Volume 5 : Issue 6 TM
www.HRProfessionalsMagazine.com
Highlights of the
2014
Super Lawyers
in Labor and Employment Law
NLRB Guidance
on Employee
Handbooks
MSSHRM
20th Annual HR Conference & Expo May 11-13 in Biloxi
Nicole Davies, SPHR, SHRM-SCP, CHRS
President,
KYSHRM Louisville Update on
Background Checks and
Pre-Employment Testing
Best Practices for
Compensation Management
JUST PUT IT ON THE COMPANY CARD…NOBODY WILL NOTICE.
YOU’RE REALLY SHOWING OFF YOUR BEST ASSETS TODAY.
THEY’RE WORRIED ABOUT OVERTIME. I’M JUST WORKING OFF THE CLOCK.
I NEVER WEAR THE SAFETY GOGGLES. THEY LEAVE A MARK.
What you don’t hear can still hurt you. The things employees say when you’re not around can cause legal troubles for you. Fisher & Phillips provides practical solutions to workplace legal problems. This includes helping you find and fix these kinds of employee issues before they make their way from the water cooler to the courthouse.
1715 Aaron Brenner Drive • Suite 312 • Memphis, TN 38120 • 901.526.0431 www.laborlawyers.com
ATLANTA BALTIMORE BOSTON CHARLOTTE CHICAGO CLEVELAND COLUMBIA
COLUMBUS DALLAS DENVER FORT LAUDERDALE GULFPORT HOUSTON IRVINE
KANSAS CITY LAS VEGAS LOS ANGELES LOUISVILLE MEMPHIS NEW JERSEY NEW ORLEANS
ORLANDO PHILADELPHIA PHOENIX PORTLAND SAN ANTONIO SAN DIEGO SAN FRANCISCO
SEATTLE TAMPA WASHINGTON, D.C.
Bringing Human Resources & Management Expertise to You Compensation can be up to
70%
of a company’s annual operating costs. www.HRProfessionalsMagazine.com Editor
Cynthia Y. Thompson, MBA, SPHR Publisher
The Thompson HR Firm HR Consulting and Employee Development Art Direction
Park Avenue Design Contributing Writers
Chris Anderson Blaine R. Blood Bruce E. Buchanan John Denery Harvey Deutschendorf Shanna Fonnesbeck Jimmy Hinton Trish Holliday Bruce Johanson Chris Menard Martin Regimbal Ricky Reynolds Ernie Ricketts Blake Rogers Shawn Switzer Edward H. Trent Janie Warner Board of Advisors
Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR John E. Megley III, PhD 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. ©2011 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: Nicole Davies, SPHR, SHRM-SCP, CHRS 10 2014 Super Lawyers in Labor and Employment Law 14 7 Ways Employers Can Reduce the Number of Worker’s Compensation Claims Involving Attorneys 16 Scrutinizing Pharmacy Benefit Plans and Managers 22 Tobacco-less Workplace
WEB EXCLUSIVES HTTP://HRProfessionalsMagazine.com /Exclusive
Departments 30 NLRB – Guidance on Employee Handbooks 32 Compensation Management – Best Practices – A Comprehensive Assessment 34 Employment Law – Risk Mitigation and Avoidance – Class Action and Statute of Limitation Waivers 36 Backgound Checks – Getting to Know You 38 Engagement – Are Your Employees Working at Work? 39 IRCA – Question – Retain or Not Retain? 40 Leadership – Call to Urgency: 21st Century Leadership Competencies Needed for Success 41 EQ – 7 Habits of Highly Emotionally Intelligent People
Industry News 6 Highlights of MSSHRM 20th Annual HR Conference & Expo in Biloxi May 11-13 8 Highlights of the WTSHRM 5th Annual Human Resources & Employment Law Conference in Jackson on May 6 9 SHRM Assurance of Learning Assessment 35 SHRM-Memphis HR Excellence Awards 42 Highlights of Fisher & Phillips One Day, Many Solutions Seminar
Next Issue Top Educational Programs for HR Professionals Highlights from Healthy Workplaces, Healthy Communities 2015 Seminar in Jackson, MS on May 19 Highlights from The Business Trifecta: Employee Well-Being, Employee Engagement & The Bottom Line www.HRProfessionalsMagazine.com
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a note from the Editor
C
We are so excited to be an official media sponsor of the SHRM 2015 Annual Conference and Exposition! If you are unable to attend the Conference, please follow me on Twitter @cythomps, as
MSSHRM CONFERENCE – SHRM EXHIBITOR BOOTH Billy Sims, VP HR with Southern Farm Bureau Life Insurance; Dorothy Knapp, SHRM Field Services Director; Cynthia, and Murray L Harber, Executive Director of Mississippi Business Group on Health.
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Congratulations to Greg Payne, MSSHRM State Council Director, and the MSSHRM State Council on the outstanding 20th Annual Human
Resource Conference and Expo at the beautiful Beau Rivage in
Biloxi May 11-13! I had a great time at the three-hour Pre-Conference Workshop on Monday afternoon, “Strategic Leadership for HR Executives.” I extend a special thanks to those who attended. Highlights
I will be tweeting from the conferences about the exciting events and speakers. We will also provide daily updates on Facebook and LinkedIn. Watch your email for our next complimentary HRCI | SHRM Virtual Event sponsored by Data Facts on Wednesday, May 28. The topic will be “How Proposed Changes to the
of the conference are on Page 6-7.
FLSA Part 541 Overtime Regulations
We also have highlights from the WTSHRM Annual Human Resources
Bottom Line.” Watch your email for
8 held in conjunction with Rainey, Kizer, Reviere & Bell. We look forward
receiving our monthly invitation, you
to seeing everyone at the SHRM 2015 Annual Conference and
can subscribe on our website at
Exposition in Las Vegas on June 28-July 1. Please see Page 9 for
www.hrprofessionalsmagazine.com
registration details.
or send me an email.
Will Impact Your Organization’s
and Employment Law 2015 Spring Conference in Jackson on Page
your invitation! If you are not currently
Cynthia Y. Thompson | Editor cynthia@HRprosMagazine.com www.HRProfessionalsMagazine.com
www.HRProfessionalsMagazine.com
Sign up for our RSS News Feed to receive up to the minute HR Alerts on changing legislation affecting our workforce. www.HRProfessionalsMagazine.com.
Nicole on the cover
DAVIES
NICOLE DAVIES, SPHR, SHRM-SCP, CHRS An active member of the Louisville, KY SHRM chapter, Nicole is currently serving the second year of her three-year Presidency commitment. Prior to her Presidency, Nicole served as the Chapter’s Director of Membership and Membership Liaison for several years. Nicole is also completing her second term as the Membership Director for the Kentucky State Council. Nicole was recently promoted to Client Relations Executive at ADP. In this role she assists clients with realizing their human capital potential while mitigating employmentrelated risks and liabilities. Nicole leads a team of Human Resources Business Partners who work with businesses from all industries needing assistance navigating regulatory compliance and other legal requirements. Prior to joining ADP in 2011, Nicole’s human resources management experience included for and not-for-profit organizations, higher education, and both the union and the non-union environments. Nicole is accomplished human resources professional with nearly twenty years of employee relations, training, and talent acquisition experience. Nicole earned her Bachelor of Arts degree in Psychology from the University of Virginia and her Master of Science degree in Higher Education Administration from Colorado State University. Nicole achieved her SPHR in 2010 and was in the inaugural group receiving SHRM-SCP credentials, completing her tutorial at the SHRM Leadership Conference in November 2014. Nicole also became a Certified Healthcare Reform Specialist (CHRS) in 2014.
www.HRProfessionalsMagazine.com
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Highlights of MSSHRM Conference SAVE THE DATE 2016 MSSHRM Conference in Biloxi at the Beau Rivage May 16 - 18!
AFFILIATE
OF
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1 Members of the 2015 MSSHRM State Council. (Front row L-R) Amber Goodwin, Shonda Kines. (Middle Row L-R) Ruth Montana, Brandi Garrett, Greg Payne, Director; Cynthia Render-Leach, Amanda Ford (Back Row L-R) Shirley McFarland, Jan Farve, Lindsey Carter, Melissa Drennan, Kyle Jones, Janna Rogers, Lisa Smith, Jackie Mack, Chris Byrd 2 Greg Payne, MSSHRM State Council Director 3 Dr. Frances Lucas was the Keynote Speaker for the Opening General Session on Tuesday morning. She spoke on “The Happiness Factor.” 4 Jennifer McClure is President of Unbridled Talent LLC, and was the Keynote Speaker for the Closing General Session on Wednesday. Her topic was “Strategic HR.” She was also a concurrent speaker on “5 Ways to Win the War for Talent.” 5 Matt Jones was the luncheon Keynote Speaker on Tuesday. Matt is a three time cancer survivor who has run over six marathons internationally. He presented “Suckification Reduction Devices.” Matt was also a concurrent speaker and spoke on “R.E.A.L Leadership.” 6
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6 Wanda Freeland spoke at two concurrent sessions, “Defining Strategic HR” and “Coaching for Leaders.” Wanda is President of Smart Performance Solutions. 7 FLSA- Are you Sure You’re in Compliance? Presented by The Kullman Firm. The Kullman Firm was a Gold Sponsor of the conference. (L-R) Martin J. Regimbal, Jerrald L. Shivers, and Peyton Irby, Jr. 8 Cynthia Y. Thompson facilitated a three-hour Pre-Conference Workshop on “Strategic Leadership for HR Executives.“ Cynthia is the founder of The Thompson HR Firm and Editor | Publisher of HR Professionals Magazine, official media sponsor of the Conference. 9 Eddie presented “Taking the Mystery out of the ADA Interactive Process” in a concurrent session on Tuesday. Eddie is with the EEOC. 10 Randy Patterson with Baker Donelson presented “Employee Privacy & The Thrills of Social Media” during the Tuesday concurrent sessions and “Workplace Romance: Cupids and Demons” during the Wednesday concurrent sessions. Baker Donelson was the Platinum Sponsor of the Conference. 11 Robin B Taylor and Timothy Lindsay with Ogletree Deakins spoke on “Continued Expansion of the NLRA. Ogletree Deakins was a Gold Sponsor of the Conference. 12 Dorothy Knapp, SHRM Field Services Director, with Chris Byrd, Past MSSHRM State Council Director at the Coast Networking Party. Dorothy was also a speaker and presented “SHRM Certification: Why Do It?”
MSSHRM members enjoyed Conference.
www.HRProfessionalsMagazine.com
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WTSHRM Human Resources & Employment Law 2015 Spring Conference
HR-Covering all the Bases
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1 2015 WTSHRM Board of Directors (L-R) Jennifer Howell, Amy West, John Carbonell, Donna Dickinson, Lindsey Pullen, Jane Mansfield and Rita Alexander. Not pictured: Anna Higgs. 2 The conference was presented in conjunction with Rainey, Kizer, Reviere & Bell PLC. Participating attorneys were (L-R) James V. Thompson, Michael Mansfield, Geoffrey A. Lindley, Matthew R. Courtner, and Robert O. Binkley, Jr. Not pictured are John Burleson and R. Dale Thomas. 3 Michael Mansfield and Bob Binkley spoke on Getting Players on the Team: “The Pre-Employment Process.” 4 Geoffrey A. Lindley and Matthew R. Courtner presented Know the Umpires: “Understanding the EEOC/THRC. 5 Latosha Dexter, Deputy Counsel at the University of Memphis, joined Geoffrey Lindley for Coach’s Play Book: “Case Studies.” 6 WTSHRM members enjoy visiting the Exhibitors. 7 Rainey, Kizer, Reviere & Bell Exhibitor booth at the WTSHRM Conference. 8 The Union University Exhibitor booth. 9 WTSHRM President Amy West announces Best Booth winner. 10 Construction at Union University in Jackson, TN. Other topics covered at the conference included Rules of the Game: “Fair Labor Standards Act – Don’t Strike Out” presented by Robert Binkley and James Thompson, and The Big Game: “Exploring the Anatomy of an Employment Lawsuit” presented by John Burleson and Dale Thomas. 8
www.HRProfessionalsMagazine.com
SHRM ASSURANCE OF LEARNING® ASSESSMENT
2015 SUMMER WINDOW
APPLICATION PERIOD ENDS
July 15 - August 15, 2015
July 5, 2015
NOW ACCEPTING 2015 SUMMER APPLICATIONS
GET AHEAD OF THE HR JOB COMPETITION The SHRM Assurance of Learning Assessment represents an important step in an HR professional’s career path: It provides a capstone for your foundational HR education, and launches you onto the next step toward a successful HR career. Review materials including a study guide and practice exams available! APPLY FOR THE EXAM TODAY TO BUILD YOUR HR RESUME AND INCREASE YOUR APPEAL AS A JOB CANDIDATE.
LEARN MORE AT SHRM.ORG/ASSESSMENT/SUMMERHRP
15-0327
www.HRProfessionalsMagazine.com
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SUPER Lawyers
2014
in Labor & Employment Law
HR Professionals Magazine congratulates 2014 Super Lawyers! Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations. We are presenting the 2014 Super Lawyers in Tennessee, Kentucky, Arkansas and Mississippi who are sponsors and contributors of HR Professionals Magazine.
Fisher & Phillips LLP Firm Overview: Fisher & Phillips LLP is a national law firm committed to providing practical business solutions for employers’ workplace legal problems. Labor and employment law is all the firm does. Fisher & Phillips attorneys are dedicated to providing exceptional client service, and are there when you need them. The firm has 300 attorneys in 31 offices, including Atlanta, Baltimore, Boston, Charlotte, Chicago, Cleveland, Columbia, Columbus, Dallas, Denver, Fort Lauderdale, Gulfport, Houston, Irvine, Kansas City, Las Vegas, Los Angeles, Louisville, Memphis, New Jersey, New Orleans, Orlando, Philadelphia, Phoenix, Portland, San Antonio, San Diego, San Francisco, Seattle, Tampa, and Washington, D.C. Jeff Weintraub, Memphis – Jeff Weintraub is the
managing partner of the Memphis office. He is a trial attorney who has represented employers in more than 59 jury and bench trials in the private and public sectors in employment-harassment/discrimination and retaliatory discharge lawsuits. He also handles EEOC charges, wage and hour cases, labor cases and enforcing non-competes in all federal and state courts and agencies, various Courts of Appeals and the U.S. Supreme Court. Weintraub provides training for employers in avoiding harassment charges and employment litigation and is a frequent speaker at employment and labor seminars nationwide. Named Super Lawyer - Mid-South, 2006-2015.
Jaklyn Wrigley, Gulfport – Jaklyn Wrigley is an associate in the Gulfport office. She represents employers throughout Mississippi and the Florida Panhandle in state and federal courts, as well as before state and federal agencies, including the Equal Employment Opportunity Commission.Wrigley’s practice includes litigating employment related disputes involving wrongful discharge, Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, the Pregnancy Discrimination Act, the Fair Labor Standards Act, the Employee Retirement Income Security Act, various immigration laws, and non-compete and other restrictive covenant agreements. Named Mid-South Super Lawyers' - Rising Star 2013-2014.
Jay Kiesewetter, Memphis – Jay Kiesewetter is
Senior Counsel in the Memphis office. He devotes his practice to representing clients in the traditional areas of labor relations and employment law. He counsels employers in all aspects of union-free management and advises non-union companies facing union organizing activity. Kiesewetter represents employers in unfair labor practice and representational proceedings before the National Labor Relations Board and the United States Courts of Appeal. In addition, he works with companies that have unions to improve union management relations and represents management in contract negotiations, arbitrations and labor disputes. Named Super Lawyer - Mid-South, 2007-2015. Courtney Leyes, Memphis – Courtney Leyes is
an associate in the Memphis office. She represents employers throughout Mississippi with particular focus on the burgeoning industrial areas in the northern part of the state and the gaming industry in Tunica, Miss. Leyes has experience representing employers in litigation related to discrimination and harassment in the workplace and on wage and hour issues. She also advises clients regarding a variety of employment matters, including employee handbooks and policies, severance agreements and other employee contracts. While in law school, Leyes clerked for the EEOC’s Office of Legal Counsel. Named Mid-South Super Lawyers' - Rising Star in 2014. 10
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Craig Siegenthalar is a partner in the Louisville office. He has appeared in federal and state courts defending clients in class action litigation involving wage and hour matters, as well as other employment law based claims. He represents corporate entities and management in employment litigation in federal and state courts and in administrative proceedings before the EEOC and state agencies. Siegenthalar has counseled companies regarding employment issues, including legal compliance, policies and procedures, restructuring, job accommodations, leaves, benefits, employment contracts, and layoffs and related severance programs. Named Super Lawyer - Kentucky, 2007-2015. Cynthia Blevins Doll is a partner in the Louisville office. She has over 20 years of labor and employment experience. She represents employers in employment lititgation of all sorts in the federal and state courts, and she counsels them on compliance with the law in such areas as Family and Medical Leave Act, employment discrimination, Americans with Disabilities Act, Title VII, wrongful termination, wage and hour issues, reductions in force and sexual and racial harassment. Doll also assists clients in their prevention efforts by conducting employee training and preparing handbooks and policies for the workplace. Named Super Lawyer - Kentucky, 2007-2015.
George Adams is a partner in the Louisville
office, where his practice is exclusively devoted to advising, assisting and representing employers with labor and employment law challenges. He has helped employers defend against union organizing campaigns, unfair labor practice charges and grievances. He defends employers in state and federal courts against lawsuits alleging sexual harassment, unlawful discrimination, retaliation, wage and hour violations of the FMLA, ADA and other employment laws. Adams represents employers before the National Labor Relations Board and other administrative agencies, as well as in labor negotiations and grievance arbitration. Named Super Lawyer - Kentucky, 2007, 2010-2015.
Laurel Cornell is a partner in the Louisville office. Her practice involves representing employers in litigation of employment disputes involving Title VII, the FMLA, retaliation, breach of contract, and wrongful termination claims. Cornell also has experience advising and representing employers in administrative actions. She graduated from the University of Kentucky College of Law in 2007, where she was a member of the Kentucky Law Journal. Named Super Lawyers’ Rising Star - Kentucky, 2013-2015.
Raymond Haley is a partner in the Louisville
office. He has practiced labor and employment law for more than 30 years. He represents employers in a variety of industries, including healthcare, manufacturing, transportation and rehabilitative services. His representation of clients involves defense of all forms of civil rights and wrongful discharge claims in state and federal courts, labor litigation before state and federal agencies and courts, as well as arbitration of labor disputes. Haley regularly advises clients concerning compliance with virtually all employment-based state and federal mandates, and union related matters. Named Super Lawyer - Kentucky, 2007-2015.
The Kullman Firm Firm Overview: The Kullman Firm is one of the oldest and most experienced labor management and employment law firms in the United States. The Firm exclusively represents private and public employers in all matters relating to employment laws and regulations, discrimination issues, labor relations, pension and benefit plan matters, and all other areas concerning human resources management. The Firm represents clients in a wide range of industries, from airlines to hospitals to wood products, which provides it with a sound understanding of the general business practices of a vast array companies. With this experience, the Firm is able to provide proactive legal advice to help clients achieve their business goals while complying with applicable law. Martin J. Regimbal – Mr. Regimbal represents employers in labor and employment law matters and has litigated collective actions under the Fair Labor Standards Act, matters brought under Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act, the Worker Adjustment and Retraining Notification Act, and other federal and state statutes in a variety of courts. He also advises clients regarding compliance with the National Labor Relations Act and handles NLRB matters. His office is in Columbus, MS. Mr. Regimbal also has been recognized as a 2014 Rising Star by Mid-South Super Lawyers Magazine. Taylor B. Smith – Mr. Smith is a resident member
of the law firm at our Columbus, MS office. Mr. Smith graduated with honors from Mississippi State University and thereafter, received a J.D. degree from the University of Mississippi. In law school, he served on the staff of the Mississippi Law Journal and additionally, was article editor for the Journal. Mr. Smith is a member of the American Bar Association, the Mississippi Defense Lawyers Association, the American Academy of Hospital Attorneys, and is a fellow of the American College of Trial Lawyers. He is also listed in America’s Leading Business Lawyers and The Best Lawyers in America as one of the outstanding lawyers in the labor and employment field. He is listed as one of the top 50 lawyers in Mississippi-Super Lawyer magazine and has been listed as a Super Lawyer in the Midsouth for several years. Jerrald L. Shivers – Mr. Shivers has practiced labor
Thomas Birchfield is the managing partner of the
Louisville office, which he helped open for the firm in 2009. Prior to 2009, he was the chairperson of the labor and employment practice group of a large regional law firm. He has represented employers exclusively for more than 25 years in federal and state courts and before various administrative agencies throughout the nation. Birchfield assists employers with their employment practices liability prevention efforts by conducting training, counseling, reviewing and revising policies and preparing severance agreements. Named Super Lawyer - Kentucky, 2007-2015.
Todd Logsdon is a partner in the Louisville office.
He practices exclusively in the areas of labor and employment on behalf of employers, with a particular emphasis on discrimination, FMLA, wage and hour, covenants not to compete, and OSHA issues. Logsdon’s practice includes the defense of employment-related claims before federal and state courts and administrative agencies, as well as counseling and training clients on compliance issues and litigation avoidance. He also conducts OSHA compliance audits and provides OSHA compliance advice to clients, as well as defending clients in OSHA citation contests and litigation. Named Super Lawyer - Kentucky, 2013-2015.
and employment law on behalf of management since 1981 and his office is in Jackson, MS. Mr. Shivers has served as a member of the national Legislative Affairs Committee for the Society for Human Resource Management (SHRM) and was one of the authors of the first edition of Employee Benefits Law, a treatise published by the Bureau of National Affairs and the ABA Section of Labor and Employment Law. He also is one of the authors of the Mississippi Employment Law Practice Handbook, published by the University of Mississippi. Mr. Shivers is listed in The Best Lawyers in America, Mid-South Super Lawyers, and The Best in the U.S., and is AV-rated by Martindale-Hubbell. Peyton S. Irby, Jr. – Mr. Irby has more than 35 years
of experience guiding his clients through complicated employment issues. His office is in Jackson, MS. During his career, he has worked with private and public employers to ensure that they meet the regulatory requirements placed on businesses and their work force. In addition to his counsel, he also provides litigation support for those entities unable to resolve employee complaints internally. Mr. Irby is also adept at representing companies in response to OSHA, wage and hour, and other regulatory agency violations. He has lectured at numerous seminars concerning labor and employment issues. Prior to entering private practice, he served as a trial and supervisory attorney with the National Labor Relations Board. www.HRProfessionalsMagazine.com
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Littler Firm Overview: Littler is the largest global employment and labor law practice with more than 1,000 attorneys in over 60 offices worldwide. Littler represents management in all aspects of employment and labor law and serves as a single source solution provider to the global employer community. Consistently recognized in the industry as a leading and innovative law practice, Littler has been litigating, mediating and negotiating some of the most influential employment law cases and labor contracts on record for over 70 years. Joycelyn Stevenson is a shareholder in Littler’s Nashville
office focusing a substantial part of her practice in the area of labor and employment and business immigration law. Her experience includes representing the firm's corporate clients on workplace issues dealing with race, sex and age discrimination and labor relations, as well as lawsuits and administrative charges brought pursuant to the: • Age Discrimination in Employment Act (ADEA) • Americans with Disabilities Act (ADA) • Title VII of the Civil Rights Act • Family and Medical Leave Act (FMLA) • Fair Labor Standards Act (FLSA) Joycelyn’s immigration practice focuses on matters crucial to her business clients, including I-9 and E-Verify compliance, as well as obtaining and maintaining employer-based nonimmigrant and immigrant visas for foreign national employees. She represents large corporations, particularly health care-related facilities, including hospitals and physician practices, on employment, general litigation and immigration matters specific to that industry. Education J.D., Vanderbilt University Law School, 2001 B.A., Howard University, 1998, Phi Beta Kappa
C. Eric Stevens is a shareholder in Littler’s Nashville
office and provides his clients a common-sense approach to employment, representing employers in labor relations matters, administrative proceedings and employment litigation, with a focus on healthcare and financial institutions. He represents both union and non-union employers in: • Single-plaintiff and class-action claims under anti-discrimination laws • Defense of whistleblower and retaliation claims • Class litigation involving federal and state wage and hour laws • Contract negotiations • Arbitration • Successful union-free election campaigns • Office of Federal Contract Compliance Programs audits • Department of Labor investigations • Occupational Safety and Health Administration (OSHA) and Tennessee Occupational Safety and Health (TOSHA) investigations Education J.D., Vanderbilt University Law School, 1983
R. Alex Boals is an associate in Littler’s Memphis
Shana G. Fonnesbeck is an associate in Littler’s Nashville
office and represents employers in lawsuits brought in both state and federal courts, including suits brought under the: • Title VII of the Civil Rights Act • Age Discrimination in Employment Act (ADEA) • Americans with Disabilities Act (ADA) • Family and Medical Leave Act (FMLA) • Tennessee Human Rights Act • Tennessee Public Protection Act Shana also has experience counseling employers about employment-based immigration issues and work site compliance. Education J.D., University of Georgia School of Law, 2005, cum laude B.A., University of Georgia, 2000, magna cum laude
Rachel R. Rosenblatt is an associate in Littler’s Nashville
office and has experience defending employers in employee-initiated lawsuits in both federal and state court, in administrative proceedings before the Equal Employment Opportunity Commission, and in arbitration, involving claims for:
office representing management in all areas of employment and labor relations, including state and federal employment litigation and in administrative proceedings before the National Labor Relations Board, the Equal Employment Opportunity Commission and the United States Department of Labor. Alex has experience advising and representing clients on diverse employment issues, including claims involving: • Discrimination and harassment • Wrongful discharge • Restrictive covenants • Wage and hour violations • Family and medical leave compliance • Employee benefits • Union avoidance • Unfair labor practices Education J.D., University of Memphis, 2003, magna cum laude B.A., University of Memphis, 1999, summa cum laude
Jonathan E. Kaplan is a shareholder in Littler’s
• Discrimination and harassment • Retaliation • Wrongful discharge • Non-compete and restrictive covenants in employment agreements • Wage and hour issues Rachel works with both large and small companies, including those in the retail, hospitality, and healthcare industries, and provides clients with employment counseling on a wide variety of legal matters, including hiring, terminations, handbooks, and policies.
Memphis office and has devoted his entire career to representing management clients exclusively in all areas of labor relations, employment law, and human resources management. His practice spans litigation, training, and consulting, in which he has handled matters in more than 40 states and Canada. Jonathan practices extensively before the NLRB across the country, and also has been admitted specially to practice before the state courts in California, Florida, Illinois, Indiana, Kentucky, Michigan, New York, and Ohio. He has published numerous articles on labor and employment issues.
Education J.D., University of Tennessee College of Law, 2008, With Honors B.B.A., Southern Methodist University, 2005, summa cum laude
Education J.D., University of Memphis Cecil C. Humphreys School of Law, 1982 B.A., Rhodes College, 1979, cum laude
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Lisa A. Lichterman is a shareholder in Littler’s Memphis office representing management clients in both state and federal employment litigation as well as administrative proceedings before state and federal agencies. Lisa works with employers to determine the legal, as well as the practical, impact of employment decisions and to develop proactive policies and procedures to improve employee morale, strengthen relationships between management and employees, and ensure compliance with employment and labor laws.
Lisa served as general counsel for a multi-state sales company, with a significant portion of her job duties being devoted to training supervisors and human resources and employment law issues. Education J.D., Vanderbilt University Law School, 1990 B.A., Rhodes College, 1987
Paul E. Prather is a shareholder in Littler’s Memphis office representing management exclusively in all areas of employment and labor relations, including state and federal employment litigation and in administrative proceedings before the National Labor Relations Board, the Equal Employment Opportunity Commission and the United States Department of Labor.
Amber Isom-Thompson is a member of the Littler CaseSmart® team in Tennessee. She handles 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.
Amber has extensive experience representing employers in the defense of employment–related claims dealing with: • Unlawful discrimination • Wrongful discharge • Violation of federal and state employment statutes • Wage and hour issues Amber represents employers in administrative proceedings before the Equal Employment Opportunity Commission and state fair employment practices agencies as well as before the National Labor Relations Board. Education J.D., University of Iowa College of Law, 1999, High Distinction B.A., Rhodes College, 1996
Education J.D., University of Memphis, 1982 B.A., University of Memphis, 1979, summa cum laude
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Seven Ways Employers Can Reduce the Number of Workers’ Compensation Claims Involving an Attorney By SHAWN SWITZER
Attorney involvement in workers’ compensation claims drives up the cost for the employer and can reduce the value payout of the claim for the employee. Across the US, 44 percent of all lost-time claims had attorney involvement. The median cost of a lost-time claim including attorney involvement is 4.25 times higher than a lost-time claim without attorney involvement.
What Cost Factor Is Associated With Your Company’s Location? While each case is unique, some state jurisdictions generally have more attorney involvement. The U.S. Chamber Institute for Legal Reform ranks states’ tort liability systems. Lockton’s InfoLock® Database provides the frequency of attorney involvement and associated costs for Lockton clients’ workers’ compensation programs. The table below groups states by their 2012 U.S. Chamber Institute for Legal Reform Lawsuit Climate Report (www.instituteforlegalreform.com/states) overall rankings (1=best; 50=worst) and shows average settlement costs with and without litigation. It also includes a cost factor to be applied to claims within these jurisdictions.
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What drives injured employees to hire an attorney?
Claims/Injury Management.
Simply stated—fear. The vast majority of individuals depend on their job for survival and ability to care for their family. When an injury disrupts their ability to work, it can be scary.
Ensure that the employee is receiving the care he or she needs, both from the treating physician and your insurer/ claims administrator. Unpaid medical bills and delays in treatment are known to lead to litigation. By advocating for the employee, he or she will not need to hire an attorney to act on his or her behalf.
Fears may include: ❖ Loss of job or current position. ❖ Denial of the claim. ❖ Ability to work in the future.
Train Supervisors and Managers. Train supervisors and managers how to talk to injured workers, coordinate with other leave programs, and provide appropriate transitional duty.
❖ Fear of not recovering to preinjury health status. ❖ Benefits from the injury (disability benefits and/or medical treatment) will not be received in a timely manner. ❖ Embarassment from having an injury or having worked unsafetly.
What can employers do to reduce the number of workers’ compensation claims that involve an attorney?
Prevention. While not all injuries can be avoided, having a safety program in place can reduce the overall number of injuries and workers’ compensation claims at your company.
Caring Company Culture. When you are a company that cares about employees, people want to work for you and injured employees will want to return to work after an injury.
There will always be some cases, particularly those involving severe injuries, where an attorney will be involved. With the proper procedures in place, that number can be reduced, helping both the employer and employee. Your Lockton team can help you improve your business by building a strong workers’ compensation claims program.
Clear Policies and Procedures. All employees and managers should know how to report claims, what to do if an injury occurs, where to seek medical treatment, and that the company treats employees kindly when they get hurt. Knowing what to expect prevents fear of the unknown.
Positive Communication. Reach out to injured employees to let them know that they are missed and that the company is there to help.
Return-to-Work/Transitional-Duty Programs. The fewer days the employee is away from work, the lower the cost of the claim. Employees will also benefit from not allowing their health insurance or other benefits to lapse. Employees should know that the company policy is to provide transitional duty in most situations.
Ashley Pace
Lockton’s Memphis Office 901 757 6902 apace@lockton.com
Brad Owens
Lockton’s Memphis Office 901 757 6901 Bowens@lockton.com
www.HRProfessionalsMagazine.com
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Employees Can See Savings
– and Healthier Workers –
Scrutinizing Pharmacy Benefit Plans and Managers
Interview by CHIP TAULBEE
WHY SHOULD EMPLOYERS SCRUTINIZE THEIR PHARMACY BENEFIT PLANS AND MANAGERS? For self-funded employers there is a tremendous amount of opportunity sitting within their existing pharmacy program if they know where and what to look for. We are seeing significant reduction in pharmacy spend when our programs are put into place.
WHAT MAKES STEPHENS WORK WITH SELF-FUNDED CLIENTS’ PHARMACY PLANS SO MUCH MORE EXTENSIVE THAN OTHER FIRMS’? Having subject matter experts in-house is a true advantage for us and our client partners. Our pharmacy team has experience on all sides of this business from practicing pharmacists to pharmacy benefit manager (PBM) executives to underwriters. They bring a tremendous amount of knowledge and depth to our team and therefore to our clients. The other important factor is that we have access to proprietary software to audit and hold the PBMs accountable. That’s a powerful combination that has proven extremely effective time and again.
J
ohn Denery, Executive Vice President and Director of Life & Health at Little Rock, Arkansas’ Stephens Insurance (an affiliate company of Stephens Inc.), explains how their pharmacy consulting services offers clients unprecedented scrutiny of claims, not only providing immediate savings to the businesses but setting the framework for healthier workforces.
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www.HRProfessionalsMagazine.com
AND YOU CAN FIND A LOT OF SAVINGS WITH THIS AUDITING? We have yet to perform an audit for a client and not find errors. We audit to make sure that PBMs have processed claims the way agreed to. And if not, we’re going to go hold them accountable. But many times when we audit we find issues that may be contractually correct but that may have a negative impact on the plan. A major reason for our success is that we have our own standard contract. In
order for a PBM to move forward with our RFP process, they have to agree to our contract
outliers and who are the people that could benefit
language. This has definitely helped a great deal, not just our ability to audit but our ability
from closer management. We then create an action
to control the contract. When the client controls the contract they control their plan.
plan. We are able to use predictive modeling with
When the client controls the plan they can significantly impact costs.
a high degree of confidence to forecast future costs for our clients.
WHAT ELSE DO YOU FIND IN THESE AUDITS? The contract with the pharmacy and the contract with the client many times are two different things. What the PBM pays the pharmacy and what the employer pays for that exact same medication can be two vastly different numbers. This is happening often. A friend of ours in the pharmacy world made an interesting comment several years ago: “If pharmacy costs are at an all-time high yet pharmacy reimbursement is at an all-time low – where’s all the money going?” The interesting part of this is that if you are using the PBM’s contract you are in essence allowing them to play these types of games.
HOW DO YOU THEN GET THE EMPLOYEE INVOLVED TO BETTER MANAGE HIS OR HER HEALTH? First and foremost we want to make sure that the patient gets and remains healthy. Cost is always secondary. Communication, engagement and education are critical elements to the process. The data analytics and predictive modeling are the first steps in the process of improving compliance. Much of the communication is directed to the
SO STEPHENS IS NOT MAKING FRIENDS IN THE PBM WORLD? One might think that but it’s not true at all. Those PBMs that are aligned with the best interests of clients are great partners of ours and always will be. And we continue to find more and more PBMs each year that are looking to partner with us and our clients. Our
K
job is not to stop PBMs from making money but to create a level playing field where trans-
their primary care doctor and/or specialist. We are not mandating action; we are giving them choices. Many of the choices we give employees were unknown to them prior. The large majority of recommendations made to employees will not
J
Our job is not to stop PBMs from making money but to create a level playing field where transparency plays a critical role.
employee and in some cases, where necessary, to
only save their employer money but the employee as well. Timing is also critical. We typically roll out any changes to members several months in advance of the plan effective date to allow members enough time to make decisions or get with their
parency plays a critical role. This allows our client partners to make better decisions. Are
physician, if necessary. Physicians then know
there PBMs that consistently underperform? Absolutely, but with the passage of the Patient
what is changing, and the options for the patient.
Protection and Affordable Care Act employers are taking a harder look at their benefit
When the physician agrees, the member typically
programs, how they are running and who’s running them. Those PBMs that continue some
follows suit. The better educated we can make the
of these practices will be forced to change in time.
employee the more likely it is their decisions will positively impact the plan costs and the overall health of the employee.
WHAT ELSE ARE YOU ABLE TO INFER FROM CLOSELY SCRUTINIZING THE CLAIMS? We are data driven. We look not only for what PBMs are missing but also what is happening with the members/patients. We use this information for predictive modeling. We know that compliance rates are woefully low in most employer groups. Therefore, we use the pharmacy data and our analytics platform to look at what is happening, who are the
John Denery, EVP Director of Life & Health Stephens Insurance
www.HRProfessionalsMagazine.com
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Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Firm Overview: 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 700 lawyers located in 47 offices across the United States, in Europe, and in Mexico. Ogletree Deakins has been named a Law Firm of the Year four consecutive years by U.S. News – Best Lawyers® “Best Law Firms.” In 2015, the publication named Ogletree Deakins its “Law Firm of the Year” in the Labor Law - Management category. In addition to handling labor and employment law matters, the firm has thriving practices focused on business immigration, employee benefits, and workplace safety and health law. Ogletree Deakins represents a diverse range of clients, from small businesses to Fortune 50 companies. Keith Frazier’s practice is in Nashville where he is also
a member of Ogletree Deakins’ Board of Directors. Since beginning his practice of law in 1985, Mr. Frazier has represented management in the area of labor and employment law with an emphasis on preventive activity and employment litigation. Mr. Frazier served in the past as President of the Tennessee Bar Association Young Lawyer’s Division and as a member of the Tennessee Bar Association Board of Governors; Mr. Frazier is also active in the ABA’s Labor and Employment Section where he currently serves as the Section Delegate to the ABA House of Delegates. On the civic front, Mr. Frazier recently completed a term as Vice Chair of Existing Business/Workforce Development for the Nashville Chamber of Commerce. In that capacity Mr. Frazier served on the Chamber’s Board of Governors and Executive Committee. Mr. Frazier was included in the most recent editions of The Best Lawyers in America and Chambers USA. Elizabeth Washko is the Managing Shareholder of the Nashville office. Ms. Washko represents management in a wide variety of employment litigation matters, including discrimination, harassment, retaliation, FMLA, FLSA, wrongful termination, breach of contract, and covenant not to compete cases. Ms. Washko is a frequent speaker and writer on topics relating to all types of employment issues and works with clients on preventive strategies to avoid discrimination, retaliation and other employment claims. Ms. Washko is a graduate of Rutgers School of Law and joined Ogletree Deakins in 2000. Ms. Washko is a member of the Labor Standards Legislation Subcommittee of the ABA’s Labor and Employment Section. She is a regular contributing editor to the ABA’s FLSA Treatise and annual supplements. Timothy W. Lindsay has practiced exclusively in the field
of labor and employment law on behalf of management since 1987. With more than 25 years of litigation experience, Tim has served as lead counsel for public and private sector employers in defense of civil actions involving Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Fair Labor Standards Act, the Family and Medical Leave Act, ERISA, the First and Fourteenth Amendments to the United States Constitution, and various employment related claims under state law such as wrongful discharge, defamation/slander, infliction of emotional distress, invasion of privacy and breach of contract. In addition to defending civil actions in court, Tim has represented management before various state and federal administrative agencies such as the Equal Employment Opportunity Commission, National Labor Relations Board, Mississippi Workers’ Compensation Commission and Mississippi Department of Employment Security. Jon Harris is a Shareholder in the Nashville office and
has been practicing law for over a decade with Ogletree Deakins. Jon represents management in a wide variety of employment-related matters. In addition to defending single-plaintiff lawsuits, he also represents employers in class and collective actions. He has obtained numerous successes, both in federal and state court. Over 70 cases can be found on Westlaw, where Jon was counsel for the defense; many of those decisions report dismissal on behalf of his clients. Jon has litigation experience against the EEOC, including having litigated to successful verdict systemic claims of sexual harassment brought by the Commission against a nation-wide retailer. He is a frequent speaker on topics relating to all types of employment issues, and he works with clients on preventive strategies to avoid discrimination, retaliation and other employment claims. 18
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Herbert C. Ehrhardt’s law practice in Jackson, MS began January 1977. Bert has extensive litigation experience, and has served as lead counsel in cases throughout the country, including Alabama, Arkansas, Florida, Louisiana, Mississippi, Ohio, Pennsylvania, Tennessee, and Texas. He has defended employers in cases arising under Title VII, state fair employment practices statutes, the Equal Pay Act, the Fair Labor Standards Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Family and Medical Leave Act. He has served as lead counsel on numerous class actions, including FLSA collective actions. Bert has obtained summary judgment in over 50 cases, and has tried 17 cases to verdict. He has successfully handled hundreds of EEOC charges, and numerous NLRB hearings and trials. Kristy Gunn is an Associate in the Memphis office. Ms. Gunn represents management in employment litigation related matters on federal, state, and local levels before courts and administrative agencies concerning claims of discrimination, harassment, retaliation, wrongful discharge, restrictive covenants, wage and hour violations, and other aspects of the employee-employer relationship. She has extensive experience handling discrimination and sexual harassment claims in the manufacturing and food services industries. She was awarded the Super Lawyers Mid-South Rising Star in 2011, 2013, and 2014. Ms. Gunn received her J.D. from the University of Memphis’ Cecil C. Humphreys School of Law where she was a Cecil C. Humphreys Fellow and won awards for academic excellence in trial advocacy, communications law, and legal writing. Bud Holmes has over 30 years of experience representing employers in employment-related matters. His experience includes representing both private and public sector employers in a wide variety of employment-related matters. He has extensive litigation experience at both the trial and appellate levels concerning claims of discrimination, harassment, retaliation, wrongful discharge, breach of employment contracts, and other aspects of the employeremployee relationship. In addition, Bud has always worked closely with employers to ensure their compliance with federal and state law governing the employment relationship. Bud has earned the distinction of Best Lawyers in America from 2008 to the present. Tim Palmer is an experienced litigator specializing in both employment litigation and general civil litigation in state and federal courts. His interest in litigation began early in his legal career when as a law student at Vanderbilt University; Mr. Palmer won the Harlan Dodson Moot Court Competition and was appointed to the position of Associate Justice of Vanderbilt’s Moot Court Board. His practice focuses on the defense of employment litigation including discrimination claims, defense of personnel actions, and defense of employee benefit disputes. He has been selected as one of America’s leading business lawyers in labor and employment by Chambers USA. He also listed in Best Lawyers of America. Tom Henderson is the Managing Shareholder of the Memphis office. He has represented management in employment and labor relations matters for over 25 years. He has served as lead counsel in numerous jury trials in state and federal courts across the nation. His trial experience includes defending state and federal discrimination and harassment lawsuits, class actions, FMLA claims, ERISA and benefit claims, trade secret and unfair competition matters, and related state law claims. He also handles NLRB elections and unfair labor practice proceedings. Mr. Henderson is listed in “The Best Lawyers in America” in three areas and “Mid-South Super Lawyers.”
Cross, Gunter, Witherspoon & Galchus, P.C. Firm Overview: Chambers USA has named Cross, Gunter, Witherspoon & Galchus, P.C. (CGWG) a leading Labor and Employment law firm in the state of Arkansas for the tenth consecutive year. CGWG’s team of attorneys are highly adept in handling a wide range of labor and employment defense matters, including discrimination litigation, collective bargaining, benefits advice, employment contracts, complex immigration matters, development of constructive employee relations, Workers’ Compensation, and the development of company employment policies and procedures. Preventive law strategies and exceptional educational programs are hallmarks of CGWG’s services. We offer customized training programs to help employers and HR professionals minimize legal exposure and navigate workplace challenges. Carolyn B. Witherspoon practices in the areas of labor and
employment defense, transportation law and government law in Little Rock. Carolyn is active in the Arkansas and American Bar Associations; 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. She is a 2005 recipient of the Charles L. Carpenter Memorial Award from the Arkansas Bar Association and is also a Fellow in the College of Labor and Employment Lawyers. J. Bruce Cross practices in Little Rock in the areas of labor and
employment defense law. His practice includes work before the NLRB, the EEOC, the Wage & Hour and OFCCP Divisions of the Department of Labor, as well as related federal and state court litigation. He is past chair of the American Bar Association’s Committee on the Development of the Law under the National Labor Relations Act. In 2014, he was named a Fellow in the College of Labor and Employment Lawyers. Bruce currently serves as Chairman of the National Legislative Committee of the Associated Builders and Contractors of America (ABC). Donna Smith Galchus’ Little Rock practice focuses on
employment discrimination litigation, wage and hour, affirmative action compliance and immigration law. Donna is a member of the Arkansas Association of Women Lawyers; Pulaski County, Arkansas and American Bar Associations; American Immigration Lawyers Association; Mid-South Immigration Lawyers; Fellow, College of Labor and Employment Lawyers; Chair, Eighth Circuit Credentials Committee; American Employment Law Council; and the Arkansas Bar Foundation. She serves on the Boards of Editors of the treatise on the Fair Labor Standards Act and the treatise on Age Discrimination, and has written and published various articles in Labor and Human Resource Trade Journals. J. E. Jess Sweere’s practice focuses on labor relations,
employment, commercial and corporate, and transportation law. Jess entered the practice of law after 18 years as a manager in the trucking industry, working in both union and non-union environments. Jess is the Chairman of the Academics Plus Charter School Board of Trustees, and also serves on the board of the Maumelle Foundation for Education, Inc. He is an active member of the American Bar Association (including the Labor and Employment section), Central Arkansas Human Resources Association, Arkansas Bar Association, Transportation Law Association and the Arkansas Trucking Association. He is the current Labor and Human Resources Committee Chair for the Transportation Lawyers Association. Amber Wilson Bagley practices in the areas of Health Care Law, Employee Benefits and Commercial/Corporate Law. She is a member of the American Bar Association; American Health Lawyers Association; and the Arkansas Bar Association where she has served as chair of the Health Law Section, in the Arkansas Bar Association Leadership Academy and is currently a member of the Arkansas Bar Association House of Delegates for Pulaski County. Amber is active in the community as well, serving as a member of the Downtown Rotary Club of Little Rock (Club 99) and as the Youth Home Board President. Amber is a graduate of Leadership Greater Little Rock Class XXVIII. 20
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Gregory J. Northen practices before federal and
state courts in Arkansas, the Eighth Circuit Court of Appeals, and various federal and state agencies, including the EEOC, NLRB, Department of Labor’s Wage & Hour Division and Arkansas Department of Workforce Services. Greg also assists clients with drafting and implementing up-to-date forms, policies, procedures and training. Greg is a member of the Arkansas Bar Association’s Young Lawyers Section and Personnel Committee, Pulaski County Bar Association, American Health Law Association, Arkansas Children’s Hospital Committee for the Future and the Central Arkansas Council of the Associated Builders and Contractors of Arkansas. He also serves on the Board of Directors for the Maumelle Chamber of Commerce. Missy McJunkins Duke practices in the areas of labor and employment law, and immigration law in Little Rock. She is an active member of the Arkansas and American Bar Associations’ Labor and Employment Sections. She is appointed to the Arkansas Early Childhood Commission, the Arkansas Advisory Committee to the United States Commission on Civil Rights and the Arkansas State Board of Law Examiners. Missy is active in the community, serving on the Boards of Directors for Fulbright Elementary PTA and VOCALS – Volunteer Organization, Center for Arkansas Legal Services. Missy was named an Arkansas Business 40 Under 40 in 2011 and one of Soirée Magazine’s “Women to Watch” in 2013. M. Stephen Bingham’s Little Rock practice
includes products liability defense, commercial litigation, professional liability defense, insurance defense, transportation law, casualty 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. Steve served as a Member of the House of Delegates for the Arkansas Bar Association from 1996 to 2013, and also was a member of the Board of Governors. He is a past president of the Arkansas Association of Defense Counsel, and a former Commissioner for the Arkansas Commission on Child Abuse, Rape and Domestic Violence. 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 covering such topics as discipline and termination, employee leave issues, union avoidance, social media in the workplace, hiring and sexual harassment. He was named “Outstanding Speaker” for Lorman Education Services in 2005. Rick is past chair of the Arkansas Bar Association’s Labor and Employment Law Section.
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Under the Affordable Care Act (ACA), certain services related to tobacco cessation are required to be covered by the employee’s insurance plan at no cost. They include:
The Tobacco-less
Workplace
• Screening for tobacco use. • For those who use tobacco, two cessation attempts per year, each composed of four tobacco cessation counseling sessions, and access to all Food and Drug Administration (FDA)-approved tobacco cessation drugs (both prescription and over-the-counter).* *http://www.dol.gov/ebsa/faqs/faq-aca19.html
Making sure your plan is in compliance is important, especially if you want employees to take advantage of an opportunity to kick the nicotine habit.
Electronic Cigarettes By JANIE WARNER
If you’ve ever watched an episode of the TV series “Mad Men,” you’ve seen the employees of this make-believe ad agency enjoying a smoke break at their desks at any given time of the day. You also see them having a cocktail during working hours, too, but that’s for another article! The show takes place in the 1960s, when the dangers of tobacco were just becoming known. Over the years, as the very real consequences of tobacco use has become frighteningly clear, more and more restrictions on the use of it at work have been put in place. Consider this: Tobacco use contributes to an extensive list of serious diseases, including cardiovascular and cerebrovascular diseases, multiple cancers, emphysema and bronchitis; second-hand smoke contributes to pediatric illness. Tobacco use is responsible for: • At least $96 billion per year in direct medical costs • An estimated $96.8 billion per year in lost productivity, due to sickness and premature death”* *http://www.cdc.gov/workplacehealthpromotion/implementation/topics/tobacco-use.html
Because of this warning and the potential costs involved, companies put in place various “no smoking” policies. Today, these policies have morphed into “tobacco use restriction” policies. But what are some of the outlier issues employers are grappling with today? Let’s begin with before the employee is hired.
Hiring and Tobacco Use In some states, a tobacco user will be protected by state statute and companies may not discriminate based on whether the applicant uses tobacco products. In other states, where no such protections exist, some companies have opted to ask on the initial application “Are you a user of tobacco products?” And, if the answer is “yes,” the applicant is immediately rejected. The pros are easy to identify: If tobacco users are not hired, it will be easier to become totally “tobacco free”. No more “extra” breaks for smokers (which often cause complaints from non-users) and hopefully, a healthier workforce. The cons? It severely limits the talent pool – which could be a huge deal if your company experiences high turnover. And what do you do if an applicant lies on the application? Do you want to hire, then terminate because of dishonesty? Ultimately, your company should decide how important this issue is and if discriminating against the smoker, dipper or chewer is right for your organization – and in keeping with the laws of your state.
Smoking Cessation Programs If tobacco use is an important health concern for your company, you’ve probably discussed sponsoring some sort of program to help employees quit. Often called “smoking cessation” programs, they can include any tobacco use. 22
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Electronic – or “E” – cigarettes are gaining in popularity and “Vape” shops are popping up all over the country. An e-cigarette is a battery-powered device that provides the user with an inhaled dosage of a vaporized liquid. Generally, the liquid contains nicotine and is used as an alternative to smoking tobacco. Employees have started asking about being able to use these electronic devices in their place of employment without the restrictions placed on regular tobacco cigarettes. Some of the concerns arise from the fact that, as of this date, the FDA does not regulate e-cigarettes and, therefore, hasn’t been able to issue statements on the safety of such devices. Additionally, the amount of nicotine in a vapor vial is also not regulated and, as such, users may not be aware of exactly how much nicotine they’re inhaling through the vapor of an electronic cigarette. This is a cause for concern. Many states have broadened the definition of tobacco use to include e-cigarettes for state offices, buildings and other public areas that restrict smoking. Some states have not. However, employers can restrict the use of any device that they would consider “disruptive” to the workplace, including e-cigarettes. It’s simply a matter of updating the “smoking policy” to a “tobacco use and e-cigarette use policy.” It can easily restrict the use of e-cigarettes to the same areas as all other tobacco use.
Last Words Company culture should play a big part in the development of any employee policy. If a healthy workplace is important to your corporate culture, looking at ways to restrict tobacco use, encourage employees to quit the use of tobacco products, and including electronic vaporized nicotine in your policies are some good places to communicate that message. As any great HR professional knows, a healthy workforce is a productive workforce. And that adds to the bottom line every time!
Janie Warner, MS-HRM Senior HR Consultant Regions Insurance Group, Inc. Janie.warner@regions.com www.regionsinsurance.com
Can we charge employees more if they are tobacco users?
I think so, but I’m not sure.
How would we verify if they quit?
Good question. Who can we call to find out?
Finding More Questions than Answers? When it comes to managing your employee benefits program and the Affordable Care Act, it can seem like every answer only leads you to more questions. Let Regions Insurance’s ACA-trained professionals guide you down the right path – because it’s our business to run defense for your business. Tom Hayes
Katrina McKinney
Employee Benefits Practice Leader tom.hayes@regions.com 479-684-5259
Sales & Marketing Coordinator katrina.mckinney@regions.com 205-264-7177
www.regionsinsurance.com
The Coverage You Need. The Guidance You Trust.
SM
Find Regions Insurance offices in these states: Alabama, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, South Carolina, Tennessee and Texas ©2015 Regions. Regions Insurance is an affiliate of Regions Bank. Products and services are offered by Regions Insurance, Inc., and underwritten by unaffiliated insurance companies.
Baker Donelson Firm Overview: Baker Donelson gives clients access to a team of more than 650 attorneys and public policy advisors representing more than 30 practice areas to serve a wide range of legal needs. Clients receive knowledgeable guidance from experienced, multi-disciplined industry and client service teams, all seamlessly connected across 19 offices in Alabama, Florida, Georgia, Louisiana, Mississippi, Tennessee, Texas and Washington, D.C. Ranked as the 68th largest law firm in the U.S., Baker Donelson is recognized by FORTUNE magazine as one of the “100 Best Companies to Work For.” MISSISSIPPI
Timothy B. McConnell – Employment and Labor Brooks Eason – Employee Litigation: Defense
Brooks Eason is a shareholder in Baker Donelson's Jackson office, and has served for nearly 25 years as lead outside counsel in employment litigation for a naval shipyard in Pascagoula, the largest employer in Mississippi. He has also represented shipyards in Gulfport, Mississippi, and New Orleans, Louisiana. Mr. Eason has successfully defended employers in class and collective actions and individual suits asserting claims for discrimination on the basis of race, gender, age, religion and disability, for sexual and racial harassment, and for violations of the Fair Labor Standards Act.
Timothy B. McConnell is in Baker Donelson's Knoxville office and co-chairs the Labor & Employment Practice Group. He counsels and defends clients in cases filed in federal and state courts in matters arising under Title VII, the ADA, ADEA, FMLA, FLSA, OSHA and state-specific employment laws. He also represents clients before the EEOC and the Tennessee Human Rights Commission. He provides management and employee training programs on various employment law-related topics, and counsels employers through reviews and audits of employee handbooks and policies, as well as day-to-day advice on employment law-related issues, including discipline and terminations, leave and disability accommodation.
J. Randall Patterson – Employee Litigation: Defense
J. Randall Patterson is a shareholder in Baker Donelson's Jackson office. He represents employers before the EEOC and other state and federal agencies, and advises employers on many topics including policies/ procedures, RIFs, wage and hour issues, employee handbooks, drug testing and employment contracts. Mr. Patterson has experience in a full range of employment-related litigation including: sexual harassment; age, race and disability discrimination, FLSA collective actions; retaliatory discharge and employment related defamation claims. Mr. Patterson has litigation experience in ERISA litigation cases involving the denial of employee benefits, breach of fiduciary duties and related claims.
TENNESSEE
Angie C. Davis is in Baker Donelson's Memphis office. Her practice includes investigations and responses to claims under Title VII, the Tennessee Human Rights Act and the ADEA, and state and federal agencies such as the EEOC or the NLRB. She provides daily counsel to executives, human resources managers and other clients on employment issues such as leaves, terminations, reasonable accommodations under the ADA, wage and hour issues, reorganizations, RIFs, policies and procedures, non-compete agreements and severance agreements. Ms. Davis works with clients to develop employee handbooks and policy and procedure manuals.
Stephen D. Goodwin – Employment & Labor Jennifer P. Keller – Employment & Labor
Jennifer P. Keller is president and chief operating officer of Baker Donelson. She is a former member of the Firm's board of directors and former chair of the Firm's nationally-recognized Labor & Employment Department. As an employment litigator, Ms. Keller advises clients on a wide variety of issues, including discipline and terminations, benefits issues, leave, disability accommodation, policy formulation and enforcement and similar matters. A substantial part of her practice is providing training for employers in the areas of harassment and discrimination prevention, drug-free workplace, union avoidance and other employment law issues. Frederick J. Lewis – Employee Litigation: Defense
Frederick J. Lewis is a 40+ year labor and employment attorney and is in Baker Donelson's Knoxville office. He advises and defends some of the largest employers in the country, with clients in the hospitality, banking, retail, health care, manufacturing, transportation and non-profit areas. He defends employers charged with unfair labor practices, representing them in labor arbitrations and counseling them on labor issues, including on maintaining union-free status and dealing with unions. Mr. Lewis has handled cases ranging from discrimination class actions and collective actions claiming wage-hour violations, to single plaintiffs' lawsuits claiming wrongful termination or discrimination. 24
Angie C. Davis – Employment & Labor
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Stephen D. Goodwin is in Baker Donelson's Memphis office and has extensive experience in all aspects of labor and employment law. He has negotiated union contracts, represented management in labor arbitrations and unfair labor practice charges and EEOC charges. He has litigated cases under the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the WARN Act, the Family and Medical Leave Act and their state counterparts. Mr. Goodwin advises clients daily on employer policies, terminations, employee handbooks and union matters. His clients include large corporations, small businesses, professional groups and non-profits.
Jonathan C. Hancock – Employee Litigation: Defense
Jonathan C. Hancock is in Baker Donelson's Memphis office. He represents employers and management clients in all aspects of employment law, including employee counseling and termination, proactive employee training, and handling of employee complaints and claims, whether made to the employer or filed as part of a lawsuit in state or federal courts across the country. He has extensive experience creating training programs for employees, including "front line" training for managers, supervisors and executives, and helps employers implement risk avoidance programs. He also defends employers against claims brought before the EEOC, DOL and various other state and federal agencies.
Maurice Wexler – Employment & Labor
Maurice Wexler is in Baker Donelson's Memphis office. Mr. Wexler represents employers in a broad variety of issues relating to labor and employment. He has counseling and litigation experience in the areas of employment discrimination, Title VII, ADA, ADEA, FMLA; statistical cases; class actions; employment policies; wage/hour cases; drugs, alcohol and AIDS-related issues; unemployment compensation; arbitration; labor negotiations; federal executive order 11246; compliance reviews; charge handling; develop affirmative action plans; NLRB and DFR cases; mediation and arbitration. He also serves as a diversity and inclusion trainer for Baker Donelson. Edward R. Young – Employment & Labor
Edward R. Young is in Baker Donelson's Memphis office, where he has a nationwide practice devoted to representing management's interest in all phases of labor relations and employment law. For over thirty years he has represented clients in labor and employment litigation in state and federal courts; has represented clients before the EEOC and the NLRB; handled union elections before the NLRB; and has defended matters before the U.S. DOL. He has assisted clients in conducting self-audits, and audits of subcontractors to assure compliance with the FLSA, The Davis-Bacon Act and The Service Contract Act. Martha L. Boyd – Employment & Labor
Martha L. Boyd is in Baker Donelson's Nashville office, where she advises companies that are competing for and executing contracts with the U.S. Department of Defense and other federal agencies. She advises employers on hiring, discipline, leaves of absence, and HR policy development and implementation. She trains supervisors and managers on employment laws and investigates allegations of employee wrongdoing, including harassment and discrimination and employee fraud. She represents employers in all types of litigation in state and federal courts and has successfully defended employment discrimination claims under Title VII, the ADA, FMLA and other state and federal statutes.
Lawrence S. Eastwood Jr. – Employment & Labor
Larry Eastwood is in Baker Donelson's Nashville office. He has extensive experience defending management in cases brought under Title VII, ADEA, ADA, FMLA, FLSA, ERISA, and applicable state employment statutes, as well as employment contracts, noncompete covenants, confidentiality agreements, trade secrets and complex commercial disputes. He counsels on employment law compliance and litigation avoidance, including management and employee training, wage and hour, noncompete covenants, employment contracts, protection of trade secrets, employment policies and handbooks, drug testing, union avoidance, reductions in force, recordkeeping, employee privacy rights, workplace investigations, the WARN Act and compliance with state and federal anti-discrimination laws.
Kenneth A. Weber – Employee Litigation: Defense
Kenneth A. Weber is in Baker Donelson's Nashville office. For more than 20 years, he has defended employers of all sizes in disputes ranging from wage and hour, unfair competition and trade secret protection, to discrimination and harassment charges, retaliation and whistleblower suits, and employment contract disputes. He has participated in over 50 trials and injunction hearings, including numerous jury trials as first chair. Mr. Weber regularly counsels employers on litigation avoidance and compliance strategies, provides general employment law advice and training, drafts employment contracts and policies, and represents employers in Department of Labor and EEOC investigations.
Charles Grant – Employee Litigation: Defense
Charles K. Grant is in Baker Donelson's Nashville office and is a member of the Firm's Board of Directors. He represents clients in complex employment litigation, including collective actions under the Fair Labor Standards Act. His practice also includes business litigation. He has tried more than 45 jury trials to verdict in both federal and state courts, and represented numerous clients in mediation and arbitration proceedings across more than a dozen states. Mr. Grant's clients also include licensed professionals, such as lawyers, physicians and dentists, whom he has represented before licensing boards. M. Kim Vance – Employment & Labor
Kim Vance is in Baker Donelson's Nashville office. She has 25+ years of experience representing management in every aspect of labor and employment law. In addition to defending companies in employment litigation, Ms. Vance's practice focuses on nationwide in-house management training programs to reduce legal risks for; counseling management clients through auditing human resources policies and practices; and developing pre-litigation strategies to improve available defenses in preparation for litigation. She represents clients in State and Federal Courts and in defense of administrative proceedings before the EEOC, State Human Rights Commissions, State Unemployment Commissions, Arbitrators, the NLRB and the DOL.
We’re the Resource in Human Resources Customized management training Compliance audits Policy and strategy analysis Litigation defense Immigration services Labor negotiation ALABAMA • FLORIDA • GEORGIA • LOUISIANA • MISSISSIPPI • TENNESSEE • TEXAS • WASHINGTON, D.C.
www.bakerdonelson.com THIS IS AN ADVERTISEMENT. Ben Adams is Chairman and CEO of Baker Donelson and is located in our Memphis office, 165 Madison Avenue, Suite 2000, Memphis, TN 38103. Phone 901.526.2000. ©2015 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
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Watkins & Eager PLLC Firm Overview: Established in 1895, Watkins & Eager PLLC is a full-service, diversified law firm, specializing in a multitude of practice areas. These areas include an extensive real estate, banking, corporate and business practice, as well as a broad trial and appellate practice. The lawyers of Watkins & Eager possess exceptional legal expertise and have achieved numerous notable distinctions. Six of the firm's lawyers are members by invitation only to the prestigious American College of Trial Lawyers. Best Lawyers in America® has named thirty-five attorneys in its exclusive listing, representing thirtyeight practice areas. Chambers USA-America's Leading Lawyers for Business® has recognized Watkins & Eager and eighteen of its attorneys as "Leaders in their Field" in multiple areas of law. The national rating service Super Lawyers has named twenty-four Watkins & Eager attorneys as 2013 Mid-South Super Lawyers, and two attorneys as Mid-South Rising Stars. Kenneth E. Milam has exclusively practiced labor and employment law for thirty-five years and has successfully litigated numerous
employment discrimination cases before jury and bench trials in state and federal court. Conducted numerous NLRB union election campaigns, unfair labor practice trials, contract negotiations and arbitrations. Successfully represented clients before the Wage Hour Division of the Labor Department and Office of Federal Contract Compliance. Counsel employers on day-to-day personnel matters. His experience includes: Co-Counsel for the American Truckers Association's constitutional challenge to constitutionality of ERISA restriction for multi-employer pension plans and Lead Counsel in successfully defeating an extension of liability to individual managers and supervisors under Mississippi's at-will employment law. Kenneth has been listed in The Best Lawyers in America® for since 1989 and was Best Lawyers Lawyer of the Year for 2014 in Employment Law Management, 2013 Arbitration and 2012 Labor Law Management, and Super Lawyers (2006-2014.) A compilation of Kenneth’s publicly available case activity and results is available at www.watkinseager.com. Walter J. Brand heads the Employment and Labor Practice Group at Watkins & Eager PLLC, where he has defended employment
litigation for more than twenty years. Mr. Brand approaches his practice with the view that successful defense of employment claims begins long before a lawsuit is filed and turns upon several separate processes: fair, accurate and documented handling of personnel actions based on updated employer policies; cogent explanation of employer action before the EEOC and other agencies which is consistent with documented employer business decisions; and nuanced discovery, evidentiary and legal strategies designed to efficiently position cases for successful resolution by motion or trial. A compilation of Mr. Brand’s publicly available case activity and results is available at www.watkinseager.com. Mr. Brand represents employers across numerous economic sectors, including in the automotive, poultry processing, propane, banking, financial, physician, hospital and medical service industries. He is rated AV by Martindale Hubbell and is consistently recognized in the area of employment litigation defense in Best Lawyers, Chambers & Partners, and Super Lawyers. He is a member of the American Employment Law Council and regularly serves as an instructor and contributing author on human resources administration and employment litigation topics before legal education and industry audiences.
Watkins & EagEr
Employment Discrimination, Retaliation and Harassment Litigation
Attorneys and Counselors at Law since 1895
Employment-related Tort and Contract Litigation
Leaders for Management in Employment and Labor Law
Employment and Management Advice Employee Discipline and Discharge Labor Relations Wage and Hour HR Policies and Training
s Walter J. Brand
Watkins & Eager PLLC Located in the Historic Emporium Building 400 East Capitol Street • Jackson, Mississippi 39201 Telephone: (601) 965-1900
www.watkinseager.com Free background information available upon request.
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(601) 965-1863 wbrand@watkinseager.com
Kenneth E. Milam
(601) 965-1852 kmilam@watkinseager.com
Bingham Greenebaum Doll LLP Firm Overview: Bingham Greenebaum Doll LLP is a regional law firm providing progressive business, litigation and government services to clients ranging from Fortune 500 businesses and Global 1000 companies to small, regionally based organizations across a variety of industries and sectors. The firm is both locally accessible and nationally connected with offices in Indiana, Kentucky and Ohio. In addition to its regional presence, Bingham Greenebaum Doll LLP provides international representation to a multitude of clients and is a member of TerraLex®, an association of independent law firms in nearly 100 countries, providing the firm and its clients with quick access to advice on the laws of foreign jurisdictions. Brent Baughman is a partner in the Labor and
Employment practice group at Bingham Greenebaum Doll LLP. He represents employers in various employment-related matters in state and federal trial and appellate courts. He has served as counsel in several valuable cases and has demonstrated substantial skill in litigating complex employment questions on behalf of client companies. He has consistently been recognized by The Best Lawyers in America® and is a recipient of their “Lawyer of the Year” award in appellate law. Most recently, Brent has been engaged in litigation challenging the local minimum wage ordinance in Louisville, Kentucky. Kentucky Super Lawyers List (2015). Wendy Bryant Becker represents employers in all
phases of employment law at Bingham Greenebaum Doll LLP. In particular, her practice includes the litigation of employment discrimination and wrongful discharge cases, representation of employers before the EEOC, state and local Human Rights Commissions, and general counseling to employers on hiring, firing, wage-hour and other day-to-day employment matters. Wendy is currently a member of the Kentucky Bar Association’s Labor and Employment Law Section and a board member of the Fayette County Bar Association (2014-2016). She is admitted to practice in Ohio (1981) and Kentucky (1983). Kentucky Super Lawyers List (2015).
Blaine R. Blood is a partner in Bingham Greenebaum
Doll LLP’s Louisville office and a member of the Labor and Employment Law Practice Group. Blaine advises employers on matters arising under a broad range of state and federal laws, advises employers on how to avoid litigation, handles employment litigation, and assists with labor arbitrations and labor negotiations. Blaine advises clients concerning compliance with state and federal statutes, and implementing best HR practices. Blaine has also assisted employers with handling EEOC and Department of Labor investigations. Kentucky Rising Stars List (2015). Philip C. Eschels is a partner in the Labor and Employment practice group at Bingham Greenebaum Doll LLP. He represents employers in defending against employment-related claims in both federal and state courts. He also represents clients involving covenants not to compete and the protection of trade secrets. Phil also counsels employers and trains management personnel concerning a wide range of employment-related topics, including harassment, how to prevent discrimination lawsuits and how to minimize potential liability when hiring, disciplining and firing employees. Phil has written many articles and co-authored How to Avoid Legal Problems in Hiring and Firing in Kentucky. Kentucky Super Lawyers List (2015).
The experience to innovate faster. Bingham Greenebaum Doll LLP has been serving clients for more than 100 years. With that kind of experience behind us, we help you welcome change, evaluate risk and innovate fast. What’s your next milestone? Let’s celebrate together.
100 Years New Louisville, KY. | Lexington, KY. Indianapolis, IND. | Evansville, IND. Vincennes, IND. | Jasper, IND. Cincinnati, OHIO bgdlegal.com | (800) 436-3644 THIS IS AN ADVERTISEMENT
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Burch, Porter & Johnson, PLLC Burch, Porter & Johnson is a full service law firm based in Memphis with a vibrant Labor and Employment Law practice. The firm has extensive experience in representing both employers and employees in federal and state court litigation, as well as counseling and advising on a wide range of employment-related issues. The firm’s members are always available to provide advice on important and sensitive employment decisions, to defend clients in litigation when the need arises, and to ensure compliance with all legal requirements governing the workplace. The firm also regularly negotiates employment-related agreements, drafts and updates employee handbooks, provides employee training, and conducts internal investigations.
Lisa Krupicka joined the firm in 1987 and has been a member since 1995. Her practice is focused primarily on advising and representing employers on a variety of employment-related matters, including employee handbooks, training, wage and hour issues, labor relations, and employee discipline and termination. She also advises businesses on 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; constitutional claims under 42 U.S.C. § 1983, Title III ADA litigation, ERISA discrimination and benefits claims, as well as wage and hour class actions. Ms. Krupicka is also a frequent speaker on employmentrelated topics for various professional and industry groups.
She graduated from Duke University (J.D., with high honors, 1986) and was named to the Mid-South Super Lawyers list in the area of Employee Litigation: Defense (2006-2014).
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Jennifer Hagerman’s practice focuses on employment litigation and
complex commercial litigation, with a particular emphasis on matters pending in federal court. She has represented clients in cases involving employment discrimination, wage and hour class actions, restrictive covenants, civil rights, healthcare, education, products liability and numerous areas of commercial law. Ms. Hagerman also advises clients on a variety of employment matters including non-solicitation and non-competition agreements, employee handbooks, and employee classification under the FLSA. She graduated from Vanderbilt University School of Law (J.D. 1999) and was named to the Mid-South Super Lawyers list in the area of Employment and Labor (2013-2014).
Mary Morris's practice focuses on civil litigation, including commercial
litigation, employment law, products liability and appellate matters. After graduating from Yale Law School in 2002, Ms. Morris served as a judicial law clerk to the Honorable Julia S. Gibbons of the United States Court of Appeals for the Sixth Circuit in 2002-03, and the following year to the Honorable Samuel H. Mays of the United States District Court for the Western District of Tennessee. Ms. Morris joined Burch, Porter & Johnson in 2004. She was named to the Mid-South Super Lawyers "Rising Stars" list in the area of Business Litigation (2008 - 2014).
Bass, Berry & Sims Firm Overview: The Labor and employment team is known as a strong team of litigators and counselors advising clients on both traditional labor matters and employment matters. They work with union and non-union companies as well as public and private employers ranging from Fortune 500 companies to small locally owned businesses. The team represents a wide variety of industries, including healthcare, manufacturing, retail, distribution, utilities, communication, transportation, service, retail food sales and education. They are experienced in employment counseling, employment litigation, and traditional labor law, including contract negotiations and arbitrations; retaliation, discrimination and whistleblower claims; FLSA DOL investigations and class/collective actions; and a myriad of other issues including FMLA and state law leaves of absence, I-9 compliance, independent contractor classification and non-competes.
Tim Garrett of Bass, Berry & Sims helps employers solve complex issues related to all aspects of labor and employment law, providing in depth counseling and developing creative solutions to underlying business issues. He is an experienced trial lawyer, defending employers of all sizes in employment litigation claims across the country. His work has ranged from defending a major university during a significant wage and hour collective action involving thousands of employees to the successful defense of a major healthcare provider in a gender discrimination / retaliation case. In addition, Tim has served as nationwide labor and employment counsel for the largest nonprofit dialysis company in the U.S. Named a top management lawyer in Nashville in 2013, and recognized by both Best Lawyers in America® and Chambers USA for several years, Tim has earned a national reputation for counseling employers through the maze of complex employee issues. Tim has been named a Super Lawyer from 2006-2014.
Bill Ozier of Bass, Berry & Sims has practiced more
than 40-years as a labor and employment attorney and has earned national praise that includes 30 consecutive years of recognition in Best Lawyers in America® for labor and employment and top-tier rankings in Chambers USA for his "well documented and focused process" on labor and employment matters (from Chambers USA 2013). 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. Bill represents a wide variety of clients – including a number of Fortune 500 companies – from a broad scope of industries, including manufacturing, distribution, retail, education and healthcare. Bill has been named a Super Lawyer from 2006-2014.
Wimberly Lawson Firm Overview: Wimberly Lawson Wright Daves & Jones PLLC, with offices throughout Tennessee, specializes in Labor and Employment Law, Workers’ Compensation, Immigration, and General-Liability/ Commercial-Defense claims for businesses, management, insurers, and governmental entities. The Firm is a successor to the Labor Law practice of the former Mitchell, Clarke, Pate, Anderson & Wimberly, which was founded in 1948 and known for its connections to "Gone with the Wind” and the Mitchell family. Wimberly Lawson consistently strives to deliver the highest level of legal services in a timely, cost-effective, and ethical manner. The Firm is known for its wellproven approach to preventive maintenance, and for its extensive litigation practice which includes proceedings and trials involving all levels of State and Federal courts and government agencies. Fredrick R. Baker is a Member of the Cookeville, Tennessee, office of Wimberly Lawson Wright Daves & Jones PLLC. His practice emphasizes workers' compensation and employment discrimination, as well as ADA and FMLA compliance. Fred is the Editor for BLR’s Tennessee Workers’ Compensation Handbook, and on the Advisory Board for the Tennessee Workers’ Comp Reporter. He is actively involved with Upper Cumberland SHRM, the Mid-South Workers' Compensation Association, and the National Workers' Compensation Defense Network. Fred was awarded the highest possible rating (AV Preeminent®) by Martindale-Hubbell, and selected as a Rising Star in 2012, 2013, and 2014 by Super Lawyers. He received his law degree, magna cum laude, from the University of Tennessee.
PERFECT ALIGNMENT. Relationship. Reliability. Respect. At the center of our Employee Benefits and Labor & Employment practices.
N A S H V I L L E K N O X V I L L E M E M P H I S W A S H I N G T O N D C bassberry.com Blog: bassberrylabortalk.com
@BassBerryLabor
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Are You Breaking the Rules? The Devil Is in the Details: New NLRB Guidance on the Legality of Common Employer Policies
Why Should Non-Unionized Employers Care About the NLRA? Unbeknownst to many employers, the NLRA: (1) gives employees the right to engage in “concerted activity” for mutual aid or protection, regardless of whether they belong to a union; and (2) prohibits both unionized and non-unionized employers from interfering with concerted activity. An employment policy violates the NLRA if the policy could have a chilling effect on employees’ concerted activity, regardless of whether the employee is a member of a union.
What Types of Employment Policies Violate the NLRA? In addition to rules that prohibit union organizing activity, an employment policy is unlawful if “employees would reasonably construe” the work rule to prohibit concerted activity. Needless to say, the category of policies that may be “reasonably construed” to deter concerted activity is extremely broad and implicates policies that virtually all employers have adopted in some form. The NLRB’s distinctions between “lawful” and “unlawful” policies are nuanced, to say the least, and frequently turn on the presence or absence of a few “buzz” words. A look at three of the most common work rules reviewed by the NLRA demonstrates this point.
1. Confidentiality Policies
By S HANA FONNESBECK and CHRIS ANDERSON
In
March 2015, the National Labor Relations Board (NLRB) issued a Memorandum identifying employer policies and work rules that violate the National Labor Relations Act (NLRA). While it’s no surprise that the agency continues to
crack down on employment policies that it believes deter employees from exercising their NLRA rights, the Memorandum’s sweeping examples of “unlawful” language are likely to alarm employers who have long relied on these well-intentioned bedrock policies to provide structure and order in the workplace. Unfortunately, the Memorandum provides no clear guidance that employers can apply when crafting work rules and policies. This, of course, begs the question: How can employers revise their policies to comply with the NLRA and still maintain effective work rules that protect the company’s interests? 30
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The NLRB has found confidentiality policies unlawful if they interfere with employees’ rights to discuss conditions of employment with each other and third parties, particularly where the policy itself refers merely to “confidential” or “private” information. For example, the Memorandum considered the following policies unlawful because they were too broad and employees would reasonably believe them to chill communication about wages and working conditions: • “ Confidential Information is: ‘All information in which its [sic] loss, undue use or unauthorized disclosure could adversely affect the [Employer’s] interests, image and reputation or compromise personal and private information of its members.’” • “ Do not discuss customer or employee information outside of work, including phone numbers and addresses.” • “ If information is not public, you must not share it.” The Memorandum suggests that lawful confidentiality policies do not reference wages, hours or other conditions of employment, nor should they address concerns about the employer’s reputation. For example, • “ No unauthorized disclosure of ‘business secrets’ or other ‘confidential information.’”
• “ Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers.” While this language is similar to the “unlawful” language above, it is narrower and less likely to be construed as referring to wages, hours or conditions of employment, but merely prohibits disclosure of protected business information.
2. Conduct If an employer’s handbook establishes rules about how employees should behave toward their supervisors, it could run afoul of the NLRA, especially if it prohibits “disrespectful,” “negative,” “inappropriate” or “rude” conduct toward management. Examples of unlawful policies in this category include:
What This Means for Your Company’s Handbook As illustrated by these examples, many employers will find themselves scratching their heads at the NLRB’s seemingly nebulous distinctions between “lawful” and “unlawful” policies. Employers are likely to get more realistic and precise direction only when the federal courts consider the NLRB’s interpretation of what may be “reasonably construed” to deter concerted activity. Until that happens, however, there is little doubt that the NLRB will continue to scrutinize employee policies, and the Memorandum illustrates the need to carefully review your handbook and modify or narrow any broad language or prohibitions that the NLRB has found to be unlawful.
• “ [B]e respectful to the company, other employees, customers, partners, and competitors.” • “ [D]isrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative [is prohibited].” The NLRB considered these rules overbroad because they prohibited employees from criticizing the company, which could suppress concerted activity. The NLRB found the following example to be lawful because it “is clearly focused on serious misconduct” so that “employees would not reasonably believe this rule to ban protected criticism”: • “ Being insubordinate, threatening, intimidating, disrespectful or assaulting a manger/supervisor, coworker, customer or vendor will result in [discipline].”
Shana Fonnesbeck, Associate Littler Mendelson Nashville Office sfonnesbeck@littler.com www.littler.com
Chris Anderson, Shareholder Littler Mendelson Nashville Office chrisanderson@littler.com www.littler.com
Moreover, policies encouraging cooperative behavior, rather than those prohibiting disrespectful behavior, are more likely to be found lawful, such as the following example: • “ Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors.” Through these examples, the NLRB attempts to distinguish between broad policies that insist on respectful conduct or prohibit disparaging remarks about the company and more focused policies that prohibit specific conduct, including insubordination toward a member of management.
3. Walking Off the Job Non-union employees have the right to strike. As a result, the NLRA has decided that blanket policies that prohibit “walking off the job” could interfere with an employee’s right to strike. The Memorandum notes that the following policy was found unlawful: • “ Failure to report to your scheduled shift for more than three consecutive days without prior authorization or ‘walking off the job’ during a scheduled shift is prohibited.” The NLRB found the following policy lawful because it would “not reasonably be read to encompass strikes”: • “ Entering or leaving Company property without permission may result in discharge.”
A Healthy Worker is a Safe and Productive Worker...
we can help you get there.
While these two policies are nearly identical and prohibit the same conduct, it appears that the NLRB is against absolute prohibitions and in favor of more permissive language. As a result, employers should consider implementing policies that focus on an employee’s obligation to stay at work unless management grants permission to leave early. www.HRProfessionalsMagazine.com
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BEST PRACTICES for COMPENSATION MANAGEMENT
— A comprehensive assessment for extracting value from compensation analysis and practice THIS IS PART 1 OF TWO ARTICLES. By BRUCE JOHANSON
ELEMENTS OF BEST-IN-CLASS COMPENSATION MANAGEMENT Simply listed the essential elements of a best-in-class compensation management program include: 1. Comprehensive Position Analysis Questionnaires / Reviews / Interviews 2. Compliant and Consistent Job Descriptions 3. Internal and Validated Job Rating System 4. Employee Data Integration 5. Market Salary Data 6. Action-oriented Analysis Capabilities (Pay Equity, Perf. Mgmt., Pay Policy, Human Capital Planning) However, the elements must be considered in the context of appropriate technology architecture and a repeatable process framework. The key data elements for compensation management come directly from the information backbone of a state-of-the-art HRIS system architecture. The process framework we employ includes: • Primary elements of your firm's compensation philosophy driven and aligned with company goals
BEST PRACTICE DEFINED - A technique, or methodology that innovatively uses resources (technology, equipment, personnel, data, etc.) resulting in significant and measurable improvement in the operation or performance of a business process. Any best practice will demonstrate success through validated improvement of such factors as cost, quality, performance, or integration with other business processes and systems. A best practice will be repeatable to allow other business units to adapt this practice and realize success in their own environment. COMPENSATION MANAGEMENT DEFINED - A collection of activities that establishes an internally equitable and externally competitive philosophy and practice for paying employees. Salaries and wages are often the largest cost to a firm and can be up to 70% of a company's annual operating costs. Creating a comprehensive and impartial structure is key to attracting and retaining talent, and therefore fundamentally strategic to the organization. STRATEGIC ADVANTAGE ASSOCIATED WITH COMPENSATION MANAGEMENT - Every business leader knows that strategic advantage is founded on a strong culture of organizational learning and growth. Strong cultures epitomize fair and equitable opportunity for employee stakeholders. Committed and ambitious employee acquisition and retention begins with compensation management. Best-in-class compensation management requires comprehensive and systemic understanding of: • External Factors – including applicable regulations, market salary data, etc.
• Internal equity insured by balanced assessment and analysis • External competitiveness driven by accurate market comparisons
POSITION ANALYSIS Job evaluation is the structural foundation for any successful business. It is the fundamental alignment of business needs to specific job duties and responsibilities and the basis of an internal audit of a firm's positions. In order to effectively rank your positions, a consistent framework for assessment is required. There are numerous approaches available, but our 15-factor job rating system is copyrighted and validated over tens of thousands of applications. The form used is our Position Analysis Questionnaire (PAQ) that captures the key elements for analysis. It was developed from a desire to provide a more comprehensive and objective job rating process than other commercially available methods offering more specificity with factor and degree language and a greater job evaluation breadth.
JOB DESCRIPTIONS Each element of a best practices methodology should enable and support other elements. Beginning with a comprehensive analysis allows our automated methodology to generate a consistent and compliant job description for each position. The benefits of a job description are numerous and include:
• Internal Factors – including job descriptions, job analyses, etc.
• Provide a general guideline of a job/position
The planned application within a comprehensive and integrated system enables HR organizations to fulfill their primary responsibility to the organization of delivering the best and the brightest at competitive rates. Strategic orientation anchors the HR development process. Strategy alignment begins with translating operational processes into the critical job descriptions required by the organization to achieve their objectives. Compensation management data is fundamental information required by HR to complete key processes of organizational structuring, capacity planning and performance management, and therefore is the basis for any comprehensive and integrated HRIS.
• Create an internal job posting or external posting/ad
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• Facilitate annual position review • Guide during interview • Review as a part of the on-boarding/orientation process • Basis of comparison for an individual's actual performance to the job requirements • Differentiate one position over another - job value/rating and compensation level
Today organizations are being required to implement better employeerelated programs and documentation due to changes in existing laws and regulations and recently passed new legislation. The American with Disabilities Act (ADA), the Family Medical Leave Act (FMLA) and their recent amendments plus the new Lilly Ledbetter law are causing organizations to move the priority of creating and maintaining job descriptions from the back burner to the front burner.
analysis of salary to job rating establishes your company baseline. The figure (Exhibit 2) illustrates one such analysis that color codes the data points for gender. This provides dramatic visual assessment of a firm's salary line with additional gender reporting. This graph can be color-coded by age, gender or ethnicity and analyzes internal equity/inequity. While important for
The general process for creating an ADA compliant job description is: 1. Complete a PAQ (This can be done by the employee, management, HR or some combination) 2. Management review for content 3. HR final review for objectivity, accuracy and compliance
JOB RATING Assigning a rating to each position completes the internal audit aspect of job evaluation. This anchoring point provides the only appropriate context for externally comparing salary and compensation figures. In the past, arriving at the specific ratings for each position may have been complex without sound technology. The picture (Exhibit 1) illustrates
POSITIONS
RATING FACTORS 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Total
715-09-025
14
13
7
9
7
8
12
14
7
10
7
7
4
1
1
2636
212-09-004
13 12
13 9
5 5
9 9
8 8
8 8
8 5
10 6
7 7
13 12
7 7
7 7
6 12
1 1
1 1
2527 2249
General Counsel VP/Secretary EVP Sales & Professional Services
810-09-026
12 12
11 10
8 5
9 9
8 8
8 8
5 6
6 10
7 7
12 12
7 7
7 7
6 5
1 1
1 1
2164 2136
Chief Marketing Officer SVP Client Operations
610-09-020 310-09-010
12 12
10 8
5 7
9 8
8 8
8 8
6 7
9 5
7 6
12 12
7 7
7 7
4 8
1 1
1 1
2066 2065
12 12
8 9
7 5
8 8
8 8
8 8
7 6
5 9
6 7
11 12
7 7
7 7
8 4
1 1
1 1
2025 2001
Chief Executive Officer / President Chief Financial Officer/Executive Vice President Chief Technology Officer
SVP Engineering SVP Sales VP of Human Resources VP of Information Technology
712-09-024 213-09-005
12 12
8 8
5 5
9 8
8 7
8 7
5 8
7 6
6 6
11 10
7 5
7 5
6 10
1 1
1 1
1898 1885
VP of Managed Security Services Analysis VP of Sales - Enterprise
353090411 850090485
8 12
8 8
6 5
8 8
7 7
7 8
9 4
6 7
6 6
10 11
6 7
6 7
9 4
1 1
1 1
1859 1748
VP of Tax and Treasurer VP of Architecture/IT Strategy
710-09-022
12 10
8 8
5 6
8 8
7 7
7 7
3 6
8 6
7 7
11 9
6 6
7 6
6 7
1 1
1 1
1728 1672
VP of Finance VP of Sales - Direct
710-09-023 651090481
12 10
8 8
5 5
8 8
7 7
7 7
2 5
7 7
7 6
11 11
6 6
6 6
6 4
1 1
1 1
1659 1586
10 10
8 8
5 5
8 8
7 7
7 7
5 5
7 7
6 6
11 11
6 6
6 6
4 4
1 1
1 1
1586 1586
9
6
5
8
7
7
5
5
6
11
6
6
8
1
1
1579
VP of Sales - Inside Sales VP of Sales Channels VP of Professional Services
314-09-015
SAMPLE COMPUTER SERVICES COMPANY Exhibit 1, Page 1 of 7. Printed 4/28/2015.
Copyright © 2001-2015 DBSquared, LLC DBCompensation System - www.dbsquared.com
our completely automated capability to suggest baseline ratings for all 15 factors derived from our entire database of experience. More important than providing a baseline is the capacity to collaborate with management and HR professionals to drive toward a consensus value for each position within the enterprise. This capability refocuses your teams' expertise on defining real value instead of simply performing administrative tasks.
DATA INTEGRATION Once relative internal position value is established, employee data can be merged to understand the full compensation picture. Employee data typically includes mandatory attributes such as: • Name/Position/Rate of Pay Additional attributes needed to manage compensation for equity, competitiveness and compliance include: • Experience/Date of Birth/Date of Hire/Gender/Race/Location/ Department/EEOC Class/Direct Report Your best practices-based approach should allow for an easy seamless download from a payroll or HRIS system. Actual employee data can now fuel internal analyses for compliance and equity. Initially a regression line
compliance reporting reasons, this kind of instant information is critical to proactive management and decision making.
MARKET SALARY DATA Internal equity is important to your staff and critical to compliance. Market pricing on the other hand allows management to understand critical external elements that may be driving salary and benefit expectations affecting retention and recruiting. Certainly technology has provided more and more available data. However, across companies and industries easily obtained data adheres to a definite Pareto effect that analyzed without sufficient context can ultimately lead to inflated salaries and expectations. Market data is good. Knowing how to apply it to unique or varying circumstances is better. This takes skill and expertise to establish initially, but is certainly sustainable once the initial philosophy is embedded in company culture, and a technology base allows an effective and efficient combination with job valuations. The combined information drives informed decision making and policy planning. Article by Bruce Johanson – Principal Partner and Co-Owner of DB Squared and the Johanson Group. Bruce and his twin brother Blair, and their other DB Squared principal, Dale Oliver, are located in Fayetteville, Arkansas. www.HRProfessionalsMagazine.com
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Risk Mitigation and Avoidance:
Class Action and Statute of Limitation Waivers
permissible, and must instead arbitrate privately. The Supreme Court has also held that arbitration agreements made under the Federal Arbitration Act “preempt” or override state laws that do not allow class action waivers. There are downsides to arbitration agreements. For example, a party that loses in arbitration has almost no chance of getting the arbitration ruling overturned. Arbitration agreements are not the best fit for all employers, and each employer should consider the pros and cons with legal counsel. But, given the increasingly favorable legal environment for such agreements, they are worth a look.
By BLAINE R. BLOOD
Statute of Limitations Waiver
Can you win a lawsuit before it begins? Federal and state regulation affecting employers continues to proliferate. Business is booming at the Department of Labor and the Equal Employment Opportunity Commission (“EEOC”). Lawsuits under the federal Fair Labor Standards Act (“FLSA”), which governs federal minimum wage and overtime requirements, have seen a steady increase over the last 20 years. Many of those lawsuits include expensive and time consuming class or collective action litigation. Nearly 90,000 discrimination charges were filed with the EEOC in 2014. Once a charge or lawsuit is filed against an employer, defending or litigating can be expensive and unpredictable. This article attempts to provide a few tips on what employers can do to exercise some control over the litigation process to avoid or mitigate cost, and enhance predictability of litigation outcomes.
Another way to avoid or mitigate employment law risk is by having employees sign a statute of limitations waiver. Because the statute of limitations is the deadline by which a legal claim must be filed, an employee may sign a waiver which shortens the deadline, thereby reducing the time frame in which a claim must be filed, and avoiding any claims that are filed outside of the deadline. For example, the time frame for filing a charge with the EEOC is 180 days or, in some circumstances a maximum of 300 days. Individual states may have discrimination or other employment laws that give employees even more time. For example, Kentucky’s statute of limitations for filing a claim under the Kentucky Civil Rights Act or the Kentucky Wages and Hours statute is a whopping five years! An employer can prevent stale claims by, for example, including a statute of limitations waiver in a prospective employee’s application for employment as a term or condition of such employment if hired.
Impact on Employers Employment litigation certainly has an effect on employers. There are obvious costs: attorney fees, litigation expenses, insurance deductibles (in some cases), and, of course, the risk of a large monetary judgment. There are also costs that are not so obvious. For example, a collective action lawsuit could arise under the FLSA because of a problem with company-wide payroll policy or even payroll software that calculates overtime. If a lawsuit is filed for unpaid wages, it is likely that somebody from the company will have to spend precious work hours combing through spreadsheets and payroll records trying to determine who was underpaid, or what went wrong with the calculation. A cost is incurred by having that employee spend time on that task instead of on a more productive activity. Will the CEO or Vice President of Human Resources be deposed? What is the value of their lost time preparing to give testimony? Is there a cost to having the company’s good name dragged through the mud in a public lawsuit?
Class-Action Waiver One way to avoid or mitigate some of the risks involved with a messy, employment-related class-action lawsuit is to have employees sign a class-action waiver set forth in an arbitration agreement. This kind of agreement, if executed correctly, will prevent an employee from dragging the company into class-action litigation, and will require the employee to resolve the dispute “one-on-one” in private arbitration, rather than in a public courtroom. One-on-one litigation is often easier to settle, and requires fewer internal resources. As a practical matter, numerous potential plaintiffs will often elect not to sue at all if they are not part of a class because the time and effort of sustaining a “one-on-one” action is not worth the trouble. In addition, arbitrations usually include expedited discovery, relaxed rules of evidence, and a private experienced arbitrator. In recent years, federal courts have become increasingly committed to upholding arbitration agreements that do not allow for plaintiff participation on a class-wide basis. In Stolt-Nielsen S.A. v. Animal Feeds International Corp., the Supreme Court held that “a party may not be compelled under the [Federal Arbitration Act] to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” In other words, once a party has agreed to arbitrate a dispute, then the dispute is going to be on a one-on-one basis, unless the arbitration agreement allows for class arbitration. In addition, an employee who has agreed to arbitrate is not allowed to bring his or her claim in court, where a class action is 34
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Such waivers may not be allowed in all states, or for all claims, but they are certainly allowed in many states, and for most claims. Check with legal counsel to see if this is a viable option for your business.
Implementation For organizations that are considering implementing such arbitration agreements or statute of limitations waivers for employees, thought should be given to the roll out. Legal counsel should be sought. When considering implementation of these agreements, however, there are numerous documents that most employers already have that could be updated to include the agreements discussed in this article. Employment applications, confidentiality agreements (which most employers should have anyway), nonsolicitation or noncompete agreements, new-hire intake documentation, and handbook acknowledgement forms are just a few examples of documents that could include such agreements.
Conclusion Given what seems to be a rising tide of employment litigation, businesses should consider measures to avoid, or mitigate, employment risks. The agreements discussed in this article are relatively easy to prepare, and certainly less costly than the lawsuits potentially avoided. If a statute of limitations waiver, or an arbitration agreement, is right for your business, they could be useful tools for avoiding some lawsuits altogether, or stopping them near the beginning of the proceedings, instead of after years of litigation. In other words, can you win a lawsuit before it begins? In some cases, with arbitration agreements and statute of limitations waiver, the answer is yes.
Blaine R. Blood, Attorney Bingham Greenebaum Doll LLP, Louisville Office bblood@bgdlegal.com www.bgdlegal.com
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Getting to Know You
– Background Checks and Pre-Employment Testing
signed authorization. Employers who conduct public records searches themselves, or call to verify job history or to speak with references are not bound by the FCRA requirements. A background check should not be requested unless it is job-related. The employer should be able to articulate, in objective terms, why it may be relevant to an employment decision. For example, a credit check would be suitable for employees responsible for handling cash, or who are subject to a bonding requirement, but not for someone working as a construction worker, for example.
By EDWARD H. TRENT
Some states and towns (but not Tennessee) have limited when criminal background checks can be performed, and prohibited employers from asking applicants about any criminal convictions on their employment applications, under a recent wave of so-called “ban the box” laws. However, regardless of when criminal background checks are performed, not everything in someone’s history is always relevant. Accordingly, employers should be careful how they use the information. In 2012, the EEOC updated its guidance in this area, to the cheers of some and the derision of others, requiring employers to conduct an “individualized assessment” before making a hiring decision on the basis of criminal history. Thus, an employer should gather additional facts about any particular incident of concern, and determine if it is truly related to the necessary job qualifications, before deciding to reject an applicant on that basis.
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For example, if a 30-year-old candidate (who was otherwise qualified) was arrested when he was 18-years-old for vandalizing his high school as part of a senior prank, but had no other blemishes on his record, rejecting him for the incident would most likely not be job-related, and therefore run afoul of the EEOC’s guidance. Furthermore, it might also be viewed as a pretext for some unlawful reason why he was not hired, such as discrimination on the basis of race or national origin.
iring new employees can be an expensive, time consuming task. An employer can be prepared with standard forms and interview questions, but still not have enough information to truly evaluate someone who may be a member of the workplace “family” for years to come. Employers would be wise to spend a little more time in obtaining relevant background information. The law, however, sets some important ground rules on how to gather such information, and knowing them is critical when attempting to learn more than what is presented on a resume. The best place to start with background screening is with the employment application itself. In addition to the basics (work history, education, qualifications), an employer should consider requesting job and personal references, as well as permission to conduct one or more background checks. Towards that end, the job application should include a separate form signed by the applicant, specifically authorizing the employer to verify the application information, contact references, and conduct background checks. A background check is the most common type of screening information requested by employers today, and it can include criminal history, credit check, and/or other personal information. Most employers use third-party providers to gather such information, in which case, the rules under the Fair Credit Reporting Act (“FCRA”) apply. Before requesting a third party to conduct a criminal background check, the employer must provide notice to the applicant and obtain a 36
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Employers and recruiters are turning more frequently to social media for additional background screening information. Jobvite’s 2014 Social Recruiting Survey reports that approximately 94% of recruiters will use LinkedIn to solicit candidates or gather background information on applicants. This far exceeds the number of recruiters who use Facebook (32%) or Twitter (18%) for getting background information on candidates. Social media can productively be used to investigate professional experience, specific skills, examples of work product, and other relevant work-related information. This explains why LinkedIn is the top choice of social media sites used by recruiters. However, employers may find Facebook and/or Twitter to be more relevant for other helpful information, such as
identified in the Jobvite study: e.g., profanity, spelling and grammar errors, illegal drug references, and sexual posts. These issues can legitimately be considered by the employer, so long as they do not encroach on a protected class such as religion, sex, disability, race or national origin. On the positive side, employers may learn about volunteer work and donations to charity. Accordingly, open social media sources may provide valuable information if used correctly. Use of social media is not without risks, however. Many states, including Tennessee, prohibit employers from requiring an applicant to give access to “private” areas of social media. Additionally, information on social media may reveal that the candidate (or someone affiliated with them) has health issues or a disability, or is otherwise a member of a protected group, and such factors cannot legally influence a hiring decision. Additionally, personal medical information and family medical history (e.g., a relative recovering from cancer) are matters that if considered in hiring will likely violate the Americans with Disabilities Act (“ADA”) and/or the Genetic Information Non-Discrimination Act. To avoid a claim that information sourced on social media was wrongfully used to make a hiring decision, the employer should designate a single individual to search social media and only gather (and print) information relevant to the hiring decision. Then, only relevant information should be shared with the hiring manager. The other area for background screening – and one often forgotten by employers - is to verify each applicant’s education, job history, and reference checks pursuant to their signed authorization as mentioned above. It can be helpful, for example, in confirming whether an applicant actually graduated from a college or university, or just took classes. It can also be helpful in obtaining more information from another employer than just the dates of employment, last position held, and wage rates. Although employers are free to provide truthful information about a former employee, they may be hesitant to do so due to fear of litigation if the employee is not hired for the new job, and a signed authorization can make all the difference. Keeping good notes of who the employer spoke with and the information provided is critical if a hiring decision is made based on the background check. Of course, all screening must be done uniformly and consistently for all relevant applicants. It can be done after a conditional job offer, or after an initial round of screening for minimal qualifications, or after the employer has narrowed the field to a final list of candidates. The information-gathering can also be spread over time, with some information gathered before an interview and other information gathered before a final hiring decision is made. Regardless, the same processes and the same timing should be used for all applicants for the same job and/or comparable positions, with criterion and results applied equally. Selectively doing background screening for only certain applicants will open the employer to claims of discrimination. In addition to background screening, employers can do a variety of pre-employment testing. The most common is pre-employment drug testing. These tests should only be used after a conditional job offer has been made and the person should not start work before the results are in. The employer should have procedures in place 1) to inform the employee of the requirement for a drug screen and the process to be followed, and 2) to obtain the prospective employee’s prior written consent. The employer should only use a reputable drug testing facility, and positive test results should always be verified before notifying the employer.
in most of these locales) that employers must allow employees to come to work under the influence of marijuana or to use marijuana at work. Active drug use is not protected under the ADA, but drug dependence and the need for drug treatment may be. Accordingly, employers should have a policy in place on the consequences of a positive test and apply that policy consistently to avoid claims of discriminatory treatment. Lastly, some employers like to use aptitude tests, personality tests, physical ability tests, or specific skills tests. Just as with other types of employment screening, these should be job-related and applied equally across the board. Tests should be based on sound scientific validation standards and the employer must be very careful to monitor the results for possible disparate impact on protected groups (e.g., race, sex, age), and not to wittingly or unwittingly disproportionally exclude certain classifications of individuals. These same concerns are applicable to tests given to a pool of candidates for promotion. The disparate impact analysis is important to protect the employer and justify the use of the test(s) in question. Hiring a new employee is a big decision, and can affect everyone in the workplace “family” for a long time. Accordingly, taking the time to learn about the applicant and consider all relevant information before hiring can go a long way to assisting an employer in making the right hiring decision.
Edward H. Trent, Attorney Wimberley Lawson Wright Daves & Jones, PLLC etrent@wimberlylawson.com www.wimberlylawson.com
SISKIND SUSSER PC Tennessee’s Largest Business & Employment Immigration Practice
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2300 21st Ave. S Nashville, TN 37212 615.345.0266
While more states have started authorizing the use of medical marijuana and some have legalized recreational marijuana, that does not mean (at least www.HRProfessionalsMagazine.com
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Are your employees working at work? Use your benefits program to boost engagement and productivity By B LAKE ROGERS, JIMMY HINTON, CHRIS MENARD and RICKY REYNOLDS
True confession time: In a new survey, employees admit they spend a significant portion of their work time … not working. The 2014 U.S. Worker Study recently released by Colonial Life and Unum shows employees spend 16 percent of their day on personal activities such as errands, emails and scheduling appointments, socializing with co-workers, and venting about workplace stress or conflict with co-workers. Add in time spent at lunch and on breaks, and it totals 22 percent — nearly a quarter of each day. That’s a lot of lost productivity. Here’s how the time breaks down:
Venting about stress/conflict 3%
Other 4%
who rate their employer’s benefits education “excellent” or “very good,” a strong majority — 82 percent — also say their benefits package is “excellent” or “very good.” Only 3 percent say it’s “fair” or “poor.” The opposite is also true. Employees who rate their benefits education only “fair” or “poor” are far more likely to say the benefits package is “fair” or “poor.” In fact, more than half (55 percent) of these employees hold this negative opinion. Finally, employees who rate their benefits package and benefits education highly are also far more likely to say they feel energized to “go the extra mile” for their company than those who rate their benefits lower. So there’s a strong line connecting quality benefits, benefits education and employee loyalty — and that, in turn, may affect productivity. Employees who give their employer lackluster ratings say they spend significantly more time venting about workplace stress or conflict than their more satisfied peers. Now, we’re not saying a great benefits communication plan is going to ensure employees never indulge in a little online shopping or an extra few minutes around the water cooler during business hours. But clearly, there’s a strong connection between helping your employees understand their benefits package — the benefits your company invests so heavily in — and how satisfied they are at work. And a happy, engaged workforce is essential to boosting your company’s productivity and success. If you want to increase productivity, morale and retention of your top talent, a strong benefits communication program is a great place to start.
Lunch breaks 6% Socializing with co-workers 6%
Blake Rogers
Personal activities 7% Doing job 59% Work-related meetings 6% Work-related email 9%
What does this mean to your business? First, we think it’s fair to assume employees who feel positively about their workplace are more engaged and productive — and less likely to spend valuable work time dealing with stress, conflict and personal issues. So how do you create that workplace satisfaction? One way, the survey shows, is through your benefits program, including benefits education.
Education drives benefits and workplace satisfaction There’s a high degree of correlation between how employees feel about their benefits package and how they feel about their employer, according to the 2014 U.S. Worker Study. Of employees who rate their benefits package as “excellent” or “very good,” 76 percent also say their company is an “excellent” or “very good” place to work. Only 5 percent rate it “fair” or “poor.” On the flip side, employees who give their benefits package just a “fair” or “poor” rating are much more likely — 45 percent compared with the 5 percent above — to say their company is only a “fair” or “poor” place to work. And only 18 percent of these employees say their employer is “excellent” or “very good.” Let’s take this one step further: How employees feel about their benefits package is closely related to how good they think their benefits education is. Of employees 38
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Tennessee territory sales manager, Colonial Life & Accident Insurance Company tblakerogers@coloniallife.com or 615-696-6672
Jimmy Hinton Mississippi territory sales manager, Colonial Life & Accident Insurance Company jhhinton@coloniallife.com or 601-326-2954
Chris Menard Kentucky territory sales manager, Colonial Life & Accident Insurance Company cmenard@coloniallife.com or 502-272-9664
Ricky Reynolds Arkansas territory sales manager, Colonial Life & Accident Insurance Company rcreynolds@coloniallife.com or 501-246-8979
ABOUT COLONIAL LIFE Colonial Life & Accident Insurance Company is a market leader in providing financial protection benefits through the workplace, including disability, life, accident, dental, cancer, critical illness and hospital confinement indemnity insurance. The company’s benefit services and education, innovative enrollment technology and personal service support more than 80,000 businesses and organizations, representing more than 3 million of America’s workers and their families. For more information, visit www.ColonialLife.com, www.facebook.com/coloniallifebenefits, www.twitter.com/coloniallife and www.linkedin.com/company/colonial-life.
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Question:
Retain or Don’t Retain Supporting Documents for I-9 Forms By BRUCE E. BUCHANAN
As an immigration compliance attorney, I am often asked by employers whether they should copy and retain the supporting document(s) presented by employees for completion of Section 2 of the I-9 form. As is true in so much of immigration law, there is not a perfect answer. In this article, I will explore the factors to be considered as well as the advantages and disadvantages of copying and retaining these document(s).
The Law
As you know, when completing Section 2 of the I-9 form, to establish work authorization, employees may choose which document(s) they want to present from the List of Acceptable Documents. If an employee chooses a List A document, such as a U.S. passport, Permanent Resident card (green card), or Employment Authorization Document (EAD), that document shows both identity and employment authorization. If the employee chooses to present a List B document, such as a driver’s license, that document will establish their identity and a List C document, such as unrestricted Social Security card or U.S. birth certificate, will establish their employment authorization. The choice of document(s) is that of the employee, not the employer. After the employee presents the document, the employer must physically examine the document(s) presented to determine if they reasonably appear to be genuine and relate to the employee presenting them. This is a fairly low standard for the employer to meet. The employer then records the information in the applicable list(s) in Section 2 and completes the certification.
Copy and Retain Supporting Document(s)? At this point, the employer has a choice to copy and retain the document(s) or not. The I-9 regulations do not require an employer to make a copy of document(s). However, if an employer uses E-Verify, the employer must copy and retain the following List A documents, if presented: U.S. passport, U.S. passport card, Permanent Resident Card and the EAD. If the employer is located in Tennessee, it is subject to a state law, Tennessee Lawful Employment Act (TELA), which states an employer may enroll and use E-Verify for newly-hired employees, or it may copy and retain a state-issued driver’s license or identification, unexpired U.S. passport, Permanent Resident Card, EAD, birth certificate, certificate of naturalization, or a few other forms of identification from newly-hired employees. Louisiana and Colorado also have similar laws.
Advantages to Copying and Retaining Supporting Document(s) There are advantages to copying and retaining I-9 supporting documents. One, retaining copies of I-9 documents could reduce penalties assessed by Immigration and Customs Enforcement for common I-9 mistakes, including missing titles of documents, numbers or expiration dates on the I-9 form. Two, copies of documents are helpful if an employer conducts an internal I-9 audit. The immigration compliance counsel, or other person conducting the internal audit, will be able to review the actual documents to determine
whether they appear genuine. If some do not meet this test, further investigation will be necessary. Three, supporting documentation can be used as a defense against discrimination claims that the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is investigating, or possibly litigating. Four, if there is an allegation that the employer knowingly hired an unauthorized worker, a copy of the document(s) presented may demonstrate the employer had a good-faith belief that the person was authorized to work in the U.S.
Disadvantages to Copying and Retaining Supporting Document(s) So what are some of the disadvantages for employers copying and retaining supporting documentation? One, if the documents retained do not appear to be genuine, ICE may charge the employer for knowingly hired an unauthorized worker. Two, the document(s) may show the employer knowingly accepted false documents, which is a separate offense than knowingly hiring an unauthorized worker. Three, occasionally an employer becomes confused and believes the retention of the documents to be recorded in Lists A, B, or C is a valid substitute for completing Lists A, B, or C. It is not and the failure to complete that information on Section 2 of the I-9 form is a substantive error, leading to ICE assessing penalties against the employer.
Consistency in Copying and Retaining An employer must be consistent in its practice of copying and retaining supporting documents. If an employer has such a policy, it must copy and retain documents for all employees, not just some employees. Failure to be consistent could open an employer to potential claims of discrimination before the OSC and the EEOC (national origin claims for an employer with 15 or more employees).
Recommendation If an employer is located in Tennessee, one is going to have to copy and retain some documents either because of E-Verify or TELA. Thus, to me, it seems easier and creates less administrative difficulties to copy all appropriate I-9 documents as opposed to just certain ones required under E-Verify or TELA. Using the same reasoning, if an employer is in Mississippi, which has a mandatory state E-Verify law, I recommend copying and retaining supporting document(s). If an employer is not located in a mandatory state E-Verify law, it is a tougher decision as to whether to copy and retain supporting document(s). There is not a perfect answer and I recommend going through the advantages and disadvantages with immigration compliance counsel before making a decision.
Bruce E. Buchanan, Attorney Siskind Susser P.C. bbuchanan@visalaw.com www.visalaw.com www.HRProfessionalsMagazine.com
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employees creating greater employee engagement, resulting in a positive impact on the hope of achieving the organizational mission and goals.
A Call to Urgency: 21st Century Leadership Competencies Needed for Success
By TRISH HOLLIDAY and ERNIE RICKETTS
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raditionally, the skills needed to be successful in a particular job role have been divided into what were known as “hard skills” and “soft skills.” Hard skills were those more job related, technical skills, such as the skills needed to be good at accounting, engineering, etc. Soft skills were the more relational skills, those that enabled one to work well with others, or the skills that made one a good manager and leader. In today’s workplace, the terms are being reversed for those in leadership roles. What were traditionally known as soft skills now are viewed as the new hard skills essential for leadership success. It is no longer just important to develop the technical skills necessary to be a high performer in a particular role, the emerging trend is that there are mission critical leadership competencies needed to be a highly effective leader. Consider for a moment the idea of flying in an airplane. When all is going well, and everything is functioning properly, a jet engine will enable an aircraft to fly. However, when something goes wrong the engine can stop performing effectively and simply stop working. This is known as a flameout. In aviation a flameout refers to the run-down of a jet engine caused by the extinction of the flame in the combustion chamber. It can be caused by a number of factors, including fuel starvation, compressor stall, insufficient oxygen (at high altitudes), foreign object damage (such as birds, hail, or volcanic ash), severe inclement weather, mechanical failure and very cold ambient temperatures. A flameout is most likely to occur when flying through certain weather conditions at a low power setting such as flight idle (e.g., during the descent). These conditions include flight through moderate to heavy turbulence, rain, hail, or sleet. This same concept can occur with leaders when they are not paying attention to mastering the mission critical leadership competencies, the new hard skills, identified in this article. What are the indicators of leadership flameout? Leadership flameout is evident when leaders who were doing well all of a sudden falter, begin to perform poorly, and lead ineffectively, resulting in the organization and its workforce failing to meet established goals. There could be many contributing reasons for this failure such as losing sight of the organization’s mission, becoming egocentric, doing something unethical, losing focus of purpose, and above all, failing to stay current in role and industry best practices. Avoiding leadership flameout begins with knowing the difference between leading and managing. Warren Bennis quoted Peter Drucker who said, “Leaders are people who do the right things, managers are people who do things right. There’s a profound difference.” A mission critical competency for leaders is to master understanding that effective leaders are forward thinkers, articulately paint credible visions of possibilities, and demonstrate strategic and organizational agility. Being able to differentiate the value of leading people while managing processes increases the likelihood that leaders can avoid flaming out in their role. What do employees want most from their organizational leaders? Marshall Loeb stated, “Employees want direction, meaning, trust and hope from their leaders.” Employers expect their employees to perform their roles effectively and efficiently. However, the 21st Century leader understands that employees need more from their leaders. Effective leaders provide vision for the organization and meaning for the work all employees do at any level within the organization. When employees find meaning in their work, increased trust exists between leaders and 40
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Effective leaders avoid flameout by demonstrating courageous leadership. Building rapport with individuals throughout the organization, developing honest relationships, providing truthful feedback and insightful coaching can help leaders perform courageous acts of leadership. Learning to be a lifelong learner becomes a differentiator for effective leaders. Learning to always learn helps great leaders avoid flameout by first knowing they do not know it all and making it a priority to continually improve. Demonstrating continuous learning and growth positions leaders in a way that makes flameout less likely. Great leaders are made, not born. “They’re made,” Loeb observed, “usually, self-made.” Effective leaders pay attention to the warning signs that could lead to flameout, resulting in the ability to keep their effectiveness moving forward. Leaders who understand and demonstrate the difference between leading and managing positively impact the work environment and the interpersonal relationships in the organization. People are cared for and their work valued and processes are managed for efficiency. Leading with direction and purpose promotes visionary leadership. This type of leadership increases employee engagement in their work as they see how what they do aligns with the leader’s vision. Finally, becoming a life-long learner heavily impacts how to avoid flameout by keeping an eye on continuous improvement, growth and development. Success in being a lifelong learner starts with the deliberate decision to commit to always learning, seek out other lifelong learners for energy and encouragement, and develop a personal learning plan that identifies resources, strategies, and goals for succeeding. Effective and efficient leaders avoid flameout by proactively taking strategic steps. Those steps include knowing the difference between managing and leading, developing a sense of purpose, being a life-long learner, and realizing that leaders are made, not born. These are the new “hard skills” essential for leadership success.
Trish Holliday, M.A., SPHR, SHRM-SCP Assistant Commissioner and Chief Learning Officer Tennessee Department of Human Resources
E.C. Ricketts, Ph.D., SPHR, SHRM-SCP Director of Organizational Development Tennessee Department of Human Resources
7 Habits of Highly Emotionally Intelligent People
By HARVEY DEUTSCHENDORF
“ 75% of careers are derailed for reasons related to emotional competencies, including inability to handle interpersonal problems; unsatisfactory team leadership during times of difficulty or conflict; or inability to adapt to change or elicit trust.” – The Center for Creative Leadership, 1994 It is increasingly becoming accepted that emotional intelligence is an important factor in our success and happiness, not only at work but in our relationships and all areas of our lives.
Focus on the Positive While not ignoring the bad news, emotionally intelligent people have made a conscious decision that they will not spend a lot of time and energy focusing on the problems. Rather they look at what is positive in a situation and look for solutions to a problem. They focus on what they are able to do and that which is within their control. If they determine that there is nothing they can do about a situation they do not spend time commiserating, but move on to something that they have some influence over.
Surround themselves with positive people People with a lot of emotional intelligence don’t spend a lot of time listening to complainers and avoid negative people. They are aware that negative people are an energy drain and are not willing to let them drain their energy. Because they always look for solutions and the positive in situations, negative people quickly learn to avoid them as misery loves company. The people that they spend time with are positive and look upon the bright side of life. You can spot them as they tend to smile and laugh a great deal and attract other positive people. Their warmth, openness and caring attitude leads others look upon them as more trustworthy. Aware that what they put out they will get back in multitudes, emotionally intelligent people are generous and give freely of their time and energy. They make great volunteers and are involved in causes that have meaning to them.
Forward thinking and willing to let go of the past People with high EI are too busy thinking of possibilities in the future to spend a lot of time dwelling upon things that didn’t work out in the past. They take the learning from their past failures and apply it to their actions in the future. They never see failure as permanent or a reflection of themselves. Failure is seem as a necessary process that brings them one step closer to their goal.
Look for ways to make life more fun, happy and interesting Whether it is in their workplace, at home or with friends, high EI people knows what makes them happy and look for opportunities to do more of it. They get pleasure and satisfaction out of seeing others happy and fulfilled and do whatever they can to brighten someone else’s day.
Choose how they expend their energy wisely While they are good at moving on from the past when things didn’t work out as expected, they are also able to move on from conflicts involved with others. They don’t hold on to anger over how others have treated them, rather use the incident to create awareness of how to not let it happen again. “Fool me once, shame on you, fool me twice, shame on me,” is their motto. While they move on and forgive, they don’t forget and are unlikely to be taken advantage of again in the same set of circumstances. While they tend to expect the best from others, they are realists and use their negative experiences to help them become better judges of people.
Continually learning and growing towards independence Highly emotionally intelligent people are lifelong learners and constantly growing and evolving. They are open to new ideas and always willing to learn from others. Critical thinkers, they are open to changing their minds if someone presents them with an idea that fits better. While they are open to ideas from others, and continuously gathering new information, they ultimately trust themselves and their own judgment to make the best decision for themselves. While in long term committed relationships their ideal is working towards interdependence. However, they are aware that it takes two independent people to form an interdependent relationship. If not, someone in the relationship will quickly become dependent.
Are able to set boundaries and be assertive when necessary Although their friendly open nature may make them appear as pushovers to some, people with high EI are able to set boundaries and assert themselves when they need to. They demonstrate that one can be polite and consideration but still firm at the same time. They do not make needlessly make enemies and their response to situations in which there is conflict is measured and not greater than necessary to manage the situation. They think before speaking and give themselves time to calm down if their emotions appear to be overwhelming them. High EI people guard their time and commitments and know when they need to say no.
Harvey Deutschendorf Emotional Intelligence Expert, Speaker, and Author of The Other Kind of Smart Harvey.eiguy@shaw.ca www.theotherkindofsmart.com Twitter@theeiguy www.HRProfessionalsMagazine.com
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May 8,March, 2015 |April Marriott Memphis & May 2015 East
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6 1 Fisher Phillips Memphis Attorneys – (L-R) Martin Thompson, Courtney Leyes, Jeff Weintraub, Bill Wright (Philadelphia Office), and Jay Kiesewetter, 2 Jeff Weintraub, Regional Managing Partner Memphis, presented Collective Actions and Misclassifications. 3 “Sex, Gender, Same Sex Marriage & Transgender Employees: What it All Means” was presented by Courtney Leyes. She also presented “The Best Ways to Get Sued Over Leaves and Accommodation.” 4 Bill Wright, Fisher & Phillips Philadelphia, discussed “The Affordable Care Act: Ten Things You Need to Know.” 5 Martin Thompson presented “Marijuana, E-Cigarettes and Other Smoky Things” and “Bring Your Own Devices – Just Don’t Bring Me a Lawsuit.” 6 The HR Panel of Experts included Cynthia Y. Thompson, Editor | Publisher of HR Professionals Magazine; Andrea Sueing, SPHR, VP HR for Hollywood Casino Tunica; and Cynthia Blankenship, Director of HR for Nidec. The Panel fielded questions from attendees. 7 Jay Kiesewetter discussed “Why the NLRB is Still Snooping Around Your Employee Handbook.” 42
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