Volume 3 : Issue 7 TM
www.HRProfessionalsMagazine.com
Results of the DOMA’s Downfall
The Supervisor
Liability Rule
SHRM’s HR Competency Model How Will Health Care Reform Impact Your Organization?
HR
Professionals in Higher Education
Lisa K. Horn
Co-Leader, SHRM’s Workplace Flexibility Initiative
SR Government Relations Advisor
SOLUTIONS AT WORK
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Bringing Human Resources & Management Expertise to You The CDC estimates that the percentage of depressed adults in AR, MS, TN ranges from
10.4-15%
www.HRProfessionalsMagazine.com Editor
Cynthia Y. Thompson, MBA, SPHR Publisher
The Thompson HR Firm HR Consulting and Employee Development Art Direction
Park Avenue Design Contributing Writers
R. Alex Boals Harvey Deutschendorf H. Larry Fortenberry Voss W. Graham Mary C. Hamm Andy Impastato Dorothy Knapp Timothy W. Lindsay William M. McNamara Paul E. Prather Jennifer Riley Greg Siskind Donna Tosches Cynthia Y. Thompson Jeff Weintraub Board of Advisors
Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR John E. Megley III, PhD Terri Murphy Susan Nieman Robert Pipkin Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.HRprosMemphis.com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to cynthia@HRprosMemphis.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2011 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.
Features 4 Note from the Editor 5 Profile: Lisa K. Horn
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6 HR Professionals in Higher Educational 7 Top Educational Programs for HR Professionals
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10 The Results of the DOMA Downfall
breaking news and updates
12 It Takes a Village to Impact Wellness
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16 Does Your Boss Have Empathy?
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Departments 14 FMLA: Final Rule Expands FMLA 20 Title VII: The Supervisor Liability Rule 21 PPAC: Play or Pay Penalty 22 FLSA: It’s Not Just an Administrative Issue 24 Immigration Reform: The Latest on Immigration Legislation 26 Health Care Reform: How Will Health Care Reform Impact Your Organization? 28 Recruiting: Five Tips on Hiring Superior Performers 30 Book Look: The Other Kind of Smart by Harvey Deutschendorf
Industry News 18 2013 Tennessee SHRM Conference & Exposition 19 SHRM’s HR Competency Model 27 2013 AR SHRM Employment Law and Legislative Conference
Next Issue The focus of our next issue will be on your 2014 benefits strategy. We will also bring you a preview of the 2013 TN SHRM Conference & Exposition and The 2013 AR SHRM Employment Law and Legislative Conference www.HRProfessionalsMagazine.com
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a note from the Editor
I
am so excited to have Lisa K. Horn, Co-Leader of
We are delighted to announce our new digital format
SHRM’s Workplace Flexibility Initiative and SR
will now be available on Issuu.com. For those of you
Government Relations Advisor on the cover of this
who like to read your magazines online, you will be
month’s issue! I first met Lisa at the 2012 MS SHRM
able to read HR Professionals online in its entirety and
Conference and heard her speak on workplace flexibility. I was so impressed with her that I invited her to come and speak about workplace flexibility at our Strategic Leadership for HR Executives Seminars
in Memphis in December of 2012 in partnership with SHRM-
download and print it also, if you like. In addition, we will continue to provide the print issue for those of you who still enjoy receiving your magazines in the mail the old-fashioned way and curling up in your favorite chair reading them from cover to cover.
Memphis. I hope you caught her article on workplace flexibility in
We look forward to seeing our Tennessee SHRM
our June digital issue called, “It’s Time for More Workflex Options.”
friends in Nashville at the Gaylord Opryland Hotel
If not, you can find it on our website. (http://bit.ly/1aInG0i) We were excited to partner with Data Facts again this month to
& Convention Center September 15 - 18 for the Tennessee SHRM Conference & Exposition. See page 18 for the details!
bring your our monthly webinar called “Strategic Communication
We also look forward to seeing our AR SHRM friends
for HR Executives.” Mark your calendars for August 28 at 2 PM
at the Little Rock Marriott for the ELLA Conference
for our next webinar, which will be “Executive Presence for HR
September 18-19. See page 27 for details on it!
Professionals.” You won’t want to miss it! We are also planning some exciting seminars on developing your benefits strategy for 2014 that will be held in Memphis, Little Rock, and Jackson, MS., during August and September. Be sure to subscribe to our monthly newsletter on our website, www.hrprofessionalsmagazine.com, to get the details. Just click on the RSS button in the upper right hand corner to subscribe to our news feed. We will keep you posted!
Sign up for our RSS News Feed to receive up to the minute HR Alerts on changing legislation affecting our workforce. www.HRProfessionalsMagazine.com.
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www.HRProfessionalsMagazine.com
Cynthia Y. Thompson | Editor cynthia@HRprosMagazine.com www.HRProfessionalsMagazine.com
Lisa K. Horn on the cover
Lisa K. Horn Co-Leader, SHRM’s Workplace Flexibility Initiative SR Government Relations Advisor Lisa Horn serves as the Co-Leader for SHRM’s Workplace Flexibility Initiative and partnership with the Families and Work Institute (FWI). She is responsible for the overall direction and execution of the Society’s partnership with FWI, including outreach efforts to SHRM affiliates, development of products and services for the membership, and coordination with SHRM’s public relations campaign. As a respected source for research and trend data on flexible work environments, Lisa is one of SHRM’s primary spokespeople on workplace flexibility, regularly interviewed by the media and sought out as a speaker for human resource and business audiences. Since joining SHRM in 2004, Lisa has served as the organization’s chief lobbyist on health care and workplace flexibility public policy issues on Capitol Hill that impact the human resource profession. From 2006-2011, Lisa chaired the SHRM-led National Coalition to Protect Family Leave. Prior to joining SHRM, Lisa worked for the U.S. House of Representatives under former Representatives Bill Barrett and Tom Osborne. A native Nebraskan, Lisa began her career as a senatorial aide in the Nebraska Legislature, while completing a Bachelor of Arts degree in Political Science from the University of Nebraska-Lincoln.
www.HRProfessionalsMagazine.com
5
HR Professionals in
HIGHER education
Amy West
Judith Tavano, M.A., SPHR
Cynthia Render-Leach, PHR
Director of Human Resources and Affirmative Action Jackson State University
Director of Professional Development Programs University of Arkansas Global Campus
2013 Recipient of MS SHRM Spirit of HR Award
Amy West joined Jackson State Community College in January 2011 as the Director of Human Resources and Affirmative Action. After obtaining a Bachelor of Science in Agriculture from University of TN at Martin, she moved to Utah with her husband, Ben. While there she earned her Master’s degree in Human Resource Management from Utah State University. After completing graduate work Ben and Amy relocated to Mississippi. While in MS, Amy worked at Cadence Bank where she served as the Vice President of Human Resources. Amy participated in the Oktibbeha County Leadership Program and served on its Board of Directors after she graduated from the program. Amy has worked in Human Resources for just over fourteen years. She has HR experience in banking, industry, manufacturing, and now in the public education sector. She obtained her Senior Professional in Human Resources (SPHR) certification in 2007. She has been an active member of the Society of Human Resource Professionals (SHRM) and has served on state and local chapter boards for the society in both MS and TN. In 2010 Amy received the Spirit of HR Professional of the Year award from Mississippi’s State Council of SHRM. She is currently serving as the PresidentElect for the West TN SHRM chapter. Active in her community, Amy serves on the Leadership Jackson Alumni Association Advisory Board, the Leadership University Board, and serves on the Regional Interfaith Association’s (RIFA) Human Resource committee. Amy was a member of the Leadership Jackson Class of 2011. Amy is the proud mother of two daughters and enjoys running marathons in her spare time.
Judith Tavano, M.A.,SPHR, is the director of professional development programs for the University of Arkansas Global Campus, the founder of genMatters.com, and a former adjunct instructor in the human resource development program in the College of Education and Health Professions. In her role as director of professional development programs, Judith is dedicated to serving the needs of professionals by providing nationally recognized certification and re-certification opportunities to professionals who require certification to enter, prosper and excel in their professions; Global Campus-branded/co-branded certificate programs to professionals to help professionals improve their knowledge, skills and abilities; individual class offerings, series and conferences designed to respond to market trends and keep professionals’ knowledge, skills and abilities current; and customized training that addresses specific needs in specific organizations, professions or industry sectors. Prior to her experience at the University of Arkansas, Judith served as assistant dean for workforce development at NorthWest Arkansas Community College. Judith came to Arkansas in 1999 after practicing HR in the greater Boston area for over 20 years. Judith is a graduate of the Simmons College, Boston, MA.
with over 20 years’ experience in healthcare and higher education. Most recently she served as Human Resources Manager with the University of Southern Mississippi for 5 ½ years where she was responsible for the HR functions for multicampus locations along the MS Gulf Coast. Prior to joining USM Cynthia worked in HR for two hospital systems, Singing River Health System in Pascagoula, MS as Employee Relations Specialist, and General Health System in Baton Rouge, Louisiana as a Professional Recruiter. She is actively involved in her local SHRM chapter and the MS SHRM State Council. She serves on both boards, as the Secretary and College Relations Chair for the Gulf Coast Human Resource Association and as the MS SHRM State Council as College Relations Chair. In her roles she is responsible for the development and support of the Student SHRM chapters throughout the state. In May 2013, Cynthia received the Spirit of HR Award from the MS SHRM State Council which presents the annual award at the state conference to the SHRM member who best represents the spirit of SHRM in the state of Mississippi and is an outstanding leader within the HR Community. Cynthia received her Bachelor of Science degree from Louisiana State University in Forestry Management and has had her PHR certification since December of 2010.
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Cynthia is a Human Resources professional
Dr. Carol Danehower Management Department, University of Memphis Dr. Danehower’s leadership in employer education for the domestic violence awareness program, “Violence at Home. Victims at Work: Employers Confront Domestic Violence”, has also offered the SHRM student members an opportunity to be involved in community outreach, meet industry professionals and learn more about this issue of emerging importance in the workplace. Through her research in this area and her partnership with the Memphis Area Women’s Council, Dr. Danehower, “Dr D” to the students, exemplifies the importance and value of HR professionals becoming involved in strategic HR issues that impact the community.
Kathy Tuberville, SPHR Director of the Avron B. Fogelman Professional Development Center University of Memphis Mrs. Tuberville, “Mrs. T”, is also the Director of the Avron B. Fogelman Professional Development Center. Through her role, SHRM students learn more about building their personal brand and often are involved in hosting various professional development events as well. Through their work with the Professional Development Center, they are often student mentors for other business students attending events such as the January 2013 Personal Branding Conference at the U of M. Through the students’ collaboration with the Professional Development Center, the students learn how to work effectively with on-campus partners in delivering informative and inspirational events. As the College Relations Chair for the SHRM professional chapter, she involves SHRM professional members frequently in the student chapter as well.
TOP
Educational Programs for HR Professionals
University of Memphis The SHRM student chapter at the U of M has 55 active students and is one of the strongest student organization in its home college, the Fogelman College of Business and Economics. Welcoming students in other majors who anticipate a career in Human Resources, the student leaders work with industry professionals in the Memphis area to bring innovative programming and events to the UM campus. HR internships are often an outcome of the students’ SHRM experiences and they are working to reactivate the job shadowing program in Fall 2013. In the Spring 2013 semester, six U of M SHRM student chapter members travelled to the Southeast Regional Student conference in Washington, D. C. where they learned strategic HR lessons from national experts and motivational speakers. In addition, twelve students, sponsored by U of M Management department faculty and SHRM-Memphis professionals, attended the Tennessee State Conference in Memphis last September and worked with the SHRM-Memphis host team. The student chapter is advised by two Management Department faculty members, Dr. Carol Danehower and Mrs. Kathy Tuberville. Dr. Charles Pierce, Management Department Chair, and other Management faculty are very supportive of the SHRM student chapter and encourage students to participate actively. Dr. Danehower and Mrs. Tuberville meet with students to plan and develop programming ideas, much like the SHRM-Memphis professional chapter, and provide insight into chapter growth, promotional opportunities, and collaborative relationships. If you have higher education students interested in becoming a member of the U of M SHRM chapter, please contact Dr. Carol Danehower, vdanehwr@memphis.edu or Kathy Tuberville, K. Tuberville@memphis.edu. www.HRProfessionalsMagazine.com
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Union University Germantown Union University’s McAfee School of Business Administration has earned accreditation from the Association to Advance Collegiate Schools of Business. AACSB International, founded in 1916, is an association of more than 1,350 educational institutions, businesses and other organizations in 83 countries and territories. It is the longest serving global accrediting body for business schools that offer undergraduate, master’s and doctorate degrees in business and accounting. “AACSB accreditation is a tremendous boon to our graduates as well as our current students. Since we're the only private school in the entire region with this distinction, employers know that a Union MBA graduate has been well prepared through a rigorous program of proven quality. An investment in a Union MBA is money well spent", Steve Arendall, Ph.D., professor of management and director of the MBA program in Germantown, said. “Achieving the AACSB accreditation places us in the top 5 percent of business schools in the world,” said Keith Absher, dean of the McAfee School of Business Administration. “It is definitely the ‘gold standard’ of business school accreditations.” Absher said the AACSB accreditation is evidence that Union has achieved excellence in multiple areas, including learning outcomes for students and students’ ability to compete against any business graduate in the country. “We are so thankful for this positive word of affirmation from the AACSB regarding the full accreditation of the business programs at Union University,” Union President David S. Dockery
said.“It is a joy for me to congratulate Dean Keith Absher and all who had a role in navigating this lengthy and challenging process. “Truly, this is a significant accomplishment for faculty, staff, and students alike, which will serve the university well in the years ahead. ”Achieving accreditation is a process of rigorous internal review, evaluation, and adjustment that takes several years to complete. During these years, the school develops and implements a plan to meet the AACSB accreditation standards, which require a high quality teaching environment, a commitment to continuous improvement and curricula responsive to the needs of businesses. Also required by the AACSB standards, all accredited schools must go through a peer review process every five years in order to maintain their accreditation. “It takes a great deal of self-evaluation and determination to earn AACSB accreditation, and I commend Union University for its dedication to management education, as well as its leadership in the community,” said Robert D. Reid, executive vice president and chief accreditation officer of AACSB International. “Through accreditation, Union has not only met specific standards of excellence, but has also made a commitment to ongoing improvement to ensure that the institution will continue to deliver high quality education to its students. “Dean Absher and the faculty, directors and staff of Union University are to be commended for their role in earning accreditation.”
UNION
MBA
Top tier. AACSB accredited.
901.312.1920 uu.edu/mba E X C E L L E N C E - D R I V E N | C H R I S T- C E N T E R E D | P E O P L E - F O C U S E D | F U T U R E - D I R E C T E D
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HRCP | Human Resources Certification Program
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The authors of the HRCP Program, David J. Cherrington, DBA, SPHR and Laura Z. Middleton, SPHR, both teach human resource management courses at Brigham Young University. Dr. Cherrington served on the HR Certification Institute Board of Directors from 1989 to 1995. During his time on the board, he was the National Director of Codification and Research and the National Director of Exam Development. As the Director of Codification and Research, Dr. Cherrington conducted an extensive study to define and expand the HR Body of Knowledge on which the PHR/SPHR exams are based. Laura Middleton assisted with the codification study; the two thoroughly researched human resource management laws, practices, policies, trends, and literature. They also conducted an extensive survey of certified human resource professionals to determine the relative importance of the various human resource topics. In his role as the National Director of Exam Development, Dr. Cherrington reviewed and improved items in HRCI’s test bank. He also conducted item-writing and review workshops with certified human resource professionals who had volunteered to assist in writing and/or reviewing items for the PHR/SPHR exams.
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Jackson State Community College Jackson State Community College, which was founded in 1967, is a publicly supported community college located in the heart of west Tennessee that operates under the auspices of the Tennessee Board of Regents. Jackson State’s mission is to provide “accessible learning opportunities that enhance the lives of individuals, strengthen the workforce, and empower our diverse communities by offering traditional and contemporary associate degrees, certificates, continuing education and enrichment, and college-readiness programs.” Jackson State offers over 40 degree programs in a variety of academic disciplines, as well as several academic and technical certificates. In addition to its degree programs, Jackson State participates in the Tennessee Transfer Pathways program, which guarantees that successful students may transfer all of their credits to any state university in Tennessee. Along with its main campus, Jackson State has satellite campuses in Humboldt, Lexington, and Savannah.
ORDER NOW! Use Discount Code HRPROS for $25 off Complete HRCP Program www.hrcp.com 801-343-3699 www.HRProfessionalsMagazine.com
9
Results of DOMA’s Downfall By Jeff Weintraub and Jennifer Riley
In
late June the Supreme Court of the United States issued a decision striking down some, but not all, of the Defense of Marriage Act (DOMA). The Court found the language in DOMA defining marriage as between “one man and one woman” to be unconstitutional. This means that, as far as the federal government is concerned, same-sex marriages performed in states or countries where same-sex marriage is legally recognized will be treated as legal marriages.
However, the Court reserved the right for states where same-sex marriage is not recognized to continue to refrain from recognizing same-sex marriages performed in other states where such marriages are recognized. Currently only thirteen states (plus the District of Columbia) expressly allow same-sex marriages: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington. So, for example, a state such as Tennessee, where same-sex marriages are not recognized, can continue to decline marriages performed in states such as New York, which do recognize same-sex marriage.
Federal Laws Incorporating State Laws Even though the root of the DOMA decision was about federal estate tax and the Internal Revenue Service, rather than employment laws and the Department of Labor, the rights and responsibilities of same-sex spouses that are affected by the Court’s DOMA ruling are vast and varied. In the employment arena, these rights and responsibilities are primarily associated with benefits and taxes. Where federal employment laws refer explicitly to “spouses,” these laws may now be applicable to same-sex spouses. Whether or not the laws encompass same-sex spouses depends on how exactly, if at all, the law defines “spouse.” Some federal laws define “spouse” by incorporating the definition of state laws, and not all state laws are drafted the same. It is a common practice for federal agencies and statutes to apply state law to determine whether someone is married. Take the Family and Medical Leave Act (FMLA) as an example. The FMLA is a federal law that allows eligible employees to take up to twelve weeks of unpaid, job-protected leave for various reasons. Among those reasons are 1) to care for the employee’s spouse who has a serious health condition and 2) for exigencies arising from the active military duty of the employee’s spouse. The FMLA defines “spouse” as meaning “husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides.…” 10
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Note that the FMLA points to the law of the state where the employee resides, not the state where the employee works. That means that, were an employee to reside in a state that recognizes same-sex marriage, but work in a state that does not, then the employee would not be afforded benefits under the FMLA for a same-sex spouse. On the other hand, if an employee resides in one of the thirteen states legally recognizing same-sex marriage, then regardless of the same-sex marriage climate of the state where the employee works, the employee is entitled to reap FMLA benefits relating to a same-sex spouse.
Health and Retirement Plans Once again, whether an employer will have to provide health and retirement benefits to a same-sex spouse of an employee will depend on whether the state recognizes same-sex marriage. If an employer provides a group health plan and is in a state that recognizes same-sex marriage, that employer will want to extend coverage to same-sex spouses. However, an employer in a state that does not recognize same-sex marriage who provides a group health plan will need to look to state insurance law to determine whether same-sex spouses must be provided health insurance coverage. Additionally, since the striking of the DOMA language, employers who extend benefits to same-sex spouses no longer need to impute the cost of those benefits as income to the employee. Same-sex spouses also can now enroll for health benefits with spousal coverage just after marriage rather
than waiting until the next open enrollment period, as marriage is a qualifying change-in-status event under HIPAA. Furthermore, same-sex spouses also will be eligible for the continuing coverage protections provided under COBRA.
will be upheld, the DOMA decision may open the door for claims under Title VII that an employer treated an employee in a same-sex marriage differently than an employee in an opposite-sex marriage.
Similar to the FMLA, current IRS guidance, though issued prior to DOMA, states that the law of the state where the employee resides will dictate the treatment of same-sex spouses. In light of the recent DOMA decisions, all employers will want to re-analyze the administration of tax-favored retirement plans as they relate to spousal status and how the resident state treats same-sex marriage. Employers in states recognizing same-sex marriages or with employees who reside in those states will want to consider whether under state laws, matters such as Qualified Domestic Relations Orders, rollover distributions, spousal consent requirements regarding loans and beneficiaries, hardship distributions, and default beneficiaries need to incorporate rights of same-sex spouses.
What’s an Employer to Do Employers should distinguish what policies and procedures are affected by federal regulations and which are governed by state law. In states where same-sex marriages are not recognized, employers will need to determine how they wish to treat same-sex partners or spouses of marriages performed in other states and what benefits, if any, they wish to confer. Next, these employers will need to closely analyze policies and practices that relate to spouses to ensure that same-sex spouses are incorporated as desired. In states where same-sex marriages are recognized, employers should verify that all policies and procedures properly incorporate same-sex spouses. Lastly, all employers will need to analyze any explicit reference to DOMA and may need to make changes to reflect the recent change in law.
Leeway for Employer Policies Employers still have plenty of leeway in the policies they implement. The Court’s decision left employers free to choose how to define terms like “marriage” and “spouse” in policies and plans that are not effectuating federal requirements. Yet, as with all policies, employers need to be aware of the potential effects that policies related to treatment of same-sex marriages will have; there may be some unanticipated risks. For example, an employer in a state that does not recognize same-sex marriages is still free to extend benefits to spouses of same-sex marriages that were performed in states where such marriages are legally recognized. In such a case, the employer may choose to allow an employee leave to care for his same-sex spouse. While this leave is similar to leave granted by the FMLA, this leave cannot be legitimately designated as FMLA leave where the same-sex spouse does not qualify as a “spouse” under the relevant state’s laws. Thus, in theory, the employee potentially could, within one twelve-month timeframe, take twelve weeks of leave under the FMLA for legitimate reasons such as the adoption of a new child, and then could also take leave under the benefits proffered by the employer to same-sex spouses.
Jeff Weintraub Managing Partner Memphis Office of Fisher & Phillips jweintraub@laborlawyers.com www.laborlawyers.com
Jennifer Riley Paralegal Memphis Office of Fisher & Phillips jriley@laborlawyers.com www.laborlawyers.com
Employers are also free to decide whether to extend benefits to domestic partners. While this practice is becoming more prevalent among employers, those in states that recognize legal marriage of same-sex persons, may want to re-evaluate their plans. Perhaps these employers will want to require partners to be married before receiving benefits, but in doing so, employers should proceed with caution.
Potential Future Challenges As of yet, no federal employment law applicable to the private sector expressly prohibits employment discrimination, harassment, or retaliation on the basis of sexual orientation or marital status (although recently, the EEOC has started sending signals that it believes that sexual orientation is protected under Title VII). Courts across the nation, including the United States Supreme Court, have largely agreed that sex discrimination may extend to discrimination based on gender stereotypes. Nonetheless, these courts often go so far as to expressly state that such an extension is not intended to grant protection on the basis of sexual orientation, even if the case at hand notably involved some trace relation to homosexuality. Although there is nothing in the law yet that restricts an employer from treating same-sex marriage and opposite-sex marriages differently, these types of restrictions may soon be coming down the pipeline. While it is too early to tell whether such challenges www.HRProfessionalsMagazine.com
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It Takes a Village to Impact the Wellness of Employees By Donna Tosches
It
is hard to flip through a magazine, listen to a talk show or read a newspaper that doesn’t address ways in which we can improve our health. Take this pill, have that test, go on this diet, eat more of that, drink less of this. What is a person to do?
The State of Health in the US A colleague recently shared with me a Wall Street Journal article that described a study by the Institute of Medicine and the National Research Council called “US Health in International Perspective: Shorter Lives, Poorer Health.” The statistics were alarming. Here are just a few that the article highlights: There are 16 developed nations whose population has a higher chance of living past the age of 50 than those of us in the US. We have an average intake of 3,770 calories a day. The US has more chronic lung diseases and disability than most other developed nations.
The World Health Organization Definition of Health The reasons, of course, are complex—we sleep less, eat more, move less, engage in risky behaviors, have limited access to healthier choices— all this and more lead to poorer health. How do we stop the decline? How do we increase our overall health? The World Health Organization defines health as complete physical, mental and social wellbeing; not mere the absence of disease or infirmity. To be completely healthy, we must pay attention and take care of our physical, mental and social well-being.
The Impact of Mental Health in the Community and Workplace This is one of those tasks that “takes a village.” The work place and Human Resource professionals are important members of that village. To have better health outcomes for the employee and their family members, businesses must take a proactive role in addressing all aspects of a person’s health, including mental health. Here are some interesting statistics about the prevalence and impact of mental health issues. According to the Center for Disease Control (CDC), depression can adversely affect the course and outcome of common chronic conditions, such as arthritis, asthma, cardiovascular disease, cancer, diabetes, and obesity. In a 2006 and 2008 survey on prevalence of depression, the CDC estimates that the percentage of depressed adults in Arkansas, Mississippi and Tennessee ranges from 10.4 – 15%. According to a 2001 study by Valenstein, Vijan, Zeber et al., in a 3-month period, patients with depression miss an average of 4.8 workdays and suffer 11.5 days of reduced productivity. In addition 12
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to these serious estimates of the impact of depression, the National Institute of Health (NIH) estimates that 3 out of 10 adults drink at levels that put them at risk for alcoholism, liver disease and other problems .The Substance Abuse and Mental Health Services Administration (SAMHSA) reports that 6.1% of all adults will experience a drug problem during the course of their lifetime. Additionally, the National Institute of Mental Health (NIMH) estimates that anxiety disorders affect 40 million adults in the United States age 18 and older each year.
Are Employees Getting the Help They Need? Depression, anxiety, and substance use need as much education and attention in the workplace as medical conditions like diabetes, cardiovascular disease and cancer. The National Survey on Drug Use and Health (NSDUH), sponsored by SAMHSA, provides national and state-level data on the use of tobacco, alcohol, illicit drugs (including non-medical use of prescription drugs) and mental health in the United States. In a 2006 report, of the 2.9 million adults aged 18 to 64 employed full-time who had serious psychological distress and a substance use disorder, nearly 60% did not receive treatment for either problem and less than 5% were treated for both problems. The emotional, behavioral, physical and financial impact on the employee, their family and the business when these serious problems are not addressed and treated is enormous.
Behavioral Health Issues Can be Addressed in the Workplace These statistics point towards the need for a comprehensive look at employee wellness. Open discussion about the role that substance use and behavioral health issues play in our everyday lives can be an integral part of regular wellness communication. Businesses and Human Resource professionals can have these crucial conversations with employees through partnership with an Employee Assistance Program (EAP). An EAP can provide a comprehensive array of behavioral health services for the employee and business. According to the International Employee Assistance Professional Association, an EAP is a workplace program designed to assist: (1) work organizations in addressing productivity issues, and (2) "employee clients" in identifying and resolving personal concerns, including health, marital, family, financial, alcohol, drug, legal, emotional, stress, or other personal issues that may affect job performance. The US Department of Labor has reported that for every dollar invested in an Employee Assistance Program employers generally save anywhere from $5 to $16. When providing comprehensive wellness programs for employees, it is wise to include partnership with a full service EAP that meets the needs of your business. For help in understanding EAP’s and what services they can provide, visit the Employee Assistance Professional Association website http://www.eapassn.org for guidance. It takes a village to impact positive change in the wellness of employees. And, all aspects of wellness need attention to drive positive change, especially those that are more complex to discuss.
Donna Tosches, LCSW, CEAP Director of the Methodist LeBonheur Healthcare Employee Assistance Program and Dennis H. Jones Living Well Network Donna.Tosches@mlh.org. www.methodisteapcanhelp.org
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A L M F
Final Rule Expands
FMLA
By Timothy W. Lindsay
On
February 6, 2013, the Department of Labor published its final FMLA rule in the Federal Register. The effective date of the final rule was set for 30 days after the publication date – or March 8, 2013. The primary purpose of the Final Rule is to implement the 2010 amendments in the statutory provisions governing military family leave and coverage for airline flight crews. The DOL also published a new FMLA poster and several new forms in light of the changes that took effect March 8. Highlights of the changes made by the Final Rule are discussed below.
New Poster and Forms The new FMLA poster should be posted immediately in place of the prior poster until a consolidated poster (covering all the requisite federal employment laws) can be distributed for replacement of the prior one. The new FMLA forms include: Certification of Qualifying Exigency for Military Family Leave (Form WH-384); Certification for Serious Injury or Illness of a Current Servicemember for Military Family Leave (Form WH-385); Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (Form WH-385-V); and Notice of Eligibility and Rights & Responsibilities (Form WH-381). The new poster and forms are available on-line at www.dol.gov/whd.
Expansion of Coverage to Regular Armed Forces The old term “covered military member” is replaced with simply “military member” and includes members of the National Guard, Reserves and all branches of the Regular Armed Forces. Under prior regulations, exigency leave was not available to employees who had a family member in the Regular Armed Forces. However, there was an added requirement along with this expansion: The term “active duty” for purposes of a qualifying exigency is replaced with “covered active duty” and requires the military member be deployed to a foreign country. “Deployment of the member with the Armed Forces to a foreign country means deployment to areas outside of the United States, the District of Columbia, or any Territory or possession of the United States, including international waters.”
Covered Veteran The final rule reflects a prior amendment to the statute by expanding the definition of “covered servicemember” to include “covered veterans” undergoing medical treatment, recuperation, or therapy for a serious injury or illness. A “covered veteran” is limited to veterans discharged or released under conditions other than dishonorable five (5) years prior to the first date the employee’s military caregiver leave begins. The period between enactment of the FY 2010 NDAA on October 28, 2009 and the effective date of the 2013 Final Rule (March 8, 2013) is excluded in the determination of the five-year period for covered veteran status. 14
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Expansion of Serous Injury or Illness for Military Member and Veteran For purposes of the military caregiver leave portion of the law, the final rule expands “serous injury or illness” for a current servicemember to include injuries or illnesses that existed prior to the beginning of a member’s active duty and was or were aggravated by service in the line of active duty in the Armed Forces. The new rule also creates a flexible definition for “serious injury or illness” of a covered veteran providing for four (4) alternatives only one of which needs to be satisfied. As has been the case since implementation of the first rules, the primary distinction in coverage for “exigency leave” and “caregiver leave” is the servicemember only has to be the “next of kin” for the employee to qualify for caregiver leave – whereas, for exigency leave, the servicemember’s relationship to the employee must be a spouse, son, daughter or parent.
Expanded “Health Care” Certification for Servicemembers Eligible employees may now obtain certification of a servicemember’s serious injury or illness (both current servicemembers and veterans) from any “health care provider” as defined by the regulations. Prior to the March 8 Final Rule, certification could only be obtained from those providers affiliated with the Department of Defense, Veterans Administration, or DOD TICARE networks.
Extend Time for Qualifying Exigency Leave for R&R The amount of time an employee may take for a qualifying exigency leave related to the military members Rest and Recuperation (R&R) leave is increased from five (5) days to up to fifteen (15) days under the new rule. Upon a request for such leave, an employer may require a copy of the military member’s R&R leave orders, or other military documentation issued by the military setting forth the dates of the military member’s leave.
Additional Qualifying Exigency Leave Category The new rule creates an additional qualifying exigency leave category for “parental care leave” under the military leave requirement. Leave may now be taken to care for a military member’s parent who is incapable of self-care when the care is necessitated by the member’s covered active duty leave. As with all instances of qualifying exigency leave, the military member must be the spouse, son, daughter, or parent of the employee requesting qualifying exigency leave of parental care. Further, the parent for whom care is needed must be the military member's biological, adoptive, step, or foster father or mother, or any other individual who stood in loco parentis to the military member when the member was under 18 years of age. The new rule identifies circumstances for which “parental care leave” may be taken.
Incorporation of USERRA for Eligibility Determination
Eligibility Hours for Airline Flight Crew Employees There are special rules for determining “hours of service” of airline flight crew employees. Under the final rule, the hours of service are met if during the prior 12-month period the airline flight crew employee has worked or been paid for not less than 60% of the applicable monthly guarantee and has worked or been paid for not less than 504 hours (excludes commuting time, vacation, sick, or medical leave).
Calculating FMLA Leave for Airline Flight Crew Employees Specifically for airline flight crews, the new final rule creates a unique method for calculating leave and establishes FMLA leave for intermittent or reduced schedule leave usage – requiring that such must be accounted for using an increment no greater than one (1) day. An eligible airline flight crew employee is entitled to up to 72 days for one or more FMLA-qualifying reasons other than military caregiver leave – which permits up to 156 days.
Recordkeeping Update The recordkeeping requirements for FMLA leave are updated by the Final Rule to incorporate and specify the employer’s obligation for assuring compliance with the confidentiality provisions and requirements of the Genetic Information Non-Discrimination Act (GINA).
Conclusion It is essential that all HR and management personnel become familiar with these changes, understand the proper application of those changes and confirm that his or her company’s policies, procedures and practices are consistent with the Final Rule that took effect on March 8, 2013.
The final rule clarifies that an employee’s absence from work due to a USERRA-covered military service is counted in determining an employee’s eligibility for FMLA leave (12-months and 1,250 hours of services).
Timothy W. Lindsay Managing Shareholder Ridgeland Office of Ogletree, Deakins, Nash, Smoak & Steward, PC timothy.lindsay@ogletreedeakins.com www.ogletreedeakins.com
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:)
Does Your Boss Have
Empathy?
Corrie: “Yeah, I get knots in my stomach and tongue tied when I have to talk in front of a group of people.”
whenever I had to do a presentation. Since I started going to Toastmasters a couple of years ago, I’ve been able to lose a lot of my anxiety, although I still get a bit nervous. Have you ever considered going to something like Toastmaster? It really helped me.”
Three levels of empathy… which one does your boss have? By Harvey Deutschendorf
Fiona was Corrie’s manager at a branch of a large financial institution that had branches across the U.S., Europe and Asia. They had recently come up with a new process that Fiona was hoping the organization would adopt throughout their operations. As Corrie was instrumental in developing the process and was a recognized expert in her branch on the topic, Fiona decided she would be the natural choice to present at the annual meeting of the U.S. division. While Corrie was very knowledgeable, she was somewhat of an introvert and not comfortable speaking to large numbers of people. The annual meeting would have up to 400 employees from various levels and from all across the country. Corrie meets with Fiona to discuss her concerns and anxieties regarding the presentation.
Corrie: “I’m not really good with talking to a lot of people. I get really nervous and have trouble concentrating on what I have to say. I wish someone else could do the presentation.”
Below are three examples of how Fiona could have responded, indicating three levels of empathy:
Level 1
Fiona: “You’ll do fine. There’s nothing to it. You know this stuff better than anyone else around here.”
In this response Fiona showed a complete lack of empathy. She failed to even acknowledge Corrie’s anxiety over the presentation which would be the first basic step towards working out a solution with her. Instead she dismissed Corrie’s feelings entirely leaving Corrie more anxious, feeling completely unsupported and misunderstood. It has been reported that public speaking is one of the greatest fears that people have, even greater than dying. Jerry Seinfeld joked that at a funeral most people would sooner be in the casket than have to give the eulogy. Fiona should have been aware that Corrie’s fear was very real and normal. Corrie was an excellent employee who was not known for coming up with excuses and trivial complaints, therefore Fiona should have taken her concerns much more seriously.
Level 2
Fiona: “Lots of people have a fear of public speaking. I used to until
I went to Toastmasters. Now I’m okay, even though I still get a little nervous. There’s nothing wrong with being a little nervous. You know your stuff well, so you’ll be okay.”
In the second response, Fiona at least acknowledged Corrie’s anxiety. She did not address it, however, only speaking about it in general terms and talking about her own experience. She did not invite Corrie to help her look for ways to lessen her anxiety. As a result, Corrie still feels that her concerns were not taken seriously nor addressed in a caring manner.
Level 3
Fiona: “Sounds like you are feeling really stressed over the thought of having to do this presentation.”
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Fiona: “I remember feeling like that up to a couple of years ago
Corrie: “I probably should. I’ve heard good things about it. A friend
of mine has been with them for five years and has invited to take me as a guest. This presentation is only a couple of weeks away and Toastmasters won’t be able to help me within this time frame.”
Fiona: “Is there anything I or anybody else on the team could do to
help? Would it help if you did a trial run at our unit meeting this Thursday? You don’t have any problems talking to our group and it might help you feel more confident.
Or, if you want, I could set up a meeting with Garret in Communications. I hear he has some good exercises that you could work on to possibly relieve some of the anxiety load you’re carrying. If you’re open to even more practice opportunities, I could talk to the folks in Unit C about doing a trial run of your presentation at their unit meeting next Thursday. You know all of them pretty well and the more you practice, the more comfortable you’ll become. That’s the way this has worked for me in the past.”
Corrie: “Sure, I’ll give it a try. Maybe once I’ve done it a few times in front of people I know, I’ll feel better.”
In this instance Fiona showed good empathic listening skills. She responded directly in a caring manner that indicated she understood where Corrie was coming from. Corrie felt that she was heard, understood and cared about. Having been in Corrie’s shoes, she used this to build trust and understanding towards working towards a solution they both could live with. Fiona explored with Corrie some ideas that might help her to reduce the “fear monkey” off her back, or at least lighten his weight. The best scenario would have been if Fiona had let Corrie come up with her own solutions to her anxiety. In this case, Fiona felt that Corrie’s anxiety would limit anything she could come up with on her own. Besides, time was running out and they did not have the luxury of a long term plan. Overall it was a great example of the effective use of empathy. Chances are Corrie will become more confident and will do a good job in the presentation. She knows she had the support of her boss and coworkers and her relationship with Fiona will become stronger. If things go well, she will come away feeling more self- confident. She may also feel grateful to Fiona for believing in her enough to not take the easy way out and give the presentation to one of her coworkers.
Harvey Deutschendorf Emotional Intelligence Expert and Author of THE OTHER KIND OF SMART harvey.eiguy@shaw.ca www.theotherkindofsmart.com
EMPLOYERS LAWYERS
&
Working Together in Mississippi Ogletree Deakins lawyers in Jackson, Mississippi work closely with Human Resource professionals, business executives, and inhouse counsel to anticipate, prevent and resolve legal issues in the workplace. Our experience and knowledge of our clients’ industries and legal challenges enable us to serve their interests effectively and efficiently.
We remain committed to providing our clients with an insider’s view of the workplace issues of the day. With more than 650 attorneys in more than 40 offices located in the United States and Europe, the firm combines local knowledge and strength with national resources.
Jackson office attorneys L-R: Timothy Lindsay, Robin Banck Taylor, Kristi Haskins Johnson, Bert Ehrhardt 100 Renaissance • 1022 Highland Colony Parkway, Suite 200 • Ridgeland, MS 39157 • 601.360.0995 www.ogletreedeakins.com LAW FIRM OF THE YEAR Litigation – Labor & Employment LAW FIRM OF THE YEAR Employment Law - Management
SAVE THE DATE! 2013 Tennessee SHRM Conference & Exposition Working Together…to Create a Competitive Advantage
September 15-18, 2013 Gaylord Opryland Hotel & Convention Center – Nashville Take advantage of very-early registration at www.tnshrmconference.org Join us in Nashville for the 2013 Tennessee SHRM Conference & Exposition. Why attend this conference? • 2½ day regional conference (no long-distance travel required) • Eligible for up to 20 credit hours • Super Sunday workshops featuring Margaret Morford • Features an expanded 50 sessions covering current business challenges – Strategic Business Management – Culture by Design – Total Rewards – Talent Management – Legal & Legislative Updates with emphasis on ACA compliance • Networking opportunities with more than 1,250 professionals and industry leaders. • The conference has been approved for 21.5 General credit hours and you can get 21.5 Strategic hours if you attend a strategic session in every time slot. In addition, more than 150 industry leaders will be there to consult and offer successful solutions in current products and services, while
Early registration ends August 15th - register now to save $100! But most importantly, attending this conference will allow you to enhance your professional development, gain knowledge to deliver practical business solutions to your organization, stay abreast of current legal and legislative developments, and maximize the return on the investment your organization makes in its people—your most valuable asset.
For more information, or to register now, go to www.tnshrmconference.com 18
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THE NEW SHRM HR COMPETENCY MODEL: THE ROAD TO A SUCCESSFUL HR CAREER By Dorothy Knapp, SPHR
ELEMENTS FOR HR SUCCESS
What you know
How you apply it
Have you ever wondered just what it takes to have a successful, fulfilling career in HR? Have you had times when you’ve thought that you want to move ahead in HR, but have questioned what you need to function confidently at that level? And, by the way, how would you go about preparing for that new challenge? SHRM has done much of the research and planning for you! After years of reaching out to the HR community and to senior business leaders for their input, SHRM has identified the competencies that are needed over the course of a career – AND what is exciting is that they are competencies that can be identified early and worked on as you progress over time! The “model” from which you can identify strengths, target opportunities, and develop a growth plan is available through SHRM.
The HR Competency Model
The model is predicated on the belief that “knowledge” together with certain “behaviors” are needed for your continued success in HR. That is, that you as an HR professional must first develop your own foundation of HR knowledge and then follow with the leadership behaviors that exhibit that knowledge supporting your business decisions on people management issues. This knowledge base, this core, along with the accompanying behaviors will grow as you do! You may start work as a generalist, touching many facets of HR each day in your job or you may begin as a specialist, in a function such as recruiting. But as you move from position to position, with increasing accountability and responsibility, you will gain competence and confidence in each leadership behavior you apply, as well as in your knowledge of HR content. Along with the identification of what you need to know in HR, SHRM addresses each behavioral competency at four stages of a typical HR career – entry level, middle management level, senior level and executive level. The same competencies are required; they are exhibited in increasingly sophisticated ways at the successive stages.
No Longer Enough to Enter HR Through the “Back Door”
As you look at a “visual” of the model, you will see that it looks like a bull’s eye target! In the center is the critical “HR Core” – those functions of HR that you must study and have a level of understanding of as you enter the field and begin your work. No longer is it enough for a professional to enter HR through the “back door.” The field is so robust and so dynamic that some type of “schooling” is a must! Having a degree in HR or, at the least, having taken courses to prepare you for an entry level position, can give you the basis for understanding the technical aspects of the field and the kinds of roles you could play in HR as you continue to progress.
The center of the model includes the core competencies of “HR Expertise and Practice,” including Workforce Planning and Employment, Human Resource Development, Compensation and Benefits, Risk Management, Employee & Labor Relations, HR Technology, Global and International Human Resource Capabilities, Talent Management, and Change Management. Surrounding these are the leadership behaviors that you develop and use “through an HR lens”. That is the way great HR leaders view the business which they serve. They grow in their knowledge of their business; they grow in their people management skills; they continue to learn how to apply that knowledge to situations at hand to arrive at the best possible solutions for their level of competence and expertise.
The Behavioral Competencies
As you look at the model, you will see these behavioral competencies – Relationship Management, Consultation, Leadership and Navigation, Communication, Diversity and Inclusion, Ethical Practice, Critical Evaluation, and Business Acumen. Each of these stretches the HR Leader’s competence as he/she moves through his/her HR career, because each of these develops a more skilled and refined approach to the “world” as a whole and to problem solving in particular. Each one of these competencies has sub-competencies that define it more specifically. Use the “subs” as stepping stones to understanding the bigger picture of that behavior. SHRM is developing tools in connection with the Competency model that will help you assess yourself (and your department if you wish), develop a unique professional development plan, and connect to their resources to fill the needs you have. These tools will be available later in 2013. So, how can you develop these competencies as you gain experience in HR? First, recognize the importance of each and be prepared for an opportunity! Know which ones you have strength in and which ones need work. Read, study, use the resources available to you 24/7 through SHRM and other pipelines; choose webinars, seminars and classes to help develop those weaknesses. Don’t shy away from those situations that cause you “pain.” Ask an experienced leader for input; consult your peers; use your network of colleagues for help. Knowledge and learned opinions will help you overcome your own feelings of inadequacy and allow you to see things from a different perspective.
Get Certified!
Become certified in HR; go back to school; develop a business case to convince your business leaders of the need for you to continually learn and grow in a field that is constantly changing – law by law and court case by court case. Attend a conference, join a chapter, become engaged in an HR or business project you know nothing about. Use what you do know to fortify what you don’t know! Your interest in learning and your willingness to step outside of your comfort zone will serve you well as you grow in HR. Above all, acknowledge that the competencies put into this model are complex and developmental. They cannot be learned quickly; your approach to them will develop as you grow in your career in HR. As you become more strategic, so will your solutions to issues. Think of the future; think of the impact of your decisions on the business as a whole. Know that you are in the most critical field affecting your business. As your company moves into a global marketplace, your employees are your company’s “competitive edge”. Your increasing competence in business decision making “through your HR lens” will make for a stronger employment brand, a more successful organization and a very successful HR career!
Dorothy Knapp, SPHR SHRM Field Services Director for the State of Mississippi dorothy.knapp@shrm.org www.shrm.org www.HRProfessionalsMagazine.com
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II V E L IT T
The Supervisor Liability Rule E11111111111111111111F By Mary C. Hamm
The Supreme Court recently decided Vance v. Ball State University, a case in which the Court resolved a dispute among the federal courts of appeal and determined that a “supervisor” is an individual with the authority to take tangible employment actions, such as hire, discipline, and terminate other employees. The Vance decision is particularly important because a supervisor’s harassing conduct can subject the employer to vicarious liability. According to the Court, the decision provides a clear, straightforward standard for judges and juries to follow. In another pro-employer decision, University of Tex. Southwestern Med. Ctr. v. Nassar, the Supreme Court held that an employee alleging retaliation must show that the unlawful retaliation would not have occurred in the absence of the wrongful action of the employer. We provide summaries of the main issues in each of these cases below. • Vance v. Ball State Univ., 133 S. Ct. 2434 (2013).
AT ISSUE: Supervisor Liability Rule and Title VII of the Civil Rights Act of 1964
Maetta Vance was a full-time assistant caterer for University Dining Services at Ball State University. Vance claimed that three “supervisors” in her workplace created a hostile work environment for her because of her race. Vance alleged that she was shouted at, physically hit, threatened, and called racially offensive names. Ball State repri-
manded the individuals accused of harassment. Vance also claimed that although she had been promoted, her assignments were menial as a result of her complaining about this offensive conduct. Vance brought an action against Ball State asserting violations of Title VII based on a hostile work environment and retaliation for her complaints about racial harassment.
The Seventh Circuit Decision on the Definition of a Supervisor
The Seventh Circuit held that the “supervisor” who allegedly hit her and called her racially offensive names was not deemed a “supervisor” for purposes of vicarious liability under Title VII because that person did not have the authority to take formal employment action against Vance. Under Title VII, if the victim’s supervisor engages in conduct that creates a hostile work environment, an employer is vicariously liable for that harassment (the “supervisor liability rule”). If the harasser was the victim’s co-employee, however, the victim must show negligence on the part of the employer. In Vance, the Seventh Circuit held that actionable harassment by a person whom the employer deemed a “supervisor” and who had the authority to direct and oversee the victim’s daily work could not give rise to vicarious liability because the harasser did not also have the power to hire or fire her. Therefore, the Seventh Circuit evaluated the harassing conduct under the co-worker analysis.
The Supreme Court Defines a “Supervisor”
The Supreme Court has granted certiorari to resolve a split among the federal courts of appeal on the issue of whether an agent of an employer must be able to, among other things, hire and fire the victim of harassment to be deemed a “supervisor” for purposes of vicarious liability for harassment. The issue was presented to the Supreme Court as whether the supervisor liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee the victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” the victim. Rejecting the guidance authored by the EEOC on this issue as “vague,” and relying on its own precedent, the Supreme Court held that a supervisor is an employee with the authority to make “tangible employment decisions.” To adopt a different definition, which would include employees who could direct a co-worker’s labor to “some ill-defined degree,” would “frustrate judges and confound jurors.” Instead of requiring lower courts to sift through various factual situations in each case to determine whether one employee could control another employee’s work, the Supreme Court chose to implement an “easily workable” standard. Although the dissent called this decision a shift in a “decidedly employer-friendly direction,” employers should nonetheless remain vigilant about workplace harassment and continue to enforce their anti-harassment policies with respect to all employees.
Mary C. Hamm Attorney Burch, Porter, & Johnson, PLLC mhamm@BPJLAW.com www.BPJLAW.com 20
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PLAY
or
Pay
By H. Larry Fortenberry and William M. McNamara
On July 2, 2013 the Department of the Treasury and the White House used their blogs to announce that the employer reporting requirements, and the employer shared responsibility/play or pay penalty, are being delayed until 2015. The Treasury said that it will provide a formal announcement and additional details next week.
Background The employer shared responsibility/play or pay requirement provides that employers with 50 or more full-time or full-time equivalent employees must offer affordable, minimum value coverage to most full-time (30+ hours/week) employees or pay a penalty. That requirement was scheduled to take effect Jan. 1, 2014, although employers that met transition requirements could delay compliance until the start of the 2014 plan year. In addition, extensive reporting was expected to be required regarding the coverage offered to employees. The blogs state that (1) the reporting requirements will be provided later this summer; (2) reporting will not be required until 2015; and (3) since it is not possible to assess or enforce employer penalties without reporting, the play or pay mandate also will be delayed until 2015.
What’s Been Delayed The play or pay provision requires employers with 50 or more employees to do the following to avoid penalties: 1) Offer minimum essential coverage to 95 percent of full-time employees 2) Offer minimum value (60 percent) coverage to full-time employees
HEALTH
Care
Employers also must meet these PPACA requirements:
Reform
1) Reporting and payment of the PCORI fee by July 31, 2013 for plans that ended Oct. 1, 2012 through Dec. 31, 2012 2) Timely distribution of any MLR rebates the plan may receive 3) Providing a Summary of Benefits and Coverage (SBC) as part of open enrollment 4) Distributing the DOL notice regarding the exchange by Oct. 1, 2013 5) Reporting health care costs on the employee’s W-2 (the exemption for employers that issued fewer than 250 W-2s in the prior year or that contribute to a multiple employer plan will continue for the 2013 W-2) 6) Paying the transitional reinsurance fee, due in January 2015
What’s Next The government stated in the delay announcements that the exchanges are still expected to begin open enrollment on Oct. 1, 2013. It is unclear at this point how the delay of the play or pay requirement will affect determination of employee eligibility for subsidies. Presumably the official guidance that Treasury has promised to provide next week will address this issue.
3) Offer affordable (less than 9.5 percent of income) coverage to full-time employees 4) Consider employees who average 30 or more hours per week full-time for purposes of their health plan Count employees’ hours to determine whether they average 30 or more hours per week.
What’s Still Required The delay in the play or pay requirement does not affect the insurance market reforms. This means that these requirements are still scheduled to go into effect as of the start of the 2014 plan year (with penalties of up to $100 per person per day for non-compliance). These requirements apply to all plans except as noted: 1) Waiting periods cannot be more than 90 days from the date the employee becomes eligible
The White House blog is here: We’re Listening to Businesses about the Health Care Law | The White House The Treasury blog is here: Continuing to Implement the ACA in a Careful, Thoughtful Manner It reflects Executive Planning Group’s understanding of the available guidance at the current time and is subject to change. It is not intended to provide legal advice. You should not act on this information without consulting legal counsel or other knowledgeable advisors.
2) All pre-existing condition limitations must be removed 3) The out-of-pocket maximum cannot exceed $6,350 for individual and $12,700 for family coverage 4) Essential health benefits may not have annual dollar limits 5) Grandfathered plans must cover dependent children to age 26 even if the child has access to his/her own employer-provided coverage
H. Larry Fortenberry, CPA, CLU, ChFC, Principal Executive Planning Group, PA larry@epgbenefits.com www.epgbenefits.com
6) The new wellness program requirements 7) For small insured plans, whether in or outside the exchange/marketplace, coverage must include the essential health benefits, at the bronze, silver, gold or platinum level, with a deductible of not more than $2,000 for individual and $4,000 for family coverage 8) For small insured plans, whether in or outside the exchange/marketplace, modified community rating (rating classes are limited to age, tobacco use, family size and geographic area), guaranteed issue and guaranteed renewal (with some limitations) will apply
William M. McNamara, CLU, ChFC, RHU, REBC, Principal Executive Planning Group, P.A. will@epgbenefits.com www.epg.com www.HRProfessionalsMagazine.com
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F
L
SA
to ensure that exempt employees’ actual job duties continue to satisfy the administrative exemption’s requirements. Whatever the cause, classification errors can be particularly costly for employers, as the error often affects a host of employees having similar job titles and therefore lends itself to class treatment of the claim.
Exemptions Under the FLSA Each employee is subject to the FLSA’s minimum wage and overtime provisions unless the employer can demonstrate that the employee is exempt from the FLSA. There are five primary exemptions commonly referred to as the “white-collar” exemptions: (1) executive; (2) administrative; (3) outside sales; (4) professional; and (5) computer professional. An employer must pay employees a salary of at least $455 per week ($23,660 per year) to qualify for an exemption and meet each of the criteria for the applicable job duties test Although each exemption presents unique challenges, this article focuses on common mistakes and issues arising from the administrative exemption, which is the most litigated of the white collar exemptions.
It’s Not Just an
Administrative Detail:
Misclassification Issues Under the Administrative Exemption By Paul E. Prather and R. Alex Boals
Employers have seen a dramatic rise in wage and hour litigation in recent years, with plaintiffs targeting a variety of pay practices such as unpaid meal breaks, on-call time, and off-the-clock work. Perhaps no wage and hour practice has been targeted by plaintiffs more frequently or with more success than the misclassification of employees under the administrative exemption of the Fair Labor Standards Act (FLSA). There are several reasons for the prevalence of misclassification claims involving the administrative exemption. Some employers confer exempt status on employees as a mark of prestige, without making any effort to engage in the proper analysis. Others engage in only a cursory analysis based on inaccurate job descriptions or generalized notions of the employee’s duties without engaging in the in-depth, fact-specific analysis of the employee’s actual day-today activities, which is necessary to make the correct determination. Compounding the problem, employers often fail to reassess their exemption classifications at regular intervals 22
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The Administrative Exemption The administrative exemption requires that an employee meet two duty-related requirements: (1) his or her primary duty must be office work directly related to management or general business operations of the employer or the employer's customers; and (2) the employee must exercise discretion and independent judgment on matters of significance. The first requirement deals with the nature of the work performed. To qualify for the administrative exemption, the employee must perform work directly related to assisting with the running or servicing of the business as distinguished from working on a manufacturing production line. Similarly, work that is directly related to selling a product in a retail or service establishment does not qualify for the exemption. In other words, the employee must work in a “back office” type function. Positions that
often qualify as related to management or general business operations include: tax, finance, accounting, budgeting, auditing, insurance, quality control, purchasing, procurement, advertising, marketing, research, safety and health, personnel management, human resources, employee benefits, labor relations, public relations, government relations, computer networks, internet and database administration, legal and regulatory compliance and similar activities. Some employers oversimplify this analysis by using a basic production/staff dichotomy – namely, if the employee in question works in an office rather than on the production or sales floor, that employee must be administratively exempt. This type of analysis often leads to misclassification problems. Just because an employee works off the floor in an environment typically considered to be “white collar” does not mean he or she is exempt. Employers must look at the actual job duties performed by their employees to see if the duties fit within the exemption. Does the employee help the company make the goods or provide the services that the company sells? If so, the employee is not administratively exempt. By contrast, if the employee helps with the underlying business operations of the company, such as developing and implementing human resources policies or ensuring compliance with safety and industrial regulations, then the employee may be exempt. The second requirement under the administrative exemption addresses the employee’s decision-making authority. It requires that the employee exercise discretion and independent judgment with respect to matters of significance. The term “matters of significance” refers to the level of importance or consequences of the work performed. Generally, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered. This implies that the employee has authority to make an independent choice. In conducting this analysis, it is important to distinguish “discretion and independent judgment” from the rote application of existing policies or practices. For example, an employee who merely applies his or her knowledge in following prescribed procedures or determining which procedure to follow is not exercising discretion and independent judgment within the meaning of the administrative exemption. Further, the exercise of discretion and independent judgment does not include clerical or secretarial work or performing mechanical, repetitive or recurrent work. The fact that an employee shows good judgment or is diligent and reliable is not enough to meet the exemption. The employee must make choices, or at least recommendations that are given considerable weight, on important issues. An employee who solicits bids for a new computer system, chooses between the bids, and binds the company to a contract for the installation of the new system, would likely satisfy the requirements of the administrative exemption. An employee who orders office supplies would not satisfy the exemption, as this is an everyday task of insufficient importance.
There are a number of factors to consider when determining whether an employee exercises independent judgment and discretion as to matters of significance. These include, but are not limited to: • authority to formulate, affect, interpret or implement management policies or operating practices; • carrying out major assignments in conducting operations of the business; • authority to commit the employer in matters of significant financial impact; • ability to waive or deviate from established policies and procedures without approval; • authority to negotiate and bind the company on significant matters; • providing consultation or expert advice to management; • involvement in planning long- or short-term business objectives; • investigating and resolving matters of significance on behalf of management; and • representing the company in handling complaints, arbitrating disputes or resolving grievances.
Recommendations for Employers The first step in deciding whether to classify a position as administratively exempt is to conduct a detailed analysis of the employee’s day-to-day duties. If the position appears to be related more to sales or production than to back office operations or if there is only a minimal amount of discretion and independent judgment being used, the safe approach is to classify the position as nonexempt. For positions you choose to classify as exempt, it is important to make sure the job description accurately reflects the duties, responsibilities, and functions of the position. Although the job description is not determinative of an employee’s exemption status, several cases have addressed the official job description in detail when the employee concedes the description is accurate. Consequently, if the description itself raises doubts about whether the employee performs exempt duties, there is a greater likelihood you will be found to have misclassified the employee. You also should periodically conduct follow-up audits of your exemption classifications and job descriptions, to ensure they still accurately reflect employees’ actual job duties. Finally, to bolster your exemption classifications, have your supervisors evaluate in performance reviews, to the extent appropriate, those activities and responsibilities that support the employee’s exempt status, such as the exercise of independent judgment and decision-making skills.
Paul E. Prather, Shareholder Memphis Office of Littler Mendelson pprather@littler.com www.littler.com
R. Alex Boals, Associate Memphis Office of Littler Mendelson aboals@littler.com www.littler.com www.HRProfessionalsMagazine.com
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The Latest on Immigration Reform Legislation By Greg Siskind
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he last several weeks have been busy for immigration reform legislation in the US Congress. In late June, the Senate passed a comprehensive reform bill by a wide margin (68-32) after Tennessee Senator Bob Corker brokered a compromise between Republicans and Democrats that involved creating an ambitious border security initiative. Aside from the border security measures, the Senate bill would legalize millions of undocumented workers, mandate the use of E-Verify for all employers, create new visa opportunities for highly skilled workers as well as a new guest worker program for low skilled workers and dramatically increase the number of green cards based on family and employer sponsorship. The House of Representatives has been more reticent, however. To date, the House Judiciary Committee has passed four piecemeal reform measures on border security, interior enforcement as well as skilled immigration. It has yet to address legalizing illegally present immigrants or establishing a guest worker program. There is a great deal of disagreement amongst House Republicans regarding the strategy for proceeding with immigration reform legislation and it is far from clear if an agreement can be reached. There is consensus, however, that nothing will happen until after the August recess. Finally, if the House Judiciary Committee cannot agree on a reform strategy, a bipartisan bill is waiting in the wings as a possible compromise between hardliners on the right and the Senate bill.
New Highly Skilled Worker Bill Within the HR community, many people are talking about the new highly skilled worker bill introduced by Congressman Darryl Issa which was passed by the House Judiciary Committee on the same day that the Senate passed its comprehensive reform bill. The Issa bill differs in many respects from the Senate bill. Here are some of the highlights:
› Eliminates the annual green card lottery and reallocates the 55,000
numbers from that program to the employment-based green card categories
› Creates new EB-6 and EB-7 green card categories for graduates of US advanced degree programs in the sciences, technology, engineering and mathematics fields. The 55,000 eliminated lottery green cards are allocated for these new categories.
› A new EB-8 category is created for alien entrepreneurs. 10,000 green
cards per year will be available for those intending to engage in a new commercial enterprise (including a limited partnership) in the US with respect to which the person has completed an investment agreement requiring an investment of at least $500,000 on the part of a venture capital fund whose investment advisor is a qualified venture capital entity or two or more qualified angel investors (of which at least one such investor is providing $100,000). The investment must benefit the US economy and during the 3-year period beginning on the date the visa is issued, crate full-time jobs for at least 5 us workers within the enterprise and raise not less than an additional $1,000,000 in capital investment or generate not less than $1,000,000 in revenue.
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› A second EB-8 green card category is created to offer a path to
permanent residency for E-2 nonimmigrant visa holders. E-2 visas are non-immigrant visas available to investors in businesses in the US who are from the several dozen countries with which the US has commercial investment treaties. The new category only covers the investors themselves and non employees of the business. One is eligible in this category if he or she is an E-2 nonimmigrant who has maintained status for at least 10 years, has benefited the US economy, and created full-time employment for not fewer than 5 US workers for a minimum of ten years.
› Adjustment of status applications based on EB-1, EB-2, EB-3, EB-4 may be filed even without a priority date being available for non-immigrants in the H-1B, L-1, O-1 and F-1 or M-1 Optional Practical Training categories. However, the underlying immigrant petition must have been approved.
› The EB-5 regional center immigrant investor program would be
permanently reauthorized, but significant new anti-fraud restrictions on regional center programs are imposed.
› Family green card numbers are increased by 25,000 per year over
the next decade before being cut substantially after that. The sibling category will be eliminated in 2024.
› Per country limits in the employment-based green card categories
are eliminated. This will move Indian and Chinese nationals forward by several years but could backlog everyone else.
› Physician
immigration will be made substantially easier. Also, 4,000 EB-3 green cards are set aside for nurses each year.
› The annual H-1B cap is raised from 65,000 to 155,000 and the special master’s cap is raised from 20,000 to 25,000.
› Prevailing wage requirements are added to the L-1 visa category
and the student visa optional practical training programs. However, employers may pay the actual wage paid to other workers at the company if more than 80% of the employees at the company are American workers.
› H-4 spouses will be entitled to work authorization. › Only employers with gross assets of at least $55,000 will be able to file H-1B petitions.
› DHS will establish a pre-certification process for employers who
file multiple petitions in the F, H, L, O, P and Q nonimmigrant categories and EB-1 outstanding researchers and professors, EB-1 multinational executives and managers, EB-2 advanced degree and exceptional ability professionals and EB-3 skilled workers, professionals and other workers green card categories. Such precertification shall allow employers to avoid repeatedly filing documents common to multiple petitions.
Less is known about the approach the House will take on lesser skilled workers. Negotiations on a proposed guest worker bill are ongoing. However, the bill is likely to be far less friendly to organized labor than the Senate bill and will likely be larger in terms of numbers of visas available and also less restrictive when it comes to required wages and other working conditions.
Greg Siskind Founding Shareholder Siskind Susser – Immigration Lawyers gsiskind@visalaw.com www.visalaw.com
MAKING HEALTH CARE REFORM WORK FOR YOUR BUSINESS. Our health care reform tools were developed to help you prepare now for the changes ahead. Using your data and our proprietary financial models, we provide you with a thorough examination of the impact of health reform on your business and recommend next steps for creating or modifying your health plan strategy. Contact us today to learn more about our health care reform tools.
employee benefits i compliance i labor management Little Rock 501-664-7705 Jonesboro 870-972-5281 Rogers 479-271-0725 www.bxsi.com BancorpSouth Insurance Services Inc. is a wholly owned subsidiary of BancorpSouth Bank. Insurance products are • Not a deposit • Not FDIC insured • Not insured by any federal government agency • Not guaranteed by the bank • May go down in value. Services provided by BancorpSouth Insurance Services, Inc. are supplemental to the insurance carrier and your legal counsel.
HOW WILL
HEALTH CARE REFORM IMPACT YOUR ORGANIZATION? By Andy Impastato, Esq.
Since the passage of the Patient Protection and Affordable Care Act (PPACA) on March 23, 2010, how employers create and administer their health plans is dictated by a new set of rules. PPACA or "health care reform" will take years to become fully effective and requires creation of many new regulations. As health care reform continues to develop, employers are asking themselves, “What are my responsibilities and what are the financial and administrative impacts on my business?” Employers must confirm that they have successfully implemented all existing requirements. Employers must also begin preparing for future requirements ensuring their plans remain legally compliant, financially viable and attractive to employees.
RECENTLY EFFECTIVE REQUIREMENTS • FSAs – Effective January 1, 2013, health flexible spending accounts offered under cafeteria plans will be capped at $2,500 per year. Plan documents must be amended to reflect this cap. • W-2 Reporting – Effective with 2012 W-2 forms distributed in January 2013, employers must report the aggregate cost of applicable employersponsored coverage. This requirement is applicable to employers that filed 250 or more forms in the preceding calendar year. Reporting is for informational purposes and is meant to provide useful and comparable consumer information to employees on the cost of their health care coverage. The cost is reported in box 12 using code DD. • Additional Medicare Payroll Tax – Effective for tax years beginning after December 31, 2012, employers must withhold an additional 0.9 % from the employee’s wages over $200,000 for single taxpayers and $250,000 for married couples filing jointly. • Increase in Medical Expense Deduction Threshold – Effective for tax years beginning on or after December 31, 2012, the threshold for the itemized deduction of unreimbursed medical expenses is increased to 10% (from 7.5% of adjusted gross income). Through transitional relief, the increase is waived for taxable years beginning after December 31, 2012 and ending before January 1, 2017, if the taxpayer or the taxpayer’s spouse attained age 65 before the end of the year (2012). • Elimination of Part D Subsidy – Effective for tax years beginning after December 31, 2012, the Retiree Drug Subsidy (RDS) paid to employer plan sponsors becomes taxable. • Patient Centered Outcomes Research Fee – This fee is effective for plan years ending September 30, 2012, and will be used for clinical research. For self-funded group plans, the employer must report and pay the fee. The fee is $1 per member per year for the first year and $2 26
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per member per year thereafter. The fee is reported on IRS form 720. The fee and form will be due July 31st for all plan years ending in the preceding calendar year. For example, the fee is due by July 31, 2013 for calendar year plans. The insurance carrier will report and pay the fee for fully-insured group plans but the carrier will simply pass the fee onto plans as an increase in premium. The fee is set to end in 2019.
UPCOMING REQUIREMENTS • Exchange Notice – Employers, through an amendment to the Fair Labor Standards Act, must provide all new hires and current employees (full-time and part-time) with a written notice about the Exchange (now called Marketplace). Model notices are available. For employers who offer (or will offer) coverage, the notice must also contain information regarding minimum value and affordability and the consequences of dropping employer-sponsored coverage. This provision was originally effective March 1, 2013 but has since been extended to October 1, 2013. • Employer Mandate – This provision will require applicable large employers to provide affordable minimum essential coverage to full-time employees and their dependents or potentially pay a penalty. A large employer is an employer that employed an average of at least 50 full-time employees on business days during the preceding calendar year. For purposes of determining whether an employer is a large employer, they must include not only full-time employees but also a full-time equivalent for employees who work part-time. A full-time employee is as an employee who works 30 or more hours per week. There is a special rule for seasonal employees and there are safe harbor methods to determine full-time status. Shared Responsibility: If a large employer does not offer any coverage, a penalty is triggered when a full-time employee receives a premium subsidy and enrolls in a product through a State Exchange. The penalty is $2,000 per each full-time employee minus the first 30. Large employers who do not offer affordable minimum essential coverage may also be penalized. The penalty is $3,000 per each full-time employee who receives a premium subsidy and enrolls in a product on a State Exchange. “Affordability” is based on an employee’s household income. Employers may use an employee’s W-2 wages to determine household income. Employers may also use rate of pay or federal poverty level safe harbors. “Minimum value” is based on an employer’s portion of total allowed costs under the plan. Employers will have the option of using a government-provided calculator or checklist or obtaining an actuarial certification to prove minimum value. In order to be eligible for a premium subsidy, an employee must be lawfully present in the United States, have an income between 100% and 400% of the Federal Poverty Level (FPL) and cannot be eligible for Medicare, Medicaid, CHIP, certain veteran’s coverage or affordable minimum essential employer-sponsored coverage. This provision was originally set to become effective on January 1, 2014. However, on July 2, 2013, the Internal Revenue Service (“IRS”) announced a delay of this requirement. IRS is providing transition relief in 2014 for the employer shared responsibility provision and its corresponding reporting requirements. For more information, please see IRS Notice 2013-45. • Guaranteed Availability – This provision will require insurance carriers to accept every employer in that state that applies for coverage. However, carriers will generally be permitted to impose minimum employer contribution and participation requirements to the extent they are consistent with applicable state law. Employers will also be permitted to restrict enrollment by using open and special enrollment periods. Network capacity may also be an exception.
• Guaranteed Renewability – This provision will require insurance carriers to renew or continue coverage at the option of the employer. The only exceptions are for nonpayment of premiums, fraud or violation of contribution or participation requirements. • Rating Restrictions – This provision will require insurance carriers providing coverage to non-grandfathered small group plans to limit the ways it can rate a particular group. Currently, rates can vary for several factors (e.g., gender, health status, claims history, UW, group size and industry). In 2014, carriers will only be able to rate based on coverage category (single or family), geography, age (but only 3:1) and tobacco use (but only 1.5:1). • Pre-Existing Condition Exclusions – This provision will prohibit insurance carriers and employers from imposing pre-existing condition exclusions on all plan participants (currently prohibited from children under age 19). This prohibition will eventually replace the Health Insurance Protection and Portability Act’s (HIPAA) existing provisions and make the need to track look back periods, limitation periods and creditable coverage periods obsolete. • Essential Health Benefits – This provision will require insurance carriers and employers sponsoring non-grandfathered small group plans to cover essential health benefits. The Department of Health and Human Services has provided ten general categories but individual states have been given a lot of flexibility to define the specific benefits. Products will be labeled based on their respective actuarial value (e.g., Bronze, Silver, etc.). There will also be catastrophic plans available for young adults who cannot afford coverage. • Annual Limits – This provision will prohibit (currently restricted) insurance carriers and employers from imposing annual limits on essential health benefits. • Waiting Periods – This provision will prohibit insurance carriers and employers from imposing waiting or probationary periods in excess of 90 days. “Days” are defined as calendar days, not business days. Also, it is 90 days exactly. Initial enrollment dates of first of the month following 90 days will not be permitted.
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• Cost-Sharing Limits – This provision will require insurance carriers and employers sponsoring non-grandfathered plans to limit cost-sharing. Out-of-pocket amounts will not be able to exceed high deductible health plan (HDHP) limits ($6, 350 for self-only coverage and $12,700 for family coverage). Also, all cost-sharing (co-pays included) with the exception of premiums, balance billing and non-covered services must accrue towards the out-of-pocket amount. Finally, deductible amounts for small non-grandfathered groups will be capped at $2,000 for single coverage and $4,000 for family coverage.
*All programs have been submitted for HRCI and CLE Credits
• Clinical Trials – This provision prohibits non-grandfathered group plans from denying participation in a clinical trial, denying or limiting coverage of routine patient costs for items and services furnished in connection with the trial or discriminate against the individual based on participation in the trial.
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• Increase in Permitted Wellness Incentives – This provision builds on HIPAA’s existing regulatory framework by increasing the maximum permissible employer reward from 20% to 30% (or up to 50% for programs designed to prevent or reduce tobacco use). • Reinsurance Program Fee – This fee is effective from 2014 through 2016 and is intended to stabilize premiums in the individual market both on and off the Exchanges. For self-funded group plans, the employer must report and pay the fee. The insurance carrier will report and pay the fee for fully-insured group plans but the carrier will simply pass the fee onto plans as an increase in premium. The fee is $63 per member per year.
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• Insurance Industry Fee – This fee is intended to pay for premium subsidies available through public Exchanges. The fee will be allocated proportionately across the industry according to market share. The fee does not apply to self-funded groups. The insurance carrier will report and pay the fee for fully-insured group plans but the carrier will simply pass the fee onto plans as an increase in premium. As for the amount, predictions are that it could be up approximately $109 per member per year. If you would like more information, contact the authors at healthcarereform@bxsi.com.
Andy Impastato Vice President | Client Compliance BancorpSouth Insurance Services andy.impastato@bxsi.com www.bxsi.com www.HRProfessionalsMagazine.com
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The “gut feel” approach usually leads to a personality related hiring process. This person is “just like me” or the “I like this person” responses without any time spent relating the talent to the job requirements. I have seen entire departments filled with manager clones. Unfortunately, the jobs required different skill traits to be considered an A or B team.
Five Tips
The “you know what I need” group uses a job or position title as the gauge for hiring talent. This fuzzy and unclear approach leads to errant assumptions being made and thus poor choices. When the hiring managers have no clear vision as to the true needs of the position – well, mistakes are made.
on Hiring Superior Performers By Voss W. Graham
A transformation is happening in the world of business today. Yes, I know the economy is acting like Dr. Jekyll and Mr. Hyde with little consistency of growth. Yet, another interesting tendency has been picking up speed and appears to be in the microscope of business success. This new focus is “How Do We Hire Superior Talent for Our Business?” The interesting issue from my point of view is executives have been talking about this topic for a long time. Yet, in most organizations there is a lack of execution regarding this objective. Why is there a lack of execution on hiring superior performers? There are five primary reasons why execution is missing in many organizations.
1
Use A Job or Position Benchmark This should be a no-brainer, yet it is consistently overlooked by many organizations. The main practices include a “job description” of activities for the job, a “gut feel” for a candidate’s ability, or the “You Know What the Person Needs to Know” syndrome. Each of these practices will lead to mistakes in the hiring process. The job descriptions are lists of tasks and activities usually with little information regarding traits needed for success or even a discussion of the outcomes expected for the position. 28
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The Key is the “specific” relationship to your job position. Beware of the organizations using an “in-house” benchmark or standard with their assessments. These are general rather than specific and often have no relationship to the job being filled other than the title of the position.
2
Take a quick test of your organization by creating a short survey form using the five points above and send it to the Human Resources team of a larger organization or the executive or management team of smaller organizations. The results are usually eye opening due to the diversity of responses of this simple list. What can you do to transform the quality of your talent? Here are five tips to help you create a systematic and proven process for hiring superior talent.
The problem with this method is that the EEOC is very clear about having the top performers information compared to the “average” employee in this position. And, there needs to be definitive trait differentials for this process to clear their standards. A method passing the examination of the EEOC is to allow the Job to Talk by using a specific Job Benchmark. This identifies the personal traits needed for a job to be successful with out any bias. Then the Job Benchmark can be compared to any candidate for the screening process or to narrow the group of possible candidates.
• Lack of Management Commitment to the Process • L ack of a Budget Allocations to Ensure the Hiring Process Works Properly • Lack of Accountability for Hiring “A” Players • Lack of Training for the Interviewing Managers to Know Who is Excellent • Lack of Timely Searches (Patience) to Find the Right Person for the Position There are several additional minor issues, which continue to create a mismatch between the talk about hiring and walking the trail leading to hiring superior performers. You can add your list of favorites for focus.
One precaution for the hiring team is important relative to benchmarking. In the past, a benchmarking process meant identifying your top performers in a position. Then identify their strengths and traits. A bottom group was identified next and the same process was used. A comparison between the top and bottom groups were used to identify differences. The top performers model was included in the hiring search.
Use Behavioral / Situational Questions Related to the Job Behavioral interviewing practices are the most common tool used in the hiring process and can be very useful for identifying top performers. While I recommend the use of behavioral and situational interviews in the hiring process, a series of issues have become more evident lately. The issues when using behavioral questions are simple. The first one is the lack of adequate training in the proper use of behavioral questioning with all the hiring managers in place within an organization. The truth is – most managers have “no clue” about how to use this powerful tool correctly. The second most common issue is the Internet supplying candidates with all the common types of behavioral questions used by organizations. If you don’t believe this is true, take a moment and Google “Behavioral Interview Questions.” The results will give you a new perspective as you read “how to answer these questions.” Even the leading universities have pages of answers to common behavioral interview questions. Finally, the agencies who are sending you candidates are also
In order to be in compliance with the Adverse Impact Ruling, any trait or term you use in the selection process MUST be using their 20% Rule. This means you need statistical data to support your traits or terms in the assessments you use and the selection process used for any major projects. This process looks at race, gender, veteran status, and age with a precise view of ALL categories are disclosed in your statistical data. The deviation cannot by greater than 20% or there will be problems with diversity issues – Adverse Impact.
Using assessments in the hiring and selection of superior performers is a key factor to your hiring success. Why? Assessments give you objective information about the candidate. The organizations that do not use this objective measure in the hiring process often “get someone else rather than the interviewed candidate.” Candidates are being trained to interview with great skill and flexibility – showing you their best performance - which is unsustainable.
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An example of this is a client used DISC reports for the hiring and selection of sales people, which was a good start, yet lacked some very important information – the passion to sell and get a return on what they do. They had a pattern or preferred behavioral model to use in the hiring. One person they hired was a perfect match for their profile – yet was a total disaster on the job. The problem with this person’s performance was directly related to her reward/culture motivation. She had NO internal drive to sell. Yet, she fit the one science profile perfectly. Another organization used a “quality of person” assessment, which is great for having a group of high quality people in your organization. Their system was missing the behavior needed plus the motivators or drive to perform the specific job. What I learned from this organization was even when everyone knew a person was failing at their job – they were thought of as “good people” and de-hiring was impossible for the managers. Research regarding the predictability of job performance is improved by the use of multiple science assessments. When you use one – say DISC – you will get a 62% accuracy on predicting success. Add another science – such as Workplace Motivators – and the accuracy of predictability increases to 76%. When you increase the number of “proven or validated” sciences to three or more – your accuracy of predictability increases to 92%. As you can see from the percentages of success, there is no perfect solution. However, progress is made with each additional science used in the selection process. My question to you is,“How Many Sciences are Used in Your Organization?”
Make certain your assessment provider shares with you the “adverse impact” studies and be sure to show them to your legal department or team. The fines are huge and retroactive in time.
Have “A” Players Involved in the Interview Process This last tip I picked up from a client who seemed to have an abundance of high performing talent on this large staff. The key thing he did was to make certain “A” Players interview the candidates. Now at first I was not sure about this tactic, then he explained why he did it. One of the problems with C players and some B players is their fear of having someone on their staff that is better than themselves. Thus, these players have a tendency to turn away “A Player” talent because they are viewed as a threat to the their job. This practice actually is directly responsible for increased payrolls and lower productivity results. “A” Players recognize the qualities of other high performers. They gravitate to other high performers and share their ideas at a higher level. “A Players” are not afraid of competition and actually want other high performers to work with them. Are you using “A Players” to interview your job candidates?
Get a White Paper to learn more about “Hiring Superior Performers under the Law” by sending me an email – voss@inneractiveconsulting.com - and request the white paper in the subject line.
Voss W. Graham Sr. Business Advisor | CEO InnerActive Consulting Group, Inc. voss@inneractiveconsulting.com www.inneractiveconsulting.com www.HRProfessionalsMagazine.com
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This is an especially important Tip if your organization does ANY GOVERNMENTAL CONTRACTS. Being totally aware of the importance of being compliant with the Adverse Impact Ruling by the EEOC and the OFCCP will save your company form large fines.
Use Multiple Science Assessments for Predictability
Regarding the use of assessments, one major mistake is the use of the single science assessments. An example is the use of DISC or Personality Tools. These tools are good at providing the “how” a person will do things, yet more is needed to predict performance.
uitin r
3
4
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One hiring manager we helped get the job related behavioral questions told me how impactful the targeted questions were for her. She interviewed a candidate who had been interviewed before. The candidate stated afterwards – “I don’t know where you got your new questions, but they were great. They made me think about the job and traits needed to be successful.” This was from the candidate being interviewed not the manager.
Use “Adverse Impact” validated Tools and Systems
e
You must be prepared to use behavioral interview questions specifically related to the job and different from the standard interview questions taught by most organizations. When you use specifically job-related questions you get real information about your candidate.
R
training the candidates on what to say and how to answer behavioral interview questions correctly – in order to get hired!
BOOK LOOK
No doubt, most HR professionals have read one or more of Daniel Goleman’s books discussing the virtues and importance of emotional intelligence redefining what it means to be “smart.” I have enjoyed Goleman’s books. However, I recently read The Other Kind of Smart, Simple Ways to Boost your Emotional Intelligence for Greater Personal Effeciveness and Success by Harvey Deutschendorf, and I now have a better understanding of how important having emotional intelligence really is to one’s career advancement. So many people with high IQs have failed in their careers due to having a low EQ – that is to say, having a simple lack of impulse control and the inability to think through potential consequences of what they are about to do. I bet you can think of a few yourselves. The real marker for high achievement and success turns out to be emotional intelligence. Success in business basically comes down to our ability to form effective relationships with others. Possessing emotional intelligence means being real, open, and honest regarding our feelings. Building solid relationships with others is as important for success in the workplace as it is in our personal lives according to Deutschendorf. Even in occupations that we consider being highly technical, such as engineering, those who get promoted are often those who demonstrate an ability to work well with others – a trait of emotional intelligence. The good news is that you can increase your EQ and Harvey Deutschendorf tells you how in this easy to read excellent book that is full of case studies, techniques, quizzes, and stories that help you to learn about emotional intelligence and how to boost yours.
The Other Kind of Smart by Harvey Deutschendorf Review by Cynthia Y. Thompson
I love how each chapter has quotes, personal stories, and practice techniques to help you learn each EQ strategy. There is even an
There’s a lot of noise in professional circles today about “EQ” or emotional intelligence and what it means. Many employers assess the “IQ” of potential employees searching for high potential candidates for executive
EQ quiz that you can take to find out where you are now on the EQ scale. My favorite chapter is the one on self-actualization. You know you’ve made it in life when you reach the peak of Maslow’s hierarchy of needs pyramid. “It is the ultimate of the human experience and unless we are actively striving for this we are selling ourselves short
positions. Numerous studies have been conducted
and settling for less than we can be.” You’ll have to read the book
for major corporations concluding that IQ is a major
to learn the technique on how to get there.
component for career success. However, we now know that IQ is a weak predictor for achievement, job performance and overall success, wealth and happiness. 30
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I am delighted to welcome Harvey as a regular contributor to HR Professionals Magazine this month. Be sure you read his excellent article in this issue on “The Three Levels of Empathy.”