November 2014 issue

Volume 4 : Issue 11 TM

www.HRProfessionalsMagazine.com

The

New SHRM Highlights of the

Certification

30th Annual KYSHRM

State Conference

EEOC

Guidance

on Employee Background Checks

Christy Showalter, JD, MBA

SR HR Consultant Regions Insurance

Highlights from

Creating Transparency in Employee Benefits

2014 ARSHRM ELLA Conference

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

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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.

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

Bringing Human Resources & Management Expertise to You

Only

58% of employees

understand their benefits well. 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

Charles Auerbach Chris Davis John Denery Harvey Deutschendorf Cathy Fyock Mary Hamm Jimmy Hinton Amber Isom-Thompson Elizabeth Mack Laurie McIntosh Mark Rodrigues Ricky Reynolds Jennifer Riley Steve Rimmer Blake Rogers Jeff 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 Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles.

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

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

Features 4 note from the editor 5 Profile: Christy Showalter, JD, MBA 8 SHRM’s New HR Certification 12 Data Facts, Inc Acquires One Source Credit Reporting Agency 14 5 Ways to WOW During Enrollment Season 16 Minimum Value Plans: New Ways of Thinking 20 Creating Transparency in Employee Benefits 24 Prevention and Smart Shopping Help Employees and Employers Save on Health Care Cost

WEB EXCLUSIVES

Writing Blogs, Articles, and Books to Boost Your HR Career by Cathy Fyock. http://HRProfessionalsMagazine.com/ web-exclusive-writing-blogs-articles-andbooks-to-boost-your-hr-career/

Departments

10 Employment Law: The EEOC Over-reaches Again: The Agency’s Ongoing Interest in Employee Background Checks – Criminal and Otherwise 18 What’s a Certificate of Employability and Why Is this Applicant Handing Me One? 22 NLRB General Counsel and EEOC Commissioners to Speak at Memphis Bar Association Seminar on December 5 26 Retirement Planning: Debunking the 7 Most Damaging 401(k) Myths 28 A New Way to Provide Pension Benefits 30 EQ: 5 Ways to Improve Your Listening Skills

Industry News 6 Highlights of the 30th Annual KYSHRM State Conference in Louisville 7 Highlights of the 13th Annual ARSHRM Employment Law & Legislative Affairs Conference in Little Rock 13 Wimberly Lawson’s 35th Annual Labor and Employment Law Update in Knoxville

Next Issue On the December Cover – SHRM’s VP of Government Affairs, Mike Aitken Preview of TNSHRM and KYSHRM Leadership Conferences Highlights of WTSHRM Annual Employment Law Conference HR Advocacy and Recap of Mid-Term Elections Compensation and Performance Management SHRM State Council Legislative Updates www.HRProfessionalsMagazine.com

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a note from the Editor

Volume 4 : Issue 9 TM

www.HRProfessionalsMagazine.com

Third Anniversary Issue 2014 KY SHRM State Conference & Expo Louisville

2014 TN SHRM

State Conference & Expo Sevierville

EEOC

Training Seminar Hot Springs

2014 AR SHRM ELLA Conference Little Rock

Jeff Ginsburg,

SPHR 2014 Chair of the TN SHRM Conference & Expo

2014 When Work Works Awards in Workplace Effectiveness and Flexibility

Jeffrey Louis Ginsburg April 27, 1950 to October 18, 2014 The Tennessee HR community was saddened by the loss of Jeff Ginsburg, SPHR, on Sunday, October 18. Jeff was VP of Human Resources for LeGacy Resource Corporation, a government contractor in Oak Ridge, TN. Jeff was also the 2014 SHRM State Conference Chair and 2014 TVHRA President. He has a long list of accomplishments including recipient of the Tennessee Human Resources Excellence Award in 2003. Jeff was known for his sense of humor and his “can do” attitude. He loved playing guitar with his band of 30 years, Boys Night Out. It was my pleasure to feature Jeff on the September cover. Jeff will be greatly missed, and I know you join me in celebrating his legacy.

Our November issue is all about employee benefits planning. We have many excellent articles to assist you planning your 2015 employee benefits plan. I was delighted to meet Laurie McIntosh, SHRM’s VP of Membership, at the 30th Annual KYSHRM State Conference in September. She graciously consented to an interview about the new SHRM Certification. I hope you learn everything you ever wanted to know about the new certification in this issue!

I also hope you enjoy the highlights from the 13th Annual ARSHRM Employment Law & Legislative Affairs Conference (ELLA) in Little Rock September 18-19, and the 30th Annual KYSHRM State Conference in Louisville September 24-26. Next month we will bring you highlights of the ARSHRM Leadership Conference in Fort Smith that was held October 15.

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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I want to let you know about a few upcoming opportunities to earn HRCI recertification credits. The Wimberly Lawson Law Firm in Knoxville will hold its 35th Annual Labor and Employment Law Update on November 6 and 7. See page 13 for details. (www. wimberlydawson.com) The WTSHRM Chapter in Jackson, TN, will present the 5th Annual Human Resources & Employment Law 2014 Fall Conference at Union University on November 12. (wtshrm.org) NLRB General Counsel Richard F. Griffin, Jr. will be a keynote speaker at the Labor and Employment Law Section of the Memphis Bar Association Annual Seminar at the Crescent Club on December 5. What a great opportunity for Memphis HR professionals to meet him and ask questions! You will earn 5.75 HRCI credits at this event. Register at memphisbar.org.

Please join us on November 19 at 2:00 PM for our monthly complimentary webinar sponsored by Data Facts. The topic will be “Aligning Your Compensation Plan with Your Business Strategy.” Watch your email for details!

Happy Thanksgiving to all!

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

Christy

on the cover

SHOWALTER CHRISTY SHOWALTER, JD, MBA SR HR Consultant Regions Insurance Christy Showalter is a Senior Human Resources Consultant in the employee benefits division of Regions Insurance. As a member of the Regions Client Resource Team that includes four senior-level HR and law-trained professionals, she partners with clients to assist their HR staff in all areas of human resources, including regulatory compliance, policy development, training and benefits administration. She is also a certified PPACA professional and consults with clients on all aspects of health care reform.

Christy has over 20 years of progressive experience in human resources and employee benefits. Prior to joining Regions Insurance, Christy served as director of human resources for the Town of Collierville and held similar positions at Primacy Relocation and Armstrong Relocation in Memphis. Christy’s expertise includes employee relations, recruiting/selection, training, compensation and benefits administration as well as compliance with federal and multi-state legislation such as FLSA, FMLA and ADAAA. Born in Memphis, Christy earned her bachelor’s degree from the University of North Carolina at Chapel Hill. She also holds a Master of Business Administration from the University of Memphis and a Juris Doctorate from the University of Memphis Cecil C. Humphreys School of Law, where she ranked first in her class. Christy currently lives in Collierville with her husband, Ted, and six-year old son, Quinn. 

www.HRProfessionalsMagazine.com

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Highlights from the 30th Annual KYSHRM State Conference

The KYSHRM State Council KYSHRM State Council Executive Committee

Susan Simmons, SPHR, Chair

Cathy Fyock, CSP, SPHR, Past Chair

Lynn Ingmire, SPHR, Chair Elect

KYSHRM local chapter membership volunteers

KYSHRM members at the 80’s reception on Wednesday night.

SHRM’s Lisa Horn, keynote speaker on Friday morning, spoke on workplace flexibility.

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www.HRProfessionalsMagazine.com

Jason Brooks, Ph.D spoke on “Reset Your Life. . .

Reset Your Legacy.”

Patrick Smith, PHR, Treasurer

Rita Johnson, PHR, Secretary

Mike Aitken, SHRM’s VP of Government Affairs, and Susan Simmons, Chair of 30th Annual KYSHRM State Council.

Shannon Byrne, Cathy Fyock, and Perry Sholes at the 80’s Reception on Wednesday night.

Jeanne Fisher with ARGI spoke on Jay Inman with Littler spoke on “How Small Changes to a Retirement Plan “Social Media is Here to Stay: Can Lead to Better Decision-Making.”

Practical Tips and Solutions.”

Highlights from the 13th Annual

ARSHRM Employment Law and Legislative Affairs Conference

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1 The 2014 ELLA Conference Committee (L-R) Kevin Robinson, Cassidy Boyd, Tiffany Senavinin, Cindy Kolb, Rickie Smith, Sam Smith.

2 Mike Aitken, SHRM VP of Government Affairs, was the Keynote Speaker on Thursday and spoke on SHRM’s New HR Certification.

3 2014 ELLA Conference Chair, Cindy Kolb, an attorney with Cross, Gunter, Witherspoon & Galchus, welcomed everyone to the 13th Annual ARSHRM Employment Law and Legislative Affairs Conference. 4 Wayne Young, a partner with the Friday Law Firm in Little Rock, serves as General Counsel to the ARSHRM State Council. He provided a Legislative Update on Thursday. 5 Sherry Johnson, SHRM Field Services Director for Arkansas. 6 Calvin Kellogg, Ph.D., PAHM, was the opening speaker on Friday. He spoke on “Healthcare Reform: A Moving Target.” 7 Rick Roderick, Director with Cross, Gunter, Witherspoon & Galchus, spoke on “Discipline, Documentation, and Termination.” 8 Jane Kim, a partner with Wright, Lindsey, and Jennings in Little Rock, led a roundtable discussion on Conduct and Discipline Policies. 9 Khayyam Eddings, a partner with the Friday Firm, led a roundtable discussion on FMLA and Leave Policies on Friday. 10 Ben Brenner, counsel with Mitchell Williams Law Firm in Little Rock, led a roundtable discussion on Social Media, Confidentiality & NLRB policies on Friday. 11 Missy Duke, a Director with Cross, Gunter, Witherspoon & Galchus, led a roundtable discussion on Compensation policies on Friday. 12 Brian Vandiver, with Mitchel Williams Law Firm in Little Rock, spoke on “Several Key Impacts of United States v. Windor on Federal Tax and Benefits Laws Affecting Arkansans and Arkansas Business. Anton Janik and Tod Yeslow also presented.

13 Attorney Allen Dobson also assisted with the Handbook Workshop, leading a roundtable discussion on Conduct and Discipline Policies.

www.HRProfessionalsMagazine.com

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SHRM’s New Certification Cynthia had the pleasure of meeting Laurie McIntosh, Membership Director for SHRM, at the 2014 KYSHRM Conference September 24-26 in Louisville. Laurie graciously consented to be interviewed about the new SHRM certification. Laurie has over 20 years of experience as an HR practitioner and over 10 years experience as a volunteer leader for SHRM prior to joining the staff. She holds a Master of Arts degree in HRM and has worked for SHRM for 6 ½ years.

Originally from Iowa, Laurie currently lives in Alexandria, VA.

How is the new certification different from the HRCI certification?

The new certifications, SHRM-CP (Certified Professional) and SHRM-SCP (Senior Certified Professional), incorporate more than just HR knowledge. Organizations expect more from HR professionals than just a thorough knowledge of HR. The new SHRM certifications incorporates not only the technical competency of HR expertise, but also eight key behavioral competencies – ethical practice, leadership & navigation, business acumen, relationship management, communication, consultation, critical evaluation and global & cultural effectiveness.

What are the benefits of the new certification for the HR practitioner compared to the benefits of the HRCI certification?

HR professionals who achieve their SHRM-CP or SHRM-SCP will not only demonstrate they have strong knowledge of HR, but also how they can enhance their knowledge and expertise in the other behavioral competencies, making them more relevant to their organization. As I’ve talked to HR professionals, the overwhelming response is that incorporating these competencies into certification makes sense and will be an effective way for them to build and sustain their knowledge in those areas.

What happens to all the SHRM online classes and webinars currently offered for HRCI recertification?

Will they now be offered for credit towards the new certification?

SHRM continues to be committed to offering learning through online classes, webinars and other educational events. In 2015, SHRM will submit programs for HRCI recertification credits as well as for SHRM recertification credits.

Many HR professionals do not like the word "SHRM" being part of the certification title. They feel it is advertisement for SHRM and should not be included in the title. Any chance that could change?

There was a lot of discussion and research that went into the naming of the new designations. When it came down to it, the decision was made that it was important to have SHRM in the name.

When will the first classes for the new certification be rolled out? Will they be available as online courses or face-to-face only?

The SHRM Learning System for SHRM-CP/SHRM-SCP will be available for purchase in December. Classes will be rolled out in Q1 through our affiliated chapters, state councils and college/university partners.

Will the the new classes be offered at local colleges as the classes are now, or through the local chapters?

Will the costs be the same?

Both (see answer above)

The cost will be very competitive.

What will be the process for the current HRCI approved providers to become approved to provide recertification training under the new SHRM certification?

How will those who are currently teaching the HRCI certification classes obtain training to teach the new certification class?

We are working with our affiliated chapters and state councils as well as our college/university partners to ensure they are prepared to launch the first prep courses in 2015. Training will occur in a variety of media including in-person sessions and webinars.

How does SHRM plan to inform employers about the new certification? How long do you anticipate it will take to get the word out?

It’s not only important to create awareness among HR professionals, but also with employers.

We are changing the industry standard. Through an extensive multi-faceted media approach we’ll get the word out. We are confident when employers see what the new SHRM certifications have to offer, they will clearly become the new industry standard.

Will the eligibility requirements for the new certification be the same?

We’ve expanded the eligibility requirements to recognize diversity in the profession and minimize barriers to participation. For example, eligible HR experience can be in an exempt or non-exempt role. We also differentiate between an HR related degree and one that is not.

And the SHRM certifications are available to professionals worldwide.

How will recertification requirements change?

Credential holders will earn 60 Professional Development Credits (PDCs) within a 3 year recertification period. We’ve put the focus on recertification in three areas: Advance Your Education, Advance Your Organization and Advance Your Profession. This allows you to personalize your development needs.

Will the exam be as rigorous as the HRCI exam, or more so? How many questions will there be on the new exam? Will the testing windows be the same?

That’s a great question – in some ways it will be more rigorous as the competencies are expanded. In October we held pilot exams in locations across the world to prepare for the 2015 launch. We actually had more individuals interested than we had spots available.

The SHRM-CP exam will be 130 questions and the SHRM-SCP will be 150 questions.

There will be two testing windows per year. Applications for the first testing window will be accepted beginning January 5 and the first test window is May 1 – July 15. The second test window will be December 1 – February 15.

What happens to the HRCI Body of Knowledge?

The new SHRM certifications has an HR expertise element that is based on the Body of Competency and Knowledge (BoCK). Since HRCI is a separate entity, they will determine what will happen to their body of knowledge going forward.

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SHRM chapters and state councils have been asked to confirm their intent to participate in our preferred provider program.

They will identify a contact person responsible for entering program information. They will be able to review and assign PDCs for their programs vs. having to submit them for review.

By providing our preferred providers with resources to make these decisions themselves, it eliminates the waiting period that we know has been frustrating. Preferred Providers will enter their program into our online database. We will conduct audits to ensure preferred providers are adhering to usage guidelines.

Can you explain the process for obtaining the new SHRM certification at no cost to those who are already certified? What is the deadline?

For those individuals who currently hold an HR generalist certification, such as PHR, SPHR or GPHR, they will be eligible to receive their SHRM-CP or SHRM-SCP designation at no cost by completing three simple steps between January 5 and December 31, 2015: Agree to abide by SHRM’s Code of Ethics, affirm they hold a valid HR credential and complete a brief online tutorial on HR competencies. The online tutorial will take approximately an hour. This tutorial will introduce individuals to the 8 behavioral competencies and help them prepare for their recertification cycle.

For those who obtain the new certification in addition to their current certification, should they use both designations in their signature or only one or the other?

That will be a personal decision everyone will have to make.

Laurie McIntosh, SPHR, CAE Director of Membership | SHRM laurie.mcintosh@shrm.org www.shrm.org

P E R F EC T A L I G N M E N T. Relationship. Reliability. Respect. At the center of Bass, Berry & Sims' Employee Benefits and Labor and Employment practices.

We listen, and we respond with creative yet practical counsel. Connecting your dynamic human resources needs to affirmative strategies.

• Day-to-day employment counseling and litigation support • Employee benefit plans and compensation arrangements • Training and auditing programs • Traditional labor law Offering a constant source of information and insight through our blog: tennesseelabortalk.com

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The EEOC

Over-reaches Again:

the Agency’s Ongoing Interest in Employee Background Checks – Criminal and Otherwise

By JEFF WEINTRAUB and JENNY RILEY

T

he Equal Employment Opportunity Commission is the agency responsible for enforcing many federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, gender, color, religion, national origin, age, disability, or genetic information. The Commission investigates and handles

complaints of employment discrimination filed against private-sector employers, employment agencies, labor unions, and state and local governments. The EEOC also brings charges of systemic discrimination – those involving patterns, practices, and policies where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.

In the past few years, in pursuit of its goal to snuff out systemic discrimination, the Commission has targeted the use of employment screenings that may have disparate impacts, particularly criminal background and credit history checks.

Criminal Background Information in Hiring In furtherance of its goal to end the allegedly improper use of criminal background checks in employment decisions, the EEOC issued an updated Guidance on the matter in April 2012. The updated Guidance explains that a violation of Title VII may occur if an employer treats criminal history information differently for different applicants or employees based on their race or national origin. Further, an employer’s neutral policy, e.g., excluding applicants from employment based on express criminal conduct, that disproportionately impacts some members of a Title VII protected class may be deemed illegally discriminatory if the policy is not consistent with business necessity and job-related.

Following the Commission’s issuance of this Guidance, the EEOC received heavy criticism from both courts and employers. This criticism included a letter drafted by nine state attorneys general and sent to the Commission in July 2012. The letter attacked the EEOC’s aforementioned Guidance, which seemed to take a position that the use of bright-line criminal background checks in the hiring process violates Title VII. The letter criticized the EEOC for appearing to take the position that facially neutral policies using prior criminal convictions as job screens have a disparate impact on minorities. Feeling the heat, the EEOC, on August 29, 2013, responded to the letter, explaining some of what the EEOC termed a “misunderstanding” of the Guidance.

The Commission’s crusade against systemic discrimination has become more and more notorious as the EEOC continues to litigate several federal lawsuits charging employers with inappropriately considering criminal histories in hiring in violation of Title VII. 10

www.HRProfessionalsMagazine.com

One popular case against Dollar General was brought on behalf of two applicants who were denied employment following criminal background checks. The Commission asserts that the company’s policy process, which rejects job applicants convicted of any one of 100 specified criminal offenses, results in a disparate impact where more AfricanAmerican applicants than white applicants are rejected due to the criminal checks.

Dollar General denies the EEOC’s allegations and states that its screening process is structured to foster a safe place for employment.

Another noteworthy case was brought by the EEOC against BMW on behalf of 69 African-American workers who were terminated when BMW changed providers of contract labor and required its contract workers to reapply and submit to criminal background checks. The Commission asserts that BMW’s policy disproportionately affects blacks and does not consider the nature of the crimes nor the time passed since they were committed. Of the eighty-eight criminal checks revealing convictions, eighty percent of the violators were African-American.

Nonetheless, BMW maintains that its policy complies with the law.

While neither case has yet been resolved, both results will be quite telling as to how the courts will analyze the use of criminal records in employment screenings to determine whether there is unfair treatment. These cases are still actively being litigated and are currently in discovery stages, as each side attempts to compel the other to fork over information related to the use of criminal records and data on rejected applicants.

Non-Criminal Background Information in Hiring Until recently, most of the news and hype relating to the Commission’s focus on systemic discrimination has related to the use of applicants’ criminal backgrounds. However, in March 2014, the EEOC along, with the Federal Trade Commission, enforcer of the Fair Credit Reporting Act, jointly issued guides on conducting background checks for employment purposes. One guide provides information relevant to employers, while the other guide is directed toward applicants and employees. The publications are an attempt by the agencies to apprise employees of their rights and educate employers on their responsibilities under the laws enforced by the agencies and to suggest discrete steps employers should take to ensure compliance under the FCRA. The guides discuss how the use of background checks – including but not limited to screens of an applicant or employee’s criminal history, credit record, medical information, or social media – in making employment decisions is not generally illegal, but that employers still are obligated to comply with applicable laws in conducting background checks and retaining the resulting information.

The agencies emphasize that employers should thoughtfully and consistently implement background checks for legitimate business reasons only.

Where it is illegal to discriminate based on a person’s race, gender, national origin, color, sex, religion, disability, genetic information, or age, choosing to perform a background check on an applicant or employee based on any of these protected classes is correspondingly illegal.

The Guidance informs job applicants that it is not illegal for potential employers to ask about their backgrounds, as long as the employers do not unlawfully discriminate. A rejected applicant does have the right to review any background reports for accuracy. Employers are discouraged from asking questions during the application process that may elicit information about medical or genetic history of the potential employee.

Where a background check is prepared by an outside credit-reporting agency, employers must ensure it complies with the FCRA. Such compliance mandates that an employer obtain an individual’s written permission prior to seeking his report. Moreover, the employer must certify to the third party that the individual was notified of the background check; that the individual gave written permission to conduct the check; that the employer complied with the FCRA’s requirements; and that the employer will not discriminate against the individual in violation of federal, state, or local law.

Also, the Guidance states that personnel or employment records must be preserved for at least one year (or two years for federal contractors) after the records were made or the personnel action was taken, whichever occurs later. Thereafter, employers must securely dispose of background reports from credit-reporting agencies. Secure disposal may include burning, grinding, or shredding paper documents and disposing of electronic information in such a way as to prevent reading or reconstructing.

What’s An Employer to Do … or Not Do? As has often occurred in the last few years, the EEOC has over-reached.

Many commentators ask, Why is the EEOC, with so many important goals out there, trying to protect criminals? The bottom line that the EEOC must not lose sight of the fact that criminals do not constitute a protected group. Where an employer uses a broad criminal background check, not tailored to the job in question, then yes, the employer is taking an unnecessary risk. Where an employer uses such a check to reject applicants with fraud convictions from a bank teller position, there should be no liability, while an employer who uses a fraud conviction ten years ago to reject an applicant for a ditch digger position, may face an EEOC lawsuit alleging

that the employer’s policy has had a disparate impact on minorities. In other words, the EEOC cannot take action unless the policy adversely affects some protected group.

While the use of a background check can provide an employer with useful information about applicants, incorrect use of background information can lead to a host of problems. In order to avoid the wrath of the EEOC and prevent the possibility of discrimination lawsuits, there are several best practices that employers should follow when considering who to hire.

• Avoid asking job candidates about their arrest records and implementing blanket exclusions based on criminal convictions.

• Inform candidates that a conviction does not automatically constitute a rejection of employment, but instead that consideration will be given to the nature and gravity of the offense, the time that has passed since, and the nature of the job sought.

• Restrict the use of credit checks to positions where the applicant’s financial history directly relates to the job.

Jeff Weintraub, Managing Partner Fisher & Phillips Memphis Office jweintraub@laborlawyers.com www.laborlawyers.com

Jennifer Riley is a paralegal and attorney in Knoxville who regularly contracts with Fisher & Phillips.

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info@thecentregroup.com www.HRProfessionalsMagazine.com

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Data Facts, Inc Acquires One Source Credit Reporting Agency Data Facts, Inc -a nationwide provider of mortgage lending and background screening solutions-announced the recent acquisition of One Source Credit Reporting Agency of Houston, TX. The goal of the acquisition is to expand Data Facts’ existing TX footprint and strengthen their commitment to Texas customers.

The purchase of One Source is a natural progression in Data Facts’ long-term growth plan. One Source Credit Reporting Agency has a positive, longstanding reputation in the marketplace. “We have known the owners of One Source for many years through our affiliation with National Consumer Reporting Agency, and have always admired their ethical business practices as well as their dedication to extraordinary customer service.” Says Daphne Large, CEO of Data Facts, Inc. United by a common business culture, this new alliance will complement Data Facts, Inc.’s current offerings and dedication to providing innovative lending solutions. “Becoming part of Data Facts, Inc was a giant step forward for One Source. We saw what was good and great about Data Facts, Inc and are thrilled that we are now part of a company that has not only the desire to grow its footprint in Texas but has the technology and skill to grow its footprint wherever they want to go,” says Geraldine Podraza, One Source former President, and Data Facts, Inc. Management Consultant.

The combined strengths of both Data Facts, Inc. and One Source will deliver superior industry expertise and unparalleled customer support and lending solutions to all clients. “We are excited about the opportunity to work with such an experienced team and earn the business of the One Source clients. The One Source tradition of extraordinary customer service melds well with our own traditions and Data Facts family”, says Daphne Large, CEO of Data Facts, Inc. “Our strategic growth plans have included gaining market share into Texas, and the opportunity to acquire One Source was an essential step in this direction.”

The complete integration of both companies will take place over the next month. Damon Pike and Michael Nichols -Data Facts Inc.’s IT Systems Administrators-are confident the merge will be pain-free. “Both Data Facts, Inc., and One Source have worked diligently to have all the pieces in place, so the merge will be seamless and easy for our clients. The One Source clients will continue to receive the same high quality support and services throughout the transitional phase, while also being able to expand their offerings through Data Facts, Inc.’s new technologies, products and services.

The acquisition will expand the Data Facts, Inc.’s territorial footprint further west, increasing both immediate and long-term growth opportunities in Texas and the western part of the United States.

Since 1989, Data Facts, Inc. has provided its clients with information they trust and rely on, to make sound lending and hiring decisions. They specialize in data information for mortgage lending solutions, background screening for employment, and tenant screening for residential firms. With several U.S. offices and at 25 years strong, there is an understanding of financial stability and proven management expertise that are prerequisites to serving clients. Data Facts provide clients with both cutting edge, top of the line technology, and personalized support and service. Together, these are the building blocks of client relationships.

Data Facts is NAPBS accredited, SOC 1 and 2 certified, and members of the NCRA. 12

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We invite you to attend our 35th Annual Labor and Employment Law Update

TARGET OFRANGE RANGE TARGETOUT OUT OF

THE WIMBERLY LAWSON LABOR & EMPLOYMENT LAW UPDATE

Knoxville Marriott Downtown 500 Hill Avenue, Knoxville, Tennessee November 6 & 7, 2014

BACK BY POPULAR DEMAND! KEYNOTE SPEAKER Janice P. Brown, Esq. Founder of Brown Law Group and Beyond Law of San Diego, California

G U E S T S

A FEW COMMENTS FROM LAST YEAR

From the EEOC: Sarah L. Smith, Director, and Sylvia Hall, Supervisory Enforcement Federal Investigator for the EEOC’s Nashville, TN office

Excellent, informative, helpful seminar – Well done!

The information presented at this seminar is invaluable

From the Tennessee Human Rights Commission: Beverly L. Watts, Executive Director

When I go back to the office, I have hands-on info I can use

From the NLRB: Alex Edinger, Resident Agent for Knoxville

Chattanooga, TN 423-602-7300

HR C

2014 PP

ROV

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Nashville, TN 615-727-1000

IFICATION INST I ERT

TE TU

www.wimberlylawson.com Knoxville, TN Cookeville, TN Morristown, TN www.wimberlylawson.com 865-546-1000 931-372-9123 423-587-6870

I’m bringing my whole department next year!

E D P R O VI

DE

R

S P E C IA L

The use of this seal is not an endorsement by the HR Certification Institute of the quality of the program. It means that this program has met the HR Certification Institute’s criteria to be pre-approved for recertification credit.

5 WAYS to WOW

during enrollment season

these pointers !asRemember ! you work to get the most

from your enrollment season.

By BLAKE ROGERS, JIMMY HINTON, and RICKY REYNOLDS

Information has never been so readily available. With technology providing more tools to talk, text, type and tweet than ever before, you wouldn’t think communicating about benefits would be an obstacle.

But if anything, the abundance of tools can hinder your ability to effectively work with employees to build effective benefits programs — and enroll employees.

Meanwhile, health care reform and changes in employer-paid benefits plans are leaving employees with more decision-making — and often more questions — concerning their coverage than ever before.

Insurance carriers are seeing an uptick in voluntary benefits products — critical illness, life, disability, accident and cancer insurance — that help answer many of these questions and concerns.

It’s a great opportunity for you to partner with experienced and knowledgeable insurance brokers and agents who can support your company’s benefits communication and enrollment efforts. Here are five tips to remember so you and your employees get the most out of this enrollment season.

! 1. Keep it simple !

Efforts to keep benefits costs under control have likely left you trying to do more with less. Human resource professionals are expected to manage benefits products constantly increasing in complexity as demands on time increase. You can save time (and often money) by providing benefits to your employees that are guaranteed issue, include a minimal number of required forms and allow employees to customize their benefits.

! !

2. Employees need education

It’s easy for HR professionals who lack time and resources to leave a benefits education gap in the minds of the employees. While 81 percent of large companies think it’s important for employees to fully understand their benefits, estimates find that only 58 percent of employees understand their benefits well. You can find experienced benefits counselors who can be equal parts educator and enroller.

! ! 3. One size doesn’t fit anyone

America’s businesses now include as many as four generations, and that requires you to employ a variety of tools to communicate and educate. Employees can find most forms of enrollment support to be helpful, including personalized pre-enrollment information, one-to-one sessions, group meetings, online decision-making tools, and ongoing education after enrollment. You need to be able to communicate effectively about benefits with multiple generations over a variety of high-tech and high-touch platforms. Make sure your benefits provider can speak old-school and new-school.

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! 4. Three weeks can change your life !

Help your employees improve their benefits knowledge by ensuring they have a variety of communication tools and enough time to review and understand them. The number of employers providing an enrollment period of at least three weeks declined from 2009 (55 percent of employers) to 2012 (47 percent), according to the 2014 Colonial Life Employee Education and Enrollment survey. But the extra time can make a huge difference. The survey found employees were more satisfied with their benefits education and overall benefits package with more time. Only 7 percent of employees who were given less than two weeks to decide rated their benefits education as excellent or very good, and only 8 percent gave strong ratings to their benefits package.

But giving employees three or more weeks raised those ratings to 57 percent for education and 53 percent for overall benefits.

! ! 5. Make time for one-to-ones

While many of today’s younger workers want to be able to shop for and purchase products online, that doesn’t mean personal benefits communication doesn’t remain vital. According to a 2013 Colonial Life-Harris Poll, 98 percent of employees felt their personal counseling sessions were important. And 97 percent say it improved or significantly improved their understanding of their benefits. Younger employees are more likely to prefer using electronic tools, according to the 2014 Colonial Life Employee Education and Enrollment survey, but they also lag behind older workers when it comes to understanding and valuing their benefits. That means you shouldn’t rely on technology to educate younger employees in the workplace. Perhaps adding a personal one-to-one component would be helpful.

By remembering these tips during the fourth quarter, you can help your employees make the best benefits choices for them and their families — and leave them more satisfied with both their benefits and their jobs.

Blake Rogers Tennessee territory sales manager, Colonial Life & Accident Insurance Company tblakerogers@coloniallife.com or 615-696-6672

Jimmy Hinton Mississippi territory sales manager, Colonial Life & Accident Insurance Company jhhinton@coloniallife.com or 601-326-2954

Ricky Reynolds Arkansas/Oklahoma territory sales manager, Colonial Life & Accident Insurance Company rcreynolds@coloniallife.com or 501-246-8979 About Colonial Life Colonial Life & Accident Insurance Company is a market leader in providing financial protection benefits through the workplace, including disability, life, accident, cancer, critical illness and hospital confinement indemnity insurance. The company’s benefit services and education, innovative enrollment technology and personal service support more than 80,000 businesses and organizations, representing more than 3 million of America’s workers and their families. For more information, visit www.ColonialLife. com, www.facebook.com/coloniallifebenefits, www.twitter.com/coloniallife and www.linkedin.com/company/colonial-life.

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MINIMUM VALUE PLANS:

employee’s perspective, this arrangement may in fact separate them from their doctor of choice given the financial circumstances placed upon the provider. In some cases if an employee elects to be seen by a provider that will not accept this pricing model, the employee may be responsible for the remaining balance in states where balance billing is permitted.

2. Major medical plans lacking inpatient hospital coverage

New Ways of Thinking

By CHRIS DAVIS

C

urrently, there is noise being made in the benefits world related to Minimum Value Plans (MVP) and how different arrangements and structures of health plans test the legitimacy of “Minimum Value”.

Affordable Care Act (ACA) requires an applicable large employer to pay a penalty when at least one of that employer’s full-time employees receives a premium tax credit for healthcare coverage.

Coverage is deemed to provide minimum value if the “percentage of the total allowed costs of benefits provided under a group health plan” is at least 60% of all plan benefits, without regard to co-pays, deductibles, co-insurance, and employee premium contributions. Under a final rule issued by the Department of Health and Human Services (HHS), the “percentage of the total allowed costs of benefits provided under a group health plan” is defined as— A. The anticipated covered medical spending for essential health benefits (EHB) coverage paid by a health plan for a standard population, B. Computed in accordance with the plan’s cost-sharing, and C. Divided by the total anticipated allowed charges for EHB coverage provided to a standard population.

In an attempt to reduce the administrative cost of complying with these rules, certain applicable large employers—most notably those in industries in which coverage was not typically offered to a majority of full-time employees —have sought less expensive methods to offer coverage that is both “affordable” and provides “minimum value” to both the employer and their respective employees. A few unique and aggressive strategies have cropped up recently that attempt to lower the aggregate premium cost of group coverage. These strategies include:

1. Reference-based Pricing In a reference-based pricing model, an employer or insurer establishes a maximum payment it will make for a specific service, e.g. hip replacement.

The basic assumption of this practice is that the reference price is set high enough to ensure that employees have sufficient access to providers to have a choice in who provides care, yet low enough to restrict reimbursement to the most expensive providers. While the primary goal is to essentially “cap” the cost of a service, resulting in lower plan-paid costs, this practice may be construed as being abusive to both the employee and the medical provider. From the provider’s perspective, this arrangement may not create a revenue stream advantageous enough to treat that employee and from the 16

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Certain plans offered on a self-funded basis have been able to remove inpatient hospital services from coverage and still get to a calculatordetermined value of greater than 60%. This design results in an aggregate premium cost of about half of that charged for traditional, major medical coverage. For an employer-sponsored plan to provide minimum value, it would be required to cover four core categories of benefits: 1) physician and mid-level practitioner care, 2) hospital and emergency room services, 3) pharmacy benefits, and 4) laboratory and imaging services as determined by the Treasury Department and IRS. This requirement was not carried over into the final rule, which instead relied on a comparison to EHB benchmarks. So, for now at least, these arrangements do appear to provide minimum value.

While there is every reason to believe that government officials are aware of these methods, there is no indication that they consider them abusive or problematic. This could change as their popularity grows and liabilities to employees emerge. There is a variant of this design that replaces inpatient hospital services with some form of hospital indemnity that pays a predetermined amount for each day of hospitalization and may in fact be determined via negotiation or litigation. Hospital indemnity arrangements are generally “excepted benefits” that are not subject to the Act, but this only applies when the benefit is not coordinated with other major medical coverage.

3. Limited network arrangements based around medical quality While the first two variations focus on the “procurement” element of healthcare by tapering expenses by imposing cost caps or limiting certain areas of care, they rarely, if at all, focus on the quality of medical care and how success in properly diagnosing, treating and coordinating care for an employee may reduce costs. Considering that 24% of all physician services are duplicated, 61% of self-referrals are incorrect which generates 33% higher costs, and most staggering: “most estimates suggest that about 20 percent to 30 percent of medical spending could be eliminated with no adverse effects on patient outcomes.” With those facts in place, if network configuration and payment were to be modified, wouldn’t employers want to configure these networks and pay structures to route care (and therefore payment) to the hospitals and physicians that focus on getting the correct procedures done at the right time without being wasteful? As the title implies, these plans are similar to major medical networks, except covered employees are restricted to a narrow set of in-network providers ranked by medical performance.

While these options in place vary in their structure and scope regarding affordability, network structure and payment limitation, final legality and feasibility will be challenged as these adaptations become more defined and popular. Only time will tell if and/or when the rules may change, but currently no opinion or position has stated that these options have or will run afoul of the ACA.

Chris Davis, MPH, ACSM HFS Director of Health Management & Claims Informatics Regions Insurance Inc James.c.davis@regions.com www.regionsinsurance.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

What’s a Certificate of Employability and Why Is this Applicant Handing Me One?

By AMBER ISOM-THOMPSON

A

job applicant in Tennessee finishes filling out the application and hands it to you with a document that purports to be a certificate of employability. Do you know what it is? Do you know what to do with it? Thanks to a new Tennessee law aimed at helping reformed individuals with felony convictions, you may start receiving these certificates of employability. The new law fulfills a dual purpose of assisting individuals with a felony conviction to find employment and protecting employers from potential claims related to employing those individuals.

Other states, such as Ohio and, more recently, Connecticut, have enacted similar laws.

Given the recent federal and state trends limiting the use of criminal background information in the hiring process, the development of these laws is not surprising.

Previously, Tennessee law provided authorized persons with a felony conviction the opportunity to restore their rights of citizenship and to vote. See Tenn. Code Ann. § 40-29-101 et seq. and Tenn. Code Ann. § 40-29-201 et seq. In conjunction with the provisions for restoring the rights of citizenship, the new law, codified at Tenn. Code Ann. § 40-29-107, provides individuals who have had, or are seeking to have, their rights of citizenship restored the ability also to petition the courts for a certificate of employability for use in obtaining employment.

As of July 1, 2014, the law created protection for employers who rely on the certificates from claims of negligent hiring or retention under certain circumstances.

The law sets forth the requirements for the petition to the court for a certificate of employability, including a summary of the petitioner’s criminal history as it relates to offenses that disqualify the petitioner from employment or licensing in an occupation or profession, as well as a summary of the petitioner’s employment history. A copy of the petition for a certificate of employability form can be found on the Tennessee Administrative Office of the Court’s web site at http://www.tsc.state.tn.us/administration/judicial-resources/forms-documents/court-forms.

The court may grant the petition for employability if the petitioner establishes that: • The petitioner has sustained the character of a person of honesty, respectability, and veracity, which is generally confirmed by his or her neighbors; • Granting the petition will materially assist the petitioner in finding employment or obtaining occupational licensing; • The petitioner has a substantial need for the certificate to live a law-abiding life; and • Granting the petition would not create an unreasonable risk to the safety of the public or any individual.

If the court grants the petition, the petitioner will receive a certificate of employability for use in obtaining employment. However, the certificate will be revoked if the certificate holder is convicted of, or pleads guilty to, a felony after obtaining the certificate.

While the new law does not require employers to hire persons with a certificate of employability, it does provide an incentive to employers to hire those individuals by affording employers some protection from liability. First, in a judicial or administrative proceeding in which negligence or another fault is alleged, the employer may introduce a certificate of employability to demonstrate its due care in hiring or retaining a certificate holder if it knew about the certificate when the alleged negligence or other fault occurred. Second, in a negligent hiring proceeding, a certificate of employability affords an employer immunity if it knew about the certificate at the time the alleged negligence occurred.

The law does not provide unlimited protection, however. An employer that hires a certificate holder may be liable in a lawsuit based on, or relating to, its retaining the individual if: • After hiring, the individual demonstrated danger or was convicted of a felony; • The individual is retained as an employee after such a demonstration or conviction; • The plaintiff proves by a preponderance of the evidence that someone employed by the employer with hiring and firing responsibility had actual knowledge that the employee was dangerous or was convicted; and • The employer, after having actual knowledge of the danger or conviction, willfully retained the individual as an employee.

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Heavily regulated employers may not be able to take advantage of the certificate of employability law. It is important to note that the law does not apply to: • Individuals or entities that are subject to licensing, certification, or regulation by boards, commissions, or agencies under the following laws: o Title 33, chapter 2, part 4 (Mental Health, Alcohol and Drug Abuse Prevention and/or Treatment, Intellectual and Developmental Disabilities, and Personal Support Services Licensure) o Title 38, chapter 8 (Police Officers) o Title 41 (Correctional Institutions) o Title 49 (Education) o Title 56 (Insurance) o Title 63 (Healing Arts Professionals) o Title 71 (Welfare) • Individuals subject to regulation by the Department of Financial Institutions under: o Title 45 (Banks and Financial Institutions) o Title 56, chapter 37 (Premium Finance Companies) Additionally, for purposes of certificate holders who are applying for employment in an occupation or field that requires state licenses or certificates other than those outlined above, the law will take effect January 1, 2015.

Conclusion For those Tennessee employers who have been concerned about opening themselves to liability for negligent hiring and retention claims by hiring individuals with a criminal background, the new certificate of employability law should provide some comfort. However, because the law does not offer absolute immunity for employers who hire individuals with certificates of employability, employers should adopt appropriate policies and procedures, and conduct corresponding training, to be able to take advantage of the law’s protections.

Employers should adopt policies and procedures to address what to do if an applicant submits a certificate of employability. They also need to have procedures in place to vet those applicants thoroughly. When employers hire certificate holders, they should determine how to maintain the certificates of employability so that they will be available for future defense, if necessary. Further, since employers cannot simply file the certificates away and then hide their heads in the sand, they should establish protocols for monitoring certificate holders’ behavior for signs that might be deemed to put them on notice of dangerous behavior, as well as procedures that mandate certificate holders to report any felony convictions after they are hired. Additionally, employers need to train Human Resources and individuals with the authority to make hiring or retention decisions on the new law. Finally, along with broader workplace violence policies, employers should train all employees on the importance of reporting dangerous conduct they observe at work.

Amber Isom-Thompson, Shareholder Littler AIsomThompson@littler.com www.littler.com

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Creating Transparency in Employee Benefits

How to Help Your Employees Become Smart Healthcare Consumers

By MARK RODRIGUES

As the landscape of employee benefits continues to drastically change in the U.S., transparency is becoming a popular topic as it relates to healthcare.

Is your organization doing everything possible to create transparency within your benefits program? To clear up some of the mystery surrounding transparency, we will define transparency, explain why it’s crucial, and offer practical advice on how to implement a transparency program.

Transparency Helps Create a Consumer Mindset In general, transparency refers to openness and communication, and it leads to accountability. When applied to employee benefits, transparency has the potential to be a potent tool. What if healthcare decisions could be far more informed than they are today? What if employees had the ability to review cost and quality related to services, procedures, or medications before they elected them?

In an era of consumer-driven health plans, employees can benefit from a clearer understanding of healthcare costs. In turn, this can benefit employers, who are seeking ways to better manage their healthcare costs.

It’s important to look at transparency for what it truly is. Rather than a product or piece of software, transparency is an integral piece of the process engineering needed to bend the healthcare trend. For some time now, the healthcare trend has been outpacing inflation at alarming rates, and unwarranted variation in pricing has been a large part of the problem. When employers and employees become aware of these variances, they can make smarter, value-based decisions about care.

Creating a Reality Check for Employees Until recently, most employees paid their health premiums and expected to receive whatever care their providers ordered. Traditional HMO and PPO plans offered low co‑pays for activities like emergency room visits, doctor visits, and prescriptions. Health plan members were generally unaware of the true costs of their care, sometimes viewing medications and office visits as costing whatever their co-payments were. As a result, the use of health benefits often lacked careful consideration.

Today, faced with runaway healthcare costs, employers are looking for ways to regain control while still offering their employees the coverage they need. One outcome has been the advent of the high-deductible health plan, accompanied by a health savings account. This consumer-driven approach to health coverage requires a more diligent consumer mind-set from health plan members. That’s because these individuals are paying for more care out of their own pockets, leading to a strong consumer focus in healthcare today.

Even if your company isn’t currently offering a consumer- driven health plan, it’s important to build transparency into your process for bending the healthcare trend.

Unlike many other markets, little correlation exists between quality and price for medical and pharmaceutical products and services. When you pay a higher price, you cannot 20

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assume you are receiving higher quality. Wide variance exists in prices for very similar, if not the same, services.The unwarranted variance in a procedure’s quality and price is not only based on which provider the patient selects, but also on the location the patient selects to receive the healthcare services.

With the influx of consumerism, it’s important to provide the tools individuals need to become smart consumers of healthcare—and that’s where transparency comes in.

With Transparency, Everyone Wins Transparency creates a win-win situation for employers and employees. When employees become smart consumers of their own healthcare due to an understanding of price and quality, they certainly benefit. In turn, careful decision making about healthcare helps employers, who are no longer paying for needless or lower-quality care.

Consumer-driven health plans can initially seem intimidating to employees; however, when offered the tools needed to shop intelligently for healthcare, the perception of such plans tends to improve. These tools enable employees to better evaluate the quality of the healthcare they receive and the price they pay for it.

Finding the Right Transparency Partner The rise in consumer-driven health plans has created considerable opportunity in the arena of transparency. A variety of vendors are already developing solutions, and more are sure to follow. Lockton’s survey of the marketplace revealed three common approaches to offering transparency to employees:

Concierge Services Concierge services help health plan members by offering input on treatment options, providing pricing details, deciphering billing questions, and more. All of this is done via telephone consultation.

Technology Solutions Using web-based services or mobile device applications, health plan members can research the healthcare services they need to understand options related to quality and price. A comprehensive technology solution can even include a personalized dashboard that shows an individual’s healthcare benefits, how much of their deductible they have satisfied, billing status, and so on.

Marketplace Solutions An online marketplace lets consumers research common services and procedures to find competitive pricing and/or have doctors bid on the needed service. This is the newest approach to transparency, with many marketplaces still in development.

With these options in mind, you must first decide which approach will work best for your employees.

The next step is to identify the vendor that best aligns your goals with your employees’ needs. Key areas for consideration are communication style, communication channels, reporting capabilities, incentives, ease of use, and alignment with company culture. Also important is the vendor’s methodology for deriving quality, price, savings, and return on investment.

measurements are number of registrations, number of searches performed, and selection of high-quality and affordable providers. Although it takes some careful planning to select and implement a transparency program, it can be well worth it when employees take greater responsibility for their healthcare decisions.

To learn more about integrating transparency into your own benefits program, contact your Lockton Account Team.

How to Implement a Transparency Program Introducing true transparency into your organization’s health plan takes time and careful planning.

Consider creating a phased rollout plan that consists of the following steps:

1

Introduce the concept of consumerism.

Employees are likely to need time to adjust to the idea of becoming true consumers of healthcare, paying for office visits and medications like they would any other consumer product. Therefore, a logical first step is to communicate very clearly to employees how their healthcare decisions affect not just them on an individual basis, but the organization as a whole.

2

Identify key characteristics of an ideal vendor.

While helping your employees become acquainted with the idea of consumer‑driven care, make a decision about the approach that will work best for your organization: concierge, technology, or marketplace.

3

Analyze current carrier offerings.

Once an approach is selected, Lockton can help analyze vendor offerings and choose the one that best aligns with your culture, financial parameters, carrier, incentive design, and communication strategy.

4

Ashley Pace

Lockton’s Memphis Office 901 757 6902 apace@lockton.com

Brad Owens

Lockton’s Memphis Office 901 757 6901 Bowens@lockton.com

Create an incentive structure.

Upon announcing a consumer-driven health plan, you should not expect to experience instant adoption. It will take time for employees to adjust to the new sense of accountability. An offering of incentives can create a smoother transition. Incentives can be structured for sign up, for searches, or for choosing the higher-quality and lower-cost alternatives. Just be sure to implement a tracking mechanism for the incentives, especially for those who have reached their out‑of‑pocket maximum.

The goal is to drive smart decisions for the entire population.

5

rive engagement to maximize D value for these programs.

Educate employees through an integrated communication program that incorporates all channels of communication available within the organization.

Proactively communicate to employees about how to enroll in the new transparency program, and show them how to search for cost and quality information and make decisions about healthcare services.

Even better, consider setting up tailored messages for employees to help them make smart decisions specifically related to their own health conditions.

To be HIPAA compliant, this is all done through the vendor. If this is important to your organization, ensure that the vendor you select can provide these push notifications.

6

Measure results.

Once your transparency program is in place, you can begin to measure its value. The three most common

Where the focus is on: • Cost Savings • Policy Development • Customized Services • Online Technology • Satisfied Transferees

(877) 898-9640

info@focusrelocation.com www.HRProfessionalsMagazine.com

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NLRB General Counsel and EEOC Commissioners to Speak at Memphis Bar Association Seminar on December 5 SHRM members can earn 5.75 HRCI credit hours by attending this annual seminar held at The Crescent Club.

By MARY HAMM

On December 5, 2014, the Labor and Employment Section of the Memphis Bar Association will conduct its annual seminar, providing a comprehensive review of the significant labor and employment law issues of 2014. This seminar will offer HR professionals and attorneys an in-depth update of recent legislation and legal decisions on numerous state and federal employment laws, including the Tennessee Human Rights Act, the National Labor Relations Act, the Americans with Disabilities Act Amendments Act, the Family and Medical Leave Act, and Title VII. Following a continental breakfast and introductory remarks by Section Chair Kim Koratsky, attorneys David Prather of FordHarrison and Jonathan Bobbitt of Gilbert Russell McWherter Scott Bobbitt will start off the day’s presentations with an overview of important state employment law decisions from 2014. Prather and Bobbitt will also discuss the Tennessee General Assembly’s recent changes to employment laws in Tennessee, which include subjecting discrimination and retaliation claims to compensatory-damages caps and eliminating individual liability for managers and supervisors.

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Kathy Kores, District Director of the EEOC’s Memphis District, will moderate a panel consisting of EEOC Commissioners Chai Feldblum and Victoria A. Lipnic. The EEOC issued enforcement guidance on pregnancy discrimination in June of 2014 and the Supreme Court will be taking up pregnancy discrimination claims in Young v.

United Parcel Services this December. Commissioners Feldblum and Lipnic will explore the EEOC’s enforcement objectives in this and other areas, including the EEOC’s position on company wellness programs.

The Labor and Employment Section also welcomes Richard F. Griffin, Jr., General Counsel of the National Labor Relations Board. Griffin will discuss recent NLRB decisions and important issues currently pending before the Board. Tanja L. Thompson of Littler will moderate the discussion.

David Rudolph of Bourland Heflin Alvarez Minor & Matthews will review the significant labor and employment law decisions and jury verdicts from the United States District Court for the Western District of Tennessee. Helpful and entertaining, Rudolph’s presentation discusses how local employers fared in our federal district

court. Rudolph’s discussion of the jury verdicts on employment law claims will provide insight for all employers, but especially those that have ever struggled with whether to settle a claim or proceed to trial.

Judge Bernice B. Donald of United States Court of Appeals for the Sixth Circuit, Thomas Henderson of Ogletree Deakins, and William “Billy” Ryan of Donati Law will discuss the recent employment law decisions from the United States Supreme Court and the United States Court of Appeals for the Sixth Circuit. Telecommuting, collective action waivers, and retaliatory discharge are just a few of the employment law issues this panel will address based on opinions issued by these courts over the past year.

Closing out the seminar’s presentations, Brian Faughnan of Lewis Thomason will explore ethical issues for attorneys practicing in the labor and employment law arena. Participants are invited to enjoy a cocktail reception hosted by BankTennessee and Alpha Reporting immediately following the seminar.

For more information or to register for the seminar, please visit www.memphisbar.org.

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.

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Prevention and Smart Shopping

transparency tools so employees can make informed decisions about their health care options. We have to change the conversation.

We can no longer just talk about what kind of rate increase. We have to figure out how we can affect the rate increase.

In the push to get employees more engaged with their health plans, what’s resonating with them?

Help Employees and Employers SAVE on Health Care Cost Interview by CHIP TAULBEE

John Denery, Executive Vice President and Director of Life & Health at Little Rock, Arkansas’

Stephens Insurance (an affiliate company of Stephens Inc.), details his firm’s consultative approach to benefit plans and how engaging employees in preventative health care and getting

them to be better health care consumers can save money for employees and employers alike.

As you meet with clients about their benefit plans for 2015, what kind of impact is health care reform having on their offerings?

A large percentage of our employers are making changes to their health plans. Costs continue to go up, and employers can only absorb so much. There have been some positive things that have come out of health care reform. An unintended consequence of the law is employers are really open to coming up with creative solutions around how to get employees more active in their health plans and in making cost effective decisions about their care.

What’s the incentive to get employees more active in their health plans?

With health care reform, there is a cap on out-of-pocket maximums. So deductibles can only be raised up to a certain level. That means employers have to get creative to better manage the dollars.

What we are finding when we do our data analytics is there is a large portion of our population that is in a completely reactive mode when it comes to their health care.

Here is an example. Last week I sat down with an employer with 1,200 lives in three states, helping them understand what is driving their increasing health care cost. In that instance, 70 percent of their employee population had not gotten an annual physical, and about the same percentage had not gotten their age and gender appropriate screenings.

So we have to look at those drivers instead of just going through the normal annual renewal process. It’s more of what’s the long-term solution, what is going to be done for the next three to five years to curb increasing costs, what strategies are going to be put in place. And first we need to get employees active in the system. We have to get them to a primary care physician.

We have to teach them how to buy health care better. We have to put in place resources and 24

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What really motivates them is money. That’s positively or negatively. So either financially incenting them to do something or charging them more if they do not do something. So you may have one employer who says if you do this I will give you $250 or another employer who says if you do not do this I am going to charge you 15 percent more. There are multiple ways of going about it. But if you do not do a good job communicating it to the employees, then it is all for naught. Communication is absolutely essential.

Besides financial incentives, what else gets employees more involved with their health plans?

We are traveling and meeting with groups of employees, and we are telling them the stats too. We are telling them, “Listen, 80 percent of you have not gotten a physical in the last year.

I can tell you six stories of people in their 40s who are not working today because they had heart attacks or strokes or diabetic events that caused them to no longer be able to work, and all of it was preventable.”

We had a conversation in an employee meeting, and a guy stood up and said he is a two-time cancer survivor. He had stage-two cancer twice. He said the only way it was caught was he was going in for his annual checkups. I told the other employees, it’s pretty impressive that he survived it, but you have to understand, he is going home to his family tonight. He is coming back to work tomorrow. He is living his life because he made good decisions about his health care.

We have to get to the point where we are getting people active and engaged in their health care versus sitting on the sidelines waiting for something to happen and just basically saying, “I would rather not know.”

What can employers do to get their employees more engaged in their health plans?

We see people who have diabetes, who are having heart attacks, who are having stage-

three and stage-four cancer that if they were doing age and gender appropriate screenings, have a very good chance of catching and preventing a lot of these issues.

where to go. We are giving them the options. If you are shopping for a TV or a truck, you know the things to look for, but it has not been there for health care. Now it is.

“So no more on our watch” – that is what we are advising HR and C-suite folks to present to employees, to let employees know you care about them. It’s using the same type of philosophy that’s in place with safety: we care about you; we want you to be able to come home; we want you to see your families; so this is what we are going to have you do. You cannot just charge them more or pay them to do it. You have to go out and tell the story.

Now we have put the power in the hands of the employees to make that decision. The employees are loving it. The service does everything from prescription review – like reviewing the prescriptions they take, and determining if there is possibly a less expensive clinical alternative or generic equivalent,– or a bill from the hospital, they will review that looking for errors or overcharges.

Has it taken some convincing to get employers to have these conversations with employees about their health?

The better employers out there, they are about saving lives. A lot of the times they are just not seeing this information. They are just not getting this data. With one employer, I was going over the cancer issues that were happening within their group. Breast cancer happened to be his number two claims category, so they had a massive number of cancer claims for breast cancer. Knowing that, we looked at their compliance rate for breast exams, and mammographies, and it was about 18 percent. So a lot of the times it’s just connecting the dots.

I was visiting with another employer where I shared the cost for his employees who got their physicals this year– the cost was $5,000 less per year for employees who got their annual physical. We have to get employees to do the right things, otherwise you are no longer allowed to get mad at me when claims cost go up. I show them the claims cost for those that are doing the things they are supposed to be doing versus those who do not, and it is staggering.

Besides taking better preventative steps for their health, how else can employees positively affect their organization’s health costs?

…of the bills they have reviewed, 80 percent of them are incorrect.

One of the things we have found through this service is that of the bills they have reviewed, 80 percent of them are incorrect. It could be small, but they are finding errors for these employees so they can go back and save money only by making a phone call and scanning some paperwork. We are giving them the tools and resources to be better health care consumers, just like they would on anything else. And if employees are spending less money on their deductible and less of their out-of-pocket maximum, their co-insurance, they are going to save money and so is the employer. So it’s a win-win, and any future rate increase should be less.

John Denery is a member of the National Association of Health Underwriters and the Society for Human Resource Management. He also serves on the Board of Directors for the Arkansas Health Insurance Marketplace, and Search Ministries and Young Life.

SISKIND SUSSER PC Tennessee’s Largest

As deductibles continue to rise, we are asking employees to be better consumers of health care, but they have not had the tools and resources to be better consumers. They consume health care in copays.

Business & Employment Immigration Practice

Then how do you get employees to be better consumers of health care?

We have a transparency program that we have put in many of our groups that allows employees to make a phone call or send an email that says, “My doc says I need an MRI.” And they can actually shop to see where there is a high-quality, low-cost MRI. You can get an MRI of your knee and in one place it can be $450 and, in the same city, at another place it’s $4,500. Same picture.

There is a lot of waste in the system, but it is possible to open the eyes of the employees so they can see the waste. They can make a phone call, someone else will search and find the different price options for them, the employee can go back to work, then the service is going to get back to them and tell them what they found and ask if they want the appointment scheduled.

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We can also get all the appropriate paperwork done to allow the service to work on the employee’s behalf. The service will call the doctor and find out what kind of MRI that person needs. Then they will call the employee, advise them what the physician said is needed, show them their options and ask which one they want. We are not telling them www.HRProfessionalsMagazine.com

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Debunking the 7 Most Damaging 401(k) Myths that Impact Plan Sponsors

By CHARLIE AUERBACH

After many years of advising 401k plans, I have come to a frightening conclusion. The vast number of employers and qualified retirement plan sponsors are unaware of their own fiduciary obligations, not to mention the issues that can arise with the service providers hired to help shoulder those responsibilities. Because of this widespread unconsciousness, ‘perception’ has largely become myth, which then becomes commonly accepted business practice. This can be very dangerous when it leads to a false sense of security. Unfortunately, plan sponsors are often lured into thinking that “everything is being handled properly” and “the plan is operating fine.”

Below are the 7 most damaging myths we see in the market today.

risk of loss due to fraud or dishonesty on the part of persons who "handle" plan funds or other property. These individuals are called "plan officials" and include anyone who has: o Physical contact with cash, checks or other Plan property. o Power to transfer or negotiate Plan property for a price. o Power to disburse funds, sign checks or produce negotiable instruments from the Plan assets. o Decision making authority over any individual described above

Myth #1

Myth #3

If there are any monetary damages due participants, or fines and penalties levied by regulators against the plan, they can be paid out of the plan assets.

All of my service providers are covering investment, administration, and record-keeping function appropriately and if something does go wrong, each will accept responsibility for any actions taken by them that results in monetary damages.

According to the Employment Income and Security Act of 1974 (ERISA), a fiduciary is an individual or entity (trustee, plan administrator, investment committee, etc.) that: o Exercises ANY discretionary control over administration o Exercises ANY control over plan assets (whether or not discretionary) o Renders investment advice to a plan for a fee Furthermore, any losses or other damages resulting from a breach of fiduciary responsibility is personal liability to the fiduciary and cannot be satisfied out of plan assets or even company assets.

Myth #2 My Fidelity Bond will cover me in the event there are fines or penalties levied against the plan by regulatory authorities or if the plan must make restitution of the funds to a plan participant.

The purpose of a Fidelity Bond is to protect employee benefit plans from 26

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A Fidelity Bond does not cover a breach of Fiduciary responsibility.

The vast majority of service providers, whether they be an investment manager, third party administrators, record-keepers or custodians are not acting as declared fiduciaries to the plan and therefore are technically not liable for any monetary damages to the plan or the participants resulting from their errors or omissions. However, if the service provider declares in writing in their Service Agreement that they are willing to accept responsibility they are then deemed to be a co-fiduciary and can be held liable for their actions.

Myth #4 The associated fees being charged by the various service providers must be reasonable because they are being competitively offered by reputable firms; therefore I needn’t do any further research or due diligence.

The fact is that fees charged to 401 (k) plans vary widely from one service provider to the next. Various factors such as the selected investment offerings, the size of the accumulated assets, the contribution/growth of

the plan assets, the number of eligible employees, the number of plan participants, etc. often dictate costs. It is now a requirement under ERISA Section 408 b (2) that the plan sponsor gets a detailed list annually of fees charged by every firm providing services to the plan and evaluate those plan fees to determine if they are reasonable in light of the specific services being provided to the plan. It is recommended that this be documented in writing and kept on file. One of the best ways to satisfy this requirement is to have independent benchmarking of all fees charged to the plan. This will help the plan sponsor understand the range of fees currently being charged in the market for plans of his size and complexity.

Myth #5 As a highly compensated individual, I am restricted by ERISA and the Internal Revenue Code (IRC) as to how much money I can put into my company plan.

This is not necessarily true. The amount of dollars a highly compensated individual can contribute annually is determined by specific testing requirements provided under ERISA and IRC. There are a number of creative plan design opportunities that can be customized for any specific plan that will address ERISA requirements and may allow the highly compensated individuals to contribute enhanced amounts allowable by law. And it may be possible for this to be accomplished without significant additional net cost to the company or the plan.

Myth #6 I can be comfortable that all of my plan investment options are performing in a cost effective and competitive manner because I have delegated this responsibility to competent investment professionals.

As a Plan Fiduciary it is your responsibility to select the investments options for your plan and to regularly monitor the cost and performance of those investments. This should be documented in writing and supported with appropriate data to demonstrate your regular oversight, including what changes if any, are recommended to the investment options menu.

It is also important to document and address any potential conflicts of interest that may arise from investment recommendations that are proprietary to the investment management firm. An Employer/Plan Sponsor can help to manage this responsibility by hiring an ERISA 3(38) discretionary investment manager who will accept full co-fiduciary responsibility.

Myth #7 My Record-keeper, Third Party Administrator, Custodian or Auditor will manage the day-to-day administrative transactions and functions so I can rely on their expertise that all activity is in compliance with Department of Labor and IRS rules and regulations.

In our experience, the above referenced service providers will perform activities according to the Service Agreements in place with the Plan Sponsor.

Unless they stipulate they can provide service guidelines, or minimum service standards, and demonstrate to you that your plan does, indeed, meet these standards the plan sponsor can have no assurances that every transaction is accomplished in a consistent, disciplined and non-discriminating process. The Process and Benchmarking of the activity is the main component needed by the service provider to give the Plan Sponsor the confidence that compliance issues do not arise regarding what could be construed as routine transactions. An Employer/Plan Sponsor may gain some comfort that the Administrative processes are being handled correctly if they hire an ERISA 3(16) co-fiduciary record-keeper.

Conclusion When sponsoring a qualified retirement plan, it is imperative that the decision makers identify those people or entities within the firm who will be deemed to be fiduciaries, along with their respective roles and responsibilities. It is certainly prudent and advisable to consider hiring competent third party service providers to assist the fiduciaries in managing their responsibilities. That said, the duty to monitor those service providers and ensure they are properly fulfilling their roles lies squarely with the plan sponsor. This oversight should not be put on auto-pilot. It requires that the plan fiduciary perform an appropriate level of due diligence in the hiring process. Also, plan fiduciaries should have requisite knowledge of the services and processes each service provider will render in order to monitor and assess their performance over time. At the end of the day, if a liability occurs, it is ultimately the personal responsibility of the plan sponsor to satisfy it.

Securities and Retirement Plan Consulting Program advisory services offered through LPL Financial, a Registered Investment Advisor, member FINRA/SIPC. Other advisory services offered through Advantage Investment Management (AIM), separate entity.

This material is provided for informational purposes only. It is not intended as authoritative guidance or legal advice and will not ensure compliance with ERISA or fiduciary responsibilities.

Consult with your own attorney for guidance on your particular situation.

Charles Auerbach, CFP速, ChFC, CLU, EA Wealth Strategies Group Charlie.Auerbach@lpl.com www.WealthStrategiesGroupTN.com

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

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• Reputation • Social responsibility • Workforce demographics and turnover • Cost and adequacy of current retirement benefits • Employer and employee tolerance for financial risk • Financial acumen of employees • Goal replacement ratio • Government benefits

A New Way To Provide

Pension Benefits

By STEVE RIMMER and ELIZABETH M. MACK

What’s going on with retirement benefits?

Our clients have been telling us for a while that the way they have been providing retirement benefits in the past is not how they intend to provide benefits in the future. We know that companies generally are looking to provide more flexibility in retirement offerings as employees have never been more diverse in terms of career path, financial and family circumstances: companies now recognize that retirement has different meanings and values to different members of the workforce.

Employers may also want to undertake a survey of the workforce to understand more deeply the variation in employee attitudes and needs toward retirement.

Segmenting the Workforce After a review of these factors, it will likely be the case that it makes sense to segment the population into different groups that have quite different needs, goals and also value to the employer.

A company might, for example, have both a small central function where retention of key industry knowledge and skills are vital and a much larger hourly workforce with high expected turnover. The latter group would be classified as one for whom the employer has a transactional relationship. The ultimate goal would be to employ these staff as cost-effectively as possible. For the transactional population, it may make sense to offer low DC benefits, no benefits (subject to non-discrimination testing), or perhaps participation in a union multiemployer DC plan.

Employers still believe that retirement benefits are critically important for attracting and retaining the right people. This translates to the desire to provide benefits that are affordable to the employer while also providing value to the employee. Employers see defined benefit (DB) plans as volatile, expensive and risky; similarly, they see a significant adequacy risk with defined contribution (DC) plans.

For the small central function, the transactional relationship would be inappropriate. The company needs to offer a different value proposition to reflect that the business benefits in having a stable and highly valued group of individuals to drive the business forward. Segmentation of the population is a common feature in many reward programs (e.g. bonus and equity plans) and there is a natural extension to the provision of retirement benefits.

The case for something new

Cue ‘New Paternalism’

Historically, pension benefits began as DB in the form of a percentage of final pay times years of service. Final pay plans changed into career average pay plans and have now largely changed to DC plans.

The concept of New Paternalism is investing in helping people make better decisions. It’s providing easy access to good alternatives for making long-term savings decisions, it’s providing financial education and support and it is empowering employees in a way that’s affordable.

The movement from DB to DC plans transfers all the risk from employers to employees – and not just the investment risk and longevity risk, but more significantly the adequacy risk (i.e. are contributions sufficient for employees to be able to retire). In most cases, employees are neither prepared nor capable of taking on this risk. This leads to the challenging question of who among the main stakeholders: employers, the employees, governments and financial providers have the incentive, capability, and far-sightedness to fulfil this growing gap in responsibility.

Understanding the retirement needs of your workforce Pension needs within a company will vary by employee population. To address this, a company should prioritize several conflicting factors: • Retention of key talent • Workforce planning and succession 28

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New Paternalism leverages the success that employers have found with their health and wellness programs and applies a similar strategy to retirement wellness.

Benefits for the employer include employee appreciation, higher savings levels by employees and “bigger bang for the buck.” Benefits for employees are numerous, as access to understandable and costefficient savings that comes with financial education empowers employees to take control of their retirement planning.

Comparing the nature of the retirement approach We find that employers can group pension benefits for their employees under three main headings: Old Paternalism, New Paternalism, and Transactional. A summary of the nature of these relationships is shown in the table below.

Nature of Retirement Approach

Old Paternalism

New Paternalism

Transactional

Type of pension offered

Defined benefit

Hybrid / Cash balance / High quality DC

Low DC / Cash / nothing

Employer responsibilities

Bear all of the risk

Provider selection

High Cost

Ensuring value for money

Competitive overall package

Employer actions

Cost / risk management Ensure sufficient return on investment

Determining who is responsible for:

Non-pension benefits Promote self-provision

• Education • Advice and support

Outcome for employees

Great pension provision for long service employees High retentive effect

All employees have opportunity to manage retirement savings / insurance

Managing retirement savings/insurance and adequacy gap

Cost / risk reduction

Cost efficiency

Danger of two tier population

Provider assessment

Exit strategy

Steve Rimmer Human Resource Transaction Services PriceWaterhouseCoopers Steve.rimmer@us.pwc.com www.us.pwc.com

Fending for themselves

Supported by employer in making complex retirement decisions Next steps

If population segmentation is possible, a survey of employees can illuminate the needs of the various groups and be highly instrumental in determining if the New Paternalism Model is more appropriate than a Transactional approach and for which groups of employees. In the war for talent, employers must spend their retirement dollars in a way that is both affordable for the employer and of good value to employees to maintain an edge in the current competitive landscape.

Elizabeth M. Mack, Manager Compliance with legislation / regulation

Financial wellness and communications what’s in-house vs outsourced

New Paternalism – how to succeed For employers wishing to follow a New Paternalism approach to the provision of retirement benefits there are four key tenets of success: • Access to and provision of suitable funds and vehicles • Adequate contributions and commitment from the employer • The ability for people to bring together their non-pension savings to create an overall long-term savings contract • Education and support for employees that is applicable to their current and future anticipated situations There are a number of ways employers can achieve success: • Sponsor long-term savings vehicles and other forms of financially related support • Develop a combined and integrated framework so that employees can see their savings and save in a coordinated and tax efficient way • Provide access to better value-for-money saving solutions and debt finance that employees can obtain themselves (the employer uses its bulk purchasing power) • Provide access to and encourage the use of education support advice and monitoring • Offer a range of modelling tools • Maintain overall governance for elements of the program – importantly the programmatic decisions remain the employee’s responsibility

Conclusion Employers must respond to the challenges of a workforce that isn’t prepared for the retirement savings responsibilities that are increasingly being transferred from their employers. As a result, the workforce potentially faces adequacy issues at retirement and employers face difficult choices if changes are not made quickly.

Human Resource Transaction Services Elizabethm.mack@us.pwc.com PriceWaterhouseCoopers www.us.pwc.com

Janet Pulliam Named a Top Attorney

by Chambers USA Pulliam advises clients on best practices to avoid litigation, internal investigations, employment contracts and separation agreements. Chambers (USA) report: “seasoned employment attorney…who is lauded for her honest and unvarnished advice.”

Pulliam is certified in mediation and conflict resolution in the health care industry by The American Health Lawyers Association from Hamlin University, MN, and received a certification in mediation from Northwestern University, Chicago, IL, as well, Certified Mediator for Arkansas Circuit Courts Civil Division.

She serves as Vice Chair of the ABA Health Law Sections, Physician Legal Conference, and as Vice Chair of the Executive Committee of the ABA’s Breast Cancer Task Force. She is a member of the American Board of Trial Advocates, the Best Lawyers in America and Arkansas, as well as, Super Lawyers for the Mid-South and is listed in Chambers USA 2008 - 2014.

www.HRProfessionalsMagazine.com

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5 Ways to Improve

Your Listening Skills

By HARVEY DEUTSCHENDORF

“ The most basic of all human needs is the need to understand and be understood. The best way to understand people is to listen to them.” ~ Ralph G. Nichols ~

We

tend to pay a great deal of attention to our ability to speak. From Toastmasters to an unlimited amount of courses, workshops and training available, we receive the message that speaking, especially public speaking, is a highly desirable, sought after skill. Public speaking is considered to be an essential ability for those who desire to advance their career in business and politics. In all the noise concerning the importance of speaking, listening is virtually ignored. Yet it can be argued that listening is every bit as important as speaking. Everyone desires to be heard and understood and we reward these people, who provide us with this opportunity, by our level of trust and loyalty.

Here are 5 ways to increase our listening abilities.

Be fully in the moment Have you ever been speaking to someone and find that they seem distracted by something and not really listening to you? Likely you have and found it annoying, frustrating and disrespectful. At that point you may have become angry or shut the conversation down.

When someone is speaking, it is vitally important to be fully present and in the moment with them. If something else is on your mind, like a call you have to make, or a text you need to answer, let them know, do what you need to and tell them you are now ready to listen. When listening, pay attention not only to the words, but the tone of voice, facial expressions and body language. This will give you information that will be as important as the words being spoken. A good way to let them know you are listening and really paying attention is to share how you are seeing their emotional state. You could say things like, “You look worried” or “You seem agitated” or “You really seem to be relaxed” when you become aware of the emotions you are picking up from them.

Pick up key points and let the speaker know you did Many people have trouble focusing on what someone is saying specifically if they speak for longer than a minute or so. It is easy for our attention to drift elsewhere and that we might find more interesting. If that’s the case, try to pick up a few key points in the conversation. After they finish talking, let them know that you were listening by mentioning the key points you heard them say and ask them to clarify anything that you did not understand. You will be forgiven for not being able to follow the whole conversation if the person talking believes that you made an honest effort and picked up some of what they were saying. If you are not sure of what they said, as you let your mind wander elsewhere, don’t try and bluff your way through and pretend you heard them. Instead admit that you lost them along the way and ask them to tell you again. They will appreciate your honest and sincere desire to hear them.

Practice active listening Most people are often thinking of how they are going to reply when someone is talking. Instead of doing that, try to focus completely on what the person is saying. Pretend that you will be tested on how much of what they were saying you heard and understood. A good practice exercise is to sit down with a family member or a good friend and try simply giving feed back to them; what you heard them say. You will notice that this becomes much easier to focus on their words when you aren’t worrying about how you will respond. Another good method that I have found is to be with people whose first language isn’t English. In my toastmasters club we have quite a few members who are fairly new and recent immigrants.

Their accent can make it difficult to understand forcing me to totally focus on what they are saying. Learning another language is another great way to encourage us to target and practice active listening.

Develop a curiosity, open mind, and desire for continuous growth People who are naturally curious see conversations as learning opportunities. They are always looking to discover or learn something new and are open to others as having the potential to teach them something. They are unimpeded to the idea that their own way of seeing things may not be the only, or necessarily the best way and don’t feel the need to always defend their own point of view or way of seeing the world.

These people are continuously looking for new wisdom moments and taking on new challenges. You will recognize these people as the ones who are signing up for courses, volunteering and trying new experiences throughout their lives. For them, listening to others becomes an easy and natural way to continue on their self-development journey.

Put yourself in their shoes Whether you agree or even have an interest in what they have to say, it is important to them. Imagine yourself in their situation, wanting only to have someone listen to you.

When they are speaking, make an effort to think of where they are coming from and why. Imagine what their life is like and what struggles they might be facing. People will appreciate that you made the effort to understand and really hear them. Every person has a story and we should have empathy for others especially when we don’t know what we don’t know.

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