Volume 9 : Issue 2
TM
www.HRProfessionalsMagazine.com
HR Technology Issue
Preview of 2019
HR Technology Conference
How the Freelance Economy is Changing HR Strategies in 2019
Are You Ready
for Blockchain?
Juanita Phillips,
SHRM-SCP, SPHR
ALSHRM
Preview 2019 SHRM Employment Law & Legislative Conference
Co-director of Government Affairs
Keeping up with changing laws is a full-time job, and you’ve already got one. EMPLOYERS AND LAWYERS, WORKING TOGETHER Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. The firm has more than 850 lawyers located in 53 offices across the United States and in Europe, Canada, and Mexico.
www.ogletree.com BIRMINGHAM OFFICE
JACKSON OFFICE
MEMPHIS OFFICE
420 20th Street North Suite 1900 Birmingham, AL 35203 205.328.1900
207 West Jackson Street Suite 200 Ridgeland, MS 39157 601.360.8444
International Place, Tower II 6410 Poplar Avenue Suite 300 Memphis, TN 38119 901.767.6160
Bringing Human Resources & Management Expertise to You
57 million
Americans are currently freelancing in some form or fashion. www.HRProfessionalsMagazine.com Editor
Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher
The Thompson HR Firm, LLC Online HR Certification Classes Art Direction
Park Avenue Design
Contributing Writers
Austin Baker Bruce E. Buchanan Tom Benton William Carmichael Harvey Deutschendorf George Ernst Billy S. Fawcett Brad Federman Jeanne J. Fisher LeeAnn Bailes Foster Ajay Gognan Murray L. Harber Jennifer Ivy Stuart Jackson Bill Kutik Brent A. Morris Katie O’Neill Finn Pressly Greg Siskind James B. Taylor Christian Valiulis Sonya Weathers Board of Advisors
Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR 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. ©2019 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.
Features
4 note from the editor
5 Profile: Juanita Phillips, SHRM-SCP, SPHR, ALSHRM Co-director of Government Affairs 7 Sixth Annual Best of Leadership Summit 2019 at the Kentucky Center March 6
9 Apply for WGU Tenn-K $10,000 Scholarship
14 Igniting a Fire in Each of Your Employees 40 Nip it Now: Workplace Harassment
42 Book Look: Turning People into Teams: Rituals and Routines That Redesign How We Work 49 Introducing Dr. Kurt Kraiger, Chair of Department of Management at the University of Memphis
HR Technology
12 How the Freelance Economy is Changing HR Strategies in 2019 13 Is Your Safety Manual Up to Date? 18 Are You Ready for Blockchain?!?
20 2019 and Beyond: Hiring Technology Tools HR Must Understand 21 ADP Easy and Accurate Payroll and HR Solutions
22 The Trends that Will Shape HR in 2019 32 State of the Art Compensation Management
46 Embracing Payroll Technology – What to Consider When Choosing a New Provider
Employee Benefits 17 Greater Memphis Employee Benefits Council Meeting January 3, 2019 23 Customized Benefits Solutions for HR Teams and Brokers
Employment Law
10 Federal Employee Leave Laws vs. Georgia Employee Leave Laws 16 When Less is More . . . Problems with “100% Healed” Return-to-Work Policies 24 Immigration Law Update on H-1B Visas and I-9 and E-Verify 28 Medical Marijuana in Arkansas: A 2019 Update 34 Proposed Rule Expands HRA Usage and Forecasts Safe Harbors for ACA Employer Mandate Compliance 36 No-Match Letters Returning 38 New Directives from the OFCCP: What they Mean for Federal Contractors in 2019
Industry News
6 Preview of SHRM-Atlanta SOAHR Conference March 25-27 8 Preview of SHRM Employment Law & Legislative Conference in Washington, D.C., March 18-20 33 Preview of ARSHRM 2019 HR Conference and Expo in Hot Springs April 3-5 44 Highlights of SHRM-Memphis Member Mixer January 8 45 Preview of SHRM-Memphis HR Excellence Awards February 26 50 Preview TN SHRM Strategic Leadership Conference in Nashville April 26 51 Preview of 2019 HR Technology Conference in Las Vegas October 1-4 March 2019 issue features Profiles of Rising Stars from Chambers USA and Super Lawyers plus Employment Law and Employee Benefits Updates Deadline to reserve space February 10
26 Musculoskeletal Disorders: Painful for Both Employees and for Employers 30 New Year, New Plan . . . New Advisor? 48 Integrating Mental Health as Part of Overall Health
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a note from the editor
Welcome to our HR Technology issue!
Please join me for one of SHRM's most exciting
year when we bring you the latest in technology
Capitol Hill with the Tennessee SHRM A-Team and
This is one of our most exciting issues every in the HR community. We have some fantastic
and educational annual conferences, the SHRM Employment Law & Legislative Conference in Washington, D.C. March 18-20. I can't wait to go to meet with our legislators about the issues impacting our
articles about the hot topics in HR technology
workforce in Tennessee! I highly recommend that you
today including “How the Freelance Economy
join your state's A-Team and get involved! See Page 8
is Changing HR Strategies,” by Tom Benton with
for details! We will bring you Facebook Live coverage.
WorkMarket, an ADP Company. Check out Bill
Just LIKE our Facebook page to receive
Kutik's article, "Are You Ready for Blockchain?!?”
the live updates.
Kutik is best known as the founding co-chair and guiding light of the magazine's annual HR
Mark your calendar for February 21st when we will
Technology Conference & Exhibition® since
be bringing you our monthly complimentary webinar
it began in 1998 until 2013, when he stepped
sponsored by Data Facts. You will earn 1.00 SHRM
aside. See the full page ad on our inside back
PDC and 1.00 HRCI recertificaton credits. Watch
cover for details about the 2019 Conference.
your email for your invitation. If you are not receiving an email invitation, please go to our website,
It is an honor to feature Juanita Phillips,
www.hrprofessionalsmagazine.com, and subscribe
SHRM-SCP, SPHR, Human Resources Director
to our digital issue. You will also receive breaking
at Intuitive Research and Technology Corpo-
news updates that impact HR as they occur.
ration, on our February cover. Juanita is from Huntsville, AL and is Co-director of Government
Get certified in 2019!
Affairs for Alabama SHRM. Juanita is very active in advocating for workforce policies that impact the state of Alabama. I know you will enjoy reading about Juanita’s amazing career in HR on Page 5. cynthia@hrprosmagazine.com cythomps@twitter
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Juanita on the cover
K. PHILLIPS
JUANITA K. PHILLIPS, SHRM-SCP, SPHR ALSHRM Co-director of Government Affairs Juanita Phillips has been a very active NASHRM (North Alabama SHRM) and SHRM member for over 20 years. She has served as President of NASHRM, and has been the Co-director of Government Affairs for the state of Alabama for many years. She has led SHRM’s Advocacy Team (A-Team) network for the state of Alabama since its inception. She organizes and leads two DC visits per year to bring HR professionals from around the state to talk with our Members of Congress and share perspective on how proposed legislation will impact employees and companies throughout our state. Her boss, Chairman of Intuitive Research and Technology Corporation, says of her: “During some of this country’s most turbulent and worst economic times Mrs. Phillips has been a leader in building a highly successful and nationally renowned business. To say she is admired by her peers and coworkers would be a tremendous understatement. She has the utmost respect of the entire company and the community. She is a steward of our company culture, and ensures the credibility of HR and its role as a resource to all employees. Her leadership has been instrumental in our being the recipient of many awards, including currently being named the #1 Medium-sized Company to Work for in the U.S. by the Great Place to Work Institute and Fortune Magazine. She is an expert in her field, and a leader in her field’s professional organization, SHRM. She is an advocate for small business and human resource issues not just for our company for the whole community.” Juanita serves on the Advisory Board to the School of Business at Oakwood University, Huntsville, AL and has served on the Board of Directors of ALOG Corporation. She has had the opportunity to testify in Washington, DC before the Senate HELP (Health, Education, Labor and Pensions) Committee and the following year before the House Subcommittee on Workforce Protections, both times on the topic of workplace flexibility as an advocate of both employees and small business. She has been interviewed for and published several articles, and is a member of North Alabama Business Ethics Roundtable (NABER), and Tennessee Valley Industry Liaison Group (TVILG). She is a proud recipient of the UNCF Community Service in Education Award.
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Federal Employee Leave Laws vs. Georgia Employee Leave Laws By BILLY S. FAWCETT and JAMES B. TAYLOR
Over time, federal law has expanded in both the variety and scope of situations where employees may have the right to seek leave from work. Georgia, however, has not enacted state laws that mirror or meaningfully expand upon federal employee leave laws. As a result, in Georgia, the only laws which provide substantial employee leave periods are the federal leave laws, including the Family Medical Leave Act (“FMLA”), the Americans With Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). Federal and Georgia Leave Laws, Generally: Upon receiving an employee’s request for leave, an employer should review the employee’s requested basis for the leave and determine whether federal leave laws apply. Employees may have an entitlement to leave where the request involves disability, the employee’s own serious medical condition, including pregnancy-related medical conditions, childbirth or adoption and newborn care, serious medical conditions of a close family member, the observation of a religious holiday or practice, and/or military deployment. However, while these federal leave laws apply nationally, most of these laws apply only to large employers with a substantial number of employees, leaving a “coverage gap” for employees of small businesses in Georgia. While Georgia state law does not provide leave comparable to federal law, Georgia does have some provisions requiring leave under certain conditions. For instance, Georgia recently enacted a sick leave law expanding the permitted uses of employerprovided sick leave. However, the new law did not create a right to leave for employees without employer-provided sick leave. Georgia law also provides for a minimal amount of employee leave in other, narrow situations. For example, O.C.G.A. § 34-1-3 provides employees with the right to take leave if the employee is subpoenaed or summoned for jury service. Another example is O.C.G.A. § 24-2-204, which, in most cases, provides employees with two hours of leave to vote. The Family and Medical Leave Act The FMLA is the primary source of job-protected leave for Georgia employees, and all covered employers should be familiar with its provisions. However, the FMLA does not apply to all employees in Georgia. This is because the FMLA only applies to employers who employ 50 or more employees within a 75-mile radius of the worksite of the employee seeking leave. Moreover, not all employees of covered employers are eligible for FMLA leave. In order to be eligible for FMLA leave, an employee must have been employed for 12 months and must have worked for the employer for at least 1,250 hours during the past 12 months. As such, many part-time and small business employees in Georgia may not qualify for FMLA coverage. For eligible employees of covered employers, the FMLA provides for up to 12 weeks (within a 12-month period) of unpaid, job-protected leave, during which the employer must ensure the continuation of the employee’s group health insurance. Under the FMLA, employees may take leave for: (1) an employee’s serious health condition that makes the employee unable to perform his or her duties; (2) the care for the employee’s spouse, child, or parent who has a serious health condition; (3) childbirth and the care for the newborn child within one year of birth; (4) the placement of an adopted or foster child with the employee and the care for that child; (5) exigencies due to an employee’s spouse, child, or parent’s status as a military member on “active duty;” and (6) the care of a service member with a serious injury or illness where the employee is the spouse, child, parent, and/or next of kin. Employees under this last provision are provided with up to 26 weeks of leave during a 12-month period. 10
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Georgia Laws Similar to the FMLA Unlike some other states, such as California, there is no state law equivalent to the FMLA in Georgia. In 2017, however, Georgia enacted a new “sick leave” provision, codified at O.C.G.A. § 34-1-10. The provisions of § 34-1-10 only apply where employers already grant sick leave to employees. In other words, the new law does not create any right to sick leave but only expands the permissible uses of existing, employer-provided sick leave. Employers that do not provide sick leave are not required to initiate a sick leave plan under the new law. Moreover, the new law applies only to those employees who work at least 30 hours or more per week for an employer with at least 25 employees and to employers who have a sick leave plan and employ at least 25 employees. The new law requires that employers who already provide sick leave permit employees to use up to five days of that sick leave per year to care for the illness of a child, spouse, parent, grandparent, grandchild, or anyone that the employee claims as a “dependent.” If an employer provides less than five days of sick leave per year, the employer must allow the employee to use all of his or her sick leave for the purposes set forth in the new law. Thus, while Georgia law does provide some expanded leave rights for employees who already enjoy employerprovided sick leave, it falls well short of providing a state law equivalent to the FMLA. Federal and Georgia Law on Pregnancy Leave Pregnancy is not considered a “disability” under the ADA or a “serious medical condition” under the FMLA. However, pregnancy-related medical conditions may be substantial enough to trigger leave rights under one or both of these Acts. For example, an employee who has a pregnancy-complication “disability” may be eligible for leave under the ADA as a reasonable accommodation. Likewise, to the extent that pregnancy-related illnesses would qualify under the FMLA as a serious medical condition allowing leave, leave may be required. In addition, the FMLA provides leave rights to eligible employees for childbirth and post-natal care. Georgia state law does not provide pregnancy leave for private employees (public employees may qualify for leave). Thus, pregnancy-related leave in Georgia is limited to the ADA or the FMLA, where they are applicable. Federal and Georgia Law on Disability Leave The federal ADA requires employers with 15 or more employees to provide reasonable accommodations to workers with disabilities. Reasonable accommoda-
tions may include modifying work schedules or providing periods of leave. The length of leave potentially allowed under the ADA varies based on the employee’s specific circumstances. Georgia does not have a corollary state-law version of the ADA applicable to private employees. Thus, private employees in Georgia must look to the ADA for disability-related leave rights. Federal and Georgia Law on Religious Leave Title VII generally requires employers with fifteen or more employees to provide employees with religious accommodations (including leave to observe religious holidays or attend services), unless doing so would create an undue hardship for the employer. In contrast, Georgia has no specific laws that require employee leave to accommodate an employee’s religion. Federal and Georgia Law on Domestic Violence Leave Under the FMLA, victims of domestic violence do not qualify for leave unless they suffer an injury or trauma that itself constitutes a “serious medical condition.” In other words, the FMLA does not specifically permit leave for domestic violence. Many states have enacted laws which provide leave for employees that have suffered domestic violence. Yet, Georgia has not followed this trend. However, O.C.G.A. § 34-1-3 does provide victims of domestic violence with leave to attend court hearings related to the underlying incidents.
Georgia Laws on Military Leave Employee military leave is perhaps the single type of leave where Georgia’s state law provides similar or greater protection to employees than federal law. Under O.C.G.A. § 38-2-280, employees called to military duty are entitled to essentially unlimited unpaid leave during active service, and up to six (6) months of leave within any (4) four-year period for required training. A deployed employee is entitled to reinstatement with full benefits unless the employer's circumstances have significantly changed, making reinstatement unreasonable. Conclusion Georgia’s reluctance to adopt laws that mirror or enhance federal employees leave laws means that Georgia employees must continue to rely on federal law for meaningful leave rights. While these federal laws cover many Georgia employees and employers, employees working for small businesses may find themselves in a “coverage gap” where the federal leave laws do not apply and where Georgia provides no corollary state law right to employee leave.
James B. Taylor, Attorney
Military Leave USERRA applies to all employers and provides protected leave to members of the U.S. Armed Forces who are called for military duty during their employment. Employers must provide leave to employees who are summoned to military duty and reinstate employees at the end of the period of duty. The employee must report to work within a specified period of time following the end of the period of duty to qualify for reinstatement under USERRA.
Martenson Hasbrouck & Simon LLP jtaylor@martensonlaw.com www.martensonlaw.com
Billy S. Fawcett, Attorney Martenson Hasbrouck & Simon LLP bfawcett@martensonlaw.com www.martensonlaw.com
Martenson, Hasbrouck & Simon LLP focuses its practice
ADVICE THAT WORKS.
on labor and employment defense and business litigation. Our reputation for excellence has been earned through our dedication to providing innovative solutions to the most difficult problems at an exceptional value. We have forged long-lasting relationships with our clients through our tenacity, skill, and accessibility. Based in Atlanta, in the heart of Buckhead, with two additional offices in California, we have developed a highly flexible representation model that enables us to serve clients of all sizes, across all regions of the country.
Contact Marty Martenson at (404) 909-8100
3379 Peachtree Road, NE Suite 400 Atlanta, GA 30326 martensonlaw.com
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How the Freelance Economy is Changing HR Strategies in 2019 By TOM BENTON
A whopping 57 million Americans are currently freelancing in some form or fashion.
The numbers are staggering: A whopping 57 million Americans are currently freelancing in some form or fashion. Beyond the hype around “giggers” and rideshare drivers, corporate freelancing has also gone mainstream – leading-edge enterprises like Google and Netflix have found ways to efficiently scale workforces of independent contractors. And this corporate freelance boom shows no signs of abating.
HR has long taken a hands-off approach to freelance management, leaving it to line of business (LOB) managers and decision makers. Talent management has historically covered full-time employees, but the meteoric growth of the gig economy means that talent management is more diverse than ever, covering both full-time employees and their freelancing counterparts. This labor evolution has made traditional human capital management (HCM) systems insufficient for the complexity and nuance associated with freelance work. HR pros are now tasked with taking an increasingly proactive approach to managing contingent workers beyond the standard HCM scope. Successful HR leaders are recognizing the importance of a holistic talent management approach, one that encompasses employees, contractors, and freelancers. The question every HR exec should be asking: How do I properly, and compliantly, manage my contractors at scale?
Labor Clouds: More Than Just a Spreadsheet of Workers It all starts with labor clouds. Simply put, a labor cloud is a tool that organizes a group of contractors in one system that simplifies engagement, payment, reporting, assigning projects and more. It’s more than just a spreadsheet filled with names and phone numbers of your contractors. A common feature in Freelance Management Systems (FMS), labor clouds allow HR professionals to dynamically group and curate networks of contractors who can only do work if they’re in compliance with the requirements set up in said labor cloud. So, how does it all work? Labor clouds organize groups of workers based on criteria important to HR managers: location, availability, product knowledge, skills sets, certifications, and other work-specific requirements. 12
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By organizing workers into labor clouds, employers can easily engage, schedule, and pay contractors who are fully compliant and qualified to consistently deliver quality service quickly -- whether that’s fixing a security camera in a chain store in Arizona, creating beautiful images with a graphic designer in California, or hiring more workers around the holidays in a warehouse in Tennessee. Labor clouds also empower you to bring your own talent, allowing HR managers to directly source new workers from different areas, including alumni (or retiring) populations, and specialized online marketplaces. They also enable an innovative, integrated approach to total talent management, allowing you to access and manage skills and expertise from all of your talent — contractors, freelancers, vendors, employees — on one platform.
One Single Source for Total Talent Management The rise of Freelance Management Systems (like WorkMarket) is helping revolutionize how businesses organize, manage, and pay their contractors and freelancers. Instead of relying on tedious manual processes (spreadsheets, emails, etc.) or disparate point solutions, integrated FMS solutions provide businesses with the tools and insights they need to thrive in today’s fiercely competitive marketplace. At its core, FMS technology allows businesses to consolidate every aspect of their freelance workforce under one roof. More importantly, this software arms executives with a powerful analytics engine they can use to efficiently scale their freelance workforce compliantly. As part of a greater external workforce strategy, labor clouds, when implemented with FMS technology, help businesses of all sizes adapt to the changing world of work, enabling a more flexible labor model while reducing operational costs and maintaining quality.
Remember: On-Demand Labor Economy No Passing Fad The most important thing to remember: the on-demand labor economy is no passing fad. Analysts and industry pundits all agree, the continued shift towards flexible, non-employee talent will only continue to grow. You must leverage on-demand labor in order to stay competitive in this new world of work. More than just engaging freelance talent though, your business will need technology in place that can help you leverage this talent at scale. You’ll need the ability to quickly onboard hundreds (in some cases, thousands) of independent workers so you can truly reap the benefits of the on-demand labor economy.
5 Questions Every CHRO Should Ask in 2019 If you’re still not sure where you stand in the gig economy of 2019, start by asking a few questions within your organization. 1. Where are we in our workforce transformation journey? Are you using contractors to write blogs or create beautiful images? Are contractors completing assignments on-site within hours? Your first question should be in figuring out just how your company is using freelancers -- or how you could be using them more to operate more efficiently and better serve your customers. 2. What’s driving our need to leverage contractors? Is there a need to improve service quality and response time? Do you need highly specialized talent to complete a project quickly? Or do you want to expand your geographic footprint in another region? It’s important to get aligned with all LOBs to determine the ‘why’ for using contractors or freelancers. 3. How are contractors paid today? If there’s a gap in understanding across all departments just how contractors are paid and how soon, this could create problems down the road with your independent workforce. It’s important to ensure they are paid timely and as easily as possible. 4. Is company policy on use of contractors being enforced? Maintaining compliance requires everyone who comes into contact with a contractor follows the agreed upon policies and procedures. Deviating from the agreed upon approach increases the potential for legal risk — especially when such activity takes place over an extended time period. 5. Is there a need for shared service to govern use of contractors? Business capabilities such as human resources are commonly run as a shared service. This allows an organization to manage risks such as legal or compliance risks from one center of competency. Would your organization benefit from one system of truth to compliantly manage your freelance workforce? With the freelance economy in full swing, now is the time to embrace a more flexible and innovative approach to work. There are billions of dollars at stake and the clock is ticking. Is your company ready?
Is Your Safety Manual Up to Date? Do you have an emergency response plan? Do your employees know what to do in case of an active shooter? Do your employees know OSHA regulations? Do you need a worksite assessment to determine your risk? If you answered no to any of these questions, you should call William Carmichael, Ed.D, to assist you with developing or updating your organization’s safety manual. He can also assist with your safety training program. Don’t wait until it’s too late!
Contact Bill at 901.228.5255 or by email at wcarmchl@gmail.com
Tom Benton, CRO WorkMarket an ADP Company tom@workmarket.com www.workmarket.com www.HRProfessionalsMagazine.com
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Igniting a Fire
in Each of Your Employees
A life-altering discovery. Fire is transformative to our existence as human beings. Think about the impact fire has on modern day society:
• Our smart phones and televisions are produced using energy created by fire. • Our foods are cooked and preserved via fire. • Our manufacturing industries are powered by fire. • Fire has been used in agriculture and pasteurization. • We used fire to help eradicate the plague. • We have even used fire to help clean up oil spills. Going back further in time we lit homes using candles, and caves were lit using controlled fires and torches. The heat created by fire allowed for migration to colder areas and created the opportunity for gatherings and more communal experiences. Fire fostered a collective community. Fire has also been a destructive force that has cost lives, property and created health issues. Fire is a tool when approached with respect and a danger when taken lightly for the powerful force that it is.
• We (F&H Solutions Group) worked with a technology company that added 11 million to their profits after one year of earnestly addressing employee engagement issues. • Companies with engaged employees see 233% greater customer loyalty and a 26% greater annual increase in revenue according to Aberdeen. • Highly engaged business teams result in 21% greater profitability according to Gallup. • Employee engagement programs can increase profits by $2400 per employee per year according to Workplace Research Foundation. 14
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• According to F&H Solutions Group, engaging your sales team increases new sales cycles by 350%, referrals by 130%, contacts with new prospects by 150% and revenue from new accounts by 56%. However, when seen as a human resources project or a check off the box activity it fuels a destructive force within your employees. Too many companies have fostered anger in their workplace by not truly respecting the relationship employees develop with the organization. So how do we ignite the fire within our employees? The same way we create real fire. First, we need the right elements. The elements we use to create fire are found in a model called the fire triangle:
OXYGEN. Fire needs oxygen to breathe. Without oxygen you • can’t create fire. • F UEL. A fire needs something that will burn. This is the foundation of a fire.
HEAT. We must raise the temperature to the point of ignition. • The combination of those three elements creates a chemical reaction called fire.
AT HE
Employee engagement is no different. It is a tool that can ignite the fire within each of your employees when respected, focused, and taken seriously. When you ignite the fire in your employees it can be transformative to your business:
• Companies with highly engaged employees have up to 71% less turnover according to F&H Solutions Group.
OX YG EN
Fire.
By BRAD FEDERMAN
FUEL When it comes to organizations and employees those same three elements are needed.
OXYGEN. The oxygen in an organization is the culture and • leadership. Culture and leadership are the aspects of an organization that allow employees to breathe; to work productively. The right culture and leadership allow employees to help an
organization achieve and become successful. Culture and leadership foster a focus on the customer and the activities that will make a difference. When culture and leadership are a poor fit an employee’s efforts are hampered and they are less effective. Values can play a key role when it comes to creating a culture that works. However, the values must be lived and not just espoused. • FUEL. The foundation of an organization is their brand/their story. It is the reason the organization exists-the why. Nothing is more powerful than giving customers and employees something to hang their hat on. People want to work for companies that do well and help the broader community either by the work they do or as a byproduct of the work they do. Some organizations use vision, mission and values, while others use brand identification, brand promises and brand pillars. • HEAT. We must raise the passion level of our people. Each individual connects to the organization for different reasons and in different ways. It is our job to find out what makes each of our employees tick and help make those connections. o What type of recognition do they like?
o Are they private? o Do they prefer sociable relationships at work? o What types of assignments do they love? o What types of work drives them crazy? o What are their long term career goals? o Have we made them more marketable and competitive in the job market lately? o How have we fostered strong teamwork and collaboration? And so much more. Each of these elements alone are essential. They each help organizations in different ways and are important to the functioning of any business. However, without all three there is no chemical reaction. No fire. No transformative experience. Without all three we lose the opportunity for a competitive advantage and the return on investment based on all of our efforts and expenditures. The combination of these three elements create fire in our employees and high engagement levels in our organizations.
o How much recognition do they need? o Do they like freedom? o Do they want structure? o How do they develop trust?
STRENGTHENING BRANDS
Brad Federman, Chief Operating Officer F&H Solutions Group bfederman@fhsolutionsgroup.com www.fhsolutionsgroup.com
F&H Solutions Group can help you
71%, increase profit by about 12%, and increase sales by about 65%.
lower turnover by about
THROUGH CULTURE, LEADERSHIP & PEOPLE Executive Compensation Leadership and Coaching Career Development Customer Engagement Employee Engagement Diversity and Inclusion Recruiting and Onboarding Compensation Strategy Human Resources Labor Relations
1715 Aaron Brenner Drive Suite 716 Memphis, TN 38120 | 901.291.1547 | fhsolutionsgroup.com
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WHEN LESS IS MORE… Problems With “100% Healed” Return-To-Work Policies By BRENT A. MORRIS
The art of Human Resources demands an ability to adapt to everchanging demands and responsibilities. While we all would like to believe that we can proactively design policies to meet challenges head-on, reactive policies – ones that are created directly in response to a particular problem – are still very much a necessity. But reactive solutions are occasionally the cause of more headaches in the long run. In an attempt to address a business-side concern, management will frequently push a policy too aggressively, thereby improving the business but threatening legal exposure. And virtually no policy can create legal issues more swiftly and easily than a “100% Healed” return-to-work requirement. A 100% Healed return-to-work policy is a blanket requirement, made by the employer, that any employee who becomes ill or is injured must be “100% healed” before being allowed to return to work. Generally, these policies require that the employee be completely healed, with no restrictions on work duties upon return; in addition, the employee may need to provide a physician’s authorization. Such policies are usually created in an attempt to solve legitimate business concerns – whether it be a rash of re-aggravation injuries or an abuse by employees of light-duty accommodations. Return-to-work problems can arise in unexpected ways and at every level of your management or HR team. A frontline supervisor may text his employee that he cannot come back to work until the doctor “gives the green light.” A new safety director may see a serious loss of productivity due to workers’ compensation injuries and decide to “tighten up” the return-to-work policy. An in-house nurse may suspect that employees are gaming light-duty assignments to get out of the harder work, and she may try to eliminate those jobs completely. The motivation behind these policies is not necessarily improper or abusive, and the intent frequently comes from a place of genuine concern. The policies are made by employers to address real issues in the workplace. Regardless of intent, however, such hardline policies will lead an employer to new troubles – as the policies themselves are all potentially illegal. In attempting to fix one problem, an employer just creates a bigger one.
WHAT DOES THE EEOC SAY? In May of 2016, the U.S. Equal Employment Opportunity Commission (EEOC, or “the Agency”) published a guideline on Employer-Provided Leave and the Americans with Disabilities Act [https://www.eeoc.gov/eeoc/publications/ada-leave.cfm]. While the 16
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guideline is meant to provide employers with a big-picture view of responsibilities under the Americans With Disabilities Act (ADA), it specifically addresses 100% Healed policies:
The EEOC continues to receive charges indicating that some employers may be unaware of Commission positions about leave and the ADA. For example, some employers may not know that they may have to modify policies that limit the amount of leave employees can take when an employee needs additional leave as a reasonable accommodation. Employer policies that require employees on extended leave to be 100 percent healed or able to work without restrictions may deny some employees reasonable accommodations that would enable them to return to work. Employers also sometimes fail to consider reassignment as an option for employees with disabilities who cannot return to their jobs following leave. Since issuing this guideline, the EEOC has been unquestionably more aggressive with litigating these policies. In a recent presentation at the 2018 Wimberly Lawson Labor Relations & Employment Law Update Conference, Mr. Edmond C. Sims Jr., District Deputy Director of the EEOC’s Memphis District Office, indicated that if a claimant (i.e., employee) presents information concerning alleged discrimination due to a 100% Healed policy, the Agency would likely look more closely into the allegations of a Charge. An employer is therefore inviting the EEOC to look into its policies and procedures, if it relies upon language that suggests an employee needs to be fully healthy before returning to work. And this scrutiny is certainly not limited to the EEOC’s Memphis district: The Agency aggressively litigated these policies in 2018. In May of 2018, the EEOC filed a direct suit against a Nevada company for “violat[ing] federal law by maintaining a well-established companywide practice of requiring that employees with disabilities or medical conditions be 100 percent healed before returning to work. This policy does not allow for engagement in an interactive process or providing reasonable accommodations for disabled employees.” The employer paid $3.5 million in a consent decree and committed to reviewing their policies with an ADA consultant. In September of last year, the EEOC sued an Arizona company for “discriminating against employees with disabilities through the application of a 100% return-to-work policy.” The Agency alleged that the employer refused to accommodate employees with disabilities who exhausted their leave, and failed to consider any accommodations such as alternative placements, additional unpaid leave, or modified work schedules. Finally, in November, the EEOC sued a Colorado company for a policy of automatically terminating any employee who needed more than 12 weeks of leave. The employer also refused to allow employees to return to work if they had any restrictions. The employer agreed to a consent decree of $4.85 million, mandatory periodic training, and policy revisions. It is clear that the EEOC has made this issue a priority. But the EEOC is not the only potential source of risk for an employer regarding these policies. State agencies could also investigate under their own statutes and regulations, and an employee could file suit for retaliation under many different laws, especially in the context of a workers’ compensation claim.
HOW CAN EMPLOYERS HANDLE THESE ISSUES? So how can an employer navigate these issues? As is the case with any ADA issue, a situation in which an employee seeks to return to work after an injury or period of disability requires a case-by-case analysis of potential accommodation and solutions. The interactive process is mandated by law, in order to determine whether an employee’s injury can be accommodated. The solution to any given situation may not be clear cut. HR should look closely at the limitations any employee has and pay careful attention to the type and nature of the work restrictions placed by a physician. But the employer’s needs are also relevant. While a job assignment must be within the parameters of an employee’s restrictions, the assignment itself need not be unduly burdensome to the employer’s operations. It is important to note that a workers’ compensation injury involving lost time is a potential ADA issue. Some employers may erroneously believe that the analysis is somehow different if the employee is an injured worker receiving temporary benefits from a workers’ compensation insurer. If a worker is injured such that she has been taken off work or given restrictions by a physician, the analysis should be the same as an ADA case, even if the injury is temporary. An employer should not assume that an employee’s injury is menial, or that the effects of the injury are unrelated to the performance of her regular duties. Make sure that any work restrictions placed on the employee by a physician are not violated, by closely analyzing both the job description and the practical movement aspects (lifting/standing/walking) of the job.
Greater Memphis Employee Benefits Council Meeting Thursday, January 3, 2019
Memphis
It is also important to get to the bottom of what the employee is actually requesting. It could be that a simple accommodation would solve what seems like a complex issue. More frequent unpaid breaks could be the answer to a serious health problem. A stool can resolve lower extremity or lumbar complaints. Less harsh lighting could fix recurring headaches. Be open and creative with finding solutions to these puzzles. Finally, be aware that these accommodations need not be permanent. The length of any accommodation is an important part of the analysis, and goes to the issue of whether the employer engaged in the interactive process and would have been burdened by the proposed accommodation. A six-week alternative accommodation could be less burdensome and therefore more reasonable than a permanent one. The EEOC has been clear that an employer need not create new positions in response to a request for accommodation, but fixed-length light-duty work, even if it involves menial tasks, can save you from significant headaches. Do not forget, however, to involve the employee and to review updated information prior to ending an alternative assignment. Regardless of your procedure, the EEOC and state laws make it very clear that a “100% Healed” return-to-work policy is 100% likely to cause your business to be unhealthy.
Brent A. Morris, Senior Associate Wimberly Lawson Wright Daves & Jones PLLC Nashville, Tennessee office bmorris@wimberlylawson.com www.wimberlylawson.com
(L-R) Russ Henderson, Vice President, Programs; Brian Fargus, Vice President of Sales and Marketing for MedBen; and Preston Cox, Co-Vice President, Programs. Brian was the guest speaker for the January meeting. He presented Reducing Fraud, Waste and Abuse in Healthcare.
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Are You Ready for Blockchain?!?
By BILL KUTIK
Bitcoin is not blockchain. That would be like saying “recruiting is Software as a Service.” Blockchain is a somewhat new computer architecture (like SaaS) and Bitcoin is simply the first (and for now, the most notorious) application built on it. Frankly, I was hoping to have retired from writing this column before learning the intricacies of blockchain, let alone explaining them and their potential for HR. HRE editor Andrew McIlvaine already started that with a solid story last May. He explains it is a shared database called a “distributed ledger” in which each transaction (or “block”) is replicated across thousands of computers. No single block can be altered unless all the computers (or “nodes”) are in agreement, thus creating a highly secure and (theoretically) tamper-proof medium.
Blockchain is a somewhat new computer architecture (like SaaS) and Bitcoin is simply the first (and for now, the most notorious) application built on it. 18
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But I imagined I would need to do more until the arrival of a new book just before the end of last year by a wise former colleague and friend: The Blockchain and the New Architecture of Trust by Kevin Werbach. For four-and-a-half years starting in 1998, I drove myself crazy after Kevin became the primary author of Release 1.0, my college friend Esther Dyson’s leading computer-industry-insider newsletter, and I was suddenly responsible for editing his copy, too. The craziness came because after graduating summa cum laude from Berkeley and then serving as an editor of the Harvard Law Review, Kevin’s writing was as, as we say in the editorial biz, “pretty tight.” Plus he had just served as counsel for new technology policy at the Federal Communications Commission, where his working paper “Digital Tornado” was largely credited with the Clinton administration’s decision to keep federal regulatory hands off what was then still a toddler Internet. Did I say “tight”? Kevin’s writing was bulletproof; his reasoning and structure, unassailable. Every month I poured over his new issue four, five or six times in a largely futile attempt to find some way to make the argument stronger or the writing better, simpler, easier to understand. That rarely happened. So before opening his book, I e-mailed him to say I expected his explanation of blockchain to be the clearest and simplest ever written. After my painful past, I am truly delighted to tell you it is definitely not!
Not because his last 15 years as professor of legal studies and business ethics at the Wharton School has cluttered up or weakened his prose. But because he has taken an enormous bite out of the blockchain apple, just as he did out of the Internet two decades earlier. He hardly limits the book to explaining how blockchain technology actually works, something he points out even seasoned experts often find difficult to grasp. Perhaps because it combines elements of cryptography, computer science, economics and political theory, among other disciplines. As recently as August 2017, as he cites in the footnotes (read the footnotes!), Wired published an article titled “Bitcoin Makes Even Smart People Feel Dumb.” Kevin goes far beyond that by examining the intersection of business, policy, law, trust and ethics with this emerging technology, which is just what he does as a Wharton professor. So hold on for a tough ride, but when it’s over you will really understand why blockchain matters. And like me, stop ignoring it as a nerdy fad. For me, the book is most fascinating for the second part of the title: his elucidation of trust and how blockchain may offer a new social model for it. My apologies if any of this was in Francis Fukayama’s book Trust, which I failed to read, but Kevin lays out three established “trust architectures”: • The first is “peer-to-peer,” where the group that’s interacting and transacting is small enough that everyone knows everyone else and trusts them. • The second is called “Leviathan” (yes, borrowed from Thomas Hobbes), where people grant a monopoly on the legitimate use of violence to the state, which prevents others from gaining advantage through trickery or force. • The third model is various “intermediaries,” which provide valuable services for which people are willing to give up some power or control. Kevin cites credit bureaus as having great authority because they make so many financial transactions possible. In fact, financial services may be the best example of intermediary trust. Blockchain depends on none of them. With blockchain, the idea is to trust the system without trusting any of its component parts. As he points out, “The blockchain does not eliminate the need for trust. It represents, rather, the reemergence of trust in a new form.”
While he never quite says it, Kevin clearly sees blockchain as potentially game-changing as the Internet. There is no master copy of the blockchain: no authority, no one in charge of it. Everyone has his or her copy of the ledger and the only trust is that all those copies are the same. While he never quite says it, Kevin clearly sees blockchain as potentially game-changing as the Internet. Just at the intersection of law, he writes: “ In fast-changing environments, there is a danger both of regulating too early and of regulating too late. The best approach is…to assess the risks of each. Law and the blockchain are bound to engage in a shifting dancing. This begs the questions of what values should shape their relationship. Technology implemented in the world is never neutral. Transformative innovations can have various impacts based on their technical architectures, as well as the legal regimes under which they operation. Decisions made early on have an outsized impact. Once architectures and legal environment are put in place, they often become increasingly difficult to change.” Happily, Amazon’s free book excerpts include the introduction and the first chapter, where much of this is laid out. Read them and decide for yourself. If you read it, let’s get together on some suggested edits for the next printing. Copyright LRP 2018
Bill Kutik, Columnist Human Resource Executive® Independent Technology Analyst bill@kutik.com
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2: Using Applicant Tracking Systems (ATS) Productivity is key for today’s HR pros and hiring managers. An ATS helps increase this in a variety of ways.
2019 and Beyond:
Hiring Technology Tools HR Must Understand BY SONYA WEATHERS
Whoever first said, “Nothing stays the same except change”, should have received a big prize because it’s true. HR Professionals can testify everything about the way people are recruited, hired, and onboarded constantly evolves and shifts. In the last few years, technology that affects HR has moved in dog years: Each one feels like seven. How can HR pros, who already have a dozen important tasks on their plates, keep up and stay relevant? It’s a difficult question. Here are 5 important directions hiring technology is moving. HR pros must understand these so they can stay competitive in the current environment.
1: Allowing the Candidate to Drive Gone are the days of filling out page after page of information about the candidate. Technology has ushered in the ability to let the candidate handle the brunt of this. For example, texting job applicants and sending them directly to the ordering platform to input their information for background checks is a new feature available to HR. Another tool is providing an automated calendar to allow candidates to choose their interview time. These advances help move the process along faster, keep the job seeker involved, and provide a smoother experience than ever before. 20
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An ATS manages the entire hiring process in one platform. It alleviates extra work at the beginning of the recruiting process by placing open positions on multiple job boards. The ATS also simplifies looking through resumes by filing resumes by keywords. The platform keeps up with candidates throughout the process. An ATS helps decrease administration time and costper-candidate, while increasing internal and external communication, and the quality of new hires. An ATS system will become increasingly important in 2019 for employers who strive to maintain a high level of organization and effectiveness in their hiring processes. Companies aren’t the only ones that must turn to technology to stay relevant. HR will also be…
3: Depending on Vendors to Implement Better Processes The opinion of “data is data” isn’t true anymore. When deciding who to hire, HR pros and hiring managers need data to be accurate, up-to-date, and they need it fast. Vendors play a pivotal role in accomplishing this. Ask your vendors how they check their data, how often their data is updated, and how quickly it’s returned to you. They should be able to explain a set process of their data management strategy. Ask them to walk you through the way they mine the data, and the procedures they employ to ensure the data is error-free.
4: Automating the “Knock-Out” Process
record at their convenience. By watching the video, HR and hiring managers can eliminate many of them who aren’t a fit. Assessments are another way to streamline the hiring process and get positions filled faster. Ask job seekers to perform an assessment early in the hiring journey. If the results don’t mesh with company needs, remove that person from the running. This saves the company AND the job seeker from wasting time.
5: Diving into Social Media for Information This one broadens our focus to the overall management of HR’s position. HR is tasked with keeping up-to-date on laws and regulations that change drastically. While attending conferences, training, and reading trade publications are all productive ways to maintain your understanding of the market, there’s another tool that can assist. It’s social media. It’s vital to take the time to follow HR leaders on social media. Not only can you learn a great deal about trends in a short amount of time, you can absorb it on your terms and at your convenience. At a minimum, set up a Twitter account and follow several SHRM chapters, the EEOC, and Lisa Horn. Commit to scrolling your newsfeed and reading the articles that sound interesting for 10-15 minutes each day. Over the course of a few weeks, you’ll be surprised at how much knowledge you’ve gained by doing this. In closing, instead of dreading and disliking the changes that are taking place in your industry, embrace them, take the time to understand them fully, and use them to your advantage. By adding these tools to your arsenal, you will function more efficiently, serve your company more productively, and choose the best new hires possible. Let’s make 2019 the best year yet!
Slogging through piles of resumes and applications is so 1990’s. In addition to your ATS’ keyword assistance, there are other ways to narrow the candidate pool to those who are qualified. First off, using video at the beginning of the interview process saves tons of time and resources. Simply set up a list of questions, send the candidates the link, and they can
Sonya Weathers National Account Executive sweathers@datafacts.com www.datafacts.com
– David, Aquatic Custodian
“I can’t believe they pay me to do this.” It’s a beautiful thing when people love what they do. ADP provides easy and accurate payroll and HR solutions so your workforce can spend less time wondering about their paychecks and more time loving how they earn them. ADP, the ADP logo and ADP A More Human Resource are registered trademarks of ADP, LLC. Copyright © 2019 ADP, LLC.
The Trends That Will Shape HR in 2019 By AUSTIN BAKER
In 2018, HR saw a turning point in many areas of business operations. The most notable trends of AI & HCM technology, innovative benefits solutions, and employee wellbeing programs took great strides and will continuously develop in 2019. With the new and upcoming year, let’s take a look at what the industry leaders foreshadow for HR.
Analytic-Based Talent Management Assessments and hiring are moving toward being driven by AI, machine learning, and analytics. This technology will leverage machine learning to identify the high potential hires every employer looks for. The foundational process of defining job competencies and requirements accurately will continue to be the most critical aspect that need human judgement. AI can help to remove unconscious bias from the recruiting and interviewing process by ignoring information such as names, universities, locations, and dates of previous positions held to keep organizations compliant and at the least risk during their hiring process. AI in the Applicant Tracking Systems (ATS) will be used to streamline the process of scanning resumes and reduce the time HR personnel and recruiters spend by automatically using its machine learning to rate resumes to its correlating job description’s relevancy.
Improved HCM & AI Technology Artificial Intelligence is here to stay. While Siri, Alexa, Cortana and Google Assistant are famous among employees and clients, an area it is quietly disrupting is HR departments. Companies are increasingly leveraging AI technology to help identify data opportunities, improve internal workflows, and increase productivity. As employees demand more and more from their employers — the pairing of machine learning with HR technologies couldn’t come at a better time. From engaging employees to fighting unconscious bias and expanding our concept of wellness— embedding HR tools with machine learning streamlines all of these HR processes. Cloud based HCM technologies help organizations and HR personnel simplify complex HR operations. These solutions combine service center and help desk technology by standardizing how HR personnel provide services and interact with employees. AI can learn commonly asked questions and automate responses thereby reducing the time HR personnel need to spend reviewing and responding to employee requests.
Cancer Benefits Employer Brand Strategy 64% of consumers have cited shared values as the primary reason they have a relationship with a brand. As competition arises, employers are consistently looking for new ways to differentiate themselves from the crowd and build a culture that draws talent & business. CEO’s are valuing building reputable brand cultures, stories, and mission/visions as one of the most important assets to their organization. Reputation management and employer branding will hold more significance than ever with the continuous improvement in technology communications. With the ubiquitous nature of information on social media, customers and employees are privy to a large amount of uncurated data. Improving your brand will require a comprehensive brand strategy to be in place to take realistic expectations and develop and grow the culture and messaging for your organization. This in turn has been observed to maximize marketing efforts and profits in multiple businesses whose key focus is on their brand quality. 22
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The number of cancer patients and survivors will reach almost 18 million in the next decade, according to the CDC. A recent study by Harris Poll shows that 79% of the respondents said that patients/survivors that receive some form of support from their employer are more likely to thrive in the workplace. Organizations will look to leverage this as an opportunity to have a leading benefit in 2019. While benefits surveys have data on cancer insurance at organizations — the Society for Human Resource Management found that 33% of organizations offered cancer insurance in 2018, up from 28% in 2017. This along with many other voluntary benefits are increasing in need year by year. As more organizations look to implement these options to supplement their major medical offerings, the need for education and administration services around these benefits are crucial to maintain and increase the perceived benefits of these programs.
Corporate Wellness Initiatives According to a recent survey, only 35% of U.S. employees reported feeling satisfied with their finances in 2017. 35% of employees surveyed miss 3–5 days per month as a result of workplace stress, and yet another 85% of workers who have experienced stress at work rate the efforts of their workplace to reduce stress as fair to poor. Investing in employees’ well-being is a rising trend in improving employee engagement and promoting a healthy workplace culture. As we continue to embrace mental health wellness as a necessity and not just a pleasant afterthought, corporate wellness programs are expanding beyond focusing solely on employees’ physical health. Technology can help companies improve their corporate wellness programs to include financial and mental health well-being solutions. These well-being programs are catered toward improving employee engagement by providing employees the support that they need to be their most present and productive selves. More than half of American employees are stressed about their finances, and that stress has increased over the past year. Millennials, for example, are the largest working generation and are the most burdened by crippling school loan debt. Meanwhile, the sandwich generation is stretched thin between caring for children and aging parents. Financial wellness technology provides solutions for everything related to an employee’s financial health including 401ks, debt, savings, mortgages, earnings, micro-savings, and investments. This technology provides a holistic solution for employees looking to manage their finances. From student loan repayment benefits to assisting employees with shortterm financial issues, employers are increasingly providing financial education, assistance, and solutions.
Austin Baker, President HRO-Partners
Austin Baker is the President of HRO Partners, a human resources consulting and benefit administration and enrollment firm as well as a National Enrollment Partner Member representing the largest boutique, full service insurance and enrollment firms in the country. A veteran of more than 16 years in the human resources and insurance & benefits industry, Baker is responsible for managing a multifaceted human resources consulting company with public workforce programs and services focused on companies in the southeastern United States. Austin is a frequent speaker on a variety of leadership and benefit topics representing thought leadership and innovative practices in the HR industry. For more information, call Baker at 1-866-822-0123, visit www.hro-partners.com or connect with the company at www.facebook.com/hropartners, www.linkedin. com/in/jaustinbaker or twitter.com/jaustinbaker. hro-partners.com company/hro-partners
hropartners @hropartners
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IMMIGRATION LAW UPDATE ON H-1B NONIMMIGRANT VISAS AND I-9 AND E-VERIFY By GEORGE R. ERNST
As the United States unemployment rate continues to reach historic lows and employers continue to hire hundreds of thousands of employees, many U.S. employers are particularly concerned about hiring capable workers, especially in the STEM fields. However, U.S. immigration policy has not kept pace with the breakneck speed of the global economy, and the Trump Administration’s Buy American and Hire American Executive Order has increased the difficulty of sponsoring temporary workers under the H-1B program, especially IT professionals. The following article will highlight some of the current issues employers should be aware of when sponsoring a worker under the H-1B program, as well as an update on I-9 compliance and using E-Verify during the U.S. government shutdown.
or above) from a U.S. university. Thus, in total there are only 85,000 available H-1B visas each U.S. fiscal year. Most employers in the private sector are subject to the numerical limitation. Some employers, however, will be exempt from the numerical limitation. In general, exempt employers are typically institutions of higher education (as defined by 20 U.S.C. §1001(a)), nonprofit research organizations, or governmental research organizations. See, INA §214(g)(5)(A)&(B). Additionally, the annual cap only applies to new H-1B petitions and does not include extensions for existing H-1B workers, or when an existing H-1B worker, previously counted against the cap files a new H-1B petition to change employers.
2. Limited Deadline to File a New H-1B Petition Employers should be aware of some very important timing and deadline considerations when filing a new cap-subject H-1B petition. The numerical limitation for new cap-subject H-1B petitions are tied to the U.S. fiscal year, which begins on October 1. Employers are permitted to file new H-1B applications up to six (6) months prior to the employment start date. Since the first day of the U.S. fiscal year is October 1, the earliest date that a new H-1B petition can be filed for the upcoming U.S. fiscal year is April 1. USCIS will accept all new cap-subject H-1B petitions during the first five (5) business days of the H-1B cap subject filing season, even if the numerical limitation is met during that five day period. If the numerical limitation is met during the first five days of the H-1B filing period, then USCIS will conduct a random selection process to determine which H-1B visas will be adjudicated. 8 C.F.R. §214.2(h)(8)(ii)(B). This is often referred to as the “H-1B lottery.” Petitions not selected in the H-1B lottery will be returned with filing fees.
3. Executive Order: Buy American and Hire American On April 18, 2017, President Trump signed the Buy American and Hire American Executive Order. The Executive Order directs the government to advance polices to help ensure that H-1B visas are awarded to the most-skilled or highest-paid beneficiaries. As a result of the Executive Order, the following consequences have occurred:
H-1B UPDATE Generally, an employer may sponsor a foreign national employee for an H-1B visa, if the employee will be employed in a “specialty occupation.” 8 C.F.R. §214.2(h). In order for the position to qualify for an H-1B visa, the position must require a theoretical and practical application of highly specialized knowledge and a bachelor’s or higher degree for entry into the field. 8 C.F.R. §214.2(h)(4)(ii).
1. H-1B Visa Numerical Limitation There is an annual numerical limitation of 65,000 regular H-1B visas plus an additional 20,000 H-1B visas reserved for foreign nationals who have earned advanced degrees (e.g. master’s degrees 24
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• USCIS has dramatically increased its scrutiny of H-1B petitions for IT employment positions, especially Computer Programmers, Computer Systems Analysts and Software Developers. While the law and regulations related to the H-1B program have not changed, USCIS has taken a very narrow approach when interpreting the laws and regulations and have dramatically increased the number of Requests for Evidence (RFE) and Notices of Intent to Deny (NOID) issued for H-1B petitions for IT professionals, including for positions that were routinely approved prior to the enactment of the Executive Order. Employers are advised to begin working on IT related H-1B petitions as soon as possible, and to work with legal counsel to prepare additional evidence demonstrating that the position satisfies the requirements for approval. • USCIS no longer gives deference to past adjudications of H-1Bs petitions when employers are filing for H-1B exten-
sions. Indeed, we have seen a marked increase in number RFEs and NOIDs specifically questioning whether an IT position qualifies for an H-1B, even though the same position may have already been approved on prior occasions. Employers should be prepared to provide additional information and plan for contingencies for employment of H-1B workers when filing extensions of status to ensure that the employer has the best chance to successfully file for an H-1B extension. I-9 COMPLIANCE AND E-VERIFY COMPLIANCE Employers who knowingly hire foreign nationals to work in the United States without authorization are considered to be in violation of immigration law and may be subject to civil fines and possible criminal penalties. All employees hired after November 6, 1986, and working in the United States must complete a Form I-9. As a result of the Trump Administration’s stance on immigration, there has been a steady increase in ICE auditing employers for I-9 verification compliance. Anecdotal evidence suggests that there has been a 400% increase in the number of ICE audits in the last couple of years. Because of the increase in ICE audits, maintaining an I-9 program that complies with ICE standards and establishing a plan for regular I-9 audits are the best defenses for employers. Employers should routinely conduct self-audits, and employers should immediately contact immigration counsel to protect themselves if subject to an ICE audit.
• Continue to verify employment using Form I-9 (e.g. the employee completes Section 1 on the day of hire, and employers complete Section 2 within three business days of hire); • Keep a ledger of all employees hired after the U.S. government shutdown, including dates of hire and dates the Form I-9 was completed; and • Once the U.S. government shutdown is over, employers should use the E-Verify portal to enter the E-Verify information for all employees on the ledger as soon as possible. Additionally, the time period during which employees may resolve Tentative Non-Confirmations (TNCs) will be extended during the U.S. government shutdown, and employers are reminded that they cannot take any adverse action against a worker with a pending TNC regardless of the shutdown. Once E-Verify is open, employers are advised to work with counsel to ensure that all steps are taken to bring the employer back into E-Verify compliance. If the employer follows these steps, then the employer should not be penalized for creating late cases in E-Verify.
George R. Ernst, Attorney Cross, Gunter, Witherspoon & Galchus, P.C. gernst@cgwg.com www.cgwg.com
The E-Verify program enables employers to verify employment eligibility and work authorization for newly hired employees, regardless of citizenship or immigration status. For most employers, participation in E-Verify is optional and not mandatory; however, several states, including Louisiana, Mississippi, Missouri, Oklahoma, Tennessee and Texas require some, or all employers to use E-Verify.
DURING THE U.S. GOVERNMENT SHUTDOWN, E-VERIFY IS NO LONGER ACCESSIBLE, MEANING THAT EMPLOYERS ARE NOT ABLE TO SIGN-UP FOR E-VERIFY AND EMPLOYERS ALREADY ENROLLED IN E-VERIFY ARE NOT ABLE TO ACCESS THE PORTAL.
During the U.S. government shutdown, E-Verify is no longer accessible, meaning that employers are not able to sign-up for E-Verify and employers already enrolled in E-Verify are not able to access the portal. Because of E-Verify’s inaccessibility during the government shutdown, employers already enrolled in E-Verify should do the following:
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MUSCULOSKELETAL DISORDERS:
Painful for Both Employees and Employers By KATIE O’NEILL
As you’re reading this article, take a moment to think about your posture. Are you leaning forward at your desk, or have your neck craned over a phone? Are you sitting upright with your head forward? Or, are you noticing tension in your neck, and an ache in your low back? Compared to the awareness around chronic conditions such as diabetes and heart disease, aches and pains are easy to dismiss as transient concerns. However, according to the American Academy of Orthopedic Surgeons, musculoskeletal disorders (MSDs) impact 1 in 2 Americans to the tune of $213 billion a year in treatment, lost wages, and decreased productivity. If these disorders progress into chronic pain, the burden in costs, disability, and lost productivity can be even greater. The term “musculoskeletal disorder” describes injuries or impairments of the body’s movement system, including muscles, joints, tendons, spinal discs, ligaments, and nerves. Most everyone has experienced the symptoms: local or diffuse pain and achiness, pulling or burning sensations within the muscles, and general fatigue. If not properly prevented or treated, further impairments can lead to more serious and costly complications, such as opioid dependency, surgeries, and disability. While we tend to think of MSDs with labor-intensive industries, sedentary desk work and improper ergonomics are becoming increasingly more common sources of injuries and strain. One example of this, called “cross syndrome,” develops when certain muscles become weakened by lack of use, while opposing muscles try to compensate and become shortened and tight. Often due to poor posture and prolonged sitting, this see-saw effect between front and back forms an “X” (“cross”) pattern. This can occur in the upper body, the lower body, or concurrently. CROSS SYNDROMES In the case of upper cross syndrome (UCS), the muscles of the front of the neck and middle back become weakened and lengthen, as the muscles of the chest and upper portion of the back of the neck become tight. Think of how frequently we are typing, driving, holding our phones, or looking down and forward. The muscles that support “good posture” (head lifted and in line with the shoulders, chest broad, shoulders back) have become progressively weakened and are not properly supporting the upper body, causing tightness in the compensatory muscles. The result is a forward translation of the head, rounding forward or elevation of the shoulders, and hunching of the mid-back. This can lead to pains in the neck, shoulders, and mid-back, numbness and tingling in the arms, headaches, and reduced range of motion. In addition to these outward symptoms, the head held in a forward vs. upright position creates additional wear and tear on the joints, which can lead to spinal degeneration. (“tech neck”)
HOW TO MINIMIZE MSD RISKS While MSDs are very common, and can be unavoidable, below are suggestions on how to minimize the risks to your employees and prevent existing conditions from progressing. Provide and promote comprehensive wellness programs as part of a culture of health and well-being • Excess weight, tobacco use, and unmanaged chronic conditions can lead to the development of MSDs, as well as lead to complications and delayed healing. Provide coverage for treatment, decision support and funding options (HSA, FSA) for conservative therapies (acupuncture, chiropractic care, physical therapy, massage) • Education and decision support can help keep employees from improperly self-treating their condition and help to prevent further damage. • Conservative therapies can help to correct underlying issues, and prevent the use of potentially dangerous opioid medications. Make proper stretching and strengthening exercises a daily habit for all employees • Provide programs and resources for correcting muscular imbalances and encouraging better posture • Consider employees across job functions when evaluating safety Environmental support • Consider on-site resources to encourage engagement in injury prevention, such as physical therapy and yoga • Provide ergonomic support before problems develop Communications • Make MSD awareness and education part of your internal employee communications strategy
In the case of lower cross syndrome (LCS), the hip flexor and low back muscles become tight and short, the abdominal and gluteal muscles become weakened, and the pelvic bones tip forward. Commonly due to sitting for long periods, the increased stress on the low back and thigh muscles can lead to low back pain and an increased risk of injury.
• Make sure employees know about and take advantage of available resources, such as employee assistance programs, to help with psycho-social aspects of pain
These are just two very common examples of how MSDs may develop and present in the workplace. Carpal tunnel syndrome, tendonitis, and other repetitive-use injuries can occur in employees of any age and across many job functions. Even in the absence of pain, poor biomechanics and dysfunction can cause someone to be predisposed to an accident or injury.
Creating a healthier workforce is an ongoing process that requires consistent communications and support. Encouraging daily habits consistently for better health can result in global effects to improve employee health, productivity and morale.
MSDS EFFECT EMPLOYEES AT WORK AND AT HOME Even when pain and dysfunction are limited to acute episodes, the impacts can be long lasting and interfere with productivity, general health, and overall well-being. For example, consider an otherwise healthy employee experiencing a bout of low back pain. Not only could this interfere with his/her ability to work, it could also prevent participation in regular physical activities at home. Pain may also cause the employee to feel anxious, depressed, and lose sleep which could potentially lead to the adoption of coping vices such as unhealthy food, alcohol, or tobacco. Any potential weight gain or unhealthy behaviors can further inhibit healing and exacerbate the problem. 26
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Katie O’Neill, DC, BS Director of Clinical Wellness/National Practice Leader Katie.oneill@mcgriffinsurance.com McGriff Insurance www.mcgriffinsurance.com
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Medical Marijuana in Arkansas: A 2019 Update By STUART JACKSON
When the voters of Arkansas passed the Arkansas Medical Marijuana Amendment way back in November 2016, businesses were not quite sure how to deal with the issue. Many questions were being asked, including a) would all Arkansas businesses with employees be covered, b) what rights and protections would employees and businesses have, and c) when would medical marijuana be available? The passage of Act 593 by the General Assembly in 2017 provided answers to the first two questions. The remaining question – when will medical marijuana be available – is still is up in the air for a variety of reasons, but many expect medical marijuana will be available in state-sanctioned dispensaries sometime in the second quarter of 2019.
Employer Rights and Obligations Regarding Medical Marijuana The Arkansas Medical Marijuana Amendment created a new protected category of employees – those with past or present medical marijuana certifications. Discriminating against someone in this new protected class is akin to discriminating against someone on account of race, gender or disability under state law. In early 2017, the General Assembly passed and Governor Hutchinson signed into law Act 593, which modified the Amendment and provided significant protections for employers (now specifically defined as those with nine or more employees in Arkansas), including: 1. Allowing employers to have and enforce drug-free and substance-abuse testing policies that apply to both applicants and employees; 2. Permitting the discipline of an employee if there is a good faith belief that he or she used or possessed medical marijuana on site or during work hours in violation of an employer’s policy; 3. Permitting the discipline of an employee if there is a good faith belief that he or she was under the influence of medical marijuana on site or during work hours in violation of an employer’s policy; and 4. Allowing an employer to exclude a person (an employee or an applicant) from a safety-sensitive position if there is a good faith belief that person is a current user of medical marijuana. But, a word of caution -- with the mix of state and federal employment law issues swirling around medical marijuana, businesses need to be very careful how they treat employees with medical marijuana certifications. Two examples -- anyone possessing a medical marijuana card may very well have a disability 28
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covered by the Americans with Disabilities Act and the Arkansas Civil Rights Act or a serious health condition under the Family and Medical Leave Act. Knee-jerk personnel decisions based solely on what Act 593 says will not serve employers well.
The Big Question: When Will Medical Marijuana Be Available? When Arkansas voters approved the Medical Marijuana Amendment in November 2016, many thought medical marijuana would be available to Arkansans by the end of 2017. As the complexity of the process became apparent, that date was pushed back multiple times. Two big parts of the process have been the selection of the cultivation facilities and the selection of the dispensaries. The selection of the cultivation facilities drew a lot of attention in early 2018, including some legal challenges. Surprisingly, those legal challenges did not delay the process significantly. In March 2018, a Pulaski County Circuit Court Judge concluded that the Medical Marijuana Commission’s licensing process and decisions relating to cultivation facility licenses “violated Amendment 98 to the Arkansas Constitution . . . violated due process of law, resulted from improper procedure, and were arbitrary and capricious.” The Arkansas Supreme Court reversed that decision, basically finding that the plaintiffs jumped the gun by filing their complaint too early. See Arkansas Department of Finance and Administration, et al., v. Naturalis Health, LLC, et al., No. CV-18-356 (June 21, 2018). The most interesting part of the Supreme Court’s ruling was Chief Justice Kemp’s concurring opinion: This court will not rewrite administrative-agency rules, nor will it substitute its judgment and discretion for that of the agency. The court may, however, reverse an agency decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are in violation of constitutional provisions or made upon unlawful procedure. See Ark. Code Ann. § 25-15-212(h)(1), (3) (Repl. 2014). The MMC has a constitutional duty to adopt rules necessary for its “fair, impartial, stringent, and comprehensive administration” of the Arkansas Medical Marijuana Amendment. See Ark. Const. amend. 98, § 8(d)(3). I urge the MMC to review its rules and procedures and to cure any deficiencies. (emphasis added). I’d call that a warning shot. Regardless of that warning shot, the Commission decided to forge ahead with its five original picks, and construction of most of the
cultivation facilities is well underway. However, those cultivation facilities may not be in the clear yet -- complaints and protests concerning their selection have been turned over to the Alcohol Beverage Control Enforcement Division for “investigation and, if warranted, adjudication by ABC.” So, stay tuned – things could get interesting if one or more of the successful cultivation facility applicants are disqualified or sanctioned for a violation of the rules. By contrast, the process for the selection of the dispensaries has been relatively smooth. The Commission hired an outside consultant to score the 200+ dispensary applications, and the consultant submitted its recommendations in mid-December 2018. While future court challenges are always a possibility, the Commission named the successful dispensary applicants on January 9, 2019; licenses to the successful dispensaries will be issued shortly. By the way, Arkansans won’t see a dispensary on every street corner – each of eight districts in the state initially will have only four dispensaries, and those districts range in size from four counties (districts in central and northwest Arkansas) to over a dozen counties.
determine if a job should be characterized as “safety-sensitive.” Mistakes in handling employee use of medical marijuana will result in lawsuits and the types of damages and costs one sees in typical discrimination litigation. Think through the various scenarios, make sure you understand the various employment laws that could apply, get your medical marijuana policy prepared, and be ready to make a levelheaded decision on how to react.
Expect the Department of Health to start issuing certification cards in February 2019. So far, over 7,000 people have been certified for medical marijuana use in Arkansas. But, those people shouldn’t expect to be able to use their Arkansas cards to get medical marijuana from Oklahoma or any other state – the law and regulations seem clear that the medical marijuana must be obtained from an Arkansas dispensary.
Getting Prepared With all these moving parts, one may wonder whether medical marijuana will ever become a reality. It will, and relatively soon – probably in the second quarter of 2019. Once medical marijuana becomes available, Arkansas employers will be faced with all sorts of issues, such as how to handle applicants and employees who have been certified for medical marijuana use, whether to allow work-time medical marijuana use in some jobs or none at all, and how to
Stuart Jackson has been practicing in the labor and employment field for over twentysix years and is a partner on Wright Lindsey Jennings’ Labor & Employment Team. As of late, he has been focused on helping businesses prepare for medical marijuana and defending wage and hour collective/class actions. You can contact him at wjackson@wlj.com.
We use our best tools to make your job run smoothly and efficiently. FordHarrison is a labor & employment defense law firm with 29 offices, including three affiliate firms, and is the sole member of the global employment law firm alliance, Ius Laboris. Guided by the FH Promise, FordHarrison delivers the highest quality legal service and communication to our clients. www.fordharrison.com
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New Year, New Plan...New Advisor? Tips for shopping, interviewing and hiring a new retirement plan advisor. By JEANNE J. FISHER
Now that your team has successfully completed open enrollment season, you may have time to take a more proactive approach to improving your benefits. Renegotiating fees and services with your current provider, hiring an advisor, or
Find the Right Advisor - First I've stumbled into situations where the plan sponsor changed the platform (i.g. Fidelity, Transamerica, John Hancock, T.Rowe) before hiring an advisor. Advisors who specialize in 401(k)s have invaluable experience with numerous platforms and can provide insight on who may be the best fit for your company. Furthermore, issuing and leading the RFP is almost always included in the advisory fee. The world of plan design, platforms and fees is complicated, but an advisor can help simplify the process, potentially saving you time and money.
implementing a financial wellness program are all ways you can add value to your company – and more importantly - your employees.
Hiring an Advisor Does Not Mean Changing Recordkeepers
In 2017, a record 38% of plan sponsors are “actively looking to switch their plan
At my firm, ARGI, much of our new business last year came from plans that either didn't have an advisor or wanted to make a change. Truly independent advisors can, and will, work with many different platforms. Adding the services of an advisor to your plan doesn't necessitate a full conversion.
advisors," according to Fidelity's Plan Sponsor Attitudes survey. Another survey conducted by OneAmerica found that 69% of plan sponsors listed "providing participant education" as their number one priority. Hiring an advisor and making changes to your retirement plan may seem daunting, but it's often well worth the investment in the end. Here are some quick tips to get you started.
…38% of plan sponsors are “actively looking to switch their plan advisors,” 30
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Issue an Advisor RFP
Find a Specialist
Many of us know it is not considered a “best practice” to hire based on existing relationships alone. As a fiduciary, you must interview and compare the services and fees of many firms. The real tip here is to grant each advisor at least one hour of your time, before they respond to the RFP. Every client is different, with different goals and different concerns. Asking an advisory team to respond to an RFP cold, without any real introduction to you and your company, could be counterproductive. You'll receive much more meaningful responses and more accurate pricing if you allow advisors a brief conversation beforehand.
With the changing industry and regulatory environment, you must find an advisor team that specializes in 401(k)s. Don't assume that a specialist automatically translates to 'more expensive'. Advisory teams with knowledge, additional services and thought-out processes could provide superior services at competitive prices. Also, most specialists have multiple clients on a single platform and may have more 'pull' when it comes to negotiating fees and solving service issues.
Understand Value vs. Cost Prior to interviewing advisors, sit down with your team and prioritize your goals. Undoubtedly, an advisor's fee is important. But if your top three priorities are 1) Participant Education, 2) Excellent Service, and 3) An Experienced Team, you have to be able to differentiate between advisory service models. At ARGI, our fees will vary if we are providing only Plan Sponsor Services versus a full suite of Plan Sponsor and Participant Education Programs.
Ask About Indirect Compensation
Now is the perfect time to reevaluate your retirement plan and the advisory support you need. Investing your time now could create a successful 2018 for you and your employees. Happy shopping! https://www.prnewswire.com/news-releases/survey-retirementplan-sponsors-challenge-is-prioritizing-education-300580529.html OneAmerica Survey Quoted https://www.fidelity.com/about-fidelity/institutional-investmentmanagement/fidelity-survey-plan-sponsors-highly-satisfied 8/3/2017 Fidelity Survey Quoted
We support, and the industry is trending, toward advisor fees only being paid directly. That said, it is still a common practice for advisors to receive third-party compensation from the platforms and mutual funds. Be very clear in the interview process about all revenue the advisory team will receive and who is paying.
Jeanne J. Fisher, CFP, CPFA, MBA ARGI JeanneFisher@argi.net www.argi.net
We’re not salespeople. We’re educators. Are you confident your company’s 401(k) plan has the following? Compliant Plan Design & Operation Efficient Investment Options Competitive Fees for Service Access to Financial Education Prudent Decision-Making Process
We want to help you check every box. Schedule a plan review by contacting Respective services provided by ARGI Investment Services, LLC, a Registered Investment Adviser, ARGI CPAs & Advisors, PLLC, ARGI Business Services, LLC, and Advisor Insurance Solutions. All are affiliates of ARGI Financial www.HRProfessionalsMagazine.com
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State of the Art Compensation Management Blair and Bruce Johanson have careers in the human resources field and management administration for over 35 years each with specialization in employee compensation programs. Blair and Bruce have implemented several personalized Job Evaluation and Salary Administration Programs for organizations within the public and private sectors. Founded in 2005, DB Squared, LLC, is dedicated to providing a software tool that will increase the productivity of Human Resource staff, improve employee morale and the return for compensation dollars of the organization. JESAP (Job Evaluation and Salary Administration Program) is a program custom-developed by the Johanson Group in 2001. The program is modeled after the firm's proprietary JESAP methodology and job valuing algorithm, which originated in 1985.
Blair R. Johanson Blair R. Johanson, the firm’s president, has over 35 years of business operations experience with a focus on strategic planning, budgeting, hospital and physician management, and marketing and human resource management. Prior to joining Johanson Group, Blair was employed by Pendulum Practice Management Company, Physicians Resource Group, Inc., and Charter Medical Corporation. As a senior vice president, regional operations vice president and hospital administrator, he provided development and operations leadership for numerous physician practices and hospitals. He graduated with a master’s degree in business administration and B.S.B.A. degree in personnel administration from the University of Arkansas at Fayetteville.
Bruce E. Johanson Bruce E. Johanson, a principal officer/partner of the firm, has served in a management capacity in various corporate and non-corporate positions since 1979. Those positions included five years of experience with two major multinational corporations, several years of instructing in various disciplines at the university level, and over 30 years as a management consultant to a diverse client group throughout the United States. He has experience in areas of international business with small, medium and large corporations. Bruce joined Johanson Group in 1986 and served as President of the firm from 1988 until 2000. He received his B.S.B.A. in personnel management in 1978 and his M.B.A. in 1979, both from the University of Arkansas at Fayetteville.
DBSquared combines proven technology and seasoned expertise to help bring your total compensation management into perspective. We provide: DBCompensation® (built on the proven Job Evaluation and Salary Administration Program JESAP™ methodology) is a stateoftheart HR compensation management software application that efficiently combines internal knowledge and expertise with pertinent market information to streamline your compensation strategy and policies. Ultimately simple and elegant, DBCompensation is easily integrated into your business strategy and HRIS environment. Our proven methodology and process combined with thorough and intuitive software development ensure you'll never look back.
Helping clients envision new possibilities is a talented consultant's greatest asset. At Johanson Group, our combined 65 years of experience in all facets of business management enable us to offer the insight and direction that produce meaningful results. We've helped organizations face the management challenges that come with a rapidly expanding staff and customer base. We also assist new business ventures map out their company's future, both strategically and operationally. Our signature approach is to listen and fully understand your company so that we can then partner with you to realize your own unique vision.
www.johansongroup.net info@johansongroup.net 32
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DBDescriptions™ job descriptions software is the cornerstone of an efficient and aligned organizational design. Whether you need one job description or two hundred our database of descriptions has exactly what you need to adapt or create tailored descriptions for your business; all easily accessed through an intuitive webbased application. Utterly simple and efficient.
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Proposed Rule Expands HRA Usage and Forecasts Safe Harbors for ACA Employer Mandate Compliance By FINN PRESSLY and AJAY GOGNAN
The Departments of the Treasury, Labor, and Health and Human Services (collectively, the “Departments”) recently released a proposed rule to expand the use of health reimbursement arrangements (HRAs) and other account-based group health plans. If finalized in its current form, the rule would allow employers to terminate their existing medical plans and shift their employees to the individual insurance market. The proposed rule was developed in response to President Trump’s Executive Order 13813, which directed the Departments to consider proposing regulations that would (1) increase the usability of HRAs; (2) expand employers’ ability to offer HRAs to their employees; and (3) allow HRAs to be used with nongroup or individual health insurance coverage. The Department of Treasury also issued follow-up guidance on November 19, 2018, to provide further details about how stand-alone HRAs integrated with individual health insurance coverage will comply with the employer mandate provisions of the Affordable Care Act (ACA).
Background The ACA requires all group health plans to comply with certain “market reforms,” including the annual and lifetime dollar limit prohibition on essential health benefits and the preventive services mandate. According to existing guidance established by the Departments, a standalone HRA for active employees does not satisfy these market reform requirements unless the HRA is integrated with other group health plan coverage that complies with the ACA’s market reforms. This prior guidance also stated that an HRA may not be integrated with individual health insurance coverage for purposes of the ACA market reforms.
Proposed Stand-Alone HRA Design The proposed rule will now allow the integration of an HRA with individual health insurance policies purchased by employees, provided certain conditions are met. The rule also proposes certain requirements that an HRA must satisfy in order to be integrated with individual health insurance coverage: • Enrollment in Individual Health Insurance Coverage. The HRA must require that the participant and any dependents are enrolled in individual health insurance coverage (other than coverage that consists solely of excepted benefits) for each month the individuals are covered by the HRA. • Uniformity Across a Class of Employees. If a plan sponsor (typically an employer) offers any class of employees an HRA, then the plan sponsor may not also offer a traditional group health plan to the same class of employees. Examples of a “class of employees” include full-time employees, part-time employees, and seasonal employees. This means that executives must be pushed off the traditional group health plan if the HRA model is rolled out to other full-time employees. • Same-Terms Requirement. The proposed rule generally requires that a plan sponsor that offers an HRA to a class of employees must offer the HRA on the same terms (that is, both in the same amount and on the same terms and conditions) to all employees within the class. 34
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• Opt-out. The proposed rule requires that a participant must be permitted to opt out of and waive future reimbursements from the HRA at least annually, and, upon termination of employment, either the remaining amounts in the HRA are forfeited or the participant is allowed to permanently opt out of and waive all future reimbursements from the HRA. • Reasonable Procedures for Substantiation and Verification of Individual Health Insurance Coverage. The HRA must implement, and comply with, reasonable procedures to verify that participants and their dependents are, or will be, enrolled in individual health insurance coverage for the plan year (e.g., requiring participants to provide an insurance card). • Notice Requirements. The HRA must provide a written notice (that satisfies certain content requirements) to each participant at least 90 days before the beginning of each plan year.
ERISA Plan Status Under the proposed rule, the Department of Labor (DOL) clarified that the individual health insurance coverage purchased by the employee in the individual market would not be treated as part of the employer’s group health plan, or as health insurance coverage offered in connection with a group health plan, or as a part of any employee welfare benefit plan for purposes of ERISA, provided all of the following conditions are satisfied: • The purchase of any individual health insurance coverage is completely voluntary for employees; • The employer or other plan sponsor does not select or endorse any particular issuer or insurance coverage. However, providing general contact information regarding the availability of health insurance in a state or providing general health insurance educational information is permitted; • Reimbursement for nongroup health insurance premiums is limited solely to individual health insurance coverage; • The employer or other plan sponsor receives no consideration in the form of cash or otherwise in connection with the employee’s selection or renewal of any individual health insurance coverage; and • Each plan participant is notified annually that the individual health insurance coverage is not subject to ERISA.
Employer Mandate Compliance In separate guidance (Notice 2018-88), the IRS outlined several proposed safe harbors that would help large employers ensure that their HRA designs satisfy the “employer mandate” provisions of the ACA. Notably, the guidance explains that a standalone HRA will be considered an “offer of coverage” sufficient to avoid the potentially catastrophic penalties set forth under Code Section 4980H(a) – the so-called “A" Penalty. With respect to the smaller penalty assessed under Code Section 4980H(b) (the “B" Penalty), the IRS offers some proposed safe harbor methods of determining whether a stand-alone HRA is considered “affordable” to employees. Further, the IRS states that an HRA that meets the Code’s affordability standard will be deemed to offer “minimum value.”
Impact on Employers If adopted as final, the proposed HRA rule could significantly alter the way employers offer medical coverage in the United States. By moving to a “defined contribution” model, employers would be able to cap their annual health care spending and shift the
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risk to insurance companies. However, unless employers provide substantial HRA contributions, employees would bear the brunt of cost increases imposed by insurers in the individual market. Further, without the combined risk pool that comes with a group health plan, employees may find it difficult to replicate their current coverage without increasing their out-of-pocket expenditures. Employers would also lose the ability to control plan design features, because the terms of the underlying medical coverage would be dictated by whatever individual insurance policy has been purchased by the employee. This would leave employees’ coverage options at the mercy of state-level insurance laws, which may or may not offer coverage for all services. For example, since most states do not recognize domestic partners, many employees could lose the ability to cover domestic partners as their dependents. Additionally, access to certain care – such as applied behavioral analysis therapy (or “ABA therapy”) for autism spectrum disorders – may not be available on the same terms as under traditional employer- sponsored plans. States such as Florida and New York permit insurers to impose annual dollar limits on autism spectrum treatment.
Comment Deadline for the Proposed Rule The proposed rule on HRAs and excepted benefit HRAs would be effective for plan years beginning on or after January 1, 2020. Comments on the proposed rule are due on or before December 28, 2018.
Finn Pressly, Shareholder Littler fpressly@littler.com www.littler.com
Ajay Gognan, Associate Littler agognan@littler.com www.littler.com
© 2019 Littler Mendelson. All Rights Reserved. Littler Mendelson®, is a registered trademark of Littler Mendelson, P.C.
At Vanderbilt Peabody College, we believe that fostering the greater good is a critical component of any worthy effort. That's why we equip our students with the skills, knowledge, and experiences to carve out more than just a successful career path. Peabody’s Leadership and Organizational Performance (LOP) master’s degree program trains professionals who can generate positive change in the workplace and beyond. The program’s evidence-based approach to strategy, decisions, solutions and evaluation creates leaders who are ready to change their field, their community, and the world.
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NO-MATCH LETTERS RETURNING By BRUCE E. BUCHANAN
The Social Security Administration (SSA) has announced, in spring 2019, it will resume issuance of Employer Correction Request notices, commonly referred to as “Social Security No-Match Letter” or “No-Match Letter.” These notifications will be going to businesses who submitted wage and tax statements (Form W-2) that contain name and Social Security number (SSN) combinations that do not match SSA’s records.
I. Why Employers Receive “No-Match Letters”? There are a number of reasons, legitimate and illegitimate, why reported names and SSNs may not agree with SSA’s records, including a misspelled name or SSN with a transposed number; a change in the worker’s name due to marriage or divorce; incomplete information on a W-4 or W-2; or use of compound names which are not perfectly aligned in the government databases. Of course, mismatches could also be due to the use of false SSNs. Although one should not assume a no-match letter equals an unauthorized or undocumented worker, the former Immigration and Naturalization Service (INS) and its successor, Immigration and Customs Enforcement (ICE), have told employers that receipt of one of these notifications creates an affirmative duty to investigate the discrepancy. And an employer’s failure to follow-up with an employee could lead to a finding of constructive knowledge of unauthorized employment.
Despite no regulation, ICE still regards an employer's failure to act upon discovering a Social Security discrepancy as evidence of constructive knowledge of unauthorized employment. During I-9 form audits, Notices of Inspection usually subpoena employers’ records concerning no-match letters.
III. IER’s Position II. History of No-Match Letters Let’s try to put some background to no-match letters. In 1993, the SSA began sending no-match letters in to employers who submitted SSNs that did not match its records. In 2006, President George W. Bush’s administration decided these discrepancies could be evidence of unauthorized employment. Thus, it issued a regulation setting forth procedures for employers to follow upon receipt of an SSA no-match letter. Employers who followed those procedures were provided a safe harbor from allegations of having "constructive knowledge" of unauthorized employment. Employers who did not may be found to have constructive knowledge of employees’ unauthorized work status. Before the regulation could be enforced, it was enjoined by a federal court. This litigation continued between 2007 and 2009. The Obama administration rescinded the regulation and suspended all communication to employers regarding data mismatches in 2012. 36
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Another potential problem is the Immigrant and Employee Rights Section (IER) of the Department of Justice, who is responsible for ensuring that employers don’t go too far in their employment verification duties. IER has stated mere receipt of such a no-match letter, without any other evidence, does not give rise to constructive knowledge that an employee is unauthorized to work. Doing so may be considered an unfair documentary practice or evidence of discrimination based on citizenship, national original, or immigration status.
IV. Guidance from IER
V. Conclusion
In 2011, the predecessor to the IER, Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), provided guidance on “do’s and don’ts” related to No-Match Letters. Here are some of these tips:
What happens if your employee does not respond to the letter or otherwise act to resolve the issue? Unfortunately, there is no perfect answer. But HR should not bury their head in the sand. Rather, it should proactively work to resolve the problem.
DO: 1. Check the reported no-match information against your personnel records. 2. Inform the employee of the no-match notice and ask the employee to confirm his name/SSN reflected in your personnel records.
As you see, this will continue to be a difficult issue for employers. Remember if one gets a no-match letter, follow the above guidance and consult with your immigration/employment attorney before taking any action against an employee.
Bruce E. Buchanan, Attorney Siskind Susser PC bbuchanan@visalaw.com www.visalaw.com
3. Advise the employee to contact the SSA to correct and/or update his SSA records.
Greg Siskind Siskind Susser, PC Immigration Lawyers gsiskind@visalaw.com www.visalaw.com
4. Give the employee a reasonable period of time (no specific time period is listed) to address a reported no-match with the local SSA office. 5. Periodically meet with or otherwise contact the employee to learn and document the status of the employee’s efforts to address and resolve the no-match.
SISKIND SUSSER PC
6. Submit any employer or employee corrections to the SSA.
Tennessee’s Largest Business & Employment Immigration Practice
DON’T: 1. Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee. 2. Attempt to immediately reverify the employee’s employment eligibility by requesting the completion of a new I-9 form based solely on the no-match notice. 3. Follow different procedures for different classes of employees based on national origin or citizenship status.
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4. Require the employee to produce specific documents to address the no-match. www.HRProfessionalsMagazine.com
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New Directives from OFCCP: What They Mean for Federal Contractors in 2019 By JENNIFER VALLOR IVY
While we were in the midst of enjoying the hustle and bustle of the holiday season this year, the Office of Federal Contract Compliance Programs was busy at work releasing a trifecta of new directives. According to OFCCP, the new directives released on November 30, 2018 will assist OFCCP in “fulfilling its enforcement mission with more accountability and efficiency, as well as the Department’s efforts to maximize the effectiveness of compliance assistance outreach to assist contractors in meeting their responsibilities.” Keep in mind, however, that directives do not establish legally enforceable rights or duties. Instead, they are simply guidance to OFCCP staff or federal contractors that give an idea of how OFCCP interprets its own regulations along with federal law. As a whole, the new directives are beneficial to the contractor community and are an effort by OFCCP to show their commitment to consistent enforcement and cooperation with federal contractors. This article will summarize those new directives and explain what they mean for federal contractors in 2019. The three new directives cover the following areas: (1) “clarifying the Agency’s compliance review procedures”; (2) “ establishing a process to resolve compliance evaluations at the earliest stage possible with corporate-wide compliance”; and (3) “ establishing an opinion letter process and enhancing OFCCP’s help desk.” Let’s talk about what each of these means and what contractors can expect from OFCCP in 2019.
and increase efficiency. With the new directive, OFCCP staff members are now directed to follow compliance procedures described in the Federal Contract Compliance Manual and other OFCCP guidance. This new directive also brings a welcome clarification: contractors who are audited by OFCCP can expect not to be audited again for 24 months after the closure of a compliance evaluation or acceptance of a progress report under a conciliation agreement. As discussed below in the other two new directives, the time prohibitions for neutrallyscheduled compliance evaluations in certain circumstances is another part of the new directives that favor contractors.
Directive 2019-02: Early Resolution Procedures Also in the spirit of increasing efficiency, Directive 2019-02 is intended to more quickly remedy violations through the establishment of Early Resolution Procedures (ERP). Directive 2019-02’s ERP are focused on contractors with multiple establishments to assist with compliance in all establishments, not just for the establishment in review. The new procedures, ideally, are to be completed within 60 days, and are applicable to three types of violations: For non-material violations, the Compliance Officer should attempt to resolve the issue during the desk audit, provide assistance, and issue a simple closure letter. This includes violations that can be corrected immediately where there is no evidence of material violations or discrimination. No formal conciliation agreement is needed. The procedures dealing with non-material violations apply to all contractors, regardless of whether it has multiple establishments.
This Directive rescinds Directive 2011-01, the Active Case Enforcement Directive, an Obama-era policy from December 2010. Directive 2011-01 was issued by former Director Patricia A. Shiu and set forth the Active Case Enforcement for compliance evaluations. Under that Directive, overall processing time increased because of the requirement of full desk audits and the increase in mandatory onsite reviews. Current Director Craig Leen, who formally went from Acting Director to Director on December 26, 2018, sought to address these issues, namely through the new Directive 2019-01. One of the clear themes of the new directives, especially Directive 2019-01, is increasing efficiency of the agency.
For material violations that do not involve discrimination by a contractor with multiple establishments, violations may be resolved through an Early Resolution Conciliation Agreement with Corporate-Wide Corrective Action (ERCA). This would include violations involving record-keeping, applicant tracking, failure to conduct self-analysis, and a failure to implement audit and reporting systems, among others. An ERCA sets a mandatory monitoring period wherein the contractor must review its other establishments for similar violations and correct same, if necessary. As an incentive to execute an ERCA, OFCCP will not schedule a compliance evaluation for the originally audited establishment for five years, although it may conduct a review at other establishments, including those covered by the monitoring requirement. Again, the procedures in this paragraph apply to contractors with multiple establishments.
This new directive came after the OFCCP had already adopted other new guidance and procedures intended to increase transparency, increase the number of compliance evaluations, shorten the time it takes to complete desk audits, and more quickly conciliate alleged violations. In practice, this Directive will maximize the agency’s resources
Last, for material violations that involve discrimination by a contractor with multiple establishments, the OFCCP will request additional information and conduct interviews in order to calculate a monetary remedy and then complete its analysis. An ERCA may be offered, during which the contractor can attempt to rebut the finding
Directive 2019-01: Compliance Review Procedures
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of discrimination. However, should discrimination still be found, OFCCP will seek relief for the affected individuals, and the contractor will then have to review its other establishments for similar violations and implement corrective action during a five-year monitoring period. Under this scenario, OFCCP will not schedule a compliance evaluation at any of the contractor’s establishments covered by the ERCA for a five-year period. The procedures in this paragraph also only apply to contractors with multiple establishments.
Legal Challenges are Coming at HR Professionals from Every Direction
Directive 2019-03: Opinion Letters and Help Desk Under this directive, OFCCP will attempt to enhance its compliance assistance efforts by revamping its help desk and by beginning to issue Opinion Letters, much like other Department of Labor agencies. This is an effort to offer more “certainty about how OFCCP exercises its authority.” As Director Leen indicated several months ago, OFCCP has now decided to implement these new ways to assist contractors and employees. Regarding Opinion Letters, OFCCP will establish a process by which employers or employees may request guidance via opinion letters. These opinion letters, like opinion letters from other agencies, are not the law, but they will provide welcome guidance to OFCCP stakeholders. Typically, opinion letters are issued by the agency based upon a fact-specific question. OFCCP has indicated that it will consider whether a contractor acted consistently and in good faith with such guidance in determining whether a violation has occurred. Like with other agencies, the requestor will remain anonymous. Prior to the issuance of an opinion letter, the Office of the Solicitor will review the guidance to ensure its consistency with relevant statutory and regulatory law. The goal is that these opinion letters will assist in reducing uncertainty in fact-specific or unusual situations. Still, OFCCP was clear that it would not issue an opinion letter regarding issues in pending litigation or already under a compliance review. Similarly, as to the OFCCP help desk, certain inquiries and responses will now be available and searchable on OFCCP’s website. Contractors have already had the capability to call a toll-free helpline (1-800397-6251) or e-mail the help desk for assistance with technical compliance issues. And OFCCP already occasionally releases official FAQs along with responses to offer guidance on repeated questions. Again, contractors who rely in good faith on a help desk answer may be protected later should OFCCP investigate it for a violation for a related action. In sum, these directives from OFCCP are more contractor-friendly than those we have seen in the past. OFCCP continues its trend toward increasing efficiency, certainty, and transparency. OFCCP plans to increase its number of audits in 2019 as well as institute the various compliance verification procedures. To that end, federal contractors should be up-to-date on their legal obligations and prepare for a potential compliance review.
That’s Why Rainey Kizer Makes Your Business Our Concern As the issues facing HR executives become more frequent, challenging, and complex each year, you need a law firm that provides advice invidualized for you specific needs. This is why you should know the employment law attorneys at Rainey, Kizer, Reviere & Bell, PLC. For over 40 years, our AV-rated firm has advised businesses, non-profit organizations and government agencies on all aspects of employment law. To learn more, please call.
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Nip It Now: WORKPLACE HARASSMENT By LEEANN BAILES FOSTER
TEAM FOSTER’S VISION Imagine this! It’s 2045. Our granddaughter began her career at Team Foster HR Strategy 3 years ago. Our daughter, Laura, now the Head Coach of the $1,000,000,000.00 company. There are 149 employees. I met our granddaughter for lunch. She is doing training for several clients in the Southeast. I asked her what the company’s Workplace Harassment Training was comprised of nowadays. She looked confused. Team Foster HR Strategy does not offer a Workplace Harassment Training Program. There is NO need for one. Every company she has ever been in contact with has a Culture of the Utmost Respect. Let’s ERADICATE Workplace Harassment in the workplace. How do you feel about this vision? Do you believe Workplace Harassment can be eradicated? Team Foster believes that it is possible.
PAST ERADICATION Great things begin small and escalate. Every accomplishment begins with a thought. One person – one thought. What about Sweat Shops in the United States? In the 1920s, the employees working in the horrid conditions for minimal pay never dreamed an end would come to Sweat Shops. Horrid doesn’t adequately describe the conditions our ancestors worked in. What about smoking in public? When I was a child folks smoked everywhere. I can remember walking into my Dad’s smoked-filled office because of his co-workers smoking at work all day, every. Not anymore. The company where I led the Human Resources function for 23+ years was one of the first companies in Knoxville, TN to enforce a smoke-free campus. We can do this. Join me in making the Team Foster vision become a reality. Harassment should not be feared at work.
HENRY CLOUD QUOTE
“
In the end, as a leader,
you are always going to get
a combination of two things;
what you create and what you allow.” www.HRProfessionalsMagazine.com
THE ROOT CAUSES OF THE PROBLEM Workplace Harassment begins as rude or unprofessional behavior; then, it follows this pattern of escalation – dismissive and unwelcoming behavior, abusive and bullying behavior; then, finally, illegal behavior. Who is in control of the conditions surrounding you? Are you?
Misuse of Control and Power There are five types of power present in the workplace: 1. Coercive - conveyed through fear of losing one’s job, being demoted, receiving a poor performance review, having prime projects taken away, etc. 2. Reward - Reward power is conveyed through rewarding individuals for compliance with one’s wishes. 3. Legitimate - Legitimate power comes from having a position of power in an organization, 4. Expert - Expert power comes from one’s experiences, skills or knowledge. 5. Referent - Referent power comes from being trusted and respected.
Henry Cloud is one of my favorite authors. He is a psychologist who works with CEOs and Work Teams to help them maximize their potential. This is my favorite Henry Cloud quote:
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You and I create and allow most of what we deal with day in and day out. I want to inspire and encourage all employees to ‘Control the Conditions’. Workplace Harassment is not a knowledge problem. It is a behavior problem. The problem is the misuse of control and power; and, inequality. Let’s learn more!
~ Henry Cloud
Having power is not the problem. Misusing the power is the problem. Some examples of misusing power are being threatened repeatedly regarding being fired and being humiliated in front of co-workers. This type of harassment will demoralize the workforce causing productivity and profits to plummet.
Inequality Inequality in the workplace acerbates the Workplace Harassment problem. Ten of the most realized problems related to inequality are: sexual harassment, unequal pay, terminations, interview questions, glass ceilings, diminished responsibilities, positional bias, restrooms, conversations, and outdated views. What are we going to do to put an end to inequality? Let’s take control of our conditions by being personally accountable for what we create and allow.
THE CHALLENGE!
THE THREE R’S
Are you ready to take a giant step out of your comfort zone? Don’t get me wrong: Any unwanted and unwelcomed sexual advancement or workplace harassment is WRONG, 100% wrong! I am just challenging you to control the conditions around you to keep from placing yourself in an awkward and/or uncomfortable situation. Try the advice below.
No! Not reading, writing and arithmetic. The Three R’s below will aid in assisting you in controlling your conditions and/or seeking help if necessary. 1. Recognize Firstly, we must recognize what is going on. Stay tuned in. Be aware of your surroundings. Don’t be totally paranoid, just cautiously paranoid! Bullies come in all forms: loud and obnoxious, two-faced, consistently critical, withholding resources, etc. Notice early on when you are being taken advantage of. 2. Respond Oh no! You have done your very best to control the conditions, but a harasser got through to you any way. Don't feel badly. Bullies are very manipulative and coercive. Be ready to respond appropriately when this happens. STOP – CHALLENGE – CHOOSE! I learned of this method from the book Play to Win by Larry Miller. Below is a model that explains the method perfectly.
10 Ways to Be Safe and not Sorry 1. Jokes, stories and images that have anything to do with sex acts or body parts are to be avoided. 2. Keep your work parties “PG” rated. 3. Ensure that all senior-level employees attend anti-harassment workshops. 4. Respond to harassment complaints right away. 5. Prevent retaliation. 6. Be conscience of how you look at the opposite sex.; and again – how you laugh at inappropriate comments or jokes. These are ‘gateway’ actions. 7. Dress appropriately. Women: Cleavage is NOT appropriate at work. Men: Only one button unbuttoned. 8. If the tips above don’t work and you still feel uncomfortable, immediately make it clear that you are only interested in a work relationship. 9. Be conscious of ‘feelers’! Folks will test the waters before making an outright advancement. 10. Always keep in mind that perceptions differ, markedly. Finally, rethink your 3rd drink at a Company or Work Function, or, maybe even your first! Stay in control of your actions. Discipline yourself to NO MORE than two units of alcohol while fraternizing with co-workers.
Be prepared to respond by practicing “If, Then…” statements. I put together some examples for you. Say “NO!” early and continue to thrive in your current workplace. 3. Report If inappropriate advances and/or behavior continue, please report the issue to the appropriate authority. Contact your supervisor or the Human Resources Department. Contact the Equal Opportunity Employment Commission (EEOC) or the Department of Labor if the behavior is based on race, gender, national origin, color, religion, age or other protected classes. Here's a link to a page on the U.S. Equal Employment Opportunity Commission website that you might be interested in... https://www.eeoc.gov//eeoc/publications/promising-practices.cfm. Lastly, contact the police if the bullying or harassment rises to the level that it violates criminal law. The Key Point is to notify someone.
Please join me in doing all that can be done to fulfill the Team Foster vision. It can be done. Eradicating Workplace Harassment will not only increase morale which will lead to greater productivity; it will equalize the workplace leading to equal pay, broken glass ceilings, decreased positional bias, and increasing duties and responsibilities for all. Contact LeeAnn at leeann@teamfosterhrstrategy.com to join the movement.
LeeAnn B. Foster | Head Coach Leadership & HR Consultant www.teamfosterhrstrategy.com www.HRProfessionalsMagazine.com
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Turning People Into Teams: Rituals and Routines That Redesign How We Work By Dave and Mary Sherwin
Any book with “teams” in the title gets my attention for some reason. Perhaps because this particular word has so many inferences; sports teams, work teams, project teams, departmental teams, problem-solving teams, functional teams, cross-functional teams, virtual teams, self-managed teams, and so on. These types of teams are endless. And although Turning People into Teams: Rituals and Routines That Redesign How We Work by David and Mary Sherwin does not make reference to these specific team types; the title did get my attention and for many good reasons. Allow me to explain.
To say that every one of us has been on a work team or committee at some point in our career would honestly not be much of a stretch. We understand or at least feel comfortable with the nuances encountered by this all-to-common placement of our efforts. Then why is it that while some teams work well together, some do not? Afterall, wasn’t the team’s objective to have a positive outcome? The reality is that all too often, success of the team is hit or miss. Team members are left wondering where exactly things took a wrong turn. It does not have to be that way and this excellent guide explains why.
Rituals & Routines? The concept of work teams; a group of employees who work together to achieve a common objective, appears clear enough. Yet work teams, for all intents and purposes, are intrinsically behavioral and therein lies the problem. No two are alike and despite this attribute, common benefits such as goal clarity, dependability, teamwork, and collaboration are required. But how do teams, or more specifically, team members, 42
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realize these when they too are fundamentally behavioral? This seems to be the central contradiction of work teams; team ideals versus people reality. The Sherwins, who are seasoned training professionals, thoughtfully approach this dilemma with a unique insight. That work team cohesion is not just people working together for a common goal but where coworkers are designing and building experiences though team dynamics, rituals, and routines. Honestly, I had not thought of work teams in this way before. Turning People into Teams does an excellent job of identifying the collaborative strategies required by work teams. For example, one ritual discussed early within Part 1 deals with not just one value each team member brings with them but the multiple values shared by the group. This one distinction allows members to forge a bond earlier on. An emphasis on gained synergy is also at play throughout the book. Interestingly, as our authors point out, true team collaboration is gained only when careful questioning is put into play. I also find it a practical field guide for project leaders who want their teams to play by a better set of rules, progress better alignment among members, create better decisionmaking processes, and have a greater sense of ownership over team success. I say this because after reading it, previous team experiences immediately came to mind where had I known why fellow team members were behaving a certain way, I could have suggested immediate corrections. Or as the leader of a team, I could have better captured the strengths of each member.
Why Should You Read this Book? Let’s face it. Work teams are simply part of our business vernacular and this is not likely to change any time soon. But with work teams, inevitable patterns often emerge that are not always of our making. Work teams need better alignment, better decision-making, and of course, a better sense of identity and ownership. In Turning People into Teams, the authors provide a collection of the best rituals and team practices that work and should be followed. If you think about it, work teams should have the autonomy to shape the processes and systems that affect them once commissioned. They also should not have to wait for a special initiative or executive mandate. Readers will see a collaborative strategy that effective work teams develop and sustain throughout the team’s time together. This book will help work teams:
- Create team rituals that aid them in making better decisions and following through on objectives. - Identify patterns of behavior earlier on that can interfere with team performance. - Reinforce habits that will help team members gain a shared sense of ownership.
Structure and Layout Turning People into Teams: Rituals and Routines That Redesign How We Work is purposely structured like a standard project timeline. Part 1 (Chapters 1 – 4) “Better Beginnings” is useful for projects that are just starting up or are having a hard time getting momentum. Part 1 includes 11 rituals and asks questions about the team, its objective, and helps identify the personal attributes each member brings. Part 2 (Chapters 5 – 7) “We’re Stuck, Now What?” provides examples of common conflict that tends to stall teams, types of useful feedback and where to find it, decisions that should be made, options to consider, and how work teams can develop solid ideas and hypothesis for moving forward. Part 2 includes 11 rituals that aid work teams in discovering how to resolve problems that are keeping them in limbo. In Part 3 (Chapters 8 – 9), “Sprinting to the Finish” delivers important reflective questions any work team needs to consider about their effort and outcome. The 5 rituals mentioned here allow members to put the team’s accomplishments into better perspective. Project and team leaders, do yourself a favor and make this book required reading by each member of your team!
Who Will Benefit Most from This Book? Project leaders, Work team leaders, Team Supervisors. ABOUT THE AUTHORS:
David Sherwin and Mary Sherwin are cofounders of Ask the Sherwins, LLC, a consulting and training firm that helps organizations around the world develop the capabilities they need for stronger teamwork.
William Carmichael, Ed.D Professor | Strayer University william.carmichael@strayer.edu www.strayer.edu
Compliance with Compassion… … using your head, your heart, and your hands to nurture your employees. TEAM FOSTER HR STRATEGY provides comprehensive human resources consulting services for small to mid-size businesses. Offering turnkey solutions for clients, Team Foster is committed to compliance with compassion. With 30 years of industry experience, LeeAnn excels at relationship management, conflict resolution, and employee engagement. Team Foster works with you to motivate and manage HR issues from the inside out – supporting your existing human resources team and coaching your staff to solve problems with an integrated approach. Team Foster HR helps you build a collaborative corporate culture to further your business goals and strengthen your performance.
LeeAnn B. Foster | Head Coach Leadership & HR Consultant +1 865-719-1177 mobile WWW.TEAMFOSTERHRSTRATEGY.COM
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SHRM-Memphis Member Mixer January 8, 2019
Memphis
2019 SHRM-Memphis Board of Directors
(L-R) Jeff Weintraub, Brigette B. Wilson, Verlinda Henning, Dale Harris, Nancye Claxton, Andrea Bowles, Dr. Kathy Tuberville, Jacqueline Elliot, Cerita Butler, Tyler Stegall, David Dufour and David Estell
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A Night of Excellence…Celebrating the
A Night of HR Excellence 2017 Stars of HR !! Join SHRM-Memphis as we honor the
Best and the Brightest inbest HRand at our 2019 in HR Join SHRM-Memphis as we honor the the brightest at the
HR Excellence Awards
SHRM-Memphis HR Excellence Awards Tuesday, February 26, 2019
Tuesday, February 20, 2018 Hilton Memphis 939 Ridge Lake Blvd Memphis Bioworks Foundation 6:00 – 7:30 pm
20 South Dudley Street
An Exceptional Night recognizing the outstanding 8:00 pmand Mid-South area. HR Professionals 5:30 in the –Memphis Honoring the nominees and winners of the following:
A gala evening of celebration, recognizing the nominees and George winners Mabon HRofExecutive of the Year Award the following: HRHR Emerging Leader George Mabon Executive ofAward the Year Award Memphis HR Champion Award HR Emerging Leader Award
Memphis HRAchievement Champion Award HR Lifetime Award HR HR Lifetime Achievement Award Student of the Year Award HRAdmired StudentOrganization of the YearinAward Most HR Award Registration is open…please visit the SHRM-Memphis Website at www.shrm-memphis.org.
Registration is open...please visit the SHRM-Memphis website at www.shrm-memphis.org.
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Embracing Payroll Technology: What To Consider When Choosing a New Provider BY CHRISTIAN VALIULIS
Change can be a scary thing, no matter what the situation is. There are a lot of potential unknowns that come with something new, but the payoff can be great for those willing to take the plunge. If you’re thinking about switching payroll providers but you’re concerned about missed pay periods or data errors during the transition, you are not alone. However, there is much more to be lost from using ineffective payroll solutions than in the conversion process itself. The key to a successful payroll conversion is a streamlined process that meets the unique needs of your company while minimizing the amount of work required to get started. There are many reasons why businesses are reluctant to embrace a new payroll solution, but there are ways to overcome apprehension from your top-level management, peers, and employees. When you’re ready to make the switch, it’s important for your company to not only consider the six factors below but also have the discussion around your company embracing this change.
Six Things to Consider in Your Search An automated payroll system should help solve challenges you’re currently facing. Remember, the solution is supposed to be a company asset, not an unnecessary expense. Once you’ve decided to change providers, consider these six factors when you are searching for an automated payroll solution: #1. Payroll Conversion Timing Switching payroll providers can be an overwhelming process, but you don’t have to wait until the beginning of the year to make a change. You can make the switch to a new provider anytime. If you are considering a mid-year conversion, typically anytime between April and June is a great time to start the process. Converting at the start of any quarter provides a seamless transition of data, decreasing the risk of missed or lost information in the handoff during the middle of the quarter. If you aren’t ready for a switch so soon, another option is to convert towards the end of the year. The ideal time to begin a year-end conversion is October so it doesn’t conflict with any year-end processing you need to handle. No matter which time of year you choose to make a switch, an implementation process completed electronically will ensure a smooth transition and eliminate the need for manual data entry. A large part of the success of this process is ensuring you are working with experienced, knowledgeable sales and implementation teams who understand your pain points and are involved every step of the way. #2. Data Conversion One of the most important steps of the conversion process is migrating company data out of your old system and into the new system electronically to improve accuracy. Electronically migrating data improves accuracy because you are eliminating manual data entry and decreasing data entry errors. To assure your information will be correct, make sure the following tasks are performed: 46
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• Data Conversion: Year-to-date history is entered into the new payroll solution. • Payroll Assessment: A payroll compliance assessment is performed to reconcile data history. • Accuracy Validation: Parallel, or side-by-side payrolls, are run prior to the first live payroll submission to confirm data and tax settings are correct. Look for providers who assign you an implementation project manager to handle your data conversion process. They should perform the above tasks in addition to importing payroll and employee data from previous years. #3. Data Integration Capabilities Many companies have existing systems in place, such as accounting software, point-of-sale (POS) systems, and benefits administration software. The ability to integrate these existing systems with an online payroll system is a huge benefit from the systems syncing data to eliminate manual processes and data entry. Consider providers who have an established portfolio of integrations with the most popular business applications and vendors. Providers who own and develop their own technology have the flexibility to develop their own data integrations so you have a tailored solution. #4. Payroll Tax Compliance Management With payroll tax compliance rules constantly changing, it’s crucial to utilize a payroll provider with a tax compliance department that will help manage these updates. Once the conversion is complete, a tax compliance team should update your payroll tax tables, handle tax filings and payments, and provide resources for year-end processing. A good payroll provider should have a tax compliance team that consists of experts who will review your existing data to check for any potential payroll tax errors. Concerning payroll and tax compliance management, always ask these important questions: • What is the provider’s most recent tax error rate? A low tax error rate shows consistency and accuracy in payroll processing to reduce penalties. • What does the provider offer in terms of Affordable Care Act (ACA) compliance and reporting? Take a look at the features and benefits their solutions offer and how they will work with your compliance strategy, particularly ACA reporting. • What type of security protocols does the provider follow to protect client data? An experienced provider will have controls in place to protect your data such as SSL encryption and two-factor authentication. #5. Customer Support Another equally important factor to consider during a payroll conversion is the level of customer support and training provided. Your trainer should create a training plan to meet any unique deployment needs. You should feel confident in knowing your support team is readily available and highly responsive for issue resolution for an excellent experience. When determining the level of support offered by a payroll provider, some questions to ask include: • What professional payroll certifications do the support staff hold? • Will I receive a dedicated account manager and team?
• Is the support staff available via phone, chat, or email? • What are the support staff’s response times? • Are there specialists available to help with more complex questions related to benefits and ACA compliance? #6. Customer Reviews Before you choose your payroll provider, you must conduct a thorough evaluation of each provider on your radar. Check peer review sites for intimate product knowledge by real users who have experience using the software. When reviewing software review sites, consider the following:
The purpose of these automated systems is to take the burden out of manual tasks that nine out of 10 employees feel on a daily basis; they are designed to help them perform their duties, not replace them entirely. To reinforce this message, demonstrate how the implemented solution is an asset to the employee such as electronic employee files for instant access to pay stubs, PTO balances, and employee benefits. They’ll see an automated system as a tool for growth, helping them be more productive. As long as you maintain open communication with your employees about how the system will benefit them, you can anticipate streamlined, rapid adoption.
• Is the payroll solution highly usable and easy to adopt?
Select and Implement Your New Payroll Solution
• Did the solution solve the reviewers’ payroll needs?
When selecting and implementing new payroll software, there are several factors to consider for a successful conversion. You don’t want to invest a major amount of money and time to implement a payroll solution that misses the mark in helping solve your business goals and payroll needs. Make sure you choose a provider who is knowledgeable in payroll processing and tax compliance, and has a reputable track record for customer retention. Implementing a new payroll solution can be overwhelming, but if you complete your research on different providers, communicate with your employees, and show them how they’ll benefit from the switch, expect to see major growth in your company’s future.
• Are the same issues or dislikes being brought up with a feature, customer support, or the technology itself? The Net Promoter Score (NPS) is another objective way to gain insight that measures customer satisfaction and experience. Ask for the company to provide their most recent NPS or find the information and other customer feedback on a third party site such as G2 Crowd.
How to Get Your Company On Board While these six things to consider during your search for a provider are extremely important, remember to communicate across the company from executives to employees by showing them how the change will benefit them. Explain to executives how implementing an automated solution can provide real-time data reports to gain insight into payroll related labor costs and liabilities.
Christian Valiulis, Chief Revenue Officer APS Payroll cvaliulis@apspayroll.com www.apspayroll.com
PAYROLL & HR
SOLUTIONS Designed to Save You Time and Money
855.945.7921 | apspayroll.com www.HRProfessionalsMagazine.com
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INTEGRATING MENTAL HEALTH AS PART OF
OVERALL HEALTH
By MURRAY L. HARBER
We all have our good days, and we have our bad days managing the stressors in our lives while trying to control our reactions to those stressors in a positive way. To help yourselves, you might use your Employee Assistance Program or utilize your mental resources in your health plan and you might not. You might talk with your co-worker, your friends, or spouse about your concerns or you might keep it in. We all manage stress and mental health differently and use our own coping skills and tools. Some use negative coping behavior which can lead to alcohol and drug concerns. Stress remains as a top health risk factor in an employer population. Employees are reporting a more considerable amount of stress each year and a need for more resiliency. Company leadership and the human resource professionals are starting to take note of how they are addressing stress and mental health in their employee population. Some employerbased health plans are modifying their benefits to being more integrated and comprehensive when it comes to their behavior and mental health plans. The low usage of Employer Assistance Programs (EAP) along with network adequacy concerns with mental health providers has created a landscape for a needed change. Most EAPs are minimally used at a mere 3-5% of eligible users. The old stigma of the EAPs being the only resource for drug and alcohol abuse and people with issues are still alive and well. However, there is good news; the workplace is changing to provide more programs where the EAP is the gatekeeper to identify the concerns and up-regulate the person to the appropriate resource and in some cases a higher level of care.
THE COST OF STRESS & MENTAL HEALTH The World Health Organization estimates that because employees are not seeking treatment, employers are losing an estimated $22.5 billion annual each year due to stress, anxiety, depression, and substance use disorders. Reports show that one in five Americans have a diagnosed mental health condition and only 41% of those people received mental health services. This makes for a growing concern as the people that need care are not getting the right care. Another alarming statistic is 53% of employees report they did not know if their company offers mental wellbeing programs or if support is available. Employers need to promote their mental health benefits to gain greater awareness and utilization. What about the other costs affected by stress and behavioral health such as presenteeism, which is how present you are at work when you are dealing with health, mental health, and other work-life issues? Presenteeism is estimated to cost employers $150 Billion per year dragging an employer’s productivity. All of these costs add up, representing a drain on an organization's overall health and productivity.
EMPLOYER WITH A VISION Southern Farm Bureau Life Insurance Company is a national leader in paving the way towards new employee benefits and health and wellness 48
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programs. In 2019, the Company launched a new behavioral health network – American Behavioral – which includes an Employee Assistance Program, along with clinical providers. This benefit will give employees, and their family member’s access to convenient and quality healthcare. It will provide meaningful information and connections to resources for stress, financial, relationships, eldercare, and mental health. SFBLI works with HUB International to help manage its employee benefit health-care vendors and has led the process of bringing on value-based benefit programs. The population health/clinic vendor, Vigilant Health, has a care team that works with many of the health plan members and will make referrals to American Behavioral making it a seamless transition for the patient. “At SFBLIC, a top priority in the evolution of our company benefits is providing our employees with diverse choices in the treatment of mental health. For many years, we have had an Employee Assistance Program (EAP) for our employees and dependents to help with issues such as stress, depression, financial and family matters. We recently formed a partnership with American Behavioral. This partnership will continue to meet the EAP needs of our employees and provide additional resources to address mental health issues beyond a traditional EAP program. We know that unmanaged mental health can cause time-away-from-work and production issues for companies. Our company believes in taking extra steps to ensure our employees are getting the help they need and deserve.” Joyce Plunkett, VP Human Resources, Southern Farm Bureau Life Insurance Company
EMPLOYER RECOMMENDATIONS The National Association of Healthcare Purchasing Coalitions released a report sharing recommendations for employer’s to consider when improving access to care for mental health and substance abuse. The following is a short list of items to consider: • Compliance with the Mental Health Parity and Addiction Equity Act and local statutes • Tele-psychiatry • Use of PHQ-9 as a tool to prove quality of care and outcomes • Ensuring network adequacy and expanding the use of collaborative care models • Advancing measurement-based care The Catalyst for Payment Reform has created a series of performance standards for behavioral health which will help in expended such benefits. To learn more about their recommendations, please visit www.catalyze.org.
RESOURCES IN MISSISSIPPI The Mississippi Department of Mental Health has created the “Think Again about Mental Health” campaign to inform and education Mississippian’s about the prevalence and options for mental health conditions. The Stand Up Campaign – www.standupms.org – was developed to eliminate the opioid crisis in Mississippi and is a collaboration between many state and community partners. The Mississippi Crisis and Help Line – 977-2108513 — is the first call for help and should be promoted to all employees.
Murray L. Harber, Executive Director Mississippi Business Group on Health mharber@msbgh.org www.msbgh.org
University of Memphis Department of Management The Department of Management in the Fogelman College of Business and Economics at the University of Memphis is pleased to announce its new chair, Dr. Kurt Kraiger. Dr. Kraiger received his Ph.D. in Industrial-Organizational Psychology from The Ohio State University in 1983. He has previously served as chair at the University of Colorado at Denver, the University of Tulsa, and Colorado State University. Dr. Kraiger conducts research on learning in ill-structured environments including technology distributed learning, mentoring, work-life balance, and informal learning. The Department of Management offers AACSB accredited training in human resource (HR) management and organizational behavior. Faculty with an expertise in these areas include: Kurt Kraiger, Chuck Pierce, Carol Danehower, Kelly Mollica, Kristen Jones, Alex Lindsey, and Kathy Tuberville. The department offers undergraduate courses on HR topics such as introduction to human resource management, compensation & performance appraisal, employee relations, staffing organizations, and training & development. The University also offers MBA and executive MBA courses on topics such as managing human resources and strategic human capital management, as well as various doctoral research seminar on human resource management. Additionally, they have a student chapter of the Society for Human Resource Management (SHRM) and an undergraduate concentration in HR management. For more information, please contact Dr. Kurt Kraiger, Chair of the Dept of Management (kkraiger@memphis.edu; http://www.memphis.edu/management).
Fogelman College Department of Management
Dr. Kurt Kraiger, Chair and Professor
Dr. Kurt Kraiger, Management Department Chair, at kurt.kraiger@memphis.edu.
Dr. Charles A. (Chuck) Pierce, Ph.D. Professor
Kelly Mollica, Ph.D., Instructor
Carol Danehower, Ph.D., Kristen P. Jones, Ph.D., Associate Professor Assistant Professor
Alex P. Lindsey, Ph.D., Instructor
Kathy Tuberville, Ed.D., Instructor www.HRProfessionalsMagazine.com
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