December 2014 issue

Volume 4 : Issue 12 TM

www.HRProfessionalsMagazine.com

Not

Job Descriptions Why HR

Again

Advocacy

Matters

Mike Aitken Total Compensation Statements

SHRM VP Government Affairs

A Pharmacy Recent

Amendments to the Tennessee

Human Rights Act

Benefit Forecast for 2015

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 Only

36%

of eligible voters actually voted in the 2014 Mid-Term Elections www.HRProfessionalsMagazine.com Editor

Cynthia Y. Thompson, MBA, SPHR Publisher

The Thompson HR Firm HR Consulting and Employee Development

Features 4 note from the editor 5 Profile: Mike Aitken, SHRM VP Government Affairs

Art Direction

7 HR Public Policy Issue Will Take Center Stage in the New Congress

Contributing Writers

8 5th Annual Mississippi Health Care Reform Summit

Park Avenue Design Mike Aitken Theresa J. Allen Sally F. Barron Bruce E. Buchanan Mary Cooper Kathleen Coulombe Harvey Deutschendorf Elisabeth Doehring Sarah Martin Tim Orellano Jennifer Riley Cathy Shuck Robin B. Taylor Paula Watkins Jeff Weintraub Elmer E. White III 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 Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles.

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

HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. Š2011 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.

WEB EXCLUSIVES HTTP://HRProfessionalsMagazine.com /Exclusives

12 A Pharmacy Benefits Forecast for 2015 14 Why HR Advocacy Matters 18 The Total Compensation Statement 26 Fisher Phillips Named Law Firm of the Year

Departments 10 Employment Law: Recent Amendments to the Tennessee Human Rights Act 16 Workplace Flexibility: Getting the Most Out of Your Virtual Employees 20 Performance Management: Not Job Descriptions Again‌ 23 EEOC: Religious Accommodation for Mandatory Immunizations 24 USERRA: Military Service Members Leave Rights 27 Pregnancy Discrimination Act: Leaves of Absence 29 IRCA: How to Conduct and I-9 Audit 30 EQ: Essentials for Leaders to Develop Trust 31 AAP: Good Faith Outreach Efforts 33 Wellness Southern Style

Industry News 6 Highlights of the 5th Annual WTSHRM HR & Employment Law Conference

Next Issue Highlights of the 2014 KYSHRM Leadership Conferences Previews of the 2015 TNSHRM Leadership Conference Top Employee Benefits Companies www.HRProfessionalsMagazine.com

3

a note from the Editor

We

are honored to have Mike Aitken, SHRM

Are you currently providing your employees with a total

VP of Government Affairs on our cover

compensation statement? Theresa Allen explains its

this month. Mike graciously contributed

importance in her article on Page 19. If you are a federal

an excellent article on the importance of

contractor, you will appreciate the article on Page 31 by

HR advocacy with a call to action to join

Tim Orellano about the changes to Affirmative Action

the SHRM A-Team, if you are not already a member. There

Plans that became effective in March 2014. I know

is a focus on the results of the midterm elections, which

you will find the article by Sarah Martin, “A Pharmacy

brings significant change in leadership impacting the HR

Benefit Forecast for 2015,” very helpful as you plan your

community. We also have an insightful article from Kathleen

benefits budget.

Coulombe, SR Advisor with SHRM Government Relations, on HR Public Policy issues and what we can expect from the

Memphis HR Professionals will have an opportunity to

114th Congress.

meet NLRB General Counsel Richard F. Griffin, Jr., who will be a keynote speaker at the Labor and Employment

Along with the hustle and bustle of the holiday festivities, it’s

Law Section of the Memphis Bar Association Annual

also time for HR professionals to focus on compensation and

Seminar, at the Crescent Club on December 5. You

performance management issues in many organizations.

can earn 5.75 HRCI credits at this event! Register at

Paula Watkins, SPHR, and Alabama SHRM State Council

memphisbar.org.

Advisor, walks us through how to write job descriptions that will stand up to scrutiny under the ADAAA. “With passage

Mark your calendar and join us December 16 at 2 PM

of the ADAAA the focus of disability nondiscrimination law

for our monthly complimentary HRCI webinar sponsored

was shifted from analyzing whether a particular individual’s

by Data Facts. The topic is “Strategic HR Metrics” to

impairment is, or is not, a disability to determining whether a

assist you with your end-of-year reporting. Watch your

“covered entity” (i.e., employer) has complied with its obliga-

email for details!

tions to provide equal opportunity. The focus changed from the individual to the employer.” This article will be very helpful

Happy Holidays to all!

as your update your job descriptions.

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

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

Michael

on the cover

P. AITKEN

MICHAEL P. AITKEN Vice President Government Affairs Mike Aitken joined the Society for Human Resource Management (SHRM) in 2003 and since then he has been responsible for all SHRM governmental affairs endeavors.

Mike currently serves as SHRM’s Vice President of Government Affairs and he is a strategic advisor to the Society’s overall external relations activities.

As a member of SHRM’s senior management team, Mike plays a key role in helping to set the strategic direction of the organization, offering important counsel on SHRM’s educational programs and professional development opportunities.

With over 20 years of experience working on workplace and workforce issues, Mike is a leading authority on issues important to the human resource profession. As one of SHRM’s primary spokespeople, Mike is regularly interviewed by the media and sought out as a speaker for business audiences.

Prior to joining SHRM in 2003, Mike spent 14 years with the College and University Professional Association for Human Resources (CUPA-HR), which represents the human resource professionals at 1,900 higher education institutions.

Mike currently serves as a board member for the Association of Government Relations Professionals and OpenWork. He is also a member of the National Selection Board of the Secretary of Defense Employer Support Freedom Award and the U.S. Chamber of Commerce Labor Relations Committee. He holds a Bachelor of Arts degree from the University of San Diego. 

www.HRProfessionalsMagazine.com

5

Highlights from WTSHRM 5th Annual Fall 2014 HR & Employment Law Conference The theme of this year’s conference was “HR Can Be a 3-Ring Circus!”

WTSHRM Board of Directors (L-R) Jennifer Howell, Donna Dickinson, John Carbonell, Rita Alexander, Amy West, Jane Mansfield, and Rhonda Livingston. Lindsey Pullen not pictured.

Matthew Courtner spoke on “No Clowning Around – Employment Law Update.”

6

Jack Smalley, Director of HR and Learning with Express Services, spoke on “Get the Show on the Road – Leading Organizational Excellence by Avoiding the Top 10 Leadership Mistakes.”

www.HRProfessionalsMagazine.com

Rainey, Kizer, Reviere & Bell co-sponsored the Conference with WTSHRM. (L-R) John Burleson, Latosha Dexter, Geoffrey Lindley, Rob Binkley.

Rob Binkley presented “For Tightrope Walkers and Acrobatics – Workers’ Compensation.

Attorney Panel – Geoffrey Lindley, Latosha Dexter, Rob Binkley, and John Burleson took attendee questions during the “Under the Big Top – Q & A.”

John Burleson’s topic was “Lion Tamer – FMLA – Don’t Get Bitten!”

Latosha Dexter and Geoffrey Lindley presented “Side Shows – Case Studies.”

HR Public Policy Issues Will Take Center Stage in New Congress

By KATHLEEN COULOMBE The elections last month made it clear that the Halls of Congress will look a little different in January 2015. Republicans gained seats in the House of Representatives, retaining control in that chamber with a historic margin, and took control of the U.S. Senate. Republicans also saw gubernatorial pickups, in Illinois, Maryland, Massachusetts and Florida.

While there were some incumbents ousted, (Republican Thom Tillis defeated Democratic incumbent Senator Kay Hagan in North Carolina), and a few very close calls, (Democratic Senator Mark Warner narrowly defeating Republican Ed Gillespie in Virginia), the outcome of the elections made it clear Americans were tired of gridlock and bickering in Washington. But before the changing of the guard can take place in early 2015, the current 113th Congress needs to address some outstanding policy issues.

During the very brief lame duck session, lawmakers must pass a continuing resolution to fund the government through the end of the year, as well as take action on a series of tax extenders that will expire on December 31st.

Provisions related to employer-provided mass transit, wage credit for active military reservists, the Work Opportunity Tax Credit and multi-employer pension plan funding rules, will all expire if Congress does not take steps to temporarily extend their tax treatment.

In the new Congress, Republican Leaders have signaled interest in addressing HR public policy issues including immigration reform, labor and employment issues, tax reform, spending and regulatory reform – all of which could significantly impact the HR profession.

While passage of a comprehensive immigration reform bill is very unlikely in the 114th Congress that convenes in January, specific provisions addressing concerns of border security, worksite enforcement and a legal workforce could be considered in 2015. Additionally, President Obama is expected to take executive action to address issues pertaining to the nation’s undocumented population before the end of this year.

As Congress considers reforms to the U.S. tax code, employee benefits such as retirement plans, educational assistance and health care benefits may come under scrutiny, due to their tax-deferred status. Any reforms to the tax treatment pertaining to these benefits could have an adverse effect on how HR professionals design and administer retirement plans. Tinkering with tax incentives could discourage employees from saving and could further prevent employers from offering a retirement plan in their workplace.

A Republican-controlled Congress will also focus even more intently on Executive branch activities, particularly executive orders and regulations proposed by President Obama. These include proposed actions on the Fair Labor Standards Act overtime requirements and recent changes to employment practices of federal contractors.

While November’s elections were a “mini-wave” election favoring Republicans, the shifts in each chamber do not guarantee that the 114th Congress will be any more productive than the current Congress. Each party will have to manage priorities within their own caucuses, build consensus among their colleagues, and will most certainly have to compromise in order to pass bills that could be signed into law.

Kathleen Coulombe, SR Advisor SHRM Government Relations @KCnSHRMGA www.shrm.org www.HRProfessionalsMagazine.com

7

School of Business presents

4

the

th

annual

M ISS I SS I PPI

h e al t h c are

R Esummit FORM

By MURRAY L. HARBER

E

Tuesday, October 21, 2014

mployer health and health care continue to be on the forefront of most Human Resource professional‘s minds. With several years of the PPACA behind us and the ever 8:00 – 3:00andpm | Lunch will served expanding set of am requirements deadlines amongst us, be employers continue to spend more time on this once line item aspect of a company’s operation. Fortunately, there are many learningCollege opportunities and events Campus that help HR|professionals understand Mississippi | Clinton Anderson Hall the requirements and how other employers are managing and implementing solutions to manage a company’s population health.

For the fifth year, the Health Care Reform Summit which is a co-presented event by the Mississippi Business Group on Health and Mississippi College’s School of Business was held with over 200 attendees. At this year’s event, participants learned from both national and local leaders in employer health and health care. Topics included legal issues, risk management strategies, population health, clinical integration, and employer health management best practices.

A CHRISTIAN UNIVERSITY

“I thought the seminar was outstanding, and a credit to the organizations and health plans that are School of Business demonstrating a commitment to value based programs for their employees and members. I really appreciate the collaborative nature of the group and hope to be a part of innovative, value-based solutions to improve the health of people in Mississippi, while also lowering the costs of healthcare.”

Chris Anderson, President and CEO of Mississippi Baptist Health Systems

VALUE-BASED HEALTH CARE The growing needs for employers and health systems to work together was apparent in most of the speaker’s comments. Several speakers shared their vision of issues and possible solutions to these issues which included building more value-based systems in employer health plans and providers Presented by a Partnership thewhere MC School of Business, alike.

Transparency of costs wasbetween a hot topic information was shared that the future will Southern Farm Life Insurance Company, Mississippi include tools to Bureau help consumers make health care decisions

by Business looking at the cost of tests and Group onand Health, Area Human treatments makeCapital their own decisions onResource where to Association go for these and health services. It seems that the Mississippi Society for Human Resource Management the health care world is changing to provide consumers more information about treatments, cost, and value.

Registration Information on Back

“This year's conference has definitely raised the awareness level of employers, medical providers and the general population regarding the scope of the economic and social impact that healthcare, and the delivery of healthcare, has on our state and the nation. They also witnessed that here in Mississippi that we have groups of professionals, representing all sectors of the healthcare continuum that are looking to work across the 'party' lines to work toward a better product and process that includes better patient outcomes and an overall healthier population which leads to a better value for all.”

Jim Brown, VP of Benefits, Trustmark National Bank

POPULATION HEALTH Dr. Scott Conard, a national leader in Population Health, shared his views on the needs of promoting prevention as a key strategy to improving the health of employee and their family members. He shared that we have to offer health improvement programs for those with conditions, those with multiple health risks, and also those that keep healthy people healthy. He also shared his book – The Seven Numbers – that he provides his patients to help them understand why specific tests and their values make a difference in the health of individuals. Many employers are using these values as benchmarks along with their respective plans of care and programs to provide health plan members with incentives for being more engaged in their own health, health plan, and health service utilization.

8

www.HRProfessionalsMagazine.com

“The real stakeholder is the population actually being served, and the value there is to improve the health of the group by individual and joint efforts.

For this, we must dig into the medical treatments and procedures that are proven to work, while reducing the waste, overlap and ineffectiveness in the current system. We must also develop strategies to improve the health of those currently without disease. Medicine grew up as a cottage industry in the US and it is time to create a new system that aligns rewards with overall outcomes rather than with the volume of ineffective services”.

Dave Duddleston, MD, Medical Director, Southern Farm Bureau Life Insurance Company

EMPLOYER HEALTH MANAGEMENT At the end of the program, the Mississippi Business Group on Health offered two breakouts on employer health management. These two sessions were broken into beginning wellness programs and advanced wellness programs. Teams of local wellness coordinators shared their views using best practices and evidence based strategies to help employers understand how to build them the right way and how to utilize innovated strategies to boost interest and engagement.

The beginners learned about the industry standard – HERO Employee Health Management Scorecard which is used by companies across the globe in designing their programs. Professionals from Baptist Health System, the Mississippi State Department of Health, and staff from the MSBGH shared their views and experiences building their programs. The advanced group learned about innovative approaches to building an effective communication plan and incentive strategy to develop a healthy workplace culture. Professionals from Southern Farm Bureau Life Insurance, Trustmark Bank, and St. Dominic’s Health System shared their approaches, lesson learned, and success stories.

US Representative Gregg Harper who represents the 3rd Congressional District in Mississippi shared his views of the PPACA and health legislation that is being crafted and discussed in Washington, DC. He gave an outstanding overview of importance of need for value and supportive legislation for innovative approaches including tele-health services for communities and employers alike.

It was an outstanding event and all sponsors and participants were pleased with the event and see it as a value to the Mississippi employer community in keeping up to date the latest in employer health and health care.

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

6

Reasons why employers choose Colonial Life

■■■end-to-end service

Need enrollment assistance? Want to reduce administrative burden?

We can help every step of the way.

■■■money-saving strategies We’re constantly thinking about ways to save you money. Sound familiar?

■■■personalized benefits counseling We meet 1-to-1 to help everybody get the benefits that are best for them. Which is also best for you.

■■■education and communication We help make sure everybody knows how to make the most of their benefits. Which is a benefit in itself.

■■■fast and easy claims process When people need us most, we’re at our best.

Isn’t that what benefits are really all about?

■■■good hard work We believe in the benefits of good hard work.

Just like you.

To learn more contact: Blake Rogers, TN Territory Sales Manager 615-696-6672 Jimmy Hinton, MS Territory Sales Manager 601-326-2952 Ricky Reynolds, AR Territory Sales Manager 501-246-8979

ColonialLife.com DISABILITY

■

ACCIDENT

■

LIFE

■

CRITICAL ILLNESS

■

CANCER

Source: Colonial Life Proprietary Research: 2013 © 2014 Colonial Life & Accident Insurance Company | Colonial Life insurance products are underwritten

by Colonial Life & Accident Insurance Company, for which Colonial Life is the marketing brand. NS-13701

2014: The Year of the Employer Recent Amendments to The Tennessee Code

By SALLY F. BARRON

E

arlier this year, the Tennessee General Assembly passed several amend-

The limits are specified as follows:

ments to the Tennessee Code affecting employers, most notably passing

• • • • •

laws impacting the rights of employees to bring suit under the Tennessee Human Rights Act (the “THRA”), the Tennessee Public Protection Act (“TPPA”), and the Tennessee Disability Act. Most of these changes took

effect on July 1, 2014, with the stated purpose of clarifying existing Tennessee employment law and harmonizing Tennessee and federal law relating to individual liability and caps on the amount of damages recoverable in employment lawsuits.

Individual Liability The General Assembly added a provision to the THRA stating that “no individual employee or agent of an employer shall be liable for any violation [of the THRA] that any employer shall be found to have committed.” In the past, employees filing suit had at times attempted to hold individuals (such as supervisors) liable for the wrongful employment acts that took place during their employment. Under the prior version of the statute, courts had found that individual employees could be liable for aiding, abetting, inciting, compelling, or commanding the employer to engage in a discriminatory act.

The amendment makes it clear that claims against individuals who act as agents of the employer will not be sustained under the THRA. The amendment does not necessarily mean, however, that individuals could not be held liable for independent claims arising in an employment setting (such as negligent or intentional infliction of emotional distress, assault, or battery, to name a few).

Limitations on Damages Another amendment to the THRA adds a section specifying the limit of damages employees can recover in lawsuits based on discrimination or harassment (under the THRA or the Tennessee Disability Act), or retaliatory discharge (under the Tennessee Public Protection Act). The amount of damages employees can recover for emotional pain and suffering and other noneconomic losses, as well as future incidental monetary losses, is capped at a certain amount, depending upon the number of employees the employer had at the time of the alleged wrongful acts.

10

www.HRProfessionalsMagazine.com

8–14 employees: $25,000 limit 15–100 employees: $50,000 limit 101–200 employees: $100,000 limit 201–500 employees: $200,000 limit 500+ employees: $300,000 limit

The amendment does not place a limit on the amount of back pay or front pay an employee can recover.

Duplicate Lawsuits Another amendment provides that an employer cannot be called to defend a lawsuit in state court while at the same time having to defend a lawsuit in federal court based on the same allegations of wrongdoing under the THRA, the Tennessee Disability Act, or the Tennessee Public Protection Act (also known as Tennessee’s “whistleblower” law). The new law calls for the state court to dismiss such an action if the employer files a motion showing that the employee has filed lawsuits in both courts that are “based on a common nucleus of operative facts.”

The Disability Act The new law clarifies that Tennessee’s Disability Act applies only to employers who employ eight or more employees within the state. The THRA also applies only to employers with eight or more employees and contains the limiting provision in its definitions. The prior version of the Disability Act, however, did not contain the limiting definition, and that had led to some confusion among the courts and parties as to its application.

Whistleblower Lawsuits One of the most significant and favorable changes affecting employers is found in the General Assembly’s decision to eliminate Tennessee’s common law (meaning, not statutory law) cause of action for whistleblower claims.

In the past, employees could bring claims for retaliatory discharge under the common law and under the Tennessee whistleblower statute. The change provides an employee the right to recover damages only if the employee can prove his or her claim under the statute, which has requirements that differ from the common law.

Under the common law, Tennessee employees were permitted to pursue claims for damages if they proved that their refusal to participate in or refusal to remain silent about an employer’s illegal activity was a substantial factor in their discharge. The Tennessee whistleblower statute, on the other hand, permitted recovery only when employees proved that their refusal to participate or remain silent about illegal activity was the sole reason for their discharge.

The amended statute maintains the legal remedy for employees terminated solely for refusing to participate in, or for refusing to remain silent about, illegal activities. The amendment specifically “abrogates and supersedes” any common law cause of action, meaning that the courts will no longer recognize claims for retaliatory discharge based on common law principles.

This change is significant because it increases the employee’s burden of proof in a retaliatory discharge claim and increases the employer’s chances of being successful in having such claims dismissed at the summary judgment stage, prior to trial. This change applies to claims based on terminations taking place after July 1, 2014.

The Healthy Workplace Act Another law passed in Tennessee this year is the Healthy Workplace Act, also known as the anti-bullying statute. Tennessee is one of 26 states so far to introduce such a law and the first to pass one. The law applies only to public employers (any agency, county, metropolitan government, municipality, or other political subdivision of the state), but it reflects a common concern facing today’s employers. The statute provides legal protection to government employers that adopt a model policy to combat abusive conduct in the workplace or craft comparable policies on their own.

The prefacing text of the proposed bill makes the following claims (“Whereas….”): • At least 1/3 of all employees will directly experience health-endangering harassment, intimidation or bullying during their working lives, and this form of treatment is more prevalent than sexual harassment; and • Harassment, intimidation or bullying in the workplace can inflict serious harm upon targeted employees, including feelings of shame and humiliation, severe anxiety, depression, suicidal tendencies, impaired immune systems, hypertension, increased risk of cardiovascular disease and symptoms consistent with post-traumatic stress disorder; and • Harassment, intimidation or bullying can also have serious consequences for employers, including reduced employee productivity and morale, higher turnover and absenteeism rates and increases in medical and workers’ compensation claims; and • Employees subjected to harassment, intimidation or bullying at work are unlikely to be protected under current law if the employee cannot establish that the mistreatment was motivated by a constitutionally protected classification; and • Legal protection from harassment, intimidation or bullying at work should not be solely limited to individuals of a protected class; and

• Existing workers’ compensation plans and common-law tort actions are inadequate to discourage this behavior and fail to provide adequate relief to employees harmed by harassment, intimidation or bullying.

Given this background, the General Assembly enacted the Healthy Workplace law to address these concerns.

The new law defines "abusive conduct" as any act, or omission, which would cause a reasonable person to believe that an employee was subject to an abusive work environment, based on the severity, nature, and frequency of the conduct. Examples listed are: • Repeated verbal abuse in the workplace, including derogatory remarks, insults, and epithets; • Verbal, nonverbal, or physical conduct of a threatening, intimidating, or humiliating nature in the workplace; or • The sabotage or undermining of an employee's work performance in the workplace.

An acceptable policy must: (1) assist employers in recognizing and responding to abusive conduct in the workplace; and (2) prevent retaliation against any employee who has reported abusive conduct in the workplace.

The law calls for the Tennessee advisory commission on intergovernmental relations (TACIR) to create a model policy for employers to use to prevent abusive conduct in the workplace. Public employers adopting the model policy or another acceptable policy will be immune from suits for negligent or intentional infliction of mental anguish caused by an employee's abusive conduct. The law does not, however, shield individual employees from liability for their abusive conduct in the workplace.

Although the Healthy Workplace Act does not apply to private employers, the model policy might provide a good starting point for employers wanting to implement their own anti-bullying policies in the workplace.

Criminal Backgrounds Another new law passed this year provides a procedure for individuals with criminal backgrounds to petition a court for a “certificate of employability” when seeking restoration of their citizenship rights. If an individual meets the requirements under the law and receives a certificate of employability, then an employer hiring that individual will be immune from claims of negligent hiring or supervision based on the individual’s conduct unless: the employer has actual knowledge that the individual is dangerous, the individual engages in behavior after being hired that indicates that he or she may be dangerous, or the individual is later convicted of a felony.

Conclusion 2014 saw many new laws on the books affecting employers in both the private and public sector. Most of these are favorable from an employer’s standpoint and aim to clarify the parameters of employers’ liability for claims arising in a workplace setting. While many of the laws affect the legal defense of a claim once a complaint has been filed, employers and human resources professionals are nevertheless advised to review the changes in the laws and consider what impact they might have on current workplace policies.

Sally F. Barron, Associate Attorney Fisher & Phillips Memphis Office sbarron@laborlawyers.com www.laborlawyers.com www.HRProfessionalsMagazine.com

11

A Pharmacy Benefit Forecast for 2015

By SARAH MARTIN

As 2015 approaches, what are the most important new trends you should understand related to pharmacy benefits? The Lockton Benefit Group Pharmacy Analytics Practice breaks down the issues and provides some practical advice for smart decision-making. If you have questions or concerns related to these or other pharmacy benefit issues, please contact your Lockton Account Team.

ISSUE 1

Unexpected fees may be associated with a combined pharmacy/medical

out-of-pocket maximum.

If you haven’t already made a decision about whether to use two separate out-of-pocket maximums (one for medical and one for pharmacy) or a single, combined out-of-pocket maximum, it’s time to do so. If your pharmacy benefit is carved out to a pharmacy benefit manager (PBM), keep in mind you might be paying data integration fees to your carrier, PBM, or both if you decide to maintain a single out-of-pocket (OOP) maximum for both medical and pharmacy cost sharing.

Some PBMs and carriers are offering a choice between near real-time data exchange or overnight batch-data transfers. Data transfer fees can vary from $0 to thousands of dollars per month.

ISSUE 2

Expect an increasing hepatitis C spend.

We saw hepatitis C and the wonder drug, Sovaldi, in the news throughout 2014. New oral hepatitis C medications are projected to cost even more than Sovaldi, which runs approximately $84,000 per treatment. The good news about all of these treatments is the cure rates are very high—90 percent or more.

Two oral hepatitis C treatments to watch for are currently under FDA review and expected to be approved in the fourth quarter of 2014. Additional treatments should be available in 2015. Some of the new treatments expand the population of patients who can be treated, while others may actually bring price competition to the class. Lockton’s Pharmacy Analytics Practice can assist you with strategies to manage your hepatitis C spend appropriately and take advantage of price competition when it becomes available. We can also conduct predictive modeling to estimate future hepatitis C costs for your plan.

ISSUE 3

A robust specialty drug pipeline exists for new breakthrough therapies.

In addition to new hepatitis C treatments, we expect new oncology medications to be released throughout 2015, with some costing an average of $10,000 per patient per month.

Two new oral therapies for idiopathic pulmonary fibrosis (IDF), a lung disorder with no cure, could run $100,000 per patient per year. These breakthrough therapies may prevent the progression of the disease, which is exciting because currently the primary treatment available for IDF is a lung transplant.

A new oral therapy for cystic fibrosis (CF) could benefit 50 percent of all CF patients. The cost of the new treatment is expected to be at least $300,000 per patient per year. This is important because Kalydeco, a treatment that was approved in 2012 to treat the underlying cause of CF, is effective in only five percent of patients.

12

www.HRProfessionalsMagazine.com

ISSUE 4

Generic drug inflation will continue.

Throughout 2014, we have seen many generic drugs become more expensive, some exceedingly expensive with inflation rates of one thousand percent. According to a study by Drug Channels Institute, half of the generic drugs studied had an increase in acquisition cost, with a median increase of 11.8 percent from July 2013 to July 2014. Some generic inflation is due to raw material shortages. Inflation is also triggered as manufacturers enter and exit the market.

What does this mean for employers and members? Expect certain “expensive” generics to no longer be included on retail pharmacies’ low-cost drug lists. Some PBMs are even recommending moving certain generics into a higher co-pay tier. As we see generic inflation continue, it’s important to have solid generic pricing guarantees and definitions in your pharmacy benefit contract. The Lockton Benefit Group Pharmacy Analytics Practice can assist you in securing solid guarantees and contractual language.

ISSUE 5

Expect tighter controls on the use of compound drugs.

Over the last few years, we have seen dramatic increases in both the utilization and average cost of compound drugs used to treat scars, wrinkles, pain, and other conditions. While some compound drugs are medically necessary and appropriate, there are some conditions for which a noncompounded preparation is already available that may work just as well.

In 2015, we expect most PBMs and some carriers to continue taking an aggressive stance when it comes to compound drugs. For example, Express Scripts is blocking a thousand compound drug ingredients for most clients. Similarly, Catamaran has introduced a “Safe & Effective Compound Use Reassurance Effort,” offering a variety of services to assist clients with safety and cost concerns. Lockton Benefit Group’s Pharmacy Analytics Practice can help you assess the impact of any changes recommended by your PBM or carrier.

LET LOCKTON CREATE A STRATEGY THAT’S RIGHT FOR YOUR ORGANIZATION. Managing your 2015 pharmacy program will require the implementation of a broad set of strategies to address generic drugs, high-cost specialty drugs, and everything in between. The Lockton Benefit Group Pharmacy Analytics Practice can help you develop these strategies and update them throughout the year as the pharmacy landscape continues to change. For more information, please contact your Lockton Account Team.

Ashley Pace

Lockton’s Memphis Office 901 757 6902 apace@lockton.com

Brad Owens

Lockton’s Memphis Office 901 757 6901 Bowens@lockton.com

www.HRProfessionalsMagazine.com

13

Why Does HR Advocacy Matter?

By MIKE AITKEN

T

he November 2014 midterm election results brought significant changes to the leadership of Congress that will undoubtedly impact the workplace.

When the 114th Congress—one of the most diverse in history—convenes in January, new leaders in both chambers will move forward with workplace flexibility proposals, amendments to the Patient Protection and Affordable Care Act, comprehensive tax reform proposals, and initiatives designed to create jobs and enhance the U.S. economy. In addition, President Obama has pledged to move forward on many workplace issues using the power of the executive branch through regulations and executive orders.

…exit polls from the recent November elections unfortunately indicate that only 36 percent of eligible voters actually voted in the 2014 midterm elections—the lowest turnout in 72 years.

Significant GOP victories in southern states such as Arkansas, Kentucky and Tennessee helped shift the power in the Senate from Democratic to Republican control. Looking forward, with Kentucky’s senior senator, Mitch McConnell (R-KY), now heading the new Republican-held Senate as Majority Leader, and with Sen. Rand Paul (R-KY) influencing the national debate as we approach the 2016 presidential election, the state of Kentucky in particular will be in the spotlight in the months ahead.

To a large extent, most Americans’ involvement in our democratic process and in shaping the laws of our country is limited to Election Day. As important as it is to exercise our civic duty and vote, exit polls from the recent November elections unfortunately indicate that only 36 percent of eligible voters actually voted in the 2014 midterm elections—the lowest turnout in 72 years. Another way Americans can get involved in legislative and regulatory matters is through advocacy.

As an HR professional working to comply with various federal and state laws and regulations, how many times have you thought “What were the policymakers thinking when they enacted this law?” or wondered if they had any input at all from HR professionals. Fortunately, SHRM provides the perfect opportunity to have an impact on lawmaking in the form of the SHRM Advocacy Team (A-Team). This proven initiative ensures that the voice of the HR professional is engaged and active through a local network of SHRM members, all working together to shape effective workplace public policy. As HR professionals, SHRM members are best suited to communicate to members of Congress how legislative and regulatory proposals actually affect employees and employers in every district across the country.

14

www.HRProfessionalsMagazine.com

Not enough of a reason to get involved? Not convinced you should join the A-Team?

Consider the following: 1. Workplace Experts—Currently, only one member of the 535 total members of Congress has a background in human resources: former SHRM member Sen. Michael Enzi (R-WY).

This simple fact demonstrates the enormous need for HR professionals to be an important part of the debate and instrumental in the advocacy effort when workplace issues are being discussed.

Lawmakers need to hear the HR perspective on how legislative and regulatory proposals will impact the workplace (employers and employees). SHRM’s robust A-Team network provides this opportunity to shape workplace regulations and to serve the HR profession.

2. Non-Partisan Approach to Public Policy—SHRM does not have a political action committee (PAC) and does not fundraise, financially support or endorse political candidates.

It relies on the strength of the SHRM A-Team and a federal advocacy team to shape workplace policies and issues. This two-pronged approach of a member network combined with direct advocacy gives SHRM great credibility, in Washington, D.C., and around the country, as having the advocacy power to affect change. Joining with SHRM’s A-Team provides HR professionals nationwide with the branded outlet to directly impact the laws and regulations coming out of the nation’s capital. With over 275,000 SHRM members to draw from and a network of over 7,600 advocates in every congressional district across the country, SHRM’s A-Team has attracted a solid foundation of committed volunteer leaders who serve as the face of HR within their local districts. These leaders act as the point of contact year-round for SHRM’s Government Affairs team when the need for on-the-ground advocacy arises. SHRM’s ability to leverage its powerful pipeline of active HR professionals positions it and its members as a major policy influencer.

3. Influential Constituent Voice—According to ongoing research by the Congressional Management Foundation, a group dedicated to researching citizen engagement trends with lawmakers and their staffs, the No. 1 way to influence a member of Congress is through an in-person meeting with a constituent from the lawmaker’s congressional district or state.

While registered lobbyists and PAC groups do hold political sway, research clearly demonstrates that members of Congress value those they are elected to represent far more than outside influencers. Bottom line: Your perspective and opinions as a voter matter. Your lawmakers want to hear from you. Not being a part of the conversation when issues arise will only be detrimental to the workplace.

4. Local Network and Ongoing Dialogue—Establishing and maintaining an ongoing relationship with a lawmaker at the local level can make all the difference when key workplace issues come before Congress. Through the A-Team, SHRM highlights the value of its advocates having an ongoing dialogue with their representatives and senators throughout the year. A-Team members work to become reliable resources for their members of Congress— whether by sending an email to their lawmakers on a key workplace bill or vote in Congress; by placing a phone call to discuss an HR issue with their lawmakers and/or staff; by scheduling local face-to-face meetings when Congress heads home for congressional recesses throughout the year; or even by making a visit to Washington, D.C. Many SHRM members who are active and engaged at the state level, such as through SHRM Alabama, Georgia SHRM and HR Tampa (FL), have strong networks in their hometowns that coordinate trips to the nation’s capital to meet as a delegation with their members of Congress.

5. Effective Outcomes—Through ongoing relationships and interactions with lawmakers, SHRM’s A-Team has made a significant difference when it comes to policy. For example, when a workplace flexibility bill (The Working Families Flexibility Act) came before Congress this past year, a group of SHRM A-Team members from Pennsylvania met with their representatives in Congress. Immediately after this meeting, Rep. Mike Fitzpatrick (R-PA) announced his support for the legislation. Further, he used Twitter to announce his new support of the bill, highlighting the educational impact of these types of interactions with constituents and the positive conversations he had with HR leaders in his community.

As we thank the 113th Congress for its service and prepare for a new Congress, we at SHRM, and you as HR leaders, need to come together through advocacy. We need to collectively welcome these new members of Congress, educate them on the evolving nature of the workplace and work together to address workplace developments in Washington.

Want to get started today? Take this opportunity to reach out to your congressional delegation. If your representative or senators are new to Congress, or new to the HR world, consider treating them like you would a new hire. Provide them with all the information, resources and support possible as they serve you and your district or state. And know that SHRM is here to offer you the support you need to be an effective SHRM A-Team member.

Please take a moment to visit SHRM’s HR Policy Action Center online at www.advocacy.shrm.org for all the resources you need to join and serve as a valuable advocate for HR. In addition, please download SHRM’s latest innovative member advocacy resource: the SHRM Advocacy App, now available in app stores. This exciting new tool will provide HR professionals with access to all the advocacy, policy and legislator information they need to be active and engaged year-round.

Questions about SHRM’s A-Team and advocacy efforts? Please contact Meredith Nethercutt, SHRM’s Senior Associate for Member Advocacy, at Meredith.

Nethercutt@shrm.org. On Twitter? Be sure to follow @SHRMATeam and SHRM’s Government Affairs team.

Mike Aitken VP | SHRM Government Affairs mike.aitken@shrm.org www.shrm.org

Sen. Roger Wicker (R-MS) discusses the political landscape with Mississippi State Council of SHRM leaders at their August legislative reception in Jackson.

SHRM Kentucky members meet with Sen. Rand Paul (R-KY) on HR-related legislation in Washington, D.C. www.HRProfessionalsMagazine.com

15

THE FUTURISTIC EMPLOYER:

By MARY COOPER

Getting The Most Out Of Your Virtual Employees Without Risking Everything Along The Way

Introduction Managing employees in the traditional office setting is often challenging. Now, with an increasing number of employees working remotely, employers face a new set of employment issues when managing a virtual workforce. Remote access is becoming the norm when it comes to workplace flexibility and can be a win-win for both employers and employees. For example, at our firm, Cross, Gunter, Witherspoon & Galchus, P.C. (CGWG), we support workplace practices that promote healthy work-life balance, including working remotely. As a result, CGWG has garnered national praise from legal entities, clients and objective third parties for its variety of workplace practices. The firm was honored in 2014, 2013 and 2012 with the When Work Works Award (formerly the Alfred P. Sloan Award for Excellence in Workplace Effectiveness and Flexibility).

The award recognizes companies that incorporate flexibility as an effective workplace strategy to increase business and employee success. This prestigious award, part of the national When Work Works project administered by the Families and Work Institute and the Society for Human Resource Management, recognizes employers of all sizes and types across the country. CGWG is one of only two Arkansas employers honored. Likewise, CGWG has been recognized by the American and Arkansas Psychological Associations and the State of Arkansas for our variety of work-life balance practices, and our firm was also named the inaugural Benchmark Award winner at the 2013 Best Places to Work luncheon, sponsored by Arkansas Business.

Whether employers have the occasional remote employee or an entire virtual workforce, it is important for managers, supervisors and human resource professionals to understand that virtual workers present unique employment issues that cannot be addressed using the same traditional management methods of the past. This article discusses some of the distinctive employment issues that can arise when managing virtual employees.

Wage and Hour Issues Employers must comply with numerous federal and state regulations, such as wage and hour laws. It can be difficult to ensure that non-exempt employees in the workplace comply with timekeeping policies, and this becomes even more challenging when it comes to those employees working in a virtual world. Just because virtual non-exempt employees are outside of the workplace or may work varying schedules does not mean they are not subject to overtime and minimum wage requirements. Just like traditional employees, employers must ensure that employees who telecommute are properly recording their time, including meal and break periods. With constant access to work via computers, tablets and smart phones, it is even more important to monitor virtual non-exempt employees’ timekeeping. Employers must come up with a timekeeping policy 16

www.HRProfessionalsMagazine.com

for remote employees that underscores the importance of accurately recording hours worked. Using an online timekeeping system can make recording and reporting time easier for employees and payroll.

Further, having policies that limit when and how non-exempt employees access network data, such as email, can reduce unreported work time. There is even an app for smart phones that will cut off employee access to work email after work hours (The Enforced Vacation app.) It may take some creativity, depending on the employer’s unique circumstances, but without specific policies addressing wage and hour issues for remote employees, employers are at risk for claims of unpaid wages

Harassment Prevention Most employers today understand the importance of having an anti-harassment policy in place and methods for employees to report inappropriate or unwanted conduct, especially by a supervisor. But the virtual world of telecommuting employees raises new concerns related to harassment and bullying not previously contemplated by employers. Email communication tends to be more informal with less inhibition than face-to-face conversations. And without the benefit of things like voice tone and facial expressions, emails can easily become a catalyst for harassment or perceived harassment. But what if the harasser is the remote employee’s direct supervisor and therefore the only person he or she has contact with on a regular basis? The advantage of being in the workplace is that co-workers or other managers are there to help if an employee does not feel comfortable going to a direct supervisor with a problem, especially in cases of harassment. One downside to telecom-

muting is that these employees sometimes have limited contact with other employees in the company and may not feel comfortable reaching out to unfamiliar managers about problems with direct supervisors. Employers should make sure that all employees understand that harassing behavior will not be tolerated and that remote employees have resources available for reporting unwanted inappropriate conduct to prevent total isolation.

Managers and employees should also be trained on appropriate and professional electronic communication skills as part of the company’s regular antiharassment training.

Consistent Application of Policies Consistent application of workplace policies seems like an obvious suggestion, but when it comes to virtual employees, it can often go unnoticed until it’s too late. All HR professionals know that inconsistent application of workplace policies can lead to allegations of discrimination from employees. Like with any other policies, employers should be careful in allowing certain employees more leniency or flexibility than others when it comes to telecommuting. If one virtual employee is allowed to work a variable schedule from home, for example, it will be difficult for the employer to show why other similarly situated employees are not afforded the same opportunity. Similarly, overly scrutinizing one employee or a group of employees more than others may open an employer up to discrimination claims. For example, more seasoned managers tend to view telecommuting with suspicion, often believing virtual employees do not work as much or as hard as those workplace-based employees. In turn, more traditional managers may analyze every aspect of the remote employees’ work although they are not doing so for their other onsite employees. If telecommuting is a reasonable accommodation implemented for an employee with a disability, hyper-scrutiny can be grounds for a disability discrimination claim. Human resource professionals need to train supervisors regarding the management of virtual employees so that workplace policies are applied evenhandedly to all employees, regardless of physical presence in the workplace.

Don’t Forget Performance Reviews Out of sight, out of mind is never a good policy when it comes to evaluating the performance of virtual employees. Unfortunately, managers are less likely to establish specific expectations and performance review methods for their virtual employees. Because remote employees lack physical presence at the workplace, it is even more important that employers set out detailed expectations to avoid confusion regarding performance goals and job duties.

For example, employers that have adopted flexible workplace policies may allow employees to work from home when needed to care for a sick child, etc., but may require that employees be available via telephone during working hours. Without clearly establish expectations, employers will be unable to conduct a meaningful performance review. It is a good idea to evaluate the entire performance review plan to make changes to employee goals and expectations where needed to address the growing number of employees that are going virtual.

Conclusion Remember that having employees who telecommute can benefit an organization on many levels. It can also open up an employer to a variety of risks if not properly addressed by reviewing and revising company policies and by training supervisors on how to handle issues related to their virtual employees.

Mary Cooper, Associate Cross, Gunter, Witherspoon & Galchus, P.C. mcooper@cgwg.com www.cgwg.com

Protection of Confidential/ Proprietary Information With employees often having 24/7 access to company data, it is crucial that employers have robust policies in place to address employees’ use, storage and destruction of proprietary and confidential information. This is even more important when employees are working remotely with less monitoring by the employer. Policies should address the use and storage of proprietary information, such as customer lists, on employee owned devices, as well as the destruction of such information upon separation of employment or when employees dispose of a smart phone or other personal device that contains company data. Employers should require employees to take appropriate security measures to protect company data. Social Media policies should also include language prohibiting employees from disclosing protected information online. However, employers must be very careful not to run afoul of recent NLRB decisions finding overly restrictive confidentiality and social media policies unlawful. Lastly, how virtual employees store and access company data can be particularly risky if proper security related policies are not in place. For example, employees may use a third party for cloud storage to transfer and edit work related documents. Some of the cloud storage providers have higher security risks than others. An employer might want to implement a policy requiring that employees use only the employer-sanctioned cloud storage program with encryption capabilities.

Moreover, employers have begun utilizing software to manage employee access to the company network, configure security settings and controls, and monitor network traffic and activity. Because technology moves at a rapid pace and regulatory agencies are constantly issuing guidance, it is imperative that employers regularly review and revise technology-related policies and keep managers and employees updated with training. www.HRProfessionalsMagazine.com

17

TOTAL COMPENSATION STATEMENT:

Are you Communicating Effectively and Educating Employees?

BY THERESA J. ALLEN

My

reason for choosing this particular subject for my article stemmed from a question I was asked a few months ago.

I was traveling when a client called and asked if I had an opinion on the concept of a hidden paycheck, why it had a mysterious name, and if I would recommend her company offering such a thing to employees. I laughed and told her I had to agree with her notion that it did indeed have a most peculiar name but it is most often referred to as total compensation statement. I will admit the sound of “total compensation statement” isn’t quite as intriguing as “hidden paycheck” nor does it roll off the tongue with as much ease. So, for the sake of my article, I decided to refer to it simply as the TCS. In a matter of minutes, I was able to give my client a decent overview of the TCS concept. I pointed out that TCS demonstrates to employees the total value of the company’s benefits program. And, through TCS, employees are more aware of the value of the employer’s contributions. Most importantly, though, I recommended that she offer it to her employees. By implementing a TCS program in the company, she had the potential of retaining valuable employees because they are more aware of their benefits and how much those benefits are costing the company. As the HR director, a TCS gives her the opportunity to also outline those benefits that are meaningful to employees – those little “something extras” like free parking, a Thanksgiving turkey, or maybe even cell phone cost reimbursement if they use their phone for business. These are extremely important perks in the eyes of an employee.

I shared a story with her from my college days that I felt was relevant. While in college, I worked for a firm that had a retro 1950’s Coke machine. It was stocked with those fabulous six ounce Coke bottles. The beverages were free to all employees…all day long…no limit!

It wouldn’t have as much importance to me today, but it was terribly important to me as a college student. The purpose of my story was to encourage my client to look around at her company environment and take inventory of what she was offering to her employees that seemed meaningful to them. Then I encouraged her to focus on what she could offer. We left our conversation with an agreement that I would forward her further information and ideas on this concept she was considering implementing.

18

www.HRProfessionalsMagazine.com

Once back at the office, my list of “what she should know” seemed to grow. Of course, I wanted to further explain the concept of a TCS, but felt she needed to know what recommended items to include in the statement. From there, my need to help her grew. If she wasn’t familiar with a TCS to start with, my guess was that she would underestimate the importance of communicating it to her employees. But, I didn’t stop there. I felt I also needed to point out the value of educating them on this new company initiative.

I gathered enough sufficient information for my client and forwarded it on to her. But, after spending a little time on this subject, I scratched my head in wonder and thought, “how many others in our world are intrigued by the spooky little term “hidden paycheck” (a.k.a. TCS).

If you recall in my last article, I challenged you with the question “Are You Ignoring Employee Development?” I’ll continue my quasi “Got Milk” theme by asking another question: “Are you communicating and educating your employees on your TCS?” Let’s delve into what I consider two terribly important dynamics of a TCS: your employees’ awareness of it and their understanding of it.

George Bernard Shaw reminds us that “the single biggest problem in communication is the illusion that it has taken place.” The renowned Irish playwright is of course referring to the misconception that communication in any respect has occurred, but in actuality, it has not. Does his quote resonate with you? Is there an assumption that your employees are aware of your TCS when in reality they are not? Effective communication of the highlights is imperative to the success of the TCS. Once you’ve done your work and your employees are aware that you offer a TCS, it is time to educate them on the specifics. If you feel you are offering a solid benefits plan, then accentuate the positive aspects of it. Be certain to explain to them the difference between direct and indirect compensation. Don’t be surprised by the number of employees who do not know the difference. Direct, of course, includes “all” compensation (salary, bonuses and incentive pay) and indirect compensation includes those items not directly paid to the employee for which you as the employer either pay in full or a portion (health care, ancillary insurance, retirement benefits and PTO).

At a minimum, you should include information about salary, bonuses, stock options, retirement plans, 401 (k) matching contributions, PTO, health, life and disability coverage, etc. Showing transparency and clarity by pointing out what you do for them will define you as a dedicated employer, which has the potential of raising morale and even increasing their loyalty. And, be sure to include the “Coke perks” that are unique to your company. Let the education of your TCS serve as a way of making your company a happy workplace.

Theresa J. Allen Wellness & Compliance Coordinator Regions Insurance, Inc. Theresa.Allen@regions.com www.regions.com

SETTING YOU ON THE RIGHT PATH

FOR SUCCESSFUL BENEFITS MANAGEMENT Monitoring changes with today’s employee benefit laws can be overwhelming for even the most seasoned HR professionals. And, with more than 50 categories of regulations, nearly every aspect of the employer-employee relationship is impacted.

Regions Insurance is able to assist you each step of the way in navigating today’s benefits rules, while helping you manage and protect your organization’s growth, profitability and people.

WE SEE THE BIG PICTURE.

Tom Hayes Employee Benefits Practice Leader tom.hayes@regions.com 479-684-5259

Katrina McKinney Sales & Marketing Coordinator katrina.mckinney@regions.com 205-264-7177

Find Regions Insurance offices in these states: Alabama, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, South Carolina, Tennessee and Texas

Not Job Descriptions Again…

particular individual’s impairment is, or is not, a disability to determining whether a “covered entity” (i.e., employer) has complied with its obligations to provide equal opportunity. The focus changed from the individual to the employer. It is a waste of time arguing about whether an employee or candidate is actually disabled. The courts and the EEOC are making inquiry about whether the employer has met its obligations under the act and whether discrimination occurred.

Previous to the ADAAA the concentration was on the “physical requirements of the job.” The ADA simply stated that “disability” was a physical or mental impairment that substantially limits one or more “major life activities” of the individual. Therefore, job descriptions began to have added sections listing requirements to walk, bend, stand, lift, reach, grasp or climb.

Durations, frequency and weight lifting requirements were plugged into the physical requirements sections of the job descriptions.

Under ADAAA an employee or candidate has an impairment that qualifies as a disability if it substantially limits the ability of the individual to perform a major life activity as compared to most people in the general population.

Impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity to be considered substantially limiting. Impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. In other words, impairment can be short-lived. Whether impairment substantially limits a major life activity must be made without regard to mitigating measures other than eyeglasses or contact lenses. In evaluating whether a person has a disability it must be without cane, walker, hearing aids and the like.

By PAULA WATKINS

J

ob Descriptions are boring to read and boring to write. They are definitely not the favorite assignment in the HR Department.

Lately, however, there have been some interesting lawsuits and court decisions that should have HR paying a little more attention to the details related to the “essential job functions.”

The force behind the renewed interest in job description review and revamping is the Americans with Disabilities Act Amendments Act (ADAAA). President George W. Bush signed the ADAAA of 2008 into law on September 25, 2008. The ADAAA was passed in an effort to reinstate the breadth of coverage originally intended by Congress when they passed the ADA. Subsequent to passing the ADA the Supreme Court and lower courts narrowly defined “disability” and related terms. This resulted in fewer persons having protection under the ADA. The ADAAA made it much easier for an individual to meet the definition of disability, to be protected from discrimination and to be entitled to reasonable accommodations.

The key difference between the ADA and ADAAA is that the focus of disability nondiscrimination law was shifted from analyzing whether a 20

www.HRProfessionalsMagazine.com

In response to the widening of disability protection, HR Professionals went into a kind of self-protection mode by expanding the laundry list of essential functions. Essential functions of a position are those fundamental duties that are intrinsic to the position and are the reason for which the position exists. A function is essential if the position actually requires the employee to perform the function and if removing the function fundamentally alters the position. Some of the suggestions for building accurate and detailed essential function analysis that can stand up to scrutiny include: • Begin by making a list of job duties with the percentage of time spent performing each duty.

• Create an exhaustive list of the essential tasks and responsibilities that the individual who holds the job would have to perform, with or without reasonable accommodation, in order to be qualified for the position.

These items should be job related and consistent with business necessity.

• Mark the functions and tasks that cannot be eliminated from the job; that are essential. Use current and past incumbents as a gage. Think about the consequences if particular functions or requirement were not included? Can marginal functions be assigned to other staff or can the marginal duty be redesigned or performed in another manner?

• List tools and equipment used such as computers or fork lifts. Is use frequent, often or occasional?

• List physical demands. Is the demand frequent, often or occasional?

• Is physical appearance an essential job function? How accommodating can an employer be in regard to religious dress (i.e., Abercrombie & Fitch) or editorial style buttons (i.e., Starbucks) or clothing (i.e., Burger King)? Does banning tattoos discriminate against felons for whom the EEOC has provided recent protection guidance?

• Outline mental demands such as problem-solving, writing, planning, supervising, decision-making, organizing, data interpretation, handling stress and their frequency. Is communication with the public a mental or physical requirement?

• Note the working conditions such as indoor/outdoor, extremes of cold or hot, noise levels, fumes/odors, humid, dusty, and working at a height.

• Include Personal Protective Equipment (PPE). Some individuals cannot tolerate respirators, for instance.

• Provide required licenses and certifications.

• Add any further knowledge, skills and abilities required for the position with a justification of why each is required. Relate the requirement to the major responsibilities of the job.

It may seem ridiculous to the extreme yet job descriptions should include attendance as an essential job function for each job description. Attendance is essential to the provision of uninterrupted service to customers and clients; can cause an increase in workload to others; can increase the cost of overtime or result in hiring temporary labor. A recent court case (EEOC vs. Ford Motor Company) involved the request by an employee with impairment to work from her home. The employer was able to demonstrate that the job the employee held could not be performed from her home based upon a job description. There is ample case law that working from home may be a reasonable accommodation but business necessity should usually trump the convenience of the employee.

In a number of significant court decisions the requirement to work rotating shifts and overtime have become central to each sides’ case. The outcomes varied and hinged heavily upon how the company presented the essential job functions. In Feldman vs. Olin Corporation David Feldman worked the swing shift; rotating day, afternoon and midnight shifts for many years.

He also worked overtime. He was diagnosed with fibromyalgia and sleep apnea in 2002. He successfully bid on a straight-day job and submitted a no-overtime medical restriction in 2005. In 2007 job restructuring put him right back into rotating shifts. Olin decided it didn’t have any rotating shifts and laid him off on the day he submitted a physician’s note restricting him from the rotating schedule. Feldman filed with the EEOC. Despite the claim by Olin that overtime and rotating shifts were essential functions of the positions in question, overtime was not listed as a requirement in the written job descriptions for those positions. Olin even claimed it was required by all their positions and, therefore, they should not be expected to list it in each job description. Overtime, however, was listed as a requirement in some job descriptions. Feldman also proved that some positions rarely worked overtime. The courts did not agree with Olin that overtime was an essential job function.

Essential job functions now may require the inclusion of such requirements as proper dress, travel, flex shifts, night shifts and overtime but they must be defensible. They must be work related and linked to business necessity.

Terri Kallail v. Alliant Energy Corporate Services, Inc. is a success story for a company prevailing in doing just that. Terri Kallail was a diabetic dependent upon insulin. Her position as a Resource Coordinator required she work rotating shifts which negatively impacted managing her blood sugar levels.

Kallail’s physician recommended that she work only day shifts. Alliant declined stating that the Resource Coordinator’s essential job functions required rotating shifts. She was offered other positions which she declined.

She was provided light-duty. She failed to win a supervisors position and again requested a permanent day shift. She was offered reassignment which she declined and subsequently filed suit against her employer.

The issue was never about whether Ms. Kallail was disabled. The disputed point was whether she could perform the essential functions of her job, with or without reasonable accommodation. The 8th Circuit Court determined that the rotating shift was an essential function of the Resource Coordinator job. First, it was listed as an essential job function of the position in the written job description. The company presented several business reasons for having rotating shifts as an essential job function: • Familiarization with all geographic territories in the service area; • Enhanced training to handle emergencies more effectively; • Knowledge of all personnel; • Enhanced non-work life of Resource Coordinators by sharing the less desirable shifts.

These two cases demonstrate the importance of making careful evaluation of each position description. The preparation of accurate, justifiable job functions can lay good foundational work for ADAAA claims. But, the most important purpose for insuring solid job descriptions is to communicate the entire scope of the job to the applicant, transfer candidate or employee. While lawsuits and EEOC claims may motivate us to muddle into the ennui of job description, when it comes down to it, it is just plain good practice.

Paula Watkins, SPHR VP, Corporate Human Resources Lyons HR pwatkins@lyonshr.com www.lyonshr.com

Reprinted from PEO Insider

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

IMMIGRATION LAWYERS 1028 Oakhaven Road Memphis 38119 901.682.6455

green cards business visas all immigration needs

2300 21st Ave. S Nashville, TN 37212 615.345.0266

www.HRProfessionalsMagazine.com

21

Retirement Services for Today’s Realities

Effective retirement plans must address the changing expectations of employees, the uncertain nature of today’s financial markets and the always-evolving regulatory environment.

Stephens Retirement Services will partner with you to develop a customized retirement solution, including asset management, regulatory compliance and administration*, that addresses today’s realities. With $4.1 billion in assets under management and decades of experience in retirement services, we will ensure that your retirement plan is as easy to manage as it is valued by your employees.

To learn more, call us at 800-292-2770, email us at stephensretirementservices@stephens.com, or visit us at stephenscapitalmanagement.com *Administration is provided through an outsource partner.

CAPITAL MANAGEMENT • INVESTMENT BANKING PRIVATE WEALTH MANAGEMENT • INSURANCE • RESEARCH SALES & TRADING • PUBLIC FINANCE • PRIVATE EQUIT Y STEPHENS INC. • MEMBER NYSE, SIPC

@Stephens_Inc

STEPHENSCAPITALMANAGEMENT.COM

Religious Accommodation for Mandatory Immunizations

By CATHY SHUCK

According to the U.S. Department of Health and Human Services (HHS), nearly 111 million workdays are lost each year due to the flu. The Centers for Disease Control (CDC) recommends that everyone over six months of age receive an annual flu vaccination, with limited exceptions for persons who are severely allergic to the vaccine or components of the vaccine, such as eggs. And the top strategy the CDC recommends for fighting flu in the workplace is for employers to host or sponsor a vaccination clinic.

Many employers do encourage their employees to receive a flu shot. Some employers even pay for the shot. But what about employers who require employees to receive a flu shot?

For example, East Tennessee Children’s Hospital rolled out a mandatory flu immunization policy in 2013. All employees, physicians, volunteers, and students working at the hospital must receive an annual flu vaccination or obtain an exemption. Additionally, vendors who regularly enter the hospital during flu season are required to be vaccinated or wear a mask.

Nationwide, there is a trend towards mandatory flu immunization among employers that serve vulnerable populations, such as children, the sick, and the elderly. Similarly, athletic trainers, massage therapists, and other workers who are in the business of keeping their clients healthy may be required to have an annual flu shot. Although human resource professionals are typically not thought of in the same category as health workers, human resource professionals who are involved in contact with members of vulnerable populations, or with the agencies and institutions that serve them, could find themselves faced with a mandatory vaccination requirement.

Are such mandatory vaccination policies legal? Yes: in the absence of any specific law to the contrary, an employer can generally require vaccination as a term and condition of employment. Two points of caution, though, are that employers must accommodate employees who cannot comply with an immunization requirement due to a disability protected by the Americans with Disabilities Act (ADA) or due to a religious belief protected by anti- discrimination law.

ADA The ADA requires employers to provide a reasonable accommodation to an employee if the employee cannot comply with an employer’s policy due to a disability. Thus, employers with mandatory vaccination policies must consider whether an employee with an allergic reaction to the flu shot, or for whom the flu shot poses a threat or difficulty due to the employee’s disability, must accommodate the employee. An accommodation might be excusing the employee from receiving a flu shot but instead requiring the employee to wear a face mask.

Religious Accommodation The more interesting question is whether an employee is entitled to a reasonable accommodation when the employee’s religious beliefs interfere with mandatory vaccination. Title VII of the federal Civil Rights Act of 1964 protects employees and applicants from discrimination because of religion and defines religions as “all aspects of religious observance and practice, as well as belief.” Employees are entitled to a reasonable accommodation of their “religious” beliefs unless the accommodation would work a hardship on the employer.

As to whether a particular belief is entitled to protection, the EEOC’s regulations provide that religion includes “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. . . .” Moreover, “[t]he fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.”

Courts have generally agreed with the EEOC that whether a religion is “traditional” or even “recognized” is not determinative as to whether Title VII’s protections apply. Rather, it is the sincerity of the employee’s belief, and the fact that it is part of a belief system (instead of a mere personal preference) that is determinative.

This nebulous definition of religion has resulted in employees claiming that they should be exempted from mandatory vaccination policies due to beliefs such as veganism. For example, in Chenzira v. Cincinnati Children’s Hospital Medical Center, a hospital employee alleged that she was a vegan and that taking the flu vaccine would violate her belief system. She applied for a religious exemption from the immunization policy but the hospital denied it and discharged her. The hospital moved to dismiss the employee’s Title VII claim on the grounds that veganism is not protected by Title VII, but the district court refused to dismiss the claim.

The court held that the employee had alleged sufficient facts to support her claim for religious protection. The court noted that employee had submitted an essay entitled “The Biblical Basis of Veganism” and had cited biblical passages supporting her beliefs when she requested a religious accommodation from the hospital. Note that at this stage the court was not ruling on whether the employee actually did subscribe to veganism “with a sincerity equating that of traditional religious views,” but rather that she had made a plausible claim that was entitled to proceed. Unfortunately (for those of us interested in such things), the case settled and the court did not have the opportunity to decide whether the vegan was actually protected by Title VII.

Conclusion The take-away is that encouraging rather than requiring flu vaccination is probably sufficient for most employers in most settings. For those employers with a compelling reason to require vaccination, the policy should include an exemption procedure so that employees with a plausible disability or religious belief have the opportunity to apply for an exemption.

Cathy Shuck, Of Counsel Wimberly Lawson Wright Daves & Jones, PLLC cshuck@wimberlylawson.com www.wimberlylawson.com www.HRProfessionalsMagazine.com

23

Military Servicemembers’

An employee returning from military leave is entitled to reemployment rights and benefits if the following conditions are satisfied: 1. The employee has given his employer advanced written or oral notice of military service unless giving notice is otherwise impossible or unreasonable, and 2. The cumulative length of absence and all previous, military-related absences from employment, with certain exceptions, with this particular employer does not exceed five years, and 3. The employee reports to work or submits an application for reemployment in accordance with certain requirements.

LEAVE RIGHTS

By ELMER E. WHITE III

Some years ago, the Department of Defense adopted the Total Force Concept which placed more responsibility on the Guard and Reserve for our country’s defense. Today, this component comprises a substantial portion of our total military manpower.

These units are being maintained in a higher state of readiness and it is common for many of them to be activated on short notice.

As a result, training “weekends” are often three (3) day affairs, individual soldiers are being required to attend specialty schools that can last 3-6 months or longer, and call-ups to active duty are to be expected on a regular basis.

Prior to 1994, there were a variety of federal laws, regulations and court decisions defining the employment rights of military personnel. Because these laws did not evolve from one “umbrella” law, the requirements were sometimes hard to locate, often difficult to understand, and occasionally in conflict with one another.

When these problems became evident during the Persian Gulf War, Congress overhauled the laws by passing the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). The new law consolidated, strengthened and expanded the employment rights of our uniformed military personnel. USERRA is often referred to as the most expansive of all federal employment laws, and it is easily one of the most misunderstood.

The Basic Requirements of USERRA USERRA is intended to facilitate the departure from and return to civilian employment by members of the uniformed services and to assure that their seniority, status and rates of pay will be that which they would have enjoyed had they remained continuously employed.

Although it primarily impacts reservists and guardsmen, USERRA also covers individuals who voluntarily enlist in the military.

USERRA prohibits discrimination in hiring, retention, promotions, reemployment, termination, or other benefits of employment against current or former members of the military or those who seek to become members of any military branches. USERRA also prohibits employers from retaliating against any person who exercises his rights or against anyone who assists in the exercise of USERRA rights by testifying, assisting, or otherwise participating in an investigation or proceeding under the law. USERRA also protects returning servicemembers from discharge without cause for six (6) months after the date of reemployment in cases of military service of 31-180 days, and for one year in cases of military service in excess of 180 days.

24

www.HRProfessionalsMagazine.com

Individuals are not entitled to the rights provided under USERRA if their separation from service was with a dishonorable or bad conduct discharge or under other than honorable conditions. Further, the dismissal of a commissioned officer under certain circumstances involving a court marshal or by order of the President in time of war disqualifies that individual from entitlement to USERRA rights and benefits.

An employer may refuse to reemploy a returning servicemember where changes in the employer’s circumstances would make reemployment impossible or unreasonable, where required qualification efforts and disability accommodations cause an undue hardship to an employer, and where the previous employment was for a brief, non-recurrent period.

Terms of Reemployment USERRA and its predecessors contained a unique concept referred to as the escalator principle. Basically, the law requires that each returning servicemember be placed in the organization at the level that he would have occupied but for the period of military service. With the exception of individuals with service-connected disabilities, the requirements vary depending on the length of the servicemembers’ military duty.

In the area of pay and benefits, USERRA rights vary depending upon whether they are seniority based or entitlements not based on seniority. Seniority rights are relatively easy to understand and apply. For example, most vacation accrual systems depend upon the length of an individual’s employment. A reemployed servicemember would be entitled to the accrual level that corresponds to the combination of military service and the period of employment with his employer. The requirements concerning benefits that are not based on seniority are much vaguer. The underlying principle is that servicemembers must be treated as if they are on a leave of absence. In short, they are entitled to participate in any rights or benefits not based on seniority that are available to employees on similar non-military leaves of absence.

USERRA requires employers to maintain retirement benefits just as if the employee were actually working. Military service must be considered service with an employer for vesting and benefit accrual purposes, and the employer is liable for funding any resulting obligation. USERRA’s requirements on health benefits are similar to those found under COBRA, except that the obligations apply to all covered employers, not simply those with twenty (20) or more employees. If an individual’s healthcare coverage were to terminate because of an absence due to military service, the individual may choose to continue the plan coverage for up to eighteen (18) months after the absence begins, or for the period of service, whichever is the shorter period of time. If the individual’s military service is for thirty (30) or fewer days, he cannot be charged more than he would normally pay if he were actively employed. Importantly, neither waiting periods nor exclusions may be imposed upon the reinstatement to health coverage that would have been provided had the individual not been on military leave.

This article has only touched on the highlights of USERRA. This is a relatively complex law, and anyone encountering a situation dealing with it should seek legal guidance.

Elmer E. White III The Kullman Law Firm eew@kullmanlaw.com www.kullmanlaw.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

Fisher & Phillips Named

Law Firm of the Year

About “Best Law Firms” The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. To be eligible for a ranking, a law firm must have at least one lawyer listed in 20th Edition of The Best Lawyers in America© list for that particular location and specialty.

About U.S. News & World Report U.S. News & World Report is a multimedia publisher of news, consumer advice, rankings, and analysis. Focusing on Education, Health, Personal Finance, Travel, Cars and News & Opinion, www.usnews.com has earned a reputation as the leading provider of consumer advice and analysis that helps its readers make informed life decisions.

JEFF WEINTRAUB

TOM BIRCHFIELD

Regional Managing Partner Memphis

Regional Managing Partner Louisville

Fisher & Phillips LLP has been named 2015 “Law Firm of the Year” for Labor & Employment Litigation by U.S. News - Best Lawyers. The firm also received “First-Tier Rankings” for its Employment and Labor Law practices. Additionally, 21 of the firm’s offices received “Metropolitan Tier 1 Rankings” for Employment Law, Labor Law, Employee Benefits and/or Labor and Employment Litigation. They are Atlanta, Boston, Charlotte, Cleveland, Columbia, Dallas, Denver, Fort Lauderdale, Irvine, Kansas City, Las Vegas, Louisville, Memphis, New Jersey, New Orleans, Orlando, Portland, ME, Portland, OR, San Diego, San Francisco, and Tampa. The firm has been included in all five editions of the prestigious rankings.

About Best Lawyers Best Lawyers is the oldest and most respected attorney ranking service in the world. For more than 30 years, Best Lawyers has assisted those in need of legal services to identify the attorneys best qualified to represent them in distant jurisdictions or unfamiliar specialties. Best Lawyers lists are published in leading local, regional and national publications across the globe. The Best Lawyers in America list recognizes the very best lawyers in each practice and metropolitan region in the country.

Fisher & Phillips is dedicated solely to representing employers in labor and employment matters with 300 attorneys in 31 offices.

Firm Chairman and Managing Partner Roger Quillen said: “This is a welcome and well deserved recognition of our excellent litigators throughout the firm. Clients appreciate the litigation skills and experience we provide and have reflected that in their support of this year’s honor. We appreciate our clients’ loyal support. The local honors we've received this year also reflect the high level of service all of our lawyers are delivering across the nation.”

Firms included in the 2015 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a “First-Tier” ranking signifies a quality law practice and breadth of legal experience and knowledge.

The 2015 rankings are based on the highest number of participating firms and the highest number of client ballots on record. To be eligible for a ranking, a firm must have a lawyer listed in The Best Lawyers in America, which represents the top four percent of practicing attorneys in the United States. Fisher & Phillips has 85 attorneys listed. More than 17,000 attorneys provided almost 600,000 law firm assessments and nearly 7,500 clients provided more than 40,000 evaluations.

Fisher & Phillips LLP is a national law firm committed to providing practical business solutions for employers’ workplace legal problems. Labor and employment law is all the firm does, offering deep and broad knowledge and experience in the area of the law the attorneys know best. Fisher & Phillips attorneys help clients avoid legal problems, are dedicated to providing exceptional client service, and are there when you need them. The firm has 300 attorneys in 31 offices. The offices are in 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, and Washington, D.C. 26

www.HRProfessionalsMagazine.com

Focusing on Corporate Relocation Services: • Home Sale Programs • Destination Services • Expense Management • Policy Development • Customized Services

(877) 898-9640

info@focusrelocation.com

Leaves Of Absence Under The Pregnancy Discrimination Act

W

By ROBIN B. TAYLOR

While the PDA does not specifically require employers to provide leave for pregnancy, it requires employers to provide leave to pregnant employees on the same basis that it provides accommodations to non-pregnant employees. Inconsistent application of leave policies, including exceptions made on a local level, present common pitfalls for employers. In addition to complying with the Americans with Disabilities Act (ADA), employers dealing with leaves of absence must be aware of requirements and issues which arise under the PDA.

A. Requirements of the PDA The PDA amended Title VII of the Civil Rights Act, which covers employers with 15 or more employees and prohibits discrimination against individuals because of their race, color, religion, sex, or national origin, by defining the phrase “because of sex,” to include “pregnancy, childbirth, or related medical conditions.” 42 U.S.C.§ 2000e(k). The PDA provides that women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. The PDA does not specifically require employers to accommodate pregnancy, but it does require that employers provide accommodations to pregnant employees on the same basis that it provides accommodations to non-pregnant employees. Id. A normal pregnancy, absent complications substantially limiting a major life activity, is not considered a disability under the ADA. However, if there are complications that cause a pregnant individual to meet the definition of qualified individual with a disability, the employer will need to engage in the interactive process to determine whether a reasonable accommodation exists. 29 C.F.R. 1630, et seq.

B. Leave Policies Under the PDA The PDA “protect[s] female workers from being treated differently from other employees simply because of their capacity to bear children.” Int’l Union v. Johnson Controls, Inc., 499 U.S. 187, 205, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991). The PDA does not require employees to provide pregnant employees a “most favored nation status.” Young v. UPS, Inc., 707 F.3d 437 (4th Cir. 2013). “[T]he language of the statute simply does not address the right of a pregnant employee, fully able to work, to receive benefits that are different from, and arguably superior to, the benefits available to other employees.” Armstrong v. Flowers Hosp., 33 F.3d 1308,

1316-17 (11th Cir. 1994). To the contrary, the PDA is not meant to provide preferential treatment to pregnant employees. Id. but see EnsleyGaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996) (suggesting the need to treat pregnant employees who need light duty better than other employee with a similar medical need which arose off-the-job) (the Young court noted that “no other circuit has followed Ensley-Gaines”). “The [PDA] does not, despite the urgings of feminist scholars, require employers to offer maternity leave or take other steps to make it easier for pregnant women to work—to make it as easy, say, as it is for their spouses to continue working during pregnancy.” Troupe v. May Dep’t Stores Co., 20 F.3d 734, 738 (7th Cir. 1994).

Employers may enforce attendance policies against pregnant employees, provided they enforce such policies in a non-discriminatory manner. See Stout v. Baxter Healthcare Corp., 282 F.3d 856 (5th Cir. 2002) (upholding termination of probationary employee who suffered a miscarriage which resulted in absences in excess of that permitted by the employer’s probationary employee attendance policy, concluding that her termination was not “because of ” her pregnancy). Employers likewise may enforce work requirements against pregnant employees, provided they do not enforce such policies in a non-discriminatory manner. See Spivey v. Beverly Enterp.

Inc., 196 F.3d 1309 (11th Cir. 1999).

An employer is only required to treat a pregnant employee the same as other employees whose medical conditions arose off-the-job. While the PDA does not require that employers provide employees with pregnancyrelated leave, employees may be entitled to pregnancy leave under the FMLA. The FMLA requires that covered employers grant 12 weeks leave to eligible employees “because of the birth of a son or daughter” or because of a “serious health condition that makes the employee unable to perform the functions of the employee’s job,” among other reasons. 29 C.F.R. § 825.112.

The FMLA also provides for the reinstatement of the employee and prohibits interference with or discrimination due to the employee’s exercising of these rights. The Guidelines issued by the Department of Labor provide that “any period of incapacity due to pregnancy, or for prenatal care” is an impairment or illness that constitutes a “serious health condition.” DOL Wage and Hour FMLA Guidance, available at http:// www.dol.gov/whd/regs/compliance/1421.htm. In addition, the Guidelines provide that absences attributable to incapacity for pregnancy qualify for FMLA leave even though the employee may not be receiving treatment from a health care provider during the absence, and even if the absence does not last more than three days. Id. For example, an employee with severe morning sickness which interferes with the employee’s ability to work may qualify for FMLA leave.

In addition, if pregnancy-related complications rise to the level of a disability, an employee may be entitled to take leave as a reasonable accommodation of her disability.

C. Conclusion The interplay between company policy and numerous federal and state laws governing leaves of absence presents a significant challenge for employers.

Successful navigation of these waters requires an understanding of the laws that apply to a particular workplace, consistent application of company policy, and a methodical approach to evaluating leave of absence issues.

Robin B. Taylor, Attorney Ogletree Deakins robin.taylor@ogletreedeakins.com www.ogletreedeakins.com www.HRProfessionalsMagazine.com

27

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 28

d o e s

n o t

www.HRProfessionalsMagazine.com

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 .

Employment of Unauthorized Workers Although an employer may only be sanctioned for “knowingly” hiring or employing an undocumented worker, it is usually advisable for the immigration compliance attorney to identify any employees who appear to be undocumented based upon their documentation. If such employees are discovered, an investigation can be conducted to determine the employees’ status. This step is especially important if the employer has previously had an ICE inspection. If a worker is found to be unauthorized, he/she should be terminated.

Common Errors

HOW TO

Conduct an I-9 Audit

By BRUCE E. BUCHANAN

W

ith the increasing chances of your I-9 forms being inspected by Immigration Customs & Enforcement (ICE) and resulting in a substantial fine, employers should protect themselves by conducting I-9 self-audits. In my experience of inspecting I-9 forms, over 75% of them have substantive errors, which if uncorrected, will cause ICE to issue a fine.

There are a number of issues with an I-9 self-audit - who should perform the I-9 audit, the pitfalls of a company performing an I-9 audit without an attorney’s guidance, and the proper way to correct I-9 form errors.

Who Should Conduct the I-9 Audit?

There are several options: the human resources department, an immigration compliance attorney auditing all I-9 forms, an immigration compliance attorney auditing a percentage or sampling of the I-9 forms, or an immigration compliance attorney supervising an I-9 audit conducted by the HR department. I recommend an immigration attorney audit all of the I-9 forms, if the company has less than 100 employees, or all of the I-9 forms, if the company has sufficient financial resources. Alternatively, the next best choice is for an immigration compliance attorney auditing a percentage of the I-9 forms. If this choice is made, the immigration compliance attorney will identify the errors on the I-9 forms and how to correct them, if possible.

Then, using this sampling of information, a HR representative should be able to review the remaining I-9 forms for errors and seek the guidance of the attorney on any outstanding questions.

I do not recommend the HR department conduct the I-9 audit by themselves for two reasons. One, if the HR representative is the same person who completed Section 2 for the employer, it is just human nature not to locate your own errors. Two, the HR representative reviewing the I-9 forms may not have the training on how to properly correct and annotate the I-9 form, according to ICE’s standards. ICE has stated it has witnessed many additional errors when the HR department attempts to conduct an I-9 audit without an immigration compliance attorney.

Missing I-9 Forms The first step in an I-9 audit is to take the current payroll report and determine whether each current employee has an I-9 form. (However, if an employee was hired before November 7, 1986, an I-9 form is not required.)

Unfortunately, most companies are missing I-9 forms for a few employees.

Once that determination is made, I-9 forms should be completed for all employees without one; but do not backdate the I-9 form for when the employee and employer signed it.

There are a number of common errors on I-9 forms, including the following: (1) Employee fails to check a status box or checks more than one box; (2) Employee fails to sign or date in Section 1; (3) Alien Number (A#) missing altogether or in Section 1 (but listed in Section 2 or on legible copy of document); (4) Failure to list document information in Lists A, B, or C; (5) Untimely preparation of Section 1 or 2 – not on the first day of employment in Section 1 or within three days of first day of employment in Section 2; (6) Employer certification in Section 2 not completed or not fully completed; and (7) Over-documentation – having information in Lists A, B and C or Lists A and B or Lists A and C.

Correcting Errors on the I-9 Forms Many of the violations on the I-9 forms can be corrected, which will mitigate or entirely eliminate the potential penalties. However, it is important to understand the basic rules for correcting errors. Section 1 corrections should be made by the employee and Section 2 and 3 corrections by the employer.

For corrections in Section 2, it should be the individual who originally reviewed documents and signed the certification. If that person is no longer employed and there are many corrections, it is best for a new I-9 form to be completed. If that person is no longer employed and there are only a couple of corrections, then sometimes another HR employee can make the corrections.

The best practice for correcting an error is to draw a line through the incorrect information, enter the correct information, and initial and date the correction in a different color pen. If the I-9 form is missing data, such as title of document or expiration date, one should add information to existing I-9 form and initial and date the addition. If information is in the wrong list, i.e., Social Security information in List B or driver’s license in List C, draw an arrow to the correct list, initial and date the correction. If too much information is completed in Lists A, B and/or C, cross-out the unneeded information, initial and date the correction.

To correct multiple errors on an I-9 form, you may complete a new I-9 form and attach it to the old form. Do not discard the old I-9 Form if you used a new I-9 form to correct the errors. Additionally, one should include a note or memo concerning the reason for making changes to the existing I-9 form or completing a new I-9 form.

Conclusion Increasing enforcement efforts by ICE have resulted in larger fines and settlements for violations –up to five and six-figures in recent cases. The purpose of sharing this information with employers is to raise awareness about the current state of I-9 Compliance and the need for regular I-9 audits. Likewise, the information contained in this article is general in nature and should not be relied upon as legal advice for any company’s specific situation or as a substitute for retaining immigration counsel. To stay up-to-date on the latest developments in I-9 Compliance, visit my blog at www.EmployerImmigration.com and stay tuned for the next issues of HR Professionals Magazine.

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

29

my permission. Since there was no chance that I would have every discovered this, this person’s actions spoke volumes about his honesty and integrity. There is perhaps no better way for a leader to develop trust than to tell the truth, especially in situations where that truth would not likely have been discovered.

Do the right thing One of the easiest ways for a leader to lose trust is to do what is convenient and beneficial for them rather than what is right. This sets up a culture where staff feel justified to primarily look out for themselves rather than doing what is most beneficial for the organization. Doing the right thing usually means doing the most difficult thing even if it means taking a personal risk. Leaders who do this are held up as examples of integrity for others to follow. If the leader has made a mistake, coming clean and owning up to the mistake will earn the respect and trust of those under them. This has been shown to be the case with great political leaders such as John F. Kennedy when he demonstrated to be vulnerable by admitting they have made mistakes.

7 Essentials

for Leaders to Develop Trust

By HARVEY DEUTSCHENDORF

“ If you tell the truth, you don’t have to remember anything.” ~ Mark Twain ~ There is, perhaps, nothing that harms an organization more than a lack of trust in those leading it. Yet trust seems to be a very fickle idea, very challenging to develop and maintain, yet so easy to destroy.

Developing a culture of trust in organizations is a difficult, painstaking journey, but if the will is there, it can be done. Trust must begin from the top to be developed throughout an organization.

If top management is not trusted it gives the perception that it is everyone for themselves and opens up rationale for building a culture of mistrust.

Here are seven essentials for leaders to develop trust:

Confident in their own abilities A leader who is not confident in themselves or was promoted on reasons other than merit, will always be looking over their shoulders; always fearing they will be found out or someone better will be looking to take their job. Such a leader will have a difficult time trusting those under them and will not inspire trust amongst their staff. Confident leaders are secure in their own skin and not worried about how they will appear to others. This will allow them to make the right decisions without worrying what others will think of them.

Always tell the truth Leaders who are trusted tell the truth even when it is easier and more convenient to lie or leave out embarrassing facts. They also come clean and "tell all" in situations where there is little or no chance that the truth will be discovered. I remember receiving an email from someone at a college apologizing for referring to my book without 30

www.HRProfessionalsMagazine.com

Consistent with their message to their superiors and their staff A sure way to develop a culture of mistrust is for managers to be found saying one thing to those in positions above them and another way to their staff. This makes staff feel like they are being used to make their manager look good and win them a promotion. This is a not a good way to build motivation and trust in the workplace. Trust is developed when staff are confident their management will have a consistent message regardless of the audience. Leaders who have a consistent message to their superiors and staff will be perceived to be working for the overall good of the organization rather than for their own personal advancement.

Share accurate information in a timely manner In the absence of accurate and timely information, rumors spread. Often the rumors paint a worse picture of the situation than would exist if the truth were told. Withholding information gives staff the message they are not to be trusted to know the truth and therefore sets up a culture of suspicion and mistrust that rumors will only feed and fuel. Weak leaders see information as power and will attempt to withhold information as a means of maintaining control over their reports. Strong leaders look for ways to empower those under them and sharing information quickly is one way that they can achieve this.

Communicate vision, values and abide by them A sure way to lose trust in an organization is for management to be seen as having one set of rules for themselves and another for their staff. If there is a value statement that management has developed for the organization, they need to ensure they follow those values themselves before expecting their staff will follow them. If not, staff will see the values as a way to manipulate and control them rather than a set of values that would guide and motivate everyone in the organization to strive towards a shared goal.

Treat everyone fairly and give credit where due One of the most common complaints in the workplaces is favoritism and unfair treatment. Treating everyone fairly, consistently and give credit to those who deserve it is one of the most difficult things for leaders to do. We all have our own biases and certain people appeal to us more than others. One of the challenges of leadership is to see beyond personal preferences and clearly see the value that each person brings to the organization.

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

Good Faith Outreach Efforts = Building Personal Relationships: Make it Happen – NOW!

O

By TIM ORELLANO

On March 24, 2014, the Office of Federal Contacting Programs implemented game changing regulations for federal contractors in the preparation and implementation of Affirmative Action Plans (AAP) for Individuals with Disabilities (IWD) 503 regulations and Protected Veterans Section 4212 and disability 503 regulations As Nike says in their tag line “Just Do It”. Many of you have done it very well, some of you sort of have done it and some have not done it.

These are game changing regulations with more reporting in AAP preparation and compliant obligations for all federal contractors.

Veteran Section 4212 (VEVRAA) and the Disability 503 regulations require the following: The number of applicants who self-identified as protected veterans and IWD; The total number of job openings and total number of jobs filled; The total number of applicants for all jobs; The number of protected veteran applicants and IWD hired; and, The total number of applicants hired.

Under the new regulations, federal contractors must annually evaluate utilization of Individuals with Disabilities (IWD) in each EEO-1 job group in the AAP. If utilization is less than the goal currently 7%, you must determine if there are impediments or problem areas that exist.

Under the VEVRAA benchmark currently, 7.2% you must conduct the same evaluation. This is accomplished by assessing personnel processes, effectiveness of out reach and recruitment efforts, results of affirmative action program audit and any other areas that may be relevant. Then you must develop and execute action oriented programs designed to correct any identified problem area(s).

Here are tips and strategies to help you Make It Happen employment office or the business to recognize a) Document meetings with managers concerning email. If you use a third your veterans and expanded out reach efforts party vendor, be sure they their families. are tracking jobs. and sources. j) Emphasize any efforts g) Include any community for veterans and persons b) Develop a good faith efforts binder to centralize involvement such as with disabilities. Explore united way, blood drives, all company good and contact local sponsoring of events, and faith efforts. recognition of veterans or employment network c) Post jobs on diversity groups, organizations, or persons with disabilities. websites. centers for independent h) Review your company living near your facilities d) Keep track of all marketing material and which accept job vacancy job fairs, job postings, web site to shows pictures contacts, company tours, announcements of your employees or ads, letters, etc. people to include females, k) Target qualified covered e) Measure and evaluate minorities, veterans and veterans during company recruiting efforts. persons with disabilities. career days and related community activities in f) Take a screen shot of all i) Celebrate Veterans Day job postings with the state or another day at the which you participate.

Suggested web sites: l) OFCCP’s updated Disability and Veterans Community Resources Directory on the OFCCP Web site at http://www.dol-esa.gov/errd/resources.html. This database is a list of several governmental and non-governmental not-for-profit organizations that could refer qualified protected applicants such as Veterans, women, minorities or individuals with disabilities to federal contractors and sub contractors to assist contractors with establishing relationships with national organizations and local community groups that have access to these workers.

2) This web link is an excellent resource for helping you in your efforts. www.AmericasHeroesAtWork.gov/forEmployers/HiringToolkit 3) Hero2hire is free web site that assists reserved service members with job placement. www.h2h.jobs 4) Others are https://www.ebenefits.va.gov/ebenefits/how-to-post-jobs; www.employerpartnership.org; https://www.nrd.gov/home/veterans_job_bank.

For those of you that have implemented an effective out reach program to recruit the best talent to include veterans and persons with disabilities you get a gold medal.

5) State employment agencies have Veterans representatives who can assist you with finding veteran talent. Search www.servicelocator.org

The days of a lackadaisical approach to this are over. Under the new regulations, the record keeping and aggressive approach of OFCCP to see and measure the documented good faith efforts and results is part of their audit agenda.

6) Each of the military services has a wounded warrior program and most of them activity seek to connect with employers who are interested in hiring veterans with disabilities.

Patricia Shiu, Director of the OFCCP, considers documented good faith efforts and results in attaining goals and out reach a top priority as part of their audit agenda. She has publically stated an aggressive approach for complete compliance during audits with a continued emphasis in hiring and a priority in the results of good faith efforts in recruiting and hiring of veterans and persons with disabilities.

7) Federal government programs have a significant incentive and tax credits to hire Veterans and Veterans with Disabilities, and the Office of Personnel Management (OPM) websites FedsHireVets.gov. http://www.dol.gov/ofccp/regs/compliance/ resources_tax.htm

Take outreach very seriously to identify sources to increase and ensure minorities, females, veterans and persons with disabilities know how to apply for open positions and track referrals as part of your applicant and hiring process.

Throughout the year you should maintain a log of all communication and any documentation of your efforts with colleges, universities, community groups, veterans’ affairs, disability vocational schools, letters, personal contacts, and targeted agencies.

You must document your efforts such as letters, personal visits, job fairs, posting of jobs with the local state employment services, veteran affairs agencies, community job placement agencies, vocational schools and participation in other employment and outreach activities where women or minorities, veterans or persons with disabilities may be recruited and record referrals as part of your applicant and hiring process.

Develop a business recruiting strategy and document your company’s outreach programs, targeted recruitment activities, and other community volunteer programs that demonstrate good faith efforts towards affirmative action goals.

Review success of outreach efforts and identify new ones if results are not attained. I highly recommend 3-5 veteran and persons with disability recruitment sources that a recruitment relationship and process has been established.

8) There are many fee based internet sites that are more affordable that a newspaper ad and provide the record keeping. Two of them are: Local Job Network and Americas Job Exchange. They have government compliance solutions provide job posting tools and solutions that are invaluable during an OFCCP audit. http://www.localjobnetwork. com/a/4590 and http://www.americasjobexchange.com/employer/ofccp-compliance 9) Entities funded by the U.S. Department of Labor that provide recruitment or training services for individuals with disabilities, some of which are available at http://www.askearn.org/refdesk/recruitment/job_posting 10) Organizations at colleges and universities that advocate for students with disabilities and accept job postings and private recruitment sources such as professional organizations or employment placement services that specialize in placement of individuals with disabilities.

There are many ways and opportunities to recruit veterans who have talents to fill your openings. Your Affirmative Action Plan in 2015 will include specific measurements to determine if you made it happen. Implement and do it now or OFCCP will do it for you and it won’t be fun.

Tim Orellano, President The Human Resources Team timorellanohrteam@comcast.net www.thehumanresourcesteam.com www.HRProfessionalsMagazine.com

31

`

Financial Planning has never been more important than it is today! Changes in the economy, taxes and interest rates have made every financial picture more complex than ever before.

We focus on: Financial Needs Analysis Retirement Income Planning Disability Income Protection Life & Health Insurance Long Term Care Insurance Guaranteed College Scholarships College Funding Solutions Executive & Employee Group Benefits Charitable Contribution Strategies

32

www.HRProfessionalsMagazine.com

Wellness Southern Style

By ELISABETH A. DOEHRING

This is Part 3 of 3 articles on health and wellness trends in Tennessee, Mississippi, and Arkansas.

Like Mississippi, human resource professionals in neighboring Arkansas and Tennessee face many of the same cost and employee challenges. Yet these two states also view wellness programs with a keen eye on employee wellbeing and increased productivity.

Both states share in a broad range of impactful initiatives.

Arkansas Role Models

Lowered Costs with Brokers and Free Resources According to the Centers for Disease Control in 2012, the prevalence of self-reported obesity for adults in Arkansas is 34.5%. Richard Jones, SPHR, and Human Resources Director for the City of Fort Smith follows these statistics. Explains Jones, “Obesity is the biggest challenge for our employee and dependent population.”

On the job since 2001, Jones knows the value of a healthy workforce. In 2008, the City of Fort Smith decided to remove as many obstacles as possible to ensure the success of their program.

Jones and his team worked with different wellness partners, including health providers and hospitals. “Brokers are an integral part of the overall picture of our wellness program,” he says.

The City of Fort Smith awards or penalizes employees $900 per year if they make or miss the BMI of 30. If an employee obtains a physician’s note stating that he or she is working to reduce a specific BMI the employee is then granted a pass.

Weight loss is integral. Medical studies show that weight significantly affects diabetes, blood pressure, cholesterol, COPD, and sleep apnea.

Arkansas Hunger Alliance is a new and free education tool. The Alliance teaches City of Fort Smith employees how to buy food at the local grocery. “They teach our team not only sensible and cost effective shopping techniques but also how to prepare these same produces and meats.

Today’s food is so altered and processed. Maybe Congress needs to do something about packing in the high fructose ingredients into American diets. It was never meant to be there in the first place,” explains Jones.

Communication is high profile with Fort Smith City employees. Regularly scheduled email blasts and posted paper flyers keep employees informed.

Comprehensive physicals are offered every five years, covering both employees and their dependents. Physicals are administered at nearby Sparks Hospital. Co-pays are waived.

“The best measure of overall cost effectiveness is that over an 11 year trend we have only incurred a 3% yearly increase in overall costs for our health plan,” says Jones. This bodes well for Jones. In a 2012 SHRM article, the Kaiser Family Foundation reported a 5% increase for family coverage and a 4% increase for single coverage.

Jones remains vigilant. His mantra for other HR and benefits professionals is “Don’t give up. Keep trying.”

Onsite Employee Clinic and Fresh Farm-to-Work Headquartered in Fort Smith and listed on NASDAQ, ArcBest Corporation (ARCB) is a logistics and transportation company. Rich Krutsch serves as Director of Human Resources Program Administration. With over 13,000 employees in the continental United States, Canada and Puerto Rico, ABC is one of Arkansas’ top employers.

“We take a holistic approach,” says Krutsch. An onsite health clinic was recently rolled out. Over 1,300 employees now utilize clinic services. In total, the company has touched 2,400 covered lives. Offsite ABC employees visiting Fort Smith have access to the clinic. While employees have free access, dependents have a $15 copay. Clinic services include yearly physicals, treatment for routine illnesses and chronic diseases, and prescriptions.

A shift in culture was evident when an IT employee suggested an onsite farmers’ market. The company now invites and screens local produce vendors.

Employees shop and take home fresh peaches, tomatoes, peppers, beans, squash, and zucchini from nearby farms. Healthy recipes are posted on the intranet, through the online benefits newsletter Focus, and via email.

“Making health and wellness part of our cultural DNA is our objective. We had an 84-page manual on periodic maintenance of tractors, but, on people, we were lacking,” explains Krutsch. “Now we are headed in the right direction.”

Making health and wellness part of our cultural DNA is our objective. www.HRProfessionalsMagazine.com

33

Tennessee Role Models

According to the CDC, in 2012 the prevalence of self-reported adult obesity in Tennessee was 31.1%. HR and business leaders in the Volunteer State have taken notice of these trends. Bold initiatives of all sizes dot the landscape.

According to the CDC, in 2012 the prevalence of self-reported adult obesity in Tennessee was 31.1%.

It Starts At the Top American Blue Ribbon (ABR) Holdings is one of the largest restaurant holding companies in the United States. Eateries include O’Charley’s, Legendary Baking, Max and Erma’s, NinetyNine Restaurant and Pub and Village Inn. Based out of Nashville, Tennessee, the company has 320 employees at 4 corporate locations in Nashville; Denver, Colorado; Woborn, Massachusetts; and Columbus, Ohio. In total over 30,000 team members make up the payroll.

Roslian Humphrey, Senior Benefits Administrator, just rolled out the first phase of ABRH’s new wellness initiative. “A Better Routine for Health” is ABR’s employee-named and employeeembraced program. It kicked off on June 2, 2014. Team member challenges engage employees in various forms of movement for at least 4 hours a week. Physical activity includes walking, running, and mowing the grass. All activites are recorded. “Free” fits into Humphrey’s game plan.

A free tracking system “Start Walking Now” from the American Heart Association National Walk Day was recently implemented. Employees enter their fitness information on the honor system over a six-week program.

ABR also partnered with Vanderbilt University’s Corporate Health Initiatives, one of the nation’s top health and wellness pacesetters, in setting up lunch and learns at the university outpatient meeting site. Registered dieticians lead employee-team lunch and learns. Vanderbilt also offers sessions on work/life balance, yoga and healthy eating for ABR employees. First ever health risk assessments were set up during 3rd quarter of 2014, in conjunction with open enrollment.

“With increased pricetag of the ACA, we were faced with challenges to mitigate the cost. This is when we rolled out the first phase of our wellness,” says Humphrey.

CEO buyin is key. Hazem Ouf, CEO/President of ABRH has given his full support to “A Better Routine to Health”, adds Humphrey. “Employees are excited that we are looking out for their work-life balance. It resonates that our company clearly cares.”

Smaller Employee Workforces Benefit From Wellness Based in Memphis, the Cotton Board is a quasi-governmental agency that manages the financial and promotional aspects of the cotton industry both globally and in the United States.

“Team Cotton” is the group’s active wellness program. On Friday mornings a walking club assembles in a nearby public park. Weekly walks take place on worktime.

HR Manager Emily Wyonzek says, “Teams have proved to be super successful.” A cardio challenge is held 30 minutes a day. In addition employees participate in teambuilding events like the St. Jude 5K Run/Walk as well as a tour of St. Jude.

Twelve people make up the staff. Food plans are organized. Health-based team meals incorporate what Wyonzek calls “mindful eating”. By team-decision desserts have disappeared. To further inform employees Wyonzek prints out nutrition information on all foods served during workhours. Registered dieticians also conduct lunch and learns.

As part of a CDC study a first biometric screening was conducted in summer 2013. Results were eye-opening.

All team members lacked health-focused nutrition.

Over 80% of employees were in the red zone. “I’m a runner. And I was in the yellow group. That surprised me! It was a wakeup call for our entire team. Now we’re on the right path,” explains Wyonzek.

Branded and Built to Last “Built to Last” (B2L) is Radio Systems Corporation’s (RSC) eight-year employee wellness brand.

The pet safety company is based in Knoxville. RSC is a maker of PetSafe®, Invisible Fence®, and SportDog®.

With 350 team members in Tennessee, the company also has a 600 member global workforce in Canada, China, Ireland and Japan. Beca Wilson serves as Radio Systems Corporation Wellness Manager.

Most Knoxville employees work 8 am - 5 pm. From 11 am - 8 pm an extensive workteam serves west coast customers.

B2L consists of biometrics, health risk assessments, and risk stratification levels (low, medium, and high).

Once employees gain their specific levels they then have access to the onsite primary care medical clinic.

In addition to direct medical care, RSC’s medical site offers wellness coaching and nutritional counseling.

An onsite farmers market is held annually. Trucks pull up to the east Tennessee site. Farm-fresh produce is unloaded for eager employees. Healthy cooking demonstrations are held at the office headquarters.

Employees also have access to a monthly newsletter, intranet shared recipes, as well as weekly walking groups.

Results have paid off. “With those employees who first enrolled in our BTL program eight years ago we’ve seen a significant migration towards overall health improvement scores,” says Wilson.

On The Road to Wellness In The Deep South

The States of Arkansas, Mississippi and Tennessee are making significant strides in worksite wellness.

Human Resources professionals are working to add to their employees’ wellbeing through resilient wellness offerings. The result is a more engaged workforce and increased productivity and growth. Take notice--the Southeast is changing its course of eating, fitness, and now reaching for more optimum health.

Elisabeth A. Doehring, CWWPM,GPHR, PHR President, North American Center for Worksite Wellness™ nacworkwell@gmail.com 34

www.HRProfessionalsMagazine.com