Volume 12 : Issue 8
TM
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Considerations for Employers After Roe v. Wade Reversal
Religious Exercise in
the Workplace
Florida’s “Stop
Law
WOKE”
8th Installment from Johnny C. Taylor, Jr.’s New Book,
Reset
Chad V.
Sorenson,
President of HR Florida
Profiles of ERISA and Employee Benefits Attorneys
International Presence. Local Knowledge. EMPLOYERS AND LAWYERS, WORKING TOGETHER Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. The firm has more than 900 lawyers located in 53 offices across the United States and in Europe, Canada, and Mexico.
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Only
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of workers are enrolled in a 401(k) plan. www.HRProfessionalsMagazine.com Editor Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher
The Thompson HR Firm, LLC Art Direction
Park Avenue Design Contributing Writers Jared Alexander Dale Conder Amy Schabacker Dufrane Ashley W. Dugger Amber Harms Howard B. Jackson Nancy A. Johnson R. Edward Johnson Cynthia Knapek James A. Paretti, Jr. Hillary M. Sizer Timothy J. Stanton Johnny C. Taylor, Jr. Cindy-Ann L. Thomas Jim Trujillo
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. ©2022 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.
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Features
5 note from the editor 6 Profile: Chad V. Sorenson, President of HR Florida 10 8th Installment of RESET by Johnny C. Taylor, Jr. 11 Purchase Your Copy of RESET from the SHRM Foundation 31 Congratulations to Teresa P. Layng, SHRM-CP!
Talent Management and Recruiting 9 Toxic Spill – Cleaning Up a Hazardous Workplace Culture 22 Why Candidate Experience Matters 32 Keeping the Human in Workforce Reductions 47 Think You Don’t Need Driver Screening?
Employee Benefits
12 State Mandated VS Employer Sponsored Retirement Plans 16 Highlights from McGriff Event July 12 23 A Perfect Employee Perk-Serve Grocery & Holiday Gift Checks 24 Inflation’s Impact on Employee Benefits 25 Transform Your Employee Benefits from an Expense to a Competitive Advantage 26 The Secure Act 2.O and the War on Retirement 29 Are You Doing Enough as an Employer for Women’s Health in the Workplace? 36 Highlights from Greater Memphis Employee Benefits Council July Meeting
Employment Law
14 U.S. District Court Denies Preliminary Injunction Against Florida “Stop-WOKE Law” 15 2022 Carolinas Regional Employer Conference in Charlotte, NC, September 8 17 Register today for Wimberly Lawson Labor & Employment Law Conference in Sevierville, TN November 17-18 20 Religious Exercise in the Workplace 30 Considerations for Employers After Roe v. Wade Reversal 34 Profiles of ERISA and Employee Benefits Attorneys 38 NLRB Pursues Starbucks and Amazon in Court
Top Educational Programs for HR Professionals
3 Active Shooter Training by Safehaven Security 8 Advance Your Career by Becoming SHRM Certified! 18 Building a Successful Upskilling Plan 19 Leadership Development for Your Entire Organization 33 Save 20% on HRCI Courses in 2022 37 Equip Yourself to Manage and Lead Your Workplace 41 Athens State University Human Resource Management Programs 48 WGU. Online. Nonprofit. Surprisingly Affordable
Industry News
7 Register for HR Florida Conference & Expo in Orlando August 28-31 28 2022 SHRM Inclusion Conference in San Diego October 24-26 39 Highlights from SHRM-Memphis June Meeting 40 Register Today for the 38th Annual KYSHRM Conference in Louisville August 30-September 1 41 Alabama SHRM Employment Law and Compliance Conference in Auburn September 5-7 42 Register for the TN SHRM Conference & Exposition in Sevierville September 14-16 43 Save the Date for the SHRM Georgia Conference in Savannah September 28-30 44 Save the Date for the 2022 HR Tampa Conference & Expo October 7 45 NCSHRM State Conference in Winston-Salem October 12-14 46 Registration is Open for the Arkansas SHRM HR Conference and Expo in Hot Springs October 24-26 September Issue features Employment Law and Employee Benefits Updates Plus the Alabama SHRM Employment Law and Compliance Conference in Auburn, the Tennessee SHRM Conference in Sevierville, and the SHRM Georgia Conference in Savannah Deadline to reserve space August 15
W a note from the editor
We are so honored to feature Chad Sorenson, President of HR Florida, on our August cover. What an accomplished HR professional! He began his HR career in 1998. Chad is currently President of the HR Florida State Council representing over 16000 HR professionals in the state. He previously served as President of SHRM Jacksonville and Treasurer and PresidentElect of HR Florida. I know you will enjoy reading all about Chad’s exciting career in Human Resource Management on Page 5. We applaud his many years of volunteer service to SHRM.
We are kicking off the fall SHRM Conference season with the HR Florida Conference in Orlando August 28-31. The 38th Annual Kentucky SHRM Conference coincides on August 30-September 1 in Louisville. We are looking forward to the Alabama SHRM Employment Law and Compliance Conference at the beautiful Marriott Resort in Auburn beginning Labor Day, September 5-7. Congratulations to Alabama SHRM on this inaugural event! What a great place to spend the Labor Day weekend with your family and pick up HRCI and SHRM credits!
We travel to beautiful Sevierville, TN for the Tennessee SHRM Conference and Expo September 14-16 at the Wilderness in the Smokies Resort. We are looking forward to seeing SHRM CEO and President, Johnny C. Taylor, Jr., at the SHRM Georgia Conference in lovely Savannah September 28-30. There are three exciting conferences we are looking forward to in October beginning in Tampa, Florida. The annual HR Tampa Conference is October 7. The NCSHRM Conference is in Winston-Salem October 12-14. We end the month at the ARSHRM Conference in charming Hot Springs October 24-26. We will bring you the exciting highlights from each conference! 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 as a quick reference.
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 18. You can register on our website to join our class. The deadline to register is October 12. 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 90% 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 Business Credit. It will be August 18 at 2 PM CT. Watch your email for your invitation! If you are not receiving an invitation to our weekly webinars, you can click on “Subscriptions” on our website.
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Chad V. on the cover
SORENSON
Chad V. Sorenson
President of Adaptive HR Solutions, Jacksonville, Florida He is a graduate of
Chad V. Sorenson is currently the President of Adaptive HR Solutions in Jacksonville, Florida.
Morningside University
He has over 25 years of diverse business, communications, and human resource experience. Chad
(College) in Sioux City, Iowa.
joined SHRM in 1998, and later served as the President of SHRM Jacksonville. He currently serves
Chad’s education and study
as the President of the HR Florida State Council which represents over 16,000 HR professionals
of communications prepared
across the state. Prior to this role, he served as Treasurer and President-Elect for HR Florida. Chad
him for roles involving people
became certified as a Senior Professional in Human Resources (SPHR) in 2005 and then received his
management, addressing organizational conflict, developing intentional workplace cultures, and
designation as a SHRM-Senior Certified Professional (SHRM-SCP) in 2014. Before founding Adaptive HR Solutions in 2008, Chad was Vice President, Director and Manager of Human Resources for several companies in the Jacksonville area. Adaptive HR Solutions now serves companies throughout the Southeast U.S., ranging from 5 to 1,200 employees. His business
presenting to large audiences.
consulting company focuses on leadership development, manager training, company growth, employee
As a gifted public speaker, he
performance management and employer compliance for many industries. Adaptive HR Solutions
is frequently called on to be
functions as a part of the Employer Advocacy Group in Jacksonville which provides companies with
a keynote speaker, facilitator,
HR, business coaching, and employment litigation services. Chad also works with trade associations
and presenter at conferences.
providing HR support to member companies.
His speaking engagements include private organizations, HR chapter meetings, trade associations, leadership summits and seminars, the Florida Chamber of Commerce, as well as regional SHRM conferences.
As part of Chad’s focus on continued education, he engages with HR thought leaders and stays up to date on changing needs and new laws related to the workplace. Chad’s knowledge on how evolving COVID legislation and regulations should be applied in the workplace made him an asset to many businesses at the height of the pandemic. His immediate study and expertise on these time-sensitive matters makes him a resource for managers in need of workplace policies designed to protect the health of the community. A recently debuting podcast, the Future of Work Florida, developed by the Florida Chamber of Commerce, interviewed Chad about Florida’s Talent Crisis and where employers might find suitable, qualified employees. With decades of experience in handling employee hiring and retention matters in Florida, Chad was able to offer insight and direction for what steps today’s employers can take. In addition to giving back to the HR field, Chad is actively involved in his church and in serving the Jacksonville community. He is an Eagle Scout and has been a volunteer leader with Boy Scouts for over 12 years. He attributes his growth in his work and personal life to his commitment to his 5 keys to success: Devotion to God, Dedication to Family, Continuous Service, Lifetime Learning, and Always Remembering to Laugh.
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Toxic Spill
– Cleaning Up a Hazardous Workplace Culture
While you may not have this in your hazardous materials policy, toxic workplace culture can have devastating impacts on employee experience and engagement, recruiting and retention, DEI efforts, productivity, and company success. Before we can dive into how to clean up a toxic workplace culture, we must be willing to engage in honest assessments of our current organizational cultures. Toxic culture is not always driven by widespread, unhealthy, and unproductive behaviors. Sometimes one person acting in ways that contribute to toxicity at work can be enough to cause irreparable damage. Regardless of how widespread toxic behaviors are at your workplace, the impact of these unhealthy workplace cultures cannot be ignored. According to recent research from SHRM, highlighted by Forbes in November 2021, “58% of employees quit a job due to a toxic workplace culture and the annual cost of culture-related turnover is $223 billion.” We’ve all heard about The Great Resignation, the impacts of COVID-19 on the workplace, and the growing importance of organizational culture for employees seeking a place to dedicate their time and professional talents. MIT Sloan Management Review noted in a January 2022 article titled “Toxic Culture Is Driving the Great Resignation” that a toxic culture “is 10.4 times more likely to contribute to attrition than compensation.” A toxic workplace culture might be immediately apparent – burnout, overwork due to unrealistic and unrelenting expectations, abundant cliques, hostile interactions, disrespectful and unprofessional communication, lack of inclusion, minimal trust. All of these are red flags that a toxic culture has not only spilled into your organization, it has likely embedded itself as “normal” for your employees. On the other hand, a toxic culture might manifest when a single individual or small numbers of employees demonstrate negative behaviors – and due to their power, influence, and standing within the organization, they can create environments of fear, unease, intimidation, bullying, or discrimination/harassment. If there are days where employees are telling you they feel physically sick coming into work, that meeting with a particular leader or teammate makes them anxious or fearful, or speaking up about a project or policy feels like it could derail their career – toxic workplace culture is already present and needs addressed before further damage can occur. Whether you need to address toxicity stemming from one person, a team, or the entire organization, there are ways that HR professionals can start cleaning up the spill and making positive lasting impacts on the workplace culture. The first and perhaps most important step is to address toxic behavior immediately and directly. If you are aware of the sources of toxic culture, this can be more easily addressed. Sometimes,
By ASHLEY W. DUGGER
however, you might need to dig deeper to find the sources of toxic culture. Surveys, focus groups, and open, vulnerable, and transparent discussions and interactions with employees at all levels of the organization will be critical to better pinpoint the drivers of toxic culture. Once you know the source(s), you can begin to put together your action plan to address these behaviors through direct conversation, potential performance improvement plans, training and development, and coaching. As with any situation where you seek employee feedback, you must be honest about what you are going to do with the information to make a change, and actually follow through with action. Be clear and consistent with communication and policies that address expected workplace behavior. This has to be applied uniformly – when employees see favoritism at play, and that some employees/leaders are held to one set of standards while others are allowed to engage in negative behaviors and practices, more division and unease result. Expected behaviors, as well as policies against toxic workplace behavior, will need to be regularly and openly communicated. Take a hard look at your rewards and recognition programs. Are the right people truly being recognized? If employees are watching a team or leader constantly being praised for their hard work, yet to the broader organization they are known for their toxic behavior, this can quickly erode trust in the organization, the leadership, and your stated cultural values. Gain leadership buy-in by presenting them with results from the focus groups, surveys, retention data, exit interviews, and other sources of data to show the true impact of toxic culture on the bottom line and employer reputation. You will need leadership support at all levels to change a toxic culture. As you start to move the needle, you will need to follow up with employees regularly to see which methods are working to drive positive change, and what they feel have been the biggest impacts. Righting the ship after a toxic culture has festered is not a quick-and-easy fix. Longlasting changes will have to be made and sustained, and this requires ongoing effort and dedication. The importance of a healthy workplace culture should be constantly top-of-mind for the entire organization so as not to slip back into a toxic spill once again.
Dr. Ashley W. Dugger, SHRM-CP
Program Chair-Human Resource Management ashley.dugger@wgu.edu www.WGU.edu
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Building Inclusive Workplaces: To Win the Future of Work Leaders Must Look Past Traditional Talent Pools A HISTORY OF FRUSTRATION Our diversity efforts have failed. Period. We should own that. In 2020, there were only five Black CEOs of Fortune 500 companies, just 20 percent of C-suite jobs belonged to women, and just 4 percent of those women were Black. These numbers have been stagnant for a decade. What we know is that countless organizations have spent “time and treasure” on trying to address diversity and inclusion to little avail. Accountability’s time has arrived. Organizations must also recognize that inclusion and diversity extends far beyond race, gender, and sexual orientation. True inclusion and diversity embraces abilities, veteran status, criminal history, and even political differences. To create an enduring pipeline of diversity, employers must tap into these different talent pools and acknowledge how inclusion and diversity benefits everyone, not just those in the minority or outside the mainstream. THE DEFAULT DIVERSITY SHOP Hiring the right person would be the first place to start. That sounds doable, right? But too often organizations plant a flag in the name of commitment and use that position— say, chief diversity officer—as more of a symbol than a strategy. You need diversity strategists, really smart people, to lead your teams. Oftentimes, the choice from the default diversity shop is the Black or Latinx or woman executive who is sharp, well-liked, and talented. But, you know what, their expertise is in marketing or corporate law. Yet they didn’t get the chief marketing officer position. And they didn’t land the general counsel role. So “chief diversity officer” (CDO) became the place to which a star minority employee ascended, but their lone qualification was their minority status. They were not steeped in diversity strategy. We don’t apply the same rigor to a chief diversity officer that we do to a chief financial officer or chief technology officer or chief human resources officer. Why? In talking to CEOs about this, I challenge them. I say go back and look at who you’ve hired to address your diversity issues.
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THE CEO IS THE CHIEF DIVERSITY OFFICER Every CEO should be the chief diversity officer of their organization. Period. This is what I mean by the do-well CEO. If anyone is accountable for diversity and inclusion, it’s the CEO. Sure, they can delegate the responsibility on this to the chief HR officer, or rely on a chief diversity officer for the execution of the strategy. Part of the execution is to ensure all the People Managers live our guiding principles. And one of the truths is that we value diversity, equity, and inclusion. Talk is cheap, though. It’s owning those values that takes resources and often a significant financial investment. Once you have this visible, visceral commitment from the CEO and the C-suite, the chief diversity officer is a key hire. And as I’ve detailed, the attention around selecting a CDO should match the test you place around your next CHRO or CPO. Yes, the buck stops with the CEO, but a great diversity officer can put all the pieces together. Imagine what your business could be if your employees came from diverse backgrounds and held different points of view. Insularity stifles innovation, productivity, and invention. In an economy growing more knowledgebased by the day, thinking small on inclusion means losing big. That’s on the CEO. We need to do more, and now.
LEADERSHIP LESSONS Untapped is the latest buzzword in the world of talent management. I hate jargon, but it fits here. Too much of an organization’s missed opportunities stem from a failure to recognize the potential of its current workforce or the applicant pool it uses to identify talent.
There is a term for the opportunity loss generated from overlooking talent from nontraditional sources. That term is “brain waste.” The US government has commissioned numerous evaluations of brain waste among immigrant populations alone. In your case as a leader this may seem abstract, but the mind and identifying talent function the same way. We compartmentalize and overlook. It is a way of interpreting large amounts of data without causing information loss. Unfortunately, it just doesn’t work too well. So what is the lesson for you as a leader? Train yourself not to overlook talent. This starts by focusing on what is really needed in any function or role and then looking inward first. We confuse performance appraisals for a proxy of skills inventory, and that isn’t very reliable. Here are some key questions you should consider making part of your Reset repertoire:
• How do we equip People Managers with the tools they need to find talent? • How do I deal with a poor talent evaluator, someone who hires poorly? • How do I access the skills of my current workforce and assess their adaptability? • What is the key to sourcing untapped talent? • Where is the most important source of untapped talent for my organization?
Adapted from Chapter 7 of Reset: A Leader’s Guide to Work in an Age of Upheaval (PublicAffairs), by Johnny C. Taylor, Jr., President and CEO of the Society for Human Resource Management (SHRM)
SHRM’s Johnny C. Taylor, Jr. Introduces His New Book RESET Available Now
BUILDING INCLUSIVE WORKPLACES Our diversity efforts have failed. Period. We should own that. In 2020, there were only five Black CEOs of Fortune 500 companies, just 20 percent of C-suite jobs belonged to women, and just 4 percent of those women were Black. These numbers have been stagnant for a decade. What we know is that countless organizations have spent “time and treasure” on trying to address diversity and inclusion to little avail. Hiring the right person would be the first place to start. That sounds doable, right? But too often organizations plant a flag in the name of commitment and use that position— say, chief diversity officer—as more of a symbol than a strategy. Accountability’s time has arrived. Organizations must also recognize that inclusion and diversity extends far beyond race, gender, and sexual orientation. True inclusion and diversity embraces abilities, veteran status, criminal history, and even political differences. To create an enduring pipeline of diversity, employers must tap into these different talent pools and acknowledge how inclusion and diversity benefits everyone, not just those in the minority or outside the mainstream. • “Untapped” is the latest buzzword in the world of talent management. Too much of an organization’s missed opportunities stem from a failure to recognize the potential of its current workforce or the applicant pool it uses to identify talent • Check your inclusivity constantly in the workplace. Observe how meetings are conducted and who is present. When you see random acts of inclusion, note and reward them. • We need to stop reacting and start acting. We need to get comfortable being uncomfortable and boldly commit to change at work. The math of inaction is right in front of us. • Put your business over the top with an efficient and culture-shaping reset by tapping nontraditional talent pools. • Pay attention to the rule of three for meaningful D&I: right person, right budget, right mentality. If one is missing, the results will net nothing.
To win the future of work leaders must look past traditional talent pools — truly inclusive organizations leverage differences for both growth and innovation.
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ABOUT THE AUTHOR Johnny C. Taylor, Jr., SHRM-SCP, is President and Chief Executive Officer of SHRM, the Society for Human Resource Management. With over 300,000 members in 165 countries, SHRM is the largest HR professional association in the world, impacting the lives of 115 million workers every day. As a global leader on the future of employment, culture and leadership, Mr. Taylor is a sought-after voice on all matters affecting work, workers and the workplace. He is frequently asked to testify before Congress on critical workforce issues and authors the weekly USA Today column, "Ask HR." Mr. Taylor's career spans over 20 years as a lawyer, human resources executive and CEO in both the not-for-profit and for-profit space. He has held senior and chief executive roles at IAC/Interactive Corp, Viacom's Paramount Pictures, Blockbuster Entertainment Group, the McGuireWoods law firm, and Compass Group USA. Most recently, Mr. Taylor was President and Chief Executive Officer of the Thurgood Marshall College Fund. He was appointed chairman of the President's Advisory Board on Historically Black Colleges and Universities and served as a member of the White House American Workforce Policy Advisory Board during the Trump Administration. He is a Trustee of the University of Miami, Governor of the American Red Cross, and member of the corporate boards of Guild Education and iCIMS. He is licensed to practice law in Florida, Illinois and Washington, D.C. ABOUT SHRM SHRM, the Society for Human Resource Management, creates better workplaces where employers and employees thrive together. As the voice of all things work, workers and the workplace, SHRM is the foremost expert, convener and thought leader on issues impacting today's evolving workplaces. With 300,000+ HR and business executive members in 165 countries, SHRM impacts the lives of more than 115 million workers and families globally. Learn more at SHRM.org and on Twitter @SHRM.
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State Mandated
vs
O
ver 55 million U.S. workers currently don’t have access to a retirement plan sponsored by their employer. To bridge this gap, a majority of states have contemplated state-mandated retirement savings plan legislation, and 13 have already signed such programs into law.
If your company doesn’t currently offer a retirement savings plan, it’s only a matter of time before you’ll have to. Take a closer look at employer-sponsored and state-sponsored retirement plans to determine what best meets your company’s goals. Key retirement plan differentiators at a glance
1. Investment options State-sponsored: You generally don’t have the ability to customize investment choices based on your employees’ unique needs. Instead, a state-selected board chooses a firm to make investment decisions Company-sponsored: Choose from a range of investment options at various levels of risk and savings potential. Employees have more control over their investment decisions depending on factors like their age, savings goals and risk tolerance.
2. Plan types State-sponsored: State plans are commonly Roth individual retirement accounts (IRAs), which allow participants to set aside after-tax income up to a specified amount each year. Employee contributions are deducted from post-tax income, so their money is generally tax-free at the time of withdrawal after age 59½. Company-sponsored: Sponsoring your own plan gives employers and plan participants broader options beyond a Roth IRA. For example, a 401(k) allows for pre-tax deductions, saving you and your employees money by reducing your payroll taxes and their taxable income. Not ready for a 401(k)? Working with a company like ADP® gives you access to SIMPLE and SEP IRAs, allowing you to choose a plan with the benefits and administrative responsibilities that best fit your needs.
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Employer Sponsored Retirement Plans By AMBER HARMS
State-sponsored: With a Roth IRA, employees have a deferral limit of up to $6,000 from their annual salary. Participants age 50+ are also entitled to catch-up contributions of $1,000 per year. Employers are not permitted to make contributions. Company-sponsored: If you choose to offer a 401(k), employees can contribute up to $20,500 for 2022. Anyone age 50+ is also eligible for an additional catch-up contribution of $6,500 per year. Employers may contribute at their discretion. The annual limit on total employee/employer contributions for 2022 is $61,000 (or $67,500 with the catch-up contribution).
The annual limit on total employee/ employer contributions for 2022 is $61,000
(or $67,500 with the catch-up contribution).
3. Plan maintenance State-sponsored: For employees, state-sponsored IRAs automatically enroll workers as they become eligible. For employers, they’re a low-cost solution with fewer fiduciary responsibilities. Company-sponsored: In addition to auto enrollment, a private plan can provide more options to increase participation and savings rates such as auto-escalation, financial wellness tools and personalized participant communications. Sponsoring a plan such as SIMPLE IRA or SEP IRA also eliminates the additional fiduciary responsibilities of a 401(k). Adding a retirement plan to your employee benefits arsenal comes with strategic advantages — from a competitive edge in the talent search to increased employee engagement. But choosing the right plan is up to you.
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DOWN BUT NOT OUT: U.S. District Court Denies Preliminary Injunction Against Florida “Stop-WOKE” Law By JIM PARETTI, NANCY A. JOHNSON, CINDY-ANN L. THOMAS
On June 27, 2022, the U.S. District Court for the Northern District of Florida denied a request to enjoin the provisions of Florida HB 7, named the Individual Freedom Act (“IFA”), or the so-called “Stop-WOKE” law (the state’s acronym for “Stop Wrongs to Our Kids and Employees”) that dramatically limits what and how employers can communicate to employees in workplace training relating to diversity, non-discrimination, and non-harassment. The law went into effect on July 1, 2022. At least for now—the court’s decision means that an employer’s diversity, equity and inclusion (DEI) training materials must refrain from sending any messaging to employees that could be construed as requiring employees to believe in concepts like privilege, oppression, and inherent biases that are based on race, color, national origin or sex. A second lawsuit challenging the IFA remains pending, meaning the ultimate fate of the law yet remains unclear. Background By way of background, HB 7 makes it unlawful for any covered employer (generally, those with employees in Florida and employing 15 or more employees (company-wide) to subject any individual working in Florida, as a condition of employment, to training or instruction that “espouses or promotes” such individual to believe that any of the following concepts constitutes discrimination based on race, color, sex, or national origin: • That members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin. • That an individual, by virtue of their race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously. • That an individual’s moral character or status as either privileged or oppressed is necessarily determined by their race, color, sex, or national origin. • That members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin. • That an individual, by virtue of their race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin. • That an individual, by virtue of their race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion. • That an individual, by virtue of their race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin. • That such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin. Almost immediately after the law was signed, five individuals, including three teachers, a student, and an individual consultant who provides DEI training to employers, filed a lawsuit in the Northern District of Florida seeking a preliminary injunction against it. In their suit, the plaintiffs claim that the law violates free speech rights of Florida employers and educators, and that key provisions of the new law are unconstitutionally vague and overbroad when they impose sweeping general principles with which Florida employers are required to conform or with which they are prohibited to disagree. 14
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A Summary of Judge Walker’s Decision After full briefing, the court’s decision tabled plaintiffs’ substantive arguments. Chief Judge Mark Walker avoided ruling on the constitutional questions raised as to whether the provisions that prohibit employers from requiring employees from “engaging in any activity” that promotes certain concepts were unconstitutionally vague or violated free speech protections. Instead, Judge Walker found that Dr. Hodo, the plaintiff challenging the employment provisions of the IFA, a consultant who provides workplace training on diversity and inclusion, did not present evidence of standing. Dr. Hodo promoted two theories of standing – one on behalf of her potential future clients, and one of her own injury. However, as to her standing on behalf of third parties, the court found that her relationship as a consultant to employers does not give her standing to complain of their potential injury from the law. Turning to Dr. Hodo’s claim of standing on her own behalf, she argued injury because her business opportunities will diminish if employers cannot provide such training. Judge Walker determined that she simply did not present evidence that she actually lost any clients, that any clients told her that they would no longer hire her, or that any client has expressed trepidation about hiring her. Thus, Dr. Hodo’s hypothetical claims prevented her from establishing standing. Without standing to challenge the law, Judge Walker concluded that he was unable go any further in his analysis of the constitutional arguments presented. Judge Walker conspicuously commented that “this Court is not determining whether the challenged regulations are constitutional, morally correct, or good policy. And this Order should not be interpreted as endorsing the IFA or the related Board of Education regulation.” “Not So Fast, My Friend!” While the injunction in Falls v. DeSantis was denied (the standing of one plaintiff challenging the education provision of the IFA is unresolved as the parties are providing supplemental briefing on that issue), as another renowned Floridian who has enjoyed saying nearly every Saturday morning before college football games: Not so fast, my friend!” Notably, Judge Walker remarked in his ruling that nothing prevents employers from
raising the arguments raised by Dr. Hodo on their own behalf, specifically referring to another lawsuit that was filed shortly before his ruling. See Honeyfund.com, Inc. v. DeSantis, No. 4:22-cv-00227 (N.D. Fla. filed June 22, 2022). This second case was filed in district court by Honeyfund.com, a Clearwater-based honeymoon registry company, which alleged its plan to provide certain DEI training to its employees in Florida appears to violate the dictates of the IFA. The lawsuit is joined by another individual DEI consultant, and a corporation that works with other companies to provide DEI trainings. Immediately after filing their lawsuit, the plaintiffs in this most recent case filed a notice of related matters reflecting that their arguments largely mirror those raised by Dr. Hodo in the first challenge to the IFA. The case is before the same judge and focuses primarily on employer concerns with the new law. Perhaps anticipating Judge Walker’s earlier ruling, the Honeyfund.com lawsuit may cure the standing issue identified by Judge Walker and perhaps return the issue to his court to await a substantive decision on the constitutional challenges that he did not address in his opinion. The court will hear argument on Honeyfund.com’s motion to enjoin the law on August 8, 2022 – meaning that the IFA remains in effect at least until a ruling on that motion.
Depending on Judge Walker’s ruling in the Honeyfund.com case, it is likely that the decision will be appealed to the U.S. Circuit Court of Appeals for the Eleventh Circuit, which may uphold, reverse, or modify the lower court’s decision. Given the uncertainty as to the ultimate fate of the law, Florida employers with operations and/or employees in Florida, should consider placing a strategic pause on mandatory training while they coordinate plans to take preparatory action to comply with the Act. Florida employers that conduct DEI, unconscious bias, or “Respect at Work” trainings— independently or through vendors—are recommended to consult with counsel as to the content, scope, and facilitation practices of such trainings, and any related workplace DEI
Mint Museum Uptown 500 South Tryon Street Charlotte, NC Agenda to be announced in the coming weeks
Littler’s Workplace Policy Institute will keep readers apprised of developments.
James A. Paretti, Jr.
Shareholder Washington, DC jparetti@littler.com (202) 789-3422
Nancy A. Johnson
Going Forward
Thursday, September 8
policies, to ensure that they are compliant with the Act. Additionally, multi-state employers with Florida operations should be mindful that a broad, company-wide approach to trainings on these topics could inadvertently result in violations of the IFA and damages.
Shareholder Orlando, FL najohnson@littler.com (407) 393-2925
Cindy-Ann L. Thomas
Principal | Co-Chair, EEO & Diversity Practice Group Charlotte, NC cathomas@littler.com (704) 972-7026
2022
Carolinas Regional Employer
A LITTLER REGIONAL E M P LOY E R
conference
The Accelerating Evolution of the Workplace...We Got This!
2022 Carolinas Regional Employer Conference You are invited to Littler’s 2022 Carolinas Regional Employer Conference, an exploration of the most significant developments in labor and employment law and the emerging trends impacting the workplace. This year’s conference will tackle the new era of labor and employment law and the complex issues employers are now facing in a post-pandemic world. We’ll take an insightful look at the effects on employers who had no choice but to shift – and shift again – to meet the needs of a workforce evolving right before our eyes, and the impact on how and where we work as a result. Come prepared to explore the challenges – and new opportunities – of a post-pandemic future and the strategies to implement a sustainable and thriving workplace.
Professional Development and Continuing Education Littler is recognized by SHRM to offer SHRM-CP or SHRM-SCP professional development credits (PDCs). This program has been submitted to the HR Certification Institute for review. CLE certification is pending approval.
For More Information Please contact Kellie Cromarty at kcromarty@littler.com
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2022 McGriff Employee Benefits Road Trip:
Avoiding Compliance Potholes! EMPLOYEE BENEFITS BREAKFAST BRIEFING – JULY 12
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1 Christy Showalter, Senior Employee Benefits Compliance Officer, was the featured speaker at the Employee Benefits Breakfast Briefing July 12. Her topic was “Employee Benefits Road Trip: Avoiding Compliance Potholes.” 2 The McGriff Team: Front Row: (L-R) Jimmy Madeksho, Jonathan Frisch, Paul Barcroft; Back Row (L to R): Katy Abraham, Christy Showalter, Julie Campbell, Kathleen Manley, Pam Coley, Bethany Thornton 3 (L-R) Ted Archdeacon with the City of Bartlett, Sarah Bacio and Kelly King with Semmes Murphy 4 Christy Showalter with McGriff; Donna Schum, Whitney Oppenheim and Patricia Whitley with Briarcrest Christian School 5 (L-R) - Nina Dias (Azo), Lynn Jackson and Stephanie Sibley with United Way of the Mid-South 6 (L-R) – Joanne Surwic with MATA and Lisa McNutt with Green Mountain Technology 7 Tamia Pettis and Tandra Inmon with Hill Services 8 Attendees at the McGriff Employee Benefits event on July 12
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We hope you will join us for our day and a half conference as we cover the latest labor and employment law updates affecting employers, managers, and HR professionals, presented by the attorneys at Wimberly Lawson.
Visit our website at www.wimberlylawson.com to view the latest updates, or email Mitzi Gresham, Conference Coordinator, at mgresham@wimberlylawson.com
Building a Successful
UPSKILLING PLAN By CYNTHIA KNAPEK
If you have been following workforce development trends, you may have noticed the term “reskilling” being applied to the process of acquiring hard skills that lead to a career shift. As individuals look to reskilling to broaden options during the “Great Resignation,” many companies have shifted to upskilling to retain them. Upskilling is not linked to wholesale change, but rather a broader approach to advancement often focused on building interpersonal skills. Investments in employee upskilling increase individual loyalty to the organization. It also has the added advantage of creating a ripple that elevates the effectiveness of entire organization. Studies confirm organizations with widely accessible training opportunities see better employee retention. It’s especially important to millennials. A recent Deloitte study found 71% of millennials who are likely to leave an organization are dissatisfied with how their leadership skills are being developed. Fortunately, you do not have to have a large training department to make professional development accessible for your people. Here are three easy ways to get started with (or build on) a plan to upskill your entire team.
Co-create the plan We all appreciate the opportunity to be the architect of our own career. Conversations about learning goals should be as much a part of manager one-on-one meetings as any other work goal. Some companies pay big dollars to have their organization’s preferred leadership competencies mapped and articulated to enable that conversation. On their website, Deloitte makes available for free their own “leadership capability model.” Sometimes a simple borrowed model can provide a great place to start a discussion.
With the average cost of replacing an employee estimated between 6-9 months of their salary, not investing in your people is a costly gamble.
THE ROI OF PROFESSIONAL DEVELOPMENT $1,295
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Leadership development in particular maximizes this ROI. Businesses extending it to all employees (regardless of managerial aspirations) are over four times more likely to outperform those who don’t in terms of revenue growth, operating margin, and return on equity (DDI Global Leadership Forecast 2018).
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Employ a partner strategy Once you are having regular conversations about learning goals and training needs, you may find you don’t have the capacity to offer the diversity of programming needed to meet everyone where they are. No problem. Even companies with internal training departments still outsource a lot of content delivery to partners. This allows you to provide the best of online content from one provider or the best DEI content from another source. Making your team aware that they have many options to choose from will allow them to create a plan that suites them.
Don’t wait. Center investments in training on potential, not current position. Companies traditionally wait until after the first promotion to invest in skills-development. Changing that strategy could give your organization an advantage in building a diverse pipeline of leaders. Statistically, women and people of color are overlooked for promotions that move from individual contributor to landing that first managerial opportunity. If underserved leaders never make it to the first supervisory position, they may never be granted access to leadership training. This is not simply a skills gap but an opportunity gap as well. Access to training early in a career could dramatically change the diversity of the promotable leadership pipeline. Your organization will be well served with a culture of equal access to learning for all.
Looking for a partner for your organization’s upskilling efforts? The Leadership Louisville Center offers a variety of courses covering vital skills - driving performance and your company’s bottom line.
Cynthia Knapek
CEO and Course Instructor Leadership Louisville Center
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Religious Exercise in the Workplace By DALE CONDER
The First Amendment provides, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . . . .” U.S. Const. amend I. Courts refer to these three clauses as “the establishment clause,” “the freeexercise clause,” and “the free-speech clause.” The Supreme Court of the United States’ recent case Kennedy v. Bremerton School District, involved all three clauses. 124 S.Ct. 2407, 2022 U.S. LEXIS 3218 at *37 (2022). What happened in Kennedy? After a long military career, Joseph Kennedy began as Bremerton High School’s football coach. Id. at *10. Before Kennedy came to Bremerton, the football team’s tradition was to have inspirational talks that might include biblical references and to have pre-game, locker-room prayers. Id. at *19. Kennedy felt compelled to kneel at the fifty-yard line for a private, post-game prayer of thanks. Id. at *10. Kennedy’s post-game prayer was offered during a time when coaches could forgo supervising students for a short period to attend to private matters, e.g., visiting with friends or checking sports scores. Id. at *9-10. When players asked Kennedy if they could join him at midfield, he responded, “This is a free country. You can do what you want.” Id. at *11. Kennedy allowed players, fans from other schools, and anyone else to join him if they chose to, and no one ever complained. Although this had been going on for seven years, the school district did not know about Kennedy’s prayers until an opposing coach complimented the principal on Coach Kennedy’s post-game prayers. Id. at *12. The firestorm begins Once the school district learned about Kennedy’s post-game, mid-field praying and the pre-game, locker-room prayers, the superintendent took action. Id. at *12. The district told Kennedy to stop any motivational talks that included religious expression, including prayer, and to avoid any involvement in prayers of students. Id. at *13. Finally, the district told Kennedy to avoid acts that are “outwardly discernible as religious activity.” Id. Kennedy responded by ending locker-room prayers and religious references in his post-game motivational talks. Id. at *13-14. Kennedy felt pressure to end his private, post-game prayers. Id. At first, Kennedy left after the next game without his fifty-yard-line prayer. Id. at *14. But this upset him. He returned to the field and prayed. He also notified the district that his sincerely held religious beliefs compelled him to offer the post-game prayer of thanks. Id. He was agreeable to waiting until his players had left the field. Id. at *14-15. The government would not be sated; it now gave Kennedy an ultimatum by forbidding any actions that a reasonable observer might interpret as an endorsement of religion. Id. at *15-16. 20
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Because Kennedy continued to offer his post-game prayers on the fiftyyard line, the district announced that the field was not open to the public. Id. at *16. Still, he prayed. Id. at *17. This led the district to put Kennedy on paid administrative leave. Id. at *18-19. At the end of the season, Kennedy received his first bad evaluation. Id. at *20. The evaluators recommended not rehiring Kennedy because he refused to follow district policy requiring supervision of students. Id. Kennedy did not return the next season. Id. Kennedy then sued the district for violating his free-exercise rights and his free-speech rights. The lower courts sided with the district. Enter the Supreme Court of the United States The Supreme Court accepted Kennedy’s petition seeking permission to appeal. Id. at *24. Kennedy argued that the district violated the Free Exercise Clause and the Free Speech Clause of the First Amendment. Id. at *20. Kennedy established that the district “burdened his sincere religious practice pursuant to a policy that was not neutral or generally applicable.” Id. at *27-28. The district’s policy was not neutral because the district directed its policy to religious practice. Id. The policy was not generally applicable because it prohibited only Kennedy from using the free time for his short prayers. Id. at *29. Other coaches were free to forgo student supervision for a brief time. The district did not rehire Kennedy because he failed to supervise students during the brief time he prayed. Id. Because the policy was neither neutral nor generally applicable, the district’s policy had to survive strict scrutiny. Id. at *37. Thus, the district had to show “its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest.” Id. There was no compelling district interest in stopping Kennedy’s brief prayers under the circumstances described here. This left Kennedy’s free-speech claim. Although teachers do not lose their rights when they go to work, there are certain limits. The limits for public employees exist because the government is also employer. Id. at *30-31. If an employee speaks pursuant to the employee’s duties, it is unlikely that the First Amendment will protect this speech. Id. at *30. But protection is likely when the public employee speaks as a citizen on a matter of public concern. Id. at *30-31. If the speech falls into the latter category, courts then balance the competing interests between free speech and its consequences. Id. The government has to show that its interest as an employer in promoting efficiency in the services the government performs through its employees outweighs the employee’s free speech rights. Id. The district did not show that its interest as an employer outweighed Coach Kennedy’s First Amendment rights. In addressing the district’s Establishment Clause argument, the Court made clear that someone drawing an incorrect inference from seeing Kennedy kneeling did not arise to an endorsement of religion. Id. at *38-40. Courts used the endorsement test to decide whether certain acts violated the Establishment Clause. The Court rejected the “endorsement test” and the Lemon test from which it sprang. Id. at *40. In the end, the Court instructed lower courts to evaluate the Establishment Clause by referring to “historical practices and acts.” Id. Coach Kennedy won his lawsuit against the district. The decision in Kennedy applies to the government and its employees. It does not apply to private employers because, except for the Thirteenth Amendment, the federal Constitution and its Amendments do not apply to private employers or private actors of any kind. In other words, private employers do not have to wrestle with the First Amendment. But Title VII prohibits discrimination because of religion.
Title VII and its prohibition on religion-based discrimination Under Title VII, it is “an unlawful employment practice for an employer(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of his employment, because of such individual’s…religion…or
Legal Challenges are Coming at HR Professionals from Every Direction
(2) to limit, segregate, or classify his employees…in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s…religion…” 42 U.S.C. § 2000e-2(a). The statute defines “religion” broadly to “include[ ] all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e (j). The employee must show that she “(1) holds a sincere religious belief that conflicts with an employment requirement; (2) [she] informed [the] employer of the conflict; and (3) [the employer] discharged or disciplined [the employee] for failing to comply with the conflicting requirement.” Tepper v. Potter, 505 F. 3d 508, 514 (6th Cir. 2007). If the employee satisfies these elements, the employer must “prove that it offered a reasonable accommodation to the employee, or that it could not reasonably accommodate the employee without undue hardship in the conduct of its business. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1986). The statute requires the employer to reasonably accommodate sincerely held religious beliefs, not to accommodate an employee’s personal preferences. Dachman v. Shalala, 9 F.Appx. 186, 192 (4th Cir. 2001). An accommodation imposes an undue burden if the accommodation requires more of the employer than a small cost or burden. Small v. Memphis Light, Gas & Water, 952 F.3d 821, 828 (6th Cir. 2019) (Circuit Judge Thapar, concurring). Employers should talk to the employee to understand how work is interfering with the employee’s sincerely held religious beliefs. The employer and employee might be able to solve the problem. The sincerity of the religious belief is usually not in dispute. The sincerity of the religious belief is largely a matter of the employee’s credibility. Davis v. Ft. Bend Cnty., 765 F.3d 480, 486 (5th Cir. 2014); see also https://www.eeoc. gov/laws/guidance/section-12-religious-discrimination#_ftn42. It is not a good idea to challenge the sincerity of belief. Conclusion As Justice Gorsuch notes in Kennedy, America is a pluralistic society. Learning how to tolerate another’s beliefs is part of learning how to live in a pluralistic society. This is a character trait that is essential to a tolerant citizenry. Perhaps this is nowhere more evident than in the First Amendment and Title VII. The former demands the government stay out of a person’s religious beliefs and practices. The Establishment Clause keeps the government from establishing a national religion.
That’s Why Rainey Kizer Makes Your Business Our Concern As the issues facing HR executives become more frequent, challenging, and complex each year, you need a law firm that provides advice invidualized for you specific needs. This is why you should know the employment law attorneys at Rainey, Kizer, Reviere & Bell, PLC. For over 40 years, our AV-rated firm has advised businesses, non-profit organizations and government agencies on all aspects of employment law. To learn more, please call.
Memphis
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Title VII brings this concept of toleration into private employment. And in the context of religion, Title VII seeks to teach employers and employees that “essential character trait” of toleration.
Dale Conder, Attorney
dconder@raineykizer.com Rainey Kizer Reviere & Bell PLC www.raineykizer.com
Tennessee does not certify specialists in the area of employment law.
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Why Candidate Experience Matters (in the Hiring Process AND During the Background Check) By JARED ALEXANDER
When today’s job seekers embark on a job search, they aren’t going to settle for vague, rude, inconsistent, lengthy treatment. They expect a seamless, speedy, respectful candidate experience, whether they get hired.
Why Candidate Experience Matters Three big reasons to make sure your candidates have a positive, fulfilling experience are: • It establishes trust. If a candidate feels like the people they meet during the hiring process are honest and dependable, they will trust not only the individuals, but your company brand, too. • It makes them want to work there. A vague, painful, slow process can make a candidate feel like they’re wasting their time and being disrespected. Neither quality is on the “good” list when looking for new employment. However, a positive candidate experience keeps candidates engaged and enthusiastic about landing the role. • They will talk about a bad one. The power of the internet can carry an irritated job candidate’s negative messaging far and wide. CareerArc reports that a whopping 72% of job candidates said they would share a negative hiring experience either online or with someone directly. Social media, online company review sites, and message boards can amplify negative reviews so much they end up hurting your employer brand. If HR is still using clunky, slow processes in their hiring processes, dragging out interviews, and not keeping candidates informed, the candidate may move on to another position where the process is more intuitive. Keep in mind a key component of the hiring process is the background check. A CareerBuilder survey reported that close to 40% of employers lose candidates because of a poor background screening experience. Background checks with difficult-to-useplatforms and slow processes can cause frustration and mire down the entire process. It may even cause you to lose them to your competitor! Employers should continuously measure and improve every part of their hiring process to maintain a high-quality candidate experience. 22
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Elevating the Background Check Portion of the Candidate Experience There are many ways to increase the effectiveness of your organization’s candidate experience, both via technological tools and with human effort.
Through Technology Implementing technology tools throughout the candidate experience smooths and simplifies it, creating a more intuitive journey. For example, Applicant Tracking Software (ATS) integrations help reduce data entry errors and speed up the process. Cloud-based ordering lets HR quickly input and receive crucial background screening information. Here are 3 helpful ways technology can elevate your candidate experience. • User-friendly platforms. HR should implement ways to let the candidate drive their experience whenever possible. This means creating easy ways to input their contact information, decrease the number of required clicks, and laying out a simple, easy-to-follow journey. For example, a dedicated applicant portal offers a convenient way for candidates to control their experience. As a bonus, applicant portals decrease data entry on the organization’s end and reduce the chances of human error. Another user-friendly technology tool is to be able to electronically sign authorizations and release disclosures. Electronic signatures create a friendly experience for the candidate, potentially shave days of the screening timeline, and keep the employer in compliance. • Mobile applications. Candidates want to be able to apply for jobs and receive information during the hiring process via their smart devices and be able to send and receive texts via a mobile hiring app. HR needs to prioritize mobilecapable options whenever possible. Doing this increases the agility of the entire experience. • Data privacy. Worrying about their private information negatively impacts a candidate’s experience. Protecting your applicants’ personal identifying information (PII) is crucial throughout your background screening process (and beyond). Work with your IT team to ensure your platforms and communication channels have the latest firewalls and security. Write down your policy and make it easy for candidates to find if they want to reference it.
Through Good Ole Human Contact There’s no doubt that technology is a “musthave” in creating a cohesive modern-day candidate experience. It allows employers
to meet them where they are, apply conveniently, and stay in touch throughout the journey. However, don’t discount the human portion of the candidate experience. It’s just as important as ever and, when paired with technology, rounds out and solidifies a positive hiring experience. • Sense of urgency. Throughout the hiring process and when waiting on the background check, HR must look for places to decrease waiting time. It may be cutting out a round of interviews, meeting more often to make decisions quicker, or finding a new background screening vendor with shorter turn-around times. Share the expected timeline with the candidate so they aren’t waiting to hear something for days or weeks, feeling like they’re in the dark. Needlessly wondering and waiting won’t positively contribute to your candidates’ experiences. • Consistent communication. Honest, thorough explanations go a long way in establishing rapport and building trust with your candidates. For example, walk them through the process in as much detail as possible, tell them why you need their personal information, inform them you’ll be running a background check and what that entails, and always make sure they are aware of the next steps. • Approachability. Aloof, disrespectful, and rude company representatives will only harm the candidate experience. HR should train and coach all participants to be friendly, patient, willing to answer questions, and open to feedback. After all, HR can use both positive and negative feedback from candidates to further improve your future candidates’ hiring journeys within your company. In today’s competitive market, the candidate experience may be the difference in successfully hiring your first choice and losing them to the competition. Talented professionals expect and demand the process be smooth, speedy, clear, secure, and painless. By focusing on improving your candidate’s experience, and the background check portion, you can clear obstacles that would otherwise decrease your hiring success. A positive experience arms you with a competitive edge by helping top talent see that your organization is where they want to make their next career move.
Jared Alexander
Background Screening Thought Leader jalexander@datafacts.com Datafacts.com
A Perfect Employee Perk-Serve Grocery & Holiday Gift Checks How can you serve your employees better? Companies are offering new incentives to help offset the high prices at grocery stores. Current high inflation rates are dramatically affecting employee pay checks. At the same time, companies are trying to balance increasing business costs, making it difficult to simply increase pay. Therefore, to offset these hopefully temporary inflated price tags companies are offering unique grocery gift perks. Holiday Gift Check Program offers gift checks up to $50 that can be used for favorite grocery purchases. The gift checks are a fun perk! Some companies are offering gift checks to employee as part of appreciation programs that are centered around a summer celebration or backyard barbeque while others are providing a monthly grocery incentive tied to work performance. Gift checks are a flexible bonus that can be served up in many ways, but the bottom line is that it will be appreciated. Employees enjoy redeeming the gift checks at virtually any grocery store nationwide for grocery items. A perfect perk that allows companies to show their appreciation and help retain valued employees. For more information visit www.giftcheckprogram.com
Need an Employee Holiday Gift? Holiday Gift Check Program also offers the perfect gift of a holiday meal. A flexible festive gift that employees enjoy redeeming for the Thanksgiving turkey, holiday ham or festive foods such as deserts and fun platters. • Fits any corporate gift budget with gift amounts from $5-$50 • Easy to redeem at virtually any grocery store nationwide • Holiday message with company’s name on the gift check • Easy to deliver to both in-office & remote employees • Return ‘leftover’ gift checks after season for a full refund of face value • 34 years providing reliable gift checks • Special seasonal savings available
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Inflation’s Impact on Employee Benefits By R. EDWARD JOHNSON
As the pandemic phase of COVID-19 tapers off and society begins its return to normalcy, the impacts of demand for goods and services outpacing supply has led to a significant rise in inflation. For example, the annual rate of inflation in the United States reached 6.8% in November 2021, the highest in more than three decades, as measured by the Consumer Price Index, and more recent data suggests the rate of inflation will continue to be a concern. What is the relationship between inflation and employee benefits? Why would inflation be important when employers are considering impacts to employees? When revisiting benefit offerings for 2022, leaders of many corporations list ongoing stress to their employees due to the pandemic, rising inflation, a hot job market, and rising costs of health benefits as their main concerns. And one could argue that the four of those are well correlated: a hot job market leads to higher compensation offerings which contribute to but may not outpace inflation, inflation in turns leads to higher compensation needing to be offered to attract and retain employees, and round and round it goes. In addition, these forces along with supply issues for medical equipment and materials lead to ever increasing health care costs, with health care costs being one of the most expensive benefits an employee or an organization pay for each year. We can expect the reaction in the employee benefits space to be one where organizations begin to focus more and more on how to avoid adding to their employee financial burdens, and in turn how to retain the quality employees that they have. One of the problems, however, is C-level executives lack the confidence—due to the absence of solid data—to believe that a lot of their long-term strategies save their employees money. In general, companies that take a multi-pronged approach to cost management seem to have the most success. Claim trend management, higher than average historical compensation adjustments, absorbing health care cost increases instead of passing them on to employees and holding back on reducing benefits are just some of the ways that employers are attempting to keep their employees from absorbing more of a financial burden during this tight labor market and period of inflation. 24
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Projected National Health Expenditure, 2019-2028 • National health spending is projected to grow at an average annual rate of 5.4% for 2019-28 and to reach $6.2 trillion by 2028. • Because national health expenditures are projected to grow 1.1 percentage points faster than gross domestic product per year on average over 2019–28, the health share of the economy is projected to rise from 17.7% in 2018 to 19.7% in 2028. • Price growth for medical goods and services (as measured by the personal health care deflator) is projected to accelerate, averaging 2.4% per year for 2019–28, partly reflecting faster expected growth in health sector wages. • Among major payers, Medicare is expected to experience the fastest spending growth (7.6% per year over 2019-28), largely because of having the highest projected enrollment growth. • The insured share of the population is expected to fall from 90.6% in 2018 to 89.4% by 2028.
Health Care Costs With more and more C-level executives becoming aware of the unsustainability regarding health care costs—exacerbated by the other market forces mentioned— more and more companies are becoming offensive as well as defensive when it comes to benefit offerings. With an eye on employee retention as well, more companies are offering arrangements such as student loan subsidies, remote working arrangements, and more flexibility in work scheduling. Companies benefit as well when they can cut down on leasing costs or employ individuals who live in areas with a lower cost of living. The bottom line is that taking some sort of action, along with rigorous plan management, is key to navigating the current economic situation. As always, working closely with your employee benefits consultant is the best course of action to navigate these unprecedented times. Your consultant is the expert, acting as an extension of your own team, who can help you map out all the alternatives to managing costs and maximizing the value of your plan.
R. Edward Johnson, ASA, MAAA, FCA
Sr. Vice President, Practice Leader, Financial Analytics McGriff johnsonre@mcgriff.com www.McGriff.com
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Secure Act 2.0 and The War on Retirement BY JIM TRUJILLO
Before we jump into another exhilarating talk around 401(k) legislation (please sense my sarcasm), I want you to take a few seconds and ask yourself why it all truly matters. Sure, 401(k)s are an incredibly important part of a company’s total benefits package. And with the current employment climate, I’m sure your company is considering your benefits package now more than ever before. We are all fishing shoulder to shoulder out of a shallow talent pool and the talent “ain’t bitin’.” But that’s not why 401(k)s were originally created, and we know that. It’s easy to lose track of the hundreds of different crises going on in the world and in our life but there is one that stands out and has inspired me enough to want to try and make a difference. One that impacts everyone in the country, especially HR pros and the companies they work for. I’m referring to the retirement crisis in America and 401(k)s are the secret weapon to combating it. As a 401(k) advisor who coaches participants on their finances, I consider myself – and my team – on the front lines of the war on retirement readiness. I can tell you; it is not a pretty sight. It’s sad to say but in many cases, employees are struggling to actually retire at retirement age, and instead are working well past 65. Some of the main reasons why include: • The Social security funding guarantee is expected to end in 2035 (Source: SSA.gov). People should never rely solely on Social Security for retirement. It wasn’t built for that, but it was built to supplement their retirement income and now it is questionable how much it will even be able to do that. • People are living longer than ever before with healthy males living to 84 and healthy females living to 86. Don’t get me wrong…modern medicine is amazing, and I hope to be lucky enough to live that long but doing so brings on a huge investment risk that people don’t think about enough… outliving your money. People are needing to save more than ever before because of longevity. (Source: United Nations – World Prospects) • Only 56% of workers are enrolled in a 401(k) plan while 72% had access. (Source: Transamerica Center for Retirement Studies). This reveals two major problems. One is that not every worker even has access to a retirement plan and secondly is that not everyone who has one is taking advantage of it. 26
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• The suggested amount of savings needed to continue your lifestyle in retirement has jumped up to a staggering $1,040,000. (Northwestern Mutual Planning & Progress Study 2021). With stats like those, it feels like our people are fighting an uphill battle but luckily the government is stepping in to provide some much-needed reprieve. Their secret weapon…the Secure Act 2.0. As we know, there have been variations of this legislature all with the same goal in mind; to help Americans retire. This most recent version, passed by the House in March, may still see some changes as it makes its way through the Senate, but with bi-partisan support it is believed to have strong enough momentum to be able make it to the president’s desk and signed into law. There are many great provisions being considered but some are standing out to Plan Administrators more than others: • L ong-term, part-time Employees may now be eligible for retirement benefits – I believe this is in place for those older employees who may be working part-time to supplement their retirement income. With this provision, it can give them hope that they may not have to work PT forever. That they can save and receive a match so that one day they can fully retire. • I ncreased Catch-Up Limits – As a financial coach I’m constantly reminding employees of a golden rule and that is to save 10-20% to help them reach their retirement goals. But as someone who has a home, and two young children, I can speak from personal experiences when I say things come up. You may not always be able to hit that mark but as you get closer to retirement it is as important as ever to get there and maybe even go beyond it. The age 50 catch-up has helped in this way but this new provision would help those over 60 to save at an even higher rate with a $10,000 catch up limit. • Roth Matching Contributions – On the opposite side of the spectrum, we have the younger generation that, because of compounding interest, we can truly help to shape their future retirement. Until now, matching dollars were always made as a Pre-Tax contribution even though we know younger employees should be saving Roth. This new provision will help these future generations create even greater tax-free buckets of retirement savings.
• Student Loan Payments – How hard is it to find new talent right now? Our workforce landscape has been changing rapidly for years with most of it now being comprised of millennials and younger. With that, as a millennial myself, I can safely say that your future talent doesn’t have your 401(k) offering as the end all be all benefit. We want instant gratification and to feel free to do what we want. But our generation is burdened by student loans which is crippling our ability to do anything other than put all our discretionary cash towards paying down that loan as quickly as possible. This wonderful provision will allow employers to consider the employees monthly student loan payment as a contribution to their retirement account and thus the company will add the match to their 401k account. They get to pay down their debt while also saving for their future. It is very exciting especially as we are all fighting for that young talent’s attention.
want to increase retirement readiness? Bring in a financial advisor. Do you want everyone to have great credit? Educate them on how to increase their credit score. Creating a cookie cutter program just to check a box won’t give you, your leaders and your employees the wellness offering they are looking for. Helping your employees in their current situation is a priority but the retirement crisis must be thought of as a long-term issue and it’s important to remember that you don’t have to do this alone. Consult with your current benefits providers to see what services they have around financial wellness. If by chance they can’t assist, then consider finding a financial advisor that will. As a proud 401(k) advisor myself, I can say there are many of us able and willing to fight the good fight and make a difference in your employee’s future. With the government stepping in with the SECURE Act 2.0 as well, the final piece missing is you. I want you to ask yourself, how do you plan on joining in on the battle?
While this Legislation continues to make its way to law, the final outcome is still uncertain. The 401(k) industry and HR professionals alike are very optimistic that the main provisions will stay in place and will lead to a turning of the tides with the current retirement crisis. But until it is signed and official, there are still things you can do to help your employees fight to get on track. Such as creating a financial wellness program tailored to your employee base. I’ve heard too many stories of companies throwing together a program and it being a complete bust because they didn’t customize it for their people. Like any other project you’ve worked on before, creating a wellness program should start with setting realistic goals. Do you want to help your employees reduce debt? Bring in a debt specialist. Do you
Jim Trujillo, CFP®, PPC®
Financial Advisor JimTrujillo@argi.net www.ARGI.net
Respective services provided by ARGI Investment Services, LLC, a Registered Investment Adviser, ARGI CPAs and Advisors, PLLC, ARGI Business Services, LLC, and Advisor Insurance Solutions, LLC. All are affiliates of ARGI Financial Group LLC. Trust services provided by ARGI Trust, a division of Advocacy Trust LLC. SEC registration does not constitute an endorsement of ARGI Investment Services, LLC by the SEC nor does it indicate that ARGI Investment Services, LLC has attained a particular level of skill or ability.
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Respective services provided by ARGI Investment Services, LLC, a Registered Investment Adviser, ARGI CPAs and Advisors, PLLC, ARGI Business Services, LLC, and Advisor Insurance Solutions, LLC. All are affiliates of ARGI Financial Group LLC. Trust services provided by ARGI Trust, a division of Advocacy Trust LLC.
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MORE THAN A CONFERENCE INCLUSION 2022 IS ABOUT ACTION 14% of U.S. workers feel they have been treated unfairly in the workplace due to their race or ethnicity.* INCLUSION 2022 is designed to ensure you have the most up-to-date tools to foster a more equitable world of work. When every employee feels valued, your organization is set up for success. 50+ sessions. 75+ speakers. 7 content tracks. Including: •
Discrimination in the workplace
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Equity
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DE&I strategy
Join us this October in sunny San Diego and be a part of real change. *Source: The Journey to Equity and Inclusion, SHRM 2020.
Visit www.shrm.org/INC22 to learn more
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ARE YOU YOU DOING DOING ENOUGH ARE ENOUGHAS ASAN AN EMPLOYER? EMPLOYER?
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law, the Pregnancy Discrimination Act, requires employer health plans to cover abortion where the life of the mother would be endangered if the fetus were carried to term, or where medical complications have arisen from an abortion.
Considerations for Employers After Roe v. Wade Reversal By TIMOTHY J. STANTON and HILLARY M. SIZER
The Supreme Court of the United States overruled long-standing abortion precedent contained in Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) in a landmark decision on June 24, 2022. Justice Alito penned the majority opinion in the case, Dobbs v. Jackson Women’s Health Organization. The majority determined that there is no federal constitutional right to abortion, giving states full reign to regulate abortion. That state authority is making employers’ heads spin. There are several types of state abortion laws that are either effective or will soon become effective after the ruling. Many states have old abortion laws, like the 1925 Texas law that was under review in Roe v. Wade, that were invalidated by the Roe decision but remained on the books. Now that Roe has been overruled, many of these laws have become effective again. Some states have also enacted “trigger laws” designed to take effect automatically at some point soon after Roe was overturned. States have also been passing new abortion bans such as the so-called fetal heartbeat laws in Texas (2021) and Oklahoma (2022), and will continue to pass new laws and strengthen existing laws through amendments. Fetal heartbeat laws restrict abortions beginning at around six weeks of pregnancy. Other laws restrict abortions beginning in the second trimester, at around 15 weeks of pregnancy. States may also restrict abortions in all cases except when necessary to save the mother’s life. Some laws also target abortions through prescription drugs, by prohibiting them outright or creating hurdles such as requiring the presence of a doctor to administer the drug. This requirement effectively rules out telehealth visits and mail-order medications. About half of the states in the country already, or are expected to, restrict abortions as a result of the ruling in Dobbs. Employers with employees in states that prohibit abortions are analyzing the risks of continuing to cover abortions in their health plans, and making decisions on whether they want to pay for employees to travel out of state for abortion drugs and procedures. In order to make these decisions, employers must understand the governing laws. The Employee Retirement Income Security Act of 1974 (ERISA) does not restrict employers from covering abortion benefits, including reimbursing travel costs for out-of-state abortions. ERISA also does not require employers to cover abortion benefits. However, another federal 30
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ERISA broadly preempts state laws that relate to employee benefit plans, and courts have frequently upheld that preemption over the past 40 years. There are two important limitations on that preemption. Insurance laws are not preempted, and ERISA would also not preempt “generally applicable” criminal laws of the states. Several state abortion bans include liability for aiding or abetting or furnishing the means for procuring an illegal abortion. It is very unclear how these laws will play out in federal court in the context of benefit plan coverage, especially due to the limited precedent with respect to the criminal laws exception to ERISA preemption. Constitutional law scholars have raised concerns about the extraterritorial application of the civil and criminal liability provisions of state abortion laws. For example, the Texas fetal heartbeat law creates a private civil cause of action against any person who aids or abets a prohibited abortion. If an employer based in New Mexico pays for an employee who resides in Texas to travel out of state to obtain an abortion, may a Texas citizen sue the employer? This sort of question has lawyers dusting off law books covering old doctrines, such as the Dormant Commerce Clause. That doctrine, dating from the 19th century, permits states to regulate within their borders but bars them from passing legislation that unnecessarily burdens interstate travel. Practically, however, an employer’s analysis of what abortion benefits to cover, if any, depends in part on what type of plan an employer has. Insured plans are subject to state insurance laws. Employers with these types of plans may have less flexibility with the design of the medical plan. Insurance providers may offer expanded benefits, such as expanded medical travel reimbursements, in an insurance certificate rider. Employers with self-funded health plans will have more flexibility to make plan design decisions, and are not subject to state insurance laws. But all plan sponsors will need to cover abortions in cases of medical complications or when the life of the mother is threatened, to comply with the Pregnancy Discrimination Act. Employers that wish to add or expand their medical travel reimbursement benefits have several considerations. Employers focused on adding a travel benefit targeted at abortion could face compliance issues with the Mental Health Parity and Addiction Equity Act (MHPAEA), which requires restrictions on mental health and substance use disorder benefits to be no less stringent than restrictions on medical and surgical benefits. Employers may instead want to expand medical travel benefits to include mental health benefits that are subject to state bans, such as gender dysphoria treatments. Several states have passed or introduced laws prohibiting gender dysphoria treatments like puberty blocker drugs in minor children. Alternatively, an employer may consider reimbursing travel and lodging costs for any service or treatment that is covered by the plan, if a network provider is not available within a 50- or 100-mile radius. Many employer health plans already cover travel and lodging costs for services such as bariatric surgery, organ transplants, and treatment performed by a center of excellence. Limiting reimbursements to cases where services are unavailable locally helps avoid claims for travel to sought-after specialists in other states even though in-state doctors are available. The language limiting reimbursements to services that are unavailable within a certain distance prevents the reimbursement of travel costs
for desired out-of-state specialists if an in-state network provider is available. While employers may want to restrict travel to the closest state in which the service is available for cost containment reasons, there are additional considerations with that approach. An employee who lives in a state that restricts abortions may want to travel to a state in which she has friends or relatives in order to obtain an abortion, which may actually result in lower costs if she stays with the people she knows. Employers seeking to add or expand medical travel reimbursements will also need to consider federal tax law reporting and withholding obligations. Internal Revenue Code Section 213(d) treats certain travel costs as a deductible (or employer reimbursable) “medical care” expense if it is “primarily for and essential to” obtaining medical care. Employer reimbursement policies need to be drafted carefully to limit reimbursement to travel necessary for medical care. Reimbursable expenses include: transportation expenses, up to $50 per night of lodging (hotel) expenses, and transportation and lodging expenses for a travel companion whose presence is necessary for the patient to obtain medical care. Transportation expenses eligible for reimbursement are broad and may be narrowed by employers as desired. They include airfare, train tickets, mileage, tolls, and costs for parking, gas, car rental, tips, and rideshare fees. Internal Revenue Service (IRS) regulations provide detail on mileage allowances for medical travel. Benefits beyond these levels would create taxable income and related reporting obligations. Reimbursement benefits may be offered in several forms. One thing employers should keep in mind when considering their options is that a program established by an employer to reimburse medical expenses (including medical travel) will generally be a group health plan subject to
ERISA and other group health plan laws (HIPAA, the Affordable Care Act, COBRA, etc.). Options for a medical travel reimbursement benefit include an amendment or rider to the employer’s existing medical plan, a health reimbursement arrangement (HRA), and an employee assistance program (EAP). EAPs that do not provide “significant” medical benefits will be exempt from certain ERISA requirements. Some final recommendations for employers include working with current service providers including third-party administrators, pharmacy benefit managers, and payroll and tax providers, to see what abortion benefit designs they can work with. Some large insurance companies such as United Healthcare and Blue Cross Blue Shield have published guidance on abortion and abortion travel expense coverage, but not all insurers and third-party administrators may be able to accommodate these benefits. Employers may also want to review liability insurance policies such as directors and officers and ERISA fiduciary liability insurance. These policies may provide some relevant protections that affect the amount of risk an employer is willing to take on if they are seeking to expand abortion benefit offerings.
Timothy J. Stanton, Shareholder Littler Chicago Office timothy.stanton@ogletree.com www.littler.com
Hillary M. Sizer, Associate
Littler Chicago Office hillary.sizer@ogletree.com www.littler.com
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Teresa P. Layng, SHRM-CP Teresa P. Layng is Director of Human Resources at Marietta Country Club in Kennesaw, Georgia. She received a Bachelor of Business Administration at Georgia State University. She has worked in Human Resources as Director for four years, is a member of the Executive Team, and co-chairs the Employee Committee. Prior her current position, Teresa had a diverse background in Fortune 500 companies and state government. As Director, she has made many improvements to the Club and Human Resources department updating it into a major contributor to the Club’s day-to-day operations and strategic management. She has worked with the Board of Directors and General Manager to implement many changes, including vetting, and instituting new payroll and benefits systems, new employee recognition programs, and new employee events. Teresa’s commitment to improve the Human Resources department compelled her to continue her education and earn her SHRM-CP.
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Keeping the Human in Workforce Reductions
By AMY SCHABACKER DUFRANE
Many of us remember the fiscal crisis of 2008. Leading to a loss of more than $2 trillion from the global economy, it forced employers to make deep workforce reductions. Pervasive enough to be labeled “The Great Recession,” nearly nine million American workers lost their jobs and unemployment in the U.S. hovered at 10 percent in late 2009. Fast-forward to today’s labor markets and we’re grappling with “The Great Resignation.” But are we really? With interest rates rising to stave off high inflation, companies are cutting back. Companies including Tesla, JPMorgan Chase, Coinbase and Netflix have made job cuts. And, as competitive as the labor market remains, in a recent press conference, the chair of the U.S. Federal Reserve shared his anticipation of a better balance between supply and demand and wage pressures. The handwriting is on the wall. Some employers will be forced to make tough decisions and many HR professionals haven’t lived through systematic workforce reductions previously. I urge you to keep one theme in mind: keep the human at the core. Downsizing should be a last choice scenario; yet organizations under considerable pressure to meet their quarterly numbers often deploy it quickly. It’s always shocking to employees when high-flying companies screech to a halt and HR professionals are asked to turn their attention to managing layoffs instead of identifying new talent pools, filling open reqs, and creating retention strategies. Whether you’re a seasoned HR professional or dealing with your first foray into rightsizing the workforce, consider these approaches that will help you manage through the storm: v Employees are not line items: Workforce reductions are cost reductions, but employees aren’t line items. They are talented individuals with unique skillsets. Failing to recognize what you’re giving up when making tough decisions can have longlasting impact. Think that older worker who knows COBOL programming is expendable? Perhaps his salary puts him on the list without consideration that he is the only person able to resolve the complexities of legacy business-critical systems. And given the effort required to attract a soon-to-be top-performing sales rep, do you really want to eliminate her potential prematurely? HR is closest to the workforce and has the tools and insights to inventory the true value of the human assets. v Let them leave with dignity: As hard as layoffs are for HR, the disruption to the employee and their family is overwhelming. The humiliation of being “on the list" cannot be underestimated. Locking someone out of their email as a signal of what’s to come is inhumane. Announcing layoffs via text or zoom can be equally 32
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harsh. Wherever possible, layoffs should be conducted one-onone with clearly stated communications and next steps such as severance and support. Your former employees become your employer brand ambassadors and while no one is ever happy to be let go, give them individual time to process their emotions with the option to ask questions. v Keep the door open: There is no better example than the airline industry. During the pandemic, carriers felt forced to offer early retirement and layoff considerable percentages of their workforce. In an industry where recruiting, training, credentialing and background-screening take time, rebooting this important transportation sector has been painful. Employment delays are constraining airlines’ ability to meet passenger demand and ensure safety. Instead of planning for the future, management focused only in the moment. By not keeping its employees engaged in some manner – for example, to invest in their ongoing learning and certifications while furloughed – the industry is struggling, impacting its earnings, its growth and, most of all, its passengers. HR professionals are wired to help workers thrive. There’s another aspect of managing a workforce reduction and that’s those workers who are retained. Survivor syndrome is real, and once stable cultures will become off-kilter. Designing learning and team-building programs to improve morale will help maintain workgroup stability. Be clear in your communications; if no further layoffs are planned, say so. The anxiety of the unknown can be significantly destabilizing and result in further attrition. Preparing to lead through organizational challenges is a functional area of HRCI’s certifications in Human Resources. This foundational knowledge can be indispensable as you deal with today’s dynamic economic and labor indicators.
Amy Schabacker Dufrane, Ed.D., SPHR, CAE, is CEO of HRCI, the world’s premier credentialing and learning organization for the human resources profession. Before joining HRCI, she spent more than 25 years in HR leadership and teaching roles. She is a member of the Economic Club, serves on the Wall Street Journal CEO Council, is a member of the CEO Roundtable, and is chair of the Columbia Lighthouse for the Blind board. Amy holds a doctorate from The George Washington University, an MBA and MA from Marymount University, and a BS from Hood College.
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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.
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
Curtis Fisher
COU NSEL | N AS H VILLE
M EM B ER | N AS HV I L L E
Susie Bilbro advises clients on all aspects of employee benefit plan design and administration including compliance with ERISA, the Patient Protection and Affordable Care Act, COBRA and the Internal Revenue Code. She has counseled public and private clients on employee welfare and pension benefits issues, both in connection with corporate transactions and on day-to-day administration.
Doug Dahl
Fritz Richter
M EM BER | N AS H VILLE
M EM B ER | N AS HV I L L E
Doug Dahl provides technical knowledge and advice to companies on a wide range of federal tax and ERISA matters regarding employee benefits, including qualified retirement plans, executive compensation arrangements and health and welfare plans. Doug regularly assists companies with employee benefit issues that arise during and following various corporate transactions and events, such as mergers, acquisitions, dispositions and bankruptcies.
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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 year alone, Curtis has provided advice in more than 60 merger or acquisition transactions.
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Fritz Richter brings more than 30 years of experience counseling 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.
David Thornton
Kimia Movahed
M EM BER | ME MP H IS
AS S O C I AT E | N AS HV ILLE
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.
Kimia Movahed counsels clients on the design, implementation and administration of qualified employee benefit plans, health and welfare benefit plans and deferred compensation packages. She also provides advice on employee benefits and compensation issues arising in mergers, acquisitions and other corporate transactions.
Noah Black
Catherine Simpson
ASSOCIAT E | N AS H VILLE
AS S O C I AT E | M EM PHI S
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 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.
GO CONFIDENTLY. Bass, Berry & Sims listens and responds with creative yet practical counsel. We stay on pace with the complex and rapidly evolving employment landscape, connecting your dynamic human resources needs to proactive strategies. Relationships, reliability, and respect – at the center of our Labor & Employment and Employee Benefits practices.
Stay up-to-date on the latest in HR Law. Visit our blog at bassberryhrlawtalk.com.
Centered to deliver. bassberry.com
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At Littler, we understand that workplace issues can’t wait. With access to more than 1,600 employment attorneys in over 100 offices around the world, our clients don’t have to. We aim to go beyond best practices, creating solutions that help clients navigate a complex business world. With deep experience and resources that are local, everywhere, a diverse team of the brightest minds, and powerful proprietary technology, we deliver groundbreaking innovation that prepares employers for what’s happening today, and what’s likely to happen tomorrow. Because at Littler, we’re fueled by ingenuity and inspired by you.
Wesley Stockard
J. René Toadvine
Finn Pressly
SHA REHOLD E R LITTLER AT LAN TA
S HA R EHO L DER L I T T L ER C HA R LOT T E
S HA R EHO L DER L I T T L ER F LO R IDA
As Co-Chair of Littler’s ERISA and Benefit Plan Litigation Practice, Wesley Stockard advises, represents and trains clients on a variety of labor and employment matters, with an emphasis on litigation and counseling in the areas of public and private employer benefit plan litigation and design, including claims under the Employee Retirement Income Security Act (ERISA); wage and hour compliance and litigation, including claims under the Fair Labor Standards Act (FLSA); employment discrimination and harassment matters; Family and Medical Leave Act (FMLA) compliance; non-compete and non-solicitation covenants; and unfair labor practice charges. He has particular experience with class action and complex litigation matters, including litigation of class and collective ERISA and FLSA claims.
J. René Toadvine maintains a nationwide practice that focuses on representing management in all facets of employee benefits matters, including employee benefits tax issues; the Employee Retirement Income Security Act (ERISA) and benefits planning; executive compensation; employee benefits in mergers and acquisitions; and bank finance and ERISA issues in securitizations. René designs and drafts employee benefits and executive compensation plans with adherence to compliance regulations, including qualified and non-qualified retirement plans; health and welfare plans; severance plans; disability plans; equity compensation; and deferred compensation.
Finn Pressly’s practice focuses on employee benefits and executive compensation. He has extensive experience counseling clients on all aspects of health and welfare benefit plans, including issues related to: • Plan design • Summary plan descriptions • All aspects of health care reform • Health Insurance Portability and Accountability Act (HIPAA) privacy and security compliance • Subrogation and claims reimbursement issues • State and local compliance issues • Wellness programs and consumer driven health care initiatives (including health savings accounts) • Health care continuation coverage (COBRA)
GREATER MEMPHIS EMPLOYEE BENEFITS COUNCIL
July 14, 2022 Luncheon
2
1 36
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1 Melissa Wilkes Donahue, Director of CONCERN Employee Assistance Program 2 The Connect Healthcare Collaboration Team was the sponsor for the GMEBC July Luncheon Meeting. (L-R) Leigh Dill, VP of Operations, Sally Pace, CEO, and YJ Lee, Marketing Strategy Advisor.
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Titans Duking it Out: NLRB Pursues Starbucks and Amazon in Court By HOWARD B. JACKSON
U
nder Section 10 (j) of the National Labor Relations Act (“Act”), the National Labor Relations Board (“Board”) has the authority to seek injunctive relief in U.S. District Court in situations where based on the passage of time the normal processes of the Board will be unlikely to effectively remedy the alleged violations. The basic idea is that an employer or union should not be allowed to frustrate the purposes of the Act by committing unfair labor practices that severely alter the circumstances, and then litigating the matter through the Board’s usual processes to a point such that by the time a final decision is made the unfair labor practice has had a permanent impact, rendering the Board’s remedy ineffective. To prevent that set of circumstances, the Board can seek an injunction which, in most cases, seeks to preserve or restore the status quo before the unfair labor practice charge was filed. As in any situation, the grant of an injunction during the pendency of an underlying action is an unusual form of relief. To justify obtaining a Section 10 (j) injunction the Board must show how the alleged violations threaten statutory rights and the public interest while the proceedings are ongoing and before a Board order will issue. This typically involves two elements of proof: (1) a sufficient showing that an unfair labor practice has occurred; and (2) showing that there is a threat that the Board’s remedial order issued in due course would be ineffective, in practical terms a nullity. An aspect of this procedure which is unusual is that it is carried out in U.S. District Court, and it takes place early in the process. Labor practitioners and human resources professionals who have worked in organized settings know that in the usual course of things an unfair labor practice is filed with the Board. The Regional Director then decides whether there is merit to the charge such that it should be prosecuted. If so, there is a hearing before an administrative law judge (“ALJ”). ALJ’s are hired via the Board’s Division of Judges to hear cases under the Act. A party who is not satisfied with the ALJ decision can appeal to the five-member Board in Washington, D.C. All of this takes place within the NLRB itself, and not in court. In contrast, where the Regional Director determines that the alleged unfair labor practices warrant Section 10(j) relief, the Board proceeds directly into U.S. District Court and seeks issuance of the injunction. If issued, the injunction typically remains in place until the unfair labor practice is finally resolved. In August of 2021, the Board’s General Counsel, Jennifer Abruzzo, issued a Memorandum indicating her belief “that Section 10 (j) injunctions are one of the most important tools available to effectively enforce the Act.” Ms. Abruzzo stated that she intends to “aggressively seek Section 10 (j) relief where necessary to preserve the status quo and the efficacy of Board orders.” 38
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The Memorandum noted several situations where pursuit of such an injunction may be in order because they have a greater likelihood of remedial failure. The Memorandum listed each of the following: (1) discharges that occur during an organizing campaign; (2) violations during an organizing campaign that suggest the need for a Gissel bargaining order (discussed further below); (3) violations that occur during the period following a union’s certification as representative when the parties are charged with negotiating a first collective bargaining agreement; (4) charges that involve withdrawal of recognition from an incumbent union; and (5) circumstances where a successor employer refuses to bargain with an incumbent union or refuses to hire the predecessor’s employees. Each of these categories has its own complexities and interesting factors. The remainder of this article focuses, however, on discharges during an organizing campaign, and the scary possibility of being subjected to an interim Gissel bargaining order. During an organizing campaign where a union is attempting to organize a unit of employees, it is well known that management may not interrogate employees about their union sympathies. As a practical matter it frequently becomes evident that certain employees are leading the charge to organize. It may be tempting for an employer to find reasons to rid itself of those employees. If they are gone, then there will be a void in leadership of the organizing effort. Others who may have been considering joining the organizing effort will be discouraged by seeing what has happened to those who made their views known. And litigating whether or not the discharge was really because of their attendance, or misconduct, as opposed to their union activities, can go on for years. Of course, these factors are the exact rationale the Board uses for seeking injunctive relief. If the violation is not addressed quickly, it may well achieve the objective of killing off the organizing effort. In three recent situations the Board has made good on its promise to seek a Section 10 (j) injunction in such alleged situations. One case is against Starbucks in Memphis, Tennessee, filed in May of this year. The Board alleged that the company discharged seven employees regarded as union supporters in order to frustrate the organizing effort. The employees were all discharged on the same day and included five of the six members of the organizing committee. Starbucks has responded that it had various legitimate reasons for discharge each of those employees. The case remains pending in the U.S. District Court for the Western District of Tennessee. As of this writing the Court has held proceedings relative to the request for injunction but has not issued a decision. Another recent case also involves Starbucks. In June of this year the Board’s Regional Director in Buffalo, New York petitioned the U.S. District Court in New York for a Section 10 (j) injunction. In that case the Board alleged that Starbucks engaged in a variety of unlawful
conduct, including raising wages, promising benefits, closing stores with active organizing drives and threatening employees. Eventually, the Board alleges, Starbucks discharged seven union activist employees at five stores over the course of six weeks. In this case the Regional Director is seeking a nationwide cease and desist order that would apply to Starbucks facilities nationwide, which would be an extraordinary remedy if granted. This request also remains pending. Lastly on this category, in March of this year the Board filed for a Section 10 (j) injunction against Amazon in Staten Island. Interestingly, the petition was not filed for more than a year after the discharge and was filed a month or so before a scheduled election. The Board sought reinstatement of an employee, alleging he was let go because he engaged in organizing activity. Amazon responded that it discharged the employee because he engaged in a public, vile and profane tirade against a female coworker, both over a bullhorn and over social media. Amazon takes the position that no employer could or would tolerate such conduct in a civilized workplace. The court has not ruled on this petition as of this writing.
SHRM-Memphis – June Meeting
In short, the Board is making good on its promise to seek Section 10(j) relief in the organizing context. It remains to be seen how receptive the federal courts will be to such requests. As noted above, the Board has listed circumstances warranting a Gissel bargaining order as appropriate for Section 10 (j) relief. While used less often, the potential consequences are frankly scary. Your first question may be: what in the word is a Gissel bargaining order? In 1969 the U.S. Supreme Court confirmed the Board’s ability to order an employer to recognize and bargain with a union where, although an employer may have prevailed in an election, there is evidence that the union had previously obtained union authorization cards from a majority of the employees. The name of the case was NLRB v . Gissel Packing Company. Thus the name, Gissel bargaining order. Of course, a court cannot order an employer to bargain simply because a union lost an election and once had a card majority. The evidence must show that the employer committed serious unfair labor practices that would effectively prevent a fair election or even a fair rerun election. This is a high bar to get over, and Gissel bargaining orders do not issue often. The scary part is that the current General Counsel, Ms. Abruzzo, believes in pursuing Section 10 (j) injunctions aggressively, and that the Board can seek an interim Gissel bargaining order via a petition for Section 10 (j) relief. In other words, an employer who has not lost an election, or who recently prevailed in one, could be ordered to bargain with the union during the pendency of litigation related to whether or not alleged unfair labor practices impacted the ability to conduct a fair election to the point that a permanent bargaining order should be implemented. To put it mildly, that would be an awkward position for the employer!
Howard B. Jackson, Member
Wimberly Lawson Wright Daves & Jones PLLC Knoxville, Tennessee office hjackson@wimberlylawson.com
Speakers were (L-R) Kellie Turnage, Owner, Turnage Restoration; Michael Drake, President, JM Drake Enterprises LLC; Brad Federman, CEO of PerformancePoint, and Charles Winton, Director, Lakeside Behavioral Health
June 21, 2022
David Dufour, SHRM-Memphis President; Ross Kamens, Memphis Chef/Consultant; and Dr. Kathy Tuberville, SHRM-Memphis VP-Programs
shrm-memphis.org www.HRProfessionalsMagazine.com
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JOIN OUR CLIMB Registration is open for HR2022! The Arkansas SHRM HR Conference and Expo will be October 24-26, 2022 in Hot Springs. Visit our website at HR2022.org to register as an attendee, exhibitor or sponsor today! Early bird rates end July 31st. Here’s a sneak peek at some of the exciting programming we have lined up:
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