May 2018 Issue by Cynthia Thompson

Volume 8 : Issue 5

www.HRProfessionalsMagazine.com

Highlights of

SHRM

Landmark Court Decision on

Spring

Conferences

Salary History

Medical Errors â&#x20AC;&#x201C; The Quiet

Problem Affecting Employers

Preview of the 1st Annual HR Executive Conference Cruise October 22-26

Lilly

Ledbetter,

Keynote Speaker SHRMGA HR Legal Summit in Savannah May 4

Preview of 2018 SHRM Annual Conference In Chicago June 17-20

Keeping up with changing laws is a full-time job, and youâ&#x20AC;&#x2122;ve already got one. EMPLOYERS AND LAWYERS, WORKING TOGETHER Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. The firm has more than 850 lawyers located in 52 offices across the United States and in Europe, Canada, and Mexico.

www.ogletree.com BIRMINGHAM OFFICE

JACKSON OFFICE

MEMPHIS OFFICE

420 20th Street North Suite 1900 Birmingham, AL 35203 205.328.1900

207 West Jackson Street Suite 200 Ridgeland, MS 39157 601.360.8444

International Place, Tower II 6410 Poplar Avenue Suite 300 Memphis, TN 38119 901.767.6160

Expand Your World

#SHRM18 will expand your perspective â&#x20AC;&#x201D; on your organization, on your career, and on the way you approach HR.

Keynoters Jeb Bush Former Governor of Florida

Oscar Munoz Chief Executive Officer, United Airlines

Adam Grant NY Times Best-selling Author and Professor, The Wharton School of Business at the University of Pennsylvania

Sheryl Sandberg Chief Operating Officer of Facebook and Founder of Leanin.Org and OptionB.Org

Nearly 200 concurrent sessions COVERING 6 TRACKS: BUSINESS & HR STRATEGY

PROFESSIONAL DEVELOPMENT

HR COMPLIANCE

TALENT MANAGEMENT

GLOBAL HR

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Join us for our 1st Annual HR Executive Conference Cruise! We are combining a robust Human Resources Executive Conference with an exciting cruise to the Bahamas October 22-26. You can earn a boat-load of HRCI business recertification credits and SHRM PDCs, learn from a line-up of top-notch keynote speakers, and network with your peers from Arkansas, Alabama, Georgia, Kentucky, Mississippi, Tennessee and other states in the US for this innovative concept in HR conferences. It is everything that a land-based conference offers - except that it moves! We will be sailing on the Royal Caribbean Mariner of the Seas from Miami.

Day 1

Mon.

Oct. 22

Miami: EMBARK

Depart 4:00 pm

Day 2

Tue.

Oct. 23

Nassau: DOCKED Arrive 8:00 am

Depart 11:59 pm

Day 3

Wed.

Oct. 24

Coco Cay: TENDERED Arrive 7:00 am

Depart 5:00 pm

Day 4

Thu.

Oct. 25

Cruising: CRUISING

Day 5

Fri.

Oct. 26

Miami: DEBARK Arrive 7:00 am

Register before June 1, 2018 to obtain the early bird registration rate of just $599 (plus the cost of your stateroom). We have four stateroom options including an interior room for $499, a promenade room for $549, an ocean view room with balcony for $649 and a Junior Suite with balcony for $919. The cost of your stateroom is â&#x20AC;&#x153;all-inclusiveâ&#x20AC;? based on double occupancy and includes your lodging, all meals, most ship activities, taxes, port fees, pre-paid gratuities, security fees and licenses. Does not include alcohol or Internet. These may be purchased separately. Please email cynthia@hrprosmagazine.com or give me a call at 901.598.0123 and let me know if you are interested in attending our 1st Annual HR Cruise and Executive Conference! Or, if you are ready to make your purchase visit hrcruise.com! HR Professionals Magazine is partnering with Aspect Marketing and Communications, Inc. for this innovative conference and will assist in managing the HR Executive Conference Cruise for our guests.

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WEB EXCLUSIVES HTTP://HRProfessionalsMagazine.com /Exclusive

Lilly Ledbetter Photo by Lance Johnson Studio, Anniston, Alabama

Bringing Human Resources & Management Expertise to You

According to ECSI research, more than 60% of all work tasks are performed, and will continue to be better performed, by individuals at most businesses today.

www.HRProfessionalsMagazine.com Editor

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

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

Park Avenue Design

Contributing Writers

Austin Baker Maddie Bradin William Carmichael Meeta T. Dama Chris Davis Harvey Deutschendorf Tommy M. Eden III Cindy Doty Brad Federman Jeanne J. Fisher Robert Greene Jennifer Hagerman Josh. C. Harrison Jennifer Vallor Ivy Kim LaFevor Abtin Mehdizadegan William H. Payne IV Alfred B. Robinson Jr. Jason Susser Board of Advisors

Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR Terri Murphy Susan Nieman Robert Pipkin Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2018 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.

Features

6n ote from the editor 7P rofile: Lilly Ledbetter, Keynote Speaker at SHRMGA HR Legal Summit in Savannah May 4 10 B eyond Scrum: Making the Lone Wolf Less Alone – and More Valuable 16 C hanging Your Culture by Changing Your Conversations 18 H ow is Your HR Department Doing? Conduct an HR Audit to Find Out 22 W hy HR Should Monitor Current Employees 24 B lockChain HR: How HR Will Transform Following this Major Disruption 26 S tanding Firm! Navigating the Employer Legal Minefield and Workplace Drug Testing Obligations in 2018 47 D isruptHR Memphis April 12, 2018 50 B ook Look: Virtual Team Success by Richard Lepsinger and Darleen DeRosa 54 5 Reasons We Need to Get Serious About Play at Work

Educational Opportunities for HR Professionals

11 F lorida International University Online Master of Science in HR Management 23 W GU Tennessee Bachelor’s and Master’s Degree Programs Fully Aligned with SHRM’s HR Curriculum 27 A thens State University Human Resource Management (SHRM-Aligned Program) 39 U niversity of Louisville M.S. in Human Resources & Organizational Development and B. S. in Organizational Leadership and Learning Online and Face-to-Face Degrees

Employee Benefits

Industry News

28 Medical Error: The Quiet Problem Affecting Employers

4 Register for 1st Annual HR Executive Conference Cruise October 22-26 8 Preview of 2018 ALSHRM State Conference in Birmingham May 1-2 20 Highlights of the 2018 ARSHRMState Conference & Expo in Hot Springs April 4-6 36 Highlights of 2018 SOAHR SHRM-Atlanta HR Conference March 27-28 42 Highlights of the 2018 SHRM-Memphis Half Day Legal Seminar March 20 46 Highlights of the 2nd Annual Supervisor and Manager Seminar in Memphis April 13 48 Highlights of 23rd Annual Mississippi Human Resource Conference & Expo in Biloxi April 2-4 58 KYSHRM 34th Annual Conference in Louisville August 28-30

30 Benefits Cheat Sheet – Quick Tips for Each Generation to Maximum Their Employer Benefits

Employment Law 12 Lilly Ledbetter: A Look at Her Impact on Pay Equity and What Employers Need to Know About Equal Pay 14 SCOTUS Decision on OT Exemptions

19 Register NOW for the 39th Annual Wimberly Lawson Labor & Employment Law Update Conference in Knoxville

32 Tenth Circuit Court of Appeals Provides Guidance on Religious Accommodations in Tabura v. Kellogg, USA 34 Revisiting the Unauthorized Practice of Law in Human Resources Management

38 David S. Jones Appointed New Managing Partner of Fisher Phillips Memphis 38 Michael Hornback Joins Littler’s Lexingon Office as Special Counsel

40 The Rizo Case: A Landmark Court Decision on the Wage Gap and Salary History

44 Doctor’s Orders? Interpreting Medical Provider’s ReturnTo-Work Instructions Under the ADA

June 2018 Issue Features Profiles of Super Lawyers, Employment Law and Employee Benefits Updates plus 2018 SHRM Annual Conference & Exposition in Chicago June 17-20 Deadline to reserve space May 15

52 Another Year Another H-1B Lottery

www.HRProfessionalsMagazine.com

a note from the editor

1 With Jeanne Artime, CEO of SHRM-Atlanta 2 With Jan Farve, SHRM-CP, PHR, Director of MSSHRM in Biloxi 3 With Bruce and Blair Johanson at the ARSHRM Conference in Hot Springs

In case you haven’t yet heard, we are thrilled to offer our 1st Annual HR Executive Conference Cruise to the Bahamas October 22-26. You will receive 8.00 SHRM PDCs and 8.00 HRCI business credits! We will be sailing from Miami to the Bahamas on the Royal Caribbean Mariner of the Seas. On the first night, we will kick off the conference with a black tie optional reception followed by a fabulous dinner and our keynote speaker. There will be two days of fun in the sun at Nassau and Coco Cay followed by our conference while cruising back to Miami. See page 4 for more details. Visit our website, www.hrprofessionalsmagazine.com to register. I look forward to seeing you on the cruise! There will be great networking opportunities also! April is always an exciting month for HR professionals as the SHRM spring conferences begin. We kicked off the season in Atlanta at the Cobb Galleria Centre for the Annual SOAHR SHRM-Atlanta HR Conference March 27-28. We then drove down to Biloxi for the 23rd Annual MSSHRM HR Conference & Expo April 1-2 at the Beau Rivage. From there we traveled to Hot Springs for the 2018 ARSHRM State Conference & Expo April 4-6. We hope you will enjoy reading about all these conferences in this issue. We held our 2nd Annual Supervisor and Manager Training Seminar April 13 at the Crescent Club in Memphis. It was another fantastic seminar this year approved for 7.25 SHRM PDCs and HRCI recertification credits. We were so excited to have Officer Terry Donald from the Shelby County Preparedness Office present a session on “active shooter” training! We also welcomed Don Hutson, CEO, U.S. Learning, and author of The One Minute Negotiator, to the seminar this year to discuss negotiation skills. Jeff Weintraub with

As I write, we are on a plane bound for Las Vegas heading to the annual SHRM Talent Conference & Exposition at Caesars Palace April 16-18. We will have all the exciting highlights in our June issue. We will finish up April with the Annual TPMA Conference in Franklin, TN, followed by the TN SHRM Strategic Leadership Conference in Nashville. May will be another exciting month beginning with the Annual ALSHRM Conference in Birmingham May 1-2. I can’t wait to meet the Lilly Ledbetter May 4 in Savannah at the SHRMGA HR Legal Summit! I hope you enjoy reading about her career since the Lilly Ledbetter Act of 2009. What an honor to have her on our cover this month! Don’t forget to follow us on Facebook to catch our live Facebook interviews from all these exciting conferences! Remember to watch your email for your invitation to our May webinar sponsored by Data Facts.

Fisher Phillips held two sessions this year. He discussed preventing sexual harassment in the workplace, and was the luncheon speaker also. He brought us an update on the FLSA during the lunch session. Judy Bell, Judy Bell Consulting, presented how to make our meetings more effective. We also welcomed Nancy Crawford, Director of Marketing and Communications, for the Memphis Better Business Bureau. She told us about some of the scams currently targeting businesses. Lastly, I spoke about legally defensible documentation.

www.HRProfessionalsMagazine.com

Cynthia@hrprosmagazine.com @cythomps

Lilly LEDBETTER on the cover

LILLY LEDBETTER Groundbreaking Employment Discrimination Plaintiff Ledbetter is the co-author of Grace and Grit: My Fight for Equal Pay and Fairness at Goodyear and Beyond, which was published in February 2012.

In 1979, Lilly Ledbetter took a job at the Goodyear Tire & Rubber Company plant in Gadsden, Alabama. At the beginning of her career there, despite being the only woman in her position, Ledbetter was given the same starting salary as her male colleagues. Over the next 19 years she not only gained new skills and experience in her supervisory role, she also helped train a number of new hires—all men. In 1996 she received a “Top Performer” award for her contribution to the company. In March 1998, Ledbetter inquired into the possible sexual discrimination of the Goodyear Tire Company. In July she filed formal charges with the Equal Employment Opportunity commission. In November 1998, after early retirement, Ledbetter sued claiming pay discrimination under Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963. She started with the same pay but by retirement she was earning $3,727 per month compared to 15 men who earned from $4,286 per month (lowest paid man) to $5,236 per month (highest paid man). The Supreme Court did not rule on whether this was discrimination, just the statute of limitations to sue. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), is an employment discrimination decision of the Supreme Court of the United States. Justice Alito held for the five-justice majority that employers cannot be sued under Title VII of the Civil Rights Act over race or gender pay discrimination if the claims are based on decisions made by the employer 180 days ago or more. The decision did not prevent plaintiffs from suing under other laws, like the Equal Pay Act, which has a three-year deadline for most sex discrimination claims or 42 US C. 1981, which has a four-year deadline for suing over race discrimination. This was a case of statutory rather than constitutional interpretation. The plaintiff in this case, Lilly Ledbetter, characterized her situation as one where “disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period.” In rejecting Ledbetter’s appeal, the Supreme Court said that “she could have, and should have, sued” when the pay decisions were made, instead of waiting beyond the 180-day statutory charging period. The court did leave open the possibility that a plaintiff could sue beyond the 180-day period if she did not and could not have discovered the discrimination earlier. The effect of the Court’s holding was reversed by the passage of the Lilly Ledbetter Fair Pay Act in 2009. President Obama signed the Lilly Ledbetter Fair Pay Act into law on January 29, 2009. 

www.HRProfessionalsMagazine.com

ALSHRM State Conference

The Largest Gathering of Alabama HR Pros in 2018!

2018 Keynote Speakers

HR Professionals - Making the Impossible, Possible

Closing the Gap Between Average and Excellence

Unleash the Winner Within You

Scott Lesnick

Dr. Samuel Jones

Coach Sherry Winn

2018 Concurrent Session Speakers

Recruiting 101

Kristina Minyard

Breaking Bad: Differentiating the Best HR Tech for Your Company from the Bad

Dawn Burke

Compliance 101

Tiffany Rainbolt

Motivating Employees without Extra Compensation

Brian Demange

How a Culture of Safety Will Impact Your Bottom Line

Hunter Finch

Pork n' Bean, Pyramids and Ponchos - Enhancing Your Team's Diversity, Inclusion and Cultural Awareness

Melva Tate 8

www.HRProfessionalsMagazine.com

2018 ALSHRM State Conference 10.25 SHRM PDCs

Tuesday, May 1 Conference Day 1 Conference Registration 11:00 am – 6:00pm……………..…………………………………………………………………………………………………………………………………….….........................................Escalator/Lobby Session 1: Employment Law Update Presented by: Matt Stiles, Shareholder Maynard Cooper & Gale, PC 1:00 pm –2:15 pm………………………………………………………………………………………………..…….……………………………………………………………………….………………………BJCC Session 2: The Art of the Corporate Clapback Presented by: Sarah Morgan 2:30 pm- 3:45 pm …………………………..…………………………………………………………………………..….………………………………………………..………………………………………..BJCC Session 3: Management Lessons I Learned From My Kids Presented by: Marlin Smith 4:00 pm – 5:30 pm .………………………………………………………………………………………………………………………….………………………………………………………..………………BJCC ALSHRM 2018 Marketplace Event and Networking – Cocktail Hour 5:45pm -7:00pm …………………..…………………………………………………………………………………………………………………………………………………………………………………… BJCC

Wednesday, May 2 Conference Day 2 Conference Registration 6:30 am – 8:30 am ………………………………………………………………………………..……………………………….……………………………………………………………………………………..Escalator/Lobby Breakfast 7:00 am – 8:00 am ……………………………………………………………………………………………………………………………………..……………………………………………………………………..BJCC Welcome & Announcements 8:00 am – 8:30 am……………………………………………………………………………………………………..……………………………..………………………………………………………………………BJCC Opening Keynote: Scott Lesnick – HR Professionals – Making the Impossible, Possible: Implementing the Never Give Up Perspective 8:30 am – 9:45 am…….……………………………………………………………………….…………………………………………………….…………………………………………………………………….. BJCC Marketplace and Networking Break 9:45 am – 10:00 am…………………………………………………………………………….………………………………………………….……………………………………….………………………………BJCC Concurrent Sessions 10:00 am – 11:15 am • Recruiting 101 • •

Presented by: Kristina Minyard ……….…………………………………………………………………………………………………….……………………………………….East N-O Breaking Bad: Differentiating the Best HR Tech For Your Company From the Bad Presented by: Dawn Burke ….…………………………………….……….………….......................................................................................................East K-L How A Culture of Safety will Impact Your Bottom Line Presented by: Hunter Finch, IOA………………….…..........................................................................................................................................East M

Marketplace and Networking Break 11:15 am – 11:45 am …….………………………………………………………………………………………….………………………………………………….…………………………………………………………………BJCC Lunch & Lunch Keynote: Dr. Samuel Jones – Closing the Gap Between Average and Excellence 11:45 am – 1:00 pm..………………………………………………………………………………………………….………………………………………………………………………………………………………………….BJCC Marketplace and Networking Break 1:00 pm – 1:15 pm…………………………………………………………………………………….……..….………………………………………………..……………………………………………………………………BJCC Concurrent Sessions continued 1:15 pm – 2:30 pm • Compliance 101 Presented by: Stephanie Mays, Shareholder Maynard Cooper & Gale, PC ………………………..……………………………………….….…..……........................East N-O • Motivating Employees without Extra Compensation Presented by: Brian Demange, PZI Consulting ……..……………………………….……..……………..……..….……………………………….…………..……………………….. East K-L • Pork N’ Bean, Pyramids, and Ponchos – Enhancing Your Team’s Diversity, Inclusion and Cultural Awareness Presented by: Melva Tate ……………………………………………………………………..…….…………………………………………………..…….……….……....…………………….. East M Marketplace and Networking Break 2:30 pm – 2:45 pm. .……………………………………………………………………………………………………....…..……………………………………………………………………………………………………...…BJCC Closing Keynote Speaker: Coach Sherry Winn – Unleash the Winner Within You 2:45 pm – 4:00 pm …………………………………………………………………………………………………………..……………………………………………….…………………………………………………………BJCC Closing Comments and Door Prizes 4:00 pm – 4:45 pm ………………………………………………………………………………………………………………………...………………………………….………………………………………………………BJCC

Register at www.alshrm.org Follow us on Twitter: @ALSHRM Live chat with us and your fellow conference attendees using the hashtag: #alshrm18 www.HRProfessionalsMagazine.com

Beyond Scrum: Making the Lone Wolf Less Alone – and More Valuable

By BOB GREENE

The next step toward organizational agility is focusing on tasks where individual work is best suited, writes Robert Greene of ECSI A knock on your office door, and you look up to greet the unannounced visit of the CEO (or other executive) with a purposeful look on her face. She sits down while sliding a book across your desk. “This Agile/Scrum stuff is getting a lot of press – I think we should take a hard look at applying it across our entire organization.” This scenario may be more illustrative than literal at your business. But it is not implausible. After all, forward thinking HR leaders are increasingly confronted by fast changing business environments. They know they must find time to go beyond day-to-day administration of their function to boost employee engagement and the speed of decisions and execution, while breaking down silos. Meanwhile, management gurus have been preaching that Agile/Scrum project teams are the way to get work done. Enhanced by Scrum methods, they say, teams are the best route to corporate agility. And agility is necessary to compete in today’s business-not-as-usual world. But the pendulum of managerial fashion may have swung too far. While agilely organized team work is certainly good (especially in software and product development), the converse is not true – that is to say, individual work is not bad. In fact, it must be proactively strengthened. The Risk of Two-Speed Organizations Take a deliberate look at your employees at work, and you’ll likely detect a salient contrast that I’ve seen in many client organizations. On one hand, you see clusters of people talking and working animatedly – around a table, in a glass walled conference room, in front of a whiteboard, perhaps in an innovation studio. They are enveloped by a buzz of inclusive excitement as they sprint toward ideas and MVPs. You want to stop and eavesdrop on the discussions or see if you can decipher the scribbling on the flip charts. You nod in approval. Then your eyes wander to a corner of the office floor. Or maybe you walk down the hall or to another floor. Here you see individuals, working quietly by themselves – at their desks, in their cubicles, perhaps on the phone, while staring intently at their computer screens and tapping away. They are focused, smart, and effective. Nonetheless, one can’t help but wonder if they 10

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are somehow missing out, less engaged, and contributing less. This Scrum versus Lone Wolf contrast raises questions. Does organizational agility inadvertently stop with the “Scrum”? Beyond tasks that fit with project teams, what can be done for individual/routine tasks? Are we overlooking other ways to boost employee engagement, speed of decision-making, and execution? Beyond Scrum Questions like these are a logical consequence of the organizational emphasis – sometimes hype – on teamwork over the past 5-10 years. It was Japanese academics Ikujiro Nonaka and Hirotaka Takeuchi who first adopted the rugby scrum metaphor in their 1986 Harvard Business Review article, “The New Product Development Game”. Jeff Sutherland retained the analogy while developing a methodology comprising product backlog, sprints, standup meetings, and the like. Interestingly, rugby fans will recognize how the analogy actually helps make the point about the complementary value of individual work. Leaking out of the real rugby scrum comes the ball which is pitched to the individual scrum half or fly half, who then creatively improvises the play that may lead to a score. In fact, ECSI research reveals that more than 60% of all work tasks are performed, and will continue to be better performed, by individuals at most businesses today – particularly those organizations that do not operate under projectbased models. At any one time, therefore, most employees are likely to be doing individual work. And these tasks, while often repetitive and routine in nature, can be core to the business. However, troubles arise when routine tasks get bogged down by regulations, protocols, and metrics. While teams roam free, individuals can be restricted. Routine tasks tend to be carefully controlled. The traditional control model is preventive in nature. Reigning supreme are pre-authorizations, and strict compliance with policies and procedures. As a result, agility and empowerment are in short supply when it comes to the bulk of individual tasks. Employee engagement and speed-ofexecution suffer. A different model is needed to make agility more pervasive for tasks better handled by individuals. The route to pervasive agility must go well beyond ballyhooed teams and Scrum.

Innovating Organization Agility into Individual Tasks Our work with HR leaders indicates that they recognize the problem, at least intuitively if not analytically. They know their organizations need to be more agile – to better anticipate and more rapidly adapt to changes. While recognizing the potential power of Agile/Scrum teams in certain parts of the business, HR leaders worry about a two-speed organization divided between “cool” jobs and undervalued work. And they wonder how data and technology best fit into the workforce of the future. Their fundamental challenge is defining a pragmatic framework and approach to catalyze the journey to organizational agility. Our research has revealed four principal levers that boost employee engagement and speed of decision-making and execution in core-butroutine tasks where individual work is best suited. 1. Provide data to the mass of employees Recent research demonstrates that business value does not necessarily correlate with the number of centralized data scientists a company hires. Rather, it is the data management process that drives most economic value – in particular, the organization’s ability to integrate data across the firm, and enable a wide range of employees to access and understand it at the right time. 2. Foster qualitative judgment skills The ironic reality is that, as the supply of Big Data and AI increase, so does the demand for qualitative judgment – i.e. the ability to make a decision based on a personal interpretation of the context and available facts. Explicitly embracing this, organizations should train employees on standardized tools, methods, and techniques to generate insights and apply judgement. 3. Democratize judgement and decisionmaking power Many companies implicitly believe that decisions, especially those relating to market and innovation, are best left to a few “highly qualified” professionals in the organization. Only the elite are entitled to develop new ideas and make important decisions, and opportunities and value suffer. Instead, organizations should push risk-managed processes down to the lowest levels. 4. Loosen the reins of control The control model at most organizations today is preventative in nature, and based on pre-authorizations and strict compliance with policies and procedures. This systematically undermines agility, even if inadvertently. A different model is necessary to make empowerment and agility possible, with a well designed “constitution” and social control that manage risks.

Permeating these four strategic drivers are the “soft” levers that HR leaders know better than anyone. Indeed, this is why the HR leader has a critical role to play in catalyzing organizational agility. It is his or her hard-earned experience in crafting reward/incentive systems, job/task rotations, cross training, workspace, and the like that make the difference in innovation success.

“ No employee will ever get in trouble for doing what is right for the customer… There is only one operating guideline you ever need. Trust your feelings — if it feels right and makes sense, do it on behalf of the customer. Do not consider

One example of HR innovation at work

the system capability, policy or

Banking provides a good example of the traditional decision-making and control model. Apply for a loan and, even if your application is in line with policy and your credit score is healthy, the employee you are dealing with must track down an authorized signatory — often two or three hierarchical levels above the employee — before the loan is approved. This seems, at first blush, to be sensible and prudent. But it disempowers the employee, adds time to the process and customer experience, and creates bureaucracy.

procedure — err on doing whatever

The Minnesota-based credit union, Affinity, changed this model and reaped the benefits. It replaced a long-established and lengthy approval process with what Affinity describes as its Member, Organization, Employee (MOE) framework to guide the decision-making process of employees across the branches. Underscoring the new model is an Affinity declaration to its employees:

is necessary for the customer, and allow your manager or supervisor to take care of the rest. Finally, be prepared to defend your decision! If your intention is to do what is right for the customer, you have the support of management and your co-workers.” Integrated with this “democratization of judgement” is data access and training, and tools and a process to apply the data to make quicker and quality credit decisions. Affinity has also innovated its control model, moving from the traditional bureaucracy-creating “preventive model” to a “detection model”. Under the new MOE framework, whenever Affinity employees apply their judgement and

deviate from formal policies, they write down their rationale and post it on the company’s intranet. Communicated in this way, every Affinity employee (including the boss) can read and comment if they wish. Transparency thereby activates a social self-control system. Affinity has reaped dividends. Charge-off rates for higher risk clients plummeted by almost 50% (from 1.9 to 1.0%). Moreover, the new control mechanism led to bottom-up creation of predictable decision-making norms, reducing the perceived risk of random employee decisions. The next step toward organizational agility The powerful next step toward pervasive crossorganization agility starts by recognizing the contrast in how employees work at your firm. Embrace teams. But also increase dramatically the value of your Lone Wolves by innovating data access, training, empowered judgment, and control system. Boost engagement, speed of decision-making, and execution around routine tasks that are core to the business, where individual work is best suited.

Robert Greene, Director ECSI Consulting rgreene@ecsi-consulting.com www.ecsi-consulting.com

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Lilly Ledbetter: A Look at Her Impact on Pay Equity and What Employers Need to Know About Equal Pay

By MEETA T. DAMA

ine years after the Lilly Ledbetter Fair Pay Act was signed into law, pay equity remains a hot topic. The recent national #MeToo movement not only triggered a nationwide discussion about sexual assault and harassment in the workplace, it also created a demand for more transparency in the workplace and pushed equal pay back in the spotlight. While pay equity and sexual harassment are separate issues, the attention being paid to both stem from the same conversations happening across the country. In January 2018, the #TimesUp movement and legal defense fund were started by a group of women in Hollywood to address harassment and safety in the workplace, as well as equality. News headlines followed highlighting the difference in the amount female actresses were paid compared to their male counterparts for equal work. Today, headlines continue to feature equal pay actions filed across the country against employers in a variety of industries. In the nine years since the enactment of the Lilly Ledbetter Fair Pay Act, employees continue to push for equal pay, both inside and outside of the legal system.

Ledbetter v. Goodyear Tire & Rubber Company Lilly Ledbetter worked for Goodyear Tire & Rubber Company’s plant in Gadsden, Alabama from 1979 until 1998 as an overnight shift supervisor. When Ms. Ledbetter was hired, Goodyear paid all its managers the same rate. At some point during Ms. Ledbetter’s tenure, however, Goodyear moved to a performance-based compensation system for managers and forbid Ms. Ledbetter and other managers to discuss their pay rate. After working for Goodyear for 19 years, Ms. Ledbetter received an anonymous note revealing that despite years of positive performance reviews, she was being paid thousands of dollars less than her male colleagues with similar responsibilities, seniority, and experience. Specifically, at the end of the two-decades she spent working for Goodyear, Ms. Ledbetter earned $3,727 per month while the lowest-paid male area manager received $4,286 per month and the highest-paid male received $5,236. In other words, her salary was between 15 and 40 percent lower than her male counterparts. Armed with this information, Ms. Ledbetter filed a charge of discrimination with the Equal Employment Opportunity Commission alleging sex discrimination concerning the disparity in her pay. Ms. Ledbetter’s resulting legal battle took her all the way to the United States Supreme Court. The central issue in Ms. Ledbetter’s equal pay case was the timing of her claim because she did not become aware of the difference in pay until she was nearing retirement. In 2007, the U.S. Supreme Court held that for the purposes of the 180-day time period to make a complaint of employment discrimination based on unequal pay, the clock started ticking on the day the employer makes the relevant wage decision, not the day the wage is paid. Therefore, the U.S. Supreme Court held that Ms. Ledbetter 12

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could not challenge pay decisions that occurred years ago and could only challenge decisions regarding her pay made within 180 days of the filing of her charge of discrimination.

The Lilly Ledbetter Fair Pay Act In response to the U.S. Supreme Court’s decision, the Lilly Ledbetter Fair Pay Act was signed into law in 2009. The Act allows workers to file suit 180 days after the last pay violation and not 180 days after the pay decision causing the pay disparity. The law overturned the U.S. Supreme Court’s ruling in Ms. Ledbetter’s case and effectively makes it illegal each time an employer writes a paycheck that fails to provide equal pay for equal work. Thus, with each paycheck, the clock restarts and the employee is given a new 180 day period within which to challenge pay decisions that impacted the amount of the paycheck.

The Significance of the Lilly Ledbetter Fair Pay Act The Lilly Ledbetter Fair Pay Act was a significant step in addressing pay disparity. The Lilly Ledbetter Fair Pay Act clarified the time frame within which a federal complaint could be made to recover lost wages. In doing so, the Act increases the potential liability employers may face in equal pay claims. The longer time frame has significant consequences for a single employee complaining of unequal pay, and exponentially increases the stakes in collective actions for pay violations brought on behalf of “similarly situated” employees. Since the Lilly Ledbetter Fair Pay Act was enacted, there has been a significant increase in collective actions filed by female employees who assert that they are paid less than their male counterparts. The Lilly Ledbetter Fair Pay Act was also a symbolic statement reflecting the popular sentiment that unequal pay would not be tolerated. In the years since the Lilly Ledbetter Fair Pay Act was enacted, several states have followed suit to pass broad legislation directed at closing the gender pay gap. Pay equity legislation varies greatly at the state level. Several states prohibit employers from inquiring about a prospective employee’s salary history. Other state laws and precedent from the National Labor Relations Board restrict the rights of employers to maintain policies that prohibit employees from discussing or disclosing their salary information with their coworkers, similar to the policy Ms. Ledbetter encountered. Damages available to plaintiffs under state laws are comparable to those available under federal law, and in some instances more generous. Even where there is no state-level pay equity legislation, employers should be aware that previously acceptable justifications for wage differentials between male and female employees are coming under scrutiny by courts as public sentiment shifts. For example, in a strongly-worded decision by the United States Court of Appeals for the Ninth Circuit published on April 9, 2018,

the court found that that a worker’s prior salary, alone or in combination with other factors, cannot be used to justify a disparity between male and female employees’ wages. Aileen Rizo v. Jim Yovino, Case No. 16-15372 in the U.S. Court of Appeals for the Ninth Circuit. As the nation-wide discussion about workplace equity continues, management decisions will continue to undergo additional scrutiny as demands for more transparency in the workplace increase.

Companies may need to make corrections, where appropriate, to address any unexplained pay disparities and modify existing compensation policies and procedures to prevent future pay disparities. In some instances, evidence that an employer conducted an internal audit and engaged in reasonable efforts to correct unexplained pay disparities can be used as a defense to pay disparity claims.

Looking Ahead

Following an audit, companies should provide decision makers with guidelines on determining the pay of their employees, coupled with an approval process or other oversight, to help reduce or eliminate pay disparities that cannot be explained for employees performing equal or substantially similar work. Human resources and management level employees need to understand pay equity and the requirements of all applicable state and federal laws. In addition, they need the tools to engage in a thoughtful and careful investigation of claims of unequal pay to evaluate the basis of any disparity and avoid a claim of retaliation. Documentation of any resulting discussion, investigation, and consideration of an equal pay complaints is vital to ensure equal treatment and to reduce the likelihood of prolonged litigation.

Going forward, pay equity will continue to be a hot topic. Both the Equal Employment Opportunity Commission and the Department of Labor’s Office of Federal Contract Compliance Programs have indicated that review of pay related employment practices will be a priority in the coming year. The ongoing spotlight on gender issues in the workplace is likely lead to increased complaints and litigation concerning pay equity in the workplace. As employees see discussions of wage gaps in the news, they are more likely to raise these issues in the workplace. Human resources departments and employers need to be ready for these discussions. Employers should consider undertaking a proactive pay equity analysis to ensure their practices are compliant with the law and that they are prepared to defend against potential claims of discrimination. In doing so, companies should analyze data not only by gender, but also by race, disability and other protected categories. A pay equity analysis should include a comparison of job duties, responsibilities, and the entire compensation package. Employers should consider consulting an attorney to design an audit that evaluates each of the relevant factors in their jurisdiction and to allow an attorney to conduct the internal audit so that the results and analysis of the audit remain privileged. Employers must be able to provide legitimate factors to explain disparities in pay such as qualifications, skills, education, merits, or other factors.

Employers may also choose to review their company culture to evaluate whether it promotes equal pay for equal work. This may include a review of employment applications and employment policies, as well as training for management level employees. A work place audit, coupled with these practices, can substantially reduce the chances that an employer’s pay practices will appear in the headlines.

Meeta T. Dama, Attorney Martenson Hasbrouck & Simon LLP mdama@martensonlaw.com www.martensonlaw.com

Martenson, Hasbrouck & Simon LLP focuses its practice

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SCOTUS Decision on OT Exemptions

By JOSH C. HARRISON and ALFRED B. ROBINSON JR.

he Fair Labor Standards Act (FLSA) requires employers to pay overtime compensation to covered employees, among its many provisions. The FLSA contains a number of exemptions to the overtime standard, and one exemption—the exemption for “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles” at a covered dealership—has been the

subject of two decisions from the Supreme Court of the United States in recent years. In its April 2, 2018, decision in Encino Motorcars, LLC v. Navarro, the Court

biles.” In a 5-4 decision, Justice Thomas wrote for the majority stating that the best reading of the statutory text leads to the conclusion that service advisors are exempt from overtime because they are salesmen in that they do make sales of services for vehicles and they are primarily engaged in servicing automobiles. Encino Motorcars, LLC v. Navarro, Supreme Court of the United States, No. 16–1362 (April 2, 2018).

The Overtime Exemption At Issue The FLSA’s exemption under section 213(b)(10)(A) states that the overtime requirements do not apply to “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers.” The service advisors who had filed the suit regularly performed the following duties: They met with customers; suggested repairs and maintenance services; sold accessories, replacement parts, and services for their vehicles; and explained the work performed when customers returned for their vehicles.

definitively ruled that automobile service advisors are exempt from overtime under section 213(b)(10)(A) of the FLSA.

Background of the Litigation Five current and former service advisors working at a Mercedes-Benz dealership in California filed suit alleging that they were entitled to unpaid overtime compensation for hours worked over 40 in a workweek. The dealership argued that the service advisors were exempt from the overtime provisions of the FLSA under section 213(b)(10)(A). The United States Court of Appeals for the Ninth Circuit disagreed with the employer, and twice held that the employees were not exempt from the overtime requirements of the FLSA. In its June 20, 2016 decision in this case, the Court remanded it to the Ninth Circuit to determine the application of the FLSA exemption without placing controlling weight on a 2011 U.S. Department of Labor (DOL) Wage and Hour Division (WHD) rulemaking which concluded that service advisors were not exempt. Encino Motorcars, LLC v. Navarro, Supreme Court of the United States, 579 U.S. ___, 136 S. Ct. 2117, 195 L. Ed 2d 382 ( 2016). This issue traces back to a 1970 U.S. DOL/WHD regulation that limited this overtime exemption to salesmen (who primarily obtained orders or made sales of vehicles) and excluded service advisors (who sold service and maintenance services) from its coverage. After several courts rejected this interpretation, the DOL/WHD issued an opinion letter in 1978 and amended its Field Operations Handbook in 1987 stating that service advisors could be exempt from overtime under section 213(b)(10)(A). However, the 2011 final rule reaffirmed this initial regulation’s position. Because the automobile industry has relied on service advisors being exempt, and the US DOL/WHD released the 2011 rule without providing a “reasoned explanation” for its change in position, the Court ruled that the 2011 rule is not entitled to deference. The Supreme Court concluded that the overtime exemption “must be construed without placing controlling weight on the Department’s 2011 regulation” and remanded the case to the Ninth Circuit Court of Appeals. On remand, the Ninth Circuit again held that the service advisors were not exempt, and the Court granted certiorari to review the determination. The sole question before the Court was whether a service advisor is a salesman who is “primarily engaged in . . . servicing automo14

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Because the term “salesman” is not defined in the statute, the Court gave the term its ordinary meaning as someone who sells goods or services. Based on this definition, the Court concluded that the service advisors were clearly salesmen because they sold services for vehicles to customers. The Court also found that the service advisors were primarily engaged in servicing automobiles. The Court said the word “servicing” in this context can mean either “the action or maintaining or repairing a vehicle” or “[t]he action of providing a service.” The Court found the service advisors met this requirement in two ways: 1. They played a vital role in the automobile servicing process between the customers and the mechanics who performed the maintenance and repair work on the customers’ automobile. 2. They were “integrally involved in the servicing process” since the statute itself does not limit that phrase only to individuals who performed the physical repair work but also includes others such as partsmen and service advisors. Although the service providers did not spend most of their time physically repairing automobiles, the Court still held the exemption applied. The Court explained the phrase “primarily engaged in . . . in servicing automobiles” must include some individuals who do not physically repair automobiles themselves but who are integrally involved in the servicing process.

The Court Rejects the Principle that Exemptions Should Be Construed Narrowly Interestingly, with regard to “the principle that exemptions to the FLSA should be construed narrowly,” which the Ninth Circuit Court of Appeals had used in arriving at its conclusion, the majority stated, “[w]e reject this principle as a useful guidepost for interpreting the FLSA.” According to the Court, “[b]ecause the FLSA gives no ‘textual indication’ that its exemptions should be construed narrowly, ‘there is no reason to give [them] anything other than a fair (rather than a ‘narrow’) interpretation.’” The Court explained that the FLSA has over two dozen exemptions in Section 213(b) alone, and the exemptions are as much a part of the FLSA’s purpose as is the overtime pay requirement.

Practical Impact

and their application limited.” In Encino Motorcars, the majority found that the FLSA contained no “textual indication” that exemptions should be construed narrowly. Citing a treatise authored in part by the late Justice Scalia, the majority ruled that FLSA exemptions should be accorded a fair, as opposed to a narrow, reading. The majority noted that the principle to narrowly construe exemption is based on a “flawed premise” that the remedial purpose of the FLSA is paramount “at all costs.” The four dissenting justices objected to this summary dispatch of the narrow-construction principle by the majority when they stated, “[i]n a single paragraph, the Court ‘reject[s]’ this longstanding principle . . . without even acknowledging that it unsettles more than a half a century of our precedent.” Since the Court apparently has elevated the many exemptions in the FLSA to have equal footing with its overtime compensation requirement, this shift in balancing exemptions may create new opportunities for applying these FLSA exemptions.

Twice now the Supreme Court has reversed and remanded a Ninth Circuit ruling in this case that service advisors are not eligible for this FLSA overtime exemption. Ironically, in this 2018 decision, the Court ruled exactly as Justice Thomas urged it to in his dissenting opinion to the 2016 case—to “hold that the FLSA exemption set out in § 213(b)(10)(A) covers the service advisors in this case.” In what may be the most striking aspect of this decision, the Court rejected one of the rationales for the Ninth Circuit’s decision that was based upon a longstanding principle that FLSA exemptions should be narrowly construed. As the dissent noted, this principle traces back to a 1960 Supreme Court decision in which the Court ruled that FLSA “exemptions are to be narrowly construed against the employers seeking to assert them

Josh C. Harrison, Associate Ogletree Deakins, Birmingham Josh.harrison@ogletree.com www.ogletree.com

Alfred B. Robinson Jr., Shareholder Ogletree Deakins, Washington D.C. alfred.robinson@ogletree.com www.ogletree.com

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Regardless of the formal definition, we all recognize the importance of culture. It can be the glue that holds an organization together or the force that tears it a part. And that is why we take it so seriously. Culture eats strategy every day of the week. So how do we know what makes a strong culture? There are four elements to a strong culture:

Changing Your Culture by Changing Your Conversations By BRAD FEDERMAN

13 people dead. A 325 page investigation report. Called before both the House and Senate Subcommittees to testify; to explain. Explain the inability to address the ignition switch problem. A problem which persisted for more than 11 years. A problem where many had, but no one took, responsibility to fix the problem. Not a failure, but a history of failures. General Motors suffered the fate of a poor corporate culture. And they are not alone. Too many companies experience the same types of issues and breakdowns. Here are a few headlines about companies that have faced cultural problems: “Uber's Big Problem Is a Culture of Dishonesty” “Fed Limits Wells Fargo's Growth, Citing Consumer Aabuses” “Report Blames Flawed NASA Culture for Tragedy” “Facebook and Cambridge Analytica Face Class Action Lawsuit” What is culture? Over the years there have many definitions. Some refer to culture as a set of customary beliefs and social norms of a group. Another description has been the characteristic features shared by people in a place or time. Think about it – some organization’s cultures are so strongly ingrained that “average joes” are familiar with the organization’s internal, yet public, corporate culture. Disney, for instance, is known worldwide for their culture of guest service experience excellence, Zappos is known for easy customer service and also for paying employees to quit if they don’t feel matched to the culture. Other organizations such as Ben and Jerry’s are known for having fun and keeping a “70’s vibe” while governmental cultures are often portrayed as stodgy and too rule oriented with poor customer service. Organizational culture has been described as the set of shared attitudes, values, goals, and practices that characterizes an institution or organization. Robbie Katanga described it as, “Culture is how organizations ‘do things’.”

“Culture is how organizations ‘do things’.” 16

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• CLARITY: A culture should be clear; crystal clear. All too often employees are told they will figure out the culture over time. Unfortunately, that is an excuse for not having a crisp understanding of ‘who we are’ and ‘how we do things.’ At Nordstrom, customer service expectations are clear – always do what is right for the customer – there is no guesswork or two levels of manager approval for simple returns. Expectations are clear to both the customer and the employee. • CONSISTENCY: If culture represents ‘how we do things,’ then that should be repeatable and predictable. Unfortunately, many companies struggle with this concept. They see culture as something that happens when things are going well or that we strive for. But all that means is that culture is something we live by when it is easy. And we all know we are defined by challenging times. What we espouse and how we behave must be similar. Take Southwest Airlines for example. When flying on a Southwest plane, we expect the pilots and flight attendants to take safety seriously, but also to do so with an air of playfulness and fun. Their demeanors as well as their dress are more casual than most flight attendants. This plays to their favor as they are consistently rated one of consumers’ favorite domestic airlines. • TRANSPARENCY: Politics, secrets, opaqueness are all enemies of a healthy culture. We now work in a flatter, networked environment with employees that expect to have a voice. A lack of transparency creates doubts, destroys productivity and accountability, reduces retention and creates fear-based decision making. Make it a point to tell as much as you can as often as you can. Instead of people filling in their own blanks with (likely) negative ideas, they will hear it right from the top and feel more comfortable in developing trust and faith in their leadership. • INTEREST ON OTHERS: A company is a community. Communities look out for those that are related to it. Companies cultures that promote self-interest over the interest in others lack trust; trust with their employees, customers and the broader community at large. Leadership is about serving others and a strong company culture should keep that principle front and center. Knowing what culture is, what the key ingredients to a strong culture are and the repercussions of having bad culture, are not enough. We must understand how to build, change and maintain a culture. It is important to note that we must constantly pursue our culture. Once we see it as achieved it will fade quickly. To put this in context, let’s look at some numbers. Based on studies from Maritz, CCL, NBE, Kenexa, Gallup and F&H Solutions Group… • 58%-90% of employees trust their managers • Only 14%-58% believe management is ethical and honest • Only 15%-30% are actively engaged

What those numbers tell us is that companies and leaders take culture for granted. They assume they have done enough and built up enough capital and goodwill. However, you can never build up enough capital and goodwill. The work is never completed. It is a process that must continuously be worked. But how? If we want to have a great company we must have a healthy, productive culture. The quality of our culture is based on the quality of our network, associations; our relationships. How can you measure the quality of the relationships at a company? By their conversations. The quality of their discussions will tell you all you need to know about their culture. • How honest are people? • How well do people really listen to each other? • To what extent are people curious? • Do they jump in and productively debate ideas? • Do they wait and see before they comment? Before they act? • Does the discussion change based on who is in the room? • How much gossip exists?

These are all signals that demonstrate how healthy the culture at a company is at any given time. The sign of a high quality culture is one where people feel comfortable experimenting; taking educated risks. They are focused on opportunity rather than protecting the status quo. High quality cultures are cultures where people are open about problems. They attack problems quickly and together. Everyone feels a sense of accountability and they openly express that accountability in their conversations. Most importantly a sign of a strong healthy culture is co-discovery and co-creation. Co-discovery is learning together. So often people work independently today. They present ideas and people react. And when people disagree they avoid each other. Co-discovery is the proactive effort of collaborating with someone who sees the world differently than you. If handled in a healthy manner it leads to co-creation. The building or development of a new innovative solution fostered by two or more people who see the world differently collaborating together. Different parties jointly generating a mutually valued solution. Now that is a healthy, productive, quality culture.

• Are the discussions hard on the people or the problem? • Is it more of a “me” or a “we” perspective? • Do people assume best intent? • Are people truth tellers? • Is there a meeting prior to the meeting?

STRENGTHENING BRANDS

Brad Federman, Chief Operating Officer F&H Solutions Group bfederman@fhsolutionsgroup.com www.fhsolutionsgroup.com

F&H Solutions Group can help you

71%, increase profit by about 12%, and increase sales by about 65%.

lower turnover by about

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How is Your HR Department Doing? Conduct an HR Audit to Find Out By CINDY DOTY

Is it time

to audit your HR function? The answer is...yes! If you are taking over the HR function for a new employer, setting up the HR department for a start-up, reviewing the HR function during an acquisition or merger, or just want to know where you stand, it is time. Performing an annual departmental review is a solid best practice. It is also wise to review selected processes as things change throughout the year. Regardless of when you choose to audit, it is important to know the health of your HR operation. This is best accomplished by periodically auditing the entire HR function in a systematic way. Using a structured audit helps you consider not only how you are complying with federal, state and local law, but also how you compare to business requirements and HR best practices. Look closely at your current compliance, resource effectiveness, and functional competence. Use the initial results as a baseline and then make a plan for improvement. Use what you learn each time as another step toward operational excellence. Be strategic. Be intentional. Be consistent. Auditing your entire HR function requires a significant time commitment and subject matter expertise. It often includes partnering with a consultant who can guide you through the process and recommend solutions to problems identified during the audit. You may also need an outside advisor who is knowledgeable of the complex legal requirements affecting your operations. Legal obligations change frequently due to changing regulations and evolving case law. In addition, your organization’s requirements can change when you cross a size threshold, move into a new area of business or make other changes. Failure to comply with laws covering your labor, benefits, immigration, safety and other HR functions can be costly, not only in terms of legal penalties, but also in terms of your organization’s reputation. Therefore, it is important to regularly audit your legal compliance. Regardless of the scope of an HR audit, you can generally expect it to include the following steps. 1. Determine scope and relevant benchmarks. 2. Develop a comprehensive questionnaire. 3. Gather information. 4. Evaluate information for effectiveness of each function. 5. Analyze results for strengths and weaknesses verses benchmarks. 6. Share results. 7. Create action plans for improvement. When determining the scope, consider the following: hiring, on-boarding, benefits, compensation, performance, termination processes, forms, personnel files, notices and postings, policies, procedures and handbooks. Also look at strategic HR management, training and development, labor relations, safety and security, human resource information systems, diversity and equal opportunity, organizational effectiveness, and metrics. Look closely at the structure, accountability and effectiveness of your HR team and its members, as well. Once you decide to audit your HR function, where do you start? There are excellent resources available through the Society for Human Resource Management and the American Management Association. In addition, experienced HR consulting professionals who specialize in performing HR audits are available to partner with you. You can reach out to your HR professional network for ideas and additional resources. It is a major project, but resources are available. Consider an audit of your company’s HR function as an investment in the excellence of your business operations. As problems are identified, implement solutions to guard precious financial resources and introduce best practices. Penalties can be avoided from improved compliance. Dollars and time can be recovered from improved efficiencies. And there are valuable lessons to be learned, as illustrated by the following. 18

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A recent (February 2018) article in HR Magazine titled, “Rookie Mistakes,” explores some of the biggest mistakes made by new HR practitioners. Author Christina Volz shared the admission of a young practitioner named Chris from New Jersey who stated, “I think the biggest mistake was not knowing to do a full audit of what the payroll department has accomplished prior to HR starting.” He added, “Paired with that was not knowing which forms the government required for ACA purposes and assuming it was all in order.” Had he audited his processes from the start, he would have identified those things not in order and corrected them early. HR consultant Mike Bean audited a young business who described its value. “For a small business that is growing rapidly, we needed guidance to ensure that our policies, procedures and other various HR essentials were current with today’s laws and regulations.” They said it helps having a partner who is “knowledgeable about what we need to do today to plan for the future tomorrow.” It is not just rookie practitioners who benefit from audits. Audits help identify non-compliance with requirements of which even experienced HR professionals may not be aware. HR consultant Angela Dunaway sees this often. She sites a mature information technology company whose HR team was not aware of employees’ rights to discuss pay under the National Labor Relations Act. Before the audit, company policy included disciplinary action for employees who discussed their compensation. As part of the audit, the entire employee handbook was reviewed and corrected for this and other prohibited practices. Angela also states it is common for HR staff to assume their invoices for employee benefits are in order without reviewing them. While auditing an Aerospace and Defense company, she discovered the employer was paying significant premium for employees who are no longer with the company, and COBRA notices were not compliant. After the audit, HR reviewed bills monthly and notified their insurers and COBRA administrator of new coverage and terminations in a timely manner. Performing an annual departmental review is a solid best practice. So is reviewing processes as things change throughout the year. As these instances demonstrate, there is much to be learned from auditing the HR function in a systematic way. No one can know everything, and no system will be perfect. But know where you stand and improve upon it. Is it time to audit your HR function?

The answer is...yes! Cindy Doty, SHRM-SCP, SPHR HR Consultant PassionHR Consulting cindy@passionhr.net www.passionhr.net

Newsletter Date

Volume 1, Issue 1

Topics Of Interest:  Trends in Agency enforcement —NLRB, DOL, EEOC, OSHA, etc.  Sexual misconduct— regulatory and media focus on harassment, discrimination

for our 39th Annual Labor & Employment Law Update Conference

 Leave laws— FMLA, ADA, reasonable accommodation, other  Employee hiring, retention, and termination  Wage and Hour, and overtime compliance

Our Annual Fall Conference is truly the high point of the year for us — a time to gather with friends and discuss important, contemporary employment issues. This year the Conference will offer sessions that summarize relevant past year’s developments while offering insight into the sweeping changes underway in the employment and labor climate. PLEASE PLAN NOW TO JOIN US!

Jeffrey G. Jones Firm Managing Member

Our day-and-a-half program covers important legal decisions and societal trends affecting employment.

Approximately thirty employment law attorneys will present more than thirty-five topics that have been carefully selected to address the concerns of all employers and to give you an opportunity to select from a wide array of topics dealt with in detail. Join us in Knoxville on November 1st and 2nd! We promise you an informative, but light-hearted, thorough and practical journey through today’s workplace issues. Hope to see you there!

Jeff Jones A w o r d a b ou t ou r C o nf e r e nc e M a t e r i a l s

A FEW COMMENTS FROM LAST YEAR

Valuable handout materials for the Conference include not only PowerPoint presentations, but also our 2018 Conference Manual, a handsome hardbound publication that contains outstanding reference articles, written by Wimberly Lawson attorneys, on all important topics discussed in the live presentations.

“Fun and educational!” “Excellent content and speakers!” “Timely info, well presented, high value learning” “My company attends every year” “Always an excellent seminar!”

2 Five Ways to Register 1. Mail to:

Bernice Houle Wimberly Lawson Wright Daves & Jones, PLLC P.O. Box 2231 Knoxville, TN 37901-2231 2. Fax to: 865-546-1001 3. Email to: BHoule@WimberlyLawson.com 4. Via website: www.wimberlylawson.com 5. Phone: 865-546-1000

Inside Story

TARGET 3

Inside Story

OUT OF 4

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RANGE

Inside Story

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HIGHLIGHTS

1 Cathleen Hoffman, SHRM-SCP, SPHR, Director of ARSHRM (Pick up from May 2017 Page 14, Photo 2) 2 Donna Merriweather, SHRM-SCP, SPHR, Chair of the 2018 ARSHRM Conference & Expo in Hot Springs, welcomed the over 400 attendees. 3 Members of the 2018 ARSHRM Conference Committee are (L-R) Broderick Daniels, Teri Roper, Patti Airoldi, Allison Ramsey,Tara Mauk Arthur, Beth Elder, Michael Smith, Holley Little, Jill Hilton, Nikki Skinner and Donna Merriweather 4 Tim Orellano, PHR, SHRM-SCP, President of The Human Resources Team, was the opening keynote speaker. His topic was “Strategies for Innergy.” 5 Andy Masters was the lunch keynote speaker on Wednesday. He spoke on “HR Leadership Lessons from Hollywood!” 6 Sheila Moss, SHRM-SCP, SPHR, Owner of Information Solutions Team LLC; and Judith Tavano, SHRM-SCP, SPHR, founder of TRAINIQUE, LLC; were the opening general session speakers on Thursday. They discussed “Me – at Work.” 7 The Thursday lunch keynote speaker was Col. (Ret) Greg Gadson. His topic was “Overcoming Adversity.” 8 Dr. Frank Niles was the closing general session speaker on Thursday. His topic was “Lean Forward.” 9 Wes Booker was the brunch general session speaker on Friday. He presented “Field Presence.” 10 The conference closing keynote speaker was Paul Vitale who spoke on “Setting the Tempo for Success.” 11 (L-R) Kelli Hernandez; Jim Harris, PHR, Director of HR at Northwest Arkansas Democrat Gazette, recipient of the 2018 ARSHRM Jim Wilkins Lifetime Achievement Award; and Steve Ezelle 20

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12 (L-R) Kelli Hernandez; Sheila Moss, SHRM-SCP, SPHR, recipient of the 2018 ARSHRM Russell Gunter Arkansas HR Legislative Advocacy Award; and Steve Shulte, former recipient 13 (L-R) Kelli Hernandez; Marina Mueller, Recipient of the 2018 ARSHRM HR Professionals of the Year Award; and Kevin Robinson 14 ARSHRM Chapter Presidents (L-R) Shayne King, Kim Gordon, Sheila Primm, Sara Staley, Donna Carter, Tonya Stell, 13 Kevin Robinson 15 University of Central Arkansas volunteer students (L to R) Lianna Harkenreader, Connor Lichtenwalter, Jocelyn Leyva, Jordan Rivera, Naoto Kawakami, Kaitlyn Reeves, Christine Kimso 16 The 2019 ARSHRM Conference Committee will present “The HR Greatest Show on Earth” in Hot Springs April 3-5. Members are (L-R) Heather Smith, Holley Little, Tara Mauk Arthur, Broderick Daniels, Nikki Skinner, Beth Elder, 15 Allison Ramsey, Dale Clinton and Teri Roper Watch our Facebook Live Interviews with the following speakers and HR thought leaders from the 2018 ARSHRM Conference in Hot Springs at www. facebook.com/hrprofessionalsmagazine We kicked off our Facebook Live Interviews at the 2018 ARSHRM Conference with Donna Merriweather, SHRM-SCP, SPHR, who was the 2018 ARSHRM Conference Chair. (See photo 2) 17 Brad Federman, COO, F&H 17 Solutions Group, presented “Paychecks Can’t Buy You Passion.” Brad discusses this topic on Facebook Live. 18 Dale Clinton, HR Business Partner with Arkansas Blue Cross Blue Shield, introduced the theme for the 2019 ARSHRM Conference. We discussed our Online HR Certification Exam Prep Class on Facebook Live. 19 Debra Finney, Outreach and Education Coordinator with the EEOC Memphis District, discussed “Strategies from the EEOC” on Facebook Live. 20 Stuart Jackson, with Wright Lindsey Jennings, 20 discussed the status of medical marijuana and other hot employment law issues in Arkansas on Facebook Live. 21 (L-R) Jess Sweere, Cindy Kolb, and Amber Bagley with Cross, Gunter, Witherspoon & Galchus presented “Don’t Get Caught Up in the #MeToo Movement on Thursday afternoon. Here the take-a-ways from their presentation on their Facebook Live interview. 22 Bruce 22 and Blair Johanson (twins) are compensation gurus with DBSquared. They also do a lot of work with executive compensation, which we talk about on the Facebook Live interview 23 Kelly Majdan, Managing Director of Strategic Retirement Partners, spoke on “Tactics to Improve Your 401K Participation.” We discuss these tactics on Facebook Live. 24 Cammie Scott, SHRM-SCP, SPHR, President of CK Harp & Associates, with members of her team in the Exhibit Hall. Cammie and I discuss her article in our April 24 issue, “Leadership Success.” www.HRProfessionalsMagazine.com

Why HR Should Monitor Current Employees By MADDIE BRADIN

Background checks on new hires are commonplace in every industry. Criminal records searches, along with education and employment verifications, are integrated into the modern hiring process. However, once the candidate is hired, HR still needs to consider the fact their behavior could be a threat to the safety of the workplace and the organization’s reputation. That’s why using a post-hire screening and monitoring process is vital, especially in regulated industries such as the healthcare, trucking, and banking sectors. Conducting post-employment screening regularly throughout an employee’s career reduces risk, maintains productivity, and protects the company from costly litigation and embarrassing press.

Think about it. An employee may begin their career with a clean criminal history, drug-free lifestyle, and good personal financial practices, but there is no guarantee that their background will remain spotless. Crimes such as fraud are often committed by long-term, trusted employees. Offenses that may be uncovered during a postemployment screen that would be relevant to the employer would be:

Credit problems: An employee’s credit report gives evidence to his or her financial troubles. This information, combined with other data from other sources, may signal an increased risk of fraud or stealing. NOTE: Only utilize credit reports in this manner for positions in which knowledge of an employee’s credit habits are relevant and fair.

Promotion

Post-employment screening and monitoring solutions that uncover the issues mentioned above are vital to an organization for three key reasons:

How to Screen

#1. The safety of the workplace. Periodically screening current employees’ backgrounds helps companies maintain confidence in the safety and quality of its workforce and ensures workplace safety. This protects employees, customers, and clients. #2. Compliance. Some companies conduct post-hire background checks on employees to comply with insurance, accreditation, and membership or licensing requirements. For example, an insurance company might require repeat backgrounds for liability coverage against theft or harm to customers. An accreditation association might require human service organizations to have a plan in place for annual background checks. #3. The bottom line. Background checks can protect company assets by uncovering an employee's financial problems or other information that could indicate a problem. Companies might require regularly updated information about employees in banking or financial institutions or employees who have access to confidential or sensitive material. Protecting the company’s viability and long-range profitability is imperative to maintain operations and foster success. Post-hire screening and monitoring can be conducted differently, depending on HR’s goals. Some common times to screen current employees are:

Annually or Biennially

Drug use: Many employed Americans abuse drugs, and this number is rising, especially with the current opioid epidemic. Drug abusers create significant risks in the workplace, including decreased productivity, increased likelihood of theft, and altercations with co-workers.

HR might want to automatically set post-hire monitoring in place every one or two years. This is typically the case for regulated industries. For example, annual background checks might be used for employees who provide in-home services.

Criminal offenses: These would be crimes that show an increased risk to the company. Being aware of criminal convictions allows HR to act to reduce the possibility of negative issues that range from fraud to theft, to workplace violence.

An employee's behavior in the workplace, noticeable change in lifestyle, or a report of a criminal conviction might result in the employee being subject to a new background check or drug screening.

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Upon Suspicion

An employee might undergo a repeat background check because of a promotion or transfer to a job that requires a background check. The instances that employees are subjected to a background check need to be spelled out during the hiring process and documented in the employee handbook. Here are four of the most popular types of post-hire screening and monitoring. 1. C riminal Checks: For criminal due diligence at a minimum, run a County Criminal Search in the county the employee currently resides and an Instant National Criminal/ Sex Offender search. Keep in mind the National Criminal Database Search report portion is not truly a nationwide search. Not every county of every state participates in the national criminal database. 2. D rug Screening: Drug use is particularly important to uncover, as substance abuse is always an expensive business. Drug abuse often forces abusers to attempt increasingly desperate and extreme methods to fund their habit. 3. M otor Vehicle Screening: If your employee drives or has the use of a company vehicle to perform their job role, your insurance provider will likely require an annual Driver Report to maintain coverage. 4. C redit Checks: If relevant to the position, checking an employee’s credit is a helpful way to find out about financial problems and keep an eye out for stealing and fraud. A reputable background screening company functions as a valuable third party in your post-employment process. As HR’s partner, they provide specific periodic checks on the employee’s criminal and credit history. There are even specially-designed post-employment screening products that monitor current employees’ background information. Again, these measures are especially important in regulated industries, or in sectors that work with vulnerable populations like children or the elderly. To maintain a safe, productive workplace, HR professionals must be aware that a smart postemployment screening and monitoring process helps decrease the risk current employees pose. Use it in addition to your pre-employment screening to create a safe, efficient workplace.

Maddie Bradin, National Account Executive Data Facts, Inc. mbradin@datafacts.com www.datafacts.com

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BlockChain HR: How HR Will Transform Following this Major Disruption

tarting in 2017, the world saw a major disruption in currency with the abrupt rise of Bitcoin. Bitcoin is an electronic payment system based on mathematical proof. The idea was to produce a means of exchange, independent of any central authority, which could be transferred electronically in a secure, verifiable and immutable way. This is the year that the world’s attention and imagination was finally captured by this industry as a result of its breakneck growth and the seemingly limitless possibilities it offers for a modern life. This is an industry whose growth surprised many and disruption will affect many in the upcoming years. Though many saw the abrupt rise and fall of this currency, the technology behind it will remain constant for future years. This technology is known as (blockchain). Blockchain can simply be explained as a decentralized open ledger system of adding, verifying and then recording transactions between peers in a transparent, efficient and irreversible manner. Blockchain technology is the first known man-made creation that is impossible to compromise, sabotage, or change by any other human or single entity once it is put into play (I’m sure all readers in HR are smiling after hearing that!) Blockchain organizes information into groups of data called blocks and distributed over networks. In other words, it is a decentralized digital database that allows everyone in a “chain” to see and verify the details of every record in the network.

BY AUSTIN BAKER

I’m sure many of you are wondering how we can use this type of technology to make our lives easier at work? Out of the many uses we will talk about in this article, the largest potential benefits come from blockchain’s ability to support HR’s organizational capabilities. Organizations that implement blockchain become more transparent, democratic, decentralized, efficient, and secure due to these primary advantages: • Data is distributed: the technology runs on computers provided by volunteers around the world, so there is no central database to hack. • The process becomes public: Anyone can view it at any time because it resides on the network. • Data is encrypted: Blockchain uses heavy-duty encryption to maintain security. With that being said, how is it being used?

Blockchain has four defining features: • DECENTRALIZATION: Blockchain is an open ledger that is created to accept, verify and then add transactions, with no central core or building where its infrastructure resides. It is the technology that gives every user with access to a computer and an internet connection the opportunity to participate and become an active stakeholder in any service or industry. • IMMUTABILITY: Once a transaction is accepted, verified and then stored on any blockchain, it cannot be undone by any entity whatsoever; not even the creator of the blockchain can change the values and inherent data of such a transaction. • SECURITY: Blockchain is such a limitlessly faceted technology with no single point of failure that hackers, no matter how skillful they are, cannot inject any malicious software on it that does not get rooted out immediately. • IMMENSE COMPUTATIONAL POWER: Blockchain is completely immune from any attempt by any regulating entity in the world to shut it down. 24

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In terms of the hiring and recruitment process, access to academic credentials and certifications could reduce the amount of time recruiters spend verifying information. Through blockchain technology, you will see significantly less time spent on calling employers to verify backgrounds, as well as less money spent on outsourcing background-checking services. Blockchain can provide open access to post-graduate accomplishments. Also using the concept of blockchain technology, we would have a real database of resumes, owned by the candidates themselves but where their qualifications and achievements are verified, and accepted, by the companies they had worked for in the past and the schools in which they attended.

In terms of benefits administration, when an employee becomes eligible for health coverage, blockchain could be used to initiate the benefit and when a probationary period is satisfied, the blockchain can trigger an increase in wages. It could even be used to administer employee contracts, like non-competes. In terms of payroll and contracts, experts believe blockchain also could have advantages for payroll, particularly for payments made internationally. Global payroll can be costly and often delayed because of the many intermediary banks and third parties involved in the process. Blockchain's ability to simplify and standardize payments by eliminating the middleman may make it attractive to payroll managers. Everything from tracking payroll and issuing paychecks to managing contracts is more efficient with blockchain. The technology allows companies to send and receive funds instantly and securely anywhere in the world without using a bank as a go-between, and without the corresponding fees that apply. It can also eliminate many of the day-to-day tasks of managing contracts by implementing smart contracts, which can automatically carry out predetermined terms. Both parties would be guaranteed that the other side would uphold those terms without having to spend as much time ensuring proper oversight. Wrapping it up: While most experts agree that blockchain will be used by HR for hiring and managing purposes at some point; it's not a common -- or even a trending -- practice yet. There are still many details to be ironed out. Unlike financial applications, recruiting, resumes or job histories don't have any current scenarios in which the history is currently trusted. What this means is that HR's use of blockchain technology will likely be confined to verifying and documenting education and training -- at least initially. However, having a secure network of these â&#x20AC;&#x153;Blocksâ&#x20AC;? creates limitless possibilities in other areas this could revolutionize in the future. What started off as a means of decentralizing currency has truly paved the way for a technological revolution in modern-day business operations everywhere.

About the Author Austin Baker is the President of HRO Partners, a human resources consulting and benefit administration and enrollment firm as well as a National Enrollment Partner Member representing the largest boutique, full service insurance and enrollment firms in the country. A veteran of more than 16 years in the human resources industry insurance and benefits industry, Baker is responsible for managing a multi-faceted human resources consulting company with public workforce programs and services focused on companies in the southeastern United States. Austin is a frequent speaker on a variety of leadership and benefit topics representing thought leadership and innovative practices in the HR industry. For more information, call Baker at 1-866-822-0123, visit www. hro-partners.com or connect with the company at www.facebook.com/hropartners, http://www. linkedin.com/in/jaustinbaker or http://twitter. com/jaustinbaker hropartners

jaustinbaker

@jaustinbaker

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Standing Firm!

What are Employers Viable, Legal Path Forward? It is maintained that employers assume some responsibility in preventing opioid abuse. Examining 15 court cases from 2009 to 2015, employers were found to be negligently libel for the death of employees who were treated for work-related injuries with prescribed opioids which resulted in worker addiction or death. There is a path forward, but it takes a deliberate and concerted effort on the part of employers. Taking such a calculated direction necessitates the adoption of “Standing Firm: 7 Strategies to Maintain a Drug-Free Workplace.” These include: 1. Knowing the safety sensitive and other work related risks associated with opioid use and other impairing substances 2. Becoming knowledgeable with the marijuana laws and applicable cases in various states

Navigating the Employer Legal Minefield and Workplace Drug Testing Obligations in 2018 By KIM LAFEVOR and TOMMY M. EDEN III

Framing an American Business Problem The available pool of working age Americans is shrinking, organizations are experiencing increased employee absenteeism, lost productivity, company theft, rising health care costs, and significant spikes in workplace injuries and fatalities. Yet these are all related to the same too familiar common denominator: American business has a drug problem! Eight million Americans use some type of illegal drugs, and 73% or an estimated 20 million of them are employed. Other workers have been overprescribed and abused legally prescribed impairing effect opioids, in many cases for workrelated injuries. It is a downward spiral and it has recently gained national attention on a very public stage. Do we know how to recognize these emerging drug related issues in our places of work? Are we aware of the legal challenges and have a plan for a viable path forward? Will the realized benefits outweigh the costs? An employer’s response should be unwavering, calculated, firm and legally compliant. Recognizing Drug Related Issues Substance abuse in the workplace is a multi-faceted and complex issue. On one hand, and in many cases, there are recognizable signs that an employee has a “drug problem” if one knows what to look for. Such tell-tale chronic indicators include unexplained absences, mood swings, changes in attitude, difficulty relating to others, decrease in productivity, inability to concentrate, and work that continually falls short of meeting employer expectations. However, on the other hand, there are those drug abusers that are able to stay under the radar and hide their drug habit for months or even years. Drug overdoses, largely from opioid painkillers, now replace car crashes as the leading cause of unintentional death in the United States. Sales of opioid painkillers have risen a staggering 300% in the past two decades, while deaths from overdoses have continued to rise. Opioid painkillers, such as OxyCotin and Percocet, are some of the biggest culprits. This is an ever-emerging crisis that is getting worse. Viable solutions should seek to provide a safe drug free work environment and to deter drug abuse on the job rather than aim at catching or punishing workers. 26

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3. Ability to upgrade job descriptions to include critical essential function safety language applicable to opiates and marijuana to render employer requirements job related 4. Creating a culture of safety and targeting and embedding this message in supervisory training 5. Acting with a sense of urgency on drug free workplace policy options when dealing with opiates and other impairing substances such as marijuana 6. Understanding the interplay between the American Disabilities Act (ADA), emerging state case law and Medical Marijuana anti-discrimination cardholder protections laws, and state, federal and DOT workplace drug testing obligations 7. Forming an overall legally compliant strategy to effectively stand firm when dealing with opiates and impairing substances in the workplace Among many other signs, work-related impairing effects of opiates and marijuana related intoxication can cause somnolence, extreme fatigue, decreased ability to concentrate, dizziness and mental confusion, slowed reflexes, impaired coordination, inability to cope with sudden changes, non-caring uncommitted and unconcerned attitude, and inability to accurately judge distance. A December 19, 2017 Bureau of Labor Statistics report noted that there was a 7-percent increase in fatal workplace injuries from 2011-2016. Included in these statistics were findings of a 32% increase in drug overdose deaths in the workplace in 2016, and a shocking 25% increase in deaths from trips, slips and falls in the workplace from 2011 – 2016; which just happens to coincide with the marijuana greening of America and national opiates epidemic. To give employers an additional incentive to stand firm, OSHA has introduced new maximum fines that apply to all citations issued after January 2, 2018 up to $12,934 for serious and failure to abate violations and $129,336 for willful/repeated violations – including workplace fatalities. Standing Firm: While OSHA fines should be an incentive, increased workplace fatalities is the true cost of opiate and marijuana use and abuse in the workplace. Employers should revisit job descriptions to ensure critical ‘essential function’ safety language is in place. Adding as an essential job function the “ability to work in a constant state of alertness and safe manner” to every safety-sensitive job description can serve to meet the safety culture. Additionally, in this way, “alertness” for a safety sensitive position becomes a ADA “business necessity.” Standing Firm: There is an OSHA mandated employer general duty to provide a safe work place from known hazards. Employers must act with a sense of urgency on drug free workplace policy options when dealing with opiates and marijuana. Specific policies that support a drug-free workplace include: 1) incorporating a pre-duty disclosure of impairing effect medications and substances, and 2) prohibiting the use of impairing effect prescription medication and substances by safety sensitive employees. Standing Firm: A sound drug-free workplace policy applies to all employees equally without any discriminatory intent or implication.

Prudent risk reduction in handling drug use in the workplace requires understanding the interplay between the American Disabilities Act (ADA), emerging state case law and statutes, and workplace drug testing obligations. This requires employers to utilize an interactive process. Employers can offer various types of reasonable accommodations to include: 1) leave of absence beyond FMLA, 2) work continuation agreement (based on an interactive discussion with the cardholder and follow up testing agreement), 3) modified work schedules, and 4) only take adverse employment action based on an individualized assessment by a trained medical doctor (MRO is best). While there are many states that have legalized recreational and medicinal use of marijuana, it is important to know and understand your own state medical marijuana cardholder protection laws. Standing Firm: The onus in on the employer to know and be accountable to what the law requires. Return on Investment: Employer Solutions and Strategies An employer’s ability to comprehensively manage drug abuse in the workplace necessitates forming an overall legally compliant strategy to effectively stand firm when dealing with opiates and marijuana in the workplace. Putting this complex puzzle together necessitates the following actions:

4. E ngage in an interactive process in the 12 states with medical marijuana cardholder protection laws (more states coming) 5. O btain a written fitness for duty opinion from an Occupational/ MRO Physician before you take adverse employment action 6. U sing resources, as needed, to guide this process The economic costs of workplace drug use in the U.S. is estimated to be more than $180 billion annually. These drug abusers are responsible for 30% increase in turnover rates, 32% in workplace theft, have staggering healthcare utilization rates of 300-400% higher than the average worker, and are associated with more than half of workplace injuries. The bottom line----the cost of a drug testing program is virtually insignificant compared to the potential return on investment which can be as much as 100 times the actual expense. In essence, an effective drug testing program is not a liability, but rather a tool that can provide an organizational more control. Standing Firm: is good for your employees, business and your bottom line!

Kim LaFevor, DBA, SHRM-SCP, SPHR

1. Updating job descriptions to include “safety sensitive position” and the ability to work in a constant state of alertness and safe manner as an essential job function 2. Instituting a drug free workplace policy to bring it into compliance with state laws and to include as a “safety rule” a pre-duty impairing effects disclosure safety policy for safety sensitive employees 3. Treat all impairing effect medications equally to avoid a prescription/medication medical marijuana discrimination/not compassionate claim

Dean, College of Business Athens State University General Motors Labor Relations (ret) kim.lafevor@athens.edu

Tommy M. Eden III, Esq. Workplace Drug & Alcohol Testing Practice Group Constangy, Brooks, and Prophete, LLP teden@constangy.com www.constangy.com

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According to the National Quality Forum (NQF), “never events” are errors in medical care that are clearly identifiable, preventable, and serious in their consequences for patients, and that indicate a real problem in the safety and credibility of a health care facility. Examples of “never events” include surgery on the wrong body part; foreign body left in a patient after surgery; mismatched blood transfusion; major medication error; severe “pressure ulcer” acquired in the hospital; and preventable post-operative deaths.

MEDICAL ERROR:

The Quiet Problem Affecting Employers

By CHRIS DAVIS

edical Errors have an estimated impact of $20.8 billion on the U.S. Economy according to Milliman analysis going back to 2010. 10-30% of patients are diagnosed incorrectly and about 40% receive flawed or altogether wrong treatment. Even with advancements in technology and medical education, 15 percent of all medical cases in developed countries are misdiagnosed, according to The American Journal of Medicine. Millions of patients worldwide are being treated for the wrong conditions every year. The Mayo Clinic Proceedings found that 26% of cases were misdiagnosed and The Journal of Clinical Oncology found that up to a startling 44% of certain types of cancer are misdiagnosed. The Society of Actuaries estimated that medical errors cost the U.S. $19.5 billion in 2008, with non-reimbursable medical costs per error ranging from $810 to $47,099 (Milliman, 2010). Total costs, which include in-hospital mortality and short term disability costs, reached over $93,000 per error. Estimates of annual American deaths resulting from preventable medical error range between 250,000 and 440,000, making medical error the third most common cause of death in the U.S., after heart disease and cancer (Makary & Daniel, 2016). Going all the way back to 2006, the National Quality Forum released a list of 28 “never events”.

Estimates of annual American deaths resulting from preventable medical error range between 250,000 and 440,000, making medical error the third most common cause of death in the U.S., after heart disease and cancer… 28

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Scary huh? Well, here is the scariest part: A study in the Journal of Empirical Legal Studies found that while the average cost for negligent injury reached $113,280, hospitals were responsible for only 22% of the costs, and externalized 78% of costs associated with all injuries and 70% of costs associated with negligent injuries to outside payers. This means private insurance, largely funded by private employers in either fully insured or self-funded arrangements, ultimately pay the majority of the economic burden associated with the medical error itself. For employers, this can be boiled down to a basic problem: the medical community schedules, diagnoses and treats the employee-patient, does something in error, and the employer and employee get 78% of the bill. On the public insurance side, in 2008 Medicare ceased paying for certain preventable medical errors caused by hospital negligence, saving an estimated $20 million each year (Brooks, 2007). Under the policy, hospitals, instead of Medicare or patients, were made responsible for the cost of additional procedures or extended length of stay associated with the identified errors. However, as more transparency is demanded out of the healthcare sector, solutions have begun to emerge to this very quiet problem for private employers. Some employers have begun to focus on procuring healthcare from medical providers, facilities and hospital systems who have the best quality ratings. These ratings cover a multitude of categories, such as patient safety, medical complication rate, medical reinfection rate and other metrics that largely compare a medical provider’s publicly available performance on their Medicare patients to regional norms of other providers. This then allows employers to determine on a condition by condition basis which doctors, facilities and hospitals actually meet their quality standards to earn the business of treating their employee-patients. This open-market answer to a complex problem by using actual performance data and transparency is often available in other commercial industries when comparing features and benefits of competing products, such as toilet paper brands, airlines or backpacks. By using quality and performance data, employers via the use of a third-party claims payer can help steer members to facilities that most closely align with the minimum standards of care an employer is willing to allow for their employees based on empirical performance data. This notion properly aligns the goals of the employer to manage costs effectively while ensuring high-level benefits for their employees with the goal of the employee and their family, which is to choose a provider they trust to deliver prompt and accurate care.

Chris Davis, MPH, ACSM, HFS Director of Health Management & Claims Informatics Regions Insurance, Inc. james.c.davis@regions.com www.regionsinsurance.com

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Tom Hayes Employee Benefits Practice Leader Tom.Hayes@regions.com 479.684.5259 www.regionsinsurance.com

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ÂŠ 2018 Regions. Regions Insurance is an affiliate of Regions Bank. Products and services are offered by Regions Insurance Inc. and underwritten by unaffiliated insurance companies. Regions Insurance does not provide legal or investment advice.

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GENERATION Z The youngest employees are often most concerned with debt like student loans and credit card debts. Establishing good habits from the beginning are key for young savers. This means establishing a debt repayment plan, but still maximizing the benefits provided, like the 401(k) match. Generation Z needs to establish the good habit of contributing to their employer-sponsored retirement plan as soon as possible. We also recommend they strongly consider the Roth deferral options if available. With a Roth deferral, you’ll forgo any tax deduction today, but the account will grow tax free. This can potentially be a huge benefit for someone with 40+ years to invest!

MILLENNIALS

BENEFITS CHEAT SHEET

Quick Tips for Each Generation to Maximize Their Employer Benefits By JEANNE J. FISHER

As a CERTIFIED FINANCIAL PLANNER™ and a specialist in Corporate Benefit Programs, primarily qualified plans like 401(k)s, I can see how the two blend together, and how Employer Benefits are becoming more and more important to the individual’s financial success. Employer benefits have become an important recruiting tool, particularly for large companies. We are also seeing a significant concentration of retirement savings into 401(k)-like accounts. According to the US Bureau of Labor Statistics, the number of private companies that offer a pension plan has shrunk by 25% in the last several years. Now only 8% of private sector companies offer one. Yes, pension plans are disappearing, and nearly everything is moving to participant-directed defined contribution plans. Finally, the U.S. Bureau of Labor Statistics shows the percentage of women in the workforce has nearly doubled in the last 50 years. The benefits industry has shifted so that the onus of being financially successful has fallen to the individual. Unfortunately, a study performed by the International Foundation of Employee Benefit Plans show that approximately 50% of all employees do not understand their benefits. There is currently no compensation structure in place for the advisor, and Human Resource Professionals don’t have the knowledge (nor do they want the liability) of providing financial advice. Flat-fee planners are working to fulfill this demand. Individuals can come to ARGI and pay a consulting fee for a custom financial plan that incorporates all these complex financial benefits. We’ve seen more organizations providing financial wellness programs for their employees. Unfortunately, these are typically mass-produced education programs that don’t speak specifically to the employer’s specific benefits offered. The benefits that are the most important to you will depend on your age and personal life. Below are some examples of conversations a Certified Financial Planner would have while providing benefits counseling to each generation. 30

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Hopefully by this point millennials have established the good habits. Now advisors want them to avoid making bad decisions when they get thrown a curve ball. According to the U.S. Bureau of Labor Statistics, the average person will change jobs nearly 12 times before they turn 50. We want your employees to respect their 401(k) balance for the long-term savings plan that it is. Given limited eligibility requirements and vesting schedules, it is very likely they’ll have only a small balance in their account as they change jobs. Anything they’ve managed to save at this point is the seed money of their future financial independence. Cashing out a 401(k) balance every time requires the employee to start all over again at their next job. The 401(k) industry has been incredibly innovative in providing participants tools that can make saving much easier. Target Date Funds can be a great option for younger savers. These are default funds that have a third-party manager actually managing the asset allocation (risk level) in a way that is appropriate for a particular age group. Finally, millennials may be considering marriage or children or buying a house. Almost every employer is going to offer low-cost group life insurance or group disability insurance. Once others in the home are dependent on your employees’ income, they should consider enrolling in this coverage.

GENERATION X This is where your employees really start to feel financial pressures and competing goals. Maybe they really want to go ahead and move into the nicer/larger house. They want to save for their children’s college but current expenses like private school and activities are

already expensive. All the while worried, because they know in the back of their head, they aren’t saving enough for their own future. Prioritizing goals is a great way to relieve some of that financial pressure your employee may be placing on themselves. High-income earners should start aggressively increasing retirement savings. Push to save 10% or possibly max out the IRS limit of $18,500 for 2018. It’s possible even that won’t be enough savings. Some large company plans may even allow for a post-tax savings solution above and beyond the $18,500. Or you have access to a second retirement plan, the 457 that has its own limits. Other long-term financial incentives like stock options, RSUs or deferred compensation, have the potential to be incredibly beneficial to an individual’s long-term success. The important thing is that your employees understand all of the benefits your company has taken the initiative to provide them.

BABY BOOMERS Boomers must start thinking about healthcare expenses in retirement. Many employers will offer an HSA in addition to the High Deductible Health Plan. The HSA is one of the most tax-efficient ways to save for future expenses! Contributions are deductible and distributions are tax-free if used for qualified medical expenses. Boomers should consider allowing their HSA account balance to grow by not using to pay for co-pays, deductibles or prescriptions while they are still working. To reach a level of independence where Boomers can retire, they must start thinking in terms of cash flow. What kind of lifestyle do you want in retirement and how much money will you need annually to fund that lifestyle? For years you, the employer, has automatically deposited a paycheck into their bank account. Now they have to plan for how they will recreate their paycheck in retirement.

40%

If the majority of their wealth is locked into one 401(k) plan with their current employer, they may consider asking if the plan allows for an in-service distribution after age 59 ½. Even the best designed 401(k)s don’t always offer the diversification needed to prepare for retirement. It could be in your best interest to go ahead and roll out a portion of your 401(k) to implement more advanced strategies. Of course, you should always discuss options like these with a trusted advisor who knows your particular situation before making any decisions. Financial stress continues to affect our workforce and the statistics are alarming. According to financialfitnessgroup.com, 80% or more of employees are affected by financial stress. Individual counseling and specific advice relative to a company’s benefits can be a great way to help your employees. Each employee will have his or own unique financial challenges, but we can certainly see a ‘trend’ of concerns in each generation. As you consider implementing a financial wellness program, consider the value of implementing a custom-tailored program that speaks specifically to the benefits your company provides, as well as each generation.

Jeanne J. Fisher, CFP, CPFA, MBA ARGI jeannefisher@argi.net www.argi.net

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iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii Tenth Circuit Court of Appeals Provides Guidance on Religious Accommodations in Tabura v. Kellogg, USA

iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii By JENNIFER HAGERMAN

Employers often struggle with how far they are required to go when accommodating a sincerely held religious belief or practice. In Tabura v. Kellogg, USA, No. 16-4135 (10th Cir. Jan. 17, 2018), the Tenth Circuit Court of Appeals recently held that in order to be reasonable an accommodation must go beyond delaying the employee’s eventual termination. The Tabura court reversed the district court’s decision to grant summary judgment in favor of the defendant company, Kellogg, holding that while a reasonable accommodation is not required to completely eliminate the conflict between the employee’s religious practice and work requirements, a reasonable accommodation must provide the employee an opportunity to avoid the conflict unless such an accommodation would cause an undue hardship.

Case Background Plaintiffs, Richard Tabura and Guadalupe Diaz, are Seventh Day Adventists who were employed at a Kellogg’s food production plant in Clearfield, Utah. As Seventh Day Adventists, Plaintiffs honored the Sabbath by refraining from work from sundown on Friday to sundown on Saturday every week. For many years, Plaintiffs worked ten-hour shifts Monday through Thursday, thereby allowing them to honor their religious beliefs. In 2011, Kellogg changed to a “continuous crewing schedule,” which required Plaintiffs to work every other Saturday. Plaintiffs informed Kellogg of the conflict with their religious practice and requested an accommodation. In response to Plaintiffs’ request for an accommodation, Kellogg allowed the employees to use paid time off and swap shifts with other employees, which were the same options available to any employee who wanted to take a day off. Plaintiffs had difficulty swapping shifts for several reasons: there were a limited number employees qualified to perform Plaintiffs’ jobs; Kellogg prohibited employees from working more than thirteen straight hours for safety reasons; Kellogg had to approve the shift swaps; Plaintiffs were not at the facility at the same time as several shifts thereby making it difficult to inquire about swapping; and, swapping shifts required some employees to alter their sleep schedule (due to night shifts), which those employees were not inclined to agree to. Kellogg utilized a disciplinary points system to address absences. Plaintiffs’ paid time off covered only approximately half of the required Saturday shifts (thirteen of the twenty-six shifts for Tabura, and seventeen of the twenty-six shifts for Diaz). Plaintiffs were unable to find coworkers to swap the remainder of the Saturday shifts. As a result, Tabura and Diaz were terminated approximately twelve months and fifteen months, respectively, after Kellogg implemented continuous crewing. 32

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Plaintiffs filed suit under Title VII for disparate treatment based on religion, failure to accommodate Plaintiffs’ sincerely held religious belief, and retaliation. The parties filed cross-motions for summary judgment on all three claims, and the district court granted Kellogg’s motion and denied Plaintiffs’ motion. Plaintiffs appealed the district court’s decision on the failure to accommodate claim.

Tenth Circuit Court of Appeals’ Analysis On appeal, the court framed the issue as “whether Kellogg reasonably accommodated Plaintiffs’ religious practice of not working on their Sabbath and, if not, whether Kellogg could have done so without undue hardship.” In holding that the district court’s grant of summary judgment should be reversed, the court repeatedly focused on the “fact-specific” nature of determining whether an accommodation is reasonable and noted that such a determination “must be made on a case-by-case basis.” Specifically, the court found that whether allowing Plaintiffs to use their paid time off and engage in swapping shifts was a reasonable accommodation is a question for a jury. The court rejected two “per se” rules proposed by Plaintiffs and the EEOC, as amicus curiae. The first proposed rule would have required that a reasonable accommodation “eliminate” the conflict between an employee’s religious practice and the employer’s work requirements. The second suggested rule would have provided that an employer cannot accommodate a religious practice “only through a neutral policy.” In rejecting the second proposed rule, the court held that an “employer can, of course, meet its obligation to accommodate its employees’ religious practice by using a neutral policy, so long as that policy reasonably accommodates the employee’s religious needs.” The court noted, however, that “an employer cannot take refuge behind a neutral policy if something more is required reasonably to accommodate a religious need.” In declining to adopt either of the proposed per se rules, the court concluded that the rules “would complicate this otherwise straightforward case-specific analysis.” Upon rejecting the suggested per se rules, the court examined whether Kellogg reasonably accommodated Plaintiffs’ religious practice. The court began by acknowledging that, under certain

facts, a combination of allowing an employee to use paid time off and swapping shifts may be a reasonable accommodation to an employee’s religious practice of observing the Sabbath. The court questioned, however, whether the combination of paid time off and swapping shifts was reasonable under the particular facts of this case. According to the court, “even if Plaintiffs used all of their vacation and other paid time off, that would still have been insufficient to avoid working some scheduled Saturdays, even when considered along with accruing disciplinary points short of termination.”

district court can grant summary judgment on the affirmative defense absent a motion from Kellogg, but it must give Plaintiffs notice and a reasonable time to respond, which it did not do. In addition, the court found that Kellogg merely asserted that additional accommodations would “create significant burdens on the company” and did not cite any actual evidence to support its assertions.

In addition, the reasonableness of shift-swapping was also uncertain because, as the court noted, “the universe of qualified employees with whom each Plaintiff could swap shifts was quite limited.” The court concluded that “a jury could find that, in light of the difficulties Plaintiffs had in arranging shift swaps in this case, Kellogg had to take a more active role in helping arrange swaps in order for that to be a reasonable accommodation of Plaintiff’s Sabbath observance.” The court recognized that Plaintiffs had a duty to cooperate and use the accommodations that Kellogg provided to them, but held that whether the Plaintiffs made such an effort is a genuinely disputed issue of fact for the jury to determine.

Practical Applications

The district court had also granted Kellogg’s motion for summary judgment on its affirmative defense that any accommodation beyond the accommodations provided to Plaintiffs would cause an undue hardship to Kellogg’s business. According to the court, “[a]n employer incurs an undue hardship if it must ‘bear more than a de minimis cost in order to give [an employee] Saturdays off’ to observe his Sabbath.” It is the employer’s burden, however, to show that it would incur an undue hardship if it offered an additional accommodation. Such a question, the court noted, is one of fact that turns on the context of each case. In deciding to reverse the grant of summary judgment, the court expressed concern over the fact that Kellogg did not actually move for summary judgment on the affirmative defense of undue hardship. The court recognized that the

Employers must continue to work with employees in an effort to find practical and effective solutions to accommodate religious practices. Relying on a neutral policy may not be enough, so employers should be prepared to offer accommodations beyond generally applicable policies. The accommodations offered should provide the employee with the reasonable opportunity to engage in the employee’s religious practice, assuming the employee cooperates. Finally, employers may not rely on speculation or opinion that an additional accommodation would create an undue hardship. Instead, employers must be prepared to offer evidence that the additional accommodation would result in actual cost or harm to the company.

Jennifer Hagerman, Attorney Burch, Porter & Johnson PLLC jhagerman@bpjlaw.com www.bpjlaw.com

We know our way around a courtroom. We also know you’d rather not be there in the first place. From sexual harassment to employee leave to social media, our labor & employment team offers training on a wide variety of issues to help HR departments achieve best practices in the workplace. Our goal is to help you prevent employee claims that could lead to agency investigations or even litigation.

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REVISITING THE UNAUTHORIZED PRACTICE OF LAW IN HUMAN RESOURCES MANAGEMENT By ABTIN MEHDIZADEGAN

Overworked and understaffed, Human Resources departments across the country are frequently tasked with managing complex personnel matters to meet ever-evolving compliance requirements of the modern workplace. While HR managers must be agile in performing this critical function, certain routine practices—like completing wage garnishment answers and filing appeals in unemployment claims—can create unintended liability due to the prohibition against the unauthorized practice of law (UPL). Against this backdrop, this article discusses the general framework regarding the UPL, common opportunities for UPL in the HR setting, and potential consequences of UPL for unknowing participants.

UNAUTHORIZED PRACTICE OF LAW: NO CLEAR NATIONAL STANDARD FOR HR DEPARTMENTS Prohibitions against UPL initially targeted nonlawyers who appeared in court on behalf of clients. Since the 1930s, the scope of UPL has evolved to encompass the preparation of legal documents and contracts, as well as the provision of legal advice and counsel. Presently, every state in the union has rules against UPL (some of which contain criminal penalties), and the analysis of whether a practice falls within the scope of “practicing law” requires a state-by-state analysis, rendering the development of a comprehensive definition of what constitutes UPL difficult, if not impossible.

COMMON UPL ISSUES FOR HR PROFESSIONALS One area of particular concern involves answering writs of garnishment. Payroll departments frequently receive these court-refereed documents from debt collectors seeking to garnish an employee’s wages. Typically, the employer must complete “allegations and interrogatories” submitted by the debt collector on a seemingly-innocuous fill-in-the-blank worksheets that requests information about the employee-debtor, including his or her wages, personal contact information, and social security numbers. Many unsuspecting HR or payroll employees complete these forms and return them to the debt collector. Shortly thereafter, the employer typically receives an order of disbursement in which the employer is directed to withhold a sum from the employee’s wages per pay period—usually twenty-five percent of the employee’s wages—until the debt is satisfied. What happens behind the scenes is less clear. Usually, when the debt collection firm receives the completed answer from the employer, it will forward the answer—which was likely signed by a non-lawyer representative of a corporation—to the court, along with a proposed order requesting that the court enter a withholding or disbursement order. In this process, the employer has likely engaged in the unauthorized practice of law, at least in Arkansas. Specifically, the Arkansas Supreme Court Committee of Unauthorized Practice of Law has taken the position that “the filing of such garnishment answers by unlicensed corporate employees constitutes the unauthorized practice of law.” See Advisory Opinion 34-260, Arkansas Supreme Court Committee of Unauthorized Practice of Law (September 30, 34

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1991). The Arkansas Attorney General has reached a similar conclusion and opined that—in the context of completing a garnishment answer—“when a non-attorney engages in the filing of pleadings in an Arkansas court on the corporation's behalf, this constitutes the unauthorized practice of law[.]” The issue of UPL does not stop with garnishment processing. Many states have express prohibitions against non-lawyers representing corporations or individuals in various administrative settings, including in unemployment actions. For instance, in Washington, a non-lawyer may not represent an individual in an unemployment hearing. Piunti v. Com., Dep't of Labor & Indus., Unemployment Comp. Bd. of Review, 900 A.2d 1017, 1019 (Pa. Commw. Ct. 2006). In Arkansas, on the other hand, non-lawyers may represent employers and claimants at every stage of the unemployment process, up to the point of filing a petition for review with the Arkansas Court of Appeals. For instance, in Bank of Fayetteville NA v. Dep’t of Workforce Services, 2016 Ark. App. 96 (2016), the Arkansas Court of Appeals decidedly held that an employer’s representative who filed a petition for review of an unemployment decision engaged in the unauthorized practice of law by signing the document. The Court observed that, in Arkansas, all corporations must be represented by licensed attorneys. Id. “[W]here a party not licensed to practice law in this state attempts to represent the interests of others by submitting himself or herself to jurisdiction of a court, those actions, such as the filing of pleadings, are rendered a nullity.” Id. at *1–2. Therefore, in dismissing the appeal, the Court held that “invoking the process of a court of law constitutes the practice of law,” and because the Bank’s employee was “practicing law when he signed the petition, the petition [was] null and void.” With the appeal dismissed for lack of jurisdiction—lack of an attorney’s signature—the Bank did not preserve its rights and was responsible for paying its portion of the employee’s unemployment benefits, which can, for certain employers, increase unemployment insurance premium rates. Likewise, as was the case in Bank of Fayetteville, the unauthorized practice of law may prejudice a company’s ability to protect its interests, as a court may find that a corporation’s pleadings are void and therefore dismiss an action against the employer. In garnishment cases, the financial repercussion associated with a void judgment may make the employer—not the employee—liable for a portion of the debt. Similarly, although garnishment cases appear straightforward, there are several nuanced legal issues that require guidance and attention from experienced employment attorneys. For instance, wrongful withholding may create liability for employers under the Consumer Credit Protection Act, which limits the amount of an employee’s earnings that may be garnished and protects an employee from being fired if pay is garnished for only one debt.

HR CONSULTANT FIRMS ALSO PRESENT OPPORTUNITIES FOR UPL Answering writs of garnishment and appealing unemployment decisions are just two examples of UPL traps for HR departments. Other routine advice relating to liability exposure, as well as drafting severance agreements, may also pose a risk of UPL. In this respect, it is important for HR departments to be wary and cautious when dealing with certain HR vendors that market “legal compliance kits”—services that provide access to forms and consultation services with purported HR “experts.” These services also present certain risks for employers, chief among them being the fact that there is no attorney-client privilege that will prevent the disclosure information that should otherwise be shielded from discovery. Because there is no attorney-client relationship, all communications between a consultant and an HR manager will be subject to discovery and can frequently damage defensive postures in litigation. Compliance consultants—both those with and without law degrees—take the position that they provide their services without UPL fears because they do not represent clients. To avoid any appearance to the contrary, these companies emphasize that they offer consulting and not legal services. Although these companies do not hold themselves out to be practicing law, some of their services bear more than a passing resemblance to activities traditionally considered to come within the scope of practicing law, and particularly, the provision of legal advice. For instance, PayChex touts itself as being “America’s largest provider of outsourced HR services . . . [that can] assist with functions including . . . “understanding applicable employment laws and regulations[.]” The Payroll Company, another payroll services firm, markets a service called “TPC Vision,” which provides its subscribes with, among other things, risk assessments, HR audits, job description

and classification testing, employment agreements, unemployment claim protests, and other generalized HR guidance. In addition to the dubious legality of some of these products, these compliance services are rife with opportunities for HR managers to engage in UPL. For instance, drafting or revising an employment agreement, or adopting the results of a “risk assessment,” are generally recognized as the practice of law. When an HR manager unknowingly crosses the boundary of UPL, the company risks invalidating agreements, incurring fines and penalties, and—most importantly—entering into important transactions without the benefit of competent and professional counsel. For the same reasons that a dentist should not perform neurosurgery, HR consultants should not be engaging in the practice of law.

CONCLUSION Executing a corporation’s HR function presents complex legal issues separate and apart from managing a business. While there is no shortage of compelling work for HR professionals, responsible managers should audit all routine policies and practices to avoid the unintended consequences attendant with the unauthorized practice of law in corporate pro se representation. Likewise, employers should strongly consider whether the potential short-term financial benefits of relationships with consultant firms merit the long-term risks of latent liability.

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

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TS H LI G H IG

2018 BE THE CATALYST SHRM-ATLANTA HR CONFERENCE

March 27-28, 2018 | Cobb Galleria Centre | Atlanta

Join over 1,000+ HR practitioners, industry experts and resource partners March 27-28 at SOAHR 2018, SHRM-Atlanta’s 28th Annual Conference, to share best practices, network, develop skills, build knowledge, and have fun! If you’re involved in HR in any capacity, you don’t want to miss this event.

SOAHR 2018 Highlights: 2 • 40+ sessions in 5 1concurrent tracks • 12+ hours of recertification credit with SHRM & HRCI • 2 engaging keynotes • 35+ industry expert speakers from companies such as MARTA, IHG and GE • NEW Pre-Conference Workshop on March 26th (+3.5 CEUs) • Interactive programs • Early morning sessions 4

Save $30 off Two-Day Registration with code HRPRO

Register now at SOAHR.net 9 10 11 Discounted rates available through March 12. SHRM-Atlanta members enjoy lowest prices! 1 Kimberly Douglas, SHRM-SCP, Chair of The Board of Directors SHRM-Atlanta, welcomed attendees. 2 SHRM-Atlanta Volunteer Leadership Team and Board Members. 3 Alex Alonso, PhD, SHRM-SCP, discussed the value of certification. 4 Greg Hare, managing shareholder of Ogletree Deakins Atlanta office, presented hot topics in employment law. 5 Marty Martenson, attorney with Martenson Hasbrouck & Simon, LLP, addressed going on the offensive addressing areas of employer liability in 2018. Catch our Facebook Live Video with Marty at www.facebook.com/hrprofessionals.com 6 Sarah Lamar, attorney with HunterMaclean, discussed sexual harassment in the era of #metoo, and employers’ obligations. Sarah is also Chair, SHRMGA Government Affairs Committee. Check out our Facebook Live Video with Sarah at www.facebook.com/hrprofessionalsmagazine 7 Dr. Shelton J. Goode, DPA, Executive Director, Diversity and Inclusion at MARTA, was a keynote speaker. His topic was “Inclusion 2020, Global Trends That Will Redefine Work, Workers, and the Workplace.” 8 Caught a photo op with Dorothy Knapp, SHRM-SCP, SHRM Field Services Director for Georgia. 9, 10, 11 Conference Booths

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1 All IMPACT Award Finalists and SHRM-Atlanta leaders. There were 9 finalists for the IMPACT Awards and 5 winners. 2 & 3 Floyd County HR Department (IMPACT Award Finalist) 4 & 5 Southeastrans HR Team (IMPACT Award Finalist): Christine Browning, SHRM-Atlanta President; Susan Whorton, SHRM-Atlanta Awards Chair; Christine Demarquoy, Southeastrans HR; Pamela Ballard, Southeastrans HR; Kevin Moss, SHRM-Atlanta Awards Committee; Cathy Missildine, Southeastrans CHRO; Jeanne Artime, SHRM-Atlanta CEO; Kimberly Douglas, SHRM-Atlanta Board Chair; Dwight Thompson, 4 5 SHRM-Atlanta President-elect

6&7 Cherokee County HR Department (IMPACT Award Finalist) 6

8 & 9 Kathleen Jones, Astral Brands (IMPACT Award Finalist) 10 & 11 AMB Group HR Department (IMPACT Award Winner): Dwight Thompson, SHRMAtlanta President-elect; Susan Whorton, SHRM-Atlanta Awards Chair; Christine Browning, SHRM-Atlanta President; Kevin Moss, SHRM-Atlanta Awards Committee; Kimberly Douglas, SHRM-Atlanta Board Chair; Jeanne Artime, SHRM-Atlanta CEO

12 Fulton County Government HR Department (IMPACT Award Winner) 13 & 14 Childrenâ&#x20AC;&#x2122;s Healthcare of Atlanta (IMPACT Award Winner)

15 & 16 City of Douglasville HR Department (IMPACT Award Winner) 17 & 18 Hope Harris, Nickell Equipment Rental (IMPACT Award Winner) www.HRProfessionalsMagazine.com

David S. Jones Fisher Phillips announced that effective April 1 David S. Jones has been appointed as the new managing partner of the firm's Memphis office. As part of a routine leadership rotation, David takes the reins from Jeff Weintraub, who served in the role for six years since The Weintraub Firm PC – founded by Jeff’s father, Sam – merged with Fisher Phillips. One of the first labor and employment attorneys in this area, Sam Weintraub went into private practice in 1958 after coming out of World War II and being sent to Memphis by the National Labor Relations Board to open a field office. Sam’s son, Jeff, joined The Weintraub Firm in 1981 and served as managing partner from 1995 until the office merged with Fisher Phillips in 2012. Since then, Jeff has been instrumental in developing and expanding the firm, and his leadership has led to many successes for the Memphis office. “It’s thrilling for me to see David become our Regional Managing Partner,” said Jeff, “I’m truly excited to now have the opportunity and time to focus on some of my

favorite parts of the business – representing our clients and business development.” “The Weintraub name has a longstanding reputation in Memphis,” said Fisher Phillips Chairman Roger Quillen. “Thanks to Jeff’s knowledge and influence, and with the addition of exceptionally talented attorneys like David, this office has grown into one of the more robust labor and employment law firms in Memphis. We look forward to its continued success and development under David’s direction.” With more than 18 years of law experience, David has been with Fisher Phillips since 2016, where he practices exclusively in the areas of immigration-related employment and compliance matters. David has extensive experience in assisting companies with hires or transfers of employees from outside the country. He has represented clients in matters relating to both immigration benefits and enforcement, as well as in proceedings before the Department of Homeland Security, the Department of

Labor, the Department of Justice and the State Department. Prior to joining Fisher Phillips, Jones was a partner at Jackson Lewis P.C. He is a regular author and has been a conference speaker to numerous organizations throughout his career. Jones is admitted to practice law by the State of Tennessee, the U.S. District Court for the Western District of Tennessee, the U.S. Court of Appeals for the Sixth Circuit, and the U.S. Supreme Court. David attended the University of Memphis, where he earned a Bachelor of Arts in foreign languages, magna cum laude. He received a Juris Doctor from the University of Florida Levin College of Law. Additionally, David speaks French, German, Portuguese, Russian and Spanish. David is a member of the American Bar Association, American Immigration Lawyers Association, National Association of Foreign Student Advisors, NAFSA Trainer Corps and University of Memphis Academic Internship Advisory Board. He is also a board member and serves as Chairman of the Mid-South Latino Chamber of Commerce.

Michael Hornback Littler Mendelson’s Lexington office is pleased to announce that Michael D. Hornback has joined the firm as Special Counsel. Michael earned his J.D. from the University of Arkansas and his B.A. degree in Public Relations from Eastern Kentucky University. During law school he was a member of the Arkansas Law Review and a recipient of the Pearson Fellowship. Michael began his legal career in Nashville, Tennessee, and after 11 years practicing in the Volunteer State, returned home to Kentucky in 2013. His practice focuses on employment and general litigation in state and federal courts in both Kentucky and Tennessee. Michael was accepted in the Commerce Lexington Leadership Lexington Class of 2015. He was also selected as a Rising Star by Kentucky Super Lawyers in 2016 and 2017, and is currently a Fayette County Bar Association Board Member.

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The Rizo Case: A Landmark Court Decision on the Wage Gap and Salary History A federal appeals court ruled employers cannot justify paying a woman less than a man doing similar work because she made less at her previous job. BY JENNIFER VALLOR IVY

This year, Equal Pay Day was observed on April 10, 2018, just one day after a roaring decision from a federal appeals court in Rizo v. Fresno County Office of Education analyzing one employer’s justification for a wage gap between genders. Regardless of personal opinions on this issue, employers must remain vigilant to ensure that their policies do not violate (intentionally or unintentionally) discrimination laws. To understand this issue, employers must also examine the complex history of equal pay upon which these laws are based. To begin, economists say that the pay gap is borne of external factors, such as career choice and leave for maternity and child care. Still, some economists also say that some of the gap is due to discriminatory assumptions that nudge women into being the parent to stay home with the child or assumptions that view women as less dedicated to their jobs. At the end of the day, regardless of whether an employer truly believes it has discriminated against an employee, “Salaries speak louder than words.” Rizo v. Fresco County Office of Educ., No 16-15372 (9th Cir. Apr. 9, 2018). With the foregoing in mind, let’s turn to the facts of Rizo. In Rizo v. Fresno County Office of Education, a federal appeals court ruled that employers cannot justify paying a woman less than a man doing similar work because she made less at her previous job. The Fresco County Office of Education hired Aileen Rizo in 2009 as a math consultant. She had her master’s degree and 13 years’ experience. Her job was to train instructors on different ways to teach math. When she was hired, the Office of Education put her on the first step of the 10-step pay scale system. During a lunch with colleagues in 2012, recently-hired male colleagues told Rizo that they had been placed at higher steps (at least one was on the ninth step out of 10) on the pay scale, starting them off at higher salaries. Rizo had started on the very first step when she was hired, despite the fact that she had more experience and seniority than the male colleagues. She filed a complaint, and the Office of Education told her that salaries are based only on salary history. Thus, the male colleagues were being paid more than Rizo only because they had been paid more at their previous jobs than she had been paid at her previous job. Rizo sued under the federal Equal Pay Act, as well as under state and federal discrimination statutes. The Court found that the case presented only one issue: “[C]an an employer justify a wage differential between male and female employees by relying on prior salary?” and it answered this question with a resounding, “No.” The court reasoned that ruling otherwise would perpetuate the wage gap ad infinitum.

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The Court ruled over the objection of the Office of Education, which argued that an exception from the Equal Pay Act applied. The Equal Pay Act provides an exception to employers who base salaries on “any other factor other than sex.” The school system argued that previous salary history fell within this exception because salary history was not tied to gender and, therefore, was not discriminatory. However, as stated above, the Court disagreed with this contention. It found, “unhesitatingly,” that “’any other factor other than sex’ is limited to legitimate, job-related factors such as . . . experience, educational background, ability, or prior job performance.” The Rizo Court found it inconceivable that Congress would create an exception for basing new hires’ salaries on the same disparities it sought to eliminate through the Equal Pay Act. “To accept the County’s argument would be to perpetuate rather than eliminate the pervasive discrimination at which the Act was aimed,” the Court said.

“ [C]an an employer justify a wage differential between male and female employees by relying on prior salary?” Employers should note the Court’s seemingly no-tolerance policy for wage disparities across genders. According to the Rizo Court, “once a plaintiff demonstrates a wage disparity, she is not required to prove discriminatory intent.” Thus, even the best-intentioned employers must stand ready to demonstrate an explanation for any perceived inequities in pay. Because discrimination issues can be complex and are often not obvious, especially to well-intentioned employers, it may be advisable to consult with legal counsel to make sure certain policies do not expose the employer to liability.

Our capabilities are global, but our focus is singular. With a concentration exclusively on employment and labor law, we provide our multi-national clients with a variety of effective strategies and solutions. It’s that specialization that allows us to represent companies all over the world. Managing your legal matters cost-effectively means we’re constantly developing new and innovative ways to solve your employment and labor law needs. We believe, when you focus on one thing, and only one thing, experience isn’t just inevitable, it’s invaluable.

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Littler Atlanta | 3344 Peachtree Road NE Suite 1500 | Atlanta, GA 30326

Jennifer Vallor Ivy Associate Attorney Rainey, Kizer, Reviere & Bell PLC – Jackson, TN Office jivy@raineykizer.com www.raineykizer.com

Littler Lexington | 333 West Vine Street Suite 1720 | Lexington, KY 40507 Littler Memphis | 3725 Champion Hills Drive Memphis, TN 38125

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2018 SHRM-Memphis Half-Day Legal Seminar March 20, 2018 at the Double Tree Hotel

1 Verlinda Henning, SHRM-SCP, SPHR, 2018-2019 SHRM-Memphis President, welcomed attendees. 2 Dr. Kathy Tuberville, SHRM-SCP, SPHR, SHRMMemphis VP Programs, introduced the speakers. 3 Tanja Thompson, managing shareholder with Littler Memphis, provided an NLRB update.

4 David Jones, regional managing partner with Fisher Phillips Memphis, discussed current immigration policies. 5 John Norris with Jackson Lewis presented changes at the EEOC. 6 2018 EEOC Changes

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7 Jeff Weintraub, partner with Fisher Phillips Memphis, discussed how to prevent sexual harassment charges in your organization. 8 Lisa Krupicka with Burch, Porter & Johnson PLLC, joined Jeff Weintraub in the discussion of preventing sexual harassment in the workplace. 9 Shelley Kemp, SHRM-SCP, is editor of the SHRM-Memphis newsletter.

10 Attendees at the SHRM-Memphis 2018 Half-Day Legal Seminar 11 Watch our Facebook Live Video with Tanja Thompson on www.facebook.com/ hrprofessionalsmagazine

12 Catch our Facebook Live Video with Jeff Weintraub and Lisa Krupicka on www.facebook.com/hrprofessionalsmagazine.com 13 Attendees at the SHRM-Memphis Half-Day Legal Seminar.

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Doctor’s Orders? Interpreting Medical Providers’ Return-To-Work Instructions Under the ADA By WILLIAM H. PAYNE IV

All

of us rely on doctors to make complex decisions on short notice that impact the quality of our lives. Employers who are increasingly overwhelmed by the mandates of The Americans with Disabilities Act (“ADA”), especially those with large workforces

engaged in manual labor, turn to doctors for the final word. Doctors, however, are often not familiar enough with the details of their patients’ jobs and the nature of the employer’s business, so the practice of shunting employment decisions to doctors has led to a host of employment lawsuits. The ADA requires employers to provide reasonable accommodations for qualified individuals with disabilities and determining what is “reasonable” can be complex when it involves unwinding an employee’s medical history. Disability discrimination cases involving return-to-work instructions from medical providers run the gauntlet from situations in which the employee is released to return to work with nebulous restrictions and an uncertain prognosis to situations in which the question of whether an employee will ever be released has become completely ambiguous. Employees often do not agree with their doctor or employer on the right accommodation, and doctors consulting on behalf of employers do not always agree with the employee’s personal doctor, who may see herself as an advocate for her patients’ wishes. On the one hand, employers who discharge employees based upon what they believe a doctor told them to do, often wonder what they could have done differently with the medical information they received to avoid a lawsuit. Conversely, employers who return employees to work based on a doctor’s recommendations wonder if they are mistakenly compromising their own safety and business policies. 44

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Consider, for example, the employee who has been released to return work in a hectic construction environment with restrictions related to a prescription painkiller. At play in the ensuing employment decision is the livelihood of the employee, the employer’s policies, the safety of the employee and possibly other employees, and the employee’s medical history, including history with pain medication, and all of these factors are shrouded, sometimes completely obscured, by the pronouncements of respected medical professionals. It is no wonder that these types of employment scenarios continue to spawn difficult litigation. At the heart of employment disputes that started with a doctor’s orders, however, is not the poor medical judgment of employers, who are not doctors; rather, it is a lack of what the ADA calls the “interactive process.” Under ADA, the “interactive process” is defined as an informal practice in which the covered individual and the employer determine the precise limitations created by the disability and how best to respond to the need for accommodation. It requires a dialogue between an employee and her supervisor, human resource representative, or ADA Coordinator.

The interactive process should come into play whenever an employee requests an accommodation. The process is especially useful, however, when the employer is being asked to make a decision that could contradict the opinion of a medical professional, put its workforce at risk, lead to a claim of disability discrimination by the employee, or all three. First, the employer needs to start by inscribing the boundaries of the inquiry to focus on the employee’s actual job duties as established by its own records and supervisors, as opposed to attempting to delve into the employee’s complete medical history. So, for example, in the case of an employee whose primary job duty is manual labor, the employer’s decision maker should consult with the employee’s supervisor, human resources, and the facility safety coordinator to develop a useful list of physical activities that are required of the employee.

Below is quick list of best practices for the interactive process: Educate all managers and supervisors about the interactive process.

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Listen to your employees, supervisors, managers, and HR professionals about employees’ needs and abilities.

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Proactively set meetings with employees to discuss their needs.

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Ensure that there is a written record of meetings to illustrate all that has occurred and that the record can be requested for identification and disclosure.

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Be mindful that the documentation is needed to establish knowledge, notice, intent, and good-faith effort.

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Next, the employer’s decision maker should speak with the employee to understand how the employee perceives her medical condition, communications from her doctors, the demands of her job, and the need for accommodation. The employer might well learn from the employee that she has discontinued a worrisome medication, misunderstood her job duties, or, perhaps, requires an accommodation that was never considered by the doctors. Finally, the employer must engage with the doctors themselves and use those initial communications to establish how much information is needed going forward. By reaching out to the doctor’s office, the employer might quickly learn that the doctor never considered the employee’s job duties, or, on the other end of the spectrum, learn that the doctor had concerns about the employee’s health that extend beyond information contained in a work release or FMLA certification. (Keep in mind, however, that the ADA, the FMLA, and HIPAA limit the scope and manner of contact with employees’ doctors and require employee consent, so be sure that your leave administrator or other human resources professional is requesting additional information according to those statutes’ guidelines.) Most importantly, in all three scenarios, the employer should maintain a written record of phone calls and meetings to illustrate that the interactive process has occurred. Whether the employer decides to bring an employee back to work, provide an accommodation, or separate the employee, a written record demonstrates that the employer carried its burden of gathering the necessary information. Some employers may flinch at the amount the time the interactive process takes; however, an ADA lawsuit takes up more time. Employers without the requisite staffing to communicate with employees, supervisors, and doctors about accommodating disabled employees should consider the merits of adding a fully dedicated medical leave coordinator or at least reorganizing the human resources department.

William H. Payne IV The Kullman Firm whp@kullmanlaw.com www.kullmanlaw.com

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IN PARTNERSHIP WITH

Highlights from the 2nd Annual SUPERVISOR AND MANAGER TRAINING

The Crescent Club Memphis

April 13, 2018

1 Officer Terry Donald with the Shelby County Office of Preparedness, presented “Active Shooter” Training. 2 Don Hutson, well-known author and speaker, spoke on negotiation skills. 3 Judy Bell, Judy Bell Consulting, discussed how to hold effective meetings in the workplace. 4 Jeff Weintraub with Fisher Phillips Memphis, provided a presentation on sexual harassment. He was also the luncheon speaker on the Fair Labor Standards Act. 5 Lisa May, senior vice president with Data Facts, Inc.; and David Estel, Strategic Alliance Manager, also with Data Facts, were sponsors of the event. 6 Verlinda Henning, 2018-2019 SHRM-Memphis President, was the emcee. SHRM-Memphis was a co-sponsor of the event. 7 Cynthia Thompson, MBA, SHRM-SCP, SPHR, presented legally defensible documentation. 8 Nancy Crawford, Marketing and Communications Director for the Better Business Bureau, discussed avoiding scams that target businesses. 9 Robert Childers, HR Manager for Simmons Food in Fort Smith, AR., was the winner of a $100 off gift certificate for the 1st Annual HR Executive Conference Cruise to the Bahamas sponsored by HR Professionals Magazine October 22-26. 10 Chef Stan Gibson, Executive Chef for the Crescent Club, prepared a plated luncheon of chicken marsala, roasted potatoes, and pencil asparagus. Dessert was a chocolate tart with fresh berries. 11 “If you see something, say something,” from Officer Terry Donald’s presentation on “Active Shooter” training. 12 Attendees at the 2nd Annual Supervisor and Manager Training Seminar at the Crescent Club in Memphis. 13 Groucho Marx slide

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DisruptHR Memphis Crosstown Brewing Company – April 12, 2018 DisruptHR is an informative exchange designed to energize, inform and empower executives, business leaders and people in the HR field. DisruptHR is built on the belief that how we’ve approached people and talent in the past won’t be the best way to approach it in the future. Disrupt is a night of short focused talks from professionals who want to share their ideas on how we can move our talent thinking forward. We’re borrowing from the genius of Ignite, so each speaker had 5 minutes to speak.

Memphis Organizers

Ross Ridenhour with ADP

Mary Billingsley with ADP

3 (L-R) Harrison Harpole, Jenny Story, Kyle McElhaney, Ross Ridenhour, Mary Billingsley, Hunter Acosta, Jason Yarbro 4 (L-R) Julie Henderson, David Estel, and Lisa May with Data Facts, Inc. 5 (L-R) Jenny Kiesewetter and Amy Ethridge with Kiesewetter Firm

6 (L-R) Lori Wimberley, Jimmy Madeksho, Pam Kail, John Vargas and Jennifer Hamilton with Lockton. 7 (L-R) Katherine Guthrie, Monica Yeckley, Shane Davis, Ginna Word, Amanda Davis, Shanna Coleman, Kirk Johnston, and Shawn Sandy with VACO.

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1 2018 MSSHRM State Council

2 Jan Farve, PHR, Director of MSSHRM, welcomed attendees. 3 Sherry Johnson, SHRM-SCP, CAE, SHRM Field Services Director for Mississippi, presented a Pre-Conference Workshop. 4 Jennifer Ledet, SHRM-SCP, CSP, was a keynote speaker on Tuesday. Her topic was, “Own It and Amp It: Amplify Your Influence to Accelerate Your Success.” 5 Murray L. Harber, Executive Director of the Mississippi Business Group on Health, presented, “Ergonomics in the Workplace: Posture, Biomechanics, and Tools to Help Reduce Injury and Health Risks.”

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6 Robin Banck Taylor, Managing Shareholder of Ogletree Deakins Jackson, spoke on “When Employees Return from Leave, the Journey for HR Continues.” 7 Timothy W. Lindsey, Shareholder of Ogletree Deakins Jackson, was a co-presenter with Robin Banck Taylor on “When Employees Return from Leave, the Journey for HR Continues.” 8 Jennifer Sims, attorney with The Kullman Firm, spoke on EEO developments. 9 Edmond E. Hughes, VP, Human Resources & Administration with Ingalls Shipbuilding, was the luncheon keynote speaker on Tuesday.

10 Jennifer Sims and Martin Regimbal, attorneys with The Kullman Firm, in the Exposition Hall at the Beau Rivage. 11 Jacquelyn Mack, PHR, Marketing & Public Relations Director for MSSHRM, was the recipient of the 2018 HR Professional of the Year Award. Beth Tackett, SHRM-SCP, SPHR, 2017 recipient, presented the award. 12 Sara Yates, recipient of the 2017 Spirit of HR Award, presented the 2018 Spirit of HR Award to Lindsay Carter, SPHR, Diversity Director for the MSSHRM State Council.

13 Jacquelyn Mack, PHR; Cynthia Render-Leach, SHRM-CP, PHR; Susan Holland, SHRM-CP, PHR; Jan Farve, PHR; and Judy Nail, PHR, are former recipients of the Spirit of HR Award. 14 Teresa Boutwell, SHRM-CP, PHR; Brandi Garrett, SHRM-CP, PHR; and Lindsay Carter, SPHR 15 Attendees at the 2018 MSSHRM State Conferences

16 Jan Farve, PHR, Director of MSSHRM, drew the winner of the Certificate for $100 Off on the 1st Annual HR Executive Conference Cruise sponsored by HR Professionals Magazine. Congratulations to Roshunda Hill with Milwaukee Tool! 16 www.HRProfessionalsMagazine.com

reaction I had to Virtual Team Success. Aside from this minor issue our authors have done an excellent job of defining the virtual team as a highly manageable and critically important process to organizations today and in my opinion have not left anything out. The information presented was timely, appropriate, well researched and applicable.

WHY VIRTUAL TEAMS?

VIRTUAL TEAM SUCCESS

by Richard Lepsinger and Darleen DeRosa By WILLIAM CARMICHAEL

he concept of virtual teams is not a new one within business and industry. More than likely you have been on one or know someone who has. Examples are endless but I will mention two simple ones to get this started. If you have ever taken an online class you have been on a virtual team. Or, participated in a video conference call where every person on the call either had responsibilities for that call or were simply required to attend it. Both examples rely upon the Internet or some other form of electronic medium to complete its objective yet many fail in their intent to bring a common message together. Or worse, some of the team members were not correctly positioned to be part of the team or meeting.

But are these truly examples of virtual teams? Yes and no. Yes, in that all attending were in different locations. No, in that the virtual teams of yesterday are completely dissimilar to the complexities and requirements of virtual teams today. Virtual Team Success: A Practical Guide for Working and Leading from a Distance by Darleen Derosa and Richard Lepsinger is an absolute “must read” for anyone assigned to lead or participate in virtual work groups. This excellent guide defines what virtual teams are, what they should look like and how to avoid the pitfalls too many have fallen into.

WHAT IS A VIRTUAL TEAM Let’s start with what a virtual team is. A Virtual Team – also known as a Geographically Dispersed Team (GDT) – is a group of individuals who work across time, space, and organizational boundaries with links strengthened by webs of communication technology. They have complementary skills and are committed to a common purpose, have interdependent performance goals, and share an approach to work for which they hold themselves mutually accountable. Geographically dispersed teams allow organizations to hire and retain the best people regardless of location. This definition was needed because our authors make the assumption that readers automatically know what a virtual team is, when in fact, they may not. This, by the way, is the only negative 50

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Virtual Team Success makes it very clear that organizations can no longer conduct business as usual and that “virtual collaboration” is destined to become the norm. We must all face it. The way we work has changed and often many of us share responsibilities, deadlines and projects, but not office space which presents a unique set of challenges. “In part,” as our authors attest, “because of the gradual shift of the U.S. economy from manufacturing and production to one of knowledge and information on a global scale.” And the reasons? “First, organizations are looking for the best available talent, regardless of their geographic location. Second, the prevalence of virtual teams is that emergence of a global economy has made it particularly challenging for organizations to quickly capitalize on shifts in the marketplace. And third . . . technology now allows organizations to achieve greater levels of efficiency and cost savings.” Derosa and Lepsinger have managed to leverage a robust research platform and their work provides a practical resource for virtual team members and leaders everywhere. Their research study is also one of the most comprehensive applied studies ever conducted on virtual teams and all of the recommendations outlined are based on their findings.

STRUCTURE AND LAYOUT Readers will find Virtual Team Success to be a practical research guide worthy of review and although not a long book, its seven chapters quickly get to the heart of virtual team problems and solutions. What readers will also discover is that the authors have written this from the perspective of someone who has just been given the responsibility of leading a virtual team for the first time. It asks the necessary questions any new leader would need to consider, probes for alternative solutions and wisely provides common-

sense best practices if tasked with such a commitment. Each chapter addresses a specific issue inherent with virtual teams, summarizes that information and arrives at workable solutions. And as a research-based tool, includes related assessments and checklists any new virtual team leader can take and run with. For this review, the listing of chapters will be extremely helpful:

Chapter One-

Chapter Two- Profiles of Virtual Team SuccessWhat Good Looks Like

Chapter Three-

Why Virtual Teams Fail

Virtual Team Launch Kit

Chapter Four- What Differentiates Great Virtual Teams

Chapter Five- How to Lead Virtual Teams- Tips, Techniques, and Best Practices

Chapter Six- What Factors Really Accelerate Virtual Team Performance

Chapter Seven- How to Facilitate High-Impact Virtual Meetings In closing, it has long been my practice to review a bookâ&#x20AC;&#x2122;s conclusion first and my approach to this one was no different. This helps me with what the authors intent is as well as specifics needed when writing a critique. Well, I was in for a shock just as many of our readers will be. Here, I anticipated more issues and concerns relatable to technical difficulties one would expect in the virtual environment. Instead . . . sorry, I donâ&#x20AC;&#x2122;t want to give away the ending but readers will not be disappointed! Suffice it to say, the authors have carefully described the lessons they have learned in creating virtual teams, the things to look for and overall best practices.

About the authors: DARLEEN DEROSA, PH.D., is a managing partner at OnPoint Consulting. She brings ten years of management consulting experience, with expertise in the areas of talent/succession management, executive assessment, virtual teams, and organizational assessment. RICHARD LEPSINGER is president of OnPoint Consulting and has a twenty-year track record of success as a human resource consultant and executive.

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

Another Year Another H-1B Lottery

By JASON SUSSER

Again USCIS will determine the future of approximately

200,000 highly-educated members of the US workforce by the luck of the draw.

The fiscal year 2019 H-1B lottery is in the books. Again USCIS will determine the future of approximately 200,000 highly-educated members of the US workforce by the luck of the draw. Lawyers and employers are bracing to respond to the government challenges to those petitions lucky enough to be chosen in the lottery and strategizing over what to do with those employees not chosen. Two thirds of the petitions filed will be returned unopened and companies will, in many cases, have to terminate the employment of valuable team members. The 2018 lottery will certainly be remembered by the barrage of Requests for Evidence (RFE’s) notably involving Level I wage issues; but not without the usual boilerplate requests for why advanced positions in the modern workplace require bachelor’s degrees, and how startup companies with millions of dollars in the bank can show losses and still afford to pay their employees. We are sure to see continued pushback on Level I wages even when properly selected for entry-level workers doing entry level tasks and managing no one. We will no doubt continue to receive requests asking employers to explain why people in high tech need degrees, whether anyone is really an economist, and more questions for anyone working at a third-party work site due to the publication of a recent USCIS memo on the subject. For those working in obviously professional occupations with closely related degrees (i.e. Mechanical Engineers with bachelor’s degrees in Mechanical Engineering) that are earning high wages, the battle is mostly just being selected in the lottery. For most however, employers and counsel should be prepared to gather detailed letters from managers, organizational charts, coworker’s education credentials, work product, industry letters of support, expert opinion letters, and other forms of strong evidence in preparation for additional request for evidence (if this evidence was not already submitted in the initial petition).

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Considering some 2018 H-1B cap cases were still being adjudicated and approved the week before the 2019 lottery, there is no reason to believe all this season’s issues will be resolved by October 1st.

While we can identify many of the

H-1B lottery issues of years past, it is hard to predict what

A bigger concern for many employers and hopeful H-1B employees is what to do once we find out they were not selected in the lottery. If they are recent graduates, then hopefully they have employment authorization time remaining on their Optional Practical Training (OPT) through a STEM extension based on their field of study. As a short-term fix, many recent foreign graduates will try J-1 intern programs to get as much valuable entry-level work experience as possible. Alternatively, foreign students who were not chosen in the H-1B lottery and who do not have the qualifications for other visa categories may choose to further their education by enrolling in a master’s program. Some graduate students may forego post graduation work authorization after grad school in favor of full-time CPT (curricular practical training), which can grant them work authorization while they study. While studying for their master’s degrees they can use those additional years as opportunities to continue trying their luck in the H-1B lottery. For non-recent grads and those not selected, employers with operations in other countries may be able to use L-1 intracompany transfer visas for their employees who have worked for them abroad. Some employers will even find themselves sending valuable employees to work for their foreign affiliate, only to bring them back once they have the experience to qualify for an L-1 visa.

new pressure point may arise in 2018.

While we can identify many of the H-1B lottery issues of years past, it is hard to predict what new pressure point may arise in 2018. If last year is any indication of what is to come though, employers, employees, and lawyers should not expect those chosen in the lottery to receive approved H-1Bs without the possibility of additional obstacles like Requests for Evidence. For those not chosen, I cannot express enough how beneficial it is to start strategizing now if a backup plan is not already in place.

Jason Susser, Attorney Siskind Susser PC jsusser@visalaw.com www.visalaw.com

SISKIND SUSSER PC

E visas may be available for the employees of companies with foreign ownership of the same nationality as the employee. Some H-1B hopefuls may start their own companies whether to consult potential employers or strike out on their own, and an E-2 may be a viable option if they are from a treaty country and can either make a substantial investment in or raise substantial capital for their new venture. While many are skeptical about the future of NAFTA, Canadian and Mexican citizens may have options if they are working in professions covered by the treaty and should consider those options seriously. O-1 visas are an option for the fast rising stars. However, since certain industries associated with the O-1 visa lend themselves better to the USCIS criteria used to judge extraordinary ability, this can leave many in the business world out in the cold – i.e. people in finance or management. While not appropriate for many new grads, this could still be an option though for those with the unique experience, publications, accolades, or just the notable career accomplishments to support the claim.

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5 Reasons We Need to Get Serious About PLAY AT WORK By HARVEY DEUTSHENDORF

“ You can discover more about a person in an hour of play than in a year of conversation.” ~ Plato ~ I believe it is time that we got serious about bringing play into the workplace. For many of us play is seen as the opposite of work and is looked as something we do in our free time, a hobby, a form of rest and relaxation. However, there are compelling arguments that play and work can coexist quite nicely and that incorporating play into our working environment actually has substantial benefits that can make our working time more relaxing, pleasurable and more productive. Donald Schön, organizational learning theorist argued that role play was able to generate radically new ways of understanding. Researchers from Carnegie Mellon University found that playing through scenarios helps decision making happen faster and better. Playworks https://www.playworks.org/ helps children develop healthy emotional and social skills through play. As well as working with children, Playworks helps companies to incorporate play at work. One of their suggestions is that “One or two people take responsibility for leading a game, something easy to play that everyone can join. The goal is inclusion, to remind everyone that we all are working toward the same goals, that we all have talents to bring to the workplace.” Progressive organizations like Google, LinkedIn and Ideo have for some time recognized the benefits that play brings to their companies and have incorporated play activities into their work environment. Southwest Airlines encourage their employees to have fun and let their personalities shine when interacting with their customers. Here are 5 compelling reasons that organizations need to get serious about play at work: RE DU C E S W O R K P LACE STR E SS By taking our minds off upcoming deadlines and the many other stressors that are common to every workplace, play acts as a release valve, allowing employees to release unwanted stress. This allows staff to go back to their duties refreshed and energized. It is well recognized and healthy to take regular breaks from intense activities and this allows us to recharge. Throwing play and fun activities into the mix further helps us to decompress and recharge.

put to the side, for a brief period, all the fences that are put up at work and letting their guard down will give everyone insight into areas that may not be revealed during regular working time. This allows staff to better understand, relate to each other and builds bridges between different levels of authority at work. BU IL D S EM OTION AL IN TEL L IGEN C E Play allows people to express, share and manage emotions in a way they may not feel they are able to verbalize during the regular course of a working day. Interacting with others in a playful environment can allow people the opportunity to try out new ways of articulating themselves, learn more personally and about the people they work with. Play allows us to share emotions that would normally lie under the surface in the seriousness of the workplace and promote circumstance to find safe ways of disclosing feelings. It allows employees to check out new ways of interacting in a safe, nonthreatening environment. BU IL D S L EAD ERSH IP S KI L L S Play is an excellent and safe way that if people are so inclined, can step out of their comfort zone and try on new leadership skills. Leading a fun activity allows a chance to feel leadership without the demands that role typically brings. Allowing everyone the option to take the lead in a natural play activity can allow leadership potential that may otherwise have remained dormant, to rise to the surface. This allows people to push their boundaries in a contained and non-threatening environment and leaves them a greater understanding of where they fit into the company and may help them to decide where they see their future within the organization.

I NCR E A SE S T E A M W OR K

“ Coming together is a beginning. Keeping together is progress. Working together is success.” ~ Henry Ford ~ Doing a playful activity as a team (when outcomes don’t really matter) is a strong reminder of the value of teamwork when outcomes DO matter. This helps each person focus on and appreciate the inputs of others and reminds us that there is only so much we can do on our own. In order to be successful, we need to work together towards a common goal. RE LATE B E T T E R TO OTHER PE OPLE As Plato stated, play can teach us a great deal about other people. Interacting with others in a fun, stress free environment encourages increased openness and sharing amongst staff. This in turn builds bridges and bonds which carry over into the work we are doing. Play allows staff to 54

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

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