December 2013

Volume 3 : Issue 12 TM

www.HRProfessionalsMagazine.com

Highlights of Strategic

Leadership for HR Executives in Jackson, MS

How to Determine Annual Pay Changes

Top 5 List for Year-End Bonuses

How to Put Effectiveness into Performance Appraisals

Sherry

Johnson, SPHR

SHRM

Field Services Director

How Employers Should Handle Tax Settlements and Damages

JUST PUT IT ON THE COMPANY CARD…NOBODY WILL NOTICE.

YOU’RE REALLY SHOWING OFF YOUR BEST ASSETS TODAY.

THEY’RE WORRIED ABOUT OVERTIME. I’M JUST WORKING OFF THE CLOCK.

I NEVER WEAR THE SAFETY GOGGLES. THEY LEAVE A MARK.

What you don’t hear can still hurt you.

The things employees say when you’re not around can cause legal troubles for you. Fisher & Phillips provides practical solutions to workplace legal problems. This includes helping you find and fix these kinds of employee issues before they make their way from the water cooler to the courthouse.

1715 Aaron Brenner Drive • Suite 312 • Memphis, TN 38120 • 901.526.0431 www.laborlawyers.com

ATLANTA BALTIMORE BOSTON CHARLOTTE CHICAGO CLEVELAND COLUMBIA

COLUMBUS DALLAS DENVER FORT LAUDERDALE GULFPORT HOUSTON

IRVINE KANSAS CITY LAS VEGAS LOS ANGELES LOUISVILLE MEMPHIS

NEW ENGLAND NEW JERSEY NEW ORLEANS ORLANDO PHILADELPHIA PHOENIX

PORTLAND SAN ANTONIO SAN DIEGO SAN FRANCISCO TAMPA WASHINGTON, D.C.

Bringing Human Resources & Management Expertise to You

3%

increase projected average salary budget for 2014 www.HRProfessionalsMagazine.com Editor

Cynthia Y. Thompson, MBA, SPHR Publisher

The Thompson HR Firm HR Consulting and Employee Development Art Direction

Park Avenue Design Contributing Writers

Bruce E. Buchanan Jared Bulluck Bill Catlette Harvey Deutschendorf Latosha Dexter Christine H. Evans Matt Ginn Voss W. Graham Jonathan Hancock Murray Harber Whitney Harmon Don Hillman Kristi H. Johnson Jeff Kortes Lisa Krupicka Gregory J. Northen Jennifer Riley Jeff Weintraub Mike Umphres Board of Advisors

Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR John E. Megley III, PhD Terri Murphy Susan Nieman Robert Pipkin Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles.

All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors.

HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2011 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.

Features 4 note from the editor

WEB EXCLUSIVES

5 Profile: Sherry Johnson, SPHR 8 How to Put Effectiveness into Performance Appraisals

HTTP://HRProfessionalsMagazine.com /Exclusives

11 How Employers Should Handle Tax Settlements and Damages: The IRS Is Watching!

16 Make Sure Your Company Stays on the Nice List When it Comes to Year-End Wage and Hour Issues 24 How to Determine Annual Pay Changes 33 Sometimes it IS About the Money by Bill Catlette 34 The Leadership Memphis FastTrack Program Creates Good-Doers in the Memphis Community!

Departments 12 EEOC: EEOC Charges – Why You Should Care 15 Benefits: A Workplace Culture of Health 18 Health Care Reform: Health Care Transparency 101 20 ER: Recognizing and Addressing Bullying in the Workplace 22 Performance Management: The 3 Rs of Managing Millennials 26 Retention: Wrestling with Employee Retention 28 EQ: How to Keep Great People 29 Immigration: USCIS Adds Tools to E-Verify to Combat Identity Fraud 30 ADA: How Long is Long Enough? Leaves of Absence as a Reasonable Accommodation 32 Labor: The DOL’s Interpretive Dance - How the New Persuader Rule Will Limit “Advice”

Industry News 6 Highlights from the Memphis Chamber HR Legal Summit 7 Highlights from the Strategic Leadership for HR Executives Seminar in Jackson, MS

Next Issue HR in the Health Care Industry Highlights from the Memphis Bar Association Labor & Employment Law Seminar Highlights from Littler Breakfast Briefing on the Obama NLRB Legislative Updates and HR Policy Issues www.HRProfessionalsMagazine.com

3

a note from the Editor

We

are focusing on compensation and performance management this issue. Since it is budget time in most organizations, we want to bring you informative articles with the latest trends in these areas. You will find helpful topics in this issue about how to determine annual pay changes, how to put effectiveness into performance appraisals, the top five list for year-end bonuses; just to name a few.

There were several great educational opportunities in November offering HRCI credits that I hope you were able to take advantage of. We are bringing you highlights from the Memphis Chamber HR Legal Summit that was held on November 14 at the Memphis Hilton. We are also sharing highlights from our first Strategic Leadership for HR Executives Seminar held on November 19 at the Old Capitol Museum in Jackson, MS. We are looking forward to our next seminar there in the first quarter of 2014.

Judy Bookman, Corporate Trainer and Workplace Consultant with Concern Employee Assistance Program was the guest speaker at the November meeting of Judy Bookman with Concern EAP and Mark the Greater Memphis Schirmer, President of the Greater Memphis Employee Benefits Employee Benefits Council in Memphis Council. Her topic was, “Leading a Stress-Less Life: What Will I Do Instead of Worry?” The GMEBC meets bi-monthly at the Crescent Club in Memphis.

For information about membership, check their website at www.gmebc.org.

Next month we will bring you highlights from the Memphis Bar Association Annual Labor & Employment Law Seminar held December 5 at the University of Memphis Holiday Inn. It is such a treat that HR professionals and SHRM members can now attend this excellent seminar featuring the local labor and employment law attorneys and representatives from the EEOC. In addition, we will have highlights from the Littler Breakfast Briefing on The Obama NLRB and Employee Access to Company Property.

(L-R) Tracy Moore, Corporate Director, Talent Acquisition for Methodist LeBonheur Healthcare; Daphne Large, President and CEO of Data Facts, Inc., Lisa May, VP of Resource and Development with Data Facts; Carol Ross-Spang, SVP, HR for Methodist LeBonheur Healthcare, and Cynthia Y. Thompson.

On November 15 it was my pleasure to host a luncheon at Felicia Suzanne’s Restaurant in Memphis honoring two of the most successful women I know in the Memphis HR community, Daphne Large and Carol Ross-Spang. Daphne Large, President and CEO of Data Facts, Inc. was recently honored by MBQ Magazine as CEO of the Year. Methodist LeBonheur Healthcare Germantown was recently recognized with an Excellence Through Insight award for Overall Satisfaction in Inpatient Maternity and Inpatient Step-down Units for large hospitals by Healthstream, Inc. Methodist Germantown was chosen for receiving the highest ratings in overall satisfaction from among Healthstream’s clients, as well as exceeding industry standards. You can learn more about Carol in our January 2014 issue as she will be featured on the cover. It was great to have Tracy Moore with Methodist LeBonheur and Lisa May with Data Facts join us also.

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

4

www.HRProfessionalsMagazine.com

Remember that December is the month for giving and we have many deserving charities to choose from. Don’t forget your annual contribution to The SHRM Foundation when you are writing your checks. Thank you for your support and contributions to HR Professionals Magazine during 2013.

We are looking forward to a fantastic 2014!

Cynthia Y. Thompson | Editor cynthia@HRprosMagazine.com www.HRProfessionalsMagazine.com

Sherry L. Johnson on the cover

Sherry L. Johnson, SPHR Field Services Director (AR, IN, LA, MI, MO, OK, TX) Society for Human Resource Management Sherry Johnson, SPHR, is Field Services Director for SHRM, based in Round Rock, Texas – in the Austin area. She supports the states of Arkansas, Indiana, Louisiana, Michigan, Missouri, Oklahoma and Texas. Sherry serves as SHRM’s staff liaison to the Government Affairs Core Leadership Area, for the Advocacy Team initiative, and she is a member of the SHRM Speaker’s Bureau.

Sherry has worked in the HR profession for over 15 years with industry experience in not-for-profit community organizations, public education, and entrepreneurial experience as owner of a small business. Prior to joining SHRM as a staff member in 2009, she served as chapter president for her local SHRM affiliated chapter and she held a seat on the Texas SHRM State Council.

Sherry is an active community volunteer. She has served on her local district school board of trustees; she participated on a legislative advocacy group, working with state legislators to address educational issues affecting public school districts in Texas; and, for several years she served as the volunteer coordinator for the regional Special Olympics track meet.

Sherry currently serves on the Concordia University Human Resource Management Degree Program Advisory Board; and, she’s a member of the American Society of Association Executives (ASAE) Membership Development Committee.

Sherry holds a bachelor’s degree in Business Management; and, she received her Senior Professional in Human Resources certification from the HR Certification Institute. She is a graduate of the Texas Association of School Boards (TASB) Leadership Program, earning Master Trustee designation. 

www.HRProfessionalsMagazine.com

5

Highlights from

HR Legal Summit in Memphis on November 14

Jeff Weintraub with Fisher & Phillips

Lisa Krupicka with Burch, Porter, & Johnson

Jeff and Lisa discussed bullying and harassment and how to help employees not cross the line in the workplace.

Attorneys participating in the HR Legal Summit presented by the Memphis Chamber in partnership with SHRM-Memphis, the Memphis Bar Association, and the Better Business Bureau. Sponsors of the event included HR Professionals Magazine, SunTrust Bank, Margulies Employment Law Consulting, and Embry-Riddle Aeronautical University, Memphis Campus.

Latosha Dexter with Rainey, Kizer, Bell & Reviere and Kathi Kores with the EEOC (not pictured) discussed recruiting and hiring, a top priority for the EEOC.

Louis Britt with Ford & Harrison and Imad Abdullah with Baker Donelson discussed social media and how employers can control the pandora’s box opened by employees’ increasing use of technology.

Financial Wellness Program By adding the Waddell & Reed Financial Wellness Program to your benefits package you could potentially:

• • • •

Decrease turnover Increase productivity Enhance company culture Increase participation in the company retirement plan

Financial wellness can potentially pay significant dividends to the health of your company and the quality of your employees. Let us show you how.

MEMBER SIPC

Jerry Milligan, MBA 6060 Poplar Avenue Memphis, TN 38119 (901) 685-2700 www.jerrymilligan.wrfa.com jmilligan@wradvisors.com

6

www.HRProfessionalsMagazine.com

HR PROFESSIONALS QUARTERLY SEMINARS

Strategic Leadership for HR Executives was held on November 19 at the Old Capitol Museum in Jackson, MS in partnership with the Capital Area Human Resources Association (CAHRA). Regions Insurance in Ridgeland was the presenting sponsor. Other sponsors included Ultimate Software, Ogletree Deakins of Ridgeland, Data Facts, Inc., and Waddell & Reed Financial Advisors.

Attendees received 4.00 HRCI Strategic Business Credits.

Chris Davis, Director of Health Management & Claims Informatics with Regions Insurance, spoke on “Big Data: It’s Applications in the Benefits Department and How it Transforms Your Role.”

Beau Thurman, Business Development Manager with Ultimate Software

Preston Francis, VP of Employee Benefits Division with Regions Insurance in Ridgeland, presented “Health Care Reform: Taking Action in 2014 and Beyond.”

Cynthia Y. Thompson, Editor | Publisher of HR Professionals Magazine, presented “Strategies to Increase Your Executive Presence.”

Timothy Lindsay, Managing Partner with Ogletree Deakins in Ridgeland, spoke on “The Legal Pitfalls of Health Care Reform.”

Clint Sidle, Senior Account Executive Employment Screening Solutions with Data Facts

Ty Harrell, Director of Insurance and Human Resources with the Electric Power Associations of Mississippi, and Mickey Watkins with the Employee Benefits Division of Regions Insurance in Ridgeland, MS

Seth Adams with the Employee Benefits Division of Regions Insurance in Ridgeland, MS

Joshua Aversa, Senior Product Manager with Ultimate Software, presented “HR’s Secret Weapon: The Power of Analytics.”

www.HRProfessionalsMagazine.com

7

How to Put Effectiveness into Performance Appraisal Reviews

By Voss W. Graham

One of the most important managerial functions is the employee performance appraisal. Yet, it is a problematic function for managers at any level or functional area of an organization.

Process for Effective Performance Reviews

Why are performance reviews disliked by managers and employees? Poor execution of a value adding process has left managers and employees frustrated and disappointed. This process needs to be valued by “all parties,” thereby improving the overall performance of the organization.

1. Track “Performance” All the Time

Organizations benefit significantly from well executed Performance Improvement Processes.

Individual performance appraisal is a key element for performance improvement.

While some companies are doing quite well, many are doing it wrong – and their people know it. How does this key developmental process get so many negative comments by managers and staff? Let’s look at some of the common reasons I hear from clients…

• Managers Lack People Skills There are many behavioral types who are lacking people skills and it shows in discussions about their areas for improvement. When a judgment call is made with little or NO Data to back their claim of performance issues – their credibility takes a hit.

• Managers Wanting to Be Liked These managers have a strong belief they need to be liked all the time. Therefore, they tend to sugar coat the appraisal evaluation with generalized statements of “you’re doing a good job.”

Notice the lack of detail, data or purpose. This usually becomes an immediate problem if the manager has a need to de-hire a person with excellent performance reviews. Objectivity is more important.

• Conflict Avoidance Similar to the Want to Be Liked Crowd; the “Conflict Avoider” is a major problem for performance management. The reason is real issues are not being dealt with on a timely basis and continue for extended periods of time. Again, performance and productivity drop due to a lack of corrections to a problem issue. Conflict is really a good thing.

• Not Important Belief There are some people who really do not believe in the Performance Improvement Process.

Often these people (managers) have limited points of view regarding what is important – developing people or controlling people with tasks? These are the same managers who fail to keep performance related data for employee reviews. The worst offenders are the managers who actually believe it is a “waste of time.” In these cases, empathy and engagement will also be missing in action.

• Don’t Know How This is a little scary when you think about it – they don’t know how to conduct a performance review. Yet, it happens on a regular basis. How does this happen you ask? It’s simple, people get promoted due to their technical competencies rather than their people or managerial competencies. Often I’m called in to coach a manager on their people skills, only to learn two things. One, they have no clue regarding behavioral styles thus make poor judgment calls due to this lack of understanding. Two, they have NEVER had any management training related to managing real people. Managing people is a complex issue when you include style, psychology, culture, educational levels, self-esteem, and their personal motivation.

One additional point to make regarding performance appraisals and in my opinion is the most important point… “ Performance Appraisals are designed for Performance Improvement rather than a systematic method used by many to Justify Pay Ranges.”

Think about the positive effect on your organization when each individual has improvement objectives on a quarterly basis. Resist the negative impact used by organizations are only doing annual performance reviews for justification of pay ranges.

It is bad karma when an employee gets a “surprise negative” at the end of 12 months. Without quarterly reviews (even if on an informal basis), employees get an opportunity to upgrade their performance and value to the organization. What a drag on productivity – lost productivity AND a morale issue due to the surprise.

8

www.HRProfessionalsMagazine.com

The biggest compliant heard about performance reviews is the lack of objective information or data regarding a judgment call by the manager. Then there is the issue of only the last few weeks’ performance rather than the entire time period involved. Keep records on both the good and the bad.

2. Keep Notes in Employee File (digital or paper) Closely related to the keep records statement above is the need to keep notes. Your memory can be excellent – yet there are so many distractions today, mistakes will be made without notes.

3. Use Job Specific Performance Competencies This is a huge issue with both managers and especially employees. Too often the organization believes you can umbrella competencies for ALL EMPLOYEES. Really? Does a financial auditor have the same competencies as a major account sales person or a production operations person? No they don’t.

Take time to track the competencies and traits for each position – it will also help in career development.

4. Have Quarterly Reviews with Follow-up This one is simple – Quarterly is optimum for performance increases. Semi-annual is a minimum – anything over six months is a wasted effort and will only have a negative impact upon your morale and culture.

5. Both Parties Evaluate Performance Both manager & employee should do written evaluations for review. Comparing reviews will lead to productive dialogue using gap analysis.

6. Dialogue Performance Evaluation Results This is so obvious, yet, often managers do not talk to the employee – the employee gets an email with an attachment. Take time to dialogue for performance gains.

7. Agreement on Both – Results and Improvement Targets Simple step of accountability to have both parties to the review agree to the content and sign their names to show agreement.

The effective use of employee performance appraisals is how you grow your people.

Use it wisely.

Voss W. Graham Sr. Business Advisor | CEO InnerActive Consulting Group, Inc. voss@inneractiveconsulting.com www.inneractiveconsulting.com

IRS Is Watching!

How Employers Should Handle Tax Settlements and Damages:

By Jeff Weintraub and Jennifer Riley

awsuits brought by former employees can be extremely costly to companies. Claims for harassment, discrimination, retaliation, wrongful termination and wage and hour disputes can result in the company having to pay the complainant varying types of damages.

Damages of types such as emotional distress, punitive, injunctive, statutory, and interest, as well as attorneys fees, are considered “non-wage damages,” while damages such as backpay, lost wages, benefits, and severance pay constitute “wage damages.” The distinction between wage and non-wage damages is essential to consider when companies enter into settlement agreements to make payments, because it is relevant to tax reporting. There may be substantial tax considerations in both informal settlements without lawyers involved (for example, the employer agrees to pay a departing employee severance pay of $700 for a general release) and formal settlement agreements drafted by lawyers.

Taxability of Payments For all amounts taxable to the claimant, the company must file a tax information return, either a Form W-2 or a Form 1099 (discussed further below). Thus, it is important to determine the type of settlement payment being made and whether it is taxable to the claimant. It is probably no surprise that the general rule is that settlement payments made to a claimant are taxable to the claimant. Payments made as salary, wages, back or front pay, liquidated damages, compensatory damages, and typically attorneys’ fees and costs are taxable to the claimant. However some exceptions to taxability do exist. Internal Revenue Code (IRC) section 104(a)(2) excludes from gross income the amount of damages paid, resulting from a lawsuit or settlement, on account of physical injury or sickness. Additionally, any damages that flow from a physical injury, e.g., medical expenses, attorneys’ fees and costs for recovering physical-injury damages, and lost wages resulting from the physical injury, are not taxable to the claimant.

Reporting Taxable Payments According to IRC section 6041, all payments in excess of $600 that are taxable to the claimant must

be reported on either a Form W-2 or a Form 1099. This includes attorneys’ fees or payments otherwise made to the claimant’s attorney. A Form W-2 must be issued to the claimant for all payments attributable to “wage-related” claims, regardless to whom the company actually issues the payments, be that the claimant himself or the claimant’s attorney, for the full and total amount of “wage-related” payments. Those payments reported on the Form W-2 are limited to those stemming from “wage-related” claims; all other types of taxable payments should be reported on Form 1099. Like the Form W-2, regardless to whom payments are issued, all taxable “non-wagerelated” payments must be reported on a Form 1099 issued to the claimant.

The claimant may not be the only person as to whom a company is obligated to report payment information. When the company issues a payment check to the claimant’s attorney directly, in any manner that gives the attorney the authority to negotiate the check, despite whether the amount is taxable to the claimant, the company needs to issue a Form 1099 to the attorney for the full amount of the check. Merely writing a check in the claimant’s name only and delivering the check to the claimant’s attorney does not create an obligation to issue that attorney a Form 1099; instead, the attorney must have somehow been indicated as a payee of the check.

There are a few actions that a company could take to avoid the need to issue a Form 1099 to the claimant’s attorney. The company can include “in care of ” language along with the attorney’s name on the payee line. Alternatively, the company can ensure that the check is issued in such a way that the attorney does not have the right to cash the check.

Determining Proper Treatment In 2009, the IRS Office of Chief Counsel released an Internal Revenue Service Memorandum outlining a four-step process for determining the proper tax treatment of employment-related settlement payments. First, the company should analyze the nature of the claim giving rise to the payment and determine the character of the payment. Second, the taxpayer should determine whether the payment is a form of income and thus taxable to the claimant. Third, the taxpayer should determine whether the payment is “wages” as defined by the IRC (essentially, all remuneration for services performed by an employee for his employer). Fourth, the taxpayer should determine the appropriate tax reporting for the payment, whether it is on IRS Form 1099 or Form W-2, and to whom such reporting shall be issued.

Allocating Payments Where the nature of the payments being made to the claimant dictates taxability, it is a wise practice for companies to ensure that a settlement or payment agreement includes an accounting of each payment, indicating the specific amounts being paid and for what purpose.

For example, if a settlement amount totals $2,500, the agreement might state that $2,000 is backpay and $500 is attorneys’ fees, etc. By including in the agreement itself language defining the allocation of each payment, the company is better able to determine what amount is taxable to the claimant, and what is not. The agreement also provides the company with evidentiary support explaining its taxability determinations. Additionally, the agreement allows the company to better safeguard itself should the Internal Revenue Service choose to argue the nature and taxability of payments made.

Jeff Weintraub Managing Partner, Fisher & Phillips, LLP jweintraub@laborlawyers.com www.laborlawyers.com

Jennifer Riley Paralegal, Fisher & Phillips, LLP jriley@laborlawyers.com www.laborlawyers.com www.HRProfessionalsMagazine.com

11

EEOC Charges - Why You Should Care

By Kristi H. Johnson

M

any employers handle charge investigations and prepare responses in-house. This can be a cost-saving and effective measure if you follow the best response practices. Keep in mind that the charge response is far more than an opportunity to tell the Equal Employment Opportunity Commission (“EEOC”) why it should dismiss the charging party’s allegations. It is also an opportunity to conduct a thorough investigation into the charge allegations, build credibility with the EEOC investigators (many of whom may be assigned to handle subsequent charges against your company), and lay the foundation for a successful defense of the case if the charging party files a lawsuit. This article illustrates why a thorough and effective response is important.

Why Care About the EEOC Charge?

What is the point, you might ask, in investing time and money to respond carefully and completely to an EEOC charge when the charging party can still file a lawsuit, regardless of whether the agency finds there is – or is no – probable cause to believe that discrimination occurred? First, and perhaps most importantly, the EEOC, or the applicable state agency in a “deferral” state, has the power to bring a lawsuit against your company if it “determines” that there is probable cause that a violation of the discrimination law has occurred. Employers who fail to heed this warning too often are misled into believing that if the charging party does not pursue litigation the employer is off the hook. This is simply 12

www.HRProfessionalsMagazine.com

not the case. The EEOC and corresponding state agencies are all too happy to sue employers who have failed to assert credible defenses at the investigation stage. By the time those employers realize they are being sued by the EEOC, their opportunity to prepare a consistent and convincing defense may have long since passed.

Even in the vast majority of cases where the EEOC or state agency does not pursue the claim beyond the charge stage, there are substantial benefits for employers who carefully and appropriately respond to an EEOC charge. Remember, although a charge often is viewed only as a “first step” in the litigation process, a “no probable cause” finding has some subtle psychological effects and practical ramifications that can effectively turn that first step into the last step in your case. Even more importantly, in cases where the charging

party continues to pursue his claims against you in court, the consequences of a sloppy or ineffective investigation or inaccurate response can cost thousands of additional dollars in legal expenses and can mean the difference between winning and losing a case.

evidence at trial, or at the summary judgment or dismissal stage of the case.

Psychological and strategic benefits of a “no probable cause” finding

If the reasons for the challenged employment decision contained in the EEOC position statement are different from reasons articulated later, the employer’s credibility will be diminished and the employee’s lawyer will exploit that inconsistency.

A no-cause finding establishes a “loser’s” mentality. Many employees file their charges without assistance of counsel and do not fully understand that the EEOC is the “first step” in their claim against their employer. Therefore, they perceive the agency as “the judge.” Learning that the agency dismissed the charge for lack of probable cause can sufficiently demoralize a disgruntled employee and convince him that he has “lost” the case. If that happens, the chance of the charging party filing a lawsuit is less likely.

A no-cause finding makes the case unappealing to counsel.

Although employees do not need an attorney to file a charge with the EEOC, and can even represent themselves in a lawsuit, most will try to find an attorney to take the case to court. It is harder for a charging party to find a lawyer willing to take the case with a determination from the agency that there is no probable cause to suspect discrimination.

It creates a strategic delay. Although the EEOC has sped up its processing lately, it still requires some time for the EEOC to process and investigate the charge and for the employer to fully participate and respond to the agency’s investigation. For employers, that passage of time is not a bad thing. Often, an employee is the most “fired up” about filing a charge immediately after the discipline, discharge, or other treatment about which he complains. As time passes, the may lose interest, get another job, or, as is more often the case, simply get on with his life. If that happens, the charging party will be less available, less committed, and less interested in the status of the charge and in suing you.

Beware of forked tongues.

For example, in one case, the plaintiff’s termination letter said the plaintiff was being fired only because of changing business needs. In its EEOC position statement, the company mentioned one particular set of performance issues, and an “overall failure to show marked improvement.” Then at summary judgment, the employer attempted to rely for the first time on two additional performance issues and an overall lack of confidence in handling a particular project. The district court denied the employer’s motion for summary judgment, finding that the “defendant’s differing and sometimes contradictory reasons for this firing indicate a degree of untruthfulness” that should be evaluated by the jury. Brettner v. Colonial Pipeline Company.

Kristi H. Johnson, Attorney Ogletree, Deakins, Nash, Smoak & Stewart, P.C. kristi.johnson@ogletreedeakins.com www.ogletreedeakins.com

Your defense starts here: Your position statement stays with you forever.

Your information is “FOIA-able.” The responses you provide to the EEOC – your position statement, exhibits, correspondence, and documents – even some of the agency investigator’s notes – can be obtained under the Freedom of Information Act (FOIA). What this means is that if you are later subjected to a lawsuit, what you did and said in response to the agency investigation may be disclosed to the plaintiff’s attorney.

Whatever you say, can and will be used against you. The employee may sue your company regardless of the EEOC’s decision. If the employee sues your company, the documents you provide to the EEOC, including your position statement, may be admitted as www.HRProfessionalsMagazine.com

13

video, which are used to inform and engage employees. In addition to this, there’s also a company wellness website employees can access at work or at home, as well as wellness information being integrated in other employee publications on a regular basis.

A Workplace Culture of Health

✓

By Murray L. Harber and Matt Ginn

I

magine employees walking at lunchtime on a one-mile track around their workplace, selecting healthy food choices in an onsite cafeteria or being able to see a medical provider in an onsite clinic for annual physicals or help with a cold. While it may seem surreal to some, this is an everyday occurrence at Southern Farm Bureau Life Insurance Company in Jackson, MS. In 2008, company leadership had a vision of creating this culture of health to provide employees with the resources and learning opportunities to live healthy lifestyles, while also addressing the root causes of increasing health and productivity costs. That same year, an internal team was put together and that team has established one of the best employee health management and wellness programs in the country.

✓

HEALTHY PLANNING Understanding how employee health management worked and using an industry best practice tool was critical in the design of our program. An internal champion, with experience in health and wellness, was established to be the driver of our program and to build a level of trust with employees.

Creating awareness of our employee’s health was a building block of our program. This was established by offering events and activities using our brand to show employees that SFBLI cares about them and their family’s well-being. We grew the following year by surveying employees and management about their own items of interest, ways to communicate them and when to offer wellness activities. Engaging our supervisors and managers through surveys and being a part of their annual conference has helped us build trust and find out specific items and programming opportunities for their departments.

✓

HEALTHY PLACES Offering healthy places and choices at the workplace was a key strategy in transforming SFBLI into a healthy workplace. Over the years, the campus has gone tobacco-free, a one mile outdoor walking track was completed, numerous onsite fitness classes are available after work and healthy food choices in the cafeteria and vending machines are a mainstay.

Also, providing an onsite medical clinic for employees and dependents on the SFBLI Health Plan has helped to reduce medical claims by offering basic acute care and chronic disease management services onsite. Employees are able to have their annual physical, complete a Health Risks Assessment and follow-up, and receive health coaching onsite or by phone to help them with a plan of care. SFB Life’s Medical Director, Dr. Dave Duddleston, likes to say that the onsite clinic “provides a portal to wellness” for employees and covered dependents to view their clinic (and employer) as an entryway to health and productivity.

“Employees get the care they need without traveling far, waiting, and being frustrated with the medical “system” when they return to work,” says Dr. Duddleston.

✓

HEALTHY COMMUNICATIONS Building a communication plan of action to inform and engage employees and dependents has been a cornerstone of the program from the beginning. An integrated and comprehensive communication plan includes several channels and tactics to surround employees with the right amount of information, education and resources. Several digital monitors are placed throughout the building that have health and wellness messages imbedded into day-to-day company sales and internal information. To accompany the digital messages, a monthly newsletter is published along with strategic emails that include both text and

HEALTHY PROGRAMS Variety, variety, and variety is the key to the large participation numbers in programs and events at SFBLI. When planning programs and activities, the team builds in numerous choices to meet the employees and their family members where they are in relation to behavior change.

Programs range from onsite cooking demonstrations and fitness classes to offsite grocery shopping tours and discount days at local health and fitness vendors. Offering programs onsite, online and in the community is a key strategy to engage people along the way.

✓

HEALTHY PEOPLE By offering a variety of programs, communicating effectively and offering a healthy place to work, SFBLI has created a healthier workforce and a culture of health. SFBLI continues to provide common healthy activities, but also strives to change it up a bit by trying different approaches including activities like a “Life in Balance” program, Disc Golf Day at the Farm and farmers market onsite. Interest surveys are conducted every-other year which helps to guide the health and wellness team in strategy and vision for the future as well as showing employees that they play a major role in the ongoing creation of the program.

Employees who have an interest in health also share their gifts and talents with other employees such as leading a 5K training program and onsite group fitness activities.

“Running is one of my passions, and I love sharing that passion with my co-workers. While we are walking or running to train for a 5K, we are also getting to know each other. Each step brings us closer as a healthier work community,” said Melinda Simmons, Project Manager and one of the employees who lead onsite fitness classes at Southern Farm Bureau Life.

At SFBLI, the continuing effort to include and engage employees at all levels, along with offering healthy places, healthy communication and healthy programs has shown to be a successful formula in creating a culture of health at the company. Other employers can learn from this success as they look to better manage the health of their organization, while also boosting morale and productivity among employees.

Murray L. Harber Executive Director Mississippi Business Group on Health murraylynnharber@gmail.com www.msbgh.org

Matt Ginn Corporate Communication Program Development Coordinator mginn@sfbli.com www.sfbli.com www.HRProfessionalsMagazine.com

15

Make Sure Your Company Stays on the Nice List When it Comes to Year-End Wage and Hour Issues

By Jonathan Hancock and Whitney Harmon

It is the “most wonderful time of the year.” It is also often the busiest time of the year, but in the rush

and excitement it is important to pay close attention to details that may create wage and hour problems for your company. Year-end issues can result in wage and hour headaches if not properly addressed, and the top three issues that are likely to impact your pay practices are bonus compensation, company-mandated closures during the holidays, and closures resulting from inclement weather. So how do you keep your company on the “Nice List” during the end of the year madness?

Impact on Overtime Premiums

First, if your company is considering paying an end of the year or holiday bonus, you must first decide whether that payment will impact your employees' overtime premiums. If employers pay non-exempt employees a non-discretionary bonus and those employees worked overtime during the period covered by the bonus payment, that bonus compensation must generally be included when calculating the employee's regular rate of pay for the purpose of calculating the overtime premium. When determining whether a bonus payment must be included in an employee's regular rate of pay, the key is whether the bonus is discretionary or non-discretionary.

Non-Discretionary Bonuses

A non-discretionary bonus is a bonus payment that is agreed to or promised in advance by the employer, such as an attendance bonus, performance bonus, or a bonus that is guaranteed by a collective bargaining agreement. This is a bonus that employees can expect, work toward, or depend on. On the other hand, a bonus is discretionary, and therefore not included in the computation of pay for the purpose of overtime, only if the employer retains discretion to decide whether the payment will be paid, what amount will be paid, and when there is no prior contract, agreement, or promise that employees rely on to expect such payment. The employer must make the decision to pay a discretionary bonus near the end of the period which it covers. In other words, if an employer announces a possible bonus to employees to induce them to meet certain production or goals, the bonus is no longer discretionary. If an employer's bonus payment does not meet these qualifications, it is considered a non-discretionary bonus and therefore impacts the overtime premium of the non-exempt employees receiving the payment. Failure to properly adjust employees' overtime premiums to include non-discretionary bonus payments could result in a claim under the Fair Labor Standards Act or an investigation by the Department of Labor, not exactly the holiday surprise you were expecting!

The Effect of Company-Mandated Shutdowns

Second, in addition to end of the year bonus payments, is your company closing for a few days over the holidays? If so, it is important to be mindful of compensation for exempt employees during a company-mandated shutdown. Unlike non-exempt employees who are not paid if they do not work, exempt employees typically must receive their regular salary for

16

www.HRProfessionalsMagazine.com

any work-week in which they perform work. This does not mean that the office has to be open or that the work has to be significant, even something as routine as checking email remotely might be sufficient to warrant payment to an exempt employee. An employer may not make deductions from an exempt employee's predetermined compensation for absences that are occasioned by the employer or by the operating requirements of the business when the employee is ready, willing, and able to work. If, however, an employer chooses to shut down for a full workweek and exempt employees perform no work, the employer does not have to pay them for that week.

Finally, how do the rules change when inclement weather appears? If an employer's workplace is closed for inclement weather for a day, exempt workers should be paid. Non-exempt workers, however, do not need to be compensated if no work is performed. Again, if the workplace is closed for an entire week and the employer is confident that exempt employees did not perform any work during that workweek, exempt workers do not need to be paid for that week. Small tasks like returning phone calls, checking email, or other routine functions, however, are considered work performed and could entitle an exempt employee to his or her entire salary for the week even during a shut down.

The Need for Defined Policies

Having defined policies or standard operating procedures that address shutdowns for holidays or inclement weather will make this time of the year a little easier to navigate. The policies or procedures should also address what expectations the employer has of exempt employees and the work they should or should not perform during a shut down.

While there is quite a bit to keep up with when an employer is winding down another year, it is imperative to keep these things in mind in order to avoid those wage and hour pitfalls and help ensure a prosperous new year!

Jonathan Hancock Jonathan Hancock, Shareholder Baker Donelson jhancock@bakerdonelson.com www.bakerdonelson.com

Whitney Harmon Whitney Harmon, Associate Baker Donelson wharmon@bakerdonelson.com www.bakerdonelson.com

Legal Challenges are Coming at HR Professionals from Every Direction

That’s Why Rainey Kizer Makes Your Business Our Concern The issues facing Human Resources executives are becoming more frequent, more challenging, and more complex each year.

Whether you are navigating the Affordable Care Act, tracking changes in the Family Medical Leave Act, or staying current with the latest revisions in workers’ compensation law, trusted attorneys are invaluable. This is why you need to get to know the employment-law attorneys at Rainey, Kizer, Reviere & Bell PLC. At Rainey Kizer, we make your business our concern.

For more than 30 years, our AV-rated firm has advised businesses, non-profit organizations, and government agencies on all aspects of employment law; and represented our clients in state and federal courts and before state and federal regulatory agencies. If you would like to discuss how we can help you, please call.

r

a

i

n

e

y

k

Memphis 901-333-8101

T e n n e s s e e

d o e s

n o t

c e r t i f y

i

z

e

r

.

c

o

m

Jackson 731-423-2414

s p e c i a l i s t s

i n

t h e

a r e a

o f

e m p l o y m e n t

l a w .

• Process — Has a provider or facility taken the proper steps in performing the diagnostic tests or handling the procedures or other services a patient may be considering?

As an example, physicians should follow evidence-based guidelines to ensure that a diabetic patient’s blood sugar is well controlled.

• Human Experience — Were the patient’s expectations of the level of care met or exceeded? Did the physician take the time to listen well and respond to individual needs or concerns? The more comfortable patients are throughout the course of treatment or through a procedure, the more satisfied they will be with the results, and the higher the rating.

By Christine H. Evans

What is health care transparency? At its core, it provides employers and consumers the ability to see provider-specific information on the quality and cost of medical services. It also provides visibility into quality indicators such as patient outcomes — including the rate of complications, readmissions, hospital-acquired infections, and other determining factors.

Who Benefits from Health Care Transparency?

Health care prices continue to rise at over twice the rate of inflation. Studies reveal that prices for the same procedure in the same market can vary up to seven times, and yet those prices don’t correlate to the quality of care received.

Without health care transparency, it’s virtually impossible for consumers to understand the costs of health care and assess quality and risk tradeoffs among the various providers.

Consumers often have no idea of what the cost of care will be until they receive an explanation of benefits weeks or months after the services have been provided.

It’s not surprising to learn that consumers will benefit significantly from greater health care transparency. Transparency actually offers substantial advantages for the entire health care ecosystem — including employers, providers and health plans.

• Consumers — Faced with increasing financial responsibilities due to the massive increase in health care costs, consumers can look to health care transparency to help them manage spending. Greater transparency should also enable consumers to obtain higher quality care and enjoy better outcomes while controlling premiums and out-of-pocket costs.

• Self-insured employers — Whether your primary concern is the bottom line or providing best-in-class benefits, health care transparency holds the promise of maintaining and potentially improving the care that your employees get, while enabling you to control skyrocketing health care costs.

• Providers — With health care transparency, exceptional physicians and facilities will be recognized and rewarded for the quality and value of the care they provide, while those with the highest medical risks will be more easily identified and avoided by patients.

• Health plans — Health plans that offer health care transparency solutions not only benefit from having a more informed, fully insured population, but also gain a competitive edge by providing superior offerings to their self-insured customers.

Many Facets of Transparency An equally critical component of an improved health care system is the ability to assess the quality of care before the service is provided.

Typically, measures of quality involve three criteria: • Outcomes — Outcomes are perhaps the most obvious of quality measures; however, there are many ways that outcomes can be measured, such as rates of complication and mortality rates.

Absent actual outcomes, certain factors can be used to predict the likelihood of better outcomes with a specific provider. For example, a practice that has only performed ten of a specific procedure is much less likely to have good outcomes than a practice that performs 700 a year.

18

www.HRProfessionalsMagazine.com

More sophisticated elements of a transparent health care market include the broad availability of consumer education, the introduction of more advanced benefit designs, and extension of pricing transparency beyond medical spend to include pharmacy or dental spend.

How Employers Can Act You can take steps by bringing health care transparency to your company — benefitting you and your employees alike through lower costs and better, more affordable health care.

So what can you do to start providing health care transparency to your employees?

Seek enabling technologies Make it a priority to seek a web- or phone-based solution that provides a health care transparency experience for you and your employees.

Comprehensive solutions include programs or tools that successfully engage your employee population. They should also be configurable enough to work with any benefit design and provide employees real-time, out-of-pocket and deductible cost information based upon their choice of plans.

The right solution will enable your company to substantially lower the cost of health care and provide to your employees the unbiased pricing and quality information needed to make smarter health care decisions. This leads to more satisfied employees, resulting in greater productivity and less turnover for your business.

Focus on employee education Educate your employees about the significant in-network price variation across a broad spectrum of services. The key is to help employees understand how important transparency can be in enhancing the quality and reducing the cost of health care, and that when employees have access to all the information they need, it’s easier to choose high-quality providers who offer exceptional services at a reasonable price.

Make your voice heard In the new post-ACA health care era, many policy influencers and constituents will be looking for leadership.

Work closely with others in the health care ecosystem and with key policymakers to ensure that transparency into health care pricing and quality is a priority. Employer and purchasing coalitions in your area can also be a powerful way to join in the conversation with your peers.

Christine H. Evans Sr. Manager, Enterprise Marketing Castlight Health cevans@castlighthealth.com www.castlight.com

Leading employers are choosing Castlight Health.

13%

Reduction in Health Care Spend*

80%

Castlight Health is your guide to health care.

Employee Engagement

Castlight Health provides cost and quality transparency through a health care management suite that delivers proven, measurable results for companies and their employees.

With Castlight, your employees can be accountable for their care by prospectively searching for service prices and provider ratings.

For more information: Craig Foster, Regional Sales Manager cfoster@castlighthealth.com (770) 558-3197

*Versus projected health care spend. Savings reinvested into other health & wellness programs.

Recognizing

and

Addressing

BULLYING in the WORKPLACE

By Lisa A. Krupicka

It

is the most improbable story: a 300-pound, six-foot-five professional football player complaining that he has been bullied by a fellow player. But Jonathan Martin’s complaint to the Miami Dolphins that another Dolphins player, Richard Incognito, had sent him text messages threatening to kill him and his family and referring to him as a “half-(n-word) piece of sh- t” soon had everyone talking about workplace bullying.

What is Workplace Bullying?

The easiest way to think of bullying is as hostile work environment harassment that does not involved a protected characteristic. However, since we all know what a gray area harassment can be, some have defined it as intentional, often repeated, mistreatment of an employee by one or more other employees through verbal or non-verbal aggression. Like harassment, what behavior is just juvenile joking around and what rises to the level of bullying will often have to be determined on a case-by-case basis.

What Kind of Legal Exposure Do Employers Have for Workplace Bullying?

Right now, legal liability for failure to address workplace bullying is fairly limited. If threats of violence or physical contact are involved, possible claims could include assault and battery, intentional infliction of emotional distress, negligent hiring or retention, or false imprisonment. With the worker’s compensation exclusivity defense, however, large recoveries seem unlikely.

Nevertheless, many employers are coming to recognize that this type of behavior has other costs in loss of productivity, low employee morale, increased absenteeism and turnover, and a rise in stress-related health claims. Moreover, as in the Dolphins case, a bully who is unchecked may eventually use language or conduct that implicates a protected characteristic, thus creating potential liability for harassment.

Since 2003, twenty-five states have introduced “Healthy Workplace” bills making workplace bullying unlawful, with active bills currently pending in eleven states. The bill pending in Wisconsin is typical. It would allow an employee who claims to have had his physical or mental health damaged by being subjected to an “abusive work environment” to file a civil suit against an employer or employee who allegedly engaged in the unlawful practice. A lawsuit must be filed within one year of the last act constituting the alleged abuse, which can include: repeated verbal abuse such as derogatory remarks and insults; verbal or physical conduct that is threatening, intimidating or humiliating; sabotage or undermining of an employee’s work performance; or exploitation of an employee’s known psychological or physical vulnerability. Penalties include injunctive relief, back pay, payment of medical bills, compensatory damages for emotional distress, punitive damages and attorney’s fees. If no adverse employment action occurs, compensatory damages are limited to $10,000 and no punitive damages are available. To date, none of the bills that have been introduced have been enacted into law.

20

www.HRProfessionalsMagazine.com

Is a Cause of Action for Workplace Bullying Needed?

Lawyers and policymakers are divided on this issue. Those who are critics of the idea point to existing workers compensation and harassment laws that they argue should provide relief for egregious workplace bullying. They argue that the ability of American businesses to create jobs will be negatively affected by more regulation and the increased potential for costly litigation.

Proponents argue that bullying that does not involve a protected characteristic is much more common than hostile work environment harassment and has the same or greater business costs. Employees who are bullied report stress, lower self-esteem, depression, anxiety, digestive problems, high blood pressure, insomnia, and posttraumatic stress disorder. As a result, employees who are bullied miss work, are less productive, quit, take their frustration out on co-workers, steal or damage company or the accused bully’s property, sabotage work or even contemplate or carry out acts of violence.

Should My Company Adopt a Workplace Bullying Policy?

Even in the absence of a specific legal cause of action for workplace bullying, the potential for liability under existing laws and the business costs of doing nothing dictate to a prudent employer that it should adopt a policy forbidding workplace bullying and vigorously enforce it. Employers must create a business climate in which it is made clear to employees that bullying will not be tolerated and that employees who report bullying will get relief and will not be retaliated against. Mandatory, specialized training for management on how to recognize bullying and their duty to report it is essential.

Human resources professionals must recognize that for some workplaces, effectively addressing bullying will require a significant cultural change.

There may be resistance to taking action against a bully who makes the company a lot of money, who is a member of the “old boys’ (or girls’) club,” who has specialized skills, or who will kick up a fuss if challenged. Before adopting a workplace bullying policy, you must make the case for why the policy must be consistently and energetically enforced. Otherwise, it will not be worth the paper it’s printed on.

Lisa A. Krupicka, Attorney Burch Porter & Johnson PLLC lkrupicka@bpjlaw.com www.bpjlaw.com

Your Culture Supporting Superior Talent?

– How Do You Know? –

An organization’s culture is one of the key elements identified for high performance.

So, what are you doing to discover how your organizational culture is performing?

Find out about the components of high performance cultures…

• Effective Communication • Employee Engagement • Developmental Opportunities • Quality of Leadership • Effective Team Dynamics • Work Systems for Success Contact Us to have a Professional Partner who teams with You... assists you in understanding the survey data... converts data into actionable solutions for Your Organization.

– Coach –

Want to Really Improve the Performance of Your People and Organization?

Coaching is about helping people achieve results at a higher level than they could on their own.

We have a Proven Track record of both improving an individual’s performance and getting them promoted due to their performance.

Call us to discuss how we can help your team…

Voss

Robin

The Three Rs of Managing Millennial Employees:

Recruit, Relate, Retain

By Donald R. Hillman

T

here have been many unreliable articles in the media and popular press written about Millennial, or Generation Y, employees regarding their workplace behavior and how management should address these concerns.

This weakly based evidence in relation to generational differences has resulted in imprudent leadership decisions by some managers. Management decisions based upon untruths

concerning Generation Y employees have created generational conflict problems. Human resources professionals and other workplace leaders rely on management researchers to provide scholarly and convincing evidence for use in developing reliable systems and procedures. There is a shortage of sound, academically based, generational differences research. Based upon a three year scholarly, peer reviewed, research study I just completed on generational work-value differences, the Three Rs of Managing Millennials have been revealed: Recruit, Relate, Retain.

901 - 757 - 4434

Š Recruit ‹

Generation Y employees have proven to be valuable workers due to their information technology skills, teamwork affinity, and concern for corporate social responsibility. Generation Y also has been found to display significant levels of patriotism due to the impact of the terrorist attacks on the United States of September 11, 2001. The organization that is successful at recruiting these employees must understand what the potential Generation Y employee is seeking and where they are looking for jobs. Scholarly research points to several work values held by the typical Generation Y employee: (a) work should be done on my www.HRProfessionalsMagazine.com

21

terms, with flexible work hours; (b) work is for earning money to purchase things; (c) work should be fun, friendly, and personal; (d) work should involve creativity, variety, innovation, and diversity; and (e) management opportunity should be immediate.

By including the following Generation Y employee desired attributes prominently in recruitment advertising, and employee screening, the organization should be able to attract competent Generation Y candidates:

1.

Generation Y is less concerned about financial gain than other generations, and values corporate social responsibility and a company's ethical standards.

2.

Generation Y employees are attracted to organizations that promote work/life balance including the need for being happy and having a strong family life as well as person-organization fit (especially regarding technology).

3.

Many Generation Y employees have a high team orientation and enjoy working in organizations that promote teamwork.

4.

Generation Y potential employees with higher education levels, such as graduate degrees, are more likely to have increased levels of organizational commitment as they value learning and seek promotion.

Š Relate ‹

Human resources professionals and other organizational managers who understand generational work-value differences and implement generationally sensitive policies can expect increased employee productivity from Generation Y staff members. Scholarly research suggests that Generation Y employees are extremely proficient at organizational tasks that require internet-based information collection and projects that require the ability to multitask.

Managers who choose to utilize the following guidelines regarding the ability to positively relate to Generation Y employees should see an increase in organizational effectiveness and efficiency:

1.

Provide Generation Y employees with clear communication and expectations including clear direction, timely feedback (critical), structure, technology (social media and mobile devices), and company goals and objectives. Communication between all generational members of an organization including leaders and subordinates is critical to solving organizational problems and ensuring company success.

2.

dapt a leadership style that includes a team orientation, concern for corporate social A responsibility, and is creative, supportive, and trustworthy. Generation Y employees require leaders who will guide, coach, and provide fast on-line responses to their needs.

Human resources professionals should also consider providing generational diversity training emphasizing listening and questioning skills so managers can fully comprehend the differences between the generations.

3.

Use cross-generational work teams that promote shared work values for all generations such as assigning Generation Y, Generation X, and Baby Boomer employees to a work team where all of the employees possess the skills required to solve a designated company problem. The company will benefit if the team members can form a cohesive unit through developing shared work values that create a higher degree of "value fit", ultimately leading to solving the assigned problem. Emergent leadership (possibly from Generation Y employees) often will evolve from members within such a work group.

4.

Designate mentors for Generation Y employees. Research indicates that 75% of Generation Y workers enjoy working with Baby Boomers, and that nearly 60% turned to Baby Boomers for mentoring advice. Generation Y employees favor personal relationships and personal attention from superiors significantly more than other generations.

Š Retain ‹

Research has found that the average Generation Y employee will change jobs seven times and careers three to four times in a ten year period. Researchers have also found that Generation Y workers with higher levels of education are less likely to "job hop". Generation Y employees have a thirst for knowledge and seek specialized training in their fields. Many Generation Y employees have

…the average Generation Y employee will change jobs seven times and careers three to four times in a ten year period.

22

www.HRProfessionalsMagazine.com

a considerably lower level of knowledge regarding reading, math, history, and civics upon high school graduation than previous generations.

Potential employers and human resources professionals should consider making a thorough assessment of Generation Y basic education levels including specific needs for meeting organizational objectives.

Companies that seek to recruit, relate, and then retain Generation Y employees on a long term basis should consider implementing the following researched-based protocols:

1.

Provide individual career planning that includes educational needs. Generation Y employees are typically very interested in cross-training and prefer to move laterally in an organization initially to increase their skills base.

2.

I mplement technologically based learning that incorporates sensitivity to the Generation Y employee learning style which requires a focus on digital literacy, immediate feedback, and a technologically-based teaching strategy.

The Generation Y learning orientation involves operating at "twitch" speed (much faster than conventional). They typically learn more effectively with an "on the job" action approach.

3.

Create a nurturing workplace for Generation Y employees where they can learn and grow within a supportive environment. This will enhance the success of achieving the organization's mission. A key element to this approach is to provide generational diversity workshops promoting shared work values to members of all the generations. Managers in a generationally-diverse work environment will find that education and training of all employees to avoid judgment of others based upon generational perceptions can mitigate workplace conflict. Generation Y employees have been found to thrive in supportive work environments that offer state-of-the-art technology, flexible scheduling, recognition programs, increased career-development opportunities, and more decision-making autonomy.

Summary

Human resources professionals must provide their organizations with "the truth" behind managing Millennial, or Generation Y, employees.

The successful company of the future will adapt the structure and design of the organization as needed to recruit, relate and retain the largest, and most technologically capable, generation in the U.S. workforce.

We’re the Resource in Human Resources Customized management training Compliance audits Policy and strategy analysis Litigation defense Immigration services Labor negotiation Listed among FORTUNE magazine’s “100 Best Companies to Work For” – four years in a row! and Listed as a “Go-To Law Firm” in labor litigation in “Who Represents America’s Biggest Companies,” Corporate Counsel’s annual survey of outside counsel to the Fortune 500 companies.

ALABAMA • FLORIDA • GEORGIA • LOUISIANA • MISSISSIPPI • TENNESSEE • TEXAS • WASHINGTON, D.C. THIS IS AN ADVERTISEMENT. Ben Adams is Chairman and CEO of Baker Donelson and is located in our Memphis off ice, 165 Madison Avenue, Suite 2000, Memphis, TN 38103. Phone 901.526.2000. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers. ©2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

Donald R. Hillman Donald R. Hillman, MS | MBA | DM Hillman Consulting hillmanoc@hotmail.com www.hillmanconsulting.org

To learn more about our Labor & Employment capabilities, visit www.BakerDonelson.com.

www.HRProfessionalsMagazine.com

23

By Mike Umphres

Annual pay changes. . .

How to determine?

Having just returned from your annual August vacation, you return to invitations to budget planning meetings. As an involved HR Manager how do you respond to the inevitable question of “What should we plan for next year’s increases”?

Do you call your cousin, the economist at MTSU? Do you ‘research it’ through SHRM or WorldatWork? Do you review your recent market survey analysis? Or pull out your Ouija board and call around to the local mystics?

Most of us would probably do a combination of all but the last. Wouldn’t we?

Every year most organizations worry about what their competition is going to do and what they have to do to maintain their competitive position. Finance wants to know what to budget. Managers want to know how much they will have to reward their stars and employees want to know how much of an increase they will get.

To respond to all of the questions, multiple sources of information are required. It is important to understand how the economy might impact your business. What are the projections being used by other parts of your business? Will staff increase? Will new offices be opened or are consolidations planned? So a call to your cousin could help you by adding broader perspective for your footprint.

Comparing Local to National Data

How does the local information compare to national data? Also, how do the projected increase budgets compare to the planned budgets?

Using information from the Nashville Area Merit Budget Survey and the All Industries segment of the WorldatWork surveys beginning in 2008, we can make the following observations.

• Nashville trends with national practices.

• Nashville typically projects a slightly lower budgets (less than .25% difference) Table 1 Comparison of Nashville results to national data

Increase Plans

What can you find about planned base pay changes by researching SHRM and WorldatWork sites? Each year many consulting organizations conduct surveys asking what you have approved and what you are planning for base pay increases. These surveys, conducted by independent third parties, provide ‘safe-harbor’ from anti-trust concerns while providing insight to what many others intend to do about increases.

Are you concerned about local, regional, or national trends? Depending on your ‘footprint’ you may need all three. The easiest to find is the national US data. Many nationally conducted surveys also ‘cut’ their data into regional slices. Executive summaries of these surveys are reported on both SHRM and WorldatWork sites beginning mid-summer each year. However, for mid size to small labor markets the national reports will not typically be detailed enough.

Using Market Surveys

All employees would like and many expect an increase each year. However, since there is a finite amount of resources and most companies want to only pay competitively while being fair to employees, you must be able to identify fair market value of each job before you can effectively allocate increase dollars. The best way to identify fair market values is through regular review of your pay as it compares to the market. Local surveys typically focus on jobs most commonly found in that labor market and can reflect accurate values for these jobs.

For a majority of employers the most critical source will be the local labor market survey. One should continue to seek out surveys conducted by independent third parties.

Some common sources will be Chambers of Commerce, local WorldatWork or SHRM chapters, or local HR consultants.

In the Middle Tennessee area, Compensation Advantage has conducted the Nashville Area Total Compensation Survey since 2000. In addition to reporting base and bonus earnings on over 300 different job titles, respondents are asked about a variety of pay practices and benefits including budgeted increases.

During the February Total Compensation survey, participants are asked about planned salary structure increases as well as planned budgets for merit increases. They are also asked to report the total budget other than merit increases. The February survey report is published during the first week in April after detailed quality reviews to ensure the highest of data integrity.

A follow-up survey, focused just on future increase plans, is conducted each August.

This survey is published during the first week of September and reports on projected increases to both salary structures and base pay. National data, from the WorldatWork survey, is combined with the local information for added perspective. Since this survey is conducted primarily as a reward for participation in the February compensation survey the report is free but only to participants.

24

www.HRProfessionalsMagazine.com

Can you trust projections?

Of even greater interest is how actual planned increase budgets compare to those projected values. Not surprisingly, the actual numbers trend slightly lower. The unusually large difference between 2008 projections and 2009 plan is the result of the economic downturn. Based on this data it appears that plans follow projections.

Table 2 Comparison of projections to actual plan (Nashville)

The answer is involvement

Participate in your local surveys, collect executive summaries of national surveys, regularly compare your pay program to market data, and work with your business leaders to apply this information to your business plans.

Mike Umphres, Principal Compensation Advantage umphresm@aol.com www.compensationadvantage.com

IF YOU FEEL LOST IN THE

MAZE OF EMPLOYMENT LAWS...

> Put our dedicated Employment Law team to work for you. <

Jef Feibelman | Tannera Gibson | Jennifer Hagerman | Mary Hamm Lisa Krupicka | Melissa Maravich | Mary Morris

130 North Court Avenue | Memphis, TN 38103 901-524-5000 www.bpjlaw.com

Wrestling with Employee Retention

W

By Jeff Kortes

hile at the Wisconsin State Wrestling Tournament last year, I noticed that there was nothing flashy about the guys that were winning. They tended to stick to the fundamentals and do them VERY well. Guys would have a good takedown, pinning combinations, escape on the bottom and ride their opponent (the four key components of wrestling). As we like to say, they were “grinding out their wins.” Nothing fancy just tough wrestling. Wrestling has been like that since as long as I can remember. The best wrestlers recognize that and place their focus on the fundamentals.

Employee retention is the same way. The organizations that are successful do the fundamentals VERY well. What do they do?

• They communicate with their employees. They keep them informed and involved in the business. They communicate the vision and big picture of the organization to their employees.

They make employees aware of how they fit into the big picture on a day-to-day basis. This builds a sense of commitment and purpose which is becoming more important to the new generation of workers. Workers are more skeptical than ever and communication is an essential way to show that you are open and honest with them. When you provide limited information, there is the immediate thought that you must be hiding something.

• Provide opportunities for growth, be it in the employee’s job or in their career. Provide variety so people continue to grow by trying new things. This provides you an opportunity to challenge employees to be better and to take on tasks they thought they were never capable of. This growth helps to keep them engaged as well. Part of a growth philosophy is making employees aware that they must be life-long learners if they wish to remain a viable part of the organization. The days of learning “your job” and working it for years are over. This is something that is new to many people and unless the organization places an emphasis on this point, employees will tend to become static in their learning.

• Care about the people that work for them. When people have issues they are there for them and support them. They listen.

And then they act on what they have heard. Twenty percent of the employee population has issues that impact their ability to optimally perform their jobs at any given time. By having a strong EAP in place to help employees, you are able to channel them to the resources they need in order to get their lives on track so that it minimizes disruption to the organization. It also helps to avoid an employee deteriorating to the point that job action has to take place and a valuable employee becomes a retention statistic.

26

www.HRProfessionalsMagazine.com

• Be visible and accessible to your employees. Employees want to see their boss. It provides them an opportunity to express concerns and get help when they need it. If you are not accessible, employees will not wait for help and you will have missed a golden opportunity to play a key role in that employees work life.

Visibility also creates a sense of dependability. This dependability develops trust that it crucial to the loyalty that an employee has towards the organization.

• M ost of all, they have solid leadership. Because the leader is the most important part of any job and the one thing that an employee can’t avoid, solid leadership keeps people happy…and generally productive in addition to not driving them crazy so they want to leave the business. When you see your boss daily, it becomes paramount that the relationship be a strong one if your goal is to create a strong bond between the employee and the organization.

This stuff isn’t fancy! It is about doing fundamentals well…day after day, week after week. It is a “grinding” process that few have the perseverance and discipline for. Perhaps that’s the reason that very few organizations even have a strategic retention process at all. Many organizations will do one thing…then stop. Then they try another thing…then stop.

If you want to drive employee retention in your organization…you must adopt a mindset that is going to be a “grind.” Once you do, you will be on your way to having a world-class employee retention process.

Jeff Kortes

Human Asset Management LLC jeff@humanassetmgt.com www.jeffkortes.com

EMPLOYERS LAWYERS

&

Working Together in Mississippi Ogletree Deakins lawyers in Jackson, Mississippi work closely with Human Resource professionals, business executives, and inhouse counsel to anticipate, prevent and resolve legal issues in the workplace. Our experience and knowledge of our clients’ industries and legal challenges enable us to serve their interests effectively and efficiently.

We remain committed to providing our clients with an insider’s view of the workplace issues of the day.

With more than 650 attorneys in more than 40 offices located in the United States and Europe, the firm combines local knowledge and strength with national resources.

Jackson office attorneys L-R: Timothy Lindsay, Robin Banck Taylor, Kristi Haskins Johnson, Bert Ehrhardt 100 Renaissance • 1022 Highland Colony Parkway, Suite 200 • Ridgeland, MS 39157 • 601.360.0995 www.ogletreedeakins.com LAW FIRM OF THE YEAR Litigation – Labor & Employment LAW FIRM OF THE YEAR Employment Law - Management

HOW TO KEEP GREAT PEOPLE

Make them Feel Special

videos such as “The Southwest Shuffle” set to a rap beat in which employees describe their roles in the organization. Leading off is the Chairman who is also introduced as the Chief DJ.

Immerse new employees into the culture right away The sooner new hires are made to feel part of the organization the better. Southwest takes great effort in making their newest employees feel special and a valued part of the organization from the moment that they are hired. No sitting down and reading the policy manual. One of the new staff hired to work in the University For People (called the HR department in more formal organizations) was surprised to find on her first day on the job that the entire department was hosting a pancake breakfast in her honor. A program called “Cohearts” matches volunteer longer term employees to new hires. Their role is to ensure that the new person always feels supported and embraced.

Some of the of the ways that “Cohearts” does this is by spending time with newcomers, buying them small gifts, and taking them for lunch. As a result of these efforts powerful bonds are created between staff and the organization in addition to long term friendships.

By Harvey Deutschendorf

The secret to employee retention is not to try and reinvent the wheel, but emulate the practices used by organizations that have been very successful at keeping their staff. Two such organizations are Marriot Hotels and Southwest Airlines. Both companies have extremely low staff turnover, while still consistently posting profits. The underlying basis of their success is that they are able to provide for the basic emotional needs of their employees in a manner that creates lasting ties to the organization. Both organizations believe that if you take good care of your employees, they will take good care of their customers. As Maya Angelou said “People will often forget what we said, but never how we made them feel.”

Employees come first Publicly, both organizations have gone counter to usual “customer first strategy” and state that their employees come first. They have discovered that the best way to ensure customer satisfaction is to have happy, motivated employees which will result in having people who have a strong vested interest in keeping customers satisfied.

Hiring the right people… creating a culture and communicating it They both hire not so much based on technical skills, but on attitudes, teamwork abilities and a natural inclinations towards friendliness and service to others. Southwest Airlines has gone far beyond the usual help wanted postings and identified the personality traits of the type of person that will make a successful employee. In their recruitment ads will be statements like “If you want to have fun, this is the place to work! This is a place where you can be yourself, where it’s okay to be irreverent, where you will be loved and valued. We love our employees, we trust our employees, who in turn work very hard to give “Positively Outrageous Service (POS)” to our customers.” To differentiate themselves form other employers who look for things like advanced degrees, professional conduct and adherence to strict dress codes, Southwest advertises “professionals need not apply.”

This kind of clear understanding and communication of the type of person Southwest is looking for serves as a valuable self screening tool for applicants, attracting people who are looking for and will fit well into the environment and dissuading those who would not from applying. Having done an excellent job of branding themselves Southwest has tapped into a steady supply of the “right kind of people.”

Model your culture…starting from the top At Southwest having fun is taken seriously and modeled at all levels in the organization. The CEO has been known to do stunts such as dressing up as Elvis. New employees are shown funny 28

www.HRProfessionalsMagazine.com

Provide ongoing training and career opportunities Once hired both organizations invest heavily in their employees, both in terms of workplace training and opportunities, ensuring that they never feel that they have reached a dead end and there is nowhere else to go in the organization. This gives employees a sense that there are always opportunities for learning, advancement and that the organization has an interested in having them reach their potential.

Look after your people… in good times and bad Southwest’s corporate culture involved looking after your own. The company believes it is as important to celebrate hard as it is to work hard. Impromptu parties with executives dressing in funny outfits happen frequently. Having fun is an integral part of their culture. The company believes that looking after their employees extends to the families as well. When tragedy strikes, or an employee or family member become ill, other employees have been known to deliver meals and offer support that goes well beyond that found in most workplaces. Leaders at all levels maintain a support network that keeps updated on events going on in employees lives, good or bad. It is quite common for Southwest employees to have meals delivered, rides provided, houses cleaned when they or members of their family are hospitalized or ill.

Harvey Deutschendorf Emotional Intelligence Expert, Speaker, and Author of The Other Kind of Smart Harvey.eiguy@shaw.ca www.theotherkindofsmart.com Twitter@theeiguy

USCIS Adds Tool to E-Verify to Combat Identity Fraud

By Bruce E. Buchanan

On November 18, 2013, the United States Citizenship and Immigration Service (USCIS) announced an enhancement to the E-Verify program that will help combat identity fraud by identifying and deterring fraudulent use of Social Security numbers for employment eligibility verification.

Basics of E-Verify As most seasoned HR professionals are already aware, E-Verify is an Internet-based system operated by the USCIS, an agency within the Department of Homeland Security (DHS), in partnership with the Social Security Administration (SSA), that allows participating employers to electronically verify the employment eligibility of newly-hired employees.

E-Verify is a voluntary program for most employers, but mandatory for employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause as well as employers in 17 states that have legislation mandating the use of E-Verify for new hires by all employers or employers contracting with state and local government.

E-Verify compares the data entered from employees’ I-9 forms to records available to the DHS, including U.S. passports and visas, naturalization records, state-issued driver’s licenses and identity documents (for a few states), and SSA records. If the data matches, the employer receives a confirmation number verifying the employee is eligible for employment.

If the data does not match, the employer receives a Notice of Tentative Non-Confirmation (TNC), which the employee has the right to challenge with DHS or SSA.

How Will Identity Fraud be Detected?

This identity fraud enhancement provides an important safeguard to the E-Verify system by detecting and preventing potential fraudulent use of Social Security numbers during employment eligibility verification.

The USCIS will use a combination of algorithms, detection reports and analysis to identify patterns of fraudulent Social Security number use.

Exactly what a “combination of algorithms, detection reports and analysis” means is unclear as the USCIS does not want to disclose its methodology. Ann Cun, counsel for LawLogix, a company who provides Electronic I-9 and E-Verify compliance, speculated one way a stolen identity may be discovered is through “a mismatch in the employee’s address indicated in Section 1 of the Form I-9 to the address used on another Form I-9 that had also been run through the system.” A second method is through the use of a Social Security number by numerous individuals. Both situations may trigger a detection report, which leads to locking that Social Security number.

Misused Social Security Numbers Will be Locked An employer, for example, may enter information into E-Verify that appears valid – such as name, date of birth, photograph, and Social Security number – but the data was in fact stolen or purchased from another individual. This new safeguard now enables USCIS to lock a Social Security number that appears to have been misused, protecting it from further potential misuse in E-Verify.

If an employee attempts to use a locked Social Security number, E-Verify will generate a TNC. The employee receiving the TNC will have the opportunity to contest the finding at a SSA field office. If an SSA field officer confirms the employee’s identity correctly matches the Social Security number, the TNC will be converted to “Employment Authorized” status in E-Verify.

Identity Fraud Problems with E-Verify before Enhancement Until now, one of the problems with E-Verify was that if someone stole another person’s identity, including name and Social Security number, E-Verify was unlikely to catch this fraud. Instead, this employee would likely receive work authorization verification from E-Verify, assuming the stolen identity was authorized to work. This is referred to as a “false positive” employment eligibility verification.

Furthermore, the same Social Security number is often being used by multiple individuals because the person who stole the identity sells it to multiple individuals. The real individual behind the stolen identity may not immediately discover the problem. When he or she does, that person faces a number of issues besides E-Verify, such as with credit cards and Social Security benefits.

Potential Difficulties with Identity Fraud Tool One potential difficulty for the USCIS is that when it locks a Social Security number, it will be locking the number of the actual holder of that Social Security number. Thus, the true holder may have problems with receiving employment eligibility verification from E-Verify. Hopefully, the USCIS will figure out a way to handle this problem. But, the announcement did not discuss this predicament.

Unfortunately, this enhancement may not stop every stolen identity and Social Security number. In a hypothetical situation where a stolen identity which is only used once, the fraud may not be detected since the USCIS said it was going to use algorithms, detection reports and analysis to identify “patterns” of fraudulent Social Security number use. One instance does not amount to a pattern. Similarly, Josie Gonzalez, a partner with Stone, Grzegorek and Gonzalez, LLP, states a relative, using another relative’s identity and Social Security number may not be detected, especially if the relatives resemble each other.

Conclusion – USCIS Has Improved E-Verify Although the USCIS did not specifically state when the enhancement would begin, it is presumed that it began immediately or will do so in the very near future. Despite its drawbacks, this enhancement is a great step forward for the USCIS and E-Verify and should reduce the number of false positive work authorizations.

Bruce E. Buchanan, Attorney Siskind Susser P.C. bbuchanan@visalaw.com www.visalaw.com www.HRProfessionalsMagazine.com

29

ADA Requirements

How Long is Long Enough?

The ADA requires an employer to provide reasonable accommodations to qualified employees or applicants with disabilities, except when such accommodation would cause an undue hardship to the employer. Although the regulations do not specifically identify a leave of absence as a reasonable accommodation, courts and administrative agencies agree that a leave of absence from work so that an employee can recover from or receive treatment for a medical condition can be required as a reasonable accommodation, provided that such absence does not create an undue hardship. However, courts have consistently held that an employee’s request for an indefinite leave of absence is not a reasonable accommodation and poses an undue hardship on the employer. The question then becomes, how much leave is enough leave for purposes of compliance with the ADA?

How Much Leave is Enough?

The ADA and Leaves of Absence as a Reasonable Accommodation

There is no bright line rule for how much leave is enough leave. Some companies have instituted policies stating, for example, that they will grant a leave of absence for up to one year, regardless of the reasons for leave. These neutral leave policies help an employer maintain control over headcount and business operations because the employer knows in advance how much leave an employee can take. One would think that one year would be reasonable especially when such a policy is applied equally to the disabled and non-disabled. However, the Equal Employment Opportunity Commission (“EEOC”) doesn’t think so. The EEOC has taken the position that inflexible leave policies that provide a set amount of leave violate the ADA because they forego individualized inquiries and a determination is never made as to whether continued leave would constitute an undue hardship. In furtherance of its position, the EEOC has pursued and obtained million dollar consent decrees in regard to such leave policies instituted by organizations such as Sears, Denny’s and Verizon.

By Latosha Dexter

Employers Should Exercise Caution

employee who is either ineligible for Family and Medical Leave (“FMLA”) or has exhausted FMLA needs time off from work. The doctor has given an “estimated” return to work date. However, there is no guarantee that the employee will return on that date. This example is a common dilemma for an employer. When employees are absent from work, employers have to consider such issues as overtime for workers covering the work of an absent employee, the costs of hiring a temporary worker, lost productivity, reduced responsiveness to customers, deferred projects and lowered morale. The tangible and intangible costs of an absent employee can seem significant and cause some employers to reject a leave of absence request summarily. However, because of the Americans with Disabilities Act (“ADA”) some consideration must be given to such a request.

The courts, however, have not held that a universally applied maximum leave policy is a per se violation of the ADA. Courts have upheld neutral maximum leave policies stating that if the policy is applied uniformly to disabled and non-disabled employees, it is not based upon disability. However, employers should still exercise caution when implementing these neutral policies as the duty to provide a reasonable accommodation is a continuing one, and employers must consider the reasonableness of each request.

An 30

www.HRProfessionalsMagazine.com

Assessing and providing leave of absence as an ADA accommodation is a complex employer obligation. Employers should not automatically conclude that a leave of absence cannot be granted just because it would cause some hardship. The hardship must be “undue” which means “significant difficulty or expense” in relation to the size of the employer, the resources available and the nature of the operation. What might be an undue hardship for a small business may not be for a larger organization. A determination that a leave of absence will constitute an undue hardship must be based on specific business facts and evidence. Each request for leave should be approached on a case by case basis. The interactive process requires an individualized assessment of each individual employee’s situation. Therefore, it is possible that an employer might be able to accommodate a leave for one employee and not another. Employers should also couple neutral maximum leave policies with an ADA reasonable accommodation policy or include provisions in the leave policy that allow for employees to request exceptions.

Latosha Dexter, SPHR Of Counsel Rainey, Kizer, Bell & Reviere PLC ldexter@raineykizer.com www.raineykizer.com

The DOL’s Interpretive Dance:

• Training supervisors or employer representatives to conduct individual or group employee meetings.

• Coordinating or directing the activities of supervisors or employer representatives.

• Establishing or facilitating employee committees.

• Developing HR policies or practices.

• Deciding which employees to target for persuader activity or disciplinary action.

• Conducting a seminar for supervisors or employer representatives.

• Other oversight activities.

How the New Persuader Rule Will Limit “Advice”

Understanding the LMRDA’s reporting and disclosure requirements is important to employers and unions alike. In addition to increased time and costs associated with providing the DOL with disclosure forms for every conversation with legal counsel, the Act provides for not only civil, but also criminal penalties for failure to adhere to its provisions. In fact, the Act allows for penalties of up to $10,000 and even one year in prison for flagrant violations.

On June 21, 2011, the United States Department of Labor (DOL) first proposed changes to the long-standing disclosure requirements under the Labor-Management Reporting and Disclosure Act (LMRDA or the Act).

The Act applies to unions, union members, employees who work under collective bargaining agreements, employers, labor relations consultants, surety companies, trusts in which a union is interested and other “persons” as defined in the law who may be covered by the Act’s provisions.

DOL Pushing Rule Forward Despite Severe Criticism

By Gregory J. Northen

Under the LMRDA, employers are required to report to the DOL (on Forms LM-10 or LM-20) all consultants and attorneys with whom the employer receives advice regarding unionization in its workplace.

However, since 1959, there has been an exemption that excludes the requisite disclosure of certain communications between an employer and its legal counsel. “Advice” has traditionally included communications where an attorney or consultant has no direct contact with employees and limits his or her activity to providing employers or supervisors with advice or materials for use which the employer may utilize or reject. Under the Persuader Rule changes, such disclosures of advice will now also include any “indirect activity” by attorneys or consultants regardless of whether employees are directly contacted.

New Reporting and Disclosure Obligations An interesting aspect of the Persuader Rule is that the DOL is, essentially, changing its own interpretation of the LMRDA. The Advice Exemption was created by the DOL’s past regulations, and the DOL now wishes to overturn its own long-standing interpretation of the Act. Again, the DOL has proposed amending the established Advice Exemption by now requiring the disclosure of any communications, training and/or discussions related to union organization efforts. These disclosures must be made even if a company’s legal counsel and/or consultant(s) speak only with management. Specifically, the proposed changes would require, by law, the disclosure of the following thirteen new categories of information: • Drafting, revising or providing written or multimedia materials for presentation, dissemination or distribution to employees.

Understandably, the proposed changes were met with severe criticism from management and businesses alike, as well as the American Bar Association.

For years, the DOL’s proposal stalled in discussions and appeared to have been abandoned by the DOL. More than 7,000 comments were made during the Comment period and, in that same time period, the American Bar Association submitted a letter to the DOL stating, “The scope of the information that the department’s proposed rule would require lawyers engaged in direct or indirect persuader activities to disclose encompasses a great deal of confidential financial information about clients that has no reasonable nexus to the persuader activities that the Act seeks to monitor.”

At one point, the DOL even stated that it may have drafted the proposed Rule too broad.

However, with the confirmation of the DOL’s new Secretary of Labor, Thomas Perez (confirmed July 2013), the DOL has renewed its emphasis on its 2013 Regulatory Agenda, confirming its push to institute new regulations imposing the new reporting obligations under the Persuader Rule.

The DOL has recently delayed (for the second time) the new LMRDA regulations stating that it intends to publish its Final Rule in March 2014.

Until the Final Rule is published, all of these changes are subject to change (whether more or less restrictive), yet the Final Rule is anticipated to follow the proposed rule’s overall framework.

Begin Preparations Now As mentioned, prudent human resource managers won’t wait to familiarize themselves with these changes due to the significant penalties associated with any subsequent violations. The new Persuader Rule, upon issuance, will likely become effective immediately with little to no introductory period. Moreover, preparing your company for supervisor training, obtaining written materials for speeches and publications regarding unionization, and updating company policies could help you get ahead of the new Persuader Rule and be prepared to begin filing those disclosure forms as soon as is necessary.

• Drafting, revising or providing a speech for presentation to employees.

• Drafting, revising or providing website content for employees.

• Planning or conducting individual or group employee meetings.

• Developing or administering employee surveys concerning union awareness, sympathy or interest.

32

www.HRProfessionalsMagazine.com

Gregory J. Northen, Associate Cross, Gunter, Witherspoon, & Galchus, P.C. gnorthen@cgwg.com www.cgwg.com

$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

$ometimes It is About the Money $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

By Bill Catlette

Few issues in the domain of business are thornier, more complex, and emotion-packed than that of how much money to pay someone for the work they do. Employee compensation thrusts its tendrils into considerations no less substantial than motivation, employment law, labor unions, production, and the very profitability of the enterprise. Oh, yeah. That.

Corresponding almost exactly with the arc of the Great Recession, we’ve been blinded of late by arguments put forth, like shiny objects, suggesting that the paper stuff that goes in your pocket (cash compensation) isn’t as important as the cornucopia of less extrinsic factors that have entered the deal in the workplace… things like concierge-type services, telecommuting, or participating in Habitat for Humanity builds alongside your co-workers.

Whoa, full flaps, brakes, stop! To be sure, there is considerable attraction and motivational impact in achieving a state of camaraderie, and in job-related perks that are special. Indeed, one of us helped launch FedEx, and for a while when the business was running on fumes, it certainly helped to be working alongside a charismatic CEO with a warrior spirit, to be a participant in reshaping commerce, and for every employee to have the opportunity to ride free on company planes, because the mixture of cold, hard cash was pretty lean.

But at the end of the day, people, nearly all of us are motivated, at some level and to a significant degree, by money. We are. Aren’t you? Sure, it’s not everything, but it’s definitely in the mix. And it’s more in the mix of late for two reasons: 1. Due to a still struggling economy and a slack labor market, real hourly earnings are mired US$0.24 below the December 2008 high.

2. Employee engagement levels are abysmally low, to wit the deal in the workplace tends to be more transactional, where cash is the coin of the realm.

So chewy and multidimensional is the comp issue that an entire professional association, WorldAtWork (formerly known as the American Compensation Association), exists to help employers figure it all out.

Credible studies abound, suggesting that higher compensation won’t necessarily buy you a better performing organization. In chapter 5 of our latest book, Contented Cows STILL Give Better Milk, we illustrate that with some NFL stats showing that many of the highest paid football teams in the US consistently turn in some pretty middling results.

Still, most of us don’t lead entire organizations; we lead individuals. And taken one person at a time, let’s be clear. Sometimes it IS about the money.

It’s sometimes about the money, because people who are struggling to make ends meet, or who believe they can earn substantially more somewhere else, or who feel taken for granted spend more time thinking about their comp-related woes than they do thinking about their work, their customers, and your business. When that happens, they can’t possibly be as engaged as you need them to be.

It’s sometimes about the money because, let’s face it: right or wrong, in our society, money sends a message. A message about a person’s worth. One’s composite view of his or her “deal” at work consists of at least these four factors: • Leadership: How do I feel about the person I report to, and the big guns who run the place?

• Meaningful work: Is what I do valuable and important to others, and do I get frequent reminders of that? Expressed appreciation is a HUGE part of this one.

• Lifestyle fit: Does this job support and promote the kind of life I want to live? Schedule, benefits, amenities, time demands, etc.

• Compensation “Worth-its”: Am I satisfied with the money I earn?

You’ll notice that the above list is heavily weighted in favor of intangibles. Only one factor – the last one – is tangible. Most of us would like to maximize the mix of these elements, but they don’t all have to be perfect. If I really like my boss, and the work provides a real sense of meaning to me, I may be willing to work long and inconvenient hours for less than optimal pay. But if I have to work for a jerk doing stuff that doesn’t provide much emotional satisfaction, you’d better be prepared to fork over the big bucks, or I’m outta here. Mentally if not physically.

Think about your competition for talent. Someone else can always outbid you on the tangible; not necessarily on the intangibles.

Here’s our position, and some tips to go along with it: • You should never pay anyone more than you can afford, or more than they’ve earned. And not substantially more than the market dictates.

• Without violating anything in the above bullet point, make your very best offer to attract and retain the best people for your organization, and keep them interested.

• The question of whether or not you can afford a certain amount for a certain person must be balanced with the question, “Can we afford not to pay that certain amount?” Consider the cost both if the person were to leave, and if they were to power back. If you really are underpaying someone, do you really expect to get their best work?

• Stay educated on what the market demands. Take advantage of current salary survey data for your industry. Your professional association probably has some. Be sure to filter for geography, profession, education and most of all, demonstrated capability.

• You can offset the desire for more monetary compensation – to a fairly substantial degree – by paying lots of attention to the intangibles mentioned above. Especially appreciation.

Simply saying “thank you” – and meaning it – can go a long, long way. It’s worth real money.

But be careful about using these intangibles to justify paying less than you can, and less than you should.

• Apart from paying “stay bonuses” or step increases, never increase anyone’s base compensation simply for hanging around another year. If given a choice, your compensation dollars would be much better spent as merit-based differentiation than endurance pay.

• Paying people by the hour is intellectually bankrupt. Find a way to correlate people’s pay with the income or value they provide to the organization.

• Give everyone as much information and control as possible over how much they earn. Here’s a conversation we love to hear (and have): “You want to make more money? Let me show you how.”

Bill Catlette Author, Seminar Leader, Executive Coach, Keynote Speaker contentedcows@gmail.com www.contentedcows.com http://twitter.com/ContentedCows www.HRProfessionalsMagazine.com

33

!

The FastTrack Program creates good-doers in the Memphis community

By Jared Bulluck

M

any people in the community ask the questions “How do I get involved and make a difference in the community?” There are many ways people can make a difference in their community. They can be do-gooders. Or they can be good-doers. A do-gooder is a well-meaning individual who does the right things for the right reasons – and they help someone.

A good-doer, on the other hand, wants to understand the “why” and “how” of it all. “Why” is what I’m doing going to make a difference?

“How” could I be making more of a difference? By taking the time to understand the “why” and “how” a good-doer is taking the additional steps that can result in making a higher impact difference in the lives of others. This takes caring, curiosity, and courage. It also takes a commitment to make their community a better place.

Leadership Memphis has a unique program for up-and-coming community leaders who want to do good, but who more importantly want to elevate and learn how to be good at doing good…a good-doer. Leadership Memphis offers a program called the FastTrack Program. It is one semester that can change your life, and change the lives of others in the community with your expanded Community IQ and the skills you already possess and the next class starts in January 2014!

involved in Leadership “ Being Memphis is one of the most

A current member of the FastTrack class expressed the experience in the following way:

rewarding experiences I’ve had. My classmates have shared a wealth of knowledge from their personal and professional experiences, but more importantly, the class presenters have shown me that being involved and getting others involved is really not that difficult if you share your vision and show your passion. And the Leadership Memphis staff is one of a kind – a tremendous team!

”

– Fall 2013 FastTrack Member

34

www.HRProfessionalsMagazine.com

FastTrack participants are passionate about the Memphis region and are energized by their classmates, who represent a diversity of personal and professional backgrounds. Each class is a strong cross-section of the community, including representatives from the business, nonprofit, government, academic, and other essential sectors. All those different people have many different viewpoints.

Ironically, they all want the same thing – for Memphis to be a great city. If you want to change the community you have to be willing to change yourself, and that means have a willingness to learn more about your community than you think you know. It’s how you become a good-doer.

To apply or nominate a person for the Leadership Memphis FastTrack program email Jared Bulluck at jbulluck@leadershipmemphis.org, or go to the website at www.leadershipmemphis.org.

Jared Bulluck Director of Community and Alumni Engagement jbulluck@leadershipmemphis.org www.leadershipmemphis.org