January 2020 Issue by Cynthia Thompson

Volume 10 : Issue 1

www.HRProfessionalsMagazine.com

U.S. News Best Lawyers in Labor & Employment Law

5th Anniversary of SHRM Certifications

Sean

Employer Survival

Toolkit

Sullivan,

CHRO

Society for Human Resource Management

DOL

Fluctuating

Work Week Rules

2020 Employment

Projections

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 900 lawyers located in 54 offices across the United States and in Europe, Canada, and Mexico.

www.ogletree.com BIRMINGHAM OFFICE

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

1000 Highland Colony Parkway Building 5000 Suite 5203 Ridgeland, MS 39157 601.427.4127

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2020

Online HR Certification Classes

Bringing Human Resources & Management Expertise to You

58%

of employees quit their jobs due to bad culture. www.HRProfessionalsMagazine.com Editor Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher

The Thompson HR Firm, LLC Art Direction

Park Avenue Design Contributing Writers Alex Alonso Bruce E. Buchanan William Carmichael Matthew Courtner Harvey Deutschendorf Eric Ebbert Ken Gray Heather Hearne Stanislava Ilic-Godfrey Emily G. Massey Jerry Sayre Sonya Weathers Evan S. Weiss Janie Warner Frederick L. Warren Richard Works

Features

4 note from the editor 5 Profile: Sean Sullivan, CHRO, Society for Human Resource Management 9 WGU Bachelor’s or Master’s Degree Fully Aligned with SHRM’s HR Curriculum

16 Crafting a Reasonable Social Media Policy for Your Employees 23 Book Look – Bring Your Human to Work by Eric Keswin 24 HRO Partners Holiday Breakfast at Owen Brennan’s December 12 26 2020: The Year of Becoming 47 New Harvard Study Suggests the Most Effective Way to Teach Emotional Intelligence 48 2020 Employment Projections

Employee Benefits

15 Customized Benefits Solutions for HR Teams and Brokers 27 Benefits Expertise to Help Manage Costs, Mitigate Risk and Engage Employees 49 Living Your Best Life Means Having Life Insurance

Employment Law 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. ©2020 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.

7 Bass, Berry & Sims Labor & Employment Law Update in Memphis December 11

10 Is McDonald’s Liable to Employees for Customers’ Violence? 12 Déjà Vu: Waiting on Final Rule for Fluctuating Workweek Overtime…Again 14 Guidance on FLSA Compliance and Reimbursement for Expenses for Pizza Delivery Drivers 18 Get Ready for Medical Marijuana – New Jersey Shoots to the Lead 20 ADA’s “Regarded As” Test 22 Your Employer Survival Toolkit 46 ICE Actions Against Companies Harboring Undocumented Workers

U.S. News Best Lawyers in Labor & Employment Law 30 Ogletree Deakins

34 Wimberly Lawson

35 Wright Lindsey Jennings 36 FordHarrison

38 Bass, Berry & Sims

39 Rainey, Kizer, Reviere & Bell PLC 40 Cross, Gunter, Witherspoon & Galchus, P.C. 42 Littler

45 Ward and Smith

Industry News 6 SHRM-Atlanta SOAHR 2020 Conference March 23-25

8 SHRM Certification Celebrates 5 Years!

15 SHRM-Memphis Holiday Luncheon Meeting December 3 28 CHRO Thought Leadership Roundtable Event in Nashville December 5

29 CHRO Thought Leadership Roundtable Event in Memphis December 4

45 Online SHRM Certification Exam Prep Class Begins April 13, 2020 50 DisruptHR Memphis at the University Club December 10

52 SHRM Certification Spring Testing Window Announced February issue features Payroll and HR Technology PLUS Employment Law and Employee Benefits Update Deadline to reserve space January 15 www.HRProfessionalsMagazine.com

a note from the editor

are so excited to have Sean Sullivan, CHRO of the Society for Human Resource Management, on the cover of our January 2020 issue! Sean has over 25 years of experience in human resources strategy and operations. He has built his career across multiple industries, including health care, defense, technology, IT, and manufacturing, applying his expertise to help grow and support diverse business models. You can read more about Sean’s amazing career on Page 5.

Cynthia with Diane Heyman, Chief People Officer at ALSAC-St. Jude Children’s Research Hospital; and Ross Harris, CEO at C3 Freight Payment. Thank you for 10 years of service on our Advisory Board!

We have a preview of the 2020 SHRM-Atlanta SOAHR Conference that will be held on March 23-25, 2019 at the Cobb Galleria Centre in Atlanta on Page 6. You can pick up 19.5 SHRM-PDCs at this event! Remember that you do not have to be a member of SHRM-Atlanta to attend this fantastic conference where you can network with over 1000 HR professionals and industry experts. You can save $30 off the two-day registration with code HRPRO20! Register today!! We are presenting the 2020 U.S. News Best Lawyers in Labor and Employment Law in this issue. This is an excellent guide for those of you searching for assistance with employment law issues. If you see your favorite attorney is this special section, be sure and congratulate them on making this very prestigious list! If one of your New Year’s resolutions includes becoming a certified HR professional in 2020, you will be excited to learn that we are offering our next Online SHRM Certification Exam Prep Class in April. See Page 44 for details. Check our website for registration details. Be sure to watch your email for your invitation to attend our complimentary January webinar sponsored by Data Facts. Our topic will be “Designing Incentives to Increase Your Bottom Line.” You will earn 1.00 SHRM and 1.00 HRCI credit for attending. Best wishes for happy and prosperous 2020!

cynthia@hrprosmagazine.com @cythomps on Twitter

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on the cover

Sean

SULLIVAN

Sean Sullivan, CHRO, Society for Human Resource Management Sean Sullivan serves as the Chief Human Resources Officer and is responsible for providing human resources leadership, vision and service delivery for SHRM, the world's largest HR professional society. Sullivan has over 25 years of experience in human resources strategy and operations. He has built his career across multiple industries, including health care, defense, technology, IT, and manufacturing, applying his expertise to help grow and support diverse business models. Prior to SHRM, he was Vice President, Human Resources for Tufts Medical Center, an internationally respected academic medical center in downtown Boston. He was responsible for all aspects of human capital practices and labor relations in support of the healthcare, research, and teaching mission of the oldest permanent medical facility in the country. Under his leadership, Tufts Medical Center launched innovative initiatives in workforce development and diversity and inclusion while strengthening strategic partnerships with community-based organizations and enhancing equity in patient access to healthcare. Sullivan has held senior leadership positions for technology firms in the defense and intelligence industries, including senior vice president for human resources with Leidos, a global IT and technology firm. He led due diligence and integration efforts for international mergers and acquisitions. He helped establish the Leidos Relief Foundation and served as its first president. He played a key role in the re-design of the human resources function for SAIC when it was spun off from Leidos in 2013. Earlier in his career, Sullivan took on roles of increasing responsibility at Northrop Grumman and TRW, including the support of global business units in systems integration and manufacturing. With a passion for workforce development, he has been a guest speaker at the Close It Summit, the Colloquium on Global Diversity, the Work Rebooted Conference and other forums. He has been a member of Innovate+Educate's Innovative Business Hiring Council and the Healthcare HR Leadership Forum. He holds an MPA from the Maxwell School at Syracuse University, from which he also earned his undergraduate degree in political science. ď Ž

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2020

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• NEW Virtual Pre-Conference Session (included with your ticket) lets you dive into learning before the conference even starts • Top-notch speakers: Get key insights and actionable take-aways from leading experts and brands, including Google, Turner, Panasonic, Georgia Power, Metro Atlanta Chamber, Randstad, ADP and more • Go further with the hands-on, interactive Pre-Conference Workshops on March 23

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Labor & Employment Law Update:

Guidance for Managing Accommodations Issues Under the ADA Crescent Club Memphis December 11, 2019

1 Bass, Berry & Sims attorneys (L-R) Kimberly Veirs, Bob Horton, and Laura Mallory were the speakers for the event. 2 David Thornton, attorney with Bass, Berry & Sims; J.D. Thomas, Bass, Berry & Sims Business Development Manager; Catherine Norton, attorney with Bass, Berry & Sims

HR professionals attending the event at the Crescent Club.

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Dr. Alex Alonso speaking at the SHRM Volunteer Leaders Business Meeting in Washington, D.C. in November

Five Years In and What a Ride It’s Been! Why SHRM Certification Matters More than Ever By ALEXANDER ALONSO

If someone had asked me about creating a certification program five-and-a-half years ago, I would have bellowed with a loud guffaw, thinking there was no way we could make competency-based certification the new standard for HR. In full candor, part of me would have wondered how the profession might receive competency-based certification, having focused on other approaches for nearly four decades. The other part of me embraced the notion, thinking about the impact it could have FOR the profession. I stand completely in awe after seeing where we are five years later, and all we have accomplished to impact the future of the HR profession. Where are we, you ask? Consider the following statistics to demonstrate where competency-based certification has taken our profession: • More than 135,000 professionals have earned a SHRM credential since 2014 (that’s more than the attendance of any college football game EVER); • Over 3,000 organizations have joined the largest educational network dedicated to HR professional development, offering more than 140,000 ways to earn recertification credits; • Nearly 29,000 individuals will sit for a SHRM credentialing exam this year; • Supervisors of SHRM credential holders report increased operational efficiency and coordination among their teams, and best of all;

who, in 2016, said it was his familiarity with the SHRM Body of Competency and Knowledge (SHRM BoCK) that helped him prepare for the hardest part of his job when responding to a workplace violence incident. Each of these stories represents something special that I couldn’t have foreseen five years ago. Each one shows the enhanced value of a profession driven not to serve but to lead. While many credential holders will boast about the various accomplishments associated with earning their SHRM credentials, and my SHRM colleagues celebrate the vast impact across industry, I focus on something different. I sharpen my gaze on our biggest accomplishment—positioning the HR profession for what it really is. It is not a profession supporting the business. We are not business partners. We are the business. Talent is no longer a cliched saying printed on Lucite trinkets around the office. Talent is the core of the business—so much so that I dare you to find a CEO who doesn’t lose sleep at the thought of losing talent. CHROs know this better than anyone. Now, the rest of the profession follows. I want all SHRM credential holders to take a bow as you celebrate your achievements. But most of all, take a bow as you take your rightful place as business leaders with HR expertise driving organizations toward one mission— making better workplaces for a better world.

• SHRM credential holders report higher pay and promotion potential than their uncertified counterparts. While all of these are remarkable, perhaps more meaningful are the individual accomplishments I learn about during one-on-one interactions with SHRM-certified professionals—the personal achievements that have real meaning to their individual lives. Take for instance, the newly minted HR business partner at a well-known airline who shared her family’s elation at the career possibilities never dreamed of before. Or the vice president of talent acquisition at a central Florida hospital who credited her SHRM-SCP with preparing her for a much broader role in her organization. Or the HR generalist 8

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Alexander Alonso, PhD, SHRM-SCP Chief Knowledge Officer Society for Human Resource Management

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Is McDonald’s Liable to Employees for Customers’ Violence? By EVAN S. WEISS

a recent lawsuit, over a dozen Chicago-area McDonald’s employees allege that the fast-food company has enacted nationwide practices that have increased the daily risk of violence in their workplace. The lawsuit, filed in Cook County, Illinois, is asserted against McDonald’s Corporation and several area franchises.

The Factual Allegations

McDonald’s Store Ownership

The Complaint paints a grim picture of daily life under the golden arches. Among other incidents, Plaintiffs in the lawsuit assert that they have been subjected to threats of gun violence, pelted with thrown food items, pepper sprayed, had customers expose themselves, and have been groped. One Plaintiff reported being pushed against the wall while someone spit in her face, and another alleged being hit across the back with a “wet floor” sign. While the Plaintiffs only include employees in the Chicago area, the Plaintiffs allege that their experiences are part of a nationwide pattern at McDonald’s restaurants, with news reports of violence occurring at McDonald’s coming roughly every 36 hours.

Many fast-food and other chain retail establishments expand through the use of franchised stores. McDonald’s is no exception. According to the allegations in the Complaint, of the 130 Chicago-area McDonald’s, 100 are franchises, while the other 30 are owned by a subsidiary of McDonald’s.

The basis of Plaintiff’s lawsuit is that several of the company’s policies have negligently increased the risk of violence faced by employees. Specifically, the Complaint alleges that keeping the stores open late at night increases the risk of violent crime, but that the Company failed to adhere to best practices for operating a late-night business. For example, the Complaint alleges that McDonald’s recent efforts to lower or reduce counter space between customers and employees has eliminated a necessary physical barrier. Further, per the Complaint, the high volume of window advertisements reduces employee’s ability to see outside of the store. The Complaint also alleges that the training given to employees and managers, including at “Hamburger University,” is lacking. In particular, the Complaint states that employees do not receive even basic security training, and that some managers discourage reporting incidents to police out of a fear of harming business. 10

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While franchises may look, smell, and feel the same as corporate owned stores, the difference in ownership structure is often critically different with respect to legal issues. Generally speaking, a franchise store is owned by an individual or company that is separate from the company that owns the larger chain. A franchisee pays the chain for the license to use the branding, gain the know-how, and sell the products of the chain. Often, part of the franchising agreement is that franchisees follow certain standards and procedures set out by the chain, designed to guarantee a certain level of uniformity for customers going to stores owned by different franchisees. So, if you stop at multiple McDonald’s on a road trip, even if the stores are all owned by different people, the Big Mac at each will feature the same recipe of two all-beef patties, special sauce . . . you know the rest.

How Franchising Plays into Employment Litigation There are many reasons that factor into the decision of whether to utilize franchising agreements in expanding a business. One of the intended (but not always successful) goals is to limit the increased exposure to employee litigation that often comes with expanding business operations. Because newer stores will be owned by franchisees, the employees at those stores will work for the franchisee, and not the original business owner. In theory, therefore, the liability from employee-initiated litigation will fall on the franchisee. The Plaintiffs in the Complaint against McDonald’s allege several reasons why McDonald’s itself can be held liable for the litigation in question. First, the Complaint alleges a form of premises liability. Often, even where a store is

owned by a franchisee, the real estate is owned by a corporate arm of McDonald’s. In such cases, McDonald’s franchise agreements include a requirement to lease property from corporate McDonald’s for the store. The lawsuit also asserts that corporate McDonald’s is liable because it alleges that the harm here—an increased risk of workplace violence—is caused by the policies set by McDonald’s corporate that franchisees are required to follow per their franchise agreements. In particular, the Complaint alleges that McDonald’s has required franchisees to remain open later than most other fast-food franchises. Moreover, as detailed above, the complaint alleges that McDonald’s controls the physical design of each store. Despite requiring later hours, the Complaint alleges that the design of the stores ignores best practices for avoiding violence. Among other alleged deficiencies, recent specifications for redesigns have given customers easier access to cash registers, drive-thru windows permit access to customers, and bathrooms are not visible from the employee counter. According to the Complaint, franchisees may not alter the design of their stores without McDonald’s consent. Further, the Complaint asserts that corporate McDonald’s exercises control over employee training, but that such training has been inadequate to protect employees against workplace violence. In fact, the Complaint alleges that McDonald’s provides no training on workplace safety and violence. Perhaps most interesting, Plaintiffs allege that they are entitled to money damages against McDonald’s under Illinois’s workers’

compensation laws. Generally speaking, money damages are not available against employers under Illinois’s workers’ compensation system. The Plaintiffs assert, however, that as McDonald’s has disclaimed an employment relationship with employees through the use of franchisees, McDonald’s is not covered by that bar on recovery. If ultimately successful on this theory, Plaintiffs in similar circumstances may be able to have their proverbial apple pie and eat it too.

Takeaways As an initial matter, it is important to know that the litigation discussed herein is in its very early stages. The allegations are just, at this stage, allegations. Further, the legal theories advanced by Plaintiffs may ultimately prove unsuccessful. However, all employers can take away some important points from this litigation. First, while much of the focus in preventing employee litigation is on wage-and-hour compliance and discrimination and harassment training, there are many other areas of which to be mindful. In addition, franchising and other corporate structures may have many advantages, and may even limit some legal exposure, but none should be viewed as a magic bullet against employee litigation.

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

Martenson, Hasbrouck & Simon LLP focuses its practice

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n Final Rule o g in it a W : u Déjà V ertime…Again

Workweek Ov g in t a u t c u l for F

The

Department of Labor (DOL) is one step closer to finalizing its proposed clarification of fluctuating workweek rules. The public comment period on the Department’s Notice of Proposed Rule Making (NPRM) related to fluctuating workweeks closed on December 5. Thirty-seven comments were submitted on the proposed rule that, if finalized, would provide much-needed clarification and relief to employers. Specifically, the rule clarifies that “bonus, premium, and any other supplemental payments are compatible with the fluctuating workweek method of calculating overtime pay” (emphasis added). This single statement seeks to set straight more than a decade of confusion and contradictory rulings by courts. The concept of overtime is relatively straight forward. Unless an employee is classified as exempt, federal law requires that he or she be paid 1.5 times the individual’s regular rate of pay for all hours worked in excess of 40 in a week. The fluctuating workweek (FWW) method of paying overtime is slightly different and only available if certain requirements are satisfied. Under this variance to overtime rules, if an employee’s work hours fluctuate from week to week, the employer can provide that employee with a guaranteed salary each workweek, regardless of hours worked, provided that the salary is sufficient to compensate the employee at a rate in excess of the minimum wage and further provided that there is a clear and mutual understanding between the employer and employee that the fixed salary covers all of the employee’s straight time wages. The employee still gets paid overtime for all hours worked in excess of 40 in a workweek, but instead of overtime being paid at 1.5 times the regular rate, it is paid at 0.5 times the regular rate. Employers benefit from lower overtime costs while employees benefit from the predictable income level that a fixed salary provides. This year’s NPRM is déjà vu of a similar notice issued by the DOL in 2008 under the Bush administration in response to confusion among courts and employers as to whether additional payments (e.g., bonuses) violated the “fixed salary” requirement for the FWW. Just as here, 12

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By HEATHER HEARNE

the 2008 proposal similarly stated that bonuses and other incentive payments were not inconsistent with the fluctuating workweek method of payment. By the time the rule was finalized in 2011, however, both policy and president had changed, and the final version not only dropped this clarifying language but, in a drastic shift in the opposite direction, took the position that any additional compensation paid to an employee, be it a shift premium, production bonus or otherwise, was incompatible with the fixed salary requirement of the FWW method of payment. This single assertion created widespread confusion in the courts. Over the next eight years, courts attempting to determine whether particular additional payments violated the FWW requirements reached varying and often conflicting conclusions with many attempting to apply a court-contrived distinction between production and hours-based bonuses. Enter the most recent NPRM. Acknowledging that similar clarification was proposed in 2008 but not adopted, the DOL stated that it did not at that time believe courts needed the clarification and mistakenly concluded that the proposed clarification would be inconsistent with controlling Supreme Court precedent. In reintroducing the proposed clarification, the DOL acknowledged that “particularly in light of the 2011 Final Rule” and the courts’ reliance on “judicially crafted distinction between certain types of bonuses that the Department has never recognized,” clarification was essential. 29 FR 59590, 59591. Now that the public comment period has closed, the Department will review the comments submitted and (hopefully) finalize the NRPM with few if any changes. Though many of 37 comments submitted purport to oppose the NPRM, the vast majority of those criticisms are directed more generally at the FWW method of calculating overtime and not the NPRM’s proposed clarification thereof. Most common among these generalized criticisms are claims that the FWW method is difficult to explain to employees, difficult for most payroll systems to handle automatically, and bad for employee engagement because it pays employees a lower hourly rate the more overtime hours they work in a particular pay period. Critics of the NPRM in particular

contend that it runs afoul of legal precedent and will harm workers by incentivizing employers to lower fixed weekly salaries and shift compensation to bonuses and other incentive payments. Though it is true that some employers may seek to capitalize on the NPRM’s clarification as a way to reduce costs, many others may see it as re-opening the door to rewarding employees who, for example, work undesirable shifts. Indeed, proponents of the rule celebrate the possibility of being able to reward employees for hard work through bonuses, an option the current version of the rule deems inconsistent with the FWW method of payment. Additionally, while it is true that the FWW calculation results in progressively lower overtime rates as more and more overtime hours are worked, the DOL’s proposed clarification may actually mitigate this result. For example, take employee X who is paid a fixed salary of $1,000/week in addition to overtime under the FWW method. In week one, X works 50 hours and is paid an overtime rate of $10 hour: $1,000 divided by 50 hours equals $20/hour; $20 divided by 2 equals $10/hour. In week two, X works 60 hours, and his overtime rate drops to $8.33/hour: $1,000 divided by 60 hours equals $16.67/hour; $16.67 divided by 2 equals $8.33/hour. This is this the FWW method at work.

payment that is disallowed under the current rule but permissible if the NPRM is finalized. That additional payment has the effect of increasing X’s overtime rate from $8.33/hour to $8.75/hour: $1,050 divided by 60 hours equals $17.50/hour; $17.50 divided by 2 equals $8.75. Naturally, critics of the NPRM do not reference this type of calculation, nor do they mention that by reinvigorating use of the FWW method, employees in some industries may actually see an increase in their wages through additional overtime hours and bonuses that would not otherwise be available at small operations or those with a limited budget. While logic dictates that with few targeted objections to the proposal itself, the NPRM should be finalized without further changes, in light of the 2011 reverse of course and the fact that less than a year remains until the next presidential election, employers should refrain from making any major changes to their compensation structure until a final rule is issued. Additionally, any proposed revisions to employee compensation should be carefully checked against state wage and hour laws, as several states prohibit use of the FWW method entirely.

Now, consider that same employee, who in week three again works 60 hours, is still paid a fixed salary of $1,000/week, but now receives an additional $50 incentive payment for working overnight shifts—a

Heather Hearne, Shareholder The Kullman Firm hdh@kullmanlaw.com www.kullmanlaw.com

GO CONFIDENTLY. Bass, Berry & Sims listens and responds with creative yet practical counsel. We stay on pace with the complex and rapidly evolving employment landscape, connecting your dynamic human resources needs to proactive strategies. Relationships, reliability, and respect – at the center of our Labor & Employment and Employee Benefits practices.

Stay up-to-date on the latest in HR Law. Visit our blog at bassberryhrlawtalk.com.

Centered to deliver. bassberry.com

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“Better Ingredients, Better Pay?” Guidance on FLSA Compliance and Reimbursement of Expenses for Pizza Delivery Drivers By FREDERICK L. WARREN

Executive Summary On November 5, 2019, a federal district court in Ohio issued a decision clarifying the law governing whether owners of 73 Papa John’s franchised locations violated the Fair Labor Standards Act (FLSA) by failing to adequately reimburse their delivery drivers for expenses incurred in using their own vehicles to complete deliveries. In deferring to the Department of Labor (DOL) Field Operations Handbook, the court held that where employees are paid at or close to minimum wage and they use their own vehicles to make deliveries, the proper measure of minimum wage compliance for pizza delivery drivers is to either (1) track and pay delivery drivers’ actual expenses incurred or (2) pay the mileage reimbursement rate set by the Internal Revenue Service (IRS). See Hatmaker v. PJ Ohio, LLC, 2019 U.S. Dist. LEXIS 191790 (S.D. Ohio Nov. 5, 2019).

Synopsis of New Guidance The FLSA mandates that “[e]very employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce” a statutory minimum hourly wage, which must be paid “finally and unconditionally” or “free and clear,” pursuant to DOL regulations. See 29 U.S.C. § 206(a); 29 C.F.R. § 531.35. Furthermore, “[t]he wage requirements of the Act will not be met where the employee ‘kicks back’ directly or indirectly to the employer or to another person for the employer’s benefit the whole or part of the wage delivered to the employee.” 29 C.F.R. § 531.35. In Hatmaker, the court held that where a restaurant employee is paid at or close to minimum wage and uses his or her own vehicle to make deliveries on the job, the cost associated with delivering food is a “kickback” to the employer, which must be fully reimbursed; otherwise, the employer will trigger a minimum wage violation. The DOL has recognized the difficulty of maintaining records of a restaurant’s food delivery drivers’ actual expenses incurred in making deliveries by providing guidance on how to abide by the minimum wage laws in its Field Operations Handbook: either (1) implement a practice 14

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of keeping records of delivery drivers’ actual costs and reimburse for them or (2) reimburse drivers at the IRS standard business mileage rate (currently 58 cents per mile), which accounts for depreciation, maintenance and repairs, gasoline (including taxes), oil, insurance, and vehicle registration fees. The court reasoned that since the DOL regulation mandating that hourly wages be paid “free and clear” does not provide a methodology for valuing expenses relating to using a vehicle for work, it is appropriate to rely on the DOL Field Operations Handbook guidance because it provides clear and useful rules for employees to track and employers to follow. Granting the plaintiffs’ motion for partial summary judgment, the court held that the franchisees failed to pay their drivers the federal minimum wage, when the drivers used their own vehicles to complete deliveries and were paid at or close to minimum wage, without any expense reimbursement. Accordingly, the court held that as a matter of law, the proper measure of FLSA compliance in compensating pizza delivery drivers paid at or close to minimum wage is to either (1) track and pay delivery drivers’ actual expenses incurred or (2) pay drivers the IRS mileage reimbursement rate, in addition to the federal minimum wage.

Employers’ Bottom Line Restaurant employers offering delivery services have been given clear guidance as to how to comply with the FLSA federal minimum wage requirements when they pay their employees at or close to minimum wage: either (1) implement a practice of keeping records of delivery drivers’ actual costs and reimburse for them or (2) reimburse drivers at the IRS standard business mileage rate (currently 58 cents per mile) for each delivery completed.

Frederick L. Warren, Partner FordHarrison rwarren@fordharrison.com www.fordharrison.com

SHRM-Memphis Holiday Luncheon Meeting December 3, 2019 Holiday Inn â&#x20AC;&#x201C; University of Memphis

1 John Daniel, EVP Human Resources at First Horizon, was the guest speaker at the December Holiday Luncheon Meeting. He took a look back at the highlights in the HR profession during 2019, and what they mean going into 2020. 2 2020 SHRM-Memphis Board of Directors

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Crafting A Reasonable Social Media Policy for Your Employees By SONYA WEATHERS

Should you or shouldn’t you? HR asks this question all the time regarding social media. And the answer isn’t cut and dried. Every organization must decide the protocols they want to put, if any, in place, and how to write the policy so it’s fair to the employee and protective of the workplace. Does a company have a right to require or prohibit their employees from certain social media posts? And what are the consequences of breaking such a policy? Read on to have all your questions answered.

“ According to Pew Research, 63% of Americans say their company has no social media policy.” First, let’s talk about what HR shouldn’t do. Ask for passwords. Never, ever, for any reason ask employees for their social media passwords. It’s an invasion of privacy and can result in litigation. Managers should also be careful about “friending” their team on social media sites. A smart practice is to accept friend requests from subordinates if you like but avoid initiating the connection. “Call out” employees on social media. Judy takes a sick day. Judy posts a photo of herself at a pool party later that day. What should you do about Judy? Don’t reply to her photo saying “uh, you are in big trouble, lady”. Social media isn’t the place for reprimands. Wait until Judy comes back to work, talk with her about her actions, and lay out the consequences then. Now, let’s talk about what HR can do regarding a social media policy for employees. Seek input. Talk to the C-suite, hiring managers, supervisors, and, most importantly, your employment attorney 16

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as you’re creating your social media policy. Funnel these ideas into a cohesive document. Gear the policy toward legitimate business interests. It’s important to directly link your requirements to the company. Protecting its reputation, safeguarding its clients, and decreasing the impact of potential workplace conflict are all components that fit into such a policy. Clearly define what cannot be posted. Specific language is the best way for employees to understand exactly what is expected of them when they are sharing on social media. Racism, sexism, comments against religion, bullying, drug use, and malicious behavior should not be tolerated. Activities that would put the company in a bad light or those that are illegal should be included in the policy, too. Address posting confidential company, client, and employee information. Some people surprisingly believe their social media posts are private, and feel free to rant about their work life. While vague comments like “work was a beast today” are not typically forbidden, sharing proprietary information about the organization, its employees, and clients can be. Make it clear sharing this information on a public forum won’t be tolerated. Engage in transparent discussions encouraging good judgment when using social media. We ARE talking about adults here, right? During social media policy discussions and crafting the documents, reiterate using good judgment when deciding what to post on personal social media channels.

Discuss and ask them to remove the post. Meet with the employee, acknowledge you’ve seen the post, explain why it’s unacceptable, and ask them to remove it. Write them up. If the behavior continues, or if the employee refuses to remove the post, write them a warning and add it to their employee file. Suspend them. Send them home for 1-3 days. Terminate them. If the employee will not follow your social media policy and continues to post content that goes against the company’s policy, remove them from employment. Document the steps taken that lead to this decision. (Be sure to discuss this move with your employment attorney). There may be times when this process can’t be followed. If, for example, the employee is making threats of violence against managers, customers, or coworkers on social media, the prudent option may be to fire them immediately. Remember, it’s all about keeping the workplace safe and preserving the company’s reputation. Crafting a reasonable, compliant social media policy for your employees is challenging, if for no other reason than social media platforms are still The Wild West. By proactively addressing the goals HR needs the policy to meet, and identifying the behaviors that won’t be tolerated, your organization can feel secure that the risk of a social media post harming other employees, vendors, or the company itself are minimized.

Finally, here’s how to address unacceptable social media posts. It can be touchy deciding how to discipline an employee who posts inflammatory, confidential, or vulgar material to social media. It’s a good best practice to start with small actions and work up to larger consequences.

Sonya Weathers, National Account Executive Data Facts, Inc. sweathers@datafacts.com www.datafacts.com

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Get Ready for Medical Marijuana! New Jersey Shoots to the Lead By ERIC EBBERT

edical marijuana laws are not only spreading across America, but they are beginning to expand even further after they are passed. Currently 33 states plus the District of Columbia have legalized the medical use of marijuana. These states typically require patients to be certified by a physician and to register with the state. Some states also provide workplace protections to employees who lawfully use marijuana for medicinal purposes. In addition, ten states and the District of Columbia have approved recreational use of marijuana for adults who are 21 years and older. Some of these laws even allow individuals to grow their own marijuana. Thirteen of the 17 states (including Tennessee) that don’t allow medical use of marijuana have passed legislation to permit the use of cannabis oil. That means that only four states still prohibit the use of marijuana in any of its forms (Idaho, South Dakota, Nebraska, and Kansas). Federal law still prohibits distribution and possession of marijuana regardless of its use. In fact, a 2016 Drug Enforcement Administration rule reiterated that CBD is an illegal substance — just like other marijuana products — under federal law. Media coverage extolling the virtues of marijuana use — either medicinally or recreationally — often overlooks the adverse health effects associated with marijuana use and other social costs related to drug use including increased work injuries, increased medical costs, increased absenteeism from work, and less productivity while at work.

in hemp production during World War II, commercial industrial hemp production in the United States ended in 1958. Thereafter, Congress enacted the Controlled Substances Act of 1970 which categorized any product containing THC as a Schedule I drug. In 1996, California became the first state to legalize medical marijuana. See https://en.wikipedia.org/wiki/Timeline_of_cannabis_ laws_in_the_United_States. From there, other states followed. Then in 2004, the Ninth Circuit Court of Appeals held that the Controlled Substances Act of 1970 did not authorize the Drug Enforcement Administration to regulate sterilized hemp seed, fiber, and seed oil. Until that holding, those products were prohibited by the Act. Thereafter, hemp could be imported and used for certain products. In 2014, Congress enacted legislation that prohibited the Justice Department from interfering with state medical marijuana laws. Id. In 2018, the federal Farm Bill Act was enacted and de-scheduled hemp from the statutory definition of marijuana. See https:// en.wikipedia.org/wiki/2018_United_States_farm_bill. It also created a regulatory system for the production of commercial hemp. Id. The once-dead hemp industry grew into a $1.1 billion industry by the end of 2018 and is expected to double by 2022. See https://www.cnn.com/2019/04/09/success/hemp-farmer/index.html.

Recent Expansion of New Jerseys’ Medical Marijuana Law

How Did We Get Here?

In July of this year, New Jersey’s Medical Marijuana Law was expanded to increase the supply of marijuana and to make it easier for registered users to obtain it. Since Governor Murphy took office in January, he has worked to expand the program, and the number of registered users has more than tripled to exceed 59,000.

Industrial hemp was commonly used for the production of many products in our country dating back to 1645. America produced hemp for the British Crown, but shortly after the American Civil War, hemp production declined because cheaper substitutes came to market. Later, Congress passed the Marijuana Tax Act of 1937 with the intent of reducing marijuana production. This Act required hemp producers to register with the federal government. After a short spike

The latest legislation reduces the number of doctor’s visits from four to one per year to verify that the patient still qualifies under the Medical Marijuana Act. And patients can now purchase three ounces per month instead of two. In addition, terminal patients will have no limit on the quantity they can use. Nursing homes are now authorized to purchase marijuana on behalf of their residents. And registered marijuana users from other states will be permitted to

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purchase marijuana while visiting New Jersey. The new law will allow 24 more marijuana producing businesses to be licensed to increase the supply. And the Act phases out sales tax on marijuana so that it will be purchased tax-free by 2022. The Act also creates the New Jersey Cannabis Regulatory Commission to administer the new law.

Tennessee Law Tennessee permits the use of cannabis oil as long as it is derived from industrial hemp, not marijuana, and contains no more than .3% of THC. Despite the growing efforts to legalize medical marijuana, the Tennessee legislature has not enacted the required legislation. But its supporters are expected to try again next year.

Practical Tips 1. Know the Law The evolution of the New Jersey law underscores the importance of employers keeping up with the law in the states in which they operate. Not only are the laws not uniform, but they continue to evolve after the initial legislation has been enacted. Moreover, in some jurisdictions the laws expressly create employer liability for discriminating against card-carrying marijuana users. In some states, courts have found similar protections even though the legislation does not expressly provide the protections. Employers, therefore, must be aware of the laws and how courts have interpreted those laws to ensure that their policies do not violate those laws.

2. Consider Focusing Your Policies on Impairment Even though the majority of states have passed medical marijuana laws, none of the laws prohibit an employer’s right to discipline an employee for being impaired while at work. However, unlike alcohol, a positive drug test for marijuana does not necessarily mean that the employee was impaired at the time of the test. Evidence of marijuana use remains in the human body long after its effects have dissipated. So instead of having a policy that disciplines employees for a positive marijuana drug test, consider modifying your policy to discipline employees who are impaired while at work. These are common short-term symptoms of marijuana impairment: “panic, anxiety, poor muscle and limb coordination, delayed reaction times and abilities, an initial liveliness, increased heart rate, distorted senses, [and] red eyes.” See https://americanaddictioncenters.org/ marijuana-rehab/how-to-tell-if-someone-is-high. By being aware of the applicable medical marijuana laws and amending policies to focus on impairment, employers can avoid a new breed of discrimination claims.

Eric Ebbert, Attorney Wimberly Lawson Wright Daves & Jones, PLLC Knoxville, Tennessee Office eebbert@wimberlylawson.com www.wimberlylawson

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ADA’s

“Regarded As” Test By MATTHEW COURTNER

Employers across America are undoubtedly familiar with the Americans with Disabilities Act (“ADA”). Under the ADA, it is unlawful for an employer to “discriminate against a qualified individual on the basis of a disability.” 42 U.S.C. § 12112(a) (2019). Although those unfamiliar with the ADA would expect the determination of a “disability” to be perhaps obvious and routine, that is often not the case. Under the ADA, “disability” is defined as: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a records of such an impairment; or (C) being “regarded as” having such an impairment.” 42 U.S.C. § 12102(1) (2019). Under the ADA, an employee or prospective employee satisfies the regarded as prong if he or she “establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A) (2019). In this article, we will examine the scope of the “regarded as” prong for future disabilities. As you would likely expect, the ADA seeks to broadly define what conditions qualify as a “disability.” However, the Seventh Circuit Court of Appeals and the Eleventh Circuit Court of Appeals both recently placed a limit on an employer’s liability for regarding an employee or prospective employee as being disabled. We will first briefly examine the facts of each case and then the Seventh Circuit and Eleventh Circuit’s legal reasoning.

E.E.O.C. v. STME, LLC In E.E.O.C. v. STME, LLC, Kimberly Lowe (“Lowe”) worked at Massage Envy as a massage therapist. E.E.O.C. v. STME, LLC, 938 F.3d 1305, 1311 (11th Cir. 2019). In September 2014, Lowe asked for time off to visit her sister in Ghana. Id. Massage Envy’s manager initially approved Lowe’s time off, but three days before she was to leave, one of Massage Envy’s owners, Ronald Wuchko, advised Lowe that Massage Envy would terminate her if she went to Ghana. Id. Because there had been an Ebola outbreak in neighboring countries, Wuchko feared that Lowe would contract the Ebola virus and bring it back to America. Id. Because Lowe declined to cancel her trip, Wuchko terminated Lowe’s employment. Id. Lowe went to Ghana and did not contract the Ebola virus. Id. Upon her return, even though she did not have the Ebola virus, Massage Envy did not allow Lowe to return to work. Id. Lowe filed a charge of discrimination with the Equal Employment Opportunity Commission (“E.E.O.C.”), alleging that Massage Envy discriminated against her because it “‘perceived [her] as disabled or . . . as having [the] potential to become disabled,’ in violation of the ADA.” Id. at 1312. 20

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Shell v. Burlington Norther Santa Fe Railway Company In Shell v. Burlington Northern Santa Fe Railway Company, Ronald Shell (“Shell”) began working at Corwith Rail Yard in 1977, but in 2010 Burlington Northern Santa Fe Railway Company (“BNSF”) assumed control of Corwith Rail Yard. Shell v. Burlington Northern Santa Fe Railway Company, 941 F.3d 331, 333 (7th Cir. 2019). Although Shell’s employment ended, BNSF invited Shell and others to reapply. Id. at 334. Shell applied for work as an equipment operator, which was a “safety-sensitive position because it require[d] working on and around heavy equipment.” Id. After an initial review of his application, BNSF made a job offer to Shell, contingent in part upon Shell passing a medical examination. Id. BNSF’s chief medical officer completed the medical evaluation. Id. The physical exam revealed that Shell’s height was five feet and ten inches and his weight was 331, yielding a body-mass index (“BMI”) of 47.5. Id. Based on BNSF’s policy, the chief medical officer determined that Shell was not medically qualified for the position. Id. BNSF’s policy prohibited hiring applicants with a BMI rating of 40 or more for safety-sensitive positions. Id. BNSF’s reasoning was that such a BMI qualified as “class III obesity” putting these individuals “at a substantially higher risk of developing certain conditions like sleep apnea, diabetes, and heart disease” of which a sudden onset “can result in sudden incapacitation.” Id. Consequently, BNSF believed that these workers were at risk of having a sudden onset and possible incapacitation, which would be dangerous if it occurred while the worker was operating dangerous equipment. Id. Consequently, BNSF rescinded Shell’s job offer. Id. Shell sued BNSF, arguing that it discriminate against him because BNSF regarded him as disabled. Id.

Legal Analysis In both cases, Massage Envy and BNSF took an adverse employment action based on their perceived possibility that Lowe and Shell—who had no actual disability at that time—may develop a future condition, which could impair their ability to perform an essential function of the job.

Lowe and Shell argued that Massage Envy and BNSF, in turn, regarded them as having a disability and, thus, their adverse action violated the ADA. The Seventh Circuit and Eleventh Circuit thus had to decide whether the “regarded-as” prong covers an employer’s reliance on a potential for a future disability. The Seventh Circuit and Eleventh Circuit first examined the language of the ADA. The courts concluded that the text of the ADA evidenced that the ADA covered only conditions that were current and actual at the time of the alleged discrimination or retaliation. STME, LLC, 938 F.3d at 1315-1317; Shell, 941 F.3d at 336-37. For instance, the ADA’s use of the phrase “being regarded as having a physical or mental impairment” indicates that the ADA was intended to include only current conditions—not future conditions. STME, LLC, 938 F.3d at 1315-1316; Shell, 941 F.3d at 336. As the Seventh Circuit explained, the use of the word “having” means “presently and continuously” and, thus, “does not include something in the past that has ended or something yet to come.” Shell, 941 F.3d at 336. In addition to the ADA’s text, the courts concluded that the EEOC’s own guidance supported this conclusion. STME, LLC, 938 F.3d at 1317; Shell, 941 F.3d at 337. For instance, the appendix to the ADA’s regulations, which the EEOC promulgated, states that “‘characteristic predisposition to illness or disease’ does not constitute a physical impairment under the ADA.” STME, LLC, 938 F.3d at 1317 (quoting 29 C.F.R. Pt. 1630, App. § 1630.2(h)). Therefore, the Seventh and Eleventh Circuits uniformly held that an employer cannot discriminate against an employee or prospective employee based on the employer’s perception of a risk for a future disability.

Conclusion The Seventh Circuit and the Eleventh Circuit are not alone in this conclusion. The Eighth Circuit, Ninth Circuit, and Tenth Circuit have also concluded that the ADA only covers current disabilities, not future impairments. See Morriss v. BNSF Ry. Co., 817 F.3d 1104 (8th Cir. 2016); E.E.O.C. v. BNSF Ry. Co., 902 F.3d 916 (9th Cir. 2018); and Adair v. City of Muskogee, 823 F.3d 1297 (10th Cir. 2016). Consequently, under these cases, the ADA’s “regarded as” prong only covers discrimination based on current disabilities. However, although the Circuit Courts who have faced this issue agree that future disabilities are not covered, the E.E.O.C. does not appear to be accepting this conclusion. In both STME, LLC and Shell, despite its interpretative guidance to the contrary, the E.E.O.C. argued that the ADA’s regarded-as prong includes potential future conditions. Thus, employers in a circuit that has not addressed this issue should be aware that the E.E.O.C. is likely to pursue enforcement actions to extend the “regarded as” prong to include future disabilities.

Matthew Courtner, Attorney Rainey, Kizer, Reviere & Bell, PLC mcourtner@raineykizer.com www.raineykizer.com

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Survival Toolkit It is said that an ounce of prevention is worth a pound of cure. Although it is practically impossible to be fully prepared for any bad weather or natural disasters, such as a hurricane, earthquake, flood, or fire, it is important for employers to be aware of employment laws that may be implicated in such situations. Employers should consider adding or refining the following tools in advance of the next natural disaster or adverse weather event.

Ensure Wage and Hour Compliance A common question is whether or not employers are required to pay employees when the weather is bad, or the office is closed. The answer depends on the type of employee and the employer's policies. Employers are not required to pay employees who are not exempt and are paid on an hourly basis under the Fair Labor Standards Act (FLSA) when the employee does not come to work. Therefore, if the office is closed for all or part of a workday, the employer only needs to pay the non-exempt employee for the time during which he or she was actually at work. However, an employer's policy may allow or require the non-exempt employee to apply PTO or vacation time when absent due to adverse weather or the office being closed. Additionally, employers with flexible work policies may permit employees to work from home instead of coming into the office. In this situation, it is important to remember that the employer must pay if the non-exempt employee performs work while away from the officeâ&#x20AC;&#x201D;whether on his or her own accord or at the employer's request. As another option, employers may institute a policy that they will pay all employees when the office is officially closed. On the other hand, employers must pay employees who are exempt under the FLSA when the employee does not come to work due to office closure if the exempt employee works at all during that particular workweek. Under the FLSA, if an employee is "ready, willing and able to work," then the employer typically cannot deduct from an exempt employee's salary during any workweek in which the employee performs any work. Employers may, 22

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however, deduct from an exempt employee's salary for absences of one or more full days due to personal reasons, other than sickness or accident. In this context, if the office is open and the exempt employee chooses not to come to work for a full day, the employer could deduct a full day from the employee's salary. If the employee is absent for only a partial day, the employer cannot make any deductions. However, as already mentioned, the employer could permit or require employees to apply PTO or vacation and/or allow for flexible working away from the office.

Implement an Inclement Weather Policy Considering the potential wage and hour issues, having an inclement weather policy is a helpful tool for employers. The policy should clearly state whether or not non-exempt hourly employees (1) will receive pay for missing work due to an office closing and (2) must apply accrued PTO or vacation time if the office is closed or if the employee is unable to come to work due to weather conditions. The policy should state who employees must contact if they are unable to work due to weather conditions. An inclement weather policy is also helpful in reinforcing to employees that they should keep their safety in mind so that employees do not feel compelled to put themselves in danger to get to the office.

By EMILY G. MASSEY

set expectations, the policy should state that the employer may or may not be able to return the employee to the same position following the leave of absence.

Prepare for Military Absences During a natural disaster, employees who are part of the National Guard or other uniformed services may be called into active duty. Unlike training, orders for active duty during a natural disaster are likely not scheduled, so employers should be prepared to not have access to applicable employees in such situations. Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), advance notice is typically required for military leave, but advance notice is not usually possible during a natural disaster, national emergency, or other military necessity. USERRA requires that employers allow for unpaid military leave and not discriminate against employees based on their need to take such leave.

Help Distressed Employees If an employer wishes to assist employees negatively impacted by a natural disaster financially, Section 139 of the Internal Revenue Code provides a way for employers to pay for essential needs without creating additional taxable income to the employee.

Consider Unpaid Leaves of Absence

Conclusion

In the unfortunate situations where employees are affected by a natural disaster or related issues, employees may need to be away from work to attend to personal matters unrelated to sickness or injury. In this situation, employers need to have clear policies in addressing related leaves of absences. Many employers choose to have an unpaid leave of absence policy that allows employees a certain amount of time away from work, without pay, due to personal reasons. Such policies include, for example, how to apply for and seek approval of unpaid leave, whether or not the employee is required to apply any earned PTO or vacation time to the leave, and whether or not the employee may choose to continue his or her benefits during leave. To appropriately

While we can only hope that the next natural disaster is far away and that winter will not come, employers will be better prepared if they revisit issues that pop up during inclement weather. Now is the time to create or revise employee policies so that your survival toolkit is stocked before the next storm.

Emily G. Massey Attorney, Ward and Smith, P.A. egmassey@wardandsmith.com www.WardandSmith.com

Bring Your Human to Work By WILLIAM CARMICHAEL

Whether we like it or not, an unparalleled shift in how we define our relationships at work is upon us. I do not say this lightly either. It simply is. In this age of unlimited technology and the unprecedented use of social connections available to us at work, a reassessment of how we work is emerging. A new paradigm, if you will. Think about it this way. How we interact with one another at the office is different now from, say, ten years ago, or even five for that matter. Workspace design, workplace behaviors, how we conduct faceto-face interactions as well as communicate with one another, all have changed workplace culture. Standard meeting protocol now seems to require the use of iPhones all around. Whatever happened to just listening and taking notes? And in another example, the number of people working remotely is leaving companies struggling with whether or not to even have a central office. Organizations of all sizes are being forced to redefine their culture in terms of human collaboration. And what is the reallife balance in a world where the virtual and the real are blurred? Erica Keswin tackles these aspects in her new book, Bring Your Human to Work: 10 Sure Fire ways to Design a Workplace That’s Good for People, Great for Business, and Just Might Change the World.

and the race for young, very-much-in-demand talent.” Bring Your Human to Work covers the behaviors that managers should encourage to create a good work space; one that is inviting and genuine. It is worth noting that an inclusive work environment is crucial for creating community and critical in maintaining that community feeling even when people are speaking through a computer or smartphone to get stuff done. Given the rising percentage of remote work and debates about the merits of open space work places, Keswin’s choice to focus on human interaction is instantly savvy and timely.

The Need for a Human Workplace Culture! Let’s face it, the culture of an organization is important and regardless of how measured, remains one of the most critical factors that determine how an organization can survive. In Bring Your Human to Work, Keswin identifies and explains ten ways to establish and then strengthen a rich, human culture. The specific initiatives are best revealed within the narrative, in context, but they are directly relevant to all organizations, whatever their size and nature. Well-written and immediately applicable, Keswin distills the key building blocks of the most human companies into relevant advice that any business leader can use to build a “human workplace.” These building blocks include: - Understanding your company’s role in the world, beyond financial profit. - Encouraging employees to be healthy in body and spirit. - Running your meetings with clear purpose. - Making space for face-to-face interaction. - Building professional development into company culture. - Inspiring your workforce to give back to the community. - Simply saying “thank you.”

What is Bring Your Human to Work About? According to the author, the phrase “bring your human to work” means bringing humanity to work and enriching a workplace culture “where people can feel like they are plugged into something bigger than themselves — that’s a human culture. That’s the kind of place that businesses need to create if they want to succeed in this purpose-driven marketplace

The book focuses in particular on what constitutes a successful life balance; creating relationships with others and ourselves. For example, when Keswin writes about developing work behaviors, she notes how holistic the strategy must be to be successful and I especially like the way she puts it - “To stay ahead of the curve — to play the long game — we must craft vital, intentional work practices that account for the complexity of people’s real lives. This crafting must consider all the people our business impacts, which means all stakeholders, including our employees, our customers, and our partners. The long game is broad and inclusive, spanning our macro, and micro spheres of influence.”

Keswin asserts, and I agree, that “people crave work-life balance, sustainable work practices, and authentic, purpose-driven work cultures. Bringing our human to work will help us manage our technology and ourselves, too.”

Structure and Layout I found this book to be extremely user-friendly. By that, adaptable and relatable regardless of industry yet thoroughly researched. At ten short chapters, readers will find Bring Your Human to Work easily read over a weekend. Though each chapter stands on its own I highly recommend reading it straight through. As a teaser, allow me to provide a quick synopsis of just two I found refreshing. Chapter OneBe Real: Speak in a Human Voice, where Keswin tackles the importance of finding your company’s real voice and appreciating the value of values. And Chapter Seven- Disconnect to Reconnect: Where There’s a Will, There’s a Way, where she describes the absolute need for each one of us to take a mental break from “the constant stimulation of productivity” we face in our work lives. What readers will also appreciate are the takeaways or ‘Human Action Plans’ that end each chapter as well as the Keswin’s effective use of ‘Spotlights’; real people, places, and things that bring her suggestions to life. It is obvious that this author has truly seen it all and wants us to experience it. If you can’t tell, I liked this one and I think you will too!

Who Will Benefit Most from This Book? Organizational management, Senior management, Human Resource and Training professionals About the author: Erica Keswin is a workplace strategist, business coach, and the founder of the Spaghetti Project, a platform devoted to sharing the science and stories of relationships at work. She contributes regularly to Forbes, the Harvard Business Review, Entrepreneur, and Quartz at Work.

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

Members of the HRO-Partners Team (L-R) Clint Brown, Kara Doyle, Austin Baker, Holly Deville, and Arsen Petrosyan

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Holiday Breakfast December 12, 2019 Owen Brennanâ&#x20AC;&#x2122;s in Memphis

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2020:

The Year of Becoming

By JANIE WARNER

It was more than 40 years ago, but I remember it as if it were yesterday. One of my favorite (and influential) teachers I ever had wrote in my yearbook: “What you are to be, you are now becoming.” Heavy stuff for a junior high student – but sage advice for the future me. As we enter this New Year, we are busy taking care of all the minutiae of a new cycle of business and perhaps making changes to meet the challenges unique to a booming economy and low unemployment. We may be at a point in our careers where we think less about who we want to be and are just moving along with who we are today. It’s still important to vision who we want to become – and to realize that, much like the sage advice of Mr. Cecil Brown, we are NOW working on that future self – even if we aren’t doing so consciously. In the fresh start of 2020, let’s stop for just a few minutes and think about WHO and WHAT we want to be – not just this year, but in the years to come. Here are a few ideas on getting that momentum moving in a forward direction: PERSONAL VISION Are you where you envisioned yourself career-wise when you started? Whether you are two years in or twenty five years into your career, you probably had certain aspirations and goals you thought you would have achieved by now. Stop and articulate those goals again. If you aren’t on the path you once thought you wanted to be, are you okay with that? Or do you still have dreams about a different work life? If you are satisfied with the direction your career has taken, where do you want to go next? If you aren’t happy that you took a career detour, how can you get back on track? GOAL SETTING What are you career goals? You never get too old to have goals! In fact, when you quit dreaming of the future, you are essentially limiting your life. If it’s been a while since you set goals for your career path, start now. Start a journal – or a blog – or any other method of holding yourself accountable. This is NOT a New Year’s resolution. This is a well thought out goal setting exercise that sets the path from where you are to where you want to be. The important thing is to start. NETWORKING Sometimes we only network for purposes of business opportunities for our employer – but not for ourselves. Seek out networking opportunities in areas you have the most interest. Refer to your vision and goals as your guide. Think you want to completely change careers? Seek out and talk to others who have had major career changes. Look for people in the career you think would be a good fit for you. Talk to them about their job satisfaction and the challenges they have. Do not get so consumed with busy work that you ignore this important aspect of your own development. PURPOSE TO LEARN Most professionals are keenly aware of the need to stay on top of the information that drives their field of expertise. Part of the process of “becoming” involves being purposeful about that learning process. If it is not a priority of your day, it will get put on the back burner and you may miss some important information that will place you in the unenviable position 26

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of being uninformed. Moving forward in any career field involves a drive for life-long learning. For many true professionals, even after retirement, they seek to stay in the loop of what is happening in their field. If you think you don’t have the time, you won’t. Set aside time EVERY DAY to read, listen to podcasts, attend a webinar – anything that will further your knowledge. It is the greatest irony that we often set aside our own career development because our career gets in the way. PURPOSE to learn. When it becomes a daily habit, you won’t believe what you can become. SHARE THE WEALTH We can strengthen our own knowledge by sharing with others. If you have ever had to teach a class, write an article or present information in any other way, you know that you learn something in the process. Do you avoid opportunities to share your expertise? Or do you actively look for ways to talk about your passion? BECOME PASSIONATE ABOUT YOUR JOB Lastly, if you aren’t passionate about the work you do, it will always seem like a chore. To be certain, all jobs/ careers/vocations have moments of the mundane, the menial and the dreaded. However, if you overall feel passionate about the work you do, it will show. It will be obvious to those who follow you and those who listen to you that you truly care about your career path. You will want to share what you have learned through trial and error and purposeful learning. Your passion may just be the spark someone else needs to kick start their own journey. Passion is contagious – spread it around! If your desire is for 2020 to be the start of something new – or if you are just looking for inspiration to keep pushing toward your goals, start now. You have 365 days until 2021 – and who you are to be THEN, you are becoming TODAY. Make your time count. Become who you desire to be. You will be glad you didn’t let another day get away from you.

Janie Warner, SHRM-SCP, National HR Practice Leader McGriff Insurances Services, Inc. Janie.warner@mcgriffinsurance.com www.mcgriffinsurance.com

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CHRO Thought Leadership Roundtable Event Mere Bulles in Brentwood, TN December 5, 2020 Mere Bulles in Brentwood, TN, was the setting on December 5 of the 4th CHRO Thought Leadership Forum led by Cindy Olson, Chief Human Capital Strategist and co-founder of the Choice Strategic Alliance. This organization in partnership with ADP is bringing World Class Thought Leaders to Senior HR Leaders across the country. Brad Mandacina with Lockton was the guest speaker. His topic was “HR Tech Trends.” This CHRO Thought Leadership Community, consisting of almost 400 C-Suite leaders, is being developed in seven cities across the country with the goal of bringing Insights of Next Gen and Future Technology capabilities to CHRO’s and even CIO’s and CEO’s. With so many challenges facing the business, the goal of these forums is to elevate these critical functions in their organizations to address the many business opportunities that companies are facing with respect to “Talent” and the “Future of Work.” These events are exclusive to the C-Suite and by invitation only with the vision of helping as many CHRO’s as possible bring Business Transformation to their organizations. If you would like to be involved, please contact Cindy Olson at colson@choicestrategicalliance.com.

6 1 Brad Mandacina with Lockton and Cindy Olson with Choice Strategic Alliance 2 Susan Byrd of Specialty Care, Jeff Phelps with ADP, and Debbie Respess, Executive Coach 3 Brad Mandacina with Lockton was the guest speaker. 4 Nicole Roelson, Executive Consultant, and Terry Trigg with CHS 5 Greg McNair with Ascension and Shannon Stevens with Specialty Care 6 Kelli Myers with ADP and Matt Gregory with Lockton 7 Donnie Sutton with ADP and Alice Finn of First Bank

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8 Angela Dunn of Genesco and Brad Mandacina of Lockton

CHRO Thought Leadership Roundtable Event Crescent Club, Memphis, TN December 4, 2020 The first CHRO Thought Leadership Forum led by Cindy Olson, Chief Human Capital Strategist and co-founder of the Choice Strategic Alliance. This organization in partnership with ADP is bringing World Class Thought Leaders to Senior HR Leaders across the country. Cindy, who is the former CHRO with Enron, spoke on “The Collapse of a Culture . . .Lessons Learned from Enron.” This CHRO Thought Leadership Community, consisting of almost 400 C-Suite leaders, is being developed in seven cities across the country with the goal of bringing Insights of Next Gen and Future Technology capabilities to CHRO’s and even CIO’s and CEO’s. With so many challenges facing the business, the goal of these forums is to elevate these critical functions in their organizations to address the many business opportunities that companies are facing with respect to “Talent” and the “Future of Work.” These events are exclusive to the C-Suite and by invitation only with the vision of helping as many CHRO’s as possible bring Business Transformation to their organizations. If you would like to be involved, please contact Cindy Olson at colson@choicestrategicalliance.com.

4 1 Cindy Olson, Chief Human Capital Strategist and co-founder of the Choice Strategic Alliance, was the guest speaker. 2 Jeff Phelps and Alanna Brooksbank with ADP 3 Vanessa Frazier with MIFA and Judy Bell, HR Consultant 4 Tracy Moore with Hunter Fan and Yvette Brooks with Methodist LeBonheur Healthcare 5 Mark Coomes with Monogram Foods and Drew Morton with Wright Medical 6 Sarah Spinharney with Strategic Behavioral Health 7 Malcolm Boyd with the Memphis Zoo and Jeffrey Fendley with Walgreen’s 8 David Zaleski with the Catholic Diocese and Randy Rocha with Comprehensive Pharmacy

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2020 U.S. News

Best Lawyers

in Employment Law

OGLETREE DEAKINS

NASHVILLE

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 nine consecutive years. In 2020, the publication named Ogletree Deakins its “Law Firm of the Year” in the Labor Law – Management and Litigation – ERISA categories. Ogletree Deakins has more than 900 attorneys located in 54 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.

TOM DAVIS, a shareholder in Ogletree Deakins’ Nashville office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Davis was listed in the Labor Law – Management category. Davis represents employers in all aspects of employment law matters with a primary focus on the area of traditional labor law. Davis advises clients on compliance with various aspects of the federal laws, including the Fair Labor Standards Act and state restrictive covenant laws.

MEMPHIS DONNA FISHER, of counsel in Ogletree Deakins’ Memphis office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2020. Fisher was listed in the Employment Law - Management category. Fisher has over thirty-five years of experience in representing management in labor and employment matters with an emphasis on advice and preventive activity. She has been active in leadership roles in the community having served on numerous boards and commissions. TOM HENDERSON, a shareholder in Ogletree Deakins’ Memphis office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Henderson was listed in the Employment Law Management, Labor Law - Management, and Litigation - Labor and Employment categories. He has represented management in employment and labor relations matters for over 30 years. He has served as lead counsel in numerous jury trials in state and federal courts across the nation. KIMBERLY HODGES, a shareholder in Ogletree Deakins’ Memphis office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2020. Hodges was listed in the Employment Law - Management category. She is the managing shareholder of the Memphis office. Throughout her sixteen years as a litigator, Kim has amassed a wealth of employment and commercial litigation experience and defended corporate clients as first-chair counsel in state and federal courts across the United States. 30

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KEITH FRAZIER, a shareholder in Ogletree Deakins’ Nashville office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Frazier was listed in the Employment Law - Management and Labor Law - Management categories. 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 in both state and federal courts, and he has experience trying collective actions in federal court before a jury and in an arbitration setting.

JONATHAN HARRIS, a shareholder in Ogletree Deakins’ Nashville office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Harris was listed in the Employment Law - Management and Litigation – Labor and Employment categories. He is the Managing Shareholder of the Nashville office. Harris represents management in a wide variety of employment-related matters. In addition to defending single-plaintiff lawsuits, Harris also represents employers in class and collective actions. He has handled countless EEOC charges and defended employers in lawsuits brought by the EEOC.

JOHN HARRISON, a shareholder in Ogletree Deakins’ Nashville office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Harrison was listed in the Employment Law - Management category. He is Board certified as a labor and employment law specialist by the Texas Board of Legal Specialization. His practice is devoted exclusively to the representation of employers in matters of personnel policies and practices, labor and employment litigation, wage-hour compliance and other workplace issues.

TIMOTHY PALMER, a shareholder in Ogletree Deakins’ Nashville office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Palmer was listed in the Employment Law - Management, Labor Law - Management, and Litigation - Labor and Employment categories. Palmer is an experienced litigator specializing in both employment litigation and general civil litigation in state and federal courts. His practice focuses on the defense of employment litigation including discrimination claims, defense of personnel actions, and defense of employee benefit disputes. JENNIFER RUSIE, a shareholder in Ogletree Deakins’ Nashville office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2020. Rusie was listed in the Litigation - Labor and Employment category. Rusie represents management in the area of labor and employment law with an emphasis on employment litigation, including cases involving Title VII, the ADAAA, ADEA, FMLA, FLSA, common law wrongful termination, and restrictive covenants. Additionally, approximately half of Rusie’s practice is devoted to Title III of the ADA - both architectural issues and website accessibility. WILLIAM RUTCHOW, a shareholder in Ogletree Deakins’ Nashville office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Rutchow was listed in the Employment Law - Management and Litigation - Labor and Employment categories. Rutchow currently concentrates his practice in three areas: Workplace Safety and Health, Unfair Competition/Trade Secrets, and Employment Litigation. He also has experience in commercial litigation, personal injury litigation, and NLRB proceedings. LIZ WASHKO, a shareholder in Ogletree Deakins’ Nashville office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2020. Washko was listed in the Employment Law - Management and Litigation - Labor and Employment categories. Washko is co-chair of the firm’s Pay Equity practice group. Washko represents management in a wide variety of employment matters both at the agency level and in litigation, including discrimination, harassment, retaliation, FMLA and FLSA cases. LUTHER WRIGHT, JR., of counsel in Ogletree Deakins’ Nashville office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Wright was listed in the Employment Law - Management and Litigation - Labor and Employment categories. He has significant experience in the areas of labor and employment law, corporate business litigation and complex litigation, including class action and collective action lawsuits. He typically represents management in all forms of employment discrimination litigation, including litigation based on federal anti-discrimination statutes, state statutes and common law, violence in the workplace, Fair Labor Standards Act claims and independent contractor disputes.

BIRMINGHAM GORDON BLAIR, a shareholder in Ogletree Deakins’ Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Blair was listed in the Employment Law - Management and Litigation - Labor and Employment categories. 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 Gordon’s practice is focused on the representation of employers in workplace-related matters, ranging from administrative proceedings to federal litigation.

BRIAN BOSTICK, a shareholder in Ogletree Deakins’ Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Bostick was listed in the Employment Law - Management and Litigation - Labor and Employment categories. He has considerable experience representing employers in employment-related litigation in both federal and state courts. He has defended employment lawsuits pending before each of the federal districts in Alabama, the Alabama Supreme Court, the Eleventh Circuit Court of Appeals and the United States Supreme Court.

CARIN BURFORD, a shareholder in Ogletree Deakins’ Birmingham office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2020. Burford was listed in the Litigation - Labor and Employment category. Burford represents management in employment-related litigation concerning claims of discrimination, harassment, retaliation, unemployment compensation, wage and hour, and workers’ compensation. Ms. Burford also regularly provides training on issues such as employee discipline, harassment and workplace violence prevention, litigation avoidance, and workplace policies and procedures.

SCOTT KELLY, a shareholder in Ogletree Deakins’ Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Kelly was listed in the Employment Law - Management and Litigation - Labor and Employment categories. Kelly provides practical solutions for federal contractors and subcontractors across the United States to comply with the ever-changing affirmative action obligations imposed by doing business with the federal government. Kelly assists manufacturing, transportation, construction, food processing, hospitality, healthcare, and financial institutions with creative solutions for preparing, managing, and defending their affirmative action programs and related matters. www.HRProfessionalsMagazine.com

PEYTON LACY, of counsel in Ogletree Deakins’ Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Lacy was listed in the Employment Law - Management, Labor Law - Management, and Litigation - Labor and Employment categories. Lacy has forty-four years’ experience in labor and employment law. 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.

JAMES PATTON, shareholder in Ogletree Deakins’ Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Patton was listed in the Employment Law - Management category. For 20 years, Patton has advised companies on a variety of workplace issues including preparing and enforcing non-competition agreements, dealing with complex employee leave issues, defending employment discrimination lawsuits, and providing advice on difficult workplace issues.

JAMES PENNINGTON, shareholder in Ogletree Deakins’ Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Pennington was listed in the Education Law, Employment Law - Management, and Labor Law - Management categories. 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.

DAVID WARREN, a shareholder in Ogletree Deakins’ Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Warren was listed in the Employment Law - Management and Litigation - Labor and Employment categories. Since 1993, Warren has represented employers in the employment and labor law field, with an emphasis on litigation prevention counseling and employment litigation defense. Warren has served as lead counsel in numerous bench and jury trials at the state and federal level and on state and federal appeals. He became a founding member of Ogletree Deakins’ Birmingham office in 1997.

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ATLANTA CHRISTINA BROXTERMAN, a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2020. Broxterman was listed in the Employee Benefits/ ERISA Law category. She practices exclusively in the area of employee benefits law. She represents clients in the areas of qualified and non-qualified retirement plans, health and welfare plans, ERISA compliance, COBRA administration, compliance with the privacy rule under HIPAA, and other federal laws relating to employee benefits matters.

MEG CAMPBELL, a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2020. Campbell was listed in the Employment Law - Management, Litigation - Labor and Employment, and Qui Tam Law categories. An all-around labor and employment lawyer, she is particularly recognized for her expertise and 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. Campbell has litigated single plaintiff, multiplaintiff, and class and collective action jury and nonjury cases in federal and state courts around the country.

PATRICK CLARK, a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Clark was listed in the Employment Law - Management and Litigation - Labor and Employment categories. He concentrates his practice on advice and litigation in all areas of employment law. Although he has particular expertise in representing healthcare industry clients, his representative clients also include insurance, paper/building products and publishing companies. Clark’s representation of clients encompasses litigation in state and federal courts across the country.

CRAIG CLELAND, a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Cleland was listed in the Employment Law - Management and Litigation - Labor and Employment categories. 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.

HOMER DEAKINS, Chairman Emeritus in Ogletree Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Deakins was listed in the Employment Law Management and Labor Law – Management categories. Deakins 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. Mr. Deakins also has extensive and varied experience in employment litigation, including jury trials in state and federal courts involving equal employment opportunity and employment-at-will cases.

TODD DUFFIELD, a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Duffeld was listed in the Employment Law – Management and Litigation – Labor and Employment categories. His practice focuses on representing employers in all aspects of labor and employment law, including counseling, labor-management relations, employment and restrictive covenant litigation. He is co-chair of the firm’s Airline and Railroad Practice Group.

GREG HARE, a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Hare was listed in the Employment Law – Management, Labor Law – Management, and Litigation – Labor and Employment categories. Hare has been an employment lawyer at Ogletree his entire career, ever since 1991. He assists companies with human resources and employment-related litigation matters, including wrongful termination claims, sexual harassment, employment discrimination, employment contracts, trade secrets, and non-compete agreements. He also serves as managing shareholder of the firm’s Atlanta office.

ERIKA LEONARD, a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2020. Leonard was listed in the Employment Law - Management category. Leonard has successfully represented clients in nearly a dozen wage and hour class and collective actions, as well as numerous singleplaintiff employment discrimination cases, appellate litigation, and traditional labor matters. Leonard also advises clients on compliance with federal and state laws, prepares employee handbooks, conducts harassment, discrimination, and wage and hour investigations and training, and drafts employment agreements.

ROBERT SANDS, a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Sands was listed in the Employment Law - Management and Labor Law Management categories. Sands has spent his entire career at Ogletree representing the interests of management in all aspects of labor and employment law. Robert served for nearly a decade as the managing shareholder of the Atlanta office. Following this assignment, he has devoted all of his efforts to providing superior client service to firm clients.

WILLIAM (BILL) STEINHAUS, a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Steinhaus was listed in the Labor Law – Management category. For over 30 years, he has focused his practice solely on representing employers in the full spectrum of employment and labor matters. His in depth knowledge of the law and network within the legal community have resulted in requests for consultation from his peers and others to assist in identifying lawyers outside of his area of expertise and subject matter experts in various cases.

KEVIN HISHTA, a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2020. Hishta was listed in the Labor Law - Management and Litigation - Labor and Employment categories. He represents employers throughout the country in a wide variety of labor and employment law matters. Such representation involves employment-related litigation in federal and state courts, including class actions and franchise and independent contractor misclassification litigation.

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WIMBERLY LAWSON WRIGHT DAVES & JONES, PLLC

The focus of our practice at Wimberly Lawson Wright Daves & Jones, PLLC is primarily on labor and employment law for management, together with general liability and workers’ compensation defense, for businesses and professionals, insurers, and governmental entities. We have offices throughout Tennessee, and serve clients both nationally and internationally. Our attorneys use a number of preventive and cost-effective methods to maximize employee benefit dollars as well as avoid costly legal problems. Our attorneys also sponsor and present a wide array of conferences and seminars every year, including our annual Labor Relations & Employment Law Update Conference. The Firm has been recognized for various coveted rating awards including: U.S. Top Ranked Law Firms by Fortune Magazine; Best Law Firms by U.S. News & World Report; and Martindale Hubbell Peer Review Rated Award by Martindale-Hubbell. FREDRICK R. BAKER is a Member in the Cookeville, Tennessee office of the Firm. His practice includes an emphasis in workers’ compensation and employment discrimination, as well as ADA and FMLA compliance. Fred is the Editor of the Tennessee Workers’ Compensation Handbook (M. Lee Smith Publishers) and is also Tennessee’s representative for the National Workers’ Compensation Defense Network. Fred has an AV Preeminent® Rating from Martindale-Hubbell. He is also listed in The Best Lawyers in America® in the field of Workers’ Compensation Law/Employers, and in Mid-South 2018 Super Lawyers in the area of Workers’ Compensation. He received his law degree, magna cum laude, from the University of Tennessee. FREDRICK J. BISSINGER is Regional Managing Member of the Nashville, Tennessee office. His practice includes an emphasis in handling employment discrimination and wrongful discharge matters, ADA and FMLA compliance, and general liability matters. Fred has an AV Preeminent® Rating by Martindale-Hubbell. He is also listed in The Best Lawyers in America® in the fields of Employment Law/ Management and Litigation/Labor & Employment, and was named 2020 LAWYER OF THE YEAR by Best Lawyers for Litigation/Labor & Employment (Nashville). Since 2017 he has served as the Legislative Chair for the Tennessee Society for Human Resource Management. L. ERIC EBBERT is a Member of the Firm in the Knoxville, Tennessee office. He practices in the areas of Labor & Employment law - Management, business litigation, and health care liability. Eric has tried more than 30 cases, representing regional, national and multi-national companies, through all stages of litigation and appeals. Eric received his law degree from the University of Tennessee College of Law. He is listed in The Best Lawyers in America® in the field of Litigation/Labor & Employment. Since 2007 Eric has served as a member of the District Investigatory Committee of the Tennessee Board of Law Examiners. He is licensed in both Tennessee and Florida. 34

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G. GERARD JABALEY is Regional Managing Member of the Knoxville, Tennessee office of the Firm. Gerard’s primary practice areas are defense oriented and encompass the areas of workers’ compensation, employment law and human resources training. Gerard has an AV Preeminent® Rating - which is the highest possible rating given by Martindale-Hubbell, the leading independent attorney rating entity - and he is also listed in the Best Lawyers of America® in the area of Workers’ Compensation Law-Employers. Gerard is a member of the Employment Law Sections of the Tennessee and American Bar Associations, and a member of the Litigation Section of the American Bar Association. HOWARD B. JACKSON is a Member of the Knoxville, Tennessee office of the Firm. His practice includes substantial experience with labor law and employment litigation, and also includes training and counseling on a wide variety of employment law issues, as well as commercial litigation. He received his J.D. summa cum laude from Georgia State University, where he was Lead Articles Editor of the Law Review and First Honor Graduate. Howard has an AV Preeminent® Rating from Martindale-Hubbell, and is also listed in The Best Lawyers in America® in the areas of Employment Law/Management and Litigation/Labor & Employment. Howard is a member of the bar in Georgia and Tennessee. JEFFREY G. JONES is the Firm Managing Member of Wimberly Lawson Wright Daves & Jones, PLLC. His practice includes an emphasis on commercial transactions, governmental law and creditors’ rights, as well as insurance defense. Jeff has an AV Preeminent® Rating from Martindale-Hubbell, and is also listed in the Best Lawyers of America® in the area of Commercial Litigation. Jeff is currently the County Attorney for Putnam County, Tennessee, and a Director for the City of Cookeville Public Building Authority. In the community, Jeff is a member of the Cookeville Rotary Club and has been active in American Legion Boys State. T. JOSEPH LYNCH is a Member in the Knoxville office. His law practice includes an emphasis in labor and employment law and the defense of workers’ compensation claims for employers. Joe received his B.A. in English, cum laude, from Carson-Newman College and his law degree from the University of Tennessee School of Law. He has an AV Preeminent® Rating by Martindale-Hubbell, and is also listed in the Best Lawyers of America® in the area of Workers’ Compensation Law/Employers. Joe is a member of the Knoxville and Tennessee Bar Associations, the Society of Human Resource Management, and the Tennessee Valley Human Resource Association. MARY CELESTE MOFFATT is a Member of the Morristown office of the Firm, which she joined in 1994. Her law practice includes labor and employment law (defense), commercial and business law, and general litigation. She received her law degree from Washington and Lee University. She has an AV Preeminent® Rating from Martindale-Hubbell, and is also listed in The Best Lawyers in America® in the area of Litigation/Labor & Employment. Mary currently serves on the Tennessee Board of Law Examiners’ Investigatory Committee, and is an approved Rule 31 Listed General Civil Mediator by the Tennessee Supreme Court. JEROME D. PINN is a Member of the Knoxville, Tennessee office of the Firm, which he joined in 1996. His law practice includes an emphasis in employment discrimination and wrongful discharge litigation, as well as ADA and FMLA compliance, wage and hour law compliance, and affirmative action compliance. He received his Bachelor of Arts degree in Government and History from Cornell University, and his law degree from the University of Michigan. He has been admitted to practice in the United States District Courts for the Eastern, Middle and Western Districts of the State of Tennessee. Jerry is listed in The Best Lawyers in America® in the area of Litigation/Labor & Employment. EDWARD H. TRENT is a Member of the Knoxville, Tennessee office of the Firm. His practice focuses primarily on labor and employment law matters, including litigation and appeals, as well as training and compliance. Ed also works with churches on child protection issues, employment law matters, and religious liberty issues. Ed has an AV Preeminent® Rating from Martindale-Hubbell, and is also listed in The Best Lawyers in America® in the fields of Employment Law/Management and Litigation/Labor & Employment. In 2016 Ed was named LAWYER OF THE YEAR by Best Lawyers for Employment Law/Management (Knoxville). Ed is also Board Certified in Labor and Employment Law by The Florida Bar.

WRIGHT LINDSEY JENNINGS Wright Lindsey Jennings' Labor and Employment team has managementoriented 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-today 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.

JOHN D. DAVIS concentrates his Little Rockbased 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.

STUART JACKSON advises employers on compliance with civil rights laws and developing personnel policies (including medical marijuana policies), employment agreements and covenants not to compete. Jackson 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 listed among The Best Lawyers in America, Chambers USA “Leaders in Their Field” and Mid-South Super Lawyers, and has an AV® Preeminent™ Peer Review Rating through Martindale-Hubbell.

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 Chambers USA as a "Leader in Their 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.

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.

TROY PRICE has earned a reputation as one of Arkansas’ most experienced and highly regarded appellate lawyers. Price has handled more than 50 appeals in state and federal courts and has presented oral arguments more than 15 times in appeals before the Arkansas Supreme Court and Court of Appeals, the Eighth Circuit Court of Appeals and the Eleventh Circuit Court of Appeals. He is also admitted to practice before the Supreme Court of the United States. In addition to focusing on ERISA and other employee benefits litigation in his practice, Price is also recognized as an authority in First Amendment law.

MICHELLE M. KAEMMERLING heads up Wright Lindsey Jennings' Labor and Employment Team. Her 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 Mid-South Super Lawyers since 2009, is listed among The Best Lawyers in America and is named a “Leader in the Field” by Chambers USA. www.HRProfessionalsMagazine.com

FORDHARRISON FordHarrison is a labor & employment defense law firm with 29 offices, including three affiliate firms, and is the sole member of the global employment law firm alliance, Ius Laboris. 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. 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. To learn more about Ius Laboris, visit iuslaboris.com.

ATLANTA, GA JOHN F. ALLGOOD, Of Counsel John has served for more than 20 years as an independent neutral arbitrating cases in commercial, employment, construction and securities law areas. His practice includes mediation in the above practice areas as well as real estate and anti-trust matters. John is a Fellow in the College of Commercial Arbitrators. Previously he served as a Fellow in the College of Commercial Arbitrators as well as chair and Executive Board Member of Corporate Counsel Sections of the Georgia and Atlanta Associations. John earned his J.D. from the University of Georgia School of Law. BENNET D. ALSHER, Partner – Senior Status Bennet Alsher has more than three decades of experience representing employers in labor and employment law. He advises employers in federal and state court litigation in wrongful discharge, employment discrimination, wage and hour collective and individual actions, and employment torts. He serves on the Anti-Defamation League's National Commission and the Board of Directors of the ADL's Southeast Regional Office. Bennet earned his J.D. from Emory University School of Law. PAUL R. BESHEARS, Partner Paul represents employers in all aspects of labor and employment law with an emphasis on collective bargaining, strikes, union organizing campaigns, labor arbitrations, and NLRB unfair labor practice cases. He also advises companies on labor and employment issues, including those that arise in connection with mergers and acquisitions, reductions in force, and plant closings, and those dealing with the labor law aspects of government contracting. Paul serves as head of FordHarrison's Traditional Labor Practice Group and is a member of the firm's Healthcare Practice Group. Paul earned his J.D. from the University of Georgia School of Law. PATRICIA G. GRIFFITH, Partner Patricia concentrates her practice on employment litigation, including individual and class action discrimination and harassment cases, employment contracts, wage/hour claims, and other employmentrelated actions. She tries cases in federal and state courts and before administrative agencies and arbitrators. Patricia 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 and private parties. Patricia earned her J.D. from the University of Georgia School of Law. 36

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ELLEN C. HAM, Partner Ellen represents management in traditional labor matters and is a member of FordHarrison's Executive Committee. As a partner in the firm's Airline Group, she assists airline and other aviation-related clients in grievance resolution matters, including grievance arbitrations and mediation. In addition, Ellen represents the firm's air carrier and derivative carrier clients in union representation matters before the National Mediation Board (NMB) and the National Labor Relations Board (NLRB) and negotiates collective bargaining agreements for air carriers under the Railway Labor Act (RLA). Ellen earned her J.D. from University of Florida College of Law. C. LASH HARRISON, Founding Partner - Senior Status Lash Harrison has more than 50 years of experience representing management in all aspects of employment and labor law. During those 50 years he has represented employers in almost every state and in a variety of industries. From the firm’s inception in 1978 with 14 lawyers, until December of 2017, Lash served as its Managing Partner. He now serves as Chairman of the firm’s Executive Committee, its highest governing body. Throughout his career, Lash has served in leadership roles in a number of professional and civic organizations. Currently, he is a member of the Emory University Law School Dean's Advisory Board. Lash earned his J.D. from Emory University School of Law. THOMAS J. KASSIN, Partner - Senior Status Tom focuses his practice on airline labor and employment. He counsels clients on all types of personnel and labor relations matters that arise under the Railway Labor Act. Tom has extensive experience in handling a wide range of airline arbitration cases, having successfully represented clients in more than 300 cases. With his experience as a naval flight officer, Tom is very familiar with operational issues including pilot competency and proficiency cases as well as matters involving the analysis of complex aircraft accidents/ incidents. Additionally, he is experienced in contract disputes as well as drug and alcohol related cases. Tom earned his J.D. from the University of Virginia School of Law. F. CARLTON KING, JR., Of Counsel Carlton’s entire legal career has concentrated on civil litigation with particular emphasis on trying cases in the courtroom. In recent years, he has drawn on his years of trial experience as a mediator and arbitrator, assisting in the resolution of disputes through ADR. Carlton brings a practical sensibility to dispute resolution and has dealt with a myriad of commercial subject matters. For several years he managed the litigation practice of FordHarrison. He is admitted to practice in all Georgia courts and has tried cases in a number of jurisdictions other than Georgia. Carlton earned his J.D. from the University of Virginia School of Law. ANDREW D. MCCLINTOCK, Partner Andy has been with FordHarrison since 1994. His practice concentrates on airline matters, and his experience includes litigating Railway Labor Act issues, conducting arbitrations before airline system boards of adjustment, representing management in NMB-sponsored grievance mediation, negotiating collective bargaining agreements and giving general advice on labor and employment issues. Andy was a commissioned officer in the U.S. Marine Corps between 1983 and 1991. He completed flight training, and served for five years as a pilot with a helicopter squadron. Andy earned his J.D. from Emory University School of Law.

JEFFREY D. MOKOTOFF, Partner Jeff’s broad employment law practice includes drafting and litigating executive, arbitration and non-compete agreements, as well as litigating collective and class actions in state and federal courts. Before rejoining FordHarrison in 2017, after a 16-year career with the firm, Jeff held the position of Chief Administrative Officer and Counsel for Turner Enterprises, Inc., founded and developed Ted Turner Expeditions, and served as employment counsel for Ted’s Montana Grill. He is Co-Chair of FordHarrison’s Non-Compete, Trade Secrets and Business Litigation Practice Group and Chairs FordHarrison’s relationship with the global employment law firm alliance, Ius Laboris. He earned his J.D. from Emory University School of Law. JOHN L. MONROE, JR., Partner John 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 firm’s General Counsel as well as managing partner of the firm's Atlanta office. John earned his J.D. from the University of North Carolina School of Law. FREDERICK L. WARREN, Partner Rick handles all aspects of labor and employment law, including traditional labor law, employment litigation, wage and hour matters and workplace safety and serves as 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. Rick earned his J.D. from the University of Georgia School of Law. LAVERN J. WILSON, Talent and Recruiting Partner Lavern was named FordHarrison's first Talent and Recruiting Partner in 2018. In this new role, Lavern is responsible for recruiting and developing lawyers firm-wide. She oversees the hiring and on-boarding of new lawyers, manages utilization and workflow, and designs and implements talent development initiatives to support the career growth of our lawyers. Lavern concentrates her practice on defending employers in discrimination, harassment, wage and hour, whistle-blower, retaliation, employment/business torts and wrongful termination litigation, in both state and federal courts. Lavern earned her J.D. from Stetson University College of Law.

BIRMINGHAM, AL WESLEY C. REDMOND, Partner With more than 25 years of experience as a labor and employment attorney, Wesley has a unique approach to litigation and particular experience representing retail clients and religious institutions. Wesley regularly represents clients in state and federal courts as well as before administrative agencies and he counsels them in complying with the many federal and state employment and labor laws. His litigation approach is to test as early as possible the validity of claims made by employees before costly discovery begins. Wesley earned his J.D. from Georgetown University Law Center.

MEMPHIS, TN LOUIS P. BRITT, III, Partner Louis is the Regional Managing Partner for FordHarrison's Memphis, Nashville and Dallas offices. He concentrates his practice on employment litigation and advice, representing private and public employers in a broad range of employment matters. Louis 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. Louis earned his J.D. from Tulane University Law School. HERBERT E. GERSON, Partner - Senior Status - Lawyer of the Year – Labor Law – Management - Memphis Herb focuses his practice on managing all areas related to traditional labor and employment issues both local and international. He chairs the firm’s global Legal Services Practice Group. He devotes much of his practice to counseling clients on avoiding employment discrimination claims and developing a positive work environment. Herb has written numerous articles on labor and employment matters, is a frequent speaker on labor and employment matters and co-chaired the Labor and Employment Committee of the Litigation Section of the American Bar Association. Herb earned his J.D. from Emory University School of Law. THOMAS J. WALSH, JR., Of Counsel Tom has practiced civil litigation for 35 years, specializing in appellate advocacy in state and federal courts. He has successfully handled hundreds of summary judgments and appeals, including those resulting in landmark employment discrimination decisions by the U.S. Supreme Court and by various federal and state appellate courts. Tom previously served as an adjunct professor in legal research and writing at the University of Memphis Law School and has taught a number of seminars on legal writing for attorneys and judges. Tom earned his J.D. from the University of Virginia School of Law.

NASHVILLE, TN MARK E. STAMELOS, Partner Mark represents businesses on their employment issues, including trade secret, non-compete and restrictive covenant disputes as well as defending employers against harassment, discrimination and retaliation claims. A stickler for responsiveness, Mark likes to visit businesses, study their processes, see the facilities and learn how people do their jobs. He has particular expertise helping clients protect their trade secrets and other valuable business interests. In addition, he provides advice about or litigates issues related to restrictive covenants, such as non-competition and confidentiality agreements. Mark earned his J.D. from Capital University Law School. www.HRProfessionalsMagazine.com

BASS, BERRY & SIMS At Bass, Berry & Sims, positive human relationships and interactions drive business success. Our attorneys advise union and non-union companies as well as public, private and non-profit employers across a variety of industries, ranging from Fortune 500 companies to small locally owned businesses, on labor and employment and employee benefits matters from a perspective that connects our clients’ dynamic human resources needs with affirmative strategies.

DAVIDSON FRENCH advises clients on labor and employment matters. His clients include a major university, a national retailer and multiple healthcare companies. Over the last five years, Davidson has assisted in responding to more than 100 EEOC claims for one client with 8,000+ employees, providing guidance and strategy for the successful resolution of each claim. Additionally, he served as lead counsel in a Fair Labor Standards Act (FLSA) collective action for a food service industry client, achieving a favorable settlement and helping the company address operational issues to prevent future claims similar in nature.

TIM GARRETT 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.

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BOB HORTON, as chair of the firm’s 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.

FRITZ RICHTER has more than 30 years of experience counseling clients on employee benefit plan design and administration, and compliance with the Internal Revenue Service (IRS), Pension Benefit Guaranty Corporation and Employee Retirement Income Security Act. His clients span a wide range of industries, including healthcare, retail and hospitality. Fritz has helped clients navigate hundreds of audits; submitted numerous IRS, Department of Labor and Pension Benefit Guaranty Corporation filings; and crafted a wide variety of employee benefit plan documents – all focused on helping employers navigate complex government regulation.

DAVID THORNTON helps employers deliver retirement, health and welfare benefits to their executives and employees. With more than 30 years of experience, he has developed a diverse practice counseling hundreds of public and private employers and non-profit organizations in drafting, maintaining and administering retirement plans ranging from $1 million to several billion dollars in assets, including many in the $100 million to $500 million asset range. He has deep experience in ESOP transactions, successfully navigating the significant fiduciary duty considerations and tax code requirements involved with these transactions.

RAINEY, KIZER, REVIERE & BELL, PLC The Firm provides its clients top-quality legal advice and representation in the areas of company policies and practices, discrimination claims, workers' compensation, and civil rights. The attorneys practicing in these areas have many years of experience in defending employers against claims of racial and sexual discrimination, sexual harassment, ADA and FMLA violations, wage and hour violations, wrongful awards of unemployment compensation, retaliatory discharge, and workers' compensation. The members of the Firm’s Employment Law group also have extensive, specific experience in defending governmental entities against employment law claims and serving governmental entities’ unique employment law needs.

Legal Challenges are Coming at HR Professionals from Every Direction

For over thirty years, ROBERT BINKLEY has represented employers and individuals in employment, workers' compensation, insurance, and tort matters. He helps private and public employers in conducting investigations and litigation concerning compliance with Title VII, FMLA, ADEA, ADA, FLSA, THRA, and other state and federal employment related laws. He is a Rule 31 certified mediator and serves as the Firm’s personnel partner. JOHN BURLESON has extensive experience in employment matters and has successfully defended public and private employers in state and federal courts. In addition to his extensive trial experience, he also regularly advises clients in regard to employment-related matters in the areas of compliance with Title VII, ADEA, ADA, the Tennessee Human Rights Act, and other state and federal laws. John’s litigation experience also makes him a sought-after mediator in employment law and civil rights cases. BRADFORD BOX regularly represents national and regional employers in workers’ compensation, as well as in insurance and tort litigation. His practice focuses on matters throughout the Mid-South region. Brad is licensed to practice in Tennessee, Mississippi, and Arkansas. He was distinguished as 2018 “Lawyer of the Year” (Memphis Area) Insurance Law by Best Lawyers in America.® DALE CONDER, JR., has significant experience in the areas of employment law and federal civil rights litigation, representing employers only. He also has significant experience in appellate advocacy, being licensed to appear before the Sixth Circuit Court of Appeals and the United States Supreme Court. He has represented a number of police departments and municipalities in 42 U.S.C. § 1983 (civil rights) litigation. As well, he has authored or co-authored several articles on discovery practice, expert disclosures, and a young lawyer’s guide to defense practice. Since 2001, GEOFFREY LINDLEY has been associated with the firm, concentrating his practice in the areas of employment law litigation (representing employers only), municipal law and government tort liability, civil rights litigation, and workers’ compensation. His employment practice includes advising employers on issues concerning all areas of employment and human resource concerns, including law such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family Medical Leave Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, and other laws applicable to employers, and litigating employment claims for employers. MICHAEL MANSFIELD is a member of the firm’s Employment Law Group, defending insured and self-insured persons and entities in worker’s compensation, trucking/ automobile accidents and premises liability cases throughout the state. He also represents insurers in connection with coverage issues, including the investigation and denial of fraudulent claims, and with regard to coverage exclusions under commercial general liability and individual insurance policies. His experience also includes representing debt management companies in FDCPA/FCRA actions and advising business clients.

That’s Why Rainey Kizer Makes Your Business Our Concern As the issues facing HR executives become more frequent, challenging, and complex each year, you need a law firm that provides advice invidualized for you specific needs. This is why you should know the employment law attorneys at Rainey, Kizer, Reviere & Bell, PLC. For over 40 years, our AV-rated firm has advised businesses, non-profit organizations and government agencies on all aspects of employment law. To learn more, please call.

Memphis

Nashville

901.333.8101

615.613.0442

Jackson

Chattanooga

731.423.2414

423.756.3333

Tennessee does not certify specialists in the area of employment law.

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CROSS, GUNTER, WITHERSPOON & GALCHUS, P.C.

Cross, Gunter, Witherspoon & Galchus, P.C. (CGWG), a leading Labor and Employment law firm in the state of Arkansas, is proud to have seven attorneys selected as Best Lawyers in America. CGWG uses their experience to help clients meet diversity goals and mandates. Preventive law strategies and exceptional educational programs are the foundations of CGWG’s services. As an employer, CGWG has been repeatedly recognized for their family-friendly initiatives. Respect for employees and an emphasis on work-life balance are hallmarks of their business.

AMBER WILSON BAGLEY practices in the areas of employment law, commercial/ corporate litigation, health care law, and municipal law. Ms. Bagley served as a Judicial Clerk for the Honorable Annabelle Clinton Imber and the Honorable Tom Glaze, both Justices of the Arkansas Supreme Court. She is a member of the American Bar Association, American Health Lawyers Association, and the Arkansas Bar Association, where she has served as chair of the Health Law Section and is a tenured member of the House of Delegates for Pulaski County. She has been included in Best Lawyers in America, Mid-South Super Lawyers’ Rising Stars, and Chambers USA. M. STEPHEN BINGHAM’S practice includes products liability defense, commercial litigation, insurance defense, transportation law, construction law, and airport law. Mr. Bingham, who is also a Certified Public Accountant, has an emphasis in business contract work. He focuses a great deal of his time in defending municipal and government entities. He is a past president of the Arkansas Association of Defense Counsel and is currently the Arkansas State Representative to the Defense Research Institute (DRI). J. BRUCE CROSS practices labor and employment defense law. He is a member of the American Bar Association’s Committee on the Development of the Law and a Fellow in the College of Labor and Employment Lawyers. He has been featured in U.S. News & World Report, Mid-South Super Lawyers, Chambers USA, and Best Lawyers in America. A Life Member of the National Registry of Who’s Who, he is the only attorney in Arkansas listed as one of the Top 1000 Labor and Employment Lawyers worldwide by Who’s Who Legal. Awards received by Mr. Cross include the 2017 Albert Nelson Marquis Lifetime Achievement Award and the 2014 and 2019 Lawyer of the Year award for Labor Law-Management in Little Rock. Mr. Cross serves as the current President of the Notre Dame Club and on the boards of Junior Achievement of Arkansas and the West Central Arkansas chapter of SHRM.

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MISSY MCJUNKINS DUKE practices in the areas of employment law, education law, FOIA, and civil litigation. She is an active member of the Arkansas Bar Association’s Labor and Employment Section and the American Bar Association’s Labor and Employment Section and Federal Labor Standards Legislation Committee. She was appointed by former Arkansas Governor Mike Beebe as a Special Associate Justice of the Arkansas Supreme Court and as Commissioner on the Arkansas Early Childhood Commission and as a member of the Arkansas Advisory Committee to the United States Commission on Civil Rights. Ms. Duke has been included in Best Lawyers in America since 2009, Mid-South Super Lawyers since 2008, and Chambers USA’s America’s Leading Business Lawyers since 2013. CINDY KOLB’S practice areas include employment law, insurance defense, and insurance coverage. She regularly speaks on employment law and HR-related topics for SHRM-affiliates and other industry groups. Ms. Kolb is an active member of the Central Arkansas Human Resources Association (CAHRA) and is the President Elect for 2020. She was the Vice President of Communications for 2019, was the CAHRA Vice President for Special Programs for 2017 and 2018 and was the 2017 and 2018 Chair of the CAHRA Managers Conference. She is the co-chair of the Arkansas Bar Association’s 2020 Annual Meeting and co-chaired the 2018 Arkansas Bar Association’s Mid-Year Meeting and served as the Chair of the Labor and Employment Section of the Arkansas Bar Association in 2012/2013. She has been practicing law for over 20 years. She’s been named to Best Lawyers in America for 2019 and 2020. RICHARD A. “RICK” RODERICK practices in the areas of labor and employment defense law. He has more than 20 years of human resource management experience, having served in various executive management positions, including executive director of human resources with a large multistate corporation. Mr. Roderick has extensive experience in labor relations, union negotiations, employment discrimination, unfair labor practices, and wage and hour matters. He also advises management regarding HR systems and policies and procedures and performs supervisory training. He has been recognized by Best Lawyers in America and Mid-South Super Lawyers since 2009 and was named Best Lawyers’ Lawyer of the Year in the field of Labor Law-Management in 2017. CAROLYN WITHERSPOON primarily represents public and private employers in defending employment-related matter. She is a former President of the Arkansas Bar Association and former Chair of the Labor and Employment Law Section. Ms. Witherspoon is a member of the American Bar Association, where she served as Chair of the Commission on Interest on Lawyers’ Trust Accounts and is a member of the Labor and Employment Law Section. She is also a member of the House of Delegates of the American Bar Association, the Arkansas Fellows of the American Bar Foundation, Women in Sports Law, American Employment Law Counsel, and Union Internationale des Avocats, and is a fellow of the College of Labor and Employment Lawyers. She is an arbitrator of The Court of Arbitration for Sport and a member of the American Arbitration Association Roster of Employment Arbitrators and Mediators. Ms. Witherspoon was recently inducted into the Arkansas Women’s Hall of Fame.

At CGWG, we are dedicated to employment defense and the representation of management. We serve our clients in a variety of practice areas designed to help them achieve effective and constructive employee relations while successfully navigating ever-changing labor and employment laws. We support our employment practice with customized training programs, preventative law strategies, and educational programs and seminars to help clients meet the needs of their specific industries and workplaces. We also provide services to individuals facing immigration challenges, elder law issues, estate planning, and the probate process.

LITTLER Littler is the largest global employment and labor law practice, with more than 1,500 attorneys in 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 legal practice, the practicing member entities of which are separate and distinct professional firms. For more information visit: www.littler.com.

ATLANTA Shareholder, GAVIN S. APPLEBY advises and represents employers in a broad range of employment law matters, from defending singleplaintiff and class action employment cases to offering advice on difficult employment issues and labor relations matters. Gavin serves as chair of the Corporate Audit Services Group and as chair of Littler’s diversity practices.

Shareholder, LESLIE A. DENT 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.

Shareholder, L. TRAYWICK DUFFIE 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.

Shareholder, KURT PETERSON has successfully defended his clients in litigation against virtually every type of employment discrimination claim. His practice is national in scope, representing companies across the country in state and federal courts. He has successfully argued at the federal and state appellate levels on numerous occasions, including the 3rd, 6th and 11th circuits of the U.S. Courts of Appeal.

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Shareholder, CAMERON PIERCE focuses his practice on labor relations and a wide range of employment-related issues. With respect to labor relations, he regularly represents employers in matters before the NLRB, as well as in labor arbitrations and collective bargaining.

LISA “LEE” A. SCHRETER 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 wagerelated claims and specializes in helping employers to develop forward-thinking compliance measures that reduce wage and hour disputes and other employment-related issues.

Shareholder, DANIEL E. TURNER counsels and represents employers in all aspects of litigation in employment law issues, including discrimination, harassment, retaliation, wage and hour, and leaves of absence. He has served as lead counsel in more than 50 class and collective actions throughout the country.

Shareholder, JEFFREY M. MINTZ dedicates his practice to providing employment and labor law counsel and strategic advice to employers with an emphasis in labor management relations and positive human resource practices. Jeff is an experienced practitioner before the National Labor Relations Board (NLRB) and has defended employer positions before the Equal Employment Opportunity Commission (EEOC) and other state and federal administrative agencies and courts.

Shareholder, OWEN HILL represents large and small employers in all types of employment-related litigation, specializing in complex employment litigation including multiple plaintiff, EEOC, and class action lawsuits. Owen has broad experience dealing with the Equal Employment Opportunity Commission, particularly in the context of class actions. He also practices before state and local labor and employment agencies.

BIRMINGHAM

LEXINGTON

Shareholder, JANELL AHNERT’S practice encompasses all facets of employment law, specifically in representation of management in both employment counseling and employment litigation. Janell handles a variety of employment law matters in state and federal courts and has broad experience defending employers accused of harassment and discrimination in federal court. She has litigation and counseling experience in numerous areas of employment law, including issues involving wage and hour claims, harassment, discrimination, and whistleblowing.

Shareholder, LATOI D. MAYO advises, counsels and defends employers in regard to labor and employment matters. She has successfully managed and 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. LaToi has notable experience in enforcing and/ or advising clients on arbitration agreements, restrictive covenants and wage and hour compliance issues.

Shareholder, CHARLES A. POWELL has represented employers throughout the Southeast against employment discrimination and harassment, non-competition and wage and hour litigation lawsuits for more than 23 years. He has a strong record of successfully defending employers against various employment and labor law claims.

For more than 30 years, JAY D. ST. CLAIR has represented clients in employment and labor law matters including discrimination, harassment and retaliation claims, labor management relations, wage and hour regulations, and occupational safety and health. He also is an adjunct professor at Cumberland School of Law, where he teaches Labor Law.

Shareholder, JENNIFER SWAIN has represented management in employment matters for more than 25 years. Her practice includes litigation in state and federal courts, as well as before arbitrators, the Department of Labor, the Equal Employment Opportunity Commission (EEOC) and other state and federal agencies. Jennifer also has experience handling class and systemic cases brought by the EEOC.

For more than 15 years, STACEY T. BRADFORD has represented a wide variety of employers throughout the Southeast, including those in the manufacturing, retail, healthcare and financial services industries, as well as medical facilities and staffing companies. She has handled a range of employment law matters before state and federal courts and administrative agencies nationwide.

JAY INMAN is a Shareholder in Littler Mendelson’s Kentucky office, where he provides solutions for employers of all sizes navigating today’s complex business world. Jay’s practice includes advice and counsel for employers making decisions about employment-related issues, policies, and procedures, and he also represents employers in administrative matters and litigation in state and federal courts, including trials and appeals. Jay serves as a go-to for clients and colleagues on drafting and enforcement of arbitration agreements, investigations in the workplace, and complex and appellate litigation.

MEMPHIS S hareholder, JONATHAN E. KAPLAN 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.

Shareholder, STEVEN W. LIKENS represents management in labor and employment litigation. His experience includes wage and hour collective actions, wrongful termination, whistleblower and retaliation claims and unfair competition and misappropriation of trade secrets.

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Shareholder, PAUL E. PRATHER represents management exclusively in all areas of employment and labor relations, including state and federal employment litigation and in administrative proceedings before the NLRB, the EEOC and the DOL.

CHARLOTTE Shareholder, STEPHEN D. DELLINGER is an accomplished litigator and advisor who provides counsel on intricate workplace issues involving a broad spectrum of federal and state statutory and common laws that affect not only employees, but a company’s business goals. His sophisticated guidance directs executives and managers toward legally compliant human relations actions and policies.

Shareholder, JOHN W. SIMMONS represents management clients in employment litigation, advises clients on employment law and labor relations matters and represents clients in administrative proceedings such as those before the NLRB and the EEOC.

AMBER ISOM-THOMPSON is a member of the Littler CaseSmart® team based in Tennessee. She is responsible for the drafting of early case evaluations (ECE). She identifies and reviews pertinent documents, interviews relevant witnesses, and drafts ECE reports. In keeping with each client’s litigation philosophy, she partners with the local Littler litigation team and assists in developing and executing strategies for effectively handling litigation.

emphis Office Managing Shareholder and M Traditional Labor Practice Group Co-Chair, TANJA L. THOMPSON dedicates her practice to representing companies in traditional labor law. National Fortune 500 companies as well as local employers across various industries, such as manufacturing and healthcare, seek her expertise in remaining union-free and in managing their unionrepresented workplaces. Union-free efforts include campaigns, comprehensive union vulnerability assessments, human relations audits, communication strategies, and positive employee relations training.

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Shareholder, J. RENÉ TOADVINE maintains a nationwide practice that focuses on representing management in all facets of employee benefits matters, including employee benefits tax issues, ERISA and benefits planning, executive compensation, employee benefits in mergers and acquisitions and bank finance and ERISA issues in securitizations. He also designs and drafts all types of employee benefits and executive compensation plans with adherence to compliance regulations. Shareholder, JERRY H. WALTERS, JR. represents employers and management in employ-ment discrimination, harassment, retaliation, and wrongful discharge cases, among others. Jerry also has special expertise in defending wage and hour collective and class actions involving allegations of unpaid overtime, off-the-clock work, unpaid missed or interrupted meal breaks, preliminary and postliminary unpaid time, misclassification of employees, and other FLSA and state wage and hour claims.

NASHVILLE Shareholder, MICHAEL S. MOSCHEL 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. Shareholder, C. ERIC STEVENS provides his clients a common-sense approach to employment, representing employers in administrative investigations, employment litigation, and labor relations matters with a focus in the healthcare and financial institution industries. He represents both union and non-union employers in single-plaintiff and class-action claims under anti-discrimination laws, defense of whistleblower and retaliation claims, collective litigation involving federal and state wage and hour laws and contract negotiations.

WARD AND SMITH, P.A. Ward and Smith, P.A. is a full-service North Carolina law firm. We advise, counsel, and represent businesses and individuals from offices in Asheville, Greenville, New Bern, Raleigh, and Wilmington. Clients rely on our attorneys' knowledge and extensive experience in more than 30 practice areas, ranging from Agribusiness to Zoning and Land Use Planning. Our dedication to the practice of law and commitment to each and every client is our collective mission, and we believe it is what sets us apart from other law firms.

JERRY SAYRE’S practice experience encompasses all aspects of federal and state employment law, including Title VII, Family and Medical Leave Act, Americans with Disabilities Act, Age Discrimination in Employment Act, Fair Labor Standards Act, and various state law provisions. He has litigated employment matters in federal and state courts at both trial and appellate levels. He regularly defends claims of discrimination (including sex, race, age, national origin, and disability), retaliation, sexual and racial harassment, breach of contract, wrongful discharge, and other work-related tort claims.

KEN GRAY’S practice experience encompasses various areas of employment-related litigation. He advises clients and litigates cases involving all forms of employment discrimination, wrongful discharge, and breach of employment contracts from small start-up companies to Fortune 500 corporations. Ken is a frequent lecturer on employment discrimination, workplace retaliation, workers' compensation, and wage and hour law issues. He has been rated by his peers as being "preeminent" in his fields of law and serves in leadership roles with various legal and civic organizations.

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for it. ICE seized $1.8 million from Vilhauer Enterprises’ bank accounts and asserts the money is proceeds from a crime: harboring undocumented workers.

ICE’s Actions Against Companies Who Harbor Undocumented Workers By BRUCE E. BUCHANAN

In the past 6 months, owners of companies, who re-hired undocumented workers after an Immigration & Customs Enforcement (ICE) audit of its I-9 forms, have faced federal indictment or criminal forfeiture of assets for their unlawful actions. The common theme in these criminal actions is ICE conducts an audit of the company’s I-9 forms, ICE issues a Notice of Suspect Documents alleging employees did not provide valid work authorizations, the company tells ICE those employees have been discharged, and then the undocumented workers are re-hired under different circumstances. KSO MetalFab Inc. Criminal Indictments One case involves the owners of KSO MetalFab Inc., an Illinois sheet metal fabrication company. In this case, after an ICE audit of the I-9 forms of employees, ICE issued a Notice of Suspect Documents determining 36 of its 67 employees were suspected of using fraudulent documents to obtain their jobs. KSO MetalFab responded by attesting that it had terminated all 36 of the identified employees. However, after discharging the 36 employees, KSO MetalFab instructed the workers to go to a staffing agency, Metro Staff Inc., so that they could return to the company. Metro Staff hired 18 of the 36 undocumented workers and placed them back at their old jobs at KSO MetalFab. Dora Kuzelka, Kari Kuzelka, and Keith Kuzelka, the owners of KSO MetalFab Inc., were arrested on charges they used an employment agency, Metro Staff, that “knowingly engaging in a pattern or practice of hiring and harboring” undocumented workers. The charge of knowingly harboring an illegal alien carries a maximum sentence of five years in prison while the charge of knowingly engaging in a pattern or practice of hiring illegal aliens is punishable by up to six months in prison.

The process started in 2015 when Vilhauer Enterprises was served a NOI. In that audit, ICE served the company with a Notice of Suspect Documents alleging 113 employees provided suspicious documentation to obtain employment. Vilhauer Enterprises stated it would terminate the undocumented employees and paid a $750 fine to settle the case. In September 2018, ICE served Vilhauer Enterprises with another NOI. The company submitted a total of 475 forms. ICE discovered 71 employees, who had reportedly been “terminated”, continued employment but under different names. ICE alleges in the lawsuit that Vilhauer Enterprises has engaged in the practice of “pretending to terminate an illegal employee only for that employee to continue working under different identifying information.” Conclusion These three cases in 2020 are similar to earlier ICE actions against Asplundh Tree Experts and Waste Management, who paid penalties of $95 million and $5.5 million, respectively, for similar criminal offenses and managers engaged in the unlawful schemes were sent to prison. If you fear you need assistance with your company’s I-9 compliance and related issues, 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. Alternatively, feel free to contact me for representation in these matters.

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

SISKIND SUSSER PC

TentLogix Criminal Indictments In another similar case, TentLogix, a Fort Pierce, Florida based tent rental business, was audited by ICE in July 2016, when federal agents served a Notice of Inspection (NOI) for the company’s I-9 forms, resulting in a determination that the company employed 96 workers who were not authorized to work in the United States. Federal agents warned TentLogix “it could be subject to criminal charges if it continued to employ these aliens.” TentLogix, through its attorney, falsely stated to ICE that TentLogix had terminated the employees who were not authorized to work in the United States. However, this statement was false as those employees were still working at TentLogix although on the payroll of KH Services. Three top officials with TentLogix, Gary Hendry, the CEO of TentLogix, its president Dennis Birdsall, and Kent Hughes were indicted by a federal grand jury for conspiring “to conceal or harbor aliens for the purpose of commercial advantage.” In the indictment, Hendry, Birdsall and Hughes are accused of creating KH Services, a limited liability company, in March 2017 “for the purpose of concealing, harboring and shielding aliens employed by TentLogix from detection by law enforcement.” According to the government, Hendry agreed to cover all the costs associated with KH Services and pay Hughes a fee for each undocumented worker who was transferred to TentLogix payroll to KH Services’ payroll. Vilhauer Enterprises Criminal Forfeiture In the third case, ICE has filed a criminal forfeiture lawsuit against Vilhauer Enterprises, a Plano, Texas excavation company, due to the company continuing to employ undocumented immigrants after previously being caught and fined 46

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THE EI ADVANTAGE Driving Innovation and Business Success through the Power of Emotional Intelligence

New Harvard Study Suggests the Most Effective Way to Teach Emotional Intelligence Lots of companies want to teach EI to their employees. But determining an effective method is critical. By HARVEY DEUTSCHENDORF