Volume 9 : Issue 11
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Important Steps for Initiating a
Ben Admin
Vendor Search
Emerging Opportunities
in Mental Health and Substance Use
Benefits
The Employer’s Role in Choosing a Facility for Same-Day Surgery
Put Money Back in Your
Employees’ Wallets
Nicole Ziegler, Employee Benefits Consultant
McGriff Insurance Services
International Presence. Local Knowledge. EMPLOYERS AND LAWYERS, WORKING TOGETHER Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. The firm has more than 900 lawyers located in 53 offices across the United States and in Europe, Canada, and Mexico.
www.ogletree.com BIRMINGHAM OFFICE 420 20th Street North, Suite 1900 Birmingham, AL 35203 205.328.1900
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Bringing Human Resources & Management Expertise to You
60% of
surgical procedures are now done in an outpatient environment. www.HRProfessionalsMagazine.com Editor
Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher
The Thompson HR Firm, LLC Art Direction
Park Avenue Design
Contributing Writers
Bruce E. Buchanan Brenda Canale William Carmichael Harvey Deutschendorf Katie Eidson Jeannie J. Fisher LeeAnn B. Foster Tammy Henry Trish “Doc” Holliday Russell W. Jackson Xavier D. Lightfoot Joe Miller Kisha Moliere Jeanniey Mullen Martin J. Regimbal Kayla L. Robinson Jeremy R. Sayre James V. Thompson Cristie Travis Edward H. Trent Board of Advisors
Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR Terri Murphy Susan Nieman Robert Pipkin Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine.com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2019 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
Employment Law
4 note from the editor
10 DOL Updates Overtime Rules – What Employers Need to Know
5 Profile: Nicole Ziegler, Employee Benefits Consultant, McGriff Insurance Services 42 Book Look – High Impact Human Capital Strategy 55 WGU Bachelor’s or Master’s Degree Fully Aligned with SHRM’s HR Curriculum
Talent Management 16 HR’s Recipe for Hiring Success in 2020 20 Overcoming Blunders Organizations Make in Succession Planning 26 Why HR Departments Should Take a Longitudinal Approach to Professional Training and Learning 44 24/7/365 Respect @Work! 54 Seven Ways Emotionally Intelligent People Handle Workplace Pressure
Employee Benefits 19 Customized Benefits Solutions for HR Teams and Brokers 22 Possible Recession? What to Do (or Not Do) in Your Retirement Plan
12 The Title VII Debate: Can an Employee be Fired for Being Gay or Transgender? 14 NLRB Delivers Win To Employers Limiting Use of Micro-Units 18 DOL Seeks to Clarify Religious Exemption for Federal Contractors 30 NLRA Update on Profane Outbursts and Offensive Statements 38 Fifth Circuit Says Not So Fast to Fast Food Chain 40 Considerations for Handling Requests for Leave 43 Bass Berry Sims Labor & Employment Law Update in Nashville October 21 46 ICE is on the Warpath Against Employers with 3,000 I-9 Audits in 2 Months
Industry News 6 Highlights from the 2019 TN SHRM Conference & Expo in Chattanooga September 18-20 8 Highlights from the ARSHRM ELLA Conference in Little Rock September 26-27 24 Highlights from the 2019 NCSHRM HR Conference in Hickory September 25-27 34 Highlights from the ALSHRM Strategy in the Sand Conference in Orange Beach October 11
28 Proactive Steps to Streamline Your Ben Admin Technology Search
48 Highlights from the SHRM-Memphis 3rd Annual Inclusive Diversity Conference October 4
31 Help Your Employees Who Suffer from Substance Use Disorder
52 Highlights from the 24th Annual MSSHRM Conference & Expo in Tupelo September 16-18
32 Choosing a Facility for Same-Day Surgery: Employers Have an Important Role to Play
December 2019 issue features Compensation and Performance Management PLUS Employment Law and Employee Benefits Update
35 Living Your Best Life Means Having Life Insurance
Deadline to reserve space November 15
36 Emerging Opportunities in Mental Health and Substance Use Benefits 50 Open Enrollment – Financial Benefits www.HRProfessionalsMagazine.com
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a note from the editor
You are going to love this issue, which focuses on employee benefits planning and compliance! We have articles on some of the topics that keep you awake at night. Are you considering a change in your ben admin platform? If so, you are going to find Kisha Moliere’s article on Page 28 very helpful. Cristie Upshaw Travis contributed an article on emerging opportunities in mental health and substance use benefits on Page 36. Want to put money back in your employees’ wallets? See Page 50 for open enrollment – financial benefits by Joe Miller. Did you know that more than 60 percent of surgical procedures are now done in an outpatient environment? Read about the Leapfrog Group’s research on the safety and quality of these procedures. Leapfrog also issues the Hospital Safety Grade, an A, B, C, D or F grade assigned to general acute care hospitals based on their ability to prevent avoidable errors, injuries, and infections that can harm or even kill patients. Leapfrog’s new report, Same-Day Surgery in the U.S.: Findings of Two Inaugural Leapfrog Surveys, details preliminary findings of its inaugural voluntary survey of ASCs and an added section of the Leapfrog Hospital Survey covering outpatient surgery. See Page 32 to find out how to access their latest survey to help save your organization money on healthcare expense. It is an honor to have Nicole Ziegler, Employee Benefits Consultant with McGriff Insurance, on our November cover. I know you will enjoy reading her professional profile on Page 5. Nicole serves as the Middle Tennessee Practice Leader for the McGriff Employee Benefits practice. She is responsible for developing relationships with clients, prospects, carriers, and industry counterparts. With 19 years in the insurance industry, Nicole serves as a trusted advisor guiding her clients through the complex world of employee benefits.
Happy Thanksgiving! 4
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This issue also includes coverage of many of the SHRM fall conferences that you have been looking forward to. In addition to the highlights in this issue, you can find exclusive video interviews with the conference leadership, the keynote speakers , and some of the top concurrent speakers from each conference on our Facebook page, www.facebook/hrprofessionalsmagazine.com, and also on YouTube. Please Like us on Facebook, and follow me on YouTube at Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR. When you Like our Facebook page, you will receive instant notifications anytime we are bringing you interviews such as these, and important breaking news and updates on HR events in your area. Our December issue will include the latest compensation and performance management issues and solutions. Please mark your calendars and plan to join us November 19 for “The Business Case for Talent Acquisition.” Watch your email for your invitation. If you are not currently on our email distribution list, please visit our website and click on Subscribe. Wishing you and your family a beautiful Thanksgiving season.
cynthia@hrprosmagazine.com @cythomps on Twitter
Nicole on the cover
ZIEGLER
Nicole Ziegler, Employee Benefits Consultant McGriff Insurance Services Nicole is very active in her
Nicole Ziegler joined McGriff Insurance Services in 2007 where she specializes in Employee Benefits
community and has previously
Consulting. Nicole also serves as the Middle Tennessee Practice Leader for the McGriff Employee Benefits
served on, or is currently serving in
practice. In this leadership role, Nicole is responsible for developing relationships with clients, prospects,
the following volunteer roles/clubs:
carriers, and industry counterparts for the growth of that market.
Rotary Club, Leadership Putnam, Highlands Leadership Development, construction of Heart of the City Playground, Jacob’s Ladder Board of Directors, American Cancer Society Board of Directors, TSSAA State Football Championship – Sales & Ambassador, volunteer at Habitat
With 19 years of experience in the insurance industry, Nicole serves as a trusted advisor working closely with her clients as she guides them through the complex world of Employee Benefits. As a Benefits Consultant, Nicole is the designated “quarterback” for her clients. She strives to develop a strategic plan for each client that defines objectives and outlines the actions needed to fulfill those objectives. Under Nicole’s direction, each client is assigned a dedicated service team that works together to deliver the perfect client experience not only to the group, but also the employees they serve. Nicole works with clients of all sizes; however, she specializes in the middle and large group market.
for Humanity, volunteer at Heart
Nicole holds a B.S. degree in Business Administration from Tennessee Technological University. While
of the Cumberland, Chamber of
in college, Nicole began working at a large transportation company in the Group Benefits Division of
Commerce – membership campaign
their HR Department. During her tenure with this company, Nicole was able to gain firsthand benefits
leader, CityScape Board of Directors,
experience which allowed her to fully understand the daily challenges that Benefit Administrators face
Cookeville Regional Medical Center
within their organization. After graduating from TTU, Nicole moved to Florida where she began her
Foundation Board and SHRM.
insurance brokerage career working with a large privately owned insurance agency. In 2007 she and her family moved back to Tennessee, where she joined McGriff Insurance Services. McGriff Insurance Services is a subsidiary of BB&T Insurance Holdings, the fifth largest independent insurance broker in the U.S. as ranked by Business Insurance. With over $26.6 billion in premium volume, the company’s 7,000 plus employees operate from 135 offices in the U.S., McGriff is also Tennessee’s largest retail brokerage operation, with six offices and more than 200 employees. “We provide our clients with innovative solutions from our in-house, subject matter experts. Our expertise allows employers to maximize their benefits investment”, says Ziegler.
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HIGHLIGHTS
SOCIAL EVENT
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A unique social event will be held at Southside Social in Chattanooga’s Southside district . Southside Social is a family-friendly boutique bowling alley that offers 10 lanes in addition to 4 bars. Southside Social offers an exclusive atmosphere which creates an exuberant experience, including: lounge seating with flat-screen televisions, and an indoor gaming area with pool tables, skee ball, ping pong, shuffleboard, giant jenga and more. The outdoor courtyard also offers casual seating, fire pits, ping pongtables, horseshoes, and cornhole.
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REGISTER
1 Tennessee SHRM State Council
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2 Tennessee SHRM Volunteers
3 SHRM-Memphis members 4 Dan Coyle, author of The Culture Code,
Attendees, Exhibitors, and Sponsors may visit www.shrmchattanooga.com for registration and hotel was a keynote speaker. 5 Jessica Kriegel, generational diversity expert, information. For additional questions regarding the 2019 conference, please email was a keynote speaker. 6 Heather Young, a keynote speaker, spoke on pastpresident@shrmchattanooga.com. “The 7 Intuitive Laws of Employee Loyalty.” 7 Fred Bissenger, attorney with Wimberly Lawson, presented “Navigating Difficult Disability Scenarios.” 8 Amy West, Director of Tennessee SHRM, and Nancy Conway, SHRM 8
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Field Services Director
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9 Brigette Wilson, SHRM-Memphis President-Elect; UM SHRM Student Chapter Leadership Board members Mary Merschat, Melisa Burgess, April Mitchell, Daniel Tate, SHRM Student Chapter President, UM SHRM Student Chapter Faculty Advisor, Dr. Kathy Tuberville. 10 Doug Harris with WGU 11 Rob Zimlich with Mercer, spoke on “Global Talent Trends and Digitizing the Employee Experience.” 12 Danielle Fowler with MTSU 13 Dr. Jack Phillips, chairman of ROI Institute, led a mega session on “High Impact Human Capital Strategy.” 14 (L-R) Dr. Trish Holliday, Awards Committee; Amy Laster, UTK-Graduate Student, was the recipient of the Joseph P. Goddard Award; Amy West, Director of TN SHRM 15 Dr. Trish Holliday, Awards Committee; Amelia “Mia” Myers, recipient of the James House Williamson Scholarship Award; and Amy West, Director of TN SHRM 16 Amy West, Director of TN SHRM; Tyler Stegall, City of Memphis HR Project Manager, accepts award for Chief Alex Smith, CHRO for the City of Memphis; and Dr. Trish Holliday 17 Fred Clelland and Rob Binkley, attorneys with Rainey Kizer Reviere & Bell PLC. 18 Stewart Gott with Data Facts, Inc.
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HIGHLIGHTS
SEPTEMBER 26-27, 2019 | ROBINSON CENTE
September 26-27, 2019 | Robinson Center & Doubletree Hotel | Little Rock, Arkansas
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Thank you to our PRESENTING SPONSOR
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1 Debra Finney, Outreach and Education Manager for the Memphis Region of the EEOC, presented “EEOC Hot Topics.” 2 (L-R) Roby Brock, Michelle Kaemmerling, Carolyn B. Witherspoon, and Daniel L. Herrington were members of the Employment Law Jeopardy Panel. 3 Allen Dobson, attorney with Baxter, Jewell & Dobson, P.A., presented “Tips for Leading an Internal Investigation.” 4 The 2019 ARSHRM ELLA Committee (L-R) Michael Smith, Patti Airoldi, Shayne King, Tara Arthur, Ruth Anderson, Heather Smith, Tim Orellano, Doreen Mattes, Lt. Gov. Tim Griffin, Holley Little, Kathleen McComber, Nikki Skinner, Donna Carter 5 Audrina Lange, Wage & Hour Community 5
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Outreach Specialist, spoke on “FLSA Overtime Update.”
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6 “The Intersection of Law and Common Sense” was Kim Hodges’ topic. Kim is the Office Managing Shareholder for Ogletree Deakins, Memphis and Jackson. 7 Wayne Young, Partner with Friday Eldredge & Clark LLP, presented the 2019 ARSHRM Russell Gunter Legislative Advocacy Award to Susan Meadors, President at SKM Consulting, Inc. Young was the 2018 recipient. 8 Tim Orellano, 2020 ELLA Conference Chair, presented the 2019 Friend of HR Profession Award to Steve Schulte, attorney at Schulte Law Firm. 9 Susan Meadors and Steve Schulte, award recipients at the 2019 ARSHRM ELLA Conference. 10 (L-R) 2019 Director of ARSHRM, Cathleen Hoffman; and Donna Merriweather, Director-Elect of ARSHRM. 11 (L-R) Kristin Nichols, Ruth Anderson and Nikki Skinner; members of the 2019 ARSHRM ELLA Registration Committee. 12 (L-R) Doreen Mattes and Kathleen McComber, members of the 2019 ARSHRM ELLA Conference Committee
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DOL Updates Overtime Rules – What Employers Need to Know By KAYLA L. ROBINSON
On
September 24, 2019, the U.S. Department of Labor (DOL) announced a final rule updating the salary thresholds necessary to exempt executive, administrative and professional employees from the Fair Labor Standards Act’s (FLSA) minimum wage and overtime pay requirements. Despite an unsuccessful attempt to do so in 2016, these thresholds have not been updated since 2004.
FLSA Background and Exemptions The Fair Labor Standards Act of 1938 establishes standards for minimum wages, overtime pay, recordkeeping, and child labor. Employers subject to the FLSA must engage in interstate commerce and have at least $500,000 in “annual dollar volume of sales or business.” The FLSA requires employers to pay their employees a minimum wage which is currently $7.25 per hour. Employees covered under the FLSA who work in excess of 40 hours a week are also entitled to overtime pay. Overtime must be paid time and one-half of an employees’ regular rate of pay for those hours worked above 40 per week. Several exceptions to the overtime requirements exist, the most common being exemptions for executive, administrative, and professional employees, more commonly referred to as the “white collar” exemptions. To qualify for the white collar exemptions, employees must meet a salary level threshold and a duties test. The baseline salary threshold and duties tests are established by the DOL (specific states may have different exemption rules, including higher salary thresholds or more specific duty requirements). The duty requirements are specific to each exemption. To qualify for the executive exemption, the employee’s primary duties must include managing the enterprise, directing the work of two or more employees, exercising discretion, and having the authority to hire or fire employees. To qualify for the administrative exemption, the employee must perform office or non-manual work and exercise discretion and independent judgment. Finally, to qualify for the professional exemption, the nature of the employee’s work must require advanced knowledge that was acquired through a prolonged course of specialized study. 10
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Additionally, employees who are considered “highly compensated” are not eligible for overtime. Similar to the white-collar exemption, to qualify as a “highly compensated” employee, the employee must meet a salary threshold and a duties test. The salary threshold is set by the DOL and the employee must have primary duties that include performing office or non-manual work and customarily and regularly perform at least one of the exempt duties of an exempt white-collar worker.
2016 DOL Overtime Rule Before DOL announced its updated overtime rule in September, its most recent overtime rule was issued in 2004. The principle provision of the 2004 overtime rule increased the salary threshold for white collar employees to $455 per week or $21,480 per year. The DOL attempted to increase the salary threshold for the white-collar exemption from $455 to $913 per week or $47,476 per year in a final rule that would have been effective December 1, 2016. The 2016 rule would have also increased the salary threshold for highly compensated employees from $100,000 to $134,004 per year and provided for automatic increases to the salary levels every three years. However, 21 states challenged the rule in Texas federal court. A Texas federal district court enjoined the rule in 2016, finding that DOL’s rule created a de-facto salary-only test, which is contrary to the FLSA’s duties test to qualify under the white-collar exemption. The court also found that DOL did not have the authority to implement automatic updates to the salary thresholds. The district court’s ruling was appealed at the beginning of the Trump administration, but the DOL is currently enforcing only the $455 per week threshold. The DOL’s issuance of the 2019 rule indicates that the appeals case will likely be dismissed for mootness.
2019 DOL Overtime Rule - What Employers Need to Know DOL’s new overtime rule, issued on September 24, 2019, makes three significant changes to prior DOL overtime regulations. First, the minimum salary level increases from $455 per week to $684 per week, or $35,568 per year. This minimum salary level increase does not apply to Puerto Rico, the U.S. Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and American Samoa. The $455 per
week salary level will continue to apply in those locations with the exception of American Samoa, where a $380 per week threshold will apply. Additionally, DOL set a weekly base rate of $1,043 per week for the motion picture producing industry. Therefore, employers who want to claim the “white collar” exemption under FLSA should review the salaries of their employees to ensure that their salaries meet the new minimum salary levels. The second change is that the highly compensated employee salary level increases from $100,000 to $107,432 per year. Again, it is important here for employers who rely on the highly compensated employee exemption to review their compensation structures to ensure that those employees’ salaries meet the new level. There is also no mention in the rule of automatic increases to the salary thresholds, which can give employers some reassurance that the minimum salary and highly compensated salary thresholds will only be increased through the rulemaking process. By DOL going through the rulemaking process, employers will be able to provide comments on future proposed threshold increases, which they would not be able to do if the increases were automatic. The final change, and coincidentally the only provision that survived from the 2016 rule, allows employers to use nondiscretionary bonuses and incentive payments, including commissions, that are paid at least annually to satisfy up to 10 percent of the salary thresholds. Under this provision of the new rule, employers can reduce salary increases for exempt employees by implementing annual bonuses or incentive payments that cover the difference between the new minimum salary threshold and the employee’s salary, up to 10 percent. This is also
referred to as the “10 percent rule.” If, at the end of the year, employers using the 10 percent rule have not met the minimum salary threshold, DOL permits employers to make a final “catch-up” payment within one pay period after the end of the year in order to bring the compensation up to the required level.
Next Steps DOL’s new overtime rule takes effect on January 1, 2020. With less than six months until the effective date, employers should discuss compliance strategy with counsel. Employers who are considering utilizing the 10 percent rule should also coordinate with their human resources and payroll offices to ensure that there are policies and monitoring in place to ensure that the minimum salary thresholds are met for their exempt employees. Furthermore, when having these compliance discussions, it is important to keep in mind that DOL’s new overtime rule only changes federal overtime requirements. States and municipalities can issue their own overtime rules that go beyond the federal requirements. Therefore, in addition to developing a compliance strategy for the new DOL overtime rule, employers should monitor state and local laws for changes.
Kayla L. Robinson, Attorney Martenson, Hasbrouck & Simon LLP krobinson@martensonlaw.com www.martensonlaw.com
Martenson, Hasbrouck & Simon LLP focuses its practice
ADVICE THAT WORKS.
on labor and employment defense and business litigation. Our reputation for excellence has been earned through our dedication to providing innovative solutions to the most difficult problems at an exceptional value. We have forged long-lasting relationships with our clients through our tenacity, skill, and accessibility. Based in Atlanta, in the heart of Buckhead, with two additional offices in California, we have developed a highly flexible representation model that enables us to serve clients of all sizes, across all regions of the country.
Contact Marty Martenson at (404) 909-8100
3379 Peachtree Road, NE Suite 400 Atlanta, GA 30326 martensonlaw.com
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The “Title VII Debate:” Can an Employee be Fired for Being Gay or Transgender? By XAVIER D. LIGHTFOOT and JEREMY R. SAYRE
HR
Professionals will soon know the answer to this question. The United States Supreme Court is preparing to settle a contentious debate on employee protections under federal employment discrimination laws. On October 7th, the Court returned from its summer break to start the new term. The Court did not have to wait long before it tackled a complex case because on October 8th, the Court heard two major oral arguments with potentially far-reaching implications for both employers and employees. Both cases focus on the prohibitions in employment discrimination under Title VII of the 1964 Civil Rights Act (“Title VII”). Under Title VII, Congress made it illegal for employers to discriminate against employees on the basis of “race, color, religion, sex, and national origin.” The question that the Court will address is whether employment discrimination based on sexual orientation or gender identity is prohibited employment discrimination “because of sex.”
A federal district court granted summary judgment against Zarda, reasoning that his claim was not cognizable under Title VII. However, the Second Circuit reversed, with a majority of the court believing that sexual orientation discrimination is motivated by sex and, therefore, a “subset of sex discrimination.” Thus, the Second Circuit concluded that federal law prohibits the firing of an employee on the basis of sexual orientation. Notably, the court reached this conclusion by taking a broad interpretation of the meaning of the text “because of sex.” Specifically, the court reasoned that Title VII must protect sexual orientation “because sex is necessarily a factor in sexual orientation.”
The first case the Court heard was a consolidated matter involving cases from the Second Circuit Court of Appeals (Altitude Express Inc. v. Zarda) and the Eleventh Circuit Court of Appeals (Bostock v. Clayton County, Georgia), both of which involve men who claim they were fired from their jobs because of their sexual orientation.
The Eleventh Circuit reached the opposite conclusion in Bostock v. Clayton County, Georgia. The plaintiff in Bostock, Gerald Bostock, was a Child Welfare Services Coordinator in Clayton County for over ten years. Although Bostock had received good performance reviews for his work, an internal audit was conducted on his program’s funds. Bostock, who is gay, claimed the audit was a “pretext for discrimination against him because of his sexual orientation.” During an advisory meeting, where Bostock’s supervisor was present, at least one person criticized Bostock’s sexual orientation and his participation in a gay softball league.
Second Circuit: “Sex” is Necessarily a Factor in Sexual Orientation The plaintiff in Zarda, Donald Zarda, was a skydiving instructor, who died in 2014. Prior to his death, a female client complained that Zarda inappropriately touched her during a jump. At some point, Zarda communicated to the client that he was a homosexual and “had an exhusband,” a practice that Zarda stated he often did with female clients to put them at ease. Altitude Express terminated Zarda in connection with the complaint; however, Zarda insisted he was fired solely because of his reference to his sexual orientation. 12
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Eleventh Circuit: Discharge for Homosexuality Not Prohibited by Title VII
After his complaint was dismissed at the district court level, Bostock appealed to the Eleventh Circuit. Referring back to a 1979 decision, the Eleventh Circuit reasoned that it had already held that “[d]ischarge for homosexuality is not prohibited by Title VII.” While hinting that this earlier ruling may have been wrong, the court held that it had no choice but to follow precedent and affirm the dismissal of Bostock’s claim.
Sixth Circuit: Discrimination on the Basis of Transgender and Transitioning Status is Necessarily Discrimination on the Basis of Sex The second case, Harris Funeral Homes v. EEOC, presents a similar question to Zarda and Bostock. That is, whether employees can be fired based on their status as transgender. The case involves Aimee Stephens, who was a funeral director and embalmer for R.G. & G.R. Harris Funeral Homes. While working in this position for six years, Stephens dressed and presented herself as a man without issue. However, once Stephens communicated that she wanted to live and work as a woman before having sex-reassignment surgery, she was terminated. The owner of the funeral home, a devout Christian, admitted that Stephens was fired because she “was no longer going to represent himself as a man. He wanted to dress as a woman.” The owner believed this change would violate “God’s commands.” After Stephens filed a discrimination charge, the Equal Employment Opportunity Commission (“EEOC”) pursued a complaint on her behalf against the funeral home. In ruling in favor of the employer, the district court reasoned that transgender status is not a protected trait under Title VII and that the Religious Freedom Restoration Act (“RFRA”) precludes the EEOC from enforcing Title VII in this instance as doing so would substantially burden the employer’s religious exercise. The Sixth Circuit reversed, holding that “discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.” The court further ruled that the RFRA did not apply to protect the funeral home’s actions because the funeral home was not a “religious institution,” and Stephens was not a “ministerial employee” excluded from Title VII’s protections.
Stakeholders: States, Federal Government, Employers, and Employees The Supreme Court’s ruling in these cases, which is expected in the spring or summer of 2020, has the potential to be monumental because of the many stakeholders involved. Currently, 21 states and the District of Columbia have barred sexual orientation and gender identity discrimination by statute or regulation, as have a number of counties and municipalities. While a few other states provide protection from this type of discrimination either by agency interpretation or court ruling, the remaining states in the country offer no protection under their state laws. This means that LGBTQ individuals who live in states such as Alabama, Florida, Georgia, Indiana, and even North Carolina (at least with respect to private employers) may have no remedy to this type of employment discrimination outside of Title VII. Additionally, states who have passed laws in this area may face challenges in enforcing those laws if the Supreme Court decides that Title VII does not protect gay and transgender status. Many of these states lean on the EEOC’s authority to investigate claims of discrimination against companies that operate in multiple jurisdictions, and the EEOC has been successful in partnering with states to investigate discrimination claims and enforce such actions. However, states would lose EEOC assistance should the Court decide that Title VII’s scope does not extend to sexual orientation or gender identification.
Although the EEOC traditionally has been on the side of expanding Title VII protections, the federal government in the most recent litigation has aligned itself with the employers. In particular, United States Solicitor General Noel Francisco argued that Title VII’s prohibition on discrimination “because of sex” does not apply to sexual orientation or gender identity. Accepting this interpretation, Title VII is limited to barring employers from treating women different from men in the same or similar position, and vice-versa. Equally important to the states’ and federal government’s interest is the interest of employers. Companies have lined up on both sides of the debate with over 36 briefs filed in support of Bostock and Zarda, and over 24 briefs filed in support of Clayton County and Altitude Express. For example, one brief filed in support of Bostock and Zarda includes 206 companies representing businesses such as Apple, Google, Facebook, Walt Disney, Coca-Cola, and Uber. These businesses argued that interpreting Title VII to “exclude sexual orientation or gender identity from protections against sex discrimination would have wide-ranging, negative consequences for businesses, their employees, and the U.S. economy.” In contrast, the C12 group that represents “the largest network of Christian CEOs, business owners, and executives in the United States” filed a separate brief in support of the employers arguing that interpreting “because of sex” in Title VII to include sexual orientation and gender identity ignores the natural meaning of the law, “thereby bypassing the political process, shutting down debate, preventing any accommodation of divergent views, and precluding any compromise.”
Makeup of the Court: The Deciding Vote Prior to his retirement, Justice Anthony Kennedy was the deciding vote in several gay rights cases. However, Justice Kennedy is no longer on the bench, and these cases present the first opportunity for the public to see how his successor, Justice Brett Kavanaugh, will vote on these issues. Also, Justice Neil Gorsuch, successor to Justice Antonin Scalia, may play a key role in deciding these issues. Similar to Scalia, it is believed that Justice Gorsuch is more inclined to rule that courts should naturally interpret statutes as they were meant when enacted. Should Justice Gorsuch hold firm to this view, then there is some thought that he may conclude sexual orientation and gender identity were not meant to be included as discrimination "because of sex" under Title VII. The perspectives of these new Justices are likely to dictate the Court's ultimate decision – a decision which may directly impact the employment landscape for years to come.
Xavier D. Lightfoot, Attorney Ward and Smith, P.A. xdlightfoot@wardandsmith.com www.WardandSmith.com
Jeremy R. Sayre, Attorney Ward and Smith, P.A. jrsayre@wardandsmith.com www.WardandSmith.com www.HRProfessionalsMagazine.com
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NLRB Delivers Win To Employers Limiting Use of Micro-Units By RUSSELL W. JACKSON
On September 9, 2019, the NLRB determined that a petitioned-for unit of two groups of Boeing employees was not an appropriate unit under the NLRA. The case is Boeing Company and International Association of Machinists and Aerospace Workers. Factual Background The two classifications involved technicians and quality inspectors at Boeing’s North Charleston, SC facility, where it manufactures 787 aircrafts. The facility has 2700 production and maintenance employees. The production of the airplane’s tail occurs in the AFT building. The body and wings are built in the Mid-Body Building. The tail, body and wings then travel to the Final Assembly Building where they are joined. In each of the three buildings, technicians perform the work, and quality inspectors check the work. After Final Assembly, the airplane is taken to the Flight Line. At the Flight Line, the aircraft is powered for the first time, finalized, tested, certified and delivered to the customer. The technicians working at the Flight Line are Flight Line Readiness Technicians (“FRTs”). The quality inspectors at Flight Line are Flight Line Readiness Technician Inspectors (“FRTIs”). After a failed attempt at unionizing the 2700 workers, the Union petitioned to represent a bargaining unit comprised of only the FRTs and FRTIs, approximately 178 employees. Boeing refused to bargain. In May 2018, the Regional Director concluded the petitioned-for unit was appropriate. FRTs are in Boeing’s operations department with the other technicians at the facility. FRTIs belong to the quality department with the other quality inspectors. FRTs are supervised by nine operations managers, two of whom also supervise excluded employees. FRTIs are supervised by field quality managers, who also provide instruction to excluded inspectors. FRTs and FRTIs earn higher wages than most other employees. Aside from a few minor distinctions, including the dress code and slightly different shifts, FRTs and FRTIs share all other terms and conditions with the excluded employees. These include: timekeeping system, payroll and direct deposit system, performance management system to determine pay and raises, attendance guidelines, overtime system, disciplinary program, policies for environmental health and safety, same hiring practices, leave policies, healthcare benefits and dental plan, investment plans, life insurance and disability plans, flexible spending accounts, gift matching programs, physical fitness program, cash awards program, badge protocols, and alternative dispute resolution program. The Board’s Analysis The Board clarified its 2017 decision in PCC Structurals, which had overturned the NLRB’s Specialty Healthcare decision. Specialty Healthcare had made it easier to unionize smaller groups of employees (i.e., micro-units), rather than the entire workforce. In PCC Structurals, the NLRB announced its return to the community of interest standard. The Board in PCC Structurals applied the traditional test to determine whether the petitioned-for-employees share a community of interest sufficiently distinct from employees excluded from the proposed unit to warrant a separate appropriate unit. In Boeing, the Board’s clarification of PCC Structurals set forth the following relevant threestep process: (1) The proposed unit must share an internal community of interest. (2) The interests of those within the proposed unit and the shared and distinct interests of those excluded from the proposed unit must be comparatively analyzed and weighed. (3) Consideration must be given to the Board’s decisions on appropriate units in the particular industry. 14
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Step One – Shared Interests in Petitioned-For Unit The analysis begins with whether the petitioned-for unit has an internal community of interest. A unit without such an interest is inappropriate. The Board held that the FRTs and FRTIs were too distinct to form a community of interest. The similarities of the employees included: nearly identical terms and conditions of employment, frequent daily contact with each other at the Flight Line, and sharing many of the same skills and training. However, the Board found the groups had significantly different interests in the context of collective bargaining. They are in separate departments and have different supervisors. They have fundamentally different job functions – FRTs are technicians who perform the mechanical work; FRTIs are inspectors who check for quality. Based on these differences, the Board held the two groups did not share a community of interest. Step Two – Shared Interests Between Petitioned-For Unit and Excluded Employees The second step requires an analysis of the included and excluded employees. At this stage, the Board determines whether excluded employees have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members. If the distinct interests do not outweigh the similarities, the micro-unit is inappropriate. The Board determined the interests of excluded employees were not meaningfully distinct from and did not outweigh similarities with the interests of the petitionedfor employees. The Board found noteworthy that all 2700 employees work towards producing a single product – the 787 aircraft. The FRTs and FRTIs are only responsible for about one percent of the entire process’s tasks. Fourteen percent of FRTs’ and FRTIs’ functions overlap with work also performed by excluded employees. A portion of the work exclusive to the Flight Line is at least similar, if not redundant of, work performed by excluded employees. The Board found the factors that distinguish FRTs and FRTIs from the excluded employees were relatively insignificant for purposes of collective bargaining. Although FRTs and FRTIs have higher wages than many excluded employees, they share almost all other terms and conditions of employment with excluded employees, including all personnel policies and benefits. Aside from one certification required for employees working on the aircraft in repair station status, FRTs and other technicians possess almost identical skills and training, while FRTIs share the same with the other excluded inspectors. The Board found noteworthy that repair station status – which requires a particular license
for FRTs and FRTIs – lasts only a small portion of time the aircraft is on the Flight Line. The Board determined it was unlikely that the unit’s interests related to skills and training are much different than the interests of the excluded employees. Contact was the only factor weighing in favor of the petitioned-for unit. FRTs and FRTIs generally only have contact with a small number of other employees who come to Flight Line to provide assistance. This, however, was not enough of a difference to establish a separate micro-unit. FRTs and FRTIs are fully functionally integrated with excluded employees, share departments with excluded employees, share supervision with excluded employees, perform the same job functions as excluded employees, share terms and conditions with excluded employees, and share the same skills and training with excluded employees. As a result, the Board found that the excluded employees have the same collective bargaining interests as FRTs and FRTIs. Step Three – Special Considerations for Industry, Facility or Employer At the final stage, the Board determines whether special considerations exist in the industry. The Board determined that no considerations exist in this situation. The Board rejected Boeing’s contention that there is a presumption favoring a plantwide unit, which must be rebutted be a union seeking a smaller unit. Board’s Conclusion The Board found the petitioned-for unit employees do not share an internal community of interest and their interests were not sufficiently distinct from those of excluded employees. As a result, the Board vacated the Union’s certification. Dissent Member McFerran was the lone dissent. She contended that under the majority’s view, the only appropriate unit is one that combines all 2700 production and maintenance employees at the facility. McFerran criticized the Board’s implementation of the three-step process, and, in particular, the second step – identifying differences between the petitioned-for unit and the excluded employees. She described the weighing of
excluded employees’ interests as “an upending of wellsettled unit determination principles that PCC Structurals purported to reinstate.” McFerran argued that even applying the three-step process, there was no basis for determining the petitioned-for unit as inappropriate. McFerran found that a community-of-interest did exist because the FRTs and FRTIs are highly skilled individuals who possess a license which only six percent of other workers possess; they perform distinct job functions of rendering operational and then testing the fully operational aircraft; they have no meaningful contact with other employees; they have limited interchange with other employees; they are separately supervised and attend daily separate supervisory meetings with each other; higher wages; they also have unique shift and hours, mandatory drug testing program and special safety procedures. Conclusion Based on the Boeing decision, employers should have stronger arguments to combat union’s attempts at organizing micro-units. However, employers should be aware that unions will continue to attempt to unionize smaller groups of employees and be ready to oppose such measures if the above-referenced three step factors weigh against such a proposed unit.
Russell W. Jackson, Partner FordHarrison rjackson@fordharrison.com www.fordharrison.com
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HR
Turkeys Should Be Roasted, Not Hired
HR’s Recipe for Hiring Success in 2020 By TAMMY HENRY
and everyone else involved in hiring may be diligent. Unfortunately, bad applicants can still squeeze through holes in the hiring process. 2020 poses special challenges to companies looking for the best talent to fill open positions.
How can you avoid the pitfalls that 2020 brings and hire the best, most qualified people for the job? Here’s a complete recipe for a productive, successful hiring program.
First, gather your ingredients:
Accurate job descriptions. If the ad doesn’t accurately depict the job, you’re not going to get the best candidates for it. Honestly audit the job’s tasks and responsibilities and lay them out thoroughly. In addition, include the personality type and skill set that would have the most success in the position. A pre-planned process. You don’t throw a cake in the oven and bake it until you remember it again! Why would you do that with your hiring process? Set up a timeline for advertising, interviewing, and deciding who to hire and stick with it if possible. Helpful technology. A key ingredient some companies overlook is technology. Automated calendars, mobile-friendly applications, Applicant Tracking Software (ATS), and text-reminders can be used to communicate with applicants effectively and reduce the time to hire. Knowledgeable team members. Those involved in the hiring process must follow the rules and practices you set. Otherwise, you could end up dealing with unfair hiring practices that could get you sued. Train each person involved in hiring on your expectations and keep the process at the top of their minds with consistent follow up. Everyone should know and understand exactly what they should be doing at every stage. A heaping helping of compliance. This is an invaluable ingredient and, if you lack it, the oversight can ruin the entire thing. Stay abreast of rules and regulations and train everyone involved in the hiring process. You should also be able to ask your vendors for help with this important step.
Mix. These ingredients help you secure your next one, which is…
A pool of rare talent. Unemployment is low so competition among companies is fierce for those highly-qualified A-players. Your recruiting process will determine how large and relevant the resumes and applications you receive end up being. Keep in mind that your competitors are probably interviewing the same batch of would-be employees, so the way you correspond and treat them during the interviewing process is going to impact whether you end up with them or they end up working for the competition. 16
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Top it off with…
A solid candidate experience. Every job seeker expects to be treated considerately. Wasting someone’s time is negatively viewed by the interviewee and can harm your employer brand. Interviewers showing up late, taking calls or answering texts during the interviews, and not getting back to applicants promptly are all actions that show a lack of respect. If another company is wooing them, how your company treats the person versus how the competition treats them can be the deciding factor in which position they accept. Tempting offers. The current hiring climate doesn’t bode well for organizations offering the bottom dollar. Chances are good your top candidates are talking to other companies who might be extending a better package. If you find a top-notch candidate, be ready to pay at or above market value. Also make them aware of every benefit working for your company offers. Flexible work schedules, ample PTO, strong medical and health benefits, and other non-traditional benefits may be the icing on the cake for the applicant you want to hire. Thorough background checks. Even though you want to move swiftly so you land your first choice to fill the position, you still need to screen every would-be employee. Making an offer that hinges on the person’s background check is a smart best practice and allows you to make the offer without waiting. Your background screening partner is also crucial to the process. Use a reputable company that can show you documented turn times on the screening products you use. That way, you’re not stuck in limbo waiting days longer than necessary for information to be returned to you. Finally, peek at your creation periodically. Leaving your hiring process as-is without review can create an outdated, ineffective policy that, over time, can hurt your organization. HR professionals should review and re-vamp the policy consistently to keep up with the ever-changing laws and EEOC guidance regarding hiring. This recipe is sure to help you snag the A-players you need to reach your company’s goals and achieve your initiatives in 2020. By sticking with it, you’ll create a powerful hiring process that outshines your competition.
Tammy Henry, VP of Client Success Data Facts, Inc. thenry@datafacts.com www.datafacts.com
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DOL Seeks To Clarify Religious Exemption For Federal Contractors By EDWARD H. TRENT
On August 15, 2019, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) issued proposed regulations updating the definitions section of 41 CFR Part 60-1 “to clarify the scope and application of the religious exemption contained in section 204(c) of Executive Order 11246, as amended.” The goal of the new regulations is to provide clarity to religious organizations and institutions when it comes to applying for government contracts. While some have already claimed that the new regulations will legalize discrimination against those who identify with the LGBT community, OFCCP maintains that the regulations merely ensure that the long-standing Executive Order designed to implement Title VII in the area of federal contracts remains consistent with Supreme Court precedent protecting religious freedom. Historical Overview And The Ofccp’s Concerns One year following his signing of the Civil Rights Act of 1964, President Lyndon B. Johnson issued Executive Order 11246 requiring equal employment opportunities in federal government contracting. While religion and sex protections were omitted from the original order, President Johnson corrected this omission two years later. As the preamble to the proposed regulations states: “because the [religious] exemption administered by OFCCP springs directly from the Title VII exemption, it should be given a parallel interpretation.” In support of the clarifying definitions, the OFCCP references several recent Supreme Court decisions. One case is Trinity Lutheran Church of Columbia, Inc. v. Comer, a 2017 decision where the Court held that the State could not preclude a church pre-school from participating in a State grant program for playground equipment just because it was a religious institution. The Court held that the State violated the Free Exercise Clause by conditioning a generally available public benefit on an entity giving up its religious character. Another is the Court’s 2018 decision in Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, where the Court held that a State may not make decisions based on hostility to religion. These broad religious free exercise protections, however, raise the question on who qualifies for the religious exemptions under E.O. 11246 and under what circumstances. OFCCP expresses concern that organizations decline to participate in federal contract programs out of fear they would be required to sacrifice their religious identity to participate. This in spite of decades of court decisions holding that religious entities do not have to sacrifice their religious identity to participate in the marketplace. Indeed, the Third Circuit Court of Appeals (covering Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands) held in 1991 that “the permission to employ persons ‘of a particular religion’ [as set out in Title VII] includes permission to employ only persons whose beliefs and conduct are consistent with the employer’s religious precepts.” Similarly, the Sixth 18
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Circuit Court of Appeals (covering Tennessee, Ohio, Michigan, and Kentucky) held in 2000 that Title VII protects “the decision to terminate an employee whose conduct or religious beliefs are inconsistent with those of its [religious] employer.” The Proposed Regulations The proposed regulations are relatively brief but clear that the religious exemption is to be given “broad interpretation.” The regulations add definitions of “Exercise of religion,” “Particular religion,” “Religion,” “Religious corporation, association, education institution or society,” and “Sincere.” “Religion” is given the same definition as in Title VII, specifically that it “includes all aspects of religious observance and practice, as well as belief.” This protects both the employer and the employee. Likewise, “Exercise of religion means any exercise of religion, whether or not compelled by, or central to, a system of religious belief. An exercise of religion need only be sincere.” This keeps a court from determining the importance of a religious precept or its application. Additionally, “[a] s the Supreme Court has repeatedly counseled, ‘religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.’” The definition of “particular religion” includes the provision that the religious employer can include “acceptance of or adherence to religious tenants as understood by the employer as a condition of employment.” This still does not answer the question of who qualifies to claim the religious exemption. To address this question, OFCCP includes a definition of “Religious corporation, association, educational institution, or society,” which is determined based on three criteria. First, the entity “must be organized for a religious purpose, meaning that it was conceived with a self-identified religious purpose.” The entity does not need to have an exclusively religious purpose, as defined by the employer, but such a purpose must be clear either as expressed in its articles of incorporation, its advertising, its website, or some other means. Second, “the contractor must hold itself out to the public as carrying out a religious purpose.” Similar to evidence of the first criteria, such a religious purpose must be evident to the public in advertising, corporate philosophy statements on its website, and other considerations. Third, “the contractor must exercise religion consistent with, and in furtherance of, a religious purpose.” This may be in the way it operates its business, the kinds of activities it supports, or other means to establish it does more than pay lip service to a religious identity. While no for-profit company is specifically identified as a “religious corporation” in the proposed regulations, the Supreme Court held in 2014 that Hobby Lobby was able to exercise religion. In doing so, the Court did not address the issue of whether Hobby Lobby was a “religious corporation” under Title VII or any federal regulation. Accordingly,
given the breath of the proposed definition of “religious corporation,” the issue of who qualifies as a religious employer and entitled to the religious exemption is the greatest point of contention. The potential expansion of who constitutes a religious employer has some complaining that the regulations go too far, while others champion the clarification maintaining that just because one opens a business does not mean the business owner must sacrifice or violate his or her religious convictions. Churches, religiously affiliated schools and nonprofits clearly fall within the protections and are not required to hire or retain employees who do not support the religious principles of the organization. While there are those who believe that all organizations should be required to abide by all federally mandated non-discrimination provisions without exception - even if those provisions violate the organization’s religious teachings - the Supreme Court has made it clear that religious institutions have special protections when it comes to those who carry out its activities. For example, Catholic Charities should not have to hire and retain an employee who opposes or violates its religious teachings just to qualify for a government contract to provide needed services to immigrants. The broader question is whether a for-profit business whose primary economic activity is not “religious” by nature can claim to be a religious employer under the criteria referenced above. While Hobby Lobby sought an exemption from having to provide certain forms of contraception that violated its owners’ religious beliefs, the question remains whether Hobby Lobby or any other business could qualify as a “religious corporation.” If so, the chorus of objections will rise with the refrain that the exemption is nothing more than a “license to discriminate,” presumably against those who identify with the LGBT
community. The issue of whether an employer has a religious exemption from retaining an employee who announces that the employee will undergo a gender transition was raised and rejected by the Sixth Circuit in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. in 2018. While this case is before the Supreme Court this fall, the issue of the funeral homes’ religious objections to an employee appearing and dressing as a member of the opposite sex is not before the Supreme Court at this time. Yet, that is clearly one of the fears of those who oppose these regulations. Conclusion Both sides of the debate will find aspects of the regulations to support their arguments. There is obviously some tension when it comes to balancing the rights of employers to operate their business in accordance with the employer’s religious beliefs and the rights of an employee to be free from discrimination as provided by Title VII and E.O. 11246. Title VII and numerous court opinions address both protectable interests and often the balance comes down to whether the employer is a religious employer. Accordingly, while the regulations do clarify the scope of the religious protections given to religious organizations and entities created for a religious purpose, just how far the courts and future administrations will go when it comes to deciding whether a particular business qualifies as a “religious corporation” remains anything but clear.
Edward H. Trent, Member Wimberly Lawson Wright Daves & Jones, PLLC Knoxville, Tennessee office etrent@wimberlylawson.com
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Overcoming Blunders Organizations Make in Succession Planning
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uccession planning often becomes an afterthought for organizations because of the rapid changing work environment that exists in today’s workplaces. Between five generations learning how to co-exist with one another, the desire to have an innovative and inclusive work environment, and the rise of skill shortages to fill mission critical roles, managers often become disheartened with planning for the future.
The frustrations of positions left unfilled and significant activities put on hold due to the lack of personnel can be discouraging for managers who desire to serve the customers with excellence and exceed expectations. These are just a few of the challenges facing organizational leaders in today’s modern workplace. Recognizing the importance of creating a talent pipeline for the company is one of the most strategic necessities a leader can address. It is difficult to accomplish organizational goals without the right talent. There is an increased sense of urgency in making succession planning a priority. A well designed succession plan helps organizations become future ready and stay competitive in an ever-changing market. There are three types of succession planning to consider when developing a robust succession strategy for an organization. The first type of succession planning is individual based and focuses on identifying specific employees for the next in line opportunity for a specific role. The second type is called role based succession planning and is a good approach for leaders who have specific roles that are critical to the success of the business and are hard to fill roles. The role based approach requires leaders to identify individuals that would meet the job qualifications and develop them specifically for that specific role in the organization. The third type of succession planning is pool based and allows organizations to enhance the overall talent pool within the company by developing high performing and high potential employees for future responsibilities. The pool based approach offers leaders a talent bench strength that positions the organization in a future ready state and creates broad internal promotion ready candidates. Sheldon Adelson stated, “Why do I need a succession plan? I’m very alert. I’m very vibrant. I have no intention to retire.” How often do we find ourselves thinking this way? Working with leaders at all levels within an organization, I have heard comments like:
By TRISH “DOC” HOLLIDAY
“There is too much financial commitment needed to do a comprehensive succession plan with programming because organizational loyalty is low.” “We do not have the resources to develop a large amount of employees in our workforce so to be fair we just encourage everyone to learn and grow on their own.” The above comments represent just a few of the mindsets that exist regarding succession planning and why many organizations choose to not make it a priority. Research presents a different mindset with a different perspective regarding succession planning. The facts support having a robust workforce development platform that creates future sustainability and helps to increase employee engagement and retain high performers and high potentials. I would encourage leaders to bring the learning and development professionals to the planning table when creating the strategy for the future of the organization. It is important that learning and development become a part of the front end of decisions rather than an afterthought when decisions are already made. When learning and development are considered in the early stages of decisions, the needs of the workforce are addressed, allowing for greater success in the implementation of decisions. When development is viewed as a priority within a company, the workforce is more likely to commit to helping the company achieve the desired goals. When employees feel invested in, their engagement levels rise and productivity increases. A significant step to demonstrating a focus on workforce development is creating a comprehensive succession strategy within the organization. As leaders begin the process of succession planning, it is important to recognize the challenges that can occur if the plan is not designed with the whole organization in mind. A critical part of the succession planning process is to ensure it is connected to the overall strategic goals. Avoiding the most common blunders can help leaders design a future ready plan for success.
The top five blunders organizations make when creating and implementing a succession plan are: Blunder #1: Focusing development only on “A” players and
“We do not have time for succession planning so I encourage my managers to do it organically on their teams.” 20
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missing out on discovering talent that is ready for coaching and new opportunities to grow
Blunder #2: Not focusing on developing others as a priority of the
organization, positioning learning and development as an afterthought
Blunder #3: Offering limited appreciation and recognition within the culture, creating low morale and motivation among the workforce
Blunder #4: Pushing ahead at rapid speed without any time to
demonstrate growth and success among the workforce
Blunder #5: Limited information and access, creating poor
communication and visibility which drive a lack of engagement among teams
Fortunately, there is a way for organizational leaders to avoid these blunders of succession planning. First, leaders must first define the behaviors of high performing and high potential in order for employees to understand the expectations established for advancement. It is important for leaders to create an environment where employees recognize their opportunities for growth and create career paths that are multi-directional. Some of the most sustainable plans within an organization starts with discovery. Leaders must look wider and deeper for talent, acknowledging that great talent and potential exist at all levels of an organization. It is important to support employees’ desire to grow and advance by recognizing their strengths and capitalizing on those strengths for the greater good. Build a culture of appreciation that is grounded in the idea that everyone matters and has something to offer. Move away from simple generic compliments and offer employees specific valued behaviors and actions that help the company progress in the mission and vision. Employees are attracted to roles where they can have a voice and make an impact, and in order to have an impact employees need access to information, vision, and the big picture of how the organization functions. High performing organizations recognize the importance of creating a culture of knowledge sharing and supporting a robust communication strategy that informs the workforce and generates dedication and excitement towards achieving the desired goals of the business. When there is a commitment towards improving the employee experience by developing the workforce, leaders are able to improve employee engagement, increase productivity, and experience optimal organizational performance. By focusing on creating a learning culture that drives innovation and promotes inclusion, organizations will attract and retain high potentials and remain competitive in the race for top talent. Therefore, organizational excellence occurs when leaders embrace succession planning as a priority.
Dr. Trish Holliday, EdD, SPHR, SHRM-SCP, IPMA-SCP, CPC Founding Partner, Holliday | Kenning trish@hollidaykenning.com www.hollidaykenning.com www.HRProfessionalsMagazine.com
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Possible Recession?
What to Do (or Not Do) in your Retirement Plan By JEANNE J. FISHER
Noise of an impending recession permeated the air waves late this summer when the yield curve inverted for the first time in 13 years. This is understandable, as the curve has inverted 9 times since 1962, and all but two of them led to a recession. (Most recent inversion to be determined). An inverted yield curve is a graphical representation of investors accepting lower yields on longer-term treasuries than shorterterm. By definition, this is an ‘unnatural’ state for the economy as investors typically require a higher interest rate for longer-term investments. Given this key economic indicator, investors are beginning to question their investment strategy. But first things first.
What does this have to do with the market?
What is a recession?
What about my investment portfolio?
Economists monitor a variety of economic indicators when evaluating a recession, but the most widely accepted definition is a negative GDP Growth rate for two consecutive quarters. GDP, a nation’s Gross Domestic Product, is the market value of all final goods and services produced. Expanding countries have a positive GDP and a shrinking GDP is indicative of a country’s economy slowing down. You may have heard the phrase “what goes up, must come down”. The business cycle, and the expansion of an economy followed by a recession, is completely natural.
Investors should be cognizant of diversification*. When we reference the ‘market’ above, in relation to America’s GDP and economic outlook, we are talking about one asset class – the domestic stock market. Truly diversified portfolios are comprised of many asset classes that may react differently. In fact, this is the primary reason advisors generally recommend a diversified portfolio. While proper diversification cannot ensure a profit – or protect against a loss – diversification is one of the primary ways we mitigate risk in a portfolio. The idea is your investments should not be too concentrated in one asset class.
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In general, the market is a reflection of economic conditions, but the timing isn’t always perfect. As the economy contracts, companies will make less profit, experience less appreciation in the stock price, and distribute less dividends. But many other factors like consumer confidence, individual sector performance and politics also affect the market. In general, a sustained contraction of the economy would most likely be reflected in the market; however, short-term spikes or corrections may not correlate (compare) with the current economic environment.
One common example of this is the ‘flight to safety’. When investors become concerned about the domestic stock market, they flock to U.S. Government Bonds, a widely recognized safer asset class. In 2008 US Fixed Income was the number one performing asset class with an annual return of 5.24%.
What should I do about my 401k? • Re-Evaluate Your Risk Profile – Speak with an advisor about your asset allocation. How much of your portfolio is allocated to equities versus fixed income? Is the account invested too aggressively given your goals and time horizon? Now is the time, prior to any major market corrections, to make sure you are invested appropriately. • Don’t Try to Time the Market – Once you determine you are invested appropriate for your risk tolerance, stay the course. The primary rule of finance is ‘buy low and sell high’. It makes perfect sense in theory but can be very hard to actually practice. Investors don’t want to sell their outperforming funds and buy more of the underperformers. A paper published by Willis Investment Counsel late last year found that investors lose 1-2% annually by attempting to time the market. • Don’t Stop or Lower Your Contributions – If you are regularly investing in a 401k, you are a ‘buyer’. While a down market can be scary, your contributions are going further. A $200 contribution in a down market may buy more share than in an up market. It’s almost like shopping during a sale!
• Set Up Auto-Rebalancing – Most retirement plan platforms allow you to auto-rebalance your portfolio. Once you establish your desired investment allocation, this is a great way to regularly rebalance back to your original plan. Most investment professionals recommend rebalancing the portfolio once or twice a year. Occasionally, a quarterly rebalance is recommending during a particularly volatile market cycle. If we’ve said it once, we’ll say it again, stay the course! It is natural to feel uncertain during market swings. Now is the time, prior to any major sustained corrections, to review your investment strategy with your advisor or CFP® Professional. Then resist the behavioral temptation to make changes during a market correction.
Jeanne J. Fisher is a Certified Financial Planner and Retirement Specialist with ARGI Investment Services, a Kentucky-based RIA. Respective services provided by ARGI Investment Services, LLC, a Registered Investment Adviser, ARGI CPAs & Advisors, PLLC, SCA CPAs & Advisors, PLLC, ARGI Business Services, LLC, and Advisor Insurance Solutions. All are affiliates of ARGI Financial Group. *Diversification cannot ensure a profit or protect against a loss.
Jeanne J. Fisher, CFP®, CPFA ARGI Financial Group JeanneFisher@argi.net www.argi.net
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TS H G LI H IG H
2019 North Carolina HR Conference September 25-27, 2019 Hickory Metro Convention Center | Hickory, North Carolina
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1 Larry Valentini, 2019 President of NCSHRM, welcomed attendees. 2 SHRM SVP of Membership, Mike Aitken, was a keynote speaker. He discussed workforce trends. 3 2019 NCSHRM State Council
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4 2019 NCSHRM Executive Conference Committee 5 SHRM Field Services Directors, Laurie McIntosh and Nicole Belyna, at the SHRM Booth 6 Coach Roy Williams, head coach of the University of North Carolina Basketball Team, was a keynote speaker.
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7 Richard Eller, keynote speaker, teaches history classes available to high school students through the Promise Scholars Initiative. He spoke on “Inspiring a Miracle: Remembering the 75th Anniversary of the “Miracle of Hickory.” 8 “A Modern-Day Miracle – Igniting Innovation and Cultivating Community” was the topic presented by keynote speaker Kevin Baxter. 9 Joe Lutz, with Catawba Valley SHRM, was the recipient of the 2019 NCSHRM Hall of Fame award presented by Larry Valenti, 2019 President of NCSHRM. Joe was one of the tri-chairs for the 2019 NCSHRM Conference. 10 Kimberly Williams with NC4ME discussed the benefits of hiring veterans.
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11 (L) Nicole Greer, Emcee of NCSHRM Conference, and Keynote Speaker, Robyn Mingle, Senior VP and Chief Human Resources Officer with Commscope, Inc. 12 The SHRM Foundation Auction items 13 2019 NCSHRM Conference Committee
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14 (L) Dawn Rogers with Lake Norman HR, (C) Larry Valenti, NCSHRM President, and Brandy Reese with Lake Norman HR. Lake Norman HR was a 2019 Chapter Crown Award winner. 15 Kristin Flora, Iredell Human Resources Association received the 2019 Chapter Crown Award with Larry Valenti, NCSHRM President 16 Marie MacDonald (L) – 2019 NCHSRM HR Professional of the Year award winner with Larry Valenti, NCSHRM President
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17 2019 NCSHRM Conference volunteers 18 Need ID Black Group expersp ienihil latiis at inciam velit voluptur, omnimi, eos ad ma cuptatqui iliquissedis di dolo ventiun ditias corum niendantur, suntore rnatur oluptatem uta quo voles et, omnis dolorro officae parumq
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Why HR Departments Should Take a Longitudinal Approach to Professional Training and Learning By JOE MILLER
When it comes to learning, one of the biggest challenges all humans have is being able to effectively retain long-term knowledge. In fact, according to a report from WorkLearning, people forget 50 to 80 percent of what they've learned after just one day. Factor in the fact that a recent Microsoft study found that the average human being now has an attention space of just 8 seconds, and you can see why HR departments sometimes struggle with how to keep employees engaged and focused in their training and development programs. Even if someone intensely and comprehensively learns within a dedicated period, that knowledge can degrade as time passes if that learner isn’t continuously exposed to the teachings. This is also known as the forgetting curve. This can become problematic for professionals who have one to two-week long training on a new concept or even a refresh of something they learned long ago.
Longitudinal Learning: Alleviating the Forgetting Curve
One-way of helping to mitigate the forgetting curve is longitudinal or continuous learning. This is the concept that people learn more effectively when instruction is given out or reinforced in small chunks over time. The skills-based learning often seen in sports is an excellent example of longitudinal learning. An individual can take a class and learn the fundamentals of basketball: how to shoot, dribble, and pass. However, if the learning stops there, then much of their basketball learning and development will degrade (forgetting curve). Another example can be seen in the advertising industry, especially when you are dealing with mass media. The ability to build impressions through increased frequencies is at the heart of effective advertising. The “Marketing Rule of 7” states that a prospect needs to “hear” the advertiser's message at least seven times before they'll take action to buy that product or service. One Super Bowl advertisement may generate a million impressions, but a series of optimally-spaced ads delivered to an audience multiple times over a longer period will be much more effective in creating understanding and building engagement with an audience. A good skills-based curriculum will slowly introduce all of the pertinent concepts over a longer period of time with continued practice and reinforcement built into the program after an initial completion. This continuous reinforcement is really the crux of longitudinal learning, a strategy that encourages employees to constantly learn and provides them with the tools and support to help facilitate the increase of knowledge and new skills.
Closing the Skills Gap
In today’s fast-paced society, where technology is constantly evolving, it’s important for professionals to keep skills up to date. According to ATD research, 83 percent of organizations report a skills gap in their organization and 78 percent expect their organizations will have a skills gap in the future. While the skills gap is mainly a shortage of people skilled in the STEM (science, technology, education, and math) industries, there is also a gap in soft skills, such as communication and advanced leadership skills. Teaching soft skills is considered a top priority for organizations, as 92 percent of executives say soft skills are equally important, if not more important than technical skills, according to the 2018 Workplace Learning Report. Two of the world’s largest retailers, Walmart and Amazon, are taking the skills gap into their own hands by making efforts to close it in the areas of work they need the most for their employees. In October 2019, Walmart will offer nearly-free college training to its workers who want to become healthcare professionals to help the company fill 26
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healthcare jobs at Walmart and Sam's Club 5,000 retail pharmacies, 3,000 vision centers, 400 hearing centers, and the first-ever Walmart Health center in Dallas, Georgia. In addition, Amazon’s AWS recently announced it will team up with 19 Los Angeles area colleges to help teach the skills needed for a growing number of in-demand jobs that require cloud computing. Both announcements are signs that the labor market and the institutions educating those who wish to enter the job market are finally working together to make sure there is alignment between the skills and training needed and where the job growth is coming from. It’s imperative for all organizations to jump on this bandwagon to adopt a learning culture that celebrates, rewards, and encourages continuous learning. Longitudinal learning enables learners to maintain mastery of a subject, skill or function for a much longer period of time, to the point that it can offset the forgetting curve. Like learning to ride a bike or tie your shoes, it may take months or years of practice and repetition, but once you learn how to do it, you don’t forget. This type of learning provides an outlet for being able to demonstrate proficiency. It also provides an avenue for enabling learners to improve their knowledge over time, and creates an environment where employees are more open to learning new concepts in bite-sized, micro engagements that fit within their day-to-day work and personal lives.
How Organizations Can Foster Continuous Learning
Organizations should be mindful of how their learning curriculum is being designed and delivered and not just stop at the point of an assessment. Often, training is designed to be contained within a set time period (such as a 1-day workshop); while that in itself is good, it will lose its effectiveness if that content is not reinforced and constant in nature. Enterprises should look for ways to incorporate a learning culture within a company, and provide post-workshop reinforcement, such as small snippets of content with quiz questions emailed out once a week, or incentivize employees to log into their learning platform to accomplish small weekly knowledge missions, with rewards and recognition available – anything to enable employees to stay connected with the materials.
A learning culture ultimately drives behaviors, shapes relationships, and impacts overall success. For learning and training to truly make an impact on an organization and its employee progress, they must build and influence a continuous learning environment. One way an organization can cultivate a learning culture is for the leadership to be on board. If learning is a priority for executives, employees feel more enthused and accountable in working hard to reach business objectives. In fact, according to a 2018 Workplace Learning Report, 94 percent of employees say they would stay at a company longer if it invested in their career development. Similarly, managers should also actively encourage continuous learning. While it might mean time away from their desk, in the long run, the knowledge gained will not only benefit the employee, but also the overall business. Managers motivating employees to attend networking events or sign up for courses will create an atmosphere of support, respect, and growth. Last but not least, investing in an online, omni-channel and learner-centric platform can make it easier to access learning material in one, comprehensive destination, when and where employees have time to digest the content. Employers and employees agree that making time to dedicate to training and learning is a challenge, but by providing them with a digital option, where they can learn on their own time, it helps to reduce this friction. The workplace landscape is changing. We are increasingly seeing employees work remotely and more individuals are working as freelancers versus full-time employees. But one thing that hasn’t changed is the need to keep refreshing workplace skills – whether technical or soft – and continuous learning or training is the best path in helping the knowledge stick. A positive learning culture should be imbedded and praised by leadership so that employees feel empowered to keep learning. This will not only help employees succeed in their careers, but create an environment for overall business growth.
ABOUT THE AUTHOR:
Joe Miller is the Vice President of Learning Design & Strategy (“LD&S”) at BenchPrep – the configurable cloud-based learning platform that delivers the best learning experience and drives revenue for nonprofits, corporations, and training companies. Miller is responsible for overseeing the Company’s LD&S team, which creates program designs and delivers the most optimal learning experience for BenchPrep customers through the company’s learning platform. Prior to joining BenchPrep, Miller spent 12 years in the EdTech space, which included positions at Cengage and Encyclopaedia Britannica with a focus on expanding and transforming digital learning platforms. Miller has helped organizations make these platforms scalable and create more revenue opportunities with his wide-ranging expertise that includes product development, product management, content delivery, and customer marketing. For more information, please contact Joe Miller at (855) 236-2477, visit https://benchprep.com/ or connect with BenchPrep and Joe Miller at https://www.facebook.com/ benchprep/, https://www.linkedin.com/in/millerjoec/ or https://twitter.com/benchprep.
Your Organization Succeeds When Your Learners Succeed BenchPrep is a configurable cloud-based learning platform that delivers the best learning experience and drives revenue for nonprofits, corporations, and training companies.
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Want to learn more? Visit benchprep.com www.HRProfessionalsMagazine.com
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Proactive Steps to Streamline Your Ben Admin Technology Search By KISHA MOLIERE
According to best estimates, there are approximately 400 Benefits Administration Technology and Service (ben admin) providers in the market – all with varying levels of sophistication and capabilities. If your organization is considering acquiring or changing your Benefits Administration platform, just hearing that number can make your eyes glaze over. However, taking the strategic measures below will help streamline your search.
are leaving room for errors - and if they are, provides you an opportunity to eliminate them when implementing your new system. For example, if during this audit you discover there are employees that are terminated in payroll but still active in your ben admin system, you can uncover whether or not your staff is remembering to consistently process the employee termination in both systems. Or, if your payroll and current ben admin systems communicate electronically, it can help uncover EDI or API disconnects that you may have been previously unaware of.
Assess Your Organization’s Payroll/HRIS connectivity capabilities and HR bandwidth. This is an often neglected step that can make your search more concise. At a minimum, your internal team (inclusive of HR and payroll leads) should have a discussion to:
• Audit your ben admin system data vs your carrier systems’ data. Again, you want to confirm whether the information in these systems is consistent. In the example above, if the employee was terminated in the payroll system, but not in the ben admin system due to human or electronic error, then the carrier would still be billing you for that terminated employee. Or conversely, if your payroll and ben admin systems show an election for an employee that is not reflecting in the carrier’s system, not only could there be a disconnect in the transmission of the data, but access to care issues could arise.
• Determine if your payroll/HRIS system has the ability to communicate electronically with ben admin platforms. If it can, inquire if there are any ben admin platforms with which they have established electronic integrations. This step can potentially kill two birds with one stone. First, identifying ben admin platforms that integrate with your payroll/HRIS system can narrow your search tremendously, since most have a limited numbers of partners with which they build this type of connectivity. And second, selecting a ben admin provider with the capability to integrate will eliminate duplicate manual data entry of new hires, demographic changes and status changes into the ben admin system, as well as automate the process of inputting payroll deductions into your payroll system. • Determine whether your staff has the bandwidth and technical skill necessary for administering benefits via a ben admin technology platform, or if you should narrow your search for a vendor that also provides some level of ben admin outsourcing. For example, you may want to limit your search to ben admin vendors that have a call center to assist your employees with their annual enrollment and/or year-round Qualifying Life Events (QLEs). Other limiting criteria could be whether they have the ability to manage the Evidence of Insurability (EOI) process for your voluntary benefits and/or if they offer billing reconciliation services.
Audit the data in your current systems against one another, and then reconcile it. If you currently have a ben admin system in place and are considering changing it, the 2-step audit process below is recommended. (If you do not currently have a ben admin system, you would simply audit your payroll vs each carrier’s system.) • Audit your payroll data against the data in your ben admin system. This helps evaluate whether the information in these systems are synchronized. It also allows you to identify whether your current processes 28
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Identifying and resolving discrepancies between the current systems in advance of implementing the new one - ensures that the data you use to populate the future platform is accurate, reduces overpayments to carriers, avoids unnecessary access to care issues and makes for an overall smoother implementation experience.
Advise your carriers (including voluntary and worksite) that you are going to be adding or changing your ben admin platform. This will allow you to know several important things before beginning your search for a ben admin partner. • First, you can ascertain whether your carriers have any limitations for accepting electronic eligibility. • Second, you can learn whether they have API connectivity with specific ben admin platforms for enrollment and/or management of the EOI process, for example, which reduces the administrative burden for your HR staff. Investing in the process above will assist in making your search - and subsequent implementation of a new ben admin platform - much more effective and efficient.
Kisha Moliere Benefits Administration & Technology Services McGriff Insurance Services 479-718-6507 kisha.moliere@mcgriffinsurance.com
Benefits expertise to help manage costs, mitigate risk and engage employees. Strong Carrier Partnerships Innovative Solutions Financial Analytics and Underwriting Valuation Services
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NLRA Update on Profane Outbursts and Offensive Statements
In
September 2019, a majority of the National Labor Relations Board (the “Board”), over dissent from the Board’s sole democratic member, sought public comments to aid the Board in reconsidering the standard for determining whether “profane outbursts and offensive statements of a racial or sexual nature, made in the course of otherwise protected activity,” should lose their NLRA Section 7 protection. General Motors LLC, 368 NLRB No. 68 (Sept. 5, 2019). The Board’s rationale for seeking comments was that its past “treatment of such language has been criticized as both morally unacceptable and inconsistent with other workplace laws by federal judges as well as within the Board.” Id. Section 7 of the National Labor Relations Act (the “Act” or “NLRA”) protects employees’ rights to complain about their terms and conditions of employment. Generally, employees are granted some leeway with respect to outbursts that otherwise may be considered unprofessional or disrespectful because, as the Board explained, the language of the industrial workplace “is not the language of polite ‘society,’” and the protections afforded by Section 7 “would be meaningless were [the Board] not to take into account the realities of industrial life and the fact that disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses.” Plaza Auto Center, 360 NLRB 972, 978 (2014). Thus, the Board and the courts have held that Section 7 permits a “freewheeling use of the written and spoken word . . . to encourage free debate on issues dividing labor and management.” Old Dominion Branch No. 496, Nat. Ass’n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 272 (1974). Indeed, employees have long been entitled to “use intemperate, abusive, or insulting language without fear of restraint or penalty if [they] believe[d] such rhetoric to be an effective means to make [their] point.” Id. But, employers understand there should be a limit to how far employees can go in expressing themselves. To draw this line, the Board currently considers the factors laid out in Atlantic Steel Co., 245 NLRB 814, 816 (1979): (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice. Through application of this test, the Board purportedly has sought to strike a balance between an employee’s right to engage in protected activity and an employer’s need to maintain order, discipline, and respect in the workplace. 30
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By BRENDA CANALE
When “Free Speech” Includes Profane or Racially-Charged Language Nonetheless, in a number of rulings over the past few years, the Obamaera Board found that certain extreme speech, deemed by employers to be patently offensive, retained its protected status. For example, in Plaza Auto Center, 360 NLRB 972 (2014), the Board found an employee did not lose protection of the Act despite his outburst in a small, closed office during which the employee lost his temper and berated the owner of the car dealership at which he was employed, calling the owner a “fucking mother fucking,” a “fucking crook,” and “an asshole.” The employee additionally told the owner he was stupid, nobody liked him, and everyone talked about him behind his back. The employee ended his tirade by shoving his chair back and telling the owner if he was fired, the owner would regret it. Similarly, in Pier Sixty, LLC, 362 NLRB 505 (2015), enforced 855 F.3d 115 (2d Cir. 2017), an employee who was upset about a supervisor’s “harsh tone” in speaking to employees was found not to lose the protection of the Act after he posted the following message on Facebook during an authorized work break, “[the supervisor] is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!”). Likewise, in Cooper Tire, 363 NLRB No. 194 (2016), enforced 866 F.3d 885 (8th Cir. 2017) an employee was deemed not to have lost protection of the Act following his conduct on a picket line when he directed comments to African American replacement workers, yelling at them to “go back to Africa,” asking them if they brought enough KFC for everyone, and yelling that he smelled fried chicken and watermelon. Signaling the desire for change with its invitation, the Board majority appears troubled by the increasingly broad application of the Atlantic Steel factors to protect extremely offensive remarks. The Board’s current approach may prevent employers from taking disciplinary action against employees for conduct that runs afoul of other state or federal laws prohibiting discrimination, including harassment based on race, sex, national origin, etc.
Invitation by Board Signals Potential Loss of Protection for Extreme Speech Extended by Obama-Era Board Accordingly, the recent invitation to file briefs on this issue indicates a majority of the current Board is concerned that the balance between protected free speech and an employer’s right to maintain order and respect has tipped too far in favor of unchecked profanities, racial epithets, and other tirades. The invitation arises from a case in which an administrative law judge (“ALJ”) considered the suspension of an employee who directed a profane outburst at a supervisor during a discussion about overtime support for employees. Specifically, while acting in his role as a union committeeperson,
the employee was discussing overtime support for employees and told his supervisor that he, “did not give a fuck about [his] cross-training,” and the supervisor could, “shove it up [his] fucking ass.” Applying the Atlantic Steel factors, the ALJ determined that the initial outburst was protected. Notably, the ALJ’s decision was based, in part, on a comparison of the “nature of the employee’s outburst” to that of the outburst at issue in Plaza Auto Center and determined the outburst in the General Motors case before her was “not as egregious” as the outburst deemed protected in Plaza Auto. Nonetheless, the employee in General Motors engaged in two later altercations involving racially charged language and “playing loud music that contained profane and offensive, racially charged lyrics each time [the supervisor] entered or exited the room.” Thus, the ALJ determined the latter two events resulted in a loss of protection under the Act. In soliciting comments, the Board pointed to the aforementioned cases – Plaza Auto, Pier Sixty, and Cooper Tire – for comment and potential review. Specifically, in reviewing the recent General Motors case, the Board cited the foregoing as cases that found “extremely profane or racially offensive language” did not lose the protection of Section 7 and were cases appropriate for review.
Areas of Commentary Sought by Board Noting the “vehemence of judicial criticism” to the Board’s protection of extremely intemperate language by employees in a modern workplace, the Board asked interested parties to address any or all of five questions, paraphrased below:
1.
When should profane language, or sexually or racially offensive speech, lose Section 7 protection?
2. When should the historical leeway for “ill feelings and strong
responses” in industrial life give way to concerns for the lack of respect or offense to others on the basis of race or sex?
3.
S hould the Board continue to consider the realities of the workplace if profanity is commonplace or tolerated, and, relatedly, should the Board consider employer policies about profanity, bullying, or uncivil behavior in the context of Section 7 protection?
4.
Should the Board overrule the line of authority that permits racially or sexually offensive language on the picket line, the historical bastion of profane language?
5.
Should the Board consider the impact of antidiscrimination laws like Title VII in addressing protected Section 7 comments?
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The answers to these questions are likely to shape the Board’s approach to “free speech” in the workplace for employers everywhere, union and non-union alike. If the Board majority’s invitation is any indication, the pendulum may be swinging back toward empowering employers to exert greater control over such conduct. Briefs by interested parties are due by November 4, 2019. All details about submissions can be found on the Board’s website: https://www.nlrb.gov/cases-decisions/filing/ invitations-file-briefs.
Brenda Canale, Associate Littler Memphis bcanale@littler.com www.littler.com
CALL ADMISSIONS TODAY 1-800-659-3381 5140 Dunstan Road, Greensboro, NC 27405 www.FellowshipHall.com www.HRProfessionalsMagazine.com
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Choosing a Facility for Same-Day Surgery: Employers Have An Important Role To Play By LEAH BINDER
More than 60 percent of surgical procedures now take place in an outpatient environment, meaning you, your family, or your employees will likely need same-day surgery at an Ambulatory Surgery Center (ASC) or Hospital Outpatient Department (HOPD). Many employers welcome this trend, which supports less invasive surgery performed in less expensive settings than traditional inpatient hospital care. But are these settings as safe as inpatient care? Unfortunately, according to Leah Binder, president & CEO of the employer-driven Leapfrog Group, we don’t know enough yet. “Despite this increasing shift towards same-day procedures, surprisingly little information about the safety and quality of these settings is available to the public,” said Binder. As a result, in 2019 Leapfrog launched a new program to collect and publicly report quality and safety data from both ASCs and HOPDs. The Leapfrog Group is well positioned to get this information and make it available—but they need employers to help. A national nonprofit formed by employers, Leapfrog has been collecting data on inpatient hospital care for nearly 20 years as part of the annual Leapfrog Hospital Survey, which uses the collective leverage of hundreds of employers across the country to persuade hospitals to report performance information not available from claims or any other source. Leapfrog also issues the Hospital Safety Grade, an A, B, C, D or F grade assigned to general acute care hospitals based on their ability to prevent avoidable errors, injuries, and infections that can harm or even kill patients. Leapfrog obtains data from hospitals because employers ask them to report it. Reporting to Leapfrog is free for hospitals, and the data is freely available to the public. Today over 70% of the hospital beds in the country are covered in the Hospital Survey. That same model for obtaining data is planned for same-day surgery. “We need employers to be as vocal about same-day surgery as they are about inpatient care. This matters to you and your employees, and you spend considerable amounts of resources on health care so it’s reasonable to ask that same-day surgery providers complete the Survey,” said Binder. She points out that many employers make the request alongside other employers via their local business group on health. Most of these business coalitions are involved in Leapfrog as Regional Leaders. “Leapfrog belongs to employers. If you want this data you have to make it clear in your market and across the country.” 32
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Leapfrog’s new report, Same-Day Surgery in the U.S.: Findings of Two Inaugural Leapfrog Surveys, details preliminary findings of its inaugural voluntary survey of ASCs and an added section of the Leapfrog Hospital Survey covering outpatient surgery. Data was voluntarily submitted by 321 ASCs and 1,141 HOPDs across the country that completed a Survey by August 31, 2019. Each Survey includes standardized, evidence-based measures of care specific to places that perform ambulatory and outpatient procedures. The Surveys are intended for facilities that perform procedures in any of the following specialties: Gastroenterology, General Surgery, Ophthalmology, Orthopedic, Otolaryngology, Urology, Dermatology, Neurological Surgery, Obstetrics and Gynecology, and Plastic and Reconstructive Surgery. This first report presents aggregate results across the country, but next year Leapfrog will begin publicly reporting by individual facility. This will allow consumers and purchasers to compare places that offer specific procedures in their community. The Leapfrog Hospital Survey and Leapfrog ASC Survey have brought to light some key findings about these facilities, detailed below. 1. There are gaps in the education, training and national certifications of clinicians in both ASCs and HOPDs. Both ASCs and HOPDs showed gaps in ensuring all providers performing surgery or anesthesia were board certified. Of further concern, while nearly all ASCs and HOPDs always have a clinician present who is certified in Advanced Cardiovascular Life Support (ACLS) and can perform life-saving actions if complications arise, fewer facilities have clinicians certified in Pediatric Advanced Life Support (PALS). Parents should ensure the facility they choose for their child’s procedure has PALS-certified clinicians prior to scheduling a procedure. Percentage of Facilities Where All Physicians and Nurse Anesthetists Board-Certified
2. Consent and communication outside business hours are problematic. Encouragingly, nearly all ASCs and HOPDs ensure that patients know who to contact after-hours following their procedure if needed, though both types of facilities could do better at proactively contacting patients by phone within 24 hours after discharge. In both ASCs and HOPDs, most facilities are not providing surgical and anesthesia consent forms prior to the day of the surgery. Patients would benefit from having this information in advance so they can more carefully consider the risks and develop questions to ask their providers. 3. ASCs lag behind HOPD counterparts in implementing best practices for patient safety. All facilities that perform same-day surgery should be complying with best practices
as identified by national organizations for infection prevention, hand hygiene, and medication safety. Very few ASCs have an antimicrobial stewardship program in place and were also less likely to adopt practices such as monitoring for hand hygiene compliance. ASCs have many opportunities in the future to demonstrate improvement in this area. 4. Patients tend to give higher patient experience ratings to ASCs—but not enough ASCs monitor it. On the whole, patients reported their experience with ASCs to be more positive than that reported of HOPDs, though there are fewer ASCs participating in the standard patient experience survey. Both ASCs and HOPDs can benefit from increased participation in the Consumer Assessment of Healthcare Providers and Systems Outpatient and Ambulatory Surgery Survey (OAS CAHPS), the tested and validated instrument for assessing patient feedback.
“All told, our hope is that the information in this report will be a first step to enlighten health care purchasers, payors and patients about the safety and quality of same-day surgery,” Binder said. “This report informs key questions that all patients should ask before scheduling a procedure, and key risks to be aware of. We commend facilities that have chosen to be transparent about their performance and look forward to reporting more data to educate purchasers in the future.”
Results of Patient Experience Surveys To view the full report, visit www.leapfroggroup.org/SameDaySurgery. For an employer toolkit and information about asking your local providers to report to Leapfrog, visit https://www.leapfroggroup.org/ employers-purchasers/value-tools.
Leah Binder The chart represents the OAS CAHPS Tox Box Score: the percent of survey respondents who chose the most positive score for a given item. Looking at the top box is an approach to understand the number of responses with a strong sentiment.
The Leapfrog Group info@leapfrog-group.org www.leapfroggroup.org
FALL LEAPFROG HOSPITAL SAFETY GRADES ARE COMING SOON Leapfrog Hospital Safety Grades are assigned to over 2,600 general acute-care hospitals across the nation twice annually. “D” and “F” Hospitals carry a 92% greater risk of avoidable death, so choosing the safest hospital in your community is critical. Unsafe care is no value at any price.
See how the hospitals in your community are graded on safety at www.hospitalsafetygrade.org
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HIGHLIGHTS
October 11, 2019 Perdido Beach Resort
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1 Mary Ila Ward, Director of ALSHRM, welcomed attendees. 2 Katie Britt, President & CEO of the Business Council of Alabama, and Jeremy Arthur discussed “Alabama and the Southeast’s Business & Workforce.” 3 Jeremy Arthur, President & CEO, Chamber of Commerce Association of Alabama
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4 Delphine Carter, Co-Founder of Boulo Solutions, presented “Strategic Hiring.” 5 Leadership expert, Pete Blank, discussed “The Disney Magic of Organizational Culture.” 6 Justin Shepherd with Ergoscience Perdido Beach Resort
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7 Sherry Johnson, SHRM-SCP, SHRM Field Services Director, provided an update on the benefits of SHRM membership. 8 Mary Beth Basu with Pack Health 9 Mike Bean with PassionHR Consulting
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10 Cierra Belser with Onin Staffing 11 Joseph Delfino with Ultimate Software 12 Matt Irvine with Health Equity
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13 Dell Macklin with Halo Branding Solutions 14 The winner of the grand prize drawing!
Attendees
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Emerging Opportunities in Mental Health and
Substance Use Benefits By CRISTIE TRAVIS
In what many would call the year of the tipping point for employer focus on mental health and substance use disorder (MH/SUD), it’s difficult to identify just a few emerging opportunities in MH/SUD benefits since there are so many. But that said, here are a few for your consideration.
Achieving Parity The Mental Health Parity and Addiction Equality Act of 2008 required behavioral benefits be comparable to and not applied more stringently than “medical-surgical” benefits. Although summary plan documents, policies and procedures have been rewritten to comply, we have not achieved parity. The National Alliance for Healthcare Purchaser Coalitions’ (NA) Achieving Value in Mental Health Support: A Deep Dive Powered by eValue8 (August 2018), which evaluated the performance of six national and two regional health plans, found: • The percent of out-of-network utilization was higher for MH/ SUD than medical-surgical across all settings of care. Out-ofnetwork care costs more than in-network care and is a significant barrier to getting care. • The access standards for urgent office visits were longer for MH/ SUD (48 hours) compared to medical-surgical (24 hours) and aren’t even being monitored for compliance; • Plans are not taking systematic approaches that include equalizing reimbursement rates; rapid credentialing; and removing “hassle” factors such as pre-authorization to increase in-network participation. The NA outlines several steps for employers to hold their TPAs accountable for achieving real parity: • Require the same urgent office visit access standards for MH/ SUD as for medical-surgical. • Report regularly on key metrics to evaluate parity, such as out-ofnetwork use, reimbursement rates, denial rates, and network directory accuracy. Use the form at http://bit.ly/2B8aG8V. 36
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• Require an action plan to reduce parity inequities and measure progress regularly. Be sure it includes the systemic issues listed above. • Consider indemnification from your vendors for assuming risks related to certain aspects of parity compliance. Review the model “hold harmless” language at http://bit.ly/2MH8bQ7. The model language is for informational purposes only and is not intended and should not be construed as providing legal advice. • Require your plan to have an independent, external audit by an auditor that fully understands the parity requirements. Only by knowing how your plan is actually operating will you be in a position to understand if your plan is achieving parity and where your TPA needs to make improvements.
Linking Physical and Mental Health: To Address the Whole Person Almost 1/3 of those with medical conditions also have a MH/SUD. For health care providers to treat these as separate issues when they are so intertwined does not serve the patient’s needs. Today there are two promising approaches to treating the whole person. Collaborative Care: The majority of MH/SUD care is actually delivered in primary care offices including screening for MH/SUD; prescribing of psychotropic drugs, and treatment of mild-moderate MH/SUD. The Collaborative Care Model was designed to link the primary care physician with a behavioral health specialist who has the training and expertise to support the primary care physician in their treatment of MH/SUD. The NA reports that only one of the responding plans was actively promoting the billing codes to support this collaborative care and only two plans actually had claims flowing through the codes. Employers should require their TPA to turn on these codes and ask how many claims and dollars are flowing through them. The TPA should have a plan for educating, training, and giving technical assistance to bill for these codes.
Embedding behavioralists into primary care: A study released in the Journal of Primary Care and Community Health in 2015 (Vol. 6(2) 100-104) notes that few primary care patients actually follow through with a MH/SUD referral that is made to a different clinic. Embedding behavioralists into primary care practices can help more patients get the care they need. In this model, the behavioralist is an integral part of the practice’s care team and serves as a consultant to the primary care physician and other team members; often provides same day/same appointment brief interventions as needed; and sees patients on an on-going basis. This same study found that more than half of the patients who saw the embedded behavioralist had never seen a mental health professional before. And, slightly over half of the patients needing continuing care attended subsequent visits.
Here are three more opportunities for you to dig deeper into: Worksite clinics: The Gallagher/National Alliance of Worksite Health Center (NAWHC) survey (http://bit.ly/2Bck4bx ) shows that 31% of employers have integrated behavioral health into their clinics and this service is the second fastest growing with 15% planning to do so! According to Larry Boress, Executive Director of NAWHC (nawhc. org), “Employers with worksite clinics today are increasingly adding both onsite and tele-behavioral health to their menu of low or no cost services to enable employees to obtain mental health, EAP and substance abuse services in an accessible and confidential setting.”
Mindfulness: “Technology has increased the speed of everything we do in the workplace. Therefore, our accelerated culture basically operates on an instant gratification mindset. A practice of mindfulness equips us with the skills to deal with our mental clutter and regulate our emotions during this midst of this chaos.” says Greg Graber, mindfulness teacher/consultant and author (www.greggraber.com) Organizations can also benefit from being mindful. Check out how leaders can create a culture of mindfulness in the workplace at http://bit.ly/2MfnFf5. Burnout: Did you know burnout has a “diagnosis code” in the latest version of the World Health Organization’s International Classification of Diseases (ICD-11)? Although not yet considered a disease, the code is now specified as a syndrome resulting from workplace stress. Read this article from Forbes http://bit.ly/32fNEJb to learn more and start thinking about the implications for your workplace culture, policies, and procedures. All year Memphis Business Group on Health has focused on MH/ SUD. It is clear to us that employers need to erase those artificial lines that have separated MH/SUD benefits from medical benefits. Our employees are “whole people” and our benefit programs should reflect the interconnectedness of mind, body, and spirit.
Cristie Travis, CEO Memphis Business Group on Health ctravis@memphisbusinessgroup.org www.memphisbusinessgroup.org
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Fifth Circuit Says Not So Fast to Fast Food Chain Graphic credit: KLSA.com
By MARTIN REGIMBAL
Under Mississippi law, employers are prohibited from “persuad[ing] or attempt[ing] to persuade any juror to avoid jury service” or “subject[ing] an employee to adverse employment action as a result of jury service.”
As
many readers know, Mississippi adheres to the at-will employment doctrine, which provides that an employer may terminate an employee for a good reason, a bad reason, or no reason at all, as long as the reason is not illegal. Until recently, Mississippi has recognized only three exceptions to this doctrine (i.e., an employer may not terminate an employee for refusing to participate in a criminally illegal act; an employer may not terminate an employee for reporting a criminally illegal act of his employer; and an employer may not terminate an employee for legally storing a gun in her/his car on company property in a publicly-accessible parking area). Recently, the United States Court of Appeals for the Fifth Circuit determined that Mississippi would also recognize a fourth exception to the at-will employment doctrine – an employer may not terminate an employee for serving jury duty. Let’s take a closer look at the Fifth Circuit’s decision.
The Facts Max Simmons began working for a Taco Bell restaurant operated by Pacific Bells, L.L.C. in February 2017. Simmons was hired as a “bench” general manager, a position intended to train an employee to become a restaurant general manager (“RGM”). Carolyn Henderson, the RGM of the Taco Bell in Jackson, Mississippi, where Simmons worked, supervised his training and performance. In mid-July 2017, Simmons received a jury summons requiring him to appear on July 31, and he alleged that he told Henderson about the summons soon after receiving it. According to Simmons, Henderson instructed him to “find a way to get out of jury duty.” Simmons instead requested time off for jury duty, as well as two additional days so that he could visit family. He made these requests two weeks in advance. Despite this request, Henderson scheduled Simmons to work. In response, Simmons texted Henderson on July 23: “I requested the 29 and 30 of July! ... I have jury duty on the 31 of July. Please do not Schedule [sic] to work.” Four days later, Simmons texted Annette Banger, the equivalent of the local district manager for Pacific Bells: “I asked to be off this coming WEEKEND ... I have JURY DUTY AT 800 am Monday morning. I cannot close Sunday. I need your help with this matter plz [sic].” Simmons also called the employee hotline the next day to voice his concerns. Banger later told Simmons that he did not have to work past Friday, and Simmons did not work that weekend or while he was scheduled for jury duty on July 31. Simmons was selected for jury service and served from August 1 through August 8, 2017. When he returned to work, Henderson and Banger told Simmons that he was fired due to his tardiness. This was the first time Simmons was reprimanded for being late. Simmons was sometimes tardy, even by several hours, but he claimed
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that his tardiness often resulted from Pacific Bells’s business practices. For example, the company required him to transport products from other Taco Bell locations on his way to work, and he was encouraged to arrive late or leave early to reduce overtime costs when business was slow. Other employees were tardy more frequently than Simmons, but they were not terminated. Simmons filed suit against Pacific Bells, alleging that his termination violated Mississippi law and public policy. Specifically, Simmons alleged that his termination due to tardiness was pretextual and that he was really fired for refusing to lie to avoid jury duty and for his subsequent jury service. Pacific Bells asked the federal trial court to dismiss the case, arguing among other things that Mississippi law does not permit a private cause of action for employees terminated because of jury service. The federal trial court accepted Pacific Bells’ arguments and dismissed Simmons’s claims. Simmons appealed.
The Decision The Fifth Circuit began by evaluating whether Mississippi law allowed Simmons to sue Pacific Bells for terminating him for jury service. Under Mississippi law, employers are prohibited from “persuad[ing] or attempt[ing] to persuade any juror to avoid jury service” or “subject[ing] an employee to adverse employment action as a result of jury service.” The Fifth Circuit also noted that Mississippi law provides a “narrow public policy exception to the employment at will doctrine ... [for] an employee who refuses to participate in an illegal act.” According to the Mississippi Supreme Court, “[w]hile Mississippi is an at-will employment state, that doctrine is not absolute.... [T]he doctrine must yield to express legislative action and/or prohibitions found in federal or state law.” However, the Fifth Circuit acknowledged that the Mississippi Supreme Court had never answered the question of whether terminating an employee for jury service fell within the exceptions to the employment at will doctrine. In such situations, the Fifth Circuit is required to make a guess as to how the Mississippi Supreme Court would rule if faced with the issue. The Fifth Circuit determined that if the Mississippi Supreme Court was faced with the issue, it would hold that termination for attending jury service would fall within the narrow exceptions to the employment at-will doctrine, such that an employee could sue her/his employer for wrongful termination. In reaching this conclusion, the Fifth Circuit relied on a prior decision from the Mississippi Supreme Court that concerned a Mississippi law stating that employers may not “establish, maintain, or enforce any policy or rule that has the effect of prohibiting a person from transporting or storing a firearm in a locked vehicle in any parking lot, parking garage, or other designated parking area.” In that matter, the Mississippi Supreme Court determined that the law created a statutory exception to the employment-at-will doctrine and, therefore, that an employee could sue her/his employer if terminated in violation of the law. In doing so, the Mississippi Supreme Court reiterated that the employment at will doctrine permitted employees to “be discharged at the employer’s will for good reason, bad reason, or no reason at all, excepting only reasons independently declared legally impermissible.” The Mississippi Supreme Court reasoned that, by enacting a statutory restriction on employers, the Mississippi legislature “independently declared…that terminating an employee for having a firearm inside his locked vehicle is legally impermissible.”
Relying on the Mississippi Supreme Court’s rationale with respect to that exception to the employment at will doctrine, the Fifth Circuit stated that it saw no compelling reason to distinguish it from Simmons’ termination. As the Mississippi legislature independently declared that terminating an employee for jury service is legally impermissible, the Fifth Circuit held that the employment at will doctrine must yield to the express legislative prohibitions. Accordingly, the Fifth Circuit held that Simmons was entitled to a jury trial on his wrongful termination claim against Pacific Bell.
Takeaway Although the Mississippi Supreme Court had not directly addressed the issue raised by Simmons’ claim, the Fifth Circuit’s rationale for extending the narrow exceptions to the employment at will doctrine to Simmons’ claim found solid legal support in an analogous decision from the Mississippi Supreme Court. For this reason, Mississippi employers should heed this decision and not take any action that could be deemed “persuad[ing] or attempt[ing] to persuade any juror to avoid jury service” or “subject[ing] an employee to adverse employment action as a result of jury service.”
Martin J. Regimbal Shareholder, The Kullman Firm mjr@kullmanlaw.com www.kullmanlaw.com
One Area of Practice. One Focus. The Kullman Firm has engaged in the practice of labor and employment law on behalf of management since 1946. Employment Discrimination Litigation Wrongful Discharge Litigation Collective Bargaining Negotiations Labor and ADR Arbitrations Union Representation Cases
OSHA Wage and Hour Law OFCCP/Affirmative Action ERISA/Employee Benefits FMLA Compliance
Offices in Louisiana, Mississippi, Alabama, Tennessee, Florida, and Colorado.
www.kullmanlaw.com
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Considerations for Handling
Requests for Leave BY JAMES V. THOMPSON
A major portion of HR administrators’ time is on spent on effective daily management of the workforce, although hiring and terminations seemingly receive more publicity. One of the potential pitfalls in efficient workforce management is handling employees’ leave requests. Do you grant the leave request? Do you deny it and face backlash from the spurned employee? And how does responding to one employee’s leave impact the workload of other employees? Let’s discuss some considerations for handling leave requests. First, what does the company’s written policy or employee handbook state about leave requests? When and how should employees apply for leave, and what grounds and time parameters for leave are allowed? Employers should follow the policies already in place to ensure consistency in their management approach and fairness to all employees. Second, and especially if no employee handbook or written leave policy exists, has the company already set an unofficial pattern or precedent on the subject? Consider whether the company has had any similar instances involving other employees. What process was followed, and what decision was reached? Inconsistent treatment of employees can damage morale and may also heighten the risk of potential discrimination claims. Third, what’s the company’s justification for not granting a particular leave request? Before denying a leave request, you should have a wellarticulated and legitimate business reason for the denial which will stand up when tested against applicable employment laws, such as the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), workers’ compensation laws, and any other state-specific laws governing employee leave. Federal Laws Governing Leave
Recall that ADA prohibits discrimination against employees with disabilities and requires the employer to conduct an interactive reasonable accommodations analysis once the employer has knowledge that an accommodation may be needed. In some instances, reasonable accommodations could include a leave of absence. The ADA requires an employer to provide a reasonable accommodation for the known disability of a qualified employee, unless it would impose undue hardship on the employer’s business. Unpaid leave or modification of attendance policies may be considered reasonable until they impose an undue hardship on the company. However, indefinite leave is generally unreasonable as an accommodation and usually need not be considered. An employer should be mindful to document the steps taken in the ADA interactive process for considering whether any type of requested leave would be a reasonable accommodation or an undue hardship. Factors to consider include the company’s operations structure and available resources, the net cost for the leave requested, and the impact of the leave request on co-workers who would take on the absent employee’s work responsibilities and duties. 40
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Likewise, FMLA requires certain employers provide leave to eligible employees for qualified events. The range of qualified events includes a serious health condition affecting the employee or employee’s close family member; the birth of the employee’s child or receipt of a child for adoption or foster care; and having a close family member on active duty or under an impending call to active duty with the National Guard or Reserve. Longer FMLA leave is provided to care for covered armed services members with a serious illness or injury. FMLA leave may be taken on an intermittent or reducedschedule leave basis with some exceptions. While FMLA does not require paid leave, it does require employers to allow appropriately certified leave, reinstate the employee to the same or equivalent position at the end of the FMLA leave, and continue an employee’s health benefits during the FMLA leave at the same level as before the commencement of FMLA leave. If the employer has an indication that the employee’s requested leave might qualify under FMLA, the employer should discuss with the employee about the potential application of FMLA and the duties of both parties under that law. An employee seeking leave for the first time for an FMLA-qualifying reason doesn’t have to expressly assert FMLA rights or even mention the FMLA. Once the employer has enough information to determine if the leave is for a FMLAqualifying reason, the employer then has a duty and short timeline to notify the employee of his/her leave eligibility, the employee’s specific expectations and obligations under FMLA, the requirement for medical proof or certification, and the anticipated consequences of the employee failing to meet the obligations or provide adequate medical certification. Even where the employee’s initial response for medical certification is incomplete or insufficient, the employee may still have additional time to cure a deficiency and obtain FMLA leave. State-Specific Leave Laws in the Mix
Employers conducting business in multiple states need to be mindful of state-specific laws providing for additional leave. For example, the Tennessee Family Leave Act covers certain larger-workforce employers, and provides leave for childbirth and adoption for up to four (4) months. It also gives the individual employer discretion whether such leave will be paid or unpaid. Such leave period exceeds the leave for birth or adoption granted under FMLA. Employers can fall into a trap if state-specific leave laws apply but they only consider and offer the federal FMLA leave. Other laws particular to states and even municipalities require employers to provide additional, and sometimes paid, leave. As of April 2019, 11 states and the District of Columbia provided certain types of paid leave. Some of those state laws allow employees to
use accrued leave time for “safe” time if they are targets of domestic violence, sexual assault, stalking, or even harassment. Who is covered, the allowable reasons to use leave, and the waiting periods before certain leave can be used vary. In states such as California, Maryland, New York, Texas, and Washington, cities and counties have also enacted additional laws regulating leave time. Employers should consider the location of the employee requesting leave, and what additional state laws may apply to him/her.
Legal Challenges are Coming at HR Professionals from Every Direction
Gender Equality Affecting Leave Requests
The Tennessee Family Leave Act brings up another consideration: gender equality in family leave acts. Tennessee’s law was initially written as a maternity leave act, but was recently amended to use gender neutral terms. Now, it permits leave by male employees. In place of a maternity leave policy, employers may need a new parent leave or parent-child bonding leave policy, to ensure equal treatment of male and female employees. The EEOC has taken the position that employers not treating male and female employees equally under a “maternity leave” policy may be violating Title VII and the Equal Pay Act. This reasoning does not necessarily apply to policies applicable to female employees who need time to recover for medical issues after giving birth. If male employees seek leave for the birth or adoption of a child, employers should not be quick to dismiss their leave request, consider the leave as merely “vacation,” or provide a shorter leave period than allowed for female employees. Overlap of Work Injuries on Leave
Lastly, employers should consider whether the employee’s leave is grounded in a work injury, such that state-specific workers’ compensation laws apply. If the employee has a valid work-related injury and the appropriate medical provider has taken the employee off work, then the employer may have little choice on granting the leave. The employer may also be precluded from forcing the employee to use accrued leave time. The employer should ensure proper documentation of any off-work status or work restrictions. If the employee is returned to work in a light-duty capacity, the employer must also ensure compliance with all assigned work restrictions. Another concern in the workers’ compensation arena is whether to maintain the injured worker as an employee while he/she is treating and cannot work, for a return to work once the employee completes treatment. Some states may allow additional workers’ compensation disability benefits if the employee is not returned to work. While this is no absolute reason to keep employing a worker who cannot perform an available job or who has violated company rules, it may impact the ultimate cost of a workers’ compensation claim. There are a myriad of considerations for employers when faced with an employee requesting leave. Employers should be mindful of multiple federal, state, and even local laws in the location where the employee is working. They should consider all applicable laws and past similar instances, and should wisely document their decision-making process to ensure all leave requests are handled fairly and appropriately.
That’s Why Rainey Kizer Makes Your Business Our Concern As the issues facing HR executives become more frequent, challenging, and complex each year, you need a law firm that provides advice invidualized for you specific needs. This is why you should know the employment law attorneys at Rainey, Kizer, Reviere & Bell, PLC. For over 40 years, our AV-rated firm has advised businesses, non-profit organizations and government agencies on all aspects of employment law. To learn more, please call.
Memphis
Nashville
901.333.8101
615.613.0442
Jackson
Chattanooga
731.423.2414
423.756.3333
James V. Thompson, Attorney Rainey, Kizer, Reviere & Bell, PLC jthompson@raineykizer.com www.raineykizer.com
Tennessee does not certify specialists in the area of employment law.
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12 Strategic Goals
High-Impact Human Capital Strategy: Addressing the 12 Major Challenges Today’s Organizations Face By WILLIAM CARMICHAEL
Just when I thought return on investment analysis could not go any further, the ROI Institute surprises me once again. High-Impact Human Capital Strategy: Addressing the 12 Major Challenges Today’s Organizations Face by Jack J. Phillips and Patricia Pulliam Phillips is a tour de force that crafts a new direction for ROI aficionados and directs it where it rightly belongs; in HR’s background! This book focuses directly on how to develop an effective human capital strategy in today’s turbulent and constantly changing business environment. It also provides new meaning to the intangible levels of the ROI hierarchy by direct correlation to meaningful HR strategy.
The authors make a convincing argument that there are twelve forces that affect businesses and particularly in the human capital area; these being: 1) “Set the Proper Investment Level” - sets the optimal investment level for human capital and reviews this expenditure periodically. 2) “Align with Business Needs” - aligns HR programs to the business as they are initiated, developed, and implemented. 3) “Manage Talent for Value” - explains managing critical talent in the organization, ensuring that the appropriate number and quality of talented employees are available, addressing skills shortages, and ensuring that talent remains in the organization. 4) “Engage Employees at Work” - details pursuing a program of employee satisfaction, commitment, and job engagement, so that employees are fully involved in their work, remain loyal to the organization, and help attract others to the organization. 5) “Create a Performance and Innovation Culture” - describes creating a performance and innovation culture to achieve results in the organization with proper direction, roles, and motivations. 6) “Keep Employees Healthy” - advocates the importance of ensuring that employees are healthy and safe with proper healthcare and wellness opportunities. 7) “Embrace Demographics and Societal Changes” - addresses the current demographics and societal issues to ensure proper employee mix is available and included in processes to enhance productivity and innovation.
HR Strategy vs. High-Impact Human Capital Strategy? Where human capital (HC) strategy focuses primarily on recruiting, selection, talent management, compensation, motivation, compliance, and maintenance, High-Impact Human Capital Strategy was written as a guidebook for practitioners who want to go beyond traditional human resource management. The authors maintain that “no function, process, or issue in an organization is more important than the human capital managed by the HR department.” Further, HC strategy is critical to all organizations, whether public or private, for-profit or not-for-profit, and governments.” As an example, the authors contend that a major cause of the financial crisis in Greece stemmed from human capital issues manifested through bloated payrolls, excessive benefits, and a lack of accountability. For some in HR, these hit dangerously close to home. 42
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8) “Utilize Technology Effectively” - demonstrates using technology to its fullest extent to unleash the creativity and potential of employees, while ensuring that it is driving productivity, innovation, and customer satisfaction. 9) “Confront Globalization” - addresses globalization in terms of how it affects employees in the present and will affect employees in the future by having them actively engaged in every part of the process. 10) “Protect the Environment” - addresses environmental and energy issues as they relate to jobs, the organization, and society. 11) “Build Global Leaders” - emphasizes developing effective leaders who can operate successfully in a global, diverse environment. 12) “Use Analytics and Big Data” - proposes implementing a system for accountability, including measuring success with analytics and big data, and delivering value that will be credible to top executives, including the chief financial officer.
Structure and Layout A relatively quick read at 304 pages, this book does not have to be read straight through in order to be valuable. However, for my audience here, I recommend reading Chapter 1 before reading any other chapter since Phillips and Phillips make a compelling argument for the necessity of HC strategy. The book begins with two introductory chapters that set the stage for the remainder of the book which focuses on the 12 forces affecting business. Each chapter starts by defining the force, particularly in the context of how it affects HC and the business. Next, the force is detailed in terms of its elements, components, principles, issues, and challenges, including the effect it is having on organizations. The chapters are easy to read with the regular use of bulleted lists to highlight key items, tables, and graphs that ground the information. The 12 goals chosen by the authors align with their universally accepted ROI Methodology and other publications. Additionally, reference information, including benchmarking sources and statistical examples (e.g. turnover calculations, sources of hard and soft data) are provided throughout the chapters. I have read and will continue to read books authored by Jack and Patti Phillips. Though some of the advice may seem to be common sense to those who have read their other works, it is always practical and actionable. It is this combination that makes the book a valuable read for HR professionals or anyone hoping to learn more about human capital strategy.
Who Will Benefit Most from This Book? HR executives, managers, administrators, specialists, coordinators, and anyone involved in ROI analytics. ABOUT THE AUTHORS:
Drs. Jack and Patricia Phillips are Chairman and President/CEO, respectively, of ROI Institute. They are active consultants, prolific speakers, and co-authors of many HR books and articles. Jack and Patti Phillips have dedicated their professional lives to building accountability into human resources and training departments through the development of the ROI Methodology. 2The ROI Methodology has been used in over 66 countries and within a variety of Fortune 500 organizations across multiple industries.
William Carmichael, Ed.D Professor | Strayer University William.carmichael@strayer.edu www.strayer.edu
October 2 | Nashville, Tennessee
Labor & Employment Law Update: 1:30 –Managing 1:45 Break Guidance for Accommodation Issues Under the ADA 1:45 – 2:20 Data Privacy Concernsand andare thequickly Risingbecoming Occurrence of Audits ADA issues are increasingly prevalent in the workplace a favorite claim for plaintiffs’ John Bailey, Counsel, St. lack Jude of Children’s Research Hospital lawyers. Due to the individualized nature ofGlobal each Privacy situation and the hard and fast rules, employers are struggling with how to manage Sarah the increasing numberU.S. of ADA situations. This and seminar addressed the difficult West, Investigator, Department of Health Human Services, Office for Civil Rights and challenging issues presented by the ADA and offered practical guidance and advice for how to best Lisa Rivera, Member, Bass, Berry & Sims PLC manage potential accommodation issues under the ADA (and the occasional interplay with the FMLA.) 2:25 – 3:00 Addressing Fraud & Abuse Issues in Healthcare Transactions Clint Cromwell, Enterprise M&A Counsel, Envision Healthcare Corporation Jennifer McGugin, Associate General Counsel, Vanderbilt University Medical Center Danielle Sloane, Member, Bass, Berry & Sims PLC
3:00 – 3:15 Break 3:15 – 3:55 In-House Counsel Perspective Justin Pitt, Senior Vice President and Chief Litigation Counsel, Community Health Systems, Inc. Kathryn Sasser, Vice President, Litigation, LifePoint Health, Inc. Jack Smith, Vice President, Litigation, HCA, Inc. Moderated by: Anna Grizzle, Member, Bass, Berry & Sims PLC Horton Your Healthcare Fraud Laura Mallory and Tim–Garrett 4:00 – 5:00 Bob Getting Case Resolved An Interactive Case Study (Ethics CLE)
Jason Ehrlinspiel, Assistant U.S. Attorney, U.S. Attorney’s Office for the Middle District of Tennessee Steve Hinkle, Vice President and Chief Compliance Officer, Ardent Health Services Ryan Raybould, Assistant U.S. Attorney, U.S. Attorney’s Office for the Middle District of Tennessee Brian Roark, Member, Bass, Berry & Sims PLC Moderated by: Matthew Curley, Member, Bass, Berry & Sims PLC
5:00 – 6:00 Cocktail Reception
Kimberly Veirs and Tim McConnell
Lymari Cromwell and Bob Horton
This event is co-sponsored by: www.HRProfessionalsMagazine.com
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24/7/365 RESPECT @ WORK!
By LEEANN BAILES FOSTER
Respect all day, every day? Are you serious? Yes – 24.7.365! Often times in the workplace we act in a disrespectful manner and do not even know we are doing so. Self-awareness is the very first step towards being Emotionally Intelligent. What are you doing in the workplace that is unknowingly and unwillingly disrespectful?
Eliminate Swearing: If there is a chance someone in the office we will be offended, do not do it. Being offended is the same feeling as being disrespected. Put a ‘Swear Jar” on your desk. When a co-worker uses profanity, fine him $1.00. Then, use the money for an office Pizza Day.
After reading this article your work environment will improve, performance and behavior will begin to connect, and vulnerability will be appreciated. Read on to learn how to be someone who makes someone else look forward to tomorrow!
Grow Trust to Shrink Tension: As tension grows, trust is decreased. Learn to feel when the tension is rising in a meeting or a conversation; then react accordingly.
A survey conducted by Chart Your Course International revealed the following: To improve your workplace environment what would you like to see your supervisions/ managers do?
Better Communication Show more appreciation Reward performance Set the example Show genuine concern Handle performance problems
77% 70% 57% 55% 50% 42%
Every one of these topics directly points to creating a work environment of respect. I love the 212- degree graphic. Just one degree makes the water boil to create the steam to power a train. Do you inspire that one degree of extra effort at your workplace? Also, studies at the Carnegie Institute of Technology concluded that approximately 15% of a person’s financial success is due to technical knowledge and the other 85% is due to the ability to get along with and lead other people. WOW! Are you telling me I just need to be respectful to others to have a much better chance of being successful? Yes, I am! Let’s learn the positive results of being respectful in the workplace: #1 Result of Workplace Respect = An Improved Work Environment 360-Degree Wellness: Hurting people hurt people. That is very sad, but true. In order to create an improved work environment, we must improve how we feel. If we are stressed and burnt out, we will detract from the positivity of the work environment instead of inspiring it. We must be well in each of these areas to move forward at a healthy rate:
o Physical – get rest, exercise, and eat well o Occupational – do meaningful work o Environmental – care for the land o Social/Cultural – get connected o Emotional – learn adequate coping skills o Intellectual – learn at all times; at least 5.5 hours/week o Spiritual – believe in a higher power 44
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Reduce Non-Verbal Disrespect: Do you recognize any of these examples from your workplace? Be aware of these things and lead by example by stomping them out. o Eye rolling o Paperless copy machine o Dirty dishes in the sink o Over-flowing garbage can o Loud voices o Unkept bathroom facilities Enforce E-mail Rules: Two simple rules regarding e-mail will greatly improve your level of workplace respect. 1. Acknowledge all e-mails within 24-hour, period. 2. The 3 strikes and you are out rule: After an e-mail is sent back and forth three times, get out of your chair and go see the person or pick up the phone a call the person. And, finally – Give ‘em a Champion: When a co-worker needs your assistance, give him your very best. Serve everyone equally. Go one step further every time. Show her you truly care and respect her. #2 Result of Workplace Respect = Connected Performance and Behavior The Job Description: Change the first bullet point of each job description to this – “50% of your job responsibility is to behave and perform in a way to helps our company create and maintain a positive and encouraging work environment.” On the performance review, list this as one of the Top 5 duties/responsibilities that you are closely measuring. Talk about the positive and encouraging work environment in team meetings, company meetings, and one-to-ones meetings. Insist on these Minimal Requirement: Genuinely smile at each other, especially if a co-worker has his head down. And, use your manners: o Say “Please!” o Say “Thank you” o Be polite o Do not interrupt o Raise your hand to speak in meetings o And, do all the other things your Grandma taught you!
Lastly, H.A.L.T.: If you are Hungry, Angry, Lonely, and/or Tired, stop what you are doing, regroup; then, move forward. #3 Result of Workplace Respect = Appreciated Vulnerability Begin Celebrating Mistakes: This is one of Team Foster Strategy’s favorite programs to share with clients. Believe in and teach the following concepts: 1. Let’s make better makes tomorrow – live and learn. The only way to grow is to step out of the comfort zone into the growth zone. Mistakes will be made there. Get comfortable being uncomfortable. Change the anxious adrenaline to excited adrenaline. 2. There are no mistakes, only lessons – Stretch yourself, goof up; then, learn from the experience. 3. Share your mistakes to help others – As soon as you possibly can, inform your co-workers of the mistake you made so it will not be repeated. Include them is finding the best possible solution. Engrain the Stakeholder Mentality: All stakeholders, the staff, owners/board members, customers, suppliers, and the community are equally needed and important. Make sure everyone knows this. Again, respect everyone equally. We cannot do business without each one of these stakeholders holding up a piece of the sky! Display High Confidence and Low Ego: Let’s face it, BIG egos are most often times disrespect at best. To invoke a respectful workplace, check your ego at the door. Bring your healthy confidence with you. And, Make Me Glad I Am Me When I See You: Read this statement again, please. Do not compare one co-worker to another. Doing so will cause resent. Compare me to only me. Help me to be the best me I can be. We are here to love, not to judge. Each person has a different background. It is impossible for us to understand them all. Be inclusive! As we all know, the main thing is to keep the main thing the main thing. Simply put – to create and maintain a workplace of 24.7.365 Respect, work harder than anyone else and be courteous. Think before you speak. Breathe deeply before you act. And, display a little patience with others along the way.
LeeAnn B. Foster | Head Coach Leadership & HR Consultant www.teamfosterhrstrategy.com
Compliance with Compassion… … using your head, your heart, and your hands to nurture your employees. TEAM FOSTER HR STRATEGY provides comprehensive human resources consulting services for small to mid-size businesses. Offering turnkey solutions for clients, Team Foster is committed to compliance with compassion. With 30 years of industry experience, LeeAnn excels at relationship management, conflict resolution, and employee engagement. Team Foster works with you to motivate and manage HR issues from the inside out – supporting your existing human resources team and coaching your staff to solve problems with an integrated approach. Team Foster HR helps you build a collaborative corporate culture to further your business goals and strengthen your performance.
LeeAnn B. Foster | Head Coach Leadership & HR Consultant +1 865-719-1177 mobile WWW.TEAMFOSTERHRSTRATEGY.COM
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ICE is on Warpath Against Employers with 3,000 I-9 Audits in 2 Months By BRUCE E. BUCHANAN
As
the weather in the summer got hotter and hotter, the government offered a quick solution – ICE (Immigration & Customs Enforcement). In June and July 2019, ICE served over 3,000 Form I-9 Notices of Inspection (NOI) on employers nationwide. However, this ICE does not cool down employers; rather, it turns up the heat. The service of these NOIs is similar to the one week in July 2018 when ICE served 2,738 NOIs on employers.
Another factor that will allow more NOIs is the recent additional $6.5 million to hire new 27 Junior Compliance Officers, some of whom will be staffing Homeland Security Investigations offices in Kansas City, Charlotte/Charleston, Las Vegas, and Nashville/Louisville.
After Delivery of NOI/Subpoena, What Should An Employer Do?
NOIs Will Continue to Grow Each Year
So, what should an employer do after it receives a NOI/subpoena? Knowing the answer to this question will save an employer valuable time in responding to ICE.
And the NOIs didn’t stop after July. As Mr. Scott McCormack, National Program Director of ICE’s Worksite Enforcement Unit, predicted at an AILA Worksite Enforcement conference, there were more NOIs issued in September because some regions needed more NOIs to meet their target numbers for the fiscal year, ending in September 2019. McCormack also said he expected higher number of NOIs in FY 2020 than in FY 2019. I predict their goal is 10,000 for FY 2020, given that it is an election year.
In most cases, two or more ICE agents will hand-deliver a “Notice of Inspection” and subpoena to the employer demanding to inspect the I-9 forms and other company records, such as payroll. Different ICE offices request different records. However, Mr. McCormack stated ICE will be issuing a template of a Notice of Inspection/Subpoena so that all offices will be using the same language. Although the employer is provided three business days to produce its I-9 forms and supporting documentation, an employer may request a short
Another factor that will allow more NOIs is the recent additional $6.5 million to hire new 27 Junior Compliance Officers, some of whom will be staffing Homeland Security Investigations offices in Kansas City, Charlotte/Charleston, Las Vegas, and Nashville/Louisville. 46
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extension of time, a week or less. Often such extensions are granted. The employer may waive the three-day period; however, this should never be done.
then the case will be litigated before OCAHO. Employers on average receive 25% to 35% reduction in penalties.
Immediately after delivery of ICE NOI/subpoena, an employer should contact its legal counsel, who should immediately locate an immigration compliance/worksite enforcement attorney. It is vital that the employer retain an attorney with experience in immigration compliance/worksite enforcement. I have witnessed too many employers wait until after the I-9 forms are provided to retain appropriate counsel with the experience to deal with I-9 forms and ICE.
If after reading this article, you are concerned over your I-9 compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, available at http:// www.amazon.com/dp/0997083379.
Between delivery of NOI and deadline to provide the I-9 forms, the employer, under the direction of the immigration compliance attorney should review I-9 forms to determine if the I-9 forms can be remediated. This remediation process can be the difference between being assessed a hefty fine or receiving a warning notice. Although some ICE offices will not consider your remediation efforts, Mr. McCormack stated employers should be able to make corrections on their I-9 forms between the time of receipt of an NOI and time I-9 forms are received by ICE. Additionally, if it is determined certain employees may not be authorized for employment, the employer should quickly investigate the matter. If the investigation shows unauthorized status, the employer should discharge those employees. On the designated day, an ICE agent may pick up the subpoenaed documents or an employer may be required to present them at a local ICE office. Remember to copy all documents before turning them over to ICE. During the delivery, the employer’s representative should be cautioned that the ICE agent may attempt to ask questions. If this occurs, the employer’s representative should call their legal counsel, who can be present for any questions. Alternatively, counsel may deliver the documents. Either way, the ICE agent is unlikely to ask any questions if counsel is present in person or by phone.
Bruce E. Buchanan, Attorney Siskind Susser PC bbuchanan@visalaw.com www.visalaw.com
SISKIND SUSSER PC Tennessee’s Largest Business & Employment Immigration Practice
Conclusion of ICE Audit At the conclusion of the audit, ICE may issue a Notice of Intent to Fine (NIF) setting forth the substantive violations, uncorrected technical violations and any knowingly hired/employed unauthorized workers. Alternatively, ICE may provide a Warning notice or Notification of Inspection Results, if an employer is fully compliant (no errors shown in the audit). After the issuance of a NIF, an employer has 30 days to contest the fine through requesting a hearing before OCAHO. At this point, employer’s counsel can negotiate a lower amount of fine by asserting ICE errors, statute of limitations for timeliness violations, grandfathered employees not subject to I-9 form requirement, and other defenses. This may take many months based on my experience. However, this is a very important part of the process as you should be able to obtain a sizable reduction on the penalties. The undersigned regularly receives reductions of 25 to 40%. If no settlement is reached,
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3RD ANNUAL SHRM-MEMPHIS
INCLUSIVE DIVERSITY
CONFERENCE
2019
OCTOBER 4
Fogelman College of Business and Economics
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1 Dr. Enrica N. Ruggs, Director of the Center for Workplace Diversity & Inclusion at the University of Memphis; Patricia Myers, Conference Chair; Verlinda Henning, 2018-2019 President of SHRM-Memphis; Dr. Kathy Tuberville with the University of Memphis, and Jeremy C. Park, CEO of cityCurrent 2 Shannon A. Brown, SVP of Eastern Division U. S. Operations & Chief Diversity Officer-FedEx Express, was the keynote speaker at the opening session. 3 John Daniel, EVP & CHRO of First Horizon National Corporation, led a panel discussion, “The Truth from the Top: Perspectives about Inclusive Diversity from the Executive Suite.” Panel members (L-R) Susan Springfield, EVP & Chief Credit Officer, First Horizon National Corporation & First Tennessee Bank; Kevin Woods, Memphis Market President – Blue Cross Blue Shield of Tennessee; Diane Heyman, Chief People Officer of Human Resources, ALSAC/St. Jude Children’s Research Hospital; Lani Glancy, VP, Talent Development, Diversity & Communications with AutoZone. 4 Brad Federman, CEO of PerformancePoint LLC, led a discussion on “#MeToo: Breakthrough or Bust.” 5 Jeffrey Fendley, PHR, HR Generalist for Tennessee and Kentucky with Walgreen Co. 6 Cindy Ettingoff, Attorney, co-presented “#MeToo: Breakthrough or Bust” with Brad Federman. 7 Charles Henderson, Principal Consultant with Henderson Workforce Solutions, presented “Now that You Found Your Diversity, What Are You Gonna Do With It?” 8 Gretchen Stroud, VP Talent & Inclusion with Hilton, spoke on “The Challenge: How to Make D & I Efforts Stick.” 9 Raumesh Akbari, Senator, State of Tennessee, was the closing keynote speaker. She presented “The Challenge to Drive Change.” 10 Sam Contreras and Arsen Petrosyan with HRO-Partners 11 (L-R) Bill Cash, Ottie Dixon and Paul Tuberville with Keystone Performance Management 12 (L-R) Kevin Woods, Memphis Market President for BlueCross, BlueShield of Tennessee, Ashley Hill (left), Community Care Partner, BlueCare Tennessee/TennCare Select, Ashley Brown (right), Member Advocate - West Grand Region, BlueCare Tennessee/ECF CHOICES, Pat Myers, Conference Chair, VP Diversity & Inclusion - SHRM-Memphis 48
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Center for Workplace Diversity and Inclusion Consulting services include:
A comprehensive resource for human resource management to rely on for the most up-todate policies and best practices to manage workplace diversity and promote inclusion. The Center for Workplace Diversity and Inclusion (CWDI) serves as a catalyst for enhancing understanding of workplace diversity and inclusion issues and applying evidence-based diversity and inclusion practices in organizations. CWDI offers consulting services and partners with organizations to help foster a diverse and inclusive environment in your organization or business. For more information, please contact Dr. Enrica N. Ruggs, director, Center for Workplace Diversity & Inclusion, assistant professor of Management, Fogelman College of Business and Economics enruggs@memphis.edu | 901.678.4551
• Workshops and seminars to help organizations maximize diversity and increase inclusion • Development and administration of organizational diversity audits and climate surveys • Training evaluations and assessments to ensure maximum value is realized from current trainings • Assessment of selection and talent management systems to uncover ways to strategically improve diversity management • Trainings (e.g., unconscious bias training, ally training) geared toward ensuring an organizational climate that fosters inclusion and allows all employees to thrive
memphis.edu/fcbe/cwdi An initiative of the Fogelman College of Business & Economics. An Equal Opportunity/Affirmative Action University
Center for Workplace Diversity and Inclusion
Open Enrollment – Financial Benefits By JEANNIEY MULLEN
With employers adding financial benefits like student loan assistance to their open enrollment offerings, DailyPay offers a solution to another common financial challenge: gaining early access to earned wages.
Why You Should Add a Daily Pay Benefit to Open Enrollment Offerings As companies battle high turnover rates and benefits packages become increasingly competitive, many employers are scrambling to find costeffective ways to increase retention. With many new voluntary benefits on the market, ranging from student loan assistance to companyfunded babysitters for date night, it may seem difficult to find benefits that add value for all employees. One of them, however, is on-demand pay, which appeals to the 78% of the workforce living paycheck to paycheck. By allowing employees to draw from their earned but unpaid wages on-demand, companies are citing reduced turnover, increased employee engagement, improved timeclock compliance, and increased productivity.
28% of employees earning between $50,000 and $99,999 live paycheck to paycheck, and 70% of them are in debt The future of pay is employee-centric Employees are accustomed to bi-weekly or semi-monthly payroll schedules, but these inflexible systems cause innumerable issues. When paydays are not aligned with an individual employee’s bill due dates, such as a mortgage payment, employees may be consistently adding late payment fees to their largest and most anxiety-inducing expenses. This constant pattern of “treading water” financially makes it impossible to save money and create any type of emergency fund. And it continues the paycheck-to-paycheck cycle. This phenomenon is not limited to lower-income workers. In fact, 28% of employees 50
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earning between $50,000 and $99,999 live paycheck to paycheck, and 70% of them are in debt. Whether the issue is not earning enough to make ends meet, poor financial management or anything in between, a daily pay benefit can help empower employees to lead financially healthier lives. Adding this benefit to your open enrollment offerings will round out your company’s benefits package. It will make your compensation seem even more attractive to your employees. It will also make the benefits election process less daunting to employees, as it will be completed in full once annually, instead of in smaller increments throughout the year. This can make the changes less intimidating, as well as get employees excited to utilize earned wage access during the financially taxing holiday season. Most importantly, adding this benefit will cost to your company nothing. While increasing de minimis benefits, such as occasional catered meals, in-office snacks and beverages, or employee birthday gifts may seem like the right answer for companies struggling to remain competitive on a limited budget, offering a daily pay benefit will have a much more meaningful effect on employees than those small treats. Higher-value benefits such as tuition assistance are also steadily rising in popularity in high-turnover sectors such as the quick-service restaurant industry, but these programs still do not benefit every employee. Offering daily pay doesn’t mean running daily payroll Many companies are concerned that offering a daily pay benefit means they will have to run payroll daily. That’s simply not the case. DailyPay works with your existing payroll system, so after the initial implementation, no further work is required from the internal payroll/benefits team. DailyPay is designed to pair seamlessly with a number of payroll providers’ systems, such as ADP, Ceridian and Paycor. Payroll is run on the same systems and schedules as usual, and any transfers requested from employees come directly from DailyPay’s balance sheet. DailyPay is then repaid at the time payroll is run for all employee transfers during that pay period. Because the employees, or end-users, are responsible
for the small, ATM-like fees whenever they make a transfer, there is no cost whatsoever to the employers. This is a key differentiator from so many others in the marketplace. Employers can also elect to cover the cost of the transfers as an additional employee benefit if they so choose. Employees are free to use this benefit as often as every day or as infrequently as once a year, dependent on their own individual financial needs. They will only be charged when they actually request a transfer. Choosing the best daily pay benefit provider All earned wage access providers operate differently, which is why choosing the right provider is so critical. There are many “wolves in sheep’s clothing” marketing themselves as daily pay providers who are really just neo-payday lenders. These companies use a wide range of predatory practices, from requiring employees to “tip” them for their services to charging monthly subscription fees, to debiting employee bank accounts. Many also allow employees to debit a flat percentage of their earned wages, such as 50%, without accounting for wage garnishments, such as child support or benefits in arrears. This creates myriad administrative and legal issues for payroll teams when funds are then overdrawn. DailyPay uses a proprietary algorithm that includes child support and other wage garnishments in the calculation of an employee’s available balance, which ensures that the employee’s legal responsibilities are taken care of before anything else. Our system allows employees 24/7/365 visibility into their available balance in our app, which can also be used as a budgeting tool. Our fees for the end-users are also very transparent: $2.99 for a same-day transfer of any size, and $1.99 for a next day transfer, with no cost whatsoever to the business.
Providing employees much-needed financial security According to our user surveys, while 82.5% of employees use DailyPay to pay bills, others welcome the security it provides just by being there for emergencies. There have been many anecdotes about funds not being available for urgent automobile repairs or unforeseen medical bills until the employee used DailyPay to access their earned wages. The safety net and empowerment that this solution creates helps many struggling Americans feel less stressed and allows them to begin to take control of their finances. They can feel the sense of pride that comes from the ability to pay their bills on time. They have the security of knowing they have a simple back-up plan for any financial emergency. They have the joy that comes from being able to treat themselves or their family members to small gifts in a way they weren’t able to before. We’ve heard anecdotes from users who are now able to avoid paying late fees on their mortgages, used transfers to cover emergency medical bills for their children or pets, and others who could finally treat themselves to a little pampering with a weekly manicure. Happier, more grateful employees whose needs are being met are much more likely to give back to the company providing them with that security, which in turn results in happier customers frequenting your business. This goes back to a simple business principle: when you take care of your employees, they take care of you.
Jeanniey Mullen Chief Innovation and Marketing Officer DailyPay, Inc.
The Most Compliant Daily Pay Benefit DailyPay is the pioneer in providing employees instant access to earned wages proven to reduce turnover, support recruitment and increase engagement.
1.9X
Almost double the applicants for job ads that offered daily pay
Employee Satisfaction 87% increase in employee satisfaction
Reduce Turnover 41% reduction in turnover
We Work with Best-In-Class Employers
www.dailypay.com
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24th Annual Mississippi HR Conference & Expo September 16-18, 2019 BancorpSouth Arena & Conference Center Tupelo, Mississippi
HIGHLIGHTS
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7 Kim Hodges, Office Managing Shareholder with Ogletree Deakins, presented “The Intersection of Law & Common Sense.” 8 Lindsey Dowdle, attorney with Jones Walker, discussed “Americans with Disabilities Act and Interplay with the Family Medical Leave Act.” JoJo Adams, also an attorney with Jones Walker, was a co-presenter. 9 MSSHRM State Council members are (1st row L-R) Lindsey Hoskinson, Jacquelyn Mack, Jamie Hicks, Charlotte Pratt, Cynthia Render-Leach, Shonda Kines, Adrienne Morris, Amy Gee, Jessica Milam (Back row L-R) Chris Byrd, Jan Farve, Melissa Drennan, Tracy Osborn, Daniel Baker, Motalisa Smith Robinson 52
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10 (L-R) Melissa Drennan, Director of MSSHRM, presents Jan Farve with the 2019 MSSHRM Service Award. EXHIBITORS 11 Ogletree Deakins 12 The Kullman Firm 13 Baker Donelson 14 Butler Snow 10
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Are aware of what triggers them
7 Ways Emotionally Intelligent People Handle Workplace Pressure By HARVEY DEUTSCHENDORF
As the pace of change and automation in our workplaces continue to speed up, it is inevitable that the pressures and stressors will continue to rise. Most people feel this and are aware of this happening all around them in their organizations. According to a new Korn Ferry survey, nearly two-thirds of professionals say their stress levels at work are higher than they were five years ago. https://www.kornferry.com/institute/workplace-stress-motivation The culprits in causing this increased pressure at work were found to be changes in technology, workloads and interpersonal conflict. While some of the stressors will not change, but accelerate; such as technological change, areas such as interpersonal conflict can be managed in a more effective way. People who are high in emotional intelligence are better able to manage their emotions and the emotions of those around them, giving them tools that allow them to more effectively manage the pressures at work. Here are 7 ways that emotionally intelligent people are better equipped to handle workplace pressure.
Aware of their emotions and stress levels Being highly self-aware emotionally intelligent people don’t let their stress levels get to the point that they feel out of control. They have a variety of tools at their disposal for dealing with the stress when it starts to affect them, such as taking a break or talking to trusted colleagues.
Have people they trust to talk to Whether at work or outside of it, emotionally intelligent people have developed relations with people around them that they can trust to share their concerns and anxieties with. They reach out to these people and are able to benefit from their support and understanding when the pressure starts to build. They are not hesitant to reach out for professional help if they sense the need before things reach a crisis situation.
Take time to respond instead of reacting
We are all triggered at times. These are the times when something somebody says or does brings up strong emotions from us. The emotions arise because the incident or situation brings up something from our past that we may not even be aware of. Because they are aware of their emotions and can trace them back to past events, emotionally intelligent people are less likely to be caught off guard and triggered by current situations. They have strategies and tools ready to use whenever they find themselves triggered.
Are able to identify, name their emotions and have found ways to alleviate them. The act of naming an emotion takes some of the power out of emotions and allows us to get a better handle on them. Emotionally intelligent people are able to identify and name a wide range of emotions which allows them to verbalize them. They also have discovered how to keep those emotions in check by taking breaks, temporarily getting away from the situation or talking to someone they can trust and confide in. Because they constantly use these techniques, they automatically come into play, decreasing the chances for a potentially damaging emotional outburst when our emotions are raw, and raging.
Show their authenticity and vulnerability when appropriate Emotionally intelligent people have a good sense of what to share, to what extend and when it is appropriate. This allows people to get to know them and see their human side. Not having to be on at all times and be all things to all people relieves a great deal of pressure to always be performing at total capacity. This gives them some leeway and breathing space when things do not work out as planned, when schedules aren’t met, and an unexpected crisis occurs.
We feel before we think. When our emotions overwhelm us, we are in danger of reacting from our emotions. Daniel Goleman refers to this as an “amygdala hijack. “It takes about 6 seconds for messages to reach our frontal neocortex, or thinking brain, from our amygdala, or emotional brain. Road rage is a prime example of this happening. If we don’t immediately react, our thinking process kicks in and we will make more reasoned, better decisions. Emotionally intelligent people are tuned in to their emotional level and know when they need to take a break, reconvene and get back to the matter at hand once they have been able to process with their thinking brain.
Able to set boundaries and stay calm in volatile situations Instead of reacting to anger with anger, emotionally intelligent people know that this will only exacerbate the situation. By staying calm, listening and staying positive they are able to diffuse tense situations and keep them from escalating. Instead of reacting with anger when they feel attacked, they are able to politely, but firmly set their boundaries. Their ability to remove their egos from the situation allows them to more clearly see the situation and not take it personally. 54
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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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