November 2016 issue

Volume 6 : Issue 11 TM

www.HRProfessionalsMagazine.com

Employee Benefits Planning and Compliance

The Evolution of Compliance Standards

The Cost of Not Having A Financial

Wellness Program HHS Gets

Aggressive with HIPAA

Janie Warner Certified PPACA

Professional

2016 SHRM

Regions Insurance, Inc.

Benefits Survey Results Realizing the Future of

Big Data

In Employee Benefits – Part 1

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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Bringing Human Resources & Management Expertise to You

40%

of employees not confident they made the right benefits decision during open enrollment. www.HRProfessionalsMagazine.com Editor

Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher

The Thompson HR Firm, LLC HR Consulting and Employee Development Art Direction

Park Avenue Design Contributing Writers

R. Alex Boals Bruce E. Buchanan Jennifer S. P. Chang J. Bruce Cross Harvey Deutschendorf Jeanne Fisher Jeb Gerth Stewart Goff Alex Gramling Paula Hayes Mary Moffatt Helms Jennifer Kiesewetter Chuck Leddy Lisa S. Lewis Courtney Leyes Clifford Stephen 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. ©2016 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

WEB EXCLUSIVES

6 note from the editor 7 Profile: Janie Warner, Certified PPACA Professional 9 I’m More than a Problem-Solver, I’m an Innovator 40 Hiring Seasonal Employees for the Holidays: Ho Ho Ho or No No NO? 44 Book Look: The Innovation Formula 48 7 Ways Effective Leaders Handle Their Emotions 49 SHRM Online Certification Exam Prep Class

HTTP://HRProfessionalsMagazine.com /Exclusive

Employee Benefits

12 Evolution of Compliance Standards: More Complexity and Needs for Technology 26 Realizing the Future of Big Data in Employee Benefits – Part 1 28 2016 SHRM Benefits Survey Results 29 Employee Benefits Open Enrollment: HR Industry Experts and Research from SHRM 30 The Cost of Not Having a Financial Wellness Program 32 HHS Gets Aggressive with HIPAA: How Covered Group Health Plans are Impacted 36 No Compensation Plan? You Are Not Alone, Compensation and and That’s Not Good Performance Management

Next Issue

Employment Law

10 The Case for the Employee Handbook 13 Highlights of the Memphis Chamber HR Legal Summit 16 Workers Compensation in Tennessee: Past, Present, and Future 17 Timothy F. Kennedy Joins FordHarrison’s Memphis Office 18 Handling the Tough Investigations-When the Allegations Point to the Top 22 The Changing Legal Landscape of LGBT Rights in the Workplace 24 New EEOC Guidelines Signal Renewed Focus on Retaliation Claims 34 Pot Talk: Burning Questions Surrounding Marijuana Legalization and Employment 42 Highlights from the Fisher Phillips Seminar August 25 46 What’s Happening with the I-9 Form?

50 Ogletree Deakins Welcomes Kimberly Hodges

Industry News

8 SHRM-Memphis HR Excellence Awards 14 Highlights of the 2016 TNSHRM State Conference & Exposition 20 Highlights of the 2016 SHRMGA State Conference & Exposition 38 15th Annual ARSHRM ELLA Conference 47 Highlights of St. Lucie HR Association Meeting www.HRProfessionalsMagazine.com

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a note from the Editor

We know this is the time when you are planning your employee benefits for the coming year. So we are bringing you the 2016 SHRM Benefits Survey and a great article from SHRM on open enrollment that even includes a video! Jeanne Fisher with ARGI Financial Group contributed an excellent article on the cost of not having a financial wellness program for your employees. Jenny Kiesewetter provided a very informative article on HHS getting aggressive with HIPPA, and how your covered group health plans are impacted. We even have an article on the medical marijuana ballot initiatives in Arkansas, and how it affects the workforce there.

I know you will love the article by Alex Gramling on the future of big data in employee benefits. This is the first of a two-part article.

We will bring you Part 2 in our December issue.

Cynthia caught a chance to visit with Jeff Jenks, District Sales Manager with ADP Global Enterprise Solutions, during the TNSHRM State Conference in Memphis.

ADP sponsored the hospitality room at the Conference.

O

Our November issue is full of highlights from all the SHRM State Conferences where we had the honor to be media sponsors. You will enjoy highlights from the 2016 TNSHRM Conference & Exposition in Memphis, The 15th Annual ARSHRM Employment Law & Legislative Conference in Little Rock, and the 2016 SHRMGA Conference & Exposition in Augusta.

It is a pleasure to have Janie Warner with Regions Insurance on our November cover. I know you will enjoy reading about Janie’s career in human resources, which led her to her current position in the employee benefits division in Little Rock. Janie is a member of the Regions Client Resource Team and a certified PPACA professional. She consults with clients on all aspects of health care reform. Speaking of health care reform, the focus of our November issue is employee benefits planning and compliance.

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Next month our emphasis will be on compensation and performance management. I hope you will join us for our monthly complimentary webinar sponsored by Data Facts. Our topic will be aligning executive compensation aligns with business results.

As always, you will receive SHRM and HRCI credit. We are planning to bring you the latest hot topics on eliminating the traditional performance review, doing away with the “salary question” on job applications, the impact of the new FLSA overtime regs, and how the new EEO-1 report will work.

Best wishes for a lovely Thanksgiving season with your loved ones.

cynthia@hrprosmagazine.com @cythomps on Twitter

Janie on the cover

WARNER

JANIE WARNER, SENIOR HUMAN RESOURCES CONSULTANT Employee Benefits Division of Regions Insurance Janie Warner 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 the employee life cycle - including regulatory compliance, policy development, general HR management, training and benefits administration. She is also a certified PPACA professional and consults with clients on all aspects of health care reform.

Janie has more than 25 years of progressive experience in human resources, training and employee benefits. Prior to joining Regions Insurance, Janie served as chief administration officer for ABC Financial Services in Sherwood, Arkansas and Vice President, Human Resources for Arkansas Federal Credit Union in Jacksonville. Janie is also a nationally recognized speaker, presenting to various industry leaders on topics as diverse as leadership, volunteer board governance and, of course, human resources and employee relations.

Janie is a member and former board member of the Human Resources Management Association of Arkansas and a member of ARSHRM, Little Rock.

Janie holds a Bachelor’s degree in Psychology from Evangel University, Springfield, Missouri and a Master of Science degree in Human Resource Management from Golden Gate University in San Francisco. ď Ž

www.HRProfessionalsMagazine.com

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Awards Ceremony

The SHRM-Memphis Human Resource Excellence Awards will offer an exciting opportunity to recognize organizations both large and small as well as Individuals for outstanding human resource initiatives that significantly advance the field of Human Resource Management.

NOW OPEN FOR NOMINATIONS:

Tuesday, November 15, 2016 Breakfast 7:30 to 9:00 am Holiday Inn University of Memphis

www.SHRM-Memphis.org

SHRM-Memphis Human Resource Excellence Awards

WHY ENTER?

Keynote speaker: Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR

Showcase your

organization’s excellence in employee management—educate, motivate and inspire

Benchmark your

company across the industry

Celebrate your hard

work

The Thompson HR Firm LLC Editor/Publisher HR Professionals Magazine

Award Presentations:

HR Student of the Year HR Emerging Leader George Mabon HR Executive of the Year Memphis HR Champion Lifetime Achievement Award Email hrexcellenceaward@shrm-memphis.org with questions

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www.HRProfessionalsMagazine.com

I’M

MORE

THAN A PROBLEMSOLVER. I’M AN

INNOVATOR. Even SMALL CHANGES make a BIG DIFFERENCE. It takes time, planning, and relationships to accomplish tasks... and you never know what to expect. SHRM helps me come up with innovations that take the process forward.

Get more at shrm.org/more

Devon Delmonico Conley, SHRM-SCP

16-0808-HRPro

Vice President, Human Resources Ketchum

www.HRProfessionalsMagazine.com

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• Not tailoring your handbook to your business and specific business needs; • Giving your employees “rights”;

e1 th1 o1r1 f1 s1e1 a1 C1 he1 T1 D D 1 1 1 k 1 o o b d 1 n 1 a H 1 1Employee C1 C

By COURTNEY LEYES

“My business doesn’t need an employee handbook.” “ Having an employee handbook reduces my flexibility to run my business as I see fit.”

“My employees will just sue me if I fail to follow my employee handbook.”

These are a few concerns expressed to me by some clients (or future clients!) when I ask them whether they have an employee handbook that needs updating. However, as I explained to them, and how I will explain below, an employee handbook is a necessary tool for your business if you have more than one employee. Further, I will note that if you decide to have an employee handbook, it does not need to be 200 pages long; I will provide you with some core provisions that your employee handbook has to include.

Why You Need an Employee Handbook: From an Employee’s Perspective Employees like to have a handbook. And why is that? It clears up a number of issues for them – it answers any basic questions they may have (how many vacation days are they entitled to in their first year of employment?); it describes their benefits, if any; it identifies your expectations as an employer; and it outlines acceptable behavior. Essentially, it provides guidelines for your employees.

Why You Need an Employee Handbook: For Your Sake Employee handbooks can work for you. As I mentioned above, if you have more than one employee, you will want at least a very small employee handbook. And why is this? Having an employee handbook that has the key ingredients I discuss below will preserve YOUR rights as an employer; it will protect you against litigation; it will improve your unemployment experience rating; and it will provide a welcome to your organization. Essentially, if you have certain expectations outlined in your handbook, and an employee fails to meet those expectations, you can use those policies to protect you: against unemployment claims; workers’ compensation claims; EEOC charges; and/or threatened litigation, to name a few.

What Your Handbook Must Include As a labor and employment lawyer, I have seen it all with respect to employee handbooks – the good, the bad, and the ugly. I have seen employee handbooks which were a hodgepodge, created over the years, with ten different types of fonts and outdated policies and procedures. I have seen a two-page employee “handbook” that does not say much of anything. I have also seen an employee handbook that had not been updated since 2008.

If you decide to have an employee handbook (and I hope you will), then you will want to avoid these common mistakes I and other lawyers have seen: • Copying another employer’s policies (you have a unique business with your own unique issues); 10

www.HRProfessionalsMagazine.com

• Trying to solve every problem and cover every issue (this is the 200+ page employee handbook); • Not including “at-will” language; and • Having language that potentially violates the National Labor Relations Act, which would include language that could potentially chill your employees’ rights to engage in what is called “protected concerted activity.” [NOTE: For a more thorough discussion of this issue, please see my colleagues’ article “Handbook Apocalypse!” in the September 2015 issue of HR Professionals Magazine.]

These are just some of the mistakes we have seen.

So what should you include in your employee handbook? What are some basic policies that every employee handbook should include? ˆ AT-WILL STATEMENT. Every employee handbook should have a statement notifying the employee that his/her employment is “at-will,” meaning that either the employee or the employer may end the relationship at any time, for any reason. This is paramount, because it will prevent any employee from bringing a breach of contract lawsuit against you, in the event you fail to follow your employee handbook. ˆ EEO STATEMENT. Even if you do not have 15 or more employees (or 20, with respect to the Age Discrimination in Employment Act), you still may want to include this to show that you are an inclusive employer. If you have 15 or more employees, you are required to make employment decisions free of discrimination, so memorializing this position in a handbook is key.

Make sure you include all of the protected categories, all employment actions, and explain the consequences for failure to follow this policy, which includes the magic words: “may result in discipline up to and including immediate termination.” ˆ HARASSMENT POLICY. Again, even if you do not have 15 or more employees, you may still want to include a harassment policy as a means to protect your employees. A more collaborative and productive working environment is one that is free of harassment and bullying. If you do have 15 or more employees, this is your key defense to any harassment lawsuits involving co-worker on co-worker harassment. If you can show that you have a harassment policy in place, (including a reporting mechanism), and your employees are trained on this

policy, an employee failing to report this co-worker harassment can preclude his/her claim. ˆ REASONABLE ACCOMMODATION. If you have 15 or more employees and are subject to the ADAAA, you will want to include this in your handbook. This will outline your commitment to providing reasonable accommodations to those qualified employees with disabilities. This policy will also require employees who wish to request a reasonable accommodation to engage in the “interactive process” with you as an employer. Additionally, it will notify employees that you are not required to provide them with their specifically requested accommodation, if there are other alternative reasonable accommodations available. ˆ BASIC WORK RULES. This is self-explanatory and will provide guidelines to your employees regarding what is unacceptable behavior.

Make sure you are clear that the list you provide is not exhaustive and you have the right to amend these rules, if necessary. You will point to these rules in defense to claims for unemployment. If you decide to have a progressive discipline policy, you will want to include language that provides you with the flexibility to choose whatever level of progressive discipline is appropriate, including accelerating discipline to discharge. ˆ DRUG AND ALCOHOL POLICY. Do you have workers’ compensation insurance? Then having a comprehensive drug and alcohol policy is key. In both Tennessee and Mississippi, employers whose policies meet the certain requirements can obtain discounts on their insurance premiums, in addition to having access to the more employer-friendly laws.

on the handbook and provide them with a copy, what would be the point of having one? Below is what you should do once you have your employee handbook finalized and/or updated: 1. Provide your employees with a written notice announcing the issuance/ re-issuance of an employee handbook.

2. Conduct meeting(s) with your employees to cover the relevant changes and track your meeting attendance. Consider having your employees sign a “sign-in sheet,” acknowledging their attendance. Have them sign a new handbook acknowledgment, recognizing receipt and review of the handbook. Maintain that signed acknowledgment in your employees’ personnel files for at least one year after their discharge.

3. Your employees should get a copy of your new handbook and/or any new revisions.

4. Train your supervisors on your policies and how they should be applied.

This is especially important with respect to your EEO and overtime policies. What good are having those policies if your supervisors encourage work off-the-clock and/or inappropriate behaviors?

5. Follow your handbook! Most employment discrimination lawsuits stem from inequitable application of policies.

As always, if you have any questions about putting together an employee handbook and/or updating your current handbook, please see your employment lawyer.

Courtney Leyes, Attorney

ˆ WORKPLACE VIOLENCE POLICY. This, too, is very important to include in your handbook. It addresses your duty under the Occupational Safety & Health Act (OSHA) to maintain a reasonably safe workplace. ˆ OVERTIME AND TIMEKEEPING POLICIES. Every employer needs overtime and timekeeping policies. Having clear overtime and off-the-clock work (zero tolerance for working off-theclock) policies in place will provide you with the flexibility to discipline employees for engaging in unauthorized overtime work and/or working off-the-clock (remember you still have to pay your employees for this work). Additionally, having policies in place which require employees to review their paychecks and notify you if they were not paid for all hours worked can help protect you in wage and hour lawsuits in which employees claim that they were not paid for work performed off-the-clock.

Of course, if you are a larger employer, you will have to include an FMLA Policy and other policies in addition to those discussed above.

Even If You Have an Employee Handbook, You Will Need to Update It on an Annual Basis Employment laws are changing rapidly and frequently. The National Labor Relations Board is always changing its position as to what employers can and cannot do. Given this landscape, I would suggest re-examining your handbook on at least an annual basis. You should also update your handbook when your policies change.

So You Have a Handbook . . . Now What?

You’ve heard this before – your employee handbook is only as good as your training on it and ability to actually follow the handbook. Think about it: if one of the core objectives of an employee handbook is to inform your employees about acceptable conduct, yet you failed to train your employees

Fisher Phillips cleyes@fisherphillips.com www.fisherphillips.com

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2. Employee Classification The workforce has been evolving over the last decade, as well. Millennials are now the top-represented generation, according to Pew Research, and they have been at the forefront of a push for new ways of working that have directly impacted compliance. While today's workforce has become more flexible, with the growth of the gig economy and the 1099 workforce of independent contractors, the correct classification of workers has become a major HR and compliance challenge.

Evolution of Compliance

As the U.S. Department of Labor (DOL) highlights, the growing volume of worker misclassification "presents one of the most serious problems facing affected workers, employers and the entire economy," and the DOL has moved aggressively against organizations that don't have their compliance practices in order.

Standards:

More Complexity and Needs for Technology

T

By CHUCK LEDDY

he evolution of compliance standards over the last decade has been driven by massive, complex transformations in technology and regulatory requirements, changes that have made the effective management of risk

a competitive advantage in all markets. In an age where communication happens across the globe in real time, where everyone is hyper-connected, a flat-footed approach to compliance is no longer possible.

The duties of compliance leaders go beyond ensuring their firms and employees follow the rules of the road, they're also responsible for protecting the reputation of the organization and monitoring bottom lines. With that in mind, it's really no surprise that, for an increasing number of organizations, compliance leaders are becoming key strategic C-Suite partners.

As an Ernst & Young report explains, "No longer is defensive activity sufficient; increasingly compliance teams are called on to look ahead, anticipate risks and support operating businesses to help them perform better."

Here's a look at how the evolution of compliance standards has unfolded in three HR-related areas:

1. Health Care/The Affordable Care Act Health care and its related costs have long been a top priority of HR leaders. According to a report from the Society of Human Resource Management (SHRM), rising health care costs were the top concern for HR professionals in 2005, 2007, 2009 and 2011. Since the Affordable Care Act (ACA) was passed in 2010, health care has increasingly become a top compliance concern, as well. The ACA is so detailed that many organizations have found themselves scrambling to keep up with their ongoing ACA compliance efforts.

According the ADP Research InstituteÂŽ 2015 Midsized Business Owners Study, "41% of the survey participants ranked the volume of government regulations as their top concern, and only one quarter were extremely confident that their organizations understand all of the new ACA regulations."

As the ADP Research Institute points out, managing exchange notices, for example, has introduced "a complex web of paperwork, regulations, and processes ... How you respond to Exchange Notices makes all the difference between remaining compliant with Affordable Care Act (ACA) regulations, and facing significant penalties." The ACA and its reporting requirements have forced compliance leaders and their organizations to make greater investments in technological capability to aggregate relevant, compliance-related data and organize it for ACA reporting. The unprecedented level of involvement necessary to manage the ACA, and its multi-year rollout, has been a major driver of investments in compliance.

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As the National Law Review indicates, "the distinction between independent contractors and employees carries more burdens, consequences, and decisions than ever before. In addition to the tax consequences, there are health care compliance consequences, workers' compensation consequences, and even intellectual property consequences."

3. Technological Advances/Big Data With so many data-driven demands placed upon the compliance function, investments in compliance-related systems should remain a major strategic priority, including the integration of those systems across the organization in order to support information-sharing, analysis and databased decision-making. Ernst&Young interviewed chief compliance officers (CCOs) at 20 global companies. Of them, 77 percent described their compliance systems as "basic," and most of them reported not having integrated systems in place to support their compliance function.

The use of Excel spreadsheets remains far too prevalent in an age where big data is more accessible, affordable and scalable than ever.

Because the recent evolution of compliance standards has placed even more strenuous demands on organizations to remain compliant, the need for technical vigilance has never been more apparent. By incorporating a more strategic focus and making the necessary technology investments, you should be able to get ahead and stay ahead of the growing regulatory requirements.

As seen on Spark, powered by ADP (adp.com/spark) Sign up for Spark, powered by ADP, for more insights that can help you ignite the power of your people (adp.com/spark)

Boston-based Chuck Leddy is a freelance journalist who has contributed regularly to The Boston Globe and Harvard Gazette. He also trains Fortune 500 executives in business-communication skills as an instructor for EF Corporate Language Solutions in Cambridge, MA.

presents:

Small Business Council Presented by:

presents:

2016 HR LEGAL SUMMIT

October 13 at Memphis Botanic Garden

HR LEGAL SUMMIT

Hot Topics: The Employment and Labor Laws You Need to Know Now

Through four interactive sessions on the latest employment laws and hot topic issues - and a panel discussion with experts in a variety of fields - you will find out what you need to know to protect your business. This Summit is for business owners, attorneys, human resource professionals and anyone who manages employees. *This course provides 3.25 CLE credits. SHRM & HRCI credits are pending.

Thursday, October 13, 2016 | 7:00 - 11:30 AM

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Memphis Botanic Gardens | 750 Cherry Road | Memphis, TN 38117 RSVP: Lauren Loeb participants - lloeb@memphischamber.com or 901-543-3508 1 Phil Trenary, President & CEO of the Greater Memphis Chamber, welcomed to the HR Legal Summit.

2 & 3 Judy Bell, Judy Bell Cost: $60 - members | $70 - prospective members | $110 - CLE credit

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Consulting; and Mike Stavropoulos, HR-MPact; were emcees for the event. 4 Maureen Holland, Holland and Associates PC, presented “Legal Triage: “How to ‘Stop the Bleeding’ on Employees’ Discrimination & Harassment Claims.”

FMLA Leaves of Absence FLSA/Collective Actions

Small Business Council Title Sponsor:

Summit Topics:

Pregnancy Discrimination Religious Discrimination Gender Parity Issues

Protected Group Discrimination Social Media & Concerted Activity Trade Secrets & Non-Competes

SBC Program Sponsor:

SBC Event Sponsors:

s: The Employment and Labor Laws You Need to Know Now 5

HR Legal Summit Event Sponsors:

Corporate Sponsors:

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5 Jeff Weintraub, Regional Managing Partner with Fisher Phillips, discussed “Concerted Activity Apocalypse, Social Media/Concerted Activities.”

6 Lisa Lichterman with Littler Mendelson PC led a discussion on “FMLA Leaves of Absence, Help! Leave Requests Seem to be Multiplying: Managing Common FMLA Mistakes.” 7 Lisa Krupicka with Burch, Porter & Johnson PLLC presented “How Can I Get This Right if They Keep Changing the Rules? Wage & Hour Compliance in the Year 2016.”

ions on the latest employment laws and hot topic issues - and a panel discussion elds - you will find out what you need to know to protect your business. This rs, attorneys, human resource professionals and anyone who manages employees.

redits. SHRM & HRCI credits are pending.

ay, October 13, 2016 | 7:00 - 11:30 AM

Botanic Gardens | 750 Cherry Road 8 | Memphis, TN 38117 9 10 11 uren Loeb - lloeb@memphischamber.com or 901-543-3508 8 Kathy Kores, EEOC, discussed “The EEOC Gender Parity Initiative.” 9 Latasha Dexter, University of Memphis, presented “Pregnancy Discrimination.”

- members | $70 - prospective members | $110 - CLE credit

nsor:

10 Imad Abdullah, Regional One Health, led a discussion about the “ADAAA.” 11 Frank Day, FordHarrison, presented “Religious Discrimination.”

Summit Topics:

Pregnancy Discrimination Religious Discrimination 12 Cynthia Y. Thompson, Editor Gender Parity Issues

| Publisher of HR Professionals Magazine, was the moderator for the Panel Discussion employment and SBC on Program Sponsor: labor laws you need to know about.

Protected Group Discrimination Social Media & Concerted Activity Trade Secrets & Non-Competes SBC Event 12 Sponsors:

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13 Rodrick Holmes, Constangy, Brooks, Smith & Prophete LLP, discussed “Trade Secrets & Non-Competes.”

www.HRProfessionalsMagazine.com

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The law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz were pleased to be the exclusive sponsor of Legal Day at the Conference on September 14.

You can register at www.tnshrmconf.com Keynote speakers Ann Rhoades and Sam Glenn.

Please visit the website for the full conference agenda.

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1 (L-R) Whitney Harmon, Dena Sokolow, andbe Jennifer led a panel discussion during the opening general session on the current status of the new FLSA A fun social event will heldKeller at the LEGAL ONLY OT changes, including what employers should be doing now to prepare. 2 Jonathan Hancock presented, “How to Fix Potential FLSA Violations: Voluntary World’s Largest Bass Pro Shop located in Audits and Back Pay Programs.” $300 before 4/30/2016 Pre Early Bird Special:

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$425 by512/31/2015 6 $475 Early Bird Special: 5/1/2016 - 8/31/2016 The Host Hotel: Sheraton Downtown Hotel 3 Tim McConnell spoke The on “When to Memphis Write, When to Speak and When to Say Nothing at All!” 4 Ben Bodzy’s topic was “Top 10 Clauses to Negotiate in $575 was presented by Robert Divine. 6 Robert Group: Society for HumanAgreement.”

Resource Management, Memphis SHRM Afterin 8/31/2016: Your Next Collective Bargaining 5 “Immigration: Developments Sponsorship and Verification” 4Pre Early Bird Special:

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Dates: 14 Sept - 16Accommodation Sept Williams Event presented “Leave as an After FMLA Leave Expires” during a concurrent session.

Room Block: $142/night The cut-off-date to register under the ROOM BLOCK is August 14, 2016 by 5:00pm.

The Hotel Booking Number is 800-325-3535

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**Event Ticket - $95 for each additional guest (Exhibitor Reception or Thursday Night Event)

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7 David Gevertz spoke on “The Latest Trends, Tips and Tactics for Accommodating the Disabled” during a concurrent session. 8 Steve Goodwin discussed “Recent Actions by the National Labor Relations Board that Affect Non-Union Companies” during a concurrent session. 9 “Technology & Cybersecurity Issues for Employers” was the topic discussed by Zachary Busey and Jenna Bedsole during a concurrent session.

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10 10 The 2016 TNSHRM State Conference Committee

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11 Tisch McDaniel, 2016-2017 President of SHRM-Memphis. 12 East Tennessee SHRM members visited between sessions. 13 Ann Rhoades, one of the founding leaders at Jet Blue, was the keynote speaker at the opening general session. Ann spoke on culture and engagement.

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14 Sam Glenn, “The Attitude Guy,” was the keynote luncheon speaker on Thursday. His topic was employee engagement – positive attitude. 15 Kimberly Medlock spoke on “Work Smarter with Outlook” during a concurrent session. 16 Terry Murphy was the closing general session speaker. Her topic was “Generational Communication.” 17 Tiffany Coursey, SHRM-SCP, SPHR, MTSHRM 2016 President, invited TNSHRM members to Nashville for the 2017 TNSHRM State Conference and Exposition.

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18 Attendees enjoyed the view of the Mississippi River from the balcony of the Bass Pro Shop at the Networking Party. 19 Staff members of the Tennessee Department of Human Resources in Nashville with Cynthia Thompson.

www.HRProfessionalsMagazine.com

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Worker’s Compensation in Tennessee: Past, Present, and Future

By LISA S. LEWIS

In 2016, the Tennessee legislature amended Tennessee’s workers’ compensation law, revising the major reforms of the 2013 Reform Act. This article provides a brief overview of the 2013 Act and the 2016 amendments, and looks at a second major overhaul potentially on the horizon.

Workers’ Compensation Reform Act of 2013 The Reform Act took effect on July 1, 2014, for injuries occurring on or after that date. The Act overhauled the former legislative framework for workers’ compensation claims, including three particularly significant substantive components. First, the Act rejected the former version’s call that the statute be construed remedially in favor of the injured worker, and instead instructs that it be “construed fairly, impartially, and in accordance with basic principles of statutory construction.” Second, employees now have a higher burden of proof regarding causation. An employee must prove that an injury or aggravation of a pre-existing condition arose “primarily” out of and in the course of employment, meaning that the injured worker’s employment contributed more than 50% percent in causing the injury. Third, the Reform Act modified the calculation method for benefits, which is now based on an impairment percentage of the “body as a whole,” rather than preset classifications of injuries. Procedurally, the Reform Act created an administrative court system, consisting of a trial court and an Appeals Board. Appeals from the Appeals Board generally go to a panel of the Tennessee Supreme Court, known as the Special Workers’ Compensation Appeals Panel.

According to the 2016 Annual Impact Report by the Bureau of Worker’s Compensation, it is still too early for the 2013 Reform Act to have had a significant impact on employers’ insurance rates, due to the time lag in the calculation of premiums. By other measures, however, the Reform Act appears to be achieving one of its primary stated goals: increased efficiency by reducing the average time it takes to resolve a claim. For example, the Bureau reports that the average number of weeks from the date of injury to the conclusion of a claim has dropped from 95 weeks, in 2012, to 38 weeks. Therefore, the Act can claim some success thus far.

2016 Amendments This year, the legislature revised Tennessee’s workers compensation laws again, although to a much lesser degree than in 2014. Most of the amendment became effective on July 1, 2016, for injuries occurring after that date. The 2016 amendments include five noteworthy changes.

1 Shorter Notice Period for Workplace Injuries First, the 2016 amendments cut the Reform Act’s notice period in half, from 30 days to 15 days, for workplace injuries. For claims based on occupational diseases, however, an employee still has 30 days after the “first distinct manifestation” of the disease to give notice. Further, as before, the 30-day notice requirement does not apply to claims for total disability or death due to asbestos-related disease or coal worker’s pneumoconiosis. Finally, as to both workplace injury claims and occupational disease claims, an employee may still overcome untimely notice due to “reasonable excuse.”

2 Limited Legal Advice Permissible by a Licensed-Attorney Ombudsman While the 2013 Act barred any ombudsman from giving advice to a self-represented party, the 2016 amendments allow ombudsmen who are licensed attorneys to give “limited legal advice,” although that term has not yet been defined.

3 Slight Increase in Weekly Benefit Rates The amendments increased the minimum weekly benefit rates for temporary disability benefits and permanent disability benefits by a little over $4, and increased the maximum weekly rate for temporary and permanent disability benefits by about $30.

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4E xpansion of and Limitations on Additional Attorney’s Fees The Reform Act originally allowed for the recovery of additional attorney’s fees where the employer failed to provide health care services, supplies, or medicine required in a settlement or judgment. Amendments in April 2016 expanded this provision to cover health care services, supplies, or medicine ordered in an expedited hearing order or compensation order.

Further, the July 2016 amendments added a second, separate trigger for additional fees and costs—the wrongful denial of benefits found to have been owed at an expedited or compensation hearing. At the same time, however, the July amendments put an expiration date on the entire additional-fee provision, eliminating the availability of such fees altogether for injuries occurring after July 1, 2018.

5 Drug Free Workplace Finally, the law containing the Reform Act amendments also amended Tennessee’s Drug Free Workplace law by eliminating repeat, annual training for existing employees as pre-requisite to the annual renewal of an employer’s drug-free workplace certification.

Another Overhaul Coming?

Fresh off the heels of the Reform Act and its revisions, some law makers are at it again! Legislators in both chambers have drafted a bill that, if passed, would be the most significant overhaul of Tennessee’s workers’ compensation law to date. At its core, the bill, known as the Tennessee Employee Injury Benefit Alternative, or “Tennessee Option,” would give businesses the option to enroll in coverage governed by the state’s current laws, or opt out of the current system by obtaining private coverage or through self-funding. Some of the benefits limits in the Reform Act and Option are similar; the key distinction between the two rests on the significant discretion the opt-out bill gives an employer to establish the standards governing an employee’s receipt of benefits.

For example, the opt-out legislation allows employers to determine the required notice period. In Texas and Oklahoma, the only states that currently have an opt-out system, many opt-out employers have 24-hour notice periods; others, by the end of a shift.

Despite support from some businesses and interest groups, the bill faces an uphill battle on many fronts, including its similarity to Oklahoma’s law, which is slowly falling apart in the courts, and opposition from groups who might otherwise support such reform, but feel that the Reform Act should be given more time to play out. Nonetheless, employers settling into the recently redesigned workers compensation landscape in Tennessee might do so noting that another revamp may come sooner than expected.

Lisa S. Lewis, Associate Ogletree Deakins lisa.lewis@ogletreedeakins.com www.ogletreedeakins.com

Timothy F. Kennedy Joins FordHarrison’s Memphis Office as Counsel MEMPHIS - FordHarrison LLP, one of the country’s largest management-side labor and employment law firms, is pleased to announce that Timothy F. Kennedy has joined FordHarrison’s Memphis office as Counsel. Tim comes to FordHarrison from the employee benefits and executive compensation practice group of Morgan, Lewis & Bockius LLP.

ABOUT FORDHARRISON

“We are glad to have Tim join our team,” said Louis Britt, Office Managing Partner of FordHarrison’s Memphis office.

“His years of experience and commitment to client service make him an asset to the firm.”

represent employers in labor, employment, immigration

Tim focuses his practice on advising clients on legal issues pertaining to retirement plans, health and welfare benefits, executive compensation arrangements, and fringe benefits. His experience includes assisting employer in complying with the Internal Revenue Code and the Employee Retirement Income Security Act (ERISA) and advising employers on best practices in the design, implementation, and administration of employee benefit plans. Tim routinely drafts and reviews employee benefit plans and executive compensation agreements, negotiates employee benefit plan service provider agreements, prepares Internal Revenue Service (IRS) determination letter filings and voluntary compliance program submissions, and counsels employee benefit plan fiduciaries on their duties under ERISA. He previously served as an Assistant Regional Counsel in the Office of the General Counsel of the U.S. Social Security Administration, where he participated in the agency’s state and local government entity coverage compliance efforts, defended agency disability decisions in federal district and circuit courts, and represented the agency in employment matters before the Merit Systems Protection Board and the Equal Employment Opportunity Commission. Tim’s admission to the Tennessee Bar is pending.

FordHarrison is a U.S. labor & employment law firm with more than 200 attorneys in 29 offices, including four affiliate firms. The firm is committed to providing clients with the "right response at the right time" in managing their workforce. FordHarrison attorneys and employee benefits matters, including litigation.

Through its membership in the global employment law firm alliance, Ius Laboris, FordHarrison provides clients that have multinational operations with a broad range of services related to labor and employment law in 49 countries throughout the world. For more information on FordHarrison, visit fordharrison.com. To learn more about Ius Laboris, visit iuslaboris.com.

Disclaimer: The information contained in this material is not intended to be considered legal advice and should not be acted upon as such. Because of the generality of this material, the information provided may not be applicable in all situations and should not be acted upon without legal advice based on the specific factual circumstances. ###

Americas Labor & Employment Law Conference Managing a Workforce in North America, South America, and Beyond December 8-9, 2016 W Hotel South Beach, Miami Employers with an international workforce in the Americas and beyond, face a maze of employment regimes to navigate themselves through. This conference, for in-house counsel and HR professionals alike, will address some of the key concerns of multinational employers including employment issues in Canada, Mexico, and throughout the Americas.

For more information and to register, visit miami.iuslaboris.com.

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Handling The Tough Investigations – When The Allegations Point To The Top

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By MARY MOFFATT HELMS

What do Fox News, Hewlett-Packard, American Apparel, Pennsylvania State University, the Wounded Warrior Project, and the iGate Corporation have in common? These entities have experienced allegations of improper conduct on the part of high-ranking employees and were required to conduct an internal investigation of allegations ranging from sexual harassment to child sexual abuse.

Most experienced Human Resource employees understand the need to conduct investigations in response to employee, customer, and/or vendor complaints. However, when a complaint alleges inappropriate conduct on the part of the owner, a CEO, CFO, Company President, Executive Director, Board Member or other upper management level position, the investigation quickly presents unusual, and often unanticipated, challenges. All investigations of inappropriate conduct are sensitive by their very nature and require careful planning, and this article will address key considerations for those situations when the accused happens to be at (or near) the top of the organizational chart.

I. Laws and Policies Which May Necessitate Investigations The laws which may prompt internal investigations have potentially broad application in the workplace. Some of the more common ones include the following: (a) financial accountability laws, such as the Sarbanes-Oxley Act and the Dodd-Frank Act; (b) employment discrimination laws, such as Title VII of the Civil Rights of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act and state law counterparts, such as the Tennessee Human Rights Act; (c) safety laws and regulations, such as the Occupational Safety and Health Act of 1970; (d) internal policies such as conflict of interest, codes of conduct, anti-violence, antiretaliation, whistleblower, and similar policies regarding standards of conduct in the workplace; and (e) allegations of criminal misconduct such as embezzlement, fraud, or theft. It is worth noting that some laws, such as the Fair Labor Standards Act, include the potential for even criminal penalties to be brought against individuals such as high level executives.

II. Investigation Basics Do Not Change - But Tread Carefully Although the accused may be high-ranking, the basic investigation principles still apply in many respects as the purpose of the investigation is to ascertain the facts and determine whether action should be taken in response to the complaint.

Generally, the complaining party should be interviewed first. Where the complaint is made anonymously, it is not possible to interview the complaining party but the information provided which has prompted the investigation should be documented and where it is possible to verify any of the factual allegations, this should be done before any personal interviews. For example, if an anonymous complaint alleges that the Executive Director of the company has embezzled cash by way of various bank deposits over the last three (3) years, it would be possible to gather bank statements and cash receipts for review to determine if there were any apparent discrepancies. Likewise, if an anonymous complaint alleges an upper level executive is having an inappropriate relationship with a subordinate, this could be preliminarily investigated by quietly observing the executive and subordinate in their daily activities at the workplace.

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While all investigations should be both prompt and thorough, because of the potential for highprofile consequences such as adverse public relations, publication in the media, etc., the investigation of a company executive may take longer because of the need for discretion throughout the process.

This is not to suggest that allegations of inappropriate conduct are deemed more or less significant depending on the employment position of the accused, but simply to recognize the reality that the consequences of an investigation regarding a CEO or owner can be extremely significant to the entity.

The extent of any third-party witness interviews must be considered very carefully, as well as the level of disclosure regarding the allegations. The investigation may need to be conducted in such a way that some of the actual allegations are kept confidential because once allegations of inappropriate conduct regarding an owner or executive are disclosed the potential for gossip, rumors and general publication both inside and outside the company must be considered, as such disclosures can have devastating consequences to both the company and the accused individual. Thus, the circle of individuals interviewed and involved in the investigation, and the level of information shared with those interviewed, should be carefully considered and kept to a minimum.

III. The Investigation Team Most organizations should have one or more persons who are designated to lead investigations and who are trained in doing so.

However, when the allegations involve a high ranking executive, officer or owner, the impartiality of an internal investigator might be questioned and it may be best to assemble a team of individuals carefully selected for the process. For example, the Director of Human Resources could be hard pressed to interview the CEO with objectivity, particularly if that individual reports to the CEO. Thus, it may be best to engage an outside third-party to conduct the investigation, with input and guidance from Human Resources.

In these sensitive circumstances, the organization’s employment attorney should be consulted early on to provide guidance on the investigatory process and strategy and to assist in selection of the third party investigator. In addition, the company's attorney should assist in preparing any statements or responses to any outside inquiries, such as the accused's attorney, and/or the media.

Caution should be taken with respect to either the company's regular outside attorney or in-house attorney actually conducting the investigation though, because if the matter eventually leads to

litigation, all members of the investigation team may be called as witnesses and an attorney may not serve as both advocate and witness in that same proceeding. The company's regular outside attorney and in-house attorney should certainly be made aware of the complaint and provide input and advice, but any attorney involved in the investigation must consider and discuss with the company steps to ensure preservation of the attorney-client and attorney work-product privileges, which is especially important if the accused is in the upper echelons of the company.

Implicit (Unconscious) Bias

A New Look at an Old Problem

Friday, November 18, 2016 • 8:00 a.m. – 5:00 p.m.

If the matter under investigation eventually leads to litigation, the members of the investigation team will likely be called as witnesses. Because the members of the investigation team may be called as witnesses, investigation team members should be unbiased and should present as solid, credible witnesses.

If the accused reports to a Board of Directors, including a member (or two) from the Board on the team is worth considering because that group will most likely make the final decision on an action taken in response to the complaint. If the Board is not somehow represented in the investigation process, the investigation team may be required to "convince" a reluctant Board with respect to its findings at the conclusion of the investigation.

In addition to the witness interviews, the investigation may include a search for any pertinent electronically-stored documents, such as e-mails, and steps should be taken to preserve any relevant documents. By the same token, electronic communications about the accused, the allegations, and the complaining party should be kept to a minimum during the investigation process because of the potential for serious consequences in the event such a communication falls into the wrong hands, is accidentally sent to the wrong person, etc. In addition, an owner, CEO or other executive will likely have broad access to the company computer systems such that special steps may be required to maintain the confidentiality of these materials.

Printed investigation materials should be kept in a separate investigation file, separate and apart from personnel files, so it can be maintained and accessed as needed, but is not produced when, for example, the organization receives a subpoena requesting the personnel file of an employee who was involved.

The investigation team will need to come to a conclusion regarding the allegations, taking into consideration the information gathered during the process. However, if the allegations are substantiated, it is difficult to consider the use of "routine" corrective action when the accused happens to be an owner, or the CEO and the determination of any disciplinary or remedial action will have to be handled differently, taking into account the accused's position and the overall circumstances. Hopefully, the accused executive will appreciate the significance of the situation and work cooperatively with the investigation team to develop an effective remedial action plan in a manner that effectively addresses the conduct and best serves the company's interests.

University of Memphis Cecil C. Humphreys School of Law

Please join us as we bring together nationally recognized experts to explore unconscious bias.

Topics will include: Introduction to the Concepts and Controversy Surrounding Implicit (Unconscious) Bias The Practical Implications of Bias in Our Justice System, the Media and the Worlds of Business and Education Where Do We Go From Here: Solutions and Opportunities To register, go to the CLE link on www.memphisbar.org Approved for 8.00 SHRM PDCs, 8.00 HRCI recertification credits pending.

Sponsors and Supporters

IV. Conclusion Every complaint regarding workplace conduct is unique and sensitive workplace investigations involve a number of challenging issues. As seen in some highly-publicized cases, a poorly planned or ineffective investigation may be worse than no investigation at all. An effective workplace investigation can be very challenging and there is a great deal to consider as the investigation progresses. This article should be considered only a primer on a topic that could easily fill volumes but the foregoing strategies present a good starting point to help ensure that a company's internal investigation procedures are effective even when the allegations point to the top.

Mary Moffatt Helms, Attorney mmhelms@wimberlylawson.com www.wimberlylawson.com www.HRProfessionalsMagazine.com

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2016 SHRM GEORGIA STATE CONFERENCE

September 18-20

Augusta Marriott Convention Center

Meet the SHRMGA State Council

Sally Roberts, SHRM-SCP Rushe Hudzinski, MBA, Dorothy Knapp, SHRM-SCP SHRM Georgia SHRM-SCP, GPHR SHRM Field Services State Council Director SHRM Georgia State Council Director Director-Elect

Judy Spencer, MBA, SHRM-SCP, SPHR SHRM Certification Chair

Paula Kitchens, SHRM-SCP, SPHR Membership Director

Craig Southern Programs Director

Susan Courtland, PHR, SHRM-CP Secretary

Kenya Jones Treasurer

Martine J. DeVoe Communications Chair

Eunice Glover College Relations

Sarah Lamar Government Relations

Greg Cristie Foundation Director

Sherry Low-Cooke District 1 Director

Teela Jackson District II Director

Judy Giddings, SHRM-CP, PHR District III Director

Julia Shadwick, SHRM-CP, PHR District IV Director

Jeff Grant, SHRM-SCP, SPHR District 5 Director

Jeanne Artime SHRM-Atlanta CEO

Lisa Hughes, GPHR, SHRM-SCP, SPHR SHRM-Atlanta President

April Asher Greater Henry SHRM President

Claudia Cooper Greater Henry SHRM President-Elect

Ben Tunnell Northwest Georgia SHRM President

Gabriel Lord, SHRM-CP, PHR Southwest Georgia SHRM President

Lisa Ward, SHRM-CP, PHR, Margie Watson, Athens Area SHRM-SCP, SPHR SHRM President Chapter Management Professional Columbus SHRM

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Greg Short, SHRM-SCP, SPHR Past State Director

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Curtis Woody, MBA, SHRM-SCP Statesboro Area SHRM President

Tami Poe, SHRM-CP, PHR Cheri Sale, SHRM-SCP, SPHR West Georgia SHRM Savannah Area SHRM President President

Stephanie Thompson, SHRM-CP, PHR Middle Georgia SHRM President

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1 Sally Roberts, SHRMGA State Director, welcomes participates to the 2016 SHRMGA Conference in Augusta. 2 Steve Browne, Excecutive Director of HR for LaRosa’s Inc., kicked off the conference on Sunday afternoon. Steve spoke on “Brand Name HR.” 3 Marty Martenson, Managing Partner with Martenson, Hasbrouk & Simon; was the opening general session speaker on Monday. His topic was “The Current Legal Landscape.” 4 Col. Lee Ellis, President, Leadership Freedom LLC,; was the lunch and general session speaker on Monday. Col. Lee received several standing ovations during his presentation on “Superheroes Sail on Seven Seas.” 5 “Let the Force Be With You: Jedi Training for Professionals,” was the topic of the Monday afternoon general session presentation by Dethra Giles, Executive Coach, HR Strategist, Author and Chief Bridge Architect at ExecuPrep.

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6 Mike Aitken, SHRM VP of Government Affairs, was the opening general session speaker on Tuesday morning, Mike’s presentation was, “The Washington Outlook.”

7 The Tuesday afternoon closing general session speaker was Jim Link, CHRO, Randstad North America. 8 Ed Hurley-Wales, ADP VP Market Diversity Corporate Headquarters; and Brock Daniels, SHRM-SCP, SPHR, ADP Senior Director and HR Business Partner Augusta Solutions Center; spoke on “How Business Resource Groups Can Transform Your Diversity and Inclusion Strategy.” 9 Dr. Jeff Pon, Chief Human Resource and Strategy Officer for the Society for Human Resource Management, spoke on some of the exciting new initiatives at SHRM.

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10 Megan Neuman, Mercer Senior Associate, and Bob Ditty, Mercer Partner; presented “Wellness as a Cost Containment Strategy.” 11 Sally Roberts, SHRMGA State Director, received the SHRMGA Legacy Award in recognition for her service to SHRMGA. (L-R) Craig Southern, Teela Jackson, Sally, Eunice Jackson, and Tom Darrow.

12 Rushe Hudzinski, 2016 SHRMGA Director-Elect, announces the 2017 SHRMGA Conference venue will be Jekyll Island, Georgia.

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13 Sally Roberts, SHRMGA State Director; and Tom Darrow, 2016 Chair of the SHRM Foundation Board of Directors; announce Georgia SHRM State Council was recognized as a “Top 10 SHRM Foundation Fundraising State Council.” 14 and 15 Attendees enjoyed the Superhero Soiree on Monday evening.

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171 Legal Landscape The Changing

of LGBT Rights in the Workplace

O

VER THE PAST TWO DECADES, there has been

a steady shift in the United States in social sensi-

tivity to sexual identity issues and the lesbian, gay, bisexual, and transgender (LGBT) community. The legal landscape has shifted as well to account for new

social norms and how these norms are addressed legally. One recent waymark in the development of the law was the 2015 Supreme Court decision in Obergefell v. Hodges which recognized same-sex marriage as a constitutional right, a historic moment that captured the attention of the entire country.

There have been steady similar developments in the manner in which civil rights laws are being amended or interpreted to address LGBT rights in the employment context. These developments have not, however, generated the same high-profile media coverage as Obergefell. Multiple states and municipalities have adopted sexual orientation and/or gender identity as protected classes under state employment rights laws, and while Title VII (the statute that prohibits discrimination based on gender) has not been amended by Congress to include sexual orientation or gender identity as protected classes, federal courts are more frequently asked to broaden Title VII’s gender protections to cover the full panoply of LGBT rights. One reason this may not have garnered greater public attention is that corporate HR policies have tracked the social change more closely than federal law. Fortune 500 companies and many other large employers have been implementing policies and procedures that protect LGBT rights in the workplace for years. That said, in states without employment laws that directly address LGBT issues, corporate policies exclusively governed disputes over perceptions of discrimination or harassment in the workplace based on LGBT characteristics.

It might not have made front-page news, but federal law is developing in the form of expanded interpretations by federal courts of what discrimination “based on gender” means.

On March 1, 2016, the United States Equal Employment Opportunity Commission (EEOC) announced the filing of its first two sex discrimination lawsuits based on sexual orientation brought under Title VII of the Civil Rights Act of 1964. EEOC 22

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By JEB GERTH

General Counsel David Lopez stated that the lawsuits underscore the Commission’s commitment to “ensuring that individuals are not discriminated against in workplaces because of their sexual orientation. While some federal courts have begun to recognize this right under Title VII, it is critical that all courts do so.”

While acknowledging that Title VII does not explicitly include sexual orientation or gender identity, the EEOC takes the position that these characteristics are protected classes under Title VII based on a sex-stereotyping theory. The Commission has stated that because sexual orientation “cannot be defined or understood without reference to sex” it is “sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”

The EEOC has also stated that discrimination on the basis of gender identity is “impermissible sex discrimination, both because it is a form of impermissible gender stereotyping and because it impermissibly takes sex into account.” The EEOC filed its first two discrimination lawsuits under Title VII on behalf of transgender employees in September 2014.

While it could take years before the issues raised in the EEOC’s sexual orientation and gender identity lawsuits result in a Supreme Court ruling like Obergefell, there’s no question that the EEOC now represents a new and significant option for LGBT employees raising discrimination claims related to sexual orientation or gender identity.

As previously noted, many employers have already implemented policies to foster LGBT-inclusive work environments. In many instances, however, the policies and procedures instituted by these companies focused on employee sexual orientation. Gender identity and

issues related to transitioning or transgender employees should also be addressed as the EEOC continues the focus on "coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions" outlined in its Strategic Enforcement Plan for 2013 - 2016. Steps and best practices that employers and HR professionals should consider include:

• R EVIEW AND UPDATE ORGANIZATIONAL POLICIES AND DOCUMENTS – EEO statements, codes of conduct, anti-harassment policies, employee handbooks and other HR policies should be modified to include employee sexual orientation and gender identity provisions • E MPLOYEE TRAINING – LGBT issues should be covered in diversity, harassment and discrimination training programs presented by the company • R ESTROOM ACCESS – In June 2015, OSHA

… 1,412 charges in 2015…an increase of approximately 28% over the previous fiscal year.

In a fact sheet published by the EEOC in May 2016, the Commission reported that it had received a total of 1,412 charges in 2015 that included allegations of sex discrimination related to sexual orientation and/or gender identity/ transgender status – an increase of approximately 28% over the previous fiscal year. The EEOC also noted that 1,135 LGBT charges were resolved in 2015, and these cases included voluntary agreements that provided approximately $3.3 million in monetary relief for employees.

These statistics make it clear that the EEOC is committed to its focus on Title VII in sex discrimination claims involving LGBT employees.

Employers must recognize that claims involving sexual orientation or gender identity must be handled with the same professional care and thoroughness applied to other allegations of discrimination. Change isn’t on the way; it’s already here.

issued a recommendation that “[a]ll employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”

Jeb Gerth, Partner in the Nashville Office of Waller Lansden Dortch & Davis, LLP jeb.gerth@wallerlaw.com www.wallerlaw.com

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New EEOC Guidelines

Signal Renewed Focus on Retaliation Claims

For example, the plain language of federal EEO laws explicitly limits the participation clause to investigations, proceedings, or hearings occurring under the law, such as EEOC investigations or proceedings. By contrast, the guidelines take the position that protected “participation” includes an employee’s participation in internal discrimination complaints to company management, human resources, or other internal complaint processes.

The EEOC also has adopted a broader interpretation of the opposition clause than federal courts, which generally take the view that an employee must oppose unlawful discrimination specifically based on a protected class such as race or gender. The guidelines broaden the opposition clause to include employee complaints that “explicitly or implicitly” communicate an employee’s belief that the employer may be engaging in employment discrimination. It is unclear what constitutes an “implicit” communication sufficient to trigger protection under the EEO laws, leaving a significant grey area for employers. The guidelines further expand the opposition clause to include an employee’s opposition to conduct that the employee reasonably believes is unlawful under EEO laws, but which may not actually be prohibited by these laws. By contrast, the EEO laws' opposition clauses are specifically limited to an employee's opposition to conduct that is actually made unlawful by the respective statute.

In

By ALEX BOALS

the last twenty years, employers have witnessed a precipitous rise in the number of retaliation claims filed with the Equal Employment Opportunity Commission (“EEOC”). Spurred by this ongoing trend, the EEOC recently issued updated

guidelines that will govern the EEOC’s investigations of retaliation claims. Unsurprisingly, the guidelines are decidedly pro-employee and reflect an expansive reading of the anti-retaliation laws for which the EEOC is charged with enforcing – including Title VII, the Age Discrimination in Employment Act (“ADEA”), and the Americans with Disabilities Act (“ADA”) (collectively, “EEO laws”). What follows is a brief analysis of the most significant changes to the guidelines and recommendations in light of those changes.

Framework of Retaliation Claims EEO laws prohibit employers from taking an adverse action – such as termination, demotion, or cut in pay – against an employee because that employee engaged in protected activity. There are three primary issues in every retaliation case: (1) protected activity; (2) adverse employment action; and (3) causation. If an employee is able to establish these three elements, the employer must provide a legitimate, non-retaliatory reason for the adverse action, such as the employee’s poor performance or misconduct. The employee then must demonstrate that this reason is actually a pretext for unlawful retaliation.

The EEOC’s Expansive Interpretation of “Protected Activity” EEO laws provide two categories of protected activity: (1) participation in proceedings and investigations occurring under the EEO laws (the “participation clause”); and (2) opposition to conduct made unlawful by the EEO laws (the “opposition clause"). The guidelines, however, take a more expansive view of what constitutes protected activity than the EEO laws themselves appear to contemplate.

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Taken as a whole, these changes signal the EEOC’s intent to take an expansive view of what constitutes protected activity, freeing investigators to focus on other aspects of their investigations, such as causation or an employer’s legitimate, non-retaliatory reason for taking the challenged employment action.

The EEOC’s Muddled Interpretation of the Causation Standard Retaliation claims under the EEO laws are subject to “but for” causation. This standard means precisely what it says - “but for” an employee’s protected activity, the employer would not have taken the adverse employment action at issue. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court explained that this standard “requires the plaintiff to show ‘that the harm would not have occurred’ in the absence of—that is, but for—the defendant’s conduct.” In other words, an employee must show that retaliation was the employer’s real reason for the adverse action. This stands in contrast to the more lenient causation standard for discrimination claims under Title VII and the ADA, which only requires an employee to show that a prohibited factor, such as race or disability, was a “motivating factor” in the employer’s decision to take an adverse action.

Under this standard, even if an employer would have taken the same adverse action absent the discriminatory reason, the employer is liable if a discriminatory motive nonetheless played a role in the decision.

Although the proposed guidelines recognize the applicability of the “but-for” standard to retaliation claims, the EEOC provides a needlessly muddled interpretation of the standard in an apparent attempt to engraft the more lenient principles of the “motivating factor” standard onto the “but for” standard. The guidelines state that “[t]here can be multiple ‘but-for’ causes, and retaliation need only be ‘a but-for’ cause of the materially adverse action in order for the employee to prevail.” It is unclear how EEOC investigators will apply this interpretation of the

causation standard in practice, though it is reasonable to assume they will apply it as expansively as possible against employers.

Recommendations Although the new guidelines seek to broaden the concept of protected activity and take an expansive view of causation, they do not require fundamental changes in how employers handle complaints of discrimination or hold employees accountable for performance and conduct issues after the lodging of a complaint. Instead, the new guidelines merely serve to underscore the importance of having proper procedures in place and training managers and employees on those procedures.

In the guidelines, the EEOC provides a useful summary of employer recommendations: • Maintain a written, plain-language anti-retaliation policy, and provide practical guidance on the employer's expectations with user-friendly examples of what to do and not to do; • Train managers, supervisors, and employees on the employer's written anti-retaliation policy, and send a message from the company’s leadership that retaliation will not be tolerated; • When an employee makes a complaint of discrimination – internal or external – remind all parties involved, especially the subject of the complaint and the managers and supervisors, that the company has a zero-tolerance policy for retaliation, and any retaliatory acts will be met with severe consequences; • Check in with employees, managers, and witnesses during the pendency of an EEO matter to inquire if there are any concerns regarding potential or perceived retaliation, and to provide guidance; and • Designate a human resources manager, in-house counsel, or other member of management to review proposed employment actions of consequence to ensure they are based on legitimate non-discriminatory, non-retaliatory reasons.

Employers should consider implementing these recommendations, if they have not done so already. Not only can these practices help reduce the number of actual or perceived retaliatory acts, but will help support a company’s defense to retaliation claims filed with the EEOC or in court.

Although it is unclear whether the new guidelines will result in an increase in reasonable cause determinations, the guidelines clearly reflect the EEOC’s intent to aggressively investigate retaliation claims. As such, it is more critical than ever for employers to apply performance and conduct standards consistently, document and communicate employee issues, and ensure managers consult with human resources before disciplining or terminating employees.

R. Alex Boals, Associate Littler Memphis Office aboals@littler.com www.littler.com www.HRProfessionalsMagazine.com

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EMPLOYEE

Benefits

Realizing the Future of Big Data in Employee Benefits PART 1

By ALEX GRAMLING

The following article is Part 1 of a two part series on the future of Big Data as it relates to employee benefits.

What exactly is “Big Data” and why is it continually touted as the panacea to pivotal problems of our time? To answer this question, it is important to look past the labeling of Big Data and realize that while the quantity of data generated per capita continues to grow exponentially, it is ultimately the ability to tie together unstructured and previously unused data sources which defines its success. Delving further into the underlying mechanisms of Big Data will show that its value is realized through the use of computational methods which operate on large data sources to recognize patterns, make predictions, and provide recommendations.

Consider for a moment that a recent study from the International Data Corporation found that less than 0.5% of all data created is analyzed. In other words, traditional business intelligence, which relies upon relational databases and structured data, is utilizing less than 1 in 200 data items. Big Data is the solution to this glut of unused information. Through the emerging use of machine learning and other Big Data techniques, analysts are leveraging these untapped data sources to recognize previously hidden patterns and relationships.

Big Data’s predictive capabilities may sound futuristic, but it is important to realize this technology is front and center in an important HR function – talent acquisition. A quick review of the website for HR Open Source will show a variety of case studies by employers who are transforming their talent acquisition methods through Big Data. Big Data’s entrance into the areas of hiring and retention suggests it is only a matter of time before executives request innovative ways to utilize this technology within employee benefits.

In what ways will Big Data shape employee benefits in the near term?

1) Recommendation Engines The latest MetLife U.S. Employee Benefit Trends study found that increased benefit offerings resulted in a 20% increase in likelihood that an employee would recommend an employer as a great place to work. Yet, the study later went on to say that more than 40% of employees were not confident they made the right benefits decision during open enrollment.

How is an HR executive supposed to reconcile these obviously paradoxical facts? Many employers offer decision support tools through their current enrollment software, but the success of these tools, given the results of the MetLife survey, has to be questioned. What if benefits enrollment could see similar results to Netflix, where 75% of its members watch its recommendations?

The potential to transform diverse data elements into a personalized recommendation based on successful outcomes from similarly situated individuals is one of the main promises of Big Data.

2) Chronic Condition Management According to a June 2016 Bureau of Labor and Statistics report, employee benefits are averaging $10.70 per hour and represent 31.4% of total employer costs related to their employees. This study shows health insurance outpacing paid leave, retirement benefits, and legally-required benefits such as Social Security and Medicare as the largest contributor to benefits expenses.

What factors are driving this large expenditure? According to publications by the Centers for Disease Control and Prevention (CDC), 86% of the over $3 trillion U.S. healthcare market is attributable to chronic conditions. While this is certainly alarming, there is a silver lining for employers: preventing, or at least ensuring the maintenance of chronic conditions, provides a worthy target for resource deployment.

How can Big Data impact chronic condition management? By connecting data from medical records, wearable devices, test results, and other sources, predictive analytics can create a holistic profile of each patient. The result is a picture which transcends the typical retrospective claims 26

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scoring algorithms common today. For example, programs such as IBM Watson are already working to leverage the 80% of health data which exists in unstructured form. Initial data-driven interventions published by IBM demonstrate impressive results within target diabetic populations, including a 207% uptick in office visits by previously non-compliant patients and an average 1.8 point reduction in A1C scores for uncontrolled diabetics.

By ensuring care compliance for members with a chronic condition, and understanding insights which assist healthy employees with maintaining their present status, employers can utilize active risk mitigation in an area where preventing even a single acute event can significantly impact the bottom line.

3) Benefits Decision Making A 2015 study by Unum found that 78% of workers base their job acceptance at least in part on the benefits package offered. As such, it’s no wonder HR professionals continually seek to measure the attractiveness of their benefits package. The problem with traditional benchmarking is that it generally creates a comparison of plan design or cost features, with no consideration for underlying demographics.

This doesn’t have to be the case in a world fueled

by Big Data. For instance, services such as Sun Life Financial’s Benefit Profile use Big Data to make recommendations on optimal benefit offerings and enrollment strategies. By using employer-specific census data, the Sun Life model can create correlations to medical incidence rates, relevant insurance solutions, and industry/region specific competitor offerings, further informing benefit decisions through better recommendations.

4) Targeted Employee Communication Facebook, Google and Netflix have made their name by using data to connect people to friends, merchandise, information, and media based on their interests. Imagine being able to connect employees to targeted benefits advice based on their specific characteristics. Once the vision of data-driven messaging to employees reaches fruition, HR professionals will have the power to deliver the right message, at the right time, to the right employees.

Though the advantages of Big Data within employee benefits are readily apparent, this new technology isn’t without risk. Part two of this series will explore the critical side of the Big Data revolution while also addressing ways that HR professionals can prepare themselves for the entrance of Big Data into the employee benefits space.

Alex Gramling Financial Analyst Regions Insurance Group Alex.Gramling@Regions.com

Growth doesn’t just happen.

You have to be doing something right.

Always committed to providing the coverage you need and the guidance you trust SM, Regions Insurance is proud to be one of the ten fastest growing employee benefit brokers in the U.S. with $10 – $50 million in large-group revenue, as presented by Employee Benefit News in partnership with business data analytics firm miEdge.

EBN ranks Regions Insurance as one of the 10 fastest growing employee benefit brokers in the U.S. – May 2016

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

The Coverage You Need.

The Guidance You Trust.

Find Regions Insurance offices in Alabama, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, South Carolina, Tennessee and Texas ©2016 Regions. Regions Insurance is an affiliate of Regions Bank. Products and services are offered by Regions Insurance, Inc., and underwritten by unaffiliated insurance companies.

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EMPLOYEE

Benefits

SHRM: 20-Year Employee Benefits Trends in the United States — Now and Then EVREN ESEN, DIRECTOR OF SURVEY PROGRAMS AT SHRM

O

Over the past 20 years, employers have increased and decreased benefits strategically in response to the needs of the workplace and employees as well as to economic and technological changes, according to the Society for Human Resource Management’s (SHRM’s) 2016 Employee Benefits Survey report released in July.

Employers are responding to workers’—especially Millennials’— demands for better work/life balance with increased telecommuting, flextime and other accommodations. Since 1996, the percentage of organizations offering telecommuting has increased threefold (from 20 to 60 percent), and the percentage offering telecommuting on an ad hoc basis has increased from 45 percent in 2012 to 56 percent in 2016.

Additionally, while annual salary increases are a staple component of compensation plans, many employers have shifted toward monetary bonuses over the past five years to keep overall payroll costs stable.

There have been increases for spot/bonus awards, sign-on bonuses for executives and non-executives and retention bonuses for nonexecutives. Also, more than one-half (56 percent) of organizations currently offer service anniversary awards, 51 percent offer nonexecutive bonus plans, and 44 percent offer executive incentive bonus plans.

As a possible solution to the skills gap and heightened recruiting difficulty, employers have also begun paying for more professional membership dues and opportunities. Currently, 88 percent of companies pay for professional membership dues compared to 65 percent in 1996.

“The biggest surprise was that, overall, while the number and types of benefits offerings that organizations offer has grown over the past 20 years, there have not been many major changes in terms of coverage of core employee benefits,” explained Evren Esen, director of survey programs at SHRM. “Benefits such as health care, retirement planning and employee assistance programs are offered to employees at the same level as in 1996."

“The number of benefits employers are offering is consistent with recent years,” said Esen. “However, employers are always looking for new and innovative benefits that are cost-effective and best fit their workforce.”

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The survey of 3,490 randomly selected HR professionals examined more than 300 benefits. Among other key findings:

· The percentage of organizations offering health savings accounts (HSAs) increased from 43 to 50 percent in the past year. · Wellness resources, which have been on the rise over the past several years, are now leveling off. Some individual wellness resources are changing as employers determine which wellness benefits best fit their workforce. ·S ixty percent of organizations reported that the level of benefits they offer has remained the same in the past 12 months. · The percentage of organizations offering a stand-alone sick leave program increased from 33 percent in 2012 to 41 percent in 2016. These changes may be due to local and state legislation requiring paid sick leave for employees. ·O verall, of the organizations that offer paid leave, 5 percent provide employees with some type of unlimited leave: 4 percent offer it as paid leave and 1 percent as unpaid leave. ·N early one-quarter of organizations (23 percent) provide health care services such as diagnoses, treatment or prescriptions by phone or video. ·F our percent of employers offer student loan repayment.

Thirteen new benefits were added to this year’s report, including executive coaching (offered by 16 percent of organizations), genetic testing coverage for diseases such as cancer (12 percent), stipend/ subsidy for using employee-owned technological devices (12 percent) and automatic enrollment into a defined contribution retirement savings plan for current employees (21 percent).

The full survey is available online at https://www.shrm.org/hr-today/ trends-and-forecasting/research-and-surveys/Documents/2016%20 SHRM%20Employee%20Benefits%20Full%20Report.pdf

EMPLOYEE

Benefits

Employee Benefits

Open Enrollment:

HR Industry Experts and Research from SHRM Open enrollment will be held in the coming months at companies across the United States to allow employees to choose health insurance plans and other benefits.

Open enrollment experts from the Society for Human Resource Management (SHRM) in Alexandria, Va., are available to discuss upcoming changes and trends employees can anticipate during the 2017 open enrollment season.

SHRM’s vice president of human resources, Bettina Deynes, says employees can expect a steady uptick in health insurance premiums and deductibles. Additionally, more employers will continue complying with Affordable Care Act reforms that include earlier tax deadlines than last year. Click on this link or copy and paste it into your browser to view this video from SHRM on What You Need to Know About Open Enrollment. https://www.shrm.org/about-shrm/press-room/press-releases/pages/2017open-enrollment-pitch.aspx

Employers will also continue implementing high-deductible health plans such as health savings accounts (HSAs) and health reimbursement arrangements (HRAs). According to the 2016 SHRM Employee Benefits Survey, the percentage of organizations offering HSAs increased from 43 percent to 50 percent in the past year.

Open enrollment also includes the selection of retirement saving benefits. The benefits survey showed that fewer organizations allowed Roth 401(k) (or similar defined contribution plan) catch-up contributions (75 percent vs. 70 percent) or hardship withdrawals (67 percent vs. 60 percent) in 2016 compared with 2015.

While the focus of open enrollment often entails how it will affect employees, benefits are an important retention and recruiting tool for organizations. According to the upcoming 2016 SHRM Strategic Benefits Survey, about three-fifths (61 percent) of HR professionals indicated that their organizations adjusted health care benefits over the past 12 months to help retain employees at all levels of the organization; about two-thirds (65 percent) made changes to health care benefits to recruit new employees at all levels of the organization.

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The Cost of NOT having a Financial Wellness Program

EMPLOYEE

Benefits

By JEANNE J. FISHER

W

e’ve entered the last quarter of 2016 and that means human resource departments around the commonwealth are preparing budgets for 2017. There’s often more needs than dollars and HR departments have never been known for their robust budgets. Despite the stiff competition with health and wellness programs the past few years, financial wellness programs have steadily fought for their share of the pie.

Aon Hewitt’s Report, “2016 Hot Topics in Retirement and Financial Well-Being” found that almost 90% of employers are likely to add or expand to their existing financial wellness program in 2016. The number one reason for doing so was simply “it’s the right thing to do”, but extensive research has been conducted and employers can now see the cost of not having a financial wellness program.

Delayed Retirement According to a 2012 survey by AARP, a shocking 70% of Baby Boomers believe they will be forced to delay retirement. Everyone understands the value of having veterans on the team, but aging employees can carry a hefty price tag. The US Bureau of Labor Statistics estimates the average annual health and disability insurance for an employee in their 20s is $3,100. That cost grows to $11,300 for employees over the age of 60. The salary differential between the two age groups is slightly more than $12,000 per year. Employers with an ever-aging employee base are facing rising human capital costs. More dollars are being allocated to a particular subset and employers don’t have the cash flow to invest in bright new talent with fresh ideas.

Recruiting and Retention For many years ARGI has served as a resource for companies with complex benefits packages looking to recruit and retain talented employees. As independent and licensed advisors, they are able to educate and, more importantly, advise individual employees on how to take full advantage of their company’s offerings.

Traditional financial education programs have focused on financial basics, navigating websites and online tools. Through their work with numerous corporations, ARGI has found, and studies have shown, the need to be much greater. By integrating a company’s benefits package, advisors are able to illustrate the combined value and how to potentially maximize the offerings. According to MetLife’s 14th Annual U.S. Employee Benefit Trends Study, individual financial consultations with employees are the preferred process for engagement with employees about their benefits, yet only about half of employers offer it.

This information has the potential to be invaluable for those trying to navigate robust pension plans, stock options, restrictive stock units, and other highly customized benefits, and employers actually can save money by spending money on financial wellness programs. The PWC Employee and Financial Wellness Survey, 2015 shows employers can save $3 for every $1 spent.

The PWC Employee and Financial Wellness Survey, 2015 shows employers can save $3 for every $1 spent.

Educating employees on the true value of their benefits package can prevent talented employees from being lured away by the promise of a higher salary, but overall less offering. And managers and HR staff who learn how to communicate the value of their integrated benefits package can use it to their advantage when recruiting new talent.

Source: U.S. Bureau of Labor Statistics 30

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Productivity Medical professionals are increasingly attuned to the physical impact of financial stress. According to the American Psychological Association Survey 2015, only 20% of Americans smoke and 30% are obese, but 70% are seriously concerned about their finances. Financial stress carries a physical toll, as recorded in How Financial Stress Can Harm Your Health (NerdWallet). Immediate and short-term effects include memory and concentration suppression, but long-term suffers have a higher risk of heart disease, stroke and digestive problems.

43%

Fortunately employers who have successfully implemented a financial wellness program are reporting positive results. Alliant Credit Union’s survey of more than 400 human resource managers reported the following results: 43% increased employee engagement/ morale, 40% improved productivity, 40% provided education for employees’ goals, 36% helped alleviate employees’ financial stress, and 23% helped reduce employee absenteeism.

As with other wellness programs, most of the benefits will not be recognized immediately. It takes time to develop and implement a successful program. The 40% of respondents to Alliant’s survey that have already implemented a financial wellness program have a jumpstart towards positive results. Aon Hewitt’s 2016 Hot Topics in Retirement and Financial Well-Being indicates that those who choose not to invest in their human capital could face greater challenges down the road with an aging, dis-engaged workforce.

Jeanne J. Fisher, CFP®, CPFA, MBA Corporate Benefits Specialist JeanneFisher@argi.net www.argi.net

Source: Alliant Credit Union survey

44% OF EMPLOYEES

WORRY

ABOUT FINANCES DURING WORK HOURS.*

Jeanne Fisher is a CERTIFIED FINANCIAL PLANNER™ and works with the Corporate Services division with ARGI Financial Group. She serves as an ambassador for the CFP Board. Respective services provided by ARGI Investment Services, LLC, a Registered Investment Advisor, ARGI CPAs & Advisors, PLLC, ARGI Business Services, and Advisor Insurance Solutions. All are affiliates of ARGI Financial Group.

ARGI is now a part of the Kentucky Chamber’s Power Buy Member Savings Program, helping you provide financial clarity for your employees at a special member rate. Services include: Corporate Benefits Education Business Retirement Plan Services Comprehensive Financial Planning Outplacement & Transition Financial Services

WWW.ARGI.NET/KYCHAMBER Respective services provided by ARGI Investment Services, LLC, a Registered Investment Adviser, ARGI CPAs & Advisors, PLLC, ARGI Business Services, LLC, and Advisor Insurance Solutions. All are affiliates of ARGI Financial Group. *Statistic from PWC Employee Financial Wellness Survey, 2015 Results

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EMPLOYEE

Benefits

HHS Gets Aggressive With HIPAA: How Covered Group Health Plans Are Impacted

By JENNIFER S. KIESEWETTER

The Affordable Care Act ("ACA") has had us all by the lapels as of late. Applicable large employers. Qualified offers of insurance. Full-time versus part-time employees. Affordable health care.

Bronze. Silver. Gold. Platinum. Forms 1094 and 1095. But as we find ourselves wandering about in an ACA-stupor, we still must remember HIPAA. On September 2, 2016, the Department of Health and Human Services (HHS) issued interim final regulations that adjust the civil monetary penalties that fall under HHS's jurisdiction, including HIPAA penalties.

These regulations were released for immediate implementation with no comment period and no notice that normally accompanies most regulations.

The HIPAA penalties specifically focus on the Administrative Simplification requirements, which are part of HIPAA. The Administrative Simplification provisions of HIPAA require the HHS to adopt national standards and operating rules for electronic health care transactions, code sets, national identifiers, and other administrative aspects of health care delivery. HIPAA Administrative Simplification requirements apply to all HIPAA-covered entities; i.e., health plans, clearinghouses, and health care providers who conduct electronic health care transactions.

Before we jump right into the increased penalties, let's recap some important HIPAA principles mentioned above. HIPAA applies to covered entities and business associates. Both covered 32

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entities and business associates must protect the privacy and security of health information and must provide individuals with certain rights with respect to their health information. A covered entity is a health care provider, a health plan, or a health care clearinghouse. Health care providers include providers such as: • Doctors • Clinics • Psychologists • Dentists • Chiropractors • Nursing Homes • Pharmacies but only if these providers transmit any information in an electronic form in connection with a transaction for which HHS has adopted a standard. A health plan includes health insurance companies; HMOs; employer-provided health plans, except for self-administered plans with fewer than fifty (50) participants; and government programs that pay for health care, such as Medicare, Medicaid, and the military and veterans health care programs. A healthcare clearinghouse includes entities that process nonstandard health information they receive from another entity into a standard (i.e., standard electronic format or data content), or vice versa.

If a covered entity engages a business associate to help it carry out its health care activities and functions, the covered entity must have a written business associate contract or other arrangement with the business associate that establishes specifically what the business associate has been engaged to do and requires the business associate to comply with HIPAA's requirements to protect the privacy and security of protected health infor-

mation. In addition to these contractual obligations, business associates are directly liable for compliance with certain provisions of HIPAA. Thus, plan sponsors need to be aware that group health plans, except for self-administered plans with fewer than fifty (50) participants, are covered entities under HIPAA. Further, although a group health plan must comply with HIPAA, compliance is limited for fully-insured group health plans. A group health plan is a separate legal entity from the employer and any other parties who sponsor the group health plan. As such, neither the employer nor the plan sponsor is a covered entity under HIPAA. Because only the group health plan is a covered entity under HIPAA, only the group health plan itself is subject to the rules, and the penalties, of HIPAA. However, HIPAA's Privacy Rules does control the conditions under which the group health plan can share protected health information with the employer and the plan sponsor when the information is necessary for the employer or the plan sponsor to perform certain administrative functions on behalf of such group health plan. For example, HIPAA requires, under these circumstances, that a receipt of certification from the employer or plan sponsor that the health information will be protected as prescribed by HIPAA and will not be used for employment-related actions.

As of June 2016, HHS' Office of Civil Rights had levied close to $15 million in penalties through HIPAA audits, as compared to $6.2 million in penalties for the full 2015 calendar year. And, these watershed penalties were levied before HHS released their increased HIPAA penalties. So,

employer group health plans beware. The below table highlights the current HIPAA penalty and the updated penalty, which are now in effect, for group health plans: DESCRIPTION

CURRENT PENALTY

UPDATED PENALTY

Pre-February 18, 2009 (HITECH) violation of HIPAA administrative simplification provision

$100 per violation $37,561 annual cap

$150 per violation $37,561 annual cap

February 18, 2009 or later violation of HIPAA administrative simplification provision w/o knowledge

$100 minimum $110 minimum $50,000 maximum $55,010 maximum $1,500,000 annual cap $1,650,300 annual cap

February 18, 2009 or later violation of HIPAA administrative simplification provision w/ reasonable cause and not due to willful neglect

$1,000 minimum $1,100 minimum $50,000 maximum $55,010 maximum $1,500,000 annual cap $1,650,300 annual cap

February 18, 2009 or later violation of HIPAA administrative simplification provision due to willful neglect AND corrected during 30-day period

$10,000 minimum $11,002 minimum $50,000 maximum $55,010 maximum $1,500,000 annual cap $1,650,300 annual cap

February 18, 2009 or later violation of HIPAA administrative simplification provision due to willful neglect AND NOT corrected during 30-day period

$50,000 minimum $500,000 minimum $1,500,000 maximum $1,500,000 maximum $1,500,000 annual cap $1,500,000 annual cap

Plan Sponsor Services Assisting HR professionals with the day to day requirements of managing a 401(k), freeing up time to focus on your business. Our goal is to allow all plan participants to realize the full potential of their retirement plan.

The new DOL Fiduciary Rule Affects You Under the new Rule, most organizations that advise companies on their 401(k) plans have a new set of standards to follow. Employers, for the first time are being held accountable for quantitative judgement of their vendors.

Let us assist you in ensuring compliance, benchmarking@vision401k.com

Plan Sponsor Support

Employers and plan sponsors must not neglect HIPAA with respect to their employer-sponsored health plans. HHS has become more aggressive with audits, and with increased penalties, employers simply cannot afford an audit on HIPAA rules and regulations. For example, this year alone, the University of Mississippi Medical Center sustained a $2.75 million penalty stemming from an HHS investigation into a relatively small 2013 HIPAA breach involving a stolen laptop. However, during the course of the investigation, serious HIPAA security and privacy issues were uncovered, resulting in the $2.75 million penalty. Employers would be prudent to do a selfaudit to correct any HIPAA issues, as opposed to allowing HHS to uncover such issues, thus subjecting themselves to the new penalties set forth above.

HIPAA compliance is a time-consuming process; however, it is a must in light of increased federal audit activity and increased fines.

Jennifer S. Kiesewetter, Esq.

Plan Design – we assist you in the development of a plan that meets the needs of your organization and employees. Together, we will review plan features, service providers, investment process/selection as well as participant services.

Plan Implementation – working together we will ensure that your plan is launched on time and all eligible employees are given the opportunity to participate. Our online app, Vision401(k) Autopilot, works with all record keepers and helps participants to better understand 401(k) investing.

Ongoing Support – we develop effective strategies for increasing participation, employee education and communication. Our goal is to further your employees understanding of what it takes to save for their retirement. Each year we will benchmark your plan to ensure it compares favorably with plans of similar size.

Plan Benchmarking, 3(16), 3(38) and 3(21) Fiduciary services available.

Spend five minutes with us, call Bill Franca, Managing Partner, 800-283-0442 or wmfranca@vision401k.com To receive a copy of Fidelity’s 2015 Plan Sponsor survey, email your request to PlanSolutions@Vision401k.com Offices in Nashville, Memphis, Bowling Green, Lexington and Louisville Securities and investment advisory services offered through Silver Oak Securities, Inc., a registered broker dealer and Member FINRA/SIPC. Advisory services also offered through Vision Asset Management, a registered investment advisor not affiliated with Silver Oak. Information presented is for educational purposes only and does not intend to make an offer or solicitation for the sale or purchase of any specific securities, investments, or investment strategies. Investments involve risk and unless otherwise stated, are not guaranteed. Be sure to first consult with a qualified tax professional before implementing any strategy discussed herein.

Kiesewetter Law Firm, PLLC jkiesewetter@kiesewetterfirm.com www.kiesewetterfirm.com www.HRProfessionalsMagazine.com

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EMPLOYEE

Benefits

POT TALK:

BURNING QUESTIONS SURROUNDING MARIJUANA LEGALIZATION and EMPLOYMENT

By JENNIFER S. P. CHANG and J. BRUCE CROSS

T

Arkansas may become the twenty-sixth state, along with the District of Columbia, to legalize marijuana for medical use with not one but two voter-driven initiatives on the ballot this November. Marijuana usage is increasingly prevalent in the workplace. In 2010, the Department of Justice estimated that the economic cost of alcohol and drug abuse is $215 billion annually. The Department of Health and Human Services found that 13.1 million drug abusers were employed in 2007. A private study conducted in 2015 found that the percentage of employees testing positive in post-accident urine testing is increasing. If Arkansans vote to legalize medical marijuana, the state’s employers should be prepared to address the complex workplace issues that will inevitably arise as employers seek to juggle newly created protections for marijuana users with maintaining a safe and productive workplace.

The first step towards compliance is to understand the laws on medical marijuana that are specific to the employer’s state. The Arkansas ballot initiatives would create remarkably broad civil and criminal protections for marijuana users in the workplace. Specifically, the proposed laws state that patients and caregivers “shall not be subject to arrest, prosecution, or penalty in any manner or denied any right or privilege, including without limitation a civil penalty or disciplinary action by a business, occupational, or professional licensing board for the medical use of marijuana.” The initiatives would create a rebuttable presumption of lawful activity for individuals who are lawfully issued a registry identification card by the state. The initiatives include an anti-discrimination clause which states that “an employer shall not discriminate against an individual in hiring, termination, or any term or condition of employment, or otherwise penalize an individual, based upon the individual’s past or present status” as a medical marijuana patient or caregiver.

Under the proposed legislation, employers would not be required to accommodate the ingestion, possession, smoking, or other use of marijuana by an employee, customer, or member of the public in the workplace. However, it appears that an employer seeking to take adverse action against an employee on the basis of medical marijuana usage would be required to prove that the employee either used marijuana on the job or showed up to work “under the influence.”

Notably, neither ballot initiative defines “under the influence” or lists observable signs or symptoms of impairment. Both initiatives state that

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they do not require government medical assistance programs or private health insurers to reimburse patients for costs associated with medical marijuana. Employees would be able to access medical marijuana with a state issued registration card and a physician’s certification.

The physician’s certification must identify the employee’s qualifying medical condition and state that the employee may benefit from using marijuana. Under either initiative, employees would be able to obtain a physician’s certification for “intractable pain,” which is defined as pain that does not respond to ordinary medical treatment for either three or six months depending on the initiative.

Further complicating matters is the fact that state legalization of medical marijuana stands in conflict with federal law, which continues to classify marijuana as an illegal drug. However, the Department of Justice has allowed states to legalize marijuana for medicinal and recreational use, stating that these state laws will not be challenged as long as state enforcement methods are “sufficiently robust” to protect against certain enumerated harms, which do not include marijuana in the workplace. On the other hand, federal grant recipients and contractors must adopt a zero-tolerance policy for drug use and certify that the workplace is drug free. Moreover, for employers in safety-sensitive transportation industries, the Department of Transportation has made it clear that a state issued marijuana license is not a valid medical explanation for a positive drug test result. For all other employers, it is unclear, given the anti-discrimination clause, whether a zero-tolerance drug policy for marijuana will be legal.

Employers should also be aware that testing positive for marijuana under some drug tests, such as urinalysis, does not necessarily prove that the employee was “under the influence.” Metabolites of marijuana may remain in the user's system for weeks after use, well after the effects of impairment have worn off. This is important because, under the Arkansas initiatives, an employer would likely be required to prove that an employee either used marijuana on the job or showed up to work “under the influence” before taking adverse action against the employee on the basis of medical marijuana usage. A positive marijuana drug test without additional proof of impairment will likely be insufficient to prove that an employee was "under the influence."

If either Arkansas ballot initiative becomes law, employers will have to grapple with several other difficult issues. How will employers prove that an employee is "under the influence"? Will employees be able to bring wrongful termination claims under the initiative’s broad civil protections and non-discrimination clause? It is highly likely that they will. Will a positive marijuana drug test result be sufficient to disqualify an employee from receiving unemployment benefits or workers compensation benefits? Will employers be required to pay for medical marijuana treatments as part of workers compensation? Courts in other jurisdictions with medical marijuana laws have addressed these concerns, and while most have ruled in favor of employers, the Arkansas initiatives create relatively robust protections for employees.

Consequently, there is no way to accurately predict how Arkansas courts will choose to interpret the language of the initiatives.

Despite the uncertainty surrounding these issues, proactive employers can take steps to ensure that they do not run afoul of a state’s marijuana

laws while maintaining a safe, productive workplace. Employers should keep abreast of developments in the laws governing these issues, including laws on drug testing. If appropriate, employers can adopt a pre-duty prescription medication and impairing effects substances safety policy with a third-party drug testing lab. Employers can update job descriptions and adopt a fitness-for-duty policy to reflect the essential job functions of each position and include language requiring employees in safety-sensitive positions to have the ability to work in a constant state of alertness and in a safe manner. Employers may adopt an ADA compliant handbook policy on reasonable accommodations.

Finally, employers can train supervisors to spot and document objective, observable symptoms of potential marijuana impairment. The laws on medical marijuana in the workplace are constantly evolving, but courts in states that have had to address these types of issues tend to favor employers who are aware of the law and make a good faith effort to comply with it.

Jennifer S. P. Chang, Associate Cross, Gunter, Witherspoon & Galchus, P.C. jchang@cgwg.com www.cgwg.com

J. Bruce Cross, Director Cross, Gunter, Witherspoon & Galchus, P.C. bcross@cgwg.com www.cgwg.com

A TrA diTion of

Thinking Forward In order to be successful in today’s increasingly regulated workplace, employers must stay one step ahead. Let us put our history of thinking forward to work for you.

Burch, Porter & Johnson, PLLC 130 North Court Avenue | Memphis, TN 38103 901-524-5000 | bpjlaw.com

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No Compensation Plan?

You’re Not Alone, and That’s Not Good

By CLIFFORD STEPHAN

I’m looking at a pretty shocking statistic from PayScale, and the first thing that comes to mind is MacGyver.

Remember MacGyver? I loved that show when I was a kid. The guy was so ingenious—freeing hostages, defusing ticking time bombs, making one narrow escape after another, all with a piece of gum, a paper clip, and some duct tape.

It worked for him, week after week, but his “high risk, in-the-moment, reactive” formula isn’t the best bet for 21st-century HR programs. Yet that’s just what I’m seeing in the PayScale study, which found that less than 40% of companies have an updated compensation plan. Less than 40%. That means over 60% of companies don’t have an updated compensation plan. They’re used to winging it, making decisions on the fly, and hoping that kind of approach is good enough for now.

Like I said before, the statistic is shocking, but I’m not entirely surprised. In my consulting work, I see firsthand the realities and demands of being an HR professional. I see managers scratching their heads over high turnover rates, continually battling low morale and disengaged workforces.

I see inefficient and piecemeal decisions about pay, as employers scramble to hire for in-demand positions. I see companies struggling to get a leg up on the competition, never quite figuring out the “secret sauce” that draws employees to one company over the others.

You’ve got so much on your plate already—do you really need one more to-do for your evergrowing list? Believe me, I get it—you’ve only got so many hours in the day to hire for your needs, attract the best people, and keep employees happy. You’re expected to manage all things tactical, operational, and cultural when it comes to your people, and that leaves little time for anything else. It’s easy to see why the MacGyver approach appeals to so many companies. You’re used to moving fast and getting out of tight spots with your incredible ingenuity. It’s the standard MO, and for a lot of companies, why fix what’s worked before?

I hate to break it to you, but it’s not working. Especially in light of changing attitudes among employees, the slapdash approach to compensation planning has got to change.

Clear career pathing, up-front rationales for pay, competitive perks—you guessed it, you can’t make this stuff up on the fly. It has to be grounded in data, calibrated to the market, and tailored to your company’s needs. The longer you stay in reactive MacGyver mode, the longer you’re going to have to grab your duct tape and candles to disarm ticking time bombs and put out fires. Even when you’re not dealing with a crisis, you have the constant stress of waiting for the next crisis to happen.

Why not use your ingenuity to avoid bombs, burning buildings, and collapsing bridges in the first place?

Now is the perfect time to build something better. Study your pay levels. Find out how you compare to the competition. Ensure that your compensation plan and spend align with strategic priorities. Get jobs benchmarked.

Update titles and descriptions. Give managers what they need to make great decisions. Learn what attracts employees to your company and what they dislike.

It’s never been easier to get the right answers—with the right compensation resources or consulting partners.

Plus, if you shore up your foundation now, you can make faster, better decisions in the future, and you’ll be better positioned to stay ahead of recruitment and retention issues.

Simpler. Cleaner. Stronger. More strategic.

That’s the kind of plan that will help you stay competitive in light of employee needs, market realities, new trends in fair pay legislation, and continued growth in employment.

The good news: A number of companies are starting to figure that out. According to PayScale, 34% of companies with no formal comp plan are currently developing one.

It’s worth the effort, as GoDaddy found out when they overhauled their pay system. Matt Toeller says that before they reworked their compensation plan, “The process was, ‘What did we pay the last person? Let’s pay the new person what the last person was making.’” (Sound familiar?) However, when they started determining pay by experience, skills, location, and talent needs, they wondered, “Why didn’t we do this sooner?” That kind of relief is exactly what happens when companies start operating with a proactive, long-term mindset.

For one, the current workplace is more employee-centric. Today, employees have a lot more power and influence. They’re demanding competitive pay, exciting growth opportunities and challenges, and attractive workplace perks—all in a seamless, transparent, fair, and simple rewards program.

They want it all, and they have the upper hand.

So, change is happening, which is great, but it needs to happen a lot faster. There are resources and roadmaps to get the job done. You don’t need to figure all of this out on your own; you just need to make the decision to move ahead.

This is especially true for what’s officially the biggest group in the workforce: Millennials. Overwhelmingly, they’re looking for “transparency, honesty, and opportunity.” This means that when people are looking to build their careers, they’re looking for places that operate on those principles.

Ready to get the best and brightest on your payroll? Good for you! It’s time to use the tools at hand to make a brilliant escape from the MacGyver mindset.

For two, these attitudes have a big impact on employment today—dissatisfied employees are simply less likely to stick around, and uncompetitive salaries are one of the biggest reasons why people leave. If your compensation plan isn’t keeping pace with the competition, it’s easy for talent to walk out the door. And if unhappy employees stick around, you run the risk of disengagement, low morale, and decreased productivity. Everyone gives lip service to the idea that “employees are our best asset,” but I can’t figure out why so few companies actually put their money where their mouth is.

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Clifford Stephan, Principal One Compensation Clifford@onecompensation.com www.onecompensation.com

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15th Annual Arkansas SHRM Employment Law & Legislative Conference September 15 & 16, 2016 in Little Rock September 15 15--16, 2016 DoubleTree by Hilton Hotel of Little Rock arshrm.com/ella2016 HOT TOPICS FOR 2016 ACA EEOC Updates and Recently Issued Guidance Fiduciary Rule 1 LGBT

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1 Susan Meadors, PHR, Final 2016 ELLA Conference Chair, welcomed attendees. 2 Mike Aitken, SHRM VP of Government Affairs, presented “The OTSHRM-CP, Rules and Regs Washington Outlook.” 3 Dr. Greg Bledsoe, Arkansas Surgeon General, led a discussion and review of the ballot initiatives relating to medical marijuana Personal Liability for HRinProfessionals and potential impacts on the workforce Arkansas. 4 Frank Mulcahy, Business Development Manager for the Workplace Bullying Institute (WBI), shared SPONSOR incidents of workplace bullying, and how to avoid being the target of the PRESENTING perpetrator.

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5 Kenneth R. Hall, JD, Executive Vice President of the Arkansas State Chamber of Commerce/Associated Industries of Arkansas, Inc., was the recipient of the ARSHRM Friend of the HR Profession Award. (L-R) Steve Schulte, Kenneth R. Hall, and Susan Meadors. 6 Cindy Kolb accepted the When Work Works Award for Cross, Gunter, Witherspoon & Galchus, P.C. Michele Burns, Director of ARSHRM, presented the award.

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7 William A. Cash, Jr., Director of the EEOC’s Little Rock Area Office, presented an “EEOC Update and the Strategic Enforcement Plan.” 8 Scott Steves, South Central Region Area Vice President and Regional Team Leader with Arthur J. Gallagher & Co., led a discussion and review of the “DOL Fiduciary Rule.”

Arthur J. Gallagher & Co. was the presenting sponsor. 9 Rick Roderick, director in the firm of Cross, Gunter, Witherspoon & Galchus, P.C., discussed “The NLRB and Employer Policies and Practices.” 10 Michelle M. Kaemmerling, attorney with Wright Lindsey Jennings, presented “LGBTQ & the Law.

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11 Tim Orellano, PHR, President of the Human Resources Team in Little Rock, spoke on “Hold on to Your Compensation Hat: “It’s all About the Pay.” 12 Janet Downs with Arthur J. Gallagher & Co., presented an “Affordable Care Act Update.” 13 Abtin Mehdizadegan, attorney with Cross, Gunter, Witherspoon & Galchus, provided a review of Occupational Safety and Health Administration (OSHA) recent rules, changes, and updates to various employer requirements under the OSH act.

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14 Wayne Young, a partner with Friday, Eldredge & Clark, presented “Personal Liability for Managers.” He discussed employment laws, regulations, and case law at both the state and federal level that include provisions for personal liability. 15 Neemah A. Esmaeilpour, attorney with Wright Lindsey Jennings, discussed the new DOL FLSA OT rules. 16 Brian Vandiver with Cox, Sterling, McClure & Vandiver, PLLC. Brian’s topic was non-compete agreements and trade secrets.

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Hiring Seasonal Employees for the Holidays:

Ho Ho Ho or No No NO?

By STUART GOTT

out the details, as well as the payment terms.

Share it in employee meetings, and on other employee correspondence. Make sure each employee understands "what's in it for him" if his or her referral ends up being hired. This practice will ensure you receive a large pool of qualified candidates.

A referral contest alone won’t guarantee you land great hires. Set some time aside to… #2: Create powerful job descriptions.

When the weather turns colder and crisper, our thoughts automatically veer toward warm sweaters, boots, a roaring fire, and the upcoming holidays. While many think of shopping, eating out, and fun parties, employers start gearing up for the burden that is holiday hiring. This year is no different.

According to a recent survey by Snagajob in 2015, 82 percent of employers expected to add to their workforce during the holiday season, and just as busy a year is expected this season.

Unfortunately, some companies adopt a lax attitude when it comes to securing seasonal help, and this can have costly consequences.

Employee theft is rampant, especially in temporary employees who have little loyalty to the business.

Even though seasonal employers may only work for the company on a limited time basis, it’s imperative they be reviewed and weighed as closely as full-time, permanent staff. After all, they will have access to your confidential resources, cash, and valuable inventory.

This season, finding the best seasonal employees presents unique challenges. The low unemployment rate and predicted brisk holiday shopping add up to an extra need for good quality help.

Before you approve tons of overtime for your current employees just so you don’t have to deal with the stress of hiring seasonal help, take heart! By putting a small effort into the process, you can be confident you hire honest, hard-working assistance that will greatly benefit your business this holiday season. Utilize these five tips to land the best seasonal employees for your holiday hiring. #1: Encourage referrals.

Current employees are often the best source to find other great people to join your team. A person who values their job and position will usually only recommend a person who they feel will do the job in an honest, ethical manner.

Otherwise, the current employee will feel like they look bad.

A few months before you need seasonal hires, set up an attractive referral incentive. Lay 40

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It’s important for hiring managers to drill down to the specifics of your job openings.

Lay out a written plan of the expectations you have for the role, as well as the specific skill set the applicants need to offer. Look at your best employees in similar positions, and note the key attributes that make them successful.

A wellfleshed out job description is a key component to attracting the best, most qualified seasonal employees, and weeding out the ones who would be a waste of time interviewing.

It also helps to… #3: Leverage social media.

Sharing on social media keeps your customers informed of product rollouts, special sales, and other customer appreciation promotions. It can do the same for your recruiting efforts! Let your audience know you are hiring. Post job openings prominently on your social media pages, and encourage your followers to share them with their audiences. Just a few shares can get your job opening in front of hundreds, or even thousands, of potential employees.

Make it easy for interested parties to find additional information, and apply. Use links to contact pages where applicants can read more details about the position, and easily upload their resumes and fill out applications.

before you extend an offer of employment.

This practice helps ensure they are qualified and present minimal risk to the safety of your other employees, your customers, and your reputation. A good best practice, depending on the position being sought, is to look at criminal history and the sex offender’s registry. Other helpful background screening reports are employment history verifications, assessment testing, and drug screening.

It’s vital to remember that you need to screen every applicant in a uniform manner. Don’t just order background checks on applicants based on your “gut feeling” or because they have too many tattoos. This type of screening can be viewed as discriminatory, and can result in your company being sued. And nothing kills the holiday spirit like litigation. #5: Don't wait for the last minute.

The time to get started finding seasonal help is… early! Holiday hiring must begin weeks before the season kicks off. The hiring process from getting your message out, to weeding through applications, to the interview process always takes longer than expected. Then, you need time to properly train the new employee. Failing to start early sets your company up for being short-staffed, or settling for less than stellar holiday employees, because the good ones have already been snapped up.

It's a huge endeavor to ramp up and execute a productive holiday hiring initiative, but it’s well worth it. Effective, honest employees make customers happy, finish tasks on time, and ensure the bottom line is increased and fat going into the new year. Who knows, you may just find seasonal employees that are so great you decide to keep them on permanently!

It pays for employers to plan for their seasonal hiring process well in advance of the season. By following these five tips, you will increase your chances of bringing good, honest employees into the company, and enjoy a massively successful holiday season!

#4: Screen every applicant.

Even though holiday hiring is not long-term, employers must still be careful to avoid dangerous hiring decisions. Perform a thorough background check on each person

Stewart Gott National Account Executive sgott@datafacts.com www.datafacts.com

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Fisher Phillips and Greater Memphis Chamber Breakfast Series Seminar at the Greater Memphis Chamber

AUGUST 25, 2016

Are You Prepared for the New Department of Labor Overtime Wage Rules?

Fisher Phillips Memphis attorneys Courtney Leyes and Gabe McGaha, in conjunction with the Greater Memphis Chamber, held a breakfast briefing on the impending Department of Labor overtime wage rules.

Speakers Leyes and McGaha represent and counsel employers in all areas of labor and employment law, including collective actions, wage & hour, harassment, discrimination, employee discipline and termination, and trade secrets. Leyes has been recognized as a Mid-South Super Lawyers – Rising Star since 2014.

These rules will become effective on December 1, 2016. The breakfast briefing provided the strategies and tools to help prepare HR professionals for the impact – quickly and efficiently. The discussion covered:

Gabe McGaha and Courtney Leyes, Attorneys at Fisher Phillips

• Where to begin evaluating the impact of these changes • Other exemptions that might apply • Alternative pay structures to consider • Converting to non-exempt status • Strategies for informing employees of status change

Fisher Phillips Memphis attorneys in attendance were, (L-R) Gabe McGaha, Jeff Weintraub, Regional Managing Partner; Courtney Leyes, David S. Jones, and Martin F. Thompson

Jeff Weintraub, Regional Managing Partner with Fisher Phillips

Gabe McGaha and Courtney Leyes

HR professionals and small business owners attended the breakfast meeting at the Greater Memphis Chamber.

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GO CONFIDENTLY. Bass, Berry & Sims listens and responds with creative yet practical counsel. We stay on pace with the complex and rapidly evolving employment landscape, connecting your dynamic human resources needs to proactive strategies.

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The Innovation Formula:

The 14 Science-Based Keys for Creating a Culture Where Innovation Thrives

BY PAULA HAYES

ave you ever wondered what makes some companies more innovative than others? Why is that some companies tend to promote an environment where creativity flourishes, while other companies are lackluster, almost sluggish, when it comes to innovation? If you look at innovation giants like Apple or Google, and think why can’t my company do the same thing, you may be need a crash-course in the “science” behind innovative thinking. Or, if you just want to learn some basic principles from studying creative organizations, this is a book worth investigating. Dr. Amantha Imber delves into what makes companies like Google, Virgin, Intuit, Etsy, Disney, LEGO, and others, leaders in innovation practices. Imber seeks to understand these companies not as fancy fads or atypical trends, but as models that may be studied scientifically for replicable strategies. Dr. Amantha Imber is the founder of a leading business management consultant company in Australia, known as Inventium; the success of Dr. Imber's company is a testament to the practicality of the innovation strategies she presents in The Innovation Formula.

Why Science-Based?

Popular culture is unpredictable; it comes and goes in waves. Too much reliance upon popular culture for strategies in innovation may leave an organization floundering.

Opposed to relying upon the erratic shifts that abound in popular culture to determine what counts as innovation, Dr. Amantha Imber argues in favor of turning to research (both qualitative and quantitative) and studying companies that have produced tangible results. After all, constant change does not always, necessarily equate to genuine productivity, creativity, and innovation. In an effort to isolate the variables that lead to results-driven innovation, Imber turns to a well-known meta-analytic study, “Climate for Creativity: A Qualitative Review,” by Samuel Hunter, Katrina Bedell, and Michael Mumford (2007) published out of the University of Oklahoma. Following Hunter’s study, Imber picks up on Hunter, Bedell, and Mumford’s findings “that employees feeling a strong sense of challenge in their work is one of the strongest drivers of a culture of innovation. They defined challenge as the ‘perception that jobs and/or tasks are challenging, complex and interesting—yet at the same time not overly taxing or unduly overwhelming.’”

Imber’s book is captivating as she delves straight into cognitive psychology and performance models that date back the turn of the twentieth century; 44

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among these, the Yerkes-Dodson law (1908) that defines which levels of work performance best lead to creativity and innovation. She does not stay in the past. Imber is quick to pick up on current cognitive psychological theories such as those proposed by Stanford psychologist Carol Dweck and her theory of Growth Mindset, and how the perception of tasks as either challenges or obstacles leads to either open or closed ways of thinking.

One of the strengths of Imber’s account is that she is able to create bridges between older scientific research and current cognitive psychological research. There is a natural and logical progression to Imber’s book—she begins with the individual, moves to a discussion on the role of teams, from teams to leadership, and finally to the variables (that may be replicable) within organizational structures that promote innovation.

The Best of the Best: Autonomy, Etsy.com, and ‘Walk in Stupid’ I would like to share here two of my favorite case studies offered in Imber’s book. The first one details how Esty.com has implemented, much to its success, a strategy of decentralization to promote innovation. As Imber observes, in 2014, Etsy.com grossed near $2billion in internet merchandise sales. Perhaps surprisingly, employees at Etsy are given an unusually high level of autonomy to make immediate, daily decisions that instantly produce change to the Esty website.

This might at first seem like a huge risk. That is not how the CEO of Etsy, Chad Dickerson, sees it. He sees allowing employees greater autonomy as a move toward a company vision of constructivist action. Dickerson believes where there is a culture that encourages constructive action and employee autonomy there will be results-driven innovation.

Imber describes meeting with Dickerson in his Brooklyn, New York offices where she learned how in Dickerson’s company “anyone in the team can make a change to the Etsy website whenever they see a need. (Etsy. com had over 40 million unique views per month when we spoke; at the time of writing it has around 60 million).” As Imber relays this remarkable strategy, one that Dickerson labels as ‘continuous deployment,’ she observes that literally “Every single person at Etsy has the ability to this [make changes to the website] without explicit approval. It’s a very, very decentralized, and very, very fast.” It is not just that changes are made; it is that these changes are also recorded as data for Etsy. Experimentation leads to an increase in data. An increase in data leads to an increase in knowledge about what works and what does not. According to Imber, there are big payoffs for offering employees this kind of freedom to make decisions that produce change—“One final key

benefit of continuous deployment is that the approach has a bias towards action” and that “By giving everyone in the organization the power to make real change, innovation is dramatically enhanced.”

Knowing that it may take some convincing to get staunch advocates for centralized approaches to organizational structure onboard with this kind of alternative approach, Imber addresses the skepticism her audience may be feeling. She notes, “You might be thinking, ‘There is no way I could trust my team to make changes to a website that is getting 40 million unique views a month’. But think about it from an Etsy developer’s point of view. There is no way they are going to make a change without feeling very confident it will make the website better, because all eyes are on them.” Imber names and studies other companies, too, that use strategies similar to Etsy, such as Vimeo.com, a company that has become near a household name as a video-sharing website. The outcome of the Etsy and Vimeo.com strategy is that, “The essence of continuous deployment is that it grants employees autonomy over their work. People have the freedom to fix things that need fixing, and make improvements where they see fit.

Continuous development doesn’t require managerial approval, not does it involve a manger simply telling an employee what to do.” The argument in favor of this approach is that “creativity is dramatically enhanced when employees are given the freedom to decide how they do their jobs. When people feel as if they have a choice in how things can be done they are significantly more likely to engage in trial and error and, through this, find more effective ways of doing things.” The days of a company suggestion box appears quite antiquated and almost comical in comparison to Etsy’s hands-on, take-action-now approach to producing change. One can imagine how in a work environment like Etsy’s employees may feel more valued and empowered, and the belief is that the ethics of autonomy and employee empowerment will bring out in employees the best of what they have to offer; that when employees know that their ideas will produce immediate change, they will begin to be more receptive to their own inner drives toward creativity. When companies take away too much autonomy from employees, it may have a reverse impact on productivity; centralized authority in organizations may lead to employees shutting down, particularly in the domain of creativity.

Another fantastic take-away from Imber’s research is a catch-phrase she uses— “Walking in Stupid.” The phrase is taken from Wieden + Kennedy, a top global advertising agency that has produced slogans and ads for Nike (think of Nike’s “Just do it!”) and Honda. Think Superbowl 2008 and the company that created an ad for Coca-Cola with Charlie Brown finally catching his ‘football,’ a giant inflatable Coca-Cola bottle! To promote this kind of creative thinking in advertisement, if one were to visit the London office, one would find a window mannequin carrying a briefcase. The head on the mannequin has been replaced by a material product, a blender.

A blender for a head! Whatever could it mean? It seems like a scene out of an Andy Warhol, Pablo Picasso, or maybe more accurately that of a Salvador Dali paining; but, as cofounder of the advertising agency, Dan Wieden, explains, the words printed on the briefcase the mannequin is holding is a motto for how Weiden + Kennedy approaches innovation.

The words read—“Walk in stupid every morning.” Not to be taken as an actual endorsement of stupidity; but rather, to be taken as the idea that to be truly creative one has to check one’s intellectual baggage, assumptions, pre-conceived notions, and overworked, tired ideas at the door and begin each day with a fresh perspective toward creativity. I would say based on some of the ads Wieden + Kennedy has produced over the years “Walk in stupid every morning” works.

Paula Hayes, Ph.D

Legal Challenges are Coming at HR Professionals from Every Direction

That’s Why Rainey Kizer Makes Your Business Our Concern As the issues facing HR executives become more frequent, challenging, and complex each year, you need a law firm that provides advice individualized for your specific needs. This is why you should know the employment-law attorneys at Rainey, Kizer, Reviere & Bell PLC. For over 30 years, our AV-rated firm has advised businesses, nonprofit organizations, and government agencies on all aspects of employment law. To learn more, please call.

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paulapoet1@gmail www.drpaulahayesenglish.org www.HRProfessionalsMagazine.com

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What’s Happening with the I-9 Form?

By BRUCE E. BUCHANAN

New I-9 Form, effective January 22, 2017 The USCIS is finally going to be issuing a new I-9 form, which will be effective January 22, 2017. The current I-9 form continues to be in effect even though it states that it expires on March 31, 2016.

This new I-9 form has cleared its final hurdle – approval by the Office of Management and Budget (OMB). Although the new form will not be for mandatory use until January 22, 2017, the USCIS must publish it by November 22, 2016. If it follows the pattern of the 2013 I-9 form, employers will be able to use either the 2013 I-9 form or the 2017 I-9 form for the period between November 22, 2016 and January 21, 2017. The new I-9 form will have an expiration date of August 31, 2019, which is consistent with previous I-9 validity periods.

TPS Ending for Guinea, Liberia, and Sierra Leone – What does it mean for Employees’ Work Status?

The Department of Homeland Security (DHS) announced the termination of TPS for individuals from Guinea, Liberia, and Sierra Leone as of May 21, 2017. DHS first designated these countries for TPS in late 2014 in response to the widespread and fast moving Ebola virus epidemic in West Africa. Once granted TPS, an individual can apply for temporary work authorization in the US and receive an employment authorization document (EAD), a List A Document.

While TPS will soon be ending for these individuals, the DHS has provided for an orderly transition by automatically extending TPS and work authorization for qualified individuals until May 20, 2017. Beneficiaries do not need to re-register for TPS or apply for a new EAD – an important point to note for employers.

Rules to Follow Concerning Automatic Extension of EAD Employers must follow special rules for documenting an automatic EAD extension for existing employees through a review and correction process. In section 1, the employee draws a line through the expiration date in the first space and writes May 20, 2017 above the previous date. In the margin of section 1, the employee writes “TPS Ext”, and initials and dates the correction.

Changes to the New I-9 Form To date, the USCIS has not published a draft of the new I-9 form although it has stated changes that will be included in the 2017 I-9 form. Some of these changes are: (1) Replacing the “Other Names Used” field in Section 1 with “Other Last Names Used.” This will avoid employees writing their nicknames in this field; (2) Modifying Section 1 to request certain employees to enter either their I-94 number or foreign passport information, rather than both;

In section 2, the employer draws a line through the expiration date and writes May 20, 2017 above the previous date. Then the employer writes “EAD Ext” in the margin of section 2, and initials and dates the correction.

Employers must also reverify employment authorization again in section 3 in advance of the expiration date of the automatically extended EAD.

(3) Providing a box for employees to check if they did not use a preparer or translator; (4) Modifying the I-9 form to enable the use of multiple preparers and translators; and (5) Adding an area in Section 2 to enter additional information for TPS extensions, OPT STEM extensions and H-1B portability in order to avoid having to note this information in the margins of the I-9 form.

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

St. Lucie County HR Association Indian River State College Brown Center for Innovation and Entrepreneurship Fort Pierce, Florida – August 24, 2016

St. Lucie HR Association Board of Directors (L-R) Ginger Ortiz, Natalie Cabrera, Tamara Williamson, Jeff Emmeluth, Kim Lee, David Wood, Ellen Contreras

President Natalie E. Cabrera, PHR, welcomed members to the August meeting. Natalie is Human Resource Manager for the City of Port St. Lucie.

Tamara J. Williamson is President-Elect of the St. Lucie County HR Association and is with the Torrey Pines Institute for Molecular Studies in Port St. Lucie.

Ellen Contreras, VP Membership, Business Development Manager for Manpower covering St. Lucie County.

Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR was the speaker. Her topic was “Reinventing the Performance Appraisal.”

Attendees at the August meeting of the St. Lucie HR Association in Fort Pierce, FL.

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TRUST THEIR INTUITION, GUT INSTINCT OR SIXTH SENSE

7 Ways Effective Leaders MANAGE THEIR EMOTIONS

When they are struggling with a decision, effective managers are able to tune into and use their gut instincts or sense of intuition to make decisions.

They trust this sense and will not do something contrary to their intuition even though there may be compelling reasons for doing so. Having relied upon their sixth sense in the past they trust that it will be the best guide for making a decision in which there is not one obvious answer.

CAN OVERCOME APPEAL OF APATHY, INERTIA AND PROCRASTINATION

By HARVEY DEUTSCHENDORF

“ Life is 10 percent what happens to me and 90 percent of how I react to it.” — C H A R L E S S W IN D O L We are all familiar with the increasing attention given to people or “soft skills” in the workplace over the last 20 years. While managing our emotions effectively in the workplace is a major component for success for all of us, it is crucial for leaders. While emotions running amok can damage those who work directly with us, a leader who is not managing his or her emotions well can create severe havoc on an organization, seriously damaging employee morale, retention and ultimately the bottom line. While employees may get away with an occasional lapse in emotional control, leaders are not afforded that leeway. Every reaction, positive or negative will have consequences for all those who are under them and effect the overall success of the company.

Here are 7 ways that effective leaders are able to manage their emotions.

ARE ACUTELY SELF-AWARE Effective leaders understand their emotional state, what triggers them and what they need to do to make sure that their emotions don’t get the best of them. They understand the importance of keeping their cool in all situations and not to react from their emotions, rather wait until the think things through and respond from a place of reason.

ARE ABLE TO SHARE APPROPRIATELY It is not necessary, or healthy for leaders to be unemotional robots and keep all of their emotions tightly locked up inside. Effective leaders are able to use their emotions to connect with others through their ability to share emotions which enhance relationships with those that report to them. Whether an employee is feeling joy over a successful sales week or sadness over a family member passing, an effective leader is able to express emotions to let that person know that they are connecting with them on a heart level. Their awareness lets them know what they need to support others emotionally. While their emotions are under control they know what to express and how much to let out in the circumstance.

Have you ever had a day when you felt like doing very little, leaving things undone until later, or the next day? Perhaps we are feeling tired, or having a bad day or week. We have all had those days. Leaders have the same struggles but do not have the luxury of giving in to them as many others are dependent upon them to take action and get things done whether they feel like it or not. They have disciplined themselves to do whatever it takes regardless of how they find themselves feeling.

LOOK FOR SOLUTIONS INSTEAD OF LOOKING TO BLAME AND DODGE RESPONSIBILITY One of the easiest traps to fall into for us all is to avoid blame and responsibility when things go south. Poor leaders look for ways to shift the blame to others when things go wrong and avoid responsibility by blaming it on others or circumstances.

Effective, strong leaders immediately begin to look for solutions and take the lead in finding out what went wrong to avoid the same problem in the future. They are more interested in using the failure as a learning opportunity and moving on from it rather than spending time and energy looking for scapegoats.

PUTTING IT ALL TOGETHER Effective leaders are acutely aware of their feelings, their responsibilities towards their staff, their customers and the organization. They have worked on themselves to develop their abilities to keep their emotions in check when necessary and show them when the situation calls for it.

MANAGE THEIR OWN MOODS AND FEELINGS Successful leaders have ups and downs just like everyone else. Events occur that are difficult to deal with can put us all in a bad mood and feel like we need a break from the world. Good managers are able to put these feelings aside for the moment and focus on what needs to be done. They pick the time and place to express difficult thoughts and feelings through their awareness that others are still counting on them to be focused and supportive in the workplace.

DO WHAT IS RIGHT INSTEAD OF WHAT IS POPULAR There are many instances when leaders are tempted to make popular decisions as these will bring them instant feelings of relief from a pressing and difficult situation. However, effective managers overcome the urge to give in to what is popular and opt for what is right. This requires a great deal of self-confidence and courage.

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Harvey Deutschendorf

is an emotional intelligence expert, internationally published author and speaker. To take the EI Quiz go to theotherkindofsmart.com.

His book THE OTHER KIND OF SMART, Simple Ways to Boost Your Emotional Intelligence for Greater Personal Effectiveness and Success has been published in 4 languages. Harvey writes for FAST COMPANY and has a monthly column with HRPROFESSIONALS MAGAZINE. You can follow him on Twitter @theeiguy.

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Winter Exam Window – December 1, 2016 - January 15, 2017 For more information visit shrmcertification.org Contact cynthia@hrprosmagazine.com OR visit our website at www.hrprofessionalsmagazine.com About the instructor: Cynthia Y. Thompson is Principal and Founder of The Thompson HR Firm, a human resources consulting company in Memphis. She is a senior human resources executive with more than twenty years of human resources experience concentrated in publicly traded companies. She is the Editor | Publisher of HR Professionals Magazine, an HR publication distributed to HR professionals in Tennessee, Mississippi, Arkansas, Kentucky and Georgia.

Cynthia has an MBA and is certified as a Senior Professional in Human Resources (SPHR) by the Human Resource Certification Institute and is also certified as a Senior Certified Professional by the Society for Human Resource Management. She is a faculty member of Christian Brothers University in Memphis and teaches Human Resource Management. www.HRProfessionalsMagazine.com

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Ogletree Deakins Welcomes Seasoned Litigator

Kimberly Hodges to Memphis Office MEMPHIS, Tenn. – October 18, 2016 – Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (Ogletree Deakins), one of the largest labor and employment law firms representing management, is strengthening its Memphis office with the addition of seasoned litigator, Kimberly Hodges, who joins as a shareholder. Hodges joins Ogletree Deakins from Federal Express Corporation, where she held the position of Lead Counsel – Litigation and Employment.

“Kimberly is highly respected and recognized in the Memphis legal community,” said Thomas Henderson, managing shareholder of Ogletree Deakins’ Memphis office. “As an in-house attorney at Federal Express, Kimberly demonstrated an ability to do more than just successfully defend the company in litigation; she also looked deeper to assess legal risks, identify root causes of employment issues, and recommend adjustments in policies and practices to prevent future litigation. Her high rate of success with handling complex legal matters throughout the course of her career demonstrates that she will have no problem delivering the tenets of our Client Pledge, and we welcome her to the firm with open arms.”

Hodges has sixteen years of experience as an attorney focused on employment law counseling and litigation. Before becoming an attorney, she began her career in the human resources departments of Trailmobile, Inc., Riceland Foods, and TruGreen-ChemLawn and later worked as a law clerk for the Equal Employment Opportunity Commission. She is an experienced litigator at both the trial and appellate levels, but also brings practical experience in handling employment issues.

During her more than nine-year tenure at Federal Express Corporation, Hodges represented the company in all aspects of trial and appellate litigation, provided advice on litigation strategies and prevention, led and mentored attorneys and staff, and built strong relationships with internal business partners.

A frequent speaker, Hodges has spoken internally at Federal Express Corporation and externally at events hosted by organizations including the Memphis Bar Association, Tennessee Bar Association, and Federation of Defense and Corporate Counsel. Hodges earned her J.D. from the University Of Memphis Cecil C. Humphreys School Of Law and earlier received her B.S. from Arkansas State University.

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EMPLOYERS AND LAWYERS, WORKING TOGETHER. LABOR AND EMPLOYMENT LAW For more than 35 years, Ogletree Deakins has built on the high standards of its founders and their dedication to exceptional client service. One of the largest labor and employment law firms representing management in all types of employment-related legal matters, Ogletree Deakins has more than 750 lawyers located in 49 offices across the United States and in Europe, Canada, and Mexico.

Register at www.ogletreedeakins.com/our-insights to receive updates on recent developments in labor and employment law.

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