Volume 8 : Issue 6
TM
www.HRProfessionalsMagazine.com
Guide to
Highlights from the SHRM Talent Conference & Expo
Super Lawyers
in Labor & Employment Law
Standing Desks and the ADA
Cindy Olson,
Former CHRO of Enron HR Executive
Conference Cruise Keynote Speaker
October 22-26
Creating a Culture
of Achievement vs. Entitlement
Google Class Action
Pay Equity Case
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Bringing Human Resources & Management Expertise to You According to a study from the University of New Hampshire, millennials scored 25% higher in entitlement-related issues than their 40-60 year-old counterparts, and 50% higher than those over 60.
www.HRProfessionalsMagazine.com Editor
Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher
The Thompson HR Firm, LLC HR Consulting and Online HR Certification Classes Art Direction
Park Avenue Design Contributing Writers
Austin Baker Bruce E. Buchanan Audrey Calkins William Carmichael Sean Dryden Brad Federman Michael D. Hornback Daveante Jones Michelle Kaemmerling Charles A. Roach Edward H. Trent Janie Warner Rachel A. Zisek Board of Advisors
Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR Terri Murphy Susan Nieman Robert Pipkin Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2018 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.
Features
Employment Law
Industry News
4 Join us for our 1st Annual HR Executive Conference Cruise October 22-26
10 Don’t Get Caught with Your “Breaches” Down
8 Highlights from the 2018 SHRM Talent Conference & Exposition in Las Vegas April 16-18
5 Preview of Speakers for our 1st Annual HR Executive Conference Cruise October 22-26 6 note from the editor 7 Profile: Cindy Olson, former CHRO with Enron 16 Boot Straps: Creating a Culture of Achievement vs. Entitlement 22 Leveraging Background Screening as Part of a Successful Retention Strategy 24 Designing Innovative Benefits for Recruiting and Retention Success 28 “Absence Makes the Heart Grow Suspicious” – The Erosion of Trust in Today’s Workplace 53 Book Look: The Mind of the Leader by Rasmus Hougaard and Jacqueline Carter
Guide to Labor & Employment Law Super Lawyers 42 Ogletree Deakins 45 FordHarrison
12 Revived Class Action Lawsuit Against Google Demands a Second Look at Pay Equity 14 Employers Seeing Stepped Up Worksite Enforcement by ICE and the Return of Worksite Raids 18 Summertime Safety – Policies and Procedures for Child Protection
20 Highlights of the 2018 ALSHRM State Conference in Birmingham May 1-2
26 Strategies for Effective (and Legal) Succession Planning
33 Preview of the KYSHRM 34th Annual Conference in Louisville August 28-30
30 The Rise of Stand-Up Desks and ADA Accommodations Implications
34 Highlights from the SHRMGA HR Legal Summit with Lilly Ledbetter in Savannah May 4
32 Highlights of Ogletree Deakins - Memphis Employment Law Briefing April 20 35 Highlights from Burch, Porter & Johnson Seminar on HR and Tax Implications in Hiring and Firing May 8-9 40 Highlights from the Bass Berry Sims Seminar on Addressing Sexual Harassment in the Workplace in Memphis April 25 Wimberly & Lawson Attorney Michael Avakian Named Associate Deputy Secretary of Labor 41 Cross, Gunter, Witherspoon & Galchus, P.C. Seminars
47 Wright Lindsey Jennings
52 Be Prepared for ICE, They May Be at Your Door
49 Cross, Gunter, Witherspoon & Galchus, P.C. The Kullman Firm 50 Bass Berry Sims Littler
Educational Opportunities for HR Professionals 23 WGU Tennessee – Fully Aligned with SHRM’s HR Curriculum
36 Highlights from the 2018 Tennessee SHRM Strategic Leadership Conference in Nashville April 27 38 Highlights from the 8th Annual WTSHRM Human Resources & Employment Law Spring Conference in Jackson May 2 51 2018 Tennessee SHRM Conference & Exposition in Sevierville September 19-21 54 Highlights from the TPMA Annual Conference in Franklin April 23-27
46 Fisher Phillips Burch, Porter & Johnson 48 Wimberly Lawson Wright Daves & Jones, PLLC Constangy, Brooks, Smith & Prophete LLP
15 Achieving Equality in Business and the Legal Profession at the University of Memphis Cecil C. Humphreys School of Law August 24
55 Human Resource Executive Technology Conference & Exposition in Las Vegas September 11-14 July 2018 Issue Features Educational Opportunities for HR Professionals and Employment Law and Employee Benefits Update plus Highlights from the SHRM Annual Conference in Chicago June 17-20 Deadline to reserve space June 15
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Save $100 - Register by June1! to
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https://aspect-marketing.mightevent.com/events/event-details.cfm?eventKey=5193
Join us for our 1st Annual HR Executive Conference Cruise! We are combining a robust Human Resources Executive Conference with an exciting cruise to the Bahamas October 22-26. You can earn a boat-load of HRCI business recertification credits and SHRM PDCs, learn from a line-up of top-notch keynote speakers, and network with your peers from Arkansas, Alabama, Georgia, Kentucky, Mississippi, Tennessee and other states in the US for this innovative concept in HR conferences. It is everything that a land-based conference offers - except that it moves! We will be sailing on the Royal Caribbean Mariner of the Seas from Miami.
Day 1
Mon.
Oct. 22
Miami: EMBARK
Depart 4:00 pm
Day 2
Tue.
Oct. 23
Nassau: DOCKED Arrive 8:00 am
Depart 11:59 pm
Day 3
Wed.
Oct. 24
Coco Cay: TENDERED Arrive 7:00 am
Depart 5:00 pm
Day 4
Thu.
Oct. 25
Cruising: CRUISING
Day 5
Fri.
Oct. 26
Miami: DEBARK Arrive 7:00 am
Register before June 1, 2018 to obtain the early bird registration rate of just $599 (plus the cost of your stateroom). We have four stateroom options including an interior room for $499, a promenade room for $549, an ocean view room with balcony for $649 and a Junior Suite with balcony for $919. The cost of your stateroom is “all-inclusive� based on double occupancy and includes your lodging, all meals, most ship activities, taxes, port fees, pre-paid gratuities, security fees and licenses. Does not include alcohol or Internet. These may be purchased separately. Please email cynthia@hrprosmagazine.com or give me a call at 901.598.0123 and let me know if you are interested in attending our 1st Annual HR Cruise and Executive Conference! Or, if you are ready to make your purchase visit hrcruise.com! HR Professionals Magazine is partnering with Aspect Marketing and Communications, Inc. for this innovative conference and will assist in managing the HR Executive Conference Cruise for our guests.
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HR EXECUTIVE CONFERENCE CRUISE
Monday 10/22 Departure from Miami, Florida
4:00 PM
Tuesday 10/23 Arrive in Nassau, Bahamas
8:00 AM - 11:59 PM
Meet & Greet Cocktail Hour!
5:00 PM - 6:00 PM
Keynote Session: Dennis Koerner, Ph.D.
7:45 PM - 9:15 PM
Opening Night
Dennis W. Koerner, Ph.D.
Cindy Olson
M. Kimberly Hodges
Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR
Melva Tate, PHR, CLC
William “Bill” Carmichael, Ed.D
“Artificial Intelligence - The HR Game Changer” Wednesday 10/24 Coco Cay, Bahamas
7:00 AM - 5:00 PM
Thursday 10/25 Keynote Session: Cindy Olson,
8:00 AM - 9:30 AM
Former CHRO for Enron & Founder of Choice Strategic Alliance “The Collapse of a Culture . . . Lessons from Enron” Session Speaker: Kim Hodges,
9:45 AM - 11:00 AM
Shareholder Ogletree Deakins “Risk Management - Managing Legal Expenses” Session Speaker: Cynthia Thompson,
11:15 AM - 12:30 PM
Editor | Publisher HR Professionals Magazine “How to Conduct an HR Audit for Maximum Compliance” Session Speaker: Melva Tate,
1:30 PM - 2:45 PM
Tate & Associates - Strategic HR Partnerships “Innovation 101: Think Diversity” Session Speaker: William Carmichael, Ed.D,
3:00 PM - 4:15 PM
Campus Dean, Strayer University (ret) “Working with Virtual Teams” Friday 10/26 Dock in Miami, Florida
7:00 AM
To register or obtain more information - Visit our website:
www.HRCruise.com
The conference has been submitted for 8.0 HRCI Business Credits and for 8.0 SHRM Professional Development Credits (PDCs). www.HRProfessionalsMagazine.com
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a note from the editor
With Lilly Ledbetter at the SHRMGA HR Legal Summit in Savannah May 4 I am so excited to have Cindy Olson on our June 2018 cover! Cindy is the former CHRO of Enron, and is one of our keynote speakers for our 1st Annual HR Executive Cruise to the Bahamas October 22-26. You don’t want to miss her presentation on “The Collapse of a Culture…Lessons Learned from Enron!” Cindy is currently Chief HCM Strategist at Choice Strategic Alliance. In addition to Cindy, Dennis Koerner, Ph.D., will be speaking on “Artificial Intelligence - The HR Game Changer.” We have a full line-up of excellent speakers planned for October 25. Our conference has been submitted for 8.00 HRCI business credits and 8.00 SHRM PDCs. Visit www.HRCruise.com to learn more about our innovative Executive Cruise Conference. You will have two days of fun in the sun in the Bahamas. Our conference will be held as we are cruising back to Miami. I hope you will join us!
Although all the SHRM spring conferences were exciting, the most exciting conference in May had to be the SHRMGA HR Legal Summit in Savannah on May 4 featuring the Lilly Ledbetter. We had the opportunity to meet her for dinner and a book signing on May 3 at Skyler's Restaurant in beautiful downtown Savannah. What an amazing experience to meet Mrs. Ledbetter in person, and hear her speak about her battle for equal pay for equal work! If you have not yet read her book, Grace and Grit, I encourage you to do so. It is an inspiring story about how she fought for ten years for equal pay, taking her case all the way to the Supreme Court without winning a penny because of a technicality - she failed to file formal charges with the EEOC
The June issue is one of my favorites because we feature the Guide to Super
within 180 days of learning that her pay was not equal
Lawyers in Labor and Employment Law from Alabama, Arkansas, Georgia,
to her male counterparts who were doing the same job.
Kentucky, Mississippi and Tennessee. As HR professionals, we work with
The Supreme Court did not rule on whether there was
these attorneys every day. This is an opportunity to spotlight them, and to say
discrimination, just on the statute of limitations. The
thank you for all you do for the HR profession. We could not do our jobs without
effect of the Court's holding was finally reversed by the
you! If you are looking for legal assistance, look no further than this Guide. You
passage of the Lilly Ledbetter Fair Pay Act in 2009.
will find the perfect attorney to help you with all your employee relations issues.
President Obama signed the Lilly Ledbetter Fair Pay Act
We hope you will keep it as a handy reference to use as needed.
into law on January 29, 2009.
In this issue we have highlights from the SHRM Talent Conference and
I look forward to seeing everyone in Chicago for
Exposition held April 16-18 in Las Vegas. What a great city to visit and tour!
the Annual SHRM Conference June 17-20. It's the
Be sure to catch the recap on Pages 8-9. May was another exciting month
world's largest HR conference! Be sure to Like our
of SHRM Conferences beginning with the WTSHRM 8th Human Resources
Facebook page so that you can receive instant notifica-
& Employment Law Spring Conference May 2 in Jackson. The Conference
tions of our Facebook Live interviews from Chicago.
was sponsored by the West Tennessee SHRM Chapter in coordination with Rainey, Kizer, Reviere & Bell, P.L.C. We also have highlights of the TNSHRM
Watch your email for our next complimentary My
Strategic Conference in Nashville held April 27, the TPMA Conference in
webinar sponsored by Data Facts on June 20. Watch
Franklin April 23-27, and the ALSHRM Conference in Birmingham May
your email for your invitation! If you are not currently
1-2. We love to travel down to Birmingham and take the opportunity to visit
receiving our monthly invitation, you can subscribe on
our grands there!
our website at www.hrprofessionalsmagazine.com.
cynthia@hrprosmagazine.com cythomps@twitter 6
www.HRProfessionalsMagazine.com
on the cover
Cindy Kay OLSON
Cindy Olson is a keynote speaker on The 1st Annual HR Executive Conference Cruise Octobeer 22-26. Her topic is “The Collapse of a Culture – Lessons Learned from Enron.”
Cindy Olson began her career at Koch Industries and then became an auditor with Pizza Hut. She went on to work for Inter North in Omaha, Nebraska, which later became Enron where she ultimately progressed to the Executive Committee of the Fortune 7 Company. Olson, uniquely lived both the creation and the demise of Enron. Ultimately serving on the company’s 20 person Executive Committee. Olson held the position of Executive Vice President of Global Human Resources and Community Relations when the company filed for bankruptcy in 2001. She was responsible for helping Enron become Fortune’s 22nd best company to work for and driving Enron’s innovative culture which led to Enron being the first company to be named Fortune’s most Innovative Company 6 years in a row. After the Enron bankruptcy she was the first Executive to testify before the United States Senate and United States House. She authored the only book written by a top Enron Executive, “The Whole Truth so Help Me God” that describes the “real Enron” from a true Insiders point of view and gives an insider’s account of both the rise and fall of Enron and the lessons learned from both. “There are many lessons that can be learned from a company that was so great and fell so quickly” she explains. In all of her keynotes she takes the audience through the transformation of Enron into one of the greatest business successes in recent history and the events that led to its collapse. “What happened to Enron can happen to any company and all leaders should want to understand how they can prevent such a devastating outcome.” In her current role as Chief Human Capital Transformation Strategist for Choice Solutions she is able to bring all of her past experiences together to help business leaders not only create and maintain a Values Based, Innovative and Risk Aware Culture but to highlight how tightly linked a business’s success is to forward looking adoption of emerging technologies. Her vast Human Capital experience both as the head of a Global Human Resources organization and also as a transformational leader in many other organizational areas gives her the expertise to help leadership teams transform their business. As Digitization specialists, Choice creates technology solutions that enables mobility, automates business processes, and secures your most sensitive information to empower people and power business Innovation. Choice also helps navigate the transformation of the organization’s complex and fast changing IT organization by understanding the “Innovators and Disruptors” in the technology world and the transformational leadership expertise essential for an organization’s success.
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2018 SHRM TALENT CONFERENCE & EXPOSITION
HIGHLIGHTS
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1 Emily M. Dickens, J.D., SHRM Chief of Staff, welcomed attendees to the 2018 SHRM Talent Conference & Exposition. 2 Bill Taylor, co-founder of Fast Company, entrepreneur, and author was the keynote speaker at the opening session. 3 Letty Kluttz, SHRM-SCP, Director of Conference Programming & Development at SHRM, introduced the luncheon keynote speaker.
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4 Nick Schacht, SHRM Chief Global Development Officer, spoke to attendees about his new role. 5 Jonathan Segal, partner, Duane Morris LLP, spoke on “Implicit Bias: Hiring and Recruiting.” 6 Jacob Morgan, futurist and author was a keynote speaker. 7 Joe Urbanski’s topic was “Motivational Psychology: A Unique Understanding for Talent Management.”
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8 The Data Facts team at the SHRM Talent Conference & Exposition at Caesars Palace. 9 Cynthia caught a photo op with Scott Ferrin, SHRM Field Services Director, at the SHRM booth in the exposition hall.
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10 Margaret Spence, president/CEO of C. Douglas and Associates, Inc., spoke on “Forget Millennials, Gen Z is Here: The Technology Generation vs. HR Future-Proofing Leadership Success.” 11 Gretchen Rubin, author of the #1 national best seller, The Happiness Project, was the closing keynote speaker. Photo by thereadinglists.com 12 Heather Kinzie, SHRM-SCP, partner, The Strive Group, spoke on “Tips to Reward and Recognize Your Employees.”
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13 Over 1,400 people attended the SHRM Talent Conference & Exposition. 14-17 A few scenes from beautiful Las Vegas. www.HRProfessionalsMagazine.com
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4. Contact counsel.
Don’t Get Caught with Your “Breaches” Down! By AUDREY M. CALKINS
If you suspect your company has been the victim of a data breach, reach out to in-house or outside counsel to get advice on data preservation, whether to notify employees, and contacting law enforcement. The FBI can be an ally during the company’s investigation and may take over the investigation (which could lead to the hacker’s prosecution).
State-law data breach requirements.
If you think data breaches happen more frequently than they used to, you may be right. Data breaches can be caused by sources much more familiar, such as current or former employees, than those on the news—a scenario this article focuses on.
and borrowed log-in credentials to search the company’s confidential internal database of over one million executives’ contact information, employment history, salaries, biographies, and resumes. United States v. Nosal, 844 F.3d 1024 (9th Cir. 2016).
As an HR professional with access to employees at all levels of your company, you are one of the front lines of defense against hackers and protecting your company’s confidential information (and customers’, clients’, or employees’ personally identifying information). This article aims to provide general information regarding four Mid-South states’ data breach notification requirements and give you the tools you need to identify and prevent potential hacking situations at your company by close-to-home current or former employees.
What do these cases have in common? The perpetrators were current (and disgruntled) employees planning to leave the company or had recently separated from employment who took the company’s confidential information for economic or business purposes. Finally, the hacking was simpler than an Anonymous cyberattack: the hackers gained access to confidential information by guessing email passwords, using their own log-in credentials that had not been discontinued upon their termination, or receiving help from inside the company.
Data breaches happen to good companies (despite their best efforts).
Actions to take if you think you’ve been breached.
Many disgruntled employees have hacked into their employers’ servers, email, or confidential, proprietary databases in search of information they could use to undermine their employer or start a competing business—and ended up in jail.
If you suspect that your company has been breached, there are several steps to take as soon as possible:
For example, an advertising agency IT employee accessed a server and copied the CEO’s confidential files without authorization (including executive compensation, financial statements, and strategic plans) before meeting with the company’s Vice Chairman six months later to talk about the information he obtained and weaknesses in the company’s computer-security barriers. United States v. Batti, 631 F.3d 371 (6th Cir. 2011). The employee was fired a few days later for exercising “bad judgment,” and went on to access the agency’s confidential files twentyone times after his termination—nineteen of them by guessing another agency employee’s email password. Additionally, a high-level regional director at a global executive search firm announced that he intended to leave the company after he was passed over for a promotion. While he stayed on for a year to finish several open searches, he worked to launch his own executive search firm with three other company employees— 10
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All fifty states have passed data breach notification laws, but each state’s law varies by the information covered, the timing and method of the notice, and whether a private right of action is available for violations. Generally, the information protected by these data breach statutes is “personal information”—usually a name combined with a number (Social Security, driver’s license, bank account, credit card, or debit card). Most statutes also include an exception for encrypted information. Under this exception, data breach notification is not required if the hacker takes only encrypted information. Nevertheless, if the hacker also obtains the encryption key, the exception may no longer apply. Some statutes also provide for substitute notice if notification in writing or by phone exceeds a certain cost or if the affected class is large. Substitute notice can include email, posting on the company’s website, and notifying the state’s major media. 1. Tennessee: Tenn. Code Ann. § 47-18-2107
Your company likely has different passwords for many systems, such as company email, remote system access, FTP or cloud storage, or secure document transfer. All may need to be changed in the event of a breach.
Tennessee requires notice of a personal information breach—or if the company reasonably believes that personal information has been taken—to be given in writing (either letter or email) within forty-five days of discovery of the breach. The notice can be delayed for law enforcement’s “legitimate needs.” Once law enforcement determines that notification “will not compromise the investigation,” the company must provide notice within forty-five days of that determination.
2. Notify IT.
2. Mississippi: Miss. Code § 75-24-29
The IT department can search servers for illicit activity and trace IP addresses. If they investigate, IT needs to preserve and record data and information.
Mississippi requires notice of a personal information breach “without unreasonable delay” or “as soon as practicable” depending on whether the company maintains computerized data that it does not own or license. The notice can be written, email, or telephonic. Notice can be delayed until after law enforcement determines that notice will not compromise a criminal investigation. Finally, in addition to the encryption exception discussed above, Mississippi also excludes “unreadable or unusable” information from the data breach notification requirement.
1. Change all passwords.
3. Determine the scope of the breach. If IT confirms that the company has been breached, it is important to determine what was taken. Because personally identifying information is the subset of data that triggers some states’ data breach notification requirements, the company should prioritize review for this data. But other categories of information frequently taken or accessed include email and marketing and business development plans, which are valuable from a competitiveadvantage perspective.
3. Arkansas: Ark. Code § 4-110-105 Arkansas requires notice of a known personal information breach, or if a personal information
breach “is reasonably believed” to have occurred, “in the most expedient time and manner possible and without unreasonable delay” or “immediately following discovery,” depending on whether the company conducts a business in Arkansas that maintains computerized data it does not own. The notice can be disseminated by letter or email. Notice can be delayed until law enforcement determines that notice will not compromise a criminal investigation. Finally, in addition to the encryption exception discussed above, notification is not required if there is no reasonable likelihood of harm to customers. 4. Alabama: Data Breach Notification Act of 2018 (S.B. 318), effective June 1, 2018 Alabama’s new law includes more than personally identifying information: it also extends to medical records, health insurance information, email addresses, and usernames and passwords. Notice must be given if this information “is reasonably believed to be acquired by an unauthorized person” and “the acquisition is reasonably likely to cause substantial harm to the individuals impacted.” The notice must be written or email and given “as expeditiously as possible” and “within forty-five days of a determination that a breach occurred.” Law enforcement investigations can delay notification in some circumstances. Although these statutes provide minimum notification requirements, companies may provide
notice to customers, clients, or employees if they suffer a breach of data other than as provided in the statute.
Steps to take to prevent data breaches. 1. Implement additional security measures.
Although often unpopular with employees, these measures include requiring employees to return any company-owned devices (and remove company email from personal devices) on departure, limiting remote access to systems with confidential or proprietary information, restricting access to cloud or file-sharing sites and email sites like gmail, and implementing selfdefending apps on mobile devices.
2. Notify law enforcement.
The FBI will likely be the most helpful resource in the event of a data breach, as its Cyber Division focuses exclusively on investigating internet and intellectual property crimes.
3. Plan for a breach to happen.
Having an action plan in place will minimize the risk of recurrence (or occurrence in the first place) and allow the company to recover as quickly and inexpensively as possible.
4. Emphasize data security during the onboarding process.
The company can require employees to contractually agree to comply with data security policies
and implement a procedure for assigning access rights to all types of company data.
5. Remind departing employees of their confidentiality obligations.
During the separation process, the company can also cancel passwords, terminate access to data, retrieve its assets, and ensure that it completely and permanently deletes company data from the employees’ personal devices.
6. Craft a company culture of accountability through training.
To develop accountability, the company can implement penalties for violating security policies (as long as it consistently applies them), consider integrating policy-compliance considerations into the performance-evaluation process, put data security reminders in newsletters, and schedule an annual awareness campaign.
7. Cooperation is essential.
To secure the company, HR needs to work with other departments with disparate functions, including IT, business development, and project, contract, and risk management.
Audrey M. Calkins, Senior Associate Ogletree Deakins Memphis audrey.calkins@ogletree.com www.ogletree.com
A TRADITION OF
Attorneys left to right: Lisa Krupicka, Tannera Gibson, Gary Peeples and Jennifer Hagerman
THINKING FORWARD
Being prepared for whatever comes next takes experience and vision. Our innovative, practical approach can help you stay one step ahead. Let the attorneys of Burch Porter & Johnson put our history of thinking forward to work for you. B U R C H , P O RT E R & J O H N S O N , P L L C | 1 3 0 N O RT H C O U RT AV E N U E | M E M P H I S , T N 3 8 1 0 3 9 0 1 - 5 2 4 - 5 0 0 0 | B P J L AW. C O M
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If At First You Don’t Succeed, Try, Try Again: Revived Class Action Lawsuit Against Google Demands A Second Look At Pay Equity By RACHEL A. ZISEK
Issues
surrounding gender inequality are not novel or new to employers. However, inequalities in the workplace have recently risen to prominence in the public eye, particularly with respect to the pay gap in Hollywood. For example, Michelle Williams and Mark Wahlberg co-starred in the film “All The Money In the World” in 2017. However, in early 2018, it became apparent that Williams was not making all the money in the world. She was paid an $80 per diem amount totaling less than $1,000 for reshoots while Wahlberg received an additional $1.5 million to reshoot scenes in the movie. The recent #MeToo and #TimesUp movements further emphasized issues concerning sexual harassment and pay inequity that have persisted for decades. The intensified media attention on gender issues in Hollywood has led to an increase in employment litigation generally as employees across the country seek to address these issues. Companies of all sizes have been affected by the increased scrutiny placed on gender and pay equality. Recently, female employees of technology giant Google filed a class action lawsuit alleging pay and advancement inequities in a number of different departments. While the lawsuit was initially dismissed on the basis that the potential class of represented employees was too broad, a California court allowed an amended lawsuit to continue forward on behalf of roughly 5,000 female employees. The case serves as a cautionary tale for large employers and a reminder of the need for internal reviews of company pay policies for any disparities between male and female employees.
Google: The First Attempt Falls Short On September 14, 2017, three female Google employees (a software engineer, a business systems manager, and a sales specialist) filed a class action complaint in California state court (Kelly Ellis, Holly Pease, and Kelli Wisuri, et al. v. Google Inc., Case No. CGC-17-561299, Superior Court of California, County of San Francisco). The case was brought on behalf of “all women employed by Google in California.” The Complaint’s central allegation concerned California’s Equal Pay Act. Specifically, the plaintiffs alleged that Google maintained a centralized, uniform policy of pay inequity in three distinct ways: (1) by paying female employees less than male employees for similar work; (2) by assigning women to job levels with lower pay ceilings and less opportunities for advancement; and (3) by promoting fewer women and, where women were promoted, promoting them at a slower rate than men at similar levels. The plaintiffs also stated that the Complaint was prompted by the results of an investigation performed by the United States Department of Labor’s Office of Federal Contract Compliance (OFCCP) at Google’s headquarters. The OFCCP’s findings demonstrated that women were systematically compensated at a lower level than men across the majority of the workforce. 12
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Soon after the lawsuit was filed, Google moved to dismiss the Complaint. The Company challenged the Complaint by arguing that the plaintiffs’ attempt to create a class on behalf of “all women employed by Google in California” was overly broad. Google further argued that the plaintiffs could not show that every female employee employed by Google in California shared common claims concerning pay, job levels, and promotion opportunities. The Court agreed with Google, stating that the potential class did not distinguish between female employees with valid claims against the Company based on alleged illegal conduct and the female employees without such claims. The Court also felt that the plaintiffs’ reliance on the OFCCP’s findings at Google’s headquarters were vague and did not specify the particular job classifications to which the findings related. As such, the Court dismissed the Complaint. However, the Court gave the plaintiffs the opportunity to amend the Complaint to specify a more specific class of female employees impacted by Google’s allegedly inequitable pay practices.
A Second Chance at Redemption The plaintiffs were not deterred by the Court’s decision to dismiss their initial claim and took advantage of the ability to amend their Complaint. On January 3, 2018, an amended Complaint was filed which narrowed the class of employees they sought to represent through the class action to approximately 5,000 employees. While the plaintiffs still sought to represent women employed by Google in California, they specifically sought to represent individuals who held a specified “Covered Position” within Google. The Covered Positions included in the Complaint were defined to include 30 distinct positions, which were grouped into six categories: (1) software engineer; (2); software manager; (3) engineer; (4) program manager; (5) sales; and (6) early childhood education. In the amended Complaint, the plaintiffs reiterated the three mechanisms Google employed to pay female employees less than male employees. The plaintiffs also added a new allegation stating that Google maintained a company-wide policy of considering an employee’s previous salary in assigning starting salaries to new employees. They argued that this practice continued to perpetuate the historical pay gap between men and women. Once again, Google moved to dismiss the Complaint on the grounds that the class was too broad. Specifically, Google argued that the plaintiffs did not sufficiently demonstrate an overlap in the duties, experiences, or skillsets required of the different Covered Positions. Google also argued that plaintiffs only had firsthand knowledge of the pay practices within their own specific job groups and did not have sufficient knowledge of the other job categories where they were not employed. Finally, Google took issue with the allegations that the Company considered previous salaries in assigning starting salaries, stating that the plaintiffs made this claim based on their own individual experience and did not represent a Company-wide practice or policy.
The Court disagreed with Google and found that plaintiffs had sufficiently pled a class action on behalf of the approximately 5,000 female employee class. The Court stated that the plaintiffs had successfully narrowed their class, as the designation of the Covered Positions in the amended Complaint created a clearly identifiable and ascertainable class. The Court also focused its opinion on the plaintiffs’ new allegation concerning the consideration of past salaries, finding that the allegation of this impermissible policy was enough to allow the lawsuit to continue forward. According to the Court, if prior salary figures were considered, women could receive lower starting salaries or job levels as men. Google will certainly continue to challenge the case as the litigation continues. However, the plaintiffs were successful in amending their Complaint and moving forward with their claims on behalf of a large range of female employees.
Final Recommendations The fall and rise of the Google pay equity class action sheds light on our court system’s response to equal pay concerns, particularly in the class action context. While the plaintiffs narrowed the scope of their desired class in their amended Complaint, they still were able to represent a large number of employees working in substantially different functions within Google’s hierarchy, ranging from software engineers to early childhood educators. The Court allowed the class to continue forward even though the named plaintiffs did not have personal experience or knowledge of discrimination. Savvy, aggrieved employees could take notice of the Google class action and seek to bring company-wide class actions of their own. Employers should be on notice that courts are more willing to see commonality between employees in different job functions and divisions. Previous defenses to
the commonality of potential class members are coming under increased scrutiny by courts and could result in larger groups of employees that may be eligible to join a class action regarding pay practices. To avoid potential litigation, employers should be proactive about reviewing their own pay structure to ensure legal compliance through the use of internal audits. Specifically, employers should review job duties, responsibilities, and compensation packages to make sure female and male employees with similar qualifications are treated in the same fashion. If differences arise, employers must be prepared to explain disparities in pay. These factors can include education, merits, certifications, and a host of other factors. Given the wide range of employees covered by the Google class action, employers may need to compare these factors across departments to ensure equality is company-wide. Employers are also encouraged to revise their employee handbooks and other existing policies to prevent future disparities in pay. Finally, any discussions of equal pay complaints must be documented and properly investigated. If employers take these steps to avoid pay inequality in the workplace, employees will not feel empowered to try, try again and seek judicial relief through the court system.
Rachel A. Zisek, Attorney Martenson Hasbrouck & Simon LLP rzisek@martensonlaw.com www.martensonlaw.com
Martenson, Hasbrouck & Simon LLP focuses its practice
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on labor and employment defense and business litigation. Our reputation for excellence has been earned through our dedication to providing innovative solutions to the most difficult problems at an exceptional value. We have forged long-lasting relationships with our clients through our tenacity, skill, and accessibility. Located in the heart of the Buckhead district of Atlanta, Georgia, we have developed a highly flexible representation model that enables us to serve clients of all sizes, across all regions of the country.
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13
Words Become Action: Employers Seeing Stepped Up Worksite Enforcement by ICE and the Return of Worksite Raids
•F ollowing the coordinated worksite raid of 98 convenience stores in January 2018 and the arrest of 21 workers, the ICE Director told media sources “It’s one of many to come.”
By CHARLES A. ROACH
In light of the new enforcement climate under the Trump administration, employers should take several important steps to minimize the risks posed to their businesses and their employees.
A meat processing plant in northeastern Tennessee recently became the site of what is being reported as the largest workplace immigration raid since 2008. Immigration and Customs Enforcement (ICE) agents took into custody 97 individuals during a worksite raid of the meat processing facility located an hour’s drive northeast of Knoxville, Tennessee. According to an ICE spokesperson, the April 5, 2018 worksite raid resulted in the arrest of 10 people on federal immigration charges, the arrest of one person on state charges, and the detention of 86 individuals for being in the country illegally. News reports indicate that prior to the worksite raid, the employer had been under investigation by the Internal Revenue Service for allegedly failing to report $8.4 million in wages and not paying approximately $2.5 million in payroll taxes for dozens of undocumented workers. A federal affidavit filed in connection with the IRS investigation asserted that the employer hired undocumented workers who were paid in cash. The IRS investigation led to a referral to ICE agents and a coordinated enforcement action involving federal and state agents that resulted in the arrest of 97 undocumented workers on various immigrationrelated charges. Earlier this year, ICE mounted a large-scale enforcement action against franchisees of a national convenience store chain (hitting 98 stores in 17 states and Washington D.C. in the early morning hours) that resulted in the arrest of 21 individuals on immigrationrelated charges. To be clear, workplace enforcement by the Trump administration is taking a new tack. While still focused on employers and I-9 recordkeeping audits – as under the Obama administration – ICE also is targeting undocumented workers and making arrests. The Trump administration is setting a course more akin to the Bush administration. Recall the worksite raid of a rural meat packaging plant in Postville, Iowa ten years ago (May 12, 2008) that resulted in the detention of nearly 400 undocumented workers under the Bush administration.
Taking Action on Campaign Promises On the campaign trail, candidate Trump called for tougher immigration enforcement and the construction of a border wall between the U.S. and Mexico. Since taking office, President Trump has put these words into action. • Shortly after taking office, President Trump signed an Executive Order on January 25, 2017 that called for the hiring and training of 10,000 additional immigration officers and ICE agents. • The U.S. Department of Homeland Security issued a memorandum on February 20, 2017 stating that ICE shall faithfully execute U.S. immigration laws against “all removable aliens” and will no longer “exempt classes or categories of removable aliens from potential enforcement,” as had been the policy under the Obama administration. • In October 2017, Acting ICE Director Thomas Homan reportedly ordered the agency’s investigative arm to increase its worksite enforcement action by “four or five times” in the next fiscal year. • Acting ICE Director Homan later confirmed that ICE planned to vigorously prosecute employers who hire undocumented workers, and also seek to deport/remove those same workers from the U.S. 14
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How Employers Can Minimize Their Risks
1. Do Your Homework – Conduct a thorough review of, and provide training on, the company’s I-9 policies and procedures (and other immigration-related issues) to ensure full compliance with existing law. Perform an internal audit of the company’s existing I-9s using appropriately trained personnel and/or a third-party auditor. Ensure the company is using E-Verify to electronically verify work authorization of new hires. As of January 1, 2017, all Tennessee employers with 50 or more employees are required to use E-Verify. Are you signed up and using E-Verify? 2. Be Prepared for Visitors – Have a written response protocol in place before government agents come knocking. Designate, and provide training to, points of contact who will interact with ICE agents during a worksite enforcement action (whether a paperwork audit or a worksite raid). Consider what preparations may be appropriate to ensure the continuity of business operations in the event of a worksite raid, including cross-training on key functions, ability to quickly recruit, or having an established staffing relationship. 3. Recruit a Good Team – A worksite enforcement action certainly can expose the employer (and its employees) to legal liability and monetary penalties. But such events can also substantially damage the employer’s brand or reputation, and possibly result in criminal charges (against either the employer or its employees) or even removal from the U.S. The stakes can be quite high. So employers should to have a good team consisting of legal counsel, human resources professionals, public relations advisors, and other trusted professionals to address, in a coordinated fashion, the many issues that may arise from a worksite enforcement action.
Charles A. Roach, Partner FordHarrison croach@fordharrison.com www.fordharrison.com
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BOOT STRAPS: Creating a Culture of Achievement Versus Entitlement By BRAD FEDERMAN and ALLI GUSMUS
Pull yourself up by your boot straps! It sounds good. But we don’t live or work in a vacuum. We work in organizations that have systems and cultures that either help or hinder performance, confidence and more. Culture drives everything in an organization. Some organizations have entitlement cultures and others have achievement cultures. What is right may be wrong and what is wrong may be right. What do the culture scales say…. If you are like most people in the workplace, when you hear the word “entitlement” or its variations, it may send a slight shiver up your spine. The word “entitled” is often trailed by other unpleasant words such as “brat” or “attitude.” In a political sense, the word “entitlement” often draws ire from both sides and is seen as either something to covet at all costs or to be minimized. However, one might argue that an entitlement mentality may work in the organization’s favor in some instances. By contrast, when you hear the word achievement, whether within or outside the workplace, most Americans perk up and feel a sense of accomplishment. They want to work hard and strive for better. Historically, the United States is an achievement-based culture – and in particular, an individualistic (vs. team-based) achievement culture. While most people love a good steak, overcooking will ruin it. Similar to a steak, an achievement culture can be overdone and destroy an organizational culture. Either too little or too much focus on entitlement or achievement can lead to unintended consequences and results. Let’s see how it might play out in the workplace. AN ENTITLEMENT CULTURE Organizations such as Zappos and Google receive praise for giving their employees generous, flexible and innovative benefits including free meals, dry cleaning, onsite gyms, unlimited vacation/sick time, bring your pet to work and more. These organizations often attract the best and the brightest – those who have significantly achieved in their education or careers and therefore are looking (and may feel somewhat entitled) to join organizations where they can reach more of their professional goals. Some potential positive benefits of the entitlement mentality: • Entitled people feel a stronger drive for achievement; after all, if you feel like you deserve to be the top salesperson in your organization, you’re going to work harder to make that title a reality. (Forbes) • You might hold out for a job that better suits your talents and expertise, rather than take one with responsibilities that are beneath you, and you’ll work harder and more productively as a result. (Forbes) • Higher creativity, according to Journal for Experimental Psychology: “Our results suggest that people who feel more entitled value being different from others, and the greater their need for uniqueness, the more they break convention, think divergently and give creative responses.” (Vincent, 2014) 16
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According to a study from the University of New Hampshire, millennials born between 1988 and 1994 scored 25 percent higher in entitlement-related issues than their 40-60 year-old counterparts, and 50 percent higher than those over 60. The score was calculated using a survey comprised of several questions meant to reveal attitudes of entitlement, such as asking whether participants felt they deserved certain things or asking how superior they felt to others. Often, if things have been going well at an organization for a long time with perks and excellent benefits, employees sometimes forget that what they have may not be comparable to what the average working person experiences. REDUCING ENTITLEMENT An opportunity may arise to remind or level-set the entitlement mentality in several ways. One way to reduce entitlement is to make the entitled person feel similarly situated to the other employees. Research shows that feeling different from, or better than, others is a crucial component of entitlement. Another method to reduce entitlement is to play to entitled employees’ strengths. Usually, entitled individuals are wildly successful at brainstorming tasks because they think differently, creatively and don’t shy away from thinking outside the box. Finally, resetting expectations may be the key to reducing entitlement. Sometimes all that is needed is a small shift in perspective to be reminded of how good an employee has it. There will always be a friend or family member who thinks your job is incredible and seeing it through fresh eyes can be invaluable to level-set. While a culture of entitlement is probably one that most organizations do not want to cultivate, like anything else, there are pros and cons. CREATING A CULTURE OF ACHIEVEMENT Many organizations are creating a culture of achievement through pay for performance mentalities, as well as reward and recognition programs geared towards both individual and team performance. American culture tends to praise, emulate and promote those who are capable of hitting their goals. Organizations that have an achievement-based culture have a lot of success. An achievement culture emphasizes the setting and accomplishment of challenging yet realistic goals that improve performance (HR Success, Australia). Many organizations have some type of MBO (management by objectives) system in place that allows for cascading goals and goal setting at every level which can drive an achievement culture via performance management. In this example, organizations use the best tools and methods for producing results, and when a goal is met, everyone quickly moves on to another. Because of this environment and mindset,
achievement cultures tend to be highly adaptive (Jason Martin, 2006). For those companies that reported having achievement cultures: • Organizations: 32% more adaptable to changes in the external environment and 32% higher quality performance • Teams: 28% more effective teamwork and 25% greater commitment to producing a quality result • Individuals: 32% more motivated, 26% more satisfied and 25% more likely to stay with the organizations. (HR Success, Australia) Additionally, achievement cultures foster a sense of ownership and an earned responsibility, which is the antithesis of entitlement. Rules and procedures may interfere with the accomplishment of work, and as a result, are limited. Rules are often ignored if it gets in the way of achieving a goal. (Jason Martin, 2006) PITFALLS OF AN ACHIEVEMENT CULTURE When achievement cultures are not implemented or appropriately nurtured, issues will occur. Many times those who thrive in achievement cultures sometimes report feeling lost or empty when they suddenly hit a rare unforeseen obstacle. (Quartz)
THE BOTTOM-LINE To most, the entitlement culture and achievement culture clash and can both can have ill effects if not implemented properly. In and of itself, there are pros and cons to both as we have discussed above. However, the real advantage is to view them differently. We see both cultures in extremes. The opportunity is to recognize the strengths of both by seeing them in a more moderate fashion. When it comes to entitlement the problem occurs when it increases narcissism and reduces respect and empathy for others. While a sense of individuality is important, that must also become part of the group; part of something bigger that appreciates a healthy approach to norms. After all, an organization cannot sustain itself on a “me” mentality that holds double standards. However, a healthy dose of “I deserve to be here” and treated with respect is good. Everyone’s individual genius should be valued. It creates confidence and the ability to take educated risks. Ultimately moderation provides for the best of both worlds; a culture that breeds creativity, confidence, a connection to something bigger than oneself and a drive to strengthen the company and oneself.
When achievements become the primary driver, individuals can place too much focus on the tangibles: (money, status, hierarchy). Unfortunately, members of an achievement culture tend to burn out. It may be difficult to establish control if the need arises as the culture cultivates individuals. Teammates may become highly competitive with each other and the mindset of “whatever it takes” can lead to dishonest and illegal behavior. (Jason Martin, 2006)
STRENGTHENING BRANDS
Brad Federman, Chief Operating Officer F&H Solutions Group bfederman@fhsolutionsgroup.com www.fhsolutionsgroup.com
Alli Gusmus, HR Consultant F&H Solutions Group agusmus@fhsolutionsgroup.com www/fhsolutionsgroup.com
F&H Solutions Group can help you
71%, increase profit by about 12%, and increase sales by about 65%.
lower turnover by about
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17
Summertime Safety - Policies and Procedures for Child Protection By EDWARD H. TRENT
As families and school kids get excited for summer break, time in the sun, and fun at camps, organizations that work with children need to review their child protection policies and procedures in addition to their life preservers, ropes courses, and face painting supplies. It is highly rewarding to work with kids, see their smiles, hear their laughs, and know that you are helping to create memories that will last a lifetime. Such work also carries with it great responsibility to ensure that children within an organization’s care are safe and return home happy after a fun day or week. The statistics on child abuse are staggering. A child is abused or neglected every 47 seconds in the U.S. and there are more than 3 million reports of abuse annually. On in ten children (one in seven girls and one in twenty-five boys) will be sexually abused before their 18th birthday. Ninety percent of perpetrators are someone the child knows. One in five youth ages 10 to 17 receive sexual solicitation or are approached online. So, when preparing for fun in the sun, organizations need to be prepared to protect kids from dangers beyond a fall from the swings. While a camp counselor may be thinking only about a child having fun and not getting hurt, that counselor needs to be prepared to respond appropriately should a child confide - or the counselor suspects - a terrible secret that far too many children carry, a secret of abuse or neglect. When working with children, an organization must have clear policies on appropriate interaction and supervision of children. Some simple suggestions are that no child is put in a one-on-one situation with an adult out of public view. Meeting rooms for conversation should have a window. Rules should be established for helping young children with soiled clothing. Organizations should establish rules for appropriate physical contact and topics of conversation with minors. Finally, every organization should establish a clear line of reporting any incidents of abuse. Before someone is placed in a position to work with children, including volunteers, it is important the organization properly screen them. A background check and reference check should be a minimum, with a background check that includes fingerprinting being recommended. Background screens should be updated on a regular basis, such as every two or three years. While there is no “child predator profile,” face-toface interviews and background information, including reference checks, allows an organization to determine if the person is a good fit for the organization and the community of children it serves. Of course, those working with minors should be properly trained. Such training should go beyond basic first aid and include training on the organization’s specific policies for working with children. All individuals should be trained on recognizing signs of abuse and what to do if they 18
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notice such signs or a child reports an incident of abuse. When a minor confides in an employee or volunteer that he or she has been abused, it is vitally important the person listens very carefully, remains calm, and if the minor is unwilling to go talk with another responsible adult, to get as much information as possible about the alleged abuse. The adult will want to learn as much as possible about the who, when, and what of the abuse without pressuring the minor, and remembering no child is ever to blame for being abused. This may be the only time the minor will talk about what has happened and the information the minor shares will be critical in not only getting enough information to make the mandatory report to state or law enforcement officials, but to make an organizational decision on whether the minor is safe when he or she leaves the organization’s care. When it comes to policies on reporting allegations or suspicions of abuse, all organizations should designate who is to receive reports of suspected child abuse. When an employee or volunteer makes such a report, the organization should obtain a written statement from that person, including a list of all witnesses and details of what was observed and/or reported by the minor. The statement should include an assessment of whether a child is in imminent danger of further abuse. Further, all such reports are to be kept confidential, understanding that a report must be made to the state or local law enforcement and the organization will conduct an internal review of the matter. The organization will need to inform the child’s parent(s) of what has occurred, regardless of whether the alleged abuser works for or is unassociated with the organization. If the alleged abuser is the custodial parent, then the organization will want to obtain guidance from local law enforcement on how to address the situation. When communicating with the parent(s), let the parent(s) know the child is safe and what steps have been taken. This conversation will be the most difficult a parent will ever have, so be understanding and reassure the parent that the organization is taking all appropriate steps to ensure the welfare of the child. The organization should ask the parent(s) if the child had made any comments about the alleged abuser or engaged in any behavior that in hindsight may be an indication of what occurred. The parent(s) may be truly unaware of the situation and not to blame, but given the report, seemingly innocuous comments or behavior may take on more significance. If the alleged perpetrator works for the organization, he or she should be immediately removed from interaction with children and placed on leave until the issue can be investigated and resolved. In addition, the alleged perpetrator should be instructed to have absolutely no contact with the child or the child’s family.
Tennessee requires individuals with knowledge of suspected abuse and specifically child sexual abuse to report the incident to either the state Department of Children’s Services or local law enforcement. Tenn. Stat. Ann. §37-1-403 provides: “Any person who has knowledge of or is called upon to render aid to any child who is suffering from or has sustained any wound, injury, disability, or physical or mental condition shall report such harm immediately if the harm is of such a nature as to reasonably indicate that it has been caused by brutality, abuse or neglect or that, on the basis of available information, reasonably appears to have been caused by brutality, abuse or neglect.” Further, Tenn. Stat. Ann. §37-1-605 provides: “Any person including, but not limited to, any: (4) School teacher or other school official or personnel; (6) . . . Day care center worker . . .; (8) Neighbor, relative, friend or any other person who knows or has reasonable cause to suspect that a child has been sexually abused; shall report such knowledge or suspicion to the department.” To report abuse in Tennessee, one can: (1) call the Tennessee Child Abuse Hotline at 1-877-237-0004, (2) file online: https://apps.tn.gov/carat/, (3) call local sheriff or police departments, or (4) call a judge having juvenile jurisdiction. When reporting allegations of abuse, the organization should assist the person who received the report from the minor or observed the signs of abuse. The organization will want to have the name and contact information of the victim, the nature and specifics of abuse including details of any physical signs of abuse, the identity of the perpetrator (if known), the identity of any witnesses (if known), whether the alleged perpetrator has current access to the child, and how the person reporting the abuse came to know about it. The person making the report has the right to remain anonymous.
While the organization should take no steps to interfere with law enforcement’s investigation of the matter, the organization will want to conduct its own investigation into the situation, especially if an employee or volunteer of the organization is accused of abusing a child. State law permits such an internal investigation. The organization should determine what happened, understanding that it may not have the ability to obtain any additional information from the minor, and the alleged perpetrator may be unwilling to discuss the matter. At the very least, the organization should evaluate its policies, its training, and its protocols for working with children and reporting incidents of abuse. The organization may want to obtain legal counsel to assist with these processes. Summer is a time for having fun with family and friends. Organizations that work with children are an important part of making summer a memorable time and providing experiences that form the stories kids will tell when school begins again in the fall. Providing a safe and nurturing environment is key to that success. Being prepared to prevent abuse within the organization and properly respond when a child reports or shows signs of abuse from someone within or outside the organization is a necessary part of a safe and nurturing environment. Who knows, your organization may provide the only face a child can trust to share what has happened and get the help they deserve.
Edward H. Trent, Member Wimberly Lawson Wright Daves & Jones, PLLC Knoxville, Tennessee office ETrent@wimberlylawson.com
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ALSHRM State Conference
The Largest Gathering of Alabama HR Pros in 2018!
HIGHLIGHTS
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18 10 (L-R) Marisa Dault, SHRM-SCP, GPHR, ALSHRM Membership Director; Sherry Johnson, Gary Valcana, SHRM-SCP, SPHR, ALSHRM College Relations Assistant; at the SHRM Booth in the exposition hall 11 “Pork ‘N Beans, Pyramids, and Ponchos – Enhancing Your Team’s Diversity, Inclusion, and Cultural Awareness” was Melva Tate’s topic. Watch my Facebook Live interview with Melva at www.facebook.com/hrprofessionalsmagazine.com for more about her presentation. 12 Sherry Johnson, SHRM-SCP, SHRM Field Services Director for Alabama, provided an update on SHRM’s new initiatives. 13 Brian Demange with PZI Consulting presented “Motivating Employees Without Extra Compensation.” 14 Dr. Samuel Jones was the luncheon keynote speaker. He spoke on “Closing the Gap Between Average and Excellence.” See my interview with Dr. Jones on Facebook.com/hrprofessionalsmagazine.com to learn more about his topic. 15 Coach Sherry Winn was the closing keynote speaker. Her topic was “Unleash the Winner in You.” 16 Ogletree Deakins’ booth in the exhibit hall 17 Blake South and Dan Guthery with Arthur J. Gallagher & Co in the exhibit hall. To learn about AJG’s services, watch my Facebook Live interview with Dan at www.facebook.com/hrprofessionalsmagazine.com. 18 Over 400 HR professionals attended the 2018 ALSHRM State Conference.
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Leveraging Background Screening as Part of a Successful Retention Strategy By SEAN DRYDEN
HR Professionals know the importance of hiring the best job candidate for a position. Choosing a person with the qualifications and education that fits the role, as well as someone who meshes well with the company culture, is key for a successful hire.
But what about after that? Even if companies land their top choice, they don’t get to enjoy the full benefit of the employee unless they retain that person long enough to see a return on their investment. There are a variety of factors that play into keeping A-players. One of them that HR pros may not consider is the background screening process. Yes, it’s valued by most companies in the hiring process, but it can also help decrease employee turnover. First, we need to recognize that a background screening process affects retention directly and indirectly. If HR hires a person that cannot perform the job duties, doesn’t fit with the company’s culture, or lacks motivation, that employee probably won’t be around for long. This is a direct effect. An indirect effect on retention would be if a new hire’s attitude and behavior frustrates and de-motivates other employees to the degree that THEY leave to seek other employment. Let’s look at five considerations for leveraging background screening as part of a successful retention strategy.
• Ensure applicants are well-qualified. Extending a job offer to a candidate without conducting a thorough review of their skills and qualifications can lead to a team member who can’t perform up to standard. This can subsequently damage productivity, sabotage bonus incentives, and decrease morale for the employee and the team. HR professionals need a process in place that checks every appli22
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cant’s qualification claims, their education for example, against reality. Screening job candidates’ education history, when applicable to the position, increases the likelihood of hiring a person who possesses the skills to perform the job effectively.
• Identify drug users. Drug abusing employees cause a myriad of problems in the workplace. They are more likely to be late for work, miss work, and get into altercations with co-workers. Employing drug users can significantly increase turnover as it often disrupts the workplace and dampens productivity. A solid drug screening process needs to be set up in advance for your job candidates before an offer is extended. Weeding out drug abusers before they end up on your payroll is critical to retaining top performers and avoiding rampant turnover.
• Gain access to employment history. The person who said “past behavior is the best indicator of future behavior” was right on the money! Avoid dealing with turnover by hiring people who exhibit a stable work history. Part of a complete background screening process needs to include an employment history verification on the applicant that goes back either five years or through their last three places of employment. Pay close attention to the work dates the employer verifies and match them up against the ones the candidate claimed on the resume or application. Raise a red flag on a person who can’t keep a job more than a few months, or who has unexplained gaps in their work history. If the job seeker couldn’t stay at any of his previous jobs for a lengthy period of time, don’t expect that to change if he works for your company.
• Protect company culture. A main reason many employees are happy at their current position is because of the company’s culture. A positive environment where team members thrive is, especially for Millennials, a place where they can see themselves for the long haul. Hiring job candidates without properly vetting them can upset the balance of an organization’s culture. A single person who doesn’t fit with the culture can cause conflict, derail morale, and incite discord. An employee who fails to connect with the culture is more likely to leave sooner than someone who seamlessly integrates into the workplace. Background screening, when coupled with a close review of the resume and an interview, can uncover potential pitfalls a person would bring to the organization as an employee if hired.
• Guard the safety of the workplace. Violence in the workplace is a major concern to small businesses and large corporations. Employers shoulder a big responsibility to do all they can to ensure their employees are safe. A person, no matter how well-paid or how much they enjoy their job, won’t choose to work in an environment they feel is unsafe. A background screening policy that includes criminal records searches when applicable can help identify potential issues with job seekers. Recent previous violent convictions, for example, might sway the employer from hiring the person who otherwise looks good on paper and interviews well. While not obviously connected, background screening plays an important role in a company’s retention program. Crafting a well-rounded background check policy that covers the applicant’s qualifications, education, criminal convictions, and potential drug use offers enlightening insights into the character. Understanding how a job candidate would perform the job, as well as fit within the company culture, serve employers in determining if the person would be a long-term asset to the company or would contribute to a negative increase in turnover.
Sean Dryden National Account Executive sdryden@datafacts.com www.datafacts.com
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Designing Innovative Benefits for Recruiting and Retention Success: A Panel Discussion
are not going to replace a group of people like me with a group of people like me, but instead with a completely different set of individuals with a different set of priorities, we need to then really define what benefits are important to them and we’re working hard on that.
The U.S. job market continues to grow. According to a recent report from the Bureau of Labor Statistics, businesses in the country added 209,000 jobs in July, marking the 82nd straight month of job growth. At the same time, the unemployment rate shrunk, ticking down to 4.3 percent—its lowest mark since 2001. These new metrics have led many economists to speculate that the economy is nearing “full employment,” meaning everyone who wants a job in the United States has one. This milestone is a significant one, particularly for small businesses. With no spare workers, they need to boost their benefits offerings to hire and keep their top employees. Benefits are one of the surest ways to improve employee satisfaction. Nearly 60 percent of employees say benefits are “very important” to how they feel about their job and their company, and employees who are satisfied with benefits are almost four times as likely to be satisfied with their jobs. As hiring and keeping talented employees becomes more difficult, HR professionals are strategically leveraging employee benefits as a recruitment and retention tool, according to the 2016 Strategic Benefits Survey. To explore this further, our team gathered a panel of experienced HR and Benefits professionals in a diverse set of industries to help us answer some of the toughest questions regarding impactful benefits strategies. Moderating this panel was a very insightful experience! Our Panelists:
Stephanie Caron C.E.B.S VP, Total Rewards & HR Shared Services, ServiceMaster
Karen Sones SVP, HR Strategic Project Director, First Horizon National Corporation
Mark Azzarello VP, HR Global Compensation & Benefits, International Paper
Susan Schubert PHR & SHRM-CP, Director of HR & Labor Relations, Memphis Area Transit Authority
Austin: How is your organization optimizing their benefits strategy to best impact the recruitment and retention of your future and current workforce? Mark • First let me share a few data points to give perspective on our benefits strategies: The average age of our workforce is 48-49 years old, and soon, many will be retiring. Engineering jobs are growing at a rate of 16%, but the rate of new engineers is increasing at only 1.5 %. When you realize you 24
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Susan • When it comes to benefits for recruitment and retention, we focus on how the benefits can contribute to wellness of the whole person. We have very rich core benefits, but it is simply not enough anymore for us to presume that is all we need in order to recruit and retain our employees. We take the approach of listening closely, trying new ideas, and discarding ineffective programs. For example, we recently started using a broker to advise us regarding our benefits. This allowed us to source and look at new optional benefits like cancer insurance, critical illness, LTD, and STD which were attractive to our employees. We have also partnered with HealthyHere to bring our annual wellness physicals on-site which provided to be a huge convenience for our employees Karen • We are also dealing with many of the same issues. 30% of our workforce is over 50, for example, and will be retiring soon. Our focus is on the overall wellbeing of our employees. Our branded initiative, called Wellness First, targets the physical, emotional, and financial well-being of our employees. On the physical side, we’ve opened a fully-equipped fitness center. We’ve also added some popular benefits that the younger generation is looking for as well as transgender and infertility benefits. We’ve also started a healthcare advocacy program, in which employees can speak with a 1-on-1 diabetes coach. On the emotional side, our trainers talk to our employees about serious topics such as addiction and suicide. For financial wellness, we encourage our employees to speak with our retirement plan vendors and we use services such as Operation Hope to help improve their overall financial wellbeing. Stephanie • Service master has about 11k workers, 70% of whom are hourly that make an average of $35-45k a year. Our workforce is 75% male with an average age 43, which means they usually have higher rates, plus they don’t necessarily engage in healthcare systems and are difficult to communicate with. Strategically, our wellness programs are different. You cannot have a centralized corporate
wide wellness program that effectively touches all 11k people in the field. Because of our servant leadership culture, our bluecollar workers have the same benefits as our white-collar teams. We have a strong focus on making benefits affordable, which can create concerns with our corporate employees because they expect the “bells and whistles” which we do not have. We do not lead nor lag with our benefits. We instead design our benefits so that our employees don’t make a wasteful choice. Austin: In attracting and retaining talent, is there one thing keeping you up at night? One challenge you are working to solve? Mark • Healthcare aside, we need to understand what is important for the new wave of employees who are coming into this company. 42% of our employees under the age of 40 have an average of $40k in student loans. We implemented a student loan assistance program through Tuition IO to address this issue. The key is to find something more specific to your future workforce while making sure you don’t neglect your current employees.
Susan • Our largest challenge is offering the right combination of medical and optional benefits to help our employees make smarter choices about their healthcare. Benefits education plays a large role in helping our employees make the best selections. Karen • Ours would be how to balance what we currently spend and spread that out to new benefit options. We focus on what we want to incentivize and what behaviors we want to drive from our employees. Our goal is essentially to have dollars left over for other benefits without increasing the overall cost of all programs. Stephanie • Our challenge is to maximize employee engagement to “crack the code” and reach people by helping them understand what benefits they have. We need to truly educate them, so our field workers do not unnecessarily suffer financially by selecting certain options on their benefits. Price Changes Image *** Employees and employers alike are managing benefits amidst incredible trend line increases in cost that is putting financial strain on working Americans.
About the Author Austin Baker is the President of HRO Partners, a human resources consulting and benefit administration and enrollment firm as well as a National Enrollment Partner Member representing the largest boutique, full service insurance and enrollment firms in the country. A veteran of more than 16 years in the human resources industry insurance and benefits industry, Baker is responsible for managing a mutli-faceted human resources consulting company with public workforce programs and services focused on companies in the southeastern United States. Austin is a frequent speaker on a variety of leadership and benefit topics representing thought leadership and innovative practices in the HR industry. For more information, call Baker at 1-866-822-0123, visit www. hro-partners.com or connect with the company at www.facebook.com/hropartners, http://www. linkedin.com/in/jaustinbaker or http://twitter. com/jaustinbaker. hropartners
jaustinbaker
@jaustinbaker
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Strategies for Effective (and Legal) Succession Planning Age Cannot Be a Factor in Any Employment Decision By M ICHELLE KAEMMERLING and DAVEANTE JONES
S
uccession management is an
important part of strategic business planning. This entails identifying and developing current employees who have the potential to assume
The Age Discrimination in Employment Act (ADEA) protects employees who are 40 or older from age discrimination. The most recent data from the Equal Employment Opportunity Commission (EEOC) shows that around 22% of EEOC charges filed in 2017 were age-based. Many states have civil rights statutes that also prohibit age discrimination in employment. This means that an employer cannot consider an employee’s age in making any decision about his employment. For example, in identifying employees who will be laid off, it would be improper for a company to select those who are closer to retirement age. Layoff decisions must also be analyzed carefully to confirm there is no disparate impact on older workers.
leadership roles in the future and often necessitates talking to current
key employees about their retirement plans. Giving some thought to how you approach these conversa-
tions can help you avoid claims that age bias—rather than strategic planning—is motivating the discussions. Many employees are working longer than they might have expected to at the beginning of their career. A January 2018 Balance article stated that U.S. Census Bureau data shows that the average retirement age in the United States is about age 63. There has been a steady increase in retirement age; in 2014, a Gallup poll found that the average retirement age in the United States had risen to 62. The same poll found that the age at which Americans expect to retire increased to 66. And, employees born after 1959 are not eligible for full social security retirement benefits until age 67. 26
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Discussions about Retirement Planning Should Not Reference Age Courts have recognized that employers have a legitimate business interest in knowing their employees’ plans for the future, but discussions about succession planning should be age neutral. Obviously, a conversation that starts, “You’re getting on up there, how much longer you think you want to do this?” is more likely to be perceived as pressuring the employee to retire, or harassing the employee, than one that approaches the issue without reference to age. Similarly, a company that initiates succession planning discussions with all employees whenever they reach a certain age may have a hard time defending a claim of age bias.
…the average retirement age in the United States is about age 63.
When you initiate discussions about retirement plans or succession planning, avoid any reference to age (or proxies for age such as “baby boomers” or “your generation”). In a recent age discrimination case, the statement “the time for you to retire has come” was found to support an inference of age discrimination. Employees can be offended by such comments even when made by someone who is their age or close to their age. The better practice is to approach the discussion in terms of the employee’s career plans and goals and to try to have such discussions with all employees—or at least all employees in similar positions—regardless of age.
and seven days to revoke the release after signing. And if a layoff or exit incentive affects more than one employee, you must give employees forty years of age and older at least 45 days to review the release agreement, identify the “decisional units,” and disclose in the release agreement the job positions and ages of the employees in each of the decisional units. With a little thought and planning, companies can have the conversations necessary to grow their business and plan for the future, while still meeting the needs of all employees, regardless of age.
Do Not Pressure Employees to Retire Some courts have found that repeatedly asking an employee about retirement or encouraging them to retire may be evidence of age discrimination. If you approach an employee about her retirement plans and she indicates that she has no plans to retire, accept the answer and move on. Avoid expressing disappointment or saying anything to make the employee feel like you’re pushing her to retire. On a related note, steering an employee towards retirement as a way to avoid addressing performance concerns can be fraught with peril. If the employee resists retirement and is ultimately discharged for performance, you can expect her to cite the comments urging her to retire as evidence that the real reason for termination was age. As is so often true when performance issues are in play, what looks like an easy out will end up causing you more trouble. Instead, if there are performance concerns with an older worker, address those concerns directly and the same way you would any other employee. Note, however, that if an employee is being discharged for performance, you could offer resignation as an alternative to an involuntary termination. Just don’t fall into the trap of pushing retirement in order to avoid tough conversations about performance.
Michelle M. Kaemmerling, Partner Labor & Employment Team Wright Lindsey Jennings mkaemmerling@wlj.com www.wlj.com
Daveante Jones Associate Attorney Wright Lindsey Jennings Dljones@wlj.com www.wlj.com
SISKIND SUSSER PC Tennessee’s Largest
Employers should also keep in mind that the ADEA can come into play when companies adopt plans intended to incentivize early retirement. At least one court found that such plans run afoul of the ADEA when benefits are based solely on age at retirement, as opposed to years of service or salary.
Severance Packages and Valid Waivers of Age Claims Sometimes it makes sense to offer a severance package in conjunction with an employee’s retirement or early retirement, though such conversations must be handled carefully for the reasons discussed above. Unless company policy provides otherwise, severance packages should generally require the employee to provide a full release of all claims or potential claims in exchange for the severance payments. If an employee signs a valid release of claims in conjunction with a severance package, he has waived his right to later claim that the company forced him to retire or otherwise discriminated against him because of age. Keep in mind that in order to obtain an enforceable release of claims under the ADEA you have to follow the requirements of the Older Workers Benefits Protection Act. That Act generally requires, among other things, that the employee be given 21 days to consider the release
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“Absence Makes the Heart Grow… Suspicious” THE EROSION OF TRUST IN TODAY’S WORKPLACE By JANIE WARNER
I recently asked an employee the following question: “On a scale of one to ten – ten being the best – how much do you trust your direct supervisor/manager/executive?” His response was a solid 3. When I asked my follow-up question, “What influenced your answer?” he answered simply: “I never see her.” It is undisputed that our society has more methods to communicate information that we have ever had in the history of the world. Once the telegraph was invented, electronic communications expanded exponentially to the point we can send a text message and have nearly instantaneous delivery. A phone call can be made from almost any point of geography, and an email address is standard for all businesses and almost every person on the planet. Yet the most common cited issue in today’s workplace (and very often in interpersonal relationships) is “lack of communication.” Whether it is insufficient communication, misreading implications or just impressions of impersonal communication, this issue plagues our society to such a point that it affects our day to day lives. And, unfortunately, this also affects our ability to trust those from whom we receive important information. Because technology allows more messages to be sent in the impersonal world of the airwaves, it has replaced the interpersonal aspect of management, care and engagement with employees. If the question of trust is important to corporate culture, why the growing distance between employer and employee? Simple answer: it is easier. But as we have learned from much trial and error, easier is not always better. In this case, it creates a distinct disadvantage at a time in society where lack of trust is a common complaint among employees. Managerial staff commonly justify this behavior and say that they are “too busy” to engage at anything other than a superficial level with employees. Conflicting priorities often pave the way to directors and executives spending more time interacting with those above them than those below them on the organization chart. Meetings, meetings and more meetings take up vast portions of their day and increased reporting requirements mean more “screen time” than “face time.” Even recurring staff meetings are often cancelled or rescheduled at the last minute because “something else came up.” To an employee who values the time spent with their boss, this translates to “pretty much everything else is more important than you.” And leaders wonder why employees seem disengaged. Often, the leader disengages first – the employee is just following suit. However, it’s not just a management problem. Employees who absent themselves from the workplace, or do not attend team meetings or training classes, are creating an impression of being unconcerned. Management is often distrustful of employees who have chronic absentee issues or who purposely put space between themselves and group activities. Is there anything that can be done to counteract this trend? Short answer: Yes! But is takes effort and commitment to leave the “ivory tower” in which management has ensconced themselves and deliberately and systematically re-engage their workforce. 28
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STEP 1: Set aside time on your calendar EVERY DAY to interact with staff. Even if it is for just a few minutes in the morning or end of the day. Employees who SEE you are more likely to TRUST you. Make sure you are seen! STEP 2: Just as important as being seen is GETTING TO KNOW YOUR EMPLOYEES. You may not know their favorite color or the name of their first pet – but asking about their mom who has been in the hospital, their first child who just started kindergarten or the spouse who was laid off their job goes a long way toward building rapport and trust. STEP 3: Unless it is a true emergency, DO NOT CANCEL PLANNED EMPLOYEE MEETINGS. If you have a standing meeting with one or a group of your employees, keep it. Schedule everything else around it. If your executive calls in the morning wanting a meeting at 10 a.m., it should be okay to say, “I have a staff meeting scheduled at that time – these weekly meetings are a valuable way to stay informed. Could we meet later in the day?” Unless it is truly an emergency situation, most executives will find another time. STEP 4: Follow-up when you say you will follow-up. KEEPING YOUR WORD is important in building trust. STEP 5: SHARE GLORY for a job well done. Few things erode trust more than managers who take all the credit for a successful outcome of a team collaboration. You will need your team again and again. Do not let your ego get in the way of acknowledging how instrumental each one was in making you look good. STEP 6: Follow the Golden Rule: treat each employee the way you would like to be treated. When you treat each one with respect, dignity and fairness, you will reap the return of the same. And what is more respectful than spending time with the people you need to accomplish your most important task: ACHIEVING MISSION. Lastly, be honest with yourself. If you know that you have created distance between you and your staff members, let them know that. Apologize and assure them you are working on creating an environment where engagement can lead to trust. When trust is fully established, there follows success. Build your foundational values on trust and all the good stuff will follow.
Janie Warner, SHRM-SCP, Senior Consultant Regions Insurance, Inc. janie.warner@regions.com www.regions.com
The coverage you need. The guidance you trust. SM
Employee Benefits | Property & Casualty | Business Insurance When it comes to your employee benefits program and business insurance coverage, you look for trusted solutions. At Regions Insurance, we stand by our commitment to provide personal service while helping you craft a coverage plan that meets your organization’s unique needs.
Tom Hayes Employee Benefits Practice Leader Tom.Hayes@regions.com 479.684.5259 www.regionsinsurance.com
The coverage you need. The guidance you trust.SM
Š 2018 Regions. Regions Insurance is an affiliate of Regions Bank. Products and services are offered by Regions Insurance Inc. and underwritten by unaffiliated insurance companies. Regions Insurance does not provide legal or investment advice.
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STANDING FOR THE ADA BY MICHAEL HORNBACK
The Rise of Stand-Up Desks and Accommodation Implications The workplace has changed dramatically over the past several decades. For the most part, gone are the large mahogany desks and leather-backed chairs. They have been replaced by more ergonomically designed workspaces, with specially designed desks and chairs to fit not only the specific work area, but also the employee working in that space. The idea is this: If employees have a more physically and mentally comfortable workspace, they will be more productive. There is also the thought, and some evidence, that these ergonomically designed workspaces, along with wellness programs, aid in reducing health care costs and missed work days. Enter the stand-up desk, one of the fastest growing trends in the workplace. The Society for Human Resource Management has reported that, as of last year, 44% of organizations offer stand-up desks to their employees. This is a dramatic uptick compared to only 13% in 2013. While stand-up desks are now more prevalent in the workplace, should employers consider them as a potential accommodation under the Americans with Disabilities Act (“ADA”)? Brief Review of Accommodations Under the ADA: As human resources professionals, you are already well-versed in understanding employers’ obligations under the ADA and its role in the interactive accommodation process. An employee comes to you claiming a certain disability and requesting accommodations. You obtain the necessary information, including medical certifications, and discuss potential accommodations with the employee. This process, and the potential accommodations the employer can offer, are potentially more obvious if they involve modifying a work schedule or granting extra breaks. However, what if an employee has a back, neck, or other ailment and requests a stand-up desk as an accommodation. Is that an option? Short answer: yes. As the EEOC has noted, common types of accommodations include, among other items, altering how or when job duties are performed and providing specially designed furniture which assists an employee in performing his/ her job. Stand-up desks fit under these general accommodation categories, particularly in light of the EEOC’s view on ergonomic workspaces. EEOC’s Position on Ergonomic Workspaces: The EEOC has its own internal Disability Program Manager system that contains within it an “ergonomic program.” The EEOC ergonomic program is “available to all employees who may require special equipment to address or prevent various ailments.” As an example, the EEOC notes that an employee 30
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with carpal tunnel syndrome can request a specialized chair or wrist pad as an accommodation. It has also opined that allowing employees to stand and providing ergonomic office furniture are appropriate accommodations under the ADA. The EEOC has even concluded that the Department of the Treasury discriminated against an employee with a disability (ruptured lumbar vertebrae and discs) when it denied the employee’s repeated requests for an ergonomic chair. Heshmat Ansari v. Department of the Treasury, EEOC Appeal Nos. 0720070054, 0120070238 (June 15, 2007). Additionally, the EEOC has pursued litigation against private employers related to the denial of employee requests for ergonomic workspace accommodations. In 2013, it filed a lawsuit in the U.S. District Court for Colorado alleging a variety of claims against an employer, including the failure to accommodate an employee’s fibromyalgia with the use of an ergonomic chair. EEOC v. Brookdale Senior Living Communities, Inc., Civil Action No. 14-cv02643. The employer allegedly told the employee that she could not return to work until she was able to work full-time with no restrictions or accommodations. The EEOC alleged the employer told the employee that her proposed accommodations (which included an ergonomic chair) were unreasonable and created an undue hardship. According to an August 17, 2015 press release from the EEOC, this matter was settled for $112,500.00 (Note: the case also involved a claim for retaliatory discharge). It is not a big stretch from the concept of an ergonomic chair to that of a stand-up desk. Their basic function is the same, to provide a modified workspace in order to lessen the limitations and/or symptoms that a particular physical condition presents. In fact, employees are jumping into litigation over the failure of employers to provide stand-up desks when requested. Lawsuits Relating to Requests for Stand-Up Desks: In 2000, a plaintiff filed a lawsuit in the Northern District of Illinois claiming that his employer failed to accommodate his alleged disability (back injury) by not providing him with, among other things, a stand-up desk. He alleged that he could have continued to perform his job if the defendant had provided the “ergonomic furniture” requested. Lannon v. PricewaterhouseCoopers, LLP, Case No. 00-c-4249. A review of the docket reveals that the last activity on this case was in 2002, so it likely reached a private resolution.
In 2006, an employee sued his employer in the Middle District of Tennessee claiming, among other things, that he was subjected to discrimination based upon an alleged disability (carpel tunnel syndrome and back issues). While the Court ultimately held the plaintiff failed to adduce sufficient evidence that he was disabled under the ADA, the Middle District of Tennessee noted that even if the plaintiff had proven he was disabled, the employer provided appropriate accommodations based upon several ergonomic evaluations that had been performed of the employee’s workstation. Those accommodations included a different chair, a new keyboard/mouse platform, a desk reconfiguration, and ultimately the purchase of a stand-up desk. Kazerooni v. Vanderbilt University, 2007 WL 2300379 (M.D. Tenn. Aug. 8, 2007). In 2011, a lawsuit was filed in the Western District of Washington alleging that plaintiff’s employer failed to accommodate her disabilities (neck and upper back pain, severe headaches/migraines, and numbness and pain in both arms) by refusing her request for a stand-up desk. According to the plaintiff, her employer refused to provide any accommodation whatsoever for her alleged disabilities. A review of the docket shows that a stipulation of dismissal was filed not long after the complaint was filed. Patron v. Fidelity National Financial, Inc., Case No. 2:11-cv-99. There is also evidence that employers are, in fact, providing stand-up desks to their employees as accommodations under the ADA. In addition to the Kazerooni case above, there have been at least two lawsuits, one in the Eastern District of Virginia and one in the Southern District of New York, wherein reference is made to an employee’s request for a stand-up desk and the employer’s subsequent approval and implementation of such accommodation. How Much Does a Stand-Up Desk Cost: One question you will likely have when considering an accommodation request related to a stand-up desk is the cost. Every organization has a budget, right. The good news is that stand-up desks have pricing levels for everyone’s financial tolerance. A quick internet search reveals various options, including stand-up desks which actually are placed on top of an existing sitting desk (prices starting around $150.00 up to $600.00). If your organization loves the old mahogany look, you can find specially made, handcrafted, stand-up desks, which will cost you anywhere from $1,500.00 and up (some of which cost more than the first car I owned). The point here is that the costs associated with providing a stand-up desk to an employee are not outrageous, assuming you stay on the lower end of the pricing spectrum. Thus, arguing that the employer will face an undue burden in providing this type of accommodation will likely not withstand scrutiny by the EEOC or a Court of law.
stand-up desks can increase concentration and productivity, improve employee morale, reduce health care costs by reducing injuries to the neck, wrist, elbow, and back. Employers are noticing this trend. One large law firm in Florida reports that it provides stand-up desks to any employee who requests one. One large Kentucky-based employer has started incorporating stand-up desks into its office design and allowing employees to undergo and ergonomic assessment to see if such a desk would be of benefit to them. Take Aways: Employers should take requests for stand-up desks or similar ergonomic furniture seriously. If a request is made in an attempt to alleviate a medical condition or physical ailment, employers should actively engage in the interactive process and openly communicate with the employee to determine whether a stand-up desk is an appropriate accommodation under the ADA. If requested simply to improve an employee’s work life . . . well, you know the old saying, “A happy employee is a productive employee.”
Michael D. Hornback, Special Counsel Littler – Lexington Office mhornback@littler.com www.littler.com
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The Business Case for Stand-Up Desks: Irrespective of whether a stand-up desk is required as an accommodation under the ADA, does it make business sense to provide one to an employee who makes such a request? Maybe. It has been said that “sitting is the new smoking.” Whether that is wholly accurate is unknown, but there are studies that suggest sitting for long periods of time can lead to increased risk for heart disease, obesity, cardiovascular problems, and can even impair cognitive ability. Conversely, other studies have found that standing while working improves critical thinking and “aids mental and metabolic health.” Some wellness specialists believe
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Highlights from the Ogletree Deakins
EMPLOYMENT LAW BRIEFING The Crescent Club in Memphis April 20, 2018
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address the latest labor and employment law topics impacting all employers
LOCATION
TOPICS
DATE AND TIME
Presenter: Audrey M. Calkins Ogletree Deakins
The Crescent Club 6075 Poplar Avenue, Suite 909 Memphis, TN 38119 (901) 861-5060
Don’t Get Caught With Your “Breaches” Down! Learn How To Prevent, Identify, and Address Hacking and Other Unauthorized Computer Access
Friday, April 20, 2018 2:00 p.m. – 4:00 p.m. Presentation 4:00 p.m. – 5:00 p.m. Cocktails and Networking (Registration will begin at 1:30 p.m.)
COST
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How to Conduct an HR Audit Presenter: Cynthia Y. Thompson The Thompson HR Firm
Complimentary (A cocktail reception and program materials are included.)
REGISTRATION
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Register online at www.ogletree.com or contact Tamara Caradine at (901) 767-6160 or tamara.caradine@ogletree.com. for
review and are applying for Tennessee CLE credit.
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1 Audrey M. Calkins, Associate with Ogletree Deakins, presented “Don’t Get Caught with Your Breaches Down! Learn How to Prevent, Identify, and Address Hacking and Other Unauthorized Computer Access.” 2 Kim Hodges, Shareholder with Ogletree Deakins, welcomed attendees and introduced Audrey’s presentation. 3 Members of Ogletree Deakins’ Memphis office in attendance were (L-R) Yasmin Mohammad, Associate; Audrey Calkins, Associate; Zachary Hoyt, Associate; Kim Hodges, Shareholder; Greg Dickey, Regional Office Administrator; Tamara Caradine, Receptionist. 4 Cynthia Thompson, MBA, SHRM-SCP, SPHR, presented “How to Conduct and HR Audit.” 5 Attendees at the afternoon employment law briefing presented by Ogletree Deakins and HR Professionals Magazine. 6, 7 & 8 The briefing was followed by a cocktail reception and appetizers. Attendees enjoyed networking with the Ogletree Deakins attorneys and staff. 32
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Aug. 28-30, 2018
Omni Louisville Hotel • Louisville
NEW LOCATION! The Brand New Omni Louisville Hotel
KEYNOTE SPEAKER LINEUP
Brad Shuck
Jack Uldrich
Annie Meehan
4 p.m. | Tue., Aug. 28
8:45 a.m. | Wed., Aug. 29
12 p.m. | Thu., Aug. 30
Going Beyond the Surface of Employee Engagement: Exploring the Principles that Matter in Human Resources
Business as Unusual: How to Future-Proof HR Against the Top Workforce Trends Transforming Tomorrow
Leading a Life of IMPACT
Learn more and register at KYSHRMCONFERENCE.COM www.HRProfessionalsMagazine.com
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HIGHLIGHTS
May 4 in Savannah
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1 Rushe Hudzinski, MBA, SHRM-SCP, GPHR, is the 2018 Director of SHRMGA. 2 Lilly Ledbetter, luncheon keynote speaker at the SHRMGA HR Legal Summit, fought for 10 years to close the gap between women’s and men’s wages, fighting the Supreme Court and lobbying Capitol Hill in a historic discrimination case against Goodyear Tire and Rubber Company. The Lilly Ledbetter Fair Pay Act was the first bill signed into law by President Barack Obama January 29, 2009. 3 Chatrane Birbal, SHRM Senior Advisor Government Relations, was the opening keynote speaker. Her topic was “The 115th Congress and the Trump Administration: The Washington Outlook for HR and Public Policy. Watch my Facebook Live interview with Chatrane Birbal at www.facebook. com/hrprofessionalsmagazine.com. 4 Mark Butler, Commissioner of the Georgia Department of Labor was also a keynote speaker. He provided the “2018 Georgia Employer Overview.” Watch my Facebook Live interview with Commissioner Butler at www.facebook.com/hrprofessionalsmagazine.com. 5 Sally Roberts, SHRM-SCP, 2015-2016 State Director of SHRMGA introduced Lilly Ledbetter, luncheon keynote speaker.
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6 Dorothy Knapp, SHRM-SCP, SHRM Field Services Director for Georgia, with Lilly Ledbetter at the book signing of Lilly Ledbetter’s book, Grace and Grit. Dorothy provided an update on 2018 SHRM initiatives at the Summit. 7 Kristen Goodman, Partner with Hall, Arbery, Gilligan, Roberts & Shanlever LLP, presented “Best Practives for Avoiding Costly Personnel Management Mistakes,” during the legal breakout sessions. 8 Crystal Stevens McElrath, attorney with Swift, Currie, McGhee & Hiers, discussed “Reconciling Employee Handbook Policies to Comply with Federal Employment Laws and the Georgia Workers’ Compensation Act” during the legal breakout sessions. 9 Attorney C. Jason Willcox with Moore, Clarke, Duvall, and Rodgers, presented “Let’s Talk About Sexual Harassment #MeToo,” during the legal breakout sessions.
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10 Photo op with Lilly Ledbetter at Skyler’s Restaurant in Savannah at a dinner in her honor on Thursday evening prior to the HR Legal Summit (L-R) Cynthia, Rushe Hudzinski, Lilly Ledbetter, Garlana Matthews and Michelle Wilds 11, 12, 13 SHRMGA members and guests attended a dinner honoring Lilly Ledbetter at Skyler’s Restaurant in Savannah. There was a 10 book signing following the dinner. 34
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Joint Seminar - May 8 and 9 in Memphis
Bringing Them In and Escorting Them Out – Tax Implications in Hiring and Terminations Bringing Them In and Escorting Them Out: HR and Tax Implications in Hiring and Firing CPA firm Dixon Hughes Goodman and law firm Burch, Porter & Johnson are partnering to offer this seminar on legal and tax best practices that employers need to know during the hiring and firing process. Learn about the pitfalls of the hiring process, including the use of background checks and their impact on negligent hiring claims, common mistakes in setting up payroll and unemployment taxes for new employees, and using onboarding to educate new employees on company culture. On the termination end, we will discuss the difference between a settlement agreement, a severance agreement and a RIF agreement and the tax implications of each.
Wednesday, May 9 8:30-10:30 a.m.
Tuesday, May 8 4:30-6:30 p.m.
(Includes seminar and social hour)
(Includes seminar and light breakfast)
at Dixon Hughes Goodman
at Burch, Porter & Johnson 130 N. Court Ave. Memphis, TN 38103
999 S. Shady Grove Rd., Ste. 400 Memphis, TN 38120
There is no cost to attend the seminars. Please RSVP by Monday, May 7th for either the May 8th or May 9th seminar to rsvp@bpjlaw.com or 901-524-5106.
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Marketing Materials
A Joint Employment Law & Tax Seminar Presented by Attorneys Lisa Krupicka and Karen Roche and CPAs Cindy MacAulay and Stephen Slabaugh
Dixon Hughes Goodman LLP 901-761-3000 │ www.dhgllp.com
Burch, Porter & Johnson, PLLC 901-524-5000 │ www.bpjlaw.com
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1 Attorneys from Burch, Porter & Johnson include (L-R) Gary Peeples, Jennifer Hagerman, Karen Roche, and Lisa Krupicka 2 Stephen Slabaugh, CPA, and Senior Manager; and Cindy MacAulay, DHG Director, Forensic & Valuation Litigation Support with Dixon Hughes Goodman. 3 (L-R) Karen Roche and Lisa Krupicka opened the seminar discussing negligent hiring, background checks, employee onboarding and rules of civility. Lisa also discussed the difference between a settlement agreement, a severance agreement, and a RIF agreement. 4 Stephen Slabaugh with Dixon Hughes Goodman discussed tax issues related to compensation including sign-on bonuses, guaranteed payments, and executive compensation. 5 Cindy MacAulay with Dixon Hughes Goodman discussed tax implications on fringe benefits and perks. 6 and 7 HR professionals who attended the May 8 session at Dixon Hughes Goodman’s office. A breakfast meeting was also held on May 9 at Burch, Porter & Johnson’s office. www.HRProfessionalsMagazine.com
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Highlights from the 2018 Tennessee SHRM Strategic Leadership Conference
APRIL 27 IN NASHVILLE
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1 Rebecca Harmon, SHRM-SCP, PHR, Director of TN SHRM 2 Dr. Richard Moffett III, Associate Director of the Center for Organizational and Human Resource Effectiveness, and Professor of Industrial/Organizational (I/O) Psychology of Middle Tennessee State University, was the opening keynote speaker. His topic was “Evidence Based Decision Making – A Critical Skill for Strategic HR Leaders.” 3 Ammie Dover, Business Strategist, spoke on “Branded Leadership Creating a Unified Team.”
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4 Dennis Jackson, Partner, WorX Solutions, discussed “Workflow, How to Impress the CFO.” Watch my Facebook Live interview with Dennis www.facebook. com/hrprofessionalsmagazine 5 Donna Griggs, CEO, Propel Change, was a keynote general session speaker. She presented “Change Nirvana: Have Your Arrived?” Watch my Facebook Live interview with Donna at www.facebook.com/hrprofessionalsmagazine. 6 Kayla Curry, president of Organization Impact, LLC, presented “Workforce Planning: An Adaptive Succession Planning Strategy – Part 1.”
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7 7 Edward Rittenberg, Principal of Paradigm Group; and Ken Liberatore, VP of Paradigm Group; spoke on “Evaluating Health Insurance Cost Containment Strategies.”
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8 Stacy Adams, Director of HR, Ghertner & Company and the Strategic Leadership Conference Chair, was emcee for the conference. 9 Christa Simpson, Digital Marketing Project Manager with Tractor Supply Company, presented “Leadership Engagement: The Keys to the Kingdom of Employee Engagement, and How to Make it Work.”
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10 Ben Altom, Vice President for First Tennessee Bank, discussed “A Strategic Approach to Wellness Programs.” 11 Jan McKeel, President of South Central TN Workforce Alliance, spoke on “The Rising Tide of the Millennial Workforce: Implementing Intentional Strategy in Acquiring & Retaining Talent Under 35.” 12 Stephanie Brodtrick, Workforce Performance Consultant with Vanderbilt University Medical Center, presented “Creating a Strategic Advantage – HR Agility in VUCA World.”
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Highlights from the
You’re invited to attend the
8th Annual
Human Resources & Employment Law Spring Conference May 2 in Jackson, TN
Presented by: THE WEST TENNESSEE SOCIETY FOR HUMAN RESOURCE MANAGEMENT In coordination with: THE LAW FIRM OF RAINEY, KIZER, REVIERE & BELL, P.L.C.
May 2, 2018
Join us for an informative day where we will explore how to survive in the HR Jungle including:
Wednesday 8:00 a.m. to 4:00 p.m.
Union University Carl Grant Event Center 1050 Union University Dr. Jackson, TN 38305
Beware! Sexual Misconduct in the Workplace – Learn how to effectively and legally respond to incidents of sex-related misconduct on the job. Performance Management Safari – A panel of HR administrators and attorneys will discuss innovative approaches to rewarding excellence and addressing performance concerns.
1 Avoiding Danger: Workplace Violence – Explore strategies on how to andJohn respond to Anna violence in theHowell, workplace. 1 The 2018 WTSHRM Board of prevent Directors (L-R) Carbonell, Higgs, occurring Amy West, Jennifer Janice Shipman, Debbie Harris, Lindsey Pullen
It’s a Jungle Out There! - Employment Case Studies – An interactive discussion of recent employment law cases and the application of relevant concepts and HR strategies. Legal Aspects of Employee Discipline and Investigations – A creative presentation by employment attorneys on how to address employee discipline and conduct workplace investigations.
Lunch is provided. Explore our impressive showcase of HR-related exhibitors. Door prizes and more. Registration Fee: Register Now!
$100 for WTSHRM Members $125 for non-WTSHRM Members Join WTSHRM for only $25 at: wtshrm.shrm.org/join 2
wtshrm.shrm.org/events
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2 Dr. John Carbonell, WTSHRM President, welcomed HR professionals to the 8th Annual Human Resources & Employment Law Conference The registration deadline is Thursday, April 26, 2018. Register early as seating is limited. presented in coordination with the Law Firm of Rainey, Kizer, Reviere & Bell, P.L.C. This year’s theme was “Surviving the HR Jungle.” 3 Rainey Kizer labor and employment law attorneys participating in the 8th Annual WTSHRM Conference were (L-R) L-R: Rob Binkley, YouLindley, may pay by check credit card.Jenn Questions: Geoffrey V. Latosha Dexter,or J.V. Thompson, Ivy, Michael eamicone@raineykizer.com Mansfield, Matthew Courtner. Latosha Dexter is Deputy University Counsel at the University of Memphis. 4 Amy West, Past President of WTSHRM, was the emcee for the 8th Annual Human Resources & Employment Law Conference in Jackson. This program has been submitted for 6 recertification credit hours through HRCI and SHRM.
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5 Matthew Courtner (L) with Sgt. Shane Laney with the Jackson Police Department (R). They presented “Workplace Violence – Explore strategies on how to prevent and respond to violence occurring in the workplace.” 6 John Burleson and Jennifer Vallor Ivy discussed “Sexual Misconduct in the Workplace.”
7 7 (L-R) Amy West, Debbie Harris, Lindsey Pullen, Rob Binkley, and J.V. Thompson participated in a panel discussion on performance management. Dr. John Carbonell was the moderator.
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11 8 Express Employment Professionals won first place for the best decorated booth. The backdrop and the jeep were painted by a local high school class. 9 The West Tennessee Healthcare booth 10 The Leaders Credit Union booth 11 HR professionals in attendance at the 8th Annual WTSHRM Human Resources & Employment Law Spring Conference in Jackson
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Labor and Employment Law Update:
Labor and Employment Law Update: Sexual Harassment in the Workplace Sexual Harassment in the Workplace
Bass, Berry & Sims and HR Professionals Magazine invite you to join a complimentary seminar focused on addressing, reducing and preventing s harassment claims in the workplace. Bass, Berry & Sims and HR Professionals Magazine hosted a At the Crescent Club in Memphis April 25
Tim Garrett and Kimberly Veirs were speakers complimentary seminar focused on addressing, reducing and at the complimentary seminar preventing sexual harassment claims in the workplace. Topics Harassment Law Refresher: A high-level review of harassment law. included a harassment law refresher, conducting effective internal investigations, and the “company culture” issue – how to reduce harassment in the workplace. Strategies for reducing Conducting Effective Internal Investigations: A discussion of best practices harassment in the workplace and developing a safe culture conducting internal investigations into harassment claims. were the focus of the complimentary breakfast seminar. Attendees enjoyed the complimentary breakfast seminar
at theto Crescent Club. Harassment in the The "Company Culture" Issue - How Reduce Workplace: Strategies for reducing harassment in the workplace and developing safe culture.
Wednesday, April 25
WIMBERLY & LAWSON MICHAEL 7:30 a.m. ATTORNEY - 8:00 a.m. Registration andAVAKIAN Breakfast NAMED ASSOCIATE DEPUTY SECRETARY OF LABOR 8:00 a.m. - 10:30 a.m. Program Crescent Club Michael Avakian, the principal member of The the D.C. office of Atlanta-based Wimberly 6075 PoplarofAve & Lawson, has been named Associate Deputy Secretary the U.S. Department of Labor in Washington, D.C. Avakian Memphis, will be at the center of the Department’s policy Tennessee 38119 and management leadership team under recently confirmed Deputy Secretary of Labor Patrick Pizzella and Secretary Alexander Acosta. In addition to private practice with Wimberly & Lawson, Avakian has served as Counsel to the Center on National Labor Policy in Washington. He has been recognized as a RSVPFoundation by Thursday, April 19 on NBC’s public policy expert in labor law byPlease the Heritage and has appeared TODAY Show, Good Morning America, Nightwatch, MacNeil/Lehrer NewsHour, and HRCI and Tennessee CLE credit (2.25 CNN News and on radio shows nationwide. He has been quoted in the Newhours) York Times, the Washington Post, the Wall Street Journal, the Boston Globe, People Magazine, the Daily Labor Reporter, and elsewhere on labor topics. He contributed to Agenda ’82 and Mandate II in recommending policy proposals for the National Labor Relations Board, Federal Labor Relations Authority, Equal Employment Opportunity Commission, and / KNOXVILLE MEMPHIS / WASHINGTON, / www.bassberry.com Department NASHVILLE of Labor. Avakian also has /testified before the House andD.C. Senate Judiciary and Labor Committees a variety of proposed legislation and before agencies, Updateon Contact Information | Manage Subscriptions | Opt regulatory Out of all communications such as the NLRB, NMB, and the FEC. While Wimberly & Lawson will greatly miss such a valued colleague, the firm is honored that he has been selected for this important position. We wish him every success.
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2018 Guide to
SUPER Lawyers
in Labor & Employment Law
HR Professionals Magazine congratulates 2018 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 2018 Super Lawyers in Alabama, Arkansas, Georgia, Kentucky, Mississippi and Tennessee. Special thanks to our sponsors and contributors! The 2018 Rising Stars will be featured in a future issue.
Ogletree Deakins is a labor and employment law firm representing management in all types of employment-related legal matters. Premier client service, as outlined in the firm’s Client Pledge, is one of the firm’s top priorities and a cornerstone of its core values. U.S. News – Best Lawyers® “Best Law Firms” has named Ogletree Deakins a “Law Firm of the Year” for six consecutive years. Ogletree Deakins has more than 800 attorneys located in 52 offices across the United States and in Europe, Canada, and Mexico. The firm represents a diverse range of clients, from small businesses to Fortune 50 companies. www.ogletree.com
BIRMINGHAM Gordon L. Blair devotes a substantial portion of his practice to general litigation, regularly representing colleges and universities, contractors, healthcare providers, manufacturers and retailers in personal injury, construction, tort, and contract litigation. However, the majority of Blair's practice is focused on the representation of employers in workplacerelated matters, ranging from administrative proceedings to federal litigation. He routinely counsels employers on day-to-day employment decisions, conducts training seminars, and works to develop effective workplace policies and procedures. Blair lectures to human resources personnel and related groups on topics such as the Family and Medical Leave Act and the Alabama Workmen’s Compensation Act. Brian R. Bostick has practiced exclusively in the area of labor and employment law in the Birmingham area since 1997, and has been with Ogletree Deakins since 2000. He has considerable experience representing employers in employment-related litigation in federal and state courts. He has defended employment lawsuits pending before each of the federal districts in Alabama, the Alabama Supreme Court, the Eleventh Circuit Court of Appeals and the United States Supreme Court. He has also successfully represented employers before numerous administrative agencies such as the Equal Employment Opportunity Commission, the Department of Labor, and the Mine Safety and Health Administration.
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John Richard Carrigan is an enthusiastic litigator in state and federal courts, as well as before administrative agencies. He tries jury and bench trials in federal districts throughout Alabama, and in the Northern District of Florida, as well as state courts. Carrigan has tried matters before administrative law judges of the NLRB and the US Department of Labor, and has argued federal appeals to the Fifth Circuit and the Eleventh Circuit. Matters defended include simple misunderstandings, sharply contradictory versions of an event, disparate impact or “pattern and practice” claims affecting thousands of employees, and malicious and fraudulent attacks.
Christopher W. Deering has extensive experience representing employers in successfully avoiding and defending a broad range of employment-related claims. His focus areas include employment discrimination, wrongful discharge, retaliation and harassment, whistleblower issues, restrictive covenants, wage-hour matters (including class and collective actions) and workplace safety. Deering has litigated such matters throughout Alabama, Florida, Georgia, Mississippi, Tennessee and Texas. In addition, Deering regularly provides counseling to employers on matters of employee discipline and termination, enforcement and implementation of employment policies, workplace investigations and reductions in force.
T. Scott Kelly provides practical solutions for federal contractors and subcontractors across the United States to comply with the ever-changing affirmative action obligations imposed by doing business with the federal government. He advocates on behalf of his clients in compliance evaluations and administrative enforcement actions triggered by the United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). Kelly assists manufacturing, transportation, construction, food processing, hospitality, healthcare, and financial institutions with creative solutions for preparing, managing, and defending their affirmative action programs and related matters, including jurisdictional analyses and preventative strategies. Peyton Lacy, Jr. has 44 years of experience in labor and employment law. He graduated with a J.D. degree from the University of Alabama in 1965, where he served as editor-inchief of the Alabama Law Review and a member of the Farrah Order of Jurisprudence. In addition to a traditional labor law practice, Lacy defends individual and class employment litigation cases in both federal and state court, handles traditional labor law matters for employers including negotiation and arbitration, and counsels employers on preventive measures in both areas. James A. Patton, Jr. has advised companies for the past 20 years on a variety of workplace issues including preparing and enforcing non-competition agreements, dealing with complex employee leave issues, defending employment discrimination lawsuits, and providing advice on difficult workplace issues. Patton has written extensively on Alabama’s newly amended restrictive covenant law and has enforced and defended restrictive covenant cases in state and federal courts. Patton provides ongoing support to clients who are managing long-term, complicated leave and accommodation issues by helping them to comply with legal directives while ensuring that leaves are efficiently managed. James C. Pennington is the Managing Shareholder and a founding member of the Birmingham Office of Ogletree Deakins. For more than two decades, he has represented employers in a wide range of labor and employment law matters, including administrative agency charges, federal and state court litigation, union campaigns and collective bargaining. He helps employers avoid workplace disputes by providing management training and developing defensive documentation such as effective employee handbooks, dispute avoidance and resolution policies, and drug and alcohol testing policies and procedures. He is known for helping employers navigate through the intersections of disabilities and leave laws. David L. Warren, Jr., founding member of the Birmingham office, has represented employers in employment and labor law since 1993. Warren’s litigation prevention counseling includes training on employment law issues; assisting employers with implementing adverse employment actions; maintaining policies, handbooks, employment contracts and agreements; and managing leave issues under the Americans With Disabilities Act, Family and Medical Leave Act and workers’ compensation laws. His litigation experience encompasses discrimination; equal pay, wage and hour, and leave laws; workers’ compensation retaliation; class and collective actions; non-competition and non-solicitation agreements; employment contracts; and compliance with Title III of the Americans With Disabilities Act.
MEMPHIS Thomas L. Henderson is the Managing Shareholder of the Memphis office. He has represented management in employment and labor relations matters for over 30 years. He has served as lead counsel in numerous jury trials in state and federal courts across the nation. 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. NASHVILLE Keith Frazier represents management in the area of labor and employment law, with an emphasis on employment litigation, including collective actions under the FLSA and the ADEA. Frazier has been counsel in over 20 jury trials, and he has experience trying collective actions in federal court before a jury and in an arbitration setting. He has also handled over 40 arbitrations arising under collective bargaining agreements. In 2005, Keith was elected to the Firm’s Board of Directors and served until 2011. He also served a three year term on the Firm’s Board from 2014 until 2017. Jonathan O. Harris is Managing Shareholder of the firm’s Nashville office. He 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 handled countless EEOC charges and defended employers in lawsuits brought by the EEOC, including matters where the agency has asserted systemic claims on behalf of multiple claimants. 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. Timothy A. Palmer is a shareholder who works in both the Nashville and Birmingham offices, and is a founding shareholder of the Birmingham office. He is an experienced litigator who focuses his practice on both employment litigation and general civil litigation in state and federal courts. His practice focuses on the defense of employment litigation including discrimination claims, defense of personnel actions, and defense of employee benefit disputes. He is a frequent speaker for the Alabama Bar Institute on Continuing Legal Education, where he has lectured on jury selection procedures and employment litigation. William S. Rutchow is a shareholder in the firm’s Nashville office who currently concentrates his practice in three areas: Workplace Safety and Health, Unfair Competition/Trade Secrets, and Employment Litigation. He also has experience in commercial litigation, personal injury litigation, and NLRB proceedings. Rutchow is a member of the firm's Ethics Committee, the Unfair Competition and Trade Secrets Practice Group, the Workplace Safety Practice Group, the Traditional Labor Law Practice Group and the Litigation Practice Group. He is a frequent author and speaker on employment-related topics.
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NASHVILLE cont. Elizabeth S. Washko is a shareholder in the Nashville office and co-chair of the firm’s Pay Equity Practice Group. She represents management in a wide variety of employment matters, at the agency level and in litigation. She has experience defending employers in FLSA collective actions, pay discrimination cases (individual plaintiff and class/ collective actions) and conducting proactive pay audits and pay equity analyses. She has served as lead counsel in jury trials in state and federal courts. Washko also conducts training on employment issues, drafts and reviews employment policies and agreements, and conducts harassment and other types of investigations for employers.
Gregory J. Hare is Managing Shareholder of the Ogletree Deakins Atlanta office and has been an employment lawyer at Ogletree his entire career, ever since 1991. He assists companies with human resources and employment related litigation matters, including wrongful termination claims, sexual harassment, employment discrimination, employment contracts, trade secrets, and non-compete agreements. He advises clients on a wide range of human resources topics, such as employee discipline and discharge, severance planning, independent contractor classifications, wage payment, family and medical leave, disability law, military leave, joint employment issues, affirmative action and reductions in force.
ATLANTA
William P. Steinhaus recently completed a nine-year term in the role of Managing Shareholder of Ogletree’s Atlanta office. For over 30 years, he has focused his practice solely on representing employers in the full spectrum of employment and labor matters. His in depth knowledge of the law and network within the legal community have resulted in requests for consultation from his peers and others to assist in identifying lawyers outside of his focus area and subject matter experts in various cases. Steinhaus administers the firm’s EPLI program, and is the primary contact with the firm’s insurance carriers.
Margaret H. Campbell is a shareholder in the Atlanta office and has practiced employment, litigation, and labor law at Ogletree since 1981. An all-around labor and employment lawyer, Meg is particularly recognized for her experience in complex class and collective action litigation, whistleblower investigations and litigation including Sarbanes-Oxley and Dodd-Frank cases, appellate practice, and restrictive covenant law. She has litigated single plaintiff, multi-plaintiff, and class and collective action jury and non-jury cases in federal and state courts around the country. Craig Cleland defends employers in litigation—including class and collective actions—and counsels them in risk management and compliance. He is the former Chair and Co-Chair of the Firm’s Class Action Practice Group. He is also an Adjunct Professor of Law at Georgia State University College of Law, where he teaches Complex Litigation. He has been recognized as a BTI Client Service All-Star twice—one of a small number of employment lawyers in the U.S. who “combine exceptional legal expertise with practical advice, business savvy and creative, effective solutions.” Homer L. Deakins, Jr. was Managing Shareholder of Ogletree from 1985-2000. He has extensive experience in all aspects of labor relations law and has handled some of the largest and most highly publicized union elections in the United States on behalf of employers. This includes representing management in two major union elections in foreignowned automobile assembly plants in the United States, where the company won those elections by large margins. He also has created and participated in highly sophisticated labor relations training programs for management personnel and has a wealth of experience in guiding employers through challenging labor-related issues.
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JACKSON, MISSISSIPPI Timothy W. Lindsay is routinely sought by clients to provide legal advice and offer guidance in avoiding potential problems and costly litigation in the labor and employment arena. In litigation, he has defended employers against claims involving state and federal employment laws with a high success rate for over 30 years. To Lindsay, representing management in labor and employment disputes is more than a professional career choice; it is a personal passion to which his practice has been dedicated for years.
FordHarrison is a labor & employment firm with nearly 200 attorneys in 28 offices, including three affiliate firms. The firm has built a national legal practice as one of the nation's leading defense firms with an exclusive focus on labor law, employment law, litigation, business immigration, employee benefits and executive compensation. Through its global practice group and membership in the global employment law firm alliance, Ius Laboris, FordHarrison provides clients that have multinational operations with a broad range of services related to labor and employment law in over 50 countries throughout the world. FordHarrison is committed to our FH Promise, a set of principles that guides our firm in the delivery of legal services and client communications. For more information on FordHarrison, visit fordharrison.com. To learn more about Ius Laboris, visit iuslaboris.com.
MEMPHIS
ATLANTA
Louis P. Britt, III – Partner, Memphis Louis Britt is the Regional Managing Partner for FordHarrison's Memphis, Nashville and Dallas offices. He concentrates his practice on employment litigation and advice, representing private and public employers in a broad range of employment matters. Louis handles employment discrimination and harassment cases (Title VII, ADA, ADEA and FMLA), wage/hour matters, enforcement and defense of restrictive covenants contained in employment agreements, and employment-related torts. He is experienced in complex and class action litigation, and has tried cases in state and federal courts across the country. Louis has extensive experience in public sector representation in both litigation and collective bargaining.
Patricia G. Griffith – Partner, Atlanta Patricia Griffith concentrates her practice on employment litigation, including individual and class action discrimination and harassment cases, employment contracts, wage/hour claims, and other employment-related actions. She tries cases in federal and state courts and before administrative agencies and arbitrators. Patricia has substantial jury and class certification experience. She is adept at mediating disputes, reducing the likelihood of protracted litigation, and serves as an arbitrator for the State Bar of Georgia and private parties. Earlier in her career she served as a law clerk to the Honorable Thomas A. Clark, U.S. Court of Appeals for the Eleventh Circuit.
Herbert E. Gerson – Of Counsel, Memphis Herb Gerson focuses his practice on managing all areas related to traditional labor and employment issues both local and international. Herb chairs the firm’s Global Legal Services Practice Group. He devotes much of his practice to counseling clients on avoiding employment discrimination claims and developing a positive work environment. Herb has written numerous articles on labor and employment matters, is a frequent speaker on labor and employment matters and co-chaired the Labor and Employment Committee of the Litigation Section of the American Bar Association. Herb is a graduate of Leadership Memphis and a member of the Advisory Board to the Memphis Area Chamber of Commerce. Charles “Bud” V. Holmes – Partner, Memphis Bud Holmes has over 30 years of experience representing employers in employment related matters. Upon graduation from law school, Bud served as a Judicial Clerk to the Honorable Charles E. Nearn in the Tennessee Court of Appeals, Western Section. Subsequently, he served as Senior Assistant City Attorney for the City of Memphis where his primary responsibilities focused on advising and representing the City in employment-related matters. After entering private practice in 1989, Bud has exclusively represented private and public sector management in a wide variety of employmentrelated matters.
John L. Monroe, Jr – Partner, Atlanta John Monroe has represented employers in the litigation and arbitration of virtually every type of claim that may arise out of the employment relationship. These claims include employment discrimination and harassment, breach of contract, unfair competition, misappropriation of trade secrets, claims arising under state and federal wage and hour laws and family medical leave laws, employment/business torts, claims involving minority shareholder rights and business "divorces". John has extensive experience prosecuting and defending claims for injunctive relief, and has tried numerous jury cases to verdict. He is a member of the firm's Executive Committee and serves as the managing partner of the firm's Atlanta office. Frederick L. Warren, III – Partner, Atlanta Rick Warren handles all aspects of labor and employment law, including traditional labor law, employment litigation, wage and hour matters and workplace safety and serves as the co-chair of the firm's Restaurant Practice Group. He litigates cases before federal and state courts and administrative agencies throughout the country. He defends both individual and class action cases and has substantial jury trial experience. Rick also handles numerous mediations and arbitrations. He devotes a significant part of his practice to preventive law and advising clients how to avoid/resolve labor and employment disputes and litigation. He has written numerous articles on labor and employment issues and frequently conducts management training and seminars. NASHVILLE J. Gregory Grisham – Partner, Nashville Greg Grisham has over 25 years of successful experience counseling and representing employers in all aspects of workplace law in Tennessee and across the United States. He has helped employers avoid claims, charges and lawsuits with a focus on preventative practices. Preventative practices include counseling in situations involving discipline, termination, demotion, promotion and other workplace changes in the terms and conditions of employment, harassment investigations, wage and hour compliance, FMLA compliance, Reasonable Accommodation assessment, supervisor training and the review of employment policies and procedures.
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Burch, Porter & Johnson provides comprehensive legal services across a wide range of litigation, business and transactional practice. The firm’s clients span a broad spectrum: from multi-million dollar corporations seeking counsel to negotiate complex transactions to individuals dealing with the most sensitive personal issues. From its inception, the firm’s focus has been on client service – providing specialized expertise, value, responsiveness and practical solutions to address our clients’ needs. Clients have counted on the firm’s experience, its commitment to service, and its tradition as a leader in business and community affairs for more than a century.
Fisher Phillips is one of the largest labor and employment law firms in the country with more than 350 attorneys in 32 offices nationwide, including Tennessee, Florida, Georgia, Kentucky and Mississippi. Some of the most talented and experienced attorneys come to the firm to handle challenging cases involving workplace issues faced by employers and HR professionals. Fisher Phillips attorneys specialize in all areas of labor and employment law and have the experience and resolve to achieve your desired results in court, with employees and unions, and with competitors.
Jennifer Hagerman – As a member at Burch, Porter & Johnson, Jennifer Hagerman has represented clients in cases involving employment discrimination, wage and hour class actions, restrictive covenants, civil rights, healthcare, education and numerous areas of commercial law. Her recognition as a leading labor and employment attorney stems from her focus on employment litigation and experience advising clients on a variety of employment matters including non-solicitation and non-competition agreements, employee handbooks, and employee classification under the FLSA. In addition to her active involvement in the legal community, she has served on the Boards for organizations including Downtown Memphis Commission and New Memphis Institute.
MEMPHIS
Tannera Gibson is a native Memphian whose practice focuses on employment law and general civil litigation, including personal injury and medical malpractice. Prior to graduating from the University Of Memphis Cecil C. Humphreys School Of Law, she received a B.S. in Computer Science from the University of Memphis, and worked as a software analyst. Ms. Gibson is an active member of the community who maintains a solid pro bono practice. Lisa Krupicka – Since joining Burch, Porter & Johnson in 1987, Lisa Krupicka has built her reputation as one of the top labor and employment attorneys in the Mid-South. Primarily, she focuses on advising and representing employers on 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 ADA. 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. Gary Peeples’ practice focuses on civil litigation, including labor and employment law. A graduate of Vanderbilt University Law School, he has experience in all phases of litigation and defends companies large and small in state and federal court and in administrative matters. A significant component of his practice involves advising employers on how to comply with federal and state law.
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David Jones is the managing partner of the Fisher Phillips Memphis office. He practices exclusively in the area of immigration and related employment and compliance matters. He represents clients in complex matters relating to both immigration benefits and enforcement and in proceedings before the Department of Homeland Security, the Department of Labor, the Department of Justice and the Department of State. David has extensive experience in assisting companies with hires or transfers of employees from outside of the U.S. across multiple industries. He is a regular author and conference speaker on all immigration matters.
Jay Kiesewetter is senior counsel in the Fisher Phillips Memphis office, where he devotes his practice to representing clients in the traditional areas of labor relations and employment law. He counsels employers in all aspects of union-free management and advises non-union companies facing union organizing activity. Jay represents employers in unfair labor practice and representational proceedings before the National Labor Relations Board and the United States Courts of Appeal. In addition, he works with companies that have unions to improve union-management relations and represents management in contract negotiations, arbitrations and labor disputes.
Jeff Weintraub is a partner in the Fisher Phillips Memphis office. He is a trial attorney who has represented employers in more than 59 jury and bench trials in employment-harassment/discrimination and retaliatory discharge lawsuits. Jeff handles EEOC charges, wage and hour cases, non-compete cases, and labor cases in all courts and agencies, various Courts of Appeals and the U.S. Supreme Court. Jeff was selected for HR Executive’s 2016 Top 20 Lawyers in the United States in Traditional Labor & Employment Law, and Best Lawyers in America for 20 years. Additionally, Jeff is a member of the Chairman’s Circle and Chairman of the Small Business Council of the Greater Memphis Chamber.
Wright Lindsey Jennings’ Labor and Employment team has management-oriented practices addressing all aspects of the employee/ employer relationship. The team has extensive experience litigating and arbitrating employment and civil rights claims, in addition to state law claims. Our attorneys defend clients in multi-plaintiff, collective action and class action lawsuits, as well as Department of Labor and EEOC investigations. WLJ's team provides advice and counsel to clients regarding a variety of day-to-day matters and represents clients in labor arbitrations, union elections and contract negotiations. We offer proactive and preventive resources for HR professionals, including employee and manager training, e-newsletters, employment law luncheons and webinars, and website articles. John D. Davis concentrates his Little Rock-based practice in the areas of labor and employment law and workers’ compensation. He spends a considerable amount of his time advising clients in connection with a variety of employment-related matters, including terminations, severance agreements, wage and hour issues, union avoidance, union negotiations, arbitrations, personnel policies and compliance with federal, state and local employment laws. Davis has received an AV® Preeminent™ 5.0 out of 5 Peer Review Rating through Martindale-Hubbell, and is listed among The Best Lawyers in America, Chambers USA and Mid-South Super Lawyers.
Jane A. Kim’s practice centers on defending employers in state and federal court litigation involving claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act and the Age Discrimination in Employment Act. Kim also advises and provides training to employers on compliance with civil rights law. Kim is recognized by Chambers USA as a "Leader in Their Field" and has been listed in Mid-South Super Lawyers since 2013. Kim chairs Wright Lindsey Jennings’ Committee on Associates, and was named to the inaugural Arkansas Business list of "Women to Watch" in Central Arkansas.
Neemah Esmaeilpour is an employment law and immigration attorney at WLJ. He regularly advises and defends employers on issues related to discrimination, minimum wage and overtime, employee leave, employment contracts and covenants not to compete. Neemah’s practice also includes advising companies and professionals on business immigration matters and visa needs, including temporary work visas and employment-based permanent residency. He has been recognized by Mid-South Super Lawyers as a “Rising Star” since 2016, and he was voted one of the 100 “Best Lawyers in Little Rock” by the readers of Soirée Magazine and Arkansas Business in 2017. Neemah is a current member of Leadership Greater Little Rock.
Lee J. Muldrow has been engaged in general litigation and workers’ compensation defense in Little Rock for more than thirty years. His litigation practice primarily involves a wide variety of insurance defense cases, including copyright, trademark and trade dress litigation. His workers’ compensation practice entails representing employers, self-insured companies and insurance carriers. Muldrow is listed in The Best Lawyers in America in the areas of “Worker’s Compensation Law” and “Health Law,” Chambers USA and Mid-South Super Lawyers. He has also received an AV® Preeminent™ 5.0 out of 5 Peer Review Rating through Martindale-Hubbell.
Stuart Jackson heads up Wright Lindsey Jennings' Labor and Employment Team. He advises employers on compliance with civil rights laws and developing personnel policies (including medical marijuana policies), employment agreements and covenants not to compete. Jackson defends employers in federal and state court litigation and appeals involving claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act and the Arkansas Civil Rights Act. Jackson is listed among The Best Lawyers in America, Chambers USA “Leaders in Their Field” and Mid-South Super Lawyers, and has an AV® Preeminent™ Peer Review Rating through Martindale-Hubbell. Michelle M. Kaemmerling’s practice focuses on employment and commercial litigation in state and federal court, including appeals. She has also represented a number of defendants in employment and consumer class action lawsuits. In addition to her litigation practice, Kaemmerling regularly advises employers regarding compliance with state and federal employment laws and develops personnel policies, employment agreements, covenants not to compete and other employment-related contracts. Kaemmerling has been recognized by Mid-South Super Lawyers since 2009, is listed among The Best Lawyers in America and is named a “Leader in the Field” by Chambers USA.
Troy Price has earned a reputation as one of Arkansas’ most experienced and highly regarded appellate lawyers. Price has handled more than 50 appeals in state and federal courts and has presented oral arguments more than 15 times in appeals before the Arkansas Supreme Court and Court of Appeals, the Eighth Circuit Court of Appeals and the Eleventh Circuit Court of Appeals. He is also admitted to practice before the Supreme Court of the United States. In addition to focusing on ERISA and other employee benefits litigation in his practice, Price is also recognized as an authority in First Amendment law.
Regina Young’s practice centers on litigation and trial work. She defends employers in federal and state court litigation and appeals, including claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, and state law claims involving trade secrets, non-compete agreements, arbitration agreements, wrongful discharge, the Arkansas Civil Rights Act and the Arkansas Minimum Wage Act. She has been recognized by Mid-South Super Lawyers since 2012 and was voted one of the 100 “Best Lawyers in Little Rock” by the readers of Soirée Magazine and Arkansas Business in 2016.
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Wimberly Lawson Wright Daves & Jones PLLC, with offices throughout Tennessee, has a defense practice focusing primarily on 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 well-proven 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 in the Cookeville, Tennessee, office of the Firm. His practice includes an emphasis in workers' compensation defense and employment discrimination, as well as ADA and FMLA compliance. Fred is Editor of the Tennessee Workers' Compensation Handbook (M. Lee Smith Publishers), and on the Advisory Board for the Tennessee Workers’ Comp Reporter. He is Tennessee's representative for the National Workers’ Compensation Defense Network. Fred has an AV Preeminent® Rating from Martindale-Hubbell, and is also listed in The Best Lawyers in America® in the field of Workers' Compensation Law/Employers, and Mid-South Super Lawyers in the area of Workers’ Compensation.
Constangy, Brooks, Smith & Prophete, LLP is not your typical workplace law firm. Clients say there is “a soul to Constangy that’s not found with other firms.” For more than 70 years, employers have appreciated our common-sense approach and our helping them navigate the prickly legal and regulatory environments of the changing workplace. Constangy has nearly 200 attorneys across 15 states and represents Fortune 500 corporations and smaller companies across the country. Our attorneys are rated by Chambers USA and Best Lawyers in America, and the firm is ranked Tier 1 by the U.S. News & World Report/Best Law Firms. Constangy has offices in Memphis and Nashville, Tennessee. Kacy Coble Kacy advises clients on a wide range of employment related matters, including policies and procedures, employment contracts and severance agreements, noncompetition agreements, benefit plans and employee benefits. She advocates for preventative compliance and is also an employment defense litigator. She’s successfully defended clients in wage and hour collective actions, and singleplaintiff lawsuits and administrative charges arising under a variety of state and federal laws, such as the FLSA, FMLA, ADA, Title VII, USERRA, PDA, OSHA, and whistleblower statutes. Marcia McShane Marcia represents employers in all aspects of employment matters. Marcia's trial experience includes employment cases across Tennessee and the South. During her representation of small business owners, local manufacturers and national employers, she gained experience defending complex claims at the administrative, trial and appellate levels. Marcia also serves as an arbitrator for employmentrelated matters. Teresa Bult Teresa is a relationship partner for her corporate clients in the employment defense space, and a very practical "problem solver." She is constantly trying to figure out how to connect her clients to resources that can make their job easier, help them navigate through tricky employment and HR issues, as well as connecting them to the excellent attorneys across Constangy. Teresa has litigated cases and counseled clients on almost every conceivable employment-related issue. She has handled many employment litigation cases, including class/collective actions.
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Mallory Ricci Mallory's practice focuses on assisting employers in defense of employment matters in federal and state courts, and before administrative agencies. She represents a wide range of clients in a variety of employment matters, including alleged race, sex, age, and disability discrimination; and wrongful termination, wage and hour, and state law claims. Mallory believes her job provides a unique opportunity for lawyer and client to work together to try and prevent legal issues from arising through the use of training, effective and practical policies, and best investigation practices. Mary Dohner Smith Mary has experience involving every aspect of the employment relationship. She has been involved in complex litigation involving the Title VII, the ADEA, the ADA, the FLSA, USERRA, retaliatory discharge, and state law claims for breach of contract, fraud, negligence, and negligent and intentional infliction of emotional distress. As a former HR professional herself, Mary believes strongly in working closely with clients to resolve issues before they become lawsuits. Mary also enjoys speaking and providing training on relevant legal topics based on her experience. William Zan Blue Zan is one of the firm’s generalists, as well as a lead trial lawyer. He has tried many cases before juries, judges and administrative agencies in employment discrimination, union-management and employee benefits cases. He advises companies concerning structuring the relationships with workers and clients, whether as employment, leased employee or independent contractor arrangements to minimize legal risks and provide a positive work environment. Zan does extensive training programs for all levels of management concerning harassment, discrimination and union avoidance.
Cross, Gunter, Witherspoon & Galchus, P.C. (CGWG) – U.S. News has named CGWG a leading Labor and Employment law firm in the state of Arkansas for 2018. We are proud to have six attorneys selected as Best Lawyers, including two being named “Lawyer of the Year” in their practice areas. 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, and the development of employment policies and procedures. Preventive law strategies and exceptional educational programs are hallmarks of CGWG’s services.
The Kullman Firm has exclusively represented management in labor and employment matters since 1946, including matters relating to Title VII, the ADA, ADEA, FMLA, FLSA, OSHA, ERISA, COBRA, OFCCP, NLRA, WARN and other federal and state employment laws. The Firm represents clients in a wide range of industries, which provides it with a sound understanding of the general business practices of a vast array companies. With this experience, the Firm is able to provide proactive legal advice to help clients achieve their business goals while complying with applicable law. COLUMBUS, MS Peyton S. Irby, Jr. Mr. Irby has more than 35 years of experience assisting private and public employers in litigation and advising employers regarding compliance with regulatory requirements. Prior to entering private practice, he served as a trial and supervisory attorney with the NLRB.
M. Stephen Bingham’s practice includes products liability defense, commercial litigation, airport law, insurance defense, and construction 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 past president of the Arkansas Association of Defense Counsel, and former Commissioner of the Arkansas Commission on Child Abuse, Rape and Domestic Violence.
Taylor B. Smith Mr. Smith has more than 50 years of experience representing employers and is 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.
MOBILE, AL J. Bruce Cross practices in the areas of labor and employment defense law. He was named Lawyer of the Year in Little Rock in Labor Law – Management in 2014 and is listed as a Leading Lawyer in Labor and Employment in Chambers USA; Best Lawyers in America in Labor and Employment Law; US News and World Report Listing of Best Labor and Employment Lawyers; and the Top 50 Arkansas Mid-South Super Lawyers. He is a Fellow in the College of Labor and Employment Lawyers of the American Bar Association. 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 and arbitrator for the Court of Arbitration for Sport. She has been named one of the top 50 Arkansas Super Lawyers and Top 50 Women Mid-South Super Lawyers and is also a Fellow of the College of Labor and Employment Lawyers.
Elizabeth “Beth” Darby Rehm For over 23 years, Ms. Rehm has represented employers in all aspects of labor and employment law, including counseling employers on day-to-day decisions and litigating and advising employers on a variety of federal and state laws. She has been recognized as a Super Lawyer in Employment and Labor Law and Best Lawyers in America for several years. Paul D. Myrick Paul D. Myrick has represented employers in all areas of labor and employment law for over 30 years, including counseling, litigation in state and federal court, arbitration and administrative proceedings. Paul is an elected Fellow of the College of Labor and Employment Attorneys.
NEW ORLEANS Ernest R. Malone, Jr. Mr. Malone has represented management exclusively for 40 years in labor and employment law. He advises management in the employment dimensions of strategic planning, the development and administration of employment practices, policies, mergers, acquisitions, and divestitures, compliance with employment and anti-discrimination laws, union organizing and NLRB elections.
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At Bass, Berry & Sims, positive human relationships and interactions drive business success. Our Labor and Employment team works with public and private companies across a variety of industries, ranging from Fortune 500 companies to small locally owned businesses. As experienced litigators, the team defends employment cases and works with employers to avoid litigation on the front end through day-to-day counseling and HR training. Our attorneys are regularly involved in matters involving discrimination, retaliation, wrongful discharge, non-competes, FMLA, wage and hour, defamation, employee misclassification and a myriad of other traditional labor issues. 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. Tim has been recognized by Mid-South Super Lawyers for over ten years (2006-2017), along with Best Lawyers in America® and Chambers USA for many consecutive years. This recognition paired with his experience has earned him a national reputation for counseling employers through the maze of complex employee issues.
Bill Ozier of Bass, Berry & Sims has practiced for more than 40 years as a labor and employment attorney. Bill has been recognized by Mid-South Super Lawyers for over ten years (2006-2017) and earned national praise including 30 consecutive years of recognition in Best Lawyers in America® and top-tier rankings in Chambers USA for his "longstanding expertise in discrimination, harassment and retaliation disputes” (from Chambers USA 2017). 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.
Littler is the largest global employment and labor law practice, with more than 1,500 attorneys in over 75 offices worldwide. Littler represents management in all aspects of employment and labor law and serves as a single-source solution provider to the global employer community. Consistently recognized in the industry as a leading and innovative law practice, Littler has been litigating, mediating and negotiating some of the most influential employment law cases and labor contracts on record for over 75 years. Littler Global is the collective trade name for an international legal practice, the practicing member entities of which are separate and distinct professional firms. ATLANTA Rich Black is an experienced employment litigator who focuses on representing employers in complex employment litigation matters, including class and collective actions in the wage and hour, employment discrimination, and ERISA breach of fiduciary duty areas. Rich’s practice also focuses on advising employers with respect to compliance measures that reduce wage and hour disputes and other employment-related issues. Rich has advised and defended a wide range of employers in putative class and/or collective action matters, including employers in the retail, technology, financial services, computer services, communications, energy, pharmaceutical, construction, hospitality, travel, and transportation industries. Leslie Dent is an experienced trial lawyer who has successfully tried cases ranging from individual discrimination matters to complex wage and hour class actions. She represents employers in class and collective actions involving off-the-clock claims, challenges to exempt status and other wage-related claims, as well as Rule 23 class actions alleging discrimination claims. Leslie counsels and represents employers on a broad range of employment law issues, including discrimination, harassment, retaliation, and leave laws. She has extensive experience conducting and supervising internal investigations and defending whistleblower and retaliation claims, including Dodd Frank and False Claims Act claims.
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L. Traywick Duffie is Office Managing Shareholder of Littler’s Atlanta office and represents corporate clients in a broad range of employment and labor law, including employment litigation, union organizing, wage and hour and Employee Retirement Income Security Act matters. He has successfully defended numerous class and collective matters and countered union organizing campaigns in more than 40 states. Traywick has designed and implemented programs on compliance with and the avoidance of employment litigation and union organizing. He regularly speaks before companies, trade associations, business groups and universities. He represents clients in the healthcare, media, transportation and manufacturing industries. Marcia A. Ganz focuses her practice on representing management in federal and state employment and traditional labor matters. She also has extensive experience defending manufacturing and healthcare clients against complex class and collective action claims involving overtime, misclassification, and other wage-related issues. Additionally, Marcia regularly counsels and defends employers under investigation by the Equal Employment Opportunity Commission and state civil rights agencies.
Kathryn S. McConnell counsels, trains, and defends multinational and domestic companies on employment and traditional labor law matters. She regularly prepares and advises on non-competition, confidentiality, non-disclosure and other employment-related agreements, as well as the development of incentive and commission plans. Katy regularly defends employers in state and federal courts across the U.S. in lawsuits alleging discrimination, harassment, retaliation, wrongful discharge, emotional distress, FLSA and FMLA violations, and other employmentrelated claims. She is admitted as a solicitor in England and Wales. Amy M. Palesch represents and counsels employers in a broad range of employment matters arising under federal and state law. Amy concentrates her practice in employment litigation, defending employers against claims of workplace discrimination, harassment and retaliation and alleged wage and hour violations. Amy also offers clients litigation avoidance strategies and training on a range of employment issues. Lisa "Lee" A. Schreter is co-chair of the Wage and Hour Practice Group and former chairperson of Littler's Board of Directors. She represents employers in complex class and collective actions involving overtime and other wage-related claims and specializes in helping employers to develop forward-thinking compliance measures that reduce wage and hour disputes and other employment-related issues. She also represents and counsels management clients in connection with all other types of labor and employment matters arising under federal and state laws. Daniel E. Turner counsels and represents employers in all aspects of litigation in employment law issues, including discrimination, harassment, retaliation, wage and hour, and leaves of absence. Serving as lead counsel in more than 50 class and collective actions throughout the country, Dan has defended clients in over 25 states. Dan's extensive litigation practice also includes state law tort, contract, restrictive covenant claims, and various types of civil rights litigation.
THE POWER OF HR Connect ENGAGE IGNITE
SEPT. 19-21, 2018 | WILDERNESS AT THE SMOKIES
Early Bird Discount Available Go to tnshrm.org Registration open now!
KEYNOTE SPEAKERS
Jon Petz
Performance & Engagement Expert
Sue Collins
Sr. VP & Chief Human Resources Officer-T VA
Joel Bishop
Manager Speaking & Training OC Tanner
Antone Davis Fan Favorite Season 12 The Biggest Loser
LEXINGTON Jay Inman represents employers throughout Kentucky and Tennessee in a full range of labor and employment law matters arising under federal, state, and local laws. He regularly provides advice, counsel, and training for employers of all sizes, and he has assisted clients with administrative agency investigations and charges, as well as represented clients at various stages of litigation, including trial and, if necessary, appeal. Jay’s industries of emphasis include healthcare, higher education and manufacturing.
HOTEL INFORMATION
Sevierville Convention Center, Sevierville, TN $99 per night “SHRM/TN Conference” 877-325-9453
LaToi D. Mayo has advised, counselled and defended employers in regard to labor and employment matters for over 18 years. Most recently, LaToi has developed an expertise in enforcing employment related arbitration agreements, defending and managing wage and hour class actions and advising employers on state and federal wage and hour compliance issues. She also routinely assists employers with respect to diversity, discrimination, and leave issues. She works frequently with hospitality and service related groups, manufacturers, health care facilities, financial institutions and local city governments. LaToi routinely presents at seminars focusing on labor and employment topics for a variety of professional organizations in Kentucky. She also conducts training for managers, supervisors and the general workforce and provides labor and employment compliance counselling. www.HRProfessionalsMagazine.com
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Be Prepared for ICE, They May be at Your Door BY BRUCE E. BUCHANAN
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Immigration and Customs Enforcement (ICE) branches out from their concentration of ICE audits of California employers to the heartland of the United States, such as Tennessee, Arkansas, Mississippi, and Georgia, employers need to be ready to respond to ICE’s delivery of a Notice of Inspection (NOI)/ subpoena or a raid by ICE. Yes, I said raid as ICE performed its largest worksite raid in over 10 years in Bean Station, Tennessee in early April 2018. Why hire an Immigration Attorney before an NOI or ICE raid? One of the best ways to prepare for an I-9 inspection by ICE or an ICE raid is to hire an immigration attorney, who is experienced in worksite enforcement and immigration compliance issues. Even if you currently have an immigration attorney for employmentbased visas, there is a good chance that he or she does not handle worksite enforcement issues, such as ICE inspections or raids. Therefore, if you have an immigration attorney, reach out to him or her and inquire as to whether they are experienced in worksite enforcement matters. If so, great but if not, ask him or her to refer to an experienced immigration compliance/worksite enforcement attorney. If you don’t have an immigration attorney, ask your corporate counsel for assistance in finding one. You don’t want to be doing this after ICE shows up at your facility. Internal I-9 Audit The next step is for your immigration compliance attorney to conduct or supervise an internal I-9 audit. Through this audit, numerous errors will likely be found, most of which can be corrected so that if ICE inspects your I-9 forms, the errors will not be considered substantive, which you can be penalized for. And don’t kid yourself, your I-9 forms have many errors. In all my years of practice, I don’t recall any employer’s I-9 forms as impeccable, although on more than one occasion an employer has stated such before the I-9 audit began.
is not nearly enough time for a company that was not already prepared for it, especially if the company has a lot of employees or former employees. ICE can and does subpoena I-9 forms of former employees. One helpful hint on former employees’ I-9 forms is they may be purged at certain times but not after the subpoena is delivered. Getting an attorney involved as soon as an ICE inspection is launched can help an employer in several ways. As stated above, an attorney may help the company negotiate several days’ extension in responding to the subpoena/NOI. And/or the attorney may be able to get a reduction in the list of requested documents. Most importantly, an attorney can help the employer prepare to respond in a methodical and thoughtful way. Immigration Compliance Policy Being prepared for a Notice of Inspection/subpoena requires a company to have proper procedures in place upon hiring. The best way to have these procedures in place is with an Immigration Compliance Policy. Unless you have previously retained an immigration compliance/worksite enforcement attorney, it is extremely unlikely you have such a policy. One paragraph in your employee handbook does not equal an Immigration Compliance Policy. Under such a policy, every employee responsible for completing I-9 records on behalf of the company should be trained to do so. To many people, it is hard to tell the difference between a green card and a work authorization document issued to a recipient of DACA or TPS. Yet, one represents permanent work authorization that should never be reverified, and the other requires the employer to reverify upon the document’s expiration or you will be knowingly employing an undocumented worker.
Also, don’t be fooled by the fact that all your employees are U.S. citizens. You can still have substantive and technical I-9 errors. Another common comment from employers is I’m in great shape as we use E-Verify. Although E-Verify is excellent in establishing who is authorized to work, it cannot identify substantive or technical errors on the I-9 forms. One proven method to reduce substantive or technical errors on the I-9 forms is using electronic I-9 systems, such as Guardian by LawLogix, or the “smart” I-9 form, which was introduced by the USCIS in 2016.
If your company is the unfortunate target of an ICE raid, you will need not only an immigration compliance attorney but also a white collar criminal defense attorney as criminal indictments are likely.
Additionally, an internal I-9 audit may be able to identify undocumented workers. How so? Although employers must accept documents appearing genuine and relating to that individual, your immigration compliance attorney should be able to analyze your I-9 forms and accompanying documentation, if retained, and determine fraudulent I-9 forms and/ or documentation. Additionally, if no I-9 forms are completed and retained, such as the employer raided in Bean Station, it is a strong indication that the employer is blatantly violating immigration law and probably other laws.
I’d rather be safe than sorry – meaning prepare for an ICE audit/inspection or ICE raid, rather than react after ICE has chosen your company. If you want to know more about immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
Responding to an ICE Raid
Conclusion
Responding to an NOI The reason preparedness is so important is because of the short time period ICE gives employers to respond and supply the subpoenaed I-9 forms. The Notice of Inspection/ subpoena allows the company just three days to turn over their I-9 forms, along with a laundry list of other documents such as payroll information, tax statements and assorted corporate documents. Usually, your counsel will be able to get an extension of that three days but rarely will ICE extend the date by more than a week. However, even this timeframe 52
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Bruce E. Buchanan, Attorney Siskind Susser PC bbuchanan@visalaw.com www.visalaw.com
significant insight to. This book really does help us to understand how and why our brains work the way they do. A paradigm shift was my first reaction, but in all honesty, true leaders already have the skill sets needed to understand and lead others. Perhaps what is missing is the insight into how both work; and that is what this book does so well? But more than a description of the problem, “The Mind of the Leader” offers a radical, yet practical solution. To solve the leadership crisis, organizations need to put people at the center of their strategy. They need to develop managers and executives who lead with three core mental qualities: Mindfulness, Selflessness, and Compassion. By WILLIAM CARMICHAEL
As dangerous as this may be, I am going to make two broad assumptions. First, that you have attended a management workshop or seminar where a primary focus was on improving one’s soft skills; those character traits and interpersonal skills that characterize a person’s relationships with other people. And second, that you are somewhat familiar with Maslow’s Hierarchy of Needs; the psychological description of the five levels of needs that motivate human behavior with the first being physiological, followed by safety, then love and belonging, then one’s esteem and ultimately, self-actualization which defines one’s level of self-fulfillment and achievement. These two assumptions serve as a needed preface for this month’s book- The Mind of the Leader: How to Lead Yourself, Your People, and Your Organization for Extraordinary Results, by Rasmus Hougaard and Jacqueline Carter. Although Maslow is never mentioned in this book, Hougaard and Carter successfully explore the ‘self-actualization’ domain within business and organizational leadership by capturing a leader’s ability to connect to and communicate with his or her employees at the most critical emotional levels.
What will you learn from this book?
With real world inspirational examples from Marriott, Accenture, McKinsey & Company, LinkedIn, and many more, “The Mind of the Leader” shows how this new kind of leadership turns conventional leadership thinking upside down. It represents a radical redefinition of what it takes to be an effective leader – and a practical, hard-nosed solution to every organization’s engagement and execution problem.
Structure and Layout Presented in three parts, The Mind of the Leader brings the reader into each of these three levels of leadership. Part 1 is about understanding and leading yourself. Part 2 is about understanding and leading your people, while Part 3 is about understanding and leading your organization. Now these, as relevant and comprehensive as they sound, don’t convey the significant messages lying beneath each of its thirteen chapters.
The Mind of the Leader is about the essence of a leader understanding not just about themselves but of everyone around them. It is about being “in the now,” if I may use that phrase. It is about being able to lead yourself before you can lead others. It defines the concept of being a servant leader within today’s strategic leadership expectations so that needs are met, emotionally as well as organizationally. It is a most fascinating work that explains “why today’s organizations and leaders are not meeting employees’ basic human needs of finding meaning, purpose, connection, and genuine happiness in their work.” It is also based on extensive research that includes assessments of over 35,000 leaders as well as interviews with 250 C- level executives. It defines the problem of the what, where, when, why and how leaders are missing the mark when it comes to effectively relating to their workforce.
Readers will appreciate a very structured layout from one chapter to the next. Each presents factual stories from those researched that relate to the topic at hand as well as the credible evidence needed to support its position and recommendation. Quick tips and reflections are also a helpful aid at the end of each chapter. Most will find this a quick, informative narrative that can be easily read over a weekend.
In the book’s Introduction, the authors state conclusively they “have found that three mental qualities stand out as being foundational for leaders today: mindfulness (M), selflessness (S), and compassion (C)”; foundational skills they refer to as MSC leadership. Or another way of putting it; of better engaging employees at their intrinsic level. This engagement however, “begins inwardly, with your own mind, and then projects outward to your people and organization.” It also takes you on a very informative journey by helping leaders better understand the three levels of leadership: self, people, and organizational. Leadership “mind training,” if you will. An example of this early in the book deals with employee engagement; that emotional commitment the employee has to the organization and its goals. And in all honesty, this means that engaged employees actually care about their work and their company. They don’t just work for a paycheck, or just for the next promotion but work on behalf of the organization’s goals.
Rasmus Hougaard is the founder and Managing Director of Potential Project, the global leading provider of leadership and organizational effectiveness solutions based on training the mind. He has practiced and taught mindfulness for more than two decades.
This “mind training,” as I referred earlier, has a very practical purpose and the authors devote a great deal of time and effort into the practical aspects of it. Just to mention one, although there are many, how a leader cares for her body and mind away from the office is just as important as how she cares for the more strategic elements of her job. After all, a well-rested boss is infinitely more preferred than one who is sleep deprived. How to balance one’s emotions, discovering one’s purpose, or changing one’s mental environment are but a few of the areas the authors bring
About the authors:
Jacqueline Carter is an International Partner and North American Director for Potential Project. She has over twenty years of experience working with organizations around the globe to enhance effectiveness and improve performance.
William Carmichael, Ed.D Professor | Strayer University william.carmichael@strayer.edu www.strayer.edu www.HRProfessionalsMagazine.com
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Highlights from the TPMA Annual Conference
Modeling Professionalism
Modeling Professionalism - Building the Best HR for Tomorrow April 23-27, 2018 in Franklin, TN
1 2018 TPMA Board of Directors – Back row (L to R) Paula Taylor, Knox County Sheriff’s Merit System (Treasurer), Alan Jones, Knoxville Airport Authority (Board Members), Peter Voss, City of Hendersonville (Past President), Richard Stokes, UT-MTAS (Executive Director). Front row (L to R) Ora Applewhite, Shelby County Government (Secretary), Steve Wilensky, City of Germantown (Board Members), Cheryl LewisSmith, City of LaVergne (President Elect), Felecia Boyd, City of Memphis, Retired (President), Rebecca Hunter, TN Dept. of Human Resources (Board Member), Kristi Ward, City of Sevierville (Board Members)
Building the Best HR for Tomorrow
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2 Richard Stokes, M.S., IPMA-CP, PHR, Executive Director of the TN Chapter IPMA-HR; presented the Richard L. Stokes Personnel Achievement Award to Dr. Trish Holliday, Ed.D., SHRM-SCP, SPHR. Dr. Holliday is Chief Learning Officer & Assistant Commissioner of the Tennessee Department of Human Resources. The award is in recognition of an outstanding HR career. 3 Felicia Boyd, 2018 TPMA President, welcomed attendees. 4 Fred Bissinger, Regional Manager with Wimberly Lawson, presented “Sexual Harassment in Today’s Workplace.” 5 Debra Finney, EEOC Program Analyst and Outreach Coordinater, discussed “What You Should Know About EEOC and the Enforcement Protections for LGBTQ!”
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TPMA Annual Conference
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6 Graduates of the Three Pillars Certification 7 Lesley Farmer, Deputy Commissioner & General Counsel, and Dr. Trish Holliday, Chief Learning Officer & Assistant Commissioner of the Tennessee Department of Human Resources, co-presented “Embracing New Paradigms with Innovative Performance rd th Management Strategies.” 8 Janet Southards, IPMA-SCP, Human Resources Director and Risk Management for the City of Mt. 700 Cool Springs Blvd., Juliet, was the winner of $100 off on the HR ProfesFranklin, TN 37067 sionals Magazine 1st Annual HR Executive Conference On-line booking: Click Here Cruise to the Bahamas October 22-26. 9 Jeff Francis, Assistant Administrator, Bureau of Workers’ Compen$151 per night sation for the State of Tennessee, presented “Improving Your Workers’ Comp Trust Culture.” 10 Keith McGee, McGee Group, spoke on “Modeling Professionalism: 8 9 10 Building the Best HR for Tomorrow.”
April 23 – 27 , 2018 Marriott Cool Springs
Conference Registration – https:\\tpma27.wildapricot.org/event-2691259
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THE WORLD’S LEADING INDEPENDENT HR TECHNOLOGY EVENT SEPTEMBER 11 - 14, 2018 THE VENETIAN® LAS VEGAS F E AT U R I N G
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