just a matter of what best fits the needs of your workforce.

However, with the endless possibility of benefits offerings, selecting the right ones can seem like a daunting task, but it doesn’t have to be. Every available option is not necessarily ideal for each and every company. The benefits your

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• Number of 1-on-1 meetings your team holds • Engagement in enrollment communications • Trends in enrollments in conjunction with communications • Impact of benefits on employees • Impact of benefits on the company Setting expectations and tracking these data points can help your team better understand what messages and offerings best resonate with your employees. This information can help you determine if the current enrollment season was successful and provide you with insight for additional changes in the future.

SE T T HE PAC E

UTILIZE YOUR PARTNERS

While it may seem easier said than done, scheduling out your open enrollment season well in advance can help provide you with room for changes along the way. Your set schedule will help you stay on track and potentially relieve some possible headaches in the months ahead. For plans following the calendar year, here are some timelines to consider:

In our experience, and hearing from our industry partners, open enrollment season can be stressful, but we believe no HR team should go it alone. Your partners, vendors, and external resources should support you before, during, and after your enrollment period. Reliable business partnerships can be consistent, trustworthy, and help you deliver positive results for your team throughout the entirety of this season.

• July-August This is the time to review last year’s open enrollment period, make a plan for adjustments, and develop a strategy for implementation. Utilize this time to set your goals and measurables for success. Also consider drafting your communications to allow you time to review and revise your messages.

• September-October Take this time to finalize your messages and hit send. Let your team know about upcoming benefits fairs or webinars, as well as any information they should have prior to enrollment. Take into consideration any questions they may have and build FAQ sheets to help. This is also a great opportunity to schedule one-on-one meetings with employees and your HR team.

Additionally, a good partner will provide you with creative ideas along the way. Your vendors see it all, so they should be able to share with you some new trends, ideas, and opportunities to improve your overall experience. This can come as additions to your benefits package or streamlining processes and procedures in your enrollment operations. Let their experience and exposure in the field be a resource for you.

While there are many options to consider and many things to plan for, there’s no better time to get started than now. Companies that wish to sharpen their edge in a competitive market will embrace the opportunity to adopt new and innovative employee benefits offerings – impacting enrollment success for now and for the future.

• November-December It’s go time! Now is the time to hold the open enrollment period for employees to make their elections. Be sure to survey employees regarding their experience while everything is fresh on their mind.

Jim Trujillo, CFP®, PPC®

Financial Advisor JimTrujillo@argi.net www.ARGI.net

www.HRProfessionalsMagazine.com

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Managing Adverse Selection Can Help Lower Health Insurance Costs

By LISA MARINO

M

ore than ever employers who sponsor group health insurance plans are faced with the challenge of rising health insurance costs impacting both employers and employees. Among the wide variety of factors that can contribute to increasing health plan costs is adverse selection.

What is Adverse Selection? Also referred to as anti-selection, adverse selection occurs when enrollees in a health plan elect coverage that best suits them, such as in a multiple plan offering when less healthy members elect a richer plan while younger healthier members elect a cheaper plan or forgo coverage altogether. Under these circumstances, funding for the healthcare plan may not be set appropriately to reflect the risk, and a corrective pricing action should be expected.

In addition to pricing adjustments, employees will likely be affected with potential increases to their employee contributions. Consequently, an employer may be faced with employee retention risk. Market benchmark analyses should be performed regularly to compare current benefits, cost structure and contribution strategy to peers in order to avoid retention risk as well as understand how other groups may be mitigating adverse selection risk.

Enrollment Strategy, Participation and the Bottom Line Fortunately, employers can reduce adverse selection, achieve adequate spread of risk and improve their bottom line by implementing a comprehensive enrollment strategy that includes clear, consistent employee communication, access to technology, and a strategic contribution plan.

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Communication Effective communication can be a major driver of participation and managing the risk of adverse selection. Benefit materials should be easy to read and understand. Clearly communicating the impacts of benefit enhancements as well as any applicable benefit changes can be the difference between someone enrolling and not enrolling. Communications should be sent to employees at regularly scheduled intervals to acknowledge and explain benefits and the enrollment process. For those who do not speak English, multilingual communications should be provided.

Boosting participation begins long before open enrollment. Ahead of benefits season, HR could conduct employee surveys to get an understanding for what types of benefits employees want, and how the current offerings are meeting or not meeting their needs. By involving employees early on, you can increase your chance of improving engagement during open enrollment which can aid in managing adverse selection risk.

High Deductible Health Plans (HDHPs) are a great way to curb cost trends as well as offer lower cost options for all employees. One way employers make these high deductible plans more attractive, is to contribute a set amount to a tax-advantaged, rollover account in the employee’s name thereby reducing the burden of the high deductible and the employee’s overall out-of-pocket costs. These accounts are becoming popular among income earners of all levels because of the tax advantages they offer.

A strategic employee contribution structure can help an employer steer its employees to their preferred plan design.

An employer may have a preference for a particular plan in which it wants its employees to enroll based on cost or ease of administration.

Conclusion

Technology An online enrollment platform is always preferable and expected in today’s age of rapidly advancing technology. Consider online benefit tutorials requiring employees to review their benefits and acknowledge their review. Online decision support tools can also be provided to help employees with their benefit buying decisions. These technology solutions will allow employees to easily enroll in the appropriate benefit plans which can lead to higher overall participation and mitigate the impact of adverse selection.

Contribution Strategy Employee contributions play a key role in helping employers avoid adverse selection. If premiums or gross cost developments take into account selection concerns but employee contribution strategy ignores these factors, adverse selection can result in unanticipated healthcare costs for the company. The employer must take into account how its contribution strategy might be affecting selection in the plans in order to help mitigate potential adverse selection risk.

Without proper consideration for a strategic plan around employee contributions and enrollment by plan considerations, adverse selection can have detrimental effects on any health plan.

Being aware and understanding the risks and developing a multi-year strategy can lead to more accurate budgeting and cost control. Having well-rounded employee benefits plan designs, a well thought out contribution strategy, good communication and an easy-to-use enrollment solution is key to averting the cost burden that adverse selection may present.

Lisa Marino

LMarino@mcgriff.com Group Life and Health Senior Underwriter McGriff

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 McGriff.com.

© 2021, McGriff Insurance Services, Inc. All rights reserved. McGriff Insurance Services, Inc. is a subsidiary of Truist Insurance Holdings, Inc.

HR Technology: Why Mobile-Centric Solutions Are the Answer

By STEWART GOTT

In

the past few years, mobile capabilities have moved from the “want” to the “must have” list for companies. In fact, businesses are thriving and operating with a higher level of productivity by evolving their processes from traditionally-focused to mobile-centric.

Companies and HR must either invest in ways to increase their mobile technology usage or get left far behind their competition in the quest to fill their open positions.

Why HR Must Focus on Mobile Solutions There are several reasons for HR professionals to proactively strategize ways to implement mobile technology into the hiring and recruiting process. Here are four of the big advantages mobile technology solutions offer HR. Enhanced Data-Driven Decisions. Mobile technology provides extensive information about the user and the process itself. This is important because data is being increasingly used to make business decisions. Using data metrics in recruiting and hiring empower HR to make decisions that are logical, fair, and lack bias. One way to use this is for mobile technology to log how each candidate performs at each stage of the hiring process. For example, if a large percentage of a gender or race fall out of the process at an early stage, the hiring manager might need additional diversity training. Data helps spot issues in the hiring process that would have taken much longer to uncover otherwise.

Expanded Applicant Experience. In a recent survey of job seekers, 59% of the applicants reported looking for a job via a mobile device, and 52% applied on their mobile device. Clunky mobile processes will frustrate and turn off these potential great hires, which can damage your company’s growth. With the increase in work-from-home positions, applicants are accustomed to performing all types of functions from their mobile devices. Basically, companies must “go where the people are” to maintain a highly-functioning hiring channel. By streamlining 28

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ease of use and strategically broadening the communication avenues into mobile, businesses help make the candidate comfortable and confident from the beginning. Users can access the information when and where they want from the device they like to use.

Heightened Responsiveness. Mobile solutions are faster than their traditional counterparts, providing much-needed progress during the hiring process. Hiring managers can post jobs, answer questions, and field issues from their mobile device to the applicant’s. Instead of waiting hours, or the better part of a day, for recruiters to get back with them, job seekers can gain the information they need in minutes. In addition, applicants are able to drive their own job search by filling out applications and completing background check forms on their own, instead of waiting for a data entry person to do it for them. This streamlines the entire process and helps them move through to the decision stage quickly and with less headaches.

Greater Transparency and Authenticity. Building a healthy, diverse workforce hinges on a company’s ability to be authentic, and this begins during the recruiting process. Using mobile technology provides a unique way for an organization’s culture, causes, and core values to be on display from day one. Encouraging conversations through applications and texting, for example, give applicants a chance to get a granular view of what it would be like to work for the company.

Mobile technology is a tool that can help make great strides in sharing a business’s true personality and perspective.

Mobile solutions in recruiting and hiring are must-haves, and they will only gain importance in the coming years. Companies that lag behind with mobile technology will be invisible, or unattractive, to the bestquality job candidates, especially Millennials. Executing robust mobile application experiences sets the stage for sharing the company culture and brand transparently, connecting responsively with potential job seekers, and creating a positive candidate experience.

Stewart Gott

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

Welcome Employees Back Holiday Gift Check Program

Yay! Returning to the office, exciting or maybe not? Most companies are challenged with creating a positive enviroment as they bring employees back, especially after many have become very comfortable in their home offices. As fall approaches, most companies will be returning to the office in some hybrid fashion. This is creating new struggles for managers who are faced with the task of creating an upbeat astomphere to get over these new hurdles. One way to ease the transition is to make returning to the office a rewarding experience. Offering postive incentives that says, thank you, we appreciate all you do. This can help ease the adjustment period as employees return. One idea is a fun gift check that can be redeemed for any favorite brand of turkey, ham & festive food items, even deserts and platters. It’s a safe & thoughtful gift that can be customized to fit any incentive budget. What better way to tell valued employees, “thank you for your dedication”. Holiday Gift Checks will fit the needs and tastes of all employees. It is the perfect gift that tells employees, we appreciate your hard work and will delivers cherished memories around the table!

A Million Ways to Say Thanks!

• Welcome employees back to the office with a lunch on us gift check!

• Offer vaccinated employees an incentive gift check.

• Reward them for meeting company initiatives.

• Encourage they comply with any company safety guidelines or protocols.

• Perfect holiday gift for a festive meal for in office & remote employees!

Easy to order, safe to deliver, and enjoyed by all!

• Fast & secure online ordering at www.giftcheckprogram.com • Flexible gift amount to fit any budget—Choose gift denomination $5-$50 • Gift check includes a special message & can be customized with your company’s name for free • Option to personalize with employees’ name on the gift check (only 10 cents more) • Add optional restrictions such as not redeemable for cash, alcohol, or tobacco (eliminates tax concern) • Ordered too many—no worries! Send in ‘leftover’ gift checks for a refund for the full-face value

The perfect incentive or gift solution for employees. Meeting the needs and tastes of all!

Questions? We can help. Call 630.986.5081 or visit Holiday Gift Check Program

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29

GERD Disrupts the Workforce and Your Company’s Workday

By F. RANDY VOGENBERG, PHD, FASHP and MURRAY L. HARBER

Author affiliation: Dr. Vogenberg is Principal, Institute for Integrated Healthcare and Board Chair, the Employer–Provider Interface Council (EPIC).

Mr. Harber is Executive Director of the Mississippi Business Group on Health and Co-Leader, WellSpent Southeast.

Address for correspondence: F. Randy Vogenberg, PhD, RPh, Institute for Integrated Healthcare, P.O. Box 8215, Greenville, South Carolina 29604-8215. Email: randy@iih-online.com.

GERD is a common diagnosis and frequently diagnosed in a high cost of care setting. More than one-quarter of the US population are reported to suffer episodes of gastroesophageal reflux disease (GERD). Despite widespread access to medications, mild-to-moderate GERD accounts for increasing total claim cost per year in total employer-sponsored health plan expenditures.

Over 5 million new GERD diagnoses are made in the U.S., of which almost 10% diagnosed occurred in the highest cost emergency room setting. Depending upon the seriousness, a hospitalization can occur and frequently a 30-day readmission related to GERD. Surgical options have evolved since the first use of Nissen fundoplication 65 years ago for patients. Many can access or seek medications if they are compliant, respond to therapy or don’t suffer adverse events. For the smaller and more expensive group of plan members with chronic GERD, non-invasive surgical options have evolved since 1956.

Advances in Technology Technology and techniques have evolved while coverage has remained unchanged or episodic from a national perspective, including GERD. One example is Transoral incisionless fundoplication (TIF®) that was introduced in 2005 and TIF2.0 that had device improvements (TIF) approved by FDA in 2007. That latest iteration of TIF employed today, avoids laparoscopic surgery and several complications associated with invasive anti-reflux surgical procedures. While newer, less invasive and proven safe procedures became available, including TIF, medical coverage guidelines don’t always feature those advances that can also reduce the care cost for plan sponsors.

Many economic benefits of TIF procedure are in less time off and faster return to work versus just medical claim costs.

From the perspective of the plan sponsor (e.g., corporate employer), a key factor in the economic impact of GERD is the indirect costs of GERD, particularly its effect on absenteeism and productivity measures. Researchers have found that workers with GERD had had 41% more sick leave days and 59% more shortterm disability days (P < 0.0001) than matched employees without GERD. On-the-job productivity was also found to be significantly lower annually (by 6.0%) in the employees with GERD.

More Insight About What Can be Done Easy access to effective symptomatic remedies, such as OTCs, has helped a large proportion of the GERD population, but a significant subset group experience chronic or refractory symptoms, despite changes in lifestyle and diet. Medical therapy with PPIs do not resolve 30

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symptoms in 10% to 40% of those patients.

When these patients do seek care, they are more likely to have advanced or refractory disease, which may result in referral to gastroenterologists with higher claims costs.

Surgical treatment may be recommended in the following scenarios: (1) failure of medical therapies to control reflux symptoms; (2) patients are nonadherent to long-term therapy with PPIs; (3) chronic GERD complications (e.g., Barrett’s esophagus); (4) patients with adverse reactions to medications; or (5) the patient suffers from chronic asthma, cough, or hoarseness. Surgery seeks to address the basic anatomical issue underlying GERD—the Gastro Esophageal Valve dysfunction. Among surgical options available, TIF efficacy and safety data confirm that it significantly diminishes esophageal acid exposure while associated with lower rates of serious adverse events.

Recurrent use of GERD medications and the unavoidable need for follow-up procedures have been reported in some. This aligns with typical risk-management stratification, where a small proportion of members are associated with substantially greater costs than average plan members over time.

The health economic implications of GERD or TIF have not been revisited nor fully explored for more than a decade. Finding a cost-effective solution over a timespan that reflects real-world duration of employment or plan enrollment may be more meaningful to carriers and employer-sponsored health plans (employer). From that perspective, several key factors must be considered, including the time horizon chosen for determinations of total cost effectiveness. (see graphic Fig 1.0) Further, the greatest contributor to total expenditures by the employer-sponsored health plan associated with GERD is indirect costs, such as productivity and absenteeism. Other benefits for retention or recruitment may also be realized.

A recent 150 million record U.S. database analysis of the commercial plan costs associated with the total cost of professional services for TIF and other procedures showed real savings and significant financial separation among the procedures. The objective of the dataset development was to create a series of datasets that contained the total cost of service ascribed to the management and remediation of GERD symptomatology. [Source: Abstracted from personal correspondence McCarty TR, April 2, 2021.] A univariate analysis of the allowed claim cost associated with the TIF Procedure (CPT 43210), the Nissen Procedure (CPT 43280), or the Linx Procedure (CPT 43284) showed that while the Nissen procedure was most frequently used at a mean claim cost of $ 3,006.05 (range $2,907 to $3,104), the lesser used TIF procedure mean claim cost was lowest at $2,298.78 (range

$1,982 to $2,615), and the least used Linx procedures’ mean claim cost of $2819.41 was also higher than TIF. The results shown were independent of patients with facility claims with the same CPT code. Interestingly, there was no difference by mean ages of plan members or gender but there were significant differences across the various regions and site of procedure.

This illustrates that an employer may have no increase in claim costs from coverage of TIF to significant savings based on site of care (facility and geography) in a plan year. Cost effectiveness has been shown through modeling of that data up to 10 years. The 24% lower cost of TIF along with indirect savings for employer plans make total cost savings higher. Lastly, this means an employer is also likely to save on claim costs in subsequent years using TIF along with measures of improved unplanned absence and sustained productivity.

What Can Be Done About It Today?

In the face of limited economic information, employers still decide on coverage policy by only looking at their direct claims costs as their financial risk. Careful trend analysis in high-prevalence, chronic disorders like GERD can reveal potential opportunities for reducing direct and indirect economic risks represented by such sub-groups through optimal coverage policies.

Targeted efforts with patients with refractory or severe GERD, represent important opportunities around long-term conditions for employers as part of an enterprise-wide risk management approach that focuses on subpopulations of patients as members of plan associated with higher spending on healthcare.

By understanding the impacts from a long-term condition like GERD one must consider its effect and impact on the workplace. It remains important to provide the right information at the right time and make available all coverage options to best help the plan member manage the impact of GERD. As an example, if the TIF procedure is not covered, employers can request their administrator or insurer add TIF coverage (CPT code #43210) to their commercial plan. Ultimately this helps the employees with their long-term medical condition, and out-of-pocket (OOP) costs while stabilizing the employers’ bottom line along with improved productivity and satisfaction with company benefits. Employers can use this information to better manage both fiscal and clinical aspects of their benefit plan today until guidelines catch-up to real-world practice along with technologies that can avoid care in higher cost settings along with productivity gains that both help the bottom line.

Real-World Economic Evaluation Items Checklist Example A comprehensive view of the patient journey (including the potential need for reoperation or re-initiation of H2 antagonists or PPIs- usually at higher doses) Claim-level data (claims paid) from both hospital and medical providers Outcomes-related data (repeat surgery, success rates, complications/side effects of drugs and procedures) Absenteeism and productivity measures (internal or Dept. of Labor reported) Plan member satisfaction and net promoter score Pre- and post-surgical costs Disability claims costs Partial to full return to work

To learn more about EPIC’s Obesity Initiative, visit www.epicouncil.org.

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Congratulations

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Tiyana Childres-Pointer, SHRM-CP Tiyana is Senior College Relations Specialist at International Paper, Memphis, TN Tiyana is an emerging HR leader who is passionate about the 3R’s of HR— Recruitment, Retention, and Relationship. She believes that these 3 themes are the heart of HR and can positively or negatively affect every area of the company. Tiyana also enjoys collaborating, brainstorming, and working in teams to achieve a common goal. She is also a proud University of Memphis Tiger Alum and received her Bachelor of Business Administration with a concentration in Human Resource Management, in 2018. Tiyana is also a past president of the University of Memphis SHRM Student Chapter. Tiyana is also a SHRM-Memphis Board Member and Co-Chair of Emerging Leaders, the young HR professional group.

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33

MANDATING COVID-19 VACCINES –

Just Because You Can Do Something Doesn’t Mean You Should Do Something

By JAMES A. PARETTI, JR. and KAITLYN A. HANSEN

W

ith the COVID-19 vaccine becoming more widespread, and millions of Americans itching to return to some sense of normalcy, employers are facing tough decisions on when, and how, to return employees to work safely. Moreover, as federal, state, and local guidance regarding safety protocols and vaccines change on a day-to-day basis, employers have struggled to keep up. In late May 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”), the agency that enforces federal civil rights laws, including Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), and the Genetic Information Nondiscrimination Act (“GINA”) updated its guidance relating to whether employers can mandate employees to receive the COVID-19 vaccine.

So, Can Employers Require their Employees to Receive the COVID Vaccine? Generally, Yes. The EEOC’s guidance makes clear that federal equal employment opportunity laws do not prevent employers from requiring all employees physically entering the workplace to be vaccinated, so long as they are subject to the reasonable accommodation provisions of Title VII and the ADA. “Reasonable accommodation” can mean different things depending on whether an employee maintains an objection to the vaccine due to a disability, or due to their religion.

Under the ADA, employers may maintain safety-related qualifications standards (here, mandatory vaccination programs), so long as the standards are both job-related and consistent with business necessity.

Due to the public-health crisis surrounding the COVID-19 pandemic, most employers with in-person operations will likely meet this standard.

If an employee’s disability prevents them from receiving the vaccine, an employer generally may not require compliance unless that individual poses a “direct threat”—a significant risk of substantial harm—to themselves or to others. As you can imagine, this requires employers to make an individualized assessment regarding the employee’s ability to safely perform the essential functions of their job.

An employer confronted with an employee’s request to decline the vaccine due to their disability must make a two-fold determination.

First, is there a direct threat to others in allowing the employee to abstain from vaccination? In making that determination, employers should consider the duration of the risk, nature and severity of the potential harm, the likelihood that the harm would occur, and the imminence of 34

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the potential harm. Next, would a reasonable accommodation reduce or eliminate the threat? An employer must engage in the typical, flexible interactive process and provide accommodations for employees who seek to avoid vaccination, so long as the accommodation does not impose an undue hardship—“a significant difficulty or expense”—on the employer. The EEOC’s guidance notes that a reasonable accommodation for an employee with a disability might include requiring unvaccinated employees to wear a facemask, allowing them to work a staggered shift, allowing telework if feasible, reassignment to a vacant position in different workspaces, or making changes to work environments such as improvements in ventilation systems or limiting the employee’s contact with others.

Additionally, where an employee’s objection to the vaccine is based on her pregnancy, the employer must ensure that it treats the employee the same way—and provides the same accommodations—it would to other employees similar in their ability or inability to work. Employers should also keep in mind that they may have an obligation to engage in the interactive process for employees who are indeed fully vaccinated but have an underlying disability that creates a continuing concern that they face a heightened risk of severe illness should they contract COVID. On the other hand, reasonable accommodations required under Title VII can be less taxing. Where an employee maintains a sincerely-held religious belief, practice, or observance, an employer must provide a reasonable accommodation to that employee unless the accommodation would cause an undue hardship—"more than a minimal cost or burden”—on the employer. In assessing this burden, an employer should consider the proportion of employees already partially or fully vaccinated in the workplace and the extent of the employee’s contact with non-employees who may or may not be vaccinated. Reasonable accommodations in this context can also include requiring unvaccinated employees to wear facemasks, socially distancing from coworkers or non-employees, allowing the employee to work modified shifts, requiring periodic COVID tests, providing telework opportunities, or allowing the employee to accept reassignment.

Employers with unionized workforces must also specially consider their obligations under any applicable collective bargaining agreement.

Because employers have bargaining obligations to their unionized workforces, whether the employer can require its employees to be vaccinated, the administration of vaccinations, and whether the employer can discipline those who refuse will depend on the terms of the collective bargaining agreement and could require additional bargaining with the union.

But Should They? Well, Maybe.

The vaccination conundrum for employers brings to mind the age-old adage—just because you can do something does not necessarily mean you should do that thing. As the EEOC’s guidance makes clear, employers that wish to mandate vaccinations could unintentionally step into a field of legal landmines. Employers, big and small, should take a hard look at the practical implications and difficulties in managing accommodations processes for employees: Can your HR team handle additional claims, interactive processes, and accommodations? Is your work environment and physical space physically capable of accommodating individuals via social distancing, removing contact with non-employees, staggered shifts, updates to air circulation, telework, or reassignment of employees who cannot be vaccinated? Will the cost of managing such requests outweigh the benefits to your business?

Also keep in mind that the law of your state or locality may affect your ability to mandate vaccines. As of the date of this article, no state or locality has prohibited employers from requiring vaccines or from inquiring as to an employee’s vaccine status. One state (Montana) has adopted a law prohibiting discrimination based on COVID vaccine status, and many states have introduced, but not yet passed, legislation proposing the same. Such law potentially sets up claims for discrimination based on vaccine status. Current CDC guidance, adopted by many states, provides that fully-vaccinated workers may go without masks in the workplace, and need not socially distance, while masks and social distancing is recommended by the CDC (and required in some states!) for non-vaccinated employees.

Employers hesitant to mandate vaccines due to these considerations should consider incentivizing vaccines rather than mandating them.

Many employers have stopped short of mandating vaccines. And employees generally respond more favorably to the carrot over the stick, i.e., incentives over punishments. What is more, employers may generally offer incentives to employees to voluntarily provide documentation of vaccination with less fear of falling into a legal boobytrap, particularly where the employer is only seeking proof of vaccination from a third-party, such as a physician or pharmacy, and not itself administering the vaccine (or contracting with an agent to do so).

Employers that administer the vaccines themselves must ensure that an incentive is not so substantial as to be coercive or render participation in a vaccine program involuntary. Many large employers have opted to incentivize, but not require, vaccinations by employing programs which, for example: provide free rides to vaccine appointments, provide cash for proof of vaccinations, provide extra vacation day(s) to vaccinated employees, and grant additional paid time off for taking the vaccine.

Every employer should carefully consider an individualized approach in determining whether to incentivize or mandate COVID-19 vaccines for its business based on its own needs and resources.

Unconventional approaches.

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At Littler, we’re lawyers. We’re also innovators and strategists, passionate problem solvers and creative disruptors. And we’re committed to helping our clients navigate the complex world of labor and employment law by building better solutions for their toughest challenges.

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35

TM

PRESENTS

ERISA

Profiles of and Employee Benefits Attorneys We are excited to feature Profiles of ERISA and Employee Benefits attorneys in our August issue. These highly successful attorneys are located in your area and are available to assist you. We hope you will find this guide helpful as you work through the ever-changing regulations and requirements necessary to assist your employees with their retirement planning needs.

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

SHA REHOLD 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 SHA REHOLD 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

SHA REHOLD 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.

Carlos Gonzalez COU NSEL | AT LAN TA

Carlos has over 25 years of experience as an ERISA attorney in both the United States and Puerto Rico. Carlos has actively dealt with a wide array of issues regarding the evaluation, implementation, operation, and termination of benefits and compensation programs. He has served as an advisor to the IRS on its 2004 Puerto Rico Plans Initiative.

Additionally, Carlos assisted Hacienda with the evaluation and drafting of the retirement plan sections of the Puerto Rico Internal Revenue Code of 2011 (PRIRC) and the drafting of the enacting regulations and other administrative guidance under the PRIRC.

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

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

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

Further, Bracewell provides counsel to tax-exempt clients regarding the tax implications of deferred compensation arrangements.

Walter Parker

Bob McCormack

ASSOCIAT E | AT LAN TA

S HA R EHO L DER | TA M PA

Walter's legal practice focuses on employee benefits and executive compensation. He assists employers with a variety of health and welfare benefits plan issues, including plan administration and compliance with ERISA, HIPAA, and COBRA requirements. Walter also represents sponsors of ERISA qualified employer retirement plans. He assists these clients in all aspects of plan design, fiduciary responsibilities, and ERISA compliance. Walter is experienced in nonqualified deferred compensation (NQDC) plans and executive compensation matters.

Bob McCormack has been practicing labor and employment Law in the Tampa Bay for over 30 years. He has handled a wide variety of cases and has tried over 35 employment-related cases in state and federal courts. Bob has also successfully represented clients before various government agencies including OSHA, the EEOC, the US Department of Labor, the Florida Commission on Human Rights, the Agency for Health Care Administration (AHCA) and the State of Florida Department of Labor. Mr. McCormack recently began serving his third year as the Federal Director of Government Affairs for HR Florida.

Natalie Turner SHA REHOLD E R | AT LAN TA

Natalie works with local and national clients to implement policies and practices that comply with applicable local, state and federal law.

She also regularly provides training to both rank and file employees and management regarding a wide range of employment related topics, including anti-discrimination/harassment, best practices for investigations, and how to engage in the reasonable accommodation process.

Natalie frequently conducts high level internal investigations for clients focused on complying with the applicable law and identifying any potential areas of risk. Natalie is recognized by Best Lawyers® in the Litigation – Labor and Employment category for her work in this area.

Deborah Andrews O F C O UN S EL | R A L EI G H

Deborah’s practice focuses on employee benefits and executive compensation matters, including compliance with the Internal Revenue Code, ERISA and the Affordable Care Act. She regularly represents clients before the Department of Labor and the Internal Revenue Service regarding the correction of plan document and operational failures. Deborah also provides guidance on executive compensation issues and applicable tax law such as the deferred compensation provisions of Code Section 409A and the golden parachute payment rules of Code Sections 280G and 4999.

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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

PARTNER | 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: America’s Leading Lawyers for Business, Labor and Employment: Employee Benefits and Compensation and selected by attorney peers for inclusion in Mid-South Super Lawyers.

A. Wyckliff Nisbet, Jr.

Alexandra Ifrah

PARTNER | 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: America’s Leading Lawyers for Business, Labor and Employment: Employee Benefits and Compensation and selected by attorney peers for inclusion in Mid-South Super Lawyers.

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David M. Graf concentrates his practice on 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.

www.HRProfessionalsMagazine.com

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 PARTNER | 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.

QUESTIONS ABOUT EMPLOYEE BENEFITS?

Joshua M. Osborne PARTNER | 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.

WE ARE HERE TO HELP

Our Employee Benefits attorneys are here to keep employers up to date on the ever-changing laws and regulations related to employee benefit plans.

Jeremiah D. Wood PARTNER | 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.

www.FridayFirm.com/EBnews

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

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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 NSEL | 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 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.

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.

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

Fritz Richter M EM BER | N AS H VILLE

Fritz Richter counsels clients on employee benefit plan design and administration, and compliance with the IRS, PBGC and ERISA. His clients span a wide range of industries, including healthcare, retail and hospitality. Fritz has helped clients navigate hundreds of audits; submitted numerous IRS, Department of Labor and PBGC filings; and crafted a wide variety of employee benefit plan documents – all focused on helping employers navigate complex government regulation.

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

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 SHA REHOLD E R | LIT T LE R AT LAN TA

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

Legal Challenges are Coming at HR Professionals from Every Direction

That’s Why Rainey Kizer Makes Your Business Our Concern As the issues facing HR executives become more frequent, challenging, and complex each year, you need a law firm that provides advice invidualized for you specific needs.

This is why you should know the employment law attorneys at Rainey, Kizer, Reviere & Bell, PLC. For over 40 years, our AV-rated firm has advised businesses, non-profit organizations and government agencies on all aspects of employment law. To learn more, please call.

SHA REHOLD E R | LIT T LE R C H ARLOT T E

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.

Memphis

Nashville

901.333.8101

615.613.0442

Jackson

Chattanooga

731.423.2414

423.756.3333

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

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The Antidote to VUCA Burnout:

Building Organizational Resilience Using Emotional Intelligence

By TRACY DUBERMAN and JESSICA MOLSON

Today’s workplace climate can feel like a tumult of accelerated and disruptive change and continuous stress – one of volatility, uncertainty, complexity, and ambiguity (VUCA). After 18-months of heightened stress and uncertainty relating to the COVID-19 pandemic, employees are facing another bout of disruptive change as many are beginning to pivot back towards ‘business as usual’. It is no wonder that exhaustion and cynicism have become the new normal. With expectations to be adaptable and agile, yet stable and predictable, employees are inundated with conflicting and compounding requirements that heighten vulnerability toward burnout and exhaustion.

If VUCA were an occasional event, we could steel ourselves for occasional stressful times. However, it seems that the constant challenges of complexity and re-defining “the way things are” are here to stay. Organizations must create adaptability and resilience at every level and capacitate their people. Resilience has become an organizational strategic imperative and leadership requisite skill.

What Can Be Done?

Organizations can grow their capacity for navigating VUCA by strengthening emotional intelligence (EI) and resiliency, thereby creating an antidote to burn-out and a bridge toward positive, open work environments. Organizations that have high levels of EI and resiliency tend to: • Actively question the reality and the norms that underlie their behaviors.

• Hold focused conversations with open questions.

• Uncover root causes of problems and organizational roadblocks.

• Create new ways for people to collaborate and work together.

• Create systems that sustain emotionally intelligent practices.

• Integrate operational learning (“How did this go well, and how do we get a bit better?”) and relational learning (“How were we healthy, and how do we get a bit better?”).

EI is defined as: “the capacity for individuals to recognize their own, and other people’s emotions, to discriminate between different feelings and label them appropriately, and to use emotional information to guide thinking and behavior.” EI consists of a set of skills that can be learned by individuals (i.e., self-awareness, self-regulation, motivation, empathy, and social skills), who, in turn, can capacitate the rest of their team and their organization to do the same. Similarly, resiliency is the ability to absorb the bad moment, learn from it and accept it, and then mobilize 42

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it forward into positive emotional, behavioral, and process responses. EI creates the conditions to build resiliency enabling individuals to “roll with the punches” in periods of disruptive and continuous change, such as these.

Strengthening emotional intelligence and resiliency is even more critical when one considers the three primary challenges that currently place employees at risk for burnout or “anti-resiliency”:

Tracy Duberman, PhD, President & CEO

The Leadership Development Group 973.722.4480 tduberman@tldgroupinc.com www.tldgroupinc.com

Implications and Next Steps At the heart of this issue is relationships. Customers want timeliness, quality service, certainty, continuity, and coordination. Employees want fulfillment, meaningful work, connection to colleagues and customers, and clear feedback. Organizations want to provide high quality product at low cost. The good news is that these respective ‘wants’ are harmonious, congruent, and in alignment with the outcomes desired by customers, employees, and organizations. The key, of course, lies in building the capacity for EI and resilience.

Organizations can improve their ability to adapt and continuously improve by committing resources to strengthening EI and resiliency at the individual, team, and system level. Resiliency reduces the negative impact of employee burn-out on organizational efficacy, quality, and vitality.

By investing in emotional intelligence as a shared practice tied to native and existing organizational work processes, organizations will create more effective leadership and a culture motivated by, and dedicated to, continuous improvement and innovation. This can be done by crafting leadership and team development around EI, embedding resilience practices in training, development, and operating principles, and designing an exponential diffusion strategy for both EI and resilience. In a world where employees are already task-saturated, adding “resiliency training,” no matter how well-intended, raises the risk of adding another “to-do” to already taxed workers.

The key to personal and systemic resilience is to incorporate new technique and practice into current actions and structures, de-weighting daily duress while learning new practices. Resilience and EI emerge, then, from a different “how” rather than an additional “what.”

Tracy Duberman, PhD is the founder of The Leadership Development Group (TLD Group) Inc., and co-author with Bob Sachs, PhD of From Competition to Collaboration: How Leaders Cultivate Partnerships to Deliver Value and Transform Health.

Tracy has been recognized as an expert on leadership across various sectors, and speaks on ecosystem leadership, innovation in talent development, and effective succession planning.

About Us The Leadership Development Group is a global talent development consulting firm for leaders, teams, and organizations. Our solutions include executive, leadership assessment and coaching, organizational development consulting, and group leadership academies designed to engage and empower leaders to take on challenges and position their organizations for success. TLD Group’s worldwide faculty of over 400 organizational development practitioners, coaches, academicians, and consultants with deep expertise in leadership development offer targeted insights and deliver highly impactful results.

www.HRProfessionalsMagazine.com

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Cynthia Y. Thompson

The Thompson HR Firm LLC and HR Professionals Magazine

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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

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KEYNOTES Dr. Tim Elmore Aiko Bethea

CONFERENCE HIGHLIGHTS

• TWO Pre-Conference Sessions will let you dive into learning before the conference even starts.

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Discounts available for groups of 10 or more www.HRProfessionalsMagazine.com

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Keynotes: Johnny C. Taylor, Jr,, Rob McKenna, Christine Cashen General Sessions: Linda Clark, Keith Sonderling, Donna Morris, Sarita Maybin, Daniel Villao

PRESENTING SPONSOR

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