May 2014 issue

Volume 4 : Issue 5 TM

www.HRProfessionalsMagazine.com

2014 MS SHRM Conference

Super HeRo – Unmask Your Super Power Conference Agenda

- Page 6

Developing a Plan to Keep Employees Safe from Workplace Violence President Obama

Proposes Revisions to

DOL Exemption Regulations

Highlights

from the 2014 AR SHRM Conference in Fort Smith

SHRM Annual Conference & Exposition in Orlando

June 22-25 Dorothy

Knapp, SPHR

SHRM Field Services Director for Mississippi

The Human Side

of Workers Compensation

JUST PUT IT ON THE COMPANY CARD…NOBODY WILL NOTICE.

YOU’RE REALLY SHOWING OFF YOUR BEST ASSETS TODAY.

THEY’RE WORRIED ABOUT OVERTIME. I’M JUST WORKING OFF THE CLOCK.

I NEVER WEAR THE SAFETY GOGGLES. THEY LEAVE A MARK.

What you don’t hear can still hurt you.

The things employees say when you’re not around can cause legal troubles for you. Fisher & Phillips provides practical solutions to workplace legal problems. This includes helping you find and fix these kinds of employee issues before they make their way from the water cooler to the courthouse.

1715 Aaron Brenner Drive • Suite 312 • Memphis, TN 38120 • 901.526.0431 www.laborlawyers.com

ATLANTA BALTIMORE BOSTON CHARLOTTE CHICAGO CLEVELAND COLUMBIA

COLUMBUS DALLAS DENVER FORT LAUDERDALE GULFPORT HOUSTON

IRVINE KANSAS CITY LAS VEGAS LOS ANGELES LOUISVILLE MEMPHIS

NEW ENGLAND NEW JERSEY NEW ORLEANS ORLANDO PHILADELPHIA PHOENIX

PORTLAND SAN ANTONIO SAN DIEGO SAN FRANCISCO TAMPA WASHINGTON, D.C.

Bringing Human Resources & Management Expertise to You

24% of workplace

violence stems from personal relationships www.HRProfessionalsMagazine.com Editor

Cynthia Y. Thompson, MBA, SPHR Publisher

The Thompson HR Firm HR Consulting and Employee Development Art Direction

Park Avenue Design Contributing Writers

Theresa J. Allen Lindsey Brown Bruce E. Buchanan Harvey Deutschendorf Latosha Dexter Butch Frick Steve Gilliland Matt Ginn Murray L. Harber Jeff Kortes Lisa A. Krupicka Paul E. Prather Jess Sweere Robin B. Taylor Rusty Turner Betsy Weintraub Board of Advisors

Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR John E. Megley III, PhD Terri Murphy Susan Nieman Robert Pipkin Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles.

All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors.

HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2011 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.

Features 4 note from the editor 5 Profile: Dorothy Knapp 6 2014 MS SHRM Conference Schedule 8 2014 MS SHRM State Conference Keynote Speakers 10 Thinking About the Unthinkable: Developing a Plan to Keep Employees Safe from Workplace Violence 13 Hide Your Goat 16 Mississippi Legislature Strengthens Free Choice Rights for Employers and Employees During 2014 Session 20 Are You Ignoring Employee Development?

WEB EXCLUSIVES HTTP://HRProfessionalsMagazine.com /Exclusives

Departments

14 FMLA: 3 Simple Ideas for Streamlining Your FMLA Procedures 22 NLRB: Are College Football Players Really “Employees” of the University?

24 Workers Comp: The Human Side of Workers’ Compensation 26 GINA: Take Steps Now to Ensure Compliance 27 Retention: Treat Your People Like a Corvette 28 DOL: President Obama Proposes Revisions to DOL Exemption Regulations 30 Wellness: Cultivating Sustainable Relationships for Optimal Health Improvement 32 Employee Relations: 5 Mistakes to Avoid In Implementing a Harassment Policy 34 Immigration: I-9 Compliance Lessons from the OCAHO 35 EQ: Social Responsibility and Empathy in the Workplace 36 Workplace Bullying: Locker-room to Boardroom – Strategies to Stop Workplace Bullying 37 e-Cigarettes

Industry News 9 SHRM Annual Conference & Exposition in Orlando June 22-25 18 Highlights from the 2014 AR SHRM Conference in Fort Smith April 8-11 31 Highlights from the SHRM-Memphis Half Day Legal Seminar March 18 38 University of Arkansas: How to Be a Human Resource Business Partner May 15

Next Issue Highlights from the TPMA Annual Conference in Murfreesboro Highlights from the 2014 MS SHRM Conference in Biloxi Highlights from the WT SHRM Employment Law Spring Conference www.HRProfessionalsMagazine.com

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a note from the Editor Welcome to the Mississippi SHRM State Conference & Expo!

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and top-rated speakers in the world and is an annual speaker at the SHRM national conference. You will enjoy his article on page 13, “Hide Your Goat: Strategies to Stay Positive When Negativity Surrounds You.”

We are excited to be the official media sponsor for the 19th Annual Human Resource Conference & Expo in Biloxi, MS! This year’s theme is “Super HeRo Unmask Your Super Power.” The Conference is at the beautiful Beau Rivage Hotel. You will find the Conference Schedule conveniently located on Page 6-7 of this issue. Other highlights from the Conference include our cover featuring Dorothy Knapp, SHRM Field Services Director for Mississippi. You can read more about Dorothy on Page 5. We know you will enjoy the article by Rusty Turner, Governmental Affairs Director for the MS SHRM State Council, covering the Spring 2014 Legislative Affairs Update on page 16.

We had a great time in Fort Smith at the ARSHRM State Conference April 9-11 visiting with our ARSHRM friends there. I hope you will enjoy the highlights from the Conference on Pages 18-19. Next month we will bring you highlights from the MS SHRM State Conference. We are delighted to have an article in this month’s issue from Steve Gilliland who was the opening lunch keynote speaker at the ARSHRM Conference. I was fortunate to be seated next to him, and had the opportunity to ask him about writing an article. The next day the article appeared in my Inbox to my delight! Steve is one of the most in-demand

Our mission is to educate and inform HR professionals in Tennessee, Mississippi, and Arkansas and you will not be disappointed in our May issue! This issue contains cutting-edge articles on preparing your company for workplace violence, tips for streamlining your FMLA processes, employee development, the NLRB’s ruling on college football, the human side of workers’ comp, GINA compliance, proposed revisions to the DOL’s exemption regulations, how to cultivate sustainable relationships for health improvement, mistakes to avoid when implementing a harassment policy, I-9 compliance, and the legal opinion on e-cigarettes in the workplace – plus much more!

There are also several opportunities to earn HRCI recertification credits in May. The West Tennessee SHRM Chapter in Jackson, TN will hold its Spring Employment Law Conference on May 14. You can earn 1.5 strategic business credits by attending “How to Be a Human Resource Business Partner: an Overview of Strategic HR Leadership,” sponsored by the University of Arkansas Global Campus online or in person at the Rogers Global Campus on May 15. See Page 39 for registration details. On May 20 from 8:30 AM to 10 AM, Cross, Gunter, Witherspoon & Gulchus will host “Same-Sex Marriage and Employment: What You Need to Know” in Little Rock. We will also be in Little Rock hosting our quarterly Strategic Leadership for HR Executives on May 22 at the Virginia Bailey Conference Center.

I hope you will also join us on Thursday, May 29, at 2 PM for our monthly HRCI webinar sponsored by Data Facts. If you are not receiving our monthly webinar invitation, let me know and we will be happy to add you to our subscriber list.

Stay informed and educated!

Cynthia Y. Thompson | Editor cynthia@HRprosMagazine.com www.HRProfessionalsMagazine.com

Sign up for our RSS News Feed to receive up to the minute HR Alerts on changing legislation affecting our workforce. www.HRProfessionalsMagazine.com.

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www.HRProfessionalsMagazine.com

Dorothy KNAPP on the cover

DOROTHY KNAPP, SPHR SHRM Field Services Director for Mississippi Dorothy Knapp, SPHR, is a Field Services Director in the Southeast Region for SHRM and is based in Vero Beach, Florida. She has accountability for the states of Alabama, Florida, Georgia, Mississippi, South Carolina and the islands of Bermuda, Bahamas, and Puerto Rico. She joined SHRM in 1999 as an Area Manager and was based in Dallas.

From there, Dorothy was promoted and transferred to SHRM headquarters in Alexandria, Virginia, where she managed a staff who worked with the Professional Emphasis Groups for SHRM, including the Employment Management Association, the Consultants Forum, the High-Tech Net, and the Media Human Resources Association.

Prior to joining SHRM staff, Dorothy was a regional HR manager in the retail and restaurant industries, having worked for both Stein Mart and the Black-eyed Pea restaurants. Her HR functions included employee relations, training and development of managers in HR issues, and recruitment and retention of managers, with responsibility for as many as 75 units in a 13 state region.

While her travel schedule is very demanding, Dorothy always loves to return home to her West Highland Terrier, Scarlett O’Hara (Dorothy’s maiden name!)

Outside of her job, Dorothy devotes four hours a week to volunteering at a Hospice House in Vero Beach. She has been doing this for more than six years and admits that she gets so much in return for the time she spends visiting with patients and families. “ I go there each week hoping that I can bring a smile to someone’s face, or listen to a story a spouse might share about his/her loved one, or help someone understand how wonderful it is that the loved one is in this “right place” at this particular time.”

Dorothy holds a Master’s Degree in Education from the University of Nebraska at Omaha and is certified as a Senior Professional in Human Resources. 

www.HRProfessionalsMagazine.com

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2014 MS SHRM CONFERENCE

Tuesday, May 6, 2014 12:00pm - 5:00pm

Golf Outing

1:00pm - 5:00pm

Exhibitor Set-Up

1:00pm - 4:00pm

Pre-Conference Workshop: Unmask Your Super Power as a Strategic HR Leader in 2014 by Cynthia Y. Thompson Principal and Founder of The Thompson HR Firm, LLC

4:00pm - 6:00pm

Shell Landing Golf Club Magnolia Ballroom Azalea B

Painting with Friends

Azalea A

Wednesday, May 7, 2014 7:30am - 5:00pm

Attendee Registration

7:30am - 8:30am

Hot Breakfast

Camellia Ballroom

GENERAL SESSION 8:00am - 10:00am

It’s Showtime . . . and Life is NOT a Dress Rehearsal by John Petz

Camellia Ballroom

10:00am - 10:45am

Break with Exhibitors

BREAKOUT SESSION #1 10:45am - 11:45am

Sexual Orientation Legal Issues in the Workplace

by Courtney Tomlinson and Craig Cowart, Attorneys - Fisher & Phillips LLP

Azalea A

10:45am - 11:45am

The Conflict Between Legal Compliance and Effective Business Operations

by Kelly Reese, Attorney - Littler Mendelson, P.C.

Azalea B

10:45am - 11:45am

FLSA Compliance Update by H. Mark Adams, Partner and Joseph (JoJo) Lee Adams, Partner - Jones Walker LLP

Azalea C

Creating Super Heroes in the Workforce Through Training and Development by Jan Sims, CPLP, Mississippi Development Authority and President-Elect , ASTD for the Mississippi Chapter of A.S.T.D. GENERAL SESSION Boring Meetings Suck!

12:00pm - 1:15pm Keynote Speaker - Jon Petz

Exhibit Hall

10:45am - 11:45am

Azalea D

Camellia Ballroom

1:15pm - 1:45pm

Break with Exhibitors

BREAKOUT SESSION #2 1:45pm - 2:45pm

Don’t Give Me No Lies and Keep Your Meds to Yourself

by Russell Turner, Partner - Balch & Bingham LLP

Azalea A

1:45pm - 2:45pm

Preparing for and Winning Unemployment Compensation Claims

by Steve Cupp, Partner and Jaklyn Wrigley, Attorney - Fisher & Phillips LLP

Azalea B

1:45pm - 2:45pm

SHRM Advocacy Team: Shaping HR Public Policy

by Chatrane Birbal - Senior Government Relations Associate, SHRM

Azalea C

1:45pm - 2:45pm

The Bermuda Triangle: The Intersection of the FMLA, the ADA, and Workers’ Compensation Law by Martin Regimbal, Jerrald L. Shivers and Michael S. Hudson, Shareholders - The Kullman Firm

Azalea D

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Exhibit Hall

2014 MS SHRM CONFERENCE

2:45pm - 3:15pm

Break with Exhibitors

Exhibit Hall

BREAKOUT SESSION #3 3:15pm - 4:15pm

Guns & Employees – An Overview of the Impact of Mississippi’s Gun Laws on Human Resources

by Christopher Fontan, Attorney - Brunini, Grantham, Grower & Hewes, PLLC

Azalea A

3:15pm - 4:15pm

What? There Are Changes to the I-9 and E-Verify?? by Dave Basham, Management & Program Analyst - Department of Homeland Security U.S. Citizenship & Immigration Services

Azalea B

3:15pm - 4:15pm

Wage & Hour Law – Identifying and Avoiding the Pitfalls Azalea C

by Timothy Lindsay, Robin Taylor and Kristi Johnson, Attorneys - Ogletree Deakins

3:15pm - 4:15pm

Provider Partnerships and Health and Wellness in a Time of Healthcare Reform

by Bryan Lagg, CIA, Senior VP of Consumer Markets and Sales Blue Cross & Blue Shield of Mississippi

5:00pm - 6:30pm

VIP Networking Party with Sponsors & Exhibitors at the Coast Nightclub

Azalea D

Thursday, May 8, 2014 7:30am - 8:30am

Hot Breakfast

Foyer

BREAKOUT SESSION #4 8:15am - 9:15am

Writing Blogs, Articles and Books to Boost Your HR Career

by Cathy Fyock, CSP, SPHR

8:15am - 9:15am

Healthcare Reform Reset: 2014 and Beyond Azalea B

by Joseph (JoJo) Lee Adams, Partner and Timothy P. Brechtel, Partner - Jones Walker LLP

8:15am - 9:15am

Energize and Engage: How Inclusion Supercharges Employee Satisfaction and Performance

by Dorothy Knapp, SPHR - SHRM Field Services Director

9:15am - 10:15am

Break with Exhibitors

BREAKOUT SESSION #5 10:15am - 11:15am

Ending Well: How to Navigate the Termination Waters

by Kelly Reese, Attorney - Littler Mendelson, P.C.

Azalea A

10:15am - 11:15am

Problem Employees and Retaliation: How To Avoid Making A Bad Situation Worse

by Brett Harvey, Attorney - Phelps Dunbar LLP

Azalea B

10:15am - 11:15am

The Top Ten HR Mistakes Made by Mississippi Employers

by Randall Patterson, Shareholder - Baker Donelson

Azalea C

10:15am - 11:15am

Becoming an Effective Strategic Partner

by Danny W. Avery - Past Director, Mississippi SHRM

Azalea D

Closing General Session 11:30am - 1:00pm

The Power of Connection: Unleashing the Super Hero Within Keynote Speaker – Cathy Fyock

Azalea A

Azalea C

Exhibit Hall

Camellia Ballroom

Make plans to join us next year for the 20th Annual Human Resource Conference & Expo May 11-13, 2015 • Beau Rivage • Biloxi, Mississippi • msshrm.shrm.org www.HRProfessionalsMagazine.com

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2014 MS SHRM

MS SHRM

Keynote Speakers

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CONFERENCE

Jon Petz

Because No One Remembers Boring Jon Petz is an engagement expert who works with organizations that want to create an atmosphere of Engagement, Energy and Empowerment.

Jon Petz is a master of engagement! He wears many hats including speaker, author, corporate magician as well as master of ceremonies. He insures your meeting attendees are engaged, energized, and come away with a passion for what they do. His high energy, humorous and interactive approach is a refreshing twist and popular with clients such as IBM, ATT, US Air Force, T Mobile, Cardinal Health, Walmart and more.

He is the author of Boring Meetings Suck, The Best of the Best as well as the DVD program Unlocking the Secrets. USA Today, The Wall Street Journal, CNBC and many other media and industry journals have covered the success of Jon Petz as an author, thought leader and engagement expert. His third book is expected to release in the summer of 2014 and delivers his mantra on taking the simple moments in our work and life, and making them significant. It’s a powerful yet understandable look at the importance of not merely meeting an expectation, but instead, creating an experience through memorable moments.

Cathy Fyock Cathy Fyock, CSP, SPHR, is Your Possibility Partner, providing professionals with the coaching support they need to write their books. She is the author of six books, including—On Your Mark: From First Word to First Draft in Six Weeks.

Before her new business launch in 2014, Cathy was an employment strategist with several business and HR consulting firms, and also led her own company— Innovative Management Concepts—for more than 20 years. Cathy combines her talents as a speaker and her knowledge of business issues to provide innovative and inspirational learning events. She has served on faculty for the Society for Human Resource Management for 8

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their national seminar programs, and has provided keynotes and workshops for hundreds of clients.

Cathy is the Immediate Past Chair for KY SHRM. She has received the Certified Speaking Professional (CSP) designation from the National Speakers Association, and is life-time certified as a Senior Professional in Human Resources (SPHR). Cathy has her undergraduate degree in Music from Western KY University, and her Masters in human resources from the University of Louisville where she taught HR. She resides in Louisville, KY with her husband Jim of more than 35 years.

y SHRM

Annual CONFERENCE & EXPOSITION

The SHRM Annual Conference is the best — and biggest — HR Conference in the world.

You’ll find an array of experiences that can be found nowhere else — experiences that can help transform you, your team, and your organization in big and small ways.

Inspire

Our keynote speakers will present you with stories and perspectives that could change how you see the world around you.

Robin Roberts Co-anchor, ABC’s Good Morning America SUNDAY, JUNE 22 2:30 p.m. – 4:00 p.m.

Tom Friedman Journalist & Best-Selling Author of The World is Flat MONDAY, JUNE 23 8:30 a.m. – 9:45 a.m.

David Novak Chairman and CEO, Yum! Brands TUESDAY, JUNE 24 8:30 a.m. – 9:45 a.m.

Mrs. Laura Bush Former First Lady & Chair of the Women’s Initiative at the George W. Bush Institute WEDNESDAY, JUNE 25 8:30 a.m. – 9:45 a.m.

Tim McGraw Grammy-winning artist TUESDAY, JUNE 24 8:30 p.m.

Orlando

Connect

Grow

With hundreds of sessions to choose from, you can be sure that you’re getting the information and resources you need to be your best.

Craft a truly personalized curriculum with these tracks: • Talent Management • Compensation & Benefits • International HR • Employment Law & Legislation • Business Management & Strategy • Personal & Leadership Development Recertification This conference is an efficient way to earn as many as 49 recertification credits for your HR credentials, by attending sessions, preconference workshops and upgrading to the Conference on Demand!

JUNE 22–25, 2014

Register Now

With over 700 exhibitors, the SHRM Exposition is the world’s largest HR marketplace. You’ll get ideas that will inspire and engage, and learn the latest solutions that are changing the workplace.

annual.shrm.org/hrpros

THINKING About The UNTHINKABLE: Developing a PL AN to Keep Employees SAFE From Workplace Violence

By BETSY WEINTRAUB

A movie theater. An assisted living facility. A military base. An elementary school. A skyscraper. A grocery store. A tourist attraction. A community center. An office building. A church. What do all these places have in common? For one thing, they are all workplaces, locations where employees come and go every day, expecting just another nine-to-five. Unfortunately, they share another common trait: all of these locations have been targets of workplace violence resulting in fatalities.

Workplace violence is a relatively new threat to employee safety. The FBI defined the term “workplace violence” following the post office shootings that occurred in the 1980’s. The first major incident was the 1986 Edmond Post Office Massacre in Oklahoma, where a disgruntled employee fatally shot fourteen coworkers before taking his own life. At the time, it was the third worst mass murder in U.S. history. No one needs to be reminded of the major workplace violence attacks that have occurred since then; most are known by a single phrase: Columbine. 9/11. Sandy Hook. And just last month, the Jewish community center shootings.

Prior to the post office shootings, other workplace safety issues dominated the public eye. In the early 20th century, for instance, Upton Sinclair exposed the horrendous health violations and extreme disregard for employee safety in the American meatpacking industry in his novel The Jungle. The public and the government responded with outrage, leading to substantial improvements in safety standards across the board over the next fifty years.

Since the establishment of OSHA regulations, the United States has seen a steady decline in workplace injuries and fatalities resulting from falls, chemical exposure, fires and machinery accidents. Other agencies have addressed industry-specific occupational hazards, such as the DOT regulations concerning the trucking industry. For some industries, governmental regulations address the most dangerous hazards to employees, and play a major role in how companies within the industry operate. For other industries, such as many of the workplaces identified at the beginning of this article, however, OSHA has little relevance to daily life.

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Is your workplace really safe?

Most HR professionals who work in these types of venues – stores, schools, offices, religious institutions and the like – would have no reason to obsess over OSHA regulations because their workplaces are not that inherently dangerous. Take a minute to consider your company’s policies and practices concerning employee safety and what dangers each of those precautions addresses. You certainly have fire escape routes and emergency evacuation plans for extreme weather conditions. You may have surveillance cameras, lighted parking lots, alarm systems, hand sanitizer or a security guard.

Remember, you are focusing on employee safety in this exercise. A surveillance camera that runs after hours protects property, not people.

Isn’t That Enough?

OSHA’s general safe workplace requirement basically directs employers to protect their employees from “foreseeable” risks, not every possible remote danger. Foreseeable risks can be industry-specific, such as the risk of robbery at banks and convenience stores.

Fire is the best example of a “universal” foreseeable risk. Before Progressive Era developments in workplace safety, fire was a leading causes of workplace deaths - they could happen anywhere and the results could be catastrophic. One of the most horrific examples of this is the Triangle Shirtwaist Factory fire in New York City in 1911. Due to inadequate fire safety precautions and locked fire exits, nearly 150 women, mostly young immigrants, lost their lives. A lot has changed since then. Today, fires and explosions account for merely 2-3% of all workplace fatalities, around the same number annually that died in one day in the Triangle fire.

For at least the last decade, transportation related accidents have been the leading cause of workplace fatalities. In 2012, transportation events accounted for 41% of all workplace fatalities. Unlike the risk of fire, however, transportation risks occur outside the walls of the office and do not universally affect every industry. The focus of this article, workplace violence, is not only a universal and foreseeable risk, it is also the second leading cause of workplace fatalities in the U.S.

“It couldn’t happen here.”

Violence has been a leading cause of workplace fatalities in the United States for over a decade, yet few companies take active roles to prevent it.

Why? Because most companies think the same thing that you are probably thinking right now: It just couldn’t happen here.

Before July 20, 2012, the owners of the Century Movie Theater in Aurora, Colorado probably shared your belief. They had fire exits, procedures in place in the event of extreme weather; they probably even had restroom signs instructing employees to wash their hands to prevent the spread of disease. Before July 20, 2012, the Century Movie Theater had the appearance of a safe working environment. But, as the world learned that night, the theater was not safe: the shooting left twelve people dead and fifty-eight injured.

If you think that your workplace is different, think again. Assaults and violent acts are the second leading cause of workplace fatalities in the U.S., accounting for 17-18% of all workplace fatalities, and no industry is immune. Think about how many times you have seen interviews following a mass shooting where the interviewee says, “I never imagined it could happen here.” They did not think it could happen during a “meet and greet” outside a grocery store in a nice area of Tuscon. Before twenty children died on December 14, 2012, they did not think it could happen at an elementary school in Sandy Hook either. They did not think it could happen at Fort Hood. And those are only stories that made national headlines. On April 10, 2012, for instance, a man fatally shot his girlfriend as she walked to her car in the parking lot at the Memphis Headquarters of ServiceMaster, and then turned the gun on himself. They did not think it could happen there. But it did happen, and when it did, they were not prepared.

HR Professionals can develop a plan to eliminate the risk of coworker violence by maintaining an open dialogue with employees. If you have a policy ensuring confidentiality and non-retaliation for reporting potential problems, threats or other incidents involving coworkers, your employees are more likely to let you know when they feel unsafe.

Approximately 24% of workplace violence stems from personal relationships, yet a vast majority of companies do not have a formal policy addressing domestic violence. Workplaces Respond, a project funded by the U.S. Department of Justice, located at www.workplacesrespond.org, is a great resource for developing good policies and practices addressing the prevalence of domestic and sexual violence in the workplace. A 1999 survey found that approximately 50% of employed victims of domestic violence had experienced harassment by their abusers at their workplace.

More recent studies have found that approximately one in six women has experienced stalking. Inform your employees that they can safely alert you to domestic abuse dangers without fear of retaliation, and ask them how you can help make them feel safe at work.

Do SOMETHING, because, yes, it could happen to you.

Homicide is the leading cause of non-transportation related multiplefatality workplace incidents. Identify your threats and do something about them before you are the person left thinking, “I never thought it could happen here.”

Betsy Weintraub, Attorney Fisher & Phillips, LLP bweintraub@laborlawyers.com www.laborlawyers.com

FIRST, identify the threat.

OSHA categorizes four different types of workplace violence: (1) criminal (such as robberies or “random” shootings); (2) customer/client/patient; (3) coworker; and (4) personal relationships. Take a moment to think specifically about which of these types are more likely to affect your industry. If you work in the health care sector, for instance, “patient” violence may be more likely than “criminal” violence.

You also need to consider threats specific to your workplace. Have there been complaints about coworkers threatening each other? Are you aware of any employees dealing with difficult domestic situations? Is there an angry customer who simply refuses to go away? Does the location of your workplace make it more vulnerable to robberies? Has your company been involved with any political or religious controversies?

SECOND, implement a policy and plan for the unthinkable.

If you do not already have a Workplace Violence Policy in your company handbook, now is the time to call your employment lawyer and do that handbook update you’ve been putting off. Remember, this is a universal threat – every business should have a policy taking a firm stance against workplace violence.

Criminal action is the most common type of workplace violence to result in a fatality. According to the Bureau of Labor Statistics, “robbers and other assailants” accounted for 6,520 of the total 8,666 workplace homicides from 1997 to 2010. If your biggest workplace violence concern is criminal action, the FBI has great resources available online at www.fbi. gov, including a publication addressing workplace violence policies and plans for handling threats. www.HRProfessionalsMagazine.com

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Join us for Mother’s Day Brunch, Sunday, May 11

Hi Amy, Please make the following changes in the bottom right hand corner: Join us for the Regalia Spring Outdoor Music and Food Festival Thursday, May 8, from 4-8 PM on the Patio!

Food and drink specials and Music by Lannie McMillan Jazz Trio

Lunch & Dinner: Mon. - Thurs. 11am - 9pm Fri. and Sat. 11am - 10pm Sunday Jazz Brunch Seating 9:30am - 2:30pm

Join us for the Regalia Spring Outdoor Music and Food Festival Thursday, May 8, from 4-8 pm on the Patio!

Food and drink specials and Music by Lannie McMillan Jazz Trio

HIDE YOUR GOAT™

By STEVE GILLILAND Steve Gilliland was a keynote speaker at the AR SHRM Conference on April 10. Steve has been SHRM’s #1 rated speaker for the past 8 years. He was inducted into the National Speakers Association’s Speaker Hall of Fame in July 2012. In addition to his brilliant speaking career, Steve’s books Enjoy The Ride, Making a Difference and Hide Your Goat have been on the publisher’s best selling list and he was named author of the year in 2010. Steve can be heard daily along side of Jeff Foxworthy and Bill Cosby on SiriusXM Radio’s Laugh USA. Steve will be speaking at the National SHRM Conference & Exposition in Orlando in June 2014. For more information about Steve visit his website at www.stevegilliland.com.

No

one is immune. The infection can spread quickly and those who discharge the poisonous toxin are masquerading as co-workers, family, friends and people we encounter in our daily lives. They believe that if they are unhappy, then why not share the feeling? They are elusive, prefer not to march alone and affect every institution of society. The bitterness they expel produces by-products of bad attitudes, including resistance to change and personality conflicts. They hunt down upbeat people and without regard, challenge their outlook and question their position on everything positive. They cost plenty in terms of productivity and morale and make life tough for everyone. They delight in getting your goat!

Goat Hunters For the most part, these “goat hunters” are self-doubting, insincere, and in a lot of cases, not even aware of whom they really are. Worse yet, they don’t realize the unconstructive impact of their behavior and how other people truly perceive them. The people, who accept their behavior, are more often than not, a reflection of themselves. So how do you survive all this negativity? As best-selling author and Hall of Fame speaker Steve Gilliland suggests, hide your goat!

Just where do you hide your goat? It all depends on what you believe gets your goat, or shall I say, who pushes your buttons the wrong way.

You are the person who chooses every day how you will respond to people and surroundings. You are the person who either has enough self-esteem to accept what life throws at you, or the person who feels the need to retaliate.

Destructive Emotions Have you ever been wronged? Have there been times when you haven’t gotten everything you deserved? Do you spend your time and energy on what should have been or are you going to focus on what can be? Even when truth and justice are on your side, you may never be able to right your wrongs. Don’t allow destructive emotions to consume your energy, turn you negative and give people permission to get your goat.

As you look backward, trying to right your wrongs, you become resentful, angry, intolerable and bitter. Instead of worrying about someone ever

making it right, refocus yourself so you can move forward. If you are holding on to past hurts and pains, let go. If someone can’t treat you right, love you back and see your worth, let go. If someone has angered you, let go. If you are holding on to some thoughts of evil and revenge, let go. If you are involved in a wrong relationship or dependence, let go.

If you are holding on to a job that no longer meets your needs or abilities, let go. If you have a dire attitude, let go. If you keep judging others to make yourself feel better, let go. If the approval you are seeking from family, friends or co-workers isn’t happening, let go.

The Mastery of Self The mastery of life is the mastery of self. We all have our hot buttons that, when pushed, can cause us to emotionally detonate. However, people can only ruin our day if we give them permission. Every mistake, broken promise and slip-up, can develop a paralyzing grip. Stop wasting priceless hours envisioning revenge toward an uncaring person.

Resentment is about another person who seldom gives thought to their offense. Remove all the resentment, jealousies, self-centeredness and just let go.

People for the most part seek to be liked and accepted. While they may say one thing, their actions do not match their “so called” beliefs.

It would explain why some people spend money they don’t have, to purchase things they don’t need, to impress people they don’t even like. Growing up we were challenged with fitting in, and years later we are still seeking the approval of our co-workers, families and friends.

Pessimism, cynicism, and distrust are byproducts of trying to fit in.

Hide Your Goat Surviving the negativity that surrounds you isn’t as much about the people who are detrimental and trying to get your goat, as it is about you. Until you are able to be confident in your own thinking, you will forever fall prey to the people who find your goat and attempt to ride it.

It’s time to herd your goat by letting go of your former transgressions.

Feed your goat the right substance by recalling that your mind will give exactly what you put in it. It is time to exercise your goat and stop giving people permission to ruin your day. It is time to Hide Your Goat™! www.HRProfessionalsMagazine.com

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3 simple ideas for streamlining your FMLA procedures &

saving your company dollars

By LINDSEY BROWN

It’s

been over twenty years since President Bill Clinton signed the Family and Medical Leave Act (FMLA). However, questions and concerns arise in navigating through the FMLA’s intricacies to this day. It seems that with each passing year, new rules and laws are established making even the best HR pro feel completely confused at times. If you’ve felt this way I hope this article gives you some insight as to what you can do. If you have not felt this way and in fact find FMLA laws enjoyable to read and learn about, then congratulations, good for you, you are a rare breed (unicorn rare).

I’m sure with working in the HR field you have often wondered “what can I do to make FMLA simpler for myself and the employees?” Because let’s face it, just keeping up with the ever changing laws is a job in itself.

First, let’s quickly, and hopefully painlessly, discuss what FMLA is for. FMLA gives eligible employees job-protected unpaid leave for 12 weeks in a 12-month period to care for any of the following: • birth of a child and to care for a newborn child of the employee or spouse • placement with the employee of a child for adoption or foster care • to care for the employee’s spouse, child, or parent with a serious health condition • a serious health condition that makes an employee unable to perform the functions of the employee’s job • a qualifying exigency arising out of the employee’s spouse, child, or parent’s covered active duty* or call to active duty in support of a contingency operation • to care for a covered service member with a serious injury or illness incurred in the line of active duty if the employee is the spouse, child, parent, or next of kin of the service member (military caregiver leave) Of course the above are stated in simplistic terms. For each one of those bullets the FMLA goes into further detail to explain, for example, what qualifies someone as a “parent or spouse,” or what is considered a “serious illness.” Shocked? I think not as I’m sure the majority of you reading this article have the most up to date “FMLA Compliance Guide” sitting directly in front of you.

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However, if you’ve burned that book out of frustration and rage, you can also visit the United States Department of Labor here: http://www.dol.gov/ compliance/laws/comp-fmla.htm as a refresher. Enjoy!

Nevertheless, in addition to “reading” the Compliance Guide and/or Department of Labor website, there are a few simple things your company can do.

IMPLEMENT company call-in procedures and thoroughly TRACK call-ins/absences Institute simple, consistent call-in procedures that are immune to supervisor abuse and track each and every one! Sounds simple and in this case simple is the way to go. Employees want a simple, fast way to report an absence and employers want to receive that information in a simple fashion without possible manipulation from the employees’ immediate supervisors who may be biased (ie, friends with the employee calling in). According to the 2013 ERC FMLA Practices Survey, proper and unbiased “tracking” was the number one challenge for 40% of the participants. In this regard, there are attendance tracking systems out there that offer the employee a convenient way to notify an employer of an absence via a third party website and/or call center. Such systems make it easy for the employer to receive/monitor that information. Most of these will also keep accurate track of each employee’s calls, letting supervisors know how often someone calls off, for what reason, and when they will return to work. Nice, right?

Before rushing off to do a Google search to find which system works best for you, read on for more valuable information.

Document EVERYTHING Although tedious and time consuming, I cannot stress how important this is. Again, attendance tracking is an enormously vital and money saving tool to tracking employees for FMLA (and other purposes). However, if you do not want to spend the money purchasing an attendance tracking system, documentation is still necessary, albeit more difficult. Keeping track of each employee’s call-offs can give you a better understanding as to which employees are calling in more than others, what they are calling in for and how often they are out of work. Documentation can also alleviate the he said/she said when a dispute arises.

Confirm, confirm….oh and confirm!

It’s always a good idea to remind yourself and eligible employees what the qualifying reasons are when taking FMLA protected leave – we discussed these above. With everyone on the same page it can ease the awkward discussion when a time off is denied. Make sure the eligible employee’s serious health condition meets the “regulatory definition”. Again, refer to the United States Department of Labor website to learn more. Man, that site sure is helpful.

Although overwhelming at times following these steps will definitely relieve some of the “FMLA headache.” Remember why you chose the HR field in the first place and that without you, a company could not function properly!

You get priceless benefits such as being the face of your company to the employee welcoming a newborn into the world, you get to help ensure only the best of the best are hired, and of course, you are the voice of reason when tension sets in. In summary, excellent absence tracking software not only reduces potential tension but when it does arise, it makes decisions simpler and your job easier.

Lindsey Brown Director of Marketing & Sales Acculor Attendance Systems, a division of Port City Companies Lindsey.Brown@portcity.com www.acculor.com www.HRProfessionalsMagazine.com

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2014 MS SHRM

MISSISSIPPI LEGISLATURE

CONFERENCE

Strengthens Free Choice Rights For Employers And Employees

During 2014 Session

By RUSTY TURNER

Typically, the Mississippi Legislature defers to Congress on all employment legislation unless the relevant issue is one on which Congress has failed to act and one which strongly affects Mississippi employers. Indeed, outside of Governor Barbour’s tort reform efforts over a decade ago, Mississippi employers have primarily focused their attention on federal legislative initiatives because those are the ones that most often affect how they administer and apply HR practices.

However, the 2014 Mississippi Legislature responded somewhat differently by passing four new laws that directly affect Mississippi employers.

Three of these laws were passed in an effort to strengthen Mississippi’s existing right to work laws and preserve the rights of both employers and employees to freely decide upon union representation. The other law will facilitate access to the information necessary to conduct background checks.

SENATE BILL 2473 Senator Terry Brown of Columbus and Senator Giles Ward of Louisville sponsored Senate Bill 2473 entitled “The Prohibition Against Employer Intimidation Act.” This Bill primarily addresses the now common organizing technique by which some unions use a “top down” strategy that first targets management by seeking the employer’s execution of a “neutrality agreement.” Certain unions have been known to obtain management’s consent to these agreements through coercive threats and/or “corporate campaigns” whereby the union targets the employer’s customers, suppliers and contractors in various ways to adversely affect that employer’s business. If successful, these campaigns can persuade management to sign a “neutrality agreement” in which the employer waives its right to oppose a secret ballot election in favor of recognizing the union whenever it collects a certain percentage of authorization cards. These neutrality agreements also typically provide that management is prohibited from saying anything negative about the union during its organizing drive. A good example of such an agreement is the one the UAW obtained from Volkswagen in Chattanooga.

Some Volkswagen employees objected to the Company’s card check recognition last fall because they claimed the UAW misled and bullied them in obtaining the authorization cards required for the Company’s recognition of the UAW as their bargaining agent. The employees prevailed on their objections and thereafter forced a secret ballot election in February which resulted in the UAW’s defeat. If the Volkswagen employees had unsuccessfully challenged the propriety of these authorization cards, then they would have been barred from seeking a secret ballot election for at least six months thereafter under existing NLRB precedent. Although the Volkswagen employees ultimately prevailed against the UAW’s organizing efforts, neutrality agreements can and often do pave the way for unions to organize in geographic areas and industries that they could not if a secret ballot election were required.

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The Mississippi Legislature, largely upon party lines, passed Senate Bill 2473, in order to strengthen an employer’s rights to oppose such top down organizing tactics. Senate Bill 2473, which was based on similar laws passed in other states, may deter some unions from using such top down organizing tactics in Mississippi. Governor Bryant signed this law, and it will become effective on July 1, 2014.

SENATE BILL 2797 This Bill was also sponsored by Senators Brown and Ward, and it was also passed mostly along party lines. This Bill complements Senate Bill 2473 in that it prevents both state and local government entities from requiring that any employer execute a neutrality or “labor peace agreement” that in any way waives that employer’s legal rights to oppose union organizing efforts in exchange for receiving a contract from that governmental entity. Although such contractual provisions are not as prevalent in Mississippi as in other more union friendly states, the Mississippi Legislature recognized that such potential also existed here and proactively responded by invalidating such contractual conditions. However, this law does not prevent the State from requiring the use of specific project labor agreements to the extent those are required by federal grant funds and otherwise lawful under federal law.

Governor Bryant has also signed this Bill, and it becomes effective on July 1, 2014.

SENATE BILL 2653 Senate Bill 2653 was also sponsored by Senators Brown and Ward.

This Bill prohibits unions from picketing or obstructing an employer’s entryways, sidewalks or adjacent property in any way that “unreasonably interferes” with either its employees’ or customers’ access to the facility. Importantly, this Bill also protects both management’s and employees’ private residences from the same type of interference and obstruction and includes a prohibition on the use of vehicles to carry out such interference. It also lessens the burden of proof required to obtain injunctive relief against the union by eliminating the necessity for showing that the union’s interference is causing “irreparable harm,” a difficult burden to meet under existing Mississippi law. If a union agent violates this new law, then he can be fined $500 and jailed for up to six months. This law also becomes effective on July 1, 2014.

SENATE BILL 2689 Senate Bill 2689 was sponsored by Senator Brown, and it becomes effective on July 1, 2014. This law prohibits any local government entity, such as a City/County Clerk, from adopting any rule, practice or ordinance that in any way interferes with an employer’s ability to obtain the information necessary to perform background checks on applicants or current employees. This new law makes it much easier for employers and/or the background check agents they retain to gather local civil and/or criminal records by expressly commanding that the custodians of such records and information make them available when the information is sought for the purpose of conducting a background check. While this law will likely be construed to permit such local government entities the right to charge reasonable fees in connection with retrieving and copying such records, it should be construed to prohibit such entities from restricting access to such information unless there is a specific statutory basis for doing so such as the current restrictions on releasing Youth Court criminal records.

E. Russell Turner, Partner Balch & Bingham LLP rturner@balch.com www.balch.com

EMPLOYERS LAWYERS

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Working Together in Mississippi Ogletree Deakins lawyers in Jackson, Mississippi work closely with Human Resource professionals, business executives, and inhouse counsel to anticipate, prevent and resolve legal issues in the workplace. Our experience and knowledge of our clients’ industries and legal challenges enable us to serve their interests effectively and efficiently.

We remain committed to providing our clients with an insider’s view of the workplace issues of the day.

With more than 650 attorneys in more than 40 offices located in the United States and Europe, the firm combines local knowledge and strength with national resources.

Jackson office attorneys L-R: Timothy Lindsay, Robin Banck Taylor, Kristi Haskins Johnson, Bert Ehrhardt 100 Renaissance • 1022 Highland Colony Parkway, Suite 200 • Ridgeland, MS 39157 • 601.360.0995 www.ogletreedeakins.com LAW FIRM OF THE YEAR Litigation – Labor & Employment LAW FIRM OF THE YEAR Employment Law - Management

Highlights from the

2014 ARSHRM Conference Fort Smith, Arkansas April 9-11 1 2014 ARSHRM State Conference Committee (L-R Front Row) Pam Sloat, PHR; Kathleen McComber, SPHR; Beth Elder, PHR; Tim Orellano, PHR; Holley Little; Tara E. Mauk Arthur, PHR (L-R Back Row) Kim Finne, PHR; LeeAnn Hicklin; Michelle Strong, SPHR; Jim Harris, PHR; Eric Garvin; Cathleen Hoffman, SPHR; Kimara Randolph, PHR; Bethany Taylor, SPHR. Not Pictured: Monique Forehand; Lori Garvin; Ron Orick

2 Wizard of Oz Characters at the ARSHRM Conference. It was fun to see vendors and exhibitors dressed in costumes from the classic film walking around at the Conference .

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3 2014 ARSHRM Chapter Presidents (L-R) Front Row) Patti Airoldi, PHR CAHRA (Central Arkansas Human Resources Association) President; Sunshine Bartlett WAHRA (Western Arkansas Human Resource Association) President; Heather Parsons, PHR NEASHRM (Northeast Arkansas SHRM) President; and Jolen Jolly, PHR WCASHRM (West Central Human Resource Association) (L-R Back Row) Ray Poole standing in for SAHRA (South Arkansas Human Resources Association) President Erick Wiggins; Lee Fisher, PHR standing in for NAHRA (North Arkansas Human Resources Association) President Rebecca Martin; NCASHRM (North Central Arkansas SHRM) President Christy Manning-Owen, SPHR; NOARK (North Arkansas Human Resources Association) President Clifford C. Sandsmark, CCP, CSCP, SPHR

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SPECIAL RECOGNITION GOLD SHAPE AWARD Central Arkansas Human Resource Association (CAHRA) BRONZE SHAPE AWARD North Arkansas Human Resource Association (NAHRA) BRONZE SHAPE AWARD North Central Arkansas SHRM (NCASHRM)

Rebecca Martin

Christy Manning-Owen, SPHR

PLATINUM SHAPE AWARD Northeast Arkansas SHRM (NEASHRM)

Heather Parsons, PHR

GOLD SHAPE AWARD/PINNACLE AWARD Northwest Arkansas SHRM (NOARK)

Cliff Sandsmark, SPHR

SILVER SHAPE AWARD South Arkansas Human Resource Association (SAHRA) PLATINUM SHAPE AWARD/PINNACLE AWARD - MANAGER TRAINING PROGRAM West Central Arkansas SHRM (WCASHRM)

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Patti Airoldi, PHR

SILVER SHAPE AWARD Western Arkansas Human Resource Association (WAHRA)

Erick Wiggins

Jolen Jolly, PHR Sunshine Bartlett

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4 (L-R) Eric Garvin and Jim Harris, PHR, were the 2014 ARSHRM Conference Co-Chairs. 5 Tara Mauk Arthur, PHR, spoke on “Twitter 101: Going Social in the Land of Oz.” 6 Tim Orellano, PHR, spoke on “Same Tiger – Different Tail”: Strategies for the New Affirmative Action Regulations.” 7 LaFern K. Batie, MBA, SPHR, was the Mega Session speaker. She spoke on “Making Your Message Magical: 8 Steps to High-Impact Communication.” 8 Kathleen McComber, SPHR, was the 2014 ARSHRM Conference Program Chair. 9 Steve Gilliland was the Opening Lunch Keynote Speaker. His topic was, “Hide Your Goat: Strategies to Stay Positive When Those Negativity Surrounds You.” (See Steve’s article on Page 13.) 10 Jim Corder, SPHR, spoke on “Mastering Yourself to Overcome the Wizard of Oz.”

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11 Christi Pittman, Regional Sales Director with Delta Dental, presenting sponsor of the 2014 ARSHRM Conference and Expo. 12 Judith Tavano, SPHR, led a lively discussion on “What’s Behind the Curtain? Inter-generational Knowledge Capture and Transfer.” 13 (L-R) Cathleen Hoffman, SPHR, Exhibitor Co-Chair; Michele Burns, SPHR, ARSHRM State Director; and Stephanie Amerson, PHR, Publicity Co-Chair. 14 Rickie Smith with Cross, Gunter, Witherspoon & Gulches, P.C. 15 The Tin Man and the Scarecrow with the Ruby Red Slippers. 16 Calvin Colbert, VP, Challenger, Gray & Christmas, Inc. with Cammie Scott, SPHR, President of CK Harp and Associates. Cammie spoke on “Health Care Reform in the Land of Oz.” 17 Sheila Moss, SPHR, spoke on “A Scarecrow, A Tin Man, and a Cowardly Lion Walk Into an HR Department . . . Could One of Them Really Be a Flying Monkey?” Her topic was on how to fairly assess each candidate’s background and experience. www.HRProfessionalsMagazine.com

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Are You Ignoring

Employee Development?

By THERESA J. ALLEN

Before you ponder your answer, ask yourself these important questions:

How often do I think of Employee Development?

More importantly, how often do I NOT think of it? Regardless of your answer, the fact remains that if a company fails to be proactive in creating and implementing an employee development program, it is likely they are losing valuable employees.

It is essential that a company create an avenue for employees to improve their current job skills while preparing for possible future job responsibilities.

Why is it important?

The explanation can possibly be found in a quote from the great American businessman, Harvey Firestone. The famous tire magnate once said, “The growth and development of people is the highest calling of leadership.” Firestone was on to something. The renowned, industrial pioneer grasped the importance of employee development. (Heck, he probably invented it.) Harvey Firestone understood that the employer must embrace the idea of workforce development, and he knew it was the employer’s responsibility to make it happen.

A fully fleshed-out plan strikes a balance between opportunities and career growth, as well as increased productivity and retention for valuable employees.

There’s a mutual sense of respect and appreciation from the company and its employees – a definitive win-win situation.

So, if it is so important, then Why is it ignored?

There’s a litany of reasons why this tremendously important aspect of HR is frequently passed over. A few questions for consideration: Do executives have high expectations regarding the future of its employees?

Do they actively promote and reward success? Also, where is management’s focus?

Chances are that execs are more focused on day-to-day operations rather than long- term objectives.

Just how does a company implement an employee development program?

How do they get started?

Can you place your company in any one of these categories? What about all three?

Perhaps your company has another reason for not implementing a workforce development program. The bottom line is this: a company must overcome obstacles and make employee development a top priority.

Who’s important?

So, your company’s human capital “bank” has numerous employees who, upon hire, met all the criteria that every HR guru described as the ideal employee. You checked off characteristics, like “intelligent, ambitious, culturally-fit, confident, honest, detail-oriented, presentable and hard-working.” Retaining these rock stars of the workplace is vital to the success of a company. But doing so is a constant challenge in the overly competitive world in which we live, which leads many a company to forego implementing an employee development program.

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Careful thought and sound planning are essential in designing an effective plan. You’ll need to start with the basics. Find out who’s on board and can provide executive level support.

The money flows from here, so it is crucial that the company executives grasp an understanding of the value of development. Determine who is and will be committed long-term to the program. In presenting your case, you might emphasize the consequences of losing ideal employees - possibly to a competitor. No one wants that.

The executives not only need to comprehend what you want to do, they also need to respect what you want to do. Their positive viewpoint regarding the employee development program will greatly influence attitudes company-wide. Think of it like this: a positive and encouraging attitude towards the plan at the executive level will yield a more positive, encouraging employee base perception.

What about on the management level? Management’s opinion of the plan, whether a natural flow from the executive level or not, is just as vital. They have a direct relationship with the employees and will witness first-hand the improvements. However, a balance must be met with another consideration – a consideration of whether your managers possess the understanding of development implementation.

If not, you might need to tap the brakes and assess their various levels of understanding. One possible way to meet the challenge is to simply incorporate a series of instructional seminars on management’s role in implementing a development program.

So you have the executive and management buy-in, but now what?

It’s time to communicate with the group that has the most influential input - your employees. Their involvement and understanding is essential. Ideally, you should communicate with the employees one-on-one. It is communication on its most personal level, making them feel a stronger sense of concern for their well-being. Create an atmosphere that fosters open discussion. Speak candidly with them about their goals and aspirations. Most importantly, don’t avoid their frustrations and challenges. Discuss where they envision seeing themselves in the future, maybe in five years.

One of the most important questions you should ask is simply if they would like to improve themselves. If you get an emphatic “yes,” ask them to expound on their answer. Where would they like to improve?

What are their thoughts on how to get there? They may surprise you with insightful ideas regarding development for not only themselves, but also for their department and the company as a whole. Clearly express to the employee the company’s goals on development and assure them that their participation will be integral to its success.

You will find a great number of resources and consultants who are knowledgeable of development methods such as employee mentoring, cross-training, job enlargement and enrichment, succession planning and online training options, and possibly even a company-sponsored educational tuition reimbursement program. Partnering with a consultant will help you complete the cycle of a development program, which not only includes the ideas discussed in this article, but also includes monitoring the plan’s progress and how to respond to the feedback. At that point, you are well on your way to establishing a vital component of workforce development.

Theresa J. Allen Wellness & Compliance Coordinator Regions Insurance, Inc. Ridgeland, MS Theresa.Allen@regions.com

SETTING YOU ON THE RIGHT PATH

FOR SUCCESSFUL BENEFITS MANAGEMENT Monitoring changes with today’s employee benefit laws can be overwhelming for even the most seasoned HR professionals. And, with more than 50 categories of regulations, nearly every aspect of the employer-employee relationship is impacted.

Regions Insurance is able to assist you each step of the way in navigating today’s benefits rules, while helping you manage and protect your organization’s growth, profitability and people.

WE SEE THE BIG PICTURE.

Tom Hayes Employee Benefits Practice Leader tom.hayes@regions.com 479-684-5259

Katrina McKinney Sales & Marketing Coordinator katrina.mckinney@regions.com 205-264-7177

Find Regions Insurance offices in these states: Alabama, Arkansas, Georgia, Indiana, Louisiana, Mississippi, South Carolina and Tennessee

Are College Football Players Really “Employees” of the University?

By JESS SWEERE

players from unionizing because of the amount of time they spend on

The Ruling

the field rather than in the classroom. Northwestern University has appealed the Regional Director’s decision that the football players are effectively employees, and argued that Ohr relied too heavily on the testimony of one player, while ignoring testimony from three other

On March 26, 2014, a Regional Director of the National Labor Relations

players who said that academics were their top priority. The North-

Board (NLRB) ruled that Northwestern University football players are

western football players are to vote April 25, 2014, by secret ballot,

university employees with the right to unionize, giving them the ability

to determine if they wish to be represented by a union. The results

to negotiate for better benefits than they currently receive. Peter Ohr,

of the election could be kept private for some time. The ballots will

Director of the NRLB’s Chicago Region office, handed down the

be impounded until the NLRB in Washington makes a decision about

decision, giving the opinion that Northwestern’s scholarship football

Northwestern’s appeal, and it is not clear when that will be. Several

players are “not primarily students.” Ohr is saying that Northwestern

players, including starting quarterback Trevor Siemian, have indicated

football players are athletes first and students second. This is due to

that they would vote "no" to unionizing, especially now that they have

the way team members are expected to prioritize athletics over school.

more information about what joining a union really entails.

For example, team members are expected to avoid classes that could conflict with practices, even if they are required for their majors. Ohr focused on a prior NLRB ruling which disallowed Brown University graduate teaching assistants from forming a union due to the nature of

Who is Affected?

their work. The reasoning is that while teaching assistants work hard as instructors, they are primarily at school to learn, and teaching is just one of the requirements for their degree.

Assuming the ruling survives appeal, it only applies to Northwestern Football. Additionally, this ruling is still limited in scope, as it currently

Although Ohr did not necessarily agree that this Brown test was appli-

stands, because the NLRB only regulates private institutions. Thus,

cable to scholarship football players, it still would not stop the football

public universities are not bound by this decision. The number of

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private institutions in NCAA Division I athletics is overwhelmingly low

employees. This can be accomplished by making financial contri-

compared to the number of large state schools. Only 17 of the 128

butions over the players’ scholarships and getting involved in an

(13.2%) schools in the Football Bowl Subdivision (FBS) are private.

insurance program that would include total disability insurance to an

However, it is expected that the union movement will expand.

athlete who suffered a career ending injury.

Athletes at public schools are subject to the labor laws in their state, which vary from state-to-state, with some states being friendlier to unions than others. For example, athletes in California, Michigan and Florida could make strong claims for employment status and the right to unionize. With certain states potentially negotiating better benefits

What’s Next?

to athletes, officials in other states may be pressured to adjust their state laws in order to compete in collegiate recruiting.

One of the arguments asserted by the NLRB Regional Director to support his opinion that the athletes are employees is the ability of the schools to earn a profit from athletics. However, most college sports do not generate enough revenue to make a profit, and many schools rely on revenue from football and men’s basketball to

Unfortunately, the NLRB appeals process could take years to sort out. In the meantime, other federal agencies to watch include the IRS and the U.S. Department of Labor Wage and Hour Division.

Should one or both of those agencies agree with the NLRB Chicago Regional Director that student athletes are actually employees, the entire structure of college sports would be at risk. Stay tuned.

support other sports for men and women student athletes. In fact, many FBS schools lost money on all sports, including football and basketball. Therefore, the argument that schools profit from sports is for the most part baseless and irrelevant as to whether players should be allowed to form a union. The relevant argument hinges on whether the football players are in an employment relationship with their respective schools.

Jess Sweere, Director Cross, Gunter, Witherspoon & Galchus, P.C. jsweere@cgwg.com www.cgwg.com

The Sports Community Responds Should the NLRB ultimately decide that the athletes are employees, many questions would arise. First and foremost, the NCAA, which governs collegiate athletics, has very stringent rules restricting the benefits that a university may provide to student athletes.

Donald Remy, Chief Legal Officer of the NCAA, made a statement disagreeing with the NLRB position: “While improvements need to be made, we do not need to completely throw away a system that has helped literally millions of students over the past decade alone attend college. We want student-athletes – 99 percent of whom will never make it to the professional leagues – focused on what matters most – finding success in the classroom, on the field and in life.” Mark Emmert, the NCAA President, calls the effort to unionize players a “grossly inappropriate” way to solve problems in college sports, but continues to insist that the NCAA has plans to change the school-athlete relationship. Emmert says the NCAA wants the big conferences to write their own rules, which would allow changes to solve many of the complaints and problems. National Basketball Association (NBA) Commissioner, Adam Silver, has suggested the NBA might consider subsidizing athletes to make college basketball players more comfortable with staying in college for another year.

He believes this is more appropriate than to classify the players as www.HRProfessionalsMagazine.com

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The Human Side of Workers’ Compensation

Building a Stronger Workplace by Asking the Right Questions

By BUTCH FRICK, ARM

For more information on Lockton, please contact Ashley Pace in Lockton’s Memphis office. 901 757 6902 apace@lockton.com

So many times when consultants and companies think about Workers’ Compensation, they think in terms of managing the claim, making sure the employee is getting the most efficient care, and how to get the employee back to work as soon as possible. Data is gathered to help determine such things as frequency of claims by employee age, shift, and time of day, as well as types of claims and number of claims with attorney involvement. Safety programs are developed around these metrics.

While many of these metrics and approaches are helpful, and can impact the overall cost of risk, they tend to be managed as if they are separate and distinct from the overall company operations, the company’s culture, and the company’s brand. In essence, they are managed in a vacuum. It is like a doctor deciding to operate before he has all the facts.

This bigger picture is currently very bleak, and one which has ramifications to the future of business as we know it and to the direction U.S. businesses will take in the future.

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Let’s Start with the Statistics

In a 2013 survey by research firm Forum, 47% of U.S. employees responded that they trust management less than in the past. A recent Gallup poll found that 70% of American workers are disengaged from their jobs.

Even more optimistic surveys point to real problems of employee satisfaction and trust. A Deloitte Study in September 2012 of 560 employees employed by big companies worldwide found that 35% of employees were not satisfied with their jobs, 26% of Millennials planned to leave their employer within a year, and only 27% of employees who plan to leave their company trust management. Of all employees surveyed which plan to leave, 66% felt communication was ineffective.

Negative employee sentiment is reflected in a higher frequency of Workers’ Compensation claims and more employees with loss time accidents are getting attorneys. No amount of claims management, loss control, or analytics can overcome this tsunami. Companies consistently on the “Best Places to Work” list understand trust has to be earned every day and employees are truly the backbone of any company.

Bigwidesky, a marketing company, believes companies as a whole, need to be more human. This has to come from top management and permeate throughout the organization.

Is Your Company “More Human” When an Employee is Injured? Here are Some Questions to Ask. When an employee is injured and has a lost time accident, who makes the first call to the injured employee? The carrier? The TPA? An in house nurse? Management? A designated co-worker?

When that call is made, is there true empathy for the injured employee? Is the compensation system adequately explained to the injured employee? Do you have someone within your organization that helps the injured employee “navigate” the Workers’ Compensation process?

Does a manager or coworker visit the injured employee at home and in the hospital?

Are “care packages” such as food baskets etc. sent to the injured employee and family?

From a safety standpoint, does middle management have the authority to shut down a line or stop production if they see an unsafe act or an unsafe condition?

Does management communicate and listen employees about ways they can make the job safer?

to

Does middle management get incentives for safety or just for production?

Are satisfaction surveys done to get a reading on how employees view and trust management?

We recently helped a client who was having lost time injuries in one department. While we looked at conditions and operations, we also asked questions. During one of these discussions, one employee told us he knew exactly how the losses were happening, and had a simple and effective solution. We then asked why he never told anyone. He replied “Nobody ever asked. I didn’t think management cared.”

We see some great strides which some companies have made to build trust.

Ultimately, these companies will be more competitive, have less turnover, and build a brand where their employees and customers are fiercely loyal.

Being more human is just good business.

1. http://www.prnewswire.com/news-releases/employees-bosses-today-rarely-apologizeinspire-less-trust-new-survey-reveals-231687451.html 2. http://dupress.com/articles/talent-2020-surveying-the-talent-paradox-from-theemployee-perspective/?id=us:el:dc:redirect

For more information on strengthening your employee benefits and P&C insurance programs, contact Ashley Pace.

Ashley Pace Lockton’s Memphis Office 901 757 6902 apace@lockton.com www.HRProfessionalsMagazine.com

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The Genetic Information Nondiscrimination Act Take Steps Now to Ensure Compliance

By LATOSHA DEXTER

Title II of the Genetic Information Nondiscrimination Act (“GINA”) prohibits discrimination against applicants and employees on the basis of genetic information.

More specifically, it prohibits the use of genetic information in making employment decisions, restricts employers and other covered entities from requesting, requiring or purchasing genetic information, and limits the disclosure of genetic information.

Genetic information broadly includes an individual’s and his or her family members’ genetic tests and family medical history. It also includes the manifestation of a disease or disorder of the individual’s dependents, or first, second, third or fourth-degree relative.

In contrast to most of the nondiscrimination statutes, GINA focuses more on the flow of information rather than discriminatory conduct.

When GINA went into effect in 2009 there was some associated fanfare. Legislators argued that the law was necessary to keep pace with science. Articles discussed GINA’s requirements and supposed impact. But because of the novelty and seemingly limited scope of its protection, GINA slowly faded from the consciousness of employers.

Although many employers may have gone back to business as usual, the Equal Employment Opportunity Commission (“EEOC”) did not. Charged with enforcement of GINA, the EEOC took its responsibility in hand with its typical fervor and identified emerging and developing issues in employment, including genetic discrimination, as one of its six national priorities. To date the EEOC has filed three lawsuits involving GINA. With the recent settlement of its first systemic lawsuit alleging genetic discrimination under GINA, the EEOC reiterated that “when illegal questions are required as part of the hiring process, the EEOC will be vigilant in ensuring that no one is denied employment opportunities on a prohibited basis.”

The Settlement

On May 16, 2013, the EEOC filed a lawsuit against Founders Pavilion, a New York nursing and rehabilitation center, alleging violations of GINA. The suit alleged that Founders Pavilion conducted post-offer, pre-employment medical exams of applicants and allegedly requested applicants provide it with information about their family medical history. These exams were repeated annually if the person was hired. The EEOC asserted that this practice violated GINA which prohibits an employer from requesting genetic information of any individual or family member of the individual and also prohibits its use in the hiring process. In addition, the EEOC also alleged that the company committed violations of Title VII and the Americans with Disabilities Act. The lawsuit was filed after the EEOC first tried to settle the matter through its conciliation process.

Under a five-year consent decree approved January 9, 2014, Founders Pavilion Inc. will provide a fund of $110,400 for distribution to the 138 claimants who were asked for their genetic information. Settlement was also reached for the alleged ADA and Title VII violations. Although the New York facility was recently sold to another company, the consent decree requires that if Founders Pavilion resumes conducting business it will post notices and send memorandums to employees regarding the lawsuit and consent decree. It must also adopt a new antidiscrimination policy to be distributed to all employees, provide antidiscrimination training and provide periodic reports to the EEOC regarding internal complaints of discrimination. The entity that bought Founders Pavilion also signed the agreement as a non-party signatory, agreeing to revise its policies and provide training.

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Reminders for Employers

Not surprisingly, the Founders Pavilion case involved both alleged violations of the Americans with Disabilities Act as well as GINA. Charges and lawsuits alleging GINA violations will often go hand-in-hand with ADA claims and employers should expect the bootstrapping of such claims. Similarly to the ADA provisions requiring segregation of medical information, GINA also requires that GINA-protected information be placed in a separate confidential medical file.

Employers should eliminate all requests for employees to provide family medical histories or other genetic information in connection with any employment-related medical examination such as those associated with a post-offer, pre-employment or fitness-for-duty examination. Employers should also exercise caution when requesting or receiving information in connection with an ADA reasonable accommodation request or FMLA leave for the employee’s own serious health condition. GINA does, however, contain an exception for disclosure of genetic information when an employee is requesting FMLA leave to care for a covered family member.

Employers should be aware that GINA has a safe harbor provision for the inadvertent request or receipt of genetic information. The safe harbor applies as long as the employer specifically directed the individual from whom it requested the information not to provide genetic information.

Therefore, when requesting an employment-related medical examination or requesting information to verify the need for any type of medical or disability leave, the employer should include warning language to the effect that it is not requesting genetic information and that genetic information should not be provided. The regulations provide sample language which is available on the EEOC website.

For those employers offering wellness programs, steps must be taken to ensure compliance with GINA. Historically, many wellness programs required a health risk assessment that requested family medical history. Some employers offered incentives based upon the completion of these assessments.

GINA prohibits the conditioning of a receipt of an incentive on an employee providing genetic information. Therefore, the EEOC regulations allow the use of a health risk assessment that requests family medical history, if it is voluntary and coupled with an authorization, access to individually identifiable information is limited to certain people, and if there is no reward for completing it. There are several other requirements for wellness programs, so employers should consult with their legal counsel to make sure that their programs comply with GINA. Finally, as with any nondiscrimination requirement, management should be trained and internal policies updated.

When enacted, the law and regulations were clear that family medical histories were prohibited. However, Founders Pavilion, like many employers, failed to be proactive in reviewing its internal policies and practices for compliance.

Take the time now to reduce or eliminate the cost later.

Latosha Dexter, SPHR Of Counsel Rainey, Kizer, Bell & Reviere PLC ldexter@raineykizer.com www.raineykizer.com

Treat Your People Like a Corvette

As

the weather warms in Wisconsin, people start to work on their restored cars and get them ready to roll them out of the garage for the summer. While helping a buddy work on his ’65 Corvette it dawned on me that we “love” that car and can’t wait to fire it up every spring. What do we do before we take it out on the road? We wash and wax it, check the tires, change the oil…all those little things to make sure it’s performance is optimal. The Vet is worth about $40,000 and we treat it with the respect it deserves.

So what do we do with our people? We have a person who is earning $40,000 a year and we rarely give them the attention they need when they need it and the treatment they deserve to be at their best. Instead, what we do is expect them to perform at their best but aren’t willing to spend any time or money on them.

• We balk when they come in and ask to go to a seminar on something that is of interest to them telling them that money is “tight.” What we should be doing is ENCOURAGING them to go to a seminar so they improve themselves and bring greater value back to the organization. Not only is this demoralizing to the employee it does nothing to move the organization forward.

The knowledge acquired could enable us to be more efficient and increase our profits.

• We question them on details that don’t have a real impact on the results of an assignment instead of giving them some autonomy and letting them make the decision for themselves. What we should be doing is ENCOURAGING them to think out of the box and to try to come up with ideas that will bring value to the organization and to our customers. Not only does this bring energy to the organization…it brings energy to the person. That is a commodity that is priceless. You will not get the most out of your people if you treat them like mindless robots.

• We nitpick the details on a project that someone has put their heart and soul into and demoralize them. What we should be doing is asking them to USE THEIR CREATIVITY and to do things in their own style because it brings a different perspective. That creativity is what generates ideas that truly can move the organization forward instead of doing the same old thing that only puts us in a position to compete on price and eventually results in our inability to obtain the margins we want. Those new ideas could cause that breakthrough that leads to a more efficient way of doing our work or a new product where margins are higher. Instead of nitpicking on an idea they have, we should be THANKING them for the time and energy that they put in on the project.

I hear bosses complain about their people all the time. Maybe as a boss you need to look at how you treat your people. If your people are so messed up then maybe you need to get rid of them….or….better yet…take a good hard look at yourself and ask the following questions.

• Does it have to be “exactly” the way I want it? Or…could I allow for some creativity that might result in a better way of doing things.

• Could my employee perhaps have a “different” perspective? I am amazed at the number of patents that I see “ordinary” employees develop in organizations that have a significant impact on the

By JEFF KORTES

bottom line. I am not talking about R&D people but people who are doing the job day in and day out.

• What should I be doing to “encourage” my people to learn and grow? Do you ask your people where they see themselves going in 5 years? Or are you simply concerned with the immediate task at hand and forget that your people have the potential that could be a future driver in the business.

• Am I spending the money I need to in order to properly develop them? Or is your training budget the first thing that gets cut when times get tough? This is at a time when you are looking for ways to increase profits and generate sales.

Instead of seeing our employees as some run of the mill car that has rust on it and some nick and dents, we need to concentrate on the fact that if it is properly maintained, given the attention it deserves and run properly, it will get you where you want to go rather well. It may not be a corvette but it probably will give you more horsepower than you think!

Jeff Kortes

Human Asset Management LLC jeff@humanassetmgt.com www.jeffkortes.com

The Kullman Firm has engaged in the practice of labor and employment law on behalf of management since 1946.

Mississippi Offices:

Taylor Smith, Michael Hudson, Martin Regimbal 119 3rd Street South, Suite 2 Columbus, Mississippi 39701 $ 662-244-8824

Peyton Irby, Jerrald Shivers

1640 Lelia Drive, Suite 120 Jackson, Mississippi 39216 $ 601-366-2990

Additional Offices:

Baton Rouge and New Orleans, Louisiana Birmingham and Mobile, Alabama www.kullmanlaw.com

Attorney responsible for content of this ad: Martin J. Regimbal www.HRProfessionalsMagazine.com

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President Obama Proposes Revisions to DOL Exemption Regulations

By PAUL E. PRATHER

On

March 13, President Obama sent an executive memorandum to U.S. Secretary of Labor Thomas E. Perez, directing the Department of Labor (DOL) to "modernize and streamline" the department’s “white collar" overtime exemption regulations at 29 C.F.R. Part 541.1 The regulations define the scope and requirements of the executive, administrative, professional, outside sales, and computer exemptions under the Fair Labor Standards Act (FLSA). This initiative took most employers by surprise because it was not previously included in the DOL's s prior regulatory agenda.

This move to revise overtime exemption regulations is fully in step with President Obama's message of "giving America a raise" and comes on the heels of the President's February Executive Order raising the hourly minimum wage for federal contractors to $10.10 per hour. Many see this directive as politically motivated as America heads into the prime campaign season for the upcoming mid-term Congressional elections in November. The President and Congressional Democrats want to support the populist view of helping American workers earn more, and the President is counting on Congressional Republicans to support business opposition to the proposed changes while expressing fears of an economic slowdown and a loss of jobs in the American economy.

Revisions to the Part 541 regulations will require notice and comment rulemaking under the Administrative Procedures Act. Once proposed regulations are drafted, the DOL will publish a notice of proposed rulemaking. The public will have a period of time to submit comments. After the close of the comment period, the DOL will review and respond to comments before publishing any final regulations. The Part 541 regulations were last amended in 2004. The DOL received over 75,000 comments to the proposed revisions to the Part 541 regulations in 2004, and spent thirteen months reviewing the comments before publishing final regulations. The entire process – including drafting the proposed regulations, reviewing the comments, and publishing the final regulations – would likely take more than twelve months to complete, putting final resolution of this issue well beyond the mid-term elections. If Congress is unhappy with the revisions, it could step in to prevent the DOL from moving forward (e.g., by denying budget funding), so the outcomes of the fall mid-term elections could play a part in this process as well.

What changes can be expected from this process?

Although it is hard to predict what the final changes to the current regulations will be, the White House focus appears to be on three areas: (1) raising the minimum salary level, (2) revising the duties requirement for the executive exemption, including eliminating the concept of concurrent duties, and (3) refining the definition of a computer professional.

Minimum salary level. Although the White House memorandum did not spell out the amount or percent of increase contemplated, the proposed regulations would increase the minimum salary level for white collar exempt employees. The current salary level was set at $455 per week, or $23,660 per year. This number was last increased in 2004.

It is likely that the DOL would justify any increase with inflation indexes and may propose adopting regulations that automatically raise the minimum salary level annually, based on the cost of living index. Additionally, the highly compensated test for employees earning over $100,000 per year, also adopted in 2004, may be increased or eliminated altogether.

Expect to see the economics of the size of this increase widely debated in the news media over the coming months as both economists and politicians weigh in on the impact of any increase. The debate will likely focus on whether (or at what point) an increase will hurt job growth or perhaps result in a loss of jobs as employers bear increased labor costs to pay higher salaries or overtime to employees who are currently exempt.

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Duties test. The DOL may remove or significantly revise the "concurrent duties" section under the executive exemption test, which provides an exemption to managers even if they are simultaneously performing the same duties as their direct reports.

Indeed, the DOL may attempt to replace the "primary duty" test under all of the exemptions – which does not require that an individual spend a specific percentage of time performing exempt work – with a quantitative test similar to the test used in some states like California where an exempt manager is required to spend more than 50% of his or her time supervising other employees.

Computer professional exemption.

The computer professional exemption was specifically delineated as a separate exemption in 2004. In the past 10 years, the technology field has expanded and developed significantly, particularly in terms of automation.

Therefore, based upon these developments, it is likely the DOL will clarify further the duties and positions that do – and do not – qualify for the computer professional exemption under the FLSA. This may be the area where the DOL is most likely to face a legal challenge if it attempts to narrow the computer employee exemption because the duties test for this exemption is set forth in the FLSA. An amendment to the statutory tests would require Congressional action rather than regulatory rulemaking. In 2004, the DOL declined to expand the computer exemption, stating in the preamble to the final rule that the agency does not have authority to depart from the statutory definition of an exempt computer employee. It remains to be seen what the DOL will do with this exemption in any proposed rulemaking.

Who is likely to be impacted and what should employers do?

Employers in the following industrial segments are likely to see the greatest impact of the rulemaking process: Retail, Restaurant, Hospitality, and Information Technology.

However, a significant increase in the minimum salary could impact a much larger cross section of employers.

Employers can help shape the final regulations by participating in the regulatory process - either directly or through trade associations - by participating in the comment process or raising objections with members of Congress.

Paul E. Prather, Shareholder Littler Mendelson pprather@littler.com www.littler.com

6

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by Colonial Life & Accident Insurance Company, for which Colonial Life is the marketing brand. NS-13701

Cultivating Sustainable Relationships

Sims said, “In my many years of working with HR and benefits, I found that the key attributes below compose a successful partnership:

1. Trust 2. Timely responses 3. In the case of health third-party administrators: a. Strong network b. C ombined focus on case management and disease management c. Current technology d. C hain of command that really cares and values you as a partner e. F inancial understanding with the ability to provide and understand analytical data 4. A partner that is a good listener and focused on our culture, values and where we want to go Southern Farm Bureau Life Insurance (SFBLI) is a case study on how to build sustainable relationships by selecting the appropriate people and partners. Their efforts are seen as a positive benefit by their employees where morale and productivity are at an all-time high.

When you arrive on campus, you will see employees walking on the outdoor walking trail, and when inside, the atmosphere is positive, friendly and filled with healthy choices. Sims and his team evaluate each vendor and leverage their strengths while constantly challenging them to improve and innovate.

for Optimal Health Improvement

By MURRAY L. HARBER and MATT GINN

Human resources professionals are all about selecting the right people for jobs within the organization. They also select a variety of vendors to help them with benefits programs such as consultants, third party administrators, pharmacy benefits management, health consultants, and many other providers of products and services. The key is to create a system of meaningful and effective people and organizations that help to optimize employer’s investment of both time and money to deliver an effective benefit for employees and their families.

Building a Team Cultivating sustainable relationships takes time, understanding and experience and, when done properly, can optimize value and improve health. Southern Farm Bureau Life Insurance Company’s Vice President of Human Resources, Billy Sims, has put together a group of consultants and vendors who work together with his internal team to create an effective health and wellness strategy. Because of this, the health of their population is improving and their costs are leveling which is exceeding the program’s goal from inception.

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One of SFBLI’s partnering vendors is the Diabetes Care Group, who works to manage employees and family members affected by diabetes. Marshall Bouldin, Chief Medical Officer of the Diabetes Care Group, said: Sustainable relationships are critically important to attain even short term success for employees, payers and providers. All success in health care and all sustained change in behavior are ultimately about human relationships that are real, meaningful, and maintained. In order to achieve behavior change, it’s critical that the goals of employee, employerpayer, carrier and healthcare providers are aligned.

Diabetes Care Group has shown that with the right alignment of relationships between all parties, large improvements in both health and cost are immediately achievable in this group and sustainable over the long term.

Companies Working Together Many of the companies in Mississippi have learned from the SFBLI experience and gone down the road of putting in onsite clinics, creating an incentive and value-based insurance plan, and use best practices

to plan their strategy. Building on the strategy of putting people and partners together, Southern Farm Bureau Life, along with Trustmark Bank, Butler Snow Law Firm, Viking Range and several other companies in Mississippi are working together to change the health and health care system in Mississippi. The result of this collaboration is the new Mississippi Business Group on Health whose aim is to improve company’s return on value of their investment into their employer health and Mississippi’s health care system.

SHRM-Memphis Half Day Legal Seminar University of Memphis Fogelman Executive Center March 18, 2014

The Mississippi Business Group on Health is fostering a community of employers and industry partners to collaborate on improving the employee health and health care system in Mississippi. The group itself is a coalition of employers who are learning from each other as they continue to build relationships with employers and industry members.

Advancing Best Practices In March, the MSBGH met for the first time this year amongst many of Mississippi’s leading companies and discussed new strategies. In June, the MSBGH will meet again aiming to assist members with best practices on how to create sustainable relationships that optimize investments in health programs. The keynote at the meeting will be the new CEO of the National Business Coalition on Health, Dr. Brian Keppler. He will share his thoughts on the national perspective in employer health and his vision for the organization moving forward. Keppler stated in a recent interview in Employee Benefit News, “I want to empower the regional coalitions. I want to help infuse them with value so that if you are an employer who joins the coalition, you have a high degree of confidence that your costs will end up being lowered and the health outcomes of your population will be higher.”

The MSBGH will also offer two meetings in the second half of the year focused on designing employer health programs and health plans to add value. Along with partnering with Mississippi College to host the 5thAnnual Health Care Reform Summit, the MSBGH will focus on the Affordable Care Act and its requirements, delays, and current status of elements of the law as it relates to employers and selfinsured health plans.

Building relationships as a company along with working with outside partners are keys strategies in the current human resources world. By working together and learning from each other, employers can have a say in how to protect their investment in the health care system they implement.

Murray L. Harber Executive Director Mississippi Business Group on Health murraylynnharber@gmail.com www.msbgh.org

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1

2

4

5

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1 (L-R) Patricia “Tisch” McDaniel, SHRM-Memphis VP Programs Co-Chair; Vanessa Burns, MSA, SPHR, SHRM-Memphis President-Elect; and Rolana Bourland, PHR, 2014 President of SHRM-Memphis.

2 Robert M. Williams, Jr., Shareholder with Baker Donelson Bearman Caldwell, & Berkowitz, P.C. Bob spoke on, “Hot Topic – Leave as an Accommodation After FMLA Leave Expires.”

3 and 4 Paul E. Prather and Lisa Lichterman Leach, Shareholders with Littler Mendelson, presented “Bullying and Workplace Harassment: The developing intersection between employment law and employee behavior.”

5 W. Chris Harrison, Of Counsel, with Ogletree Deakins, Nash, Smoak & Stewart, P.C. spoke on “To Weather the Storm, Start with a Strong Ethical Foundation.”

Matt Ginn Corporate Communication Program Development Coordinator mginn@sfbli.com www.sfbli.com

6 SHRM-Memphis members network during a coffee break.

7 Tressi Cordaro, Of Counsel, with Jackson Lewis presented “Strategic Planning for OSHA Compliance: How HR Can Help the C-Suite Stay Safe.” www.HRProfessionalsMagazine.com

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Five

Mistakes

to Avoid

In Implementing A Harassment Policy

By LISA A. KRUPICKA

D

espite the efforts of employers, complaints of sexual and other harassment have remained a constant and steady problem in the modern work force. A shocking number of small employers operate without any specific policy at all and many employers who do have policies are not doing a good job of implementing them. This not only results in charges and lawsuits that could have been avoided, it may create distrust of the policy among affected workers, with the resulting attrition and decline in productivity. Here are the five biggest mistakes I have seen employers make in implementing a harassment policy.

1. Lack of Attention to the Language of the Policy

3. Failure to Conduct a Prompt and Thorough Investigation

Although any policy is better than none, an effective policy should contain certain specific elements. Courts will scrutinize a policy and if they find it ineffective, the employer loses its affirmative defense. An effective policy should include:

I can hear all the HR personnel out there groaning about this one. Not only are investigations time-consuming and difficult in themselves, the investigator has to try to squeeze them in with all of the other HR duties. But promptness is essential. Memories fade quickly, witnesses have time to gossip and collude and the complainant feels like he or she has been left to twist in the wind. Juries look at slow or piecemeal investigations as indicative of the company’s lack of commitment to its harassment policy.

Thoroughness is just as important. It took us lawyers years of practice to be able to effectively depose a witness, so training in investigative techniques is a big help for employees tasked with doing these investigations (but don’t worry; we’ll secondguess you anyway!). Some investigations consist of nothing more than asking the alleged harasser if he did it, which he or she will deny 99.9% of the time. The investigator figures that it is the accuser’s word against the accused and just throws up her hands. Although there are some situations where the only evidence will truly be his word against hers, there will be many times when a good investigator can look at other circumstantial evidence and be able to reach a conclusion. Did someone see the accuser crying in the bathroom or avoiding the work area where the harasser has his office? Did the accuser make a contemporaneous complaint about the accused to a non-managerial employee? Has anyone who works around the accused been exposed to inappropriate conduct by the alleged harasser even though he or she did not witness what the accuser alleges? You must exhaust every available source of evidence before you declare a draw.

• A statement that harassment will not be tolerated in the workplace • A definition of sexual harassment that is written in plain language with examples • A definition of other harassment • A dual reporting system that does not require an employee to go through his/her chain of command to report harassment • A promise of no retaliation • Limited confidentiality – cannot assure total confidentiality and still do a complete investigation

2. Failure to Properly Train Supervisors A harassment policy is not worth the paper it’s printed on if a supervisor is told or knows about harassment and does nothing.

This remains a constant problem, especially in businesses with high turnover and first line supervisors who may be just one step up from the rank-and-file. Basic training can be boiled down to two simple phrases: “CALL HR – don’t try to handle it yourself ” and “If you know it, the company knows it.“ If you can get these two phrases drilled into every supervisor’s and manager’s head, you are an ace HR professional.

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4. Reaching the Wrong Conclusion This is an area in which even the most seasoned HR professional can use some legal advice because seldom is the evidence completely clear. Your attorney can tell you the

legal consequences of whatever action you are proposing, while you must also think about the employee relations consequences of your proposed action. Your concerns are about upholding the integrity of the process.

If employees develop the impression that using the process results in, at best, nothing and, at worst, the accuser being forced to leave the company, employees will not use the policy. Consequences to the accused can include termination, suspension, written warning, documented verbal warning, executive counseling or nothing. Just be able to explain to someone in detail how you reached that conclusion before you act. Otherwise, you may be explaining it to opposing counsel in your deposition.

Finally, a word of caution about consequences for the accuser. Even though you may strongly suspect that his or her allegations are false, unless you have proof that will stand up in a court of law, leave the accuser alone. If the accuser agrees to any consequence that could be viewed as disadvantageous by a jury, such as transferring to another department, be sure to get the accuser’s written agreement that she is satisfied with the outcome of the investigation, that other options have been presented to her (if there are any) and that she has chosen this one freely. After an inconclusive investigation is over, there will be temptation among managers to try to find a way to get rid of the accuser because they suspect him (sometimes correctly) of manufacturing the accusation.

Tell those managers that unless they have him on video emptying the contents of the cash register into his backpack (or some equally strong proof of a serious offense), get over it. Otherwise your company will win the battle (addressing the harassment complaint reasonably) but lose the war (the accuser sues you for retaliation).

5. Not Keeping the Accuser Informed It is vitally important that the investigator or other designated person check in with the accuser periodically during the course of the investigation, especially if it is a long one or there are delays in concluding

it. Employees who complain of harassment are often taking a gamble with their future at the company and are, not surprisingly, anxious for it to be over. Many will also be suspicious of the process and poised to call an attorney at the slightest delay or glitch. All this can be minimized by telling the accuser what is going on: “I anticipate finishing up by the end of the week; if it will be longer I will let you know.” Staying in contact with the accuser also allows you to monitor any possible retaliation or further harassment.

Once the investigation is concluded, you should follow up with the accuser. I am going to go out on a limb here and advise something I am sure you have been told over and over not to do: tell the accuser how the harasser has been counseled, disciplined, etc. I have seen many lawsuits that could have been discouraged if the accuser knew that action had been taken, even if it was not termination. I understand that information about personnel actions should be limited to those who need to know, but if there is anyone who needs to know what consequences, if any, there were to the accused, it is the accuser. You do not have to go into a lot of detail, but simply saying the accuser has been disciplined may be enough to make the accuser feel vindicated and satisfied. You should also not fail to advise the accuser that she cannot be retaliated against for making her complaint, and that he or she should come directly to you if he or she feels retaliated against. Following up directly with the accuser after two weeks or a month, would also be helpful.

CONCLUSION We all know that some lawsuits are inevitable, but if you can avoid these common mistakes, you will have done all you can to effectively address a serious employee complaint while at the same time providing your company with a defense when the lawsuit lands on your desk.

Lisa A. Krupicka, Attorney Burch Porter & Johnson PLLC lkrupicka@bpjlaw.com www.bpjlaw.com

www.HRProfessionalsMagazine.com

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I-9 Compliance: Lessons from the OCAHO

By BRUCE E. BUCHANAN

I

mmigration and Customs Enforcement (ICE) has initiated a record number of administrative inspections in the past few years. These inspections

begin once ICE serves an employer with a Notice of Inspection (NOI) and subpoena, compelling the production of Forms I-9, and other supporting

documents. With every inspection comes the risk of receiving a Notice of Intent to Fine (NIF). NIFs may be issued for substantive violations, uncorrected technical violations, and knowingly hiring/employing unauthorized individuals.

Increasingly, more employers who receive NIFs seek review by the Office of Chief Administrative Hearing Officer (OCAHO). OCAHO decisions provide important insight into I-9 compliance and enforcement. In this article, I am going to discuss two issues related to potential violations for failure to correctly complete I-9 forms: “constructive knowledge” and “good faith.”

What is Constructive Knowledge?

For the purpose of I-9 compliance and enforcement, “constructive knowledge” or “actual knowledge” is sufficient to sustain a violation for knowingly hiring or continuing to employ a worker who is unauthorized with respect to employment. There is little controversy over “actual knowledge.” However, “constructive knowledge” has its complexities; thus, it is important to understand how it has been interpreted by OCAHO. The basic principle of “constructive knowledge” is that the “employer is not entitled to cultivate deliberate ignorance or avoid acquiring knowledge. The state of mind to be shown has also been characterized as ‘conscious disregard,’ ‘deliberate ignorance,’ or by some other formulation implying a conscious avoidance of positive knowledge.” See United States v.

Occupational Resource Management, 10 OCAHO no. 1166, 4–5 (2013) (ORM was presented with a Social Security card that it recognized as invalid on its face; thus, it had constructive knowledge and violated Immigration Reform and Control Act (IRCA) by employing this individual). However, in United States v. Associated Painters, Inc., 10 OCAHO no. 1151 (2012), constructive knowledge was not found where company re-hired three employees with same Social Security numbers four to eight years after it resolved a case with ICE’s predecessor wherein it agreed those employees would not be re-hired with documents previously used.

OCAHO said it needed the context of how this happened, which ICE failed to provide.

An employer must generally take adequate steps to verify employment eligibility once he or she learns of information that casts doubt upon the employment authorization of a prospective or current employee, such as a facially invalid Social Security card.

The Importance of Good Faith in Immigration Compliance “Good faith” plays an important role in I-9 compliance in two ways. First, an employer must have made a good faith attempt to comply with the Form I-9 requirements in order to be able to take advantage of the 10-day period allowed for making corrections. This principle arises from the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) of 1996 and the Virtue Memorandum. Second, good faith is one of the five mitigating factors, which may be applied to reduce the penalty. Alternatively, an employer’s bad faith may be cited as an aggravating factor to increase the penalties.

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Technical Violations and the Role of Good Faith If a technical error is found and if the employer can establish good faith, ICE must give an employer 10 business days to correct that error and may not assess a penalty if the corrections are made. Examples of technical errors include: (1) failure to ensure an individual provides an address or birth date in Section 1; (2) failure to ensure that an individual provides his A-number in Section 1, but it is listed in Section 2 or on a legible copy of a document retained with Form I-9 and presented at the ICE inspection; (3) failure to provide the document title, identification number(s) or expiration date(s) of a proper List A, B and/or C document(s) in Section 2, but only if a legible copy of the document(s) is retained with the I-9 and presented at the ICE inspection; and (4) failure to provide the representative’s title, company name and/or address in Section 2.

If the employer cannot establish good faith or if the violation is a substantive violation, the employer will not be allowed 10 business days to correct it. Substantive violations may include the following: (1) no box checked on the Form I-9 or multiple boxes were checked attesting to the employee’s status; (2) no employee and/or employer signatures on the Forms I-9; (3) no A-number provided; (4) information was not fully recorded on the Forms I-9, and copies of the documents were not retained and provided to ICE; and (5) unacceptable documents recorded in Lists A, B and/or C. Ketchikan Drywall Services, Inc. v. ICE, 725 F.3d 1103 (9th Cir. 2013).

Good Faith as Mitigating Factor Good faith is one of the five mitigating factors that attorneys may rely on to argue for a reduction in penalties. The other mitigating factors include: size of business; seriousness of violations; whether any employees were unauthorized; and a history of previous violations.

Each factor, including good faith can result in a 5 percent reduction. Alternatively, ICE can aggravate the penalties based upon these same five factors. These factors play an important role in many OCAHO decisions.

Conclusion In order to correctly complete the I-9 forms and correct any errors, determined through a self-audit supervised by an immigration compliance attorney, it is important to know how OCAHO views a number of issues, including constructive knowledge and good faith. Hopefully, this article shed light on these two areas. In future articles, I will discuss other important topics decided by OCAHO which impact employers.

Bruce E. Buchanan, Attorney Siskind Susser P.C. bbuchanan@visalaw.com www.visalaw.com

Social Responsibility and Empathy in the Workplace

By HARVEY DEUTSCHENDORF

“ You are not here to make a living. You are here to enable the world to live more amply, with a greater vision, and with a finer spirit of hope and achievement. You are here to enrich the world. You impoverish yourself if you forget this errand.” – Former U.S. President Woodrow Wilson

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’m sure you have all heard of the saying made famous by the seventeenth century English author John Donne: “No man is an island”. In a few words this concept sums up the ideal of social responsibility. We are all on this earth together and our actions, or lack of them, impact to some extent, everyone around us. We are socially responsible to the degree that we are aware of and see ourselves as being part of something greater than ourselves. People who are socially responsible believe they have a duty to contribute towards making the world a better place to live. Empathy is the ability to put ourselves in someone else’s shoes, to imagine what it would be like to be that person. Social responsibility can be said to be empathy on a larger scale. While empathy is considered to be about one person or a small group of people, social responsibility takes empathy to a community and global level.

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hile it may be easy to see the impact we are having on our families, friends and neighbors, this may be more difficult to witness in a larger context. Generally we see global leaders and powerful people as the only ones who have impact on a large scale. But as Mother Teresa said, “We cannot do great things; we can only do small things in a great way”. The impact that we have often goes well beyond our awareness and ability to predict. Volunteers who spend their free time coaching children and generously donating time to organizations such as Boy Scouts and Girl Guides make a huge and positive impact upon raising the next generation in a healthy way. Even though we receive no direct and visible benefits to volunteering, there is evidence helping others brings us to a level of satisfaction and happiness that material rewards are not able. According to Tom W. Wilson, Director of General Social Survey (GSS), people who had jobs serving others reported the highest satisfaction and happiness levels. Helping others is often recommended therapy for people who are feeling low and depressed. This can also be a great way to cope with career and other losses in life. One therapist I know recommends to his clients, that are depressed, to find someone worse off than them and help these individuals. Involving himself heavily into volunteer work globally was one of the ways that former President Jimmy Carter was able to cope with losing the presidency. Still active and healthy in his advanced years, he and his wife are very heavily involved in Habitat for Humanity and other global causes. One of the pluses in helping others is that it gives us an increased awareness for all we have to be grateful. Dr. Michael McCullough at the University of Miami found people who experienced the highest feelings of gratitude also experienced more vitality and optimism, suffered less stress and had fewer episodes of clinical depression than the overall population. Dr. Robert Emmons carried out a study of people who kept a journal of details and notes that they are grateful for. He found that this group enjoyed better health, were more optimistic, exercised more regularly and felt they were happier than those who did not keep such journals.

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mbracing a strong sense of social responsibility, community and empathy have been the driving force that Southwest Airlines has built and many experts consider the most successful airline in the world. Southwest Airlines exemplifies giving back to their communities through their involvement with Ronald McDonald House. While the organization was initially founded to provide support and accommodation for families with

children in hospitals, Ronald McDonald Charities has expanded to provide an array of services to improve the health and well- being of children and their families around the globe. In every location they are operating, Southwest Airlines is heavily involved with this charity. Not only do they contribute financially, but Southwest staff routinely spend countless hours visiting, cooking meals and comforting families. The practice of cooking monthly meals began in Houston and expanded to include cooking meals throughout the months of June and November at all houses within the Southwest operating system. Southwest embodies the spirit of Thomas Fuller who said “Charity should begin at home, but should not end there."

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hile heavily involved in community causes, Southwest is just as involved with looking after their own staff. When new staff are hired, they are assigned a buddy, whose job it is to make sure they feel welcomed and part of the Southwest Family. The buddy buys them small presents, takes them out for lunch and many other initiatives to show new employee they are appreciated. When a staff member becomes ill, others rally around and help out. In one instance the husband of an employee, who had terminal cancer, was surprised when a limo pulled up to take them out for dinner to a nice restaurant. To their surprise the restaurant was full of Southwest employees who had come out to support one of their own. It ended up being the last dinner that the husband was able to have outside of his home and his wife is eternally grateful for the caring her coworkers had shown during a very difficult time.

Harvey Deutschendorf Emotional Intelligence Expert, Speaker, and Author of The Other Kind of Smart Harvey.eiguy@shaw.ca www.theotherkindofsmart.com Twitter@theeiguy www.HRProfessionalsMagazine.com

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From Locker-room to Boardroom– Strategies to Stop

Workplace Bullying

By ROBIN B. TAYLOR

INTRODUCTION The continued emergence of issues regarding workplace bullying makes it an important area for employees and employers to address. Commentators have speculated that on-the-job bullying could become the next major battle ground in employment law in the United States.

I. Costs of Bullying Bullying has significant costs, not only for the employee, but also for the employer. For the employee, bullying can take a toll on the employee’s psychological and physical wellbeing. Common psychological effects include stress, depression, mood swings, feelings of shame, feelings of embarrassment, guilt and low self-esteem. Physical symptoms include stress headaches, high blood pressure, digestive problems and impaired immune systems.

Workplace bullying also impacts employees who may never experience it directly by increasing job frustration, lowering morale and decreasing productivity.

The employer may pay dearly when an employee suffers from one or more of these symptoms, as they can lead to decreased performance, absenteeism, high turnover, poor customer relationships and acts of sabotage or revenge. Employers suffer even more direct consequences of bullying in the form of significant increases in medical and workers’ compensation claims due to work related stress, as well as the costs of responding to EEOC charges and defending lawsuits emerging from abusive work situations. Employers therefore have several incentives to prevent bullying in the workplace.

As awareness of “workplace bullying” arises, so does potential litigation and liability for employers. Bullying based on discriminatory animus against a protected class has long been actionable. When determining whether the subject conduct is sufficiently severe or pervasive to be actionable, courts consider all the circumstances, including the frequency of the discriminatory conduct, its severity, whether the alleged conduct is physically threatening or humiliating, and whether it unreasonably interferes with an employee's work performance. However, even where not based on a discriminatory motive, workplace bullying has found its way to the courts through other causes of action, including standard tort claims such as assault, battery, libel, slander, and intentional infliction of emotional distress actions.

Coupled with the existing threats of litigation, there is also now a concerted effort to address workplace bullying with its own independent cause of action. Indeed, various forms of a model bill, The Healthy Workplace Act, have been introduced in twentysix (26) state legislatures. The Healthy Workplace Bill Homepage, http://www.healthyworkplacebill.org/ (last visited April 10, 2014). However, as of this date, no state has enacted it. Nevertheless, employers must take the necessary steps to fully understand the practical and legal implications of workplace bullying. Among the first steps in doing so is acknowledging that “bullying” is not limited to children’s playgrounds or high school locker rooms.

II. What is Bullying?

One problem is defining the term “bully” or “bullying.” If it is to be prohibited in the workplace, it is important to know what it is. A dictionary definition, “a blustering, quarrelsome, overbearing person who habitually badgers and intimidates smaller or weaker people,” is certainly descriptive but not complete in the context of controlling certain workplace behaviors. More succinctly, bullying has been defined as repeated and persistent negative acts towards one or more individuals which involve a perceived power imbalance and create a hostile work environment.

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III. S trategies to Reduce and Confront Workplace Bullying Pro-active measures such as strong anti-harassment policies and supervisor training are solid first steps for employers to take in their efforts to reduce workplace bullying issues and potential resulting litigation.

A. Anti-Harassment Policies There are a number of components to a values-driven antiharassment policy: • Declaration of Unacceptability: the organization must state its displeasure with the misconduct.

• Hostile Workplace Protections for Everyone: to extend rights to everyone regardless of protected group status; and may extend, combine or replace existing anti-violence and antiharassment policies.

• Non-Punitive Separation for Safety: to appropriately place bullying in the health and safety domain.

• Documentation of Adverse Impact for Failure to Adhere: to discourage frivolous complaints or abuse of the policy and to incorporate perpetrator pattern and practice over time.

Credible and accessible enforcement processes are also crucial. It is important to have a credible, neutral party conduct investigation to foster employee trust and remove the influence of personal relationships. Also, employers should prohibit retaliation of employees coming forward with complaints of workplace bullying.

Where workplace bullying is found, there should be provisions for intervention. Identified perpetrators should undergo coaching and/or sensitivity training, and if a perpetrator does not correct the offending behavior, discipline and/or termination would be appropriate. Finally, implementing the policy with comprehensive education can ensure proper and vigilant enforcement.

B. Supervisor Training Proper supervisor training on harassment and bullying is an important step to confronting the problem. Supervisors and managers should remember the “5 R’s” included in their responsibilities: 1. Recognize bullying when you see or hear about it.

2. Respond to every complaint.

3. Record the complaint.

4. Report bullying to HR for investigation.

5. Retaliation must be prevented.

CONCLUSION Workplace bullying does not yet have its own cause of action, and lobbyists are making little progress to change the status quo.

Nevertheless, workplace bullying is destructive to everyone in the employment relationship. Even without a distinct claim, bullied employees still have other effective causes of action and methods for injecting bullying into lawsuits, which makes the issue legally consequential for all employers. However, employers that take the appropriate steps to stand up against bullying in the workplace can benefit from a better work environment and the reduced threat of harmful litigation.

Robin B. Taylor, Atty Ogletree Deakins robin.taylor@ogletreedeakins.com www.ogletreedeakins.com

What should employers do about e-cigarettes in the workplace?

By BARRETT S. MOORE

E-cigarette use is increasing in the United States workforce, presenting employers with a choice. E-cigarettes, or electronic cigarettes, are battery-operated devices that mimic cigarettes. They emit an aerosol of nicotine, flavor, and other chemicals.

Marketed as a safe alternative to cigarettes, e-cigarettes do not produce smoke.

Some employers ban e-cigarettes. These employers use the same logic from traditional cigarette bans: secondhand aerosol is harmful. Other employers allow e-cigarettes as a cheaper alternative to cigarettes. Employees who “vape” at their desks, instead of taking a cigarette break, may save employers an estimated $3,000 per year in employee productivity. Many other employers in certain states, counties, and towns have no choice, moreover; e-cigarettes are illegal in those workplaces.

… more than 20% of American smokers will become regular e-cigarette users in the future.

More than 6% of smokers use one E-cigarette use in America is on the rise. A recent study by the Moores Cancer Center showed 6.3% of American smokers use e-cigarettes with regularity. That’s one e-cigarette user for every sixteen smokers. If that trend holds true to e-cigarette use in other countries, more than 20% of American smokers will become regular e-cigarette users in the future. Employers should expect to encounter e-cigarette use in the workplace.

Are they safe?

There is no scientific consensus on the health consequences of e-cigarettes as compared to traditional cigarettes. Some scientists, like Dr. Stanton Glantz from the Center for Tobacco Control Research and Education at the University of California, are cautious. “[I]f you are around somebody who is using e-cigarettes, you are breathing an aerosol of exhaled nicotine, ultra-fine particles, volatile organic compounds, and other toxins.” Other research notes that e-cigarettes are appropriate smoking cessation devices, with fewer negative side effects than traditional cigarettes. This debate is ongoing.

Are they illegal?

Although there is no federal ban on e-cigarette use in the workplace, federal law treats e-cigarettes like traditional cigarettes. The Food and Drug Administration (FDA) tried to ban the importation of all e-cigarettes in 2010. That ban failed at the United States Court of Appeals for the D.C. Circuit, so the FDA is now poised to regulate e-cigarettes in the same manner it regulates traditional cigarettes. The Department of Transportation has followed suit, banning e-cigarettes—like regular cigarettes—on all scheduled flights in intrastate, interstate, and foreign air travel. And the U.S. Air Force has banned e-cigarette use, because the Surgeon General found that e-cigarettes are “tobacco products.”

Three states explicitly ban e-cigarettes in the workplace. North Dakota, New Jersey, and Utah all recently enacted legislation banning e-cigarette use. Many other cities and counties have

banned or restricted e-cigarettes in the workplace. In Mississippi, twenty-eight cities and counties currently have some type of restriction on workplace e-cigarettes. Ten other states, including Arkansas, explicitly restrict e-cigarette use in other venues.

Arkansas bans e-cigarettes in public schools.

A majority of states ban smoking in the workplace, which may affect e-cigarette use.

The District of Columbia and twenty nine states, including Arkansas and Tennessee, restrict traditional smoking in enclosed workplaces. These bans may embrace e-cigarettes, depending on the language of the controlling statute or ordinance. Arkansas passed the Clean Indoor Air Act in 2006, which outlawed secondhand smoke from “lighted, smoldering, or burning tobacco products,” and smoke from a “lighted tobacco product” in the workplace. According to Arkansas’ Attorney General, that definition falls short of e-cigarettes, since those devices do not produce smoke from a “lighted tobacco product.” The legality of workplace e-cigarettes in other states will turn on the specific language of that state’s or locality’s smoking ban.

Employers should ban e-cigarettes Employers in places mandating an e-cigarette free workplace must ban those devices.

The law requires nothing less. The choice is less clear in other states and localities.

If an employer works in a jurisdiction that mandates a smoke-free workplace, without a specific legal rule on e-cigarettes, then employers should take the more cautious approach. E-cigarettes should be excluded in the same manner as traditional cigarettes.

The same goes for jurisdictions like Arkansas, which have no legal ban on workplace e-cigarettes. Although these employers have no apparent legal duty to exclude e-cigarettes from the workplace, federal and state laws are trending towards that end. Voluntarily banning e-cigarettes might be the more expensive option for employers. But that approach errs on the side of workplace safety. Employers should follow the federal government’s and multiple states’ lead: e-cigarettes are synonymous with regular tobacco products.

Barrett S. Moore Blair & Stroud bsm@blastlaw.com www.blastlaw.com www.HRProfessionalsMagazine.com

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and How to Be a Human Resource Strategic Business Partner: an Overview of Strategic HR Leadership Thursday, May 15 4:30 - 6 p.m.

Face-to-Face at Global Campus in Rogers, 3300 Market Street, Suite 402 and Online via Blackboard Collaborate

$49 To register, please contact Judith Tavano, Global Campus professional development program director, at jtavano@uark.edu University of Arkansas Alumni Discount: 10 percent ________________________________________________________________

Position yourself as a strategic business partner in your organization by increasing your business acumen.

Focusing on the knowledge, skills and abilities C-suite executives require in true business partners, this class will identify the financial tools you will need to succeed in the role of strategic advisor to the management team. You also will be introduced to data analysis concepts that will enable you to present information to management in meaningful ways.

As a result of this program, participants will be able to: • Identify the business skills needed to be an effective human resource business partner • Recognize the most common budgeting methods used in business today • Understand the tools used to measure your organization’s financial health • Create effective business cases for your HR initiatives

About the Instructor Cynthia Y. Thompson is principal and founder of The Thompson HR Firm, LLC, a human resources consulting company in Memphis, Tenn.

She is a senior human resources executive with more than 20 years of human resources experience concentrated in publicly traded companies. She is also the Publisher and Editor of HR Professionals Magazine, an HR trade publication distributed to HR professionals in Tennessee, Mississippi and Arkansas. Cynthia has a master’s in business administration and is certified as a Senior Professional in Human Resources. She is a sought-after speaker on HR Strategic Leadership. Cynthia has served as an adjunct professor at Christian Brothers University in Memphis teaching Human Resource Management and the Principles of Management. She also taught Business Communications in the MBA program at Belhaven College in Memphis. She is currently teaching an HR certification exam prep course at Bethel University in Memphis. ________________________________________________________________

More Information

Please contact Judith Tavano, Global Campus professional development program director, at jtavano@uark.edu.

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Pre-Approved

This program has been approved for 1.5 Business Management and Strategy recertification credit hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute.