Volume 5 : Issue 2 TM
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SHRM
MSSHRM
Leadership Conference February 14 in Biloxi
NLRB Alters Landscape
for Employee Use of Company Email
Employment Law and Legislative Conference March 23-25 in Washington, DC
LoriMembership Chester, Director
MSSHRM
State Council
TNSHRM
ACA Reporting –
An Opportunity in Disguise?
Strategic Leadership Conference
February 20 in Nashville
New OSHA Rules
on Injury Reporting
JUST PUT IT ON THE COMPANY CARD…NOBODY WILL NOTICE.
YOU’RE REALLY SHOWING OFF YOUR BEST ASSETS TODAY.
THEY’RE WORRIED ABOUT OVERTIME. I’M JUST WORKING OFF THE CLOCK.
I NEVER WEAR THE SAFETY GOGGLES. THEY LEAVE A MARK.
What you don’t hear can still hurt you. The things employees say when you’re not around can cause legal troubles for you. Fisher & Phillips provides practical solutions to workplace legal problems. This includes helping you find and fix these kinds of employee issues before they make their way from the water cooler to the courthouse.
1715 Aaron Brenner Drive • Suite 312 • Memphis, TN 38120 • 901.526.0431 www.laborlawyers.com
ATLANTA BALTIMORE BOSTON CHARLOTTE CHICAGO CLEVELAND COLUMBIA
COLUMBUS DALLAS DENVER FORT LAUDERDALE GULFPORT HOUSTON IRVINE
KANSAS CITY LAS VEGAS LOS ANGELES LOUISVILLE MEMPHIS NEW ENGLAND NEW JERSEY
NEW ORLEANS ORLANDO PHILADELPHIA PHOENIX PORTLAND SAN ANTONIO SAN DIEGO
SAN FRANCISCO TAMPA WASHINGTON, D.C.
Bringing Human Resources & Management Expertise to You
4%
Only of companies are operating at the highest level of predictive analytics www.HRProfessionalsMagazine.com Editor
Cynthia Y. Thompson, MBA, SPHR Publisher
The Thompson HR Firm HR Consulting and Employee Development Art Direction
Park Avenue Design Contributing Writers
Sally F. Barron Bruce E. Buchanan Brenda N. Canale Alisa Chestler Dale Conder, Jr. Harvey Deutschendorf Matt Ginn Ashley R. Griffith Murray L. Harber Josh C. Harrison Jimmy Hinton Timothy Lindsay Ted Lotchin Lisa P. May Chris Menard Abtin Mehdizadegan Brad Owens Ashley Pace Ricky Reynolds Blake Rogers Christy Showalter Tanja L. Thompson Donna Tosches Board of Advisors
Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR John E. Megley III, PhD Terri Murphy Susan Nieman Robert Pipkin Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2011 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.
Features 4 note from the editor 5 Profile: Lori Chester, MSSHRM Membership Director 10 The Hazards of the Industry – New Requirements for Reporting to OSHA 12 ACA Reporting: An Opportunity in Disguise? 16 Using Technology to Improve the Health of the Workforce 18 Is Your HRIS ACA-Ready? 25 The Importance of NAPBS Accreditation 31 HIPAA Settlement Underscores the Vulnerability of Unpatched and Unsupported Software
WEB EXCLUSIVES
5 Elements of Emotionally Intelligent Negotiating By Harvey Deutschendorf
HTTP://HRProfessionalsMagazine.com /Exclusives
Departments
14 Employment Law – Have You Scheduled Your HR Checkup for 2015? 20 NLRB Alters Landscape for Employee Use of Company Email 22 Records Retention – To Keep or Not to Keep? 24 Ban the Box Legislation Continues to Spread 26 Mississippi Public Policy – Termination for Possession of Firearm 27 OFCCP – Appellate Court Upholds Recent Amendments to Disability Regulations 28 Healthy Workplaces, Healthy Communities in Mississippi 29 Critical Illness Insurance – Show Some Love 30 Immigration – What do the President’s Executive Actions Mean?
Industry News 6 TNSHRM Strategic Leadership Conference in Nashville on February 14 7 SHRM Employment Law and Legislative Conference in Washington, DC on March 23-25 8 MSSHRM Leadership Conference in Biloxi on February 20 9 ARSHRM HR State Conference & Expo in Hot Springs April 8-10
Next Issue Highlights of 2015 MSSHRM Leaders Conference February 14 in Biloxi Highlights of 2015 TNSHRM Strategic Leadership Conference February 20 in Nashville HR Public Policy Update www.HRProfessionalsMagazine.com
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a note from the Editor
O
ne of the nine HR competencies in the new SHRM Competency Model is HR Expertise (HR Knowledge) including knowledge of HR technology. If you are like me, this is an area of weakness. In this issue we are bringing you several articles to help update you on the latest technology in our industry. HR technical knowledge also impacts your business acumen and critical evaluation skills, which are two other important competencies included in the model.
Along with articles about new OSHA reporting on injuries, ACA reporting technology, HIPAA software, and ensuring your HRIS is ACA-ready, you will learn about a brand new technological tool by Organic Motion that will help reduce your healthcare spend on musculoskeletal injuries. This is a fascinating new technology that can also assist you with ADA accommodations, fitness for duty evaluations and workers’ comp monitoring. I am looking forward to seeing our MSSHRM friends in Biloxi on Valentine’s Day where I will be speaking on The SHRM Competency Model at the MSSHRM Leadership Conference. Please see Page 8 for details. This year’s theme is Unmask Your Talents. I will also be speaking at the TNSHRM Strategic Leadership Conference on February 20 in Nashville where my topic will be Strategies for Developing a High Performance Organization. Commissioner Rebecca Hunter will be the luncheon keynote speaker. Her topic is Transforming Tennessee for Tomorrow. Details about this conference can be found on Page 6.
The annual SHRM Employment Law and Legislative Conference is March 23-25 in Washington, DC. Mike Aitken, SHRM VP Government Affairs, will be the keynote speaker. His topic is The Washington Outlook: The Impact of the 114th Congress on HR’s Public Policy Agenda. Sallie Krawcheck will be speaking on Leadership Lessons Learned from Working with Financial Services CEOs in the Best and Toughest of Times. ABC News Legal Analyst, Dan Abrams, will be the Closing General Session speaker. He will discuss On the Law and in the News. Registration details are on Page 7. Please join us February 24 at 2 PM for our monthly complimentary HRCI Virtual Event sponsored by Data Facts. Watch your email for details!
Cynthia Y. Thompson | Editor cynthia@HRprosMagazine.com www.HRProfessionalsMagazine.com
2015 GREATER MEMPHIS EMPLOYEE BENEFITS COUNCIL BOARD OF DIRECTORS Front Row (L-R) Antoinette Wiseman – Co-Secretary, Linda Yoakum – Co-VP Programs, Linda Tripp – Immediate Past President, Donna Winfrey – Member at Large, Leigh Ann Alexander – Secretary. Back Row (L-R) Sandy Bradford – VP Membership, Peter Voss – Treasurer, Ted Archdeacon – Member at Large, Russ Henderson – VP Programs, Mark Schirmer – President, Don Lamb – Member at Large, Preston Cox – Member at Large
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Lori CHESTER on the cover
Lori Chester, Membership Director MSSHRM State Council
Lori Chester is Vice President and Recruitment and Employment Manager for BankPlus. As the Recruitment and Employment Manager, Lori is responsible for recruitment efforts, monitoring employee career development opportunities and employee relations counseling. Having worked for BankPlus for over 20 years, Lori has held multiple positions in various areas of the bank. BankPlus, a community bank based in Ridgeland, Mississippi, has total assets of more than $2.4 billion and has 60 locations in 33 Mississippi communities. She currently serves on the Mississippi Society of Human Resource Management State Council as the Membership Director. As such, Lori is responsible for providing leadership to other membership directors in local chapters ensuring that they have the resources necessary to recruit at-large SHRM members, local chapter non-SHRM members, and non-affiliated HR professionals to both organizations. Lori has served as the Treasurer, Secretary, Vice President, President Elect, President and Past President for the Capital Area Human Resource Association, an affiliate of the Society for Human Resource Management. She has also served in various roles for the Jackson Chapter of Executive Women International, an organization with the purpose of promoting member firms, enhancing personal and professional development, and encouraging community involvement. She and her husband, Jack, have three grown children and reside in Yazoo County. ď Ž
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5
Changing People. Changing Organizations.
State Council for Human Resources
2015 TENNESSEE SHRM STRATEGIC LEADERSHIP CONFERENCE “STRATEGIC HR: PRACTICES THAT DRIVE ORGANIZATIONAL RESULTS”
FEBRUARY 20, 2014 7:00 AM – 4:30 PM
7:00 – 8:00
Registration, Networking, Continental Breakfast, Exhibitors
8:00 – 8:15
Welcome and Structured Networking Opportunity Trish Holliday, SPHR, SHRM-SCP Assistant Commissioner & Chief Learning Officer Department of Human Resources, State of TN
8:15– 9:15
Keynote: Dr. Jason Brooks – The Five Essential Elements of a High Performing Strategy
9:15 – 9:30
Break
9:30 – 10:30
Concurrent Sessions: Cynthia Thompson Kevin Ames Dr. Raphael Crawford
10:40 – 11:40
Concurrent Sessions: Malcolm O. Munro Mark Kenny Lisa Phillips
– License to L.E.A.D. – Change the Conversation, Change the Future: How to Break Through the Barriers of the Organizational Conversation – How to Convince Business Partners HR Really Matters
11:45 – 12:45
Lunch: Keynote – Transforming Tennessee for Tomorrow Commissioner Rebecca Hunter, CPA, SPHR Department of Human Resources, State of TN
1:00 – 2:00
Concurrent Sessions: Kevin Ames Malcolm O. Munro Lisa Phillips
2:00 – 2:15
Break
2:15 – 3:15
Concurrent Sessions: Cynthia Thompson Mark Kenny Dr. Raphael Crawford
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– Strategies for Managing Organizational Change – Collaborative Innovation: Empowering People to Produce Great Work – The Epic Fail of Strategic Planning: underwhelmed by the mission, overwhelmed by the process
– Collaborative Innovation: Empowering People to Produce Great Work – Organizational Savvy – How to Convince Business Partners HR Really Matters
– Strategies for Managing Organizational Change – Change the Conversation, Change the Future: How to Break Through the Barriers of the Organizational Conversation – The Epic Fail of Strategic Planning: underwhelmed by the mission, overwhelmed by the process
3:30 – 4:15
HR Roundtable
4:15 – 4:30
Wrap Up and Grand Door Prize Drawing
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SHRMEMPLOYMENTLAW& LEGISLATIVE CONFERENCE MARCH 23–25, 2015 ★ WASHINGTON RENAISSANCE ★ WASHINGTON, D.C.
★ DON’T MISS OUT. ★ REGISTER ONLINE TODAY. ★ In January 2015, a new Congress will convene in Washington, D.C. Lawmakers will consider policy changes to existing workplace laws and establish new regulations that will impact employers across the country. The 2015 SHRM Employment Law & Legislative Conference will give you the information you need to understand the complex legal landscape that affects your business.
★ KEYNOTE SPEAKERS ★ Monday, March 23
Tuesday, March 24
WELCOME BREAKFAST & WASHINGTON OUTLOOK FEATURING MICHAEL P. AITKEN
BREAKFAST & GENERAL SESSION FEATURING SALLIE KRAWCHECK
Vice President of Government Affairs, SHRM
The Washington Outlook: The Impact of the 114th Congress on HR’s Public Policy Agenda
One of the Most Respected Voices on Wall Street and Owner of Ellevate
Leadership Lessons Learned from Working with Financial Services CEOs in the Best and Toughest of Times
CLOSING GENERAL SESSION FEATURING DAN ABRAMS Legal Analyst for ABC News; CEO, Abrams Research; and Founder/Publisher, Mediate.com
On the Law and In the News
conferences.shrm.org/legislative
15-0036
The Mississippi State Council invites you to the
2015 Leadership Conference being held at the Golden Nugget in Biloxi, Mississippi, on February 14th. Come learn to
UNMASK YOUR TALENTS with your fellow SHRM Volunteer Leaders from our chapters throughout our beautiful State of Mississippi. Please RSVP by January 23, 2015: GregAPayne@cableone.net 228.314.1498 (work) • 228.669.8171 (cell)
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9
The Hazards of the Industry – New Requirements for Reporting to
OSHA By SALLY F. BARRON
Edwin Foulke (Partner in the Atlanta and Washington, D.C. offices) and Howard Mavity (Partner in the Atlanta office) of Fisher & Phillips assisted with this article.
The Occupational Safety and Health Administration (OSHA) is sharpening its emphasis on inspecting and citing employers who violate its recordkeeping standards. To avoid running afoul of these standards and risking the imposition of fines and penalties, employers need to be aware of the changes in the rules and new reporting requirements that became effective on January 1, 2015.
Tennessee has an approved State Plan. Tennessee OSHA (TOSHA) is part of the Tennessee Department of Labor and Workforce and exercises jurisdiction over all private and public sector employers and employees within the state with a few exceptions (maritime and railroad employment, employment at Tennessee Valley Authority facilities, military bases, federal government employers and employment, and the United Stated Postal Service (USPS)). TOSHA has adopted all OSHA standards and regulations applicable to private and public sector employment with limited modifications; for example, TOSHA has a unique standard relating to toxic chemicals.
Background
Before this year, employers were to notify OSHA of all work-related fatalities (of one or more employees) and work-related hospitalizations of three or more employees within eight hours of the incident.
OSHA was established in 1971 to empower the Department of Labor to inspect workplaces and regulate safety therein. The Department of Labor website proclaims, “Before OSHA was created 43 years ago, an estimated 14,000 workers were killed on the job every year. Today, workplaces are much safer and healthier, going from 38 fatal injuries a day to 12. But there is still much work to be done.”
Tennessee OSHA State Plans are OSHA-approved job safety and health programs operated by individual states instead of federal OSHA. Federal law encourages states to develop and operate their own job safety and health programs, but these programs must be approved by OSHA to enforce OSHA standards. State Plans may promulgate standards that are more stringent than federal standards. 10
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Old Reporting Requirements
New Reporting Requirements The new reporting requirements expand the list of severe injuries that employers must report. Employers are still required to report any workrelated fatalities within eight hours. Under the new rules, however, all employers are required to contact OSHA within twenty-four hours following the occurrence of any in-patient hospitalization, amputation, or loss of an eye. All covered employers are subject to these reporting requirements, even if they are exempt from certain record-keeping requirements (discussed below). There are three ways for employers to contact OSHA to make the required report: 1) call the nearest area office; 2) call OSHA’s 24-hour hotline 1-800-321-OSHA (6742); or 3) report online at www.osha.gov.
New Recordkeeping and Posting Requirements There are new categories of employers who must now maintain and post OSHA injury and illness records going forward. Employers who were already covered must complete and post their 2014 annual summary by February 1, 2015 and keep it posted until April 30, 2015. There are specific forms employers must use to comply with the posting requirements, and they are available on OSHA’s website. Even employers who have no recordable injuries or illnesses must still complete the recording and posting requirements. Under the former regulations, two classes of employers were partially exempt from routinely keeping records of serious employee injuries and illnesses: employers with 10 or fewer employees, and employers in certain low-hazard industries, as classified by the Standard Industrial Classification (SIC) system. Being “partially exempt” means that the employer does not have to keep OSHA injury and illness records unless specifically asked, in writing, to do so by OSHA, the Bureau of Labor Statistics, or a state agency operating under the authority of either of those organizations. The new regulations retain the exemption for employers with 10 or fewer employees, but they use the North American Industry Classification System (NAICS) to determine whether an industry is categorized as low hazard. As a result, employers in many industries, previously exempt, must now comply with all of OSHA’s recordkeeping requirements. These industries include, for example: automobile dealerships, museums, and bakeries, to name a few. For a list of the industries that were previously exempt and now will be required to keep OSHA injury and illness records, see https://www.osha.gov/recordkeeping2014/reporting_industries.html. On the other hand, employers in a small number of industries who previously had to comply with the recordkeeping requirements now will be exempted under the new NAICS exemption list. For a guide to determine whether your company is categorized as an exempt (“partially exempt”) industry under the new rules, visit https://www.osha.gov/recordkeeping2014/ OSHA3746.pdf. Last fall, OSHA announced that employers’ fatality and injury reports would be posted online on the OSHA website. Online posting previously had not been mentioned by OSHA during the three year-long rulemaking process and came as a surprise to many. The publishing of severe injury and illness reports on the OSHA website is seen as an effort to influence employers to take steps to prevent injuries and preserve their reputations as safe places to work.
Other Issues The following are some key details that are frequently misunderstood or overlooked and can lead to OSHA citations:
• Executive Certification The log of work-related injuries and illnesses is commonly referred to as “form 300.” OSHA’s recordkeeping standard requires that a 300A summary must be certified by the employer, and the certification must be made by a company executive. Four specific management officials may be considered “company executives” for purposes of certifying the 300A summary: 1) an owner of the company; 2) an officer of the corporation; 3) the highestranking company official working at the location; or 4) the immediate supervisor of the highest-ranking company official working at the location. This official must certify that he or she has reviewed the OSHA 300 logs and related records, and reasonably believes, based on knowledge of the process underlying the development of the data, that the posted summary is accurate and complete.
OSHA describes this requirement as imposing “senior management accountability” for the integrity and accuracy of the reported data. Human resources managers and safety directors normally cannot sign the OSHA 300A summary unless they are officers of the company.
• Number Of Employees And Hours Worked The annual summary requires employers to include a calculation of the annual average number of employees covered by the log and the total hours worked by all covered employees. The purpose of this requirement is to help employers compare the relative frequency of significant occupational injuries and illnesses at their workplace as compared to other establishments.
• Posting Process The 300A summary must be posted in each establishment in a conspicuous place or places where notices to employees are customarily posted. You are under a duty to ensure that the posted annual summary is not altered, defaced or obscured during the entire posting period. Those employers who maintain these records in electronic form should still retain the signed posted summary after the February 1 to April 30 posting period, to prove that it was properly signed. You should provide copies of the 300A summary to any employee who may not see the posted summary because they do not report to a fixed location on a regular basis. Even where an establishment has had no recordable injuries or illnesses, you must still post the 300A summary with zeros in the appropriate lines and certified by a company executive.
• Record Review Before the annual summary is prepared, the recordkeeping rule imposes an express duty to review the log (form 300) to verify that entries are complete and accurate. Employers must review the records as “extensively as necessary” to ensure accuracy. OSHA scrutinizes the forms 301, 300 and 300A for even minor errors in descriptions and boxes checked. Take time to review the forms for technical errors as well as to review accident reports, first aid logs and other related materials to ensure that all recordable incidents have been included and that records are consistent. Employers have a duty to update and maintain records for five years plus the current year and provide them upon request for inspection by OSHA investigators.
Your 2015 To-Do List All employers who previously have been partially exempt from OSHA recordkeeping requirements and were not required to maintain the form 300 should review the updated industry exemption list to see if they are now covered. Any questions regarding OSHA’s emphasis on the recordkeeping requirements should be addressed with knowledgeable counsel, whether it be for a quick review of your OSHA 300 logs and 300A summaries, a full recordkeeping audit, or training for your record keepers. Knowledge of these new rules will go a long way toward reducing the risks of noncompliance.
Sally F. Barron, Of Counsel Fisher & Phillips Memphis Office sbarron@laborlawyers.com www.laborlawyers.com www.HRProfessionalsMagazine.com
11
ACA Reporting: An Opportunity in Disguise? By BRAD OWENS and ASHLEY PACE
Affordable Care Act Reporting The ACA reporting requirements add more responsibility (and work) for HR professionals at a time when professional bandwidth is stretched perilously thin. Even as the economy has improved, headcounts in HR are likely not going to rise in lockstep with additional duties from compliance. As dreary as more work for the same money sounds, perhaps ACA reporting will be an opportunity to rethink and improve your current HR technology strategy. Here are some important questions: Is my current HR technology capable of supporting increased administration and compliance efficiently? How can I leverage my vendors and advisors? How can HR technology help me tell my story? For employers with more than 100 full time equivalent employees (FTE), the Affordable Care Act (ACA) is upon us. The ACA employer mandate requires businesses with over 50 FTEs (although 50-99 can apply for transitional relief ) to provide health insurance or pay a penalty (employee shared responsibility payment) on federal returns. Beginning January 2016, all applicable employers are required to file Forms 1094-C and 1095-C for the 2015 calendar year. These forms provide certification as to whether employers offered full-time employees the opportunity to enroll in a health insurance plan that offers Minimum Essential Coverage at a Minimum Actuarial Value of 60 percent for each month of the year. This reporting also helps employees to determine their eligibility for a premium tax credit from a Health Insurance Marketplace. If you have over 100 full-time equivalent employees then you likely know all too well. Those with 50 – 100 full-time equivalent employees will have an extra year to prepare. The technology options for ACA reporting range widely from functionality and cost. Many of the payroll/HRIS vendors have emerged as providers although solutions have been bolted on to existing technology. While considering or implementing the new technology, perhaps now is a good time to consider your broader HR Technology strategy.
HR Technology Inventory
Addition by Subtraction
As tedious as this may sound, doing an inventory of your HR technology may yield surprising and actionable results. This is definitely an area where an advisor can be a force multiplier. Perhaps the most basic way to conduct an inventory is by following a new employee through their process from recruitment to retirement. This will quickly inform as to where on the strategic spectrum your technology lies. Here are some example questions.
Once you have done an inventory, perhaps areas
• In how many different systems (payroll, HRIS, Ben Admin, Time and Attendance) is new hire information entered?
• Describe reporting/ analytics capabilities
am reminded of a client that had 13 different
q A. Non-existent
each vendor and what value they added (or
q B. Basic Data Mine (no Boolean logic)
were supposed to add), it became very apparent
q A. 3 or more
• How does data move between systems and vendors (401k for example)? q A. it doesn’t
q B. 2
q B. push/pull with spreadsheets
q C. 1
q C. update agent
qC . Dashboards and multidimensional capabilities
q D. 0 (self-directed)
q D. integrated
q D. Predictive Analytics
The goal here is just to see to what degree your HR technology is siloed or integrated. If you didn’t answer D very much don’t fret, only 8% of companies have integrated platforms encompassing workforce management, payroll, and benefits administration. 12
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for improvement will become clear. I would caution that a first step to improving your technology strategy may be counter intuitively to reduce vendors. Sometimes less is more. I HR technology vendors. After we mapped out
that there were duplications and redundancy. A few months later the number of vendors was cut almost in half. (Notice I didn’t say 1). The financial savings were certainly important but managing relationships is expensive in time as well. Keeping track of who to call for questions on what system presents its own burden. Not to mention keeping up with updates and juggling homemade spreadsheets.
With the clients I advise the perfect integrated system is sometimes just not feasible. Either the price or the implementation barriers are too great. The goal is to move forward through incremental improvement. A favorite quote is “Everyone wants to wind up in Heaven someday; just not today.” As humans, our natural reaction to challenges is to add layers of complexity (the Swiss Army knife approach). In computer technology there is a rule of design that seeks to create a system that is so simple there are obviously no flaws instead of creating a system that is so complex there are no obvious flaws. Historically, adaptation of new technology hasn’t always been strategic. Often new technology is a last resort to an obstacle that creates a hazard or potential hazard for the business objectives. Technology adoption can be haphazard and reactionary. Current ACA reporting presents another potential hazard for business objectives. Poor execution could be financially disastrous for the organization. The natural reaction is to research and analyze vendors and finding the best candidate at fixing whatever the current problem may be. Over time this leads to what I would describe as a “Frankenstein” system. The Frankenstein system is piecemeal patchwork of multiple systems that doesn’t readily communicate with other parts. The intent was good when each piece was added but the end result is a dysfunctional mess that you would never recreate if you had to start from scratch today.
Connecting Silos Siloed HR Technology is very common. The percentage of companies using integrated systems and operating at the highest level of predictive analytics is only 4%. Stated simply, HR Technology siloes are systems or people operating in confined territory without easy access to other systems and unable to contribute to global (as in organization wide) imperatives. Even within seemingly integrated systems there is siloing. Many of the human capital vendors bolt on new systems to their existing platform. For many vendors, this is exactly what is happening with ACA reporting. Below are some high level criteria for assessing ACA reporting solutions and integrated systems.
• Transactional Accuracy o Tracking of hours worked •Look –Back Calculators o FTE eligibility • Status Monitoring o Alerts on eligibility changes proactively • Benefit Enrollment o Integrated enrollment process • Business Intelligence o Workforce planning and analytics
Incorporating AnalyticsTelling your story to stakeholders Employee, HR, and performance data abounds. Right now you could go produce enough reports to reach the ceiling. Is this data working for you? Is it helping reach your business goals, is it helping you even keep score? The goal of incorporating analytics is to apply science to have a clearer picture of your business world. Imagine if you looked at a picture and your eyes could see every color and shape but your brain had them in a random order. There isn’t any picture that would be visible. However, if shapes started to group together and then colors within those shapes a picture will eventually emerge. As more shapes and more colors emerge a sharper, a clearer picture also comes to light. This picture created through analytics helps communication with stakeholders which are split into three distinct groups.
Analytics uncover trends and lead to deeper understanding of business trajectory. For example, what impact would a change in sick leave policy have on employee retention or workers comp claims? What is our headcount trending to be in 18 months? Can you quantify what traits are shared by highest-performing employees? Why do employees succeed? Why do they fail? These are basic questions that may be getting asked to HR leaders today. Typically, these questions are being asked by the leadership. Whether that is C-level (if HR is organized outside of C-level) or other executive, analytics communicate with them in their natural language, which is data. HR should be regarded by as strategic and integral to long-term enterprise success. Leveraging your vision and strategy through advisors and vendors can be challenging. Are you working with right resources? A good partner’s goal should be to make your company better. Exterior partners can only assist in your success if they truly understand your needs.
In our service economy, the majority of companies can name people as their greatest expense. Upwards of 40% of spend is tied to labor and employees.
o Employees o Leadership (typically C-suite) o Exterior partners
– Advisors
– Vendors
– Sister organizations
– Community
In our service economy, the majority of companies can name people as their greatest expense. Upwards of 40% of spend is tied to labor and employees. That is an enormous amount of money to spend and predominantly rely on gut level qualitative assessments with many hiring and management decisions.
Ashley Pace
Lockton’s Memphis Office 901 757 6902 apace@lockton.com
Brad Owens
Lockton’s Memphis Office 901 757 6901 Bowens@lockton.com
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13
Just What The Doctor Ordered: Have You Scheduled Your
HR “Checkup” For 2015? By ABTIN MEHDIZADEGAN
L
ook at the first line of letters on your keyboard. The QWERTY keyboard, developed in 1873, was a solution to keys becoming jammed on early typewriters. By spacing out the most commonly-used letters, typing was slowed down enough to reduce key-jamming. Of course, modern typists do not have
this problem, but we inexplicably continue to use a keyboard specifically designed to function inefficiently. This phenomenon is known, in jargon-y political science and economics vernacular, as “path dependency,” which stands for the proposition that organizational decisions can become institutionalized or locked-in and, therefore, incredibly resistant to change. Unfortunately, businesses—like keyboards—are not immune from the phenomenon of path dependence and the role of institutional inertia in today’s workplace. For that reason, in light of the complex and constantly changing minefield of employment law and regulation that has created several traps for the unwary, it is more important than ever for employers to review and take proactive steps to avoid litigation and minimize legal exposure. This is especially true because several employment and labor laws impose liability without regard to the employer's best intentions. One such measure designed to counter the insidious nature of path dependence in pursuit of minimizing legal exposure is to periodically conduct an employment law compliance “checkup,” which audits legal compliance. To that end, this article outlines the function of employment law audits, the procedure for conducting audits and then highlights target employment practices that are ripe for government investigation and litigation in 2015.
FUNCTION An effective employment law audit is a tremendously valuable tool to serve as an employer’s “checkup.” Analytically, these audits are governed by two overarching objectives: preventive and proactive solutions. An audit is truly preventive in nature and allows employers to find and address issues before government agencies or entrepreneurial employment attorneys discover 14
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them first. Unlike internal investigations, audits are not necessarily triggered by particular problems or reports of misconduct. Instead, they are designed to ensure that a company's policies and procedures are being followed in actual practice and that appropriate protocols are in place to identify and rectify situations consistently where managers and employees fail to meet these standards. The preventive objective serves to identify weaknesses in existing compliance and provides a foundation upon which to update policies and procedures to accommodate changes in regulatory and business climates. In large part, this aspect of an employment audit serves to reduce the potential damage to the company from continuing violations and prepare the company for potential government investigations or likely litigation. The proactive nature of audits identifies and implements custom-tailored personnel policies and practices—with necessary training—to equip businesses with the tools needed to manage or avoid employment issues. Proactive measures towards employment law compliance can serve as good evidence to demonstrate the company’s commitment to following the letter of the law.
PROCEDURE Audits can be performed either in-house or by outside counsel. Internal audits may serve as inexpensive solutions to the dilemma of evaluating legal compliance; however, they are unlikely to correct issues caused by path-dependent policies and practices. Similarly, internal audits—even those conducted by in-house attorneys—do not necessarily
minimize legal exposure. In fact, the contrary is true if an internal audit results in a finding of an unlawful employment practice, because such findings would not generally be protected by the attorney-client privilege and could easily be subject to compelled disclosure in litigation. On the other hand, where outside counsel is retained for the purpose of rendering legal advice, the attorney-client privilege generally protects communications between attorneys and the company’s management and employees if the communication is made within the scope of their employment responsibilities. The attorney-client privilege is invaluable to the company, but could easily be destroyed by failing to retain outside counsel for the purpose of securing legal advice. For many companies, the best approach may be to involve both in-house and outside counsel. Generally, in-house counsel is responsible for retaining legal services for the purposes of auditing compliance, identifying the scope of the audit and various compliance issues, securing management buy-in and coordinating key employees for participation in the audit. Outside counsel should then be used to perform the actual investigation and, if desired, prepare a final written report—protected by the attorney-client privilege—that identifies compliance findings and recommends mitigating protocols. Each audit should also conclude with a re-training to ensure employees are aware of any modifications to company policies and procedures, and thereafter establish a periodic schedule for review.
SUBSTANCE The possible subject matter for a compliance audit runs the gamut of legal and regulatory issues in the ken of employment law. Several issues within the scope of an employment audit are identified in the following non-exhaustive listing: • hiring; • transfers; • compensation/benefits; • wage and hour practices and classification; • development and training; • performance management; • promotions; • disciplinary actions; • collective bargaining; • records administration; • health and safety; • terminations and access revocation; • special investigations; • retirement; • equal employment opportunity/affirmative action; and • regulatory reporting. In defining the scope of an audit for 2015, it is important to note that federal agencies have been particularly active in pursuing employers with noncompliant social media and email policies, wellness programs and practices relating to transgender discrimination. While each topic is deserving of an independent article, the following summarizes each issue: Social Medial Policies and Email. In response to the enormous popularity of social media, particularly in the workplace, employers have enacted social media policies that seek to protect business reputations by regulating what or how people talk about the company online. These policies have been heavily scrutinized by the National Labor Relations Board (the Board), which has found unfair labor practices in social media policies that interfere with or “chill” an employee’s ability to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or protection. Similar scrutiny is anticipated with respect to companies that allow employees to access email systems but have policies in place prohibiting the use of company email accounts during non-working hours. The Board’s position, articulated in Purple Communications, 361 NLRB No. 126 (Dec. 11, 2014), is that employees have a right to use email systems during non-working time to engage in concerted activities. Employee Wellness Programs. The Equal Employment Opportunity Commission (EEOC), in August 2014, launched its first direct legal challenges against three popular employee wellness programs, citing violations of the Americans with Disabilities Act, as amended (ADA), and the Genetic Information Non-Discrimination Act (GINA), because the programs were not voluntary or did not otherwise accommodate purported disabilities. It is anticipated that at some point in February 2015, the EEOC will issue notices of proposed rulemaking under the ADA and GINA restricting financial inducements and penalties for participation and non-participation in wellness programs. Transgender Employees. The EEOC will continue to actively target alleged discriminatory practices involving transgendered employees. In September 2014, the EEOC filed two lawsuits alleging that transgender employees had been fired in violation of Title VII. The suits, which are the first of their kind for the EEOC, are consistent with the Commission’s 2013-2016 Strategic Enforcement Plan objective to seek out emerging and developing issues of law, including coverage of LGBT individuals under Title VII’s sex discrimination provisions. Similarly, the Office of Federal Contract Compliance Programs (OFCCP) announced in Directive 2014-02 that, with respect to Executive Order 11246 (the analog to Title VII for federal contractors), it will interpret the word “sex” as including gender identity and transgender status. To that end, OFCCP will likely seek out allegations of gender identity and transgender status, or policies that tend to discriminate against these employees, and investigate federal contractors accordingly.
CONCLUSION Many employment and labor problems are foreseeable and, increasingly, preventable. Unfortunately, path-dependent practices that exist in every workplace often result in misconceptions about the application of employment laws and workplace policies. Courts have been clear that compliance in form rather than substance (i.e., adopting policies and failing to enforce them consistently) is not compliance at all. The business justifications for conducting an employment law compliance audit are plentiful. Defending employment litigation can be significantly expensive in terms of money damages, employee time and harm to a company’s reputation. With a modest investment of time and resources, businesses can establish and implement proactive policies and practices concerning workplace regulation that identify and correct problems before they become litigation. While there is no guarantee that an aggrieved employee will not sue or that a government agency will not undertake an investigation, businesses are well-served by employment audits that root out compliance violations and establish a foundation for a strong legal defense.
Abtin Mehdizadegan, Associate Cross, Gunter, Witherspoon & Galchus, P.C. abtin@cgwg.com www.cgwg.com www.HRProfessionalsMagazine.com
15
Using Technology to Increase the Health of the Workforce By CYNTHIA Y. THOMPSON
Musculoskeletal injuries and disorders are one of the top cost drivers related to any company’s health care expenditures. They are also associated with high costs due to absenteeism and lost productivity. Organic Motion (www.organicmotion.com) has introduced a new technology that will help employers reduce their healthcare spend on musculoskeletal work related injuries. This is an amazing new technology.
How the Technology Works It’s called markerless motion capture. The technology allows you to use a lab without the need of reflective markers like traditional motion capture labs require. The Organic Motion OpenStage system has 24 cameras that surround the user and capture motion, feeding the data into a computer algorithm that detects the skeletal resemblance of human motion.
Because the software is cloud based, the information is accessible anywhere in the world, allowing you to get to that most important information quickly. The Vault is an intelligent human movement analysis system that produces and delivers the data you need to accurately and precisely design treatment or training programs for your staff. It is just like having your own team of software architects, bioengineers, and healthcare specialists right at your fingertips.
How can HR professionals implement this technology to decrease healthcare costs? Organic Motion will train you and your staff to collect movement protocols and to upload movement files to the cloud. From there, DARI’s cloud software will process all of your data automatically and produce a report designed by you so the information is delivered to you in a form that you can immediately apply. From collection to application, it can take less than 90 seconds!
New technology reduces healthcare spend, decreases absenteeism and increases productivity The new technology will help to decrease absenteeism and increase productivity related to musculoskeletal injuries as it will be easy to see the employee’s physical limitations and determine their fitness for duty. Currently HR professionals must rely on doctor’s input from FMLA forms. With this technology, it will be easy to determine whether an employee can return to work full time or whether you should assign him to light duty.
Reasonable Accommodations under the ADA
Cerner Corporation Cerner Corporation is a company most commonly known for being a leading strategic innovator in the area of healthcare. Cerner is the first to realize the real economic benefit of prevention by addressing individual limitations in an entire work force. The implications for the future of healthcare are massive. Rebekah Grube, a Certified Athletic Trainer for Cerner, explains. “We thought what if we could give people a real glimpse into their bodies, tell them exactly what’s going on, and then address it? We’re using the motion capture system to not only confirm a patient’s current condition, but also to help us uncover any weaknesses, tendencies, or asymmetries that could potentially lead to an injury down the road.” Click below to view a video overviewing Cerner’s application of the technology. http://www.organicmotion.com/cerner-uses-markerless-motion-capture-to-reducehealth-insurance-spend/
About Markerless Motion Capture Equipment In collaboration with Organic Motion’s leading partner in life sciences, DARI, Organic Motion is able to deliver a turnkey solution to any company interested in significantly reducing healthcare costs. In addition to proactive health care initiatives, DARI also provides an unparalleled platform for reactive patient tracking in the therapeutic environment. DARI can install markerless motion capture equipment at your facility. 16
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This new technology will also be an excellent tool in determining reasonable ADA accommodations requests based on limited physical mobility. It will be a simple procedure to implement markerless motion technology to determine the employee’s level of disability or physical limitations and assign the most accurate accommodation.
Workers’ Compensation You will no longer need to hire private detectives to follow your employees around who are on Workers’ Comp trying to catch them performing activities they shouldn’t be able to perform based on their workers’ comp rating. You can make your own videos in-house and make more professional and accurate determinations with this new technology. Organic motion clients are applying this technology to corporate wellness, healthcare, sports, and the military. This new technology allows people to improve performance, avoid injury, and improve the rehabilitation experience. For more information or for a demo, contact Jonathan Beaton, VP of Marketing at jbeaton@organicmotion.com.
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Is Your
HRIS ACA Ready?
By CHRISTY SHOWALTER
I’ll never forget my first job, where I was handed a box filled with hundreds of 3x5 index cards used to track personal, job and benefit-related information on employees. While I immediately began to build a database to more easily manage and report on these records, the experience helped me appreciate our eventual conversion to an integrated Human Resources Information System (HRIS). I could now process payroll, administer benefits, access job histories and manage leave all in one system – with no more double-entry or spreadsheets! Fast-forward to the rollout of the Affordable Care Act (ACA). An integrated payroll and benefits system is no longer just a “nice-to-have” for many HR managers. Instead, it is quickly becoming a necessity for even smaller employers to manage health care reform compliance. From the measurement of Applicable Large Employer (ALE) status and full-time employee status to affordability and 6055/6056 reporting, HR must have the technology to track and report on data that has historically either been stored in multiple systems or not tracked at all. Is your HRIS ACA-ready?
Does your HRIS proactively monitor ALE status? Obligations under the ACA vary based on an employer’s size. Accordingly, one of the first steps of compliance is to determine whether your organization is considered small (under 50 full-time (FT) and full-time equivalent (FTE) employees), medium (between 50 and 99 FT/FTE employees) or large (over 100 FT/FTE employees) – also known as your ALE status. This status is measured each calendar year, using monthly “hours of service” over the prior calendar year. “Hour of service” includes not only each hour worked but also paid time off due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty or leave of absence. What is your ALE status? How easily can you track monthly hours of service for each hourly and salaried employee and monitor the monthly totals throughout the year? Can your HRIS provide the technology needed to make proactive decisions related to benefit plan design to ensure ACA compliance?
Does your HRIS effectively measure FT employee status? Employers required to “pay or play,” based on their ALE status, must decide whether to offer coverage to FT employees or pay a potential penalty, begging the question, “Who is a FT employee?” The ACA definition is an employee who averages at least 30 hours of service per week, which can be calculated using either the default monthly measurement method or the optional look-back measurement method. The technological ability to report on employee hours of service is critical for both. Additionally, if using the look-back method, you must also account for unpaid hours associated with Family & Medical Leave, jury duty and USERRA leave, as these hours are factored into the hours of service calculation. How are you measuring FT status? If using the look-back method, can your HRIS track measurement/stability periods for ongoing employees as well as the more complicated periods for new variable hour, part-time and seasonal employees? Do you receive alerts of pending events, such as the expiration of an initial measurement period, and are you advised of an employee’s status within a stability period to avoid an inadvertent loss of benefit eligibility? Some systems can even assist with scheduling and benefit budgets by providing a projection of employee status within a measurement period.
Does your HRIS actively calculate affordability? If an employee is FT and eligible for health benefits, the coverage offered must be “affordable” to avoid potential penalties. Affordable means the contribution for self-only coverage on the employer’s lowest cost minimum-value (MV) plan does not exceed 9.56% of the employee’s 18
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household income. Thankfully, Congress recognized that employers will not generally know household income and provided three safe harbors to ensure affordability – the Federal Poverty Line (FPL), Rate of Pay and Form W-2 Safe Harbors. Outside of the FPL, the other calculations rely on employee payroll data. An employer satisfies the Form W-2 Safe Harbor if the contribution does not exceed 9.5% of the employee’s Box 1 wages. Because this method relies on wages and hours worked, it is the least predictable safe harbor and must be evaluated on an individual basis at the end of the year. Do you have the technology to project affordability on an ongoing basis throughout the year, taking into account established contributions and earned wages? Rate of Pay provides a more predictable yet potentially more costly safe harbor. Monthly coverage is affordable if the contribution does not exceed 9.5% of an amount equal to 130 hours (as opposed to actual hours worked) multiplied by the lower of the employee’s hourly rate of pay as of the first day of the period (generally the first day of the plan year) or lowest hourly rate of pay during the calendar month. Does your HRIS alert you if a change in an employee’s rate potentially jeopardizes affordability?
Is your HRIS ready for 6055/6056 reporting? The ACA also created new reporting requirements under Code Sections 6055 and 6056, which become effective for large and medium employers in 2015. These reports capture information related to employer-sponsored health coverage and will be used by the IRS to calculate “pay or play” penalties. While the first reports are not due until January 2016, employers should begin tracking data now, such as: • number of FT and total employees by month; • name, address and SSN of each FT employee during the calendar year and the months (if any) during which the employee was covered, declined coverage or was in a waiting period; and • the name and SSN of each dependent covered by a selffunded plan during the calendar year and the months during which the dependent was covered. Is your HRIS capturing information related to monthly benefit eligibility and enrollment? Do you have the technology to generate individual employee statements (Form 1095-C) as well as the transmittal (Form 1094-C) at year end? With the enforcement of “pay or play” regulations and reporting obligations, your ability to track and provide an integrated analysis of payroll and benefit data will play a significant role in staying ahead of health care reform compliance. Gone are the days of 3x5 index cards. Do you have the technology to be ACA-ready?
Christy Showalter, JD, MBA Certified PPACA Professional Senior HR Consultant Regions Insurance, Inc. christy.showalter@regions.com
“What is 6056 reporting? Am I supposed to be doing this now and what information am I supposed to be tracking?”
“I have three new hires coming on this month. How do I know if they are variable-hour versus full-time and when do I have to offer them benefits?”
Guiding You Through the Tough Questions Your business faces tough decisions every day when it comes to health reform – decisions that impact your benefits program, your employees, and your bottom line.
Let Regions Insurance’s ACA trained professionals guide you down the right path – because it’s our business to run defense for your business.
Tom Hayes
Katrina McKinney
Employee Benefits Practice Leader tom.hayes@regions.com 479-684-5259
Sales & Marketing Coordinator katrina.mckinney@regions.com 205-264-7177
www.regionsinsurance.com
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SM
NLRB Alters Landscape for Employee Use of Company Email and Related Company Policies and Practices By TANJA L. THOMPSON and BRENDA N. CANALE
In
a highly anticipated and expected decision, the National Labor Relations Board (NLRB), in Purple Communications overruled its 2007 decision in Register-Guard and held that employees, with certain limited exceptions, have a statutory right to use their employer’s email system for Section 7 purposes, such as communicating with one another about their terms and conditions of employment. In contrast, in Register-Guard, the NLRB held employees did not have a statutory right to use their employer’s email system for Section 7 purposes because the employer’s email system was the employer’s property. The Guard Publishing Company d/b/a The Register-Guard, 351 NLRB 1110 (2007). On that basis, the NLRB in Register-Guard upheld the employer’s policy prohibiting use of its email system for non-job-related solicitations. In Purple Communications, the NLRB concluded the Register-Guard decision was incorrect and stated “the consequences of that error are too serious to permit it to stand.” Purple Communications had an electronic communications policy that provided, in part, that the employer’s electronic systems and equipment “should be used for business purposes only.” Additionally, the policy prohibited employees from using the employer’s equipment to “engage in activities on behalf of organizations or persons with no professional or business affiliation with the Company” and from “sending uninvited email of a personal nature.”
Procedural Background Following the decision by the Administrative Law Judge (ALJ) finding the employer’s electronic communications policy lawful, the NLRB General Counsel and Charging Party filed exceptions. The NLRB then issued a notice and invitation to the parties and interested amici curiae to file briefs. The notice requested that the parties and amici address a series of questions concerning employees’ use of their employers’ email and other electronic communications systems for the purpose of communicating with other employees about union representation or about their terms and conditions of employment. Further, the Board directed, the briefs specifically should include whether Register-Guard should be overruled, and, if so, what standard should apply and what restrictions employers could then apply to nonbusiness use of an employer’s email systems. Generally, the split between the parties and respective amici was whether to treat email systems like other employer-owned equipment (such as bulletin boards, copy machines, telephones, etc.) that employees have no automatic right to use for Section 7 activities, or whether a balancing test, under the framework established by Republic Aviation, 324 U.S. 793 (1945), should be applied. Republic Aviation addressed an employer’s policy prohibiting all oral solicitation, at all times, on the employer’s property. In that case, the Supreme Court adopted a presumption that a complete ban created an ”unreasonable impediment” to employees’ Section 7 rights, and the employer could justify such a ban only by demonstrating “special circumstances” that made the ban necessary to maintain production and discipline. As such, applying the Republic Aviation standard to company email, employees would have the right to use 20
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the employer’s email system during non-working time absent a particularized showing by the employer of special circumstances necessary to maintain production and discipline.
The NLRB’s Decision In overturning Register-Guard, the NLRB reasoned the prior decision focused too much on the employer’s property rights and too little on the importance of email as a forum for today’s workplace communications. The decision in Purple Communications issued by the current NLRB is not surprising given the vigorous dissent in Register-Guard by former Democraticappointed NLRB Members Wilma Liebman and Dennis Walsh, referring to the NLRB as the “Rip Van Winkle of administrative agencies.” The dissenters remarked “[o]nly a Board that has been asleep for the past 20 years could fail to recognize that e-mail has revolutionized communication both within and outside the workplace . . . one cannot reasonably contend, as the majority does, that an e-mail system is a piece of communications equipment to be treated just as the law treats bulletin boards, telephones, and pieces of scrap paper.” Applying similar reasoning, the majority in Purple Communications declared the Register-Guard decision failed to adequately protect employees’ rights under the National Labor Relations Act and “abdicated its responsibility ‘to adapt the Act to the changing patterns of industrial life.’” The NLRB’s majority in Purple Communications argued that Register-Guard inappropriately analogized company email to prior cases addressing other types of employer-owned equipment such as bulletin boards, copiers, and telephones. The
NLRB found email distinguishable from these other types of employerowned equipment because its “flexibility and capacity” make its non-work use less costly and disruptive than non-work use of other employer property. The majority was skeptical that allowing a statutory right to use email for Section 7 purposes would cause any hardship to employers. Following the NLRB’s conclusion that employees have a right to use their employers’ email systems for Section 7 purposes, the NLRB analogized employee use of company email to communicate with coworkers to oral communications with coworkers such as those addressed in Republic Aviation. The NLRB reasoned that email has become such a “significant conduit for employees’ communications with one another that it is effectively a new ‘natural gathering place.’” Unlike face-to-face communications, however, the NLRB refused to characterize email communications as either solicitation or distribution or communications occurring in work or nonwork areas. Additionally, the NLRB brushed aside the fact that employees have many other options, such as personal electronic devices and various forms of social media, to communicate with one another.
that the corporate system is not private and is subject to monitoring in the same manner as business email. Employers who do not already have monitoring policies and practices in place should exercise caution, however, as the NLRB has stated that employers who adopt new monitoring policies or practices may violate the Act if surveillance is implemented in response to protected activity. Finally, although the NLRB declined to apply its ruling to employers’ electronic systems other than email, the majority strongly suggested it would apply Section 7 rights to other corporate communications platforms such as instant messaging or texting.
Conclusion The NLRB’s decision in Purple Communications represents a huge departure from prior law as established in Register-Guard. As such, employers are encouraged to review their policies and practices governing company email and other electronic communications in short order.
Practical Effect of Decision Although the NLRB characterized its decision as “carefully limited” and stated employers may demonstrate evidence of “special circumstances” to rebut the presumption that employees have a right to use their employers’ email systems for Section 7 communications, it also stated it anticipates it will be the “rare case where special circumstances justify a total ban on nonwork email use by employees.” While the NLRB stated employers may apply some “uniform and consistently enforced controls” over their email systems, the NLRB still will require employers to justify such restrictions and demonstrate the connection between the employers’ legitimate business interests and the restrictions. The NLRB expects an actual, not a theoretical, interest to support any restrictions. Employers should note that this issue is not fully resolved. The NLRB remanded the case to the ALJ to make a decision consistent with its decision. Thus, the parties have limited opportunity to make arguments and present evidence on remand. Furthermore, the decision is subject to appeal to a federal court of appeals and then potentially to the U.S. Supreme Court. If appealed, the current decision could be stayed; however, employers should be aware that if the appellate court does not issue a stay, the decision would be enforceable during the appellate process. Employers in both union and nonunion settings should proceed with caution and are urged to carefully review existing policies and practices for compliance with the new decision. Although this decision deals a significant blow to employers, the NLRB’s decision does not require employers to provide employees access to its email system and it does not require employers to open their email systems to nonemployees (e.g., union organizers). The decision, however, does limit an employer’s ability to restrict employees from communicating via email with nonemployees during nonworking time. Employers who currently have policies banning all nonbusiness use of their email systems and those who have policies prohibiting the employers’ email systems for solicitation most likely will need to rescind those policies. Instead, employers should consider policies that provide more detail addressing nonbusiness use of the employer’s email system. For example, the Purple Communications decision expressly provides employees with the right to use the employer’s email during “nonworking time.” As such, employers may wish to include that same restriction in their new policies. Employers also may consider imposing other restrictions, such as the example provided by the NLRB of prohibiting large audio or video attachments (if the employer can demonstrate such attachments would interfere with the system’s efficient functioning). Employers also may remind employees
Tanja L. Thompson, Office Managing Shareholder Littler Mendelson, P.C. tthompson@littler.com www.littler.com
Brenda N. Canale, Associate Littler Mendelson, P.C. bcanale@littler.com www.littler.com
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21
Records Retention: To Keep or Not to Keep
T
By ASHLEY R. GRIFFITH
he decision as to whether an employer should retain records is fairly complicated given the number of laws employers must consult. For instance, and just to a name a few, Title VII of the Civil Rights Act of 1964 (“Title VII”), the Fair Labor Standards Act, the Occupational Safety and Health Act (“OSHA”), and the Employee Retirement Income Security Act (“ERISA”) all have certain retention requirements. In addition, certain federal statutes establishing civil and employment rights, such as the Family and Medical Leave Act (“FMLA”), the
Genetic Information Non-Discrimination Act (“GINA”) and the Americans with Disabilities Act (“ADA”), require medical records and related information to be maintained on separate forms, kept in separate employee medical files, and treated as confidential medical records. Obviously, these laws can be overwhelming for employers.
Because federal and state employment laws create something of a “patchwork” of record-keeping requirements, for simplicity’s sake many employers opt to keep personnel-related records, including hiring, performance, and promotion records, as well as payroll records, until four years after the employee has terminated because this will meet or exceed the required coverage in most cases, with several exceptions. For example, benefits records should be kept until six years after termination, as ERISA requires records to be retained for six years after filing. In addition, OSHAmandated records should be maintained for five years, with the exception of records relating to toxic exposure, which must be maintained for 30 years. Finally, payroll records and workers’ compensation records are subject to individual state laws, and employers should consult these laws before implementing a records retention policy. Alternatively, in the interest of simplicity, the employer could decide to retain all personnel records for more than four years. In any event, it is important to have a policy addressing record retention. While no single policy can meet every organization’s unique needs regarding document management, some general guidelines should be considered. Below are a few questions and issues employers should consider when drafting such a policy:
a. Ease of administration. Although the required retention period for your records likely varies from 1 year to 30 years or longer, consider whether it would be simpler to divide records into broad categories and choose the longest-applicable retention period. For example, you might consider simply retaining all personnel records for six years following termination. Some records, such as tax and business records, might be placed into a “permanent” retention category. Records such as e-mails with no business purpose could be deleted annually. 22
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b. Where are the records? This is a deceptively simple question. “Records” include all pieces of paper created or received by your company, as well as “electronicallystored information,” which includes e-mails, databases, presentations, documents, spreadsheets, and the like. Additionally, consider whether company records all reside on a single server or group of servers, or if they reside on individual computers (including employees’ home computers) or Blackberries and the like. Finally, interpretations of the federal rule requiring preservation of electronically-stored information extend the scope of your preservation duty to things like text messages, Tweets, instant messaging, and web pages and postings.
c. How will you ensure that records are retained? This is the key to an effective policy. Employers must create a system for filing, whether in hard copy or electronically, all records to be retained. You likely already have workable filing systems in place for your hard copy records. Online and electronic information tends to be more problematic. One method that some companies use is to create e-mail accounts for different types of records, e.g. administrative, personnel, financial, customer, etc. Employees are then instructed to copy the appropriate e-mail account (or send files to the account) whenever the file and/or correspondence falls into a category that must be retained. So for example, all customer correspondence might be copied to an e-mail account. All financial and/or tax information might be copied to an account. All personnel data would be copied to an account. Obviously, the keystones in such a system are (1) getting employees to use it consistently, and (2) buy-in from the I.T. department to maintain the appropriate e-mail accounts and archive the information.
d. How will employees be trained on the policy?
g. When will records be culled for destruction, and by whom?
Records retention must be the responsibility of everyone who creates or receives records. Consider how you will “roll out” the procedures, and how you will ensure that they are followed.
Someone must be in charge of reviewing records on a regular basis— preferably twice per year, but at the very least once per year—and culling those records to be destroyed.
e. Who are the key personnel who will implement and maintain the policy?
h. Method of destruction.
As mentioned above, I.T. and key administrative personnel must be on board to keep the policy functioning.
f. How will records be archived, backed-up, and accessed if necessary? Again, I.T. is the key component in creating a workable system for protecting archived electronic records, as well as ensuring that they can be retrieved with a minimum of inconvenience should they be necessary. As far as paper records, consider whether you should use (or are using) off-site storage and/or conversion of paper documents to electronic storage (e.g., pdfs).
Consider how documents will be destroyed once the retention period expires. Most hard copy records should probably be shredded; electronic copies should probably be destroyed in a manner that prevents a third party from reconstructing them. Keep in mind that retention periods are based on regulatory or statutory requirements and are considered minimum retention periods, which are the shortest period of time a record must be held. As indicated above, there are numerous of laws requiring retention of certain records and the following chart is only intended to be used as a general guide and overview to some of the more common records maintained by most business. Employers are encouraged to obtain the advice of counsel regarding specific laws’ time periods applicable to their circumstances.
Item
Examples
Retention Period
Pre-Employment Information - applicants not hired
Application, Drug Screen, Reference checks, Interview Notes
4 years
Pre-Employment Information - applicant hired * Note: pre-employment physical records should be kept separately.
Application, Drug Screen, Reference Checks, Interview Notes
4 years after termination
I-9 Forms
Form plus photocopy of identification document(s)
1 year after termination / minimum of 3 years
Payroll information
Weekly wages, pay rate, place of employment
7 years
Benefit records
Insurance enrollment forms
6 years
Health and Safety records
Workers’ compensation claim information; OSHA records
5 years, 7 years if employee returns to work; 30 years if hazardous exposure
OSHA Forms 300, 301, 301A
Logs and posting of incidents / summary of injuries
5 years from year of posting
FMLA records
Medical information to support leave; to be kept separate from personnel records
Required to keep 3 years from the date the leave ended, but should be kept the same length as general employee records
General employee personnel records
Performance evaluations, disciplinary documentation
4 years after termination (minimum; 7-10 years is generally better practice)
COBRA Notice / HIPAA Certificate of Group Coverage
6 years after termination
Payroll
Pay journal, supporting documentation
7 years
Employment Taxes
Returns, quarterly reports, supporting documentation
4 years required; 15 years recommended
Other Taxes Unemployment Insurance Employee Benefit Plans
Permanent (recommended) Generally, payroll information
7 years 6 years+
Ashley Griffith, Associate Wimberly Lawson Wright Daves & Jones PLC agriffith@wimberlylawson.com www.wimberlylawson.com www.HRProfessionalsMagazine.com
23
Ban-the-Box
Legislation
Continues to Spread
Under the statute, the certificate of employability immunizes an employer “in any proceeding on a claim against an employer for negligent hiring . . . if the employer knew of the certificate at the time of the alleged negligence.” But the employer loses the immunity if, after being hired, the person “demonstrates danger or is convicted of a felony,” and the employer, despite this knowledge, retains the person. The plaintiff, however, must prove “by a preponderance of the evidence that the person having hiring and firing responsibility for the employer had actual knowledge that the employee was dangerous or had been convicted of the felony[.]” The benefits of the statute to those with criminal records are apparent. But the General Assembly took steps at the same time to protect the employers.
By DALE CONDER, JR.
Will Tennessee pass ban-the-box legislation?
There is a movement to remove from job applications the have-you-everbeen-convicted question. This movement—referring to the checkbox beside the question—is commonly called the ban-the-box movement. Advocates for banning the box believe it is a necessary part of the effort to reduce rates of recidivism, leading to reduced rates of incarceration. The argument’s premise is that if one cannot find employment, one will return to what he knows, i.e., a life of crime. On the other side of the argument are those who fear that ignoring an applicant’s criminal history will lead to an increase in lawsuits against employers.
Predicting what legislators will do is a risky business. But with Tennessee’s certificate-of-employability statute, and the Tennessee legislature’s business-friendly reputation, it seems unlikely that Tennessee would pass a version of ban the box.
The employers fear that if they cannot exclude potential employees based on criminal records, they expose themselves to negligent-hiring and negligent-supervision claims. Although private employers’ concerns are not farfetched, most ban-the-box laws do not prohibit all use of a potential new hire’s criminal record. Many of the laws simply prohibit employers from using the have-you-ever-been-convicted question as a way of eliminating potential employees at the initial-application stage; employers can still seek criminal-background information as part of a conditional offer of employment. And the laws do not preempt state and federal laws that prohibit hiring applicants with certain kinds of convictions for certain positions. For example, convictions can still be used to disqualify those applying for positions such as child-welfare workers, police officers, or teachers. Sixteen years ago Hawaii became the first state to enact such legislation, and to apply it to both public and private employment. (Before this, other states, such as New York, enacted legislation prohibiting “unfair discrimination against persons previously convicted” of a crime.) Since 1998, 12 other states and 96 cities and counties have joined Hawaii in enacting some version of ban-the-box legislation. Of the thirteen states—California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, New Mexico, New Jersey, and Rhode Island—only six have made their legislation applicable to private employers. Illinois is the most recent state to make its ban-the-box legislation applicable to private employers. And, as with the states, there are differences among the 96 cities and counties as to whether the laws apply only to the public sector or to both the public and private sectors. For example, Illinois’s statute only applies to employers with 15 or more employees, but Chicago’s ordinance applies to all private employers.
Tennessee takes a compromise approach to the ban-the-box movement. Only one local government in Tennessee has taken action in the ban-the-box movement. Memphis passed an ordinance banning the box in public employment. The state of Tennessee, however, has chosen to take a compromise route that seems designed to assuage employers’ concerns. Tennessee allows a convicted felon to petition the court for a certificate of employability as part of the restoration-of-rights-of-citizenship process. The statute took effect on July 1, 2014. The statute is an attempt to ameliorate the negative effects that a criminal record has on one’s employability, while recognizing the legitimate concerns of employers in hiring someone with a criminal record. 24
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What should employers do? Although Tennessee’s statute immunizes employers from negligent-hiring lawsuits as a means of encouraging employers to hire those with criminal records, employers should not forget about the EEOC. The EEOC takes the view that criminal background checks disproportionately affect minorities. This view has led the EEOC to challenge employers who still inquire about applicants’ criminal histories. And Tennessee’s statute does not protect employers who operate in multiple jurisdictions when making hiring decisions in other states. Employers should review their job applications, and update the applications as necessary. And as part of this process, employers should reconsider the one-size-fits-all approach to hiring. All criminal laws are not the same: some proscribe conduct that by its very nature indicates a person’s predisposition to violence, while others are not violent offenses. So, rather than excluding anyone with a criminal record, consider the circumstances of the crime, the time between completion of sentence and the application, and the effect, if any, that the applicant’s criminal record would have on his ability to perform the job. This should involve giving the applicant an opportunity to explain the conviction and its circumstances. Finally, employers should keep criminal records confidential. If the records are used in a decision not to hire, the employer should maintain these records to prove the basis for the decision. But maintaining records to support hiring decisions is something that employers should be doing as a matter of course. And make sure that whatever approach you take, you apply it consistently.
Dale Conder, Jr., Attorney Rainey, Kizer, Bell & Reviere PLC dconder@raineykizer.com www.raineykizer.com
The Importance Of NAPBS Accreditation
Of the more than 700 NAPBS members,
zation every year since. Data Facts sought
Data Facts is one of just a few dozen
the NAPBS accreditation to show our
accredited background screening
commitment to best practices, compliance,
companies. The diligent accreditation
and consumer protection. Now, and in the
process exhaustively scrutinized our
future, we are dedicated to assisting our
policies and procedures in 6 key areas:
clients minimize risk in the workplace.
• Critical Client/Consumer protection
The NAPBS was founded in 2003 to
By SUSAN MCCULLAH
A
ccreditation is an important seal of approval that all companies should look for when choosing a background screening provider. An NAPBS (National Association Of Professional Background Screeners) accreditation is the only program in the background screening industry that proves a provider’s procedures are compliant with industry best practices and affirms industry knowledge and expertise. Data Facts has successfully achieved compliance with the National Association of Professional Background Screeners (NAPBS) accreditation program and is formally recognized as Background Screening Credentialing Council (BSCC) Accredited.
• Legal compliance • Data Security • Ability to Train and Educate Clients • Organizational Performance
"promote ethical business practices, compliance with the Fair Credit Reporting Act, equal employment opportunity and state consumer protection laws relating to the background screening profession" (http://www. napbs.com/i4a/pages/index.
• Organization Professionalism Additionally, Data Facts had to pass a rigorous onsite audit. Everything we do as a screening company is done to the NAPBS’s exacting standards.
cfm?pageid=3589). This means that members of NAPBS have made it their mission to be ethical and in compliance with all background screening laws. Furthermore, NAPBS has promoted their
Data Facts demonstrated our staunch
own by-laws and code of conduct that
belief in exceptional industry standards by
members are expected to adhere to, above
being one of the NAPBS founding members
and beyond legal regulation. In this way,
when the organization was established,
NAPBS is the background screening indus-
and actively participating in the organi-
try's largest self-regulating body.
www.HRProfessionalsMagazine.com
25
“ a public or private employer may not establish, maintain, or enforce any policy or rule that has the effect of prohibiting a person from transporting or storing a firearm in a locked vehicle in any parking lot, parking garage, or other designated parking area.”
Termination for Possession of Firearm
Not a Violation of Public Policy in Mississippi By TIMOTHY LINDSAY
On
September 30, 2014, the United States District Court for the Northern District of Mississippi issued a decision refusing to create a public policy exception to the at-will employment doctrine in a case where the employee was terminated for possessing a firearm in his locked personal vehicle. In Swindle v. Aurora Flight Sciences Corporation, Civil Action No. 1:13-CV-00237SA-DAS, Robert Swindle sued his former employer, Aurora Flight Sciences Corporation, for wrongful discharge and defamation following his termination for having a firearm inside his locked personal vehicle on Aurora’s property. Swindle claimed that “Mississippi has a well-established public policy of advancing the rights and interests of its citizens to bear arms.” In so arguing, Swindle relied on Article 3, Section 12 of the Mississippi Constitution and Section 45-9-55 of the Mississippi Code. Swindle also put stock in a decision out of Kentucky in which the court there recognized a public policy exception and permitted a wrongful discharge action under similar facts. See Mitchell v. Univ. of Kentucky, 366 S.W.3d 895, 898 (Ky.2012). The general right to keep and bear arms in defense of home, person or property under the Mississippi Constitution has been in existence for years. This portion of the Mississippi Constitution was never given serious consideration as a prohibition to an employer’s right to make an adverse employment decision effecting an employee in possession of a firearm on its premises. However, in 2006, the Mississippi legislature enacted Section 45-9-55 of the Mississippi Code specifically mandating that “a public or private employer may not establish, maintain, or enforce any policy or rule that has the effect of prohibiting a person from transporting or storing a firearm in a locked vehicle 26
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in any parking lot, parking garage, or other designated parking area.” Although the statute permits an employer to prohibit firearms in vehicles in certain circumstances and under certain conditions, these exceptions were not present in Swindol’s case. Since Section 45-9-55 was enacted, the common thought shared by many in Mississippi was that termination of an employee for having a firearm in a locked personal vehicle in a parking lot accessible to the general public may result in automatic liability in a wrongful discharge action. Apparently, Swindol thought so too. Fortunately, in a well-reasoned opinion by District Judge Sharon Aycock, the court declined to create a new public policy exception with Section 45-9-55 while observing that “Mississippi law recognizes only two very specific and limited exceptions to the doctrine of at-will employment.” In dismissing Swindol’s wrongful discharge claim, the court observed that Section 45-9-55 does not provide for a private right of action. The statute involved in the Mitchell case in Kentucky did provide for a private right of action. Judge Aycock further opined that Kentucky’s framework for public policy exceptions is much broader than Mississippi and that there has been a “longstanding reluctance” in Mississippi to expand the existing public policy exceptions. To date, Section 45-9-55 has not been cited by any court in Mississippi, state or federal, as creating a private cause of action against the employer. However, in Swindol v. Aurora Flight Sciences Corporation, Judge Aycock noted that it is not for the federal courts to adopt new theories of state law but only to apply that law as it currently exists. With this in mind, Mississippi employers should still exercise caution when terminating an employee for possessing a firearm in his or her personal locked vehicle in the absence of one of the exceptions noted in Section 45-9-55. There should be little doubt that another fact scenario similar to the Swindol case will be challenged in a state court with the Mississippi Supreme Court being the final destination.
Timothy Lindsay, Managing Partner Ogletree Deakins Timothy.lindsay@ogletreedeakins.com www.ogletreedeakins.com
Appellate Court Upholds Recent Amendments to OFCCP Regulations Regarding Employees with Disabilities
S
By JOSH C. HARRISON
Section 503 of the Rehabilitation Act of 1973 requires that certain government contractors “take affirmative action to employ and advance in employment qualified individuals with disabilities.” The statute directs the President to implement section 503 through regulations. The President has delegated that authority to the Secretary of Labor, who has in turn delegated it to the Office of Federal Contractor Compliance (“OFCCP”). For years, the regulations required contractors to ensure that job standards do not improperly exclude individuals with disabilities, to publicize the contractor’s affirmative-action plan, to engage in steps to recruit qualified individuals with disabilities, and to audit the effectiveness of the program. Based on OFCCP’s concern that the regulations were not sufficiently advancing the employment of qualified individuals with disabilities, OFCCP sought public comment on how to strengthen the regulations. On September 24, 2013, OFCCP published a Final Rule, which amended the applicable regulations, with an effective date of March 24, 2014. Important Aspects of the Final Rule The Final Rule makes several significant changes: First, it obligates contractors to extend the invitation to self-identify as an individual with a disability to all job applicants. This departs from the prior rule that only required contractors to “invite” individuals offered jobs to self-identify. The Final Rule also imposes additional data collection obligations, requiring contractors to collect and maintain the number of job openings, the total number of applicants, the number of applicants hired, the number of applicants hired who have disabilities, and any data collected from the applicants. Second, the Final Rule introduces a new 7 percent “utilization goal” for the employment of individuals with disabilities. The Final Rule describes the utilization goal as a “benchmark against which the contractor must measure the representation of individuals” with disabilities, but also explained that the goal “is not a rigid and inflexible quota which must be met.” If a contractor does not meet the utilization goal, the Final Rule requires the contractor to take steps to determine whether and where impediments to equal employment opportunity exist, and develop and execute action-oriented programs designed to correct any identified problem areas. If the contractor determines that there are not such impediments, it need take no further action. Under the Final Rule, for employers with 100 or fewer employees, the utilization goal applies to the employer’s entire workforce. For employers with more than 100 employees, the goal applies to each job group within the workforce. The Challenge to the Final Rule: Associated Builders and Contractors, Inc. v. Patricia A. Shiu On November 19, 2013, Associated Builders and Contractors, Inc. (“ABC”), a trade association representing construction firms that has many federal contractor members, challenged the Final Rule in the United States District Court, District of Columbia, arguing that the Final Rule is both beyond OFCCP’s statutory authority and arbitrary and capricious. On March 21, 2014, the district court rejected ABC’s challenge, thereby allowing the rule to take effect as scheduled on March 24, 2014, and ABC appealed the decision. The United States Circuit Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”) ruled on December 12, 2014, that the Final Rule is valid and that OFCCP neither exceeded its statutory authority nor acted arbitrarily by promulgating the Final Rule. The D.C. Circuit upheld all aspects of the Final Rule, including the Final Rule’s utilization goal as well as its additional data collection requirements. The D.C. Circuit rejected several challenges by ABC regarding the Final Rule, including: • ABC argued OFCCP failed to explain the need for the Final Rule because it only cited the lack of improvement in the employment of individuals with disabilities in the workforce population as a whole, not among government contractors. But the D.C. Circuit held that OFCCP “had no obligation to make such a particularized finding.”
• ABC next argued that the data collection on job applicants is meaningless because there is no way to tell if they are qualified to perform the job. The D.C. Circuit disagreed because the word “qualified” refers to the beneficiaries of affirmative action and does not limit the type of affirmative action OFCCP can require. • ABC also asserted that OFCCP failed to explain how the new data collection requirements will help anyone better monitor contractors’ hiring of qualified individuals with disabilities. OFCCP countered that “[m]aintaining this information will provide meaningful data to assist the contractor in evaluating and tailoring its recruitment and outreach efforts.” The D.C. Circuit concluded that “OFCCP has more than satisfied its obligation to provide a reasoned explanation and to draw a connection between the problem (the low workforce participation of individuals with disabilities) and the regulatory solution (more refined data collection).” • ABC next challenged the utilization goal, including a challenge to the manner in which OFCCP calculated the utilization goal. ABC argued that OFCCP rejected evidence that many people with disabilities are unable to work because of the “disqualifying nature of their disabilities.” The D.C. Circuit rejected ABC’s argument, explaining that “OFCCP knew that the underemployment of individuals with disabilities could have different causes and concluded that at least a portion of the gap is due to discrimination.” Note Regarding the Construction Industry Based on the fluid and temporary nature of the construction workforce, OFCCP previously established a distinct approach to affirmative action for the construction industry. (See www.dol.gov/ ofccp/regs/compliance/aa.htm). The Final Rule, however, treats construction contractors the same as all other federal contractors. ABC challenged the application of the Final Rule to the construction industry, but the D.C. Circuit concluded that OFCCP was justified in not exempting construction contractors. Accordingly, the new utilization goal and the data collection requirements apply equally to construction contractors. This article has only touched on the highlights of the Final Rule and ABC’s challenge to the Final Rule. Anyone encountering a situation dealing with the Final Rule should seek legal guidance.
Josh C. Harrison, Associate The Kullman Firm Birmingham, AL jch@kullmanlaw.com www.kullmanlaw.com www.HRProfessionalsMagazine.com
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Healthy Workplaces, Healthy Communities
in Mississippi
By MURRAY L. HARBER and MATT GINN
FAMILIES MATTER Employers across Mississippi are starting to adopt the concept of employee health and wellness management. Communities including cities and counties are also doing more public health activities to link stakeholders such as employers, schools, land planning, and transportation to name a few. When an employer invests time and money into anything that supports health promotion, they are helping the employee, the employer, and the community.
The Future of Employer Health and Health Care in Mississippi was a meeting with some of the key leaders of other industry associations to discuss issues and solutions while finding some common areas of collaboration. Areas of collaboration discussed include a campaign for health consumerism, smoke-free Mississippi, and a data warehouse. The MSBGH is facilitating these types of conversations in the state and will do more in 2015 to catalyze the change in the employer health and health care system towards more value and quality. As a member of the National Business Coalition on Health, MSBGH members have access to national and regional partners including the Memphis Business Group on Health, the Louisiana Business Group on Health, and Employers Health Coalition of Arkansas. These groups are working together to provide meaningful webinars to all coalition members and engage local employers with others who are working on similar issues.
Employees have family members and are influenced by them in their everyday choices. Research shows that encouraging positive support systems can help people in the changing and sustaining their behavior. Many employers are offering more health and wellness options for dependents and families as they see the need to do so. In fact, most employers’ health plans have dependent cost of 50% or more, and they only target the employees; therefore missing half of the cost drivers.
TARGETING KEY EMPLOYER ISSUES
When we as adults, practice healthy lifestyles at home and work, we influence others to do the same and can help them learn different ways to make healthy choices. Promoting health and health consumerism to employees and families can help in improving your population’s health. No matter if the family members are on an employer-sponsored health plan, they still can influence the health and productivity of the employee at the workplace. Employer health is not just a health insurance issue; it is a presenteeism and morale concern as well. Employers can help improve the health of a community by collaborating with other employers, local businesses and local events which promote or influence health.
The Healthy Workplace, Healthy Communities conference will be held on May 19th in Jackson, MS. The keynote speakers are Jerry Noyce, President, HERO and Jessica Grossmeier, VP of Research, HERO. The Health Enhancement Research Organization (HERO) is a national leader in the creation of Employee Health Management: Research, Education, Policy, Strategy, Leadership, and Infrastructure. Some research will be presented on the prevalence of worksite wellness in both the public and private sector in Mississippi will be presented. Several other national speakers along with Mississippi employers will share their stories of adopting employer health programs.
EMPLOYERS COLLABORATE TO IMPROVE SYSTEM The Mississippi Business Group on Health had a great year by gaining over 50 members while holding impactful meetings and events which discussed improving the quality and value of employer health and health care. The MSBGH’s Annual Meeting had great attendance, informative speakers, and terrific engagement and networking with our members. The 5th Annual Health Care Reform Summit which is a collaborative effort involving the Mississippi College’s School of Business continues to grow in attendance, sponsorship, and quality featuring 250 people including CEO’s, CFO’s and Senior Human Resource Executives. Other collaborations involve the Mississippi Hospital Association, Mississippi Association of Self Insurers (MASI), and several other representative organizations. The Mississippi State Council of SRHM and several SHRM regional chapters including the Capital Area Human Resource Association are collaborating with the group to educate employers on industry trends and best practice solutions to the rising cost of health care and employer health. Over the course of the year, other groups began collaborating with the MSGBH on initiatives to improve the health of Mississippi. In 2015, the Mississippi’s Healthiest Employers will be awarded in June to employers who meet specific best practice criteria. It is a collaboration of the MSBGH, the Mississippi Business Journal, and the Mississippi State Department of Health. These criteria will also be used if passed by the legislature this session for a Workplace Wellness Tax Credit for employers who pay taxes. The MSBGH is partnering with MASI to promote the economic gain in reduced health cost and improved adoption of best practice strategies that work. This proposed tax credit will give a tax credit for up to half of the cost of providing a health and wellness program for their employees up to $20,000 limit. 28
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In 2015, the MSBGH will offer more educational and solutionoriented events. In April, a Specialty Pharmacy meeting will be held to share ideas and resources for specialty pharmacy issues including Hepatitis, Rheumatoid Arthritis, Hemophilia, and Cancer.
Mark your calendars for the 6th Annual Summit at Mississippi College will be October 13th, 2015. The MSBGH is working towards healthy workplaces, healthy communities in Mississippi by collaborating with many partners and encouraging its members to promote health and wellness options for employees and their families. Visit www.msbgh.org for more information and to join the state’s most powerful voice for employers in employee health and health care.
Murray L. Harber Executive Director Mississippi Business Group on Health murraylynnharber@gmail.com www.msbgh.org
Matt Ginn Corporate Communication Program Development Coordinator mginn@sfbli.com www.sfbli.com
Show some love
with critical illness coverage
Critical illness insurance complements your existing major medical coverage by providing employees a lump-sum benefit, ranging from $5,000 to $100,000, if they are diagnosed with a covered illness. These illnesses or procedures include such things as heart attack, end-stage renal failure, coronary artery bypass surgery, stroke or a major organ failure. In addition to critical illness coverage, other insurance products can also be used above and beyond medical coverage to protect your employees, their families and their assets in case of an emergency. Hospital confinement indemnity insurance and cancer insurance are also key ways that employers can provide crucial benefits to their employees for when hard times hit. Hospital confinement indemnity insurance can be used to help cover costs related to outpatient surgery, diagnostic tests, doctor appointments and emergency room trips. Cancer insurance can help cover home health care, lost income, child care, care at out-of-network specialty centers and experimental treatments.
Offering critical illness insurance to employees can help them protect the things they value most in life. By BLAKE ROGERS, JIMMY HINTON, CHRIS MENARD and RICKY REYNOLDS
Love is definitely in the air this time of year. There are chocolate hearts, candy hearts and lovey-dovey cartoon hearts everywhere you turn. But have your employees taken the time this month to consider the health of their hearts? Heart disease, according to the Centers for Disease Control, has been the leading cause of death in the United States since 1921. And strokes ranked fifth in 2013. About 600,000 people die in the United States each year from heart disease — that accounts for 25 percent of deaths, according to the CDC. The states with the highest heart disease death rates for men and women over 35 are in the South: Mississippi, Oklahoma, Alabama, Louisiana, Arkansas, West Virginia, Tennessee and Kentucky (CDC, 2014). Millions of Americans are at risk. The American Heart Association estimates there are 85 million people living with cardiovascular disease in the United States. That means millions of Americans are at risk of experiencing negative events such as heart attacks and strokes. Make sure your employees are protected and keep your employees’ hearts strong this year by reminding them of these ways to improve their heart health: • Drinking two cups of coffee each day can reduce your risk of heart failure, according to WebMD (2012). • Laughter can help reduce artery inflammation and increase “good” cholesterol, according to the AHA (2013). • Moderate consumption of flavanoid-rich foods like chocolate, red wine and tea can improve your heart health, according to the Cleveland Clinic (2014). • And talking out a potential problem that includes unresolved stress or conflict can reduce your risk for heart disease, according to the AHA (2014). But even if your employees do all four of these things, it won’t completely eliminate their risk of suffering heart attacks or heart disease. Millions of Americans will still suffer heart-related injuries and illnesses in 2015. Medical coverage can cover many of the health-related expenses incurred as a result of a heart attack or stroke, but employees can still be left with significant out-ofpocket costs for deductibles and copayments. Medical insurance also doesn’t cover everyday living expenses or other costs related to the illness, including home modifications, travel expenses and rehabilitation charges.
These additional costs can have serious negative impacts on a family’s financial health. A study released in 2012 by the American Journal of Medicine found that 62 percent of all bankruptcies were caused by overwhelming medical bills. Three-quarters of those who filed for bankruptcy had medical insurance, according to the study conducted by Harvard University. Allowing your employees to purchase these voluntary benefits — at no direct financial cost to your company — can help them pay their mortgages, keep the lights on, fill up the car with gas and pay other bills if they are out of work for an extended period of time. So this February, while most of the country is celebrating Valentine’s Day and love, make sure your employees are able to protect their hearts and Valentines with the financial protection products they need and deserve.
Blake Rogers Tennessee territory sales manager, Colonial Life & Accident Insurance Company tblakerogers@coloniallife.com
Jimmy Hinton Mississippi territory sales manager, Colonial Life & Accident Insurance Company jhhinton@coloniallife.com
Chris Menard Kentucky territory sales manager, Colonial Life & Accident Insurance Company cmenard@coloniallife.com
Ricky Reynolds Arkansas/Oklahoma territory sales manager, Colonial Life & Accident Insurance Company rcreynolds@coloniallife.com www.HRProfessionalsMagazine.com
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What do the President’s Executive Actions on Immigration mean to Employers? By BRUCE E. BUCHANAN
As most of you know, on November 20, 2014, President Barack Obama announced a number of Executive Actions on Immigration. It was fairly wide sweeping since it provides the opportunity for work authorization and protection from deportation to potentially five million undocumented workers. Other changes will affect a number of highly-skilled foreign workers and/or recent foreign-born graduates. In the first part of this article, I will discuss the potential I-9 compliance issues which may arise with millions of individuals receiving employment authorization documents (EADs) for the first time through the new Deferred Action for Parental Accountability (DAPA) program and expanded Deferred Action for Childhood Arrivals (DACA.) (Most of the new EADS will not be issued until the latter half of 2015.) In the latter part of the article, I will discuss changes that will affect a number of highly-skilled foreign workers and/or recent foreign-born graduates.
Immigration Compliance Issues Many undocumented workers are currently working for companies under false names, permanent resident cards and/or Social Security numbers. Thus, when that employee receives a valid EAD, either through DAPA or DACA, what is the employer to do when the employee presents the EAD to the HR manager and confides the prior documentation was fraudulent? The answer depends on your company’s policy on presenting fraudulent documents or lying on a company or government document. There are several options. The first is to accept the new EAD, complete a new I-9 form if the employee’s name, date of birth, or Social Security number is different and attach the old I-9 form to the new one with an explanation of the circumstances of completing the new I-9 form. This option should only be utilized if your company does not have a policy or practice of automatic termination for presenting fraudulent documents or lying on a company or government document. A second option is to inform the employee that your company has a policy prohibiting employment of employees who have presented fraudulent documents or lied on a company document. Thus, the employee is going to be terminated. However, if the company does not have a policy prohibiting their re-hire, the company may offer to re-hire the employee and complete a new I-9 form with an explanation of the circumstances. The third option is to inform the employee that your company has a policy prohibiting both employment and rehiring of employees who have presented fraudulent documents or lied on a company or government document. Thus, the employee must be terminated with no chance of rehire. The option that a company chooses will be dictated by your company’s policy and practice. If you do not have a policy on this matter, it is time to put one in place.
EADs A second concern is how employers should treat EADs. For some employers, the EAD may be a document that they rarely see. The four largest groups who receive an EAD are individuals on TPS (Temporary Protected Status) and OPT (Optional Practical Training), asylees and individuals who have pending adjustment of status applications. Thus, it is important to remember a couple of things about EADs. First, an EAD is a List A document, if it has a photograph on it. Thus, one should not ask for a driver's license or Social Security card to accompany the EAD card. Second, in Section 1, the employee must list the expiration date of their EAD and their A number or I-94 Admission number next to the box - “Alien authorized to work.” 30
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Actions for Highly-Skilled Foreign-Born Graduates The U.S. Citizenship & Immigration Services (USCIS) will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers. Some of these actions will be through regulation; thus, they will take six to 12 months to implement. Details will be forthcoming from the USCIS as to what exactly the actions will entail.
STEM and OPT The USCIS will develop new regulations to expand the list of STEM (Science, Technology, Engineering and Mathematics) professions and possibly extend the period of time that recent foreign-born graduates can work under OPT. Another possible change is to allow OPT under STEM after the attainment of a master’s degree where only the first degree is in a STEM field. These changes could help employers hire and retain gifted employees for lengthier periods of time, during which some employers may want to sponsor them for permanent residence.
Adjustment of Status Portability Cases The USCIS will issue a policy memorandum providing additional guidance in adjustment of status to permanent residence portability cases (A21) where workers are moving to new jobs, within the same company or to new employers, they claim are in the “same or similar” occupations. Current law allows employees, whose Adjustment of Status applications have been pending with the USCIS for 180 days, to change jobs or employers without jeopardizing their application if the new job is in the “same or a similar” occupational classification as their old job. The intent of the change is to remove unnecessary restrictions to natural career progression and give workers and employers increased flexibility and stability.
L-1B “Specialized Knowledge” The USCIS will issue a long-awaited policy memorandum in early 2015 to provide guidance on the meaning of “specialized knowledge” and clarify L-1B eligibility standards. According to the Department of Homeland Security, this L-1B policy guidance “will bring greater coherence and integrity to the L-1B program, improve consistency in adjudications, and enhance companies’ confidence in the program.” To date, the L-1B visa program has suffered from unclear guidance and erratic interpretation of the term “specialized knowledge” by adjudicators.
Conclusion It is important from both an immigration compliance perspective and in hiring and retaining highly-skilled foreignborn that companies and HR Professionals be aware of the President’s Executive Actions on Immigration, in light of the new policies and regulations.
Bruce E. Buchanan, Attorney Siskind Susser P.C. bbuchanan@visalaw.com www.visalaw.com
HIPAA Settlement
Underscores the Vulnerability of Unpatched and Unsupported Software By ALISA CHESTLER and TED LOTCHIN
T
he title of this alert, which comes straight from the
for such an event. We are currently assisting clients with mock audits
Department of Health and Human Services Office for
and updates to their HIPAA compliance programs and will be happy
Civil Rights' (OCR) announcement of its most recent
to discuss the challenges presented by these reviews. As demon-
settlement, again underscores the critical need for
strated again by OCR's most recent resolution agreement, the risks
covered entities and business associates to undertake a
of non-compliance simply outweigh the costs of
thorough security risk analysis. On December 8, 2014, OCR announced
sound preparation.
a settlement with Anchorage Community Mental Health Services (ACMHS), a five facility, non-profit organization providing behavioral
Alisa Chestler, Shareholder
health care services in Anchorage, Alaska, for potential violations of the
Baker Donelson achestler@bakerdonelson.com www.bakerdonelson.com
Health Insurance Portability and Accountability Act of 1996 (HIPAA). OCR opened an investigation after ACMHS notified the agency of a breach of unsecured electronic protected health information (ePHI) due to malware found on a desktop computer between December 20, 2011 and January 4, 2012. As a result of this breach, which affected over 2,500 individuals, ACMHS will pay $150,000 and adopt a corrective
Ted Lotchin, Of Counsel Baker Donelson tlotchin@bakerdonelson.com www.bakerdonelson.com
action plan (CAP) to correct deficiencies in its HIPAA compliance program. ACMHS will also be required to report on the state of its HIPAA compliance to OCR for a two-year period. Once again, OCR's investigation found a covered entity that had not taken the time to update its policies and procedures to stay in line with current standards or expectations. While ACMHS adopted sample Security Rule policies and procedures in 2005, such policies and procedures were not followed. OCR's findings included a determination that the breach was the direct result of ACMHS's failure to identify and address basic risks, such as not regularly updating their IT resources with available patches and running outdated, unsupported software. It is significant to point out that the resolution agreement focused on ACMHS' failure to conduct an accurate and thorough security risk analysis as required by the Security Rule. We recommend that all covered entities and business associates revisit their most recent security risk analysis and ensure that the issues associated with patch management are addressed. It seems clear that OCR will continue to expect all entities that handle ePHI to meet these requirements, regardless of an entity's size, mission or non-profit status. This settlement should also serve as a reminder that the HIPAA audit program will be resuming after the first of the year. Accordingly, hundreds of covered entities and business associates will be receiving inquiries that could lead to an onsite audit. The audit requirements will be onerous and very difficult for organizations that have not planned in advance www.HRProfessionalsMagazine.com
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IT’S ABOUT TIME:
Effective Strategies to Maximize our Time.
By DONNA TOSCHES
Do these statements sound familiar? “I just have too much to do and not enough time “or “I’m being pulled in so many directions; I don’t know where to being.” According to the NPR/Robert Wood Johnson Foundation/Harvard School of Public Health report on the Burden of Stress in America, those people who report a great deal of stress cite too many responsibilities as the greatest contributing factor. We live and work in a culture that appears to value constant activity and view an excessive work load as a “badge of honor.”
It’s Time to Work Smarter Not Just Harder We are bombarded with seemingly endless distractions. The popular Pixar movie “Up” characterized the inability to maintain focus every time Dug the talking dog saw a squirrel. He would immediately stop what he was doing, even if he was deep into the action, to shout “squirrel!”. And, of course, he would lose his focus. In order to work smarter we need to increase our ability to focus. In his new book, Focus: The Hidden Driver of Excellence, Daniel Goleman, PhD, who taught us about emotional intelligence, points out that being attentive, mindful and focused is much like a muscle – use it poorly and it withers; work it well and it gets stronger.
STEP ONE – Creating Better Habits Research has shown that creating one new healthy habit and mastering it over the course of time is the most effective way to have long lasting results. Much like SMART goals, the one new habit should be specific, measurable, achievable, relevant and time sensitive to be successful. We tend to easily develop negative habits but to work smarter we must protect our time by focusing on positive habits. Time well spent on creating a good habit can pay off well in the long run.
in a doctor’s waiting area; and declining meetings that will not promote your priorities are just a few examples of techniques that will help control and protect our time.
STEP THREE – Push Past Procrastination Mark Twain is noted for saying never put off until tomorrow what you can do the day after tomorrow. As tempting as this sounds, we know that certain items on the “to do” list just have to get done. Yet, we often find ourselves tackling action items that are easy to complete or more enjoyable but delaying more important projects. How do we push past the procrastination? It can help to focus on the positive feelings of a job complete. Building in a reward or scheduling distractions as we work helps keep us on task and provides us with the motivation to stay focused. This allows us to work towards that short break to relax and re-energize. Another helpful strategy to push past procrastination is to work in small chunks of time or break a project into smaller pieces so that it does not appear so overwhelming.
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STEP FOUR – Sleep and Solitude
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STEP TWO – Setting Priorities We often spend our time working on other people’s priorities and have a hard time making a dent in our own. Blogger Carey Nieuwhof says that we do this when we constantly check and respond to email; refuse to turn off the notifications on our phone and allow people to interrupt us when we are working. There are essential reasons why we may need to quickly respond to an email, answer a phone call or text message or speak to someone who wants to talk to us immediately. However, this isn’t always the case. We waste valuable time when we allow others to define our workday. Many time management experts propose that we do our best and worst work first thing in the workday; spending focused, defined time on our most important project and our hardest task before other action items come up in the day that need our attention. Minimizing Facebook, twitter and other social media outlets throughout the day; being productive while
The Mayo Clinic reports that the we need sleep to fight infectious diseases. They also report that long-term lack of sleep increases your risk of obesity, diabetes, and heart and cardiovascular disease. The average number of hours an adult needs for optimal cognitive and physical health is 7-8 hours. Studies show that most of us are missing the mark on getting much needed sleep.
Solitude is another important tool needed to maintain optimal health. Silence and a time to unwind and refresh is necessary to keep us at maximum capacity. Blogger Carey Nieuwhof states that refusing to rest is like trying to run your phone for a full day on 15 % power. Spending more time in sleep and solitude actually helps us to be more effective when we are awake and engaged. There are many effective strategies to maximize our time. We all get the same 24 hours. It is up to us to figure out how to use them to work smarter and harder.
Donna Tosches, LCSW, CEAP Director of the Methodist LeBonheur Healthcare Employee Assistance Program Donna.Tosches@mlh.org www.methodisteapcanhelp.org www.HRProfessionalsMagazine.com
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Active Listening Usually when we are involved in a conversation, we are thinking of how we are going to respond rather than really listening to what the other person is saying. In bargaining it is important that the other side feel they are heard and understood. One of the best ways to do this is to feed back what they have just said and ask if we understood what they were saying. Making a point of doing that forces us to actively listen instead of thinking about what we are going to say next. Having the other party feel they are heard and understood lubricates the process and breaks down barriers to achieving an agreement.
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Intelligent Negotiating
By HARVEY DEUTSCHENDORF
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‘‘ You must never try to make all the money that’s in a deal. Let the other fellow make some money too, because if you have a reputation for always making all the money, you won’t have many deals.’’ ~ J. Paul Getty ~
J.Paul Getty recognized a very fundamental aspect of successful negotiation, in that it needs to be seen as a win by both parties. For any negotiation to be successful everyone involved must have something to gain and something to lose if the negotiations are not successful. When negotiations end with one of the participants feeling they have lost at the expense of the other, there is lingering resentment, lack of trust and other negative outcomes which limit the possibility of any success in future negotiations. This will hurt the side which was seen as being successful as much as the one that considers itself taken advantage of. Here are 5 elements that make for Successful Negotiation:
Being aware of and manage one’s emotions When emotions take over negotiations they can go sideways very quickly. The negotiations can turn into a test of willpower with one or both parties turning it into a game of one-upmanship. When being right becomes the focus instead of how to make things work for both parties, negotiations can quickly turn into a stalemate with neither side willing to compromise. When a negotiator feels strong emotions are affecting his or her ability to think strategically, it is best to take a time out to refocus. The more there is at stake in a negotiation the longer it will take and the more patience is required. When our feelings tell us that we, or the other party are at an impasse it is important to stop at that point and come back when we are feeling refreshed and have more energy. To keep going after this points will only result in positions becoming entrenched and negative feelings towards the other party increasing, making a successful negotiation more difficult in the future.
Aware of the needs of the other party Successful negotiators make themselves aware of what the other side needs to come out of the negotiations with a win. They find out early on by asking questions to try and flush out what it would take for the people opposite them to come to an agreement. Instead of looking at negotiations as an adversarial exercise with winners and losers, they look at the process in terms of forming a successful partnership with benefits for all concerned. If the other side comes from a different cultural background with different value systems, it is important to know, be aware of these differences and how they will play out. Letting the other party know we are aware of where they are coming from goes a long way towards breaking down barriers that impede collaboration. If we are aware of, and able to come up with ideas on how the other side would be better able to “sell” the deal to their own people, our leverage in the process could increase substantially. Always be aware of the fact that if you reach an agreement that is good for both of you, both of you will win. 30
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Share emotions and observations of them when appropriate Rather than being stone faced as a poker player to not give anything away, it is better to share emotions that might help move things along. An example of this is sharing that you are feeling frustrated and illustrate observations that the other side might be feeling this as well. Realize that like you, the other party will have to go back to their own people and justify the deal that they made. Bringing up pressures that both of you are under helps to build confidence that an agreement can be reached.
Be genuine Being real and genuine means to not complicate matters or make them even more difficult by using words and phrases to try and hide what the real issues are. Both parties understand what is really at stake and trying to confuse the issues or talk around them only adds mistrust. Be open, honest and direct with how your side understands the issue and accept the other side may have a totally different viewpoint. If you have a personal stand on the subject, bringing it up will help to build trust as the other side will not have to try and where you are coming from. Being genuine will encourage the other party to do so as well, breaking down barriers so that you can get down to the real issues at hand more quickly. If you personally think that the offer from the other side is a good one but you will have problems taking it back to your own people let the other side know that. Perhaps they will have ideas on how you can make this more acceptable to the people you represent. Don’t take anything personally, you both have a job to do, so look for common ground and ways to cooperate.
Harvey Deutschendorf Emotional Intelligence Expert, Speaker, and Author of The Other Kind of Smart Harvey.eiguy@shaw.ca www.theotherkindofsmart.com Twitter@theeiguy