Volume 8 : Issue 3
TM
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Workex in the 21st Century Act
Rising Stars in Labor & Employment Law SHRM Talent
Conference & Exposition
What’s Up with
Time’s Up?
Save the Date-
HR Executive Conference Cruise
April 16-18 in Las Vegas
Chatrane Birbal,
Senior Advisor SHRM Government Relations
International Presence. Local Knowledge. 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 850 lawyers located in 52 offices across the United States and in Europe, Canada, and Mexico.
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10.5% of 2017 EEOC Charges were filed in Texas
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www.HRProfessionalsMagazine.com Editor
Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher
The Thompson HR Firm, LLC HR Consulting and Employee Development Art Direction
Park Avenue Design Contributing Writers
Austin Baker Bruce E. Buchanan William Carmichael Jennifer S. P. Chang Laura K. Clayman Harvey Deutschendorf Brad Federman Kim Hodges Kevin Hommel Lisa Horn Gary Peeples Ann Elizabeth Sartwell Sonya Weathers Richard Works Board of Advisors
Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR Terri Murphy Susan Nieman Robert Pipkin Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2018 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.
Features
Employee Benefits
Industry News
4 note from the editor
26 Taming the Terror of the Letter 226J
6 SHRM Talent Conference & Exposition in Las Vegas April 16-18
5 Profile: Chatrane Birbal, Senior Advisor SHRM Government Relations
14 Breaking Up is Hard to Do – 10 Reasons to Rethink Turnover 18 A Powerful Combination – SHRM-Backed Legislation on Paid Leave and Workplace Flexibility Guarantees 20 Elevate the Candidate Experience – Choose an ATS and Background Screening Provider That Work Together
22 Adjusting Your HR and Compensation Strategy Post Tax Reform 24 New Column – CFO Corner – 7 Ways to Balance Finance and HR 42 Using Statistical Data in HR Management
Rising Stars in Labor & Employment Law 28 Ogetree Deakins
8 SHRM-Memphis Supervisor and Manager Training April 13
29 Wimberly Lawson Wright Lindsey Jennings Bass Berry Sims
10 Save the Date 1st Annual HR Executive Cruise October 22-26
30 Ford Harrison 32 Cross, Gunter, Witherspoon & Galchus, P.C. Rainey, Kizer, Reviere & Bell, PLC 33 Fisher Phillips Burch, Porter & Johnson, PLLC
Educational Opportunities for HR Professionals
12 The Changing Tide – Employer-Friendly Decisions and Guidance from the NLRB
9 Apply for WGU Special Scholarships for SHRM Members
21 Highlights from FordHarrison Breakfast Briefing in Memphis February 1
19 University of Louisville Online and Face-to-Face Degrees Aligned with SHRM Guidelines
36 Union University’s MBA with a Concentration in Human Resources
35 ARSHRM State Conference & Expo in Hot Springs April 4-6
47 9th Annual TN SHRM Strategic Leadership Conference in Nashville April 27
34 The Kullman Firm Littler
Employment Law
13 Florida International University Online – Master of Science in HR Management
25 SHRM-Memphis Half-Day Legal Seminar March 20
37 MSSHRM State Conference & Expo in Biloxi April 2-4
44 Book Look – What Your CEO Needs to Know About Sales Compensation 49 How Figuring Out The Why Increases Employee Engagement
7 SHRM-Atlanta Annual SOAHR Conference in Atlanta March 27-28
49 TPMA Annual Conference in Franklin April 23-27
11 SHRM Employment Law & Legislative Conference in Washington, D.C. March 12-14
51 SHRMGA HR Legal Summit in Savannah May 4
16 What’s Up with Time’s Up?
April 2018 Issue Features Talent Management and Recruiting Employment Law and Employee Benefits Updates Deadline to reserve space March 15
38 Jeff Sessions V. Marijuana 40 Mental Health in the Workplace – Is There an Effective Prescription for Employers? 46 Worksite Enforcement is on the Rise 48 Highlights of the Littler Event in Memphis February 8 www.HRProfessionalsMagazine.com
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a note from the editor We are excited to have Chatrane Birbal, Senior Advisor Government Relations with SHRM, on our March cover. You can read all about her many accomplishments at SHRM in her profile on Page 5. You can also read about the new SHRM-backed legislation that provides for paid leave and workplace flexibility guarantees in Lisa Horn's exciting article on Page 18, the “Workflex in the 21st Century Act.” I hope you will join us on March 12-14 at the SHRM Employment Law & Legislative Conference in Washington, D.C. as we hear great presentations from subject matter experts on public policy issues that impact our workplace. The most exciting part of this conference is visiting your state legislators on Capitol Hill and discussing these issues with them. It’s a great opportunity to discuss new policies and proposed legislation that impacts your workplace with your senators and congressmen. Follow me on Twitter @cythomps for up-to-the-minute coverage! We will also be bringing you Facebook Live interviews from the conference with keynote speakers and thought leaders. Be sure to Like us on Facebook in order to receive instant notifications of the live interviews.
We are featuring Rising Stars in Labor and Employment Law in our March issue. I know you will enjoy reading about these attorneys who are 40 or under and have practiced employment law ten years or less. They are already top performers in their industry! Please take the time to congratulate those you know who made this prestigious list, and call on them for assistance as you navigate new legal issues. Two of our rising stars have contributed articles in this issue. Don't miss Gary Peeple's article on “Mental Health in the Workplace” on Page 40, and an article by Jennifer S. P. Chang on “Jeff Sessions V. Marijuana” on Page 38. They are already subject matter experts! It is exciting to be a media sponsor for the 28th Annual SHRM-Atlanta HR Conference on March 27-28 again this year! We are looking forward to seeing our friends in Atlanta! There will be over 40 innovative, career-advancing educational sessions and thoughtcompelling keynote presentations. Participants can earn 12 HRCI and
SHRM recertification credits. There will also be a 3-hour pre-conference workshop where you can earn 3 CEUs on March 26. We will bring you the exciting details in real time on Twitter, Facebook, and LinkedIn. If you are not currently following me on social media, I encourage you to do so. Don't miss any of the exciting coverage! Mark your calendar for March 21st, as we will be presenting our monthly webinar, which will be a review of the SHRM Employment Law & Legislative Conference for those who were unable to attend. Watch your email for your invitation! If you are not currently on our email list, please let us know, and we will be happy to add you. Don't miss this opportunity to obtain complimentary HRCI and SHRM recertification credits!
cynthia@hrprosmagazine.com
GO CONFIDENTLY. Bass, Berry & Sims listens and responds with creative yet practical counsel. We stay on pace with the complex and rapidly evolving employment landscape, connecting your dynamic human resources needs to proactive strategies. Relationships, reliability, and respect – at the center of our Labor & Employment and Employee Benefits practices.
Stay up-to-date on the latest in HR Law. Visit our blog at bassberryhrlawtalk.com.
Centered to deliver. bassberry.com
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@cythomps
Chatrane on the cover
BIRBAL
CHATRANE BIRBAL Senior Advisor SHRM Government Relations Ms. Birbal is a member of Women in Government Relations (WGR) - the premier, non-partisan professional society dedicated to advancing and empowering women by fostering professional development and growth opportunities through a community that supports women’s leadership in government relations. Ms. Birbal serves as a leader of the WGR Membership Committee, developing and implementing recruitment strategies to attract and retain an engaged and diverse membership.
Chatrane Birbal is a senior advisor of government relations in SHRM national’s Alexandria, Va. office. In this capacity, she is actively involved in health care and tax public policy issues on Capitol Hill that impact the workplace. In her role, Ms. Birbal lobbies Congress in support of employer-sponsored health benefits and the preservation of the tax treatment of several employee benefits, including retirement. Prior to joining SHRM, Ms. Birbal was the director of government relations at the Council on Foundations, a Washington, D.C.-based nonprofit membership association of some 2,000 grant making foundations and corporations, with assets totaling more than $282 billion. During her tenure at the Council, Ms. Birbal implemented strategies and launched programs in support of the organization’s public policy and government relations work. She lobbied Congress on tax legislation relating to charitable giving, raised the Council’s profile with Congress and other nonprofit organizations, advised members on legislative activities impacting philanthropy and planned and executed the Council’s annual legislative fly-in conference, “Foundations on the Hill.” Prior to joining the Council, Ms. Birbal was a federal legislative lobbyist at the American Psychiatric Association (APA), an Arlington, Va.-based medical specialty society with over 38,000 U.S. and international member physicians who work together to ensure humane care and effective treatment for all persons with mental disorders, including mental retardation and substance-related disorders. During her tenure at APA, Ms. Birbal lobbied Congress on behalf of psychiatrists, planned and executed the association’s annual advocacy day training session for membership as well as developed the APA’s online advocacy action center to further legislative efforts on behalf of the psychiatry profession. Chatrane previously served on the Board of Directors for the ACT for Alexandria community foundation. ACT for Alexandria brings the community together to elevate local philanthropic giving and engagement to new heights, supports local nonprofits working to aid the most vulnerable and develops solutions for the community’s most pressing challenges. During her tenure on the Board Ms. Birbal supported the foundation’s initiatives including ACTion Alexandria, an online civic engagement platform and Spring2ACTion, 24 hours of online giving to support local nonprofits. Chatrane obtained a Bachelor of Arts degree in political science from the State University at Buffalo in Buffalo, N.Y. and received her graduate degree of public administration and public policy from George Mason University in Fairfax, Va.
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2018 SHRM TALENT CONFERENCE & EXPOSITION APRIL 16 – 18, 2018 | LAS VEGAS, NEVADA | CAESARS PALACE
STAND
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WITH TALENT
Join over 1,000 of your peers for targeted sessions covering: Recruiting Strategy Onboarding Techniques Engagement and Retention Legislative and Compliance Issues Metrics and Analytics The Role of Technology Performance Management, and much more! 18-0214
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REGISTER EARLY AND SAVE!
shrm.org/talentconf
2018 BE THE CATALYST SHRM-ATLANTA HR CONFERENCE
March 27-28, 2018 | Cobb Galleria Centre | Atlanta
Join over 1,000+ HR practitioners, industry experts and resource partners March 27-28 at SOAHR 2018, SHRM-Atlanta’s 28th Annual Conference, to share best practices, network, develop skills, build knowledge, and have fun! If you’re involved in HR in any capacity, you don’t want to miss this event.
SOAHR 2018 Highlights: • 40+ sessions in 5 concurrent tracks • 12+ hours of recertification credit with SHRM & HRCI • 2 engaging keynotes • 35+ industry expert speakers from companies such as MARTA, IHG and GE • NEW Pre-Conference Workshop on March 26th (+3.5 CEUs) • Interactive programs • Early morning sessions
Save $30 off Two-Day Registration with code HRPRO
Register now at SOAHR.net Discounted rates available through March 12. SHRM-Atlanta members enjoy lowest prices!
www.SOAHR.net www.SHRMAtlanta.org
IN PARTNERSHIP WITH
2nd Annual
SUPERVISOR AND MANAGER TRAINING
at
The Crescent Club Memphis
EMCEE – VERLINDA HENNING, SHRM-SCP, SPHR 2018-2019 SHRM-Memphis President
April 13, 2018 7:30 AM to 4:30 PM
JEFF WEINTRAUB, Regional Managing Partner, Fisher Phillips
What managers and HR professionals need to know to reduce the risk your employer will be faced with a lawsuit from an employee. This seminar will provide an update on current workplace law. We will discuss the following topics:
DON HUTSON, CEO, U. S. Learning Author of The One Minute Negotiator
JUDY BELL, SHRM-CP, PHR, CPBA, CPVA Judy Bell Consulting
• PREVENTING SEXUAL HARASSMENT • CONDUCTING EFFECTIVE MEETINGS
NANCY CRAWFORD,
• HANDLING WORKPLACE VIOLENCE
Marketing & Communications Director Better Business Bureau
• ACTIVE SHOOTER TRAINING BY THE MEMPHIS POLICE DEPARTMENT • HOW TO WRITE LEGALLY DEFENSIBLE DOCUMENTATION • RESPECT IN THE WORKPLACE
CYNTHIA Y. THOMPSON,
• WAGE AND HOUR LAW UPDATE
MBA, SHRM-SCP, SPHR Editor | Publisher HR Professionals Magazine
• THE ONE MINUTE NEGOTIATOR • AVOIDING SCAMS THAT TARGET BUSINESSES
Breakfast and lunch included Networking Reception at 4 PM Meet the speakers and get answers to your questions.
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TO REGISTER, GO TO WWW.HRPROFESSIONALSMAGAZINE.COM COST: $99. PRE-REGISTRATION IS REQUIRED LIMITED SEATING AVAILABLE 8.00 SHRM and HRCI credits pending
SPECIAL SCHOLARSHIPS FOR SHRM MEMBERS WGU Tennessee will award two full-tuition scholarships and up to 20 $2,000 scholarships to SHRM members who apply by March 31, 2018. Scholarships may be applied to any of WGU Tennessee’s more than 60 bachelor’s and master’s degree programs in business, IT, education, or healthcare.
FULL TUITION
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Two Full-Tuition Scholarships and up to 20 $2,000 scholarships
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Online. Nonprofit. Surprisingly affordable.
tennessee.wgu.edu/SHRM
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Save the Date!
Octo
ber 22-26
Join us for our 1st Annual HR Executive Conference Cruise! We are combining a robust Human Resources Executive Conference with an exciting cruise to the Bahamas October 22-27. You can earn a boat-load of HRCI business recertification credits and SHRM PDCs, learn from a line-up of top-notch keynote speakers, and network with your peers from Arkansas, Alabama, Georgia, Kentucky, Mississippi, Tennessee and other states in the US for this innovative concept in HR conferences. It is everything that a land-based conference offers - except that it moves! We will be sailing on the Royal Caribbean Mariner of the Seas from Miami.
Day 1
Mon.
Oct. 22
Miami: EMBARK
Depart 4:00 pm
Day 2
Tue.
Oct. 23
Nassau: DOCKED Arrive 8:00 am
Depart 11:59 pm
Day 3
Wed.
Oct. 24
Coco Cay: TENDERED Arrive 7:00 am
Depart 5:00 pm
Day 4
Thu.
Oct. 25
Cruising: CRUISING
Day 5
Fri.
Oct. 26
Miami: DEBARK Arrive 7:00 am
Register before June 1, 2018 to obtain the early bird registration rate of just $599 (plus the cost of your stateroom). We have four stateroom options including an interior room for $499, a promenade room for $549, an ocean view room with balcony for $649 and a Junior Suite with balcony for $919. The cost of your stateroom is “all-inclusive� based on double occupancy and includes your lodging, all meals, most ship activities, taxes, port fees, pre-paid gratuities, security fees and licenses. Does not include alcohol or Internet. These may be purchased separately. Please email cynthia@hrprosmagazine.com or give me a call at 901.598.0123 and let me know if you are interested in attending our 1st Annual HR Cruise and Executive Conference! Or, if you are ready to make your purchase visit hrcruise.com! HR Professionals Magazine is partnering with Aspect Marketing and Communications, Inc. for this innovative conference and will assist in managing the HR Executive Conference Cruise for our guests.
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Let SHRM be your guide to the complex legal, legislative and judicial landscape that affects your organization. Find out what lies ahead for your workforce and get the information you need to protect your organization and manage risk.
Keynote Speakers 2018 SHRM
EMPLOYMENT LAW & LEGISLATIVE
Michael P. Aitken SHRM VP, Government Affairs
Johnny C. Taylor, Jr., SHRM-SCP, SHRM President & CEO
Sean Spicer Former White House Press Secretary
Donna Brazile Former Interim Chair of the Democratic National Committee & Political Strategist
Peter Sagal National Public Radio (NPR)
Gloria Borger Chief Political Analyst at CNN
Victoria Lipnic Acting Chair of the EEOC
Jonathan A. Segal Partner, Duane Morris, LLP
CONFERENCE
MARCH 12-14 WASHINGTON, D.C.
https://www.shrm.org/mlp/Pages/2018Leg.aspx
Martenson, Hasbrouck & Simon LLP focuses its practice
ADVICE THAT WORKS.
on labor and employment defense and business litigation. Our reputation for excellence has been earned through our dedication to providing innovative solutions to the most difficult problems at an exceptional value. We have forged long-lasting relationships with our clients through our tenacity, skill, and accessibility. Located in the heart of the Buckhead district of Atlanta, Georgia, we have developed a highly flexible representation model that enables us to serve clients of all sizes, across all regions of the country.
Contact Marty Martenson at (404) 909-8100
3379 Peachtree Road, NE Suite 400 Atlanta, GA 30326 martensonlaw.com
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The Changing Tide:
Employer-Friendly Decisions and Guidance from the National Labor Relations Board By KIM HODGES
After eight years of reversing decades of legal precedent and skewing the playing field decidedly against employers, the National Labor Relations Board now seems headed toward creating a less polarized labor environment. This change in direction began with a brief period of Republican control of the NLRB, starting in September 2017 when William J. Emanuel was sworn in, and ended with the expiration of Chairman Philip Miscimarra’s term of office on December 16, 2017. Although the period of Republican majority was short-lived, the Board made the most of it by issuing several highly impactful, employer-friendly decisions in anticipation of Chairman Miscimarra’s departure. • Joint Employer. The most high-profile decision during this period is a December 2017 ruling in Hy-Brand Industrial Contractors that overturns the controversial joint-employer standard previously established in BrowningFerris Industries. In its 2015 Browning-Ferris decision, the Board relaxed the standard for determining when a company could be deemed a “joint employer” of another company’s employees, and therefore jointly responsible for its unfair labor practices and collective bargaining obligations. The Board held that “joint employer” status may exist even when a company merely exercises indirect control over, or has simply reserved the right to control, essential employment terms of the other company’s employees. Browning-Ferris appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit. While the appeal was still pending, the Board issued its decision in Hy-Brand in which it decided to reinstitute the standard that had applied for thirty years prior to BrowningFerris. This resurrected standard provides that a company may be deemed a joint employer under the National Labor Relations Act (NLRA) only if it has actually exercised control over employment terms and has done so directly and immediately in a manner that is not merely limited and routine. • Workplace Policies. On December 14, 2017, the Board issued a decision in The Boeing Company, overruling a 2004 decision in Lutheran Heritage Village-Livonia. In Lutheran 12
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Heritage, the Board held that a facially neutral workplace rule or employment policy could be unlawful under the NLRA if an employee would “reasonably construe” the language to prohibit the exercise of their NLRA rights. The Board has now replaced the “reasonably construe” standard with a new test for assessing facially neutral rules and policies that takes into consideration: (1) the nature and extent of the potential impact on employees’ NLRA rights, and (2) the employer’s legitimate justifications for the rule or policy. • Bargaining Units. In a December 15, 2017 decision in PCC Structurals, Inc., the Board overruled the 2011 decision in Specialty Healthcare & Rehabilitation Center of Mobile. Under Specialty Healthcare, an employer seeking to expand the bargaining unit in a union’s petition for a representation election must show that the additional employees shared an “overwhelming” community of interest with the employees in the petitionedfor unit. The Board has now eliminated the “overwhelming” requirement and returned to the traditional “community-of-interest” standard. • Unilateral Changes. Also on December 15, 2017, in Raytheon Network Centric Systems, the Board overruled a 2016 decision in E.I. du Pont de Nemours. Du Pont required employers to give a union notice and an opportunity to bargain over changes to employment matters, even when the changes are consistent with past practice, if the past practice was created under a management rights clause in an expired collective bargaining agreement or if the actions involve employer discretion. The Board now holds that no notice or opportunity to bargain is required: (1) when the changes are similar in kind and degree with an established past practice, or (2) simply because some degree of employer discretion is involved. New General Counsel and Mandatory Submissions to Advice, GC Memorandum 18-02 The momentum of change at the NLRB was not limited to the pro-employer decisions rapidly flowing from the briefly Republicancontrolled Board. In December 2017, Republican Peter Robb, the newly-appointed NLRB
General Counsel, issued his list of priorities in a GC Memorandum. The impact of the Memorandum is considerable and provides employers with an even brighter light at the end of the tunnel. While the changing composition of the fivemember Board has received the most media attention of late, the General Counsel also deserves close attention because he plays a critical role in shaping national labor policy. Indeed, as General Counsel, Robb has extensive, unreviewable discretion in the issuance of complaints and is the gatekeeper in determining which cases advance to the Board for decision. He is also responsible for the Board’s local regional offices and their attorneys throughout the country, and helps set Board policy by instructing regional offices and their lawyers on the handling of cases and identifying issues and policy initiatives the general counsel chooses to pursue. Sworn in on November 17, 2017, Robb wasted no time in issuing comprehensive guidelines to the agency which unequivocally indicate that the era of unbridled activism and overreach by the Board will likely end. In his memorandum, titled “Mandatory Submissions to Advice, GC Memo 18-02,” Robb identified a number of issues that must be submitted to the Division of Advice by the Board’s Regional Offices and observed that “the last eight years have seen many changes in precedent” from longstanding Board holdings, “often with vigorous dissents.” It appears Robb intends to lead the charge to correct the Board’s drift away from established precedent by requiring a number of issues to be submitted to the General Counsel’s Division of Advice, which is charged with providing guidance to the regional offices regarding difficult and novel issues arising in the processing of unfair labor practice charges. Robb’s identification of issues that must now be submitted to the Division of Advice provides a clear indication of his intent to return to the longstanding precedent. The Mandatory Submissions Memo identifies a broad group of recent Board precedents and topics that must be submitted to Advice, where it is likely the new General Counsel will ask the Board to return to pre-Obama Board interpretations of the NLRA and practices.
This group includes: • Use of Employer Email Systems. The Mandatory Submissions Memo calls for the submission to Advice all cases involving claims based on Purple Communications’ holding that “employees have a presumptive right to use their employer’s email systems to engage in Section 7 activities. The Memorandum also explains that the new General Counsel is effectively overruling prior Advice memoranda in which his predecessor, noted his initiative “to extend Purple Communications to other [employer owned] electronic systems,” such as the internet, phones, and instant messaging systems that employees regularly use in the course of their work. • Policies in Employee Handbooks. The Memorandum indicates the General Counsel will likely be asking the Board to reexamine a broad range of holdings in which policies and conduct standards contained in employee handbooks and work rules were found to interfere with an employee’s Section 7 rights, often in non-union workplaces. These will include cases finding rules prohibiting ‘disrespectful conduct,’ rules prohibiting the use of cameras and recording devices in the workplace, and policies concerning confidentiality in investigations. • Cases Involving “Obscene, Vulgar, or Other Highly Inappropriate Conduct”. General Counsel Robb will now be considering whether the Board went too far in prior cases by holding that the NLRA protected an employee who posted expletive-laden social media posts, in which he hurled vulgar attacks at his manager and his manager’s mother and family. The prior ruling in NLRB v. Pier Sixty, LLC found that, although the employee’s conduct sat at the “outer bounds of protected, union-related comments,” it was not so “opprobrious” as to lose the protection of the NLRA.
• Joint Employer Standard. On the heels of the Board’s Hy-Brand ruling, the General Counsel will now require submission to Advice any case involving “joint employer status based on evidence of indirect or potential control over the working conditions of another employer’s employees.” • Cases Involving Significant Legal Issues. The General Counsel has also directed that any case involving a “significant legal issue” be submitted for guidance, which specifically includes “cases that involve issues over the last eight years that overruled precedent and involved one or more dissents.” • Definition of Concerted Activity for Mutual Aid and Protection. In cases such as Fresh & Easy Neighborhood Market, the Obama-era Board expanded the circumstances in which it would find an employee’s actions to be protected, holding that an employee’s actions involving a matter in which “only one employee had an immediate stake in the outcome to be protected.” These cases must now be referred to the Division of Advice, where it is anticipated General Counsel Robb will ask the Board to reexamine these decisions. Over the past eight years, employers have been relegated to pursuing expensive appeals before federal courts in order to obtain judicial review of NLRB rulings, many of which created a tsunami of compliance challenges. These cases will no doubt continue to be hotly contested. Nevertheless, the labor relations tide for 2018 is changing for many employers, likely for the better.
M. Kim Hodges, Shareholder Ogletree Deakins Kim.hodges@ogletree.com www.ogletree.com
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Breaking Up Is Hard To Do: 10 Reasons to Rethink Turnover By BRAD FEDERMAN
The war for talent has been heating up for some time now. The unemployment rate is about 4.1% and wage growth, which has been anemic for years, has started strengthening in the last four to five years. When you add all of that together it equals…Turnover. Or at least the perception that turnover is coming. It also means employers are struggling to find good talent. At the same time keeping current employees happy and engaged becomes more challenging. Employees know they are worth more and they will start to demand more; and not just in compensation. Employees will look for opportunities to work on cutting edge projects, enjoy cultures that are more pleasant and find organizations that are making a difference in their community and the world at large. With so much pressure we get into the mindset of…how do we keep our people? But really should we? We really shouldn’t. In fact, it may be just the time to let some people go. I know. I know. That sounds crazy. What about the cost of turnover? What about the increase in compensation costs? What about the loss of expertise? There are always two sides to a coin. What about the cost of keeping someone? What resources will we have to use to keep them happy and what will be the impact on others and other priorities? What expertise could we bring in? The truth is keeping certain people may cost you more than letting them go. In fact keeping certain people may cost you the productivity, engagement and retention of others. Keeping certain people may be hazardous to the health of the organization. Even though the churn can impact productivity, cause you to lose time, recruiting and on-boarding can cost money, and engagement and morale can take a hit; maybe…just maybe there are some real reasons and times turnover is of value. After all, shouldn’t we challenge the predominant wisdom that says; turnover is bad! What is the negative impact of tenure and why can some turnover be good? 1. C hange is fast, wild, unpredictable. With the computing power we have today, the playing field has been leveled. One person named David can truly take on a Goliath like IBM. Thomas Friedman calls it “The Power of One.” That means organizations can only stay ahead of the curve based on the intellectual capital and drive within their associates. Static employee populations don’t typically drive change and dynamic new ideas. A strong team will always outperform one person, but not if they don’t have the right team members. And as the needs of your business change so will your needs for talent. If you want to keep up with a dynamic economy you will need an energetic, ever-changing employee population to meet the challenge. 2. Performance will plateau or decline. Each of us has limits on our time. We cannot get more hours in the day. A teller can only handle up to so many transactions a day. At some point an employee’s performance plateaus. But the problem is deeper than that. Some of the 14
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weakest performing companies have long tenure rates. In fact, one study from MIT demonstrated that when team tenure hit five years, performance clearly declined. Part of the reason… the team looked inward. They developed a “Not Invented Here” mentality. 3. C ompensation costs can become unmanageable. While performance may not go up with tenure, compensation sure does. We handle that by reducing percentage increases or even freezing someone’s ability to get paid more. Typically, when this occurs a person’s morale drops and so does their performance. A Walmart study determined the cost of a seven year associate was close to 55 percent more than a one year associate. Regardless of our preferences…costs do go up with tenure. 4. T he razor’s edge of lifelong learning will dull. When we are new, we are eager to learn and we have a need to prove ourselves; to prove our worth. As we gain status in our organizations we really lean on our expertise - meaning what we already know and are good at. Everyday I have conversations with executives about how to handle people who no longer want to strive for more; that no longer want to learn and grow. They are concerned because they know they have people that want to just keep doing what they are doing, the same way they have been doing it until they are ready to retire. These are not poor performers, but they are no longer the best performers and their attitude can hurt the organization in the long run. 5. R esistance is futile, but some will resist anyway. Much like the high school star quarterback who likes to relive their former glory days, some employees live in the past. They remember what the organization used to be like and they want that back. They distract others by reliving the “old” days and reduce morale by complaining about what the organization has evolved into. And even worse, they become a pariah because their co-workers are not stuck in the past. 6. M any protect what they built. Fiefdoms are built and then they are protected. When we have nothing, we take risks; we take chances. Our goal is to make our mark. When we are established we tend not to rock the boat. Our goal
is to look good and preserve what we have even if that is our reputation. Defense is always good. But you can’t win a game without scoring goals. So the saying goes the best defense is a good offense. 7. D ead bodies destroy engagement. We have a saying in our business…You may have the bodies, but how many souls have left the building. That is worse than turnover; people who have lost their passion. You can walk through some company buildings and they seem filled with lifeless bodies; I guess you could consider them the equivalent of a corporate Zombie. These types of employees create a culture of mediocrity because they are tolerated. And what is worse is that their soulless existence spreads like wildfire to others. It can be cancerous to an organization’s success. Should we focus on engaging our employees…yes. But those that have disengaged may need to go. 8. Blind spots become prevalent and bigger. Groupthink is the psychological phenomena that arises inside a group when the yearning for agreement or conformity causes a pointless, irrational and/or dysfunctional decision-making result or conclusion. People no longer play devil’s advocate, ideas are hidden, solutions and problems go unexplored all in the name of minimizing conflict. This type of behavior can occur with groups that have become too familiar overtime. And unfortunately, important factors are missed or overlooked completely.
zations that have a great deal of tenure tend to disregard the opinions of newer employees. When less tenured employees are slighted, they leave and tend to attract negative publicity. What makes that situation worse today is for those employees to use social media and the internet to spread negative public relations like wildfire, hurting your recruiting efforts in the process. Think GlassDoor or Indeed. 10. Stale and out of touch mentalities can take over. When an organization has a great deal of tenure, new ideas are not brought into the mix as often. And when an organization has been successful over time it can become even worse. These types of organizations often develop a “not invented here” mentality when it comes to new ideas leaving the tried, proven, but no longer helpful or relevant strategies to prevail. Over time competitiveness falters and the organization suffers. The truth is we want turnover. We need turnover. We just want controllable turnover. We want and need to keep the very best and clear the deadwood. High amounts of voluntary turnover should set off alarms. But organizations must make difficult choices and sometimes that means parting ways even with good people. If handled proactively and in a respectable manner everyone can win. The organization can become stronger and the employee can find a place where they are a better fit and may even reignite their passion and performance. The key is to “name the game.” Share the rules with everyone and be transparent in the process.
9. Discounting “newbie” perspectives hurts recruiting and retention. New blood definitely has a lot to learn. But they also have a lot they can teach. However, all too often organi-
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Someone is definitely training your employees about what harassment is and how to fight it. Make sure your own organizational message is clear, sincere, and backed up by appropriate action. The EEOC recently released data for the fiscal year ending September 30, 2017 indicating an overall decrease in charges and a drop in sex discrimination and sex harassment charges as a percentage of overall filings. https://www.eeoc.gov// eeoc/statistics/enforcement /charges.cfm In Tennessee, sexual harassment filings actually increased by a total number of two. Mississippi saw a slight increase as well. In Georgia, the change was slightly more marked. There, 36 additional complaints were filed in the fiscal year which just ended as compared to the previous year. What happened after September 30th, and what will it mean for employers? The Harvey Weinstein story broke on October 5th. Alyssa Milano’s tweet reignited Tarana Burke’s #MeToo hashtag on October 15th, and the news has been dominated ever since by stories of unchecked sexual misconduct, much of it workplace related. Launched January 1, 2018 in the days leading up to the Golden Globe awards, the Time’s Up initiative, a response to the #MeToo wave, declared war on sexual assault, harassment and inequality in the workplace. Hollywood scandals and arguments aside, it’s a big mistake to discount the movement’s potential impact. Time’s Up dominated social media in early January and its website quickly morphed beyond a banner page, logo and manifesto. Visit the site at https://www. timesupnow.com/ LEGAL FUND. 19,000 donors raised $20 million by February, much of it in $20-$100 increments. Several individuals, including Reese Witherspoon, Jennifer Aniston and Meryl Streep, donated $500,000 each. The National Women’s Law Center (NWLC) will administer the fund, anticipated to facilitate charges or cases on behalf of low-wage earners or complex litigation. The legal initiative is spearheaded by attorneys Tina Tchen (former Chief of Staff to Michelle Obama) and Roberta Kaplan (whose clients include Edith Windsor, the plaintiff in the Supreme Court case invalidating the Defense of Marriage Act, Airbnb, and the Minnesota Vikings, to name a few), and is aided by top public relations professionals. NETWORK OF LAWYERS. But that’s not all. The NWLC is also the home to the Legal Network for Gender Equity, a national network of more than 300 attorneys who agree to provide at least one free consultation and to consider representing individuals who claim to have experienced sex discrimination. That initiative predated the Time’s Up launch, but recent events substantially boosted its profile. 16
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What’s Up with Time’s Up? By ANN ELIZABETH SARTWELL
LITIGATION-ORIENTED EMPLOYEE RESOURCES. Consider just one of the “additional trusted resources” linked to the Time’s Up page. Betterbrave. com is the brainchild of Tammy Cho, Grace Choi and Annie Shin, successful tech colleagues who just recently reached legal drinking age. Easy to navigate, attractively uncluttered in design, and packed with direct language tailored to specific situations, the site is a virtual instruction manual for individuals who believe they have been harassed, discriminated or retaliated against at work. Cho and her friends developed Betterbrave. com in the wake of Susan Fowler’s stinging indictment of Uber and its HR Department’s response to her complaints of sexual harassment. Cho makes no apology for the site’s emphasis on “lawyering up.” “We heard a lot of stories where HR mishandled the case.” LEGISLATIVE EFFORTS. Employers cannot assume that this issue is a “blue state” or “big city” phenomenon. Gretchen Carlson, whose $20 million settlement with 21st Century Fox brought Roger Ailes’ tenure to an end, published “Be Fierce” on September 26th, 2017. That bestseller contains a detailed 12 step “how to” guide to stopping harassment, complete with very specific tips. She also lobbied for the introduction of the Ending Forced Arbitration of Sexual Harassment Act of 2017 in December of 2017, a bipartisan, bicameral bill introduced by Representative Cheri Bustos (D-IL) and Senator Kirsten Gillibrand (D-NY). Senators Lindsey Graham (R-SC), Lisa Murkowski (R-AK), Kamala Harris (D-CA), and U.S. Representatives Walter Jones (R-NC), Elise Stefanik (R-NY), and Pramila Jayapal (D-WA) are cosponsors. The bill has not yet made significant headway toward passage, but it bears watching. COMPLACENCY IS NOT AN OPTION. It’s foolish to believe that the most serious forms of misconduct are historic artifacts or confined to the news, entertainment and restaurant industries. The EEOC announced a lawsuit in February against SMX, a light industrial staffing company. It alleges that a supervisor who was reported on multiple occasions called an employee “baby,” told her she was “sexy,” asked her for oral sex in exchange for overtime, and exposed his genitals ... and that he was not fired. WHAT TO DO? Focus on what matters. There is no substitute for honest, direct communication. Listen up so your employees will speak up (before and hopefully instead of “lawyering up”). Ironically, some practical lessons may come from some of the farmworkers whose open letter of support to Hollywood insiders sparked the Time’s Up launch itself. The Coalition of Immokallee Farmworkers negotiated agreements with buyers that account for more than 90% of Florida’s tomato industry production to protect workers against workplace sexual misconduct. Key features of the Fair Food Program code’s implementation include a 24 hour hotline and multi-pronged worker training. Every new worker gets a take home pamphlet on their first day and watches a video before beginning work. After beginning work, each worker receives worker-to worker training in the field. Additionally, an outside firm conducts annual unannounced onsite audits of select sites, surveying at least 50% of workers, crew leaders and supervisors. Many more supervisors who have violated the policies have been disciplined rather than fired, but terminations do happen. Growers understand that continued access to key customers depends on their commitment to enforcement. This program is successful because it includes: • Multiple training methodologies and consistent messaging, including in-person training with emphasis on shared responsibility for a safe, productive work environment; • Multiple reporting mechanisms; • Effective investigatory procedures and remedial actions, with financial incentives tied to key actors’ roles; and • Regular climate/cultural surveys.
PUTTING BEHAVIOR INTO PERSPECTIVE. Not all workplace conduct is the same. “Aristotle distinguished between mistakes and wickedness. So can we,” says Kathleen Kelley Reardon, Professor Emerita, University of Southern California Marshall School of Business, who proposes the following Male to Female Spectrum of Sexual Misconduct at Work (January 22, 2018 Draft 2) as one tool employers could adapt for their own use: • Non-offensive (Common remarks on such things as hair style and dress): “You look nice today,” “I like your haircut,” “Nice outfit,” “That’s a good color on you,” “You look lovely.” • Awkward/Mildly Offensive (Comments involving or implying gender distinctions unfavorable to women): “You would say that as a woman,” “I suppose it’s a woman’s prerogative to change her mind;” “We can’t speak frankly around you women anymore.” • Offensive (Gender-insensitive or superior manner): Holding a woman’s arm while talking to her; uninvited hugs; patronizing, dismissive or exclusionary behavior; making stereotypical jokes about women, blondes, brunettes, red-heads, etc.; implying or stating that women are distracted by family. • Highly Offensive (Intentionally denigrating): Joking or implications about a woman’s intellect or skills being limited due to her gender; labels like “ice queen” or “female mafia;” comments on physical attributes used to embarrass, insult or demean. • Evident Sexual Misconduct (Usually crude or physically intrusive): Looking a woman up and down in a sexually suggestive manner; grabbing, unwelcome holding, touching or kissing; ignoring a woman’s expressed disinterest in a personal or intimate relationship; crude jokes that demean women; describing women with such terms as “slut” or “frigid.”
• Egregious Sexual Misconduct (Typically involves coercion, sexual abuse, or assault): Overt sexual behavior while a woman is present; pressing against a woman suggestively; threatening or implying career damage to a woman who refuses to engage in sex or sexual behavior; forcing or coercing a woman to have sex. The spectrum framework has multiple potential applications. Trainers can point to specific problematic behaviors shy of outright assault that could lead to discipline. Employer representatives can utilize the framework to keep expectations about potential consequences for policy violations realistic for both the accuser and the accused. It could also help organizations identify where their real vulnerabilities lie. If a large factory’s reported pattern of mildly offensive or gender insensitive remarks suddenly spikes into highly insensitive remarks or incidences of crude or physically intrusive behavior, there may still be a narrow window of opportunity to avert the kind of conflict that leads to litigation. While the spectrum brings questions of severity into focus, what it does not do is bring insight into the context and frequency of individual behavior. Reardon herself acknowledges that the tool is only a conversation starter, not the last word, on workplace misconduct. Bill’s single, intemperate, vulgar outburst at a coworker with whom he has a legitimate source of conflict is a different matter than John’s habitual, widely broadcast, sneering references to “little girls” and “their feminine intuition.” Those additional factors are critical in distinguishing between mistakes, wickedness, and the sometimes messy ground between.
Ann Elizabeth Sartwell Senior Associate Wimberly Lawson Wright Daves & Jones, PLLC Knoxville, Tennessee office asartwell@wimberlylawson.com
We know our way around a courtroom. We also know you’d rather not be there in the first place. From sexual harassment to employee leave to social media, our labor & employment team offers training on a wide variety of issues to help HR departments achieve best practices in the workplace. Our goal is to help you prevent employee claims that could lead to agency investigations or even litigation.
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A Powerful Combination
SHRM-backed legislation provides paid leave and workplace flexibility guarantees By LISA HORN
Nobody understands the pressures of modern life in the workplace better than human resource professionals. Not only do HR pros spend their workdays addressing the needs of employees who are trying to meet their many work and family obligations, they face those same challenges themselves. The pressure to deliver at home and on the job has never been more intense. Moms and dads struggle to take care of sick children – or just pick them up from day care – while meeting the next project deadline. Experienced professionals balance company budgets while arranging for long-term care for aging parents. The list goes on. Meanwhile, thanks to waves of new technology and innovation, the definitions surrounding where and how work gets done have been transformed. That woman on her laptop in the local coffee bar could be ‘pinning’ her favorite hike or completing a proposal to snare her next big client. The pace of change and the pressures of modern life are accelerating, which is empowering and stressful at the same time. I’m a working mom, so I can certainly relate to the challenge of how to do it all. Many HR pros reading this also know one of the reasons why workplace policies are especially frustrating is that American workplace laws are outdated, like the confusing patchwork of state and local paid sick leave laws. These laws make the world of work even tougher to navigate. Solving these kinds of challenges is what we do at the Society for Human Resource Management (SHRM) – it’s at the heart of our mission to deliver for HR professionals and the organizations they serve. To address the intertwining trends of family obligations, the anytime-anywhere workplace and lack of policy clarity, SHRM and its members spent the last few years developing a policy solution that would allow employees to better navigate their work-life obligations, meet the needs of employers and appeal to members of Congress on both sides of the aisle. We call it Workflex – a fresh approach to managing the workforce that allows a range of options over where, when and how work gets done. Last year, Rep. Mimi Walters (R-CA) took this effort to the next level when she introduced H.R. 4219, the Workflex in the 21st Century Act. This SHRM-supported bill would provide guaranteed paid leave and Workflex for all employees at participating employers, while granting those employers relief from varying state and local requirements. First, the bill would require participating employers to offer a guaranteed level of paid leave to each employee – more generous than all mandated state leave requirements – in exchange for a federal standard that supersedes state and local laws. Employees get guaranteed leave, and employers get predictability and equity across their workforce. Second, our Workflex bill would require those same employers to offer every employee a flexible work arrangement. Employees would gain access to a range of options, including working from home, flexible scheduling or compressing their schedules into fewer days per week, for example. Employers would determine which workflex option would work for each job position and, ultimately, would benefit from more productive employees. The bill does all that – and it’s voluntary with no cost to taxpayers, to boot. Under this legislation, we can take an important step forward in our efforts to empower our people to handle their individual life and work demands with less stress. 18
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That evenhanded approach has been noticed. Both the Progressive Policy Institute and the Republican Main Street Partnership have endorsed the bill, and a number of employer groups, including the National Association of Women Business Owners and the U.S. Chamber of Commerce, have joined the SHRM-led Employers for Flexibility (E4F) coalition to promote the bill more broadly. You can learn more at www.employersforflexibility.org. HR professionals will benefit from this bill, both as employees and workforce managers, so we invite each of you to learn more and reach out to your member of Congress to invite him or her to support the bill. You can learn more and get involved at advocacy.shrm.org/workflex.
The Workflex Bill Delivers The SHRM-supported bill – the Workflex in the 21st Century Act – is a critical component in the effort to create a 21st Century Workplace. The bill promotes policies that work for employers and employees alike, helping them meet work-life and organizational needs. The Workflex in the 21st Century Act provides more time off for employees, more predictability for employers and more options for everyone. The Benefits • New Approach: The proposal is a new approach to expanding paid leave and workplace flexibility options for employees, reflecting today’s most innovative workplace strategies. • Voluntary, Opt-in System: The proposal would allow employers to voluntarily offer employees a qualified flexible work arrangement plan under the Employee Retirement Income Security Act (ERISA) that includes a federal standard of paid time off and options for flexible work arrangements, such as telecommuting or compressed work schedules. This ERISA-covered plan would pre-empt state and local paid leave and Workflex laws. • Fiscally Responsible: This voluntary approach would counter expensive, one-size-fits-all mandates and expand coverage – without passing costs on to taxpayers or employees. Employers Win • Employers Gain Predictability: Employers who opt in would enjoy improved predictability by being able to follow a federal framework for paid leave and Workflex, as opposed to the complex, conflicting patchwork of state and local laws. At the same time, employers would have the flexibility to offer more paid leave to meet the needs of their employees and the organization. Employees Win • Paid Leave Guaranteed to All Employees: Employees of employers who opt in would receive guaranteed paid leave that exceeds all current state mandates, while employees of employers who do not opt in would continue to be covered by state and local paid leave provisions. • Workflex Guaranteed to All Employees: Employees of employers who opt in would receive guaranteed access to flexible workplace options. Millions of employees will gain access to workplace flexibility for the first time.
Lisa Horn Director of Congressional Affairs and Executive Director of Employers for Flexibility The Society for Human Resource Management lisa.horn@shrm.org www.shrm.org
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Elevate the Candidate Experience: Choose an ATS and Background Screening Provider that Work Together By SONYA WEATHERS
The candidate experience is huge. Do it wrong, and you lose out on high-quality A-players.
connect, and general reminders of the progress of the hiring decision. There is less of a chance of communication being delayed or forgotten.
According to a CareerArc study:
Why use a Background Screening Provider? With 90% of companies performing some type of background check on potential employees, most HR professionals understand that background checks are helpful in a variety of ways.
“Upwards of 60 percent of candidates report having had a poor experience with a company. Of these, 72 percent have shared it with other people online or in person.” This insight shows that most companies need improvement on their candidate experience. An ATS coupled with a Background Screening Provider integration may be the solution. An ATS manages the entire hiring process, helping increase internal and external communication and the quality of new hires. A Background Screening Provider assists in uncovering what is not readily available on a candidate’s resume, application, or during the interview. Information that is important for HR to know about can be found with a thorough background check of the job applicant. A company’s ATS and Background Screening Provider both contribute to or take away from the overall candidate experience. Why use an ATS? There are two great reasons employers invest in an ATS system to improve the candidate experience. Manage data more effectively. HR is responsible for miles of data on both the candidates that are hired and those that aren’t. Compliance depends on it. An ATS is integral in the proper management and storing of data that was gathered and used in the hiring decision. Strengthen communication with applicants. “51 percent of candidates who do receive notifications about their applications report that it typically takes a month or more”. One of the biggest complaints job seekers experience is lack of communication. An ATS assists with this with automated information sent via email, reminders to 20
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Hire the best candidates. Avoid the candidates who aren’t qualified and spend more time on the ones that do fit the job description requirements. Protect the company’s reputation. One bad hire can tarnish a company’s image to the point it takes years to recover. A background check can minimize the chance of this happening. Reduce turnover. Choosing the wrong person for the job most likely means you will be hiring for it again soon. This disrupts team morale, productivity, and costs money. A reputable background screening provider helps make a more informed, thorough decision about the candidate.
The Challenge There are hundreds of ATS systems to choose from, and dozens of Background Screening Providers to do business with. How do employers make the best decision on the ones that will work together for them? Here are “Five A’s” to consider when choosing an ATS and Background Screening Provider that will work together to elevate your candidate experience. AUDIT your current processes. How are you handling the candidate experience now? What is working? Where are the weak spots? Once you examine and measure your current process, you will better understand how to improve it.
ANALYZE your current hiring needs. How many people will you be hiring in the next 6, 12, 18 months? What types of positions will you be filling? These answers give insight into the importance of creating a positive candidate experience. ANTICIPATE working with informed account executives with both vendors. The ATS and Background Screening representatives should be able to answer your questions and help you see the benefits of working with them. If either is not helpful or seem unable to answer your questions, seriously consider moving to the next one on your list of options. ASSESS the integration and what it means to you. Just because an ATS and Background Screening Provider integrate doesn’t mean they are your best choices. If you don’t think your needs will be met, ask the vendors you feel confident in to create an integration for your company. Make sure you have wording on the contract that says the ATS is willing to work with or integrate with your preferred background screening provider. ATS providers that already have an API usually can integrate with background screening providers easily. ADDRESS specific qualities in both the ATS and the Background Screening Provider systems. How long is the lead time? Are both platforms robust? It’s imperative that both vendors can return the information you need in a timely manner so you can progress with your hiring decision and not lose good candidates to your competition. Once you consider and decide on these, you are better able to choose which ATS and Background Screening Provider will best fit your needs and assist you in your hiring decision and overall candidate experience. Choosing the best candidates can seem challenging and overwhelming but it doesn’t have to be. By putting a framework of tools in place in advance, you will be able to move from one stage of the hiring process to the other and end up with great candidates who are appreciative of your respectful, thoughtful candidate experience. All of this begins with choosing an ATS and Background Screening provider that work well together to accommodate your company’s specific needs.
Sonya Weathers National Account Executive sweathers@datafacts.com www.datafacts.com
Highlights of the FordHarrison Breakfast Briefing - February 1, 2018 at the Hilton Memphis With the increased focus and daily onslaught of sexual harassment allegations, this briefing focused on what constitutes effective policies, investigations, and training for employees, including management level employees. The program was interactive and comprehensive, and covered how to take appropriate actions and how to modify current policy and training protocols.
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1 Robbin Hutton, partner; and Louis Britt III, regional managing partner with FordHarrison in Memphis, were the speakers at the complimentary breakfast briefing at the Hilton Memphis on February 1. 2 FordHarrison attorneys in attendance at the breakfast briefing.
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3 Felicia Hartsfield with International Paper and Vanessa Frazier with MIFA. 4 Robbin Hutton with FordHarrison and Elizabeth Sellers, Director of Human Resources at New Horizons Computer Learning Centers. 5 Frank Day, Counsel with FordHarrison; and Tracy Lindow, Senior Consultant with F&H Solutions Group. 6 Robbin Hutton with Sarah Norton, Chief Cousel - Labor and Employment Law at International Paper in Memphis
Over 100 HR professionals registered for the breakfast briefing.
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Adjusting your HR and Compensation Strategy Post Tax Reform By AUSTIN BAKER
2018 started off with a major bang in the form of a new tax bill pioneered by the Trump administration. The bill’s major provisions include lowering the corporate tax rate to 21%, effective in 2018, and repealing the individual mandate under the Affordable Care Act, beginning January 1, 2019. Though, this bill will likely have a varying impact on many different organizations of all sizes, it’s goal was to essentially give greater tax breaks to larger organizations in hopes of it trickling down to the US workforce. Below, we’ve highlighted areas of potential interest to HR executives that are beyond the law’s headline changes to tax rates and the standard deduction. The new provisions take effect in 2018 unless otherwise noted. The bill: • Expands disincentives for certain executive compensation • Adds a temporary tax credit for certain paid leave programs • Eliminates deductions for sexual harassment and sexual abuse settlement payments and attorney’s fees if payments are subject to a non-disclosure agreement • Suspends the moving expense reimbursement exclusion and moving expense deduction • Disincentives for certain fringe benefits • Provides Tax Credits for FMLA for 2018 and 2019 • Allows employees of private corporations to defer Income on stock received upon exercising an option or the settlement of a restricted stock unit Optimism for business growth is at an all-time high after the announcement of the tax bill. In a study by the NAM’s (National Association of Manufacturing), Manufacturers’ Outlook Survey for the fourth quarter of 2017, manufacturers’ optimism has risen to unprecedented 22
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heights amid the legislative progress made on tax reform. Findings show: • 6 3% of respondents said comprehensive business tax reform would encourage their company to increase capital spending • 5 7.9% would expand their businesses • 5 3.8% would hire more workers • 4 8.8% would increase employee wages and benefits So far, several notable organizations have been making news considering these tax breaks. Following are just a few diverse examples of how some companies are using the additional capital from the tax breaks to invest into the economy. Apple (Cupertino, California) – $2,500 employee bonuses in the form of restricted stock units; $30 billion in additional capital expenditures over five years; 20,000 new employees will be hired; increased support of coding education and science, technology, engine FedEx (Memphis, Tennessee) – More than $3.2 billion in wage increases, bonuses, pension funding due to the recent tax cuts. Pay raises, bonus increases, pension plan increases, and at least $1.5 billion in capital expenditures:
Keys to Sustainability and Communication Multi-Year Approach to Sustainability – Bonus or Raise? Many companies plan to invest their tax breaks into a portion of their business and/or community with a belief it will benefit them long-term. These investment practices include one-time bonuses, raises, pension funding, benefits contributions, and community giveback efforts. One practice that seems to be the most popular for most organizations is the one-time bonus. Willis Towers Watson, in an analysis of public announcements made by employers found that as of January 12th, 88 companies have committed to making one-time bonuses ranging from $150 to $3000, compared with 35 that have adjusted their minimum wage and 10 or so others that have announced some other form of compensation or salary change. Why are the one-time bonuses more prevalent than the raises? Many argue the answer to that question is the long-term cost savings. Bonuses are easier for employers to hand out than bumps in base pay because they don't increase a company's fixed costs over time, while salaries represent the single largest percentage of direct labor costs. The one-time bonus easily generates good will, puts money into employees' pockets, and doesn’t add any long-term compensation commitment. From the employer’s standpoint this is obviously a dream! A one-time benefit to temporarily increase morale and workplace engagement, all while receive amazing PR (as seen by all the positive news articles). However, some would argue that from the employee’s viewpoint, the investment will likely not be viewed as effective as a raise. Trends have shown that employee job satisfaction and engagement increase alongside higher salaries and plateaus after a certain point is reached. Though this method proves to be costlier, increasing the salary will be a better long-term commitment to maintain the engagement of employees.
Visa (Foster City, California) – Significantly increased permanent contributions to employee 401(k) accounts Wal-Mart (Bentonville, Arkansas) – Base wage increase for all hourly employees to $11; bonuses of up to $1,000; expanded maternity and parental leave; $5,000 for adoption expenses
Changes to Organizational Design As the tax break money flows in, the malleability of an organization will increase. Incoming capital can create flexibility for an organization to meet the challenges posed by business realities and significantly increases the likelihood that the collective efforts of people will be successful.
Upgrading the strategic plan of the organization business strategy dictates the design principles of the future-state organizational model, making possible the alignment of strategy and structure. Based on business strategy and conceptual design, companies can look across several organizational dimensions (e.g. capabilities, talent, culture, leadership) to improve performance, meet organizational objectives, and strengthen operational efficiency.
Human Capital Management As we saw in the examples earlier, direct compensation wasn’t the only way employers have invested into their organization. There have also been policy changes for more flexible hours, better leave policies, larger healthcare contributions, community giveback opportunities, stock share, and more. Understanding alternative reward development around this tax bill is critical for maximizing the potential of the workforce engagement. An internal HCM upgrade could maximize the efficiency and return of the organization’s re-investment of the tax savings significantly. A few areas where investing in a more efficient HCM platform, which could improve and optimize functions, include:
• Core HR, including payroll, benefits administration, onboarding, compliance management and maintenance of employee data; • Talent management processes for recruiting, developing and retaining employees; • Workforce management processes for deploying employees with the necessary skills to particular regions, departments or projects including time and attendance management, workforce planning, labor scheduling and budgeting; • Service delivery including HR help desks, intranet portals, employee self-service and manager self-service.
Summary Regardless of the politics debating if the “trickle down” effect of the tax bill is real, we can say for sure that the actions many employers have taken as a result have made national headlines. One thing is for sure; your employees are seeing these headlines. Not communicating and doing nothing is probably not an option. Take time to analyze your compensation strategy in light of the current marketplace and prepare now to protect your human capital assets through strong, current, and grounded compensation practices.
About the Author Austin Baker is the President of HRO Partners, a human resources consulting and benefit administration and enrollment firm as well as a National Enrollment Partner Member representing the largest boutique, full service insurance and enrollment firms in the country. A veteran of more than 16 years in the human resources industry insurance and benefits industry, Baker is responsible for managing a multi-faceted human resources consulting company with public workforce programs and services focused on companies in the southeastern United States. Austin is a frequent speaker on a variety of leadership and benefit topics representing thought leadership and innovative practices in the HR industry. For more information, call Baker at 1-866-822-0123, visit www. hro-partners.com or connect with the company at www.facebook.com/hropartners, http://www. linkedin.com/in/jaustinbaker or http://twitter. com/jaustinbaker hropartners
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7 Ways to Balance Finance and HR in a Growing Organization By KEVIN HOMMEL
I suspect that many of you may very well wear both the Finance and Human Resource hats in your business. As I meet key leaders from other organizations, it’s a not-so-uncommon reality. Most financial leaders in small to medium sized companies wear more than one hat, probably because handling many responsibilities and providing leadership to multiple areas of the business is what landed them in a leadership role in the first place.
they see problems, (and they will see them way before you do) they’ll be able to determine which ones cost you the most time and money. During your normal rhythm of meetings, they can provide sound information to leadership and can help you solve the most critical issues before they get out of hand.
So let’s start there.
Whatever key elements affect your cycle, keep them in front of people so everyone knows what you’re doing well and what you need to improve. This is probably the one thing we do that surprises most people who visit our offices. We track everything, and we have all the metrics displayed on whiteboards all over the offices. Everyone knows where we stand on the key data points because they’re right there for everyone to see.
Let’s acknowledge that these two areas of the company may have to fight for resources, relevance, and room to breathe, all through the eyes of the same person. Given this reality, I thought a better read might be advice on how to successfully juggle the needs of both, straight from the keyboard of someone with almost 10 years of experience doing just that. So here are seven ways to strike a great balance between HR and Finance, to ensure you provide the right support to your people and remain a good steward of your company’s financial resources:
Hire Like You Can’t Fire Few things are as big a drain on the resources of a company as making a bad hire. Finance and HR can both agree on this. So when you’re hiring, define your salary range, market your position, and interview candidates for culture fit. The questions you ask them should show you care a lot more about how well they’ll fit into the organization than about the technical aspects of the job. Try to hire someone you can’t fire. Six months from now you may have them in a different role anyway, so the main focus should be on bringing in the best person for the company.
Invest in Training The leaders in your key operational areas should do some level of training daily or weekly with their team(s). While this sounds like a no-brainer, it takes resources of time and materials to pull it off well and keep it going consistently. Training will help you keep good people because you’re helping them be more effective, which helps stretch their capacity and efficiency. This is good for both HR and Finance because you get more production per person and avoid having to add or rehire people too soon.
Teach Them How Their Job Affects Others We call this the ripple effect. In orientation, we have each new team member spend time with other departments throughout the company. They learn what is important for the success of other positions and departments, and get to see first hand how their own wins and losses will affect the rest of the company. As the company grows and becomes more complex, this becomes more crucial. It takes time, but pays off in the long run.
Explain Your Operating Cycle Make sure all team members know your product or service cycle. This falls under that daily or weekly training at the micro level. You want the people on the front lines to understand your operation well enough that when
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Publish the Scorecard
Define Your Culture and Own It Your hiring process is the starting point for this, but it goes beyond that. Be who you are, don’t apologize for it. Guard your core values and make them the filter for all decisions. This means sometimes you have to say no to potential clients. But I can promise you this pays off in the long run as well. Nothing tells a team member you support them more than firing a client who doesn’t respect your team. It isn’t easy, but doing the right thing sometimes takes guts. And every time you turn away a potential sale because it might be the wrong sale, your team grows stronger in support of your culture and each other.
Develop the Bench If you do all these things well above, you will find out that you grow at a pace that’s quicker than you can develop people. So you can never start too early focusing on the next level of leaders. The way I do this is I make myself available to them and I include them in situations that will help them grow. Also, I am not afraid to put them on projects that will require them to lead even before they’re ready. You can learn a lot about a future leader when you throw them into a situation that requires them to transition from doing to leading. If they take it upon themselves to gain knowledge and learn new skills, you’ve got yourself a winner. They’ll just need your help shaping their approach to this new world. If they wait for your direction on every move, you probably have someone who is too indecisive to lead and isn’t ready for the next step yet. Always have a few people in mind for these types of assignments, because unless you’re going to send everyone to a leadership academy or executive coaching program (those cost big $$$), this is the boots on the ground way to always be developing people for the opportunities you may not even see today.
Kevin Hommel, EVP and CFO The Memphis Invest Family of Companies kevin@memphisinvest.com www.memphisinvest.com
2018 Half-Day Legal Seminar Changes!!! Workplace Rules Are Changing Have Changed! Join us and benefit from our Memphis legal community’s insights into the latest legal changes and how they impact your role as an HR leader. Tuesday, March 20, 2018, Double Tree by Hilton Hotel, 5069 Sanderlin Avenue, Memphis, TN 38117 7:30am-12:00pm Tanja Thompson, Littler Mendelson, P.C. Tanja will be providing insight into the multiple changes at the NLRB—from joint employer standards and micro units, to new standards for workplace rules and “quickie elections.” Jeff Weintraub, Fisher Phillips, & Lisa Krupicka, Burch, Porter & Johnson, PLLC Jeff and Lisa will be discussing the issue of workplace harassment and how to be sure your workplace is compliant in view of recent issues in the media.
John Norris, Jackson Lewis John will be providing an informative update on EEOC changes and what progressive organizations need to do in light of these changes.
David Jones, Fisher Phillips Immigration changes continue to be a challenge for recruitment and retention. Hear recent developments that may help to clarify this key HR area for your HR team.
This year, we are introducing a new segment, a PANEL OF IN-HOUSE COUNSEL, who will give their views on what they look for in their internal HR directors and when collaborating with external HR consultants. What can we learn from productive in-house counsel and external legal experts? Hear from leading companies’ in-house counsel how they’ve worked to create “win-win” relationships to strengthen their HR team. If your team could benefit from more collaborative strategies, this is a session you don’t want to miss! The panel segment will be closed to the media. Join us—and be a part of a proactive response to workplace change—it’s not going to happen, it’s already happened! To register, www.shrm-memphis.org!!! Four SHRM credits available for conference participants!
Thank you to our sponsors!
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The IRS gives an employer the opportunity to dispute the assessed penalties. Employers must examine their 2015 1094-C and 1095-C forms, and find a way to prove that they appropriately offered minimum value affordable coverage to all of their full-time employees. That brings into question how to prove what they did in 2015, a time when many employers were just figuring out how to best tackle the new ACA rules and reporting requirements.
Taming the Terror of the Letter 226J By Laura K. Clayman
For years, the IRS has threatened employers with penalties for failing to offer coverage as required by the Affordable Care Act’s (ACA) Employer Shared Responsibility mandate. In late November, employers started receiving letters from the IRS. Scary letters. Letters with penalties sometimes up to $300,000 or more. The dreaded IRS Letters 226J were finally here!
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onsidering the uncertain future of the ACA, it was a bit surprising when the IRS issued the first Letter 226J. These letters serve as the IRS’s “Pay or Play” penalty notices relating to an Applicable Large Employer’s (ALE) health insurance offering to full-time employees during 2015. Wasn’t the individual penalty repealed in the recent tax bill? The answer is “yes,” but the repeal does not go into effect until January 2019, and there is no retroactive designation. Additionally, the tax bill failed to address the Employer Shared Responsibility mandate or employer reporting requirements. Let’s begin taming the terror and get to know the Letter 226J. The Employer Shared Responsibility mandate sets out that all ALEs must do two things or risk the following penalties: (1) An ALE must offer minimal essential coverage (MEC) to substantially all of its full-time employees and dependents. The Section 4980H “A” penalty will apply if even one full-time employee buys health insurance at the Marketplace and receives a premium tax credit (PTC). The ALE may be subject to a penalty of approximately $2,000 per full-time employees (minus 30); and (2) An ALE must offer minimum value coverage at an affordable rate to full-time employees. The Section 4980H “B” penalty is higher, approximately $3,000 per full-time employee, but only applies to those full-time employees who went to the Marketplace and received a PTC. The IRS stated that it plans to issue a Letter 226J penalty letter to any ALE that it determines that for at least one month in 2015, one or more of the ALE’s full-time employees was enrolled in health insurance at the Marketplace and received a PTC (and the ALE did not qualify for any relief ). Letter 226J has numerous provisions. Most importantly, the letters include: • A summary table itemizing the proposed payment by month and indicating whether the liability is under the Section 4980H “A” penalty, the “B” penalty or neither; • A response form which allows the employer to either consent or disagree to the penalty; and • An “Employee Premium Tax Credit List” which lists, by month, the ALE’s “assessable” full-time employees (i.e., individuals who for at least one month in the year were full-time employees who received a premium tax credit and for whom the ALE did not qualify for an affordability safe harbor or other relief ), as well as the reporting codes that the ALE used for those employees on their 2015 1095-C. 26
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SHOULD I BE WORRIED ABOUT RECEIVING A LETTER? It appears that the IRS is initially focused on sending Letters 226J to any ALE who indicated that they did not offer coverage to substantially all of their full-time employees and dependents or who failed to answer this question on the 1094-C form. If at least one employee purchased coverage through the Marketplace and received a PTC, the IRS is assessing the pricey “A” penalty against these employers. WHAT SHOULD I DO IF MY COMPANY RECEIVES A LETTER? We have assisted several clients in responding to Letters 226J, and can happily report that we’ve seen dismissals of the full assessed penalties! Here are a few suggested best practices in preparing your response to the IRS: Do: Respond! Don’t ignore the letter. If the IRS does not receive a response, it will assess the penalty and the next thing you may receive is a demand letter for full payment of the assessed penalty amount. Do: Respond timely! Employers have only 30 days from the date printed on the Letter 226J to respond to the IRS. You can request an extension if necessary, but it is critical to address these letters upon receipt. Do: Respond thoroughly! The IRS allows you to include a written statement explaining why you don’t agree with the proposed penalty, as well as including supporting documentation. We advise our clients to first set out the reasons why the “A” penalty does not apply, but also to address the particular facts that may relate to the “B” penalty upon further review. If the Letter 226J allegations are correct, and your company did not offer MEC to substantially all of your full-time employees and dependents, be sure to point out any transitional relief that you may have failed to assert on your 1094-C or 1095-C forms. The IRS will not automatically assign transitional relief for being a small ALE (between 50 and 99 full-time equivalent employees) or a penalty reduction of 80 employees (if a company had 100 or more full-time employees). This transitional relief can amount to a difference of $100,000 in penalties. WHAT SHOULD I EXPECT IN THE FUTURE? According to the IRS, the penalty review process is ongoing and will include 2016 and future tax years. The repeal of the individual mandate could result in decreased enrollment in the ACA exchanges which, in turn, may reduce employers’ exposure to these penalties. The best way to calm your fears is to work with a trusted Benefits Advisor who understands the way to avoid any and all penalties under the Employer Shared Responsibility mandate.
Laura K. Clayman Client Resource Team - Senior Advisor laura.clayman @regions.com www.regionsinsurance.com
The coverage you need. The guidance you trust. SM
Employee Benefits | Property & Casualty | Business Insurance When it comes to your employee benefits program and business insurance coverage, you look for trusted solutions. At Regions Insurance, we stand by our commitment to provide personal service while helping you craft a coverage plan that meets your organization’s unique needs.
Tom Hayes Employee Benefits Practice Leader Tom.Hayes@regions.com 479.684.5259 www.regionsinsurance.com
The coverage you need. The guidance you trust.SM
Š 2018 Regions. Regions Insurance is an affiliate of Regions Bank. Products and services are offered by Regions Insurance Inc. and underwritten by unaffiliated insurance companies. Regions Insurance does not provide legal or investment advice.
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Labor and Employment Law
Rising Stars We are proud to present the 2018 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.
Ogletree Deakins Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. Premier client service, as outlined in the firm’s Client Pledge, is one of the firm’s top priorities and a cornerstone of its core values. U.S. News – Best Lawyers® “Best Law Firms” has named Ogletree Deakins a “Law Firm of the Year” for seven consecutive years. In 2018, the publication named Ogletree Deakins its “Law Firm of the Year” in the Litigation - Labor & Employment category. Ogletree Deakins has more than 850 attorneys located in 52 offices across the United States and in Europe, Canada, and Mexico. The firm represents a diverse range of clients, from small businesses to Fortune 50 companies. www.ogletree.com
Audrey M. Calkins
Blythe K. Lollar
MEMPHIS OFFICE
JACKSON OFFICE
Audrey represents employers in a full range of labor and employment matters, including cases involving wage and hour claims, Title VII, ADEA, FMLA, ADA, and comparable state statutes. She also has intellectual property experience that she uses to assist clients with matters involving non-competition, trade secret, and non-solicitation disputes. Audrey regularly leads onsite training for supervisors, management, and employees regarding compliance with employment laws.
Lisa Scatamacchia Lewis MEMPHIS OFFICE
Lisa focuses her practice on employment litigation and regularly defends clients against claims of employment discrimination, harassment, and retaliation, as well as claims asserted under the Fair Labor Standards Act and the Family and Medical Leave Act. She also advises clients on a variety of day-to-day employment and workplacerelated matters, including employment decisions and developing employment policies and handbooks.
Zachary W. Hoyt
Blythe is a litigator who devotes a substantial amount of her practice to defending employers and management in a variety of legal claims including wrongful termination, harassment, discrimination, retaliation, and wage and hour claims. She serves on the Women in the Profession Committee of the Mississippi Bar Association and is actively involved with the Young Lawyers Division. Blythe is also an active member of the Mississippi Women Lawyers Association.
Josh C. Harrison BIRMINGHAM OFFICE
Josh represents employers in all aspects of employment and labor law. An experienced litigator, he has obtained summary judgment for clients in federal employment lawsuits in a number of jurisdictions and has successfully handled appeals before the United States Courts of Appeals for the Fifth, Tenth and Eleventh Circuits and the Supreme Court of the United States. Josh also frequently advises clients regarding wage and hour compliance issues, accommodation and leave issues, and non-competition agreements.
M. Tae Phillips BIRMINGHAM OFFICE
MEMPHIS OFFICE
Zachary focuses his practice in employment law. He regularly represents clients in the airline and railway industries and serves as an editor of The Railway Labor Act by BNA books, the authoritative treatise on the RLA. Zachary is a former assistant county attorney for the largest county in Tennessee and served as a law clerk for Judge Sheryl Lipman in the Western District of Tennessee. 28
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Tae focuses his practice on assisting clients with the many labor and employment challenges they face on a daily basis. A significant portion of Tae’s practice consists of employment litigation, and he also assists employers in traditional labor matters such as union avoidance, election campaigns, collective bargaining, and labor arbitrations. Tae is heavily involved in Ogletree Deakins’ Drug Testing Practice Group, where he advises clients on all aspects of drug and alcohol testing.
Wimberly Lawson Wright Daves & Jones, PLLC The focus of our practice at Wimberly Lawson Wright Daves & Jones, PLLC is primarily on labor and employment law for management, together with general liability and workers’ compensation defense, for businesses and professionals, insurers, and governmental entities. Our attorneys use a number of methods to maximize employee benefit dollars as well as avoid costly legal problems. Our attorneys also sponsor and present a variety of conferences and seminars, including our annual Labor Relations & Employment Law Update Conference. The Firm has been recognized for various coveted rating awards including Best Law Firms by U.S. News & World Report and Martindale Hubbell Peer Review Rated Award by Martindale-Hubbell.
Marianna Jablonski KNOXVILLE OFFICE
Marianna Jablonski is a Senior Associate in the Knoxville, Tennessee office of Wimberly Lawson Wright Daves & Jones, PLLC. Marianna’s practice includes an emphasis in insurance defense, workers’ compensation, employment law, and general civil defense litigation. Marianna received a Bachelor of Science from the University of Tennessee, graduating magna cum laude. She then attended the University of Tennessee College of Law where she worked in both the Domestic Violence and Advocacy clinics. Marianna is a member of the Tennessee Bar Association, the Knoxville Bar Association, and Hamilton Burnett American Inn of Court.
Wright Lindsey Jennings Wright Lindsey Jennings' Labor and Employment team has management-oriented practices addressing all aspects of the employee/employer relationship. The team has extensive experience litigating and arbitrating employment and civil rights claims. Our attorneys defend clients in multi-plaintiff, collective action and class action lawsuits, as well as Department of Labor and EEOC investigations. We provide guidance on employment agreements and disciplinary issues, and handle labor arbitrations, union elections and contract negotiations. We place a premium on preventing employee claims that could lead to agency investigations or litigation, in part by offering employee and manager training and free educational resources such as newsletters, website articles, seminars and webinars. Neemah Esmaeilpour LITTLE ROCK OFFICE
Neemah Esmaeilpour is a member of the firm’s labor and employment team, whose Little Rock-based practice focuses on employment-based immigration and employment law. He represents employers and professionals in a variety of matters, including visa petitions, labor certifications, discrimination claims, minimum wage and overtime issues, employee leave, employment contracts, covenants not to compete, unemployment claims and EEOC/DOL/ICE investigations. Mid-South Super Lawyers has recognized him as “Rising Star” in 2016 and 2017 in labor and employment law, and he was voted one of the 100 “Best Lawyers in Little Rock” by the readers of Soirée Magazine and Arkansas Business in 2017.
Bass Berry Sims Bass, Berry & Sims advises clients on labor and employment matters from a perspective that connects our clients’ dynamic labor and human resources needs with affirmative strategies. We partner with clients to provide creative, innovative and practical solutions to business problems that have legal ramifications.
Mary Leigh Pirtle
Mary Leigh 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 courts, including complaints related to non-compete/ non-solicitation agreements, reductions in force, wrongful discharge, discrimination and civil rights, and wage and hour compliance.
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FordHarrison FordHarrison is a labor & employment defense law firm with 28 offices, including three affiliate firms, and is the sole member of the global employment law firm alliance, Ius Laboris. The firm has built a national legal practice as one of the nation's leading defense firms with an exclusive focus on labor law, employment law, litigation, business immigration, employee benefits and executive compensation. FordHarrison is committed to our FH Promise, a set of principles that guides our firm in the delivery of legal services and client communications. For more information on FordHarrison, visit fordharrison.com. To learn more about Ius Laboris, visit iuslaboris.com.
Henry F. Warnock, Partner
Timothy F. Kennedy, Counsel
ATLANTA OFFICE
MEMPHIS OFFICE
Henry Warnock devotes his practice to employment litigation and traditional labor law, with a particular focus on the healthcare and technology industries. He defends employers in discrimination and retaliation cases involving the FLSA, FMLA, ADA, and Title VII. Henry also guides clients through all facets of traditional labor law, including collective bargaining negotiations, unfair labor practice cases before the NLRB, union organizing campaigns, arbitration, and picketing. Henry has practiced in federal and state court, and represented employers in administrative actions with the NLRB, EEOC, DOL, and various state agencies. Henry earned his J.D. from the University of Georgia School of Law.
Tim Kennedy focuses his practice on advising clients on legal issues pertaining to retirement plans, health and welfare benefits, executive compensation arrangements, and fringe benefits. He assists employers in complying with the Internal Revenue Code and ERISA and advises employers on best practices for employee benefit plans. He advises employers on payroll tax and reporting obligations arising from employee benefit and compensation programs. In addition to serving private sector employers across a range of industries, Tim has significant experience with the retirement benefit programs of tax exempt and governmental employers. Tim earned his J.D. from the University of Virginia School of Law.
Patrick H. Ouzts, Counsel ATLANTA OFFICE
Loren Beer Friedman, Counsel ATLANTA OFFICE
Loren Friedman provides comprehensive labor and employment law counsel to clients of all sizes, from Fortune 500 corporations to mid-market companies to entrepreneurial start-ups. She represents these companies in a variety of industries, including health care, corrections, banking, hospitality and retail. She concentrates her practice on defending employers in discrimination, harassment, wrongful termination, wage and hour, workers' compensation retaliation and contract dispute litigation. Loren assists her clients with workplace investigations, and provides counseling on discharge and discipline, accommodation requirements, employee handbooks and employment agreements. Loren earned her J.D. from the University of Florida College of Law.
Russell W. Jackson, Counsel MEMPHIS OFFICE
Russell Jackson represents management in employmentrelated matters on federal, state, and local levels. His representation includes claims relating to discrimination, harassment, retaliation, wrongful discharge, restrictive covenants, wage and hour violations, unemployment compensation, and other aspects of the employee-employer relationship under Title VII, ADA, ADEA, FMLA, FLSA, NLRA and the OSH Act. He has successfully defended clients in federal and state courts against claims of race discrimination, race harassment, sex discrimination, sexual harassment, disability discrimination, age discrimination, national origin discrimination, retaliation as well as various state law claims. Russell earned his J.D. from Case Western Reserve University. 30
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Patrick Ouzts is a member of FordHarrison's airline practice group and he focuses his practice on helping human resource leaders and in-house lawyers with employmentrelated issues, including employee discipline and discharge, accommodations and leave, allegations of discrimination, harassment, and retaliation, and policy review. As a litigator, Patrick represents employers in matters ranging from class actions to single plaintiffs to administrative hearings in federal and state courts. Patrick has also facilitated dozens of trainings for employers on how to practically implement laws in the workplace. Patrick earned his J.D. from Georgia State University College of Law.
Patrick L. Ryan, Counsel ATLANTA OFFICE
Pat Ryan is a member of FordHarrison's wage and hour practice group and concentrates his practice on class action litigation, arbitration, counseling, and government investigations. He has extensive experience in handling litigation brought under the FLSA and state wage and hour laws and regulations. Pat represents employers in wage and hour investigations brought by the DOL including conducting internal investigations, defending "on-site" visits, and advising clients on effective resolution. He has conducted numerous wage and hour audits, including exemption, independent contractor, pay practice and time keeping reviews, for clients in various industries. Pat earned his J.D. from the University of Georgia School of Law.
Joshua Sudbury, Counsel NASHVILLE OFFICE
Josh Sudbury handles employee-relations problems. He frequently defends employers in federal and state court against claims of discrimination and harassment, retaliatory discharge, and alleged wage/hour violations. Josh also represents management in collective bargaining and unfair labor practice cases before the NLRB. Josh's litigation experience helps him guide management through difficult employee relations issues such as navigating disability accommodations and leave requests, general wage and hour compliance, and enforcing non-competes and other employment agreements and policies. Josh also regularly speaks to clients and industry groups regarding developments in employment law. Josh earned his J.D. from the University of Memphis School of Law.
Jessica Lynn Asbridge, Senior Associate
David R. Anderson, Associate
ATLANTA OFFICE
ATLANTA OFFICE
Jessica Asbridge focuses her practice on the representation of management in both traditional labor and employment matters. She defends employers in relation to discrimination, harassment, retaliation and wrongful termination actions in federal and state courts and before administrative agencies. In addition, Jessica counsels employers on a variety of issues, including employee terminations, how to avoid/resolve labor and employment disputes and litigation, and Title VII, FMLA, FLSA, and ADA compliance. Jessica has assisted airline clients in grievance resolution matters, including grievance arbitrations, and has represented management in union representation matters before the NMB. Jessica earned her J.D. from Indiana University, Maurer School of Law.
Loren C. Locke, Senior Associate ATLANTA OFFICE
Loren Locke focuses her practice on the representation of employers and employees in issues related to business immigration. She works directly with foreign nationals and their employers to help obtain a variety of nonimmigrant and immigrant visas and achieve lawful permanent residence in the U.S. Loren also advises on consular practice and responds to Requests for Evidence and Notices of Intent to Deny or Revoke. She assists clients in the full cycle of PERM including developing labor certification application case strategy, responding to audits, and requesting reconsideration in case of denial. Loren earned her J.D. from William & Mary School of Law.
Katie Parham, Senior Associate MEMPHIS OFFICE
Katie Parham has represented companies in a variety of industries, including healthcare, manufacturing, retail, and education, with a focus on discrimination, harassment and retaliation claims under Title VII, the ADA, the ADEA, and the FMLA, as well as state law whistleblower and discrimination claims. In addition, Katie presents management training programs and counsels employers on best practices for avoiding litigation and on a range of human resources issues, including employment policies, handbooks, and agreements. Katie also has a particular interest in advising clients on internet and social media issues. Katie earned her J.D. from the University of Tennessee College of Law.
David Anderson counsels and represents employers on discrimination and retaliation claims under the FLSA, FMLA, ADA, and Title VII and regularly advises clients on compliant background check policies under the FCRA and applicable state law. He provides guidance to clients on various business litigation matters including the enforcement of noncompetition agreements and claims for misappropriation of trade secrets, false advertising, breach of contract, and breach of fiduciary duty. David has practiced in state court and represented employers in administrative actions with the EEOC and DOL. David earned his J.D. from Emory University School of Law.
Kristina Griffin, Associate ATLANTA OFFICE
Kristina Griffin focuses her practice on representing employers in labor and employment disputes and providing guidance regarding compliance with federal and state employment laws. She handles litigation arising from claims of discrimination under Title VII, the FMLA, the ADA, and GINA, as well as claims related to wrongful termination, harassment, and pay under the FLSA. Additionally, Kristina counsels employers on workplace issues including noncompetition agreements, the protection of trade secrets, personnel policies, leaves of absence, and disability accommodations. Kristina earned her J.D. from the University of Georgia School of Law.
Chelsey M. Lewis, Associate ATLANTA OFFICE
Chelsey Lewis advises and represents employers on a wide range of labor and employment matters including discrimination and retaliation claims under Title VII, the FMLA, ADA, and the FLSA. She has experience negotiating and drafting employment and separation agreements, as well as drafting and enforcing restrictive covenants including non-competition and non-solicitation provisions. Chelsey assists employers with workplace investigations, and provides counseling on various topics including discharge and discipline, accommodation requirements, employee handbooks and employment agreements. Chelsey has practiced in state court and represented employers in administrative actions with the EEOC and DOL. Chelsey received her J.D. from the University of Georgia School of Law.
R. Brian Spring, Senior Associate ATLANTA OFFICE
Brian Spring advises employers in employee benefit and tax related matters involving the design, implementation, and operation of qualified plans, health and welfare plans, and fringe benefits. Brian has experience counseling clients in all aspects of executive compensation matters, including the negotiation and drafting of equity compensation plans and awards, employment/severance agreements, and other compensation arrangements. Brian regularly advises clients on health and welfare matters related to the Patient Protection and Affordable Care Act, HIPAA, and COBRA and executive compensation matters involving compliance with Code Sections 83,162(m), 280G, 409A, and 422. Brian earned his J.D. from Mississippi College School of Law.
Katherine S. O’Shea. Associate ATLANTA OFFICE
Katie O'Shea concentrates her practice on representing management in claims involving harassment and discrimination in the workplace, retaliation, and violations of federal and state employment law statutes. During law school, Katie served as a Notes Editor of the Georgia Law Review, President of the Dean's Ambassadors, secretary of the Women Law Students Association, and co-founder and treasurer of the Law Literary Society. Katie was a national finalist in the GRAMMY Foundation Entertainment Law Initiative legal writing competition. Katie earned her J.D. from the University of Georgia School of Law. www.HRProfessionalsMagazine.com
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Cross Gunter Witherspoon Galchus U.S. News has named CGWG a leading Labor and Employment law firm in the state of Arkansas for 2018. We are proud to have six attorneys selected as Best Lawyers, including two being named “Lawyer of the Year” in their practice areas. CGWG’s team of attorneys are highly adept in handling a wide range of labor and employment defense matters, including discrimination litigation, collective bargaining, benefits advice, employment contracts, complex immigration matters, development of constructive employee relations, and the development of employment policies and procedures. Preventive law strategies and exceptional educational programs are hallmarks of CGWG’s services.
Greg Northen
Mary Buckley
ARKANSAS
ARKANSAS
Gregory J. Northen, a newly promoted Director at CGWG, practices labor & employment defense before state and federal courts and agencies. Greg assists clients with drafting and implementing up-to-date forms, policies, procedures and training for various labor and employment issues. He is a District Representative for Arkansas and Oklahoma to the American Bar Association's Young Lawyers Division Council. He also sits on the ABA YLD’s Labor & Employment Committee. Greg is the 2017-18 Chair of the Central Council of the Associated Builders and Contractors of Arkansas. Greg has been named a “Rising Star” by Mid-South Super Lawyers since 2014.
Abtin Mehdizadegan ARKANSAS
Abtin Mehdizadegan joined CGWG in 2013 after graduating from the University of Arkansas at Little Rock William H. Bowen School of Law. His practice focuses on management and labor employment defense. He is active in the Firm’s litigation practice and enjoys advising clients about how to develop creative solutions to mitigate and minimize liability. Abtin frequently speaks and publishes on current labor and employment law matters for human resources professionals and various trade associations. He is active in the Pulaski County and Arkansas Bar Associations and provides volunteer legal services for VOCALS – Volunteer Organization, Center for Arkansas Legal Services.
Jennifer Chang ARKANSAS
Jennifer S. P. Chang, a CGWG Associate, practices civil and business litigation, employment law, and health law. She represents and advises clients on matters, including creating policies and practices that comply with the Arkansas Medical Marijuana Amendment and assisting healthcare organizations with compliance issues. Jennifer frequently speaks and publishes on current labor and employment law matters for HR professionals. She is active in the American, Arkansas and Oklahoma Bar Associations and Arkansas Association of Women Lawyers. Jennifer graduated from the University of Southern California Gould School of Law, where she received a full-tuition scholarship. 32
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Mary E. Buckley is an Associate at CGWG. A Texas native, Mary has been in private practice since graduating from the University of Arkansas School of Law in Fayetteville and is licensed in both Arkansas and Texas. During law school, Mary served for two years as President of the Student Bar Association, received the award for most outstanding contribution to the law school community, and externed for the Honorable Joe J. Volpe of the United States Magistrate Court for the Eastern District of Arkansas. She is an active member of the Arkansas, Texas, and American Bar Associations.
Joe Kraska ARKANSAS
Joseph “Joe” Kraska, an associate attorney at CGWG, practices labor relations and employment law. Originally from Minnesota, Joe served on active duty in the United States Air Force for nearly ten years. Since 2013, he has been serving part-time in the Arkansas Air National Guard. Joe received his undergraduate degree with honors in political science from the American Military University and graduated from the University of Arkansas at Little Rock Bowen School of Law, where he was Executive Editor of the University of Arkansas at Little Rock Law Review and President of the Bowen Student Veterans Organization.
Rainey, Kizer, Reviere & Bell, PLC The Firm provides its clients top-quality legal advice and representation in the areas of company policies and practices, discrimination claims, workers' compensation, and civil rights. The attorneys practicing in these areas have many years of experience in defending employers against claims of racial and sexual discrimination, sexual harassment, ADA and FMLA violations, wage and hour violations, wrongful awards of unemployment compensation, retaliatory discharge, and workers' compensation. The members of the Firm’s Employment Law group also have extensive, specific experience in defending governmental entities against employment law claims and serving governmental entities’ unique employment law needs.
Jennifer Vallor Ivy Jennifer Vallor Ivy joined Rainey, Kizer, Reviere & Bell, PLC, in 2016 after a two-year judicial clerkship with the Tennessee Court of Appeals. She has defended the rights of employers in federal and state courts on a number of employment law claims, including those brought under the THRA, Title VII, ADEA, FMLA, and ADA. She has also represented employers on workers’ compensation claims in state trial courts as well as before the newly-established Tennessee Court of Workers’ Compensation Claims. Ms. Ivy also assists employers in their day-to-day operations by drafting policies and counseling on issues before litigation arises.
Fisher Phillips Fisher Phillips is one of the largest labor and employment law firms in the country with more than 350 attorneys in 32 offices nationwide, including Tennessee, Florida, Georgia, Kentucky and Mississippi. Some of the most talented and experienced attorneys come to the firm to handle challenging cases involving workplace issues faced by employers and HR professionals. Fisher Phillips attorneys specialize in all areas of labor and employment law and have the experience and resolve to achieve your desired results in court, with employees and unions, and with competitors.
Courtney Leyes
Gabriel McGaha
Robert W. Ratton III
MEMPHIS OFFICE
MEMPHIS OFFICE
MEMPHIS OFFICE
Courtney Leyes is an attorney with the Fisher Phillips Memphis office, where she represents employers throughout Mississippi and the greater Memphis-metropolitan area in litigation related to discrimination and harassment in the workplace, which has included representing clients in federal jury trials. She also represents employers on wage and hour issues in both the court system and before the DOL’s Wage & Hour Division. Specifically, she has represented employers in several FLSA collective actions over the past couple of years. Leyes received the Memphis Business Journal's 2017 Best of the Bar award for Ace Associate and has been listed in Mid-South Super Lawyers Rising Stars since 2014.
Gabriel McGaha is an attorney with the Fisher Phillips Memphis office, where he represents clients on a variety of employment-related matters, including those involving harassment, discrimination, and retaliation claims. He has significant experience preparing matters for litigation, as well as serving as lead counsel at trial. McGaha received the Tennessee Bar Association 2017 Larry Dean Wilks Leadership Award and has been listed in Mid-South Super Lawyers Rising Stars since 2016.
Rob Ratton is an attorney with the Fisher Phillips Memphis office where he advises clients in employment law matters related to Family and Medical Leave Act, Fair Labor Standards Act, and Equal Employment Opportunity Commission. Rob has tried over 30 jury trials to verdict and has represented clients in front of state and federal courts at both the trial and appellate level. Ratton was listed in Mid-South Super Lawyers Rising Stars in 2016 and was selected as one of Memphis Business Journal’s 2017 40 Under 40.
Burch, Porter & Johnson, PLLC Burch, Porter & Johnson provides comprehensive legal services across a wide range of litigation, business and transactional practice. The firm’s clients span a broad spectrum: from multi-million dollar corporations seeking counsel to negotiate complex transactions to individuals dealing with the most sensitive personal issues. From its inception, the firm’s focus has been on client service – providing specialized expertise, value, responsiveness and practical solutions to address our clients’ needs. Clients have counted on the firm’s experience, its commitment to service, and its tradition as a leader in business and community affairs for more than a century.
Gary Peeples
Tannera Gibson
MEMPHIS
MEMPHIS
Gary Peeples’ practice focuses on civil litigation, including labor and employment law. A graduate of Vanderbilt University Law School, he has experience in all phases of litigation and defends companies large and small in state and federal court and in administrative matters. A significant component of his practice involves advising employers on how to comply with federal and state law.
Tannera Gibson is a native Memphian whose practice focuses on employment law and general civil litigation, including personal injury and medical malpractice. Prior to graduating from the University Of Memphis Cecil C. Humphreys School Of Law, she received a B.S. in Computer Science from the University of Memphis, and worked as a software analyst. Ms. Gibson is an active member of the community who maintains a solid pro bono practice. www.HRProfessionalsMagazine.com
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The Kullman Firm The Kullman Firm has exclusively represented management in labor and employment matters since 1946, including matters relating to Title VII, the ADA, ADEA, FMLA, FLSA, OSHA, ERISA, COBRA, OFCCP, NLRA, WARN and other federal and state employment laws. The Firm represents clients in a wide range of industries, which provides it with a sound understanding of the general business practices of a vast array companies. With this experience, the Firm is able to provide proactive legal advice to help clients achieve their business goals while complying with applicable law.
Martin Regimbal MISSISSIPPI OFFICE
Mr. Regimbal represents employers and has litigated matters brought under Title VII, the FLSA, ADA, FMLA, ADEA, WARN Act, and other federal and state statutes. Mr. Regimbal has been recognized as a 2014, 2015, 2016 and 2017 Rising Star in Labor and Employment by Mid-South Super Lawyers Magazine.
MaryJo Roberts NEW ORLEANS OFFICE
MaryJo Roberts, Of Counsel at the Kullman Firm in New Orleans, Louisiana, was recognized as a Rising Star in Employment & Labor by Super Lawyers Louisiana for 2018. She has received this recognition each year since 2013. Her practice includes: federal and state discrimination, retaliation, and harassment claims; Family and Medical Leave Act litigation; and wage and hour litigation under the FLSA and state laws. Ms. Roberts also provides training to human resources professionals on employment matters. Prior to practicing employment law, Ms. Roberts served as a judicial clerk to the Honorable James Brady in the Middle District of Louisiana.
Littler Mendelson, P.C. Littler is the largest global employment and labor law practice, with more than 1,300 attorneys in over 75 offices worldwide. Littler represents management in all aspects of employment and labor law and serves as a single source solution provider to the global employer community. Consistently recognized in the industry as a leading and innovative law practice, Littler has been litigating, mediating and negotiating some of the most influential employment law cases and labor contracts on record for over 75 years. Littler Global is the collective trade name for an international practice, the practicing entities of which are separate and distinct professional firms. For more information, visit: www.littler.com.
Julie Angelini
Amy Palesch
ATLANTA OFFICE
ATLANTA OFFICE
Julie Angelini is an associate in Littler’s Atlanta office. She advises a wide range of clients – from sole proprietorships to Fortune 100 companies – on employment related matters involving compliance with federal and state laws and best employment practices. She devotes the majority of her practice to non-competition and trade secret matters.
Marcia Ganz
Jay Inman
ATLANTA OFFICE
LEXINGTON OFFICE
Marcia Ganz is of counsel in Littler’s Atlanta office. She focuses her practice on representing management in federal and state employment and traditional labor matters. Marcia also has extensive experience defending manufacturing and healthcare clients against complex class and collective action claims involving overtime, misclassification, and other wage-related issues. She regularly counsels and defends employers under investigation by the Equal Employment Opportunity Commission and state civil rights agencies. 34
Amy Palesch is an associate in Littler’s Atlanta office. She represents and counsels employers in a broad range of employment matters arising under federal and state law. Amy concentrates her practice in employment litigation, defending employers against claims of workplace discrimination, harassment and retaliation and alleged wage and hour violations. Amy also offers clients litigation avoidance strategies and training on a range of employment issues.
www.HRProfessionalsMagazine.com
Jay Inman is an associate in Littler’s Lexington office. He represents represents employers throughout Kentucky and Tennessee in a full range of labor and employment law matters arising under federal, state, and local laws. He regularly provides advice, counsel, and training for employers of all sizes, and he has assisted clients with administrative agency investigations and charges, as well as represented clients at various stages of litigation, including trial and, if necessary, appeal. Jay’s industries of emphasis include education, healthcare, hospitality, and manufacturing.
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37
Photo by NBC News
Jeff Sessions V. Marijuana:
What the New Attorney General’s Rescission of the Obama-Era Guidance on Legalized Marijuana Means for Employers By JENNIFER S. P. CHANG
W
hen Donald Trump became the forty-fifth president of the United States in early 2017, many wondered what it would mean for the states that have
legalized medical and recreational marijuana.
drugged driving and other adverse public health consequences; and preventing marijuana activity on public lands and federal property. The “Cole memo” indicated that the federal government would only challenge state legalization of marijuana if the state’s laws were not “sufficiently robust” to protect against the eight enforcement priorities listed in the memo. The effect of the “Cole memo” was to green light marijuana dispensaries and cultivation facilities that operated within the state-authorized system without fear of federal enforcement of the Controlled Substance Act.
Key to this inquiry was who the new president would tap to fill the position of United States Attorney General. The Attorney General serves as the head of the United States Department of Justice (DOJ) and is the chief lawyer of the United States. As part of the executive branch, the DOJ is tasked with enforcing the laws of the United States. It is customary for the DOJ to issue guidance documents that explain to the public how to comply with a particular law or regulation. These guidance documents, or guidance memos, are not legally enforceable rules or regulations on their own, but they clarify compliance standards and expectations. Of significant interest to employers and human resource professionals seeking to comply with state legalization of medical and recreational marijuana is the “Cole memo.”
The Cole Memo On August 29, 2013, former United States Deputy Attorney General James M. Cole published a memo addressed to all United States attorneys. The memo acknowledged that while many states had legalized medical and recreational marijuana, such laws conflicted with the federal Controlled Substances Act, which lists marijuana as a Schedule 1 drug, making it illegal to manufacture, import, possess, uses, and distribute marijuana. The “Cole memo” listed eight enforcement priorities, including preventing the distribution of marijuana to minors, preventing criminal enterprises from obtaining marijuana revenue, preventing state-authorized marijuana activity from being used as a pretext for illegal drug activity; preventing violence and the use of firearms in the sale of marijuana; preventing 38
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Attorney General Jeff Sessions’ War on Drugs Flash forward four years. Obama has finished his second term as president, Donald Trump has been elected president, and Jeff Sessions is the new United States Attorney General. Over the years, Jeff Sessions has made no efforts to mask his position on state efforts to legalize marijuana. He has been quoted as saying, “Good people don’t smoke marijuana,” and, referring to the Ku Klux Klan, “I thought those guys were okay until I learned they smoked pot.” So it came as no surprise when the new Attorney General rescinded the “Cole memo” earlier this year. What does this mean for the states that have legalized the medical and/or recreational marijuana? On the one hand, it means absolute nothing. Just as the “Cole memo” did not amend the federal Controlled Substances Act, neither does Attorney General Sessions’ rescission of the “Cole memo” affect the black letter law. Marijuana remains a Schedule 1 drug under the federal Controlled Substances Act. On the other hand, Attorney General Sessions’ decision creates uncertainty about federal prosecutorial efforts. Will federal prosecutors suddenly concentrate federal resources to crack down on state-authorized marijuana dispensaries and cultivation facilities? The answer depends on whether the state-authorized programs are for medicinal or recreational marijuana. There is a provision in the federal budget that prohibits the DOJ from using federal resources to interfere with the provision of medical marijuana in states that have legalized it. As long as this provision remains in place, it appears that there will be no change for those states that have legalized medical marijuana. The effect of Attorney General Sessions’ rescission of the “Cole memo” provides more uncertainty in those states with legal recreational marijuana programs. Even so, however, marijuana policy experts doubt that federal prosecutors in states with legal recreational marijuana will begin prosecuting marijuana businesses operating within the confines of state law. For one thing, this would be an unpopular decision across party lines and with state government and law enforcement officials. Further, federal prosecutors with limited resources generally rely on cooperation with state law enforcement entities when prosecuting drug cases. That said, there is always the possibility of a federal or state prosecutor who decides to make a name for him or herself by going after marijuana dispensaries and cultivation facilities.
The Current State of Marijuana Currently, 29 states and the District of Columbia have legalized the use of marijuana for medicinal purposes. Eight of those states and the District of Columbia have also legalized the use of marijuana for recreational purposes. The effort to legalize marijuana for medicinal purposes began on the east and west coasts of the United States and has been steadily expanded into the South and the Midwest. In the Mid-South, Arkansas stands out as the first state
to adopt a functional state-sponsored medical marijuana program, setting the tone for the rest of the region. For example, soon after voters in Arkansas voted to legalize medical marijuana by a ballot imitative to amend the state constitution, employers in the state recognized that the law created vast uncertainty for compliance. On the one hand, the new law prohibited employment discrimination on the basis of an individual’s status as state-registered marijuana user. On the other hand, the law allowed employers to prohibit the use or possession of marijuana in the workplace, as well as the presence of individuals who were “under the influence” or marijuana. Arkansas employers proactively organized efforts to amend the law to provide greater clarity for compliance. Their efforts were successful, and Act 593 of 2017 was enacted in the first legislative session following the state’s legalization of medical marijuana. Act 593 of 2017 defined key terms that were glaringly absent from the original legislation, including “employee,” “employer,” and “under the influence.” Act 593 also addressed how employers could use a positive drug test result for marijuana when making an employment decision with regard to an applicant or employee who has a state-issued marijuana card. The issue of drug testing is a tricky one, especially where a state’s marijuana laws prohibit employment discrimination on the basis of an individual’s status as a state registered marijuana user. Current drug tests for marijuana can detect the presence of the metabolites of marijuana in the individual’s body but cannot detect impairment or if the individual is “under the influence” of marijuana. For this reason, employers should be cautious before taking adverse employment decisions, such as firing or refusing to hire an individual, based solely on a positive drug test for marijuana when that individual has a state-issued marijuana card.
Next Steps for Employers and HR Professionals Savvy employers and HR professionals will keep a finger on the pulse of legal developments in the interaction between state legalization of marijuana and employment law. As demonstrated above, it is imperative that employers understand their state’s marijuana law and periodically monitor the law for updates. This is especially important for employers with locations in multiple states given the variations in each state’s marijuana laws. Employers should consult with experienced counsel to ensure that their substance abuse policies comply with their state’s laws. A substance abuse policy should clearly identify the following: (1) the proscribed behaviors, (2) what types of testing will be conducted, e.g., pre-employment, random, etc., (3) which employees are covered by the policy, and (4) the consequences for violating the policy. After updating their policies for compliance, employers should ensure that all employees, especially management, understand the policies and receive any necessary training. This is an opportunity for the employer to proactively communicate the company’s stance on marijuana, gauge individual attitudes toward marijuana, and address potential issues before they arise. Employers are advised to seek out experienced counsel before taking any adverse employment action against a medical marijuana user solely on the basis of a positive drug test result for marijuana. Doing so may expose the company to an employment discrimination lawsuit. Courts have allowed employees to bring employment discrimination claims under the state medical marijuana law, the state disability discrimination law, or both.
Jennifer S. P. Chang Cross, Gunter, Witherspoon & Galchus, PC. jchang@cgwg.com www.cgwg.com
We use our best tools to make your job run smoothly and efficiently. FordHarrison is a labor & employment defense law firm with 29 offices, including four affiliate firms, and is the sole member of the global employment law firm alliance, Ius Laboris. Guided by the FH Promise, FordHarrison delivers the highest quality legal service and communication to our clients. www.fordharrison.com
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39
Mental Health in the Workplace – Is There an Effective Prescription for Employers? By GARY PEEPLES
The Americans with Disabilities Act (ADA) offers protections to employees who have mental health conditions in the same way that it offers protections to employees who have physical disabilities. Nevertheless, because physical conditions are generally better understood than mental ones and because physical disabilities are often apparent while mental health conditions can remain concealed for indefinite periods of time, many employers struggle with how to help employees who have mental health conditions while remaining compliant with federal law. This article offers some tips on how employers can accomplish both objectives. Mental health conditions are incredibly common. Some estimates are that, in any single year, approximately 40 million Americans experience some form of a mental disorder or mental illness. Whatever the true prevalence of mental disorders and mental illnesses might be, the Equal Employment Opportunity Commission (EEOC) has increasingly focused on disability discrimination in the workplace as it relates to mental health conditions. According to the EEOC, it resolved roughly 5,000 charges during fiscal year 2016 that involved alleged discrimination based on mental health conditions. Charges relating to alleged discrimination based on mental health condition have increased by forty percent since 2006. And the EEOC collected nearly $20 million from employers during fiscal year 2016 in connection with charges alleging mental health-based discrimination.
Recent Guidance Document from the EEOC The EEOC also recently promulgated a guidance document titled “Depression, PTSD & Other Mental Health Conditions in the Workplace: Your Legal Rights.” As the title indicates, the document is aimed at educating workers with mental health conditions about their rights in the workplace. The document is written in question-and-answer format, and it provides answers on the following issues: (1) whether an employer is permitted to fire an employee because of her mental health condition (the answer is generally “no”); (2) whether an employee is permitted to keep his mental health condition private (the answer is generally “yes”); (3) what happens when an employee’s mental health condition affects her job performance (the answer is to seek a reasonable accommodation); (4) how to obtain a reasonable accommodation (the document discusses the interactive process); and (5) what to do if an employee believes that his rights might have been violated (the EEOC unsurprisingly encourages employees to contact the agency).
How Employers Should Respond The document, although helpful to employees, offers virtually no guidance to employers. Every employer wants to comply with the law, but issues involving employees with mental health conditions can be particularly knotty. What is the law and, more importantly, what are employers permitted to do under the law? 40
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First, it cannot be overemphasized that mental health conditions are covered under the ADA. The EEOC’s guidance document lists examples of mental health conditions that are typically covered, including major depressive disorder and post-traumatic stress disorder. This list is illustrative, not exhaustive (the EEOC goes on to say that “bipolar disorder, schizophrenia, and obsessive-compulsive disorder should easily qualify.”). Indeed, virtually any mental health condition may qualify as a “disability” under the ADA (as amended in 2008) if it substantially limits one or more major life activities. Examples of major life activities include, but are not limited to, eating, sleeping, taking care of oneself, and working. The bottom line is that the definition of “disability” under the ADA is extraordinarily broad, so employers should be careful not to reject an employee’s claim that she is disabled solely on the basis that the alleged disability cannot possibly be covered under the ADA. Second, as the EEOC’s guidance document explains, employers should refrain from relying on “myths or stereotypes” about mental health conditions. This is particularly true in the context of whether an employee poses a “direct threat.” Under the direct-threat doctrine, an employer may terminate the employment of an employee who poses a direct threat to safety (whether to his own safety or to the safety of others) without incurring liability for disability discrimination. But the direct-threat standard is often extremely difficult to satisfy in practice because it requires (among other things) an individualized assessment of the employee’s ability to perform the job safely or not. There are cases in which employers have terminated employees based on only a vague sense of fear, as opposed to a factintensive inquiry regarding whether the employee actual poses a significant risk of substantial harm to herself or others. The law does not reward employers who rely on myths or stereotypes, so employers should avoid them. The third point relates to the one above about avoiding myths and stereotypes. Google might be the greatest piece of technology since indoor plumbing, but employers should resist the urge to diagnose employees via search engine results. Employees are in fact permitted to keep their mental health conditions private, subject to a handful of exceptions. Employers may ask medical questions (a category that encompasses questions about an employee’s mental health status) only in the following circumstances: (1) if the employee has requested a reasonable accommodation; (2) if the employer has made a job offer but the employee’s employment has not yet begun (with the caveat that the employer must treat all persons in that job category the same way); (3) if the employer engages in affirmative action for persons with disabilities; or (4)
if the employer has objective evidence that the employee may be unable to do his job or that the employee poses a safety risk. With that in mind, if an employee requests a reasonable accommodation, an employer should resist the urge to immediately search for information about the employee’s mental health condition using Google or some other search engine. Internet search results are irrelevant and (worse) unreliable; what matters is what an employee’s medical provider says about that employee’s condition. Fourth, employers should have processes in place for keeping confidential employees’ medical information, including any information relating to employees’ mental health conditions. Employers are prohibited from disclosing an employee’s medical information to her coworkers. This remains true even if other employees ask why a particular employee has received a change to her job that others have not. If an employer feels that it must provide an answer to such a question, then the answer should be limited to something along the lines of “any change that you might have noticed was made for a legitimate business reason.” Fifth, employers should document conduct and performance problems. The fact that an employee might be suffering from one or more mental health conditions does not give the employee the right to violate his employer’s legitimate conduct and performance-related standards. Even the EEOC acknowledges this in its guidance document, stating that an “employer does not have to excuse poor job performance, even if it was caused by a medical condition or the side effects of medication.” Nor are employers required to wipe an employee’s disciplinary or performance record clean once the employer learns that the employee has a mental health condition. Still, if a poor-performing employee requests a reasonable accommodation (thereby placing her employer on notice of the existence of a mental health condition or some other disability) and, after making that request,
continues to perform so poorly that her employment is eventually terminated for that reason, her employer will have a difficult time showing that poor performance was the true reason unless the employer has adequately documented each instance of poor performance. Finally, because the ADA protects only those employees who can perform a job’s essential functions with or without reasonable accommodation, it is (unfortunately) sometimes the case that no reasonable accommodation exists that would permit an employee with a mental health condition to perform the essential functions of his job. This is why it is essential that employers regularly review all of their job descriptions with an eye toward determining what each job’s essential functions actually are. When the issue of a job’s essential functions arises in litigation, an employee and her former employer often have opposing views of whether a particular function is essential. An employer that regularly reviews its job descriptions is typically much better-positioned in litigation than an employee that has failed to do so. The EEOC is increasingly focused on protecting and vindicating the rights of workers with mental health conditions. Nearly every employer, moreover, wants to do right by all of its employees, including those who have mental health conditions. As is true in other employment law contexts, documentation and preparation are key. And, when in doubt, consult an employment lawyer.
Gary S. Peeples, Attorney Burch, Porter & Johnson, PLLC gpeeples@bpjlaw.com www.bpjlaw.com
Our firm has thousands of partners. We call them clients. Working together isn’t just another way to discover the best solutions for our clients’ employment and labor law needs, it’s the only way we know. At Littler, we take the time to learn about your company because exceptional client service starts with understanding your business. For us, it’s not just about getting familiar with your organization, it’s about gaining a deep understanding of what you do and how you do it. For you, it’s getting a strategic partner with a proven history of solving problems before they start.
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41
Using Statistical Data in HR Management
T
By RICHARD WORKS
he Bureau of Labor Statistics (BLS) publishes timely estimates commonly used in the field of human resources. However, some users may be aware that BLS also makes available corresponding measurements of variation (error) in their data. This information is published so that users have complete information when making comparisons using BLS survey data. For example, do you know how to interpret "an estimated average wage of $20 with a relative standard error of 1.5%"? To calculate a standard error, you divide the standard deviation by the square root of the sample size. To get a relative standard error (RSE), you divide the standard error by the estimate; the RSE is expressed as a percent of the estimate. An estimated average wage of $20 with a relative standard error of 1.5% indicates that the standard error is $20*.015=$.30 and the variance is (.30)^2=.09. So, how is this used and why should I care? Data estimates that are computed from samples are not exact because we will not necessarily get the same calculated results from multiple (different) samples. Since estimates are not exact, we need to be careful when making comparison statements. When making comparisons, an appropriate statistical test is to be conducted. We must take into consideration the standard errors (or other similar measures of variation) when evaluating estimates due to survey errors. For our example, the 90% confidence interval for our estimated average wage of $20 with a standard error of 0.30 would be 20 ± (1.6 x 0.3) = [19.52, 20.48]. This means that the chances are 90 out of 100 percent that the true population estimate would be between $19.52 and $20.48.
Testing Comparison Statements Statistical statements can be evaluated using different significance levels, known as alpha levels. The 0.1 alpha level is a level commonly used in practice, which means that there is a less than 10% probability of assuming a significant relation exists when it really does not. The variance and the standard deviation are used to measure the spread around the estimate with the estimate as the center. The variance is the mean of the squares of the deviations from their mean. The standard deviation is the positive square root of the variance, and has the same units as the original observations. This is one reason why it is used more than the variance. Now we will consider some of the most common tests needed before comparison statements can be made. Differences between two different estimates is one type of statement that needs testing before being confidently made. For example, the average pay of x is higher than average pay of y. A statement like this can only be made if |x – y| > z*s where z is the z-score and s is the standard error of the 42
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difference between x and y. The standard error of the difference between x and y is the square root of the sum of the variance for x and the variance for y. The values of z translate into the percentile for all normal distributions. For example, z is 1.645 at the 90% confidence interval and 1.96 at the 95% confidence interval. Using this calculation ignores any correlation of x and y. By ignoring a possible correlation when we know that one may exists, which in most situations is positive, we are being conservative with our test. In other words, if a statement passes the test with correlation of zero, then it will also pass with positive correlation. If we want to make the statement, “full-time nurses had higher hourly wage rates ($14.11) than part-time nurses ($13.57),” using the variance of .3768 for full-time nurses and .2091 for part-time nurses, then to test this statement, we have to consider the following calculation: |14.11 – 13.57| > 1.645*sqrt(.3768+.2091). Since the difference of $0.54 in the average hourly rate between the full-time nurses and part-time nurses is not greater than $1.26, the statement is deemed not acceptable at the 90% confidence interval. This suggest that we are not confident that the stated pay rate of $14.11 is actually larger than the $13.57 pay rate in the population given our sample and variation. Another example is comparing an estimate with a constant number. For example, the average pay of x is higher than some specified value, e.g. $10.00. This statement can only be made if |x – c| > 1.645*sqrt(standard error). For example, “bus drivers in Cleveland earned less than $10.00 per hour. Using the average hourly earnings for bus drivers of $9.74 with a standard error of $1.08,” this statement can only be made if |9.74 – 10| > 1.645*1.08. Since the difference of $0.26 for bus drivers is not greater than the product of 1.645 and the standard error, then the statement is not acceptable, i.e., the differences in hourly wages is not significantly different from $10.00. The final test that we’ll cover in this article is the comparison of more than two estimates. For example, the average pay x of occupation j was the highest among the k occupations in group y. For this test, we have to compute confidence intervals for each occupation within group y and check whether any of the intervals overlap. If they overlap, then the statement is deemed unacceptable. Otherwise, it is acceptable and permissible to be made. The confidence interval for each estimate is to be calculated as x ± d*sqrt(variance of x) where d is the multiplicative factor which is provided in the table below for k number of values.
Table 1. Multiplicative factors (d) given the number of estimates being compared (k)
k
d
k
d
3 2.13
12 2.64
4
2.24
13
2.67
5
2.33
14
2.69
6
2.40
15
2.72
7
2.45
16
2.74
8
2.50
17
2.76
9
2.54
18
2.77
10
2.58
19
2.79
11
2.61
20
2.81
If we want to make the statement “professional and specialty occupations had higher hourly wage rates ($23.21) than technical occupations ($15.44) and executive, administration, and managerial occupations ($23.18).” For this example, the variances are 0.48, 0.203, and 0.737 respectively.” To test this statement for statistical accuracy, k = 3 because we’re testing three different estimations, and d = 2.13, which is the multiplicative factor on the table that corresponds with the number of estimates being compared. Therefore, the confidence intervals for each occupation group would be:
Legal Challenges are Coming at HR Professionals from Every Direction
Professional and specialty occupations 23.32 ± 2.13*sqrt(.48) = [21.84, 24.80] Technical occupations 15.44 ± 2.13*sqrt(.203) = [14.48, 16.40] Executive, administrative, and managerial occupations 23.18 ± 2.13*sqrt(.737) = [21.35, 25.01] Since the interval for professional and specialty occupations [21.84, 24.80] overlaps with the interval for executive, administration, and managerial occupations [21.35, 25.01], the statement “professional and specialty occupations had higher hourly wage rates ($23.21) than technical occupations ($15.44) and executive, administration, and managerial occupations ($23.18)” is deemed unacceptable and cannot be made. Note, however, that it would be acceptable to say that technical occupations had a lower hourly wage rate when compared to professional and specialty occupations, and executive, administration, and managerial occupations since the confidence interval for technical occupations did not overlap with the confidence intervals for the other occupation groups.
How Would I Use This Information? Suppose you’re investigating BLS data (or data from any source for that matter) to compare how your organization is performing with respect to similar organizations in your region or nationwide. Misinterpreting data could result in inappropriate decisions being made. For example, if you’re considering adjusting the pay rates for your employees or creating a new occupation category within your organization with respect to the pay rates of similar jobs in surrounding areas, measures of variation should be considered to ensure wages are being properly adjusted for the employee and the company. Likewise, when considering employer-sponsored benefit options, using statistical tests ensure fair assessments of cost comparisons. The key take away from this article is that we should question every data point given with respect to its corresponding statistical variation. Just because an estimated value appears significantly different than another estimated value does not mean a true difference actually exists in the population. For more information on the collection and calculation of data estimates and measures of variation, please visit the BLS website.
That’s Why Rainey Kizer Makes Your Business Our Concern As the issues facing HR executives become more frequent, challenging, and complex each year, you need a law firm that provides advice invidualized for you specific needs. This is why you should know the employment law attorneys at Rainey, Kizer, Reviere & Bell, PLC. For over 30 years, our AV-rated firm has advised businesses, non-profit organizations and government agencies on all aspects of employment law. To learn more, please call.
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731.423.2414
423.756.3333
Dr. Richard Works, Economist Bureau of Labor Statistics, Washington, DC works.richard@bls.gov www.bls.gov
Tennessee does not certify specialists in the area of employment law.
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What Your CEO Needs to Know About Sales Compensation: Connecting the Corner Office to the Front Line BY WILLIAM CARMICHAEL
To be honest, I initially felt ill prepared to critique a book on sales compensation. My fear was that I would not relate to the intricacies of commission, bonus, or pay allocation theories. Instead, I found What Your CEO Needs to Know about Sales Compensation: Connecting the Corner Office to the Front Line by Mark Donnolo to be an easy-to-follow guide that takes much of the mystery out of the sales compensation process. It simplifies complex topics such as pay mixes, compensation dynamics and incentive measures so that organizational management can better understand them and more easily determine the best pay strategy. It clarifies performance metrics by using real examples as well as asks fundamentally important questions about the organization’s overall sales strategy. It also highlights the tough questions sales leaders need to ask themselves about effective compensation plans and how incentives drive the business. And with how competitive the sales industry has become, it is imperative that sales managers properly compensate and incentivize their sales reps in order to retain the best ones. This book has certainly changed the way I have looked at sales compensation and it will for you too!
Why Is Sales Compensation Important? In What Your CEO Needs to Know about Sales Compensation, Donnolo and his team have clearly done their homework. What readers will take away is the undeniable fact that it is not the sale that makes or breaks the organization but rather the compensation plan behind it. Those not in sales or marketing typically don’t look at it that way but it is an undeniable truth. Also true is the fact that few agree on the best approach to drive performance toward the organization’s objectives. To quote from the Introduction, “Everything will come to a halt if the next sales isn’t made. ‘Sales’ is the top line on nearly every income statement. Without sales, the funding runs out, the stock doesn’t trade, the lights no longer burn, and the office chatter falls silent. The sales compensation plan is one of the most significant drivers of performance in the sales organization. It guides and motivates the actions of the sales organization more than any single
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factor. It trumps leadership messages, sales strategies, sales management, and sales training. If there is a hard wire between the customer’s office and the corner office, sales compensation is it!” Although readers typically have a workable understanding of compensation principles, Donnolo does a remarkable job of laying bare the fundamentals by inviting the reader into the decision-making process organizations must rely upon. Yet compensation management, as our author notes, still remains a “fine blend of art and science” that too often remains a point of conflict that should not exist and Donnolo shows us why it does. The author also relies upon structure and correlation to a phenomenon known as “C- Level” or “C-Suite” perspectives. An adjective used to describe high-ranking members of an organization responsible for ensuring the day-to-day operations align with fulfilling the company’s strategic objectives. Effective compensation strategies must align with these as well. What Your CEO Needs to Know about Sales Compensation makes the clear and undeniable conclusion that the way a company designs its sales compensation program has a greater impact on behavior and results than any sales training, sales management methods or leadership message. This will be most insightful to HR practitioners and sales managers yet, as our author states, “most executives fail to see the big picture, leading to fundamental misalignments between sales strategy and organizational goals.”
Structure and Layout What Your CEO Needs to Know about Sales Compensation: Connecting the Corner Office to the Front Line is first and foremost a work for senior managers and organizational leaders who need to get a better grasp of their existing sales compensation program. At 256 pages, its 10 chapters will help readers come to terms with strategic elements such as how to develop a revenue roadmap, understanding the sales mentality, performance management and metrics, sales alignment, quota methods, managing sales roles and rewards, compensation plan communication and implementation, and how compensation objectives can be better aligned with organizational goals. It features insightful interviews with Fortune 1000 C-level executives, real lessons from the field, and provides the tough questions leaders should be asking about how sales incentives drive the business. Furthermore, it provides valuable thought models and a Revenue Roadmap which identifies the 4 major competency areas and 16 related disciplines that must connect for any business to grow profitably. Readers will find an interactive report card they can use to grade their own compensation plans. But most importantly, it casts a spotlight on how leaders at all levels can leverage the strategic power of compensation incentives to reach the ultimate goals of their organization.
About the author: Mark Donnolo has worked as a leading sales effectiveness consultant for more than 25 years, helping many Global 2000 companies. He is a managing partner of SalesGlobe, a leading sales effectiveness consulting firm, and is a founder of the SalesGlobe Forum, a sales leadership community teamed with top business schools.
William Carmichael, Ed.D Professor | Strayer University william.carmichael@strayer.edu www.strayer.edu www.HRProfessionalsMagazine.com
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Worksite Enforcement is on the Rise By BRUCE E. BUCHANAN
As predicted in last month’s article, Immigration and Customs Enforcement (ICE) is taking a much more aggressive approach to worksite enforcement, also called employer immigration compliance. I will detail several actions by ICE in 2018 that demonstrate this aggressive approach.
Memphis Enforcement Action The first example hits close to home as 20 undocumented workers were indicted for using fake identification to obtain their jobs with Provide Staffing Services, a staffing agency, at Memphis International Airport. According to Michael Dunavant, the U.S. Attorney for the Western District of Tennessee, no one with the company that hired the workers has been indicted but the investigation is ongoing. Robert Hammer, assistant special agent in charge with Homeland Security Investigations (HSI), stated the federal government is aggressively pursuing this case because the undocumented workers had access to a sensitive air cargo area at Memphis International Airport that required special clearance. “It is imperative for the safety and security of our airports, seaports and railyards that all individuals requiring this type of special vetting present valid and genuine identification documents in the hiring process,” he said. Hammer also stated worksite immigration investigations will likely focus on "critical infrastructure," such as airports, defense contractors, food distribution and other businesses that have an impact on the general safety and welfare of the community. The U.S. Attorney also stated ICE plans to increase its focus on this type of criminal investigation in Tennessee throughout 2018. "Our enforcement strategy is going to be dualpronged, focusing on both employers and the employees.
7-Eleven “Silent Raids” In a true show of force, ICE delivered Notice of Inspections (NOIs) (sometimes referred to as “silent raids”) at almost 100 7-Eleven stores nationwide in January 2018 demanding to see the I-9 forms of all employees. Furthermore, ICE detained 21 employees. Thomas Homan, acting director of ICE, issued a statement – “Today’s actions send a strong message to U.S. businesses that hire and employ an illegal workforce: ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.” ICE referred to their 7-Eleven actions as a “follow-up” of a 2013 investigation that resulted in the arrests and convictions of five 7-Eleven franchise owners in New York and Virginia for harboring undocumented workers and wire fraud. Because of these convictions, it spawned the largest forfeiture in ICE history – forfeiture of franchise rights to 14 stores, forfeiture of five houses, valued at $1.3 million, and restitution of over $2.6 million for back wages stolen from employees. After the convictions of the store owners in New York and Virginia in 2013 and 2014, 7-Eleven’s corporate office stated it would “take aggressive actions to audit the employment status of all of its franchisees’ employees.” However, after the most recent actions, 7-Eleven issued a statement appearing to try and wash their hands of any responsibility or liability for the franchisees’ actions.
ICE’s New Three-Prong Approach to Worksite Enforcement Immediately after the 7-Eleven enforcement actions, ICE announced a three-prong approach to conduct worksite enforcement. This strategy involves immigration compliance, through Form I-9 inspections, civil fines and referrals for debarment; enforcement, through the arrest of employers, knowingly employing undocumented workers, and the arrest of unauthorized workers for violation of laws associated with working without authorization; and outreach, through the IMAGE program, to instill a culture of compliance and accountability. “Homeland Security Investigations (HSI) prioritizes violators who abuse and exploit their workers, aid in the smuggling or trafficking of their alien workforce into the United States, create false identity documents or facilitate document fraud, or create an entire business 46
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model using an unauthorized workforce,” said HSI Acting Executive Associate Director Derek Benner. “Further priority is given to looking closely at those companies or industries that are deemed national security or critical infrastructure interests.” ICE also stated an effective worksite enforcement strategy must address both employers who knowingly hire illegal workers, as well as the workers themselves.
California “Silent Raids” In February, ICE announced it conducted I-9 inspections of 77 employers in the San Francisco and Sacramento areas over a three-day period. ICE did not identify any of the businesses its agents visited in the Bay Area and the Sacramento region. However, just the fact that ICE served subpoenas on so many employers demanding their I-9 forms and then announced it to the media, demonstrates ICE is trying to put the fear of government action in the minds of every employer.
Cost of Non-Compliance of Immigration Laws So, what do these enforcement actions potentially cost employers? After the businesses comply with the subpoena/ NOI, ICE auditors will carefully review the I-9 forms to determine whether undocumented workers are employed at the business and whether the I-9 forms have substantive errors, which could cost $224 to $2236 per I-9 form. As an example, if an employer employs 100 employees, of which 50 have one or more I-9 substantive errors, then that employer’s liability is at least $92,750. For larger business, the penalties would be greater if the 50% error rate continued. If undocumented workers are employed, ICE may return to the employer and detain the undocumented workers. Alternatively, ICE may issue a Notice of Suspect Documents to the employer stating which employees do not have valid work authorization. If after the employer gives its employees an opportunity to provide valid documentation (“newer and better documentation”), the employees fail to provide such, the employer must discharge those employees or face fines of up to $4473 per employee. To learn more about employer immigration compliance and steps you can take to prevent I-9 violations and hiring undocumented workers, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, which is available at http://www.amazon.com/ dp/0997083379.
Bruce E. Buchanan, Attorney Siskind Susser PC bbuchanan@visalaw.com www.visalaw.com
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Event February 8, 2018 – Littler Memphis Office
The attorneys of Littler Memphis wanted to spread the love just in time for Valentine’s Day by answering questions that you wanted answered. What did you struggle with in 2017? What issues should be top-of-mind in 2018? Tanja Thompson, Office Managing Shareholder and Co-Chair of the Traditional Labor Practice Group for Littler; John Simmons, Shareholder; and Paul Prather, Shareholder, helped prepare HR professionals for the changes in the coming year.
Tanja Thompson
48
John Simmons
littler.com | Littler Mendelson, P.C.
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49
How Figuring Out The Why Increases Employee Engagement By HARVEY DEUTSCHENDORF
Simon Sinek is best known for popularizing the concept of why in his first Ted Talk in 2009. It has since risen to the third most watched talk of all time on TED.com, gathering 33+ million views and subtitled in 45 languages.
In
his TED talk Simon Sinek expounded on a simple, yet profound theory on why some products, people and organizations fail while others succeed. It has to do with a simple theory based in biology about why we make decisions. We have a primitive brain, or limbic system, the one part of the brain that holds our emotions. Then there is our powerful, thinking brain, the Neocortex, which has language and makes rational decisions based upon facts, data and information. While we may believe we are using our powerful thinking brain to make decisions, we are actually making them based on our emotions, on the why. Most organizations and products focus on the How and What, but miss the Why, the inner emotional part of why we do what we do. How do you explain the success of Harley Davidson? Japanese manufacturers have been making more technically advanced, reliable and less expensive motorcycles for decades. According to our rational brain, Harley Davidson should have gone out of business a long time ago. But Harley Davidson isn’t selling motorcycles, they are selling the experience, freedom, the open road, the lifestyle. They are saying to their customers, if that is the experience you are looking for, come and join us. Watching Simon Sinek’s talk so inspired Jeff Carcara, CEO of Barteca Restaurant Group, that he made it his mission to find the why of his restaurant group. The Barteca Group began as the Barcelona Wine Bar in 1996, a winning tapas restaurant with 14 locations spanning across Reston, VA; Atlanta, GA; Washington, DC; Boston, MA; Philadelphia, PA; Nashville, TN; and throughout Connecticut. The company’s second concept, bartaco, has 15 locations in Alabama, Colorado, Connecticut, Florida, Georgia, New York, North Carolina, Tennessee and Virginia. The menus are locally sourced with specialities from Spain, the Mediterranean, and wines from Spain and South America.
and increases their own and the customer’s experience. Ask yourself, when was the last time you had a meal where the person serving you actually picked something that was on your plate. Would you remember the dining experience, tell your family and friends? You bet you would. The Barteca Group constantly looks for ways to increase connection between staff, their product and customers. Every year, 2 to 3 groups of managers, assistant managers, chefs and some salaried staff take a trip to Spain. They spend time in the vineyards, wineries, orchards and farms to learn where the food and drink that their customers are experiencing comes from. While there, they also partake of the warm hospitality of the Spanish people. Increasing connection and focusing on the why works well keeping staff engaged and happy. In the restaurant business, 100% turnover per year is quite common. For the Barteca Group, the retention rate is 60% to 70%. CEO Jeff Carcara and his management team are looking for ways for excellent staff to say, “yes I can leave, but why would I want to.” The management style is open to input from all staff and encourages them to come out with their ideas and creativity. The management style, combined with creating a company culture based on the why is particularly appealing to millennials who want more from work than their predecessors. For them, work is about more than just collecting a steady paycheck. They want work that is meaningful, gives them purpose, and contributes to something greater than themselves. They find meaning in the Bartica’s Groups philanthropic work. On the farm that they own, produce that is not used in the restaurants, is donated to charities.
His quest to discover the why of the Barteca Group led Jeff Carcara to hold focus groups. They came away with the simple statement that “We want the customer to leave better than when they came in.” Everything revolved around giving the customer an experience that would be memorable, that they would make them want to return again and again. A weekend retreat was held in which all members of the management group were involved in an intense exercise to discover their own why. Discovering everyone’s individual why was important as it helped the Barteca people align themselves with the overall why of the organization. Powerful bonding and trust were created as a result of an exercise where everyone opening up and taking the risk to be vulnerable and authentic among their peers. To further the customer experience bought a farm that provides some of the produce to the restaurant. The staff is encouraged to spend some time at the farm, working at planting, weeding and harvesting produce that they may actually be serving. This instills a sense of connection, pride and ownership as a wait person could. Sharing with their customers that they actually picked the vegetables on their plates boosts their wait people’s sense of connection, pride in their work 50
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Harvey Deutschendorf is an emotional intelligence expert, internationally published author and speaker. To take the EI Quiz go to theotherkindofsmart.com. His book THE OTHER KIND OF SMART, Simple Ways to Boost Your Emotional Intelligence for Greater Personal Effectiveness and Success has been published in 4 languages. Harvey writes for FAST COMPANY and has a monthly column with HRPROFESSIONALS MAGAZINE. You can follow him on Twitter @theeiguy.
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