HR Professionals Magazine October 2018 Issue by Cynthia Thompson

Volume 8 : Issue 10

www.HRProfessionalsMagazine.com

Common Misconceptions About ERISA

How Middle Managers Can

Close the Gap Between the C-Suite and the Front-line

Employee Engagement: An HR Game Changer

Highlights from

the SHRM

Fall Conferences

Jeff

Weintraub Legislative & Government Relations Chair SHRM-Memphis

Handling

C-Suite

Misconduct

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 53 offices across the United States and in Europe, Canada, and Mexico.

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Speakers Kevin Sheridan is an internationally recognized keynote speaker, a New York Times best selling author, and one of the most sought-after voices in the world on the topic of employee engagement. His topics include “The Business Case for Leadership & Development” and “Building a Magnetic Culture: How to Attract and Retain Top Talent to Create and Engaged Highly Productive Workforce.”

Margaret Morford is CEO for The HR Edge, Inc., an international management consulting and training company. Some of her clients have included Lockheed Martin, Chevron, Time Warner, U.S. Secret Service, Sara Lee Foods, Home and Garden Television, Margaret is author of “The Hidden Language of Business: Workplace Politics, Power & Influence.”

Gregory J. Hare is managing shareholder at Ogletree Deakins-Atlanta. He assists the company’s management team with a wide variety of human resource-related legal challenges, including claims of discrimination and harassment, sensitive investigations, severance planning, employment contracts, union problems, and government citations (NLRB, EEOC, DOL, etc.). Greg is a member of the SHRM-Atlanta Board of Directors and is a member of the SHRM National Speakers List. He AV-Rated and listed in Best Lawyers - Labor & Employment Law, Super Lawyers and Chambers USA.

Nathan C. Levy is a partner with Levy, Sibley, Foreman & Speir, LLC, and handles affairs on behalf of the firm not only regionally but statewide. Nathan has practiced in the area of workers’ compensation defense since 1998. He served as 2003 Co-Chairman of the annual Workers’ Compensation Seminar. He was also a speaker in 2006 and 2013 on Case Law Update at the annual Workers’ Compensation Seminar and presented at the 2016 seminar on The Escalation of Pain Medication in Workers’ Compensation Cases. Nathan is a Martindale Hubbell AV Pre-eminent rated attorney.

Nick A. Vlachos, MD, with WellStar West Georgia Medical Center provides medical direction for all employees and patients seen. Dr. Vlachos is the only Board Certified Occupational Medicine Physician in the region. He has 30 years combined experience including automotive, industrial, hospital and private-based programs and is certified as a Medical Review Officer by the American College of Occupational and Environmental Medicine. Dr. Vlachos is qualified as a certified Medical Review Officer (MRO) through the national Medical Review Officer Certification Council.

Robert Carlson, MD, is Program Director of WellStar Occupational Medicine in Columbus with a demonstrated history of working in the hospital & health care industry. Dr. Carlson is skilled in Nonprofit Organizations, Healthcare Consulting, Sales & Marketing, Supervisory Skills, and Business Process Improvement. He is a strong professional with a Master’s degree focused in Public Administration from SUNY Brockport.

Here are some of the topics covered at the conference: • The Business Case for Leadership Development & Learning • HR Means Business – How to Write a Strategic Plan in Human Resources • How to Attract and Retain Top Talent to Create an Engaged Highly Productive Workforce • Panel on the National Opioid Crisis – How It’s Affecting Your Business & Insurance Costs • What to Expect Going Forward in Labor and Employment Law Contact the Great Wolf Lodge for hotel accommodations@www.greatwolflodge.com www.HRProfessionalsMagazine.com

WEB EXCLUSIVES

7 Ways to Show Emotional Intelligence in a Job Interview By HARVEY DEUTSCHENDORF (https://bit.ly/2DbH12t)

Bringing Human Resources & Management Expertise to You

Studies show only

11%-29% of employees are fully engaged in their work.

www.HRProfessionalsMagazine.com Editor

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

The Thompson HR Firm, LLC HR Consulting and Online HR Certification Classes Art Direction

Park Avenue Design Contributing Writers

Austin Baker Bruce E. Buchanan William Carmichael Roquita Coleman-Williams Harvey Deutschendorf Karen Dix Brad Federman Stewart Gott Donna K. Fisher Russell W. Jackson Daveante Jones Christy Showalter Brad Shuck Evan S. Weiss 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.

www.HRProfessionalsMagazine.com

Features

Employment Law

5 note from the editor 6 Profile: Jeff Weintraub, Attorney SHRM-Memphis Legislative & Government Relations Chair 13 Get Onboard the HR Conference Cruise 14 The Meat of the Sandwich: How the Middle Manager Can Close the Gap Between the C-Suite and the Front-line 16 5 Signs You Need to Find Another Background Screening Vendor 22 CHRO Thought Leadership Roundtable Event in Nashville August 21 28 Employee Engagement: An HR Game Changer 44 Achieving Equality in Business & the Legal Profession in Memphis August 24 48 Book Look: “Ask the Right Questions, Hire the Best People” by Ron Fry 51 Why HR Departments Have Loved Holiday Gift Check for 30 Years

10 Workplace Concerns Regarding Marijuana and the Changing Legal Landscape

Educational Opportunities for HR Professionals 7 WGU Tennessee Fully Aligned with SHRM’s HR Curriculum 50 Online SHRM Certification Exam Prep Class Begins October 22

Employee Benefits 12 FMLA Rights for Employers and Employees 24 All Enrollment Service Solutions Are Not Created Equal: Lessons Learned in Building Best-in-Class Enrollment Services 26 Playing by the Rules: Common Misconceptions in ERISA and ACA Compliance

17 Register Now for the Wimberly Lawson 2018 Labor & Employment Law Update Conference in Knoxville November 1-2 18 Workplace Surveillance: Is It as Bad as it Sounds? 20 How to Handle C-Suite Misconduct 32 Top Labor and Employment Law Attorneys Listed in Chambers USA Ogletree Deakins 34 Bass Berry Sims The Kullman Firm 35 FordHarrison 36 Wright, Lindsey & Jennings LLP 37 Fisher Phillips 38 Cross, Gunter, Witherspoon & Galchus, P.C. Burch, Porter & Johnson, PLLC 40 Evans Petree, PC 42 Littler Mendelson, P.C. 45 A Littler Event in Memphis November 14 - A Year in Review: Labor and Employment Law Developments in 2018 47 ICE Raids Continue Throughout United States

Industry News 3 Register Now for the Excellence Through Leadership Conference in LaGrange October 18-19 8 Highlights of the 34th Annual KYSHRM Conference in Louisville August 28-30 21 Preview of WTSHRM 9th Annual Human Resource & Employment Law Fall Conference in Jackson November 7 30 Highlights of SHRMGA State Conference in Savannah September 5-7 46 Highlights of the 2018 SHRM-Atlanta Symposium August 21 49 10th Annual NEASHRM Supervisors Seminar in Jonesboro November 13 November 2018 Issue Features Employee Benefits Planning and Compliance and Employment Law Updates

a note from the editor

Cynthia with Tennessee Senator Sara Kyle (D-District 30) at the Achieving Equality in Business Conference August 24.

Hello HR Professionals! We were excited to be the official media sponsor for the Achieving Equality in Business Conference August 24 at the beautiful University of Memphis School of Law. I caught a photo op with Tennessee State Senator Sara Kyle (D-District 30) at the reception. One of the highlights of this conference was the mock jury trial selection that emphasized the implicit biases we all have. I hope you enjoy our coverage on Page 44. The SHRM fall conference season is in full swing! We kicked it off in Louisville with the 34th Annual KYSHRM Conference August 28-30. What an informative conference it was! We have the highlights for you on Page 8 and 9. Please check our Facebook live interviews with the keynote speakers and HR thought leaders from the conference. Just "Like" our

We moved on to beautiful Savannah September 5-7 for the SHRMGA State Conference held at the Marriott Riverfront on the Savannah River. Please see Page 30-31 for our exciting photo layout of the conference. You will enjoy our live interviews with the keynote speakers and HR thought leaders from this conference on Facebook and YouTube. Be sure to check out the SHRM-Atlanta Symposium highlights on Page 46. We will have highlights of the 2018 TNSHRM Conference in Sevierville and the 2018 ARSHRM Employment Law and Legislative Conference in Little Rock in our November issue. We can't wait to travel to beautiful Orange Beach for the 2018 ALSHRM Strategy Conference at Perdido Bay Resort on September 28! We will have highlights of this conference also in our November issue. It's an honor to have Jeff Weintraub, partner with Fisher Phillips - Memphis office, on our October cover. Jeff is the Legislative & Government Relations Chair for SHRM-Memphis. You can read about his outstanding career accomplishments on Page 6. Jeff is also included in our special article on Top Labor and Employment Law Attorneys listed in Chambers USA beginning on Page 32. If you see your favorite attorney in this issue, be sure to congratulate them on this outstanding honor! This issue is packed with information you need to know to effectively lead your organization as a strategic HR leader. Watch your email for notification about our October webinar sponsored by Data Facts on October 25. Please mark your calendar and plan to join us from 2 PM to 3 PM. If you are not receiving our email notifications about our complimentary monthly webinars, please visit our website, www.hrprofessionalsmagazine.com, and subscribe to our digital issue to be added to our email distribution list.

Facebook page in order to receive instant notifications of our live interviews from the conferences as they occur. I invite you to follow me on YouTube also at Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR.

cynthia@hrprosmagazine.com cythomps@twitter

Sign up for our RSS News Feed to receive up to the minute HR Alerts on changing legislation affecting our workforce. www.HRProfessionalsMagazine.com. www.HRProfessionalsMagazine.com

Jeff

on the cover

WEINTRAUB

JEFF WEINTRAUB, ATTORNEY Legislative & Government Relations Chair SHRM-Memphis Weintraub earned his bachelor’s degree from the University of Memphis and his J.D. from the University of Memphis School of Law. He represents employers in jury trials in employment discrimination, harassment and “whistleblower” lawsuits; in retaliatory discharge lawsuits; and in Fair Labor Standards Act collective actions, traditional labor cases and the like, in all courts, including the U.S. Supreme Court, and government agencies such as the Equal Employment Opportunity Commission and the National Labor Relations Board. He is licensed in Tennessee, Mississippi, Arkansas and Missouri.

www.HRProfessionalsMagazine.com

Jeff Weintraub, a partner in the Memphis office of the national management-side employment and labor law firm Fisher Phillips, serves as legislative and government chair for SHRM-Memphis. In that role, he advises the chapter on governmental and legal developments in the labor & employment field. He joined the SHRM-Memphis board in 2016. See Page 37 in our “Top Labor & Employment Law Attorneys Listed in Chambers USA” article for Jeff’s full career profile as a partner in the management–side L&E firm Fisher Phillips’ Memphis office. Weintraub has been involved in the SHRM-Memphis chapter for many years. He regularly helps organize, and presents at, the chapter’s employment seminars. He has spoken several times at the annual SHRMMemphis Half-Day Legal Seminar, this year addressing workplace harassment – especially in view of extensive media coverage of these issues – and how to ensure compliance with relevant laws. For more than 20 years, he has taught the Employee Relations & Labor segment in SHRM’s HR certification course in Memphis. He trains employers in avoiding harassment charges and employment litigation and is a frequent speaker at employment and labor seminars around the country. A longtime member of the Greater Memphis Chamber of Commerce, Weintraub is a member of the Chamber’s Chairman’s Circle and served as chair of the organization’s Small Business Council in 2016 and 2017. In that role, he helped organize the Chamber SBC’s HR Legal Summit in 2016 and 2017, a day-long opportunity for human resources professionals and business owners from small- to mediumsized companies, as well as attorneys, to catch up on the hottest topics in employment law. Weintraub was selected for HR Executive’s 2017 and 2018 lists of Top 100 Most Powerful Employment Lawyers in the Nation. He has been selected for inclusion in Chambers USA, America's Leading Business Lawyers since 2013, The Best Lawyers in America since 1995, Mid-South Super Lawyers since 2005, the World’s Leading Labour & Employment Lawyers (United Kingdom) for the last 10 years and Inside Memphis Business’s Power Players in Employment Law since 2010. 

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KEYNOTE SPEAKER LINEUP 1 1 2018 KYSHRM State Council

Brad Shuck 4 p.m. | Tue., Aug. 28

Jack Uldrich 8:45 a.m. | Wed., Aug. 29

Annie Meehan 12 p.m. | Thu., Aug. 30

2 3 4 5 Going Beyond the Surface of Business as Unusual: How to Leading a Life of IMPACT Employee Engagement: Exploring Future-Proof HR Against the Top 2 Scott McGarvey, Director of KYSHRM, welcomed attendees to the 34th Annual KYSHRM Conference in Louisville. Meet Scott and learn about the goals Principles that Matter Workforce Trends Transforming and plansthe he has for the KYSHRM StateinCouncil and some of the highlights of the conference in our exclusive interview. https://www.facebook.com/HRProHuman Resources Tomorrow fessionalsMagazine/videos/216803022527530/ 3 Dr. Brad Shuck, Associate Professor of the University of Louisville, was the opening keynote speaker on Tuesday. His topic was, “Going Beyond the Surface of Employee Engagement: Exploring the Principles that Matter in Human Resources.” Dr. Shuck received a standing ovation following his exciting presentation. See our in-depth interview with Dr. Shuck to learn the three most important keys of employee engagement. https://www.facebook.com/HRProfessionalsMagazine/videos/566881210395539/ 4 Jack Uldrich, keynote speaker for the Wednesday morning session, spoke on “Business as Usual: How to Future-proof HR Against the Top Workforce.” Watch our exciting video about the steps to take to future-proof HR. https://www.facebook.com/HRProfessionalsMagazine/videos/233765510624271/ 5 Annie Meehan was the closing keynote speaker at the luncheon on Thursday. Her topic was “ Leading a Life of Impact.”

Learn more and register at KYSHRMCONFERENCE.COM

www.HRProfessionalsMagazine.com

6 Jeanne Fisher, CFP, with ARGI Investment Services discussed “The Big, Bad Retirement Plan RFP.” Jeanne is a 401(k) advisor and financial wellness educator. See our interview with Jeanne to learn how to run a retirement plan RFP. https://www.facebook.com/HRProfessionalsMagazine/videos/386543371881762/ 7 George Adams, attorney with Fisher Phillips – Louisville office, spoke on “Opioid Abuse in the Workplace.” Fisher Phillips sponsored the conference attendee tote bags. Watch our interview with George to learn how to handle the opioid crisis in the workplace. https://www.facebook.com/HRProfessionalsMagazine/videos/1601872473257708/ 8 Cynthia Knapek, President of Leadership Louisville, was a speaker on Thursday. Her topic was “The New Science of Leading Change.” See our exciting video with Cynthia to learn how to successfully lead change in your workplace. https://www.facebook.com/ HRProfessionalsMagazine/videos/445300885964538/ 9 “Challenging Workplace Disability Scenarios” was Jay Inman’s topic. Jay is an attorney with Littler – Louisville office. Watch our informative video with Jay to learn how to handle some of the most challenging issues with disabilities in the workplace. Littler was the luncheon sponsor on Wednesday. https://www.facebook.com/HRProfessionalsMagazine/videos/326249481444919/

10 Lisa Zangari with Leadership Louisville was one of the most popular speakers at the conference. She spoke to a “standing-room-only” audience on Wednesday. Her topic was “Disrupting the Future of HR: Unlocking Creativity and Innovation.” See my interview with Lisa to learn how to unlock creativity and innovation in HR. https://www.facebook.com/HRProfessionalsMagazine/videos/692951927743611/ 11 Tiffany Cardwell, SHRM-CP, PHR, CCP, was the recipient of the Lyle Hanna Spirit Award. (L-R) Tracee Whitaker, 2017 recipient; Tiffany, Lyle Hanna, and Jeff Nally. 12 KYSHRM Book Nook

13 (L-R) Shelly Trent, Kelly Tudor, Amanda Huddleston (top), and Shannon Byrne at the KYSHRM booth. 14 “HR Thought Leader Summit: Compassion, Humanity, and You at Work” was a pre-conference workshop on Tuesday. Speakers were (L-R back row) Jeff Nally, Ann Brown, Karl Richter, Robert E. Brabo, Shelly Trent, Rusty Steele (L-R front row) Kathy Fyock, Randi Frank.

15 2018 KYSHRM Conference volunteers 16 Attendees enjoyed the conference. www.HRProfessionalsMagazine.com

Workplace Concerns Regarding Marijuana and the Changing Legal Landscape By EVAN S. WEISS

Over the last few years, more and more states, cities, and other local jurisdictions have been revising their laws regarding the criminality of marijuana possession and use. The various new laws have included authorizing medical use in limited circumstances; making personal possession a minor, rather than criminal, offense; and fully legalizing marijuana for recreational use. At the same time, under federal law, marijuana remains a Schedule 1 narcotic, making possession illegal even for medical use. This contradictory scheme has proven difficult to navigate for individuals, businesses, and law enforcement alike. For employers, an all-or-nothing approach to employees’ marijuana use carries certain risks. Particularly for employers who operate in multiple locations, a more layered and considered approach, taking into account local law, may be necessary.

Can employers still utilize a zero-tolerance marijuana policy? Many employers take the viewpoint that as long as marijuana is illegal under federal law, they can discipline employees for its use. Whether that is advisable depends on which states (and, in some places, which cities) the employer operates. For employers that operate nationwide, the answer is no, a company-wide zerotolerance rule for marijuana use in all circumstances is likely not advisable. In some states, employers can take a wholesale approach. In fact, 13 jurisdictions, including Georgia, Florida, and Michigan, expressly protect a private employer’s right to base an adverse employment action on marijuana use, even for medicinal purposes. On the other hand, some states, including New York, Pennsylvania, and Illinois, have some explicit statutory protections for employees who use medical marijuana in accordance with state law. Other states that have legalized marijuana use have not specifically addressed the rights of employees and employers with respect to legal use of marijuana. Employers that continue to utilize a zero-tolerance policy in the face of local law that expressly protects certain employees’ marijuana use can expose themselves to legal liability. While those statutes alone are sufficient to require an employer to rethink its marijuana policies, the answer is not quite as simple as checking the local jurisdiction’s codebook. The statutory schemes governing medical and recreational marijuana use are all relatively new. Many states have no statutes governing employer’s rights and responsibilities when it comes to employee marijuana use, and many of the existing statutes leave relevant gaps. As a result, even where there is no explicit protection for employees, employers that fail to take a thoughtful and reasoned approach to marijuana policies risk liability depending on how a court interprets certain open questions.

Are employees entitled to disability protection for marijuana use? One question that is open in some jurisdictions is whether medicinal marijuana use is protected under statutes that prohibit discrimination on the basis of disability. The federal Americans with Disabilities Act does not protect employees for the current use of illegal drugs. Accordingly, as long as marijuana remains illegal under federal law, the ADA will not provide any protections for employees who use it. 10

www.HRProfessionalsMagazine.com

Employers must still evaluate state law to determine whether medicinal marijuana use is protected. Courts in some states, particularly in the west, including Colorado, California, and Oregon, have held that medical marijuana use is not protected under disability and other state employment statutes. Other states, particularly in the northeast, including Connecticut, Massachusetts, and Rhode Island, have held that medical marijuana use is protected in some capacity. In Connecticut and Rhode Island, courts found blanket refusals to employ someone who used medical marijuana to be unlawful. In Massachusetts, the high court held that employers must accommodate medical marijuana use to the same extent required by state disability law. These courts have explicitly concluded that protections exist under state law even while marijuana is categorically illegal under federal law.

Am I required to permit employees to use marijuana on the job? Employers are not presently required in any jurisdiction to permit employees to use marijuana while working or to work while under the influence of marijuana. A drug test, however, may not be the best way for employers to enforce such rules. As an initial matter, drug tests are not effective to determine whether an individual is currently impaired by marijuana use. Marijuana remains in a person’s system, and shows up on a drug test, long after a person is no longer directly affected by its use. Accordingly, positive drug screenings are likely even where an employee is not using or affected by marijuana at work. So, in jurisdictions that protect off-the-job marijuana use, an employer will likely require more evidence than just a positive drug test if seeking to enforce an otherwise legal policy of prohibiting employees from working under the influence of marijuana. Additionally, some local jurisdictions, such as Boulder, Colorado, have recently passed laws limiting an employer’s ability to test for marijuana.

Should all employers drop their policies involving off-the-job marijuana use? Maybe. The decision to have a policy regarding employees’ off-the-clock drug use is highly dependent on the particular employer. For employers that feel strongly about enforcing drug policies, the law, while more complex than it was a decade ago, is not so onerous or complicated to make enforcement problematic. While a zero-tolerance policy would no longer be advisable in many places, current law still permits employers to prohibit marijuana use in most circumstances.

On the other hand, employers who do not feel strongly about drug policies may find it easier to be more permissive than state law requires. There are some limited risks to a completely hands-off approach, however, worthy of consideration. First, it should be pointed out that some employers fall under federal and state regulations (federal Department of Transportation regulations, for example) that require stricter policies. Other employers who do not fall under such regulations may be bound by contract to enforce certain drug policies to the extent permitted by law. While simply not testing is an option, employers who are aware of potential safety issues relating to an employee’s drug use may open themselves up to liability should the employee cause damage or injury. Further, employers have been known to get a better rate on certain workplace insurance when utilizing a more thorough drug policy.

So, what should employers do? As the above discussion hopefully makes clear, there is no one-size fits all approach for employers to grapple with the changing landscape of marijuana laws. The “right approach” for a company depends on several factors. First, where does the employer operate. Laws in certain states and cities are more permissive than others. Second, where do the employer’s priorities lie. For employers with regulatory, contractual, or safety-related obligations, this question is easier. For other employers, it is helpful to have a clear idea of what the employer’s philosophy is. An employer that wants to prohibit employee drug use to the maximum allowable extent should follow a different approach than an employer wanting to take a more hands-off approach to employee conduct that does not affect their work.

Third, the individual circumstances matter. It is important to remember that, even in states that protect medical marijuana use in the employment context, the protection often arises in the context of disability law. Under most disability laws, the employer and employee’s required conduct is governed by what is reasonable under the circumstances. Employers should consider both their own needs and the needs of the employee. Accordingly, some flexibility based on context may be necessary. The main takeaway of the evolving marijuana laws is that employers should, at the very least, more carefully consider their policies. To maximize the effectiveness of such considerations, it is helpful to (1) consult a lawyer regarding the pertinent local laws; (2) have a clear idea of what your priorities are; and (3) be mindful of the idea that context and circumstance matter. The evolution of marijuana laws is not complete. Laws at the state and local level on marijuana continue to change, and courts are only beginning to interpret these laws. While perhaps not in the next few years, it remains possible that federal law will treat marijuana use differently in the near future. Employers should remain mindful of this evolution. A one-time policy change now may no longer be the right course of action as the landscape continues to evolve.

Evan S. Weiss Martenson Hasbrouck & Simon LLP eweiss@martensonlaw.com www.martensonlaw.com

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FMLA RIGHTS FOR EMPLOYERS AND EMPLOYEES By DONNA K. FISHER

Both employers and employees have rights under the Family & Medical Leave Act (“FMLA”). Knowing these rights can help employers better manage FMLA requests and curb abuse. RIGHT TO DESIGNATE LEAVE AS FMLA If an employee is eligible for FMLA and leave qualifies as FMLA-covered, then an employer has a right to designate the leave as such, even if the employee objects. Employees have no right to save FMLA leave for later use or to bar employers from designating any qualifying absence as FMLA leave. Employers are responsible for designating leave as FMLA-qualifying and giving a Designation Notice to the employee. The determination of whether leave is FMLA-covered is based on information provided by the employee. Once the employer knows leave qualifies under the FMLA, the employer must provide a written Designation Notice to the employee within five business days, absent extenuating circumstances. RIGHT TO SUBSTITUTE PAID LEAVE An eligible employee may choose, or an employer may require the employee, to substitute accrued paid leave for unpaid FMLA leave. To “substitute” means the paid leave runs concurrently with FMLA leave. The terms and conditions of the employer’s normal paid time-off policies govern the ability to substitute paid leave for FMLA leave. For example, if an employer’s normal paid sick leave policy allows sick leave only for an employee’s personal illness, paid sick leave may not be used to care for a child with a serious health condition under the FMLA. Nor may an employer require such use. The employee, however, could use any accrued paid vacation time, or the employer could require the substitution of paid vacation, under these circumstances. When an employee chooses, or an employer requires, substitution of paid leave, the employer must inform the employee of the substitution via the Rights and Responsibilities Notice. The employer must also detail in the Notice any procedural requirements of the paid leave policy that the employee must satisfy. If the employee fails to comply with the procedural requirements, the employee loses entitlement to substitute accrued paid leave, but remains entitled to unpaid FMLA leave. RIGHT TO RUN LEAVE CONCURRENTLY An employer has the right to run leave taken under a disability leave plan or workers’ compensation concurrently with leave that also qualifies as FMLA for an employee’s own serious health condition. It is to an employer’s advantage to run leave concurrently to use up the FMLA, and get it out of the picture. Because leave under a disability benefit plan or workers’ compensation program is paid, the provision for substituting accrued paid leave for unpaid FMLA leave does not apply. Where not prohibited, however, employers and employees may agree to have accrued paid leave supplement a paid plan benefit, such as where a plan only provides replacement income for two-thirds of an employee’s salary. RIGHT TO A COMPLETE AND SUFFICIENT MEDICAL CERTIFICATION Employers have a right to obtain a complete and sufficient medical certification to support leave taken for an employee’s serious health condition or that of a family member. Certification for an employee needing leave for a personal illness is complete and sufficient if it provides: 1) contact information for the health care provider, including the type of medical practice or specialization; 2) approximate dates on which the serious health condition began 12

www.HRProfessionalsMagazine.com

and its probable duration; 3) medical facts about the health condition that support the need for leave; 4) information as to whether an employee is restricted from performing the essential functions of the job, and any other work restrictions, including the likely duration of such inability; and 5) if intermittent leave, information establishing the medical necessity of such leave, including the frequency and duration. Employers should push back on incomplete and insufficient certification language. If a certification is incomplete or insufficient, an employer must give the employee written notice, stating what additional information is necessary and must allow the employee at least seven calendar days to correct any deficiency. An employer may use the Designation Notice to inform an employee of the incompleteness or insufficiency of the certification. Avoid questionable certifications about an employee’s serious health condition by giving the employee a list of essential job functions and asking the health care provider to specify which functions the employee is unable to perform. Employers may deny an employee’s request for FMLA leave if the employee fails to provide a complete and sufficient certification despite the opportunity to cure the deficiency. Employers must accept a complete and sufficient medical certification, regardless of the format. An employer cannot reject a medical certification that contains all the information needed to determine if leave is FMLA-qualifying simply because it is a fax copy or is not on the employer’s standard company form. RIGHT TO AUTHENTICATION AND CLARIFICATION OF MEDICAL CERTIFICATION After employees have the opportunity to cure any deficiencies in a medical certification, employers may contact the health care provider for the limited purpose of authentication and/ or clarification of the medical certification. Any contact must be made through a human resources professional, a leave administrator, or a management official, other than the employee’s direct supervisor. Direct supervisors are prohibited from contacting health care providers. Authentication means giving the health care provider a copy of the certification to confirm the information contained on the form was completed and/or authorized by the health care provider who signed the document. Clarification means seeking to understand the handwriting on the medical certification or the meaning of vague or ambiguous responses or non-responsive answers. For example, if a certification states FMLA absences are “as needed” or “sporadic”, get the specifics as to how much time the employee will be absent—does “sporadic” mean once a week or once a month. Requirements of the Health Insurance Portability and Accountability Act (“HIPAA”) may come into play. Health care providers may require the written authorization of the employee before releasing information for clarification purposes. An employee may choose to authorize the health care provider to clarify information directly with the employer, but the employee cannot be required to do so. If an employee refuses to authorize direct contact, the

employer should give the medical certification back to the employee to seek clarification from the health care provider. The employer may deny the FMLA leave request if the employee fails to clarify information on the medical certification.

opinion, however, because employers cannot require second and third medical opinions for recertification—only for initial certifications.

RIGHT TO SECOND AND THIRD MEDICAL OPINION

DRAFT POLICIES TO BENEFIT FROM RIGHTS

If an employer has received a complete and sufficient medical certification but has reason to doubt its validity, the employer may require the employee to obtain a second medical opinion at the employer’s expense. The employer can select the health care provider to render the second opinion provided it is not a health care provider employed on a regular basis by the employer.

Employers should draft their policies to take advantage of FMLA rights. FMLA policies should state that leave that qualifies under the FMLA and other State or Company leave policies will run concurrently. Paid sick leave policies should specify whether sick days may be used for care of family members or only for an employee’s own illness.

If the second opinion differs from the first opinion, then the employer may require a third opinion at the employer’s expense. Both the employer and the employee must approve the third health care provider, whose opinion is final.

Call-off policies should detail the means of communication (phone, text, e-mail, etc.), title of person to contact, and any time limits for notifying the company of the absence. Employers may require employees to comply with usual and customary procedures for reporting absences when the need for FMLA leave is unforeseeable, absent unusual circumstances. An employee’s failure to comply, without justification, may result in FMLA leave being delayed or denied. Make employees aware of requirements and consequences of not complying. Use policies to aid in administering the FMLA.

RIGHT TO RECERTIFICATION Generally, employers may request recertification of a serious health condition no more often than every 30 days and only in connection with an absence of the employee. In some instances, an employer must wait longer than 30 days to request recertification. If an initial certification indicates the minimum duration of the serious health condition is more than 30 days, an employer must usually wait until that minimum duration expires before seeking recertification. Recertification may be requested more frequently than 30 days in connection with an absence if: 1) the employee requests an extension of leave; 2) circumstances have changed significantly from the original certification; or 3) the employer doubts the stated reason for the employee’s absence, such as when intermittent leave results in recurring Monday/ Friday absences.

Donna K. Fisher, Of Counsel

During recertification, an employer may provide the health care provider with the employee’s record of FMLA absences and ask the health care provider whether the need for leave is consistent with the absence pattern. The employer is stuck with the health care provider’s

Ogletree Deakins donna.fisher@ogletree.com www.ogletree.com

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THE MEAT OF THE SANDWICH: How the Middle Manager Can Close the Gap between the C-Suite and the Front-line By BRAD FEDERMAN and ROQUITA COLEMAN-WILLIAMS

There are leaders, and there are those who lead. Leaders hold a position of power or influence. Those who lead inspire us. “Whether individuals or organizations, we follow those who lead not because we have to, but because we want to. We follow those who lead not for them, but for ourselves.” – Simon Sinek If you are a manager who wants to inspire people, at every level of the organization, to bring the vision of a more engaged organization to reality, this article is for you. This is not an attempt at fixing everything that is broken in your organization. Instead, we are here to fan the flame inside the persons who know there is a deeper purpose for their career. To inspire them to want to raise trust levels, strengthen culture and vastly increase the success of their organization. As consultants with nearly 50 years of corporate experience between us, we have spent our careers making a case for employee experience as the roadmap for building a culture of trust, loyalty, and achievement. Studies show that only 11 to 29 percent of employees are fully engaged in their work. We know that having an engaged workforce can lead up to: • 71% less turnover • 62% fewer accidents • 43% less sick days • 12% higher profit margins • And more…much more.

In the book “Employee Engagement: A Roadmap for Creating Profits, Optimizing Performance, and Increasing Loyalty,” information includes key factors that influence the deteriorating relationship between employer/employee: pace, anxiety, schedules, stability, and technology. While experts have worked tirelessly to examine the complexities, the employment environment and the flaws in organizational strategies that do not focus on engagement, we dare to zoom in on an area where managers can take action in reshaping the culture…leading through the middle. 14

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How can managers close the gap between the front-line and the C-Suite? But first, let’s discuss why this is so important. Currently, studies suggest that trust in management is only between 14-58 percent. We are acting a low point. Employees are struggling with the rapid pace of change, rising expectations of productivity and a squeeze on resources. In many companies employees no longer know or understand the strategy. In some cases, employees believe the strategy is in constant change. In those same companies, senior leadership feels the strategy is clear and everyone should understand it. Some very important things are getting lost in translation. If handled well, middle managers can be the translators and the cultivators of trust. In addition to competing for business priorities, influencing peers, navigating partnerships and finessing office politics on the daily agenda, changes at the executive level create considerable anxiety. CEO turnover is the highest it has been in eight years. The instability in CEO retention is similar to when we were coming out of the Great Recession. With a median CEO tenure of 5.5 years, companies have little to no time to execute one strategy before an alternative one is being presented. To employees, this feels like whiplash. The lack of consistency certainly influences studies that indicate fewer than 28 percent of employees truly believe in the strategic direction or trust the leadership of their organizations. Inconsistency in leadership and mistrust from the front-line mounts the pressure, for managers, from above and below. Similar to the pressure from the Earth creating a diamond that is valuable and unique, so is the opportunity for managers to have a considerable impact on the cultures of their organizations.

So what is the ultimate cultural disruptor that every manager can use as an instrument of change? Trust! Without trust, individuals working together are a group and not a team. Trust is the critical element that takes capable and talented people and transforms them into a cohesive group. Like leadership, “trust” is not earned through title or organizational hierarchy. The very thing creating a challenge for senior executives in leading organizational change represents an opportunity for managers to have a considerable impact in organizational culture. To build trust is to lead by example, to communicate openly, to know each other’s values, view mistakes constructively, discourage cliques, and to discover where problems originate by listening and walking around.

A Real Life Case in Action In her ten years as a middle manager with a global company, one of our clients experienced three changes at the senior level of her organization over a four-year period. What she witnessed with every transition was constant chatter and gossip for months leading up to each change and periods of considerable apprehension following the new appointments. Employees were in constant fear about their job security and other fellow managers expressed concerns about how new leadership would impact their current place in the organization or advancement opportunities. Occasionally, employees would receive emails from human resources attempting to assure them of a quick transition, which led to managers instructing their teams not to make any “big decisions” and to simply “keep their heads down until the dust settled.” With at least 25 percent of her department disengaged and 50 percent of the staff performing at a 60 percent or less utilization of their capabilities and performance, she knew millions in payroll was wasted. She was concerned the decline would soon show up in client experience, revenue and profitability, so she spoke to her managing director about assembling a task force to formulate a more productive communication and engagement strategy during periods of change. She contacted other managers for their candid insight having developed good relationships across other departments while navigating the organization. What she discovered was departments with more localized communication had far less chatter than groups that depended solely on centralized corporate communications. During

the task meeting, she and her management colleagues had an open discussion about the challenges their teams faced. They outlined their purpose and made a direct connection between their purpose and the purpose of their organization. This process became an elevated and trust-building position. They would now hold face-to-face (not email) discussions about strategy and vision during periods of change. After additional collaboration across other teams, each manager contributed to a plan that benchmarked the best of engagement, including trust-building responses to gossip and job security. Even managers who had instructed teams “to keep their heads down” acknowledged their mistakes and were open to managing these critical communications differently. Two-way collaborative conversations became the norm. Organizations make changes more challenging than they need to be when they wait too late to act. When companies push employees to respond in crisis mode, it exhausts resources and erodes trust. However, every manager witnessing the impact of the process has an opportunity to jump into action that can empower others to rise above crisis to purpose. While senior leaders focus on short terms results that compromise hope for the future, managers can apply fundamental principles for people to succeed long term.

Strong leaders use this same approach and technique even during times of stability. These leaders realize that they can use two-way, transparent conversations to: strengthen their team, learn about the issues and challenges their people face, stay focused on the most critical initiatives, reduce distractions, promote trust, reduce fear and foster powerful connections amongst their team. This includes the connections they have with each on their team. However, this does not happen by accident. It requires a very thoughtful and intentional approach. Organizations would do well to support this effort and boost the skillset and knowledge of their middle managers to make this a consistent reality across the board. We must remember middle managers translate everything from strategy to culture to change. They are the translators for the C-Suite. They are the meat of the sandwich and it is through the middle manager that the gap between the C-Suite and the front-line can be closed.

Successful organizational change comes from the more profound sense of purpose that we often look for in our transformation. And while many view personal transformation with optimism, cultural change is often viewed by many with dread. Typically that is due to a lack of facts, ambiguity and the desire for organizations to preach a message rather than have a conversation. With collaborative approaches to trust-building, you can take the sense of purpose and use it as fuel to close the gap between the front-line and the C-suite.

STRENGTHENING BRANDS

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

Roquita Coleman-Williams F&H Solutions Group rwilliams@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

THROUGH CULTURE, LEADERSHIP & PEOPLE Executive Compensation Leadership and Coaching Career Development Customer Engagement Employee Engagement Diversity and Inclusion Recruiting and Onboarding Compensation Strategy Human Resources Labor Relations

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5 Signs You Need to Find Another Background Screening Vendor By STEWART GOTT

None of us would jump to our feet and shout “We love change!” In fact, most of us like routines, which includes working with people and companies that are comfortable and familiar. When it comes to vendor partners, Human Resource professionals must be diligent. Consistent vendor management is key to maintain processes that protect the workplace and streamline the hiring procedures to work as intended. And that means knowing when to make a change. An organization’s background screening partner is especially important. HR must be able to trust the information received from their screener and be confident in the compliant processes the background check company offers. Additionally, it should be easy to order background checks through their system and gain access to information they need about regulations, follow-up, etc. You may be thinking it already, or it might have never occurred to you. Is your background check company the one you should be using? These are 5 signs you need to find another background screening vendor.

#1: Shoddy Compliance Practices Compliance with the plethora of local, state, and federal laws regarding hiring is critical to every organization. The news is full of stories about negligent hiring and discrimination during the recruiting and interviewing process. From ban-the-box legislation to restrictions on using credit reports as part of background checks to the up-to-date EEOC guidance, companies need to be able to trust their background check partner to know and follow the guidelines. In addition, a background check report provider should enable HR to easily access required documents like Pre-Adverse Action and Adverse Action letters. If your background screening company doesn’t practice stringent adherence to the rules, it’s 16

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time to find one that does. Otherwise, your company may end up dealing with costly litigation that can cause you to lose clients and tarnish your long-term reputation.

#2: Outdated Technology It’s almost 2019, people. None of us should be dealing with slow or unwieldy technology that makes our daily lives more difficult. If your background screener’s ordering platform makes it challenging to input orders, if it’s difficult to navigate, or if it takes tons of time to find your reports or other important information you need, it may be time to change. This extends outside the background check vendor’s platform as well. Is your vendor integrated with the applicant tracking system (ATS) software you use? If not, you’re spending more time on background checks than you should be. Switching vendors could free up resources and increase productivity.

#3: Not Enough Product Variety Gone are the days when HR could feel confident ordering a single criminal search on their job applicants. With the rise in fake degrees, false job references, and drug use, companies need more from their background screening partner. If you need more than one vendor to gather all the background check information on your job candidates, it’s time to review your options. You can most likely find a single provider that offers everything you need in one place.

#4: Inaccurate Report Information This is a big one and can come with costly consequences. If you miss a criminal record on a job seeker and hire them, their future actions can bring on negligent hiring lawsuits. On the other hand, if you fail to hire a person because of inaccurate information, your company could face discriminatory hiring lawsuits. While the data that’s pulled in a background check may be flawed, professional screening

companies put measures in place to minimize the risk of erroneous information getting back to their clients. For example, common names (Karen Johnson) may return convictions that are not the applicant’s. Background screening companies should have adjudication processes in place to weed out false positives and return accurate information. Catching incorrect information on a regular basis is a big red flag for HR to begin a search for a more diligent background screening company.

#5: Outsourcing Outside the United States Labor outside the United States is frequently less expensive, so many companies are taking their production and customer support teams off-shore. This means your applicant’s data is sent outside the United States. There are two issues with this. The first is the increased risk of a data breach from sending a person’s information out of the country. The second is the challenge of receiving customer support for questions or problems. If you find your background screening company off-shores their clients’ data, or begin experiencing issues with customer service stemming from this, consider finding a screening vendor that is 100% U.S. based. In conclusion, it’s a pain to change vendors for any reason. However, these 5 signs are undeniable. Keeping a close watch over your background check company decreases the risk that your organization will be involved in lawsuits caused by your hiring processes. If these signs are present, it’s time to think seriously about searching for a more professional, diligent, technologically-advanced background screening company to handle your business.

Stewart Gott National Account Executive sgott@datafacts.com www.datafacts.com

2018 LABOR & EMPLOYMENT LAW UPDATE CONFERENCE November 1 - 2, 2018, in Knoxville, Tennessee

Hurry – Last chance to register!

CONFERENCE TOPICS INCLUDE: Sexual Harassment – The #TimesUp and #MeToo Movements; LGBT & Religious Freedom – New Challenges for the Road Ahead; Eyes on Everyone – Technology in the Workplace (GPS tracking, biometric data collection, and employee monitoring); DOL/Wage & Hour Developments – Including Overtime Regs, Tip Pooling, FLSA Exemptions, and Independent Contractors - and DOJ Anti-Trust Prosecutions; The Pitfalls of Joint Employer Arrangements; Strategies for Drug Testing Policies, Practices and Programs – Are you Testing for Illegal Opioids?; Who Let the Data Out?- Cyber Security Issues for Employers; Ripped from the Headlines – Tips for Reviewing Your HR Policies and Handbooks; Bridging the Gap – Managing Multi-Generational Diversity; The ADA – Reasonable and Realistic Accommodations and Return-to-Work Issues; 2018 EEOC Update - Panel Discussion with EEOC and THRC Officials; Social Media – Good News, Bad News; Inspecting Your InHouse Investigation Practices; Employee Handbooks: Is Yours the Last Smartphone? … AND MORE! Accreditations: * 8.0 Recertification credit hours for HRCI (PHR, SPHR and GPHR) and SHRM (PDCs) will be requested * 8.0 Attorney CLE credit hours for TN, GA, VA and KY will be requested

Comments from last year:

“Excellent content and speakers!” “Always an excellent seminar!” “Timely info, well presented, high value learning!” “Very informative! Great job!”

For more information, or to register: Please contact Bernice Houle at: (865) 546-1000, or visit us online at: www.WimberlyLawson.com

Knoxville / Cookeville / Nashville / Morristown / Chattanooga www.wimberlylawson.com

Workplace Surveillance: Is It as Bad as it Sounds? By DAVEANTE JONES

In the ninth episode of season two of The Office, Dunder Mifflin Scranton’s tech guy suddenly and unexpectedly gives regional manager Michael Scott the ability to monitor everyone’s emails in the office. With the episode fittingly titled Email Surveillance, Michael spends the first part of the episode snooping emails to see what everyone says about him. He then finds out that salesman Jim Halpert is throwing a party that everyone in the office was invited to except for Michael. In typical Michael fashion, he spends the rest of the episode unsuccessfully trying to get an invite without mentioning his snooping and ultimately shows up to the party uninvited and crashes it. Although humorous in the fictional universe, employees sometimes think about workplace surveillance as haphazard situations like the one above. And, that’s understandable. Employers have been implementing similar methods of workplace surveillance including email and internet monitoring, location tracking, and old-fashioned video surveillance. If done the right way and not the Michael Scott way, workplace surveillance can be beneficial for both employers and employees.

Uses for Workplace Surveillance One obvious way to utilize workplace surveillance for many employers is the monitoring of productivity and performance. Walmart recently patented surveillance technology referred to as “sound sensors” that would pick up on how many items are scanned, how many bags are used, how long shoppers wait in line and how employees greet customers. The goal is that the audio would help cut costs and improve the shopping experience, while monitoring if employees are performing their jobs efficiently and correctly. Other employers are monitoring remote workers’ performance by taking pictures of employees, tracking email, web-browsing patterns and keystrokes, and taking screenshots to determine whether the workers are staying on task. Then there are the safety and somewhat unconventional uses for workplace surveillance in order to make life easier for employees. Employees from Three Square Market, a Wisconsin tech company, have had microchips implanted in their hands. The main reason for the microchip looks to be convenience, as the employees are able to enter the workplace, log onto their computers, and get chips from the vending machine with the wave of a hand. Although there is the convenience factor, the microchips also grant the employers the ability to monitor their employees’ activities throughout the workday. With the data breach epidemic in full force, monitoring employees’ activity involving sensitive and confidential employee and customer information and company trade secrets has become required and nearly unavoidable. For example, the hospitality industry and hospitality industry organizations such as the American Hotel and Lodging Association and the National Restaurant Association have made data security a main area of concern and focus. Then there are the more recent trending topics including the #MeToo movement and violence in the workplace. Employers’ ability to monitor employees’ communications and/or video surveillance of certain work areas could put a stop to harassing conduct, even without the need for anyone to report it. 18

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Finally, there are the undoubtedly controversial uses of workplace surveillance. According to the Wall Street Journal article, Bosses Tap Outside Firms to Predict Which Workers Might Get Sick, employers are working with employee wellness firms and insurers to mine data about the prescription drugs workers use, how they shop and even whether they vote, to predict employees’ individual health needs and recommend treatments in an attempt to stem rising health-care costs. Uses of workplace surveillance like this could definitely have implications on the implementation of medical marijuana in states such as Arkansas and Oklahoma when it comes to having employees working in “safety-sensitive” positions. In another controversial use of workplace surveillance, The Guardian published an article detailing a story of an employee at an IT services company who sent a private chat message to a friend at work worried that he had just shared his sexual identity with his manager in a meeting and fearing he would face career reprisal. The company’s wiretap detected the employee’s concern and alerted a senior company executive who then intervened, talked to the manager, and defused the situation.

Workplace Surveillance’s Intersection with Laws/Regulations There is definitely a fine line to toe when it comes to workplace surveillance. The most apparent concern is employee privacy. There’s federal law, such as the Electronic Communications Privacy Act of 1986 (18 U.S.C. 2510, et seq.). The Act extends privacy protections provided by the Omnibus Crime Control and Safe Streets Act of 1968 (regulating employers monitoring of employees’ phone calls) to include electronic and cell phone communications. Under the Act, employers are only allowed to monitor business conversations. They have to stop if the employer realizes the conversation is personal though. Employees do, however, run the risk of having personal conversations monitored if they have been explicitly told not to conduct personal conversations on certain business phones. There are also state laws. Some states like Connecticut and Delaware have implemented laws requiring employers engaging in electronic monitoring by any means other than direct observation to give prior written notice to employees who may be affected. Then there are states like California, Connecticut, Florida, and Illinois that require consent from all parties participating in oral and telephone conversations in order to record the conversation. Arkansas’s consent law (Ark. Code Ann. § 5-60-120) requires that at least one party give prior consent to the interception and recording of the conversation whether it be by wire, landline, oral, telephonic communication, or wireless communication. States like California and Connecticut have also made it unlawful for employers to use video surveillance in places such as restrooms, locker rooms, and employee lounges.

There are also states, including Arkansas, who recognize a general right to privacy. Arkansas’s law recognizes four distinct actionable aspects of the tort of invasion of privacy: (1) unreasonable intrusion upon the seclusion of another, (2) appropriation of another’s name or likeness, (3) unreasonable publicity given to another’s private life, and (4) publicity that unreasonably places another in a false light before the public. A great example of how one of these aspects could be implicated is a case that was decided in California—Hernandez v. Hillsides, Inc., 211 P.3d 1063 (Cal. 2009). In Hernandez, the director of a nonprofit residential facility for neglected and abused children placed a hidden camera in an enclosed office shared by some employees after learning that an unknown person had repeatedly used a computer in the office to view pornographic web sites. The perpetrator was never caught, however, and two women employees who shared the office sued the facility alleging that the placement of the camera in their office was a violation of their privacy as it was an unreasonable intrusion upon their reasonable privacy expectations. Although the employees lost the case because the activation of the surveillance system was narrowly tailored in place, time, and scope, and was prompted by legitimate business concerns, the court made sure to state that the employees’ dismay over the discovery of the video equipment was appreciated. It noted that the employer had hidden the equipment among their personal effects in an office that was reasonably secluded from public access and view and the ultimate decision was not meant to encourage such surveillance measurers, particularly in the absence of adequate notice to persons within camera range, that their actions may be viewed and taped. In addition to these laws, another law that could be implicated for government employees is the Fourth Amendment. For instance, in City of Ontario, Cal. v. Quon, 560 U.S. 746 (2010), a city police officer brought a lawsuit alleging that the police department’s review of his text messages on his city-issued pager violated the Fourth Amendment. The officer and some of his colleagues kept going over on their data usage, which prompted the department to start monitoring the officers’ usage to determine whether the department had an adequate data plan. In its review, the department only reviewed the messages the officers sent and received during work hours. Because the department’s search was motivated by a legitimate work-related purpose and not excessive in scope, the review was not in violation of the Fourth Amendment.

Implementing Workplace Surveillance Hopefully, there are not many Michael Scotts out in the real world violating employees’ privacy. The concerns that employees have for the chance of possible situations that are similar are credible though. Therefore, it is critical that employers are transparent with employees when implementing workplace surveillance. This could include placing language in policies and procedures discussing employees’ expectation of privacy in the workplace and/or having employees sign acknowledgement forms relating to any workplace surveillance methods being used in the workplace. Finally, as demonstrated by the cases above, employers have to make sure the methods are narrowly tailored for legitimate business purposes and not in violation of any federal or state laws. With so much technology at society’s fingertips, it is easy to abuse it, especially when it comes to using it to increase profits. But if done the right way, it can be helpful for everyone.

Daveante Jones Associate Attorney Wright Lindsey Jennings dljones@wlj.com www.wlj.com

A TRADITION OF

Attorneys left to right: Lisa Krupicka, Tannera Gibson, Gary Peeples and Jennifer Hagerman

THINKING FORWARD

Being prepared for whatever comes next takes experience and vision. Our innovative, practical approach can help you stay one step ahead. Let the attorneys of Burch Porter & Johnson put our history of thinking forward to work for you. B U R C H , P O RT E R & J O H N S O N , P L L C | 1 3 0 N O RT H C O U RT AV E N U E | M E M P H I S , T N 3 8 1 0 3 9 0 1 - 5 2 4 - 5 0 0 0 | B P J L AW. C O M

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How to Handle C-Suite Misconduct By RUSSELL W. JACKSON

Whether it is sexual harassment (Harvey Weinstein), financial fraud (Bernie Madoff), or racially insensitive remarks (Papa John’s), reports are recurrently surfacing of executives, including CEOs, who have purportedly engaged in misconduct. As a result, employees are viewing the current environment as a platform to report inappropriate behavior, and employers must be ready for the situation when a top-level executive is accused of unacceptable conduct. Because of its delicate nature, HR employees frequently struggle with the proper handling of the allegations concerning its top leadership, who are individuals who possess supervisory authority over managers, including HR members. Below are tips for HR departments to exercise when the accusations concern a superior; however, there is no “one size fits all,” and each situation may require a response dissimilar from any other.

Prior to Complaints of Misconduct Be Prepared. One consideration is implementing a plan with a step-by-step process. The plan should include discussions with the C-level employees to provide awareness and understanding of the process and how the investigation will unfold. If the circumstance arises, the employees, including the CEO, will have an expectation of the process, and there is less room for surprise or potential objections by the executive. Training. HR should be conducting training for the entire workforce regarding appropriate conduct, but companies can create specific training geared toward executives. Businesses can implement the training as part of a leadership program, and include topics such as sexual harassment, diversity and inclusion standards, and financial impropriety, during which executives can learn how the business will handle investigations concerning its senior management and top-level executives.

Following Receipt of Misconduct Concerns Sensitivity. Be mindful that it is an incredibly fragile matter when an executive – especially a CEO – is accused of misbehavior, and the investigation might differ from one involving the rank and file employees. The company’s reputation to its employees, the public and its customers could be at stake. HR and management should attempt to use it as an opportunity to demonstrate how serious the business takes wrongdoing and what measures it will take to remedy any such conduct. Timing Matters. Act quickly, but do not punish without concluding a proper investigation. As soon as possible, HR must initiate an investigation; if the nature of the investigation requires the accused’s removal, the company should contemplate issuing a suspension pending an investigation. Removal might be appropriate if it is believed the CEO might interfere with the investigation (e.g., deleting e-mails, influencing direct reports) or his/her general presence at the office could affect the candor of the interviewed witnesses. Investigation Team. Consider a third party (e.g., private investigator, law firm) who can conduct interviews without biases and who is not under the supervision of the accused. Prior to interviews, the team should obtain knowledge of all allegations and potentially relevant policies and should be prepared to take detailed and accurate notes. The team should consist of people trusted by HR and who are willing to provide testimony, should any complaints/discipline/investigation become a subject of litigation. 20

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Interviews. As with any investigation, the complainant must be interviewed. Make no promises or guarantees pertaining to any action the company will take. Interview all potential witnesses, reiterating the retaliation policy and providing anonymity or confidentiality to the extent possible. Request and review relevant documents and any audio or video recordings. Even when forbidden by policies, more than ever, employees are recording conversations, which are becoming evidence in subsequent litigation. Interviewing the accused. Prior to any final decision concerning the outcome of the investigation or any resulting discipline, interview the executive accused of misconduct. Many companies simply rely on other employees’ accounts and never question the accused. This is a mistake. You want to provide the executive an opportunity to be heard and respond to any allegations. Especially important with an executive, is explaining that retaliation against anyone making a complaint or anyone who provides information concerning the complaint is strictly prohibited. Remind the executive that if he/she attempts to retaliate in any way or attempts to interfere with the investigation, the executive will be subject to discipline, up to and including discharge.

Following Investigation Prompt Remedial Action. Determine the appropriate response to be taken in light of the interviews and documents/ recordings provided. Unfortunately, the result of the investigation may be inconclusive. However, even when allegations are not corroborated, employers should take any action reasonably calculated to end the alleged misconduct. Administering discipline. When discipline is warranted, attempt to discipline the executive in a similar manner as to lower level employees have been for comparable infractions. If previous sexual harassers have been discharged, the company should similarly terminate the executive. HR should rely on and enforce company policies when issuing discipline. However, over-reacting when imposing discipline on the accused can create problems. An executive who has been terminated or severely disciplined based on an incomplete or inconclusive investigation could assert claims of wrongful termination, breach of contract, or defamation. Articulate Reason. Whatever the response, ensure the reason is one the company can fully support and articulate – both internally and externally. If the discipline warrants public response, determine what should (and should not) be disclosed. HR and executives must consider declines in sales or stock prices and potential litigation as the fallout. For example, a recent lawsuit brought against Papa John’s by shareholders alleges the company did not take prompt remedial action relating to workplace inappropriate conduct by executives. Additionally, keep in mind that Sarbanes-Oxley requires certain companies make specific disclosures concerning reporting illegal or unethical conduct.

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

You’re invited to attend the

9th Annual

Human Resources & Employment Law Fall Conference November 7, 2018 Wednesday 8:00 a.m. to 4:00 p.m.

Union University Carl Grant Event Center 1050 Union University Dr. Jackson, TN 38305

Presented by: THE WEST TENNESSEE SOCIETY FOR HUMAN RESOURCE MANAGEMENT In coordination with: THE LAW FIRM OF RAINEY, KIZER, REVIERE & BELL, P.L.C. Join us for an informative day where we will roundup crucial HR compliance topics including: Saddle Up! - Leadership in HR – Strategies for Human Resources to lead effectively as a business partner. Selecting Your Posse: Recruiting, Hiring, and Onboarding Tips – A panel of HR administrators and legal counsel will discuss innovative approaches to recruiting, hiring, and onboarding new employees. Getting Out of Dodge: Dealing with Employees on Leave – Explore strategies for how to effectively manage employees’ needs for leave and avoid legal pitfalls. Circling the Wagons! Employment Law Update – A survey of recent changes to federal and state employment laws. Encountering the Wild Wild West! – Employment Case Studies – An interactive discussion of recent employment law cases and the application of relevant concepts and HR strategies.

Lunch is provided. Explore our impressive showcase of HR-related exhibitors. Door prizes and more. Registration Fee:

$100 for WTSHRM Members $125 for non-WTSHRM Members Join WTSHRM for only $25 at: wtshrm.shrm.org/join

WTSHRM.SHRM.ORG/EVENTS

The registration deadline is Thursday, November 1, 2018. Register early as seating is limited. You may pay by check or credit card. Questions: eamicone@raineykizer.com This program has been submitted for 6 recertification credit hours through HRCI and SHRM.

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CHRO Thought Leadership Roundtable Event The Nashville City Club – August 21, 2018 ADP leadership including Jeff Phelps, Regional Sales Director – Global Enterprise Solutions at ADP (Nashville); and Jeff Jenks, District Sales Manager, Human Capital Management Consultant (Memphis) along with Cindy Olson, Chief HCM Strategist at Choice Strategic Alliance and former CHRO with Enron led a CHRO Thought Leadership Meeting in Nashville at a breakfast event at the Nashville City Club on the 20th Floor of the ServiceSource Tower in Downtown Nashville at 201 4th Ave N. CHROs from the Nashville metro area gathered for a fabulous breakfast event featuring Amy LeschkeKahle, the keynote speaker with The Marcus Buckingham Company, an affiliate company of ADP. She led a roundtable discussion on “Reinventing Your Talent Ecosystem.” The CHRO Thought Leadership Roundtable in Nashville will meet quarterly. For information about the next meeting, contact Jeff Phelps at jeff.phelps@adp.com.

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– Emily, Solar Wrangler

“You found the right employee. I found a purpose.” Finding that perfect fit for a job isn’t easy, but it’s the key to building a successful team. See how insight-driven recruiting and smart talent management solutions from ADP can help your business find the perfect person for the job. Visit adp.com/hellotalent to see how we can streamline your business’s talent management and make work larger than a paycheck. ADP, the ADP logo and ADP A More Human Resource are registered trademarks of ADP, LLC. Copyright © 2018 ADP, LLC.

All Enrollment Service Solutions Are Not Created Equal: Lessons Learned in Building Best-in-Class Enrollment Services By AUSTIN BAKER

With 4th quarter and enrollment season coming up fast, companies all over the nation will be in in overdrive enrolling their employees in their companywide benefits. Enrollment companies are known to ease that time period by taking the burden of enrollments and administration off the company’s hands and onto their own team. With all of the benefits enrollment and administration options in the market, many people are often left asking how one enrollment firm differentiates from the next and what truly separates the leading trusted advisors from the average enrollers. The past year our organization has learned from benchmarking and worked to help form National Enrollment Partners (NEP), a group of nationwide high-level enrollment firms collaborating to create quality, national coverage, and innovative ways to save on enrollment costs. With this expert level relationship this partnership includes: • More than 9,500 active clients managed both locally and nationally • 148 Account Executives responsible for new client acquisition and maintaining strong broker partnerships. • 37 Implementation Coordinators responsible for the implementation of all new and current clients. This includes the scheduling of professional benefits counselors at all client locations. • 28 Technology Administrators and Case Builders responsible for building and managing the Benefits Administration Systems NEP’s firms are currently licensed to support. • 278 Full-Time Benefits Counselors and 164 Part-Time Benefits Counselors used primarily during the 4th quarter. • 15 Full-Time and 25 Part-Time Call Center Benefits Counselors. Some best practices the leading organizations participate in that separate them from the rest of the pack are highlighted in the following paragraphs. 24

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Value of Scalable and Flexible Local Enrollment Solutions Nothing beats a one-on-one enrollment session, either in person or on the phone, to show employees the value of their benefits package, teach them how to use a benefits administration system, and help them choose the right products for their individual needs. Leading benefits enrollment partnerships need to have the ability to offer in-person enrollments at every local level. This personal service ensures the highest level of employee information accuracy, and gives the employees ease of mind by having people in person that can serve as trusted advisors in helping them choose the best benefits plan for their specific needs and budget. These organizations need to be able to scale, evolve, and adapt with any client's specific requirements, while delivering a scalable quality controlled solution for benefit administration and enrollment that maintains complete compliance, no matter the region. Without this capability, organizations can often face obstacles in their enrollments and administration if they expand to a larger employee size or into a national field. Having this flexibility is key to helping those organizations grow with ease. With small to mid-size companies, these organizations must understand and maintain notice that as they reach their mid to long term goals, their organizational benefits structures, enrollments, and level of administration will change. Enrollment firms with experience in creating these flexible solutions understand the impact it has when companies are ready to upgrade benefits admin systems to ones that take on larger employee bases. With growing complexity in benefits offerings they understand the benefit it brings when their enrollment partners provide consistent assistance and recommendations on how to cope with the growing amount of change in their benefits structures. Strong Backbone for Building and Managing Benefits Administration Systems True expert-level benefit administration organizations understand the need to be able to adapt and build on a variety of systems. Many benefit enrollment firms rely on an in house system that is tied to their proprietary software and are unwilling to unbundle this to give their clients and broker partners the keys to a lasting solution. We have found that leveraging collective expertise with building and management of benefits administration systems puts the customer first. National Coverage A multi-state employer must expect consistent quality in every office. Due to the nature of the seasonality of the industry with a heavy emphasis on fourth quarter, many enrollment firsm rely on contract employees that only work with them a few times per year. A multi-state business should receive the same level of resources including enrollment call centers for every time zone. Having the ability to provide enrollment solutions from New York to California are what makes the leaders stand out from the rest. Leveraging local resources and bundling services is proving to be a better customerfocused solution.

Strong Focus on Quality and Ethics Every benefits enrollment firmâ&#x20AC;&#x2122;s goal should be to create and maintain a mutually-beneficial working relationship with clients all the way to the employee level. Before signing any agreements, it is always a best practice to put together a five-year plan on funding and maintaining the enrollment and benefits administration system. This is key to helping drive consistent quality and expectations from the benefits enrollment firm from the beginning to the end. Transparency and ethics with the enrollment go a long way in helping them make the best benefits decision that drives the engagement from your employees. Understanding how each interaction is measured with high quality standards is important in selecting a partner for your enrollment. To sum it up, there are multiple areas that provide an opportunity to see what makes the difference for how true leaders stand out in a crowd. Reviews and testimonials in the end will speak for themselves both for the enrollment itself, and on public sites, such as glassdoor, rating the experience in working for these companies. Operating and excelling on the backbones of scalability, adaptability, knowledge, and ethics are key to finding the enrollment solution that is much more than the average. With selected NEP Partners, we are able to use data driven collaboration to help provide the lowest cost, highest quality enrollment recommendations to clients on a local and national level. Make sure and look at these areas of differentiation when selecting your next partner. National Enrollment Partners is a national network of local enrollment firms. Its membership is made of the highestâ&#x20AC;&#x2018;quality independent enrollment firms in the country. Now brokers and companies of all sizes have one place to look for consistent quality, national coverage and innovative ways to save on Enrollment costs. NEP Members are regional hubs that build and manage multiple benefits administration systems and voluntary benefit carrier enrollments. Our Premier Partners are local and regional enrollment firms with experienced enrollment teams supporting NEP's multi-state clients and national broker alliances.

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 and insurance & benefits industry, Baker is responsible for managing a mutlifaceted 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

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@jaustinbaker

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Playing by the Rules:

Common Misconceptions in ERISA and ACA Compliance By CHRISTY SHOWALTER

Rules.

I’ve always been a rule-follower … to the point that my own family makes fun of me for never even breaking the speed limit! So, naturally, I am attracted to the field of Human Resources where we are bombarded with over 50 categories of rules and regulations affecting virtually every aspect of the employment relationship, particularly benefits administration. But to follow the rules, you first have to know them, right? And that can certainly be a challenge! Amidst the sea of legal acronyms - from ERISA, ACA and DOL to COBRA, HIPAA and HCE– benefits administration is rife with often obscure rules. Many mistakes are made because we simply don’t know a rule exists or misunderstand it. Following are just a few examples of the more common violations and misconceptions that I see regularly in benefits administration. Let’s jump in with probably one of the most non-compliant areas for most health and welfare benefit plans, the Employee Retirement Income Security Act of 1974 (ERISA). This is an area that has received more attention over the past several years as the DOL has increased its enforcement activity through audits … and would you believe they find close to a 75% error rate?! MISCONCEPTION #1: We don’t have to worry about ERISA … we have less than 100 employees. Many employers think that ERISA applies only to organizations with over 100 employees. ERISA, however, applies to plans sponsored by virtually all private-sector employers, including corporations, partnerships, sole proprietorships and even non-profit organizations – regardless of size – with limited exceptions for governmental, tribal and church plans. While ERISA’s reporting requirements, including Form 5500 and Summary Annual Reports, primarily impact welfare benefit plans with 100 or more participants, it is very important to note that there is no exemption for small businesses from ERISA’s other requirements, such as maintenance of plan documents and summary plan descriptions (SPDs) and adherence to fiduciary standards. And speaking of SPDs, this leads us to another common misconception: MISCONCEPTION #2: We have an ERISA-compliant SPD … our medical insurance carrier gave us the booklet. ERISA has very specific content requirements for both the plan document and the SPD. While some carrier-prepared documents are better than others, these documents generally lack at least some of the ERISArequired content. To understand why, keep in mind that carriers’ main concern is state insurance law – they are not responsible for the plan document’s and/or the SPD’s compliance with ERISA. Rather, that compliance is the responsibility of employers in their role as plan administrators of ERISA-covered benefit plans. It is often a best practice to use a “wrap” plan document to supplement existing documentation, adding the required ERISA language. MISCONCEPTION #3: We distribute the SPD to all of our employees … it is posted on our company’s intranet site. ERISA also requires that the SPD be furnished to all participants within 90 days of being covered under the plan, in a manner “reasonably calculated to ensure actual receipt of the material.” Typically, this means distribution by first class mail or hand-delivery, unless a safe harbor rule is satisfied. Employers are permitted to use electronic delivery only if 1) employees have

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work-related computer access as an integral part of their duties; or 2) employees have given prior written consent to receive electronic documents. Employers using electronic distribution must also be certain to provide notice of any posting, explaining the significance of the document and the right to request a paper copy. Merely providing employees with access to a computer in a common area (for example, a computer kiosk) is generally not, by itself, a permissible means to electronically furnish ERISArequired documents. Of course, ERISA is not the only benefit regulation with misunderstandings about its rules. Let’s take a look at a couple of the more confusing rules from the Patient Protection and Affordable Care Act of 2010 (ACA): MISCONCEPTION #4: We use a 12-month measurement period to determine full-time status. An employee just asked to reduce her schedule to 10 hours per week … we should terminate her insurance immediately due to her reduction in hours worked and offer COBRA. Prior to the ACA, when an employee had a reduction in hours, it was understood that a change from full-time to part-time status generally resulted in a loss of eligibility for benefits. Post-ACA, however, the rules have changed! When electing to use the look-back measurement method and calculating hours over a historical period of time, called the measurement period, employers are determining employees’ eligibility for coverage – at least for purposes of ACA reporting – for a future period of time, called the stability period. Under these new rules, a change to part-time status may no longer result in an immediate loss of eligibility for coverage. MISCONCEPTION #5: The ACA’s nondiscrimination rules have been delayed indefinitely … I don’t have to worry about conducting annual nondiscrimination testing on our health plans. While this may currently be true for fullyinsured plans funded on an after-tax basis, there are a number of nondiscrimination rules that may still apply. Are you offering any benefits through a cafeteria or Section 125 plan, such as pre-tax deductions? If so, are you conducting annual Section 125 nondiscrimination testing? Similarly, if your plan is self-funded, are you testing under Code Section 105(h)? Remember, health FSAs and HRAs are self-funded health plans subject to Section 105(h) testing! Discriminatory practices, such as different waiting periods or contribution rates, could have a negative impact on your highly compensated employees (HCEs); so, it is important to conduct required testing to ensure your plan satisfies nondiscrimination rules. And to think that these are just a sample of the many misconceptions common in benefits administration today! Given the number and complexity of the rules governing employee benefit administration – with new ones being enacted regularly – it is difficult for even the most seasoned HR professional to stay on top of compliance, making it more important than ever to have trusted benefits advisors to guide you through the process and minimize risk for your organization. Who’s helping you follow all the rules?

Christy Showalter, JD, MBA Senior Human Resources Consultant McGriff Insurance Services christy.showalter@mcgriffinsurance.com www.mcgriffinsurance.com

McGriff Insurance Services: Employee Benefits Consulting, Property & Casualty, and Business Insurance

BEYOND TRADITIONAL

At McGriff Insurance Services, we go beyond traditional employee benefits consulting. Our specialized, knowledge-based teams provide data-driven solutions for the complex problems employers face today. With senior-level experienced data analysts, actuaries, and underwriting consultants, we help you manage today’s risks while anticipating tomorrow’s needs. Tom Hayes Chief Growth Officer - Employee Benefits Tom.Hayes@McGriffInsurance.com 479.684.5259

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© 2018, McGriff Insurance Services, Inc. All rights reserved. Insurance products are offered through McGriff Insurance Services, Inc., a subsidiary of BB&T Insurance Holdings, Inc., and are not a deposit, not FDIC insured, not guaranteed by the bank, not insured by any federal government agency, and may be subject to investment risk.

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Employee Engagement:

An HR Game Changer

By BRAD SHUCK

veryone wants more employee engagement. I have yet to be in a meeting with an executive team and been asked how to decrease levels of engagement because their team was just too engaged, too committed, or too successful. When it comes to being engaged, we want more of it and having more is almost always believed to be better. Our research at the University of Louisville has suggested that less than 40% of employees remain at peak engagement levels 6 months into their new position. There is a more than 60% drop off in levels of engagement in the first six months of an employee’s tenure. What if you could capture that 60%. Better yet, forget the 60%. What if you could reasonably engage just 10-20% more of your employee-base every day? What would your workplace look like, what kind of ideas would be generated, and perhaps more importantly, what would it feel like to work in your organization? Engagement is a game-changer. It is transformational. Working in a place where you can experience high levels of engagement transforms the way you – and your employees – fundamentally experience work. In today’s competitive organizational environment, being able to speak the language of engagement is not just a nice skill to have in the C-Suite; it is the essential skill your employees need you to understand. Engagement is, however, complicated. In practice, the meaning of engagement can be vague and hard to both capture and measure. For the HR professional, having a working understanding of employee engagement is critical but what do we really know about employee engagement?

What is Employee Engagement In HR, employee engagement is a slippery term. It can be hard to define yet we usually know it when we see it. Some define employee engagement as profit. Others define engagement as levels of commitment, or satisfaction, and some have defined engagement as lower turnover. Certainly, and as we have already noted, engagement is related to all of these things, but none of them capture what we mean when we say employee engagement. Employee engagement is not levels of performance or a turnover statistic, and if you are using metrics that ask questions about satisfaction or turnover to speak life into your organization’s understanding of engagement, you might be looking at the wrong data. Technically speaking, employee engagement is an individual’s positive, active, work-related psychological state. Engagement is an experience and explains the why behind almost every behavior we see in the workplace. Leaders who get this right transform their workforce and their companies. Employee engagement is the reason why an employee stays late to work on a project and also why they voluntarily leave the organization. Almost everyone we talk to understands that employee engagement drives performance, but few understand how and why, or what they can do to create a climate that is engaging. Most of the strategies offered to leaders are not grounded in evidence and often work to objectify both the employee and the work they are doing. Objectification kills the meaning of employee engagement. Every time. Over the past decade, our team has spent the last few years diving into this data. Here is what we know about driving employee engagement:

What Do We Know About Employee Engagement If employee engagement is a game changer, what evidence can we point to? Over the past decade, our research team has explored this question. Here is what we know. Employees who report higher levels of engagement are 93% more likely to say they go above and beyond in their work (give discretionary effort), 91% less likely to turnover, and 85% more likely to give their best ideas and be creative at work. The ways in which an employee experiences their work through engagement predicts more than 70% of an employee’s overall total level of performance. Let that number sink in. 70% of overall performance at work can be attributed to how engaged your employees are. The more engaged, the better they perform. Game-changer. Engaged employees are more satisfied, help coworkers more often, report higher levels of job-related safety, are more committed, passionate, involved, stay later, work harder, and give more of their energy to their work roles. All of this is evidenced-based. Engaged employees will make your organization better. Period. Game-changer. Interestingly, engaged employees also report on a host of health and wellbeing outcomes. For example, our research suggests that engaged employees are more likely to report better sleeping patterns; they are more cognitively aware, drink less alcohol, spend more time at the gym, and report higher levels of overall physical and psychological wellbeing. On the flip side, disengaged employees report chronic disease-state symptoms like higher levels of clinical depression, manifested pain, higher levels of unhealthy drinking behaviors, loss of sleep, and missing more days of work. Our own exploratory research has suggested that disengaged employees cost considerably more in health care claims year after year, a particularly important point for self-insured organizations. Employees who work in places where they can experience high levels of engagement don’t just perform at higher levels, they live different, healthier lives. 28

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Employee engagement happens because three primary workplace conditions are present:

ach individual employee believes E that their work is meaningful and has value;

ach individual employee believes E that their work is psychologically safe and worth the risk;

ach individual employee believes E that they have the resources needed to complete their work, or at a minimum, have access the resources they need.

These three principles are grounded in pioneering research by William Kahn, who, in 1990 stumbled upon this idea of engagement. In his work, he offered that when three principles are were met, the more likely a person would be engaged in their work. And the reciprocal opposite was also true. The less

meaning, less safety, and fewer resources, the more likely a person would be to disengage. The old saying of do more with less is not really possible if engagement is your goal. On our team, we put Kahn’s theory to the test with a client who wanted an evidenced-based strategy for increasing levels of engagement in their firm. Working directly with their HR Team, we found that when employees perceived their work as meaningful, believed their work was important, believed their work made a contribution to the mission of the organization, and when they felt a sense of personal responsibility to do good work, they overwhelmingly reported higher levels of engagement. In fact, these four questions accounted for more than 50% of an employee’s total engagement score. They are so predictive, we call these questions Halo Drivers. Four questions. 50%. Incredible.

As a specific strategy, if higher levels of employee engagement is your ultimate outcome, we recommend starting with dignity. For 30 days, try treating everyone you come into contact with a basic level of dignity. Not just friends, or the people on your team – everyone. Think of what the word dignity could mean for hiring and recruitment practices, diversity and inclusion initiatives, training and development, incentives and compensation structures, meetings, strategy, downsizing (or rightsizing), wellness, and the list goes on and on. What if we treated everyone in our company with dignity. Game changer. The research is clear. High levels of employee engagement can transform your organization. To get there, we have to focus on how work is done, not just how much work gets done and HR sets that tone.

A Note About the Research How Can Leaders Drive Engagement? So, what does all of this mean your team? Connected to our research on employee engagement, we have looked into specific drivers of engagement that HR leaders can take action on immediately. In fact, we have asked thousands of people about their experience of engagement at work and what motivates them to be engaged. Three key leader behaviors consistently rise to the top. These behaviors cost nothing. They are routine, but very powerful when put into action. In fact, they are so routine that they are often overlooked. Employees tell us that when they are treated with dignity, when there is a responsive and honest culture of accountability, and when their leaders have empathy, they are more likely to be engaged. Dignity. Accountability. Empathy. Of these three, the most powerful and predictive of employee engagement is dignity. Treating people with dignity costs nothing. It is simple, yet so very difficult to implement.

We often get questions about how we measure employee engagement in our research. We use the Employee Engagement Scale© and the Cognitive Work Appraisal Scale-11©, which, we developed at the University of Louisville with real companies and real participants. For more information about using these measures in your organization, contact Kayla Meisner (kayla.meisner@louisville.edu). To book a speaking engagement or to learn more about our research on employee engagement, check out our website: www.drbshuck.com or contact Dr. Brad Shuck (brad. shuck@gmail.com).

Brad Shuck, EdD Brad.shuck@gmail.com www.drbshuck.com

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SHRMGA State Conference Savannah Marriott Riverfront Hotel

September 5-7, 2018

1 Sally Roberts, SHRM-SCP, SPHR, Director of SHRMGA State Council, welcomes attendees to the 2018 SHRMGA Conference. See my Facebook Live interview with Sally as she discusses the reason for their great success with the conference this year. https://www.facebook.com/HRProfessionalsMagazine/ videos/1839756999453408/ Sally also led a discussion on “Politically Correct: Can You Keep Politics Out of the Workplace” on Friday morning. 2 Jeanne Robertson was the opening keynote speaker on Wednesday. Her topic was “Finding the Humor in Life.” 3 (L-R) Van Travis received the SHRMGA HR Professional of the Year Award. Sally Roberts, Director of SHRMGA State Council, Lauren Horton received the SHRMGA Volunteer of the Year Award, and Craig Southern, SHRMGA Industry Certification Director, who presented the awards at the Wednesday luncheon. The Foothills of Georgia Chapter (Gainesville) received the SHRMGA Chapter of the Year Award.

4 George Reeves III, attorney with Fisher Phillips, spoke on “Workplace Investigations” Wednesday morning. Watch my Facebook Live interview with George as he discusses the pitfalls of workplace investigations. https://www.facebook.com/HRProfessionalsMagazine/videos/526658857790620/ 5 Linda Yates presented “Jerks, How to Lead, Manage and Navigate Them” on Wednesday afternoon. She explained the process in our Facebook Live interview. https://www.facebook.com/ HRProfessionalsMagazine/videos/2210383505912981/ 6 “How to Avoid Being the Next #MeToo Workplace,” was Jonathan Martin’s topic. Jonathan is an attorney with Constangy, Brooks, Smith & Prophete on Wednesday. Jonathan provides some good advice in our Facebook Live interview. https://www.facebook.com/HRProfessionalsMagazine/videos/2187242618155486/ 7 Dethra Giles was the luncheon keynote speaker on Thursday. Her topic was “How to Be a Super Hero in HR.” See our Facebook Live Interview with Dethra for her tips for HR professionals. https://www.facebook.com/HRProfessionalsMagazine/videos/262096027770159/ 30

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8 Brad Adler, attorney with Freeman, Mathis, and Gary LLP, presented “10 Mistakes in an Employee Handbook on Thursday morning,” Hear about Brad’s tips for avoiding mistakes in your employee handbook in our Facebook Live interview. https://www.facebook.com/HRProfessionalsMagazine/videos/2187242618155486/ 9 Laurie McIntosh, SHRM-SCP, CAE, Field Services Director for Georgia, provided an “Immigration Legislation Updates” on Thursday afternoon. Watch our Facebook Live video with Laurie to learn more about the latest legislation. https://www.facebook.com/HRProfessionalsMagazine/videos/2187242618155486/ 10 Jeff Luttrell, SHRM MAC, spoke on “Flexible Workplace Strategy to Manage and Support the Business” on Thursday afternoon. Jeff explains his volunteer role with SHRM serving on the Membership Advisory Council as a liaison between the SHRM State Councils and the SHRM Board of Directors. Learn more about Jeff in our Facebook Live interview. https://www.facebook.com/HRProfessionalsMagazine/videos/2151459381809321/ 11 “A New Era of HR Compliance: What You Need to Know” Brian Holladay, attorney with Martenson, Hasbrouck and Simon, LLC discusses some of these important compliance issues you need to know. Get the details in our Facebook Live interview on Friday morning. https://www.facebook.com/HRProfessionalsMagazine/videos/532953823814407/

12 Sarah Lamar, attorney with Hunter Maclean was a Friday morning speaker. She discussed “Legislative and Regulatory Affairs in the Employment Law World.” Sarah also serves as the Government Affairs Rep for SHRMGA. 13 “How to Use Business Modeling to Increase Business Acumen” was Curtis Woody’s topic Friday morning. Curtis is SHRMGA State Council District Director. He shares some tips in our Facebook Live interview. https://www.facebook.com/HRProfessionalsMagazine/videos/691617027869182/ 14 Aimee Copeland was the closing keynote speaker on Friday morning, She is Executive Director of the Aimee Copeland Foundation. Aimee is also a motivational speaker and therapist.

15 15 The 2018 SHRMGA State Council Executive Committee (Front Row, (L-R) Paula Kitchens, Director-Elect, SHRM-CP, PHR; Susan Courtland, Secretary, SHRM-CP, PHR; Sally Roberts, Director, MBA, SHRM-SCP, PHR; Kenya Jones, Treasurer. (Back Row, (L-R) Brad Patterson, SHRM-SCP, SPHR, Conference Chair; Ron Williams, Workforce Readiness Director; Michelle Wylds, District Director; Curtis Woody, District Director.

Fabulous food in Savannah!

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Top Labor and Employment Law Attorneys LISTED IN CHAMBERS USA

HR Professionals Magazine congratulates our top labor and employment law attorneys from Tennessee, Alabama, Georgia, Kentucky, Arkansas, and Mississippi listed in the 2018 Chambers and Partners Guide. For details about Chambers and Partners research, please visit their website, www.chambersandpartners.com. This list is not exclusive and represents the firms who responded to our inquiry. Ogletree Deakins Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. Premier client service, as outlined in the firm’s Client Pledge, is one of the firm’s top priorities and a cornerstone of its core values. U.S. News – Best Lawyers® “Best Law Firms” has named Ogletree Deakins a “Law Firm of the Year” for seven consecutive years. In 2018, the publication named Ogletree Deakins its “Law Firm of the Year” in the Litigation - Labor & Employment Law category. Ogletree Deakins has more than 850 attorneys located in 53 offices across the United States and in Europe, Canada, and Mexico. The firm represents a diverse range of clients, from small businesses to Fortune 50 companies.

BIRMINGHAM Gordon L. Blair devotes a substantial portion of his practice to general litigation, regularly representing colleges and universities, contractors, healthcare providers, manufacturers and retailers in personal injury, construction, tort, and contract litigation. However, the majority of Blair's practice is focused on the representation of employers in workplace-related matters, ranging from administrative proceedings to federal litigation. He routinely counsels employers on day-to-day employment decisions, conducts training seminars, and works to develop effective workplace policies and procedures. Blair lectures to human resources personnel and related groups on topics such as the Family and Medical Leave Act and the Alabama Workmen’s Compensation Act.

James C. Pennington is the Managing Shareholder and a founding member of the Birmingham Office of Ogletree Deakins. For more than two decades, he has represented employers in a wide range of labor and employment law matters, including administrative agency charges, federal and state court litigation, union campaigns and collective bargaining. He helps employers avoid workplace disputes by providing management training and developing defensive documentation such as effective employee handbooks, dispute avoidance and resolution policies, and drug and alcohol testing policies and procedures. He is known for helping employers navigate through the intersections of disabilities and leave PAGElaws. NASHVILLE

Peyton Lacy, Jr. has 44 years of experience in labor and employment law. He graduated with a J.D. degree from the University of Alabama in 1965, where he served as editor-in-chief of the Alabama Law Review and a member of the Farrah Order of Jurisprudence. In addition to a traditional labor law practice, Lacy defends individual and class employment litigation cases in both federal and state court, handles traditional labor law matters for employers including negotiation and arbitration, and counsels employers on preventive measures in both areas.

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Keith Frazier represents management in the area of labor and employment law, with an emphasis on employment litigation, including collective actions under the FLSA and the ADEA. Frazier has been counsel in over 20 jury trials, and he has experience trying collective actions in federal court before a jury and in an arbitration setting. He has also handled over 40 arbitrations arising under collective bargaining agreements. In 2005, Keith was elected to the Firm’s Board of Directors and served until 2011. He also served a three year term on the Firm’s Board from 2014 until 2017.

Elizabeth S. Washko is a shareholder in the Nashville office and co-chair of the firm’s Pay Equity Practice Group. She represents management in a wide variety of employment matters, at the agency level and in litigation. She has experience defending employers in FLSA collective actions, pay discrimination cases (individual plaintiff and class/collective actions) and conducting proactive pay audits and pay equity analyses. She has served as lead counsel in jury trials in state and federal courts. Washko also conducts training on employment issues, drafts and reviews employment policies and agreements, and conducts harassment and other types of investigations for employers.

ATLANTA Margaret H. Campbell is a shareholder in the Atlanta office and has practiced employment, litigation, and labor law at Ogletree since 1981. An all-around labor and employment lawyer, Meg is particularly recognized for her experience in complex class and collective action litigation, whistleblower investigations and litigation including Sarbanes-Oxley and Dodd-Frank cases, appellate practice, and restrictive covenant law. She has litigated single plaintiff, multi-plaintiff, and class and collective action jury and non-jury cases in federal and state courts around the country.

JACKSON, MISSISSIPPI Timothy W. Lindsay is routinely sought by clients to provide legal advice and offer guidance in avoiding potential problems and costly litigation in the labor and employment arena. In litigation, he has defended employers against claims involving state and federal employment laws with a high success rate for over 30 years. To Lindsay, representing management in labor and employment disputes is more than a professional career choice; it is a personal passion to which his practice has been dedicated for years.

Robin Banck Taylor’s practice focuses on defending employers and management in employment-related disputes, including disputes involving allegations of discrimination, harassment, retaliation, wrongful discharge, failure-to-accommodate, FMLA interference, non-competition and non-solicitation covenants, trade secret, and other related state and common-law claims. she also represents employers in labor arbitrations, union elections, and proceedings before the National Labor Relations Board. In addition to her active litigation practice, she regularly counsels employers on day-to-day personnel issues, including hiring, compensation, discipline, termination, covenants not to compete, protection of confidential information and trade secrets, and arbitration agreements.

Craig Cleland defends employers in litigation— including class and collective actions—and counsels them in risk management and compliance. He is the former Chair and Co-Chair of the Firm’s Class Action Practice Group. He is also an Adjunct Professor of Law at Georgia State University College of Law, where he teaches Complex Litigation. He has been recognized as a BTI Client Service All-Star twice— one of a small number of employment lawyers in the U.S. who “combine exceptional legal expertise with practical advice, business savvy and creative, effective solutions.”

Homer L. Deakins, Jr. was Managing Shareholder of Ogletree from 1985-2000. He has extensive experience in all aspects of labor relations law and has handled some of the largest and most highly publicized union elections in the United States on behalf of employers. This includes representing management in two major union elections in foreignowned automobile assembly plants in the United States, where the company won those elections by large margins. He also has created and participated in highly sophisticated labor relations training programs for management personnel and has a wealth of experience in guiding employers through challenging labor-related issues.

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Bass, Berry & Sims

The Kullman Firm

At Bass, Berry & Sims, positive human relationships and interactions drive business success. Our Labor and Employment team works with public and private companies across a variety of industries, ranging from Fortune 500 companies to small locally owned businesses. As experienced litigators, the team defends employment cases and works with employers to avoid litigation on the frontend through day-to-day counseling and HR training. Our attorneys are regularly involved in matters involving discrimination, retaliation, wrongful discharge, non-competes, FMLA, wage and hour, defamation, employee misclassification and a myriad of other traditional labor issues.

The Kullman Firm has exclusively represented management in labor and employment matters since 1946, including matters relating to Title VII, the ADA, ADEA, FMLA, FLSA, OSHA, ERISA, COBRA, OFCCP, NLRA, WARN and other federal and state employment laws. The Firm represents clients in a wide range of industries, which provides it with a sound understanding of the general business practices of a vast array companies. With this experience, the Firm is able to provide proactive legal advice to help clients achieve their business goals while complying with applicable law.

Tim Garrett of Bass, Berry & Sims helps employers solve complex issues related to all aspects of labor and employment law, providing in depth counseling and developing creative solutions to underlying business issues. He is an experienced trial lawyer, defending employers of all sizes in employment litigation claims across the country. His work has ranged from defending a major university during a significant wage and hour collective action involving thousands of employees to the successful defense of a major healthcare provider in a gender discrimination/retaliation case. In addition, Tim has served as nationwide labor and employment counsel for the largest nonprofit dialysis company in the U.S. Tim has been recognized by Mid-South Super Lawyers for the past ten years, along with Best Lawyers in America® and Chambers USA for many consecutive years. This recognition paired with his experience has earned him a national reputation for counseling employers through the maze of complex employee issues. Bob Horton, Chair of Bass, Berry & Sims’ Labor & Employment Practice Group, represents management in all areas of labor and employment law. Bob's practice consists primarily of counseling clients regarding employment issues and defending companies against all manner of employment claims throughout the U.S. Bob has substantial jury trial experience and has obtained defense verdicts in discrimination and retaliation lawsuits across the country. With a robust non-compete practice, Bob has assisted employers in drafting non-compete agreements on a state by state basis, enforcing non-compete agreements by way of obtaining injunctive relief, and defending the company and new employees against claims of breach of non-compete agreements with prior employers. Bob assists numerous public companies and executives in the negotiation of employment agreements, as well as executive departures and subsequent issues that arise from equity grants in various forms.

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Ernest R. Malone, Jr. – Mr. Malone has represented management exclusively for 40 years in labor and employment law. He advises management in the employment dimensions of strategic planning, the development and administration of employment practices, policies, mergers, acquisitions, and divestitures, compliance with employment and anti-discrimination laws, union organizing and NLRB elections. Mr. Malone was recently recognized by Best Lawyers in America for having been selected by his peers as the "Lawyer of the Year" for his work in Labor Law - Management in New Orleans. Samuel Zurik, III is experienced in representing employers in a wide range of employment matters. He concentrates his practice in defending employers in employment litigation and arbitration of employment claims, including all categories of alleged discrimination and harassment, Fair Labor Standards Act/wage-hour litigation, wrongful termination, whistleblower, and breach of contract. Mr. Zurik has acted as lead counsel on complex disputes, including Sarbanes-Oxley whistleblower claims before the Office of Administrative Law Judges; collective actions under the Fair Labor Standards Act; and class-based discrimination claims and pattern and practice claims prosecuted by the Equal Employment Opportunity Commission. Mr. Zurik has defended claims in 49 states. Howard S. Linzy has been lead counsel in a large number and variety of NLRB representation and decertification elections, union organizing drives, and contract negotiations for companies in units ranging from a few employees to several thousand employees. He is an experienced trainer of managers and supervisors in the fundamentals of employee relations and in providing advice on compliance with employment discrimination laws, Wage and Hour regulations, matters before the NLRB, and the employment aspects of mergers, acquisitions, and sales. Taylor B. Smith - Mr. Smith has 50 years of experience in the practice of law. He is a Fellow of the American College of Trial Lawyers and is listed in The Best Lawyers in America®. He also has been identified as a Mid-South Super Lawyer by Mid-South Magazine, and he is one of only two lawyers in Mississippi meriting the rating of “Star Individual” in Chambers and Partners.

FordHarrison FordHarrison is a labor & employment firm with nearly 200 attorneys in 28 offices, including three affiliate firms. The firm has built a national legal practice as one of the nation's leading defense firms with an exclusive focus on labor law, employment law, litigation, business immigration, employee benefits and executive compensation. Through its global practice group and membership in the global employment law firm alliance, Ius Laboris, FordHarrison provides clients that have multinational operations with a broad range of services related to labor and employment law in over 50 countries throughout the world. FordHarrison is committed to our FH Promise, a set of principles that guides our firm in the delivery of legal services and client communications. For more information on FordHarrison, visit fordharrison.com. TENNESSEE

GEORGIA

Louis Britt, Regional Managing Partner of FordHarrison’s Memphis, Nashville, and Dallas offices, concentrates his practice on employment litigation and advice, representing private and public employers in a broad range of employment matters. He handles employment discrimination and harassment cases (Title VII, ADA, ADEA, and FMLA), wage/ hour matters, enforcement and defense of restrictive covenants contained in employment agreements, and employment-related torts. He is experienced in complex and class action litigation, and has tried cases in state and federal courts across the country. Louis has extensive experience in public sector representation in both litigation and collective bargaining. He received his JD from Tulane University Law School. He is also listed in The Best Lawyers in America.

Patricia Griffith concentrates her practice on employment litigation, including individual and class action discrimination and harassment cases, employment contracts, wage/hour claims, and other employment-related actions. She tries cases in federal and state courts and before administrative agencies and arbitrators. She has substantial jury and class certification experience. She is adept at mediating disputes, reducing the likelihood of protracted litigation, and serves as an arbitrator for the State Bar of Georgia. Patricia earned her JD from the University of Georgia School of Law. She is also listed in The Best Lawyers in America.

Herb Gerson chairs FordHarrison’s Global Legal Services Practice Group and focuses his practice on managing all areas related to traditional labor and employment issues both local and international. He devotes much of his practice to counseling clients on avoiding employment discrimination claims and developing a positive work environment. Herb is a graduate of Leadership Memphis and a member of the Advisory Board to the Memphis Area Chamber of Commerce. He serves on the Executive Committee of Ius Laboris and chairs the American Oversight Committee. Herb was named an Eminent Practitioner by Chambers USA and is also listed in The Best Lawyers in America. He earned his JD from Emory University School of Law.

John Monroe has represented employers in the litigation and arbitration of virtually every type of claim that may arise out of the employment relationship. These claims include employment discrimination and harassment, breach of contract, unfair competition, misappropriation of trade secrets, claims arising under state and federal wage and hour laws and family medical leave laws, employment/business torts, claims involving minority shareholder rights and business "divorces". He is a member of the firm's Executive Committee and serves as the managing partner of the firm's Atlanta office. John earned his JD from the University of North Carolina School of Law. He is also listed in The Best Lawyers in America.

Rick Warren handles all aspects of labor and employment law, including traditional labor law, employment litigation, wage and hour matters and workplace safety and serves as the co-chair of the firm’s Restaurant Practice Group. He litigates cases before federal and state courts and administrative agencies throughout the country. He defends both individual and class action cases and has substantial jury trial experience. Rick also handles numerous mediations and arbitrations. He devotes a significant part of his practice to preventive law and advising clients how to avoid/resolve labor and employment disputes and litigation. He earned his JD from the University of Georgia School of Law. He is a fellow of the College of Labor and Employment Lawyers and is also listed in The Best Lawyers in America.

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Wright, Lindsey & Jennings LLP Wright Lindsey Jennings' Labor and Employment team has management-oriented practices addressing all aspects of the employee/ employer relationship. The team has extensive experience litigating and arbitrating employment and civil rights claims, in addition to state law claims. Our attorneys defend clients in multi-plaintiff, collective action and class action lawsuits, as well as Department of Labor and EEOC investigations. WLJ's team provides advice and counsel to clients regarding a variety of day-to-day matters and represents clients in labor arbitrations, union elections and contract negotiations. We offer proactive and preventive resources for HR professionals, including employee and manager training, e-newsletters, employment law luncheons and webinars, and website articles.

Stuart Jackson heads up Wright Lindsey Jennings' Labor and Employment Team. He advises employers on compliance with civil rights laws and developing personnel policies (including medical marijuana), employment agreements and covenants not to compete. Jackson also defends employers in federal and state court litigation and appeals involving claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act and the Arkansas Civil Rights Act. Jackson is recognized by The Best Lawyers in America©, Chambers USA “Leader in the Field” and Mid-South Super Lawyers, and has an AV® Preeminent™ Peer Review Rating through Martindale-Hubbell.

Lee J. Muldrow has been engaged in general litigation and workers’ compensation defense in Little Rock for more than thirty years. His litigation practice primarily involves a wide variety of insurance defense cases, including copyright, trademark and trade dress litigation. His workers’ compensation practice entails representing employers, self-insured companies and insurance carriers. Muldrow is listed in The Best Lawyers in America© in the areas of “Worker’s Compensation Law” and “Health Law,” Chambers USA and Mid-South Super Lawyers. He has also received an AV® Preeminent™ 5.0 out of 5 Peer Review Rating through Martindale-Hubbell.

John D. Davis concentrates his Little Rock practice in the areas of labor and employment law and workers’ compensation. He spends a considerable amount of his time advising clients in connection with a variety of employment-related matters, including terminations, severance agreements, wage and hour issues, union avoidance, union negotiations, arbitrations, personnel policies and compliance with federal, state and local employment laws. Davis has received an AV® Preeminent™ 5.0 out of 5 Peer Review Rating through Martindale-Hubbell, and is listed among The Best Lawyers in America©, Chambers USA and Mid-South Super Lawyers.

Jane A. Kim’s practice centers on defending employers in state and federal court litigation involving claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act and the Age Discrimination in Employment Act. Kim also advises and provides training to employers on compliance with civil rights law. Kim is recognized by The Best Lawyers in America©, Chambers USA as a "Leader in The Field," and has been listed in Mid-South Super Lawyers since 2013. Kim chairs Wright Lindsey Jennings’ Committee on Associates, and was named to the inaugural Arkansas Business list of "Women to Watch" in Central Arkansas. In 2018, Arkansas Business named Kim to its “40 Under 40” list of business and political leaders.

Michelle M. Kaemmerling’s practice focuses on employment and commercial litigation in state and federal court, including appeals. She has also represented a number of defendants in employment and consumer class action lawsuits. In addition to her litigation practice, Kaemmerling regularly advises employers regarding compliance with state and federal employment laws and develops personnel policies, employment agreements, covenants not to compete and other employment-related contracts. Kaemmerling has been recognized by The Best Lawyers in America©, Mid-South Super Lawyers and as a “Leader in the Field” by Chambers USA.

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Fisher Phillips Fisher Phillips is one of the largest labor and employment law firms in the country with 370 attorneys in 32 offices nationwide, including Tennessee, Florida, Georgia, Kentucky and Mississippi. Some of the most talented and experienced attorneys come to the firm to handle challenging cases involving workplace issues faced by employers and HR professionals. Fisher Phillips attorneys have experience in all areas of labor and employment law and have the experience and resolve to achieve your desired results in court, with employees and unions, and with competitors. LOUISVILLE Tom Birchfield is the managing partner of the Louisville office, which he helped open for the firm in 2009. Prior to 2009, he was the chairperson of the labor and employment practice group of a large regional law firm. Tom has represented employers exclusively for over 25 years in federal and state courts and before various administrative agencies throughout the nation. Tom assists employers with their employment practices liability prevention efforts by conducting training, counseling, reviewing and revising policies and preparing severance agreements. Tom also represents companies in collective bargaining, arbitrations and proceedings before the National Labor Relations Board. Laurel Cornell is a partner in the firm's Louisville office. Her practice involves representing employers in litigation of employment disputes involving Title VII, the Kentucky Civil Rights Act (KCRA), the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), as well as related tort and contract claims. She also has extensive experience advising and representing employers in administrative actions across the country. Laurel is the former vice chair and chair of the Louisville Bar Association's Labor & Employment Section. While in law school, she was a member of the Kentucky Law Journal. Cynthia Blevins Doll is a partner in the Louisville office and has 26 years of labor and employment experience. She represents employers in employment litigation of all types in the federal and state courts, and she counsels them on compliance with the law in such areas as Family and Medical Leave Act (FMLA), employment discrimination, Americans with Disabilities Act (ADA), Title VII, wrongful termination, asbestos premises liability, wage and hour issues, reductions in force and sexual and racial harassment. Cynthia frequently litigates non-compete and trade secret disputes and also assists clients in their prevention efforts by conducting employee training and preparing handbooks and policies for the workplace. Ray Haley III is a partner in the Louisville office and has practiced labor & employment law for more than 35 years. He represents employers in a variety of industries including healthcare, manufacturing, transportation and rehabilitative services. Ray’s representation of clients involves defense of all forms of civil rights and wrongful discharge claims in state and federal courts, as well as arbitration of labor disputes. He regularly advises clients concerning compliance with virtually all employment-based state and federal mandates, union related matters and state and federal wage and hour advice and litigation.

Jeff Savarise is a partner in the Louisville office and chair of the firm’s automotive manufacturing practice group. Jeff served as Toyota Manufacturing’s national outside labor and employment counsel for over 25 years. Jeff practices exclusively in the areas of labor and employment law on behalf of employers, where he handles cases in a number of state and federal jurisdictions. He also provides a variety of preventative maintenance and employment training programs especially geared to the automotive industry. Jeff received the “Distinguished Alumni Award” given to alumni of the University of Akron Law School who have demonstrated significant achievement in the field of law and have made significant contributions to their community. MEMPHIS Jay Kiesewetter is senior counsel in the Fisher Phillips Memphis office, where he devotes his practice to representing clients in the traditional areas of labor relations and employment law. He counsels employers in all aspects of union-free management and advises non-union companies facing union organizing activity. Jay represents employers in unfair labor practice and representational proceedings before the National Labor Relations Board and the United States Courts of Appeal. In addition, he works with companies that have unions to improve union-management relations and represents management in contract negotiations, arbitrations and labor disputes. Jeff Weintraub is a partner in the managementside L&E firm Fisher Phillips’ Memphis office. He is a trial attorney who has represented employers in numerous jury and bench trials in employment-harassment/discrimination and retaliatory discharge lawsuits. Jeff handles EEOC charges, FLSA collective actions, non-compete cases, and labor cases in all courts and agencies, various Courts of Appeals and the U.S. Supreme Court. Jeff was selected for HR Executive’s 2017 & 2018 Top 100 Most Powerful Employment Lawyers in the Nation, and Best Lawyers in America for 20+ years. Additionally, Jeff is a member of the Chairman’s Circle and former Chairman of the Small Business Council of the Greater Memphis Chamber.

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Cross, Gunter, Witherspoon & Galchus, P.C. Chambers USA has named Cross, Gunter, Witherspoon & Galchus, P.C. (CGWG) a leading Labor and Employment law firm in the state of Arkansas with a "Band 1" ranking for the fourteenth consecutive year. CGWG’s team of attorneys provides innovative and unique solutions for today’s fast-paced and evolving legal environment. We are a female majority owned law firm and we have been repeatedly recognized for our family friendly and work life balance initiatives. Respect for employees and an emphasis on work-life balance are hallmarks of our business and we use our experience to help clients meet their diversity goals and mandates. Missy McJunkins Duke practices in the areas of labor and employment law, education law, and school district litigation. Ms. Duke was appointed by former Arkansas Governor Mike Beebe as Special Associate Justice of the Arkansas Supreme Court and as a member of the Arkansas Advisory Committee to the United States Commission on Civil Rights. The Arkansas Supreme Court appointed her to the Arkansas State Board of Law Examiners and the CLE Board. Ms. Duke is active in the community, currently serving on multiple boards in Little Rock. She was named an Arkansas Business 40 Under 40 in 2011 and is also listed in Mid-South Super Lawyers, Chambers USA and Best Lawyers in America. Carolyn B. Witherspoon practices in the areas of labor and employment defense, transportation law and government law. Ms. Witherspoon is a member of the prestigious Union Internationale des Avocats, an international society of legal professionals recognized before the United Nations; and also serves as an arbitrator for the Court of Arbitration or Sport. Ms. Witherspoon is a 2005 recipient of the Charles L. Carpenter Memorial Award from the Arkansas Bar Association and is listed among the top lawyers in the nation by Mid-South Super Lawyers, Chambers USA, and Best Lawyers in America, and was named to the Mid-South Super Lawyers Top 50 list of attorneys in Arkansas. She is also a Fellow in the College of Labor and Employment Lawyers. J. Bruce Cross practices in the areas of labor and employment defense law. Mr. Cross served as Chairman of the National Legislative Committee of the Associated Builders and Contractors of America. He is a recipient of the 2017 Albert Nelson Marquis Lifetime Achievement Award and is one of the Who’s Who Legal’s Top 100 Labor and Employment Lawyers, the only one in Arkansas. Mr. Cross is listed among the top lawyers in the nation by Mid-South Super Lawyers, Chambers USA, and Best Lawyers in America, and was named to the Mid-South Super Lawyers Top 50 list of attorneys in Arkansas. He is also a Fellow in the College of Labor and Employment Lawyers.

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Burch, Porter & Johnson, PLLC The Labor & Employment attorneys at Burch, Porter & Johnson have extensive experience representing management in litigation in both state and federal court, as well as counseling and advising regarding a wide range of employment-related issues. From its inception, the firm’s focus has been on client service – providing specialized expertise, value, responsiveness and practical solutions to address our clients’ needs. Clients have counted on the firm’s experience, its commitment to service, and its tradition as a leader in business and community affairs for more than a century.

Jef Feibelman received the highest Chambers ranking in the field of general commercial litigation in the 2017 edition of Chambers USA. He was also named as Best Lawyers® 2016 Litigation – Securities "Lawyer of the Year" in the Memphis area. Mr. Feibelman engages principally in the litigation, arbitration or mediation of complex commercial matters. He has litigated substantial claims involving fraud, breach of contract, misappropriation of trade secrets, breach of non-compete and confidentiality agreements, shareholder and partnership disputes, and business dissolution and valuation controversies. He joined Burch, Porter & Johnson as a member in 1977 and served as managing partner from 2007-2010.

Lisa Krupicka made her debut in the 2016 edition of Chambers USA, earning her rank as a leading Labor & Employment attorney in Tennessee. She has also been named as Best Lawyers® 2017 Employment Law-Management "Lawyer of the Year" in the Memphis area. She joined Burch, Porter & Johnson in 1987, and focuses on advising and representing employers on a variety of employment-related matters, including training, wage and hour issues, labor relations, employee discipline and termination, and compliance with the accessibility requirements of Title III of the Americans with Disabilities Act. Her litigation experience includes claims for race, sex, age, disability, religious and age discrimination, and benefits claims, as well as wage and hour class actions.

Evans Petree PC The attorneys in the labor and employment group have extensive experience in representing clients in all types of employment-related disputes. We advise both organizations and individuals in understanding their rights under evolving federal, state, and local employment laws. Evans Petree PC was founded over 100 years ago and is a full-service law firm composed of 48 attorneys. The firm represents a diverse local, national and international clientele. We offer counsel in a wide variety of practice areas including corporate, private equity/ transactional, real estate, banking, construction, litigation, employment law, private client, tax planning, wills and estates, health care, family law and employee benefits.

Michael R. Marshall is the co-leader of the Labor and Employment Law Practice Group and uses his experience in other arenas to reach solutions and resolutions to his clients’ disputes. When no resolution is possible, Mike is a zealous advocate in the courtroom. He has extensive experience in litigating and resolving employment matters and other businessrelated disputes. He has received an AV rating from MartindaleHubbell, was recently selected by his peers for inclusion in The Best Lawyers in America 2019 in the fields of Litigation-Labor and Employment and Employment Law-Management for the second year, and been selected to the Mid-South Super Lawyers list every year since 2015.

W. Kerby Bowling serves as co-leader of the Labor and Employment Law Practice Group. He worked at Kellogg as a unionized laborer before campaigning against organized labor. He assists clients in remaining non-union and avoiding employment litigation. Mr. Bowling is AV rated by Martindale-Hubbell and has been selected for inclusion in The Best Lawyers in America 2019 for Administrative/Regulatory Law and Labor Law-Management for the seventh year and as a Power Player in Employment Law from Inside Memphis Business for the fifth year. He is also on the Board of the National Foundation for Transplants.

Charles W. ‘Chip’ Cavagnaro, Jr. represents management in state and federal courts in all aspects of labor and employment law, as well as before numerous government agencies. His clientele ranges from small companies to multinational corporations. By using his experience in the courtroom and before administrative agencies, he has been able to formulate policies and practices that address the challenges faced by employers through claims of discrimination or unfair treatment. He can effectively advise the firm’s clientele on reducing the risk of employment litigation. He was recently selected by his peers for inclusion in The Best Lawyers in America 2019 in the area of Labor and Employment Litigation for the fourth year.

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L. Clayton Culpepper III serves as counsel for a number of businesses and aggressively advocates for his clients. He has litigated cases from Tennessee to California, in federal and state courts, in front of both juries and judges. Clay represents and counsels clients in both business/commercial litigation as well as significant personal injury. He has been selected to the Mid-South Super Lawyers list since 2013 and has been selected by his peers for inclusion in The Best Lawyers in America since 2016. He is also a member of the 2012 Memphis Business Journal’s Top 40 Under 40 Class.

Katy C. Laster practices in the firm’s employment and health care groups, with a focus on counseling clients in employment and health care regulatory compliance. Katy currently serves as the head of the firms’ ethics committee. She was also recently selected by her peers for inclusion in The Best Lawyers in America 2018 in the field of Litigation-Labor and Employment. Katy works with clients to ensure an understanding of the balance between sound financial business and employment arrangements and smart compliance practices. Katy enjoys working with clients to spot risk areas so the client can take corrective action and avoid expensive legal consequences.

William A. Wooten, SHRM-CP, concentrates his practice in the areas of employment law, business transactions and contract negotiations, corporate and entrepreneurial law, sports and entertainment law, intellectual property, and workers’ compensation. He was named a Super Lawyers Rising Star in Employment Law. He is also a certified human resource professional, a Tennessee Rule 31 mediator and licensed to practice law in Tennessee, Missouri and Texas. Mr. Wooten is the attorney for the Town of Brighton and supports numerous philanthropic causes in Tipton and Shelby Counties.

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More than experience. More than advocacy.

MORE THAN L AW.

E VA N S P E T R E E . C O M

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Littler Mendelson, P.C. Littler is the largest global employment and labor law practice, with more than 1,500 attorneys in over 80 offices worldwide. Littler represents management in all aspects of employment and labor law and serves as a single source solution provider to the global employer community. Consistently recognized in the industry as a leading and innovative law practice, Littler has been litigating, mediating and negotiating some of the most influential employment law cases and labor contracts on record for over 75 years. Littler Global is the collective trade name for an international practice, the practicing entities of which are separate and distinct professional firms. For more information, visit: www.littler.com. TENNESSEE Jonathan E. Kaplan is a shareholder in Littler’s Memphis office. He has devoted his entire career to representing management clients exclusively in all areas of labor relations, employment law, and human resources management. His practice spans litigation, training, and consulting, in which he has handled matters in more than 40 states and Canada. Jonathan practices extensively before the NLRB across the country, and also has been admitted specially to practice before the state courts in California, Florida, Illinois, Indiana, Kentucky, Michigan, New York, and Ohio. He also is a frequent speaker before management and legal groups and has published numerous articles on labor and employment issues. Lisa A. Lichterman is a shareholder in Littler’s Memphis office. She represents management clients in both state and federal employment litigation as well as administrative proceedings before state and federal agencies. Lisa regularly works with employers to determine the legal, as well as the practical, impact of employment decisions and to develop proactive policies and procedures to improve employee morale, strengthen relationships between management and employees, and ensure compliance with employment and labor laws. Lisa also regularly conducts employee and supervisory training programs in various employment law areas. Paul E. Prather is a shareholder in Littler’s Memphis office. He represents management exclusively in all areas of employment and labor relations, including state and federal employment litigation and in administrative proceedings before the National Labor Relations Board, the Equal Employment Opportunity Commission and the United States Department of Labor. With more than 30 years of success in defense litigation, including jury trials, he is a frequent lecturer and author for management and legal groups on labor and employment law issues. Tanja L. Thompson is office managing shareholder in Littler’s Memphis office, co-chair of the firm’s Traditional Labor Practice Group and a member of the firm's Board of Directors. She dedicates her practice to representing companies in the area of traditional labor law. National Fortune 500 companies as well as local employers across various industries, such as manufacturing, healthcare, and services, seek her expertise in remaining union-free and in managing their union-represented workplaces. Her union-free efforts include campaigns, comprehensive union vulnerability assessments, human relations audits, communication strategies, and union avoidance and positive employee relations training. 42

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Michael S. Moschel is a shareholder in Littler’s Nashville office and co-chair of the firm's Higher Education Industry Group. Michael brings notable on-the-ground experience to his traditional labor work, with distinctive strength in the healthcare and federal contracting industries. He negotiates significant labor contracts and represents employers before the National Labor Relations Board (NLRB) and the Department of Labor (DOL). He regularly advises clients regarding compliance with the National Labor Relations Act (NLRA) and federal government contractor labor laws, regulations and executive orders, including obligations under the McNamara-O’Hara Service Contract Act (SCA) and the Davis-Bacon Act.

Jennifer B. Robinson is office managing shareholder in Littler’s Nashville office and co-chair of the firm’s Hospitality Industry Group. She has been the lead defense attorney in nearly 40 wage and hour class and/or collective actions involving claims of misclassification, overtime and minimum wage violations, and missed meal and rest breaks. She also counsels, trains and conducts audits for clients to ensure compliance with federal and state wage and hour laws. In addition to her wage and hour practice, Jennifer defends employers in single and multi-plaintiff lawsuits involving claims of discrimination, harassment, failure to accommodate and breach of contract.

C. Eric Stevens is a shareholder in Littler’s Nashville office. He has over 30 years of experience representing clients - focusing on healthcare and financial institutions - in labor relations and employment litigation. He represents both union and non-union employers, providing counseling to avoid litigation as well as defending clients in both court and administrative proceedings. Eric regularly speaks to industry groups and business roundtables on new developments in the law and issues that can directly affect their operations. He provides training on discrimination, harassment, wage and hour and related topics for private employers, public employers and governmental entities.

KENTUCKY Jay Inman represents employers throughout Kentucky and Tennessee in a full range of labor and employment law matters arising under federal, state, and local laws. He provides advice, counsel, and training for employers of all sizes, and he has assisted clients with administrative agency investigations and charges, as well as represented clients at various stages of litigation, including trial and, if necessary, appeal. Jay’s industries of emphasis include education, healthcare, hospitality, and manufacturing. Jay has obtained favorable results for clients in federal and state courts and before the Equal Employment Opportunity Commission, Kentucky Commission on Human Rights, and Kentucky Labor Cabinet. LaToi Mayo is a shareholder in the Lexington Office. She has advised, counseled and defended employers in regard to labor, employment and immigration matters for the past 18 years. She has successfully litigated single plaintiff discrimination and wage and hour claims as well as class and collective actions in both state and federal court. LaToi has also successfully handled investigations and charges on employer’s behalf before administrative agencies like the Department of Labor, EEOC, and NLRB and similar state agencies. Working most frequently with manufacturers, health care facilities, and local city governments, LaToi has notable experience in enforcing and/or advising clients on arbitration agreements, restrictive covenants and wage and hour compliance issues. LaToi routinely presents at seminars, focusing on labor, employment and immigration topics for a variety of professional organizations in Kentucky. She also provides training for managers, supervisors and general workforce and provides compliance counseling.

Lisa "Lee" A. Schreter is a shareholder in Littler’s Atlanta office. She is co-chair of the Wage and Hour Practice Group and former chairperson of Littler's Board of Directors. She focuses on representing employers in complex class and collective actions involving overtime and other wage-related claims and specializes in helping employers to develop forward-thinking compliance measures that reduce wage and hour disputes and other employmentrelated issues. She also represents and counsels management clients in connection with all other types of labor and employment matters arising under federal and state laws such as the Fair Labor Standards Act, the Equal Pay Act, the Service Contract Act and state law wage and hour requirements.

Daniel Turner is a shareholder in Littler’s Atlanta office. He counsels and represents employers in all aspects of litigation in employment law issues, including discrimination, harassment, retaliation, wage and hour, and leaves of absence. Serving as lead counsel in more than 50 class and collective actions throughout the country, he has litigated cases under the Title VII and Section 1981 of the Civil Rights Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act and various wage and hour laws. Dan's extensive litigation practice also includes state law tort, contract, restrictive covenant claims, and various types of civil rights litigation.

ATLANTA Leslie A. Dent is a shareholder in Littler’s Atlanta office. She is an experienced trial lawyer who has successfully tried cases ranging from individual discrimination matters to complex wage and hour class actions. She represents employers in class and collective actions involving off-the-clock claims, challenges to exempt status and other wage-related claims, as well as Rule 23 class actions alleging discrimination claims. Leslie counsels and represents employers on a broad range of employment law issues, including discrimination, harassment, retaliation, and leave laws. She has extensive experience conducting and supervising internal investigations and defending whistleblower and retaliation claims, including Dodd Frank and False Claims Act claims. L. Traywick Duffie is office managing shareholder of Littler’s Atlanta office. He represents corporate clients in a broad range of employment and labor law, including employment litigation, union organizing, wage and hour and Employee Retirement Income Security Act matters. He has successfully defended numerous class and collective matters and countered union organizing campaigns in more than 40 states. He has successfully defended single plaintiff, multiple plaintiff and class action litigation involving, race, age, sex, pregnancy, disability, retaliation, ERISA, whistleblowing, covenants not to compete and state law contract claims.

ARKANSAS Eva C. Madison is a shareholder in Littler’s Fayetteville office. She represents and advises employers of all sizes in all aspects of employment law, primarily focusing on employment litigation, ranging from singleplaintiff cases to multiple-plaintiff, class, and collective action cases. Practicing in state and federal courts and before the U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor, and the Arkansas Department of Labor, she has handled matters involving race, gender, national origin, religion, disability, and age discrimination and harassment under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Arkansas Civil Rights Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and the Arkansas Minimum Wage Act.

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1 The University of Memphis Cecil C. Humphreys School of Law is located in the building previously occupied by the historic Memphis Post Office Downtown. 2 Katharine Schaffzin is Interim Dean of the University of Memphis School of Law. She welcomed attendees to the conference.

3 Verlinda Henning, SHRM-SCP, SPHR, President of SHRM-Memphis, invited attendees to the SHRM-Memphis Second Annual Diversity and Inclusion Conference at the University of Memphis Fogelman College of Business & Economics on October 5. 4 The Honorable Jon Phipps McCalla, Senior Judge, U. S. District Court, Western District of Tennessee, presided over a mock trial jury selection emphasizing “The Challenges in Achieving Diversity.” 5 Craig Cowart is a Principal in the Memphis office of Jackson Lewis. He spoke on “Why Strong Diversity Initiatives Make Business Sense.”

6 A panel discussion on “Modern Diversity & Inclusion “Challenges” and Strategies for Success: Corporate Perspective,” included Jeana Littrell, VP, Commercial & Government Litigation, FedEx (seated center); Norma Barnes-Euresti, VP/Chief Counsel LaborEmployment & Ethics, Kellogg’s; (seated left) (L-R) Lani Glancy, Director, Diversity & Talent Development at Autozone; Dan Norwood, attorney; Maurice Wexler, Baker Donelson (ret); Shiela Vinczeller, Senior VP Diversity, International Paper. 6 44

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7 The panel discussion, “Modern Diversity & Inclusion “Challenges” and Strategies for Success: Law Firm Perspective,” (L-R) Ed Stanton III, Butler Snow LLP; Professor Demetria Frank, The University of Memphis School of Law; Moderator, Terrence Reed, Managing Director, Employment Litigation, FedEx Express; the Honorable Judge Bernice Donald, U. S. Court of Appeals; and Mark Baugh, the Nashville office of Baker Donelson.

8 Tre Hargett, Tennessee Secretary of State, was the moderator for the panel discussion on “Modern Diversity & Inclusion “Challenges” and Strategies for Success: Government Perspective.” (L-R) Demetrice K. Rufus, Diversity Co-Chair, U.S. Attorney’s Office; Hargett, Regan M. Taylor, Diversity Chair, U.S. Attorney’s Office; Carolyn Watkins, Administrator, Equal Employment Opportunity Compliance, Shelby County; Dan Norwood, Chandell Carr, EEO Officer/Labor Relations Manager, City of Memphis.

A Year in Review: Labor and Employment Law Developments in 2018 Wednesday, November 14, 2018 Morning Program:

Registration & Breakfast: 8:00 a.m. - 8:30 a.m. Program: 8:30 a.m. - 9:30 a.m.

Afternoon Program:

Registration: 3:30 p.m. - 4:00 p.m. Program: 4:00 p.m. - 5:00 p.m. Happy Hour: 5:00 p.m. - 5:30 p.m.

Location:

Littler Memphis | 3725 Champion Hills Drive | Suite 3000 | Memphis, TN 38125 For registration, please contact Honey Campagna at hcampagna@littler.com.

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2018 SHRM-ATLANTA SYMPOSIUM August 21, 2018

www.HRLeadersATL.com KEYNOTE SPEAKERS

Dr. Thomas J. Cunningham Chief Economist, Metro Atlanta Chamber

Andy Masters, MA, CSP Award Winning Author & Speaker

SHRM-Atlantaâ&#x20AC;&#x2122;s Fearless Leadership at All Levels Symposium at the Gwinnett Infinite Energy Center was a huge success! With four concurrent tracks, 18 compelling speakers, and over 250 attendees, it was a great day of learning and making new connections.

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ICE Raids Continue Throughout United States BY BRUCE E. BUCHANAN

Since Trump’s first raid by U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) at Southeastern Provisions in Bean Station, TN in April 2018, ICE/HSI has continued to conduct raids throughout the U.S. And each seems to be getting bigger and bigger. ICE Raid at Load Trail LLC in Sumner, Texas In late August 2018, ICE/HSI struck again when it raided Load Trail LLC in Sumner, Texas. During this raid, HSI arrested about 160 out of 700 employees in the workforce on federal immigration violations - unlawfully working in the United States with undocumented status. The investigation began when HSI received information that the company may have knowingly hired undocumented workers, and that many of the workers employed at Load Trail were using fraudulent identification documents. This isn’t the first time Load Trail has been in trouble with ICE. In 2014, Load Trail was fined $445,000 for employing more than 170 unauthorized immigrants. Being a repeat offender means it is likely that Load Trail will be facing substantial penalties. It would not be a surprise to see some company officials facing jail time and the company paying over $1 million in penalties. Much will depend on whether testimony and company records, which were confiscated in the raid pursuant to a criminal search warrant, establish the company had direct or constructive knowledge of their employees’ undocumented status. ICE Raids in Nebraska and Minnesota Earlier in August 2018, in a multi-state operation, covering Nebraska and Minnesota, ICE/HSI raided over 15 workplaces serving a series of criminal search warrants and criminal arrest warrants. The raids were the

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result of a 15-month investigation into companies allegedly knowingly hiring undocumented workers, who were using fraudulent identification belonging to U.S. citizens. As a result of these raids, 17 individuals were arrested for an alleged criminal conspiracy to exploit illegal alien laborers for profit, fraud, wire fraud and money laundering in Nebraska and Minnesota. HSI believes the alleged conspirators colluded to create an illegal alien workforce in their respective businesses. In addition to these arrest warrants, authorities also identified 133 employees who were subject to arrest for immigration violations and were unlawfully working at these businesses. These individuals had been illegally residing and working in the United States and may also have been exploited as part of this alleged criminal conspiracy. According to ICE, by colluding to create an illegal alien workforce in their respective businesses, the 17 individuals defrauded the U.S. government and created an unfair advantage over their competition businesses. Additionally, authorities suspect the undocumented workers who were knowingly hired as part of this alleged conspiracy were exploited by the conspirators. Specifically, these undocumented workers were allegedly required to cash their paychecks at an illegal remittance business for a fee, have tax money deducted from their pay even though this money was never paid to the government, and were coerced to remain quiet about this criminal activity. “The job magnet in the United States is primarily what draws illegal aliens across our borders,” said Special Agent in Charge Tracy J. Cormier, HSI St. Paul, which oversees Nebraska and Minnesota. “This HSI-led criminal investigation has shown that these targeted businesses were knowingly hiring illegal workers to unlawfully line their own pockets by cheating the workers, cheating the taxpayers, and cheating their business competitors.” June 2018 Raids of Fresh Mark On June 19, 2018, ICE raided Fresh Mark, a large meat supplier with facilities in Salem, Massillon and Canton, Ohio. Although ICE raided four of Fresh Mark’s facilities with federal criminal search warrants, only the Salem facility was the site of arrests. The detained 146 workers are suspected of using stolen/fraudulent identification to gain employment and/or reentry into the United States after deportation. Fresh Mark, a family-owned company, which employs more than 1,000 employees, sells meat products, such as bacon, deli ham, lunch meats and sausages, to restaurants, delis, grocers and stadiums nationwide. The company said it participates in E-Verify, a federal program to ensure employees have proper documentation and conducts an annual internal audit of its I-9 forms. It should be noted if an employee engages in identity theft, E-Verify may not be able to detect the theft and will issue work-authorized verification. Steve Francis, Special Agent in charge of ICE's Homeland Security Investigations Michigan/Ohio unit, said the raid was the result of more than a year-long investigation into Fresh Mark and its employees, and whether the company knowingly hired and harbored undocumented workers. "It's important that companies know not to willingly participate in the hiring of illegal aliens," said Francis. Conclusion It is clear that employer raids will be a frequent tool of ICE. Every employer should be vigilant in their immigration compliance. I would advise employers to meet with their immigration counsel, or obtain immigration counsel, to conduct an internal I-9 audit and draft or review an immigration compliance policy. If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/ dp/0997083379.

Nashville 615.647.6006 Bruce E. Buchanan, Attorney Siskind Susser PC bbuchanan@visalaw.com www.visalaw.com www.HRProfessionalsMagazine.com

By WILLIAM CARMICHAEL

“The hard truth is that hiring the right person for any job takes a lot of work, both before and during the interview” the author states in Chapter 1’s opening. Anyone who has ever conducted an interview will agree how accurate that one sentence is! And truth be told, there is a great deal of work required after the interview as well. But for now, I’ll focus on the actual interview process that Ask the right Questions, Hire the Best People (4th Edition) by Ron Fry, does so well. Another point worth noting is that although this excellent HR field guide doesn’t refer to itself as a hiring and interviewing primer, that is exactly what it is! And while new managers will find it an incredible resource of practical questions to consider asking employment candidates, seasoned managers will find it a remarkably insightful ‘back-to-basics’ playbook.

So . . . what are the right questions? At the risk of being flippant, it depends! Let’s begin with the broad assumption that hiring managers know the wrong questions to ask; those that cross the cultural, religious, and ethical boundaries. Certainly, anyone who has ever spent time with their Legal Department trying to justify why they ask a candidate a particular question knows exactly where this can lead. Here, Fry does an excellent job of identifying exactly what these errant questions are. Those that become impossible to recover from. He then explores and guides us with appropriate questions that allow much better control over the direction the interview should go. In other words, he takes us down the right path. As the author will explain, there are literally hundreds of good, solid questions one can, and should consider but they are all “just posing variations of the same six questions”: 1. C an the candidate to the job? 2. Will he or she do the job better than the other people you are interviewing or considering? 3. Will the candidate actually accept the job if offered? 4. Will the candidate, no matter how sterling his or her credentials, fit in with the rest of the group? 5. Will the candidate make me look like a genius or a fool? 6. What is the candidate going to cost me in money, time, and effort? 48

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Now think back to the last interview you conducted. More than likely you were simply trying to get to know the candidate and one way to do this is by asking a fairly innocuous question. One such question would be, “What is the last book you read?” which happens to be one our author uses as an example from Chapter 4. A safe, straight-forward question, right? But as any seasoned interviewer will attest, the candidate’s answer can often lead the interview in the wrong direction. What Ask the Right Questions, Hire the Best People does is provide us with substance and control over what we should ask next. Fry is not a newbie here! As a subject-matter expert, he clearly understands the ‘question and answer mine field’ all interviewers must carefully guide the candidate through. He provides us with a veritable ‘goldmine’ of recommended questions as well as appropriate follow-up inquiries that place us, as interviewer, more in control. Fry also touches on a delicate territory. Take Chapter 5’s- Tell Me a Little About Yourself. How can such a harmless question unintentionally cause so much damage? Yet it does if we are not familiar with where to take the candidate’s answer. Or, as often happens,

the candidate turns the table on us and we end up dominating the conversation. Come on . . . admit it. We have all “been there and done that” and end up scratching our heads wondering what just happened! And how about that 10 to 15 standardized list of questions many HR Departments want hiring managers to use? You know . . . same questions, same order, every time. Not that there is anything wrong with this but as Fry will demonstrate, the interviewer’s questions and the candidate’s answers need to be heading in a very specific direction with one clear objective; to hire the best candidate. This is where Ask the right Questions, Hire the Best People can prove invaluable to anyone responsible for the interview process.

Structure and Layout Taken directly from the book’s Introduction, “Chapters 1, 2, and 3 (and the first part of Chapter 4) explain what you need to prepare for before you talk to any candidate. The second part of Chapter 4 and Chapters 5 through 14 gets into the meat of the book- the questions you should ask and the answers you should expect to hear.” Fry also provides a helpful prompting tool; a “thumbs up” or “thumbs down” as a means for guiding and suggesting what we should be looking for in the candidate’s responses. Readers will find this positive and negative prompting causes us to rethink a particular direction the interview might be going down. While Ask the right Questions, Hire the Best People is purposefully structured as a front to back read, as most practical field guides tend to be, my opinion is readers will quickly find they may not need this approach. Quite honestly, each chapter stands on its own. The Table of Contents for example, has a very logical order. Yet regardless of experience, Chapter 12’s- Questions to Discover Hidden Objections and 13’s- Avoiding Legal Questions, are both worth perusing right off. HR Professionals out there . . . listen up! Ask the right Questions, Hire the Best People is worth the short time it will take to read and apply. I would call this ‘Interviewing 101’ and it should be part of every hiring manager’s core curriculum.

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Online SHRM-CP® | SHRM-SCP® Certification Exam Prep Class Online classes begin October 22 and will meet twice per week for 12 weeks on Monday and Wednesday evenings from 6:00 PM to 7:30 PM.

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The total cost of the SHRM-CP® | SHRM-SCP® Online Certification Exam Prep Class is $995 plus shipping You may pay by PayPal, credit card or check. Winter Exam Window December 1, 2018 - February 15, 2019 For more information visit shrmcertification.org Deadline to register is October 15 Contact cynthia@hrprosmagazine.com OR visit our website at www.hrprofessionalsmagazine.com About the instructor: Cynthia Y. Thompson is Principal and Founder of The Thompson HR Firm, a human resources consulting company in Memphis. She is a senior human resources executive with more than twenty years of human resources experience concentrated in publicly traded companies. She is the Editor | Publisher of HR Professionals Magazine, an HR publication distributed to HR professionals in Alabama, Arkansas, Florida, Georgia, Kentucky, Mississippi, and Tennessee. Cynthia has an MBA and is certified as a Senior Professional in Human Resources (SPHR) by the Human Resource Certification Institute and is also certified as a Senior Certified Professional by the Society for Human Resource Management. She is a faculty member of Christian Brothers University. Cynthia was appointed to a six-year term by Tennessee Governor Bill Haslam to serve on the Tennessee Board of Appeals in 2014. She was recently named SHRM-Memphis HR Executive of the Year. 50

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Why HR Departments Have Loved Holiday Gift Check for 30 Years Holiday Gift Check is celebrating 30 years of helping HR professionals say thanks to their employees at the holidays.

hirty years ago, the internet was in its infancy, we listened to music on Walkman’s, and most companies did business locally, with onsite employees who worked 9-5.

Now, thanks to technology, we do business around the world and are as productive from home or at Starbucks as we are in the office. However, one thing that hasn’t changed in thirty years, is the tradition of employers giving a meaningful gift to their employees at the end of the year. That’s why Holiday Gift Check has grown to become even more popular today as it did when it printed its first gift check back in 1989. Based just outside of Chicago, the Holiday Gift Check Program pioneered the turkey gift check idea. They now celebrate 30 years of helping companies say thank you to their employees and customers with the gift of a turkey, without the hassle and expense of storing and delivering frozen turkeys. Originally, Holiday Gift Check Program was named after a well-known turkey brand and the checks were only redeemable for their product. As customers asked for more flexibility, the company became Holiday Gift Check and the flexible gift check is redeemable for any brand turkey, ham or festive side dish for a holiday meal. Orders multiplied, and today virtually any supermarket in the U.S. and Canada accept the Holiday Gift Checks. Their newest redemption partner, HoneyBaked Ham, accepts Holiday Gift Checks nationwide at more than 400 of their HoneyBaked Ham Café stores for turkeys, delicious honey hams and side dishes.

How to Say Thanks

By KAREN DIX

“All employers want to express gratitude to all employees with a meaningful gift,” explains Richard D. Wirth, president and chief executive of Holiday Gift Check Program. “But with people working remotely and traveling more, it’s more difficult. Holiday Gift Checks are designed to provide an affordable, unique and easy way to deliver the gift of a turkey to anyone, anywhere!” Holiday Gift Checks are more practical than a token of appreciation that ends up in a desk drawer and more convenient than store gift cards from outlets who may go out of business or have inconvenient locations. Holiday parties are a wonderful gesture but may be difficult for remote employees to attend. Meanwhile, the old standby of cold, hard cash continues to convey little warmth or consideration for the person receiving it. “Holiday Gift Checks offer a unique alternative and we have distributed more than six million gift checks on behalf of more than 300,000 companies, both large and small, to continue this important tradition,” said Wirth.

Three Reasons HR Loves Holiday Gift Checks

Holiday Gift Checks have retained their popularity over 30 years because they meet the trifecta of qualities HR departments seek in a holiday gift: meaningful relevance, convenience and affordability.

Meaningful Relevance Holiday Gift Checks are designed to contribute to a holiday meal, bringing the family together when it’s convenient for them. That’s why Holiday Gift Checks remain steadfastly popular in industries where shift work separates employees from their families such as:

• Manufacturing • Hospitality • Tourist Attractions • Trucking and Logistics • Retail • Hospitals

Convenience Thirty years ago, customers relied on postcard reminders in August to signal it was time to mail order their Holiday Gift Checks. Today, Holiday Gift Checks are ordered online, making it fast and easy to customize the gift check with a holiday greeting, the company’s name and even each recipient’s name by easily uploading an Excel or Microsoft document. The program’s friendly and responsive customer service is based at their Illinois headquarters.

Affordability HR Departments appreciate that Holiday Gift Checks suit any budget and can be ordered in any denomination up to $50 with only a .90/check fee. Best of all, “leftover” checks can be refunded at full face value for no additional fee. During the holiday, they offer special seasonal and quantity discounts to their customers. The Holiday Gift Check is also affordable for the recipient. “Individuals redeeming Holiday Gift Checks will not incur an activation fee, like they do for using major credit card gift cards,” said Wirth. After 30 years, Holiday Gift Check is still going strong and offers exceptional customers service just like it did in the beginning.

To order Holiday Gift Checks for your employees this year, visit www.giftcheckprogram.com or call 630.986.5081.

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