February 2017 issue by Cynthia Thompson

Volume 7 : Issue 2

www.HRProfessionalsMagazine.com

HR Technology Issue

SHRM-Atlanta Conference March 29-30

Google v.

Government

Repeal and Replace:

The Fate of the ACA

Melissa DeVore,

SHRM-SCP, SPHR

2017 Director of Alabama SHRM

Modernize Onboarding to Accelerate

New Hire

Engagement

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Bringing Human Resources & Management Expertise to You

21%

of American workers access health insurance through Medicaid www.HRProfessionalsMagazine.com Editor

Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher

The Thompson HR Firm, LLC HR Consulting and Employee Development Art Direction

Park Avenue Design Contributing Writers

Austin Baker Whitney Ferrer William Carmichael Harvey Deutschendorf Neemah Esmaeilpour Diane Faulkner Zachary W. Hoyt Russell W. Jackson Jennifer S. Kiesewetter Abtin Mehdizadegan Kerstin Nemec Tim Norwood Gary Peeples Greg Siskind Billy J. Sprague Stacey L. Stewart Brigitte Tubbs-Jones Mary Ila Ward Board of Advisors

Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR Terri Murphy Susan Nieman Robert Pipkin Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2017 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: Melissa DeVore, SHRM-SCP, SPHR, 2017 Director of Alabama SHRM 12 Modernize Onboarding to Accelerate New Hire Engagement 16 5 Key Trends in Hiring Technology That Will Affect You in 2017 28 Innovate or Die. 3 Things HR Can Do To Create Best Places to Work 38 Book Look: Clash of the Generations by Valerie M. Grubb 46 7 Ways to Make a Great First Impression

WEB EXCLUSIVES HTTP://HRProfessionalsMagazine.com /Exclusive

Employee Benefits

22 Repeal and Replace: The Fate of the ACA 24 Is it Time to Review Your HIPAA Privacy and Security Compliance Strategy? 26 Building a Healthier Work Force: Rethinking the Way We Provide Access and Pay for Care 32 Choice and Communication are Keys to Successful Consumer-Driven Benefits Program

Profiles from Top HR Technology Companies 40 Data Facts, Inc. 43 ADP

Employment Law

Next Issue Profiles of Rising Stars in Employment Law

10 What Employers Need to Know Regarding the EEOC’s New Strategic Enforcement Plan 14 Ringing in the New Year: Employment Issues to Monitor in 2017 17 Tennessee Workers’ Compensation Law and Practice 18 Managing Electronic Evidence in the Workplace – The Arrival of the Digital Age 20 Google v. Government: “Don’t Be Evil” Meets “Give Us Your Employee Data” 30 The First 100 Days and Beyond: Key Issues for HR in 2017 34 Is Your Website ADA-Accessible? 36 Obama Administration Issues High-Skilled Worker Immigration Regulation January 17, 2017 44 The Impact of the Use and Abuse of Prescription Drugs in the Workplace

Industry News

6 2017 ALSHRM Conference in Birmingham May 16-17 8 SHRM-Atlanta 2017 HR Conference March 29-30 9 SHRM 2017 Employment Law & Legislative Conference in Washington March 13-15 13 2017 ARSHRM Conference in Hot Springs April 5-7 19 2017 MSSHRM Conference in Tupelo April 3-5 21 2017 TPMA Conference in Chattanooga April 18-21 37 8th Annual TNSHRM Strategic Leadership Conference in Nashville April 21 www.HRProfessionalsMagazine.com

note from the editor

(L-R) Russ Henderson with GMEBC, Jennifer Kiesewetter with Kiesewetter Law Firm and Matt Gregory with Lockton Companies. Jennifer and Matt presented “Employee Benefits in 2017: Key Areas of Compliance Concern and Potential Impacts of the 2016 Election” at the January 2017 luncheon meeting at the Crescent Club in Memphis.

January we welcomed Alabama SHRM and its 14 SHRM Chapters to our distribution footprint in the Southeast U.S. It was very exciting to add Alabama to our current “SEC” distribution, which includes Tennessee, Georgia, Kentucky, Arkansas and Missis-

sippi. It is a pleasure this month to have Melissa DeVore, Director of Alabama SHRM, on our cover. I know you will enjoy reading

We have two articles in this issue about expectations for 2017. Be sure you read “Ringing in the New Year: Employment Issues to Monitor in 2017” by Whitney Ferrer with Littler Atlanta, and “The First 100 Days and Beyond: Key Issues for HR in 2017” by Neemah Esmaeilpour with Wright Lindsey Jennings. Both of these insightful articles will give you a glimpse into what to expect from the Trump administration.

about Melissa’s involvement in SHRM since 2001 beginning with her service to the New Mexico State Council before returning to her home state of Alabama in 2011. As the new media sponsor for ALSHRM, we will be bringing you coverage of the 2017 ALSHRM Conference in Birmingham May 16-17. The theme is “HR Strikes Back.” Sounds like a “Star Wars” movie with an HR “twist.” I hope you will read about the SHRM Employment Law and Legislative Conference coming up March 13-15 in Washington, DC on Page 9. Please make plans to attend this very exciting conference,

This is also our HR technology issue, and we are proud to honor two of our sponsors who are leaders in HR technology; Data Facts, Inc. and ADP. You will enjoy reading the profiles of some of their key leaders. We have quite a few articles about HR technology in this issue that you will find educational and informative. Mark your calendar for February 23rd, as we will be presenting our monthly webinar sponsored by Data Facts. Watch your email for your invitation!

which is my favorite SHRM Conference each year. Experts will discuss the ACA, paid leave, workplace flexibility, social media in the workplace, protections for LGBT employees, and legal risks when religion surfaces in the workplace. But the most exciting part of this conference is visiting your state legislators on Capitol Hill and discussing HR issues that impact your workforce. With a new administration in the White House, this is a great opportunity to learn about the new policies and how they will impact business and your organization.

www.HRProfessionalsMagazine.com

Cynthia Y. Thompson, MBA, SPHR | Editor Cynthia@hrprosmagazine.com www.hrprofessionalsmagazine.com

Melissa on the cover

M. DEVORE

MELISSA M. DEVORE. SHRM-SCP, SPHR Alabama SHRM State Council Director

Melissa has over 20 years of human resources experience, 14 years in the government contracting industry. Melissa also worked in the banking and staffing industries. Melissaâ&#x20AC;&#x2122;s areas of expertise include: Strategic Planning, Policy Development, HR Administration, Process Improvement, Organizational Change, Compensation & Benefits, Performance Management, Mergers & Acquisition, Employee Relations (including labor union relations and negotiation), HR Technology, Security, and Compliance.

Melissa has been involved in SHRM volunteer positions since 2001. She has served as a volunteer to her profession in both New Mexico and Alabama. Melissa served as President for the Albuquerque Chapter, HRMA, in addition to other roles on the Board and served in multiple positions for the New Mexico State Council including chairing the NM State Conference. In 2011, she returned to her home state of Alabama and within a year was volunteering for the North Alabama SHRM Chapter Board. She also spent 4 years co-chairing the Alabama SHRM State Conference. What Melissa loves about HR is the variety of challenges and collaboration with others. She has worked with such a diverse group of people - their backgrounds, areas of expertise, and experiences. She has been involved in system implementations, mergers and acquisitions bringing diverse company cultures together, and everything in HR (compensation, performance management, talent management, benefit plan negotiations, compliance, employee relation). Through this work and her volunteer roles, she has been able to develop a great network of HR friendships and has been able to learn and develop, providing the experience to be able to coach and mentor other HR professionals in their career journeys. At HudsonAlpha Institute for Biotechnology, Melissa serves as a key member of the Senior Executive Leadership Team providing leadership and direct engagement in all aspects of Human Resources to include employee administration, employee relations, talent management, and performance management. She aligns the direction, services, and innovations of the Human Resources department with the direction and strategies of HudsonAlpha. Melissa graduated with a Bachelor of Business Administration in both General Management and Human Resources Management from the University of New Mexico. In addition, Melissa obtained a Master of Arts in Organizational Management from the University of Phoenix. Melissa is certified as a SHRM-SCP by the Society for Human Resource Management and a SPHR (Senior Professional in Human Resources) by HRCI. ď Ž

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Join us for our 2017 conference on May 16-17th at the Birmingham-Jefferson Convention Complex, Alabama’s largest meeting complex. Each year the event attracts over 500 human resource professionals and vendors throughout the state of Alabama and across the nation. Participants represent virtually every industry and companies ranging from small businesses to large industrial centers. Programs presented at the annual conference cover all aspects of the SHRM Body of Knowledge.

$275 Early-bird Rate / $325 Regular Rate 

Earn up to 10.25 general SHRM and HRCI credits,  ALSHRM marketplace event and networking,  Breakfast, lunch, and opening reception. Please visit our website for more information:

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Presents

Online HRCI PHR | SPHR Certification Prep Class Online classes begin February 16 and will meet twice per week for 12 weeks on Monday and Thursday evenings from 6:00 PM to 7:30 PM.

HRCP 2016 Study Materials included: ✔ Six Study Guides ✔ Online practice exams for each Study Guide ✔ 100s of Flashcards ✔ HRCP materials that are among the most effective study guides available and are easy to read and understand The total cost of the HRCI PHR | SPHR Certification Prep Class is $900 You may pay by PayPal, Credit Card, or Check. Money-Back Guarantee

If you fail the exam, we will refund the cost of your study materials if you meet these two requirements: – Attend 80% of the scheduled online classes – Score 80% on all 14 HRCP practice quizzes during the program

Deadline to register is February 8 Contact cynthia@hrprosmagazine.com OR visit our website at www.hrprofessionalsmagazine.com About the instructor: Cynthia Y. Thompson is Principal and Founder of The Thompson HR Firm, a human resources consulting company in Memphis. She is a senior human resources executive with more than twenty years of human resources experience concentrated in publicly traded companies. She is the Editor | Publisher of HR Professionals Magazine, an HR publication distributed to HR professionals in Tennessee, Mississippi, Arkansas, Kentucky, Georgia and Alabama. Cynthia has an MBA and is certified as a Senior Professional in Human Resources (SPHR) by the Human Resource Certification Institute and is also certified as a Senior Certified Professional by the Society for Human Resource Management. She is a faculty member of Christian Brothers University in Memphis and teaches Human Resource Management. www.HRProfessionalsMagazine.com

REACHING

NEW HEIGHTS

EMPOWER YOURSELF AND JOIN US FOR SOAHR 2017, SHRM-Atlanta’s 27th Annual HR Conference. Participate in two days of cutting-edge educational sessions and two keynote presentations designed to strengthen your business acumen and leadership capacity. •

NEW: Additional networking opportunities with an opening night welcome reception

•

Over two dozen sessions covering Business Acumen & Strategy, Employment Law & Legislation, Talent Acquisition & Retention and Total Rewards

•

Opportunity to earn up to 9 SHRM PDC and HRCI CEUs

•

Jam-packed Resource Partner Showcase filled with new products and solutions to streamline your work

•

Complimentary professional headshots

MARCH 29-30, 2017 COBB GALLERIA CENTRE ATLANTA, GA #SOAHR17

SHRM Employment Law & Legislative Conference to Include Discussions About Workplace Drug Testing, Bullying at Work, Pay Equity and More

Conference to be held March 13-15 in Washington, D.C.

The Society for Human Resource Management (SHRM) 2017 Employment Law & Legislative Conference will focus on issues of importance to employers and their employees, as well as HR professionals during this first year of the Trump administration. Experts will discuss topics such as the Affordable Care Act, paid leave, workplace flexibility, social media in the workplace, protections for LGBT employees, and legal risks when religion surfaces in the workplace. More than 500 human resource professionals and employment lawyers are expected to attend the conference. WHAT:

SHRMâ&#x20AC;&#x2122;s 2017 Employment Law & Legislative Conference (#SHRMLeg)

WHEN:

March 13-15, 2017

WHERE:

The Renaissance Hotel, 999 9th St. NW, Washington, DC 20001

Concurrent Session Highlights:

Other Highlights:

Altered States? The Current State of Drug Testing in the Workplace;

Opening Session: Michael Aitken, vice president of government affairs at SHRM, will speak about the outlook for HR public policy this year;

Monday, March 13, 10:15 a.m. - 11:45 a.m.

Monday, March 13, 8 a.m. -10 a.m.

Equal Opportunity Bullying: How Even Legal Behavior Puts Your Organization at Risk; Monday, March 13, 10:15 a.m. - 11:45 a.m.

Workplace Strategies for Managing Mental Disabilities;

Advocacy Day: Hundreds of attendees will visit lawmakers on Capitol Hill on Wednesday, March 15 to talk about federal legislation affecting the workplace.

Tuesday, March 14, 9:15 a.m. - 10:45 a.m.

Pay Equity Is Complicated â&#x20AC;&#x201C; New Rules, New Reporting, and How to Protect Your Organization; Tuesday, March 14, 2:15 p.m. - 3:45 p.m.

For conference details, please visit https://conferences.shrm.org/legislative

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What Employers Need To Know Regarding The EEOC’s New Strategic Enforcement Plan By RUSSELL W. JACKSON

The EEOC recently updated its strategic enforcement plan for 2017-2012. While the newly prepared strategic enforcement plan focuses on similar initiatives as the previous plan (2013-2016), there are minor modifications regarding its priorities, of which employers should be aware.

Guiding Principles The guiding principles of the plan are (1) a targeted approach, with focused attention on priorities where the government’s efforts can have strategic impact; (2) an integrated approach, including collaboration, coordination and consistency throughout the agency; and (3) accountability by taking ownership to achieve results with existing resources.

EEOC Priorities The EEOC identifies the following as its substantive area priorities: 1. Eliminating Barriers in Recruitment and Hiring. This is targeted toward class-based recruitment and hiring practices that may discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities. The EEOC will focus on exclusionary policies and practices, discriminatory steering practices, job segregation, restrictive application processes (including online systems that may be inaccessible to individuals with disabilities) and screening tools that disproportionately impact workers based on their protected status. 2. Protecting Vulnerable Workers from Discrimination. These efforts will include reviewing disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers, including immigrant and migrant 10

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workers and those in underserved communities who may be unaware of their rights, or reluctant or unable to exercise them. The district offices and the federal sector program will identify vulnerable workers and underserved communities within their areas. As one example, the EEOC has indicated that discrimination against members of Native American tribes could be a focus. 3. Addressing Selected Emerging and Developing Issues. The EEOC has listed specific issues it intends to monitor: qualification standards and leave policies affecting disabled workers; accommodating pregnancy-related limitations; protecting members of the lesbian, gay, bisexual and transgender (LGBT) community; clarifying the protections afforded in complex employment relationships, including with temporary workers, staffing agencies and independent contracts; and addressing discrimination against those who are Muslim, Sikh, Arab, Middle Eastern or South Asian. 4. Ensuring Equal Pay Protections for All Workers. In addition to continuing to address gender pay disparities under the Equal Pay Act and Title VII, the EEOC will focus on compensation discrimination based on any protected status, including race, ethnicity, age or disability. 5. Preserving Access to the Legal System. The EEOC will focus on arbitration agreements, employers’ failure to maintain and retain required applicant and employee data, and retaliatory practices that dissuade employees from exercising their rights.

The EEOC reports that it currently has approximately 552 investigators, one-third fewer than it had in 2002.

6. Preventing Systemic Harassment. Over 30 percent of EEOC charges allege harassment, most frequently sex, race, disability, national origin and religion, in that order. The EEOC states that promoting holistic prevention programs, including training, can significantly deter future violations.

Streamlining The Investigation The EEOC reports that it currently has approximately 552 investigators, one-third fewer than it had in 2002. The investigators are responsible for handling roughly 90,000 charges per year. As of September 30, 2016, the EEOC had 73,000 charges, and the average time to resolve a charge currently exceeds 300 days. In an effort to streamline its investigation of charges, the EEOC has instituted an online Digital Charge System, which allows faster transmittal of information and documents between the EEOC and the parties. Charges that raise substantive area priorities or have the potential for strategic impact, and are categorized as “B” charges, must be reviewed expeditiously. “B” charges are those that initially appear to have merit, but require additional information. The EEOC recognizes that Alternative Dispute Resolution (ADR) continues to be an important tool to promote timely resolution of discrimination charges. Charges classified as “A” (where an employer’s conduct is likely to be found in violation of the law) may be referred to mediation. District offices are encouraged to use pro bono mediators or law school clinics to expand the mediation programs. Charges raising substantive area priorities and district priorities will be given precedence in determining which cases the EEOC should litigate. Charges outside the priorities that may have a strategic impact may also be considered for litigation. In an effort to integrate its efforts throughout the agency, the EEOC’s strategic plan requires consultation between investigative and legal enforcement staff during investigations and conciliations. The procedures instituted by EEOC to investigate charges and adjudicate federal sector complaints are intended to be transparent and uniform throughout the country to enable parties to effectively participate in the systems. The online portal should facilitate more consistent procedures and provide a dependable level of service. The EEOC has also implemented a practice permitting charging parties to request and respond to respondent position statements during the investigation.

should review the EEOC’s substantive areas to determine any potential exposure in those areas. Such an assessment should include evaluating specific policies in light of the priorities and: reviewing guidelines affecting leave, LGBT rights, and temporary employees; seeking guidance relating to waivers, releases, and arbitration provisions; analyzing potential joint employer relationships; determining whether hiring or recruiting efforts pose disparate impact exposure; evaluating compensation disparity issues; and ensuring compliance with record keeping requirements. Companies should remember that charging parties may now request and respond to position statements. Additionally, President Trump will likely cause a shakeup in the EEOC, including the appointment to several key positions, which could impact the strategic enforcement plan.

Russell W. Jackson, Counsel FordHarrison Memphis rjackson@fordharrison.com www.fordharrison.com

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Tips for Employers Employers may have already seen the effects of the previous strategic enforcement plan and should expect those to continue. Companies www.HRProfessionalsMagazine.com

Modernize Onboarding to Accelerate New Hire Engagement By DIANE FAULKNER

The onboarding process is in need of an overhaul. In too many organizations, paper forms are de rigueur, while in others, employee progress tracking processes are disorganized or onboarding processes are delayed when employees begin work. A more modern approach could help alleviate these issues and transform new employees into ready-andable contributors in a more timely manner. It's time to update onboarding.

Consider the Time Investment A great jumping-off point to start improving your onboarding process is to consider the amount of time needed for new hires to be trained. A big part of getting acclimated is getting to know not just what the responsibilities will be on the job, but getting to know what a day in the life on the job is like. This is part-and-parcel of what onboarding is about, and HR is not necessarily the only source for this type of information. According to research by ADP, managers spend the equivalent of 7 days onboarding a new hire while HR spends 4 days - both working hand-in-hand with the new employee to complete paperwork and policy acknowledgements and build an understanding of team culture, expectations and success factors. “Managers spend more time than anybody onboarding a new employee,” said Alex Outwater, senior director of product marketing for ADP. “When you start a job ... you have to learn all these new things, and the manager is the one who facilitates a lot of that.”

Ditch the Forms Completing new-hire forms is a necessity, but that doesn't mean the process has to be unwieldy. You can automate this aspect of the onboarding process and make all the forms available in a selfservice portal. “Don't limit the content in the portal to just tax and benefits forms, either,” according to an Aberdeen report. “Provide new hires with the opportunity to view learning videos, to see their upcoming training and take surveys relating to their experiences so far.” Resources like these make the onboarding process meaningful and help new talent become engaged and ready to contribute as quickly as possible. The onboarding process is a great opportunity to drive employee engagement, not just from the date of hire, but even before the first day on the job. With a digital system created through the combined efforts of managers and HR, new employees will be set up to succeed in their new jobs and understand they are an important part of the team right off the bat. To learn more, access a complimentary copy of the action paper The Human Touch Drives Onboarding Success (at adp.com/onboarding) which covers research findings and perspective from employees, managers and HR professionals, and offers three critical steps to delivering an effective onboarding program.

As seen on Spark, powered by ADP (adp.com/spark) Sign up to receive the more insights like this at www.adp.com/blogs

Outwater added that organizations should not think of onboarding as just an administrative process. “Rather, think about it as becoming acclimated to the company,” said Outwater. “And the manager does a lot of that. HR is the facilitator, and ensures the critical administrative stuff gets done, but the manager is the one who absorbs most of the effort around onboarding.” The ADP study found that reducing time spent on onboarding and getting new hires productive right away are two of the top three “manager desired” attributes of an onboarding program. Gathering managers' input into creating an optimal onboarding system is key.

Digital vs. Analog Outwater says it's important to ask, “What does onboarding look like? What are the things that need to get accomplished to ensure the new employee gets off to a strong start?” Onboarding is sometimes accomplished face-to-face; other times, it's more digitally based. “It depends upon the type of worker and the type of industry,” Outwater said. “So, there's no one-size-fits-all answer. But as technology continues to drive more interconnectivity across both personal and work lives, many organizatioins are finding that a digital onboarding process can deliver a more seamless and comprehensive experience for the employee, manager and HR.” 12

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Diane Faulkner, ACC, SPHR Diane Faulkner is an award-winning writer and editor whose work appears in publications such as HR Executive Magazine, The Conference Board Review, Credit Union Management Magazine, The Federal Credit Union, The Business Journal, CoffeeNetwork.com, CommodityNetwork.com, GuideWell.com, ConsumerHealthDigest.com, among other publications. She is a certified counselor (ACC), which helps when writing on mental health issues. She's also a certified senior professional in human resources (SPHR), with more than twenty years experience in the human resources field. Diane specializes in human resources/ workplace issues/labor law, mental health (people and animals), geriatric issues/lifestyle, grammar/writing/publishing, coffee, education, but has written on a variety of other topics, such as travel, food, beer/wine/spirits, which she greatly enjoys.

Ringing in the New Year: Employment Issues to Monitor in 2017 By WHITNEY FERRER

The beginning of a new year is an excellent time to consider recent or pending employment law changes and to determine whether updates in employment policies or practices are warranted. In this article, we examine topics that we see as emerging issues in 2017 and offer suggestions to enhance compliance. With Congress gridlocked for much of the 2016 election year, changes at the state and municipal levels, most notably in the area of increasing minimum wages and paid sick leave laws, seemed to predominate. The biggest compliance hurdle for multi-state and national employers â&#x20AC;&#x201C; or even companies with statewide operations â&#x20AC;&#x201C; may be simply keeping abreast of these local law developments.

Increased Salary Levels for Exempt Employees Fortunately, employers received a reprieve from implementation of the Final Rule increasing the required salary level for overtime-exempt employees from $455 to $913 per week in late November 2016 when a federal judge granted a preliminary injunction barring the rule from going into effect. It remains to be seen what will happen to the salary level requirement under the FLSA, but some states are not waiting for the new Trump Administration to act. Effective December 31, 2016, the state of New York implemented new salary levels for employees classified as exempt from overtime on the basis of the executive and administrative exemptions, depending on size and geographic location. While the salary levels are tethered to number of employees and geography and are to be implemented over the next five years, the changes are significant for all employers. For example, employers in New York City and surrounding counties will ultimately see salary levels rise to $1,125 per week. While New York has been the first to act, we expect other states will follow. While not expressly raising the salary level for exempt employees, other states have tied salary levels for exempt employees to increases in the minimum wage. Laws in the Alaska and California require white-collar-exempt employees be paid at least two times the state minimum wage for a 40-hour workweek. Colorado, Maine, and Oregon also link exempt employee pay to the state minimum wage. Even though there is uncertainty and delay with respect to the implementation of an increased salary level under the FLSA, employers must bear in mind differing state wage and hour laws that will impact compliance with local requirements and confirm, in applicable states, that overtimeexempt white collar employees are paid at least the minimum wage where required, and paid the newly enacted salary levels in New York. In addition, employers should be mindful that the job duties of a position are also critical to an exempt classification.

Increases in the Minimum Wage Many states rang in the New Year with an increase in the minimum wage. On July 1, 2016, Oregon enacted the first geographically-tiered minimum wage hike in the country, thereby increasing the burden on company payroll departments to implement differing pay rules within the same state. Oregonâ&#x20AC;&#x2122;s new minimum wage law imposes different minimum wage rates for employers in the Portland, Oregon metro area and for employers located in the more rural 14

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parts of the state. New York followed by implementing a regional pay scale rather than a uniform pay scale, raising the minimum wage for employees in New York City to $11 per hour with other areas seeing minimum hourly wages ranging from $9.70 to $10.50. Other jurisdictions, such as Massachusetts, Washington and the District of Columbia, raised minimum wages as high as $11 per hour with some escalating pay scales reaching $15 per hour in 2020. California adopted its own “tiered” approach by enacting two different minimum wages – $10.00 per hour for “small” employers, and $10.50 for “large” employers. Additionally, many localities have joined the fray, enacting local minimum wage laws. California now has differing minimum wage requirements in the areas of Cupertino, Los Altos, Malibu, Pasadena, San Diego, San Leandro, San Mateo, and Santa Monica. Due to the abundance of differing minimum wage laws, employers may want to consider implementing an effective system of monitoring minimum wage increases at all levels, updating minimum wage posters, and training HR, payroll, and managerial employees on increases, posting, and notice requirements, and how to respond to employee inquiries concerning wage rate changes.

Paid Sick Leave Laws The number of states enacting paid sick laws continues to grow. Washington and Arizona have now joined five other states - California, Connecticut, Massachusetts, Oregon and Vermont – requiring employers to provide employees paid sick leave. Although more states have joined the club, local paid sick leave laws far outnumber state measures and exist in states (currently) without corresponding provisions. Local paid sick laws have also now been enacted in the cities of Minneapolis and St. Paul, Minnesota, effective in July 2017. Additionally, in October 2016, Morristown, New Jersey became New Jersey’s 13th municipality to require private employers to provide paid sick time to employees. Multi-state employers with employees in these states and localities should review and revise sick leave policies and procedures to ensure they meet newly enacted requirements. Additionally, employers should obtain or prepare compliant notices and posters, and ensure their timekeeping and payroll systems properly calculate and track accrued and used sick time. Employers may also consider training supervisory and managerial employees, as well as human resources, on varying paid sick leave requirements, including making them aware of restrictions on requesting documentation and possible restrictions on attendance policies as they pertain to an employee’s use of paid sick time.

EEOC Guidance on ADA Requests for Accommodation and National Origin Discrimination Not to be left in the cold by state and local legislatures, in 2016, the Equal Employment Opportunity Commission (EEOC) issued guidance relating to a number of employment issues, including a resource document addressing the rights of employees with disabilities who seek leave as a reasonable accommodation under the Americans with Disabilities Act of 1990 (ADA). This document consolidates existing guidance by the EEOC on the ADA and leaves of absences as a reasonable accommodation, including the interactive process. Although the Commission’s view of the state of the law is oftentimes significantly broader than controlling case law, the enforcement guidance is helpful to employers because it provides the government’s current position and gives guidance on how the Commission will investigate claims of alleged discrimination.

The resource document explains that an employee who informs her employer that a disability may cause periodic unplanned absences from work is considered to have requested a reasonable accommodation, which would trigger the employer’s duty to engage in the interactive process. The resource document further highlights the EEOC’s view that an employer may not wash its hands of responsibility for administering leaves for employees simply by relying on a third-party administrator. Other points emphasized in the guidance include:

• An employer (which would include its third-party administrator) with an employee on leave with a fixed return date may not ask the employee to provide periodic updates, although it may reach out to an employee on an extended leave to check on the employee’s progress. • Employers that use form letters or third-party administrators to communicate with employees who are nearing the end of a leave should advise that if the employee needs additional unpaid leave as a reasonable accommodation for a disability, the employee should seek it as soon as possible so that the employer may then consider it. • Employers that handle leave requests separately from requests for reasonable accommodations should ensure that the lines of communication between the responsible entities or departments are open to ensure consistency and compliance with the duty to engage in the interactive process. On November 21, 2016, the EEOC also issued enforcement guidance addressing national origin discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). The EEOC last comprehensively addressed national origin discrimination in 2002, and the revised guidance addresses important issues and significant legal developments that have occurred since that time, such as whether it is lawful to consider language issues in the workplace. The guidance acknowledges that employers may have legitimate business reasons for making language-based employment decisions, but it is important to ensure that these decisions do not violate Title VII. For example, according to the EEOC, an employer may not base an employment decision on an accent unless the ability to communicate in spoken English is required to perform job duties effectively and the individual’s accent materially interferes with that job performance. In addition, while a language-restrictive policy may violate Title VII if it is applied at all times in the workplace, such a policy may be lawful in limited circumstances when needed to promote safe and efficient job performance or safe and efficient business operations. In light of this guidance, employers may want to scrutinize their leave and reasonable accommodation processes and polices, as well as any language restrictive policies, with these guidance points in mind.

Whitney Ferrer, Shareholder Littler’s Atlanta Office WFerrer@littler.com www.littler.com www.HRProfessionalsMagazine.com

5 KEY TRENDS

in hiring technology that will affect you in 2017 By BILLY J. SPRAGUE

Remember when you just placed a want ad in the newspaper?

Clunky mobile processes will miss this pool of candidates.

Seasoned HR professionals have experienced a myriad of changes in hiring over the last decade, and new HR pros probably wouldn’t even recognize how we did it “back in the day.”

Mobile recruiting will be amplified in 2017, and companies who are not optimized will be invisible to the best-quality job candidates, especially Millennials. Executing a robust mobile application experience sets the stage for connecting with a new set of job seekers, and expanding a positive candidate experience.

The changes keep coming in 2017! High tech ways of doing things are seeping quickly into recruiting and hiring processes, and with good reason. Saving time and money, while reaching a larger audience of more qualified applicants is a tall order, and certain technological advances deliver for businesses of all sizes. Technology has hit hiring and recruiting full force, and there are significant additions that make hiring more streamlined and productive than ever before. Here are five key trends in hiring technology that will affect you in 2017.

1 Applicant Tracking Systems (ATS). As HR professionals and hiring managers are responsible for more and more tasks and initiatives, it pays to be as productive as possible. ATS allows for this. An ATS is a way to manage the entire hiring process in one platform. Think of it as a recruiting command center. From placing the open positions on multiple job boards, to filing resumes by keywords, to keeping up with candidates through the process, to background screening, an ATS helps decrease administration time, cost per candidate, and increases internal and external communication, and the quality of new hires. Large companies may have implemented ATS systems years ago, and 2017 will herald in medium and small sized companies seeing and reaping benefits from a single go-to place for recruiting, hiring, and onboarding.

mobile becomes 2 Eambracing necessity. Ignore mobile possibilities at your peril. Less than a handful of years ago, most websites were not mobile capable. Today, mobile-enabled is a given. Hiring is getting in on this game, too. A recent survey reported 59% of the applicants surveyed looked for a job via a mobile device, and 52% applied on their mobile device. 16

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Social Media 3 Einmploying recruiting gains traction. The job market is expected to become more attractive to employees in 2017, so it’s integral for businesses to connect with these job seekers. Businesses can forge relationships through social media. Powerfully engaging profiles, job listings via social channels, and the exponential reach of sharing and re-posting all serve to reach more candidates than job advertisements of old. A key benefit of using social media as a recruitment tool is that companies can reach both active and passive candidates. High performing A-players may not be diligently looking for a new position, but may be tempted by your job description or company culture displayed on social media channels. Networking with job seekers through social media channels provides the dual benefit of gaining access to a greater number of highly qualified applicants, as well as increases the likelihood of securing an employee who fits with company culture. In addition, recruiting with social media is usually less expensive than paid job postings.

4 Video interviewing. With many company employees being far flung in other states or countries, HR professionals and hiring managers must find unique ways to hire remote workers. While phone interviews are standard, video interviewing is an up and coming trend that adds an exciting element to the interviewing process. In addition to Skype, there are video interviewing companies that offer employers a way to easily handle the first round of interviews. Simply place a link within the job application, set up some pre-recorded questions, which the applicants answer when they send in their resumes. Hiring managers can watch these videos, along with the resumes, at their convenience. Video interviewing offers a couple of key benefits. First, it allows employers to gain more

insight into a person than a resume does by itself. Second, it elevates the candidate experience, showing them that the company they are applying to is up-to-date on modern processes and procedures, and not stuck in the old way of doing things. It’s a win-win.

dapting to using huge 5 Aamounts digital data. A current key trend is digital, or “big” data. Data is valuable in helping HR pros decide who is a good fit and who falls short, and can be the guiding force in making the best hiring decision. However, the amount of data available is overwhelming. Without proper vetting, issues also arise with the accuracy of data about a job candidate. Employers who use data proactively are more likely to find candidates who are well-qualified, and who fit with the company culture. Along with the benefits, businesses must take measures to receive the most comprehensive, accurate data available. Accomplish this with successful vendor management. Consistently ask your data providers about the steps they take to ensure their information’s accuracy. Ask them to explain the way they mine the data, and the procedures they employ to ensure the data is error-free. As the amount of data will only grow in 2017 and beyond, smart companies will begin adding best data practices in dealing with using data in recruiting and hiring. Technology has changed the way companies function, and will continue to evolve the business world. Recruiting and hiring are not immune to the changes, and have benefitted from technological advances. Current technology trends have empowered HR pros to manage the entire hiring process in one central location, be privy to ways to reach a broader audience, build a stronger company culture message, and gain greater access to information about the candidate. Companies of all sizes need to seriously consider these five trends to advance their recruiting and hiring processes. Dive into the technology trends of today, and benefit from them in the form of new, wellqualified hires.

Billy J. Sprague National Account Executive Data Facts, Inc. bsprague@datafacts.com www.datafacts.com

Dear all, We invite you to learn more about our Firm’s legal and claims management expertise in

Tennessee Workers’ Compensation Law and Practice The Tennessee workers' compensation lawyers of Wimberly Lawson Wright Daves & Jones, PLLC, advise our business clients how to defend against their workers' compensation claims. Our attorneys always remain abreast of the latest developments in Tennessee's workers' compensation law, allowing the firm to provide our clients with sound legal advice. At Wimberly Lawson, our Tennessee workers' compensation lawyers work exclusively with employers and Human Resources managers to develop creative solutions to their workers' compensation related issues, such as: ● Cost Reduction Programs ● Work Comp Supervisory Training ● Litigation Defense

● Retaliatory Discharge ● Subrogation ● Mediation

The Firm also authors the Tennessee Workers’ Compensation Handbook, 8th Edition, published by M. Lee Smith, which is the essential desk reference for Tennessee attorneys and workers’ compensation claims professionals. Wimberly Lawson Wright Daves & Jones, PLLC, is the exclusive Tennessee member of the NATIONAL WORKERS’ COMPENSATION DEFENSE NETWORK, a nationwide network of AV-rated law firms providing employers and insurers with access to the highest quality representation, education, expertise, counsel and advice in workers’ compensation and related employer liability fields.

The Tennessee workers' compensation lawyers of Wimberly Lawson understand the challenges an employer faces in a workers' compensation claim. Our attorneys provide aggressive representation, and our reputation for integrity, coupled with our concern for your bottom line, ensures your best interests will be protected. Respectfully,

Fredrick R. Baker Fredrick R. Baker Member Knoxville 865-546-1000

Cookeville Nashville 931-372-9123 615-727-1000 www.wimberlylawson.com

Morristown 423-587-6870

Managing Electronic Evidence in the Workplace

The Arrival of the

Digital Age By ZACHARY W. HOYT

xperts have been predicting the age of the paperless workplace for so long that most of us have likely tuned out the various proclamations and hype. But after decades of prognostication, our digital future has slowly begun to arrive. Many offices are now working primarily through digital means and only producing a paper trail out of tradition. As we have transitioned to a world of smartphones and tablets, our digital footprints have expanded exponentially as we are always connected. According to a study by the International Data Corporation, the amount of data produced in the digital universe is set to grow ten-fold: from roughly 4.4 trillion GB of data in 2013, to 44 trillion GB of data in 2020. This increase greatly expands the amount of material that is potentially discoverable in litigation. This article will help you identify steps you can take to begin to manage this data so that you will be ready to deal with the potential issues as they arise. STARTING AT THE BEGINNING – HR DOCUMENT STORAGE The general topic of E-Discovery in the workplace is massive and can be overwhelming. Working through all of these issues will likely involve a multi-disciplinary approach with input from many different departments. But as an HR professional, the easiest place to begin is in your own backyard: properly managing HR records and personnel files. It is a given in this day and age that most companies store their personnel files digitally. The question you should ask yourself is: how should that information be organized? To ease discovery issues, especially in larger organizations, all HR records and employee data should be stored in a manner that is easy to search and organize for litigation purposes. To prepare for employment litigation, the best practice is to store files in a database that can be filtered into lists of potential comparators. Remember, a comparator is someone that is similarly situated in all relevant aspects. That means that not only should you be able to sort files based on protected characteristics such as race, gender, and age, but also by details such as job title, hiring date, and supervisor. Storing this information will make narrowing down the list of comparator employees significantly easier and save time, effort, and money during litigation. In addition to learning what to track, it is also beneficial to establish and implement records management practices that dictate how such information is stored. Such practices should include: procedures for the labeling of electronically maintained or retained records; providing a secure storage environment, creating back-up electronic copies, and selecting an off-site storage location; observing a quality assurance program that incorporates regular evaluations of the electronic recordkeeping system, including periodic checks of electronically maintained records and retaining paper copies of any records that cannot be clearly, accurately, or completely transferred to an electronic recordkeeping system. MANAGING INTERNAL INVESTIGATIONS DIGITALLY Whenever you need to conduct an internal investigation, the best practice is to document that investigation as thoroughly as possible. To the greatest extent possible, documentation should be completed during or immediately following the events that triggered the need to document. Further, additional applicable information should be documented as it becomes available. Immediate documentation adds legal credibility and increases accuracy as the events are fresh in one’s mind. An example of this may be when an employer learns of inappropriate behavior of an employee. Communications pertaining to that behavior should be documented and saved, and employers should take care to log each communication pertaining to the inappropriate behavior. 18

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Figuring out exactly what to log can be challenging considering the broad scope of available material. The best practice is to log everything utilized in an investigation. This includes notes from interviews, copies of digital communications such as e-mail or instant messenger logs, and any documents referred to in the investigation. Not only will this ensure thorough, accurate investigations, it will provide a credible document trail and save time on later discovery issues if the problem escalates into litigation. As mentioned earlier, storing all of this information poses its own potential problems in a digital environment. This is doubly so when handling data regarding sensitive investigations. Human Resources professionals often must utilize and store confidential information in their investigations and their general record keeping tasks. It is extremely important that you have a storage policy in place that limits access to this information to the appropriate insiders, in the same way that paper files were kept confidential in the past. The ease of sharing digital communication can be a double edged sword, and it is critical that HR departments have proper protocols in place to protect employees’ privacy. One way employers can limit the risks of confidential information being improperly shared is to limit the amount of unnecessary personal information that is stored. Many documents stored by HR contain sensitive information such as Social Security numbers, healthcare and benefits data, and bank account and other financial information. This information is often irrelevant to internal investigations, and it is advisable to redact sensitive personal information from employee records when storing them in investigation files. MOVING FORWARD The continued growth of e-discovery and digital documents in general will make having proper document management practices critical. One of the best ways to manage the potentially high cost of e-discovery is to get ahead of things by proactively having proper policies and practices in place. Following the practices outlined in this article will help you get on the right track, but know that this should only be the initial process. Once your house is in order in the HR department, use the lessons you have learned to push for a more holistic, company-wide approach to digital evidence so that when issues arise, you’ll be ready.

Zachary W. Hoyt Ogletree Deakins Memphis zachary.hoyt@ogletree.com www.ogletreedeakins.com

GOOGLE v. GOVERNMENT:

“Don’t Be Evil” Meets “Give Us Your Employee Data”

By GARY PEEPLES

The Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) recently filed an administrative complaint against Google, Inc. (“Google”). That complaint, which is covered in detail below, was triggered by Google’s alleged refusal to provide granular employee compensation data to the OFCCP during the course of a compliance audit.

Google, like many Silicon Valley companies, has struggled to recruit and retain women and minority employees in the percentages in which those groups are represented in the United States’ overall labor force. According to recent Census data, women comprise approximately 47% of the national workforce and African-American persons comprise roughly 11%. Women comprise approximately 30% of Google’s global workforce and African-American persons comprise only 2% of the company’s United States-based workforce (global totals for Google broken down by race are not publicly available). Although Silicon Valley’s employee culture has been criticized as male-centric, Google cannot be blamed for all of the underlying causes. One example is that, according to recent Census data, only 14% of engineers in the United States are women. Federal contractors and subcontractors (Google is one of them), however, are subject to Executive Order 11246. That executive order requires covered employers to, among other things, take certain affirmative actions to ensure that equal opportunity is provided to all employees and permit the OFCCP to inspect and copy any and all records pertaining to equal employment opportunity and affirmative action plans. Executive Order 11246 and its concomitant data retention and production requirements have led to the current dispute between Google and the OFCCP.

A. Factual Background Google is one of the world’s most valuable corporations; its market capitalization as of January 8, 2017 is over $565 billion dollars. The company’s search engine has over 2.2 billion users worldwide. By contrast, Google’s contracts with the federal government are small potatoes. As relevant here, the federal government in June 2014 awarded a $600,000 advertising/marketing-related contract to Google. That contract, although insignificant when compared to Google’s other operations, carried with it all of the obligations imposed by Executive Order 11246. Subsequently, in September 2015, the OFCCP selected Google for a compliance audit. The OFCCP has conducted more aggressive audits in recent years, and this audit appears to be no exception. Over the course of the audit, the OFCCP’s investigators requested a significant amount of detailed compensation data from Google, including: (1) a compensation snapshot as of September 1, 2014; (2) job history and salary history for employees contained within a September 1, 2015 compensation snapshot, which included starting salary, starting position, starting “compa-ratio” (a measure of an individual employee’s compensation against an industry average), starting job code, starting job family, starting job level, starting organization, along with any changes to any of the foregoing; and (3) the names and contact information for all employees contained within the September 1, 2014 and September 1, 2015 compensation snapshots. All of this information, according to the OFCCP, is crucial in determining whether Google has fulfilled its equal pay obligations under federal law.

The OFCCP then engaged in various informal efforts to secure the employee compensation information that it had demanded. Those efforts proved unsuccessful, and the OFCCP in September 2016 issued a Notice to Show Cause. That notice was a signal to Google that, if it did not comply within 30 days, the OFCCP would turn to formal enforcement proceedings. Google did not comply within the pertinent time period. Next, the Department of Labor’s Office of the Solicitor (the enforcement arm of the OFCCP) on December 29, 2016 filed an administrative complaint against Google. That complaint asks an administrative law judge to order Google to (1) begin complying with all of the terms of Executive Order 11246; (2) produce all of the above-referenced compensation data to the OFCCP; and (3) permit the OFCCP to complete its compliance audit. Google has not yet formally responded to the administrative complaint.

C. What’s Next? It is difficult to imagine that Google will resist the OFCCP’s demands indefinitely. For one thing, now that the dispute is before an administrative law judge, there will eventually be a formal hearing, and the administrative law judge will then issue his or her recommended decision. Either side may appeal that decision to the Administrative Review Board. And Google has the right to appeal the Administrative Review Board’s decision to a federal court. But it is unlikely that the case will get that far. Other corporations (for example, Bank of America) have mounted challenges to the OFCCP’s audit authority in the past, and those challenges were generally unsuccessful. The federal government, moreover, holds a trump card: debarment. Debarment—which is a remedy that is available only after a hearing— means that an employer is ineligible to receive any future federal contracts. Again, although Google’s federal contracts make up but a small part of its revenue, Google likely does not want to incur any further negative publicity with respect to its (1) hiring and retention practices or (2) its compensation practices. Google may dominate the search engine market, but the federal government is uniquely positioned to take on Google in administrative proceedings and, if necessary, in federal court.

B. Complaint Against Google The OFCCP alleges that Google denied the agency access to the above-described compensation information. In particular, on June 17, 2016, Google notified the OFCCP that it would not produce the information sought by the agency because the requests were overly broad and because the requests implicated confidential information. Google also says that it has already produced “hundreds of thousands of records” during the course of the audit (the audit has now lasted almost a year-and-a-half ). 20

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Gary Peeples, Associate Burch Porter Johnson gpeeples@bpjlaw.com www.bpjlaw.com

SAVE THE DATE April 18-21, 2017 2017 TPMA Conference - Chattanooga, Tennessee On the Lookout for the Future of HR: Keeping the Public Sector HR Profession on Track

Conference Tracks

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Repeal and Replace: The Fate of the ACA By JENNIFER S. KIESEWETTER

January 13, 2017, the U.S. House of Representatives (“House”) took fate in its hands and set the repeal of the Affordable Care Act (“ACA”) in motion. With a party line vote of 227 to 198, the House approved a budget resolution allowing Congress to repeal certain key provisions of the ACA without filibuster from the Democrats. This

same resolution passed the Senate on January 12, 2017, with a 51-48 vote, also along party lines. The now-passed budget “blueprint” instructs both the Senate and the House to draft repeal legislation by January 27, 2017. Two committees in each the Senate and the House are charged with drafting the repealing legislation. This legislation, like the budget resolution, is also immune to filibuster and may be passed with a simple majority in both the Senate and the House.

Without meaningful replacement, approximately 22.5 million people will likely lose insurance coverage due to the repeal of the insurance marketplaces’ subsidies. 22

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So what does this mean? Is the ACA still law? The budget resolution that has been passed by Congress does not in and of itself repeal the ACA. So, as of now, the ACA is still the law. However, the passage of the budget resolution is an enabling first step that needed to occur to walk the repeal through the legislative process. However, because the Republicans are utilizing the budget resolution process for repeal, the entire ACA cannot be repealed. Major provisions of the law can be repealed, though, including, provisions with respect to the insurance marketplaces, Medicaid-expansion provisions, and the employer and individual mandates, among others.

Insurance Marketplaces Without meaningful replacement, approximately 22.5 million people will likely lose insurance coverage due to the repeal of the insurance marketplaces’ subsidies. The repeal will eliminate any subsidies being provided for lower income Americans to help offset premiums and other costsharing measures. With fewer people able to secure coverage under the marketplaces without financial assistance, the marketplaces will become unstable, with only the sickest individuals retaining coverage, thus further increasing costs. The Republicans have proposed different types of subsidies as replacement, some of which have been proposed as a flat tax credit based on age of the individual as opposed to income. Another proposal would give all Americans a standard tax deduction for the purchase of health insurance. The impact of these proposed subsidies on the marketplaces, as currently designed, is unknown.

Medicaid As of January 1, 2017, thirty-two (32) states, including the District of Columbia, have expanded Medicaid under the ACA. The Republican legislation is expected to eliminate the federal funding provisions for such expansion. As a result, approximately 12.9 million people would lose Medicaid coverage, according to the Urban Institute. With respect to replacement, the Republicans have proposed giving the states more control over their Medicaid programs. Like the marketplaces subsidies, the impact of the withdrawal of federal funding is not yet known on full loss of coverage.

Employer and Individual Mandates The proposed Republican legislation is expected to eliminate both the employer and individual mandates, where larger employers are required to offer qualified health insurance coverage to their full-time employees and individuals are required to obtain minimum essential coverage, or both employers and individuals could face tax penalties. The Republicans have proposed allowing insurers to charge individuals more when they have a break in coverage, thus encouraging individuals to maintain continuous coverage. Additionally, Republicans have proposed the establishment of high-risk pools, which would help subsidize insurance for those with chronic health conditions. However, at this point, until more guidance is offered on replacement legislation, the rippling impact of the elimination of the mandates is unknown.

Additionally, not only is the content of the new legislation unclear, the timing of the replacement is unclear as well. Disagreement currently exists as to the replacement legislation as well as the timing of the replacement, which could directly impact the repeal of the ACA itself. From the Republican camp, Congressmen have stated that repeal and replacement could occur two (2) to four (4) years from now. The next few months will be legislatively instrumental in providing guidance as to content and timing. For now, the ACA is still the law. Further, it is unclear how much longer the ACA, in its present form, will remain the law. Since most employer-provided plans and the marketplaces have just started their new plan years, the earliest we could start seeing changes implemented to the current health care law would occur for plan years and tax years beginning in 2018. However, we are now to the point where the fates have released their grip on the future of health care. The control now initially lies with Congress, which has the daunting task of seeing through the repeal process, but more daunting, working through the replacement process. This is a process to which we must all pay careful attention, as the largest national reform to the health care system since Medicare in 1965 is about to go through another historical overhaul.

From the Republican camp, Congressmen have stated that repeal and

Consumer Protections For the approximately 150 million people covered under employersponsored plans, many may lose certain consumer protections they currently enjoy under their plans under proposed legislation. Although these provisions are immune from change under the current budget resolution process, these provisions could be impacted by other forthcoming legislation.

replacement could occur two (2) to four (4) years from now.

For example, President-Elect Donald Trump has stated that he plans on keeping the ban on pre-existing conditions and coverage for young adults to age twenty-six (26). However, Senate Republicans have recently voted against legislation that would preserve these provisions, thus making such provisions vulnerable. Other vulnerable coverage protections are mental health, treatment and addiction prevention programs, and birth control.

When Can We Expect Replacement? Replacement legislation does not have as clear of a path as repeal. Unlike the repeal path, any replacement legislation will require a â&#x20AC;&#x153;super-majority,â&#x20AC;? not just a simple majority, meaning, for example, in the Senate, sixty (60) votes will be required for passage. Thus, the Republicans must get cooperation from Democrats to gain the required support for a replacement bill.

Jennifer S. Kiesewetter, Esq. Kiesewetter Law Firm, PLLC jkiesewetter@kiesewetterfirm.com www.kiesewetterfirm.com

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Is It Time to Review Your HIPAA Privacy and Security Compliance Strategy? By STACEY STEWART

Any seasoned benefits professional knows and loves the acronym HIPAA, am I right? It refers, of course, to that multi-faceted law that can make heads spin with its complexity and of which each of us has wondered, at least once in our career, “Does it have two As or two Ps?” (come on, be honest!). Some parts of the law are relatively straightforward, but the privacy and security rules can present a real challenge to apply and many employers still struggle to understand how these rules impact their employee benefit plans. How confident are you that your plans comply with the HIPAA privacy and security rules? Are you clear on which plans these rules apply to and whether you or a vendor is responsible for the applicable compliance responsibilities? Now is an important time to get it straight and shore up any inadequacies in compliance, as the United States Department of Health & Human Services (HHS) has begun actively auditing plans. Let’s start with who the HIPAA privacy and security rules cover. These rules apply to “covered entities,” which generally include health plans (our focus in this article), certain health care providers and health care clearinghouses. Business associates who perform functions for or on behalf of covered entities also must comply if they can access protected health information (PHI). You will notice one conspicuous absence from the list of covered entities – employers. However, while not a covered entity, the rules affect employers since they are generally the plan sponsor and frequently also the plan administrator of their health plans, even if a third party assists with claims administration. In the end, it is often the employer who is ultimately responsible for ensuring full compliance and who suffers sanctions relating to HIPAA violations by its health plan(s). HIPAA privacy and security rules apply to plans beyond what is traditionally considered a health plan. In fact, the rules define the term “health plan” broadly to include most employersponsored plans that provide or pay for medical care. This means the definition covers not just major medical, dental and vision, but also health FSAs, HRAs… and even many wellness plans and EAPs! Hence, when assessing HIPAA compliance, an important first step many employers miss is to determine which plans must comply so as to tailor the approach accordingly. Why tailor your approach? It is necessary because the extent of your HIPAA compliance obligations depends on the type of plans you have (e.g., an ERISA plan with fiduciary responsibilities). Of particular importance is how you fund and administer each plan - do you fully insure or self fund, administer in-house or contract with a third party? These factors impact the potential ability and/or need to touch PHI, the protection of which is the overall motivation behind the HIPAA privacy and security rules. If HIPAA applies to your plan(s), what does it require? Let’s start with the privacy rule. To take a 1000 foot view, this rule provides standards for the use and disclosure of PHI and conveys rights to individuals with respect to their PHI. It also requires covered entities to put administrative safeguards and procedures in place to protect PHI including some very specific requirements, such as designating a privacy officer, providing a privacy notice, training employees, developing a complaint process and establishing sanctions for privacy violations. Moving on to the HIPAA security rule, it applies to PHI electronically maintained or transmitted (ePHI). It requires the plan protect the confidentiality, integrity, and availability of 24

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any ePHI that it may touch and guard against anticipated threats to, and unauthorized uses or disclosures of, ePHI. To this end, the rules outline standards to guide plans in meeting their obligations, but allow flexibility to select among a variety of security measures to achieve compliance. Generally, the first and most important step is to conduct a risk analysis to identify potential security risks and necessary safeguards. Many employers mistakenly believe that they need not worry about HIPAA privacy and security since their major medical plan is fully-insured. While insurers must handle certain privacy rule-related requirements for fully-insured health plans (such as the privacy notice), compliance responsibilities generally depend on whether the employer takes a “hands-off” approach - meaning it receives only certain limited health information without participant authorization. But, could an ERISA-covered plan sponsor ever be completely hands-off and satisfy its fiduciary responsibilities under ERISA? And what about other plans beyond major medical, such as a health FSA? Further, all health plans are subject to the security rule, regardless of funding status. Yes, this includes fully-insured plans! Very limited obligations may exist if ePHI is beyond reach, but it is unwise to assume no action is needed based merely on a plan’s funding status. Another widely-held misconception is that the plan’s insurer, third-party administrator or other vendor automatically handles HIPAA compliance. These parties may handle certain compliance obligations if the law so requires, such as the privacy rule requirements placed on the insurer of a fully-insured health plan, but it is doubtful they would take on additional responsibilities absent a contractual obligation to do so. Plus, certain actions, for example, designating privacy and security officers and conducting a security risk analysis, may require input from the plan sponsor and administrator. Now that 2017 is off and rolling, perhaps it is a good time to review your HIPAA privacy and security compliance strategy. Keep in mind that compliance obligations vary over time based on your plan design choices and offerings, changes in how you/ who administer plans, the extent to which you (or other parties) may access PHI and even on things like business acquisitions and office relocations. Consider conducting an internal audit to assess compliance – better to ask questions now rather than with the weight of an audit or participant complaint on your mind!

Stacey L. Stewart, JD Sr. Advisor, Client Resource Team Regions Insurance, Inc. stacey.stewart@regions.com www.regionsinsurance.com

Do employee benefit laws remind you of alphabet soup? Regions Insurance is here to provide meaningful solutions that best support your organization’s goals. Our employee benefit advisors and law-trained professionals can help develop the right plan of action and break down all the confusing laws and regulatory acronyms so you’re not left staring at a bowl of alphabet soup.

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

The Coverage You Need. The Guidance You Trust.

Find Regions Insurance offices in Alabama, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, South Carolina, Tennessee and Texas ©2016 Regions. Regions Insurance is an affiliate of Regions Bank. Products and services are offered by Regions Insurance, Inc., and underwritten by unaffiliated insurance companies.

Building a Healthier Work Force: Rethinking the Way We Provide Access and Pay for Care By KERSTIN NEMEC and TIM NORWOOD

Historically, the majority of employees get their health insurance through their employer. Employer funded health insurance began after the Great Depression as a way to attract good employees. By the 1950’s, about half of Americans were covered; today employer provided health insurance is considered a cornerstone of working American’s overall compensation. Employees still believe a good employer provides insurance, takes care of its workers, and provides benefit options that aren’t available anywhere else. It’s the great American way, after all. But what happens when the price of company health insurance becomes more than the employee can afford? Employee premiums for a family plan now averages $5,000 annually, and combined with out of pocket costs for deductibles and co-pays, the overall costs can be staggering.

Employee premiums for a family plan now averages $5,000 annually, and combined with out of pocket costs for deductibles and co-pays, the overall costs can be staggering.

As the new Administration comes into office, there are anticipated, but unknown, changes expected in healthcare reform. Numerous surveys have shown that working class employees continue to be anxious about rising premiums, deductibles, co-pays, and drug costs. Many are confused over their hopelessly complex coverage options, and frustrated by bills for services they thought were covered. The biggest fear of all is the worry that they may not be able to afford coverage in the future. With both employers and employees re-evaluating the traditional employer sponsored health insurance plan, what is a pragmatic solution to ease the burden of insurance and healthcare costs? Currently, working Americans access health insurance primarily through two avenues: 1) employer provided plans (56%), and 2) State Health Insurance Plans - Medicaid (21%). Both options can provide good robust coverage. The primary difference is cost, with employer provided plans requiring a significant premium payment, while State Health Insurance Plans are generally free or very low cost. The need for health insurance innovation is now. Employers, especially companies with a high proportion of hourly wage employees, are aware that many employees cannot afford the health

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insurance, and have started building unique benefit platforms to introduce employees to the option of State Sponsored Health Care such as Medicaid. In 32 states and the District of Columbia, Medicaid has been expanded to include working adults between the ages of 19-64, with incomes below 138% of the federal poverty level (around $33,000 in most states for a family of 4). A recent Kaiser survey found that employees are increasingly aware that State Health Insurance (Medicaid) is a better deal than their current insurance, and are open to exploring opportunities to obtain State coverage. In the past, learning about and applying for State Health coverage fell out of the domain of employer provided coverage. It was the sole responsibility of the employee to go down to the State Agency to pursue this coverage â&#x20AC;&#x201C; which meant a day off of work, and often a very confusing, difficult experience. Now employers are creating unique benefit platforms and enrollment services that can guide the employee to learn more about their choices, so they can find the information they need to select the right plan. For many employees, eligibility for the State Plan is the best

A recent Kaiser survey found that employees are increasingly aware that State Health Insurance (Medicaid) is a better deal than their current insurance, and are open to exploring opportunities to obtain State coverage.

option, but one they may not be aware is available to them, or has been too complex to negotiate in the past. Benefit platforms that give employees the tools to easily and quickly shop for healthcare coverages are changing the HR landscape for employers and employees. In a matter of minutes, employees can be directed to the options available to them. Medicaid expansion and platforms designed to

Kerstin Nemec President Med-Enroll, Inc.

put employees in the driverâ&#x20AC;&#x2122;s seat, help employees save on their healthcare costs. The combination of increasing awareness, simplifying enrollment, and assisting employees in learning about their most affordable healthcare options will directly benefit lower income employees. Employers who help their employees also help themselves by reducing the number of employees on their plan, and ultimately lowering company benefit costs.

Tim Norwood Executive Vice President Med-Enroll, Inc.

Diversity makes us stronger. At Littler, diversity is not an option. How can we advise you on employment issues unless our workforce reflects yours? Diverse points of view, diverse backgrounds and diverse values make us all stronger.

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Innovate or Die. 3 Things HR can do to Create Best Places to Work

By MARY ILA WARD

Innovation is a buzzword in business now. In a fast-paced world where change is constant and adapting is necessary in order to survive in business, innovation seems to be what all people want to point to that keeps companies alive. “Innovate or die” we hear. But is it worth all the hype? In today’s business world, value must created in order to be and remain competitive. Innovation is the process by which value is created; therefore, it is truly necessary. We often speak of innovation in terms of products or services. While very important, people or human resources/capital innovation, can and should take shape in the workplace because of how it can contribute value that translates into dollars and cents. Interestingly enough, many of the most innovative companies are also labeled as best places to work. This is no coincidence. So what can HR do to innovate? In looking at the research, here are three things HR needs to be doing to create an innovative people management environment:

Hire for fit AND diversity Let’s face it, hiring is where your organization starts. It’s where HR starts its job and quickly proves or disproves its value, and it is where those who are winning in business focus a large part of their efforts. Being an innovator in the workplace starts with whether or not you have innovators coming in the door. To get innovators in the door you must: 1. DEFINE. • Clearly define your culture. This most often comes through defining your organization’s values. • Clearly define what your “A” players do - both “A” players across the organization, and in particular roles. 28

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2. DESIGN and MEASURE your hiring process against the standard you’ve created in the first step. Many often tie this standard to fit. As Laszlo Bock, author of Work Rules!, which is about Google’s people practices, says, “Superb hiring isn’t just about recruiting the biggest name, top salesperson, or cleverest engineer. It’s about finding the very best people WHO WILL BE SUCCESSFUL WITHIN THE CONTEXT OF YOUR ORGANIZATION, who will make everyone around them more successful.” (emphasis added). 3. KNOW WHAT WORKS. Look at the research to understand what selection methods predict work performance and employ them in your hiring process. The quick cliff notes version is that work sample tests are the best predictor of job performance, followed by cognitive ability and structured interviews. Employing these, except in the case of cognitive ability, only works if you’ve been able to do step one by defining what these methods should measure. However, a combination of these methods, or a multiple hurdles approach, is better than any single method. So stack them up in your process. 4. GO find the best. Actively go and find the best talent; don’t post and pray. This starts with building your social capital. An HR innovator should spend a significant amount of his or her time networking in order to hire the best. 5. TRAIN people on how to interview. Interviewing is a learned skill that gets better with research grounded guidance and practice. Provide tools, like structured interview formats and the scoring mechanism that goes along with them, but train people on how to use them. Use case studies, examples, and data to back up your points so that hiring managers want to use the tools you are giving them instead of feeling like it is one more hassle to fool with.

6. Use DATA. Track hiring against performance and see what trends arise. Do you need to change your process? Better define your standards? Train a certain department or group on better hiring practices? Constantly improve what you are doing by seeing what your outcomes are and how you can let that inform your inputs. As you will see, this data should also include benchmarking for working to diversify your workforce through hiring.

Production at this plant was found to be twice as high as at another similar plant that was tightly controlled. • Flex-time and work from home as well as telecommuting arrangements are becoming widespread and cater to people’s desire for freedom in how and when work gets done. Most studies show these arrangements increase productivity. • Some companies are going as far as to eliminate setting limits on vacation or paid time off.

What about diversity? But “whoa, whoa, wait a minute,” you say. This sounds all well and good, but what about diversity. Some of the things mentioned above, like cognitive ability tests, often discriminate against anyone that isn’t white and male. Also, there’s a lot of information out there about how hiring for fit limits diversity. Even Harvard Business Review said such, and who argues with them?

Structure Rules to Preserve Freedom and Culture Rules don’t have to contradict the need for a certain amount of freedom that is necessary for innovation to take place. The innovators create rules that ensure freedom and culture are preserved.

But there is a way to do both, and you need to do both, because the combination of the two leads to innovation. You don’t get it without them both.

Ask yourself these two questions when you go about rule making to foster innovation:

Here are some ideas on how to make sure you’re intentional about hiring for diversity:

1. “Can I directly tie this rule back to one of our company’s core values that creates our competitive advantage?”

1. Create collaborative hiring teams. Teams that are made up of different people along different traditional diversity lines (age, gender, race, etc.), but also along departments, tenure with the company, etc. No one person should be able to make a hiring decision alone.

For example, many manufacturers have the core value of safety. Therefore, there are rules that govern working safe. In this case, dress code, such as wearing steel-toed boots and other PPE (personal protective equipment), is a rule and it a non-negotiable one. Dress code in another industry and in another company may not be needed in the rulebook at all. Remember, is it helping you create value?

2. Just like you need to train people on how to interview, you need to talk and train openly on unconscious bias. What it is, how to spot it, and how avoid it. You also need to teach and train on the value of diversity and how the topic can be much deeper than how society plays it. Some things to look at to help you do this are (google each of them): • Microsoft unconscious bias training • Diversity Inc. • Diversityjobs.com • Implicit Association Test (IAT) • Privilege Walk Activity

Create an Environment of Freedom This starts with the mindset that people are fundamentally good and are the source of all innovation. As Bill Gates said, "The competition to hire the best will increase in the years ahead. Companies that give extra flexibility (freedom) to their employees will have the edge in this area." Giving freedom is the way you behaviorally demonstrate to people that you trust them. When people are trusted, they feel free to experiment, fail, learn and grow, which leads to company growth.

2. “Does this rule push authority down, treating people with a sense of freedom over their work?” In the book Work Rules!, Laszlo Bock spends a good portion of the book describing Google’s rules to ensure that dictators can’t arise, or as he describes it, “Letting the inmates run the asylum” by “taking power away from your managers and trusting your people to run things.”

Are You An HR Innovator? As Ben Whitter said in one of his LinkedIn posts, “The best people and HR leaders I know have been labeled maverick at one time or another because they build something that goes against the norm, they challenge the status quo, and they see beyond the perceived limitations of their function and therefore extend well beyond it. They bring meaning to the workplace and it runs through everything that affects people.” Being a workplace innovator requires hiring innovators and structuring a work environment that fosters innovation. When you become one, you end up helping your workplace win “Best Place to Work” awards. Be a maverick and innovate…. or die.

Some ideas for creating freedom that leads to innovation comes from some of the known innovation hubs: • 3M allows its employees to spend 15% of their time to work on their own projects. Other innovators do likewise. Google has used a 20% standard. • Nike experimented with a T-shirt factory in Mexico giving workers in a specific plant more freedom by letting them help set production targets, form their own teams, decide how work should be accomplished, and allowed them to stop production if they thought they saw problems.

Mary Ila Ward, SHRM-SCP, SPHR Horizon Point Consulting miw@horizonpointconsulting.com horizonpointconsulting.com www.HRProfessionalsMagazine.com

THE FIRST 100 DAYS AND BEYOND:

Key Issues for HR in 2017

forms without signing and dating the changes, and preparing new I-9 forms to correct mistakes and backdating them so they appear to be timely. Even if these mistakes are “innocent,” they can lead to stiff fines. Therefore, the better practice would be to engage an outside firm to perform the audit, especially if it is the company’s first audit or if the company suspects there may be issues. Employers can also use an external audit as an opportunity to update I-9 policies and to train compliance employees on proper procedures to prevent future mistakes. While the future of employer regulations may be uncertain, conducting an internal I-9 audit is an easy step employers can take to ensure they are complying with both current immigration law and likely changes by the Trump administration.

By NEEMAH ESMAEILPOUR

onald Trump’s victory in November has generated many questions for employers: How will a tough stance on immigration affect my business? Will workplace scrutiny by the NLRB lessen? Will there be a shift in emphasis on civil rights issues, such as LGBT rights? Will a change in administration from Democratic to Republican create a shift in policy that is more business- and HR-friendly? While we may not be able to answer these questions with any sort of certainty at this point in time, there are a few areas of the law which will undoubtedly be affected by the incoming administration. In this article, we’ll take a look at three areas that HR professionals should watch for movement in the coming year.

Immigration Law Compliance: PREPARING FOR A TRUMP ADMINISTRATION There is one area slated for change in which employers can prepare for now – immigration. While President-elect Trump’s proposal for “an impenetrable wall” along the southern border has garnered the most attention, his other immigration policies likely will have a more direct and immediate impact for employers. As an employer you may be thinking, “Well, I don’t have any foreign workers, so changes in immigration policy won’t affect me, right?” Wrong. Trump has consistently stated that he wants to deter illegal immigration by “turning off the jobs and benefits magnet” that attracts foreign workers. In other words, he wants to crack down on businesses that employ individuals without work authorization. Practically speaking, this likely means more worksite-enforcement visits from Immigrations and Customs Enforcement (ICE) to check whether there are workers employed without work authorization. Such visits commonly occur by ICE agents who arrive unannounced (or with very little notice) seeking to audit the company’s I-9 forms. To accomplish his goal of increased enforcement, Trump has proposed tripling the number of ICE agents. Trump has also suggested that E-Verify should be mandatory for all employers. But keep in mind that E-Verify is separate from Form I-9; it does not replace it. In short, employers need to be prepared for an increase in I-9 audits by a beefed-up ICE agency. During an ICE audit, employers can find themselves in trouble not only if they have unauthorized workers, but (more commonly) because they did not properly prepare or maintain their I-9 forms for each employee. And penalties can be steep – fines generally start around $200 and go up to several thousand dollars per offense. So what should employers do to get ready for a possible audit? Like most things, you need to prepare. Do not wait until ICE is on-site demanding to see all of your I-9 forms. Employers would be wise to conduct an internal I-9 audit to identify and correct potential problems now. If you need another reason to conduct an internal audit, keep in mind that you will be given a safe harbor if ICE discovers an unauthorized worker, but only if you have properly prepared and maintained your I-9 forms. Unfortunately, self-audits can create problems when employers choose to perform the audit themselves and then commit mistakes that lead to further violations. Common mistakes include filling out new I-9s for employees and throwing the old ones away, making revisions to I-9 30

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Protected Concerted Activity Under the National Labor Relations Act: WHERE DO WE STAND? Recently, the National Labor Relations Board (Board) seems to be focusing more on violations of the National Labor Relations Act (Act) involving non-unionized employees. That’s right, non-union employees as well as employees represented by a union are protected by the Act. Under Section 7 of the Act, employees have a right to engage in “concerted activities for the purpose of … mutual aid or protection” or “protected concerted activity.” Protected concerted activity involves two or more employees taking action for their mutual aid or protection regarding terms and conditions of their employment. The Board’s concept of the type of conduct protected by Section 7 is broader than you might expect. For example, an employee at a used car dealership in Yuma, Arizona complained to his manager about how sales commissions were being calculated. Later, the owner asked the employee to come to a meeting in the sales manager’s office. During the meeting, the employee lost his temper and began yelling at the owner calling him a “f##king mother f##ker,” a “f##king crook” and an “a##hole.” He also told the owner he was “stupid” and stood up during the meeting, pushed his chair aside and warned the owner that if he was fired, the owner would “regret it.” The employee was terminated by the owner for his conduct at the meeting. After reviewing the facts, the Board concluded that the employee’s conduct was protected by Section 7 of the Act and it was against the law for the owner to fire him. In a similar case, an employee of a catering company became upset because he thought a supervisor had been disrespectful of his co-workers. The employee posted on Facebook that the supervisor was “a nasty mother f##ker,” a “loser,” and said “f##k his mother and his entire f##king family.” When the posting was brought to the attention of the employer, the employee was fired. The Board found that the employee’s Facebook posting was not so egregious as to lose protection under Section 7 of the Act. The

Board ordered the employer to reinstate the employee and pay him full back pay. The moral of these stories is that employers must be very careful about how they deal with situations that could involve an employee engaged in protected concerted activity under the National Labor Relations Act. However, there is some hope amongst employers that relief from what some would consider overreaching decisions by a Board controlled by President Obama’s appointees may be on its way. Currently, the five-member National Labor Relations Board consists of only three members: two Democrats and one Republican. The two vacant seats will be filled by President-elect Trump, giving Republicans majority control of the Board.

LGBT Rights in the Workplace: WHAT’S NEXT? In the summer of 2015, the United States Supreme Court issued a landmark decision affecting the LGBT community when the court ruled that same-sex couples have a constitutional right to marry. While there were no such watershed LGBT decisions in 2016, several legal issues are working their way through state legislatures and the lower courts. For example, in 2016 several federal courts considered whether to overturn years of precedent and adopt the United States Equal Employment Opportunity Commission’s (EEOC) position that Title VII’s prohibition against “discrimination because of sex” includes a prohibition against sexual orientation discrimination. In oral argument held in late November, the judges of the Seventh Circuit seemed inclined to rule that Title VII does cover sexual orientation discrimination. It seems inevitable that this question will ultimately have to be resolved by the Supreme Court.

Many states will likely follow suit. For instance, like Title VII, the Arkansas Civil Rights Act (ARCA) does not list sexual orientation or gender identity as a protected class, but Arkansas courts have looked to Title VII when interpreting the ACRA. If Title VII is ultimately found to prohibit sexual orientation discrimination, we can expect plaintiffs to argue that the ACRA should be interpreted the same way. At the agency level, under the Obama administration, the EEOC has identified sexual orientation and gender identity discrimination as an enforcement priority. Many have questioned whether that enforcement priority will change under the incoming administration. Transgender employees’ restroom access is another area in which legal challenges are working their way through the courts. Thus far in the 2017 legislative session, state legislators in eight states - Alabama, Kentucky, Minnesota, Missouri, South Carolina, Texas, Virginia and Washington - have prefiled or introduced legislation that would restrict access to multiuser restrooms, locker rooms and other sex-segregated facilities on the basis of a definition of sex or gender consistent with sex assigned at birth or “biological sex.” North Carolina’s controversial bathroom access law is the subject of more than one pending lawsuit. Some believe North Carolina’s governor lost his re-election bid at least in part because of the bathroom bill, which many business groups opposed. Similar scrutiny is likely to befall other states that pass similar legislation.

Neemah Esmaeilpour Associate Attorney Wright Lindsey Jennings NEsmaeilpour@wlj.com www.WLJ.com

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2. Use voluntary benefits to expand benefits program choices. Voluntary benefits can enhance and expand your benefits program without additional budget constraints. You can offer a wide variety of individual and group voluntary insurance products from life to disability and supplemental health coverage, and you can fund some of the costs or let employees pay the premiums. Employees can then choose products they need to fill any coverage gaps.

Effective benefits education is essential

Choice and Communication Are Keys to Successful Consumer-Driven Benefits Program

By AUSTIN BAKER

mployers everywhere are feeling the pinch of double-digit health insurance inflation. One trend that’s getting some notice as a possible solution is the consumer-driven benefits approach, which typically couples a high-deductible health plan with a personal health account, such as a health savings account. The thinking behind this approach is that employees may be more careful about managing health care expenses when they’re footing a larger portion of the bill. To successfully implement the consumer-driven benefits approach with your employees, there are two critical factors that must be part of your implementation plan:

• Voluntary benefits choices designed to complement medical plan choices • Effective, multi-channel education sessions with trained benefits professionals

Voluntary benefits bring employees choice With the move toward high-deductible health plans, your role is changing from providing and paying for traditional benefits to providing access to a wide variety of quality benefits — both core and voluntary. This way, you can maintain a competitive benefits package and still provide employees with options to lessen the effects of their increased financial risk for medical expenses: 1. Provide choices in health plans. Many employers are offering a menu of two or more health plans ranging from full coverage plans with higher premiums to highdeductible plans with lower premiums. Employees can then select health coverage that makes sense for their own situation. 32

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With the consumer-driven benefits approach, if you don’t effectively educate employees on their benefits, employees perceive the approach as mere cost-shifting. That’s why effective benefits education is vital. A enrollment and voluntary benefits partner can bring you not only product solutions but also benefits education solutions, such as one-to-one employee sessions that cover core benefits in addition to voluntary benefits. Technology solutions alone will not result in more understanding. The conversation is more personal and taking time to do it right can yield tremendous results. When done well, benefits education can help employees learn about their benefits and learn about the value of what their employer provides. These sessions can be provided in multiple channels ranging from call center, to face-to-face, to web co-browsing private webinar style sessions. In fact, a Harris Interactive poll conducted for Colonial Life showed that 82 percent of workers who rated their employee benefits education highly also rated their employer an excellent or very good place to work. Conversely, only 27 percent of workers who rated their employee benefits education as fair or poor said their employer was an excellent or very good place to work. Find a quality enrollment partners and voluntary benefits provider who can help you successfully implement the consumer-driven benefits approach by bringing manpower, technology, voluntary coverage choices and effective benefits education capabilities. You can benefit through better management of your benefits program

budget, an enhanced benefits program and improved attraction and retention rates for quality employees. Employees can benefit by having a variety of coverage choices to meet their needs and by getting help to understand their benefits and the value of them.

Case Study

Austin Baker

One large public sector entity was working to introduce high deductible health plans for the first time to employees that were accustomed to deductibles of less than $500. A strategy was built, working with their chosen enrollment partner to select a great voluntary benefits provider and a specific set of programs, that would encourage and support employees to choose the higher deducible plans while saving premium dollars and enjoying the comfort of a “soft landing” with separate insurance coverage to make up the gaps. A marketing plan was produced, an enrolment system was configured and built, and an enrollment and communications plan was executed a using call center, face to face and web co-browsing to see more that 5,000 employees. The results were more than 30% of the employees choosing the higher deductible plans with a 96% benefit satisfaction rate. HR learned that many employees needed more choices and more communication to help employees truly adopt their consumer driven approach and the results are a win for both employees and the employer.

ABOUT THE AUTHOR Austin Baker is the President of HRO Partners a Human Resources Consulting and Benefit Administration and Enrollment Firm as well as a Premier District General Agent for Colonial Life, one of the largest insurance and enrollment firms in the Country. A veteran of more than 16 years in the Human Resources Industry insurance and benefits industry, Baker is responsible for managing a multi-faceted Human Resources consulting company that also represents Colonial Life’s products, programs and services focused on companies in the Southeastern United States. HRO Partners is a fast growing provider of Benefit Enrollment Solution that works with many strategic vendor partners such as Colonial Life & Accident Insurance Company who is a market leader in providing financial protection benefits through the workplace, including disability, life, accident, dental, cancer, critical illness and hospital confinement indemnity insurance. The company’s benefit services and education, innovative enrollment technology and personal service support more than 80,000 businesses and organizations, representing more than 3 million of America’s workers and their families. For more information, call Baker at 1-866-822-0123, visit www.hro-partners.com or connect with the company at www.facebook.com/hropartners, http://www.linkedin. com/in/jaustinbaker or http://twitter.com/jaustinbaker

Proven Benefits Enrollment Experts Successfully Enrolled 6,500 Municipal Employees in 30 days

New Benefit Enrollment System Built in 45 Days

95% Enrollment Satisfaction

28% Conversion to New Preferred Health Plan

Direct Cost to Employer or Broker = ZERO

J. Austin Baker III President

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IS YOUR WEBSITE ADA-ACCESSIBLE? Plaintiffs’ Attorneys Are Trolling For Lawsuits In Arkansas By ABTIN MEHDIZADEGAN

ou installed wheelchair ramps in offices; your doorways are at least thirty-two inches wide; you have braille printed on signs; and you have taken all of the steps necessary to provide physical access to your business for disabled employees, clients, or visitors. You believe that your business is fully compliant with the Americans with Disabilities Act’s (ADA) accessibility regulations. But what about your website—is it accessible to individuals with disabilities?

Scores of businesses in the medical, financial, and retail industries have been forced to answer this question in response to demand letters and lawsuits that allege their websites present barriers to access by individuals with disabilities, in violation of the ADA. Specifically, plaintiffs’ firms across the country are crawling the web for unsuspecting businesses with websites that fail to meet standards set forth in the World Wide Web Consortium’s (W3C) Web Content Accessibility Guidelines (WCAG 2.0 AA), because these websites— when used to facilitate access to a company’s goods and services—may violate Title III of the ADA—or so they claim. This Article analyzes the application of Title III of the ADA to websites of public accommodations and discusses the unsettled state of the law.

“PLACES” OF PUBLIC ACCOMMODATION The ADA was enacted in 1990 to provide a clear and comprehensive national mandate for the removal of barriers to employment, transportation, public services, communities, and telecommunications, for individuals with disabilities. Title III of the ADA prohibits discrimination by private entities in places (i.e., physical locations) of public accommodation, to wit: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). The ADA specifically identifies 12 categories of “places of public accommodation,” all of which are physical, real (not virtual) locations: (1) places of lodging; (2) establishments serving food or drink; (3) places of exhibition or entertainment; (4) places of public gathering; (5) grocery stores, shopping centers or other sales or rental establishments; (6) laundromats, dry cleaners, banks, or other service establishments; (7) specified public transportation terminals; (8) places of public display or collection; (9) parks and zoos; (10) schools; (11) day care centers; and (12) places of exercise or recreation. Similarly, the applicable federal regulations define a “place of public 34

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accommodation” as “a facility operated by a private entity whose operations affect commerce and fall within at least one” of 12 specified categories set forth in 42 U.S.C. § 12181(7). 28 C.F.R. § 36.104. A “facility” is defined as “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real and personal property, including the site where the building, property, structure, or equipment is located.” 28 C.F.R. § 36.104. Upon this brick and mortar foundation, courts have expressly recognized that this list provides a “comprehensive” definition of “public accommodation” in a comprehensive and non-illustrative manner. As such, it would seemingly follow that a website does not come within the ambit of Title III’s protection. Unfortunately, the issue is not so simple. In fact, since 2015, at least 240 lawsuits were filed in federal courts across the country testing this very issue. There are two primary theories used to support the position that Title III’s accessibility requirements apply to websites: (1) the website itself is a place of public accommodation; or (2) the website is one of the goods, service, facilities, privileges, advantages, or accommodations of a place of public accommodation that must be accessible. Under the first line of cases, which were the earliest decisions on the matter, courts held that the ADA only applies to physical locations—not websites. Under the second line of cases, courts have attempted to apply the ADA’s brick-and-mortar regulations

to virtual places like websites, by suggesting that websites must be “accessible” if there is a nexus between the website and a physical, concrete place of public accommodation. A few errant decisions have even gone a step farther and have applied the ADA in a manner that would require all commercial websites to be accessible, even if there is no connection to a physical place.

• Do not design content in a way that is known to cause seizures.

For instance, in National Federation of the Blind v. Scribd Inc., 97 F. Supp. 3d 565 (D. Vt. 2015), a disability advocates group sued Scribd Inc., a digital library, alleging that its reading subscription services website and mobile applications were inaccessible to the blind in violation of the ADA. Scribd moved to dismiss, arguing, among other things, that as a website that did not have a brick-and-mortar store, it was not required to comply with the ADA. The U.S. District Court for the District of Vermont held, as a matter of first impression, that websites and mobile applications were places of public accommodation under Title III of the ADA. The Scribd court reasoned that the plain language of 42 U.S.C. § 12187(7) was ambiguous and, in light of the ADA’s purpose—“to end widespread discrimination against disabled individuals”—all commercial websites must comply with the rules and regulations of the ADA.

• Make text content readable and understandable.

WHICH STANDARDS APPLY? Following Scribd, many Human Resources Departments—risk averse by nature—may be asking the next relevant question: what rules and regulations apply to websites under the ADA? Unfortunately, there is no conclusive answer to this question. Recognizing that significant commercial activities were migrating to the Internet, the Department of Justice (DOJ), which enforces Title III of the ADA, has taken the position that websites operated by businesses in the private sector are subject to Title III’s general accessibility requirements. The general mandate to maintain accessible places of accommodation, however, is vague when applied in a virtual, online environment. To clarify that vagueness, DOJ began the rulemaking process to clarify this issue in July 2010. The Agency, however, repeatedly delayed issuing a proposed rule and, most recently, deferred the rulemaking process until 2018. Although the DOJ has not promulgated any regulation that specifically requires private sector businesses to meet certain standards, it has endorsed the WCAG 2.0 guidelines in various amicus briefs and in its position papers. The official WCAG 2.0 guidelines, organized under the following four principles, cover a wide range of recommendations for making content more accessible: 1. PERCEIVABLE – Information and user interface components must be presentable to users in ways they can perceive. • Information and user interface components must be presentable to users in ways they can perceive. • Time-based Media: Provide alternatives for time-based media. • Create content that can be presented in different ways (for example simpler layout) without losing information or structure.

• Provide ways to help users navigate, find content, and determine where they are. 3. UNDERSTANDABLE – Information and the operation of user interface must be understandable. • Make Web pages appear and operate in predictable ways. • Help users avoid and correct mistakes. 4. ROBUST – Content must be robust enough such that it can be interpreted reliably by a wide variety of assistive technologies. Depending on a business’s level of compliance with these four principles, websites are rated as A, AA, and AAA—with AAA being the highest level of accessibility available. Again, however, there is no specific regulation that requires compliance with any level of the WCAG 2.0. Federal contractors, like banks, for example, should note, however, that the Office of Federal Contract Compliance Programs has endorsed WCAG 2.0 in regulatory footnote regarding affirmative action under Section 503 of the Rehabilitation Act. See 41 C.F.R. § 60-741.44, n. 1.

ADOPTING AN ACCESSIBILITY PARADIGM Against this backdrop, and as ADA website accessibility lawsuits gain more popularity within the plaintiffs’ bar, smart risk management principles should guide businesses to weigh the costs of compliance against the potential for liability. Plaintiffs’ attorneys are testing the viability of ADA accessibility claims with impunity and employers need to take steps now to understand what, if anything, they need to do to protect themselves while the legal and regulatory framework develops over the next several years. Specifically, to avoid allowing websites to develop into dormant liabilities, businesses should plan to accomplish some level of accessibility for their websites within the next year. An effective approach to this issue involves engaging legal counsel and seasoned web developers to conduct a privileged accessibility audit. Representatives from IT, HR, and Marketing should be also be a part of the audit team and actively participate in reviewing any audit findings. Various “accessibility” reviewing platforms, such as http://wave.webaim.org, are available for free on the Internet and may be a good place to start. Once errors are identified and corrected, policies should be established to maintain websites in an accessible form. Without question, ADA website accessibility lawsuits, which provide plaintiffs’ attorneys with a steady stream of statutory attorneys’ fees, will continue to rise in popularity. Taking steps now to avoid liability may be the difference in your bottom line for 2017. If you have been contacted by one of the plaintiffs’ firms trolling for these lawsuits, contact experienced counsel immediately to prepare a defense.

• Make it easier for users to see and hear content including separating foreground from background. 2. OPERABLE – User interface components and navigation must be operable. • Make all functionality available from a keyboard. • Provide users enough time to read and use content.

Abtin Mehdizadegan, Associate Cross, Gunter, Witherspoon & Galchus, P.C. abtin@cgwg.com www.cgwg.com www.HRProfessionalsMagazine.com

Obama Administration Issues High-Skilled Worker Immigration Regulation January 17, 2017 By GREG SISKIND

One of the last final rules on immigration released by the Obama Administration was one that came in at 350+ pages and addressed dozens of issues relating to H-1B visas, employment-based green card applications and employment authorization documents. The rule took effect on January 17, 2017. The rule covered the following: 1. H-1B extensions beyond six years when a green card application is pending 2. Allowing certain workers with pending adjustment of status applications to change employers 3. H-1B portability allowing workers to begin employment with a new employer upon the filing of a new H-1B petition 4. Calculating H-1B time against the six year limit when a worker spends time abroad 5. H-1B cap exemption determinations for employers 6. Protections for H-1B whistleblowers 7. Survival of an I-140 petition when an employer attempts to revoke it 8. The establishment of priority dates in green card cases 9. Retention of priority dates when workers change employers or accepts promotions 10. Eligibility for employment authorization for backlogged employment-based green card applicants with “compelling circumstances” 11. Extension of the H-1B’s ten day before and after grace periods to E-1, E-2, E-3, L-1 and TN classifications 12. Creation of new 60-day grace periods for workers who stop working prior to the end of a non-immigrant validity period 13. H-1B licensing requirements 14. Automatic extension of EAD validity for 180 days for certain work card categories

One of the most important is the ending of the 90-day time limit to issue an employment authorization document (EAD). USCIS attempted to soften the pushback on this by creating a new 180-day automatic extension of work cards when a renewal application is filed. But USCIS listed so many exceptions to this rule that a lot of the benefit is lost. And it is useless for those seeking an initial work card. A second major change is allowing workers to continue benefiting from an approved I-140 employment-based immigrant visa application if an employer seeks to have the I-140 revoked AND the I-140 has been approved for more than six months. This will make it a lot easier for workers in green card categories backlogged for years to be able to change employers. A new green card application will need to be filed by the new employer, but the worker will still keep his or her place in the long visa queue. USCIS has created a new 60-day grace period for laid off workers on work visas to remain in status. That’s something that will potentially help workers remain legal in termination situations and provide time to file a new application with a new employer. Unfortunately, the benefit is discretionary and a worker won’t know for sure that he or she is benefiting until after they file an application to change employers. USCIS has added a new requirement that workers who have current priority dates based on an employment-based green card application must file an adjustment of status application within a year to be able to continue extending an H-1B application. The government is expanding the evidence it will examine in cases where a state allows an individual without licensure to fully practice in the occupation under the supervision of licensed senior or supervisory personnel to include “evidence that the petitioner is complying with state requirements.” USCIS is also expanding the language regarding how one can demonstrate that a license may not be issued because of the failure to possess a work status and not for substantive reasons. Many employers will welcome new rules on claiming H-1B cap exemption eligibility. USCIS will now require an employer basing cap exemption on an affiliation with a university or research institution to show that benefiting the university or the research institution is a “fundamental activity” of the employer. In the proposed rule, USCIS was seeking to require the primary purpose of the employer is to benefit the university or research institution. And if a formal affiliation agreement is the basis for the claimed exemption, the entity need not show shared ownership or control. The definition of “governmental research organization” is also being expanded to include state and local governmental research entities. Finally, for workers with approved I-140s pending for at least a year, if the worker can show “compelling circumstances exist, the worker can seek a one year work card. The worker cannot maintain a non-immigrant visa if this benefit is sought and they would have to accept going to a US consulate overseas to get finalize green card processing. The standard appears to be quite high to get the benefit and many believe few will apply.

15. The end of the 90-day adjudication requirement for work cards

Greg Siskind Many of the changes formalized current USCIS policy such as the rules relating to H-1B extensions and adjustment portability. But other policies are very new and noteworthy. 36

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Siskind Susser, PC Immigration Lawyers gsiskind@visalaw.com www.visalaw.com

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CLASH OF THE GENERATIONS:

Managing the New Workplace Reality By WILLIAM CARMICHAEL

Introduction I recently saw a comic that poked fun of our aging workforce and it went something like this. An elderly gentleman with a cane was interviewing for a job when the hiring manager said, “Maybe I shouldn’t ask where you see yourself in five years?” Clearly meant as humor, this scenario actually speaks volumes about where are today with multigenerational workforces now in play. Why are we still surprised when we see not just more Baby Boomers remaining on the job but with much younger co-workers competing for many of the same roles? Let’s face it. Retirement at 65 is no longer the norm. Perhaps we need to rethink this age diversity phenomenon and Clash of the Generations: Managing the New Workplace Reality by Valerie Grubb does a superb job of helping us doing just this.

Why This Is a Must-Read Clash of the Generations: Managing the New Workplace Reality explores this increasingly common workplace phenomenon and provides strategies to help managers navigate this complex maze. Think about it this way. Traditionally, older workers would retire and make room for the next generation; instead, Baby Boomers are now prolonging their time in the workplace, yet the successive generations are still coming in. Therefore, senior leaders are left to manage a blended workplace comprised of up to four generations- each with their own ideas of work ethic, work/life balance, long-term career goals, and much more. I am sure you will agree that management is challenging at the best of times but the new prevalence of generation gaps- sometimes even layered- add an entirely new dimension to an already complex responsibility. 38

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What this book does extremely well is clarify the generations involved today; Baby Boomers (1946-1964), Generation Xers (1965-1980), Millennials (1981-1977), and the newest generation to this mix- Generation Zers (1998-present). To borrow from the author, each generation in the workplace has value; each has their own strengths, their own weaknesses, and their own unique talents. And by identifying what each generation brings to the workplace, the author provides the reader with the needed information to help make sense of it all. In doing so, Grubb specifically addresses the generational characteristics managers need to understand and states, “In order to manage people, you need to understand them. And because generationbased experiences and attitudes greatly influence not only how employees do their own jobs but also how they relate to other employees, anyone who manages a multigenerational workplace should prioritize understanding those experiences and attitudes.” What intrigued me from the onset was the author’s clear and undeniable command of not just generational differences but of the impact these generations have on the workplace. As an example, Grubb draws upon her extensive experiences as a manager herself and on her vast experience as an industry consultant to expand on the changing roles of leadership, managers, HR professionals and employees happening today in every industry. And many of these changes are alarming! To quote the author, “The results of a 2016 CareerBuilder study support the belief that employees have one eye on the door: 76 percent of full-time employed workers are either actively looking for an open to new job opportunities. In an earlier Career-

Builder study, 69 percent of respondents indicated that searching for new opportunities was a part of their regular daily routine, with 30 percent of them actively looking every week.” As a manager myself, these statistics scare me to death! So what ever happened to loyalty you may ask? Certainly career opportunities do present themselves but we as managers and leaders can minimize this tendency to exit if we better understand what makes these generations different and that is what makes this book so valuable.

Structure, Layout, and Content Readers will appreciate the book’s practical structure and flow. Chapter 1, for example, begins with current trends in organizational leadership, management, HR, and employees. Certainly each relates but is not overshadowed by the critical generational definitions the author reviews in Chapter 2. The author’s strategy is wise for by allowing the reader to recognize what is taking place right now within organizations, each generation’s personality and characteristics have new meaning. Eleven short chapters in all, Grubb effectively presents ways any manager can utilize an invaluable new skillset- that of better understanding their age diverse workforce and how to better manage themselves among them. As an example, as a former corporate trainer I was naturally drawn to Chapter 6 and the realities managers face when trying to find out the best way to present material so that the employee can best learn and retain the information. Grubb refers to this task as accommodating different learning styles. True, all individuals do have their own style of learning preference but this is also pertinent to generational differences. Where Gen Zers prefer technology to learn new methods, Baby Boomers clearly may not and managers must be able to quickly distinguish methodologies for both. Clash of the Generations: Managing the New Workplace Reality provides today’s management, insight and clarity into the many generational forces at work. The importance of fostering a culture of inclusion, establishing workable parameters of performance expectations, how best to manage differences in work ethic that exist, and motivating at all generational levels is expertly reviewed. Additionally, Grubb effectively provides case studies on six organizations that successfully manage diverse workforces at all levels. From how they recruit, manage, communicate, promote positive change, as well as establish and maintain culture through generational diversity. Clash of the Generations is also an excellent reference guide for field managers where chapters and topics stand on their own merit and are easily identifiable.

CHAPTER 1 The new workplace reality Chapter 2 Defining the generations Chapter 3 Fostering a culture of inclusion Chapter 4 Setting the stage for great performance Chapter 5 Being an inclusive manager Chapter 6 Promoting growth opportunities Chapter 7 Managing differences in work ethic Chapter 8 Managing different work-life balance expectations Chapter 9 Managing differences in career development planning Chapter 10 Generational give and take Chapter 11 You as the motivating force Exhibits Case studies

Who Will Benefit Most From This Book? Managers, trainers, human resource professionals and organizational leaders.

Valerie M. Grubb is founder of the consulting firm Val Grubb & Associates Ltd. She is an innovative, visionary operations leader with an exceptional ability to zero in on the systems, processes, and human capital issues hampering a company’s success.

William Carmichael, Ed.D Strayer University william.carmichael@strayer.edu www.strayer.edu www.HRProfessionalsMagazine.com

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Stewart Gott National Account Executive Stewart Gott is based in Nashville, TN. He comes to us from the staffing industry, where he spent the past 5 years. He is a graduate of Lipscomb University majoring in Marketing and Management. Stewart is an expert on best practices in the healthcare industry.

Billy Sprague National Account Executive Prior to Data Facts, Billy Sprague was a Sales Consultant helping IT companies accomplish IT training and certification goals all over the world. Billy brought experience in solution-based selling and a capacity to adjust to the ever-changing world of technology to our Data Facts Background Screening Division, based in Tampa FL.

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ADP We help you make more of your most important asset – your people. We know your world has changed. HR isn’t simply about getting things done anymore. You’re expected to help your company thrive, by providing and retaining a better workforce. As one of the world’s largest and most experienced HR providers, ADP offers you recruit-toretire services and solutions that help you build the team that you need to succeed. Everything from basic payroll, benefits and record keeping to complex tools for talent management, compensation, succession planning, and data analytics. You can concentrate on what your business does best, while we focus on what we do best – systems, processes and even ACA compliance. Because thriving businesses succeed with motivated and empowered people.

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Associate District Sales Manager

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Impact of the Use and Abuse of Prescription and Illegal Drugs in the Workplace By BRIGITTE TUBBS-JONES

Despite all of the employment-related issues that Human Resource professionals contend with on a daily basis in the workplace, there is one issue that has become increasingly challenging to address: the rapid rise of substance use and abuse in the workplace. Substance use and abuse in this context refers to both illegal and prescription drugs. In regard to the rise of illegal drugs in the workplace, a recent report sponsored by the U.S. Department of Labor and the Office of National Drug Control Policy states that the United States consumes sixty percent (60%) of the world’s production of illegal drugs and that nearly seventy percent (70%) of current illegal drug users are employed. This means that whether employers want to admit it, it is highly likely that they have employees who are dealing with substance use and abuse in their organization. It is startling to think that nearly one third (1/3) of employees have personal knowledge of the sale of illegal drugs in their workplace. Also, as marijuana, which is one of the most widely used drugs, becomes decriminalized or legalized in many states, employers have seen an increase in its use in the workplace. The prescription drug use and abuse epidemic has significantly impacted the workplace as well due to medical advancements which have provided people with access to better prescription drugs so they can have a better quality of life. The use and abuse of prescription drugs in the workplace, especially opioids and central nervous system depressants, has skyrocketed. Although a risk of an unfavorable reaction or addiction always exists through use of a prescription drug based on the particular individual, when employees are not taking their medications as prescribed, or are taking someone else’s prescriptions, the results can be catastrophic. Medical professionals have now deemed prescription drugs to be just as addictive and potent as drugs such as heroin and cocaine. In recent years, employers have experienced the impact of this rapidlyincreasing challenge on all aspects of their organization, including: workplace safety, employee morale, financial health of the organization, as well as organizational image. Before we cover the impact in each of the mentioned areas, below is a list of some of the typical signs and symptoms than an employee may exhibit when they have a substance abuse problem: • Frequent tardiness or absenteeism • Abrupt changes in mood or attitude • Poor relationships with co-workers • Changes in personal appearance and hygiene • Uncharacteristic errors in judgment • Poor concentration • Repeated or unusual work-related accidents • Unusual temper flare-ups • Frequent complaints of feeling ill • Borrowing money from co-workers on a frequent basis or requesting paycheck advances • Questionable extended lunch or breaks 44

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Impact of Substance Use and Abuse on Workplace Safety The increase in use and abuse of illegal and prescription drugs in the workplace has resulted in an increase in work-related accidents, emergency room visits, workers’ compensation claims, and deaths. According to the Bureau of Labor Statistics, organizations who utilize EAPs (Employee Assistance Programs) have far fewer work-related injuries than those without them. Impact of Substance Use and Abuse on an organization’s financial health According to the ‘Working Partners’ National Conference Proceedings Report, substance abuse wipes out more than $100 billion dollars annually from American businesses due to costs associated with: workers’ compensation claims, medical costs, theft, decreased productivity, absenteeism, and employee turnover. Nearly half of all workers’ compensation claims are able to be traced back to workplace substance abuse. Additionally, employees who are substance abusers typically file up to five (5) times as many claims as those who are not. Multiple claims being filed usually results in additional medical costs for the employer. Replacing employees can also be a great expense, ranging from more than $7,000 for a salaried worker to potentially $40,000 for a senior executive. Drug-Free Workplace Programs may provide organizations with some financial relief. Although the Drug-Free Workplace Act of 1988 only applies to federal contractors, organizations who are federal grantees or individuals who receive a contract or grant from the federal government, many states have implemented Drug- Free Workplace programs as well in an effort to promote worksites where employees can operate in an enhanced competitive position and avoid the expenses that come along with substance abuse. Typically, once an organization submits an application as well as any additional requested information and agrees to abide by the program requirements, they will receive an Implementation Guide along with materials to display in their common areas. Some of the requirements for participation in the program may include: a signed acknowledgment form by every employee stating they have read and understand the policy, an agreement by the employee to comply with drug testing, and awareness by the employee of discipline that may be issued as result of a positive drug test. Many Drug-Free Workplace programs offer financial incentives to employers for their participation, usually in the form of a premium credit on their workers’ compensation insurance policy. Many organizations who participate in such programs have reported that the financial investment they make via education, prevention, and assistance programs pays off by having fewer substance abuse related accidents and therefore, positively impacting their bottom line. Use of EAPs have also been shown to yield financial results. Recent data on the cost-effectiveness of EAPs indicate that a savings to investment ratio may be as high as 15:1. Impact of Substance Use and Abuse on Employee Morale Another result of increased use and abuse of both prescription and illegal drugs in the workplace is a decrease in employee morale. According to recent data, employees who abuse substances in the workplace are 1/3 less productive than other employees. Substance abusers are also 2.5 times more likely to be absent eight (8) or more days a year. Oftentimes, employers are faced with the following actions by substance abusers: habitual tardiness or sleeping on the job, hangover/withdrawal which negatively affects the employee’s job performance, and poor decision making. Over the past few years, the sale of illegal drugs to other employees on the organization’s property has also risen, which has led to a further impact on employee morale. Impact of Substance Use and Abuse on Organizational Brand/Image Employee substance use and abuse can also have a negative impact on the organization’s brand/image as a result of poor customer service, including failure to timely respond to emails and phone calls, failure to meet internal and external deadlines, and cancelling meetings with clients, customers, or business partners. In a manufacturing environment, substance use and abuse could have a significant impact on the quality of products made which could potentially subject the organization to a products liability claim or other legal action. The impact on an organization’s brand/image could very well affect their bottom line.

What mitigating factors are available to employers to reduce the impact of prescription and illegal substance abuse on their organization? EDUCATION Organizations should ensure that all supervisors and employees are educated about the signs and symptoms of substance use and abuse in the workplace. They should also be educated regarding the effects of the abuse on the workplace, family and community. In an effort to ensure timely and proper training, it can be incorporated as a part of employee onboarding and made available as a refresher on an annual or semi-annual basis. Supervisors and employees should also be informed of available resources provided by the organization as well as those provided on a local, county, or state level for counseling, prevention, and treatment. Training for supervisors should equip them with additional tools to properly respond to employee substance use and abuse. If the organization is involved in a Drug-Free Workplace Program, they will likely be required to post information in common areas, such as restrooms and break rooms, and cafeterias. However, even if an organization is not part of such a program, educating employees through the use of posters and pamphlets, company-wide emails, EAPs, and other methods is recommended. POLICY As the landscape on drug use continues to change, organizations need to be more mindful than ever of their policies regarding the matter. An annual review should be conducted of all relevant policies and any necessary revisions made at that time. Many employers currently maintain policies which prohibit the use, sale, and possession of illegal drugs. However, most policies don’t address the use of prescription drugs obtained by an employee without a prescription or an employee’s use of legally prescribed drugs that may affect his/her ability to perform assigned job duties or potentially expose an employee or others to harm.

In response to the growing need for guidance in this area, the U.S. Department of Labor developed the following model language for employers to consider using in their drug and alcohol policies: Prescription and over-the-counter drugs are not prohibited when taken in standard dosage and/or according to a physician’s prescription. Any employee taking prescribed or over-the-counter medications will be responsible for consulting the prescribing physician and/or pharmacist to ascertain whether the medication may interfere with safe performance of his/her job. If the use of a medication could compromise the safety of the employee, fellow employees, or the public, it is the employee’s responsibility to use appropriate personnel procedures (e.g. call in sick, use leave, request change of duty, notify supervisor, notify company doctor) to avoid unsafe workplace practices. The illegal or unauthorized use of prescription drugs is prohibited. It is a violation of our drug-free workplace policy to intentionally misuse and/or abuse prescription medications. Appropriate disciplinary action will be taken if job performance deterioration and/or other accidents occur. In addition to the items mentioned above, comprehensive policies should also address under what circumstances is drug testing conducted, employee responsibility to notify supervisor of prescription drug usage (safetysensitive positions), and return to work policies for employees undergoing substance abuse treatment. Employers should be cautious when making adverse employment decisions based on assumptions about an applicant or employee’s use and/or abuse of prescription drugs. Recent rulings have shown that the Equal Employment Opportunity Commission has been successful against employers who have utilized ineffective drug policies.

Brigitte Tubbs-Jones, Esq., PHR, SHRM-CP Director of Legal Services Tennessee Department of Human Resources Brigitte.tubbs-jones@tn.gov

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7toWays Make a

Great First Impression

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By HARVEY DEUTSCHENDORF

We’ve all heard about how important it is to make a great first impression. Whether it is a job interview, or meeting someone for the first time that we may want to date, first impressions are crucial. If we make the right one, we are well on our way. If not, we put ourselves in a very deep hole that it will take a lot of work and effort to get out of. While it is commonly believed that we make our first impressions of people within the first 30 seconds, studies indicate that it might happen much faster. https://www.psychologicalscience.org/publications/observer/2006/july-06/ how-many-seconds-to-a-first-impression.html While first impressions are important in all encounters that may alter our lives, they are most crucial during interviews. When we do make a good first impression, the interviewers may overlook some of our shortcomings during the conversation; but if left with a negative impression, we will be struggling to overcome this the entire time. Here are some tips for increasing your chances of making that crucial and best first impression before an interview.

Practice beforehand and get feedback While it may seem like a waste of time for those who feel they come confident and polished, practicing and receiving feedback prior is a great way to prepare. We are seldom good judges of the firmness of our handshake, our postures, eye contact and dress. Find a family member or friend who will give you honest and reliable feedback and do a dry run with them. Practice everything from the initial handshake, to your posture to dressing like you would for the interview. Not only will this help you become more aware as you go into the interview, it will give you the confidence in knowing that you are likely more prepared than anyone else who will be interviewed.

Show up early but not too early Approximately fifteen minutes is about the right amount of time to arrive before the scheduled interview appointment. This allows you to collect your thoughts, go to the washroom, to make sure you look okay and rehearse the major parts of the interview in your mind. Arriving too early could increase your anxiety while waiting and you may look desperate for the job.

Good posture, a firm handshake and your best authentic face While posture should be straight, it should also be relaxed and not look forced or woodenIn other words, it should look natural on you. If you have a condition that prevents you from standing up straight, don’t try to force yourself to do so. The handshake should be firm but not so hard that the interviewer fears you will crush their hand. A forced smile is worse than just putting on your happiest and most pleasant neutral face. While you should always do your best, forcing what is unnatural can portray you as insincere and inauthentic.

Ask where you should sit, if there is a choice Often there will be a number of chairs giving you a choice of where you to sit. Never assume that you have a choice but ask where they would like you to sit. While it might be perfectly okay to plop yourself down in any empty chair, this is not the time and place to take anything for granted. Asking shows consideration for others and a willingness to ask questions when you may be unsure. Simply sitting down in a chair of your choice may be misconstrued as cockiness or arrogance on your part.

Make eye contact with everyone on the interview panel When introduced to the other members of the interview panel, remember the firm handshake and to hold eye contact for several seconds or until they look away. This is their initial impression of you and is just as important as the person who met you in the reception area. The first few moments of an interview are potentially a life changing juncture. The time and effort you spend preparing for occasions like this, may be the most valuable time that you expend. Don’t short change yourself or leave anything to chance. Be prepared and the interview will start off well, giving yourself the best opportunity for a successful outcome.

Carry out a practice run of meeting your interviewers with the receptionist When meeting the receptionist, act like he or she is the person who will be interviewing you. Not only will it increase your confidence but the receptionist might actually be part of your interview. Often those conducting interviews will ask the receptionist for their impression of you. It could be seen as a more authentic way that you are with people as opposed to the interview where it is expected that you will be acting out the behaviour they want to see.

Have everything ready to go into the interview Dropping items or having the interviewer wait while you fumble to get your belongings in order will not leave a good impression. Make sure you have everything in order, firmly in hand and are ready to follow the interviewer without any hesitation. Anyone with military training will be very aware of the importance of being absolutely ready when called.

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Harvey Deutschendorf is an emotional intelligence expert, internationally published author and speaker. To take the EI Quiz go to theotherkindofsmart.com. His book THE OTHER KIND OF SMART, Simple Ways to Boost Your Emotional Intelligence for Greater Personal Effectiveness and Success has been published in 4 languages. Harvey writes for FAST COMPANY and has a monthly column with HRPROFESSIONALS MAGAZINE. You can follow him on Twitter @theeiguy.

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