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the Date for the SHRM Employment Law & Compliance Conference in Washington, D.C. February 26-28
2023 Updates for Your Employee Handbook
How to Develop a Non-Compete Implementation Strategy
SHRM-Atlanta SOAHR Conference in Duluth March 28-29
SHRM Employment Law & Compliance Conference in Washington, DC, February 26-28
Highlights from the SHRM-Memphis Executive Roundtable Holiday Cocktail Reception
the Date for the 2023 SHRM Talent Conference & Expo in Orlando, FL April 16-19
SHRM23 in Las Vegas June 11-14
Highlights from the Open House PerformancePoint LLC on November 20
Can you believe it? It was wonderful covering all the live conferences in 2022! It’s now time to start planning which SHRM Conference you want to attend in 2023 so that you can include it in the budget. Make plans now to attend SHRM23 in Las Vegas June 11-14. The entertainment will be music legend, Janet Jackson, on Tuesday night. Get your tickets early! We are foodies and love visiting our favorite restaurants in Vegas including Giada’s Restaurant at The Cromwell and Bobby Flay’s restaurant at Caesar’s Palace. We can’t wait! (SHRM.org/SHRM23-HRP)
We were so honored in 2022 to partner with SHRM to bring you monthly previews of each chapter in Johnny C. Taylor, Jr.’s book, RESET, a Leader’s Guide to Work in an Age of Upheaval. In 2023 we are bringing you monthly excerpts from Talking Taboo: Making the Most of Polarizing Discussions at Work by SHRM’s Chief Knowledge Officer, Alexander Alonso. All HR professionals should read this book!
How fun it was to have my photo taken with SHRM President and CEO, Johnny C. Taylor, Jr., at the SHRM Georgia Conference in Savannah! Having Johnny on our January cover is the perfect way to kick off 2023! His book RESET was in the top three of the Wall Street Journal’s list of best-selling hardcover business books in 2022. Johnny is the leader of SHRM with over 300,000 members in 165 countries, the largest HR trade association in the world! Read all about his amazing accomplishments on Page 6.
If one of your New Year’s resolutions includes becoming a certified HR professional in 2022, you will be happy to learn that we are offering our Online HRCI PHR | SPHR Certification Exam Prep Class beginning February 15. Our Online SHRM Certification Exam Prep Class for SHRM-CP | SHRM-SCP begins in April. We are proud of our 90% pass rate for both of these certifications. See Page 43 for details about our upcoming HRCI class. Register today at www.hrprofessionalsmagazine.com.
If you are looking for recertification credits for your SHRM and HRCI certifications, we’ve got you covered there also. Stay tuned for the details of our upcoming webinars every Thursday. Special thanks to Data Facts who sponsors my monthly complimentary webinars. Our next webinar is January 19. Watch your email for your invitation. Please mark your calendars and plan to join us for these exciting webinars.
Johnny C. Taylor, Jr., SHRM-SCP, is President and Chief Executive Officer of SHRM, the Society for Human Resource Management. With over 300,000 members in 165 countries, SHRM is the largest HR trade association in the world, impacting the lives of 115 million workers every day.
As a global leader on the future of employment, culture and leadership, Mr. Taylor is a sought-after voice on all matters affecting work, workers, and the workplace. He is frequently asked to testify before Congress on critical workforce issues and authors the weekly USA Today column, "Ask HR."
Mr. Taylor's career spans over 20 years as a lawyer, human resources executive and CEO in both the not-for-profit and for-profit space. He has held senior and chief executive roles at IAC/Interactive Corp, Viacom's Paramount Pictures, Blockbuster Entertainment Group, the McGuireWoods law firm, and Compass Group USA. Most recently, Mr. Taylor was President and Chief Executive Officer of the Thurgood Marshall College Fund.
He is the author of the national bestseller, RESET: A Leader’s Guide to Work in an Age of Upheaval, which delivers a candid and forward-thinking vision for leaders to reimagine their company cultures in a time of global upheaval and presents data-driven strategies to make the necessary foundational reset of all things work. Immediately upon its release in September 2021, RESET was in the top three of the Wall Street Journal’s list of best-selling hardcover business books. All author proceeds benefit the SHRM Foundation, which is committed to empowering HR as a social force for change.
He was appointed chairman of the President’s Advisory Board on Historically Black Colleges and Universities and served as a member of the White House American Workforce Policy Advisory Board during the Trump Administration. He is Vice Chair of the Board of Trustees of the University of Miami, and member of the corporate boards of Guild Education, iCIMS, and XPO Logistics (NYSE: XPO).
In 2020, Mr. Taylor received the Distinguished Executive of the Year Award from the Academy of Management, and he was named 2021 ALA Professional Society CEO of the Year by CEO Update.
He is a Fellow of the National Academy of Human Resources and is licensed to practice law in Florida, Illinois and Washington, D.C.
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Dr. Ashley Dugger, SHRM-CP
Associate Dean and Director for Human Resource Management Programs ashley.dugger@wgu.edu www.WGU.edu
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The SHRM Pinnacle Award Program, an annual recognition program honoring the highest achievements in affiliate development, celebrates contributions in three categories, Serving the Professional, Advancing the HR Profession and Enhancing the SHRM Community. Each year, SHRM chapters and state councils are encouraged to apply for a Pinnacle Award, which recognizes innovative projects created and implemented by SHRM affiliates. Here are the SHRM State Councils and Chapters who were recognized at the 2022 SHRM Volunteer Leaders’ Business Meeting in November.
Winner /Serving the HR Professional (Small)
Baldwin County SHRM/AL Backpacks for a Cause
Winner/Advancing the HR Profession (Medium & Large)
Greater Orlando SHRM/FL
Addiction Awareness for Human Resources
Train-the-Trainer Certificate /Certification Program
Finalists/ Serving the Professional (Medium & Large)
Southeast Tennessee SHRM/TN
Human Leadership Academy
Finalists/Advancing the HR Profession
SHRM Georgia State Council/GA
Industry Certification Program
Finalists/Enhancing the SHRM Community
HR Florida State Council/FL
HR Florida Leadership Development Plan
quick search online for the definition of “polarization” yields the following language: “sharply contrasting groups or sets of opinions or beliefs”;1 “a state in which the opinions, beliefs, or interests of a group or society no longer range along a continuum but become concentrated at opposing extremes”;2 “a sharp division, as of a population or group, into opposing factions.”3 The works of contemporary political scientist Nolan McCarty discuss polarization in terms of blame, ideological division, excessive partisanship, entrenched characteristics, dimensionality of political conflict, societal inequality, invalidation of others’ perspectives, and more.4
I consider polarization a function of discord arising from the belief that someone disagrees simply because they wish to invalidate another’s thinking. This view comes from the world of political science, but when considered more broadly—as in the role of polarization in the workplace—it is only partially accurate.
1 Google/Oxford Languages, s.v. “polarization (n.),” accessed November 28, 2020, https://www.google.com/search?ei=pMzCX8uwI42m5wLck6qIAw& q=polarization&oq=polarization.
2 Merriam-Webster, s.v. “polarization (n.),” accessed November 28, 2020, https://www.merriam-webster.com/dictionary/polarization.
3 Dictionary.com, s.v. “polarization (n.),” accessed November 28, 2020, https:// www.dictionary.com/browse/polarization?s=t.
4 Nolan McCarty, Polarization: What Everyone Needs to Know (New York: Oxford University Press, 2019).
We are honored to present our second installment of
The causes and antecedents of polarization fall into four types, according to Barber and McCarty.5 Polarization can be based on (1) the issue being debated, (2) the persons involved and their personalities and ideologies, (3) external environmental factors that influence entrenched positions or beliefs, and (4) other miscellaneous causes.
Issue-based causes of polarization take us back to the common advice we received from our elders to never discuss politics, sex, or religion (or race, health, relatives, money, etc.) outside the family. For centuries, this guidance has driven “polite” society’s methods for avoiding polarization.
Person-based antecedents of polarization are more in my wheelhouse as a psychologist. Here, polarization is a function of an individual’s experiences. For example, someone from a culture that highly values self-reliance might develop entrenched views about taxes, teamwork, and social assistance programs.6 A student raised in such a culture who needs financial assistance for education might seek only merit-based scholarships rather than grants or loans because the latter are (according to this cultural view) unearned handouts and, therefore, shameful.
How do environmental factors create or influence polarization? During US presidential elections, political strategists and operatives leverage deep disagreements in the populace in order to drive voters to the polls. The messages delivered on social networks and through various advertising media are often deployed to depict candidates and their policies as threatening to societal and individual well-being. In 2016, for instance, the Democratic candidate’s description of “deplorables” was publicized to antagonize those who understood the remark as critical of people who hold certain beliefs; the Republican candidate’s description of his “seduction” technique (“grab them . . .”) was publicized to antagonize people who understood the remark as disrespectful and harmful to women. The words of the candidates were, for the most part, external to the issues and to the voters, but their deployment directly contributed to further polarization in the electorate.
5 Michael Barber and Nolan McCarty, “Causes and Consequences of Polarization,” in Political Negotiation: A Handbook, ed. Jane Mansbridge and Cathie Jo Martin (Washington, DC: Brookings Institution Press), 37–90.
6 Geert Hofstede, Cultures and Organizations: Software of the Mind (New York: McGraw-Hill, 1990).
Continued on our website, www.hrprofessionalsmagazine.com
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https://www.mcgriff.com/resources/newsletters/december-2022-employee-benefits-newsletter.html
This time of year we always want to express our gratitude for your partnership and trust in allowing us to help you provide valuable health, retirement and wellbeing benefits for your employees. This year I would also like to extend my gratitude to our McGriff Employee Benefits team. These are the folks who bring you this valuable content each month. They provide timely legislative updates and insights to improve wellbeing, recruiting and retention. This team also creates tools to ease the burden of open enrollment and provides forecasts and analytics to monitor and mitigate the rising costs of benefits and prescription drugs. And lastly they provide solutions to support personal, mental, and financial health and well-being.
For their dedication, commitment, and professionalism through the worst of the pandemic and all year long, I want to say, “Thank you!”
McGriff is planning our third annual National Benefit Trends Survey, and we want to hear from you! This year, McGriff will dig deeper to learn more about the strategies organizations like yours are using to address the benefits challenges of the day. Some topics include virtual care, mental health, leave benefits, recruitment and retention strategies, employee well-being, and more! Be sure to mark your calendars for the second week of January and be on the lookout for an invitation from our national survey team to participate!
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Feb. 26-28, Washington, D.C. & virtual
Properly prepare for—and respond to—new and evolving workplace and employment law issues so you can continue to create a better workplace and a better world. Gain the intel you need to successfully anticipate and navigate employment laws, stay compliant with regulations, and mitigate legal risks.
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Get a full range of HR education with more than 200 sessions from world-class speakers. From the basics that all HR professionals need to know, to offerings for C-suite leadership and the latest ideas that are changing the workplace landscape, SHRM23 will help you stay on top of what’s to come in the world of work.
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Oct. 30-Nov. 1, Savannah, GA & virtual
Gain the latest strategies and fresh insights you need to face your own biases, address inequalities and shift exclusionary workplace habits to help boost employee satisfaction and bottom-line business outcomes. Be empowered and energized to create a world of work that truly works for all.
Some companies had embraced, or at least tolerated, a hybrid-modeled workplace before 2020. Then the pandemic thrust it into the spotlight as a necessity.
Once employees got a taste of it, many don’t want to go back to the old way of doing things. A recent study reported that 90% of employees said they were as productive or more productive working remotely as they were in the office. Some even say they would take a pay cut before returning to the office.
The move to a more hybrid-friendly workforce leaves HR professionals with some big goals to tackle. How can you effectively manage remote employees? What needs to happen to maximize their effectiveness? Hopefully, we can answer these questions today by looking at 5 solutions for managing a hybrid work culture.
The Issue: “They can work any time, while the onsite people must clock in and out”
If your workplace has remote and onsite team members, it may seem the remote employees have more freedom. How can team members who come into the workplace every day help but feel slighted by their remote counterparts?
The Solution: Develop an inclusive workplace policy
If your company is allowing (or even encouraging) remote work now and in the foreseeable future, the requirements and procedures must be addressed with everyone. These may include the hours that management expects employees to work and the places “remote work” includes. For example, it may include the employee’s home, but does it extend to a coffee shop or hotel while they’re on vacation?
Keep in mind the flexibility that’s extended to remote or hybrid workers should be offered to the onsite staff, too. If remote workers can go to the doctor, pick up kids from school, or run errands during the day and make up the time, their onsite counterparts should be able to, as well.
The Issue: “My internet is out, so I can’t join today’s meeting”
While there’s no guarantee a storm won’t knock out the internet, it’s unacceptable for remote or hybrid employees to struggle through performing their jobs with equipment and tools that are of lower quality than their onsite counterparts.
The Solution: Provide remote employees with the necessary tools
HR pros and direct managers must work together to ensure hybrid and remote team members possess the equipment they need to perform all their work functions. This list includes laptops, printers, connections with communication apps like Slack, and a reliable and fast internet connection for starters. It’s vital to get IT involved to ensure they’re always practicing cyber safety, since they may be logging into proprietary company platforms. Companies should invest in remote and hybrid employees to create as seamless of a work experience as possible.
The Issue: “I thought (insert name here) was handling that”
The hybrid model can create confusion if there isn’t strong leadership. It can be easy for onsite team members to expect remote workers to perform tasks, and it can go the other way, too. Vague direction or a “figure it out for yourselves” managerial attitude will only exacerbate the problem.
Managers are responsible for setting boundaries and communicating expectations to their staff, regardless of if they’re down the hall or around the globe. Every team member should know what they should be doing, their goals for the next month and quarter, and how they are expected to communicate and collaborate with other team members. A clear, cohesive, steady management style is essential for managing a hybrid team.
The Issue: “I haven’t talked to (insert remote team member’s name here) in forever”
“Out of sight, out of mind” doesn’t apply to a productive hybrid workforce. Just because a
person works remotely doesn’t mean they can be absent from discussions and brainstorming sessions. Their voice needs to be heard just like everyone else’s.
The Solution: Schedule frequent check-ins
Use meetings judiciously to accomplish goals and successfully communicate with the team, not to micromanage your remote staff. That said, regularly touching base with your entire team keeps everyone in the loop and focused on the current projects. Whether it’s a weekly meeting, a quick one-on-one check-in, or a progress update on your team’s communication app, meetings help keep everyone connected.
The Issue: “Nobody told me that” As we mentioned above, it’s easy for remote and hybrid employees to fall off the team’s radar. If they are left out of updates and plans their work performance can take a big hit.
The Solution: Avoid decreased communication Technology offers numerous ways to share information, ideas, and insights with co-workers. Video conferencing tools, emails, texts, and messaging through collaboration apps should be commonplace ways for teams to communicate, even if they aren’t located in the same office.
The hybrid workplace has emerged as an approach offering unique benefits that make it worth a company’s time to embrace. HR pros play a pivotal role in facilitating its success, because only by effectively managing all team members can the hybrid model succeed. By understanding the common issues, and proactively finding solutions for them, organizations can enjoy the rewards of a hybrid workplace without falling victim to its challenges.
Henderson Chief Revenue Offiicer Data Facts, Inc.
Jhenderson@datafacts.com www.datafacts.com
Julie
Highlights from the
SHRM-Memphis Executive Roundtable Holiday Cocktail Reception Owen Brennan’s Restaurant in Memphis | December 8, 2022
5.
Atone time it was technical proficiency that was considered the main quality that was desired when it came to leadership. While technical skills are important, they are now considered to be entry level skills that are necessary to get your foot in the door. Besides, many jobs are now so complex that we need to rely on a team of competent people. If leaders lack the ability to communicate, collaborate with others, and set up a culture that supports staff appreciation and development, their technical skills alone will not serve them or their organization well. It is in these areas that emotional intelligence becomes critical for leadership. Leaders set the tone for their organization. If they are lacking in emotional intelligence, it will negatively affect employee engagement, satisfaction, turnover and ultimately the bottom financial line of their organization. The good news is that emotional intelligence is not static. It can be developed, and leaders can develop theirs, increasing their leadership potential.
Here are 7 things to look for in an Emotionally Intelligent Leader
1.
“They are sincere. Sincerity is the quality of being honest, true and real.”
(The S.M.A.R.T. Approach to Emotional Intelligence by Dr. Hank Clemons.)
Emotionally Intelligent leaders are the biggest boosters of their organization. They show continuous belief in their work, the work of their people and the success of their organization. This strong belief and support of the leader helps an organization through difficult times. If this is missing from a leader, it is difficult for others to keep their faith and belief in what they are doing.
Growth and development require that we continue to push the boundaries of what we feel comfortable doing. Emotionally strong leaders recognize this and continue to push themselves and encourage those around them to go beyond what they already know and are familiar with. They recognize that change is constant and that their success, the success of their people, and organization require constant advancements and adjustments.
During times of difficulty and crisis, employees will look to leaders for guidance as to the seriousness of the situation and how to respond. Being aware of this, it is crucial that leaders can show an outward calm and maintain composure, managing their own emotions. Even if they don’t have immediate solutions, maintaining calm in the face of difficulties will help their team focus their energies on coming up with solutions, rather than needlessly squandering them on fear and worry.
When dealing with an emotionally intelligent leader, we can be assured that it will be clear where they are coming from. We won’t have to worry about deciphering the message they are sending, keeping information from us or their motives. They share as much as they are always able to with their people and expect the same from others in their circle. They don’t feel the need to hide things from others, cover up their mistakes, or play favorites in their workplace. They treat everyone the same, regardless of their position or station in life.
Emotionally intelligent leaders are aware of their emotions and are not afraid to express them when appropriate. They are aware of how emotions affect everything that we do and are skilled at reading the emotions of others individually and of those in groups. In my book, The Other Kind of Smart, Simple Ways to Boost your Emotional Intelligence for Greater Personal Effectiveness and Success, www.theotherkindofsmart. com, I give examples of leaders who met their people at their own human level. This allows them to meet others at their emotional level and accomplish the feeling of being seen and heard, even during times of disagreement and conflict.
6. Don’t let setbacks or failures derail their goals
Rarely does anything go exactly as planned. Failures and setbacks are inevitable parts of the road to anything worth doing that eventually turns into success. Emotionally intelligent leaders expect there to be roadblocks and emotionally prepare for them. They look for the lesson learned, and difficulties don’t take setbacks personally. To them, it is all part of their learning and development journey that they believe will lead them to reaching their goals. “Emotionally Intelligent leaders are resilient. Resilient people develop a mental capacity that allows them to adapt with ease during adversity,” (The S.M.A.R.T. Approach to Emotional Intelligence by Dr. Hank Clemons.)
7. Don’t get sucked into negativity
Everyone has times when they are down, feel like complaining and struggling to stay positive. Emotionally intelligent leaders are not immune to those feelings. However, they never allow them to set up permanent residence in their minds. While they are open to and supportive of others feelings, they distance themselves from people who are chronic complainers or constantly negative. The people they do surround themselves with have a positive outlook and view the bright side of life. They believe that life is to be experienced and enjoyed to the fullest and attract (and are attracted to) people who live by the same belief.
Harvey Deutschendorf is an emotional intelligence expert, internationally published author and speaker. To take the EI Quiz go to theotherkindofsmart.com. His book THE OTHER KIND OF SMART, Simple Ways to Boost Your Emotional Intelligence for Greater Personal Effectiveness and Success has been published in 4 languages. Harvey writes for FAST COMPANY and has a monthly column with HRPROFESSIONALS MAGAZINE. You can follow him on Twitter @theeiguy.
I recently found my old copy of John Steinbeck’s “The Winter of Our Discontent.” I remember reading this novel in high school (more years ago than is prudent to share) and not truly appreciating the sentiment of the plot. But it’s 2023 and following the very turbulent last few years, it seems a great time to reflect on the past and celebrate the hope and new beginning that a fresh year brings.
Often used in a negative context, the “winter” of our discontent is actually a very positive statement. From Shakespeare’s reference in Richard III, it is a bold, positive statement that the past is done – and the future is looking very bright! Of course, winter is seen as the time when so much of life lies dormant – an ending, if you will, of planting, growing and harvesting seasons. In the same way, all the negativity from the last few years seems to be truly in the past and the future is starting to look much different. Is the world perfect? Of course not! But perhaps it’s time to start focusing on the end of our discontent era and start planning for a different year in 2023. Most every businessperson is ready for a new season and a change in the old patterns of negative circumstances and behaviors from employees. Unemployment numbers are still low, but many jobs are left unfilled. As the search for skilled, experienced workers continues, aligning compensation with both inflation and worker demand is a daunting task. The pandemic of 2020 (and beyond) seems to be lessening its grip on society and there are opportunities for executive management to create and sustain a positive work environment. How to start? I’m glad you asked!
Rather than constantly addressing negative issues, keep a laser focus on positive outcomes. For example, are you still wrestling with remote work arrangements? Having trouble getting employees to return to the office? Look closely at the success and productivity of the remote worker. If it is working, why change it? If it is not working, look closely at why. Employees will respond to how they are managed. If productivity has fallen, look at how your staff has been managed. Engage more with them. Check in more frequently. Have productivity goals in place and review these goals often with each employee. Do not just assume a remote employee is not fully engaged. Do your part! Be present with your staff DAILY. And, by the way – this strategy should also apply to folks who are still sitting outside your office door!
Employees want to be informed. There are very few employees who will purposely choose to stay in the dark about what’s going on in their organization. Do you have meetings to discuss turnover numbers? Do you talk openly about the challenges of management to keep employees focused and engaged on the mission of the organization? Do you share the financial reports with your staff? Do they understand the difference between profit and operating income? Discontent grows when information is scarce. Keeping the dialog going and sharing information about how the company actually works is a great way to head off false
narratives. One of the cardinal rules of HR is still, “When employees are not given correct information, they will make up their own story.” More often than not, their stories will be quite negative and will impact the entire organization. Talk and talk often – and give employees an opportunity to speak as well.
Companies have, for the most part, become quite adept at recognizing important work achievements by their employees. All kinds of programs have been developed to celebrate the successes within an organization. But what about celebrating those things that happen outside of work? Do you celebrate when an employee completes a half marathon? When they have a new baby – or a new grandchild? What about when they adopt a pet? Do you recognize community volunteer efforts such as spending time working at a homeless shelter? Working with Habitat for Humanity or volunteering at a veteran’s event? What about the not-sohappy events that make up every person’s life? Do you acknowledge family losses – or help when an employee’s significant other loses their job or has an illness?
HR has long recognized the importance of the “whole person.” It is important that we focus on what makes our organization grow, but we must embrace the idea that our employees’ lives are about more than the eight hours they spend at their job. When their employer acknowledges what happens in the time they are NOT at work, engagement level increases.
There have been several advertisements recently touting the sentiment “we’re all in this together.” While it sounds nice, it’s really not true. It even sounds as if everyone is in the same circumstance due to (fill in the blank). In the workplace, no two employees are in the same situation at the same time. An on-line blogger recently posted a glaring example of the disconnect. He and his co-workers were discussing the reality of trying to make ends meet with the economic reality of inflation and the rather flat response from their organization regarding inflation and the shrinking value of their hard-earned dollars. A senior manager, thinking she was being empathetic, stepped into the conversation and shared that she and her family were going to have to postpone buying a vacation home because of the economy. Needless to say, her input was not met with anything except disdain. It’s okay to empathize. It’s not okay to equate the reality of your entry and mid-level staff with that of executives. The reality is we are NOT in the same boat. It is still a good idea to look at employee circumstances and make adjustments where they can be made. By taking off your management/executive shoes and walking a mile in the shoes of your lowest paid workers, you will better understand their real needs. And when you express a true understanding of their day-to-day struggles, they will trust that you’re looking out for them. That builds trust. And trust is the foundation for engagement.
Are you ready to accentuate the positive? It’s the start of a new season. Let’s celebrate the winter of our discontent and look forward to a better, brighter season that is ahead. Happy New Year!
Janie Warner, SHRM-SCP Vice President/HR Practice Leader McGriff, Inc.
Employee recognition – which according to experts, started in North America about 70 years ago – has taken many forms since then. Perhaps the most widely known and historically tied to the length of service is the ceremonial gold watch. Leading up to this prized form of gratitude, employees would receive lapel pins celebrating one, five, ten or more years of service. As new generations entered the workforce, jewelry was replaced by awards catalogs filled with merchandise that corresponded to different levels of recognition. It is no surprise that as the speed of business accelerated, technology played a role in employee recognition. Ranging from “wow” tweets on social media to virtual badges indicating performance accomplishments, recognition is no longer a lengthy journey to a single moment.
Regardless of how employee recognition is expressed – whether with a Lucite award or swag box – the underlying science remains the same. A recent study of more than 12,000 employees across 12 countries by Gallup and Workhuman found that when employees are recognized at work, they are up to 10 times as likely to strongly agree that they belong at their organization. In contrast, employees who lack a strong sense of belonging are up to 12 times as likely to be disengaged and five times more likely to be looking for another job. Equally compelling from the findings is that high-quality recognition is strongly associated with lower rates of burnout.
So, by now, you’re probably already wondering how pies relate to employee recognition. One of our HRCI board members is Katharine “Kathy” Claytor. A celebrated HR thought leader, we gain tremendous insights from her experience as a CHRO and global business expert. When I was preparing to cover the employee recognition topic for this article, I asked her for her guidance.
“Recognition is an opportunity to make an individual connection with each member of your team, and who wouldn’t want to do that? There is a saying that goes, ‘At the end of the day, your teams may not remember what you said or did; they will remember how you made them feel,’” she said. “With gratitude and just before Thanksgiving, we send each team member a homemade apple pie to their homes. The feedback is about how we made them feel; grateful, happy, reminiscent.”
Her response gave me pause. Of course, it also elicited all the senses that go along with a homemade apple pie (or pumpkin or cherry, your pick). Feeling valued, involved and satisfied.
Delving into the Gallup and Workhuman study, their research found that employees who strongly agree that recognition is an integral part of their culture are up to 91 percent more likely to be thriving in their lives, and those who have high-quality recognition experiences are up to 10 times as likely to agree they that they belong.
“Belonging is a key component of inclusion. When employees are truly included, they perceive that the organization cares for them as individuals — their authentic selves. HR helps make that happen,” said Ania Krasniewska, Group Vice President at Gartner. “It’s good for employees — and ultimately improves business performance.” Gartner advises organizations to strive for a workplace culture in which individuality is both noticed and valued.
Claytor concurs and offers tips on how all of us can advance employee recognition – regardless of our workplace environment. She believes that recognition has become increasingly important in light of today’s hybrid and decentralized settings and recommends taking a layered approach that accounts for all types of moments rather than simply marking one’s annual service to the organization.
Claytor says, “Recognition is a means to stay connected up, down, and across your organization. Done well, recognition is authentic, personal, and, when possible, customized. It can be company swag, but it can also be a handwritten note or conversation for a life event. It can be a note of thanks for business results or an invitation to a charitable or volunteerism event that aligns with your company’s mission, or a personalized experience. The cadence can matter, especially if you’re only reading through the annual list of service awards once a year. Remember, it’s how you make people feel.”
Amy Schabacker Dufrane, Ed.D., SPHR, CAE, is CEO of HRCI, the world’s premier credentialing and learning organization for the human resources profession. Before joining HRCI, she spent more than 25 years in HR leadership and teaching roles. She is a member of the Economic Club, serves on the Wall Street Journal CEO Council, is a member of the CEO Roundtable, and is on the board for the Columbia Lighthouse for the Blind. Amy holds a doctorate from The George Washington University, an MBA and MA from Marymount University, and a BS from Hood College.
The new year is always a good time to review employment policies and consider updates for the coming year. This article will address some of the more prominent legal issues that may require attention in the handbook.
President Biden has openly stated he intends “to be the most pro-union President leading the most pro-union administration in American history.” (Presidential Remarks, September 8, 2021.) Biden has also signed two (2) Executive Orders on LGBTQI+ rights, most recently in June of 2022. Employers should consider these administrative goals when reviewing the handbook as well as in planning for employee and managerial training in the coming years.
In December 2022, Congress passed the Respect for Marriage Act, which prohibits states from denying the validity of out-ofstate marriages based on sex, race or ethnicity. While generally an employment handbook does not include policies addressing marriage, or LGBTQI+ issues directly, given these clear trends, employers should review existing EEO, nondiscrimination and non-harassment policies with these administrative goals in mind. In addition, employers may consider revising handbook verbiage to avoid reference to husband/wife, or pronouns referencing specific genders.
Earlier in 2022, Congress passed the Ending Forced Arbitration in Sexual Assault and Sexual Harassment Act. This act voids pre-dispute arbitration clauses in certain cases, including those involving sexual harassment and misconduct allegations. Although it is not a violation per se to have arbitration policies in the handbook, it can certainly create confusion and enforcement issues, as the policies cannot be enforced with respect to sexual harassment or sexual assault matters.
In addition, the Act applies to arbitration clauses in other documents such as separate contracts and agreements.
On July 9, 2021, President Biden signed an Executive Order encouraging the Federal Trade Commission “to consider…the FTC’s statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” Employers should take a close look at non-compete, non-solicitation provisions in the handbook and in separate agreements, or any other policies which might “limit worker mobility,” particularly where the company has multi-state locations.
Most everyone on planet Earth has grown weary of COVID and its related issues; however, it does bear mentioning with respect to updating employment policies. Employers should consider an infectious disease/ employee protection policy which would advise employees as to the steps management would take in the interests of employee safety, such as following established guidelines set by the CDC, OSHA or other public health officials in the event a communicable disease or other emergency impacts business operations.
In addition, employers should consider including a provision that permits the suspension of handbook policies based on company discretion in the event of national or local emergencies, pandemics, weather issues, or other events that create disruptions in normal business operations.
COVID certainly brought about changes in the workplace, and none more so than the increase of remote work, which is likely here to stay in some form in the workplace. Depending on the nature of the work, the position held, the employer’s location and other related factors, it is important for
employers moving forward from the pandemic to evaluate which positions can be performed remotely. Employers should focus on the job rather than the individuals holding those jobs and consider the relevant job descriptions, job duties, security issues, productivity metrics, and the ability to enforce other employer policies in determining whether a position can be effectively performed remotely. Employers should also consider establishing boundaries and expectations for working from home such as work schedules, securing confidential company information during or at the end of the workday, adherence to break times, etc. Employers should require employees to keep accurate records of all time worked, and should establish guidelines for when, what and how remote work may be performed.
Apart from handbook policies, it is also important for employers to be prepared to address some of the drawbacks to remote work such as increasing the availability of employee communication with management, providing effective wellness programs to include mental health concerns, encouraging work-life balance to avoid employee burn-out and ensuring compliance with the FLSA (29 U.S.C.§201 et seq.) by verifying that employees do not perform work when they are supposed to be “off the clock.”
With more remote work, and the increase of cyber-risks, employers should frequently and regularly review and update data security policies and protocols in the workplace, which are increasingly necessary to protect company trade secrets, business operations, employee data and confidential business information. Training is essential in this area and employers should work with their IT department or third-party for input in training. Employers should consider the type of information a remote worker will access or possess while working remotely. These data protection policies and protocols are necessary for all employers, regardless of whether the company allows remote work or not.
In addition, employers should consider whether “remote work” is broad enough to allow the employee to work from the coffee café at an out-of-state beach location, or whether “remote work” is limited to the employee’s place of residence. Obviously, the cybersecurity challenges are very different depending on where the employee is performing the “remote work.” Employers who allow remote work to be performed routinely from another state should consider state-law differences and ensure compliance with those state laws.
Given the pro-Labor stance from the Biden Administration, including 2021 and 2022 memos from NLRB GC Abruzzo, employers must take care to balance policies with employees’ rights under the National Labor Relations Act (NLRA), which covers most private employers regardless of union presence. Employers should review workplace conduct policies, as well as policies which place limits on the use of personal devices or company-provided technology/computers, or that restrict workplace communications or the use of business information. Such policies should be drafted carefully so as not to interfere with employees’ Section 7 rights (29 U.S.C. §157) under the NLRA. If concerns are based on proprietary business protections or confidentiality issues, try to include that reasoning in the policy to reduce the chances of trampling on employees’ protected rights.
It is increasingly important for employees to include an ADA accommodation policy where the employer is subject to the ADA or other accommodation requirements under state law. The policy should provide that the employer will engage in the interactive process and will assist employees with disabilities in assessing requests for reasonable accommodations. The policy should provide guidance on making requests for reasonable accommodations but of course, supervisors and managers should still be trained to recognize those situations where an accommodation is or may be needed even if the employee does not specifically request one, because employees are not always aware that an accommodation might be available.
Employers with multi-state locations must be mindful of applicable state laws when updating the employee handbook. Policies which are inconsistent with state law can present compliance and liability issues as well as morale issues when employees perceive inconsistency in the company policies. While it is a good idea to include a provision that the employer will always adhere to applicable federal and/or state law when applying and interpreting the policies, in some cases that may not be sufficient where a policy, implemented as written, is a violation of state law.
Tennessee recently passed the CROWN Act, effective July 1, 2022, entitled “Creating a Respectful and Open World for Natural Hair.” The law renders void any employer policy or practice that prohibits braids, locs, twists, or any manner of hairstyle that is part of the cultural identification or physical characteristic of the employee’s ethnic identity. There are health and safety exceptions, but employers may want to update dress code policies to coordinate with the CROWN act. (TCA §50-1-313).
In addition, Tennessee employers must now allow veteran employees to take unpaid leave on Veterans’ Day/November 11 each year, provided the employee complies with the statutory requirements, including at least one-month’s written notice to management of his/her intent to take leave on Veterans’ Day. (TCA §15-1-105).
This article has focused on workplace trends and recent legal developments that may impact handbook policies. However, it is also important to review the “must-have” policies for updates, such as the Company introduction, a clear procedure for reporting complaints, disciplinary rules, and required leaves of absence policies where applicable such as the federal Family and Medical Leave Act and/or the Tennessee Family Leave Act (TCA §4-21-408). Employers should also make sure all the required workplace posters are up to date. A full review of legal requirements for handbook policies is beyond the scope of this article so, it is always advisable to include legal counsel in the review and updating process or at the very least, have legal counsel review the final draft prior to finalizing the handbook for publication.
Mary C.
Moffatt, Member Wimberly Lawson Wright Daves & Jones PLLC Morriistown, Tennessee office mmoffatt@wimberlylawson.com
here are various options in-house attorneys might consider if their business does not have a non-compete agreement in place, but would like to develop one. When taking the first steps to develop a non-compete strategy, it is important to first understand that non-compete agreements are generally disfavored as a matter of public policy, and that issue results in a range of approaches in every state.
Courts in different states will vary on the enforceability of non-competes and how different restrictions may be included depending on whether they view the agreements favorably or not. For example, non-competes arising out of an employment agreement may be enforced for up to two years in the geographic area served by the employer during the employment relationship. However, courts in favorable states often will limit enforcement to a shorter time period and only the geographic area where an employee actually provided services, while less favorable states may not enforce the agreement at all (e.g., California), or limit enforcement to employees compensated over a certain threshold (e.g., Illinois) or require compensation for the former employee during the term of the non-compete (e.g., Massachusetts).
The state-by-state patchwork introduces challenges for implementing a non-compete in the workplace. Best practices for navigating the complex issue, include:
1. Be mindful of the approach to non-competes of the states in which employees are located.
2. Only require non-competes for employees who really do have access to confidential information that is of a consequential nature or personal relationships with customers that could be used by the employee for a competitor.
3. Consider whether you can obtain the necessary protection by requiring only a non-solicitation agreement (the employee agrees not to do business with customers of the business), rather than a non-compete in which the employee agrees not to engage at all in the provision of the same services as the employer.
4. Limit the time period and geographic scope of non-compete as much as possible.
5. Draft non-compete agreements so that they can withstand blue penciling if necessary. Add multiple provisions regarding length and geographic scope so something will be left if the court strikes some of the provisions.
6. Finally, take heart that even in states that will not enforce a non-compete, thereby leaving the customer goodwill developed by your employees essentially unprotected, courts will still protect your confidential information. Every non-compete agreement should include a confidentiality agreement. Often unfair competition can be protected by enforcing the confidentiality obligation of the former employee.
A full article on the topic, “Developing a Non-Compete Implementation Strategy,” was published online and in the November 2022 issue of Today’s General Counsel. You can access the full article here: https://www.todaysgeneralcounsel.com/developinga-non-compete-implementation-strategy/
Bob Horton is a member at Bass, Berry & Sims and chair of the firm’s Labor & Employment Practice Group where he represents management in all areas of labor and employment law. Bob’s practice consists primarily of counseling clients regarding employment issues and defending companies against all manner of employment claims throughout the U.S. He can be reached at bhorton@bassberry.com.
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Client: We’re going to have to fire this guy, and everyone is a little afraid of him. What do you think?
SHSG Expert: The fact that people are afraid certainly matters, but let’s run through some other warning signs.
Client: Okay.
SHSG Expert: How has his behavior changed as of late?
Client: His performance is way down, mistakes are way up, and he sometimes has angry outbursts.
SHSG Expert: Does he accept responsibility for his mistakes?
Client: Nope. In fact, he tends to blame his coworkers.
SHSG Expert: Is he a loner? In other words, does he have other people who support him?
Client: No support whatsoever. No friends at work, no family, nothing.
SHSG Expert: Is he experiencing any major life stressors right now?
Client: I’ll say! Divorce, financial problems including a bankruptcy, his mother died and…
SHSG Expert: He may lose his job.
Client: Exactly!
SHSG Expert: This isn’t looking too good, but I have a lot more questions before I can offer an accurate assessment.
While paraphrased, this is an actual conversation between an HR director at a major regional company and a Threat Assessment and Management expert from SafeHaven Security Group. We have convos like this every day.
In this case we learned that the employee was planning violence against his boss and several coworkers.
How do we know?
The warning signs of someone who is on a path toward violence come from well-documented research. Researchers have studied hundreds of cases that resulted in a violent act and discovered a few behaviors that were present in most cases. We call them “correlates of violence” and they help us determine which cases you needn’t worry too much about and which ones you must act on.
Below are several warning signs and a brief explanation of each. Remember that checking the box on a couple of these is nothing to worry about, but four or five boxes checked on the same individual gives cause for concern.
Blames Others – One level of this factor is refusing to accept responsibility for one’s own actions. The next level is consistently blaming others. When you give up control to another person, it often causes a downward spiral of unhealthy focus and collateral damage.
Not Adaptable – An inability or unwillingness to adapt to a changing environment. For many people, change causes stress and these folks don’t do well with change.
Low Self-Esteem – Esteem is about value and this person doesn’t value themselves. It’s much easier to destroy something you don’t value. And if they don’t value themselves, how much do you think they value you?
Loner – For our purposes, a loner is someone who doesn’t have a deep, meaningful relationship with another human being. Imagine what life would be like if there was no one to support you or care about you or hold you accountable.
Depression – These folks often suffer from depression or some other mental or emotional health issue. Rarely is this bad enough to require in-patient care and they can often live happy, productive lives, especially if they stay on their treatment plan.
Multiple Major Life Stressors – We all get used to dealing with a certain amount of stress. It’s probably increased each year over time, but it did so incrementally, so we got accustomed to it. But when there is a major life stressor (divorce, death in the family, financial problems, addiction, etc.), stress levels take a jump. Most healthy people can handle one major life stressor
at a time with only minor difficulties. What happens though when several major stressors hit at the same time? Stress levels rise exponentially, and the result is often extreme behaviors.
Diminishing Inhibitors – While all of us have been angry enough to reach across the table and smack somebody, most of us can find reasons to control our baser impulses and restrain ourselves. We don’t act violently because doing so might result in termination, criminal charges, developing a bad reputation, setting a bad example for our children, etc. But what happens when someone’s inhibitors start to fall? Sometimes they can’t think of a single reason not to be violent.
Irrational Beliefs and Ideas – Some people just believe things that are so far removed from reality that it makes you wonder where the idea came from. It’s important to understand what these beliefs and ideas are before you can know if this correlate is meaningful.
Little Empathy for Others – Sympathy is “I feel bad for you,” while empathy is “I feel what you feel.” Most humans feel empathy toward other humans. But empathy levels are measured on a continuum and these folks don’t have much. Having little empathy makes it much easier to hurt another person and not feel bad about it.
There are more than two dozen other violence correlates that we simply don’t have the time or space to list. You might also imagine that each factor receives a “weighting” to indicate its level of significance. We don’t have time for that either.
What we do have time for is to urge you to call us if you notice multiple warning signs in the same individual. Remember that these signs apply to a coworker, the spouse of a coworker, a friend, a friend of a friend, a neighbor, a family member…literally anyone who’s behavior you can observe or situation you can understand.
SafeHaven Security Group wants to partner with you in learning the warning signs, assessing threats, and keeping you safe. Just like we did with the above client.
Remember, the initial call and assessment is always free. There is simply no reason not to call.
SPECIAL ANNOUNCEMENT:
SafeHaven is now offering a Certified Threat Analyst course to be conducted online, starting late January. Contact Matt@ SafeHavenSecurityGroup.com if you’d like to add to your credentials and develop in-house resources to keep people safe.
As most professionals are aware, employee benefits play an important role in retaining employees. According to a recent zippia.com survey, only about 65% of U.S. workers are happy with their jobs; down almost 24% from a 2017 SHRM survey that put that number closer to 89%. According to zippia, at least 26% want to leave their current job. The study cited higher compensation and higher meaning as playing key roles in engaging employees. A further breakdown in job satisfaction statistics included the following as being most important: Respect (72%), meaningfulness (35%), salary (20%), autonomy (18%), opportunity (15%) and recognition (12%). The benefits employees value most are health benefits (88%), vacation/PTO (82%), 401k, retirement, or pension plan (82%), and paid parental leave (70%). Not to be missed is the notable increase in desire for professional development benefits. Thus, a well-rounded benefits package that includes professional development support, flexible work options, and robust health & welfare benefits that rival those of an organization’s competitors could help with employee retention and recruitment by checking both the “compensation” and “meaning” boxes.
In the 2022 SHRM Benefits survey we see the breakdown in importance of health-related benefits (fig 1). Our world has changed and the COVID-19 pandemic’s impact on employee benefits cannot be understated. Most notably, its effect can be seen in the increase in the prevalence of telemedicine or telehealth offerings (20% increase) and the offering of mental health coverage, which hit a new high of 91% of employers stating they offer the coverage. Why should you care? Your organization depends upon it! The top reason for increasing benefits was to remain competitive in the talent marketplace. A 2022 NFIB (National Federation of Independent Business) study noted that 55% of owners and recruiters admitted to struggling to find qualified applicants for positions they were trying to fill. Organizations need to focus on providing a competitive benefits package to retain and attract top talent or face obscurity. Without human capital, a business cannot grow, nor can it compete. And with the U.S. facing one of the most alarming labor crunches as 10,000 baby boomers will hit retirement age every day for the next 19 years, CREATIVE and AFFORDABLE benefits must be leveraged to help with common recruiting strategies.
In today’s competitive talent marketplace, it is imperative for organizations to make informed and strategic decisions about what benefits to offer as part of their total rewards strategy. The talent pool is shifting and by 2025 the baby boomers will have passed the baton to Millennials who are projected to make up about 75% of all workers. It is up to you and your Broker to understand this change and to know what the most important benefit trends are. Then you must decide what innovative strategies you can implement to provide offerings that will fit with your company culture so you can secure your organization’s talent needs; thereby, securing its future.
bill, (2) $5 bills, (5) $2 bills and 100 $1 lottery scratch-off tickets in the machines. The currency and lottery tickets are affixed to the back of a drink or bag of chips. The best part about this program is that when your team member makes their selection, they have absolutely no idea they are about to be rewarded for utilizing the vending machine. Every month thereafter, Advantage Refreshments will continue to put cash prizes and giveaways in the vending machines to keep the positive momentum going. All of this is provided at no cost to your company.
Everywhere you look, there is a new article published or statistic posted about the war on talent in the current employment landscape. The phenomenon known as the Great Resignation has attracted the interest of researchers and analysts across the globe. The average number of people who leave their jobs each month in the United States is baffling. According to the United States Bureau of Labor Statistics, nearly 4 million people quit their job in October 2022. This trend shows no signs of slowing down and it has left employers scrambling to find ways to increase employee retention.
Studies have found that employers can decelerate the Great Resignation by offering proper compensation, staying transparent with long-term company goals and objectives, and offering valued incentives and recognition. Below is how Advantage Refreshments can help solve this issue without costing your company a penny!
The Advantage Refreshments team has developed unique and effective ways to recognize your team members and increase working conditions. Employees in general like and appreciate recognition, some may prefer it publicly in large group settings while others respond best to private conversations, but at the end of the day, recognition keeps team members engaged. In today’s world, the old “pat on the back” just does not mean as much as it once did. Employees expect immediate recognition and become easily bored with repetitive, predictable recognition programs. Advantage Refreshments has partnered with employers to add another recognition program to their arsenal, and even better, at no cost to the employer.
Advantage Refreshments installs brand new, state-of-the-art vending equipment at your business and incentivizes your team members to utilize the machines. Our vending equipment comes standard with a patented guaranteed delivery system for your team members, meaning they will never be charged for an item that does not vend properly. Additionally, during the first month following the installation of the new vending equipment, Advantage Refreshments will place a total of $700 worth of promotional items in the machines for your team members to receive, (5) $100 bills, (1) $50 bill, (1) $20 bill, (1) $10
Another way that Advantage Refreshments positively impacts employee appreciation is by providing “Free Vend Coupons.” Each month you will be provided 10 “Free Vend Coupons” to distribute as you see fit. If you observe a team member going above and beyond the call of duty, verbally congratulate them and tell them that as a token of the company’s appreciation they can get a drink or snack for free. You’ll see their face light up and costs your company nothing.
If that isn’t enough, Advantage Refreshments also gives each employee at your company a $10 Visa Gift Card on the day that your new vending machines are delivered. We will never have an employee complain that the first $10 worth of purchases in the vending machine are on us.
A few weeks ago, I got an early morning text from a General Manager (GM) at a large manufacturing facility that said, “call me right away.” If I’ve learned anything throughout my career, it’s that a 5:00 AM text of that nature is typically never good. When I called, the GM shared that he was in disbelief that a team member who worked 3rd shift the night before won $100 on a bottle of Pepsi. She ran up and down the breakroom showing everybody in sight and immediately lines formed at the vending machines, her coworkers hoping for the same fate. The machine sold out overnight and the factory was a buzz of excitement. The GM has since incorporated several location specific recognition pieces into the machines at his plant and as a holiday giveaway to his team, he wanted to put vouchers for 5 Apple iPads in the vending machines. The first team member who won one of the iPads was so excited they burst into tears!
The recognition possibilities are endless when you partner with Advantage Refreshments, let us help you increase employee retention with our unique, “no-cost-to-you vending program!” Call today to reap the benefits of our amazing employee refreshment program!
Ken Joyner, SHRM-SCP 715-587-7900
Ken@AdvantageRefreshments.com
President Joe Biden signed the Speak Out Now Act into law on December 7, 2022. The Act comes as an offshoot of the #MeToo movement and was spearheaded by the #MeToo movement’s leaders Gretchen Carlson and Julie Roginsky. As part of its reasoning for passing the Speak Out Now Act, Congress found that “81% of women and 43[%] . . . of men have experienced some form of sexual harassment or assault.” S.4524(2)(2). Additionally, “[o]ne in three women has faced sexual harassment in the workplace during her career, and an estimated 87% to 94% of those who experience sexual harassment never file a formal complaint.” Id. The Speak Out Now Act comes on the heels of the Ending of Forced Arbitration of Sexual Assault and Sexual Harassment Act, which prohibits mandatory arbitration for sexual harassment and sexual assault disputes. President Biden signed that measure into law on March 3, 2022.
The Speak Out Now Act explicitly bans all nondisclosure clauses and non-disparagement clauses regarding a sexual assault or sexual harassment dispute that is “agreed to before the dispute arises . . . in which conduct is alleged to have violated Federal, Tribal, or State law.” S.4542(4)(a). This means that as of December 7, 2022, all nondisclosure clauses and non-disparagement clauses regarding sexual harassment or sexual assault disputes under federal, tribal, or state law which are part of an agreement entered into before the dispute occurs are unenforceable. Id. This prohibition applies to all agreements, regardless of when they were executed, as long as the sexual assault dispute or sexual harassment dispute was brought under federal, tribal, or state law on or after December 7, 2022. S.4542(5).
The Speak Out Now Act also accounts for state laws which may provide further protections for individuals who signed agreements that included a nondisclosure clause or a non-disparagement clause regarding sexual assault and sexual harassment disputes before those disputes arose. Specifically, the Act says that “[n]othing in this Act shall prohibit a State or locality from enforcing a provision of State law governing nondisclosure on non-disparagement clauses that is at least as protective of the right of an individual to speak freely, as provided by this Act.” S.4542(4)(b). The Act also does not “supersede a provision of Federal, State, or Tribal Law that governs the use of pseudonyms in the filing of claims involving sexual assault or sexual harassment disputes.” S.4542(4) (c). This means that potential victims who file claims alleging sexual harassment or sexual assault may continue to file under pseudonyms to the extent permitted by law.
The Speak Out Now Act also ensures protections for employers with regard to trade secrets and confidential information. Specifically, the Speak Out Now Act explicitly states that “[n]othing in this Act shall prohibit an employer and an employee from protecting trade secrets or proprietary information.” S.4542(4)(d). Further, the Act only applies to a sexual assault dispute or a sexual harassment dispute. The Act defines a sexual assault dispute as “a dispute involving a non-consensual sexual act or sexual contact, as such terms are defined in section 2246 of title 18, United States Code, or similar applicable Tribal or State law, including when the victim lacks capacity to consent.” S.4542(3)(3). The Act defines a sexual harassment dispute as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” S.4542(3)(4).
Overall, the Speak Out Now Act makes modest changes to the current employment law landscape. The only activity that the Speak Out Now Act prohibits is entering into an agreement that contains a nondisclosure clause and/or non-disparagement clause regarding a sexual assault dispute or a sexual harassment dispute raised under federal, tribal, or state law prior to the dispute arising. The Speak Out Now Act does not appear to prohibit nondisclosure clauses or non-disparagement clauses that are part of a settlement agreement, or any other agreement, after a sexual harassment or sexual assault dispute arises. However, employers should keep in mind what state law prohibitions may exist and ensure that these settlement agreements also comply with applicable state law. Further, the Speak Out Now Act does not prohibit the use of nondisclosure clauses and non-disparagement clauses regarding other subject matters. For example, a nondisclosure clause pertaining to trade secrets or confidential proprietary information would still be enforceable in the context of the Speak Out Now Act.
Although the Act makes minimal changes to employment law, employers should review their agreements, including all non-disparagement and nondisclosure agreements, to verify whether they violate the Speak Out Now Act. Although most agreements contain a severability provision that aims to protect the parties to the agreement by making each clause severable in the event that a clause is voided, it may be best practice to eliminate the unenforceable clause going forward. Additionally, employers may wish to revise these agreements altogether and have employees re-execute them subject to each agreement’s modification clause.
What is it, and what does it mean for employers?
Employers should be aware of states that have implemented their own version of the Speak Out Now Act because those states’ laws could provide even more protections for potential victims of sexual assault or sexual harassment. For example, in California it is unlawful:
for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment,… [to require] an employee to sign a non-disparagement agreement or other document to the extent that it has the purpose or effect of denying the employee the right to disclose information about unlawful acts in the workplace.
Cal. Gov. Code § 12964.5(a)(1)(B)(i) (2022). The term “unlawful acts” likely extends to conduct beyond sexual assault disputes and sexual harassment disputes. Additionally, California requires that all employers put specific language in employment agreements that contemplate non-disparagement clauses, nondisclosure clauses, or similar clauses.
Id. at § 12964.5(a)(1)(B)(ii) (2022). This language explains what an employee’s rights are with regard to discussing unlawful conduct at the workplace. Employers may consider putting similar language in their agreements that contain non-disparagement clauses and nondisclosure clauses that explicitly state that claims regarding sexual assault disputes or sexual harassment disputes that have yet to arise are excluded from such clauses.
Employers should also be aware that similar legislation could be debated and passed by Congress and signed into law by President
agreements in general and a willingness to expand the list of subject matter that is banned from mandatory arbitration. Lisa Nagele-Piazza, President Signs Bill Banning Mandatory Arbitration for Certain Claims, SHRM (Mar. 3, 2022). This aversion to arbitration agreements could extend to non-disparagement clauses and nondisclosure clauses as well, thus suggesting more issues and topics might be excluded from non-disparagement clauses and nondisclosure clauses.
As of now, all nondisclosure clauses and non-disparagement clauses that contemplate a sexual assault dispute or sexual harassment dispute under federal, state, or tribal law, where that dispute has yet to arise, are unenforceable. Employers should review their agreements for nondisclosure clauses and non-disparagement clauses that pertain to sexual harassment disputes or sexual assault disputes prior to the disputes arising and modify them according to the Speak Out Now Act. Employers should also verify that there are no state laws that have even greater restrictions for nondisclosure clauses and non-disparagement clauses.
J. Maroney, Associate Rainey Kizer Reviere & Bell PLC mmaroney@raineykizer.com
Employee separations are hard, regardless of reason. But, if asked, the majority of HR professionals — and anyone who manages people — would rank terminations for cause atop the list of most-unpleasant tasks. For-cause terminations often involve violations of company policy or performance, such as failing to meet productivity standards, poor attendance, or personal misconduct. Unlike other types of separations that are simply part of doing business, such as a reorganization or downsizing, terminations for cause are generally in response to an employee’s actions — or failure to act, in most situations.
Employees who believe they were wrongfully terminated can pursue two main avenues: file a complaint with the EEOC or work with an attorney to file a lawsuit. Examples of wrongful termination reasons include discrimination based on protected class (e.g. disability, race, age); retaliation against an employee; and/or redress for taking leave under the Family and Medical Leave Act (FMLA). When terminating an employee for cause, it’s important to have thorough documentation of the issues that led to the firing. If an employee’s file is incomplete, it could create the perception of a wrongful termination.
When firing an employee for cause, companies should keep several things in mind. Otherwise, you could end up in court defending a wrongful termination suit.
Employers should maintain thorough documentation regarding any employee concerns. A for-cause termination is hard to defend without a paper trail.
For example, 62-year-old Walter Mikulan worked at the Allegheny County Jail in Pennsylvania for almost 30 years before he was terminated for poor performance. However, there was no documentation in his file to suggest he wasn’t performing up to par. Mikulan sued for age discrimination and received a $1.15 million settlement.
There are a few ways employers can address underperforming employees — through performance improvement plans (PIPs) or written warnings, both of which include thorough documentation.
PIPs are generally more comprehensive than written warnings. For example, where a written warning may address a single, tangible employee behavior that is problematic, a PIP tends to focus on the employee’s overall performance and what the employee needs to do to correct the issues. If, for example, an employee rates poorly on their annual performance review, the employer may develop a PIP to outline what specific areas the employee needs to address, how to address them, and when the employee’s performance will be reevaluated.
Ultimately, a PIP should 1) communicate to the employee their need to improve, and 2) state that failure to do so will lead to termination. That said, most PIPs outline action items and due dates — i.e. objective, measurable improvements and the time expectation for each.
Written warnings aim to quickly address poor behavior and/or immediate performance concerns. The warning is just as it sounds: fix this now or face the consequences. Concerns that might warrant a written warning include attendance problems, behavioral issues, or the need to follow certain processes.
Whether using a PIP or written warning, it’s important to gain employee acknowledgement that they understand the expectations being presented to them. Additionally, PIPs and written warnings are more likely to be successful if the employee helps identify solutions for improvement and agrees with the information documented. However, if that’s not the case, it’s imperative that, at a minimum, employees acknowledge they have received the document.
Employers should ensure they have a robust documentation process related to any employee issues.
It’s also important to know whether employees have recently filed any formal grievances — e.g. sexual harassment claims or whistleblower complaints. Even if an employee’s for-cause termination reason is justified and thoroughly documented, firing someone after a recent accusation could be perceived as retaliation. Your company may have a solid defense in court, but that doesn’t mean you won’t receive negative press that impacts the corporate brand.
In one wrongful termination case, two former University of Colorado employees, Richard Siani and Michael Law, uncovered the fact that hazardous waste wasn’t being properly disposed of at the university. The employees reported their concern and were fired. Siani and Law believed their terminations were a form of retaliation, and a jury awarded them $600,000 at trial.
In addition to noting any potential retaliation claims, you should know how you’ve handled similar issues in the past. In an example out of the EEOC’s New York District Office, a Cambodian female was terminated for cause, citing her inability to read, write, and understand English. However, the EEOC determined this to be discriminatory because the company employed other non-English speaking employees in the same role. The company paid $30,000 in monetary and injunctive relief.
Be aware of any recent employee relations issues that could appear retaliatory based on timing. Also be consistent in how you handle concerns from one employee to the next.
Employers should go to great lengths to develop policies and procedures that protect employee information. The information should only be accessible on a need-to-know basis. There are several types of employee information, but the two most commonly referred to are Personal Identifiable Information (PII) and Protected Health Information (PHI).
The HIPAA Privacy Rule outlines certain measures that must be taken when handling an employee’s PHI. For example, an employer can ask an employee for documentation corroborating an absence due to illness. However, the Privacy Rule prevents healthcare providers from sharing an employee's medical information without written consent.
Additionally, the Americans with Disabilities Act (ADA) mandates that employers maintain the confidentiality of employee medical information obtained when determining reasonable accommodations, assessing fitness for duty, or evaluating for workplace safety concerns. The Family and Medical Leave Act (FMLA) also restricts sharing employee medical information.
Chipotle employee, Jeannette Ortiz, was awarded nearly $8 million when a California Superior Court agreed that she was wrongfully terminated. Her employer claimed she was fired for employee theft, but Ortiz suspected it was retaliation for her previous workers’ compensation claims and leave taken under the Family and Medical Leave Act (FMLA). Ortiz’s employee file contained no documentation related to her supposed theft, so the court ruled in her favor.
To mitigate the risk of wrongful termination suits, all employee data should be treated with caution. A general rule of thumb is to apply the principle of least privilege (POLP) — or “minimum necessary” — to all employee information. In other words, users should only have access if it is required to perform their job functions.
This not only helps maximize cybersecurity, but it’s also a good policy to have in place should you face a wrongful termination suit. For example, if an employee files a suit alleging that a “for-cause termination” was actually for medical reasons, it’s beneficial to know which specific employees had access to records related to employee health information, or PHI.
Employee files typically include basic information, such as documents related to general employment (contact details, signed agreements), payment details (tax documents), hiring information (job description, résumé), and documentation related to job performance and/or discipline (annual reviews, written warnings). PII data includes social security numbers, employee identification numbers, driver’s license numbers, and date of birth.
Although all employee information should be safeguarded, extra security measures should be in place related to particularly sensitive data. This may include personal documentation about an employee’s benefits enrollment, background/credit checks, wage garnishment, etc. Any legal information should only be accessible to counsel. Employers should also maintain a separate file for medical documentation, like workers’ compensation information and accommodation requests.
With the right processes and procedures in place, companies can execute for-cause terminations without significant danger of a wrongful termination suit. However, if documentation is sparse or accessible to people who don’t need to see it, companies can be exposed to greater risk.
When it comes to wrongful termination, proactivity is key. Employers should maintain thorough documentation related to performance or disciplinary concerns, as well as other employee relations issues. That way, if an employee is at risk of being fired, companies can ensure they’re viewing the most comprehensive personnel information available.
Jen Bender
SVP People Solutions Change Healthcare jennifer.bender@changehealthcare.com www.changehealthcare.com
Jennifer Bender is the SVP of People Solutions HR Shared Services at Change Healthcare. Jennifer oversees the company's HR operations, ranging from talent acquisition to offboarding. This includes managing complex layoffs and ensuring coordination among all pertinent teams. She has worked in senior HR leadership roles for more than 25 years and has handled many projects related to outsourcing and reductions in force, totaling over $100M in company savings.
Sarah Rodehorst CEO & Co-Founder Onwards HR sarah@onwardshr.com www.onwardshr.com
Sarah Rodehorst is the Chief Executive Officer of Onwards HR, the leading offboarding platform that streamlines employee separations in compliance with corporate policy and employment laws. Her mission is to help HR and legal teams ensure consistent, fair and supportive employee exits. Sarah co-founded Onwards HR after more than two decades of experience launching SaaS products in the human resource sector at startup and Fortune 500 companies. Sarah is a sought-after thought leader and speaker on employee separations, DEI in the workplace, and women in technology.
The all-new 14th Edition of the Tennessee Workers' Compensation Handbook by Fredrick R. Baker is now available!
The all-new 14th Edition of the Tennessee Workers' Compensation Handbook by Fredrick R. Baker is now available!
This new edition covers:
This new edition covers:
• Revised firefighter cancer presumption
• Revised firefighter cancer presumption
• Case law clarification about medical benefits for occupational diseases
• Case law clarification about medical benefits for occupational diseases
• New Telehealth regulations
• New Telehealth regulations
• Clarification as to the calculation of death benefits
• Clarification as to the calculation of death benefits
• Revised standards for Vocational Recovery Assistance
• Revised standards for Vocational Recovery Assistance
• New regulations on Workers’ Compensation Exemption Registration
• New regulations on Workers’ Compensation Exemption Registration
• And much, much more!
• And much, much more!
For more information or to order your copy now, please call or email Brenda Copeland at (931) 372‐9123 or bcopeland@wimberlylawson.com
For more information or to order your copy now, please call or email Brenda Copeland at (931) 372‐9123 or bcopeland@wimberlylawson.com
The Tennessee Workers’ Compensation Handbook, 14th Edition, by Wimberly Lawson Attorney Fred Baker, is the comprehensive resource for anyone who interacts with the Tennessee Workers’ Compensation System. It is designed for HR personnel, attorneys, paralegals, risk managers, claims adjusters, mediators, benefit managers, claims analysts, and judges. Now fully updated and edited for 2023, the Tennessee Workers’ Compensation Handbook, 14th Edition, gives clear, authoritative guidance that will help you navigate the challenges of the new Tennessee Workers’ Compensation landscape.
The Tennessee Workers’ Compensation Handbook, 14th Edition, by Wimberly Lawson Attorney Fred Baker, is the comprehensive resource for anyone who interacts with the Tennessee Workers’ Compensation System. It is designed for HR personnel, attorneys, paralegals, risk managers, claims adjusters, mediators, benefit managers, claims analysts, and judges. Now fully updated and edited for 2023, the Tennessee Workers’ Compensation Handbook, 14th Edition, gives clear, authoritative guidance that will help you navigate the challenges of the new Tennessee Workers’ Compensation landscape.
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, and Tennessee.
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.
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