February 2024 Digital Issue of HR Professionals Magazine by Cynthia Thompson

Volume 14 : Issue 2

www.HRProfessionalsMagazine.com

The Future

Meet the

of DEI

Texas SHRM

Board of Directors

Navigating

Workplace Politics

Karen Bennett Secretary | Treasurer

of SHRM Foundation Board

Cobra Help for

Small Business

Previews of

2024 SHRM Conferences

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Features 5 note from the editor

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

The Thompson HR Firm, LLC Art Direction

Park Avenue Design Marketing and Social Media Specialist

Julie Nagem Project Specialist

Liz Rogers Photographer

Charles B. Thompson Webmaster

Leo Dimilo

Contributing Writers Fredrick R. Baker Josh Bersin William Brown Amy Schabacker Dufrane Ashley Dugger Bill Gage Mary Leigh Pirtle Chuck Stinson

Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine.com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2024 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.

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6 Profile – Karen Bennett, 2024 Secretary/ Treasurer of the SHRM Foundation Board of Directors 14 Meet the Texas SHRM State Council

Talent Management and Recruiting 2 Is Your Background Screening Partner Missing the Human Element? 8 Navigating Workplace Politics 10 How HR Professionals Can Keep Their Employees Safe 12 The Future of DEI 16 Loud Quitting: How to Identify and Mitigate This Worrisome Workplace Trend 24 Shining a Light on Black History Month 36 Register for the HR Conference Cruise March 3-8 39 FMLA Management Made Easy

Employee Benefits 20 A Return to Prioritizing Retirement Benefits 21 McGriff More Insights

22 Highlights from the Greater Memphis Employee Benefits Council January Meeting 30 Cobra/Mini Cobra & Small Business – You Need Help! 31 The Benefits Group – We Do All the Work!

Employment Law 18 Tennessee Emerging Issues in Workers’ Comp Laws 19 2024 Tennessee Workers’ Compensation Handbook 15th Edition 27 The Strength of Experience – Rainey Kizer Reviere & Bell PLC 28 DOL Issues Final Rule Regarding Independent Contractor Classification 38 EEOC Update on the PUMP Act

Top Educational Programs for HR Professionals 3 Earn Your M.S. In Human Resource Management at WGU 9 SHRM Seminars 11 SafeHaven Security – Schedule Your Life-Saving Training Today

35 Online HRCI PHR | SPHR Certification Prep Class Begins February 19

SHRM Conferences Update 7 SHRM-Atlanta SOAHR 2024 April 17-18 23 Alabama SHRM State Conference in Perdido Bay May 13-15 26 ARSHRM Employment Law and Legislative Affairs Conference in Little Rock April 11-12 32 30th Annual TPMA Membership and Training Conference in Paris Landing State Park April 30 - May 3rd 33 2024 LA SHRM Conference in Lafayette April 18-19 34 2024 TNSHRM Conference in Memphis August 25-28 37 SHRM Talent in Las Vegas April 14-17 40 SHRM24 in Chicago June 23-26 March 2024 Issue Features Employment Law Updates Deadline to reserve space February 15

17 Earn Your Specialty Credential 25 Earn Your Workplace Wellness Organizational Certification 29 Rise Above with SHRM Certification

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a note from the editor

Hello HR Professionals! Our February issue features employee benefits and well-being. We are honored to have Karen Bennet on our February cover. Karen is Secretary/Treasurer of the SHRM Foundation Board of Directors. She is also executive vice president and chief people officer of Cox Enterprises based in Atlanta, Georgia. Read all about Karen and her volunteer service to SHRM and her exciting career progression on Page 5. We are excited about the upcoming SHRM conferences across the Southeast this spring! Be sure to check out the upcoming conferences in this issue. Remember that there are nice discounts available if you register early. We will be covering most of these conferences live. Look for us at the conferences – and watch our Facebook Live videos on Facebook and LinkedIn! ARSHRM ELLA Conference in Little Rock April 11-12 SHRM Talent Conference in Las Vegas April 14-17 SHRM-Atlanta SOAHR 2024 Conference April 17-18 2024 LA SHRM Conference in Lafayette April 18-19 30th Annual Tennessee Personnel Management Membership and Training Conference in Paris Landing State Park April 30 - May 3

I am honored to be the opening keynote speaker at the 30th Annual TPMA Membership and Training Conference April 30 - May 3. at Paris Landing State Park in Tennessee. The theme of the conference is “Legacy of Leadership: Honoring the Past, Shaping the Future.” See Page 32 for a brief description of the conference. The topic of my presentation will be “Designing your Leadership Legacy.” Please contact me if you would like me to speak at your conference. Would you like to get certified in 2024? We will begin our next Online HRCI PHR | SPHR Certification Exam Prep Class on February 19. I am so proud that our class has a 90% pass rate! You will receive personal instruction, and I will stay with you until you pass! The deadline to register is February 15. Please visit our website to register, www.hrprofessionalsmagazine.com. It is affordable and only lasts 8 weeks! You will also be featured in HR Professionals Magazine when you pass your exam. Watch your email for our complimentary webinars, which are pre-approved for SHRM and HRCI business credit. Our goal is to provide 3-4 webinars each month presented by our wonderful sponsors.

Get certified in 2024!

Alabama SHRM State Conference in Orange Beach May 13-15 2024 Annual SHRM Conference in Chicago June 23-25

cynthia@hrprosmagazine.com

www.HRProfessionalsMagazine.com

Karen on the cover

BENNETT

2024 Secretary Treasury/Treasurer SHRM Foundation Board of Directors

Karen Bennett is the executive vice president and chief people officer for Cox Enterprises, a private, family-owned company based in Atlanta, Georgia, with $23 billion in annual revenues. In her role, she leads the people solutions, corporate affairs, inclusion & diversity, HR technology services, total rewards, talent acquisition, and the brand, marketing and creative departments. Bennett brings more than 30 years of experience in leading teams that focus on maximizing talent potential and the entire employee experience while addressing the needs of the business. Before joining Cox Enterprises, Bennett was EVP and chief people officer for Cox Communications. There she developed and executed talent strategies to align with Cox’s operating principles and worked through the challenges of driving continual growth in the business. Prior to that role, Bennett was chief human resources officer for Cox Media Group. Before her time with Cox, Bennett was chief human resources officer for YP (formerly AT&T Ad Solutions). She is a cable veteran as well, having served as senior vice president of human resources for Turner Broadcasting System, Inc. for nearly 14 years. Bennett currently serves on the board of directors of the National Center for Civil and Human Rights, Society of Human Resources Management (SHRM) Foundation, the Human Resources Leadership Forum of Atlanta and the Metro Atlanta American Heart Association. She also serves on the Georgia State University HR Roundtable consortium. Bennett is a graduate of the Terry College of Business at the University of Georgia where she earned both her bachelor’s and executive MBA degrees. The Terry College recognized Bennett as a Distinguished Alumni in April 2023. She is also an ICF-certified executive coach. 

www.HRProfessionalsMagazine.com

Great content is in store for • Thought leadership to build and shape organizational culture • Mental wellness techniques for professionals and your teams • Practical guidance on AI for HR • Peer idea sharing on upskilling and employee development • Timely insights for talent planning and management • Workshops to help you advance inclusion

April 17-18

Atlanta Convention Center at AmericasMart

SOAHR.NET

Advance Registration Pricing Ends February 1

Navigating Workplace Politics – If Only There was a Map! By ASHLEY DUGGER, DBA, SHRM-CP

much as we may wish that politics only lived in our presence during election years, the reality of the workplace, any workplace, is that there are politics in play daily – resource allocation, relationship dynamics, power structures, competition and ego all play a part in contributing to politics at work, regardless of the size or type of organization. When we consider the various (and many) dynamics of our work teams, there are competing personalities, vastly different communication styles, goals and levels of work ethic. Add to that bundle of differences that everyone is being tasked with doing more with fewer resources, and office politics can easily shift from being in the background of our daily office lives to a strong undercurrent impacting our productivity, sense of employee satisfaction, engagement, creativity and retention. HR professionals play a dual role where we not only have to be comfortable navigating workplace politics ourselves but also supporting other employees and leaders as they all navigate the workplace political landscape themselves. Whether it is facilitating conflict-resolution conversations between employees, submitting a request for new technology and tools to support strategic HR work, or coaching leaders on communication and relationship building, politics at work is something we cannot ignore but should embrace and find ways to leverage differences and dynamics as a positive tool versus an enemy. While we may traditionally associate workplace politics with a negative connotation, when navigated correctly, politics at work can be an incredible asset in our favor. Everyone plays a different role in the social structure at their organization. We may have built clout based on our internal or external networks, whom we partner with on key projects, our official titles and positions in the org structure, past wins and successes, personal brand/ reputation, or how we formally and informally influence those around us. Once we better understand the political dynamics at our organizations, we can more successfully navigate those structures to build trust with stakeholders, ensure we are seen as credible activists in our roles, and better understand when to step up or step back in tricky situations. Navigating workplace politics is not about “winning” every battle; it is about utilizing the relationships and experiences around you for positive advancements in the workplace, avoiding unnecessary conflict or workplace drama, and strengthening trust and collaboration across stakeholders. If you’ve ever leveraged a workplace relationship with your boss, crossfunctional stakeholders or external clients to move the needle on a decision, project scope or budget allocation, you’ve positively used workplace politics! When politics become self-serving, toxic, one-sided, harassing or is leading to employee dissatisfaction or lack of engagement, this all falls into the negative side of navigating politics and should be avoided. Knowing with whom and in which situations to “step up or step back” comes with time and confidence. 8

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As we grow into our roles and build our networks, we naturally tend to become more comfortable standing up or pushing back more so than when we were brand new in our positions or working with new colleagues on a project for the first time. Feeling confident in your interactions with colleagues at all levels of your organization and showing a genuine interest in getting to know them outside of their work roles are critical pieces of starting to navigate the workplace political scene. You cannot expect to build a deep understanding of the workplace structures and dynamics, or build your own network of support and allies, without getting to know people as humans first and employees second. MindTools has a great article on “7 Ways to Use Office Politics Positively” that includes tips such as leveraging your network, focusing on selfawareness and people skills, and helping to neutralize any negative politics if you see them occurring. Navigating workplace politics is part gut instinct, part lessons learned from prior experiences, and part observing the dynamics as others around you interact with one another. You must judge each situation independently to know when to push a bit harder and when to let it go. Is the short-term discomfort worth the long-term gain? Sometimes it is, and sometimes it may be better to let that situation slide because there are more important decisions or things at stake. Will your decision, if you step up or back, impact more than yourself; will it impact your team, other stakeholder teams or customers? At times you might push harder on a situation where maybe the best choice would have been to step back. Watch the stakeholders around you and learn who tends to back up whom, who usually agrees or disagrees on different decisions, or whose teams are reliant on one another. Observation and reflection are some of the best tools for figuring out workplace politics. Remaining professional and respectful, even when stepping up, should always be at the forefront. Just as you are observing others as they interact with one another, your colleagues are also watching to see if you engage in a method that is transparent, ethical, respectful and willing to compromise when needed. Especially when dealing with toxic coworkers or unhealthy organizational culture, how you set the tone as an HR professional for navigating workplace politics can have a lasting impression and influence those around you to engage in healthier ways as well!

Ashley Dugger, DBA, SHRM-CP

Associate Dean and Director-HR Management Programs Western Governors University ashley.dugger@wgu.edu wgu.edu

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CPR-230688

How HR Professionals

Can Keep Their Employees Safe By BILL GAGE

Thoughts from a former U.S. Secret Service Agent on how HR Professionals Can Keep Their Employees Safe

Mumbai, India November 2010 In late October 2010, I traveled to Mumbai for a Presidential Trip for then-President Barrack Obama and First Lady Michelle Obama. I was part of the Secret Service advance team responsible for their safety and security. The trip was fraught with danger as the U.S. was conducting drone strikes around the world on various terror groups and anti-American sentiment in the region was high. Also, the Indian government considered themselves a superpower and wanted to control every aspect of the trip, from logistics to security. President Obama and the First Lady arrived on November 6, 2010. There were a few logistical issues during the arrival and drive to the hotel, but we got them into the hotel safely. The next day was going to be a long one, probably 16-18 hours. I was going over the logistics and security preparations and getting ready for bed. At approximately midnight I received an urgent phone call and was ordered to immediately report to the U.S. Secret Service command post. There I met with other Agents, the Military Aide, and intelligence personnel. I was briefed about a very serious threat to the President’s life. How did the U.S. Secret Service keep the President safe? Are there lessons from this Presidential trip that Human Resources Professionals can use to keep their people safe? I believe there are three:

Have a Plan The Secret Service considers every possible contingency when planning Presidential trips. Natural disasters, political unrest, assassinations, and building collapses are just a few of the events the Service considers during the planning stages of Presidential trips. Every scenario is planned out and every contingency is planned out and table topped. 10

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When the threat was presented, did we cancel the trip? Load up the President on Air Force One and return to the United States? Of course not. This would have caused a major international incident with serious geo-political considerations. The U.S. Secret Service had planned for this type of incident and was ready. A few minor tweaks to the already robust security plan were made and the visit went on without any security breaches or serious incidents. Without a plan the U.S. Secret Service would not have been able to accomplish the mission of allowing the President to safely conduct foreign relations with a major world power. I once conducted a security exercise, focusing on Continuity of Operations or COOP planning, with a large multinational firm. This company had millions in government contracts. During the exercise, representatives from every department had a seat at the table. It was apparent during the first tabletop scenario that the company had no plan in place for security issues. The tabletop soon erupted into arguments back and forth over each department’s responsibilities. Unfortunately, a lot of the discussions defaulted to HR to decide. Don’t let your company be caught without a plan.

Don’t Ignore the Warning Signs Investigations after active shooter events or serious security breaches at companies, usually reveal that there were numerous warning signs displayed by the suspects. Some of these warning signs often include paranoia, delusions, outburst of anger, fascinations with active shooter events, threats (both verbal and physical), or bringing firearms into the workplace. Businesses often ignore these warning signs and the unthinkable happens. Employees sometimes report their concerns about a fellow employee to their managers or HR and the warning signs are still ignored. Just because an employee has an outburst of anger in the workplace does not mean they will become an active shooter. But any reports of unusual behavior should be fully investigated by the company. Every threat against the President is treated by the U.S. Secret Service with the ultimate seriousness. All threats are fully investigated and evaluated. Businesses should treat all reports of worrisome or concerning behavior from employees with the same seriousness. The warning signs should never be ignored.

world were originally developed by the U.S. Secret Service. The proper approach to working rope lines, speeches, motorcades and Air Force One, were all developed by the U.S. Secret Service and are used worldwide. But being the best in the world sometimes is not enough. The Secret Service also uses partners. I had several personnel from the U.S. Army Special Forces assigned to me in India during the President’s visit to Mumbai. These Special Forces personnel spoke the local language, knew the local customs, and had trained with members of India’s military and police forces. Plus, they were experts in their field. Additionally, the U.S. Army Special Forces could summon military assets if needed in the event of an emergency. When told of the threat to the President’s life, I immediately reached out to my partners from the U.S. Army Special Forces. They assisted me in making the adjustments we needed to keep the President and First Lady safe. Some companies do not have dedicated, trained, security personnel. Security issues, employee threats, and active shooter compliance training sometimes default to HR. As mentioned above, a lot of issues were directed to Human Resources during the tabletop COOP exercise with the large multinational firm. Relying on a YouTube video to train your employees is not enough. Relying on local law enforcement to evaluate potential violence in the workplace is also not enough. In this day and time, everyone needs to find a partner with the right training and resources to assist you in training your employees or evaluating potential threats. SafeHaven Security Group has consultants with extensive experience in examining threats in the workplace, assessing vulnerability, and evaluating security plans. We can partner with your business to ensure your employees thrive in a safe workplace. Why not apply the same methods the U.S. Secret Service uses to keep the President safe to your own people? We would love to help you do just that!

Find a Partner The U.S. Secret Service is the most respected and competent protection agency in the world. All protection protocols and procedures used by other countries in the

Bill Gage

U.S. Secret Service (Ret) SafeHaven Security Group www.safehavensecuritygroup.com

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The Future of DEI By JOSH BERSIN

For

anyone working in Diversity, Equity, and Inclusion (DEI), it is safe to say that it has been a tough start to 2024. For a while now, there has been a concerted attack on DEI programs, with ‘anti-woke’ commentators and public figures querying their value, worth, and even existence.

Those attacks increased enormously in 2024 with the resignation of Claudine Gay from Harvard. While the call to resign was supposedly related to plagiarism, one can’t help but feel that her position as a leading DEI advocate also fuelled the demand. It means that DEI has come under increased and sustained fire, and despite the many benefits provided by a good DEO program – to both employer and employee – there is a feeling that 2024 could be the year that DEI fades away. How likely is this to happen, and what would the impact be if it did?

There’s a perception that DEI programs are ‘woke’ and prioritize ethnicity and gender over achievement and ability. In August of 2023, an attorney filed (and won) a lawsuit against a VC firm that gives grants to black entrepreneurs. Similar suits have been filed against firms with diversity hiring programs, scholarships, and internships. The resignation of Claudine Gay has reinvigorated the commentary around DEI programs. Josh Hammer, a conservative talk show host and writer, wrote on the social media platform X that taking down Dr. Gay was a “huge scalp” in the “fight for civilizational sanity. “ It was described as “a crushing loss to DEI, wokeism, antisemitism & university elitism,” by conservative commentator Liz Wheeler, and the “beginning of the end for DEI in America’s institutions,” by the conservative activist Christopher Rufo, who had helped publicize the plagiarism allegations against Claudine Gay.

Anyone living and working in the US (or most other countries worldwide) over the past few years will have likely heard of the culture wars. Brought on by declining trust in institutions, growing inequalities, and the proliferation of technology, the culture wars involve opposing social groups seeking to impose their ideologies.

When something is as consistently criticized and devalued as DEI programs have been, a toll is inevitably taken. That is certainly indicated by the latest hiring data for DEI professionals. According to data from labor market analytics company Lightcast, hiring for DEI positions in the US is down by 48% year over year, in the middle of an economic boom. Clearly, DEI investments are under attack.

All manner of things has been caught up in this, from what’s on the curriculum at schools to taking a knee at sporting events and from definitions of what constitutes a woman to allegations of tokenism in the workplace. DEI has played an unwitting but central part in the culture wars.

And when you look at companies doing layoffs, DEI jobs are frequently high on the list of jobs to cut. I even heard a recent podcast with four well-known venture capitalists – three agreed that “doing away with DEI programs” was top on their list.

DEI and the culture wars

www.HRProfessionalsMagazine.com

The value of DEI Given this criticism of DEI programs, one could be forgiven for thinking such programs carry no value to HR and the wider business. Yet many companies invest in DEI programs, and the value is high in almost every case I come across. Our Elevating Equity research in 2022 and 2023 found companies focus on diversity and inclusion for very pragmatic reasons, including:

When we looked at pay equity in detail last year, we found that only 5% of companies have embarked on a strategic equity analysis.

• An inclusive hiring strategy broadens and deepens the recruiting pool. • An inclusive leadership strategy drives a deeper leadership pipeline. • An inclusive management approach helps attract diverse customers and markets. • An inclusive board drives growth and market leadership. (proven statistically) • An inclusive supply chain program improves sustainability of the supply chain. • An inclusive culture creates growth, retention, and engagement in the employee base. Organizations are not prioritizing DEI programs because they are woken or as a box-ticking exercise. They do so because DEI provides real and tangible business benefits. Workday, one of the most admired HR technology companies in the market, has pioneered DEI internally and through its products, and the company has outgrown and outperformed its competitors for years. Their product VIBE, an analytics system designed for this purpose, shows intersectionality, and helps companies set targets and find inequities in leadership, hiring, pay, and career development. But some law firms have posited that these types of programs are illegal – is there a case to answer?

DEI legality In response, it’s important to consider the massive and complex pay equity problem. Until the last few years, most companies had no problem paying people in very idiosyncratic ways. The Josh Bersin Company looked at leadership, succession, and pay programs worldwide last year and found that there are massive variations in pay with no clear statistical correlation in most larger companies.

The future of DEI DEI is undoubtedly a complex issue, and many organizations will be uncertain about the best course of action. Despite the current wave of criticism, there has been vast investment in DEI strategy over recent years, and business leaders are highly unlikely to let that fade away. Despite the anti-woke movement, political debates, and the inability of Harvard, Penn, and other universities to speak clearly on these topics, businesses will not stop. Affirmative Action was not created to discriminate; it was designed to reduce discrimination. At the University of California, where Affirmative Action was halted in 1995, studies found that earnings among African American STEM graduates decreased significantly. So, one could argue that they were making a real difference. DEI will not die – it is far too important for that to happen. However, it’s time to do away with the “DEI police” in HR and focus on embedding the principles of inclusion, fair pay, and openminded discussions across all business units. Senior leaders must take ownership of this issue. In the early 2000s, companies hired Chief Digital Officers to drive digital technology implementation, ideas, and strategies. As digital tools became commonplace, the role went away. We may be entering a period where the Chief Diversity Officer has a new role: putting the company on a track to embrace inclusion and diversity in every business area and spending less time pushing the agenda from a central group. In every interview we conduct on this topic, we see overwhelming positive stories from various DEI strategies. Each successful company frames DEI as a business rather than an HR strategy. While HR-centric DEI investments are shrinking, it’s more like them migrating into the business where they belong.

This problem is called “pay equity,” and when you look at pay vs. gender, age, race, nationality, and other non-performance factors, most companies find problems. Is this a “DEI” program? When we looked at pay equity in detail last year, we found that only 5% of companies have embarked on a strategic equity analysis. While most companies do their best to keep pay consistent with performance, these studies always find problems. Would it be considered illegal to analyze pay by race or nationality and then fix the disparities?

Josh Bersin is the founder and CEO of The Josh Bersin Company, the world’s most trusted human capital advisory firm. www.HRProfessionalsMagazine.com

MEET THE TEXAS SHRM

STATE COUNCIL

TEXAS SHRM EXECUTIVE COMMITTEE

State Director

State Director - Elect

Secretary/Treasurer

Assistant State Director Core Leadership

Assistant State Director Professional Development

Assistant State Director District Director

Rose Ann Garza

Dustin Paschal

Bruce Waller

Edie Harvey

Michelle Friesenhahn

Mike Coffey

TEXAS SHRM DISTRICT DIRECTORS

District 1

District 2

Chris Luttrell

District 3

Dorothy Buffington

District 4

Staci Benavides

Brian Hayes

District 5

Pamela Carroll

District 1: Dallas HR, East Texas, Rose City, Southeast Texas, Texas Bay Area, Texoma HR, Tri-State SHRM District 2: Cross Timbers, Fort Worth HR, Mid-Cities HRA, North Texas SHRM, Wichita Falls District 3: Austin SHRM, Brazos Valley SHRM, Central Texas, HR Houston, Heart of Texas, Montgomery County, Wilco HR District 4: Big Country SHRM, El Paso, Lubbock, Mid-Tex, Panhandle, Permian Basin District 5: Coastal Bend, Hill Country, Lower Valley, Rio Grande Valley, San Antonio, South Texas 14

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TEXAS SHRM CORE LEADERSHIP AREA DIRECTORS

Samantha Fulford

Certification

Crystal Reich

Certification

Emerging Professionals

SHRM Foundation

Global

Legal and Legislative

Kathy Schatz

Heidi Powell

Membership

Students

Workforce Readiness

Kathryn Perez

Sarah Glaser

Claudia Camacho

Valeria Fernandez

Wendy Chance

Davani Buckley

Meredith Morris

Membership

John Greer

TEXAS SHRM INITIATIVES

Leadership Development Lisa Blanton

Leadership Development Gonzalo Soliz

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Loud Quitting: How to Identify and Mitigate This Worrisome Workplace Trend We’ve all heard about quiet quitting and how it damages productivity and morale. But what about loud quitting? According to a 2023 report by Gallup, 18% of employees are loudly quitting or actively disengaged from their jobs. Let’s unwrap what it means to loud quit, explore its negative effects on the workplace, and provide HR professionals with seven tips for handling this disruptive trend.

What is Loud Quitting? Loud quitting is a departure from traditional resignations characterized by its dramatic and attention-grabbing nature. Instead of the customary two-week notice and a cordial, discreet farewell, employees engaging in loud quitting make their dissatisfaction loud and clear. This may involve: • Causing public confrontations. • Badmouthing the company, its practices, and management to co-workers, clients, and vendors. • Posting grievances on social media. • Creating issues (or even sabotaging) with workflows and projects. • Stirring up issues with clients. • Abruptly departing without notice. Employees who resort to loud quitting typically want to draw attention to their reasons for leaving, whether it be workplace issues, unhappiness with their managers, or perceived slights or unfair practices. While there has always been a small faction of employees who approach quitting with the “take this job and shove it” mentality, loud quitting is facilitated by the digital age. Employees, often in the heat of the moment, can quickly blast their experiences on various social media platforms. HR professionals must understand loud quitting and its nuances, so they can effectively mitigate its impact on the workplace.

Negative Effects Loud Quitting Have on the Workplace The repercussions of loud quitting can extend beyond the immediate departure of an employee, casting a shadow over the entire workplace. Some of its negative impacts are: 16

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• Damages the company’s reputation. One of the most immediate consequences of loud quitting is the potential damage the disgruntled employee can do to the company's credibility. Social media amplifies the grievances of departing employees and reaches a wide audience. Negative posts, insults, and trash talk may potentially dissuade potential hires or clients from trusting your company. • Impacts morale. Witnessing a colleague exit dramatically can have a detrimental effect on the remaining workforce’s morale. It can foster an atmosphere of uncertainty, fear, and discontent that may be difficult to turn around. • Decreases productivity. Loud quitting often results in immediate departures, leaving large gaps in essential roles. This sudden loss of manpower can disrupt workflow, reduce productivity, and create additional stress on the remaining team members. • Increases turnover. The dramatic exit of an employee can trigger a ripple effect, causing others to question their job satisfaction and contemplate their own departure. Instead of business as usual, loud quitting can lead to more turnover within the organization. • Creates legal implications. In some cases, loud quitting may involve publicizing internal issues or conflicts. If the departing employee shares sensitive information or alleges misconduct, it can bring on messy lawsuits from vendors and customers.

7 Tips for Identifying and Thwarting Loud Quitting Understanding loud quitting is crucial for HR professionals. By preparing in advance, HR can develop strategies that minimize the damage this disruptive trend causes. Here are seven insightful, proactive strategies aimed at identifying and defusing the effects of loud quitting, ensuring a more stable and harmonious work environment. 1. Establish proactive communication channels Open lines of communication within the workplace can help HR and team managers spot brewing issues before they escalate. Encourage regular check-ins and anonymous feedback mechanisms to give employees an outlet for expressing concerns. 2. Conduct exit Interviews Thorough exit interviews can provide valuable insights into the reasons behind an employee's departure. Use this information to improve systemic issues, improve workplace culture, and mitigate the risk of loud quitting in the future. Plus, they can be

an outlet the employee can use for blowing off steam behind closed doors, rather than all over the workplace and social media. 3. Cultivate a positive workplace culture HR and the company’s leaders should commit to fostering a positive workplace culture that values employee well-being, a work/life balance, growth, and inclusivity. Maintaining a positive environment is less likely to breed discontent, reducing the likelihood of loud quitting. 4. Provide mental health support programs Recognize the importance of mental health in the workplace and implement support programs. Offering employees resources like counseling services, alcohol and drug treatment, stress management workshops, and mental health days can contribute to a healthier work environment. 5. Conduct managerial training Equip managers with the skills to identify and address potential issues within their teams. Training in conflict resolution, effective communication, and empathy empowers managers to proactively handle concerns before they escalate to loud quitting. 6. Use Ongoing Employee Background Screening Periodically checking each employee’s criminal records, social media activity, and screening them for drug use may catch serious issues early on. This information can be a catalyst to head off the issue before it becomes a problem remedied by loud quitting. 7. Setting social media policies Establish clear, written social media policies that guide employees on appropriate behavior when sharing workplace-related information online. Detailed guidelines can decrease the potential damage caused by disgruntled employees airing grievances on public platforms.

Proactively Manage the Effects of Loud Quitting The best way to decrease the impact loud quitting has on your workplace is to ensure employees have no reason to devolve into that behavior. HR professionals can meet this trend head-on by fostering open communication, prioritizing mental health, and implementing managerial training. These strategies also contribute to a workplace where employees feel heard, valued, and motivated to contribute positively to the organization's success. Data Facts | www.datafacts.com

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TENNESSEE EMERGING ISSUES IN WORKERS’ COMP LAW By FREDRICK R. BAKER

INTRODUCTION In 2023, several changes to the Tennessee Workers’ Compensation Law were penned. Several of these changes lay in the following Acts: Tennessee Public Chapter 145 (2023) (“TPC 145”), Tennessee Public Chapter 158 (2023) (“TPC 158”), and Tennessee Public Chapter 465 – “The James ‘Dustin’ Samples Act” (2023) (“Dustin Samples Act”). These changes affected compensation rates, death benefits, penalties, attorney’s fees, dependents, standards, presumptions, firefighters, and more, all to be elaborated in greater detail below. TPC 145 Under prior law, if an employer/carrier “wrongfully” failed to reimburse medical expenses paid by employee within 60 days of a settlement or court order, or failed to provide medical treatment pursuant to a settlement or court order, then a penalty could be assessed up to 25% of medical expenses. A showing was required that the employer acted “in bad faith.” This standard is relaxed under TPC 145. The new standard is not “wrongfully,” but “unreasonably,” and a showing of “bad faith” is no longer required. However, TPC 145 does provide a reprieve for employers if they authorize treatment within 60 days of receiving information reasonably necessary to determine compensability and issue payment. Similarly, the prior law allowed the judge to award reasonable attorney’s fees if the employer “wrongfully” denies a claim, or “wrongfully” fails to timely provide benefits. This standard has also been relaxed to “unreasonably.” Further changes by TPC 145 appear in the award of attorney’s fees. While under prior law, the judge had no discretion to reject an attorney’s fee if it was 20% or less of the award, under TPC 145, the court has gained this discretion. Other changes brought about by TPC 145 lay in: (1) the admissibility of C-32 medical reports – electronic signature of doctors allowed, as well as copies unless a genuine question is raised as to authenticity; (2) the allowance of death benefits to be paid from the Uninsured Employers Fund of $20,000.00 (making the new total $60,000.00); and (3) the creation of the Certified Physician Program - a voluntary physician education program that provides an additional reimbursement under the medical fee schedule for Bureau-certified physicians. TPC 158 Under prior law, upon the remarriage of a surviving spouse, if there was no child of the deceased employee, then periodic death benefits terminate. Under TPC 158, periodic benefits will stop upon remarriage, but the surviving spouse is entitled to a lump sum payment equal to 100 weeks based on 25% of the deceased employees’ average weekly wages (“AWW”). Under prior law, under certain scenarios, the qualifying dependent was entitled to death benefits based on 50% of the deceased employee’s AWW – such as where there was a surviving spouse with no dependent children, or a single dependent orphan. TPC 158 increases these benefits to 66 2/3%. Periodic death benefits, under the prior law, would generally terminate when the orphan reached the age of 18. This could continue until age 22 if the child was attending a recognized educational institution. TPC 158 clarifies that this includes completing secondary education or a program leading to an equivalent credential, or enrolled in a recognized institution that provides postsecondary career or technical education. 18

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TPC 158 creates a new right for employers/carriers who are paying periodic death benefits: employers/carriers can now periodically require a dependent to provide information showing the dependent continues to qualify for benefits. These benefits can be suspended if the dependent fails to provide the requested information within 15 days of receipt of that request. THE DUSTIN SAMPLES ACT The Dustin Samples Act provided for several changes to the law relating to firefighters. The definition of “firefighter” is a regular or full-time, paid employee of the fire department of a municipality, county, municipal form of government, or other political subdivision of the state. It includes employees whose previous duties required the employee to respond to and be actively engaged in fire suppression, rescue services, or other emergency response tasks. Perhaps the most notable change to the law resulting from the Dustin Samples Act is the creation of a new presumption. Under the new law, if a firefighter is diagnosed with post-traumatic stress disorder (“PTSD”) by a mental health professional because of one or more specified types of incidents, then the injury is presumed to have occurred in the line of duty, and is compensable. This can be overcome only by showing, by a preponderance of the evidence, that the PTSD was caused by non-service-connected factors. Types of incidents that may give rise to this presumption are: (a) directly witnessing the death of a minor, or treating the injury of a minor who subsequently died; (b) directly witnessing an individual whose death involved a serious bodily injury of a nature that shocks the conscience; (c) responding to an event where there was a victim with a serious bodily injury that shocks the conscience; or (d) responding to an event where a responder, co-worker of a responder, or family member of a responder sustained a serious bodily injury or died. This presumption applied when the firefighter is diagnosed with PTSD within one year of their final date of employment with the fire department. A mental condition resulting solely from disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or similar action taken in good faith by the employer is not considered an injury sustained in the line of duty. Finally, the Dustin Samples Act requires the Department of Labor and Workforce Development to establish and administer a grant program to mitigate the costs to an employer of providing workers’ compensation for firefighters diagnosed with PTSD. The Department may award an employer a grant if the employer provides mental health awareness training for its personnel. This grant program is to be repealed on December 31, 2028. CONCLUSION Several changes to Tennessee Workers’ Compensation law were effected in 2023. These changes are important for employers/carriers to know. They affect a broad array of topics, but with the proper training and knowledge, employers/carriers can remain confident in their handling of Workers’ Compensation claims.

Fredrick R. Baker, Member

Wimberly Lawson Wright Daves & Jones, PLLC Cookeville, TN office fbaker@wimberlyllawson.com

Change to to 15th 15th Edition Edition Change

Tennessee Workers' Workers' Tennessee Tennessee Workers' Workers' Tennessee Compensation Handbook Compensation Handbook Compensation Handbook Compensation Handbook 15th Edition Edition 15th 14th Edition Edition 14th The all-new all-new 15th 15th Edition Edition of of the the The The all-new all-new 14th Edition Edition of the the Handbook Tennessee Workers' Compensation Handbook The 14th of Tennessee Workers' Compensation Tennessee Workers' Compensation Handbook by Fredrick Fredrick R. Baker Baker is Tennessee Workers' Compensation Handbook by R. is by Fredrick R. Baker Baker is is nowFredrick available! by R. now available! now available! available! now This new new edition edition covers: covers: This This new new edition edition covers: covers: This

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Revised firefighter cancer presumption Changes to standardcancer for determining Revised firefighter firefighter cancer presumption Revised presumption the of penalties Caseassessment law clarification abouttomedical employers/carriers benefits occupational diseases Case lawfor clarification about medical Case law clarification about medical benefits for occupational diseases benefits occupational diseases Increasedfordiscretion for judges to determine reasonableness of New Telehealth regulations attorney's fees New Telehealth Telehealth regulations regulations New Clarification as to the calculation of death signed benefitsC-32 medical Changes to admissibility of electronically Clarification as to to the the calculation calculation of of death death benefits benefits reports and copies Clarification as Revised standards for Vocational Recovery Assistance Revised standards fordeath Vocational Recovery Assistance New laws regarding benefitsRecovery paid fromAssistance the Uninsured Revised standards for Vocational New regulations Employers Fund on Workers’ Compensation Exemption Registration New regulations regulations on on Workers’ Workers’ Compensation Compensation Exemption Exemption Registration Registration New New presumption for firefighters regarding PTSD And much, much more! And much, much, much more! more! And And much, much much more! For more more information or or to to order order your your copy copy now, now, For information Brenda Copeland atnow, For more to order order your copy copy now, pleaseinformation call or emailorBrenda Copeland at your bcopeland@wimberlylawson.com please call email Brenda Brenda Copeland Copeland at at (931) 372‐9123 or or bcopeland@wimberlylawson.com (931) 372‐9123 or bcopeland@wimberlylawson.com bcopeland@wimberlylawson.com

The Tennessee Tennessee Workers’ Workers’ Compensation Compensation Handbook, Handbook, 14th 14th Edition, Edition, by by Wimberly Wimberly Lawson Lawson Attorney Attorney Fred Fred Baker, Baker, isis The the comprehensive resource for anyone who interacts with the Tennessee Workers’ Compensation System. It isisis the resource for anyone who interacts15th with the Tennessee Workers’ Compensation System. It Thecomprehensive Tennessee Workers’ Workers’ Compensation Handbook, 15th Edition, by Wimberly Wimberly Lawson Attorney Fred Fred Baker, The Tennessee Compensation Handbook, Edition, by Lawson Attorney Baker, designed for HR personnel, attorneys, paralegals, risk managers, claims adjusters, mediators, benefit managers, designed for HR personnel, paralegals, risk managers, claims adjusters, mediators, benefitSystem. managers, the comprehensive comprehensive resourceattorneys, for anyone anyone who interacts interacts with the the Tennessee Tennessee Workers’ Compensation System. It is the resource for who with Workers’ Compensation claims analysts, and judges. attorneys, Now fully fullyparalegals, updated and and edited for 2023, 2023, the Tennessee Workers’ Compensation claims analysts, and judges. Now updated edited for the Tennessee Workers’ Compensation designed for HR personnel, risk managers, claims adjusters, mediators, benefit managers, designed for HR personnel, attorneys, paralegals, risk managers, claims adjusters, mediators, benefit managers, Handbook, 14th Edition, Edition, gives Now clear,fully authoritative guidance that will helpthe youTennessee navigate the the challenges of the the new new Handbook, 14th gives clear, authoritative guidance that help you navigate challenges of claims analysts, analysts, and judges. judges. updated and and edited edited forwill 2024, Workers’ Compensation claims and Now fully updated for 2024, the Tennessee Workers’ Compensation Tennessee Workers’ Compensation landscape. Tennessee Workers’ Compensation landscape. Handbook, 15th Edition, Edition, gives clear, clear, authoritative guidance guidance that that will will help help you you navigate navigate the the challenges challenges of of the the new Handbook, 15th gives authoritative Tennessee Workers’ Compensation landscape. Tennessee Workers’ Compensation landscape.

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A Return to Prioritizing Retirement Benefits By CHUCK STINSON

The McGriff Retirement Benefit Survey, a follow-up to our 2023 National Benefit Trend Survey, provides a comprehensive view of retirement plan trends across a diverse landscape of industries and company sizes. It provides valuable insight into how employers are navigating the complexities of employee benefits in a rapidly evolving landscape. The survey also takes a deep dive into the value their retirement plans provide, their commitment to allocating resources, types of plans sponsored, and design features. The survey questions focused on retirement benefits as they relate to: • Employer and employee views on the types of plans offered • Effectiveness of the retirement benefits being utilized • Short-term goals for plan improvement • How their retirement plan fits into the organization’s benefit package • Satisfaction with cost and effectiveness • The importance of employee retirement readiness With a labor shortage, longer lifespans, and rising inflation, employers are looking for methods to boost morale among existing employees, attract quality talent, and retain key personnel. The survey results suggest employers are enhancing their retirement benefits packages to help meet those objectives. An increasing number of employers are seeking to improve retirement readiness and satisfaction with benefit packages for their employees by implementing features and types of plans that lessen the burden on employees to actively manage their retirement plan savings. When it comes to plan types and designs, survey results are in line with trends we’ve seen in recent years. Most survey respondents (96%) sponsor a defined contribution plan in the form of either a 401(k) or 403(b). Of those, 88% offer at least a 3% matching contribution, 58% match at safe harbor contribution levels, and 18% plan on increasing the benefits their retirement plan packages offer. This shows a positive shift toward a willingness among employers to provide more money and take more responsibility when it comes to helping employees reach retirement readiness. These statistics, along with the underlying data on plan participation rates, goals for employee benefit offerings, and employer views on the importance of retirement plans in meeting company objectives, indicate a trend toward more paternalistic approaches, especially as it relates to financial support for retirement plans, types of plans made available, and employer engagement. The responses to the defined benefit plan portion of the survey further supports these views. Twenty-two percent (22%) of survey respondents offer a traditional pension plan in conjunction with their defined contribution plan. Of those, 71% are open to new hires and providing ongoing benefit accruals for all participants; 24% are on a soft freeze (closed to new hires, but still accruing benefits for active plan participants). Only 5% are considering offloading risk due to funding concerns, and none of the survey respondents have plans to terminate their pension plans in the near future. These results contradict the sentiment of the past few decades where most employers no longer found value in sponsoring a defined benefit plan. Our survey results show that employers are rediscovering that defined benefit plans are still the most effective and best return on investment when it comes to providing a retirement benefit that attracts and retains employees while helping achieve retirement readiness. 20

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With the retirement gap in America reaching an estimated $28 trillion1, changes to ERISA (Employee Retirement Income Security Act) law over the past 10 to 15 years designed to have defined contribution retirement plans emulate pension plans in the following ways: • Auto enrollment and auto escalation • Raised contribution limits • Safe harbor provisions • Qualified Default Investment Alternatives (QDIAs) • Increased fiduciary roles and responsibilities Employers are starting to see the need (some would even say they’re being forced) to take on a more paternalistic do-it-for-me approach when it comes to the management of participant accounts in their companysponsored retirement plans. As plan sponsors do their due diligence when it comes to staying compliant while creating attractive benefit packages, they’re starting to realize the value that defined benefit plans offer. When it comes to participants needing a do-it-for-me approach for retirement savings, defined benefit plans have long been the most effective solution for employers to help their workforce reach a healthy retirement. By design, defined benefit plans shift the responsibility of saving and investing properly from the employee to the employer. Something that is much needed considering the shift from defined benefit plans to defined contribution plans as the preferred savings option among employers has resulted in only 55%2 of working age households having any retirement savings. Less than 8%2 of these households have enough savings to retire comfortably. When it comes to saving enough for retirement, it’s safe to say that placing such a large piece of that responsibility in the hands of the average American hasn’t been successful. It’s encouraging to see employers realizing the need to assume more of the responsibility for helping their employees reach retirement readiness, based on our survey’s results. As more companies look for ways to increase workplace satisfaction, attract and retain key talent, and get the most return on their investment from their benefit offerings, this trend of taking a larger role in employees’ retirement readiness should continue to grow. With more data and attention to trends, employers will continue to realize that defined benefit plans (traditional pension and cash balance pension plans) are the most effective play types for helping employees reach retirement readiness. That will lead to a resurgence in traditional pensions and the continued growth of cash balance plans. The trend of the 1990s when 35%3 of companies sponsored traditional pension plans won’t be back again anytime soon. The low 15%3 level of today will be a thing of the past as the number of new plans continues to rise. Furthermore, cash balance plans will continue as the fastest growing new plan type (336% growth rate from 2011-2021)4 in the coming years, especially as their popularity continues to move up market to larger organizations. Sources: 1 https://cri.georgetown.edu/closing-the-global-retirement-savings-gap-a-tale-of-two-numbers/ 2 https://www.ebri.org/docs/default-source/rcs/2023-rcs/2023-rcs-short-report.pdf 3 https://www.forbes.com/advisor/retirement/what-is-a-pension/ 4 https://www.plansponsor.com/data-shows-popularity-cash-balance-plans/

Chuck Stinson

Sales Director, Retirement Practice McGriff Charles.Stinson@McGriff.com McGriff.com

McGriff MORE InsightsTM

Transform your employee benefits from an expense to a competitive advantage. Our proprietary approach helps you quantify and achieve optimal plan performance across four key areas of your employee benefits program — Managing Costs, Operational Efficiency, Risk Mitigation and the Employee Experience by answering three key questions: • How is your organization doing? • Where should you aim? • What’s the value in getting there? By optimizing benefit plan selection, design, management, and employee engagement, McGriff MORE Insights can help turn your benefits program into a real differentiator that aligns with your organization’s culture and business objectives. Visit McGriff.com to learn more.

The Greater Memphis Employer Benefits Council Met January 11 at the Chickasaw Country Club in Memphis. Michael Spine, President of InHealthStrategies, spoke on “Health Wealth: Innovative Strategies for Employers to Curb Rising Health Costs.”

1 Members in attendance at the January 11 meeting of the Greater Memphis Employee Benefits Council. 2 Luncheon buffet at the Chickasaw Country Club 3 Cynthia Thompson with Jimmy Madeksho (L) and Jonathan Frisch (R) with McGriff 4 Special guests from the Memphis Symphony Orchestra with Preston Cox, president of GMEBC. 5 Michael Spine, President of InHealthStrategies, was the guest speaker. 6 Sebron Miller with UNUM, who sponsored the luncheon.

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Shining A Light

on Black History Month By AMY SCHABACKER DUFRANE

ebruary is Black History Month, an annual observance that aims to pay tribute to generations of African Americans and their contributions to education, the arts, government and history. Recognizing the impact and accomplishments of changemakers such as abolitionist Harriet Tubman, civil rights leader and politician John Lewis, activist Rosa Parks and Dr. Martin Luther King, Jr., this focus portends to acknowledge those who struggled with adversity to achieve full citizenship in American society.

Black History Month began as a week-long celebration, created by a noted Black historian named Carter G. Woodson. It was expanded to a month in 1976 by President Gerald Ford. But keeping a concentrated spotlight on Black History Month has been challenging as of late. Recent racially charged tragedies evoke painful memories of disparities and injustices that run deep. It feels like no matter how far we come, there’s still a great deal of room for improvement, especially as some organizations have started to pull back on their commitment to diversity, equity and inclusion. Black History Month represents an opportunity for HR professionals. As an integral part of DEI programs, Black History Month is rife with teachable moments that can reinforce why it’s so important to nurture a culture of belonging in the workplace. Among the ways that organizations can showcase Black History Month in the workplace are: • Start by learning about Black history. Assuming that all workers have the same experiences in school and the workplace creates unconscious bias from the start. Creating a culture of empathy and inclusion requires foundational understanding of why this is so important and what the inequities are. For example, bring in speakers and create a safe space for people to listen and share. Honor your own employees’ stories by inviting them to share their experiences. • Support (or start) a Black Employee Resource Group that looks at the diaspora of the Black experience while promoting DE&I. Encourage participation; however, do not make judgments and assume that all Black employees automatically want to partake. Respect the needs of individuals and tailor the program to accommodate remote and hybrid work structures. Consider adding a Slack channel that promotes conversation. 24

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• Put your money where it matters. So many companies put the first two suggestions in place and sit back. Take it to the next level by getting involved with external organizations such as Black Girls Code, 100 Black Men of America, and RaceForward. Give employees a volunteer day to help make a difference. Train the trainers through formal racial equity training and conduct in-house workshops, physically and virtually. Go deep in order to create actionable programs that will increase positive outcomes. • Identify the areas for improvement and measure DE&I effectiveness. That doesn’t stop after one month on the calendar. Get employee feedback by using pulse surveys to ascertain if awareness and training are making a positive difference. Look at your hiring practices: What percentage of new hires are Black? Are Black employees in certain states struggling because of politically motivated bans on African American studies? In other words, is Black History Month merely a “hallmark” style holiday on your HR calendar? Or are you ready to really push on and poke into the systematic problems that need to be resolved? A recent report by Littler on inclusion, equity and diversity found that while 32% of the surveyed executives think their organization has clear DEI plans and goals in place, 67% are less certain. Nearby to HRCI’s offices, the Dr. Martin Luther King, Jr. Memorial stands prominently in our nation’s capital. Instrumental in advancing the fundamentals of civil rights in America, he sought to promote peace and universal brotherhood. He also saw doing nothing as the greatest obstacle to resolving racial injustices and urged all of us to “pull our pound.” HR professionals are well positioned to advance fairness and meaningful change, year-round. Black History Month represents a great starting point.

Amy Schabacker Dufrane, Ed.D., SPHR, CAE, is CEO of HRCI® — HR Certification Institute, and is the founder and CEO of HRSI — HR Standards Institute, where she is responsible for driving and disrupting the conversations about building high-performing, strategic HR teams. An engaging thought leader at the intersection of talent strategy and continuous learning, Dr. Dufrane is an award-winning leader and celebrated keynote speaker on the human side of successful business strategy in the 21st century.

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ast l s rater y 15! d r i a ly bFebr u r a E ntil u

Registration is now open for ELLA 2024! Please join us on April 11-12, 2024, at the Doubletree Hotel and Robinson Center in Little Rock for the Arkansas SHRM Employment Law & Legislative Affairs Conference!

Your ELLA 2024 committee is hard at work preparing a great conference! Please visit ella.arshrm.com for updates on speakers and topics.

Want to position your organization in front of hundreds of Arkansas employers and HR professionals? Being a sponsor at the ELLA Conference is the perfect opportunity! Contact us at ellasponsors@arshrm.com

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DOL Issues Final Rule Regarding Independent Contractor Classification By MARY LEIGH PIRTLE

The

U.S. Department of Labor (DOL)

issued its Final Rule regarding the test for independent contractor classification. The Final Rule, which becomes effective March 11, 2024, largely mirrors the DOL’s proposed rule announced in 2022 and sets forth a multi-factor “totality of the circumstances” economic realities framework for analyzing whether a worker is an employee or independent contractor under the Fair Labor Standards Act (FLSA). The new rule is more restrictive than the now rescinded 2021 Independent Contractor Rule, which focused on two core factors – the nature and degree of control over the worker and the worker’s opportunity for profit or loss – with other factors as secondary considerations. Under the new rule, no single factor or group of factors is assigned any predetermined weight, and the DOL has signaled its renewed interest in analyzing the worker’s investment in the work and whether the service being performed by the worker is an integral part of the employer’s business. Specifically, this new framework sets forth six non-exhaustive factors, with the weight given to each dependent on the facts and circumstances of the parties’ relationship. Below is a brief summary of each factor: 1. Opportunity for profit or loss depending on managerial skill. Does the worker have opportunities for profit or loss based on managerial skill that affect the worker’s economic success or failure in performing the work? If a worker has no opportunity for profit or loss, then this factor suggests that the worker is an employee. 2. Investments by the worker and the potential employer. Investments that are capital or entrepreneurial in nature indicate independent contractor status, such as those that generally support an independent business and serve a business-like function, such as increasing the worker’s ability to do different types of or more work, reducing costs, or extending market research. 3. Degree of performance of the work relationship. When the work relationship is indefinite in duration, continuous, or exclusive of work for other employees, this factor weighs in favor of the worker being an employee. However, if the relationship is definite in duration, non-exclusive, project-based, or sporadic, this factor weighs in favor of an independent contractor relationship. 28

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4. Nature and degree of control. This factor considers the potential employer’s control, including reserved control, over the performance of the work and the economic aspects of the working relationship, such as whether the potential employer sets the worker’s schedule, supervises the performance of the work, reserves the right to discipline the worker, or restricts the worker’s ability to work for others when they choose. More indicia of control by the potential employer favors employee status. 5. Extent to which the work performed is an integral part of the potential employer’s business. This factor weighs in favor of the worker being an employee when the work they perform is critical, necessary, or central to the potential employer’s principal business. 6. Skill and initiative. This factor considers whether the worker uses specialized skills to perform the work and whether those skills contribute to the business-like initiative. When the worker does not use specialized skills in performing the work or where the worker is dependent on training from the potential employer, there is an indicia of employee status. As a reminder, workers cannot voluntarily waive employee status under the FLSA and choose instead to be classified as an independent contractor. Workers who are not properly classified as independent contractors are “employees” for purposes of the FLSA and are subject to the FLSA’s protections regarding minimum wage, overtime pay, and recordkeeping obligations. Employers are urged to review their worker classifications in light of this new guidance to ensure compliance with the FLSA and related wage and hour laws. Reprinted from the Bass, Berry & Sims HR Law Talk Blog.

Mary Leigh Pirtle, Member Bass, Berry & Sims mpirtle@bassberry.com www.bassberry.com

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COBRA/MINI COBRA & Small Business – YOU NEED HELP! By WILL BROWN, CPA

In my years of working with small to medium-sized businesses (SMBs), I am always surprised and nervous about how little SMBs know about COBRA or the related MINI COBRA aka STATE CONTINUATION laws. COBRA is already complex. Yet, to further complicate matters, STATE CONTINUATION or MINI COBRA laws (applicable to those businesses with less than 20 employees) vary by state. Most every state has state-specific guidelines that may closely mirror the COBRA laws or they may vary greatly. For example, Alabama doesn’t have any statespecific laws regarding continuation coverage except for the subject of Abuse Rule. Florida, on the other hand, not only has its own state continuation guidelines but has specific rules related to employees in the military. What is my point? Get professional help! Especially if you are an SMB with less than 20 employees. Most SMBs with less than 20 employees somehow feel – quite erroneously – that because they are small, they are immune to the laws and that their ‘ignorance’ of the laws will preclude them from penalty. Incorrect. The SMB with less than 20 employees is not only is held to the same standards of knowledge and compliance, but they are also required to collect and submit the premiums to their Insurance Carrier and notify that Carrier when an employee goes on and comes off of COBRA (MINI) coverage. Who wants to collect premiums for COBRA related benefits from a terminated employee? I’m sure that’s not you. And, since most major Insurance Carriers will not help you administer MINI COBRA/STATE CONTINUATION, it all falls upon the employer. Notice some of the highlights below and remind yourself of the complex graphic related to COBRA. Then add to that, state specific guidelines. Now, assess if you have the capability to perform or if your Carrier is/ is not performing these tasks. If the answer to that assessment is “no”,

then reach out to companies that specialize in helping with COBRA, FMLA compliance, and more. They typically charge a nominal fee per employee per month (PEPM) and it is well worth it!

COBRA/MINI COBRA Overview COBRA requires covered group health plans to offer continuation coverage to employees, spouses and dependent children when group health coverage would otherwise be lost due to certain specific events. These events, called qualifying events, include the death of a covered employee, a termination or reduction in the hours of a covered employee’s employment for reasons other than gross misconduct, the divorce of a covered employee and spouse, and a child’s loss of dependent status under the plan. COBRA sets rules for how and when continuation coverage must be offered and provided, how employees and their families may elect and pay for continuation coverage, and when continuation coverage may be terminated. COBRA also requires employers and health plan administrators to provide certain notices to plan participants at specific times.

COBRA Violations – Potential Consequences Failing to comply with COBRA’s requirements can trigger a number of adverse consequences for an employer, depending on the type of failure involved. Possible consequences include excise taxes of $100 per day for each qualified beneficiary impacted by a failure during a compliance period, penalties of up to $110 per day under the Employee Retirement Income Security Act (ERISA) and lawsuits to compel COBRA coverage where a court can award attorneys’ fees, interest and other relief, such as liability for medical expenses.

COBRA Administration Flowchart COBRAProvided Administration Flowchart by: The Benefits Group Provided by: The Benefits Group

Employee enrolls in the Employee enrolls in the health plan health plan Qualifying event (QE) Qualifying event (QE) occurs occurs Begin COBRA Begin COBRA coverage coverage

For QEs requiring notice from individuals (divorce, legal separation or loss of dependent status), did the For QEs requiring notice from individuals (divorce, legal separation or loss of dependent status), did the (deadline is generally 60 days from date of QE or loss of coverage, whichever is later)? individual notify the employer individual notify the employer (deadline is generally 60 days from date of QE or loss of coverage, whichever is later)?

YES YES

Did the qualified beneficiary (QB) elect COBRA by Did deadline the qualified beneficiary (QB) elect COBRA by (60 days from the date of the Election the the deadline (60 days from the date of the Election Notice or the loss of coverage, whichever is later)? Notice or the loss of coverage, whichever is later)?

Was the first COBRA premium paid Was the premium paid within 45first daysCOBRA after the election? within 45 days after the election?

NO NO

YES YES

Terminate COBRA Terminate rightsCOBRA rights Terminate Terminate COBRA coverage COBRA coverage and provide and provide Notice of Early Notice of Early Termination Termination

NO NO

Provide General Notice within 90 days Provide after General Noticebegins. within 90 days coverage after coverage begins.

Have Have subsequent subsequent premiums premiums been paid on been on time, paid taking time,account taking a into into account minimum 30-a minimum day grace 30day grace period? period?

NO NO Cancel health Cancel health coverage. If an coverage. individual If an individual waives COBRA waives COBRA coverage, he or coverage, he or she may revoke she may revoke this waiver this waiver during the during electionthe period. election period.

YES YES

NO NO

No COBRA rights No COBRA rights

Is the individual eligible for COBRA? Is the individual eligible for COBRA?

YES YES Provide Election Notice within 14 days of Provide Election Notice within receiving notice of QE14 days of notice of QE that do not require notice from *For QEsreceiving that do require termination notice from of *For QEs(death individuals ofnot employee,

individuals (death of employee, termination of employment or reduction in hours, employee’s employment or reduction in hours, employee’s entitlement to Medicare or employer’s entitlement the to Medicare or employer’s bankruptcy), Election Notice must be bankruptcy), thedays Election must be the provided within 44 of theNotice QE (assuming provided within 44 days of the QE (assuming employer is the plan administrator). the employer is the plan administrator).

NO NO No COBRA rights and provide NoNotice COBRA and provide of rights Unavailability of Notice of Unavailability COBRA Coverage within 14of days COBRA Coverage within 14 days

Continue COBRA coverage for maximum coverage period (18, 36 or 29 months, depending on Continue COBRAmay coverage for maximum coverage period (18, 36 or 29 months, depending on terminate before the end of the maximum coverage period if: the QEs). COBRA the QEs). COBRA mayare terminate • COBRA premiums not paid;before the end of the maximum coverage period if:

•• COBRA premiums are under not paid; QB becomes covered another group health plan or Medicare after electing COBRA; •• QB becomes covered under any another health Employer does not sponsor groupgroup health plan;plan or Medicare after electing COBRA; •• Employer does not sponsor any group health plan; QB on disability extension is no longer disabled; or •• QB disability is no disabled; For on cause (on theextension same basis as longer similarly situatedornon-COBRA participants). • For cause (on the same basis as similarly situated non-COBRA participants). If COBRA is terminated early, provide Notice of Early Termination. If COBRA is terminated early, provide Notice of Early Termination.

This chart provides a high-level overview of key steps involved in COBRA administration. It does not provide a comprehensive summary of an employer’s COBRA responsibilities. It is not intended to be exhaustive nor This chart a high-level overview of key as steps involved COBRAshould administration. It does not provide comprehensive summary of an employer’s COBRA responsibilities. It is not intended to be exhaustive nor should an provides discussion or o inions be construed le al advice.in Readers contact legal counsel for legala advice. should an discussion or o inions be construed as le al advice. Readers should contact legal counsel for legal advice.

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YES YES YES YES

•

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“Legacy of Leadership: Honoring the Past, Shaping the Future”

30th Annual TPMA Membership and Training Conference April 30th through May 3rd, 2024 The Lodge at Paris Landing State Park To Register visit our website at https://tpma27.wildapricot.org

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About the instructor: Cynthia Y. Thompson is Principal and Founder of The Thompson HR Firm, a human resources consulting company in Memphis. She is a senior human resources executive with more than twenty years of human resources experience concentrated in publicly traded companies. She is the Editor | Publisher of HR Professionals Magazine, an HR publication distributed to HR professionals in Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Tennessee, and Texas. Cynthia has an MBA and is certified as a Senior Professional in Human Resources (SPHR) by the Human Resource Certification Institute and is also certified as a Senior Certified Professional by the Society for Human Resource Management. She is a faculty member of Christian Brothers University. Cynthia was appointed to serve on the Tennessee DOHR Board of Appeals by Gov. Bill Haslam in 2014. www.HRProfessionalsMagazine.com

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56% of pollees said their employee experience is as important to their job satisfaction as compensation and benefits.* Obtain new tools and strategies to keep your workforce happy and engaged. Join us at the SHRM Talent Conference & Expo 2024 (Talent 2024), April 14-17 in Las Vegas or virtually, to ensure your organization’s success.

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EEOC NEWS First Anniversary of New Laws Demonstrates Wins for Pregnant and Nursing Workers Acting Secretary of Labor Julie Su and U.S. Equal Employment Opportunity Commission Chair Charlotte A. Burrows today issued a joint statement to mark the first anniversary of the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act): “On Dec. 29, 2022, President Biden signed into law muchneeded and long overdue workplace protections for pregnant and nursing workers. We celebrate the first anniversary of legislation that so many long fought for to create more equitable workplaces. “Failures to accommodate limitations related to pregnancy and nursing have long acted as barriers to equitable workforce participation by women. It’s more apparent than ever that limiting pregnant and nursing workers’ opportunities hurts them and their families and limits the size of our labor force and the strength of our economy. Since these laws have been in effect, we have already seen that the PWFA and the PUMP Act are helping support the health and economic security of pregnant, postpartum, and nursing workers and their families nationwide. “The PWFA is a tremendous step forward for families because it gives pregnant workers access to reasonable accommodations, allowing them to keep doing their jobs free from discrimination and retaliation. This law enables workers with limitations related to pregnancy, childbirth or related medical conditions to obtain changes at work that could help them stay employed and healthy during pregnancy and while they recover from childbirth, when doing so would not pose an undue hardship for the employer.

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These accommodations can be as simple as more frequent bathroom breaks or modifications to no-food policies. The law protects part-time, temporary and seasonal workers as well as full-time employees in all industries. “The PUMP Act extends the right to break time and a private place to pump at work to millions more nursing workers and provides remedies for nursing workers whose rights have been violated. Before the PUMP Act, millions of workers had to choose either not to pump or to continue pumping and face possible discrimination, harassment or job loss as a result. The protections the PUMP Act enshrined into law will continue to empower new parents to express milk at work, providing greater peace of mind and reducing potential economic, mental health and physical consequences for nursing workers. “Our agencies have been busy working together to make referrals, coordinate investigations, cross train federal personnel and educate workers about their new rights and employers about their responsibilities under the new laws. Together, we have developed a series on maternal health to share information about the protections provided by both laws and a new “Know Your Rights” resource outlining key federal workplace protections for pregnant, postpartum and pumping workers. The Department of Labor has launched an industry-specific webinar series on the PUMP Act, and the EEOC provides a host of resources related to the PWFA. “We look forward to continuing to educate workers, employers, and our partners throughout the country on these laws and the protections they provide.”

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