Volume 11 : Issue 3
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A New Presidency –
What to Expect
COVID-19 – Continued Implications
Rising Stars
in Labor & Employment Law
Damona Barnes,
SHRM-SCP, SPHR
President,
SHRM Workplace Policy Conference April 19-21
New Orleans SHRM
2021
Employee Handbook Update
Keeping up with changing laws is a full-time job, and you’ve already got one. EMPLOYERS AND LAWYERS, WORKING TOGETHER Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. The firm has more than 900 lawyers located in 53 offices across the United States and in Europe, Canada, and Mexico.
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Features
4 note from the editor
Editor Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher
The Thompson HR Firm, LLC Art Direction
Park Avenue Design Contributing Writers J. Austin Baker Matthew R. Courtner Brad Federman Howard B. Jackson Rebecca Jarbo David Jones Carley McRee Katie O’Neill Mary Leigh Pirtle Nela Richardson Mark Trocinski Jim Trujillo Christoper Watler Sonya Weathers Joshua B. Zugish
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. ©2021 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.
6 Profile Damona Barnes, SHRM-SCP, SPHR 7 SHRM Workplace Policy Conference 17 Congratulations to These Newly Certified HR Professionals! 20 Main Street Macro: Inflation, the Remix
Employee Benefits 12 Guide to Benefits Administration: Implementing and Managing the Right “System”
13 Benefits Enrollment – Virtual HR Support 14 The Biden Administration and Employee Health Benefits 15 Navigating Federal & State Benefits 25 Most Brokers Say They Have All the Answers 28 Limiting Your Potential Fiduciary Liability 29 Webinar – DOL Dojo: Sharpening Your Fiduciary Skillset April 13
Employment Law 10 Immigration Changes Heat Up
16 Employee Handbook Updates for 2021 18 Lessons Learned from COVID-19 and Continued Implications 26 2020 Rewind and Pending U.S. Supreme Court Cases Impacting Employment Law in 2021 27 Littler Charlotte Webinar - The Biden Administration: New and Anticipated Policy Changes and What They Mean to Employers 38 A New Presidency – What to Expect
Rising Stars in Labor and Employment Law 31 Ogletree Deakins 32 Fisher Phillips 33 Bass Berry Sims 34 Littler Rainey Kizer
Talent Management 22 The Future of Inclusive Hiring is Here! 23 Getting Talent Back to Work 24 COVID-19: Avoiding “Summit Fever” 36 Leveling the Playing Field 40 COVID-19’s Birthday: 5 Ways HR Pros Should be Dubiously Optimistic 42 How DailyPay’s CYCLE Technology Reduced Our Off-Cycle Payment Burdens 44 How Do Your Core Values Stack Up? 47 Data Facts Small Business Portal
Top Educational Programs for HR Professionals 5 University of Illinois School of Labor & Employment Relations 8 Save the Date for our March Webinars 35 Emory | Law – Legal Training for HR Professionals 39 Online SHRM Certification Exam Prep Class April 2021 41 The Leadership Green Room Essential Competencies for All Levels 48 WGU Tennessee $10,000 Scholarship Opportunity
Industry News 45 11th Annual Tennessee SHRM Strategic Leadership Conference April 30 in Nashville 46 SHRM-Memphis Hybrid Legal Conference April 20 April Issue features Talent Management and Recruiting Plus Updates on New Employment Legislation and Employee Benefits And the Latest on HR Management and the Pandemic Deadline to reserve space March 15 www.HRProfessionalsMagazine.com
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a note from the editor
We
are excited to present the Rising Stars in Labor
If you are not currently certified, I want to personally invite you to
and Employment Law in our March issue. These
join one of our upcoming HRCI or SHRM certification classes. I am
outstanding young attorneys are under 40 and
extremely proud of our online classes. The pass rate for our most
have been practicing in their respective firms for
recent SHRM class was 75%, and the pass rate for our most recent
10 years or less. They have received recognition
HRCI class was 80%. It is so rewarding to see these outstanding HR
from Super Lawyers or Chambers USA or have been recognized for
professionals receive their certifications! The difference in our certi-
outstanding contributions to their firm during the pandemic. Please
fication classes is that I stay with you until you pass. Our classes are
take the time to congratulate those you know who have made this prestigious list. Also watch your email for our Rising Stars e-book later this month!
also guaranteed – if you do not pass you may take our next class at no additional charge. Our next HRCI | PHR | SPHR class is in March, and our next SHRM-CP | SHRM-SCP class begins in April. Go to our website at www.hrprofessionalsmagazine to register.
We are also honored to have Damona Barnes, SHRM-SCP, SPHR on our cover. Damona is President of the New Orleans SHRM Chapter (NOLA SHRM.) NOLA is one of the most recent additions to our distribution footprint in the Southeast. You will love reading about her exciting career in HR and her voluntary service to SHRM on Page 6. She has served in many roles in the Chapter. Damona was instru-
Be sure to check out our exciting webinars for March on Page 8-9. We have six webinars in March with opportunities to earn 12 recertification credits! HRCI business credita and SHRM credits are pending. My personal complimentary webinar sponsored by Data Facts will be March 31. Watch your email for your invitation to “Interpersonal HR Competencies.”
mental in the Chapter’s transition to virtual programing during the pandemic, successfully recruiting new board members and laying out the groundwork for a completely virtual voting and installation process. You will also enjoy reading about her impressive career in
Get Certified in 2021!
Human Resource Management. We wish her continued success in her role as Human Resources Director at Warren Easton High School.
Scenes from SHRM17 in New Orleans.
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Our experienced faculty and industry experts hold weekly virtual class sessions, where average salary students’ professional experiences provide deeper entry into course increase after topics. The MHRIR curriculum completing is designed to build business acumen and a strong foundation the program. in human resources and labor relations. Annetta Allison, Human Resources Coordinator at Illinois Public Media, designed a change management plan to align her organization’s structure with a new strategic plan, “I used [the final project] as a tool to gain approval from our executive committee on how I would execute the reorganization. The Executive Director said that my preparation helped make their decision an easy one.” In each course, students are encouraged to apply their coursework to their careers. Students benefit from peer networking in selective cohorts – our students have an average of eight years of experience
in HR and related business functions. “When I heard that the program was being offered online, I was excited for the opportunity to experience the program virtually, expand my network of HR professionals … and enhance my knowledge of Labor and Employment Relations,” said Annette Gorzelany, online alumna who was promoted to Labor Relations Specialist at The Boeing Company. Each cohort includes a diverse and experienced group of working professionals from long-standing corporate partners like BP, PepsiCo, and Cargill, in addition to professionals in non-profit, consulting, and higher education institutions. Beyond the classroom, our students are building their professional networks and participating in an active community of practitioners. These networking opportunities support professional advancement while in the are promoted program. Over 25% of our first into new roles cohort received new positions while in the program. within six months
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Take the next step at GO.ILLINOIS.EDU/LERONLINE www.HRProfessionalsMagazine.com
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on the cover
Damona
BARNES
Damona Barnes, SHRM-SCP, SPHR President of NOLA SHRM Damona Barnes joined her first Society for Human Resources Management Chapter, SHRM at LSU, in 2007 during her undergraduate studies at Louisiana State University. Her volunteer career with SHRM started as the Vice President of Public Relations. She graduated from LSU in 2009, with a Bachelor of Science degree in Human Resources Education. She obtained her Professional in Human Resources certification (PHR) in 2010 and begun working as a Human Resources Specialist at Essential Federal Credit Union in Plaquemine, LA. Her volunteer service continued with the Greater Baton Rouge Society for Human Resources Management (GBRSHRM) as a member of the Workforce Readiness committee. She also served the Association for Talent Development (ATD) Baton Rouge Chapter as the Vice President of Professional Development, Vice President of Membership, President Elect and lastly President in 2015. Damona’s family relocated to New Orleans in the winter of 2016. She joined the New Orleans Louisiana Society for Human Resources Management (NOLA SHRM) chapter and began networking at local chapter events. Since joining the chapter, she has served as Certification Director, President Elect and currently as President. In 2020 Damona was influential in the chapter’s immediate transition to virtual programming, successfully recruiting new board members for her administration, laying out the groundwork for a completely virtual voting and installation process. She feels having the opportunity to serve over 600 members with their need for knowledge during the initial days of the coronavirus pandemic was very rewarding. In her current role as Human Resources Director at Warren Easton Charter High School, she leads all areas of HR, including Title IX, employee relations, benefits administration, recruitment, and retention efforts. Prior to her current role, she served as a Human Resources Consultant at HR NOLA where she supported small businesses with their various HR needs. Damona’s involvement in SHRM at each level of her professional career has provided her with the continuing education, mentorship and resources necessary to be successful in the field of Human Resource Management.
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Learn how to influence federal and state laws and regulations that impact your employees and workplace—and gain the skills and knowledge you need to be an even more strategic HR leader.
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March 9 at 2 PM
HR Guide to Benefits Administration: Selecting the Right System
Education in Public Benefits Can Help Employer & Employee
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Speaker J. Austin Baker Sponsored by HRO Partners
Speakers Frank Cardenas and Anita Blackmer Sponsored by Fedlogic
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Interpersonal HR Competencies
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Jenifer Hill
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9
Immigration Changes Heat Up By DAVID JONES and MARK TROCINSKI
The early part of 2021 has shown that change is happening in the world of immigration. Following the presidential election of 2020, President Biden is looking to implement the changes on which he campaigned. However, with the nearly even split of the legislative branch of government, Biden will not be able to implement legislation without agreement from the Republican side of the aisle. If that cannot be found, action on immigration may be limited to executive orders.
U.S. Citizenship Act of 2021 The Biden Administration has put forth the U.S. Citizenship Act of 2021 as a mission statement on its immigration agenda. Due to the 50-50 split in the Senate and nearly equal split in the House of Representatives, it will likely be difficult to pass a comprehensive immigration reform bill, at least early on. Nevertheless, the Biden administration is pushing forth with several areas of potential action. H-1B LOTTERY
during the presidential campaign, it is not clear whether the wage-based rule will be implemented, revised or discarded. While that process is being resolved, USCIS also announced the H-1B lottery for THIS year would proceed as it had previously starting on March 9 and ending on March 25 at noon eastern. STEM DOCTORAL CANDIDATES
Although the number of H-1B visas was not changed in the new bill, it is likely that the new bill will allow for a higher number of individuals to enter the country with work authorization. The bill would make PhD STEM graduates exempt from the numerical caps of the H-1B visas. This change would have the effect of allowing all STEM PhDs legal entry into the United States, while not having to compete in a lottery with individuals holding lower-level degrees. This change would create an incentive for top STEM talent to pursue a PhD in the United States and also create an increase in the supply of top STEM talent in the United States, addressing the shortfall in the most in-demand form of labor in the market.
Falling into the category of “the more things change, the more they stay the same,” the H-1B lottery will be held in the same manner that it was held last year. The H-1B lottery is the annual event in which workers with specialized skills put their names into a drawing in the hopes of gaining the right to work in the U.S. Entrance costs only a $10 fee and the submission of some basic information, but the number of H-1B visas are limited by law to 65,000, with an additional 20,000 visas allocated to applicants holding a master’s degree or higher. The randomly-selected winners are granted the opportunity to apply for a visa to work in the United States for a period of up to three years, with the potential for one additional three-year extension period.
PATHWAY TO CITIZENSHIP
The process had been subject to changes which would have based the allocation of the visas on the wage level of the applicants with higherearning applicants getting priority over lower-earning applicants. In early February 2021, USCIS announced that the rules instituting the wage-based system would need additional study and made them inactive until at least next year. The U.S. Citizenship Act of 2021 addresses the wage-based rule by requiring that after USCIS completes a study of the idea, it must draft a new rule. Although President Biden did discuss it
GREEN CARD BACK LOG
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The piece of the U.S. Citizenship Act of 2021 getting the most attention is probably the “pathway to citizenship.” Most significantly, the bill would cut the time required to acquire U.S. citizenship from 13 years (or more) to eight years for aliens who were present in the United States prior to January 1, 2021. Additionally, the bill provides Temporary Protected Status to aliens who came to the U.S. as children and certain other groups. These individuals would be eligible for legal permanent resident status immediately after meeting requirements and passing background checks.
Over the past thirty years, approximately 200,000 legal permanent resident cards (“green cards”) have been allocated but not issued. The bill seeks to “re-capture” those. Then the re-captured green cards will be re-distributed to individuals currently waiting for green cards to become available in the family-based or employment-based categories. This change is designed to reduce the years or decades-long backlog for some green card applicants.
DIVERSITY VISA
The bill would increase the number of diversity visas from its current limit of 55,000 to a new limit of 80,000 per year. The diversity visa program creates a lottery for immigrant visas which can be entered only by applicants from certain nations which had been under represented in the US immigration system in the preceding 12 years. If selected, the applicant will be eligible to live and work in the United States and receive legal permanent residence status. Unlike other visa types, the diversity visa applicants need not show a family or business tie to the U.S. prior to entering the country. TERMINOLOGY
The bill will remove the word “alien” from all U.S. immigration statutes and regulations. In its place the word “noncitizen” will be used to describe any “person not a citizen or national of the United States.”
admission and resettlement and the Migrant Protection Protocols. There are also executive orders that established a task force to reunite families that had been separated at the US-Mexican border and several orders related to travel protocols amidst the Covid-19 pandemic. At the same time, some administrative agencies have already taken action in the new administration. As the heads of cabinet departments are approved and sworn, look for more action to be done through these mechanisms. STAND ALONE BILL
Although not included in President Biden’s bill, another bill with the potential to be made into law was submitted by Representative Castro of Texas. That bill would offer permanent resident status to alien workers who have worked front-line jobs during the Covid-19 pandemic and the so-called “Dreamers.” The bill would affect approximately five million aliens.
PER COUNTRY VISA CAPS
The bill would lift numerical caps placed on individual countries for certain types of visas. This would primarily benefit applicants from countries with large numbers of applicants including India, China and the Philippines.
David Jones, Regional Managing Partner and Immigration Partner Memphis Fisher Phillips djones@fisherphillips.com www.fisherphillips.com
Other Things to Watch NON-LEGISLATIVE ACTION
The Biden Administration has already issued several executive orders on immigration matters. Among these were reversing actions on refugee
Mark Trocinski, Immigration Attorney
Memphis Fisher Phillips mtrocinski@fisherphillips.com www.fisherphillips.com
Innovative, Nimble & Always Evolving Fisher Phillips is a national labor and employment law firm representing employers in labor, employment, civil rights, employee benefits, and immigration matters. Our lawyers are joined by more than 400 attorneys in 36 offices and we are continuing to expand. Our range of experience enables us to bring efficient and practical solutions to today’s labor and employment problems. fisherphillips.com 1715 Aaron Brenner Drive, Suite 312 | Renaissance Center | Memphis, Tennessee 38120 Atlanta Baltimore Boston Charlotte Chicago Cleveland Columbia Columbus Dallas Denver Detroit Fort Lauderdale Gulfport Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis Nashville New Jersey New Orleans New York Orlando Philadelphia Phoenix Pittsburgh Portland Sacramento San Diego San Francisco Seattle Tampa Washington, DC Metro Woodland Hills
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GUIDE TO BENEFITS ADMINISTRATION:
Implementing and Managing the Right “System”
By AUSTIN BAKER
BENEFITS ADMINISTRATION technology and tools can be one of the least understood and most complex areas of your HR department. Many HRIS/Payroll providers struggle with this area of their technology, and many choose to partner with specialty Benefits Administration vendors because of this complexity. Most other technology applications used by HR departments do not communicate with nearly as many systems, nor do they have to manage and maintain the same depth or volume of sensitive records and personal employee data. All too often this area represents one of if not the greatest pain in an HR department, and can generate heated calls from employees when not operating properly or efficiently.
Keys to Success Success in Benefits Administration requires HR leaders to focus on these core elements: • Select and architect a system that serves the most imperative organizational needs. • Implement “systems” • Pursue process improvements. • Maintain and manage a culture of reinforcement and training. • Innovate & communicate across all channels.
Implementation of “Systems” How do you define a “system?” If you are like many individuals out there, you likely think of the technology aspect of a system first. But a system is more than a single technology or platform or software program; a truly comprehensive system is inclusive of processes, data, workflows, approval hierarchy, and auditing, to name a few. The demands of your organization should be reflected in the size and complexity of your systems. When implementing any new system, the learning curve can be steep and will likely have some pain and complications along the way. Learning from those challenges and working collaboratively with your vendor partners, while also improving and challenging existing internal processes, is the key to success in implementation. Having resources and experienced partners who are specialized experts in the areas where you need the most support can smooth the process of evolving your Benefits Administration system. The systems that you create can reduce internal burdens to avoid stifled growth while boosting employee satisfaction and retention. Building a cross-functional and collaborative committee of internal and external resources and partners will allow your organization to pull the best information and performance from the people most equipped for each nuanced element of your specific Benefits Administration system. Find the people and partners most qualified to present strategic opportunities and solutions that will improve the system. Involve your outside vendors in these discussions and challenge them to bring you models to help you do your best work.
Process Improvement Technology alone without process improvement is a waste of money, in addition to depleting invaluable resources like time and employee performance. If you and your organization are not committed to changing the way you do business, you should not adopt new technology. And 12
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investing in new technology without the proper partners to utilize and maximize the tools will only create frustration and increase workloads. Creating an incomplete system fails to solve the existing organizational pains and creates new ones. Having a commitment to change management from the top of the organization is a must. Consider these leadership commitments to help you with process improvement: • Challenge each person in your organization to map out and document processes to do the work. • Set your team up with the mindset that at any point someone on the team may need to cover for them, or that they may have an opportunity to hire their replacement as you grow. • Imagine you are hiring a person whose role is already defined by a well-developed and documented process; how does this change how you do your work? Would you want to walk into your organization’s existing process as a new team member? Would you succeed or fail?
User Adoption Training & Reinforcement I have seen many organizations create a budget for implementing technology that fails to include room for the necessary user-adoption training. Self-paced training models can serve you well, but the organization must own the success or failure of this investment. As a leader we must set the expectations; owning the problems in your HR Benefits Administration system and hunting for solutions. We must be inclusive of process improvement and future training that demonstrates consideration for the ongoing organizational challenges, creates a roadmap for more effective HR services, and embodies a commitment to a better way forward. As leaders, we are by default the chief designers of the processes and roadmaps we choose to follow; responsibility for success or failure also lies by default accordingly. Even the wrong piece of technology, when supported by great processes and training, performs better than a bright shiny new piece of technology that no one is using correctly or fully.
Realigning & Right-Sizing the Solution Benefits Administration is complex and evolving. Implementing the system, setting up the processes, and training your team are not one-time events. Systems need to be tested. Bills need to be audited. File feeds need to be reviewed. Accountability needs to be clear as well. Specific task assignments and performance accountability will help ensure clarity of responsibilities. Realignment of processes and tweaking of systems over time is a part of every process. And finally, if the tools and technology you have are not being used or not fully working for what your organization needs and wants, then be willing to make the hard decisions to invest in better people, technology, processes or vendors. Your organization and your Benefits Adminis-tration system, including the technology you select in addition to the processes and partners to choose for implementation and management, all require cohesive rigor and systematic accountability in order to perform. It is up to you as a leader to drive your “systems” to success. HRO Partners can help evaluate and streamline your HR benefits admin-istration services; for a demo of our services and to find out more, visit hro-partners.com or call 1-866-822-0123.
Austin Baker, President, HRO Partners, LLC.
abaker@hro-partners.com http://www.linkedin.com/in/jaustinbaker http://twitter.com/jaustinbaker
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Photo credit: clickondetroit.com
E
Change is in the Air The Biden Administration and Employee Health Benefits
Every new Presidential Administration will usher in a host
Reduce the Eligibility Age for Medicare:
of changes. Moving from President Trump to President
During the campaign the President proposed reducing the eligibility age for Medicare from 65 to 60. Analysts estimate that about 13.9 million people would leave employer sponsored plans and enroll in Medicare. That is just under 10% of those covered by employer health plans. Since older workers tend to be more expensive, the savings to employer sponsored plans could be as high as 15% annually.
Biden may represent the broadest philosophical shift in decades reflecting sweeping differences in social policy, immigration, taxes and the role of government. Change is in the air everywhere. How might the evolving politics in Washington be felt in how health benefits are offered to employees? And what might employer sponsored benefit plans look like in the next few years?
During the campaign President made it clear that he will look for ways to build on the success of the Affordable Care Act. Let’s take a look at Biden’s broadest ambitions for American healthcare and look at how that might influence or change employer sponsored health plans.
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To capitalize on that opportunity, employer group health plans will look for ways to help their employees make the transition smoothly and confidently. “We know from experience that employees are reluctant to leave employer sponsored health plans even when it will save them money, said Frank Cardenas, CEO of FEDlogic. We work with employees to sort through their options, understand Medicare, help in the filing of the benefits, educate them on supplemental insurance, and help plan for coverage of their dependents. Then we give them the information and empower them to decide. Even our generation of baby boomers currently requiring this guidance, with or without future shifts in policy,
have benefited from their employers making considerable strides to provide education and advocacy for their workforces.”
Offer a Public Option as Part of Insurance Exchanges: When the Obama Administration formulated plans for insurance exchanges under the ACA, it envisioned offering a governmentally sponsored insurance plan that came to be known as a public option that could supplement the plans offered by private insurers. That provision did not survive but President Biden is expected to revive it. Combined with a recent provision that allows employers to provide pre-tax lump sum payments to employees, the public option might be available much more broadly and include workers from various employers. Even as of recently, the Biden Administration re-opened Affordable Care Act’s insurance marketplaces for additional three months (Feb. 15 to May 15) for those affected by the pandemic. Employers, yet again, will be faced with the challenge to offer educational support to explore all existing and potential new options under this administration.
Expand Medicaid:
offering a premium-free public option through the insurance exchanges for individuals eligible for Medicaid expansion benefits but living in states who have chosen not to expand. A premiumfree public option would, on its face have only indirect effect on employer sponsored plans. But if the premium-free option was made available, many low wage workers paying monthly premiums for their employer sponsored plan would realize significant savings and drop their employer coverage in favor of the public option. Imagine a couple working in low wage jobs who pay a monthly premium for family coverage of $500. Their combined wages may well be within guidelines for a premium-free option on the insurance exchange. "Helping those workers understand these options and the benefit they could realize by dropping their employer plan and enrolling in the public option, would benefit the employee and help the employer reduce their cost of health coverage. Ultimately our job is to provide the education and advocacy and let the family decide, but the majority of the time it’s a win-win", said Frank Cardenas. ___________________________________________________ Sources – Herzlinger and Richmond Harvard Business Review 12/9/2020
Fourteen states have yet to expand Medicaid eligibility to the working poor. On the campaign trail, President Biden talked about
Kaiser Family Foundation – Medicaid Expansion States Kaiser Family Foundation Employer Health Benefits Survey 2019
NAVIGATING FEDERAL & STATE BENEFITS
What’s good for your employees is good for you.
Best in class employers care about the wellbeing of their workforce and know that doing the right thing can be good for all. FEDlogic reduces healthcare costs for you and your employees by carefully navigating complex federal and state programs.
Expert and compassionate support for families includes: • Medicare Enrollment • Social Security Retirement • Social Security Disability • Medicaid, Marketplace & COBRA Navigation • Unemployment Benefits
Talk with us to find out how we can help your employees and your business.
Learn more at FEDLogicGroup.com Contact Anita Blackmer anita@fedlogicgroup.com www.HRProfessionalsMagazine.com
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Employee Handbook
Updates for 2021 By HOWARD B. JACKSON
Perhaps some of you put updating the Employee Handbook on your list of New Year’s resolutions. Some consider handling that task about as much fun as the other items on their resolution list. Be that as it may, the Handbook should be a good communication tool. It should be accurate and up to date. Like many tools it requires maintenance and repair from time to time. With that in mind, below are some topics that may deserve attention in your Handbook this year. Leave Laws and Policies. Congress passed the Families First Coronavirus Response Act (FFCRA) that provided leave for various COVID-related reasons. That law is currently set to expire at the end of March. Given its temporary nature you may not want to have a Handbook policy on that subject. But stay tuned. There may be new legislature ahead related to this and other leave practices. If you are a covered employer under the Family and Medical Leave Act (FMLA) it would be well to revisit that policy. Many older policies are not compliant with the latest regulations. In addition, many states and even municipalities have leave laws. For example, several states have laws that provide leave to victims of domestic violence for matters such as visits with counsel or court dates. Some states have laws that apply to volunteer firefighters and other part-time public servants. In short, be sure that your policies are appropriate to all jurisdictions where you have employees. Remote Work Arrangements. This practice has become so common that it would be wise for most employers to have some guidance on the topic in their Handbook. There is not a “one size fits all” version of such a policy. The practice and approach can vary significantly depending on the nature of the workplace and the jobs in question. It would be reasonable to provide some information in the Handbook that in a general fashion addresses the organization’s stance toward remote work. Some employers may encourage it strongly. Others may be far less enthusiastic, and both for good reason. The policy may also let employees know how they can broach the subject if it is of interest. It’s always good for employees to understand how to communicate about their questions. 16
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Although this is not a topic for discussion in the Handbook, employers should be aware that the U.S. Equal Employment Opportunity Commission (EEOC) and courts sometimes consider working remotely as a reasonable accommodation that an employer is obligated to provide under the Americans With Disabilities Act (ADA). As with all things ADA, this decision depends on the specific facts of the situation. This is simply a reminder that if an employee requests to work from home because of a limiting condition, the employer cannot dismiss the request out of hand.
Health and Safety. This is an area that can often stand improvement in Handbooks generally. This year has brought even more reason to do so. In particular, President Biden has called upon the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to generate standards for safety in view of COVID-19. In a January 21, 2021 Executive Order Biden ordered OSHA to issue revised guidance on COVID-19 safety, to determine whether temporary mandates such as use of masks are necessary, and to focus enforcement efforts on circumstances where large numbers of employees are at-risk or where an environment of retaliation is evident. In addition to COVID-focused efforts the President has indicated a desire to double the number of OSHA investigators. In short, expect greater regulation and greater enforcement efforts.
Drug Testing. This is a developing area of the law. In many states that have de-criminalized marijuana, employers may still test for it and exclude applicants from employment. Or they may discharge an employee based on a positive test result. But not everywhere. For example, in New Jersey medical marijuana users are protected - a simple positive is not sufficient for discharge. An employee or applicant who tests positive must be given an opportunity to provide a legitimate medical explanation for the result. In Nevada a law became effective in 2020 that, with some exceptions such as for safety-sensitive positions, bars employers from testing applicants for marijuana. This is another area where the employer must know the rules of the road in the states and municipalities where it has employees.
Harassment and Discrimination. As we all know last year the U.S. Supreme Court ruled that Title VII’s prohibition against discrimination on the basis of sex includes discrimination on the basis of sexual orientation or identity. Many older Handbook policies do not make that clear. In addition, concerns over treatment based on race and sex in particular are very much in the public eye. A wise employer will not only ensure that its policies properly address those subjects but further provide employees with simple and clear directions regarding how to raise an issue. It is difficult to overstate the importance, and the value, of having a simple reporting procedure and effective training on how to use it. Employers that communicate their policies well and that respond promptly and reasonably when issues arise create a more productive and enjoyable environment. That inevitably leads to positive results such as greater production, less turnover and an overall healthier culture. Retaliation and Whistleblower. This is an area of increasing concern for employers. And that is even more true for certain types of regulated industries. Consider whether the industry you are in weighs in favor of having a separate policy in the Handbook that informs employees of the industry-specific requirements, who to contact in the organization as a resource for any questions, and how to communicate any related concerns that arise. It is also critical to note in other places that retaliation against an employee for raising a legal concern is prohibited. This prohibition applies for claims of discrimination, for taking protected leave, for
requesting reasonable accommodation, and for many other actions an employee may take. It is well to review the Handbook with an eye toward ensuring that retaliation concerns are properly addressed. Protected Activity Under the National Labor Relations Act (NLRA). The NLRA has long protected employees who engage in concerted activity for mutual aid and protection regarding their wages, hours and working conditions. The interpretation of what language in a policy or handbook has an improper “chilling effect” on employees’ exercise of such rights changes over time depending on who is in charge at the National Labor Relations Board (“the Board”). Expect the pendulum at the Board to swing back toward closer scrutiny of Handbook policies, such as those requiring respectful treatment, those that relate to social media activity, and those that relate to employee communications with third parties. Conclusion. This year and next are likely to see changes in labor and employment laws as the new administration implements new leaders and revises various laws and policies. Revising the Handbook is one way to help your management team and workforce keep up. Finding other ways to educate and inform your team will also be critical during these times. We encourage you to select, plan for and use other communication tools for the benefit of your organization.
Howard B. Jackson, Member
Wimberly Lawson Wright Daves & Jones PLLC Knoxville, Tennessee office hjackson@wimberlylawson.com
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17
Lessons Learned from COVID-19 and Continued Implications By MARY LEIGH PIRTLE
Looking back on 2020, nearly all employers were forced to embrace remote work as the result of the COVID-19 pandemic to comply with state and local lockdowns and to slow and reduce the transmission of the virus. This was a global work-from-home experiment no one signed up for, and as we now know, most businesses were ill-prepared to handle it. However, with nearly a full year of remote work underfoot, companies have either successfully transitioned their business operations to sustain this work-from-home model or have adjusted the work environment to safely resume on-site operations, and have learned some key lessons along the way.
Employee Leave One lesson employers of both teleworking and on-site essential employees learned very quickly was that most paid time off (PTO) plans were insufficient to address and manage their employees’ need for pandemicrelated leave. Employee needs were not only complicated by illness and school closings, but also by their employer’s policy, consistent with CDC guidance requiring employees exposed to COVID-19 to remain out of the workplace for 14- or 21-day periods. Recognizing this paid-leave deficit, the federal government jumped to provide these paid leave benefits to employees through the enactment of the Families First Coronavirus Response Act (FFCRA), which provided certain employees with 80 hours of paid leave benefits to care for themselves or family members recovering from or quarantined with the virus, among other reasons. FFCRA also provided employees with 10 weeks of paid leave benefits to care for children whose schools or places of care had closed during 2020. However, the FFCRA’s paid leave benefits for employees expired on December 31, 2020, even though the pandemic rages on, forcing employers to take a hard look at their employees’ paid-leave benefits (or lack thereof ). One of the stand-out issues for paid leave policies during 2020 centered around the flexibility to use paid leave benefits, i.e., whether an employee had a qualifying reason to use their accrued time off. Companies were forced to ask themselves: • Is the company’s policy flexible enough to provide leave in the case of illness and backup child and elder care, or, is the policy drafted so narrowly such that employees can only use those benefits for their illness if supported by a doctor’s note? • Does the company’s policy allow employees to use PTO in hourly increments, which would allow an employee to take a few hours off each day to assist their child with remote learning, or, does the company’s policy require employees to take time off in full-day increments? Many companies were surprised at just how narrow their policies had been drafted as they began answering these questions. This resulted in many companies having to quickly draft policy addendums and exceptions so that employees could effectively utilize their accrued time off. Now that the dust has settled somewhat, companies with these narrow policies should consider whether these exceptions should be implemented permanently as a best practice. 18
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On the other hand, companies with broad “unlimited” PTO policies found themselves with higher than imaginable employee demands for leave and were faced with the opposite issue – how to change course mid-year and set forth restrictions on an employee’s use of PTO. These extreme policies, one way or the other, underscore the importance of creating a wellrounded policy that benefits both parties, and employers would be wise to review their policy in light of any lessons learned during the pandemic. The pandemic has also highlighted certain issues with use-it or lose-it policies. These policies generally came about for good reason – encouraging employees to use their accrued time off throughout the year to avoid burn-out at work. However, the unintended consequence of a use-it or lose-it policy in 2020 was that many employees did not have sufficient accrued time off at the end of the year to cover an unexpected 14-day quarantine period, for example. Similarly, policies prohibiting carryover from year to year resulted in employees starting the 2021 calendar year with little to no PTO, despite the ongoing pandemic. This left some employers scrambling to allow employees to carry over negative vacation balances or dip into future accruals, and questioning the effectiveness of their policy. While there is no perfect “one size fits all” leave policy, employers should integrate the lessons learned during the pandemic as it related to the leave policy’s implementation and effectiveness and should modify their leave policy to provide the intended benefits in a practical manner that serves both the employer and the employees’ best interests.
Remote Workforce Considerations Forced to embrace telework almost overnight, many companies were surprisingly satisfied with the results and have noted their intention to continue remote operations in a post-pandemic setting. Companies have also realized that a remote workforce has no geographic boundaries, meaning their applicant pool has expanded exponentially. However, with a geographically diverse workforce comes multi-state employment laws. For example, employees may be governed by the employment laws in the state in which they reside, as opposed to the state in which they are “working.” An employee living in New York may be working for a Texas-based company, but that does not necessarily mean that Texas law applies to all aspects of the employee’s employment. The employee may be subject to New York’s wage and hour laws (minimum wage, meal and rest breaks, overtime exemptions), among other New York employment laws. Companies who take advantage of this expanded applicant pool should understand and recognize this exposure and be prepared to manage any state-specific labor and employment laws. The remote-work transformation has also resulted in additional exposure under the Fair Labor Standards Act (FLSA) and related state law. The FLSA requires employees to be paid for all hours worked based on the employer’s actual or constructive knowledge. While the Department of Labor (DOL) recognizes the challenges with monitoring a remote employee’s work time, employers are still required to exercise reasonable diligence to ensure employees are properly paid for all hours worked. Companies that previously had only on-site employees should carefully
review their timekeeping policies and should modify those policies to set forth clear expectations of teleworking employees to properly record and report all time worked. These policies should also set forth all expectations for working overtime hours, such as receiving advance approval. Training supervisors on these policies will be a crucial step toward maintaining FLSA compliance. As remote work becomes a consistent reality, companies can lessen their exposure to FLSA liability by training supervisors to manage remote workers’ time and attendance, including when and how to issue corrective action to employees who fail to adhere to proper procedures. Companies have also been forced to adapt to a teleworking environment at record speed, which in many cases require a modification of employee job duties to facilitate that remote-work setting, which perhaps resulted in the intermingling of some exempt and non-exempt duties. The DOL has reminded employers that the wage and hour regulations allow exempt employees to perform nonexempt duties that are required by an emergency without losing the exemption providing they meet the salary basis test. However, employers who intend to continue those modified job duties in a more permanent nature should understand the limitations of this emergency exception. Companies should carefully audit any positions with permanently modified duties to determine whether the employees still meet the applicable FLSA exemption criteria. Employees who no longer meet that criteria should be converted to non-exempt status.
of employment – many companies in the healthcare industry have been requiring workers get the flu vaccines for years – however, any mandatory vaccination program must comply with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII), as well as any related state or local law. To the extent an unvaccinated employee is a direct threat, the company should engage in the interactive process to evaluate any reasonable accommodations, which might include, wearing a mask, social distancing, isolation, or modified work schedules, just to name a few. However, if those accommodations posed an undue hardship – more than a minimal cost or operational burden – the employee can be excluded from the workplace absent other legal issues that would prohibit this exclusion. Unfortunately, there are no easy guidelines to follow here, and this analysis is full of pitfalls. Companies would be wise to partner closely with their legal counsel to discuss the business and legal risks of a mandatory vaccination program and to draft and implement such a policy. As an alternative, employers may encourage (rather than mandate) employees to receive the COVID-19 vaccination by offering incentives, such as additional PTO or bonuses. Yet, even these incentive programs may pose a legal risk to the extent the program was discriminatory – i.e., an employee was ineligible for the incentive because of their claimed disability of a severe reaction to the vaccine. Again, companies are encouraged to partner with their employment counsel to avoid these legal pitfalls.
Vaccinations – Mandatory Programs and Incentives As the COVID-19 vaccines become more widely available, and as employers began reopening offices, many companies are considering whether to mandate or incentivize employees to receive the COVID-19 vaccine. Employers can certainly mandate vaccinations as a condition
Mary Leigh Pirtle, Member
mpirtle@bassberry.com Bass, Berry & Sims PLC www.bassberry.com
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19
Main Street Macro: Inflation, the Remix
that friend. Putting money behind an idea requires a high degree of confidence not only in the entrepreneur themselves, but in the economy.
By NELA RICHARDSON
And Main Street confidence–or the lack of it–trickles up to the macro level. Worried companies and consumers invest and spend less, reducing supply and demand for goods and services.
Last month we witnessed a second Trump impeachment in three years. It’s a remarkable time in political history and there’s a lot to unpack. But this isn’t that type of article. I’ve taken a grand total of one political science class and whatever history was required in high school. In short, my opinion on events is more suited to sharing over a drink in Midtown or in debate with my 13-year-old. So, while the country’s attention was affixed to politics last week, I dug into the Bureau of Labor Statistics release of the Consumer Price Index (CPI). Here are three reasons why.
#1 Macro conditions, not politics, shape the economy
While some market watchers think high federal debt and low interest rates will eventually trigger an uptick in inflation, the more immediate concern is too little inflation. By limiting demand and the productive capacity, the pandemic has been deflationary as opposed to inflationary. The chart below shows the Consumer Price Index, which measures the cost of goods and services minus volatile food and energy prices. The slowdown in economic activity caused by pandemic lockdowns caused the CPI to fall to 1.2 percent in May and June. It’s now edging back closer to the Fed’s 2 percent target but slid again in November as a second wave of viral infections surged.
In the past 100 years we’ve seen only three other impeachment proceedings — against Richard Nixon, Bill Clinton and Donald Trump. Nixon resigned in 1974 knowing his impeachment was imminent. The Senate acquitted Clinton in 1999 and Trump in 2020. In 1974, the economy was in recession. Inflation was soaring. Unemployment would rise to over 8 percent over the next 12 months. The Federal Reserve, trying to contain inflation, had hiked interest rates, pushing the benchmark federal funds rate to 12 percent in August 1974 as Nixon’s impeachment inquiry began. The economic environment was quite different in 1999. The unemployment rate was 4.5 percent in 1999 and had fallen to 4 percent by the end of Clinton’s term in 2001. The federal funds rate hovered moderately around 5 percent. During Trump’s first impeachment in 2019, unemployment was at a 50-year low and stayed there until right before the onslaught of the pandemic in March. Borrowing costs for consumers and businesses also were low, with the federal funds rate around 1.55 percent after the Fed cut rates three times in the second half of 2019.[1] As of the third quarter of 2020, the economy has recovered about two-thirds of the output lost in the second quarter of the year, when GDP plummeted at a -33 percent annualized rate. That’s the good news. The bad news is that some 10 million people who had jobs in February don’t now. Weekly jobless claims sounded a warning on Thursday, rising to 965,000 new claims in single week, the highest since August. For small businesses, those big jobless claims numbers represent personal sacrifice, laid-off colleagues, lost revenue, and uncertainty. Small business confidence dropped in December for the first time since May according to a closely watched survey from the National Federation of Independent Businesses. Despite rock-bottom interest rates, only 8 percent of business owners think it’s a good time to expand, a troubling finding for those of us hoping that a second round of fiscal stimulus from the Payroll Protection Program will be a salvo. On the horizon is President-elect Biden’s new $1.9 trillion coronavirus and stimulus plan, which may take time to move through the political process, even under unified government. In the 2021 economy, the pandemic, not politics, is still calling the shots as it constricts our lives, our economic activity, and confidence on Main Street.
[1] Stats from St. Louis Federal Reserve Economic Research
#3 Inflation is being remixed by the Federal Reserve Inflation can be described as a general rise in the overall price level of goods and services, everything from haircuts to healthcare. Main Street’s concern is that rising inflation reduces the purchasing power of a dollar and decreases the value of savings and investments. (Roll that gold and/ or bitcoin commercial now). Starting in 2012, under the direction of Federal Reserve Chair (and baseball enthusiast) Ben Bernanke and his successors, the central bank has stuck to an inflation target of 2 percent. But unlike the inflation bouts of yesteryear, inflation for the past two decades has been mild for a hodgepodge of reasons, including the global supply chain, improvement in monetary policy, and automation. In this environment, the Fed has discovered that an unemployment rate under 4 percent can be sustained without stoking inflation higher than 2 percent. That means monetary policy can be used more aggressively to stimulate an ailing job market without triggering a rapid increase in prices. So the Fed has changed its tune on inflation and is encouraging it to go up instead down. The central bank recently remixed its policy in an attempt to push inflation above 2 percent for a significantly long time. This is a new take on the 2012 classic that Fed policymakers call “average inflation targeting”. Inflation has a lot of moving parts. One of the biggest is the confidence, which convinces people to spend instead of save and drives economic growth on Main Street.
#2 Deflation, not inflation, is the bigger short-term risk Main Street is built on confidence. Think about it. To bankroll ideas, entrepreneurs often tap into their own savings. They take out loans, seek investors, and raise money from friends and family. Hey, maybe you’re 20
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Nela Richardson, PhD ADP Chief Economist
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21
The Future of Inclusive Hiring is
Here!
By CHRISTOPHER WATLER
In
recent years, the US has undergone encouraging cultural shifts in its views of the criminal legal system and racial equity. Many business leaders and people across the political spectrum increasingly agree that the nation’s legacy of racism -- expressed through mass incarceration
and employment discrimination -- must be addressed. One analysis by Citigroup found that discrimination against African-Americans cost the nation $16 trillion in lost GDP since 2000. Addressing the racial gaps in employment, housing, health education and business investment would add almost $5 trillion dollars to GDP over the next five years.
At present, more than 70
million
Americans (1 in 3 US adults) have a
criminal record.
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At present, more than 70 million Americans (1 in 3 US adults) have a criminal record. Persons with a criminal conviction face thousands of collateral consequences that prevent them from voting, working and otherwise fully participating in civic life. Before the pandemic and resulting economic downturn, the US was experiencing record-low unemployment. Yet, job seekers with convictions were more likely to be unemployed. One past study found that the unemployment rate for people with past convictions was five to seven times higher than the overall unemployment rate.
Job seekers with past convictions are motivated to work and often have skills and abilities that employers are looking for. Yet, employers continue to use blunt criteria to exclude job seekers because of their conviction histories, despite evidence that these criteria only prevent them from finding the best candidate to fill a job. In addition to low turnover and long-term loyalty, studies have found that individuals who have a past criminal history consistently demonstrate higher company morale and stronger work product than their peers. One study looking at the the U.S military found that enlistees who received felony conviction waivers were 32 percent more likely to attain rank than other enlistees. These enlistees were also more likely to earn a GED or college credits. The report theorizes that the military’s “whole person review” approach to hiring that focuses on who will succeed on the job rather than their past convictions, race or other non-work related factors helps support success for enlistees.
To address this growing issue, the Society for Human Resource Management (SHRM) partnered with the Center for Employment Opportunities (CEO), the largest reentry employment provider in the US. CEO is a nonprofit organization with over 40 years of experience in workforce development programming and provides immediate, effective, and comprehensive employment services to individuals with past criminal convictions. Since 1996, CEO has made over 35,000 job placement with over 4000 employers across its 30 sites in 11 states.
Over the last year, CEO worked with the SHRM Foundation to update two tools on SHRM’s “Getting Talent Back to Work” site. Initially launched in 2019, Getting Talent Back to Work serves as an online resource hub for hiring managers seeking to learn more about hiring talent with past convictions. The first tool is the Getting Talent Back to Work Self-Assessment. Users answer a short set of questions about their business needs and areas of interest. It then generates a customized PDF report with the content requested. Topics range from employer case studies, to internal communications to advocacy work -- all with a focus on supporting talent with past convictions. The Assessment helps hiring managers to make an effective case for inclusive hiring of talent with past convictions.
The second tool, the Getting Talent Back to Work Certificate Program, equips HR professionals and other stakeholders with knowledge and skills to make their workplace inclusive of talent with conviction histories. The free 10-hour long curriculum uses a combination of video modules, guided reflection activities, and quizzes to provide a high-quality self-directed learning experience. The curriculum begins by introducing certificants to key basic knowledge about the criminal legal system; they walk through an overview of how cases move through the system, learn key distinctions between entities like prison and jail, and hear about probation and parole structures that can help or hinder people’s employment experience. HR professionals earn 10 professional development credits toward SHRM-CP or SHRM-SCP certification by completing the course. The development of this content included other partners with HR and legal experience and experts who have experienced past incarceration.
The SHRM Foundation and CEO are jointly promoting the Getting Talent Back to Work tools. As companies respond to calls to address racial justice from investors, customers and their own employees, inclusive hiring of talent with past convictions is gaining momentum. The Getting Talent Back to Work tools are an essential support for hiring managers and leading companies that are committed to diversity, equity and inclusion.
About the Center for Employment Opportunities CEO works with employers nationwide to diversify hiring pipelines, address internal and external barriers, and serve as a partner along the journey to becoming an inclusive workplace. With over 40 years experience as an employer and advocate for returning citizens, CEO tackles hiring challenges while promoting the success of an underserved population. To learn more about CEO, please visit: www.ceoworks.org
Christopher Watler
Chief External Affairs Officer Center for Employment Opportunities www.ceoworks.org
Getting Talent Back to Work The Society for Human Resource Management (SHRM) and Center for Employment Opportunities (CEO) have launched new online tools as part of SHRM’s Getting Talent Back to Work initiative to support inclusive hiring efforts for job seekers with past convictions. Your company can join the U.S. Military and other leading companies that are experiencing the benefits of hiring motivated job seekers with past convictions. Learn how your company can benefit from this untapped talent pool. Check out the free Getting Talent Back to Work Curriculum and Self Assessment tools at:
gettingtalentbacktowork.org
To read employer testimonitals, visit:
ceoworks.org/employer-success-stories
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23
COVID-19: Avoiding “Summit Fever” By KATIE O’NEILL
“ So stick to the fight when you’re hardest hit– It’s when things seem worst that you must not quit.”
Photo credits: massmoments.org
–From the poem “Don’t Quit”, by John Greenleaf Whittier
Caution signs can appear in many ways: flashing lights, yellow signs, or maybe a pair of bright green boots. The roughly 200 bodies of perished hikers that remain on Mount Everest serve as a grim reminder of the inherent dangers of extremes in conditions and ambition. Some of these fallen hikers have gained worldwide recognition as unfortunate landmarks on the nearly 30,000 foot mountain, including a man nicknamed “Green Boots”. Since 1996 he has been entombed in an ice cave elevated 28,000 feet above sea level, in the final stretch of terrain aptly known as “the death zone”. His fluorescent green boots still strapped to his feet in stark contrast to the ice and snow serve as an unintentional beacon; a warning to fellow hikers of how danger can be closest at hand when they are nearest to the top. As we enter nearly a full year of battling the COVID-19 pandemic, we must be aware of this phenomenon, known as “summit fever”. When the end seems within reach and has been eagerly anticipated, when so much has been sacrificed and lost, exhaustion and anticipation can replace caution and lead to decisions that have dire consequences. How are we seeing this in the COVID-19 pandemic? • With pandemic fatigue giving way to pandemic exhaustion, people are not exercising the same caution as they did previously. • People wrongly assume that if they have taken risks and not yet contracted COVID-19, that continuing those behaviors is safe. • With vaccines becoming available and more on the way, the end feels close at hand. • We have become desensitized to the case numbers, death rates, and risks. Why is it more important now than ever to be vigilant in exercising caution in staying safe? • With case rates reaching new highs, most states are experiencing widespread community spread. This means that your chances of encountering someone with COVID-19 are higher than they were during most of 2020. • For example, according to CDC data, during summer case peaks in 2020, the US averaged around 1500 cases per 100,000 people; during peaks in January 2021, the case rate climbed to around 7,600 cases per 100,000 people. 24
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• While people might find comfort in knowing many of those infected with COVID-19 experience mild symptoms that last a few days, some are experiencing what is called “long haul COVID”, even several months post-infection. Shortness of breath, heart palpitations, loss of smell and taste, hair loss, extreme fatigue, and “brain fog” have been reported along with more serious complications, such as diabetes. The prevalence, duration, and reasons are not yet known, and it can occur in both people who were very ill and those who were not. • Some variants that are developing as the virus mutates spread faster and with greater ease. Regions where infection rates had slowed down are experiencing rapid upticks which could be disastrous in areas where there is already unchecked community spread. • Vaccine rollouts state by state have been highly variable, causing a slowdown in vaccinating the public. What can you do to help? • Remind employee of resources available to cope with pandemic fatigue, anxiety, and isolation, such as employee assistance programs. • Encourage programs for well-being, such as mindfulness, exercise, and proper sleep, which can help employees stayed engaged in healthy habits and resiliency. • Keep aware of changing guidelines from resources such as CDC to help protect against more transmissible strains, including using masks with better protection when possible and adhering to social distancing guidelines. • Continue to encourage employees to engage in safety, while understanding that they might be “tuning out” if it is overly redundant. Understand that we are all exhausted and frustrated, but reminding people of how their efforts are not wasted and can promote a better outcome can help to add purpose and value to precautions. • Stay up to date on state resources to help employees be informed of vaccination timelines, updates, and testing resources. • Help employees stay engaged in life by providing resources for safe events, such as a calendar for online concerts and plays, resources on free classes, and virtual book clubs. It is important to keep in mind that we cannot lose hope, there will be improvement, and that a post COVID life is likely possible in 2021. However, much of that success hinges on an increase in awareness, caution, and care over the coming months.
“ Rest if you must, but don’t you quit”—“Don’t Quit”, by John Greenleaf Whittier
Katie O’Neill
Clinical Wellness Director, McGriff Katie.ONeill@McGriff.com
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ON THE CLOCK: 2020 Rewind and Pending U.S. Supreme Court Cases Impacting Employment Law in 2021 By JOSHUA ZUGISH
In 2020, the United States Supreme Court issued a variety of impactful decisions effecting employers. These decision provided employers with lasting guidance related to sex, race, and age discrimination claims, and bolstered the religious interests of employers in the selection of employees and scope of coverage in group health plans. In particular, five decisions with a significant impact on employment law stood out, most notably Bostock v. Clayton County, which ruled that workplace discrimination because of an individual’s sexual orientation or gender identity, including transgender status, is unlawful sex based discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII). Supreme Court Justice Gorsuch succinctly concluded in the majority opinion that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Additionally, the Court issued decisions in Comcast Corp. v. NAAAOM and Babb v. Wilkie that influenced § 1981 claims and the Age Discrimination in Employment Act (ADEA). In Comcast, the Court held plaintiffs seeking relief under § 1981(a) must first plead and subsequently prove that race is a but-for cause of their injury, and that this burden remains constant throughout the life of the lawsuit. This causation standard under § 1981differs from the more lenient “motivating factor” standard applicable in Title VII cases. Conversely, in Babb, the Court made it easier for federal employees and applicants to prove age discrimination by ruling that courts should not apply that heightened “but for” causation standard in ADEA cases. Babb only impacts the federal government and not private employers, who still benefit from the heightened “but for” standard when defending ADEA cases in the private sector. For religious employers, the Court sought balance between religion and workplace laws in two important decisions. The Our Lady of Guadalupe School v. MorriseyBerru decision held that the ministerial exception allowing religious employers to invoke the First Amendment’s protections against government interference in the selection of employees should be evaluated using a variety of factors, including whether an employee carries out important religious functions. In doing so, the Court rejected a rigid formula when determining whether the ministerial exception applies. The Court also upheld two rules expanding religious and moral exemptions to the Affordable Care Act’s (ACA) contraceptive mandate. The decision in Little Sisters of the Poor v. Pennsylvania entrenched broad exemptions from the contraceptive mandate for both for-profit and nonprofit employers with sincerely held religious beliefs or moral objections to offering contraception coverage in their group health plans.
Looking Forward in 2021 While employers adjust to these decisions from 2020, at least three pending cases merit watching for their potential impacts on employment law this year. California v. Texas: In the consolidated case of California v. Texas, the Court will address important issues under the Affordable Care Act (ACA). Specifically, the stated issues are: (1) whether individual and state plaintiffs have standing 26
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to challenge the minimum-coverage provision in section 5000A(a) of the ACA; (2) whether reducing the penalty amount specified in ACA section 5000A(a) to zero rendered the minimum-coverage provision unconstitutional; and (3) whether the minimum-coverage provision is severable from the rest of the ACA. The impacts of this case may be substantial and have real consequences for employers and employees, alike. Many existing ACA provisions could be impacted if the minimum-coverage provision is deemed unconstitutional and not severable from the rest of the ACA. These ultimately include ACA protections surrounding pre-existing conditions, subsidies to make individual health insurance more affordable, expanded eligibility for Medicaid, coverage of young adults up to age 26 under parent or guardian insurance policies, coverage of preventive care with no patient cost-sharing, Medicare’s drug benefit, and a series of tax increases to fund these initiatives. Under the ACA, most large employers must tread carefully when configuring health insurance plans to avoid potential penalties associated with ACA’s mandates. Pricing, eligibility, and plan design were all restricted by ACA’s rules and potential penalties increased risks associated with creative plan designs. Depending on the outcome of this case, employers may have more flexibility with group health options. Additionally, any easing of restrictions under the ACA may impact costs and plan options for employer sponsored group health plans. Fulton v. City of Philadelphia: In Fulton, the Court will review a Third Circuit decision upholding the City of Philadelphia’s choice to exclude a religious agency from the City’s foster care system unless the agency agreed to act and speak in a manner inconsistent with its sincere religious beliefs about marriage. At its core, this case tests the boundaries of the Free Exercise Clause of the First Amendment in a way that may be important to religious employers and organizations. More specifically, Fulton will address (1) whether claims under the Free Exercise Clause can only succeed by proving the government would allow the same conduct by someone who held different religious views, or whether courts must consider other evidence that a law is not neutral and generally applicable; (2) whether the Supreme Court should revisit Employment Division v. Smith, a case holding that the Free Exercise Clause does not require accommodation of a religious practice as long as the challenged government policy is generally and neutrally applicable; and (3) whether a government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs.
The Court’s decision will likely influence how employers with religious interests can advance or defend their rights under the Free Exercise Clause when dealing with otherwise neutral employment laws of general applicability. Depending on the outcome of Fulton, employers may be afforded greater latitude when it comes to compliance with nondiscrimination and other employment laws by asserting the Constitution exempts them from complying with laws that run counter to their sincerely held religious beliefs. The decision in this case is highly anticipated and merits monitoring. Van Buren v. United States: Another pending case with potential employment ramifications, Van Buren will addresses an important question about computers in the workplace and protection of confidential information or trade secrets. The case involves Section 1030(a)(2) of the Computer Fraud and Abuse Act (CFAA), a federal statute that imposes civil and criminal liability for unauthorized access of computers. The case raises a critical question about application of the CFAA when an individual is authorized to obtain information from a computer for some purposes but not others. The case involves a police officer in Georgia who was authorized to search computer records about license plates for law enforcement purposes. He also searched those records and obtained information for improper private purposes as well. The officer was targeted in an FBI sting operation and, through an informant, was offered thousands of dollars for license-plate related information. The officer subsequently accessed the information for non-law enforcement purposes, was arrested, and charged with two counts of fraud, including one count of computer fraud under the CFAA. Van Buren argues the CFAA only applies only if the defendant obtains information that he was under no circumstances entitled to obtain. Conversely, the government argues that Van Buren’s reading of the CFAA is too restrictive and the statute
should apply if information that a person is authorized to access for legitimate business purposes is actually used for improper personal purposes. The case may resolve conflicting interpretations of the CFAA and strengthen the ability of employers to sue employees who access electronic files in a manner that exceeds the authorized use of an employer’s computers. Broadly speaking, the Act allows employers to sue employees who trespass into computer file folders and servers in order to copy or transfer confidential information and trade secrets. This decision may resolve a split in the circuit courts that tend to be either pro-employer or pro-employee. Van Buren should help answer an important question for employers about the strength of the CFAA’s protections for workplace computers. This calendar year promises to add to the complexity of various legal issues impacting employers and the workplace. These three cases merit monitoring for implications on your organization and any potential changes to policies and practices that may be necessary in response to these important legal decisions.
Joshua B. Zugish, Of Counsel Ogletree Deakins Joshua.Zugish@ogletree.com www.ogletree.com
The Biden Administration: New and Anticipated Policy Changes and What They Mean for Employers Join Littler Charlotte attorneys Kellie Tabor and Steve Nigh for a March 24 webinar With the inauguration of President Joe Biden as our nation's 46th president, together with Democratic-controlled houses of Congress, Littler attorneys will discuss what employers should expect to see in terms of the "Biden Agenda" in the coming weeks and months. For more information and to register, visit littler.com/events
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Limiting Your Potential
Fiduciary Liability By JIM TRUJILLO
The 401(k) litigation tides are rising, and a new wave of lawsuits aimed towards employers and the administration of their retirement plan is here. According to new analysis from Bloomberg Law, proposed class action lawsuits claiming excessive 401(k) plan fees are on track for a fivefold increase between 2019 and 2020, with 65 cases filed during the first eight months of 2020, and almost 100 by the end of 2020. With this new focus on retirement plan oversight, here are the things you need to know.
few years, some recent notable lawsuits included Checksmart Financial, whose plan had $25 million in assets, and LaMettry’s Collision, Inc., whose plan had roughly $9 million in assets.
How Can You Protect Your Company And Yourself? First and foremost, the best way to protect against potential DOL litigation is to ensure you have a solid, compliant plan in place. As the plan sponsor, your responsibility to develop a plan document, establish the investment lineup, and work with your chosen service providers to support and administer your company’s 401(k) plan.
Where Does The Responsibility Lie?
1. DEVELOP A PLAN DOCUMENT
When it comes to a 401(k) plan, anyone who has fiduciary oversight can be held personally liable for any shortcomings in the plan. A “fiduciary” is anyone making decisions for the plan on behalf of the employees participating in that plan. This can include employers, plan administrators, trustees, and investment committee members. Often a CFO or HR manager, to act as a “plan administrator” who plays an active role in the ongoing management of the company plan. Depending on how much responsibility this person has in making decisions about the 401(k) plan, they may also be a fiduciary.
A 401(k) plan document should layout clear expectations for how the plan operates. Your plan document should include details such as employee eligibility, employer contributions, fees, loan allowances, profit sharing provisions, student debt repayment options, and other additional plan features that best fit the needs of your employee base.
But when it comes to acting as a fiduciary, the responsibility may go deeper than you think. These individuals have a personal and legal responsibility to do what’s in the best interest for their employees, avoid conflicts of interest, and keep fees reasonable in relation to the plan. Not doing so opens the gates for fiduciaries to be held liable for damages.
As a fiduciary, it is your responsibility to choose, monitor, and update the investment lineup. Your plan should offer a mix of different investment options such as money market funds, bond funds, mutual funds, and target date funds. If this seems like a daunting task, a 3(38) investment advisor can take over this piece of the plan’s management.
Some of the more notable recent lawsuits include Anthem, which settled in 2019 for $23.7 million; ABB, which also settled in 2019 for $55 million; and Boeing, which settled in 2015 for $57 million. Each one of these cases had their unique circumstances, but the common thread was lack of fiduciary responsibility held by their plans’ decision makers. And while these were very large companies with hefty retirement plans, the idea of only the big shots having a target on their back is a thing of the past. Smaller companies and plans are now at risk. Over the last 28
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2. SELECT THE PLAN’S INVESTMENT LINEUP
3. CLOSELY MONITOR YOUR FEES The DOL does not say that you have to have the cheapest plan, but that you should be paying a reasonable fee for the services being provided. To do this, you should keep track of every fee being paid, who is getting that fee, and what they are doing for you and your employees to earn it. In addition, you
should be benchmarking your fees, which means comparing what you’re currently paying to the open market place. Benchmarking is an industry best practice, and you’re advised to perform it every 3-5 years. You should closely document the process and the decisions made to show proof of your due diligence in case the DOL ever comes knocking on your door. 4. ESTABLISH RECURRING FIDUCIARY EDUCATION According to the Plan Sponsor Council of America, however, several recent DOL audits included requests for plan sponsors to provide documentation of training within the last year. These requests, and an increase of lawsuits against employers’ and other retirement plan fiduciaries, has refocused attention on the need for plan administrators to continue to educate themselves so they can ensure that they are honoring their fiduciary duties and prudently managing their plans. It’s important to note that this training is not just checking a box. The DOL sets complex rules and regulations that are ever changing, so it’s best to consider this education as ongoing training rather than a one and done task.
created equal. All too often, financial advisors claim that they can “do 401(k) plans,” but it may not be their primary focus. The biggest difference between these two types of advisors is who they are advising to. Traditional financial advisors counsel individual clients to help them make a plan for their personal financial goals. Retirement plan advisors focus on helping businesses manage their employer-sponsored retirement plans. Retirement plan advisors can also provide higher levels of fiduciary protection to you including 3(21) and 3(38) services. To ensure your advisor is specifically focused on retirement plans, look for professionals with retirement plan focused designations. Some of the most common designations are Accredited Investment Fiduciary (AIF®), Qualified Plan Financial Consultant (QPFC), Professional Plan Consultant (PPC®), and Certified Financial Planner (CFP®)
Ensuring you and your company have your employees’ best interest in mind is the foundation for fiduciary responsibility. Keeping this idea at the forefront of your decisions can help guide you in the right direction and stay in a good light with the DOL.
5. UTILIZE RETIREMENT PLAN SPECIALISTS As a fiduciary on the plan, it is your job to monitor the parties involved and their processes. This includes third party administrators, recordkeepers, and advisors, but not all advisors are
Jim Trujillo, CFP® CCFS® PPC®
Financial Advisor JimTrujillo@argi.net www.ARGI.net
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2021 Labor and Employment Law Rising Stars We are proud to present the 2021 Rising Stars in Labor and Employment Law submitted by our sponsors. These attorneys are 40 or under and have practiced law 10 years or less. They are already top performers in their respective firms.
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Ogletree Deakins Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. U.S. News – Best Lawyers® “Best Law Firms” has named Ogletree Deakins a “Law Firm of the Year” for 10 consecutive years. In 2021, the publication named Ogletree Deakins its “Law Firm of the Year” in the Litigation – Labor & Employment category. Ogletree Deakins has more than 900 attorneys located in 53 offices across the United States and in Europe, Canada, and Mexico. The firm represents a diverse range of clients, from small businesses to Fortune 50 companies. www.ogletree.com
Michael Cohen RALEIGH
Bonnie Puckett ATLANTA Bonnie Puckett focuses on Diversity & Inclusion and respectful-workplace initiatives from a global perspective. Utilizing her background and credentials in linguistics, diversity & inclusion, and workplace investigations, Bonnie designs and executes upon multinational clients’ strategies for improving diversity and inclusion, training employees, investigating policy violations, identifying and remedying latent officeculture problems between headquarters and subsidiaries abroad, or within particular subsidiaries. As lead of Ogletree’s AsiaPacific regional team, Bonnie has extensive experience conducting trainings for, and investigations into conduct occurring in, locations such as Japan, Hong Kong, China, and Korea.
Josh Harrison BIRMINGHAM Josh represents and counsels businesses on employment law matters, including developing plans and strategies to tackle challenging circumstances, such as harassment investigations, workplace injuries or fatalities, business model challenges by independent contractors, and managing crises, such as the COVID-19 pandemic. In addition to daily advice and counsel, a significant portion of Josh’s practice includes defending clients against class and collective litigation or arbitration in multiple jurisdictions across the country. Many of these cases involve claims of independent contractor misclassification.
Tina Lam BIRMINGHAM Tina’s practice focuses on assisting federal contractors and subcontractors with affirmative action and U.S. government reporting obligations, as well as responding to compliance reviews brought by the OFCCP and the DOL. She regularly provides guidance and advice to clients on affirmative action planning, OFCCP jurisdictional matters, investigation and defense of systemic discrimination issues stemming from statistical disparities in hiring and compensation cases. In addition, Tina helps employers comply with affirmative action obligations.
Tae Phillips BIRMINGHAM A significant portion of Tae’s practice consists of employment litigation involving employment claims. He also assists employers in labor matters such as union avoidance, election campaigns, collective bargaining, and labor arbitrations. He also advises clients on disputes involving non-compete and other restrictive covenant agreements. Tae is heavily involved in the firm’s Drug Testing Practice Group and has nationally recognized experience on marijuana issues in the workplace. He regularly assists clients across the country in handling medical and recreational marijuana. Tae serves as co-chair of Ogletree Deakins’ Diversity and Business Resource Group for Asian American attorneys within the firm.
Kathryn Parham MEMPHIS Kathryn serves as Special Counsel with the firm’s EEO Advantage Program. Kathryn defends employers nationwide against administrative charges filed with the EEOC and state agencies. She regularly engages in settlement negotiations and mediations and works with in-house counsel to assess and develop litigation avoidance and risk strategies. Kathryn advises in-house counsel and human resources professionals regarding day-to-day employment-related matters, including discipline and discharge, leave, and reasonable accommodation questions, drafts employment policies and handbooks, and prepares pleadings, motions and briefs for employment discrimination cases in federal court.
Elizabeth Gift CHARLOTTE Elizabeth devotes a substantial portion of her practice providing advice on nearly every aspect of the employment relationship. As a strategic partner, Elizabeth focuses on addressing existing or threatened employment claims and on developing strategies to mitigate risk. Elizabeth has a depth of experience with clients in retail, manufacturing, healthcare, financial, and higher education, among others. She devotes the remainder of her practice to employment litigation. Elizabeth has a compelling record in high stakes litigation, including under the FLSA, Title VII, the ADA, Section 1981, the ADEA, the FMLA, and the Federal Arbitration Act.
Michael Cohen focuses his practice on representing employers in wage and hour class and collective actions, FMLA claims, wrongful termination, discrimination, retaliation, and trade secrets matters. He has extensive experience defending his clients before federal and state courts nationwide, and federal, state, and local administrative agencies. Michael routinely counsels his clients through complex issues, including independent contractor misclassification, exempt employee misclassification, managing leave and accommodation requests, and terminations. He also helps draft and revise employee handbooks, employment contracts, independent contractor agreements, severance agreements, and restrictive covenant agreements.
Michael McKnight RALEIGH Michael represents employers in all types of labor and employment matters. He has extensive experience as an advocate for employers in administrative agency proceedings, investigations, and audits before state and federal EEOC, OSHA, and Wage and Hour agencies. Michael routinely advises employers in investigating and responding to workplace accidents, injuries, and fatalities. He regularly works with employers in the agriculture, automotive, construction, healthcare, hospitality, manufacturing, retail, technology, transportation, and utilities industries. He also represents and advises non-profit organizations, schools, and governmental agencies and officials on civil rights and campaign finance laws and state and federal constitutional requirements.
Gretchen Lehman TAMPA Gretchen focuses on employment litigation in federal and state courts, and defending employers under Title VII, the Florida Civil Rights Act, the ADEA, the ADA, USERRA, FLSA, the First Amendment and state tort laws. She also specializes in ADA Title III disability issues. She has also defended management before the EEOC, the Florida Commission on Human Relations, the Pinellas County Office of Human Rights, the Agency for Workforce Innovation and the Public Employees Relations Commission. Gretchen defended companies before the Florida Division of Administrative Hearings. Gretchen regularly advises employers on employment laws and works with managers and HR professionals.
Sara Sanfilippo TAMPA Sara focuses her practice on defending labor and employment law matters involving wage and hour claims, discrimination, harassment and wrongful discharge in state and federal courts and before administrative agencies. She also advises and counsels employers on best practices and policies.
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Fisher Phillips With more than 450 attorneys in 36 offices across the United States, Fisher Phillips is a national labor and employment firm providing practical business solutions for employers’ workplace legal problems. We regularly advise and counsel clients on issues surrounding wage and hour, employment discrimination and harassment, litigation, workplace safety, immigration, trade secrets and non-competes, and more.
Marilyn Higdon MEMPHIS
Marilyn Higdon is an associate in the Fisher Phillips Memphis office. She focuses on a wide range of labor and employment issues including discrimination, harassment, retaliation, employment policies, wage and hour, and traditional labor disputes. Marilyn earned her J.D., cum laude, from the University of Mississippi School of Law, where she was Executive Articles Editor for the Mississippi Law Journal. During law school, she worked in-house as an intern in the Labor Law Group at a Fortune 100 global shipping company and served as intern for Hon. R. David Proctor at the U.S. District Court for the Northern District of Alabama.
Chantell C. Foley LOUISVILLE
Chantell Foley is an associate in the Louisville office. Chantell’s background includes significant experience in health and safety litigation. She uses this experience to counsel clients during government investigations and throughout the litigation process. Chantell also represents employers in all aspects of labor and employment law including charges of discrimination, sexual harassment, retaliation, wrongful termination, and other employment-related claims. Prior to joining the firm, Chantell was an attorney with the Kentucky Labor Cabinet, where she litigated Occupational Safety and Health Administration (OSHA) disputes in administrative courts. She is equipped to provide employers with the best defense tactics when defending OSHA violations.
Andrew Baer NEW ORLEANS
Andrew Baer has a strong background in business and brings a practical approach to employers confronted with countless workplace issues. An attorney in the Fisher Phillips New Orleans office, Andrew relies on his background to advise and defend employers in a wide array of employment matters under both state and federal laws. He is a member of the firm’s Workplace Safety Group, COVID-19 Task Force, and Small Business Administration Loan team, which have been at the forefront of developing content and guiding employers on the ever changing situations throughout the country.
William Brian London NEW ORLEANS
Brian London is an associate in the Fisher Phillips New Orleans office. He represents employers in a variety of employment-related disputes, including cases arising under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act (ADEA), Equal Pay Act (EPA), Fair Labor Standards Act (FLSA), and Family and Medical Leave Act (FMLA), among other federal and state employment laws. Furthermore, he regularly represents clients in disputes involving non-competition and non-solicitation agreements, breaches of fiduciary duty, and theft of trade secrets.
Ariel M. Kelly NASHVILLE
Ariel is an associate in the Fisher Phillips Nashville office. She defends employers in labor and employment matters, building upon a unique combination of experience in plaintiff-side and management-side defense litigation. She leverages her previous experience as an attorney for both plaintiffs and employers to provide thoughtful and effective solutions to address her clients’ needs. On the management side, she has counseled and defended clients on a wide variety of labor and employment matters. She litigates these claims on behalf of employers in single and multiplaintiff cases, as well as class and collective actions, on the state and federal level.
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Paul E. Goatley LOUISVILLE
Paul is an associate in the Louisville office who advises and represents employers in all areas of employment and labor law, including issues related to leaves of absence, disability, hiring, and disciplinary actions; discrimination and harassment claims; wage and hour issues; classification of independent contractors; and class and collective action litigation. Prior to joining Fisher Phillips, Paul was an associate at a labor and employment firm in California and worked for several years at the Association of Corporate Counsel in Washington, D.C.
Ashby Angell LOUISVILLE
Ashby is an associate in the Louisville office. Her practice is focused exclusively on labor and employment law across various industries including manufacturing, healthcare, and media. Ashby represents employers in a variety of legal issues including discrimination, sexual harassment, and non-compete agreements. She also has experience handling traditional labor matters, including labor arbitrations and union avoidance training. Prior to joining the firm, Ashby worked for a small civil litigation firm in Louisville, where she represented clients in a variety of tort claims.
Kelly McCall GULFPORT
Kelly brings a fresh approach to employers navigating many issues in the workplace. As an attorney in Fisher Phillips Gulfport office, Kelly advises and defends employers in a wide array of employment matters under both federal and state laws. Throughout her tenure, Kelly has successfully defended employers against claims of unlawful discrimination, harassment, wrongful termination, retaliation, and breach of contract matters. Kelly also assists employers with drafting employee handbooks, policies and procedures, conducting workplace trainings, and internal investigations. Kelly has significant experience working with the hospitality industry and understands the unique challenges facing employers in today’s market.
Bass, Berry & Sims Bass, Berry & Sims provides full-service representation to public and private employers ranging from Fortune 500 companies to small locally-owned businesses. Our Labor & Employment attorneys defend clients nationwide, and provide day-to-day counsel, with respect to claims of discrimination, retaliatory discharge, FMLA leave, and whistleblowing, as well as non-compete matters and employee misclassification issues. Our dedicated team of Employee Benefits attorneys advise companies on all facets of employee benefit issues, including ERISA compliance and the design, drafting, implementation, amendment, termination and administration of employee benefit plans.
Noah Black
Mary Leigh Pirtie
NASHVILLE
NASHVILLE
Noah Black works with clients on the design, implementation and administration of qualified benefit plans, health and welfare benefit plans and deferred compensation packages. He also provides diligence and support on employee benefits and compensation issues arising in mergers, acquisitions and other corporate transactions. Prior to joining Bass, Berry & Sims, Noah worked with the U.S. Department of Labor in the Employee Benefits Security Administration where he investigated retirement plans and plan service providers to ensure compliance with Title I of ERISA and negotiated with fiduciaries to resolve ERISA violations.
Brett Good NASHVILLE
Brett Good provides advice to companies on federal tax and employee benefit matters, including qualified retirement plans, equity incentive plans, executive compensation arrangements, and health and welfare plans. He regularly advises clients on compensation and employee benefit issues that arise in connection with mergers and acquisitions, financings, and other corporate transactions. Prior to rejoining Bass, Berry & Sims, Brett was an associate with Goodwin Procter LLP in Silicon Valley.
Mary Leigh Pirtle helps human resources professionals and in-house counsel at companies of all sizes navigate complicated and evolving employment law issues. She defends employers in matters of labor & employment litigation in federal and state court, including complaints related to non-compete/non-solicitation agreements, reductions in force, wrongful discharge, discrimination and civil rights, and wage and hour compliance. Her practice also involves drafting employment agreements and restrictive covenants, advising clients on discipline, discharge of employees and employee relations, and drafting policies and employee handbooks.
Kimberly Veirs NASHVILLE
Kimberly Veirs represents employers in state and federal litigation related to discrimination, retaliation, and wage and hour compliance. Kimberly also counsels clients in all facets of employment law, providing counsel with respect to state and federal employment law compliance, including employment law issues involving the FMLA, ADA, FLSA and OSHA. She advises employers in matters involving employee discipline, wrongful termination, retaliation, discrimination, harassment, wage and hour claims, and other employment-related matters.
Lymari Cromwell
Ginette Brown
NASHVILLE
NASHVILLE
Lymari Cromwell counsels clients in all aspects of employment and labor relations law, representing industries as diverse as healthcare, hospitality and manufacturing. From medical leaves to background checks, Lymari helps employers keep in step with the constantly changing regulations that impact the workplace, and works to ensure correct interpretation and implementation of the laws. Lymari has assisted with cases ranging from a 3,000-employee wage and hour collective action to a successful federal jury trial in a Title VII discrimination case.
Laura Mallory NASHVILLE
Laura Mallory represents employers in all aspects of labor and employment law. She advises companies on a variety of employment matters and provides counsel to clients with respect to compliance with state and federal employment laws; hiring and termination policies; drug testing and other employment related issues. Her practice also involves the drafting of separation agreements, restrictive covenants, position statements, policies and employment handbooks.
Ginette Brown counsels clients in all aspects of employment and labor relations law, helping employers remain compliant with the constantly changing regulations that impact the workplace. She has experience litigating cases and counseling clients regarding federal and state employment laws, securities law violations, contract disputes, workplace immigration, and compliance issues. Ginette frequently works with companies on issues regarding employee discipline, wrongful termination, discrimination, defamation, harassment, breach of contract, and other matters.
Catherine Simpson MEMPHIS
Catherine Simpson works with clients on the design, administration, and compliance of qualified benefit plans, health and welfare benefit plans, and deferred compensation packages. She also provides diligence and support on employee benefits and compensation issues arising in corporate transactions. Catherine earned her law degree from the University of Mississippi School of Law and her B.B.A. in accounting from Southern Methodist University.
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Littler At Littler, we understand that workplace issues can’t wait. With access to more than 1,600 employment attorneys in 90 offices around the world, our clients don’t have to. We aim to go beyond best practices, creating solutions that help clients navigate a complex business world. With deep experience and resources that are local, everywhere, a diverse team of the brightest minds, and powerful proprietary technology, we deliver groundbreaking innovation that prepares employers for what’s happening today, and what’s likely to happen tomorrow. Because at Littler, we’re fueled by ingenuity and inspired by you.
Hayden Bashinski BIRMINGHAM
Hayden Bashinski is a top-rated attorney selected to Rising Stars for 2020. He works at Littler Mendelson, P.C., located in Birmingham, Alabama, and provides legal services for issues involving Employment & Labor: Employer to the surrounding community. Hayden Bashinski completed legal studies at Samford University Cumberland School of Law and graduated with the class of 2017. Hayden Bashinski passed the bar in 2017. Only a few attorneys from each state are selected to Super Lawyers designation for any given year. The multi-factor selection process includes independent research, peer nominations and evaluations, as well as professional achievement in legal practice.
Jay Inman LEXINGTON
Jay Inman is a shareholder in Littler’s Lexington office, where he 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 has particular experience with drafting and enforcing arbitration agreements and appellate practice in employment law, and his industries of emphasis include healthcare and manufacturing.
John Michael Carter LEXINGTON
John Michael Carter is an associate in Littler’s Lexington office, where he primarily represents employers in varied civil litigation in Kentucky state and federal courts. He has extensive experience with complex discovery and the appellate process. John Michael also regularly handles administrative charges. His practice touches on many areas of employment law but is particularly focused on discrimination claims.
Kevin Cleys CHARLOTTE
Kevin Cleys advises and represents management in a broad range of employment matters. A significant part of his practice focuses on handling single-plaintiff employment litigation arising under various state laws in addition to Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Fair Labor Standards Act (FLSA), and the Defend Trade Secrets Act (DTSA). He has litigation experience at the administrative, state, and federal levels, where he has handled charges of discrimination and retaliation, wage and hour issues, state and federal trade secrets claims, and restrictive covenant and contract disputes.
Rainey, Kizer, Reviere & Bell, PLC Rainey Kizer Reviere & Bell PLC focuses on achieving exceptional client representation, satisfaction, and results by providing the highest quality, timely, and cost-effective legal services. Since its founding in 1975, the firm has grown from a few attorneys to forty lawyers and represents local, regional, and national clients from its five offices in Memphis, Jackson, Nashville and Chattanooga, Tennessee.
Matthew R. Courtner JACKSON
Matthew R. Courtner is a member of Rainey, Kizer, Reviere & Bell, PLC and joined the firm in 2011. He graduated from Mississippi College of Law, summa cum laude, in 2009 and then obtained a Masters of Law from New York University School of Law in 2010. Matthew practices in civil litigation with a focus on employment law, governmental law, civil rights, and tort defense. He assists employers by providing advice on day-to-day activities, drafting handbooks, investigating complaints of employee misconduct, and defense of employment law claims from the EEOC through the courts.
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Leveling the Playing Field By BRAD FEDERMAN
The elevator doors opened and I was on the 5th floor, the President of the company’s floor. It was on the 5th floor because he did not like heights but also wanted some level of removal from the general public. Right in front of me was a reception desk. I was nervous. Here I was, fairly new to the company and middle management at best, going to meet with president of the company. I walked up to the receptionist desk slowly. She asked, “Do you have an appointment?” I answered, “Yes.” She took my name. She told me I could go see him. I was a bit confused since there was no visible hallway or office space. It was as if the reception area was all there was. I knew that wasn't true because the office building was large and the floor would have much more space associated with it. I asked her where to go and she apologized, excused herself and explained that she had forgotten to push the button. Just after she pushed the button, what looked like a permanent wall opened up, allowing me to walk through and go to the only office on that floor. I've eaten with CEOs in private dining rooms and visited buildings where the executives are housed separately from the rest of the employees. I’ve seen privileged parking spaces that 99% of the company does not have access to and all other sorts of reminders that executives and leaders live very different lives than those that work for them. When you're so far removed from your people on a daily basis at work and you compound that with the differences in your home lives, it is simple to see how one can lose a sense of empathy. Comparing everyday situations such as the ability to afford quality childcare, having reliable transportation, being able to choose where you want to live, having help around the home such as a housecleaner and more; it is easy to see how one can lack understanding. All of that changed when COVID-19 wreaked havoc on our nation. Many of us know that COVID-19 spotlighted the great challenges and inequities we face as a nation. People in minority communities were hit harder by the virus than others. The ability for women to stay in the workforce has been significantly challenged due to current circumstances. However, what we paid less attention to is how COVID-19 has improved our leadership skills. In many ways, it sharpened the key leadership skills necessary for success in today’s workplace: Empathy and Emotional Intelligence. 36
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For the first time company’s leadership are heavily focused on the health and well-being of their employees. You are probably asking how a virus could give us such a gift. The virus stripped away a great number of privileges that leaders in companies took for granted every single day. High-level executives are dealing with a fact that their cities and towns have shut down and their kids are going to school virtually. It is difficult for them to get certain supplies at times such as toilet paper or disinfectant wipes, and many of the special services they have grown accustomed too are no longer available. They struggle on Zoom calls with pets jumping across the screen, how to change the virtual background or children coming in with questions. And when they see their employees going through the same things there is a sense of connection, camaraderie, and understanding. Leaders have gotten a glimpse into their employee’s lives and have experienced some of their challenges as well. It has created an evolvement in their empathy and their emotional intelligence when it comes to working with their people. In other words it leveled the playing field. Think about it, as perverse as it may sound, for many, COVID has been a great equalizer. The absence of a daily commute due to more people working from home now means that those that live closer and drive do not have a time advantage compared to those that live farther away and use public transit. The expanded virtual world of work, entertainment and shopping is creating opportunities and accessibility for the disabled and those with complex medical issues that had not been there before. Unfortunately, this spike in leadership skills is much like a sugar high. It won't last for long. As soon as vaccines are more readily available and we have found ourselves under more manageable circumstances; the haves will go back to their separate offices, dining spaces and other privileges. The questions we must now ask are: “How we can keep the playing field level? How do we create a culture in the world where the separation between leaders and workers are not so distinct?”
Five ways to develop empathy and Emotional Intelligence include: 1. Get out of your usual setting and situation 2. Walk in another person’s shoes 3. Become curious 4. Be vulnerable 5. Recognize emotions Every single one of these vehicles to improve our leadership were a gift provided to us by a virus. So the question is: “How will you keep the gifts alive when COVID-19 is no longer dominating our lives?” That will be the difference between short term gain and long-term leadership sustainability. What is more empathetic than allowing parents to adjust their schedules, including sanctioning parents to temporarily shift to part-time status as needed? What is more understanding than permitting parents to select when they do the portions of their work that don’t require completion at a particular time or location, to accommodate their caregiving obligations during the work day? That is exactly what many organizations did. Why did many employers not allow this type of flexibility at all prior to the pandemic? There is only one reason. They did not see a compelling justification, that is, until leadership and management were impacted as well or peered inside their employee’s homes and recognized the challenges they were facing. Empathy. Ironically productivity did not fall during the pandemic and corresponding surge in remote work. However not everyone benefitted. Organizations that were led effectively and addressed the needs of their employees have seen a productivity increase, leaving behind those organizations that did not. The gap between organizations has actually widened. The key difference being Emotional Intelligence.
Study after study has shown Emotional Intelligence delivers by increasing productivity, sales, customer loyalty, market share, inclusion, engagement and reducing turnover. Emotion can lead to our worst or our best decisions because emotions push people; and people propel performance. To overcome the odds we must learn how to acknowledge emotions, identify them and appropriately utilize emotions as data in decision making. Essentially, Emotional Intelligence is successfully melding thinking and feeling to make the best decisions possible. So how can we keep the playing field level beyond this pandemic? Invest in our people. Invest in our leadership. Develop Emotional Intelligence that transcends beyond any given moment or situation. Truly learn to recognize that emotions are data and need to be made a part of our decision making process, but intentionally and thoughtfully. After all, at the end of the day, we are much more than a balance sheet, property and some equipment. We are a community that relies and depends on one another for success.
Brad Federman, CEO
PerformancePoint LLC bfederman@performancepointllc.com www.performancepointllc.com
www.HRProfessionalsMagazine.com
37
A New Presidency - What to Expect
On
By MATTHEW R. COURTNER
January 20, 2021, Chief Supreme Court Justice John Roberts delivered the oath of office to Joe Biden, inaugurating him as the 46th President of the United States. A new administration naturally yields many changes. And employment laws are no exception. Under President Biden, a number of employment law changes may occur. In this article, we will briefly highlight some of the significant employment law changes that President Biden and his administration are likely to make.
FLSA – Salary Level As most employers will recall, near the end of his term, then President Obama’s Department of Labor (“DOL”) sought to increase the salary level for the so-called white-collar exemption from $23,660 to $47,476. Under President Trump, the DOL stopped the DOL’s efforts to raise the salary level to $47,476. Instead, in 2019, the Trump DOL issued a final rule raising the salary level to $35,568, effective January 1, 2020. However, the Biden Administration will likely seek to increase the minimum salary level. Although the exact increase is not yet known, President Biden will likely seek a level closer to what President Obama previously proposed. President Biden’s effort to increase the salary level will follow the same formal notice and comment period as the DOL did under Presidents Obama and Trump.
FLSA – Minimum Wage Another significant change President Biden and his administration will seek is an increase to the FLSA’s minimum wage. In the initial proposal of his first COVID-19 relief bill, the American Rescue Plan, President Biden called for a $15 minimum wage. See https://www.whitehouse.gov/ briefing-room/legislation/2021/01/20/president-biden-announcesamerican-rescue-plan/. At this time, it is unclear whether Congress will ultimately include the $15 minimum wage increase in the COVID-19 relief it passes. However, whether it is now or later, President Biden intends to push for a substantial increase in the federal minimum wage.
Independent Contractor Test The Biden DOL is also likely to rescind or revise the Trump DOL’s guidance on the independent contractor test. On January 6, 2021, the Trump DOL announced a final rule, which is set to take effect March 8, 2021, for determining whether a worker is an independent contractor 38
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or an employee under the FLSA. See https://www.dol.gov/agencies/ whd/flsa/2021-independent-contractor. Under the Final Rule, the Trump DOL emphasized using the “economic realities” test. President Biden will likely rescind the Final Rule before it takes effect. If not, then President Biden will likely revise the guidance in the future.
Joint Employer Test On January 12, 2020, the DOL announced a final rule, which was effective March 16, 2020, on determining when an employee works for a joint employer. See https://www.dol.gov/agencies/whd/flsa/2020joint-employment. The final rule implemented a four part-balancing test to determine if an employee is working directly or indirectly in the interest of an employer. Shortly after implementation, eighteen states and the District of Columbia sued to enjoin the final rule, arguing that its implementation violated the Administrative Procedures Act. On September 8, 2020, the district court agreed and vacated part of the final rule, concluding the final rule was contrary to the FLSA and was arbitrary and capricious. See New York v. Scalia, No. 1:20-cv-1689, - - F. Supp.3d - -, 2020 WL 5370871 (S.D.N.Y. Sept. 8, 2020). The Trump DOL appealed the district court’s ruling to the Second Circuit Court of Appeals. That case is still pending before the Second Circuit. However, with a change in administration, the Biden administration will likely abandon the appeal; thus, the district court’s opinion will stand. Biden’s DOL will likely revise the guidance on the portion of joint employer test that the court did not vacate.
Equal Pay A Biden led administration will likely focus on equal pay laws. President Biden has expressed his support for equal pay protection. See https://joebiden.com/womens-agenda/. Under the Equal Pay Act, an employer may pay male and female employees differently if the pay disparity is based on “a factor other than sex”. Beck-Wilson v. Principi, 441 F.3d 353, 365 (6th Cir. 2006). As such, an employer may pay a male employee more than a female employee. Last session, democrats introduced the Paycheck Fairness Act in Congress with the aim of eradicating pay disparity between men and women. See https:// www.congress.gov/bill/116th-congress/senate-bill/270; https://www. congress.gov/bill/116th-congress/house-bill/7/text. This Act would have limited pay disparity to objective factors, such as education and experience. President Biden has stated that he “strongly supports” this Act. See https://joebiden.com/womens-agenda/.
Paid Leave Leave under the Family Medical Leave Act is currently unpaid. President Biden will likely advocate for FMLA type leave to be paid. Last session, a contingent of democratic senators introduced the Family and Medical Insurance Leave Act, which would provide workers with up to 12 weeks of paid leave. See https://www.congress.gov/bill/116th-congress/ senate-bill/463/text. President Biden will likely support similar legislation. In fact, in the American Rescue Plan, President Biden included an emergency paid leave program through September 30, 2021. See https://www.whitehouse.gov/briefing-room/legislation/2021/01/20/ president-biden-announces-american-rescue-plan/.
Anti-discrimination Laws In June 2020, the Supreme Court held that sex discrimination under Title VII includes discrimination based on sexual orientation and gender identity. See Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731 (2020). Last session, the House introduced the Equality Act to expand the prohibition of discrimination based on sexual orientation and gender identity. See https://www.congress.gov/bill/116th-congress/house-bill/5/text. This Act would have prohibited discrimination because of sex, gender identity, and sexual orientation in employment, housing, education, public spaces and services, and federally funded programs. President Biden has pledged to make the Equality Act “a top legislative priority” during the first 100 days of his administration. See https://joebiden.com/lgbtqpolicy/. In the meantime, President Biden signed an executive order on his first day in office designed to “prevent[ ] and combat[ ] discrimination on the basis of gender identity or sexual orientation.” See https://
www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/ executive-order-preventing-and-combating-discrimination-on-basis-ofgender-identity-or-sexual-orientation/. Thus, President Biden will likely further broaden anti-discrimination laws based on gender identity and sexual orientation.
Age Discrimination President Biden has pledged to “[p]rotect older Americans against harmful age discrimination” by “put[ting] in place workplace safeguards [that will] mak[e] it easier for older workers to prove that they were treated unfairly at work.” See https://joebiden.com/older-americans/. Under the Age Discrimination in Employment Act, the employee must prove that age was the “but-for” cause of the adverse employment action. Gross v. FBL Fin. Serv., Inc., 557 U.S. 167 (2009). This causation standard prohibits mixed-motive claims. President Biden will likely support legislation that will abolish the but-for causation standard and allow employees to prove age discrimination easier and rely upon a mixed-motive theory. In sum, significant employment law changes are likely on the horizon. And the Biden administration will no doubt implement employment law changes beyond the ones highlighted in this brief article. As such, employers should be on the lookout for employment law changes in the near future.
Matthew R. Courtner, Attorney Rainey Kizer Reviere & Bell, PLC mcourtner@raineykizer.com www.raineykizer.com
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39
COVID-19’s Birthday: 5 Ways HR Pros Should Be
Dubiously Optimistic By SONYA WEATHERS
One year ago, businesses, churches, and schools began closing and events were getting canceled because of the Coronavirus. As we head toward COVID’s first birthday as a pandemic in the states, our organizations have changed significantly in the way we do business. While the past year has been tough, we’ve learned some valuable lessons in staying open and profitable, and in keeping ourselves, our employees, and our customers safe and healthy. While none of us are throwing a one-year pandemic party, here are 5 ways HR pros should be dubiously optimistic:
HR Can Handle Anything If someone had told you in 2019 that your company could bob and weave the way COVID required, would you have believed them? The list of HR’s flexibility in 2020 is endless. Work from home. Wear a mask at work. Monitor temperatures. Perform different work tasks temporarily. Meet virtually. Send exposed employees home. Find a way to hire people without meeting them in person. This list is a rundown of HR’s bragging rights. Adapting decisively shows a company’s agility in challenging times. If your company is still operating, you managed it successfully.
Technology Is Our Friend When COVID-19 smashed business norms into smithereens, smart HR pros realized the need for powerful technology tools to bridge the gaps. Virtual environments allowed employees to work from home with little disruption or down time, and a slew of other tools tracked progress and helped serve clients. When businesses began re-opening, technology played a pivotal role then, too. Restaurants used QR codes for menus instead of printed ones and hotels used apps that allowed for contact-less check in. Companies brought employees back to work by using applications that measured their risk of exposure and tracked their temperatures. HR’s ability to creatively utilize digital solutions kept employees and organizations functioning and allowed for a safe return to worksites across the country. Today, we are even more confident in trusting technology to help solve difficult problems than we were a year ago. These advancements, especially the mobile technology that was implemented, are the most likely to remain in place after the pandemic.
The Future Is Bright You Plan to Succeed, and Succeed by Planning The old adage “Fail to plan, plan to fail” is a bit negative, so we turned it around. As we barrel toward COVID’s birthday, we see the importance of a solid, cohesive plan that includes forward-thinking alternatives. Businesses that had a game plan were miles ahead of the ones that believed “it will never happen to us” when the pandemic first exploded. HR managers should feel energized in the wake of the pandemic, knowing they are well-prepared to create and execute a plan that encompasses unforeseen obstacles.
HR Proved their Leadership Abilities 2020 was no time for weak or unsure leadership. If ever there was a test to HR’s creativity and tenacity, it’s been the last 12 months. Proactively responding to COVID-19’s demands resulted in putting your company ahead of the game. Companies lacking strong leadership suffered big, with many failing to hang on. HR should use these past actions to formulate future directives and processes. Are there certain employees who struggled with handling the pandemic successfully? Where was leadership sluggish, vague, or missing? On the other hand, who were the shining stars? Who offered good ideas, thoughtful insights, and the work ethic it took to make the changes a reality? 40
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While COVID-19 has been a public health disaster, the vaccines are flowing, and we hope the worst is behind us. HR Pros can look forward to a workforce that is loyal, dedicated, and appreciative of their jobs. In addition, portions of the health and safety protocols that have been implemented might remain for the foreseeable future. Hiring processes, whether virtual or in-person, can ramp up as the economy grows and begins expanding. The C-Suite leaned on HR for guidance during 2020 and into 2021. Who knows? The pandemic could be just the issue that solidifies your permanent seat at the table. Whatever the outcome, HR can look down the road with hope and optimism, and a new sense of confidence in their individual ability to perform and adapt successfully.
Sonya Weathers
National Accounts Executive Data Facts, Inc. sweathers@datafacts.com www.datafacts.com
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How DailyPay’s CYCLE Technology Reduced Our Off-Cycle Payment Burdens By REBECCA JARBO
2020
was a challenging year for so many reasons.
Fortunately, early in 2020, we began piloting
With an ever-changing marketplace it was
a new technological breakthrough in the
imperative to prioritize operational efficiency
world of payroll — CYCLE from DailyPay.
everywhere we could. Payroll teams are already busy enough, and in the past year, it was especially critical to identify ways we can eliminate tasks that took up way too much time and energy, especially those without
CYCLE is a new product on the DailyPay
a definitive ROI. For our payroll professionals — disbursing off-cycle
platform (officially debuting this month). Now
payments certainly fit that description.
when we need to make an off-cycle payment, we simply get the approval to pay, log on to the DailyPay Partner Portal and designate the
Off-cycle payments include any payment made, such as bonus,
amount. Our team appreciates the system’s
commission, PTO corrections or termination pay, that falls in between pay
flexibility in that payment amounts can be
cycles. We were cutting a handful of manual checks every day, and not
scheduled or sent out on the same day,
only was this time-consuming, but we were also paying between $12-$50
depending on what time we approve the
to overnight mail each one.
payment. It’s also flexible in that employees don’t even need to be enrolled in DailyPay’s on-demand PAY program — we can send
For some of our employees, off-cycle check payments were a time and
CYCLE payments to any employee. Best of
financial burden as well. Those who were unbanked or underbanked
all, DailyPay funds the off-cycle payments,
had to make an extra trip to a check-cashing establishment and pay the
so we don't have to worry about last-minute
check-cashing fee. We estimate that those in this situation spent up to
shoring up of payroll accounts to meet
$3,146 in check cashing fees annually.
off-cycle pay demands.
42
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By removing the costly process of cutting checks with CYCLE, we estimate
CYCLE supports all direct deposit accounts,
that we are saving our company more than $47,000 a year in off-cycle-
including bank accounts, pay cards and
related costs and our payroll team time that they can now use in more
general purpose reloadable (GPR) cards.
constructive and strategic ways to improve payroll efficiencies. Also, it's completely paperless and that has helped the payroll team during the global health crisis since they don't have to go into the office to use a check printer.
In a world when we were faced with unprecedented challenges at every turn, CYCLE has been a great, new innovation that has helped not only us but the world solve many
… by removing the costly process of cutting checks with CYCLE, we estimate that we are
payroll related problems— enabling us to save time and money for ourselves and our hard-working staff.
saving our company more than $47,000 a year in off-cycle-related costs…
Our employees have loved how easily the money transfers into their accounts- they don’t have to wait for a mailed in check and don’t need to make a trip to cash or deposit it into their account. It has really been a true beacon of light in our lives and another dependable way to automate one of our manual processes.
Rebecca Jarbo
Payroll Manager at Wireless Vision
www.HRProfessionalsMagazine.com
43
How Do Your Core Values
Stack Up? BY CARLEY MCREE
Southern Farm Bureau Life Insurance Company's mission is "To be the life insurance company of choice for our Farm Bureau family. Our focus is to provide competitive products and superior customer service to our Farm Bureau policyholders and agents, while observing the highest ethical standards." With our mission and our long-held values in mind, a group of leaders at SFBLIC, with outside consultants' help, spent over two years strategizing and developing six Core Values that Southern Farm Bureau Life Insurance Company would officially adopt and implement in 2020. A two-year project led to the implementation and communication of these values that began in the midst of the COVID-19 pandemic in 2020. The Core Values of Southern Farm Bureau Life Insurance Company are Commitment to Service, Respect for People, Integrity, Accountability for Results, Commitment to Teamwork, and Courage to Act.
Commitment to Service - We recognize that
service is our business and we approach every opportunity to serve as though our success depends on it. We use our hands and our heads to safeguard the people we insure. Respect For People - We value each individ-
ual's unique talents, backgrounds, and experiences, which is critical to our continued success. We seek the appropriate fit based on each individual's competence and experience. We demonstrate appreciation for others and understand everyone is important. Integrity - We uphold the highest ethical standards
in a manner that promotes honesty and fairness in all of our actions. We deliver on our promises and commit to doing the right thing every time. Accountability
for Results - We get the job done. We accept responsibility for all business and personal actions. We take ownership of our work and promptly correct mistakes to the greatest extent possible.
As employees heard these six Core Values, questions arose "Have we not always had these values?" The answer was a resounding yes. These values have always been at the heart of what we do and the culture we are so proud of at SFBLIC. In 2020, we officially put these in place so that everything that we do at SFBLIC would be centered on these six Core Values. A team from Human Resources, Corporate Communication, and Corporate Training Departments held weekly "roadshows" virtually to introduce these Core Values companywide. Without the buy-in from our employees and management, these values would never stick. These roadshows explained the Core Values and gave examples of how we see these being acted out daily at SFBLIC. Upon conclusion of the roadshows, the Communication Team developed a Values-Driven Culture campaign to spotlight employees who were living out our Core Values. Our management staff submitted stories, and then these were featured in a six-week video campaign companywide. The adoption of these values by our employees was of utmost importance as this campaign was intended to show employees how they could live these values day in and day out. This campaign helped employees see real examples of coworkers and fellow employees acting out these values. Southern Farm Bureau Life Insurance Company celebrates its 75th Anniversary in 2021, chartering in 1946, and remaining strong, sound, and secure for 75 years. Putting these core values in place is a piece of the foundation as we work to preserve our strong culture and move towards the next milestone of our Company. We will keep these values top of mind when recruiting, training, developing, and engaging our workforce. It will be paramount to the successful implementation and adoption of these values over the next several years. Our communication will be centered on openly expressing these values and directly tying our employee and management evaluations to the Company's Core Values and competency models. As we look to the future and our next 75 years of protecting what matters most, these values will remain at the heart of what we do. Our commitment to our communities, policyholders, field force, and employees is the same; we want to be the life insurance company of choice, continue offering superior customer service, and remain your friend for life. For more information about Southern Farm Bureau Life Insurance Company's Core Values and 75th Anniversary, visit www.sfbli.com.
Commitment to Teamwork - We under-
stand, appreciate, and respect the roles of each individual. We do what it takes to come together as one for the success of the Company. Courage to Act - We boldly act in the best
interest of the Company. We have the confidence to act in accordance with our Core Values.
44
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Carley McRee, FLMI, ACS | Supervisor, Corporate Communications
Southern Farm Bureau Life Insurance Company cmcree@sfbli.com www.sfbli.com
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