Volume 8 : Issue 1
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www.HRProfessionalsMagazine.com
Executive Compensation
U.S. News Best Labor and Employment Law Attorneys Healthcare
Creative Solutions
2018 Labor Market Trends
for 2018
Johnny
C. Taylor Jr., CEO 2017’s
Most Important
EEOC Cases
The Society for Human Resource Management
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Executive Pay Went Up 997.2% Between 1978 and 2014 (Page 15) www.HRProfessionalsMagazine.com Editor
Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher
The Thompson HR Firm, LLC HR Consulting and Employee Development Art Direction
Park Avenue Design Contributing Writers
Joseph Ambash Austin Baker Steven Berstein Bruce E. Buchanan William Carmichael Harvey Deutschendorf Brad Federman Tom Hayes Julie Henderson Joseph M. Kraska Lisa Krupicka Joel Myers Edward H. Trent Richard Works Board of Advisors
Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR Terri Murphy Susan Nieman Robert Pipkin Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. Š2018 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.
Features 4 note from the editor 5 Profile: Johnny C. Taylor Jr., CEO of The Society for Human Resource Management 14 3 Big Challenges in Executive Compensation 19 Book Look – The I-9 and E-Verify Handbook 20 Why the Brundt of the Workplace Opiod Epidemic Falls on HR 22 Rethinking Sexual Harassment Training 24 Labor Market Expectations for 2018 50 7 Reasons Being Vulnerable Makes Better Leaders
Educational Opportunities for HR Professionals 2 Apply for SHRM-CP & SHRM-SCP Exam Starting January 2! 9 Apply Today for the WGU Tenn-K Scholarship 11 M.S. in HR & Organizational Development at University of Louisville
Employee Benefits 4 Introducing K2 Employee Benefits Training 26 Creative Solutions Needed to Improve Healthcare in 2018
Employment Law 10 Employment Law Issues to Watch in 2018 18 Are Your Ready for Increased I-9 Inspections? 16 DOJ Affirms Fundamental Importance of Religious Liberty 28 2017 Most Important EEOC Cases 30 Labor Board to Scrap Quickie Election Rule? 49 Memphis Bar Association Annual Labor & Employment Law Seminar
2018 U.S. News Best Labor and Employment Law Attorneys 32 Ogletree Deakins 36 Wimberly Lawson 37 Wright Lindsey Jennings 38 FordHarrison 40 Bass Berry Sims 41 Cross, Gunter, Witherspoon & Galchus, P.C. 42 Friday, Eldredge & Clark, LLP 44 Burch, Porter & Johnson, PLLC 45 Rainey, Kizer, Reviere & Bell, PLC 46 Littler 48 Fisher Phillips and Siskind Susser PC
Industry News 6 Joint Meeting of SHRM-Memphis and ATD December 5 7 SHRM-Atlanta Annual SOARHR Conference in Atlanta March 27-28 8 SHRM Pinnacle Awards 12 SHRM-Memphis HR Excellence Awards February 20 13 University of Memphis SHRM Student Chapter Meeting November 13 February 2018 Issue features Profiles of Top Companies in Payroll and HRIS Technology plus Employment Law and Employee Benefits Updates Deadline to reserve space January 10
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a note from the Editor We are so excited to have Johnny C. Taylor Jr. on the cover of our January 2018 issue! Johnny is the new CEO for the Society for Human Resource Management. What an exciting profile he has! I know you will enjoy learning all about our new SHRM leader on Page 5.
Attorneys from FordHarrison attending the 2017 Memphis Bar Association Labor & Employment Law Seminar December 5 at the University of Memphis Holiday Inn (L-R) Frank L. Day, Russell Jackson, Herbert E. Gerson, Charles (“Bud”) V. Holmes, Robbin W. Hutton, Katie Parham, and Timothy F. Kennedy.
Speaking of SHRM, we have a preview of the 2018 SHRM-Atlanta SOAR Conference that will be held on March 27-28 at the Cobb Galleria Centre in Atlanta on Page 6. This is the 28th annual conference, and you can pick up 12 hours of recertification credit from SHRM and HRCI 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 HRPRO! Register today!! Congratulations to the KYSHRM State Council on winning the SHRM Pinnacle Award for “Bridging the Talent Gap Kentucky.” Be sure to catch the details of their prize winning strategy on Page 8, and read about the other SHRM Pinnacle Award winners. This award is SHRM’s highest honor given to SHRM state councils and chapters for notable contributions to the human resource profession. It honors programs that exceed the standard activities of SHRM local networks in enhancing the creation of effective HR Management. If one of your New Year’s resolutions includes becoming a certified HR professional in 2018, you will be excited to learn that we are offering our Online HRCI (PHR | SPHR) Certification Exam Prep Class beginning February 19. Details are on the inside cover of this issue. You may register on our website. Be sure to watch your email for your invitation to attend our complimentary January webinar sponsored by Data Facts. You will earn 1.00 SHRM and HRCI credit for attending. Best wishes for happy and prosperous 2018! cynthia@hrprosmagazine.com @cythomps on Twitter
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on the cover
Johnny C. Taylor Jr. speaks with a SHRM member during the Volunteer Leaders’ Summit in November in Washington, D.C. Photo by Chris Williams
JOHNNY C. TAYLOR JR., SHRM-SCP President & Chief Executive Officer, Society for Human Resource Management
Johnny C. Taylor Jr., SHRM-SCP, is president and CEO of the Society for Human Resource Management (SHRM), the world’s largest HR professional society. He previously served a two-year term as chair of the SHRM Board of Directors in 2005 and 2006. Taylor is the immediate past president and CEO of the Thurgood Marshall College Fund, which represents almost 300,000 students attending public Historically Black Colleges and Universities. In this role, he became a prolific fundraiser, amassing over $100 million in grants and gifts. As an influencer in his field and community, he was named one of the Ebony Magazine “Power 100” in 2011. Previously, he held positions at IAC/Interactive Corp, first as its senior vice president of HR and then as president and CEO of one of IAC’s operating subsidiaries. Taylor’s career also spans almost 15 years in the practice of law and HR, including as litigation partner and president of the HR consulting business of the law firm McGuireWoods LLC; executive vice president, general counsel and corporate secretary for Compass Group USA; general counsel and senior vice president of HR for Viacom’s Paramount Pictures Live Enter-
tainment Group; and associate general counsel and vice president of HR for Blockbuster Entertainment Group. Taylor holds both a juris doctorate and a Master of Arts with honors from Drake University. He obtained a Bachelor of Science with honors from the University of Miami. He is licensed to practice law in Florida, Illinois and Washington, D.C. He currently serves on the corporate board of Gallup, the leader in organizational consulting and public opinion research, and is a member of the Board of Trustees of the University of Miami and The Cooper Union for the Advancement of Science and Art. He is a member of the Board of Directors of the Thurgood Marshall College Fund. Taylor commented, “Our profession matters—to the U.S. and global economies, to the future of business, and to every worker and family. These days, being courageous means taking the HR profession itself into new spaces, breaking down any remaining boundaries that would constrain what HR can be and achieve. A decade from now, I believe our work will have expanded beyond what we can imagine.”
The Society for Human Resource Management (SHRM) is the world’s largest HR professional society, representing 285,000 members in more than 165 countries. For nearly seven decades, the Society has been the leading provider of resources serving the needs of HR professionals and advancing the practice of human resource management. SHRM has more than 575 affiliated chapters within the United States and subsidiary offices in China, India and United Arab Emirates. www.HRProfessionalsMagazine.com
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SHRM-Memphis | ATD Meeting Memphis Doubletree Hotel – December 5, 2017
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1 (L-R) Verlinda Henning, 2018-2019 SHRM-Memphis President; and Tisch McDaniel, 2016-2017 SHRM-Memphis President, welcome attendees to the meeting. 2 The SHRM-Memphis Chapter Board of Directors 3 The Memphis Chapter Association for Talent Development Board of Directors. 4 Mack Munro, well known public speaker, and founder of Boss Builders, was the speaker at the Joint Meeting of the Memphis Chapters of ATD and SHRM. 5 (L-R) Mack Munro, speaker at the Joint Meeting of the Memphis Chapters of ATD and SHRM, presenting a Facebook live interview. Visit www.facebook.com/ hrprofessionalsmagazine.com to view the video.
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6, 7 & 8 Attendees at the Joint Meeting of the Memphis Chapters of ATD and SHRM.
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2018 BE THE CATALYST SHRM-ATLANTA HR CONFERENCE
March 27-28, 2018 | Cobb Galleria Centre | Atlanta
Join over 1,000+ HR practitioners, industry experts and resource partners March 27-28 at SOAHR 2018, SHRM-Atlanta’s 28th Annual Conference, to share best practices, network, develop skills, build knowledge, and have fun! If you’re involved in HR in any capacity, you don’t want to miss this event.
SOAHR 2018 Highlights: • 30+ sessions in 5 concurrent tracks • 12 hours of recertification credit with SHRM & HRCI • 2 engaging keynotes • 28+ industry expert speakers from companies such as MARTA, NBCUniversal and IHG • NEW Pre-Conference Workshop on March 26th (3 PDCs) • Interactive programs • Early morning sessions
Save $30 off Two-Day Registration with code HRPRO
Register now at SOAHR.net Advanced Rates available through February 5. SHRM-Atlanta members enjoy lowest rates!
www.SOAHR.net www.SHRMAtlanta.org
SHRM Chapters and Councils from 9 States and Guam Win Pinnacle Awards for Exceptional HR Programs The Society for Human Resource Management (SHRM) presented 12 affiliates with its Pinnacle Award — the highest honor given to SHRM state councils and chapters for notable contributions to the human resource profession. Created in 1991, the award is the most prestigious achievement SHRM state councils and chapters can attain, and it honors programs that exceed the standard activities of SHRM local networks in enhancing the creation of effective HR management. SHRM entities from Arizona, Guam, Florida, Illinois, Indiana, Kentucky, Missouri, North Carolina, Wisconsin and Wyoming were presented with the Pinnacle Award during SHRM’s annual Volunteer Leaders’ Summit, which was held in November 2017 in Washington, D.C. “This year’s Pinnacle Award winners have shown exceptional HR leadership through their innovative chapter and council programs,” said Henry G. (Hank) Jackson, former president and CEO of SHRM. “Their programs offer businessminded solutions, such as transitioning veterans to the civilian workforce, teaching ex-convicts skills to prevent reincarceration, and offering SHRM certification opportunities to members.”
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The 2017 SHRM Pinnacle Award winners are: Arizona SHRM State Council “Virtual Certification Course: Supporting Learning Across Arizona” Mid-Florida SHRM “Labor Relations in Film” SHRM Guam Chapter “Reinventing SHRM Guam: Something Old + Something New = Success” Heart of Illinois Human Resource Council “Igniting Leaders – Re-entry” Indiana State Council of SHRM “Inspiring a Shared Vision at Indiana SHRM: The recognized authority in HR in the state of Indiana” Southern Indiana SHRM “Branding for Success: Member Engagement and Beyond” Kentucky SHRM State Council “Bridging the Talent Gap Kentucky” SHRM of Greater Kansas City (Mo.) “Member Benefit Redesign” Raleigh-Wake Human Resource Management Association (N.C.) “Xtreme Beginnings: Where Do You Go from Here?” Dodge County SHRM (Wis.) “The Value of Joined Forces” Metro Milwaukee SHRM (Wis.) “HR Executive Forum” High Desert Human Resources Association (Wyo.) “Employment Law Seminar”
KENTUCKY SHRM STATE COUNCIL – “BRIDGING THE TALENT GAP KENTUCKY” The council’s program “Bridging the Talent Gap Kentucky” was a collaborative process involving stakeholders across Kentucky to provide meaningful statistics reflecting the gaps in business workforce needs and skills of current applicants. All 13 chapters and the state council rolled out the survey resulting in responses from small, medium and large organizations across the state. The program brought increased attention to the work of the state council and its chapters and brought together members of the business, education and government communities. Additionally, approximately 200 people from across the state attended the Bridging the Talent Gap Kentucky Results Event to hear some of the results and discussions among state officials, educators and business leaders. The data was delivered to 20 business and industry leaders of a local town who are studying how to improve the workforce in their community. Approximately 150 leaders from public, private, education, and nonprofit employers in Northern Kentucky met to discuss the data. Through the conversations that evolved, the Kentucky SHRM State Council is now considered a thought leader on this topic in the community.
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EMPLOYMENT LAW ISSUES TO WATCH IN 2018
By LISA A. KRUPICKA
H
ard to believe that 2017 is almost over but here we are. I don’t have a particularly good knack for making predictions, but I don’t have to be a legal wizard to tell you what to expect in employment law in 2018: Change, change, change! Here are some areas that HR professionals should be watching in the coming year:
T he Salary Threshold for Overtime Exemptions We had a lot of excitement in 2016 with the anticipated raising of the salary threshold required for the white collar exemptions from $455 a week ($23,660 annually) to $913 a week ($47,476) on December 1, 2016. Then came the last minute injunction from a Texas federal district court and the election of Donald Trump as President. The Trump administration Department of Labor backed off its appeal of the injunction and the district court eventually granted summary judgment for the plaintiffs in August 2017, making the injunction permanent. So we’re back at $455 but for how long? Probably not long. In July 2017, the Department of Labor issued a request for information that asked commentators their thoughts on how to set the new threshold. At his confirmation hearing, new Labor Secretary Alexander Acosta said the threshold should be set somewhere between $30,000 and $35,000. The comment period closed in September 2017. Commentators from the management side argued that the DOL should use the 2004 test, which calculated the threshold based on the 20th percentile of the lowest wage region. This test, when based on current numbers, would raise the threshold to $32,000. Labor commentators want to stick with the Obama DOL formulation based on the 40th percentile of the lowest wage region, which sets the threshold at $47,476 with a built-in escalator. Look for the final proposed rule in 2018.
The Minimum Wage Expect it to continue to increase through state and municipal legislation, except in the South, with some states on the two coasts going as high as $15 an hour over the next few years. There is little or no chance the U.S. Congress will change the federal minimum wage, so it will be left to cities and states to continue to experiment.
Collective Action Waivers In 2012, the National Labor Relations Board decided D.R. Horton, Inc., 357 NLRB 2277 (Jan. 3, 2012) holding that Sections 7 and 8 of the National Labor Relations Act prohibit employers from requiring their employees to sign an agreement that precludes joint, class or collective claims concerning wages, hours or their working conditions. The Board reasoned that such waivers interfere with employees’ statutory rights to engage in concerted activities in pursuit of mutual aid and protection. 10
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The NLRB has continued to enforce the D.R. Horton rule despite its rejection by the Second and Eighth Circuits, pointing to support from the Seventh and Ninth Circuits. The circuits rejecting D.R. Horton have generally held that a class or collective action is a procedural device used to bring substantive claims rather than a substantive claim in itself, so that the NLRA does not apply. The circuits upholding D.R. Horton reach the opposite conclusion, i.e., that the use of class action procedures is a substantive right protected by the NLRA. In order the resolve this circuit split, the U.S. Supreme Court granted certiorari in the Fifth, Seventh and Ninth Circuit cases and heard oral arguments in October 2017. The Supreme Court has affirmed time and again its great affection for the Federal Arbitration Act, including in the class action waiver context. In AT&T Mobility LLC v. Concepcion, the Court held in the consumer context that state law doctrines that “disfavor arbitration” are preempted by the FAA if requiring the option of class-wide arbitration interferes with fundamental attributes of arbitration. We can expect a decision in early 2018.
LGBT Issues in the Workplace We have seen swift advancement of LGBT rights in the wake of the U.S. Supreme Court decision that same-sex couples have the constitutional right to marry in Obergefell v. Hodges, but changes in the employment context have not yet been clearly established. Although the Seventh Circuit, in Hively v. Ivy Tech Community College of Indiana, decided that Title VII’s prohibition on sex discrimination includes sexual orientation, and the Second Circuit appears poised to do the same in Zarda v. Altitude Express, the vast majority of the other circuits have held that sexual orientation discrimination is not covered by Title VII, including the recently decided Eleventh Circuit decision of Evans v. Georgia Regional Hospital. If you had asked me a couple of weeks ago if I thought the Supreme Court would take up this circuit split at the first opportunity, I would have said “yes of course!” but I would have been wrong. On December 11, 2017, the Court denied cert in the Georgia Regional Hospital case, leaving the law uncertain. I do think it is probable that another circuit will be presented with an opportunity to revisit the issue in 2018, so stay tuned.
Labor Relations Round-Up In this area, we can expect swift and wide-reaching changes in the interpretation of labor/management rights by the new Republican-dominated NLRB. With the confirmation of two managementside labor lawyers to the NLRB to create a 3-2 Republican majority and the appointment of a management-side labor lawyer as General Counsel, some of the most controversial board precedents of the last few years are already in the process of being overturned.
On December 1, 2017, the General Counsel issued a directive to his Regional Directors to submit for advice cases raising issues such as the following: protection of the use of vulgar or obscene language when exercising rights under the NLRA, the invalidation of employee handbook rules prohibiting disrespectful conduct, the imposition of the joint employer doctrine in independent contractor and franchisor/franchisee relationships, the invalidation of rules requiring employees to maintain the confidentiality of workplace investigations, and the requirement that employers allow employees to use company email systems to advocate for a union. Only two weeks after the issuance of this directive, on December 14, 2017, the Board, by a 3-2 vote, has already invalidated the 2015 Browning-Ferris Industries case, which expanded the test for determining joint employment to permit a company and its franchisees or contractors to be deemed a single employer for union organizing purposes even in the absence of overt control over workers’ terms and conditions of employment. On that same day, the Board, by the same majority, overturned the 2004 Lutheran Heritage Village-Livonia standard, which held that handbook policies that could be “reasonably construed” to have a chilling effect on the exercise of collective rights under the NLRA were illegal, imposing instead a standard under which the Board would balance a given rule’s impact on workers’ rights with the employer’s reasons for promulgating it. The Board has also overturned Specialty Healthcare, the 2011 decision approving the creation of “micro-units” for bargaining purposes, and the 2016 DuPont decision limiting changes an employer can make in union workplaces. Expect more such reversals in 2018.
Sexual Harassment Allegations With new allegations of sexual harassment and assault being announced virtually every day against some of the most powerful figures in the fields of entertainment, journalism, politics, business and technology, there is no reason to believe this tsunami will abate in 2018. Many of these claims were addressed by the payment of a large settlement requiring confidentiality, so that in some cases, serial harassers were protected for years. The new tax bill passed by Congress in the last weeks of 2017 refuses a tax deduction for expenses associated with settlement of a sexual harassment or assault claim if the settlement is tied to a confidentiality agreement. A once skeptical public has now embraced complainants and expects action to address these complaints. HR professionals, who are frequently outranked by the person who is the subject of a complaint, will be under even more pressure to strike the right balance among their duties to complainants, to the accused and to the companies they work for. Cue shameless plug: your friendly neighborhood employment lawyer is always available to help you navigate these treacherous waters!
Good Luck and Happy New Year! Lisa Krupicka, Attorney Burch, Porter & Johnson, PLLC lkrupicka@bpjlaw.com www.bpjlaw.com
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A Night of Excellence…Celebrating the 2017 Stars of HR !! Join SHRM-Memphis as we honor the best and the brightest in HR at the
SHRM-Memphis HR Excellence Awards Tuesday, February 20, 2018 Memphis Bioworks Foundation 20 South Dudley Street 5:30 – 8:00 pm
A gala evening of celebration, recognizing the nominees and winners of the following: George Mabon HR Executive of the Year Award HR Emerging Leader Award Memphis HR Champion Award HR Lifetime Achievement Award HR Student of the Year Award Registration is now open…tickets are only $35 through January 16, 2018! To register, please visit the SHRM-Memphis Website at www.shrm-memphis.org.
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SHRM-Memphis Professional Meeting
Half Day Legal Seminar
SHRM Student Chapter Meeting
Interview Workshop
FCBE 128
SHRM-Memphis Professional Meeting
Speaker TBA
Fogelman Executive Center - U of M Campus (Must have reservation to attend)
SHRM Student Chapter Meeting
Networking Event with HR Professionals
FCBE 128
Center - U of M Campus (Must have reservation to attend)
March 18 at 8:00 am
University of Memphis April 4 at 12:30 SHRM Chapter Meeting November 17, 2017 April 15 at 11:30
SHRM Meeting
April 24 at 11:30
For membership inquiry or for other information, contact Mrs. Kathy Tuberville at ktbrvlle@memphis.edu or Dr. Carol Danehower at vdanehwr@memphis.edu
SHRM SPRING EVENTS!
Sponsored by U of M SHRM Student Chapter
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SHRM Student Chapter Meeting
HR in Healthcare
FCBE 128
January 31 at 12:30
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Fogelman 1 The University of Memphis SHRM Student Chapter with Dr. Kathy Tuberville, SHRMExecutive Faculty Advisor from the Management Department, The HR Professional Center - UatoftheMDecember Campusmeeting of the University of Memphis sponsors SHRM-Memphis the Chapter. 2 The SHRM-CP Certification Exam Scholarship was discussed Competency Model: A February 18 at 11:30 SHRMProfessional Chapter. 3 University of Memphis SHRM Student Chapter members participated the meeting. 4 (L-R) Dr. Kathy Tuberville, Verlinda (Must haveinreservation Meeting Road Map for Success Henning, 2018-2019 SHRM-Memphis Chapter President, Cynthia Y. Thompson, Editor and Publisher of HR Professionals Magazine, led a panel to attend) discussion about studying for the SHRM-CP Certification Exam. SHRM Student Chapter Meeting
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February 28 at 12:30
SHRM-Memphis Professional Meeting
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SHRM Student Chapter Meeting
Interview Workshop
FCBE 128
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Fogelman Executive Center - U of M Campus (Must have reservation to attend)
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yet practical counsel. We stay on pace with the complex and rapidly evolving employment landscape, connecting your dynamic humanwith Networking Event SHRM Student resources needs to proactive strategies. Chapter Meeting
HR Professionals
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Stay up-to-date on the latest in HR Law. Visit our blog at bassberryhrlawtalk.com.
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Big
Challenges
in Executive Comp
and How to Address Them By BRAD FEDERMAN and JOEL MYERS
We all know executive pay has become a significant issue. The challenges associated with executive compensation are highlighted in the headlines: “The Coming Battle over Executive Pay” “CEO Pay Is Out of Control” “The Overpaid CEO” According to Bloomberg Pay Index, the highest paid executive in 2016 was Mr. Marc Lore. CEO of U.S. E-Commerce for Wal-Mart Stores, Inc. He was paid a total of $236,896,191. However, thishis included $346,154 in base salary, $1,055,136 in bonus, and $235,594,901 in Acquisition Awards, Pension, Deferred, and other. In January 2106, Wal-Mart committed to increasing all associate’s wages to a minimum of $10.00 per hour. We may be surprised by the magnitude of the difference, e.g. $10.00 per hour for a Wal-Mart cashier versus $113,892 per hour for Mr. Lore, this is actually positive news for some 500,000 Wal-Mart associates. When we think about the dynamics between executive and general employee pay, we’re left with some questions. • Does the pay difference between occupants of the C-Suite and shop floor contribute to lack of employee commitment and engagement? • Do pay programs contribute to behaviors that conflict with the best interests of customers, shareholders, and employees? • Are executives insulated from the effects of changing business/market positions? The answer to each of those questions is “Yes, but it does not have to.” We have all too often seen the impact of executive compensation structures that breed distrust, create sabotage, destroy morale, land people in jail, hurt the customer and even pay executives more when company performance falls.
Commitment & Engagement Boards of Directors in publically traded companies are learning from activist shareholders about the importance of pay transparency. Say-on-Pay initiatives demand increased disclosure of pay philosophy, plan architecture and award calculations. This public information encourages a more thoughtful approach to senior executive pay. It also makes pay information more accessible. A behind-the-curtain look at executive pay is now available to the public, including employees, who may now ask informed questions about pay practices for the exclusive benefit of executives. This pressure for increased shareholder transparency also impacts internal communications with employees regarding pay. In our work with employee engagement surveys, we find that employees seek understanding, equity and fairness in pay. Company leadership recognizes that disclosure builds trust. More and more, companies are documenting their compensation philosophy and the basis for making pay decisions. This addresses employees’ desire for understanding. Publicized guiding principles for making pay decisions give employees confidence that their interests are being considered.
Equity & Fairness Fairness regarding pay decisions is often more a matter of perspective. Again, looking at lessons from executive pay reporting, public companies must now disclose unique pay arrangements that may impact only one or two individuals. Knowing that any special arrangement will become public knowledge tends to discourage such actions. It is these special arrangements that create perceptions of favoritism. If an organization follows a consistent compensation philosophy and guiding principles, precedent-setting arrangements will not occur. 14
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Perceptions of inequity result in ill-will and lack of trust, which results in declining morale. When deciding whether or not an employee feels he/ she is being paid equitably, the comparison is with others who work in similar jobs, not an executive in the corner office. Employees expect organizational leadership to be paid competitively, just as they are. However, their point of reference is other employees who are in similar circumstances. Executives view pay in a similar way. First, they look at their compensation relative to others within their own company. Then they look more broadly at pay relative to similar positions in other, similarly-sized companies within their industry. Privately held companies may feel constrained relative to publically traded peers by their lack of stock-based, long-term incentive plans. With creative design, however, private companies can develop plans that mirror their public competitors through the use of value appreciation plans.
Misguided Objectives Beginning in 2011 and continuing until it was discovered and made public in 2015, Wells Fargo employees were rewarded for creating bogus accounts. In 2015, Wells Fargo lost a suit in California which cost the company hundreds of millions of dollars in fines and penalties. The cause was attributed to a lucrative bonus plan that set unreasonable goals for sales of new accounts. Over 5,000 employees were terminated, including a number of highly placed executives. The 2008 financial crisis resulted in The Great Recession. Millions of people lost their life savings. A mountain of legislation was created in an attempt to prevent a recurrence. Prominent Wall Street executives were imprisoned. Contributing to these poor decisions were incentive plans that ignored sound financial analysis in favor of exorbitant bonus schemes. A once prominent, family-owned business established pay practices that placed a higher priority on preserving the status-quo and immediate return over long-term reinvestment and growth. These are illustrations where the objective was personal gain over sound business practice. The principles that guided the pay systems and the behaviors that the plans rewarded were contradictory to the organizations’ wellbeing and future prosperity. We cannot say that the plans were unsuccessful, but we can say that objectives were wrong – driven by personal gain. In these examples, employees were rewarded for behaving in ways contrary to the greater good.
Executive Pay vs Economic Conditions Components of executive pay include base salary, annual incentives, long-term incentives, benefits, and perquisites. The largest elements are annual and long-term incentives. Figure #1 shows how CEO pay has fared relative to the S&P 500 and typical worker pay. The variability in pay closely mirrors the S&P 500. However, the impact of this variability on lifestyle is far different for executives than for the typical employee. First, the magnitude of the real change in pay for
CEO’s versus the typical employee is almost 1,000:1. Between 1978 and 2014, executive pay went up 997.2% versus a 10.9% increase in real earnings growth for the typical employee. For executives, variability as a result of economic conditions meant reduced annual and long-term incentive payments. Base salaries, which define standard of living, continued to increase at about the same rate or slightly more than the typical employee.
Figure 1
Figure 2
Another measure of CEO pay sensitivity relative to performance is how changes in Total Shareholder Return (TSR) compare with executive rewards. The following chart shows the increases in CEO pay relative to increases in TSR between 2009 and 2016. In these post-recession years, year-over-year TSR increases ranged from +1.0% to +32% while CEO pay increased more steadily between +2.0% and +6.0%, with 2008-2009, a recession rebound year, showing a 31% increase.
The trend in Figure #2 from the Harvard Law School Forum of Corporate Governance and Financial Regulation generally reflects a positive relationship between pay and TSR. However, digging a bit deeper, 2015-2016 changes in S&P 500 index revenue and EBITDA were 1.8% and 0.9% respectively. This resulted in reduced annual bonuses, offset by increases in base salaries and long-term incentive grant values.
o Continually monitor systems to validate that rewards are aligned with objectives. Take action when misalignment is recognized. o Make variable pay variable. An incentive plan that always pays out is not an incentive, it is an expectation. o For executives, keep base salary increases modest, consistent with increases for typical employees. o In privately held companies, consider long-term incentives for senior leadership. While ensuring the mechanics of executive compensation are essential they do not account for everything. Sometimes it boils down to the way things look. If the company does better and is more profitable than ever causing executive compensation to increase, but the average employee is doing worse you can expect problems. The back drop makes a difference. The symbolic value of actions makes a difference. Sometimes employees just need to know you are all on the same team.
Brad Federman, COO F&H Solutions Group bfederman@fhsolutionsgroup.com www.fhsolutionsgroup.com
Action Plans As a company considers employee and executive reward system, here are some key takeaways from this research: o Be open and communicative about reward systems. o Develop a written statement of compensation philosophy with guiding principles.
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15
DOJ REAFFIRMS FUNDAMENTAL IMPORTANCE OF RELIGIOUS LIBERTY By EDWARD H. TRENT
The United States Supreme Court has a rich history of protecting individual religious liberty from intrusion by the state. The Court has defended a person’s ability to not only believe and worship, but to live according to one’s faith. Over the last 50 years, with changing cultural views on sexuality in particular, conflicts between faith and culture have more often turned into conflicts between one person’s religious convictions and another’s right to sexual freedom. From contraception, to homosexuality, to the definition of marriage, to gender identity, the conflicts between religious views and societal acceptance of more liberal views of human sexuality have pitted the government against business, employer against employee, and employee against employee, with vocal advocacy groups on all sides. Not surprising, the courts have been asked to balance these competing interests. On June 30, 2014, the United States Supreme Court issued its opinion in Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014), declaring that the religious liberty rights of privately held businesses trumped the government’s desire to provide free contraception through employer health care plans. On December 5, 2017, the Supreme Court heard oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Case No. 16-111. The issue before the Court is whether private business owners must provide services in support of same-sex wedding ceremonies/celebrations when doing so would violate the business owner’s religious beliefs regarding marriage. Here, the Court must determine how to properly balance individual religious liberty interests and federal and state interests in prohibiting and eradicating discrimination.
On October 6, 2017, the Department of Justice issued a Memorandum to all Executive Departments and Agencies requiring that the First Amendment’s protection of the Free Exercise of Religion be given the broadest possible protections; including in the application and interpretation of Title VII. The purpose of the Memorandum is evident from the introduction. Religious liberty is a foundational principle of enduring importance in America, enshrined in our Constitution and other sources of federal law. . . . Except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law. Memorandum p. 1. The Memorandum also notes: The Free Exercise Clause protects not just the right to believe or the right to worship; it protects the right to perform or abstain from performing certain physical acts in accordance with one’s beliefs. . . . [T]he exercise of religion [is broadly defined] to encompass all aspects of observance and practice, whether or not central to, or required by, a particular religious faith. Memorandum Principle No. 2 (emphasis added). 16
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Against this backdrop is a section in the EEOC’s Proposed Enforcement Guidance on Unlawful Harassment issued in January 2017, that when read in context with other provisions of the proposed Guidance highlights the growing tension between religious beliefs and individual sexual autonomy. Special consideration when balancing anti-harassment and accommodation obligations with respect to religious expression: Because Title VII requires that employers accommodate employees’ sincerely held religious practices and beliefs in the absence of undue hardship, employers may violate Title VII if they try to avoid potential coworker objections to religious expression by preemptively banning all religious communications in the workplace. Employers, however, also have a duty to protect workers against religious harassment. Employers would not be required to accommodate religious expression that creates, or threatens to create, a hostile work environment. Guidance p. 65 (emphasis added). The EEOC does not clarify when or what type of religious expression would create a hostile work environment other than possible persistent, unwelcome proselytizing. However, one other example is found in the Guidance, namely when an employee makes “derogatory” comments concerning sexual orientation. The EEOC’s example, however, fails to place the presumably offensive comments in context, fails to give any examples of comments that would be considered derogatory (unlike its numerous other examples of harassing behavior), and specifically states that the comments need not be directed at any employee at all but may simply be overheard. Guidance Example 3 (describing “facially discriminatory” conduct). In short, the EEOC’s proposed Guidance suggests that sexual orientation takes precedence over an overheard religious discussion disapproving of the behavior. This conflict between religious beliefs and the EEOC’s position on what constitutes sex discrimination or sexual stereotyping creates an issue for employers on what to do when employees discuss their religious beliefs about sexual morality, specifically when it concerns sexual orientation or gender identity, and another employee finds such religious beliefs offensive. Employees also have questions on whether they must leave their religious convictions at the door of their employer. Likewise, business owners who operate their business in accordance with their religious beliefs have questions on when, or if, they can decline services in support of particular causes, events, or functions or whether they can establish work rules consistent with their religious beliefs. The issue is often how to balance one’s right to religious free exercise when it comes into conflict with another’s right to employment, commerce, or personal, private behavior. The Memorandum attempts to address these and other concerns when it comes to the application of federal law and the constitutionally mandated protections for religious free exercise. In the employment context, Title VII is clear that employees are entitled to reasonable accommodation for their religious beliefs and practices. Memorandum Principle 16 and 17. The EEOC upheld this requirement in EEOC v. Star Transport, Inc., Case No. 13-cv-1240 (C.D. Ill) when it filed suit on behalf of two Muslim truck drivers who refused to transport alcohol as part of their jobs. The EEOC argued and the court determined the employer’s decision to terminate the employees rather than accommodate their beliefs violated Title VII. Employers must take requests for religious accommodation seriously and work with the employee to determine if an accommodation is available, particularly when job duties conflict with sincerely held religious beliefs.
With the EEOC’s expanded interpretation of “sex” under Title VII - going beyond biological sex (male or female) to also prohibit discrimination on the basis of sexual orientation and gender identify - some employees are discovering that holding traditional religious views on sexual behavior can get them in trouble with their employer. One instance that remains in litigation involves the former Fire Chief for the City of Atlanta, Kelvin Cochran v. City of Atlanta, et. al., Case No. 1:15-cv-00477-LMM, pending in the U.S. District Court for the North District of Georgia. There, Chief Cochran asserts he was terminated after the City learned he had written a short book for a men’s Bible study at his church in which he discusses Biblical teaching on sexual morality, including the prohibition on sexual relations between people of the same-sex and any sexual relations outside of marriage. Although there was no evidence he had treated anyone unfairly due to sexual orientation or religion, he was nevertheless terminated because, he asserts, he had the audacity to publish his personal, Christian beliefs on sexual morality, views the City found to be derogatory on the basis of sexual orientation. There are occasions when an employer’s operation of its business consistent with the employer’s religious beliefs conflicts with non-discrimination laws. Under federal law, when a law of general applicability, such as Title VII, creates a substantial burden on one’s religious free exercise, the law can only be upheld if it is narrowly tailored to support a compelling governmental interest and is the least restrictive means available. Memorandum Principle 14. One example where this principle is being considered is a case pending in the U.S. Court of Appeals for the Sixth Circuit, EEOC v. RG and GR Harris Funeral Home, Case No. 16-2424. The EEOC claimed sex discrimination when the plaintiff, a biological male, was terminated after telling the employer that he was transgender and would be presenting as female going forward. The trial court found that not allowing the plaintiff to dress according to the female dress code was sexual stereotyping, but granted summary judgment in favor of the employer because to allow a male to dress and appear as a female violated the employer’s sincerely held religious beliefs regarding a person’s sex as an immutable characteristic not subject to change. The court of appeals will have to determine the proper balance between the employer’s religious liberty and the individual employee’s rights under Title VII. The Memorandum notes that just because a third party may be affected that does not mean that an exemption based on religious liberty should be unavailable. Memorandum Principle 15. How the courts will strike that balance, however, remains to be seen. With the Memorandum, the current administration is directing that greater emphasis be placed on protecting individual religious liberty when applying and enforcing federal law, but it remains to be seen how this directive will be implemented by the various federal agencies and how the courts will resolve conflicts between religious beliefs and non-discrimination laws. For employers, it is important to be aware of what is taking place in the workplace. When conflicts arise over personal beliefs, employers and supervisors need to address the matter and return the focus to the work at hand, which may require updated training for supervisors and Human Resources managers. Just as the courts will struggle with balancing various interests, so must employers when dealing with their employees. The Department of Justice has taken a step to remind all parties that it is fundamental to all basic rights that we protect and defend individual religious liberty even when culture appears to be rejecting traditional religious values.
Working Boomer Advocate Attorney Dan Norwood 254 Court Ave Memphis, TN 38103 901.834.9292 workingboomeradvocate.com
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17
Are You Ready for a Massive Increase in ICE I-9 Inspections? By BRUCE E. BUCHANAN
In October 2017, Tom Homan, Acting Director of Immigration and Customs Enforcement (ICE) (and nominated to be Director), announced an increase of I-9 Inspections/Audits "by four to five times." What can employers do to decrease their vulnerability to significant penalties if one is inspected? There are two things – conduct an internal I-9 audit and implement an immigration compliance policy. In our recently published book, I-9 and E-Verify Handbook (2d edition), Greg Siskind and I discuss the need for an internal I-9 audit as well as a written immigration compliance policy. I invite you to read the book, which is available at http://www.amazon.com/dp/0997083379. Internal I-9 Audit An internal I-9 audit (also called a self-audit) is the best prevention tool to avoid costly penalties if ICE conducts an inspection of your I-9 forms pursuant to a Notice of Inspection/subpoena. An internal I-9 audit is not required by law but is highly recommended. However, unless such an audit is conducted by, or under the close supervision of, an immigration compliance attorney, an employer may do more damage than good. A classic example of doing more damage is finding errors on the I-9 forms, completing new I-9 forms, and destroying the existing I-9 forms. An employer should conduct internal I-9 audits yearly or less frequently, depending on size of company and number of employees hired each year. An employer may choose to audit the I-9 forms of all current employees, all current employees and former employees for the last two years, or a sample of I-9 forms selected based on neutral and non-discriminatory criteria. If a subset of I-9 forms is audited, the employer should consider carefully how it chooses I-9 forms to be audited to avoid discriminatory or retaliatory audits. Thus, one should not audit only those employees with permanent resident cards or foreign-sounding last names.
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Correcting Errors on I-9 Forms If errors are found on I-9 forms, they should be corrected by the employee for Section 1 errors and the employer for Sections 2 and 3 errors. For corrections in Section 2, it should be the employer’s representative who originally reviewed documents and signed the certification. If that person is no longer employed, it is usually best to complete a new I-9 form. However, if it is a minor error, such as failure to include a title or expiration date on List A, List B, or List C document and the document is attached to the I-9 form or readily available, the employer’s address is missing, or the information is put in the wrong list, i.e., Social Security card in List B and driver’s license in List C, another HR representative can make the correction. In doing so, one should add that information in a different color pen, initial, and date the correction. To correct multiple errors on an I-9 form, a new I-9 form may be completed and attached to the old form. Or if entire sections of the I-9 form were left blank, one may complete just that section, after reviewing the provided documents, and attach it to the old I-9 form. In making corrections or attaching a new I-9 form, always include a note concerning the reason changes were made to the existing I-9 form or a new I-9 form was completed. It is sufficient to state the errors were located in an internal I-9 audit. Other Parts of an Internal I-9 Audit During an internal I-9 audit, these ideas should be implemented: 1. E stablish a re-verification tickler syst em to ensure I-9 forms are checked in a timely manner; 2. E stablish a backup system to ensure timely compliance with I-9 form rules when a human resource professional is out of the office; 3. Segregate I-9 forms from other personnel records; and 4. C onsider using an electronic Form I-9 product to automate the collection of information, to reduce errors, speed up the production of information in the case of a government audit, and ensure timely re-verification of I-9 forms. Written Immigration Compliance Policy As previously stated, every employer should have a written immigration compliance policy. Why? There are many reasons but one of the most important is to identify the person in charge of immigration compliance. It’s amazing how often that simple question is met with uncertainty. As we all know, if someone does not take ownership over a policy, that policy will flounder. The following are items that should be in an immigration compliance policy: 1. Determine whether copies of documents should be retained; 2. Determine whether the company should use E-Verify; 3. Determine if the company is required by state or federal law to use E-Verify or FAR E-Verify; 4. Zero tolerance policy for employment of individuals who cannot comply with work authorization rules; 5. Timing and procedures for regular internal I-9 audits to be conducted; 6. Rules on which management has access to I-9 records; 7. How often is training required for employer representatives, who are completing I-9 forms; 8. Define the required retention policy of I-9 forms – 1 year from employee’s termination or 3 years from original hire, whichever is longer; 9. Rules for working with outside contractors; 10. Re-verification procedures for employees with Employment Authorization documents; 11. Set protocols for interacting with government officials if ICE or another federal agency shows up at worksite; and 12. Policy on no discrimination of applicants/employees based on their lawful immigration status – citizenship, permanent resident, etc. or national origin. Conclusion Through both performing an internal I-9 audit and implementing an immigration compliance policy, an employer will substantially decrease its potential liability if ICE conducts an I-9 Inspection.
Bruce E. Buchanan, Attorney Siskind Susser PC bbuchanan@visalaw.com www.visalaw.com 18
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needs for business owners and human resource professionals to understand and persevere in these hostile waters. AN ESSENTIAL HANDBOOK!
With these pitfalls facing unwary employers, Buchanan and Siskind have written this excellent and necessary guide which serves as a one-stop shop for those who need to know the intricacies of the latest I-9 form, the E-Verify process, and antidiscrimination laws and regulations governing the U.S. workforce. The book provides a thorough overview of the government’s system for verifying that employers are not hiring individuals who lack the legal authorization to work in the United States.
The I-9 and E-Verify Handbook: A Guide to Employment Verification and Compliance By WILLIAM CARMICHAEL INTRODUCTION
As a former HR Director responsible for the accuracy of thousands of employees’ new hire paperwork, completing the I-9 was a routine we too often took for granted. My staff knew what documents were needed, what to keep, the questions to ask, and how to administer the process. Audits were rare but when one did arise it became an easy procedure to get through. Not so anymore! Now, the thought of bringing on even one new hire scares me to death just as it does for many in the HR field. The game has changed as have the rules. The I-9 and E-Verify Handbook: A Guide To Employment Verification and Compliance by Bruce E. Buchanan and Greg Siskind levels the playing field, informs us of what the new rules are and should now be required reading for any HR department wanting to get the process right! WHAT IS IN STORE FOR BUSINESSES?
To quote the authors, “President Trump has made it clear, through Executive Orders, that he intends to enforce employment verification laws more rigorously and proposing to hire 10,000 more U.S. Immigration and Customs Enforcement officers, many of whom will focus on I-9 audits (often referred to as ‘desktop raids’. Employers across the country have been assessed millions of dollars in civil penalties for I-9 violations and employment discrimination. Some companies are losing their business licenses and are being squeezed out of the bid process for government contracts.” These are alarming facts and the enforcement of immigration laws will only increase; hence, the
One emphasis I looked for during my review was from a historical perspective of how immigration law has evolved and I was not disappointed. For example, Chapter 1, which details the I-9’s general concepts, teaches us that central to the Immigration Reform and Control Act (IRCA) is a section that “creates an employer sanctions system that requires all employers in the United States to verify the identity and employment authorization of all employees hired since the law was passed in 1986.” Although I was familiar with IRCA just as most of our readers will be, I underestimated the true responsibility of employers as the government’s primary line of defense just as some of our readers may have. Yet just as the IRCA has evolved, so has the “deceivingly simple” I-9, which can no longer be taking lightly. This is where our author’s expertise in immigration law and compliance becomes so helpful to business owners and HR practitioners. STRUCTURE AND LAYOUT
Readers will have an initial impression of The I-9 and E-Verify Handbook: A Guide To Employment Verification and Compliance as one of two possible genre’s just as I did. First, its cover displays portions of an I-9 form and a “red” AUDIT glaring out at the reader- an attention getter for sure. And second, the look and feel of a law book with its logical chapters and subsections. I can assure you however, looks are deceiving! What readers will find is a practical guide that is extremely informative and easy to follow. An example that comes to mind is when I was able to quickly locate how to conduct an I-9 self audit which is found in Chapter 10 or the immigration rules employers must contend with when faced with layoffs and downsizing located in Chapter 15. Here, our authors have structured a user-friendly Table of Contents that will help both the novice as well as seasoned HR professional find what they need quickly. Its topical Index was also effective and beneficial. I was pleasantly surprised at not just the subject matter expertise our authors provide; after all, Buchanan and Siskind certainly know this
topic inside out, but the depth of resources they integrate into this handbook. Nineteen chapters run the full spectrum of immigration topics such as the Form I-9, re-verification, recordkeeping, electronic systems, unlawful immigration status, penalties, immigration reform, social security implications, mergers and acquisitions, state immigration laws, nonimmigrant visas as well as laws involving asylees and refugees. Questions built into each chapter effectively get to the heart of each topic and mirror those most commonly asked. It also contains multiple appendixes where readers can view correct as well as incorrect documents. While Appendixes A – E provide additional information relating to the Form I-9 in its entirety, new businesses or ones needing either case management assistance or where to locate an electronic filing systems vendor, Appendix F recognizes numerous reputable firms. Appendix G also provided an alarming list of recent immigration penalties and their specifics from around the country. The I-9 and E-Verify Handbook is organized in an easy-to-understand, question-and answer format with illustrations, checklists, and sample documents, which give the reader the tools to implement and improve any immigration compliance program. For any HR department, I highly recommend this “go to” handbook.
ABOUT THE AUTHORS
Bruce E. Buchanan is a founding partner at Sebelist Buchanan Law PLLC. He represents employers and individuals in all aspects of immigration law, with a special emphasis on employer immigration compliance and employment/labor law matters. Greg Siskind is one of America’s best-known immigration attorneys. His firm, Siskind Susser PC, has one of the largest health care immigration practices in the United States and represents many of the nation’s largest hospitals and hospital systems.
William Carmichael, Ed.D Professor | Strayer University william.carmichael@strayer.edu www.strayer.edu www.HRProfessionalsMagazine.com
19
Why the Brunt of the Workplace Opioid Epidemic
Falls on HR
By JULIE HENDERSON
The scary statistics are everywhere.
Drug use in the U.S. is at a crisis level, and the trend has seeped into companies large and small. Severe consequences are facing organizations across the country, and most of them aren’t prepared to handle it.
“ Drug overdose is now the leading cause of death for Americans under 50.”
HR professionals will undoubtedly be tasked with leading the charge to protect their workplace from drug-abusing job candidates and current employees.
“ In the U.S. sales of prescription opioids nearly quadrupled between 1999 and 2014.” “ 70% of employers state they have felt negative effects from their employees’ prescription drug use.” “ 71% of U.S. employers say they have been affected in some way by employee misuse of legally prescribed medications.” “ 81% of employers lack a comprehensive drug-free workplace policy.” And on it goes. 20
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The three reasons are: 1. HR handles employee issues. While drug use and abuse affect the workplace across all levels of position and throughout all departments, HR will most likely be the department that puts drug-abuse processes in place. Dealing with health issues, which is what drug abuse falls under, is ultimately HR’s responsibility. They must prepare to have a hand in dealing with this epidemic from policy-making to integration to follow through. 2. HR usually crafts new employee policies. Few roles in the company are as wellversed on what is and what is not relevant, fair, and legal in the workplace as HR. Dealing with drug abuse and employees with drug problems are delicate matters. The opioid epidemic demands attention from companies or they risk paying a steep price. HR professionals will be the best choice for building new rules, gathering resources, and crafting policies that protect and empower those in the workplace to properly and effectively cope with this issue. 3. Education and training frequently fall on HR. Changes in any employment policy need HR’s guidance and help to succeed. Companies that don’t already have a drug policy will lean on HR to roll it out and make certain every employee understands and abides by the new processes. This includes knowing their rights and being aware of resources available to them and their co-workers. While department managers can enforce the policy, HR will ultimately be held accountable to its degree of success. What can HR do to stem the hemorrhage of productivity, money, and training time that drug use and abuse are costing their companies? Create or re-vamp the drug-free workplace policy. Many companies have a drug policy, but most don’t include prescription drugs. HR should dig into the policy, or create one from scratch, and make certain it addresses both illegal and prescription drugs.
Educate managers extensively. When managers don’t handle drug abuse issues correctly, they compound the damage to the workplace. HR must train managers of all levels thoroughly on the company’s drug policy. Every manager should know how to detect an employee who is using drugs, what to say to him or her, and what action to take after that. Managers are key in reducing drug use and its impact on the workplace. Outline the employee’s role in the policy. Employees need to understand the policy and their role as well. Those with a drug problem need to know where to turn for help. Other employees should know where to go to report drug abuse. The common theme HR needs to convey is that recognizing and mitigating drug abuse is every single employee’s responsibility. Offer multiple resources. Make certain everyone in the company understands there is help available for drug addiction. Visit the OSHA and the U.S. Department of Health and Human Services website for access to guidance and several free tools to help create and maintain a drug-free workplace. Implement drug testing in pre- and post-employment screening. Drug screening is a valuable tool to employ to help minimize the damage drug addiction can wreak. From on-site saliva testing, to off-site urine and hair testing, there are a variety of drug screening options to identify drug abusers early in the process. HR professionals should outline how to use drug screening tools as part of the hiring process. These can also be used on current employees, either upon reasonable suspicion,
as random testing, or after accidents. Whichever avenue HR takes to build the drug testing process, make certain all employees know the proper actions to take in drug abuse scenarios. Re-visit the policy periodically. As with any process, the drug-free workplace policy should be reviewed periodically to allow for new laws and changing trends. Plan on a yearly review to make certain the policy remains relevant and effective. HR’s ability to create and execute a drug-free workplace and thorough drug screening process go a long way toward decreasing drug abuse and its resulting damage. Successfully doing so plays a vital role in increasing productivity, minimizing accidents, decreasing theft, and improving safety and attendance. It also helps decrease turnover and saves on admin costs and worker’s compensation claims. In today’s opioid epidemic, HR holds the key to protect their companies, the safety of their workplaces, and each employee’s safety.
Julie Henderson, Director of Sales Background Screening Division Data Facts, Inc. jhenderson@datafacts.com www.datafacts.com
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21
Rethinking Sexual Harassment Training
If
By AUSTIN BAKER
you have not seen the Saturday Night Live skit featuring “Claire the HR lady,” you need to watch it. (Actually, it is NSFW so before you Google it from your desktop, remember your policy and wait until you get home!) She walks in, flustered with a CVS receipt plastered to her neck, because she had to eat her lunch there as she is overworked and nearly burnt out. And now she has to remind people how to act again. Weren’t we supposed to get this training at home? It’s no wonder she was exasperated.
Are we tying the training to our values? Values aren’t real until they are tested and lived. Sexual harassment is an important litmus test for healthy workplace culture and boundaries. What actions are taken when it is reported, and how people are hired and fired should be related to the values of the organization. We need to start from the top down in adhering to our values, otherwise we will be wasting our time.
It’s no surprise to HR that sexual harassment is as prevalent as it is, but we can’t deny the current wave of public scandals that are raising the awareness of improper behavior and emboldening more and more individuals to come forward. Individuals in organizations are having conversations about all that is going on and it is our job as HR professional to lead and facilitate these discussions. HR has been doing training around this for years, so we definitely need to look in the mirror on this subject and ask “what more can we do,” or better yet, maybe we should be asking different questions altogether. If we were to rethink sexual harassment training, what new approaches should we take? Here are a few primers to consider. Is our training perpetrator focused or victim focused? Jeff Weintraub, a highly experienced employment attorney for Fisher & Phillips, says, “Sexual-harassment training over the years hasn’t been as effective as it should’ve been, as it’s been focused on a list of don’ts and on dealing with the harassers. I believe that the key to eradicating sexual harassment in the workplace is for management to focus on and support the victims of sexual harassment. The #MeToo movement has been sparked by victims coming forward—this just might be the beginning of a real solution.” 22
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truly engaging. Make sure the training is creating a psychologically safe environment for people to engage instead of mentally check out. Are we, for instance, infusing emotional intelligence and awareness into the conversation and talking about how our brains work and how to help control our impulses – or are we just listing do’s and don’ts on a stale slide presentation? How gender diverse is our management and core structure? Studies show that proximity creates empathy and acceptance and male-dominated power structures over the long term can contribute to a harassment-tolerant or even promotional cultures. For example, some well-researched individuals contend that promoting and hiring more females into the core of the business – addressing the traditional gender imbalance that exists in many companies – can reduce the instances of sexual harassment. Addressing traditional gender imbalance purposefully isn’t only good business, it can tangibly contribute to more positive and healthy workplace environments. It is time to rethink sexual harassment training, but we need to be looking for the right questions to ask. Otherwise, we will be in the same place as we are now, with not much to show after all these years of rote, “do’s and don’ts”-oriented training.
Are we providing any guidance about how to talk about this at work? Amy Gallo recently wrote a great article in the Harvard Business Review about how to talk about sexual harassment at work. She helps both genders rethink how they share and express their views by asking us to reduce our biases, and to open up and think about our responses before the conversation even begins – because there is a decent chance that the conversation will happen if it hasn’t already. Is the training engaging in the right way? All too often training programs are individuals talking to a subject rather than
Austin Baker About the Author- Austin Baker is the President of HRO Partners a Human Resources Consulting, Managed Services and Technology Firm with an emphasis in Benefit Administration and Enrollment. HRO Partners is a fast-growing provider of Benefit Enrollment Solution that works with many strategic vendor partners. In the past year HRO Partners has saved their clients over 220 Million with their innovative benefit strategies and managed services deployments. Their team boasts more than a 96% average satisfaction score with employees and their clients. For more information, call Baker at 1-866-822-0123, visit www.hro-partners.com or connect with the company at www.facebook.com/ hropartners, http://www.linkedin.com/in/jaustinbaker or http://twitter.com/jaustinbaker
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23
Labor Market Expectations for 2018 By RICHARD WORKS
The markets in the United States appear to be booming.
Employees May Need to Take Less Paying Jobs
The value of household assets has been rising quickly. The stock
On the other hand, improved hiring, possible employment growth, and rising wages may offset the effect of some of the factors that are pushing down labor force participation. Low inflation, however, may stagnate wage growth. A reduced unemployment rate indicates an increase in demand for labor. This demand may also encourage delayed retirement, thus increasing the labor force and lessening the decline in the unemployment rate. With demand for labor increasing, potential new employees may have to rethink strategy and possibly take lesspaying jobs in order to work up to better positions in the future. The CBO projects that the employment cost index (measures change over time in labor cost) for private industry workers may increase.
market has recently experienced all-time highs. Household debt as a percent of disposal income has trended down. With all of these positive aspects, what might we expect for the labor market this year? This article will provide an overview of what professionals in the economic profession are suggesting for the New Year. Also discussed are recent observations in the evolution of employee benefits. The opinions found within this article do not necessarily reflect the views of the Bureau of Labor Statistics or any organization associated with the author.
Current Labor Market The U.S. is benefitting from a strong labor market and loose financial conditions. The Congressional Budget Office (CBO) expects slack in the labor market to disappear as the growth of aggregate demand increases the demand for labor, thus eliminating the shortfall between actual and potential employment by the end of the year. The slack may continue as fewer people participate in the labor force compared to participation in an economy at full potential. As slack decreases, firms will compete for workers, thus hourly compensation should subsequently increase. The growth of hourly compensation would be the result of the increased demand for labor and competition for workers. The difference between actual and potential rates of labor force participation should decrease with the unemployment rate continuing to fall. Nonfarm employment may have a slower increase because the number of people available to enter jobs may decrease as employment shortfalls shrink. In addition, the delayed retirement of baby boomers may likely delay growth in the labor force for new workers. Overall, the number of employed people as a percentage of the population will decline in 2018. However, the remaining effects of the previous recession and subsequent weak recovery may hinder labor participation despite declines in unemployment. 24
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Hiring is becoming more difficult and turnover is becoming high. Many people of working age are neither working nor looking for work. Contracting and freelancing will become more common due to the flexibility of working from home and workers making their own schedule. This practice has caused some changes in the corporate world as more organizations are allowing telework as an option. As trends in business change quickly, employees will need to adapt to various situations and increase specific skill sets. Such skills in high demand today are data science and computer programming. Networking is another major skill that potential employees will need to consider because referrals now fill many high-level positions in today’s economy.
The Impact of a Tax Cut on Wages There has also been much talk about how a cut in the tax on capital might impact wages. After contemplating the economics, the theory shows that if the tax rate were one third, then every dollar of tax cut to capital on a static basis would increase wages by $1.50. If there are positive externalities to capital, then the effect will be larger than this amount. To put this in context, it is a combination of the standard result that in a small open economy, labor bears all of the small capital income tax, and that starting at a positive tax rate, the burden of a tax increase exceeds revenue collection due to the first-order deadweight loss. When the government cuts the tax rate on capital income,
short-run government revenues fall and long-run wage payments increase. Therefore, a $1 cut in short-run annual government revenue yields a $1.50 increase in long-run annual wage payments. Harvard economist, Greg Mankiw, has provided the mathematical proofs on his blog that explains this in detail.
Therefore, a $1 cut in short-run annual government revenue yields a $1.50 increase in long-run annual wage payments.
bigger needs, such as areas of choice/access or limits to coverage—than the concepts of pre-paid and indemnity. There is more blurring today in benefits and plan provisions, and economists expect this to continue.
Expect Increased Inflation Home prices may increase between three to six percent with similar sales or slightly less as in 2017. However, some locations will retain stability and perform better than others perform. The volume of homes for sale has recently increased, but inflated prices due to inventory shortage will keep prices up in the early part of the year. With a tightening job market and full employment, economic theory says that inflation should start to increase. The Fed has targeted inflation at 2.0%, and with low rates, consumers and companies will borrow at low rates of interest, which will theoretically generate growth. However, as interest rates increase and valuations mature, the housing market will soften. Later in the year, valuations should reduce to a one percent increase. After the recent underperformance, the U.S. dollar should outperform other major currencies as interest rate differentials start to favor the U.S. market.
Changing Dynamics in Health Plans Regarding employee benefits, economists are seeing ambiguity in benefit provisions. In addition to observing the changes in defined benefit pensions and hybrid retirement plans, we are also noticing changes in defined contribution plans, such as the 401(k). These changes encourage savings through automatic enrollment and escalation features. We also see changing dynamics in health plans where plan features between indemnity and pre-paid plan types continue to morph. The lines between plan types are becoming less meaningful in their distinctions—more focused on
Dr. Richard Works, Economist Bureau of Labor Statistics, Washington, DC works.richard@bls.gov www.bls.gov
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Creative Solutions Needed To Improve Healthcare In 2018 By TOM HAYES
With a new year comes hope for change and brighter days ahead. For many, it’s a time to set new goals, whether personal or professional, and to start again with a renewed purpose. When it comes to improving healthcare in this country, it seems the more things change the more they stay the same. Or, unfortunately, they get worse. Despite seven years of the Affordable Care Act – a misnomer of a title by any account – the cost of healthcare continues to rise. In fact, over the past decade, commercial health insurance rates have risen almost nine percent each year. By comparison, consumer pricing in 2017 increased a paltry 1.6 percent and compared to modest 3 percent increase in wages, healthcare costs continue to erode any gains in household incomes. While recent legislative attempts to alter this trajectory have failed, the focus now seems to center on creating competition by selling insurance policies across state lines and artificially shifting costs through tax credits versus subsidies. The reality is that none of these so-called solutions address what has become a real shell game between insurance carriers, pharmacy benefit managers (PBMs) and healthcare providers – all of which have a vested stake in driving market share and profits. How can you create competition in a game where only the stakeholders know the rules and transparency is virtually non-existent? The consumer, unfortunately, is left guessing how to navigate a system that, for the most part, doesn’t disclose the cost and quality of its product. Can you imagine going to Amazon to purchase a pair of headphones, surveying dozens of options, and purchasing the model with the most features with no price listed? Of course not. However, in the world of healthcare, this happens every day. And the results are as varied as they are staggering. The barrier to coverage and care in this country is cost. It’s a known fact that medical care and prescription drug costs in America are higher than any other industrial nation. Yes, it can be argued we have the best hospitals and physicians, the latest innovations in technology and lead the world in pharmaceutical research and development. Unfortunately, the fact remains that there are tremendous and unexplained variances in the cost of these resources and services across the country, even within communities. In a recent study of cost variations of knee and hip replacement surgeries in the U.S., it was determined the average cost of total knee replacement surgery without complications across 64 markets was $31,124. However, that cost could be as low as $11,317 in Montgomery, Alabama and as high as $64,654 in New York. Within Dallas alone, the cost varied from $16,772 to $61,585 – a 267% cost difference. These same variations can be found with the cost of prescription drugs across different PBM and health plan formularies as well. The solution to this problem may be as old as it is new. Does anyone remember traditional major medical coverage before the introduction of preferred provider networks? The reimbursement term used by insurance carriers in the 1970s and 1980s was “usual, customary and reasonable,” or UCR. Simply explained, the insurance company would reimburse an individual or employer plan based on the average cost of a medical procedure in that market. Today, the new term gaining popularity among self-insured employers is Reference Based Pricing (RBP), and it works in a similar fashion. Using RBP, an employer or third-party vendor specializing in this strategy negotiates fixed pricing for procedures with high cost, low quality variation, like joint replacement surgeries and certain medical testing, often set around 150% of negotiated Medicare pricing. The fundamental premise behind RBP is to provide an incentive for employees 26
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to review procedure costs in advance of selecting a provider. If the provider charges more than the fixed reimbursement, the employee pays more out of pocket. If the provider charges less, the employee pays less. Pretty simple. A great example recently published in the Wall Street Journal noted the California Public Employees’ Retirement System’s (CalPERS) recent success in using RBP. The state agency had discovered a wide variance in hip and knee replacement costs ranging from $15,000 to $110,000. CalPERS set a reference price of $30,000 for the procedure and, from the outset, employees selected the lower cost facilities. In just a few years the number of California hospitals charging below $30,000 for hip replacements jumped by more than 50 percent. In the first year, CalPERS saved an estimated $2.8 million on joint replacements. Now major health insurers and pharmacy benefit managers are making an aggressive move from payers to providers in an effort to impact cost in the healthcare delivery model at the initial point of service – the primary care physician. Within the same week in December, CVS Health Corporation inked a $69 billion deal to purchase Aetna, Inc. and UnitedHealth Group, Inc., which had been quietly purchasing physician practices, clinics, and surgery centers under its Optum Health Services arm, announced it would acquire one of the nation’s largest physician groups. As we head into 2018 facing familiar challenges, RBP and other strategies are gaining traction as the private sector seeks more aggressive solutions to a cost problem that Washington seems unable to resolve.
Tom Hayes National Practice Leader Employee Benefits Regions Insurance, Inc.
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2017 Most Important EEOC Cases Unsurprisingly, 2017 has been a busy year for the Equal Employment Opportunity Commission (EEOC). Among its accomplishments over this year, the EEOC advertises that it has reduced its charge load by 16.2%, its lowest level in 10 years. The Commission also secured approximately $484 million for victims of workplace discrimination and filed 184 merits lawsuits. We also have seen a few noteworthy decisions and settlements. Other than a few multi-million dollar settlements (such as Texas Road House and American Airlines), most major EEOC cases have not necessarily come out in the EEOC’s favor. Additionally, the EEOC is to undergo some changes in its Commission’s makeup. Janet Dhilon and Daniel Gade are currently both waiting to be confirmed by the Senate to fill the positions to which they were nominated by President Trump, which will also provide clarity on the future of the EEOC’s agenda. A few notable issues from 2017 include: Sexual Orientation Protections In recent years, federal courts have confronted the issue of whether sexual orientation discrimination or harassment claims are viable under Title VII’s anti-discrimination provisions. In the meantime, the EEOC has maintained that discrimination or harassment based on sexual orientation is protected as a “necessary” part of sex discrimination under Title VII. So far, the Seventh Circuit has been the only federal appellate court to agree with the EEOC’s decisions and extend protection under Title VII to sexual orientation for private sector employees. There are currently three important cases that have reached the federal appellate level that deal with whether or not sexual orientation is protected under Title VII in 2017. First, in Evans v. Georgia Regional Hospital, Evans filed a lawsuit alleging her supervisor terminated her because she is a homosexual and asked that her employer be liable for the discrimination against her based on sex. The Eleventh Circuit reviewed and dismissed her arguments by holding that prior circuit precedent forecloses an action for workplace discrimination based on sexual orientation, as the Eleventh Circuit does not recognize discrimination based on sexual orientation as because of sex under Title VII. In Hively v. Ivy Tech Community College of Indiana, a part-time professor at Ivy Tech Community College, who was openly gay, applied for six full-time positions at Ivy Tech between 2009 and 2014, and was unsuccessful in all attempts. In July 2014, her part-time contract was not renewed and she filed a charge with the EEOC believing the non-renewal of her contract was based on her sexual orientation. The Seventh Circuit issued a final ruling that discrimination based on sexual orientation is a form of sex discrimination under Title VII, becoming the first federal appellate court to do so. The Second Circuit is now in a position to start a trend in re-examining Title VII jurisprudence as to sexual orientation. In Zarda v. Altiude Express, a skydiving instructor sued his employer alleging he was terminated after a customer complained when he told the customer he was gay. The Second Circuit has heard arguments in this case, but has not issued a final ruling. However, precedent in that Circuit does not recognize sexual orientation under Title VII. An interesting element to this case is that the federal government is on both sides of this case with the EEOC holding its position that sexual orientation discrimination is “because of sex,” yet the Department of Justice under the Trump administration has filed an amicus brief that diverges from the EEOC’s position. No matter how the Second Circuit comes down in this case, there will still be a split among the circuits. The question is which direction that split may widen in 2018, especially considering that the United States Supreme Court recently refused to address the issue, as requested in the Evans case, on December 11, 2017. 28
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By JOSEPH M. KRASKA
Wellness Programs Reconsidered The AARP challenged the EEOC’s regulations governing wellness programs regarding whether the financial incentives provided are consistent with “voluntary” participation under both the Americans with Disabilities Act (ADA) and the Genetic Information Non-discrimination Act (GINA). In August of this year, the District Court for the District of Columbia held in AARP v. EEOC that the EEOC must redraft these rules instead of vacating them altogether, as attempted under the Obama Administration. The court concluded that the EEOC had failed to provide a well-structured explanation for adopting the 30% incentive levels under both the ADA and GINA. The AARP was successful in arguing that keeping personal information used in wellness programs private would be impractical if employees could not afford to pay a 30% increase in premiums because of the incentives to voluntarily participate in the program. In other words, under the 2016 standard, employees are forced to disclose protected information under the ADA and GINA in order to take advantage of the incentive. For now, viability of incentive based wellness programs remains in limbo. Until the EEOC issues new revised regulations or a more solid legal basis for the 30% incentive, as ordered in the AARP case, employers with wellness programs should continue to monitor developments on this issue. Subpoena power review In April, the United States Supreme Court ruled that an appellate court reviewing a district court’s decision concerning whether an administrative subpoena from the EEOC was too broad is reviewed for abuse of discretion, not de novo. In McLane Co., Inc. v. EEOC, a female employee was asked to take a physical evaluation because she had been on maternity leave for three months. The company’s policy required such fitness tests for any employee who was out of work for more than 30 days. She attempted the evaluation three times and failed each time. She was fired and, in response, filed a charge of discrimination based on gender. During the EEOC’s investigation, an issue arose when the company denied the EEOC’s request to provide “pedigree information,” including names, social security numbers, last know addresses, and telephone numbers of the individuals who had taken the evaluation nationwide. The EEOC filed two complaints, one of which was to enforce the subpoenas it issued for the pedigree information. The district court denied to enforce the subpoenas to the extent they sought the pedigree information as that information was not relevant to the charges. The EEOC appealed and the Ninth Circuit reviewed the lower court’s decision de novo, giving no deference to the lower court’s ruling, reversing the lower court’s decision. The court did, however, question why the broader de novo standard was used, noting that sister Circuits reviewed issues with administrative subpoenas for abuse of discretion. This decision is good news for employers nationwide because it ensures this over reach by the EEOC will not be tolerated in other jurisdictions. Additionally, the McLane case bolsters the odds of employers receiving a favorable outcome from a trial judge when challenging a subpoena because the Supreme Court recognized trial judges’ qualified position of having first-hand knowledge of the case details, meaning trial judges’ decisions will receive proper deference under the abuse of discretion standard of review.
Joseph M. Kraska, Attorney Cross, Gunter, Witherspoon & Galchus, P.C jkraska@cgwg.com www.cgwg.com
Labor Board to Scrap Quickie Election Rule? 55555
By JOSEPH AMBASH and STEVEN BERNSTEIN
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sented by a union. Worse yet, the new rule essentially compelled employees to cast their ballots before any lingering voter eligibility issues are resolved, effectively precluding them from understanding the full scope and ramifications of their decision. In the last three-and-a-half years, the quickie election rule worked to significantly shrink the time between the representation petition being officially submitted and the election itself, giving a decided advantage to labor unions. Prior to the rule being put into place, the average election cycle took about 38 or 39 days. Currently, the average election cycle is closer to 22 or 23 days. This has led to an uptick in union victories in representation elections, especially in smaller bargaining units where unions have the opportunity to sway more employees before the formal campaign is even under way.
2017: A Year Of Change
In
the clearest sign yet that the National Labor Relations Board is ready to shift away from the strong pro-union stance that had been taken for the previous eight years, the agency today announced that it will seek public comment on the possible revision to the representation election regulations – often known as the “quickie
election” rule. The 2014 rule was considered by some to be the crowning achievement of the Obama-era Labor Board, dramatically compressing the election timeframe and
But following the 2016 presidential election, the landscape of labor law is beginning to take a drastically different shape. The process has taken some time, but the Board now has a majority of Republican appointees and the wheels have been set in motion for changes to be implemented. As we predicted several months ago, there are many areas ripe for change, and the process of revising the quickie election system is one of the top priorities.
thereby tilting the scales in favor of unions. Now that the Board is led by a majority of Republican appointees, it appears ready to substantially revise the election rules once again, but this time with an eye toward evening the playing field. Employers across the country now have a voice to submit their ideas about how they would like to see the rules revised. What do you need to know about this impending change and what can you do to influence the process?
Background: Quickie Election Rule Gives Boost To Unions Soon after the Labor Board gained a Democratic majority in 2009, one of its announced priorities was boosting the number of unionized employees at workplaces across the country. One of the ways in which the agency decided to accomplish this goal was by shrinking the union election campaign timeframe so as to give organized labor an advantage at the ballot box. It took several years of work, including a battle all the way to the U.S. Supreme Court and back, but the NLRB finally got its wish in April 2014 when the quickie election rule was finalized and implemented. The resulting shortened election cycle placed employers at a serious disadvantage when it comes to educating employees on the detriments of union representation and training their supervisors to lawfully respond to union activity. It also left employees with less time to consider all the facts for purposes of making an informed choice on whether they want to be repre30
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For those unfamiliar with the NLRB, the agency has two main areas of responsibility: investigating and resolving charges of unfair labor practices and violations of labor law (also known as the “C-case” side), and overseeing the representation election process
For those unfamiliar with the NLRB, the agency has two main areas of responsibility: investigating and resolving charges of unfair labor practices and violations of labor law (also known as the “C-case” side), and overseeing the representation election process (the “R-case” side).
(the “R-case” side). Not two weeks ago, the agency signaled that big changes were on the way when it comes to the C-case side through the publication of a memorandum by the current General Counsel. That memo announced that the Board wanted to take a new look at “cases over the last eight years that overruled precedent and involved one or more dissents” and invited an “alternative analysis” that would provide a roadmap for change. This announcement, on the other hand, heralds big changes on the way when it comes to the R-case side. This second shoe dropping is nothing but good news for employers.
What Exactly Was Announced? The announcement is more procedural than substantive. The agency said it is seeking information from the public regarding the representation election regulations that form the quickie election rule, “with a specific focus on amendments to the Board’s representation case procedures” adopted several years ago. The Board said it will be helpful to “solicit and consider public responses to this request for information” as part of its ongoing efforts to more effectively administer the National Labor Relations Act and to further the purposes of the Act, and announced that public comments will be taken through February 12, 2018. The Board said that it wants to evaluate several options when it comes to addressing the quickie election rule. The first is retaining the rule without change (which is an unlikely outcome). The second is retaining portions of the rule but making modifications to the structure of the election process. The third is scrapping the rule and reverting to the old system that had been in place immediately before the rule was put into place. Of course, it is always possible that the Board could rescind the rule and create a new structure altogether, essentially starting from scratch. All options appear to be on the table. In other words, this is a soup-to-nuts invitation to open a dialogue with the nation’s employers about how union elections should be run.
What Can You Do? The NLRB has now opened the process for public comments to be submitted through February 12, 2018, and will need to review and address them all before it can proceed with any administrative rules change. This affords you an opportunity to weigh in with your experiences when it comes to the election process, and your suggestions on how to improve the procedure and bring balance to the system. Instructions on how to submit comments are contained on the NLRB’s website.
Joseph Ambash Regional Managing Partner Fisher Phillips Boston Office jambash@fisherphillips.com
Steven Berstein Partner Fisher Phillips Tampa Office sbernstein@fisherphillips.com
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2018 U.S.News
Best Lawyers
in Employment Law
OGLETREE DEAKINS Ogletree Deakins is one of the largest labor and employment law firms representing management. U.S. News – Best Lawyers® “Best Law Firms” has named Ogletree Deakins a “Law Firm of the Year” for seven consecutive years. In 2018, the publication named Ogletree Deakins its “Law Firm of the Year” in the Litigation - Labor & Employment category. Ogletree Deakins has more than 850 attorneys located in 52 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.
MEMPHIS DONNA FISHER, of counsel in Ogletree Deakins’ Memphis office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2018. 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© 2018. Henderson was listed in the Employment Law - Management, Labor Law - Management, and Litigation - Labor and Employment categories. Henderson is the Managing Shareholder of the Memphis office. 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.
NASHVILLE TOM DAVIS, a shareholder in Ogletree Deakins’
Nashville office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2018. 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. 32
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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© 2018. 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© 2018. Harris was listed in the Employment Law - Management and Litigation - Labor and Employment categories. 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© 2018. 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© 2018. 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© 2018. 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© 2018. 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© 2018. Washko was listed in the Employment Law - Management and Litigation - Labor and Employment categories. Washko is the Managing Shareholder of the Nashville office and the 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© 2018. 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© 2018. Blair was listed in the Employment Law - Management category. 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 workplacerelated 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© 2018. 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© 2018. 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. RICHARD CARRIGAN, a shareholder Ogletree Deakins’ Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2018. Carrigan was listed in the Employment Law Management, Labor Law - Management, Litigation - Labor and Employment, and Qui Tam Law categories. Carrigan is an enthusiastic litigator in state and federal courts as well as before administrative agencies. He tries jury and bench trials in federal districts throughout Alabama, and in the Northern District of Florida as well as state courts and many other venues. CHRIS DEERING, a shareholder in Ogletree Deakins’ Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2018. Deering was listed in the Employment Law Management, Labor Law - Management, and Litigation - Labor and Employment categories. Deering has extensive experience representing employers in successfully avoiding and defending a broad range of employment-related claims. His focus areas include employment discrimination, wrongful discharge, retaliation and harassment, whistleblower issues, restrictive covenants, wage-hour matters (including class and collective actions) and workplace safety. HARRY HOPKINS, of counsel in Ogletree Deakins’ Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2018. Hopkins was listed in the Employment Law - Management, Labor Law - Management, and Litigation - Labor and Employment categories. Hopkins has extensive experience in all aspects of labor law, which includes representing employers during union election campaigns and before the National Labor Relations Board. He has participated in the negotiation of over 500 labor agreements. SCOTT KELLY, a shareholder in Ogletree Deakins’
Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2018. 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
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PEYTON LACY, of counsel in Ogletree Deakins’
Birmingham office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2018. 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, Mr. 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© 2018. 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© 2018. Pennington was listed in the Education Law, Employment Law - Management, and Labor Law - Management categories. Mr. 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© 2018. 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.
JACKSON TIMOTHY LINDSAY, a shareholder in Ogletree
Deakins’ Jackson office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2018. Lindsay was listed in the Employment Law - Management and Labor Law - Management categories. Lindsay is routinely sought by clients to provide legal advice and offer guidance in avoiding potential problems and costly litigation in the labor and employment arena. In litigation, he has defended employers against claims involving state and federal employment laws with a high success rate for over 30 years. 34
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ROBIN TAYLOR, a shareholder in Ogletree Deakins’
Jackson office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2018. Taylor was listed in the Litigation - Labor and Employment category. Taylor is Managing Shareholder of the firm’s Jackson office. Taylor’s practice focuses on defending employers and management in employment-related disputes, including disputes involving allegations of discrimination, harassment, retaliation, wrongful discharge, failure-to-accommodate, FMLA interference, noncompetition and non-solicitation covenants, trade secret, and other related state and common-law claims.
ATLANTA CHRISTINA BROXTERMAN, a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2018. 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© 2018. 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 non-jury 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© 2018. 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© 2018. 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© 2018. 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. DARA DEHAVEN, a shareholder in Ogletree
Deakins’ Atlanta office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2018. DeHaven was listed in the Employment Law - Management, Labor Law - Management, and Litigation - Labor and Employment categories. DeHaven is an advisor and advocate for management. She advises clients in developing, implementing and monitoring employment policies, practices, and preventive maintenance programs to ensure regulatory compliance and to assist in dealing with employment matters before they reach litigation. This practice includes policy design and review, supervisory training, investigation, analysis, and resolution of complex employment situations. TODD DUFFIELD, a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2018. Duffield was listed in the Litigation - Labor and Employment category. 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. WILLIAM (BILL) GRAY, a shareholder in
Ogletree Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2018. Gray was listed in the Employee Benefits (ERISA) Law category. He focuses his practice on the design, establishment, and maintenance of qualified retirement plans, health and welfare plans, and nonqualified deferred compensation plans for employers. GREG HARE, a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2018. Hare was listed in the Employment 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.
SARAH HAWK, a shareholder in Ogletree Deakins’
Atlanta office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2018. Hawk was listed in the Immigration Law category. Hawk provides immigration counsel to numerous corporate clients and is a frequent speaker nationally and regionally on business immigration issues. She advises clients on current immigration legislation, and has comprehensive knowledge and extensive experience in a broad range of immigration petitions, nonimmigrant and immigrant visa applications, consular processing, waiver cases and outbound placement. KEVIN HISHTA, a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2018. 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. DAVID JONES, a shareholder Ogletree Deakins’ Atlanta
office, was recently selected by his peers for inclusion in The Best Lawyers in America© 2018. Jones was listed in the Litigation - Labor and Employment category. Jones engages in a nationwide practice representing employers on matters involving occupational safety and health (OSHA). At Ogletree, Mr. Jones is the founding and current Chair of the firm’s Workplace Safety and Health Practice Group. Much of his practice includes serving as a senior strategic advisor to clients on workplace fatalities, catastrophic accidents, and OSHA inspections. ERIKA LEONARD, a shareholder in Ogletree Deakins’ Atlanta office, was recently selected by her peers for inclusion in The Best Lawyers in America© 2018. 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 single-plaintiff 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© 2018. 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© 2018. 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. www.HRProfessionalsMagazine.com
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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 on the Advisory Board for the Tennessee Workers’ Comp Reporter. Fred is Tennessee’s representative for the National Workers’ Compensation Defense Network. Fred has an AV Preeminent® Rating from Martindale-Hubbell, and he is also listed in The Best Lawyers in America® in the field of Workers’ Compensation Law/Employers and Mid-South 2017 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. Prior to entering private practice, Fred served in the United States Navy Judge Advocate General Corps from 1993-1997. Fred has an AV Preeminent® Rating by Martindale-Hubbell, and he is also listed in The Best Lawyers in America® in the fields of Employment Law/Management and Litigation/Labor & Employment. He is the 2017 Legislative Chair for the Tennessee Society for Human Resource Management. KAREN G. CRUTCHFIELD is a Member in the Firm’s Knoxville, Tennessee office. Her practice focuses on the defense of general civil litigation for businesses and employers, including contracts, construction, premises liability, products liability, professional liability, environmental and workers’ compensation claims. Karen is listed in the Best Lawyers of America® in the area of Workers’ Compensation Law-Employers. She participated as a delegate to the OECD-NEA Nuclear Law Program, received the ETLAW Spirit of Justice Award, and for two consecutive years received the Tennessee Supreme Court Attorney for Justice Award. She has also been named to The Fellows of the American Bar Association, which admits only 1% of U.S. lawyers to its ranks. 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. 36
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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 MartindaleHubbell, 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 MartindaleHubbell. He is also listed in The Best Lawyers in America® in the area of Employment Law/Management. 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 he 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 Director for the Cookeville-Putnam County Chamber of Commerce and a member of the Cookeville Rotary Club. JEROME D. PINN is a Member of the Knoxville, Tennessee office of the Firm. His 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 from Cornell University, and his law degree from the University of Michigan. Jerry has a BV Distinguished® Rating - a widely respected mark of achievement given by Martindale-Hubbell, the leading independent attorney rating entity - and he is also 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 since 2011 he has also been 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 management-oriented practices addressing all aspects of the employee/employer relationship. The team has extensive experience litigating and arbitrating employment and civil rights claims, in addition to state law claims. Our attorneys defend clients in multi-plaintiff, collective action and class action lawsuits, as well as Department of Labor and EEOC investigations. WLJ’s team provides advice and counsel to clients regarding a variety of day-to-day matters, such as employment agreements and disciplinary issues, and represents clients in labor arbitrations, union elections and contract negotiations. Despite our collective litigation and arbitration experience, we place a premium on preventing employee claims that could lead to administrative investigations and litigation. We do this in part by offering employee and manager training on a variety of issues and by providing free educational resources to our clients through quarterly newsletters, employment law luncheons and website articles. JOHN D. DAVIS concentrates his Little Rock practice in the areas
of labor and employment law and workers’ compensation. He spends a considerable amount of his time advising clients in connection with a variety of employment-related matters, including terminations, severance agreements, wage and hour issues, union avoidance, union negotiations, arbitrations, personnel policies and compliance with federal, state and local employment laws. Davis has received an AV® Preeminent™ 5.0 out of 5 Peer Review Rating through Martindale-Hubbell, and is listed among The Best Lawyers in America©, Chambers USA and Mid-South Super Lawyers. MICHELLE M. KAEMMERLING’S practice focuses on
employment and commercial litigation in state and federal court, including appeals. She has also represented a number of defendants in employment and consumer class action lawsuits. In addition to her litigation practice, Kaemmerling regularly advises employers regarding compliance with state and federal employment laws and develops personnel policies, employment agreements, covenants not to compete and other employment-related contracts. Kaemmerling has been recognized by Mid-South Super Lawyers since 2009 and as a “Leader in their Field” by Chambers USA.
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. STUART JACKSON heads up Wright Lindsey Jennings’ Labor and Employment Team. He advises employers on compliance with civil rights laws and developing personnel policies, employment agreements and covenants not to compete. Jackson also defends employers in federal and state court litigation and appeals involving claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act and the Arkansas Civil Rights Act. Jackson is recognized by The Best Lawyers in America©, Chambers USA “Leader in their Field” and Mid-South Super Lawyers, and has an AV® Preeminent™ 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.
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FORDHARRISON FordHarrison is a labor & employment defense law firm with 29 offices, including four 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 JOHN F. ALLGOOD, Of Counsel
John Allgood 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. PAUL R. BESHEARS, Partner
Paul Beshears 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 Griffith concentrates her practice on employment litigation, including individual and class action discrimination and harassment cases, employment contracts, wage/hour claims, and other employment-related actions. She tries cases in federal and state courts and before administrative agencies and arbitrators. 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.
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C. LASH HARRISON, Managing Partner
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. Throughout his career, Lash has served in leadership roles in a number of professional and civic organizations. He was a member of the Emory University’s Board of Visitors from 1999 to 2002 and a member of the Board’s Executive Committee in 2001-2002. Currently, Lash 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, Of Counsel
Tom Kassin 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. Additionally, he is experienced in contract disputes as well as drug and alcohol related cases. He spends a substantial portion of his practice in collective bargaining and Railway Labor Act litigation. Tom earned his J.D. from the University of Virginia School of Law. F. CARLTON KING, JR., Of Counsel
Carlton King’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 McClintock 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. JOHN L. MONROE, JR., Partner
John Monroe has represented employers in the litigation and arbitration of virtually every type of claim that may arise out of the employment relationship. These claims include employment discrimination and harassment, breach of contract, unfair competition, misappropriation of trade secrets, claims arising under state and federal wage and hour laws and family medical leave laws, employment/business torts, claims involving minority shareholder rights and business “divorces”. He is a member of the firm’s Executive Committee and serves as the managing partner of the firm’s Atlanta office. John earned his J.D. from the University of North Carolina School of Law.
FREDERICK L. WARREN, Partner
Rick Warren handles all aspects of labor and employment law, including traditional labor law, employment litigation, wage and hour matters and workplace safety. He litigates cases before federal and state courts and administrative agencies throughout the country. He defends both individual and class action cases and has substantial jury trial experience. Rick also handles numerous mediations and arbitrations. He devotes a significant part of his practice to preventive law and advising clients how to avoid/resolve labor and employment disputes and litigation. He has written numerous articles on labor and employment issues and frequently conducts management training and seminars. Rick earned his J.D. from the University of Georgia School of Law.
BIRMINGHAM WESLEY C. REDMOND, Partner
With more than 25 years of experience as a labor and employment attorney, Wesley Redmond 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, which results in significant cost savings for his clients. Wesley earned his J.D. from Georgetown University Law Center.
MEMPHIS LOUIS P. BRITT, III, Partner – Lawyer of the Year
– Litigation – Labor and Employment, Memphis Louis Britt 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
Herb Gerson focuses his practice on managing all areas related to traditional labor and employment issues both local and international. He devotes much of his practice to counseling clients on avoiding employment discrimination claims and developing a positive work environment. Herb 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.
CHARLES (“BUD”) V. HOLMES, Partner Charles (“Bud”) Holmes has over 30 years of experience representing employers in employment related matters. Upon graduation from law school, Bud served as a Judicial Clerk to the Honorable Charles E. Nearn in the Tennessee Court of Appeals, Western Section. Subsequently, he served as Senior Assistant City Attorney for the City of Memphis where his primary responsibilities focused on advising and representing the City in employment-related matters. After entering private practice in 1989, Bud has exclusively represented private and public sector management in a wide variety of employment-related matters. Bud earned his J.D. from the University of Tennessee. THOMAS J. WALSH, JR., Of Counsel
Tom Walsh 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. For three years (2002-2005) Tom 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 J. GREGORY GRISHAM, Partner
Greg Grisham has over 25 years of successful experience counseling and representing employers in all aspects of workplace law in Tennessee and across the United States. He has helped employers avoid claims, charges and lawsuits with a focus on preventative practices. Preventative practices include counseling in situations involving discipline, termination, demotion, promotion and other workplace changes in the terms and conditions of employment, harassment investigations, wage and hour compliance, FMLA Compliance, Reasonable Accommodation assessment, supervisor training and the review of employment policies and procedures. Greg earned his J.D. from the University of Memphis School of Law. MARK E. STAMELOS, Partner Mark Stamelos represents businesses on their employment issues, including trade secret, noncompete 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
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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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BILL OZIER'S more than 40-year practice as a labor and employment attorney has earned him national praise that includes 33 consecutive years of recognition in Best Lawyers in AmericaÂŽ for labor and employment for his longstanding expertise in discrimination, harassment and retaliation disputes. Bill's ability to provide practical employment advice while remaining mindful of the cost/benefit considerations for the business has resulted in numerous long-term client relationships. One such relationship includes the representation of a prominent Tennessee university and academic medical center in the defense of employment discrimination claims, including tenure denial cases, student lawsuits and general labor and employment advice.
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 (PBGC) and Employee Retirement Income Security Act (ERISA). 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 (PBGC) 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.
CROSS, GUNTER, WITHERSPOON & GALCHUS, P.C. U.S. News has named Cross, Gunter, Witherspoon & Galchus, P.C. (CGWG) a leading Labor and Employment law firm in the state of Arkansas for 2017. We are proud to have six attorneys selected as Best Lawyers, including CGWG Directors, Stephen Bingham and Richard Roderick who were named “Lawyers of the Year” in the categories of Litigation - Insurance and Labor Law – Management. We are a female majority owned law firm and we have been repeatedly recognized for our family friendly and work life balance initiatives. Respect for employees and an emphasis on work-life balance are hallmarks of our business and we use our experience to help clients meet their diversity goals and mandates. Preventive law strategies and exceptional educational programs are hallmarks of CGWG’s services. AMBER WILSON BAGLEY practices in
the areas of Health Care, Commercial/Corporate Law, Employee Benefits, Employment law, and Government Affairs. Amber has been named to the Best Lawyers in America; Mid-South Super Lawyers list of “Rising Stars”, Arkansas Business 40 Under 40 in 2013, and Soirée Magazine’s readers selected Amber as one of the “Best Lawyers in Little Rock.
M. STEPHEN BINGHAM’S practice includes products liability defense, commercial litigation, professional liability defense, insurance defense, transportation law, construction law and airport law. Steve, 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. Best Lawyers in America recently Stephen Bingham as 2018 Lawyer of the Year in Little Rock in the category of Labor Law – Management.
J. BRUCE CROSS practices in the areas of labor and employment defense law. Mr. Cross served as Chairman of the National Legislative Committee of the Associated Builders and Contractors of America. Mr. Cross is a recipient of the 2017 Albert Nelson Marquis Lifetime Achievement Award and is one of the Who’s Who Legal’s Top 100 Labor and Employment Lawyers, the only one in Arkansas. He is listed among the top lawyers in the nation by Mid-South Super Lawyers, Chambers USA, and Best Lawyers in America, and was named to the Mid-South Super Lawyers Top 50 list of attorneys in Arkansas. He is also a Fellow in the College of Labor and Employment Lawyers.
MISSY MCJUNKINS DUKE practices in the areas of labor and employment law, education law, and school district litigation. Ms. Duke was appointed by former Arkansas Governor Mike Beebe as Special Associate Justice of the Arkansas Supreme Court and as a member of the Arkansas Advisory Committee to the United States Commission on Civil Rights. The Arkansas Supreme Court appointed her to the Arkansas State Board of Law Examiners and the CLE Board. Ms. Duke is active in the community, currently serving on multiple boards in Little Rock. She was named an Arkansas Business 40 Under 40 in 2011 and is also listed in Mid-South Super Lawyers, Chambers USA and Best Lawyers in America.
RICHARD A. “RICK” RODERICK practices in the areas of labor and employment defense law. He 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, policies and procedures, and performs supervisory training. Rick is a highly sought speaker and regularly provides customized training programs designed specifically for employers and HR professionals. Best Lawyers in America recently named Richard A. Roderick as 2018 Lawyer of the Year in Little Rock in the category of Labor Law – Management.
CAROLYN B WITHERSPOON practices in the areas of labor and employment defense, transportation law and government law. Ms. Witherspoon is a member of the prestigious Union Internationale des Avocats, an international society of legal professionals recognized before the United Nations; and also serves as an arbitrator for the Court of Arbitration or Sport. Ms. Witherspoon is a 2005 recipient of the Charles L. Carpenter Memorial Award from the Arkansas Bar Association and is listed among the top lawyers in the nation by Mid-South Super Lawyers, Chambers USA, and Best Lawyers in America, and was named to the Mid-South Super Lawyers Top 50 list of attorneys in Arkansas as well as the Top 50 Women-Mid-South. She is also a Fellow in the College of Labor and Employment Lawyers.
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FRIDAY, ELDREDGE & CLARK, LLP Friday, Eldredge & Clark , LLP serves business, nonprofit, governmental and individual clients in Arkansas and across the United States. It is one of the oldest law firms in Arkansas and has been the largest Arkansas based law firm in the state for nearly 50 years. The firm, led by managing partner J. Shepherd Russell III, has offices in Little Rock, Fayetteville and Rogers, Arkansas. Friday, Eldredge & Clark has been ranked in U.S. News – Best Lawyers “Best Law Firms” list regionally in 42 practice areas. Additionally, the firm has a total of 52 attorneys listed in The Best Lawyers in America, the most of any other law firm in the state. In the Labor and Employment Practice Group, eight attorneys have been recognized for their work in numerous categories. For more information about Friday, Eldredge & Clark or the attorneys, visit www.fridayfirm.com.
KHAYYAM M. EDDINGS is a partner in
the Labor and Employment Litigation Practice Group where he counsels employers in all aspects of the labor and employment laws. Khay represents school districts throughout Arkansas. His practice includes the representation of clients in state and federal courts and administrative bodies such as the Financial Industry Regulatory Authority and the EEOC. Khay is recognized for his work in Education Law, Employment Law – Individuals and Employment Law Management. He has been listed by Best Lawyers since 2010.
CHRISTOPHER HELLER, a partner in the firm, works primarily in the areas of Commercial Litigation, Labor and Employment Law and Education Law. The majority of his practice consists of trial and appellate work. A partner in the firm, he represents businesses in employment, contracts and civil rights matters as well as other areas. Chris is listed in Best Lawyers for Appellate Practice, Commercial Litigation, Betthe-Company Litigation, Employment Law – Management, Litigation – Labor and Employment and Education Law. He has been listed in Best Lawyers since 2006.
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DANIEL L. HERRINGTON is a partner in the Labor and Employment Relations Practice Group and proactively works with his management clients to help ensure their employment decisions can withstand legal scrutiny. Dan has successfully defended those decisions before state and federal agencies and courts and has extensive experience in litigating covenant not to compete and trade secret cases. For his work in Litigation – Labor and Employment, Dan has been named Lawyer of the Year 2018 in Little Rock by Best Lawyers. In addition, he is also listed in Employment Law – Management and Labor Law – Management. He has been recognized by the publication since 2007.
MICHAEL S. MOORE is a partner in the firm’s Labor and Employment Practice Group with an emphasis on employment discrimination defense. He specializes in litigation of discrimination cases, wage-hour matters, sexual harassment, wrongful discharge, FMLA and employee and supervisor training. Mike has extensive experience before the EEOC and the Wage-Hour Division of the United States Department of Labor, as well as litigation experience in both federal and state courts. Mike has been listed Best Lawyers since 2006 for his work in Labor Law – Management and Litigation – Labor and Employment and in 2018 was named Lawyer of the Year in Little Rock for Employment Law – Management.
ELIZABETH ROBBEN MURRAY heads the firm’s Labor and Employment Practice Group and serves on the firm’s Management Committee. Her litigation experience is extensive and includes matters such as products liability, natural gas litigation, discrimination law suits, covenants not to compete, commercial contracts and trade secrets misappropriation. Betsy also represents clients in matters regarding legislation, initiated acts and constitutional amendments. She is listed in The Best Lawyers in America for Bet- the-Company Litigation, Commercial Litigation, Employment Law – Individuals, Employment Law – Management, Litigation – Labor and Employment and Trade Secrets Law. She has been recognized by the publication since 2001.
WHAT IS YOUR FOCUS? MARSHALL S. NEY serves as an advisor and litigation counsel to businesses and school districts in most types of complex, commercial disputes, civil rights cases and employment claims. His experience is extensive and includes class action litigation, non-competition agreements, trade secrets, corporate dissolutions, discrimination suits, business contracts, education law, teacher fair dismissal claims and special education law. Marshall, a partner in the firm, has been recognized Best Lawyers since 2009 for his work in Litigation – Intellectual Property, Litigation – Labor and Employment, Commercial Litigation, Litigation - Banking and Finance and Litigation - Bankruptcy.
ELLEN OWENS SMITH is a partner in the Labor and Employment Litigation Practice Group. Her practice is focused on representing employers in all areas of labor and employment law, including ADA, FMLA, Wage and Hour, Title VII, trade secrets and covenants not to compete. Ellen has been recognized by Best Lawyers since 2014 for her work in Education Law.
H. WAYNE YOUNG is a partner with the
firm and a member of the Labor and Employment Practice Group. He was named the 2017 Russell Gunter Legislative Advocacy Award Recipient by the Arkansas SHRM. The award recognizes outstanding contributions of time and effort in local, state or federal legislative advocacy on behalf of the Human Resources profession. Wayne is listed in Best Lawyers for his work in work in Employment Law – Management and Litigation, Labor and Employment. He has been recognized by the publication since 2015.
EMPLOYEES
We focus our capabilities on the labor and employment issues important to our clients: - EEOC Compliance - Fair Labor Standards Act - Family Medical Leave Act - Americans with Disabilities Act - Labor Relations - Litigation Defense - State & Federal Court Appeals - Covenants Not to Compete - Employee Compensation - Immigration - OSHA - Handbook & Policy Review
CLIENT FOCUSED EVERY DAY
Little Rock I Rogers I Fayetteville
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BURCH, PORTER & JOHNSON, PLLC For more than a century, those in need of legal services have turned to Burch, Porter & Johnson for excellence in legal counsel and representation. Our philosophy is simple: provide practical solutions to obtain the best, most efficient results for our clients. Burch, Porter & Johnson engages in a highly diversified practice serving a wide variety of clients and legal needs. From complex transactions for multi-million dollar corporations to sensitive personal legal matters, our attorneys offer specialized expertise, innovative solutions and strategic counsel for virtually every kind of litigation, business and transactional matter. JEF FEIBELMAN has been recognized by Best Lawyers® since 1995, in practice areas including Litigation - Labor and Employment. Mr. Feibelman engages principally in the litigation, arbitration or mediation of complex commercial matters. He has litigated substantial claims involving fraud, breach of contract, misappropriation of trade secrets, breach of non-compete and confidentiality agreements, shareholder and partnership disputes, and business dissolution and valuation controversies.
JENNIFER HAGERMAN has represented clients in cases involving employment discrimination, wage and hour class actions, and restrictive covenants. She advises clients on employment matters including non-solicitation and non-competition agreements, employee handbooks, and employee classification under the FLSA. Ms. Hagerman has been recognized by Best Lawyers® in the Employment Law-Management and LitigationLabor & Employment practice areas since 2011.
Best Lawyers® has recognized LISA KRUPICKA in the practice areas of
Employment Law – Management, and Litigation - Labor and Employment since 2011. She focuses her practice on employment-related matters, including training, wage and hour issues, labor relations, employee discipline and termination, and compliance with the accessibility requirements of Title III of the Americans with Disabilities Act. Her litigation experience includes claims for race, sex, age, disability, religious and age discrimination, and benefits claims, as well as wage and hour class actions.
A TRADITION OF
Attorneys left to right: Lisa Krupicka, Tannera Gibson, Gary Peeples and Jennifer Hagerman
THINKING FORWARD
Being prepared for whatever comes next takes experience and vision. Our innovative, practical approach can help you stay one step ahead. Let the attorneys of Burch Porter & Johnson put our history of thinking forward to work for you. B U R C H , P O RT E R & J O H N S O N , P L L C | 1 3 0 N O RT H C O U RT AV E N U E | M E M P H I S , T N 3 8 1 0 3 9 0 1 - 5 2 4 - 5 0 0 0 | B P J L AW. C O M
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Legal Challenges are Coming at HR Professionals from Every Direction 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.
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.
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 individualized for your specific needs. This is why you should know the employment-law attorneys at Rainey, Kizer, Reviere & Bell PLC. For over 30 years, our AV-rated firm has advised businesses, nonprofit organizations, and government agencies on all aspects of employment law. To learn more, please call.
r a i n e y k i z e r . c o m
Memphis 901-333-8101
Jackson 731-423-2414
T e n n e s s e e d o e s n o t c e r t i f y s p e c i a l i s t s i n t h e a r e a o f e m p l o y m e n t l a w .
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LITTLER
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.
Littler is the largest global employment and labor law practice, with more than 1,300 attorneys in over 75 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 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.
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 wage-related claims and specializes in helping employers to develop forward-thinking compliance measures that reduce wage and hour disputes and other employment-related issues.
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.
L. TRAYWICK DUFFIE is office managing shareholder in Littler’s Atlanta office. He represents corporate clients in a broad range of employment and labor law matters, 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.
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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.
MEMPHIS Shareholder, 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.
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.
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 CaseSmartŽ 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.
Memphis Office Managing Shareholder, 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 union-represented workplaces. Union-free efforts include campaigns, comprehensive union vulnerability assessments, human relations audits, communication strategies, and positive employee relations training.
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FISHER PHILLIPS Fisher Phillips is one of the largest labor and employment law firms in the country with more than 350 attorneys in 32 offices nationwide, including Tennessee, Florida, Georgia, Kentucky and Mississippi. Some of the most talented and experienced attorneys come to the firm to handle challenging cases involving workplace issues faced by employers and HR professionals. Fisher Phillips attorneys specialize in all areas of labor and employment law and have the experience and resolve to achieve your desired results in court, with employees and unions, and with competitors.
JAY KIESEWETTER is senior counsel
in the Fisher Phillips Memphis office. He counsels employers in all aspects of union-free management and advises non-union companies facing union organizing activity. Additionally, he represents employers in unfair labor practice and representational proceedings before the National Labor Relations Board and the United States Courts of Appeal.
JEFF WEINTRAUB is the managing partner of the Fisher Phillips Memphis office. He has represented employers in more than 59 jury and bench trials in employment-harassment/ discrimination and retaliatory discharge lawsuits. Jeff handles EEOC charges, wage and hour cases, non-compete cases, and labor cases in all courts and agencies, various Courts of Appeals and the U.S. Supreme Court.
SISKIND SUSSER PC Siskind Susser PC is one of the leading immigration law firms in North America. Our attorneys have experience handling all aspects of American immigration and nationality law. At Siskind Susser, we are committed to providing quality and efficient service to all our clients. Our lawyers advise employers and individuals on immigration law compliance and handle cases before the government. We represent organizations ranging from small businesses to some of the world’s largest companies. Our attorneys have also drafted key sections of our immigration laws and have assisted state and federal agencies in designing immigration-related regulations and guidelines. GREG SISKIND is a founder of Siskind Susser and has practiced immigration law for 27 years. He writes several books including the J-1 Visa Guidebook, the ABA’s Lawyers Guide to Marketing on the Internet and the I-9 and E-Verify Handbook and the Physician Immigration Handbook. In 1994, he created the first immigration law web site and in 1998 he created the world’s first lawyer blog. He also serves on Board of Governors of the American Immigration Lawyers Association and is on Who’s Who in Corporate Immigration Law’s list of the top ten lawyers in the US.
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LYNN SUSSER is a founding partner of
Siskind Susser. As the firm’s managing partner, she supervises a wide variety of casework ranging from employment-based visa work and family immigration matters to political asylum and naturalization. She is a member of the Memphis Bar Association, the Association for Women Attorneys, and the American Immigration Lawyers Association. She is on the CBP Liaison committee and is liaison to the Memphis USCIS Field office. She is listed in “The Best Lawyers in America” for immigration law and “Who’s Who International” for Corporate Immigration. She was named Best of the Bar by the Memphis Business Journal in 2017.
Annual Seminar on Labor & Employment Law
Friday, December 2, 2016
Friday, December 1, 2017 8:30 | Holiday Inn – University of Memphis am—5:00 pm Holiday Inn—University of Memphis, 3700 Central Ave. Registration opens at 8:00 am
Get all the tools you need to address current labor and employment law issues Hear from the experts on these issues Receive HRCI and SHRM Credit Network with other HR Professionals, business owners and attorneys Enjoy continental breakfast, lunch and snacks 1
2 Register at memphisbar.org/cle
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1 Welcome by Joe Leibovich, Chair, Labor &Questions? Employment Law Sectionoroflbeach@memphisbar.org the Memphis Bar Association. 2 Ray LaJeunesse, National Right to Work, Director 901-527-3573 of Litigation, presented “Developments with Labor and the NLRB.” 3 The Honorable David M. Rudolph, Circuit Court Judge was the luncheon speaker. He presented “Employment Verdicts in Tennessee.” 4 The “State Law Update” was presented by Russell Jackson with FordHarrison.
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5 The Honorable Charmiane Claxton, Western District Magistrate Judge; and Alan Crone, The Crone Law Firm, presented the Sixth Circuit Update. 6 “Mediation from a Mediator’s Perspective,” was presented by Frank Cantrell, with Shuttleworth, PLLC; and David Wade with Martin Tate Morrow & Marston. 7 Lisa Krupicka with Burch, Porter & Johnson PLLC and Frank Day, FordHarrison discussed “Health Related Inquiries and the ADA.”
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8 & 9 Edmonds Sims and Jimmy Jones discussed “EEOC Fact Finding and Conciliation.” 10 “Plaintiff’s Perspective on Viability of Employment Claims,” was Dan Norwood’s topic. He discussed his role as the “Working Boomer Advocate.” 11 Brian Faughan with Lewis Thomason presented, “Ethics.”
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7 Reasons Being Vulnerable Makes Better Leaders “You have to be honest and authentic and not hide. I think the leader today has to demonstrate both transparency and vulnerability, and with that comes truthfulness and humility.” ~ Howard Schultz ~
A
lthough this is changing, there are still leaders today who are afraid to let their guard down, share their feelings and admit that they don’t have all the answers. The pace of change is accelerating so quickly, that it is impossible for one person at the top to have all the answers. Leaders need to rely upon the people around them for knowledge, answers to difficult problems and support. The only way to survive and thrive in today’s workforce is to have all hands on deck. Old myths, misconceptions and fears die hard. One of those myths is that vulnerability is a sign of weakness and that a leader who shows vulnerability will lose the respect of his colleagues. Nothing could be further from the truth as it has been shown that leaders who can be vulnerable create healthier, more effective workplaces.
By HARVEY DEUTSCHENDORF
feedback and ideas to the organization. Leaders who acknowledge they made poor decisions and are still able forgive themselves, through their example, let those under them know that it is okay to take risks and try something new and untried. This leads to more ideas coming forth at all levels, creating a more dynamic, competitive organization
Better Communication Flow A leader of an organization sets the tone for what is acceptable and not acceptable to talk about. If able to be open and share information honestly and authentically, a leader sends a strong message that this is not only acceptable throughout the
A workplace with a lot of secrets is not a healthy or fun place to work. Always being on guard and having to be careful what we share and with whom can dampen down the spirit and create a workplace that people dread coming to every day. A leader who is open, vulnerable and authentic raises the mood of the work environment and creates a healthy, vibrant atmosphere that everyone looks forward to being part of.
Being vulnerable and showing oneself to others is actually a sign of courage and self-confidence in a leader. This doesn’t mean that they just let it all hang out, spilling out their emotions whenever they feel like it. Successful leaders know when the time and place is right to show their real and authentic selves.
Decreases Tension and Stress at Work Have you ever worked somewhere with an elephant in the room, and nobody was talking about it? Avoiding and tiptoeing around secrets at work can be very stressful. Everyone’s blood pressure rises trying to figure out ways of avoiding uncomfortable topics when they come up. Stress could be decreased considerably by acknowledging uncomfortable topics and allowing people to talk about them. If everyone sees that their leaders are able to bring up unpopular areas for discussion, they will feel freer and less stressed to talk about them as well.
Increases Flow of Ideas, Creativity and Innovation By acknowledging that they don’t have all the answers, leaders give freedom for all staff to have input and have their feedback and ideas considered. By admitting their mistakes, managers give their staff more room to contribute their 50
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Workplaces with closed and aloof leaders lends people to look for ways to get ahead by currying favour with and trying to impress their leaders. There is a greater occurrence of back stabbing and not sharing of information amongst staff as they see people who have gained positions of authority acting in that way. They are constantly trying to guess and determine what those above them want and spend time and energy trying to determine what it is that they need to do to get the approval of those above them and win a promotion. This energy could be spent more productively working together for the overall good of the organization.
Creates a Fun Workplace
"Vulnerability is the best measure of courage" ~ Brené Brown
Here are 7 reasons that vulnerability is an attribute in leaders:
Better Teamwork and Cooperation
Emotional Connections Leads to Less Turnover organization, but it is the norm. Team members will feel that it is okay to open up and share with each other. This keeps the communication channels flowing more smoothly. A great idea to start a meeting is a brief "check in" around the table with each person. This will give insight into where and how each individual is coping in their real world and an understanding of where they are coming from. Empathy leads to understanding and imparts a healthy communication flow.
A great deal of workplace research points out that being emotionally connected to a workplace is often a deciding factor on whether or not people will stay or look elsewhere. An open, honest and authentic leadership makes it much more likely that staff at all levels will feel a connection to the organization at an emotional level when they feel connected with their leaders. They are less likely to jump ship, even for more money or benefits, when they feel their leaders have their best interests at heart.
Problems Identified Earlier Many times people are afraid to bring bad news and problems to their leaders as they are afraid that the information will not be well received. By the time the leaders find out what is really going on, a great deal of damage could have been done, making the situation more difficult to resolve than if they had found out earlier. Staff who witness their leaders being vulnerable and admitting their mistakes are more likely to come forward as they are less likely to feel retribution for being the bearer of bad news.
Harvey Deutschendorf is an emotional intelligence expert, internationally published author and speaker. To take the EI Quiz go to theotherkindofsmart.com. His book THE OTHER KIND OF SMART, Simple Ways to Boost Your Emotional Intelligence for Greater Personal Effectiveness and Success has been published in 4 languages. Harvey writes for FAST COMPANY and has a monthly column with HRPROFESSIONALS MAGAZINE. You can follow him on Twitter @theeiguy.
EMPLOYERS AND LAWYERS, WORKING TOGETHER
LABOR AND EMPLOYMENT LAW Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. The firm has more than 850 lawyers located in 52 offices across the United States and in Europe, Canada, and Mexico. Register at www.ogletree.com/our-insights to receive updates on recent developments in labor and employment law.
BIRMINGHAM OFFICE 420 20th Street North Suite 1900 Birmingham, AL 35203 205.328.1900
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JACKSON OFFICE 207 West Jackson Street Suite 200 Ridgeland, MS 39157 601.360.8444
MEMPHIS OFFICE International Place, Tower II 6410 Poplar Avenue Suite 300 Memphis, TN 38119 901.767.6160
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