Volume 5 : Issue 10 TM
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Top
OSHA’s
Controversial Position On
Labor and Employment Law Attorneys
Transgender Restroom Issues
Valerie Gifford, Rules of
Engagement
CEBS, SHRM-SCP, SPHR
Director,
TNSHRM
State Council
Highlights of
SHRMGA
State Conference In Savannah
SHRM-Memphis
HR Excellence Awards
JUST PUT IT ON THE COMPANY CARD…NOBODY WILL NOTICE.
YOU’RE REALLY SHOWING OFF YOUR BEST ASSETS TODAY.
THEY’RE WORRIED ABOUT OVERTIME. I’M JUST WORKING OFF THE CLOCK.
I NEVER WEAR THE SAFETY GOGGLES. THEY LEAVE A MARK.
What you don’t hear can still hurt you. The things employees say when you’re not around can cause legal troubles for you. Fisher & Phillips provides practical solutions to workplace legal problems. This includes helping you find and fix these kinds of employee issues before they make their way from the water cooler to the courthouse.
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www.HRProfessionalsMagazine.com Editor
Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher
The Thompson HR Firm, LLC HR Consulting and Employee Development Art Direction
Park Avenue Design Contributing Writers
Bruce E. Buchanan Harvey Deutschendorf Susan Hanold Murray L. Harber Josh Harrison Mary Moffatt Helms Jimmy Hinton Chris Menard Brad Owens Rob Ratton Ricky Reynolds Blake Rogers Larry Tolbert Janie Warner Board of Advisors
Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR John E. Megley III, PhD Terri Murphy Susan Nieman Robert Pipkin Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2011 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.
Features
4 note from the editor 5 Profile: Valerie Gifford, Director TNSHRM State Council 9 SHRM’s Next Generation Credentials for HR Professionals 50 7 Habits of Leaders Who Have Developed Mental Toughness
WEB EXCLUSIVES HTTP://HRProfessionalsMagazine.com /Exclusive
Departments BENEFITS 14 Predictive Modeling: Answering Your Questions About Specialty Drug Costs 18 Risk Management for Those with Fiduciary Duties 20 Health Care - An HR Dilemma 48 Highlights from the MBGH Annual Conference COMPLIANCE 16 OSHA Takes Controversial Position on Transgender Restroom Issues at Work 49 Lessons Learned from I-9 Violations in 2015 EMPLOYMENT LAW 10 Uncertain Waters: Summary Judgment in Tennessee 40 Litigation Trends Highlight the Importance of FCRA Compliance 47 Highlights from the Association for Women Attorneys Seminar
Industry News
6 Meet the 2015 SHRMGA State Council 7 Highlights of the SHRMGA 2015 State Conference in Savannah 8 SHRM-Memphis HR Excellence Awards 13 WAHRA Leadership Conference in Fort Smith 23 Recipients of SHRM-Memphis HR Excellence Awards 24 Highlights of ADP ACA Seminar in Brentwood 25 Memphis Chamber HR Legal Summit
ARTICLES 12 Recruiting a Multigenerational Workforce 21 Nightmare on Data Street 26 Rules of Engagement 28 Top Labor and Employment Law Attorneys 28 Fisher & Phillips LLP 29 The Kullman Firm 30 Alston & Bird 31 Bingham Greenebaum Doll LLP 32 Constangy & Brooks 34 Ogletree Deakins 37 Littler 41 Burch Porter & Johnson PLLC 42 Cross, Gunter, Witherspoon & Gulchus, P.C. 44 Wimberly Lawson Wright Daves & Jones, PLLC 45 Baker Donelson 46 Bass Berry Sims
Next Issue
Employee Benefits Planning and Compliance – Deadline to submit articles and ads is October 10 www.HRProfessionalsMagazine.com
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a note from the Editor
September 23-25. We will bring you highlights of these two conferences plus the WAHRA Leadership Conference in Fort Smith October 14 in our next issue. I am honored to be the closing keynote speaker this year. We will also have the highlights of the 23rd TNSHRM Conference in Chattanooga October 7-9.
Cynthia with Sally Roberts, SHRM-SCP, SPHR, Director of SHRMGA State Council at the 2015 SHRMGA Conference in Savannah
Don’t miss the pictorial highlights of the inaugural SHRM-Memphis HR
Excellence Awards at the University of Memphis Holiday Inn. You can read all about it on Page 8 and 23. It was great having Trish Holliday, Assistant Commissioner and Chief Learning Officer of the Tennessee Department of
October is the beginning of the holidays with all the Halloween parties and beautiful fall decorations leading up to Thanksgiving. Most HR professionals are kicking off fall with the annual SHRM conferences. It is our pleasure to bring you the highlights of the 2015 SHRMGA Conference in this issue. It was one of the best SHRM conferences ever, and what a beautiful setting on the Savannah River in lovely downtown Savannah, Georgia! If you were unable to attend, I hope you followed me on Twitter for updates. Be sure to check out the pictorial highlights on our Facebook page too! We also had a great time at the 14th Annual AR
SHRM Employment Law & Legislative Affairs Conference (ELLA) in Little Rock September
17-18. It was wonderful seeing Mike Aitken, SHRM
Human Resources, as the keynote speaker. Trish always delivers an exciting presentation. She challenged us to reinvent HR. HR Professionals Magazine is proud to be a sponsor of the Memphis Chamber HR Legal Summit again this year. It will be on Thursday,
October 22, from 7:30 AM to 11:30 AM at the Hilton Memphis. You can earn 3.00 HRCI general credits and 3.00 SHRM PDCs. Email Lauren Loeb at lloeb@memphischamber.com or register at memphischamber.com. See the details on Page 23. October is also a special month because we bring you the top labor and employment law attorneys in Tennessee, Georgia, Arkansas, Mississippi, and Kentucky. This is an excellent issue to file away as a reference guide on the top attorneys in your state. Please join us October 27 for our monthly complimentary HRCI webcast sponsored by Data Facts.
Happy fall to all!
VP Government Affairs, again. He provided an excellent presentation on the Washington Outlook. What fun visiting our KYSHRM friends at the 31st
Annual Kentucky SHRM Conference in Louisville
Sign up for our RSS News Feed to receive up to the minute HR Alerts on changing legislation affecting our workforce. www.HRProfessionalsMagazine.com. 4
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Valerie on the cover
GIFFORD
VALERIE GIFFORD, CEBS, SHRM-SCP, SPHR Director, Tennessee SHRM State Council When a position for a payroll specialist was posted 26 years ago, then-marketing employee Valerie Gifford decided to apply. She landed the position and found her calling in human resources.
With a passion to help advance
Today, she serves as Vice President of Human Resources for Tennessee Valley Federal
the profession, Valerie has been a
Credit Union in Chattanooga, Tenn. In this role, she is responsible for overseeing
member of SHRM Chattanooga
HR functions, including employee benefits, recruitment and staff development,
for more than 20 years, serving
for the 280-employee community financial institution. Valerie proactively leads an
on the board for 15 years. She
institutional culture that has led to TVFCU receiving numerous community awards
has held positions of Secretary,
for outstanding customer service. Her oversight of hiring and training has contributed
Treasurer and Membership
to TVFCU being one of the fastest growing financial institutions in the Southeast.
Chair. Valerie was Chapter President from 2002 to 2003
Valerie is currently serving as Director of the Tennessee SHRM State Council for
and again from 2010 to 2011.
2015 and 2016. Her involvement with TN SHRM began in 2000 when she joined
She has also served on the
the Council as Secretary. She has also served on the Council as Chapter President for
Tennessee State HR Conference
SHRM Chattanooga, Treasurer and Director-Elect.
Committee when hosted in Chattanooga since 1999, and
In addition, Valerie has served for 13 years on the Chattanooga Area Manager of the
is currently serving as Co-Chair
Year Committee (CAMOY), which annually honors a deserving community leader
of the 2015 Tennessee State
to enhance the recognition of management as a profession, present a role model for
Conference - being held
future leaders, and celebrate the individual’s success and contributions to the greater
October 7-9, 2015.
Chattanooga Community. ď Ž
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2015 SHRMGA State Council
JUDY SPENCER, SHRM Georgia State Council Secretary
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SALLY ROBERTS, SHRM Georgia State Council Director
RUSHE KUDZINSKI, SHRM Georgia State Council Director-Elect
GREG CRISTE, CSRA SHRM Chapter, President
KENYA JONES, SHRM Georgia State Council, At Large Director
TOM DARROW, SHRM Atlanta, SHRM Foundation Board of Directors
CRAIG SOUTHERN, SHRM Georgia State Council, Program Chair
EUNICE GLOVER, SHRM Georgia State Council, College Relations
GREG SHORT, SHRM Georgia State Council, Past-Director
J. MARIE LUTZ, SHRM Georgia State Council, Certification Chair
PAULA KITCHENS, SHRM Georgia State Council, Membership Director
JEFFREY GRANT, SHRM Georgia State Council, District Director
MARTINE DEVOE, SHRM Georgia State Council, Communications Chair
LEE TOMPKINS, Middle Georgia SHRM
STEPHANIE THOMPSON, Middle Georgia SHRM
CARMEN GIFFORD, Northwest Georgia SHRM Chapter, President
BEN TUNNELL, Northwest Georgia SHRM, President Elect
LORAINE ALLEN, Southwest SHRM
CURTIS WOODY, Statesboro Area SHRM Chapter, President
JARED BOSTROM, Foothills of Georgia SHRM Chapter, President
JACK BRUCE, SHRM Atlanta, President Elect
DEVIN WYLIE, SHRM-Columbus Area, President
KRISTIN MASTERS, SHRM-Columbus Area, President Elect
MELISSA HIGGINS, Greater Henry County Chapter of SHRM, President
BOBBIE ROSE, Allatooona SHRM, President
TANYA ROGERS, Laurens County Personnel Association
JENNIFER COOLER, Laurens County Personnel Association, President
JENNIFER AZAR, Thomasville SHRM, President
CACHET PRESCOTT, Greater Valdosta Area SHRM, President
JUDY GIDDINGS, SHRM Georgia State Council, District Director
CHARLES, LITTLE, SHRM-Columbus Area
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Highlights of the SHRMGA Conference August 30 – September 1 in Savannah
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1 Sally Roberts and Andy Lorenzen. 2 Mike Byam is Executive Managing Partner of Terryberry and was the keynote speaker for the SHRMGA Conference opening general session on Sunday. His topic was “The WOW! Workplace.” He is author of the book by the same name. 3 Andy Lorenzen, Sr. Director of Talent Development with Chick-fil-A, was the opening keynote speaker on Monday morning. His presentation was about “People Practices That Create Competitive Advantage.” 4 Dr. Daniel Kuang, VP Legal and Audit Support at Biddle Consulting Group in California, was a concurrent speaker on Monday morning. His topic was “Structured Starting Salary: A Key to Eliminating Compensation Disparity.” 5 The lunch keynote speaker on Monday was Cathy Cox who is the President of Young Harris College and former Secretary of State for Georgia. Her topic was “The Parallels of Education and the Workplace.” 6 SHRMGA HR Awards – (L-R) Leon C. Prieto, Assistant Professor of Management at Clayton State University; Eunice Glover, SHRMGA College Relations Chair; Krystle Carter, recipient of SHRMGA Student of the Year Award; Margaret Thompson, Professor of Management at Clayton State University; Tom Darrow, recipient of the SHRMGA HR Professional Award; Craig Southern, SHRMGA Program Chair. 7 Terri Stewart, Partner with Fisher & Phillips, was a concurrent speaker on Monday. She spoke on “Sex, Gender, Same-Sex Marriage & Transgender Employees: What It All Means.” 8 Scott Ferrin, SHRM Field Service Director, was also a concurrent speaker on Monday. His topic was “Successful HR Strategies for Building an Ethical Workplace Culture.” On Tuesday, he spoke on “Why Today’s HR Rock Star Needs Immigration Management Skills.”
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9 Marty Martenson, Managing Partner with Martenson, Hasbrouck & Simon LLP in Atlanta, was the Monday closing session keynote speaker. He spoke on “The World’s Changing…An Overview of Significant Changes with Regard to the Labor and Employment Landscape in the U.S.” (L-R) Jeff Grant, Rushe Kudzinski, and Marty Martenson. 10 On Tuesday SHRMGA members were invited to a breakfast meet and great with elected officials. The opening general session was a legislative panel discussion moderated by Sarah Lamar. Included on the panel were (L-R) Ron Stephens, Georgia House of Representatives; Sally Roberts, SHRMGA State Council President; Jason O’Rouke, Director of Public Policy Georgia Chamber of Commerce; and Sarah Lamar, Partner with Hunter Maclean and SHRMGA Legislative Chair. 11 Holly Aguilar, Director of the EEOC Office in Savannah, was the closing keynote speaker Tuesday afternoon. Her topic was “Making an Impact on Employment Discrimination.” 12 Snow cones for all!
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Uncertain Waters: Summary Judgment in Tennessee By ROBERT RATTON
When I was a baby prosecutor for the Shelby County District Attorney’s office, I put on what I believed was the most spot on arson trial in the history of criminal prosecution. I had eyewitnesses who saw the defendant running from the house and experts to describe how the fire was started. Even the defendant’s own daughter reluctantly admitted that her dad told her he got mad and “done burnt up Jimmie’s place.” When the jury came back not guilty, I was floored. I spoke with the jury foreman and asked what I possibly could have done differently. With a rather sheepish grin, he said “we all knew that the defendant burned that house down, we just really hated that homeowner.” To be fair, the homeowner was not an easy guy to like. It’s moments like these that support comedian Norm Crosby’s overly cynical adage, “When you go into court you are putting your fate into the hands of twelve people who weren't smart enough to get out of jury duty.” It is also moments like these that explain why we, as employment lawyers, are fighting to keep you out from in front of a jury. At the best case scenario, jury trials are an expensive undertakings. It is not uncommon for a litigation budget for a jury trial to be well over $100,000. The expense is obviously considerably greater if you do not win. A California jury granted a single plaintiff over $190,000,000.00 for a sexual harassment and retaliation case against a prominent Memphis business. The risk for runaway damages and the expense of litigation sends us down a path hopefully headed to summary judgment.
WHAT IS SUMMARY JUDGMENT? All of you have heard your lawyer say something to the effect of, “We should be able to get out of this on summary judgment.” This initial assessment is a key threshold determination in deciding what to do with the case. Litigation can be an expensive undertaking, especially through a jury trial. Your lawyer’s motion for summary judgment is the most common effort to win the case without it having to appear in front of a jury. 10
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Summary judgment is a pretrial motion made after both parties have had a chance to exchange all the evidence each one intends to introduce should the case go to trial. A judge will grant a motion for summary judgment when the party who submits the motion has established that, under the undisputed key facts, no reasonable jury could find for the other party. In evaluating a motion for summary judgment, the Court will not make reasonable inferences, weigh the evidence or make determinations on which party has presented more credible proof. Any leeway goes to the benefit of the party not making the motion. Let’s take a fairly straightforward example. A former employee, who only worked for your company for one month, sues you in federal court for denying his rights secured under the Family Medical Leave Act (“FMLA”). The employee claims in his Complaint that your company refused to let him take medical leave. As we are all aware, an employee who worked with at your organization for one month does not qualify for FMLA leave. If the undisputed facts showed that this employee did not qualify for FMLA, then it is likely the Court would grant summary judgment in favor of the employer. However, let’s say that this former employee filed two claims. Along with his FMLA claims, the former employee also filed a claim for discrimination under the Americans with Disabilities Act (ADA). In this claim, the former employee asserts that he made you aware of the need to accommodate his disability, but you callously refused to engage in the interactive process to help him. Unlike the first example, undisputed facts will likely be harder to establish. For instance, your company might deny that they had any knowledge of a disability, which is directly contrary the plaintiff’s claim. One of two outcomes is likely to occur. On the one hand, through depositions and other means of discovery, your lawyer successfully demonstrates to the Court that the Plaintiff is unable to prove an essential element of ADA claim. In this case, summary judgment should be granted as to the whole case. On the other hand, despite your attorney’s best efforts, she is unable to prove to the court that there are no disputed facts and the court should rule for the defense as a matter of law. In this case, the Court is likely to grant a partial summary judgment. The former employee’s ADA claim is gone, but a jury will have to decide his ADA claims.
FEDERAL STANDARD: “Put up or Shut Up” The likelihood of winning a motion for summary judgment could depend on whether your lawsuit is filed in state or federal court. At present, there is a great deal of uncertainty whether the state and federal courts follow the same standard for summary judgment. Under federal law, the standard is fairly well defined. The law governing summary judgment in federal cases is delicately described as “Put up or Shut up.” Regardless of the type of lawsuit, the plaintiff, in order to prevail, must prove the elements of his claim. Under federal law, an employer files a motion for summary judgment alleging that the employee is unable to
meet his burden on at least one of the essential element of the offense. If the employer has properly alleged that there is no issue of fact that would allow the employee to win at trial, the court will require that the employee to “put up” admissible evidence to counter this assertion. If the employee is unable to “put up,” the court will grant the employer’s motion and dismiss the case. For example, an employer is sued for age discrimination. The sixty five year old former employee claims that his manger referred to him as an “old fart” occasionally and made statements that they needed a younger workforce. Shortly thereafter, the employer undergoes a reduction in force and the employee, along with other younger employees, was terminated. He files suit claiming his termination was based on his age. At the conclusion of discovery, the employer filed a motion for summary judgment stating that the employee was terminated for legitimate business reasons and provided the court with overwhelming evidence that supported this assertion. Despite the comments, the employee was unable to show that the supervisor’s alleged age bias played any role in the decision to let him go. Accordingly, the Court dismissed the case.
Tennessee Standard: “Who knows what’s up?” Despite efforts to clarify the standard for summary judgment the Tennessee, the law has become increasingly murky over the past few years. In 2008, the Tennessee Supreme Court attempted to clarify the standard for summary judgment in Hannan v. Alltell Publishing Co., 270 S.W. 3d 1 (Tenn. 2008). In this case, Mr. and Mrs. Hannan had purchased an ad for the yellow pages to advertise their bed and breakfast. Despite several reminders, Alltell Publishing, forgot to run the ad. The Hannans sued for loss of profits in the amount of $225,000.00. Alltell moved for summary judgment claiming that the Hannan’s had failed over the course of discovery to prove damages for loss of profits, a necessary element of the claim. To support its motion, Alltell provided admissible evidence that the Hannan’s had a banner year without the ad and increased their revenue significantly. The Hannans agreed with the facts as stated by Alltell, but believed they could establish damages at trial. Under the federal standard, the court likely would have found that the Hannans failed to “put up” and would grant the motion for summary judgment. However, the Tennessee Supreme Court very clearly rejected the “Put up or Shut up” standard that governs federal law. According to the Court, the Defendants must show that the Hannans would not have been able to prove damages “at trial.” Proving a negative or impossibility is never an easy proposition. A standard that required the defendant negate any possibility the plaintiff could prove an element at trial made summary judgment extraordinarily difficult to attain and greatly increased the cost of litigation. This decision did not sit well with the Tennessee state legislature who passed a statute in 2011that, according to most commentators, adopted the federal “put up or shut up” standard. After a few years of relative tranquility, the Tennessee Supreme Court clouded up the waters again when it decided to review the case Rye v. Women’s Care Center of Memphis, (Tenn. App. 3-10-2014). In this case, a doctor failed to administer an injection to Ms. Rye that resulted in a greater likelihood of birth defects in future pregnancies. The trial court employed a version of the “put up or shut up” standard dismissing her claims for future damages. Because the case was filed before the statute was enacted, the Court of Appeals reversed this decision by using the
more restrictive standard under Hannan. When it granted the appeal, the Tennessee Supreme Court asked the attorneys to focus their arguments on “whether the Supreme Court should reconsider the summary judgment standard previously articulated by the Court in Hannan.” Hopefully, the Court will not attempt to return us to the Hannan standard, but no one is sure exactly what will happen. Arguments were held last March and we are all anxiously awaiting the outcome.
CONCLUSION Our jury system is the finest forum for justice in the world. That said, your attorney would prefer you not to experience the full glory of its wonder. While a number of factors influence a court’s decision to grant summary judgment, HR professionals can play vital role in helping get to this decision by following the three basic principles that should underscore any adverse employment decision: Document, Document, and Document. No matter how important it is, if it’s not written down, it never happened. Robert W. Ratton recenty joined the Memphis office of Fisher Phillips LLC. Ratton has held several of counsel positions in Memphis and has taken over 30 jury trials to verdict. As Of Counsel with Fisher & Phillips, Ratton advises clients regarding a wide range of employment law matters including FMLA, FLSA and EEOC-related issues.
Robert Ratton, Attorney Fisher & Phillips, LLP rratton@laborlawyers.com www.laborlawyers.com
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Recruiting a Multigenerational Workforce ADP®
W
orkforce demographics are changing on a global scale. Younger, more diverse workers are coming of age and seeking to advance in their careers, while older workers are faced with retiring or staying on in their roles. Baby Boomers, Generation Xers and Millennials will be in the workforce together for years to come, and companies are working to determine how to best recruit the top workers from each demographic.
Generational Differences A hot topic in recent years has been the apparently insurmountable differences between Millennials, Generation Xers and Baby Boomers. Recruiting strategies have to be created in a way that’s sensitive to the different priorities, needs and desires of each age demographic that is being targeted. A truly successful recruiting methodology will incorporate all of these differences in various ways and at various times. But what are the most significant differences? Millennials, despite having a reputation for being self-centered, are actually more likely than other generations to care about company ethics and volunteer policies when making a decision. For example, an estimated 55% of Millennials say a company’s volunteer policy affects whether they will accept a job.1 Members of Generation X tend to be focused on developing a stable career with a well-defined path through the organization. While many Baby Boomers are approaching and reaching retirement age, large numbers of this generation have a desire to stay active in the workforce – even in part-time or consultant-style roles to help maintain “organization knowledge” and pass the torch to younger workers. Recruiting strategies, social media communications, job descriptions and employer branding should reflect a combination of these different 12
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multigenerational attributes. This will allow the organization to demonstrate a commitment to diverse hiring, as well as showcase an ability to provide a variety of opportunities for top talent that support life goals and needs.
Common Ground Despite the differences between members of various generations, there are also many similarities recruiters can utilize to highlight points of connection and make it easier to create messaging that will be effective across generational lines. Strong recruiting strategies will strike a balance between similarities and differences to highlight an employer brand that focuses on a harmonious and productive working environment. Many of the similarities between generations center on interpersonal relationships. Millennials and Baby Boomers both place a lot of emphasis on mentoring relationships – Baby Boomers know they have a lot to offer, and 75% of Millennials are interested in having a mentor.2 Millennials and Generation Xers want to be recognized for their passions and talents. A Generation Xer might prefer a raise and a Millennial might want a more nontraditional type of recognition.
Recruiting Strategies Knowing how to position each message so that it finds the right target demographic is essential for building your employer brand, attracting top talent, and ensuring that your recruiting strategies are innovative and cost-effective. Recognizing where your target demographics are likely to look for jobs is an essential part of designing a recruitment message. Baby Boomers are more likely to use traditional job boards to search for an open role, and will probably look more closely at health care and other traditional benefits offerings than younger workers. Jobs posted on such sites should be structured to capture the attention
and interest of that audience. Millennials tend to prefer niche job boards that focus on a specific field, position or industry. While Millennials are the most likely to interact with a company’s social media account – ask a question, leave a comment or like a post – expect Millennials, Generation Xers and Baby Boomers alike to be looking. A blend of interesting and engaging content, as well as job posts tailored to generational similarities and differences, will help fill your pipeline with talent. When it comes to mobile devices, Millennials lead the pack. They are the most likely to be looking for a position on a mobile device, and the most likely to leave a site that isn’t mobile optimized, with no intention of returning. Opt-in text message job alerts will appeal to on-the-go candidates, and career sites and applications that function across devices and operating systems will attract top talent.
A Balancing Act A successful recruitment strategy performs a balancing act, advertising a company’s strengths to each prospective candidate demographic. While Millennials, Generation Xers and Baby Boomers have a variety of different interests and needs, a strong employer brand is critical to ensuring the right message gets to the right candidate. Careful attention to how and where you advertise open positions will help your organization attract top talent and stay ahead of your competition. 1 Network for Good, 2014 Millennial Impact Report. 2 Urban Bound, Understanding the Millennial Mindset, 2015.
UA Fort Smith UA Fort Smith Center for Business and Professional Center forDevelopment Business and Professional Development PO Box 3649 PO Box 3649 5210 Grand Avenue 5210 Grand Avenue Fort Smith, AR 72913-3649Fort Smith, AR 72913-3649
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REGISTER BY OCTOBER 5!
SESSIONS AND PRESENTERS Date:
SESSIONS AND PRESENTERS Leadership That Makes a Difference by Doug Strickel with International Paper, Memphis TN SHRM Certification: What’s In It For Me by Sherry Leadership That Makes a Difference by Doug Wednesday, Johnson, SHRM Strickel with International Paper, Memphis TN Evolution of Global Leadership by Dr. Kristin Tardif SHRM Certification: What’s In It For Me by Sherry of University of Arkansas—Fort Smith Johnson, SHRM
Wednesday, October 14, 2015
Location: UA Fort Smith REGISTER BY OCTOBER 5! Smith-Pendergraft Campus Center Date: Wednesday, October 14, 2015 Cost: $50 for WAHRA members $75Fort for non-members Location: UA Smith October 14, 2015 Smith-Pendergraft Campus Center
Trends in Benefit Design by Scott Foster, Wellco CorJohnson,by Dr. Kristin Tardif Evolution of GlobalSherry Leadership poration, Royal Oak, MI, Field with Anoop Mansukhani of SHRM of University of Arkansas—Fort SmithStation, NJ Merck Pharmaceuticals, Whitehouse Services Rep, will speak Trends in Benefit Design by Scott Foster, Wellco CorMaster Your World: Ten Executive Leadership on “SHRM poration, Royal Oak, MI, with Anoop Mansukhani of Certification: Strategies to Improve Productivity, Profits,NJand Merck Pharmaceuticals, Whitehouse Station, What’s In It Communication by Mary Kelly, PhD, for Me.”
Master Your World: Ten Executive Leadership ACA’s 2015 to Reporting Pam Kail Strategies ImproveRequirements Productivity,by Profits, andof Lockton Companies, Memphis, Scott Foster, TN Communication by Mary Kelly, PhD, Wellco
Corporation, Workforce Analytics by BradRoyal OwensbyofPam Lockton ACA’s 2015 Reporting Requirements Kail of Oak, MI, with Companies, Memphis, TN Lockton Companies, Memphis, TN Anoop Mansukhani of Merck Enhancing Strategic Leadership by Workforce Your Analytics by Brad Owens ofSkills Lockton Pharmaceuticals, Cynthia Thompson, SPHR, SRHM-SCP, Editor HR Whitehouse Companies, Memphis, TN Station, NJ, will Professionals Magazine, Memphis, TN speak on “Trends in Enhancing Your Strategic Leadership Skills by Benefit Design.”
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Name:
Cynthia Y. Thompson, ADDITIONAL WAHRA Member: _____ PARTICIPANT Yes _____ NoNAMES Editor | Publisher of HR Professionals Brad EmailOwens, address: Name: Magazine will be Producer the closing keynote with Lockton Name: WAHRA Member: _____ Yes _____ No speaker. Her topic will Companies, WAHRA Member: _____ Yes _____ No Email address: be “Enhancing Your will present Strategic Leadership “Workforce Email address: Name: Skills.” Analytics.”
Cynthia Thompson, SPHR, SRHM-SCP, Editor HR of Non-Members # of Members Member: _____ Yes #_____ No Professionals Magazine, Memphis, TN Other topics coveredWAHRA include:
x $75 each x $50 each Email address: Leadership That Makes a Difference | Trends in Benefit Design | ACA’s 2015 Reporting Requirements
APPROVALS
Total # of Members x $50 each
APPROVALS HRCI: 5.5 HOURS BUSINESS/STRATEGY SHRM PDC: 5.5
HRCI: 5.5 HOURS BUSINESS/STRATEGY
For additional information, email 5.5 kim.gordon@uafs.edu SHRM PDC: For additional information, email kim.gordon@uafs.edu
Total
Total # of Non-Members x $75 each
Payment by
Total
US Mail: Send completed registration form & check
(payable to WAHRA) to WAHRA, PO Box 1211, Fort by by October 4 Smith, AR 72902Payment — postmarked US Mail: Send completedorregistration form & check (payable to WAHRA) WAHRA, PO Box 1211, Fort PAYPAL: Registertoonline at www.wahra.com Smith, AR 72902 — postmarked by October 4
or www.HRProfessionalsMagazine.com PAYPAL: Register online at www.wahra.com
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Predictive Modeling: Answering Your Questions About Specialty Drug Costs
Is your organization trying to determine how it will manage the cost of specialty medications? Most likely the answer is yes, given the hundreds of new drugs in the pipeline, with many slated to be released this year. But how do you accurately predict utilization of specialty drugs?
Although historical pharmacy claims data can help paint a picture of utilization of medications used to treat common conditions, this data is less useful for helping you determine potential use of specialty medications. Industry benchmarks are also little help, especially if you’re a midsized company with a self-funded plan. Specialty medication utilization and costs are highly variable. In fact, the smaller your enrollment, the more variable your specialty medication use may be. And just one plan member with a condition treated by one of these new specialty medications could have a significant impact on your bottom line due to the high price tags. So how do you accurately plan for your specialty drug costs? Predictive modeling can provide important answers to your questions about specialty drug use, giving you the ability to implement strategies that can help manage the associated costs.
What Is Predictive Modeling? Predictive modeling is a tool that uses your medical claims data, stored in Lockton’s proprietary data-mining warehouse called InfoLock,Ž to estimate the impact of future specialty drug claims. The tool is used to analyze existing disease states and the demographic profile found in your employee population. The model is only as good as the data used to populate it, so these two guidelines are crucial: v The more current your medical claims data and the lower your rate of employee turnover, the better the modeling results. v The incorporation of health assessment data can provide valuable insight into plan members who have yet to file claims.
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Sample Model for PCSK9 Inhibitors In its simplest form, here’s what the modeling process looks like for one drug: Estimated cost per year per patient Source:
x
FDA and PBM pipeline reports
Number of eligible patients
x
Your medical claims data and ICD9 codes
Percentage of eligible patients expected to seek treatment
Cost of medication for these patients to be replaced by new drug
–
FDA and prescribing information
Because there is significant uncertainty around the number of patients who will seek treatment with PCSK9 inhibitors,
=
TOTAL ANNUAL COST OF NEW DRUG
Lockton’s model shows the full range of possibilities.
Your Rx claims data
SAMPLE MODELING SCENARIO 1: CYSTIC FIBROSIS Let’s say your company wants to know the cost impact of a new cystic fibrosis (CF) drug called Orkambi.™ Here’s a look at the predictive modeling process:
Unique Members With Hypercholesterolemia:
1,248
Unique Members With Hypercholesterolemia OR Script for Antihyperlipidemics:
3,692
Est. Unique Members With Familial Hypercholesterolemia (FH)*
15
Est. Unique Members With Elevated LDL-C Despite Being on Statins or Can’t Tolerate**
738
Percen Seekin Treatme 100% 90%
*Assumes 1/83 members with hypercholesterolemia have the familial form. **Assumes 20% of members with hypercholesterolemia or a script for an antihyperlipidemic have elevated LDL-C despite being on statins or can’t tolerate.
v Analysis of your medical claims data reveals that four members over age 12 have been diagnosed with cystic fibrosis.
Unique Members With Hypercholesterolemia: Unique Members With Hypercholesterolemia
Script for Antihyperlipidemics: v The new medication costs approximately $259,000 per memberOR per year.
1,248 3,692
Est. Unique CF Members With Elevated v No one in your population is currently being treated by another drug calledLDL-C Despite Being on Statins or Can’t Tolerate**
15 738
Kalydeco,® so costs for this new treatment will be in addition to your current *Assumes 1/83 members with hypercholesterolemia have the familial form. **Assumes 20% of members with hypercholesterolemia or a script for an antihyperlipidemic have elevated LDL-C despite being on statins or can’t tolerate.
v The new medication is appropriate for those CF patients with a certain genotype—and about half of all CF patients have this genotype.
$259,000
x
4 patients
x
50% eligible
–
$0 in Kalydeco that would be replaced
=
Elevated LDL-C Despite Being on Statins or Can’t Tolerate Patients
Annual Cost Per Patient
Net Additional Annual Cost
100%
738
$12,000
$8,856,000
90%
665
$12,000
$7,980,000
80%
591
$12,000
$7,092,000
70%
517
$12,000
$6,204,000
60%
443
$12,000
$5,316,000
50%
369
$12,000
$4,428,000
40%
296
$12,000
$3,552,000
30%
222
$12,000
$2,664,000
20%
148
$12,000
$1,776,000
10%
74
$12,000
$888,000
Percent Seeking Treatment
$518,000
SAMPLE MODELING SCENARIO 2: HIGH CHOLESTEROL A new injectable medication for lowering cholesterol has been launched. Here’s a sample modeling scenario for a large employer trying to determine the impact of these new PCSK9 inhibitors: v Claims data shows approximately 738 members with high cholesterol could be eligible for the drug. Some of these 738 are on statins (and therefore identified in the pharmacy claims data), but others are not on statins because they are unable to tolerate them.
LOCKTON CAN HELP To manage your specialty costs, it’s important for your organization to know the risks it faces. Because the past is no indication of the future when it comes to specialty medications, look to Lockton’s predictive modeling tool to help you analyze the health of your employee population. For more information, please contact your Lockton Account Team.
Medical diagnosis information helps us identify those members. v We estimate between 10 and 20 percent of those members will receive the new drug. v The new drug costs approximately $12,000 per member per year.
70% 60%
Est. Unique Members With Familial Hypercholesterolemia (FH)*
pharmacy spend.
80%
Brad Owens
Lockton’s Memphis Office 901 757 6901 bowens@lockton.com
www.HRProfessionalsMagazine.com
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50% 40% 30% 20% 10%
OSHA Issues new “Best Practices Guidance” on June 1, 2015 On June 1, 2015, the Occupational Safety and Health Administration (OSHA) issued important new Guidance in a four-page document entitled "Best Practices: A Guide to Restroom Access for Transgender Workers," marking a continued trend by the federal government in urging transgender equality. This Guidance (Best Practices Guidance) can be found at www.osha.gov/Publications/OSHA3795.pdf. Although OSHA’s new Best Practices Guidance is a recommendation and does not carry the force of law, employers should be aware that it comes after previous developments in 2014, when President Obama signed Executive Order 13672, prohibiting job discrimination against lesbian, gay, bisexual and transgender (LGBT) Americans in federal employment and by companies that do business with the federal government.
OSHA Takes Controversial Positions on Transgender Restroom Issues at Work By MARY MOFFATT HELMS
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According to an analysis of 36 research studies by the Williams Institute, “LGBTsupportive policies and workplace climates are linked to greater job commitment, improved workplace relationships, increased job satisfaction, and improved health outcomes among LGBT employees." According to the Williams Institute, an estimated 700,000 adults in the United States are considered transgender. In its Best Practices Guidance, OSHA defines “transgender” as a person having an "internal gender identity that is different from the sex they were assigned at birth (e.g., the sex listed on their birth certificate)." OSHA further states that "gender identity is an intrinsic part of each person's identity and everyday life," thus understandably leading to conundrums regarding bathroom access.
Existing Law under OSHA’s Sanitation Standards As the LGBT movement has made transgender issues more prevalent in the workplace, bathroom restrictions and accessibility standards have also become a more complex controversy. Many employers may not realize that there are already existing laws in place (OSHA's Sanitation Standards) that regulate in some ways the availability and use of toilet facilities at work. These Sanitation Standards for the provision of toilet facilities can be found at 29 CFR 1910.141(c), and apply to all employers under OSHA’s jurisdiction. There are at least three important issues under OSHA’s Sanitation Standards: the number of toilets, access to toilets, and now, the even more controversial issue of transgender bathroom access. OSHA’s Sanitation Standards state that "toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment in accordance with the (below table) of this section. The number of facilities to be provided for each sex shall be based on the number of employees of that sex for whom the facilities are furnished. Where toilet rooms will be occupied by no more than one person at a time, can be locked from the inside, and contain at least one water closet, separate toilet rooms for each sex need not be provided. Where such single-occupancy rooms have more than one toilet facility, only one such facility in each toilet room shall be counted for the purpose of the (below table.)" Number of Employees
Minimum Number of Water Closets
1 to 15
1
16 to 35
2
36 to 55
3
56 to 80
4
81 to 110
5
111 to 150
6
Over 150
Provide one additional toilet for each 40 employees
The OSHA Sanitation Standards further provide that "where toilet facilities will not be used by women, urinals may be provided instead of water closets, except that the number of water closets in such cases shall not be reduced to less than 2/3 of the minimum specified." OSHA also weighs in on the controversial issue of access to the toilet facilities. In its most recent pronouncement on the subject, OSHA states that it ". . . has consistently interpreted this standard to require employers to allow employees prompt access to sanitary facilities. Further, employers may not impose unreasonable restrictions on employee use of toilet facilities." In the event employees are not provided reasonable access to the toilet facilities, OSHA can argue that those toilets have not been made "available" to employees, although OSHA cases challenging such denial of access are rare.
Enforcement Efforts by the EEOC OSHA's position on this issue should come as no surprise given the recent efforts from the federal government to bring transgender status under the protections of Title VII of the Civil Rights Act of 1964, even though it is not specifically covered under that statute. In April 2015, in the case of Lusardi v. McHugh, the EEOC held the Department of the Army subjected a transgender employee to disparate treatment and harassment based on sex in violation of Title VII when it restricted her from using the common female restroom and a team leader referred to her by male pronouns and hostile remarks. In response to arguments presented in the case related to "supervisory or co-worker confusion or anxiety,” the EEOC noted that "Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people's prejudices or discomfort … . Allowing the preferences of co-workers to determine whether sex discrimination is valid reinforces the very stereotypes and prejudices that Title VII is intended to overcome … Thus, for instance, employers may not prohibit a transgender female worker from using the female bathroom based on speculation or stereotypes that such workers are somehow inherently dangerous or prone to violence … ." Lusardi, Appeal No. 0120133395 at p. 11 (EEOC, April 1, 2015). In Lusardi, the EEOC further noted that employers faced with transitioning gender situations should consider developing individualized transition plans appropriate for the employee's circumstances, cautioning that such plans should not be used as a means to restrict the transitioning employee but as a tool to enable the employee to complete his or her transition in an open and welcoming way. The Lusardi case is not binding precedent on private employers (although arguably is binding on federal contractors), but the EEOC currently has at least three (3) cases pending against private employers, wherein the Commission alleges discrimination based on sex because the employee is transgender.
(EEOC v. Deluxe Financial, D. Minn. Civ. No. 0:15-cv-02646; EEOC v. Lakeland Eye Clinic, M. D. Fla. No. 8-14-cv-2421; EEOC v. Harris Funeral Homes Inc., E.D. Mich. No. 2:14-cv-13710).
State Law Requirements In addition, a number of states, including Colorado, Delaware, Iowa, Vermont and Washington have regulations requiring employers to provide access to restrooms corresponding to an employee's gender identity.
Employer Considerations for Best Practices OSHA's Best Practices Guidance also makes the point that authorities on gender issues counsel that it is essential for employees to be able to work in a manner consistent with how they live the rest of their daily lives, based on their "gender identity." "Restricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out … ." It goes on to state: "For example, a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms." The Best Practices Guidance advocated by OSHA also provides additional options, which employees may choose, but are not required, to use. These include: • Single-occupancy gender-neutral (unisex) facilities; and • Use of multi-occupant, gender-neutral restroom facilities with lockable single occupant stalls. For employers considering how best to comply with the Best Practices Guidance, it may be significant to note that OSHA’s Sanitations Standards provide that "Each water closet shall occupy a separate compartment with a door and walls or partitions between fixtures sufficiently high to assure privacy." 29 CFR 1910.141(c)(2)(i). OSHA also advises under the Best Practices Guidance that employers not require employees to provide any medical or legal documentation regarding their gender in order to access the restroom that corresponds to their gender identity.
Conclusion While it remains to be seen how active OSHA is going to be in enforcing these policies, employers are well-advised to be sensitive to these important new developments regarding transgender issues.
Mary Moffatt Helms, Attorney Wimberly Lawson mhelms@wimberlylawson.com www.wimberlylawson.com www.HRProfessionalsMagazine.com
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Risk Management for Those with Fiduciary Duties By LARRY TOLBERT
Employers who serve as fiduciaries for employee retirement plans need to understand and prove themselves proficient in their duties and compliant with the rules or risk hefty financial penalties and possible personal legal consequences. That’s the reality as the U.S. Department of Labor (DOL) continues to step up its efforts to hold retirement and other benefit plan fiduciaries accountable for compliance with federal law and agency rules and regulations. Unconvinced? Just this past year: • The DOL audited nearly 4,000 plans and found nearly 65 percent needed to restore plan losses or correct plan deficiencies; • The Employee Benefits Security Administration (EBSA) collected, recovered and restored nearly $600 million for direct payments to plans, participants and beneficiaries;
The Courts Weigh In In the past year, court decisions and legal judgments have also affirmed the responsibilities plan fiduciaries have to their participants. In February, plaintiffs secured a $62 million settlement in a case against Lockheed Martin Corporation which alleged that fiduciaries selected funds with excessive fees. Plaintiffs also alleged that stock market and money market investments were not properly managed. The settlement is considered the largest of its kind. In May, the United States Supreme Court decided that fiduciaries selecting plan investment options have an ongoing duty under the Employee Retirement Income Security Act (ERISA) to monitor the investment options for prudence. The court’s decision was unanimous.
Risk Management Best Practices Since plan fiduciaries are accountable for acting in the best interest of their participants under federal law, adopting and adhering to industry best practices can help plan fiduciaries manage their risks. Ways to reduce fiduciary responsibility include: • Deposit contributions on a timely basis;
• Authorities closed 365 criminal investigations, indicted 106 individuals (plan officials, corporate officers, service providers) and reported 85 cases closed with guilty pleas or convictions.
• Provide all required notices and disclosures to participants on a timely basis;
Fiduciary Duties, Guidelines, Expectations
• Maintain an investment policy statement;
According to the Government Accountability Office (GAO) summary, “Under the Employee Retirement Income Security Act (ERISA) a person is generally considered a fiduciary with respect to a plan, to the extent they exercise any discretionary authority or control over plan management or any authority or control over the management of disposition of plan assets, render investment advice representing plan money or property for a fee or other compensation (or has the authority or responsibility to do so,) or have discretionary authority or control or responsibility for plan administration.” Federal law requires that fiduciaries make decisions in the best interest of plan participants and beneficiaries. And guidelines are summarized in four basic rules: • The exclusive benefit rule, also known as the duty of loyalty, requires fiduciaries to act solely for the purpose of providing benefits to participants and their beneficiaries; • The prudent person rule, also called the duty of care, requires fiduciaries to act with care, skill and diligence; it does not require them to be experts but requires that they recognize when they are not experts and seek counsel when needed; • The investment diversification rule is a fundamental requirement because it is a fundamental principle of investment success and calls for a plan’s investment options to be monitored for performance and the mix of options to be reviewed over time; • The consistency rule calls for fiduciaries to act in a manner consistent with the plan documents as long as the document is consistent with ERISA. If fiduciaries do not carry out their responsibilities under ERISA or take contrary actions, they are considered in breach of their fiduciary responsibilities. And they may be held personally liable to restore plan losses, face penalties, court judgments and even criminal sanctions.
• File Form 5500 on a timely annual basis; • Understand and consistently apply provisions of the plan, including eligibility, disbursements, loans and compensation. Additional steps to manage fiduciary risks include: • Construct a broad range of investment options, one that provides participants with the opportunity to affect returns and choose from among at least three investment options (core alternatives) with materially different risk and return characteristics; • Construct an offering of options appropriate to the skill level of the participants; • Monitor service producers regularly, yearly or quarterly, to evaluate the reasonableness of fees and demand fee transparency and revenue neutrality; • Provide participants with appropriate and timely educational materials and resources, including plan-related and generic investment information. Section 404(c) of the Employee Retirement Income Security Act of 1974 is designed to provide a safe harbor as plan sponsors transfer the legal responsibility to the participant for losses resulting from the participant’s exercise of control over his or her account. However, there are limits on those protections. Collaborating with a knowledgeable and experienced retirement plan advisor or consultant is the first step, someone who can help protect the best interests of plan participants and fiduciaries.
The Trend Is Clear In recent years, the DOL has increased resources devoted to enforcing compliance among plan sponsors. This past year, the number of DOL auditors on staff rose to more than 1,000. That means more 401(k) retirement plans will receive focused attention and an increased number of smaller plans will be slated for DOL review. “Our legal action underscores the Labor Department’s commitment to hold accountable those who are entrusted with the assets of workers’ retirement plans,” EBSA Assistant Secretary Phyllis C. Borzi has said. “We will continue to help workers obtain their rightful benefits when plan fiduciaries violate the law.” The EBSA oversees nearly 708,000 private-sector retirement funds, about 2.8 million health plans and a similar number of life and disability insurance plans. Together, the plans represent assets in excess of $7.6 trillion and provide benefits to nearly 150 million American workers and their dependents. 18
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Larry J. Tolbert, MBA, CEP Founder, Radian Partners LLC Larry.Tolbert@radianpartners.net www.radianpartners.net Securities, insurance and advisory services offered through FSC Securities Corporation, member FINRA/SIPC. Radian Partners, LLC is not affiliated with FSC or registered as a broker-dealer or investment advisor. Radian Partners is located in Suite 150, 6060 Poplar Avenue, Memphis, Tenn., and reachable at (901) 202-3909.
Health Care – An HR Dilemma By MURRAY L. HARBER
KENT ADKISSON
H
SCOTT E. CONARD
ED HAGAR
GREGG HARPER
uman resources professionals have been working more on health care lately than they have on the other parts of their job duties. In this era of increasing costs, government regulations with deadlines, and issues with communicating to employees and their families for engagement into benefits; HR professionals are looking for learning opportunities, strategies, and resources to help them optimize their investments into offering quality health benefits to their employees. To better understand the issues within the system, the HR professional can learn more about the business of health care. Learning how to look past simple health plan design changes, which has a main focus of cost shifting, to strategies that look at root causes of issues driving cost? Just because a provider is in a network, does not mean they are a provider who delivers quality care and gets the bests outcomes. Employers across the country are beginning to require more quality and outcomes data as part of the health plan’s responsibility. Some health plans are rolling out these initiatives to their provider networks as employers and government entities are pushing for these types of changes to align payment systems. Health providers are having to change their mindset and look at new ways of thinking about care, outcomes, and payments.
“The Health Summit continues to grow in the depth and content of its program. It constantly adjusts to the fast changing world of health care and addresses the things that are critical in both managing and delivery of health care. The number of CEO's, CFO's, HR Professionals and Consultants who attend are indications of the importance and quality of the Summit. It is a local seminar with very powerful programs that you usually see at a national conference. It is always part of my game plan in managing our health program to attend the Summit.”
Billy Sims Vice-President, Human Resources Southern Farm Bureau Life
LEADERS TO SHARE VIEWS On October 13th, 2015 the Mississippi College School of Business and the Mississippi Business Group on Health will hold their 6th Annual Health Care Summit. This event brings together leading business professionals, health care professionals, and health plan professionals to learn about current trends and future solutions to the ever changing landscape of health care. Congressman Gregg Harper will share his thoughts on national legislation affecting the health and health care of employers and citizens alike. He will share how existing laws are being implemented, efforts to improve laws, and give insight into bills to be introduced now and in the future. Tim Moore, CEO of the Mississippi Hospital Association, will share his organizations views on the effect of market forces and reimbursement systems on health systems in Mississippi. He will discuss efforts by his membership 20
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LORIE LARSEN
DR. ANNETTE K. LOW
TIMOTHY H. MOORE
BILLY SIMS
who are looking for solutions to continue to provide care in rural parts of the state without disrupting employment in those areas. Chris Goff, CEO of Employers Health, will discuss how employers can use data in designing effective employer health and wellness programs along with developing high performing networks. His leadership for the past 20+ years has helped to create one of the largest employer coalitions in the U.S., which has gained recognition for developing cost saving solutions for its members and the communities where they operate. Dr. Scott Conard, CMO for Compass Care Engineering, will share updates in population health management including quality and cost transparency initiatives occurring across the country. His expertise in helping to develop some of the early clinical integration initiatives will align with efforts occurring in Mississippi as health systems are working together for improved transparency. Dr. Annette Lowe, a national expert on Obesity prevention and management will discuss the prevalence of Obesity in Mississippi and its effect on employers in direct health costs as well as indirect costs such as productivity. She will discuss efforts that employers, plans, and providers can offer to help patients along the spectrum of overweight to the morbidly obese. Mr. Kent Adkinsson, VP of Product Innovation of United Health, will share his thoughts on the changing aspects of consumer engagement including messaging, technology, quality, and cost transparency.
BE PART OF THE SOLUTION We are in a time of change with respect to employer-sponsored health and health care initiatives. Pulling together the leaders from business, health care, and health plans to share ideas and learn from nationals aspects is helping Mississippi become a healthier state and a state where other employers want to be.
As a large health system and employer, we are looking for ways to collaborate with other employers to package valuebased services to maximize health outcomes and optimize cost. Attending the summit allows us an opportunity to not only learn how to design our own program for employees, but also network with other employers to discuss solutions for the entire health system in Mississippi.
Evan Dillard CEO of Forrest Health in Hattiesburg, MS
Be part of the solution and register today for the event at http://business.mc.edu/health-care-summit/.
Murray L. Harber, Executive Director Mississippi Business Group on Health murraylynnharber@gmail.com www.msbgh.org
on Data Street Don’t let the Affordable Care Act reporting requirements keep you up at night. By B LAKE ROGERS, JIMMY HINTON, CHRIS MENARD, and RICKY REYNOLDS
Cue the scary movie music: Just in time for Halloween, the Affordable Care Act’s information reporting requirement is probably on your to-do list now. If you’re like many employers, you may not be sure exactly what you need to do and you don’t know where to turn for help. Let’s see if we can shed some light to shoo that monster out from under the bed.
What does ACA require? If you have 50 or more full-time equivalent employees, you must provide employeespecific information to the IRS about the health coverage you offer this year. This is how the IRS will track which employers and employees are following the new rules. You’ll need to send a form 1094-C to the IRS — a company-level overview of the benefits offered and hours worked — by Feb. 29, 2016. If you have more than 250 full-time employees, you must file electronically and you get another month: March 31 is the deadline. You also must mail a form 1095-C to every employee who was benefit-eligible during 2015 by Jan. 31, 2016. The information on these forms will include your total employee headcount per month; health coverage for all full-time employees; name, Social Security number, birth date and address for employees and covered dependents; employees’ share of the lowest monthly health insurance premium; and other data.
What’s the problem? For many employers, the first boogey-man is collecting all the data in a single system that can generate the reports you need. This is kind of like that carnival game where the three cups move around and you try to guess which one the penny is under. Cup number one might be your payroll vendor, which likely has the employee information but not the coverage and premium data. Cup number two could be your benefits administration technology platform, which might not have the individual employee and dependent data and might not be able to report on a monthly basis or easily populate the IRS forms for you. And cup number three is your benefits carrier, which has the insurance coverage information for employees and dependents but probably not the employee contribution data needed to determine affordability compliance. Unfortunately, the penny isn’t really under any one of the three cups. Even if you do have a handle on your data, you may need help with generating the reports and ensuring your company is ACA-compliant. Here’s a real-life example from one of our customers: The human resources staff completed the first six months of data for these forms by hand because they didn’t know how else to get it done. Maybe that doesn’t sound like too onerous a task if you have 50 or 100 employees. But this is a health care company with 5,900 employees! It’s hard to imagine the countless hours this company is investing in meeting this one reporting requirement — precious time resources that could have been spent helping the company grow and meet its business goals. Scared yet? You’re not alone. In a recent survey by the International Foundation of Employee Benefit Plans, 57 percent of employers said administrative issues are their biggest ACA challenge. It’s no surprise, then, that more than a third of survey respondents said their view of ACA has become more negative since it was enacted (compared with 10 percent who view it more positively). In addition, 60 percent said ACA has had a very or somewhat negative effect on their organization so far — and that number grows to 70 percent for the anticipated future effect.
So what’s the solution? Ever notice how most horror movies involve a lot of people stumbling around in the dark? We recommend partnering with an expert who can help you turn on the lights. One outgrowth of the ACA complexities is the birth of a new industry supporting compliance and reporting. There are several good firms out there that can provide the level of support you need, whether it’s compiling data from various systems, generating reports or even indemnifying your company for ACA compliance. Colonial Life has evaluated many vendors providing these services and can recommend the right partner to help meet your needs. Most vendors will charge a set-up fee and either an annual fee, a per-employee-permonth charge, or a per-report charge. Obviously, these costs can add up. However, Colonial Life can help with that, too, with subsidies for the cost of your service if we have the opportunity to meet with at least 75 percent of your employees during your benefits enrollment. The amount of the subsidy is based on your number of employees. The other part of the solution is to start now. Waiting until the end of the year — or even worse, January — to start looking at options and lining up support could leave you in a pretty scary situation. In fact, several vendors have already stopped accepting new customers as they’re already at capacity for what they can deliver by the ACA deadlines. Give us a call and let’s talk about how we can help. We promise no tricks, just treats.
Blake Rogers Tennessee territory sales manager Colonial Life & Accident Insurance Company tblakerogers@coloniallife.com or 615-696-6672
Jimmy Hinton Mississippi territory sales manager Colonial Life & Accident Insurance Company jhhinton@coloniallife.com or 601-326-2954
Chris Menard Kentucky territory sales manager Colonial Life & Accident Insurance Company cmenard@coloniallife.com or 502-272-9664
Ricky Reynolds Arkansas/Oklahoma territory sales manager Colonial Life & Accident Insurance Company rcreynolds@coloniallife.com or 501-246-8979
ABOUT COLONIAL LIFE Colonial Life & Accident Insurance Company is a market leader in providing financial protection benefits through the workplace, including disability, life, accident, dental, cancer, critical illness and hospital confinement indemnity insurance. The company’s benefit services and education, innovative enrollment technology and personal service support more than 80,000 businesses and organizations, representing more than 3 million of America’s workers and their families. For more information, visit www.ColonialLife.com, www.facebook.com/coloniallifebenefits, www.twitter.com/coloniallife and www.linkedin.com/company/colonial-life. www.HRProfessionalsMagazine.com
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Celebrating 25 Years!
Book Your Holiday Party Now – Great Dates Still Open!!
Voted #1 Brunch in Memphis by Commercial Appeal readers!
Private rooms available from 8 to 80 #1 Best Sunday Brunch from Memphis Magazine Best Lunch & Best Cajun and Creole
Lunch & Dinner: Mon. - Thurs. 11am - 9pm Fri. and Sat. 11am - 10pm Sunday Jazz Brunch Seating 9:30am - 2:30pm
2014
October Patio Specials $5 Hurricanes and three wines by the glass for $5 To request reservations, visit www.brennansmemphis.com.
HUMAN RESOURCE EXCELLENCE AWARDS September 9 • 7:00-9:30am Holiday Inn - University of Memphis www.shrm-memphis.org 1
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Speaker, Trish Holliday, M.A., SPHR, SHRM-SCP
SHRM Memphis is Proud to Announce our Award Nominees 3
4
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1 HR EXECUTIVE OF THE YEAR AWARD – Rickey Busey, VP HR and Property Development at Harrah’s Entertainment; Sarah Colley, SVP HR at Regional One Health and recipient of the HR Innovative Deployment Executive theQuinten Year Human Resource Executive of the of Year Award; Robinson, CHRO for the City ofPractitioner Memphis. Finalists not pictured: Jason Callahan, VP HR and Risk Management at TruckPro; and Lisa Terry, Division HR Manager of the Power Transformer Division at Mitsubishi Electric Power Products, Inc. 2 HR PRACTITIONER AWARD – Holly Turner, HR Manager for Baptist Memorial Ricky Busey of the Year of HR Technology Hospital-Memphis; Moira House, recipient of the HR Practioner of the Year, and Director of Operations at CBIZ MHM, LLC; Rolana Bourland, HR Manager and Business Partner to Operatives Jason Callahan DeeofBanta Donna and Marine Divisions at Cummins Mid-South, LLC. Not pictured: Steve Griffin, Senior Director Human Resources for Kele, Inc.; Brenda Gregory, VP of HRRobinson at Lipscomb & Pitts; Dee Banta, Colley System Director of HR forSarah Baptist Memorial Health Care, and J. Wayne Sanders, Director of Human Resources for American Esoteric Laboratories.Karen 3 HR INNOVATOR AWARD – Karen Sones, Rolana Bourland K. Sones SVP, HR Strategic Project Director at First Horizon National Corporation, recipient of the HR Innovator Award; and Donna Robinson, Director-Talent Acquisition for Baptist Memorial Health Care Quintin Robinson Brenda Malone Gregory who was a finalist. 4 HR EMERGING LEADER AWARD – Anne Thompson, HR Representative at Baptist Memorial Hospital-Memphis, is recipient of the HR Emerging Leader Award. Not Lisa Terry pictured is Dr. SunSe Williams, Director of HR at Crowne Plaza Memphis Downtown Steven Hotel, who was a finalist. 5 HR STUDENT OF THEStudent YEAR AWARD – of Shelbythe Yardley,Year recipient of the HR Griffin Student of the Year Award, is an HR Representative at Baptist Memorial Hospital-Memphis; and Samantha Dowdy, Finalist, is the HRIS Analyst for Memphis Goodwill, Inc. 6 Keynote Speaker Moira K. House Samantha (Sam) Dowdy – Trish Holliday, Emerging M.A., SHRM-SCP, SPHR, Assistant Commissioner and Chief Learning Officer for the Tennessee Department of Human Resources, was the keynote speaker. Leader
J. Wayne Sanders Holly Turner
Anne Thompson Dr. Sunse A. Williams
Special thanks to our presenting sponsors: 7
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Shelby Yardley
Our platinum sponsor: 8
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7 Award Ceremony Panelists – John Daniel, EVP and CHRO at First Horizon National Corporation; Austin of HRO Partners and presenting Carl Morrison, Esq., Oursponsor; silverandsponsor: OurBaker, goldCEOsponsor: with Ogletree Deakins’ Memphis office. 8 Cynthia Y. Thompson, Editor | Publisher of HR Professionals Magazine; Trish, Holliday, Assistant Commissioner and Chief Learning Officer for the Tennessee Department of Human Resources and keynote speaker; Deneen Lester, Manager of Recruitment & Selection for the City of Memphis and Mistress of Ceremony, and Vanessa S. Burns, SHRM-Memphis 2015 President. 9 Shana Scales, MBA, MSA, is the SHRMMemphis HR Recognition Chair. 10 SHRM-Memphis Student Chapter Volunteers – (L-R) Jeff Centobe, Christopher Burton, Robbie Bradley, Shuntel Moore, Jacqueline Hardison. Front row, Michelle Anderson. 11 Pastor Karen Todd, Senior Associate Pastor of New Direction Christian Church, delivered the invocation. 12 Antoinette Wiseman, HR Manager at Independent Bank; and Cindy Phelan, Director of HR at Alco Management; are Co-Chairs of the 2016 TNSHRM Conference. 13 Ice Sculpture at the University of Memphis Holiday Inn
Educate. Motivate. Inspire. 12
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Highlights from ADP ACA Seminar in Brentwood ACA Best Practices: Controlling Cost and Mitigating Risk
September 10, 2015 Mere Bulles in Brentwood, TN
John Haslinger, VP Strategic Advisory Services, ADP, LLC. John spoke on strategies to help control costs, mitigate risk and decrease penalties.
Front Row (L-R) Rachel Faulkner, Sales, ADP Global Enterprise Solutions; Susan Hanold, VP, ADP Strategic Advisory Services; Marty Frankin, Sales Manager, ADP Benefit Services Back Row (L-R) Jeff Jenks, Sales, ADP Global Enterprise Solutions; Jeff Phelps, Sales Director, ADP Global Enterprise Solutions
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Sushma Tripathi, VP Workforce Planning and Benefits Consulting Strategic Advisory Services, ADP, LLC. Sushma’s topic was on total absence management and how it impacts your ACA strategy and avoiding penalties.
Attendees enjoyed lunch at Mere Bulles in Brentwood, TN.
presents:
2015 HR LEGAL SUMMIT
Hot Topics: The Employment Laws You Need to Know Now Through three interactive sessions on the latest employment laws and hot topic issues - including a highly competitive game show with prizes - you will ďŹ nd out what you need to know to protect your business. This Summit is for business owners, attorneys, human resource professionals and anyone who manages employees.
Thursday, October 22, 2015 | 7:00 - 11:30 AM Hilton Memphis | 939 Ridge Lake Blvd | 38120 Cost: $60 - members | $70 - prospective members | $110 - CLE credit RSVP: Lauren Loeb - lloeb@memphischamber.com or 901-543-3508
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Rules of Engagement By JANIE WARNER
RULE 3: Outlining the “Rules of Battle.” Often overlooked in the on-boarding (i.e. orientation) process is the importance of reviewing the rules. You know – those do’s and don’ts covered in the Employee Handbook. We’re not even aware that we are teaching the new employee the true rules of combat! We outline the behaviors that keep one in good stead – as well as those that get employees in trouble. We tell them whom to call when there is an issue – and what their responsibility is within the processes. A truly engaged employee generally has a desire to know – and follow – the rules. The disengaged worker is not overly concerned with the rules and may often flaunt them. Be on the lookout for these! Clearly and concisely explain why the rules are important and how exactly these policies relate to the overall mission of the organization and their place within the mission.
RULE 4:
While attending the recent SHRM conference in Las Vegas, I was interested in the number of topics that seem to revolve around “Employee Engagement”. It is evident that, as a profession, Human Resources has become re-focused on not just filling positions, but trying to tap into the emotional aspect of employment we now call engagement. In the past, “Rules of Engagement” has been the playbook for war. Of course, there have always been laws of war – those agreements among combatants of how military actions will proceed, what is off limits and what is allowed, and "rules of engagement" that dictate the way they initiate battle. While HR professionals would never want to equate employment issues with war (okay, MOST wouldn’t), it’s an interesting concept that engagement has a background in conflict. In many ways, employee engagement is about setting rules outlining how the “game” of employment will be played. But it goes beyond that. Several “rules” come to mind when looking at the concept of engagement – some even before the applicant is hired.
RULE 1: Measuring desire for engagement – It is a challenge to determine “fit” for any individual into not only a position, but within the organizational culture. Often clues can be found in the resume – more often in a behavioral interview. Ask questions that help you determine how seriously the candidate wants to be grafted into the new company. Through the interview process, ask questions that give you clues on what type of management style(s) the applicant responds well to – and those to which they respond adversely.
Following onto Rule 3, Rule 4 seeks to engage the employee by making them a stakeholder rather than an employee. A great book for any employer is “Why Employees Are Always a Bad Idea” by Chuck Blakeman (Crankset Publishing, 2014). It makes the case for transforming an organization from an “Us versus Them” mentality to one of inclusion and empowerment. It all hinges on the ability of the organization to actively engage the hearts, minds and hands of the individual to become a business partner – not just an employee who shows up, does the minimum and collects a paycheck. In war, soldiers make a written commitment to fight toward the achievement of the Mission. They, in fact, pledge their lives to the cause. Employers do not need that level of commitment (hopefully), but they do need a commitment level that the employee will not work against the mission. Neutrality is better than sabotage, but ultimately, engagement is key.
RULE 5: Maybe the most important, Rule 5 reminds us that, in all battles, it is vital that the soldier have the proper equipment to complete the mission. Even actively engaged employees will become discouraged when they do not have the proper tools to do their job well. Work arounds are okay on a temporary basis – but constantly having to work around outdated or ill-suited software, equipment or even furniture can be a drain on engagement. Nip it in the bud by providing the best – and expect that these tools are used to the maximum advantage. Is it easy to garner engagement from every employee? No! Absolutely not! But oftentimes going back to basics is the best way to jumpstart the process. As the saying goes, “it ain’t rocket surgery”. It’s really something much more important.
RULE 2: Talk specifically before the hire about the need to engage. Many times when hiring, the HR professional presumes an employee wants to work there and must, by default, want to be engaged with the organization. This is not necessarily so. Setting up the expectation before a job offer is even made, will pave the way toward an understanding of how engagement is defined in the new organization and how vital the employee’s role is in tapping into that engagement process. 26
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Janie Warner - Senior HR Consultant Client Resource Team Leader Regions Insurance, Inc. janie.warner@regions.com www.regionsinsurance.com
Have questions? Let’s talk. When it comes to securing the right answers to comply with the Affordable Care Act, who you ask can be every bit as important as what you ask. Let the ACA-trained professionals of the Regions Insurance Client Resource Team provide the guidance you need to steer your organization in the right direction.
Tom Hayes
Katrina McKinney
Employee Benefits Practice Leader tom.hayes@regions.com 479-684-5259
Sales & Marketing Coordinator katrina.mckinney@regions.com 205-264-7177
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The Coverage You Need. The Guidance You Trust.
Find Regions Insurance offices in these states: Alabama, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, South Carolina, Tennessee and Texas Š2015 Regions. Regions Insurance is an affiliate of Regions Bank. Products and services are offered by Regions Insurance, Inc., and underwritten by unaffiliated insurance companies.
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TOPAttorneys Labor & Employment Law
HR Professionals Magazine congratulates our top labor and employment law attorneys from Tennessee, Arkansas, Mississippi, Kentucky and Georgia listed in the 2015 Chambers and Partners Guide. For details about Chambers and Partners research, please visit their website, www.chambersandpartners.com. This list is not inclusive and represents the firms that responded to our inquiry.
Fisher & Phillips LLP Fisher & Phillips LLP is a national law firm committed to taking a practical, businesslike approach to solving labor and employment problems for employers. Labor and employment law is all the firm does, offering broad knowledge and experience in the area of the law the attorneys know best. Fisher & Phillips attorneys help clients avoid legal problems, are dedicated to providing exceptional client service, and are there when you need them. The firm has over 300 attorneys in 31 offices. The offices are in Atlanta, Baltimore, Boston, Charlotte, Chicago, Cleveland, Columbia, Columbus, Dallas, Denver, Fort Lauderdale, Gulfport, Houston, Irvine, Kansas City, Las Vegas, Los Angeles, Louisville, Memphis, New Jersey, New Orleans, Orlando, Philadelphia, Phoenix, Portland, San Antonio, San Diego, San Francisco, Seattle, Tampa, and Washington, D.C. MEMPHIS OFFICE Jeff Weintraub is the managing partner of the Memphis office. He is a trial attorney who has represented employers in more than 59 jury and bench trials in the private and public sectors in employmentharassment/discrimination and retaliatory discharge lawsuits. He also handles EEOC charges, wage and hour cases, labor cases and enforcing non-competes in all federal and state courts and agencies, various Courts of Appeals and the U.S. Supreme Court. Weintraub provides training for employers in avoiding harassment charges and employment litigation and is a frequent speaker at employment and labor seminars nationwide.
Jay Kiesewetter is senior counsel in the Memphis office. He devotes his practice to representing clients in the traditional areas of labor relations and employment law. He counsels employers in all aspects of union-free management and advises non-union companies facing union organizing activity. Kiesewetter represents employers in unfair labor practice and representational proceedings before the National Labor Relations Board and the United States Courts of Appeal. In addition, he works with companies that have unions to improve union management relations and represents management in contract negotiations, arbitrations and labor disputes.
LOUISVILLE OFFICE Tom Birchfield is the managing partner of the Louisville office, which he helped open for the firm in 2009. Prior to 2009, he was the chairperson of the labor and employment practice group of a large regional law firm. Tom has represented employers exclusively for over 25 years in federal and state courts and before various administrative agencies throughout the nation. Tom assists employers with their employment practices liability prevention efforts by conducting training, counseling, reviewing and revising policies and preparing severance agreements. Tom also represents companies in collective bargaining, arbitrations and proceedings before the National Labor Relations Board. 28
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George Adams is a partner in the Louisville office, where his practice is exclusively devoted to advising, assisting and representing employers with labor and employment law challenges. George has helped employers defend against union organizing campaigns, unfair labor practice charges and grievances. He defends employers in state and federal courts against lawsuits alleging sexual harassment, unlawful discrimination, retaliation, wage and hour violations and violations of the FMLA, ADA and other employment laws. He represents employers before the National Labor Relations Board and other administrative agencies, as well as in labor negotiations and grievance arbitration. George represents a wide variety of clients, large and small, in numerous states. These include manufacturers, financial institutions, health care providers and non-profit entities.
Cynthia Blevins Doll is a partner in the Louisville office. Cynthia has over 23 years of labor and employment experience. She represents employers in employment litigation in the federal and state courts, and she counsels them on compliance with the law in such areas as Family and Medical Leave Act, employment discrimination, Americans with Disabilities Act, Title VII, wrongful termination, asbestos premises liability, wage and hour issues, reductions in force and sexual and racial harassment. Cynthia also assists clients in their prevention efforts by conducting employee training and preparing handbooks and policies for the workplace. She has assisted employers and executives with negotiating employment and severance agreements. Cynthia is a regular speaker on wage and hour law, discrimination, harassment, FMLA, ADA and other employment law topics.
Jeff Savarise is a partner in the Louisville office and chair of the firm's automotive manufacturing practice group. Jeff has served as Toyota manufacturing’s national outside labor and employment counsel for over 20 years. Jeff practices exclusively in the areas of labor and employment law on behalf of employers, where he handles cases in a number of state and federal jurisdictions. He also provides a variety of preventive maintenance and employment training programs especially geared to the automotive industry. Jeff received the "Distinguished Alumni Award" given to alumni of the University of Akron Law School who have demonstrated significant achievement in the field of law and have made significant contributions to their community.
ATLANTA OFFICE Ray Haley III is a partner in the Louisville office. He has practiced labor and employment law for more than 30 years and represents employers in a variety of industries, including healthcare, manufacturing, transportation and rehabilitative services. His representation of clients involves defense of all forms of civil rights and wrongful discharge claims in state and federal courts, labor litigation before state and federal agencies and courts, as well as arbitration of labor disputes. Ray regularly advises clients concerning compliance with virtually all employment-based state and federal mandates, and union related matters. Craig Siegenthaler is a partner in the Louisville office. Craig has appeared in federal and state courts defending clients in class action litigation involving wage and hour matters, as well as other employment law based claims. Craig represents corporate entities and management in employment litigation in federal and state courts and in administrative proceedings before the EEOC and state agencies. He has counseled companies regarding employment issues, including legal compliance, policies and procedures, restructuring, job accommodations, leaves, benefits, employment contracts, and layoffs and related severance programs. Craig has served as an adjunct professor for the traditional labor law course for the Brandeis School of Law at the University of Louisville.
C.L. “Tex” McIver is a partner in the Atlanta office. In his 30-year career, Tex has assisted clients nationally and internationally in their compliance efforts involving all federal and state employment laws. He advises employers concerning mergers and acquisitions, consolidation and streamlining ("rightsizing") of organizations. He was also selected as a Client Service All-Star for 2011, an elite group of attorneys nominated by in-house counsel for their outstanding client service. This is his 10th year listed in Best Lawyers in America. Douglas R. Sullenberger is a partner in the Atlanta office. His practice focuses on traditional labor law, including representing and advising employers on union related matters. He has been listed in Chambers USA: America's Leading Business Lawyers since 2009 and has also been listed by the Labor Relations Institute (LRI) as one of the "Top 100 Labor Attorneys" in the U.S. J ohn E. Thompson is a partner in the Atlanta office. His practice focuses on wage and hour law, emphasizing issues relating to minimum wage, overtime, timekeeping, and wage-payment requirements. He has also addressed wage-hour topics in presentations to numerous employer groups and in articles appearing in both human resources publications and industry journals. John is the editor of the firm's Wage & Hour Laws Blog. This is his 10th year listed in Best Lawyers in America. im Kiel Thompson is a partner in the Atlanta office. She serves as chair K of the firm's Global Immigration Practice Group and co-chair of the International Employment Practice Group. Kim's practice focuses on immigration and nationality law; she began practicing in this area in 1990. Kim is a member of the American Immigration Lawyers Association, the ABA-affiliated association for attorneys practicing immigration law.
The Kullman Firm The Kullman Firm was founded in 1946 with one area of practice, and one focus: labor and employment law on behalf of management. We strive to keep our record of excellence and have hundreds of years of cumulative experience which is invaluable to employers seeking assistance in navigating their companies through today's laws and regulations. While many laws have been added since our beginning 68 years ago (Title VII, ADA, ADEA, FMLA, OSHA, ERISA, COBRA, OFCCP, etc.), we still maintain our original philosophy, which is more important than ever – it takes a 100% commitment to give clients the advice and guidance they need and deserve. Peyton S. Irby, Jr. has more than 40 years of experience guiding his clients through complicated employment issues. He is past chair of The Mississippi Bar's Section of Labor and Employment Law and is a member of the Section of Labor and Employment Law of the American Bar Association. He has also been elected as a Fellow in the College of Labor and Employment Lawyers. He is also listed in The Best Lawyers in America® and "Chambers USA-America's Leading Lawyers for Business." In addition, Mr. Irby is the editor of Mississippi Employment Law Letter, a monthly newsletter on employment law published by BLR Publishers. aylor B. Smith - Mr. Smith has 50 years of T experience in the practice of law. He is a Fellow of the American College of Trial Lawyers and is listed in The Best Lawyers in America®. He also has been identified as a Mid-South Super Lawyer by Mid-South Magazine, and he is one of only two lawyers in Mississippi meriting the rating of “Star Individual” in Chambers and Partners.
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 ! OSHA ! Wrongful Discharge Litigation ! Collective Bargaining Negotiations ! Labor and ADR Arbitrations ! Union Representation Cases
! Wage and Hour Law ! OFCCP/Affirmative Action ! ERISA/Employee Benefits ! FMLA Compliance
Offices in Louisiana, Mississippi, Florida and Alabama.
www.kullmanlaw.com
Attorney responsible for content of this ad: Martin J. Regimbal
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Alston & Bird Founded in 1893, Alston & Bird is a leading national law firm and has offices in Atlanta, Beijing, Brussels, Charlotte, Dallas, Los Angeles, New York, Research Triangle, Silicon Valley and Washington, D.C. The firm's attorneys provide a full range of services to domestic and international clients conducting business around the world. The firm’s core practice areas are intellectual property, complex litigation, corporate and tax, with national focuses that include labor and employment, financial services, technology, health care, manufacturing, life sciences and energy. Alston & Bird has been ranked on FORTUNE magazine’s "100 Best Companies to Work For" list for 16 consecutive years, an unprecedented accomplishment among law firms in the United States. The recognition speaks to the culture of the firm and the environment in which we practice law and provide service to clients. Alston & Bird has also been consistently recognized as part of the “BTI Client Service 30” in the BTI Client Service A-Team Report. Steve Ensor is a partner and the leader of the firm’s Labor & Employment Group. Steve has represented employers for over 30 years in all areas of labor and employment law, including complex employment class and collective litigation and traditional labor union matters. Steve has also excelled in leading several client teams, and has been recognized by the firm’s clients for his exceptional client service, his aggressive approach to “win-win” alternative fee arrangements, and his integration of pro bono and community service into firm-client relationships. Steve has been consistently recognized as a top-tier lawyer in Chambers USA. Glenn Patton is a partner in the Labor
& Employment Group. He represents management in all areas of employmentrelated litigation, including employment discrimination claims, wage/hour litigation and restrictive covenant disputes. Glenn also represents management in traditional labor matters, including contract negotiations, labor arbitrations and unfair labor practice charges. In addition to his litigation experience, Glenn counsels numerous clients on day-to-day HR and compliance issues and serves as the firm's employment counsel. Glenn has been recognized as a leading employment lawyer by Chambers USA since 2006.
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Lisa Cassilly is a partner in the Labor & Employment Group and concentrates on the representation of management interests with a special emphasis on litigation. She has defended against employment claims in administrative proceedings, arbitrations and in trial and appellate courts throughout the country. Lisa has experience conducting internal investigations and audits, handling whistleblower claims and prosecuting and defending actions involving claims for breach of restrictive covenants, employee piracy, breach of fiduciary duties and trade secret misappropriation. Lisa is immediate past chair of the Labor & Employment Group and has been repeatedly recognized as a leading employment by Chambers USA. Clare Draper is a partner in the Labor & Employment Group with over 26 years of experience. He has extensive experience defending wage and hour collective actions and DOL audits, as well as handling other complex litigation. In addition, he handles traditional labor matters, including union campaigns, negotiation of collective bargaining agreements, arbitrations and hearings. He is a nationally known expert in the field of government-mandated affirmative action plans and he is national affirmative action counsel for several companies, including the second-largest-private employer in the U.S. Clare is listed as a leading labor and employment lawyer in Chambers USA. Tom Kilpatrick is the senior member of the firm’s Labor & Employment Group.
He has a four-decade track record of winning advocacy in all areas of labor and employment law, having successfully represented employers in 47 different states, before scores of state and federal courts and agencies, seven different U.S. courts of appeal and the United States Supreme Court. He represents clients in all areas of labor and employment law, including management/union matters, employment discrimination, wage and hour litigation, restrictive covenant matters, affirmative action planning and compliance, and day-to-day advice and consultation.
Bingham Greenebaum Doll LLP Bingham Greenebaum Doll LLP is a regional law firm providing progressive business, litigation and government services to clients ranging from Fortune 500 businesses and Global 1000 companies to small, regionally based organizations across a variety of industries and sectors. The firm is both locally accessible and nationally connected with offices in Indiana, Kentucky and Ohio. In addition to its regional presence, Bingham Greenebaum Doll LLP provides international representation to a multitude of clients and is a member of TerraLex®, an association of independent law firms in nearly 100 countries, providing the firm and its clients with quick access to advice on the laws of foreign jurisdictions. Philip C. Eschels is a partner in the Labor and Employment practice group at Bingham Greenebaum Doll. He represents employers in defending against employment-related claims in both federal and state courts. He also represents clients involving covenants not to compete and the protection of trade secrets. Phil also counsels employers and trains management personnel concerning a wide range of employment-related topics, including harassment, how to prevent discrimination lawsuits and how to minimize potential liability when hiring, disciplining and firing employees. Phil has written many articles and co-authored How to Avoid Legal Problems in Hiring and Firing in Kentucky.
Wendy Bryant Becker represents employers in all phases of employment law at Bingham Greenebaum Doll. In particular, her practice includes the litigation of employment discrimination and wrongful discharge cases, representation of employers before the EEOC, state and local Human Rights Commissions, and general counseling to employers on hiring, firing, wage-hour and other day-to-day employment matters. Wendy is currently a member of the Kentucky Bar Association’s Labor and Employment Law Section and a board member of the Fayette County Bar Association (20142016). She is admitted to practice in Ohio (1981) and Kentucky (1983).
Brent Baughman is a partner in the Labor and Employment practice group at Bingham Greenebaum Doll LLP. He represents employers in various employment-related matters in state and federal trial and appellate courts. He has served as counsel in several valuable cases and has demonstrated substantial skill in litigating complex employment questions on behalf of client companies. He has consistently been recognized by The Best Lawyers in America® and is a recipient of their “Lawyer of the Year” award in appellate law. Most recently, Brent has been engaged in litigation challenging the local minimum wage ordinance in Louisville, Kentucky.
Blaine Blood is a partner in Bingham Greenebaum Doll LLP’s Louisville office and a member of the Labor and Employment Law Practice Group. Blaine advises employers on matters arising under a broad range of state and federal laws, advises employers on how to avoid litigation, handles employment litigation, and assists with labor arbitrations and labor negotiations. Blaine advises clients concerning compliance with state and federal statutes, and implementing best HR practices. Blaine has also assisted employers with handling EEOC and Department of Labor investigations.
REGIONAL REACH F O R
Y O U R
evolving business Bingham Greenebaum Doll LLP works closely with its clients to help them achieve business goals in the region and around the world.
Bingham Greenebaum Doll LLP is a business law firm providing transactional, litigation and government services to clients ranging from Fortune 500 businesses and Global 1000 companies to smaller, regionally based organizations across a variety of industries and business sectors. LOUISVILLE, KY. | LEXINGTON, KY. CINCINNATI, OHIO | INDIANAPOLIS, IND. JASPER, IND. | EVANSVILLE, IND. | VINCENNES, IND.
(800) 436-3644 www.bgdlegal.com
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Constangy, Brooks, Smith & Prophete, LLP Constangy, Brooks, Smith & Prophete, LLP is a preeminent firm for labor and employment law in the U.S. – but it’s not your typical law firm. Clients say there is also “a soul to Constangy that is unique and refreshing, that’s not found with other firms.” For nearly 70 years, Constangy clients have appreciated a common-sense approach and commitment to being a real partner in helping employers navigate the prickly legal and regulatory environments of the changing workplace. Today Constangy has more than 160 attorneys across 16 states, offering services ranging from the defense of single and multi-plaintiff employment discrimination, harassment and retaliation claims to complex wage and hour litigation, workplace safety, and affirmative action compliance, as well as OSHA, workers’ compensation, ERISA and employee benefits, immigration, and labor relations. A “Go To” Law Firm in Corporate Counsel and Fortune magazine, Constangy represents Fortune 500 corporations and small companies across the country. Constangy attorneys are consistently rated among the best by sources including Chambers USA, Martindale-Hubbell, and Best Lawyers in America, and the firm is ranked as a Tier 1 firm by the U.S. News & World Report/Best Law Firms survey. GEORGIA
Mel Haas leads Constangy’s Macon, Georgia office. With more than 40 years of experience in traditional labor law, Mel is a fellow in the College of Labor and Employment Lawyers, and has been honored as one of the top 100 labor attorneys in the United States by the Labor Relations Institute and the nation’s "Top 20 Most Powerful Labor Attorneys" by Human Resource Executive magazine. In addition to being honored by Chambers, Mel has been recognized by Best Lawyers in America® since 2007. He currently serves as Vice Chairman of the U.S. Chamber of Commerce's Labor Relations Committee.
Cliff Nelson is a partner in Constangy’s Atlanta office, and co-chair of the firm’s labor relations practice. For more than 35 years, Cliff has focused on traditional labor relations, handling cases before both the National Labor Relations Board and the courts. Although a large percentage of his clients are in the health care field, he has represented companies in almost every industry, in both unionized and non-union operations. Since 1985, Cliff has been a contributing editor to the American Bar Association's main treatise on legal developments under the National Labor Relations Act and related federal statutes.
Bill Principe is a partner in Constangy’s Atlanta office. A former attorney with the Occupational Safety and Health Review Commission in Washington, D.C. Bill has more than 35 years of experience in helping companies comply with both federal Occupational Safety and Health Administration and state safety and health regulations. He is a highly-regarded speaker and frequent presenter on workplace safety topics.
Patrick Tyson is a partner in Constangy’s Atlanta office and leads the firm’s OSHA practice. Pat joined Constangy after a 13-year career at OSHA, where he served as Director of Compliance, Deputy Assistant Secretary and two terms as the Acting Assistant Secretary for the Agency. Patrick represents clients on a wide range of safety and health issues. He is the former Chairman of the Board of Directors of the National Safety Council, and serves as Counsel to the Voluntary Protection Program Participant's Association. In addition to recognition by Chambers, Patrick has previously been included in Best Lawyers in America®.
Neil Wasser has served as chair of Constangy’s executive committee since 2006, overseeing the firm’s expansion into ten new markets during that time. Neil’s practice focuses on occupational safety and health law, and he has assisted employers with their compliance obligations in the United States and in establishing and improving employee safety and health programs in Europe and Latin America. Neil is a frequent lecturer throughout the country on OSHA and employment law issues. He has been named to Best Lawyers in America® since 2013.
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TENNESSEE
William “Zan” Blue leads Constangy’s Nashville office. An experienced litigator with more than 30 years of experience, Zan has represented employers in employment discrimination, union-management and employee benefits cases. Zan advises companies on how to minimize legal risks and provide a positive work environment. Zan works with companies on occupational safety and health issues, including workplace safety and compliance with OSHA standards. Zan also represents employers in union campaigns, contract negotiations and with respect to unfair labor practice allegations. In addition to recognitions by Chambers, he has been included in Best Lawyers in America® since 2006.
Teresa Rider Bult, a partner in Constangy’s Nashville office, has spent that past 19 years litigating individual, class and collective actions and counseling employers on a wide range of employment law issues. In addition to serving as founding chair of Constangy’s Women's Network, Teresa has received numerous awards and been recognized by Best Lawyers in America® since 2013. She currently serves as co-chair of the ABA Litigation Section's Employment and Labor Relations Law Committee and is on the editorial board of the ABA Litigation News Magazine.
Mary Dohner Smith, a partner in Constangy’s Nashville office, is an experienced litigator and counselor across a range of employment law issues. In addition to being recognized as “up and coming” by Chambers, Mary was recognized by Best Lawyers in America®. She has served on the board of governors of the Tennessee Bar Association, as well as its mentoring and glass ceiling task forces. Mary is past president of the Lawyers Association for Women – Marion Griffin Chapter. She was honored earlier this year by the Nashville Business Journal as a Women of Influence for her work in mentoring young attorneys.
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Ogletree Deakins 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 750 attorneys located in 48 offices across the United States, in Europe, and in Mexico. Ogletree Deakins has been named a Law Firm of the Year four consecutive years by U.S. News – Best Lawyers® “Best Law Firms.” In 2015, the publication named Ogletree Deakins its “Law Firm of the Year” in the Labor Law - Management category. In addition to handling labor and employment law matters, the firm has thriving practices focused on business immigration, employee benefits, and workplace safety and health law. Ogletree Deakins represents a diverse range of clients, from small businesses to Fortune 50 companies. ATLANTA OFFICE Margaret H. Campbell – An all-around labor and employment lawyer, Meg is particularly recognized for her experience in complex class and collective action litigation, whistleblower investigations and litigation including Sarbanes-Oxley and Dodd-Frank cases, appellate practice, and restrictive covenant law. Meg has litigated single plaintiff, multi-plaintiff, and class and collective action jury and non-jury cases in federal and state courts around the country. Clients regularly seek her client-centered practical advice and innovative solutions for preventing and mitigating risk events arising in the workplace. In addition, Meg assists clients in sensitive and complex investigations of alleged improper conduct by highlevel executives.
Craig Cleland defends employers in litigation— including class and collective actions—and counsels them in risk management and compliance. In addition to defending employers in litigation, Craig serves as a mediator or as settlement counsel in complex or difficult cases. Craig is a Fellow of the College of Labor and Employment Lawyers as well as a Fellow of the Trial Lawyer Honorary Society of the Litigation Counsel of America. He has been recognized as a BTI Client Service All-Star twice.
Homer L. Deakins, Jr. is Chairman Emeritus at Ogletree Deakins. He has extensive experience in all aspects of labor relations law and has handled some of the largest and most highly publicized union elections in the United States. He has created highly sophisticated labor relations training programs for management personnel and has extensive experience in representing management in negotiating collective bargaining agreements. He also has varied experience in employment litigation, including jury trials in state and federal courts and has been involved in the trials of several large class action cases and has extensive appellate experience.
Gregory J. Hare assists companies with human resources and employment-related litigation matters and advises clients on a wide range of human resources topics, such as employee discipline and discharge, severance planning, independent contractor classifications, wage payment, family and medical leave, disability law, military leave, joint employment issues, affirmative action, and reductions in force. He also counsels clients on traditional labor relations matters involving union avoidance, decertification, strike contingency planning, grievance administration and arbitration, collective bargaining, unfair labor practice litigation, and other matters involving the National Labor Relations Board, including “protected concerted activity” cases.
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Brandi N. Knox has extensive experience in all areas of U.S. immigration law, including employment-based, family-based, and naturalization. She has worked for corporate law firms housing full-service immigration practice groups and recently authored two chapters of an AILA publication scheduled for release early next year. She represents domestic and multinational employers before the U.S. Homeland Security, U.S. Department of State and the U.S. Department of Labor in connection with U.S. immigration-related employment issues.
Jay C. Ruby is nationally recognized for his experience in employment-based immigration matters. He has provided immigration counsel and services to U.S. and multi-national corporations in many industry sectors including health care, computer/information technology, logistics, financial/ banking, motion picture, hospitality, manufacturing, construction and education. He also liaised with U.S. consulates/embassies abroad, assisting clients with the procurement of temporary and permanent visas. He advises employers on state and federal immigration compliance issues related to Form I-9 requirements, E-verify and contractor/subcontractor usage. He has particular experience in representing health care, manufacturing, hospitality and construction clients seeking to obtain visas for groups of temporary/ seasonal laborers.
William (Bill) Steinhaus focuses his practice solely on representing employers in the full spectrum of employment and labor matters. His primary defense activities include employment litigation in state and federal courts including employment discrimination, wage and hour actions, and restrictive covenants/trade secrets enforcement. Bill has deep experience resolving disputes arising with agencies including the EEOC, OFCCP, Wage and Hour Division, and Georgia’s Department of Labor. In addition, he counsels employers engaged in union avoidance as well as representing them before the NLRB and in collective bargaining. Before joining Ogletree Deakins, he was a human resources director for two Fortune 500 companies.
JACKSON, MS OFFICE Herbert C. Ehrhardt has extensive litigation experience and has obtained summary judgment in over 50 cases and has tried many cases to verdict. He has successfully handled hundreds of EEOC charges, and numerous NLRB hearings and trials. In addition to his very active litigation practice, Bert regularly counsels employers on hiring, compensation, discipline, termination, mergers and acquisitions, reductions in force, reductions in force, covenants not to compete, protection of confidential information and trade secrets, and arbitration agreements. Bert’s traditional labor relations experience includes handling NLRB elections, contract negotiations, and unfair labor practice proceedings. He is an avid conservationist.
Keith D. Frazier’s practice is in Nashville where he is also a member of Ogletree Deakins’ Board of Directors. Since beginning his practice of law in 1985, Mr. Frazier has represented management in the area of labor and employment law with an emphasis on preventive activity and employment litigation. Mr. Frazier served in the past as President of the Tennessee Bar Association Young Lawyer’s Division and as a member of the Tennessee Bar Association Board of Governors; Mr. Frazier is also active in the ABA’s Labor and Employment Section where he currently serves as the Section Delegate to the ABA House of Delegates. On the civic front, Mr. Frazier recently completed a term as Vice Chair of Existing Business/Workforce Development for the Nashville Chamber of Commerce. In that capacity Mr. Frazier served on the Chamber’s Board of Governors and Executive Committee. Mr. Frazier was included in the most recent editions of The Best Lawyers in America and Chambers USA.
Timothy W. Lindsay has practiced exclusively in the field of labor and employment law on behalf of management since 1987. With more than 25 years of litigation experience, Tim has served as lead counsel for public and private sector employers in defense of civil actions involving Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Fair Labor Standards Act, the Family and Medical Leave Act, ERISA, the First and Fourteenth Amendments to the United States Constitution, and various employment related claims under state law such as wrongful discharge, defamation/ slander, infliction of emotional distress, invasion of privacy and breach of contract. In addition to defending civil actions in court, Tim has represented management before various state and federal administrative agencies such as the Equal Employment Opportunity Commission, National Labor Relations Board, Mississippi Workers’ Compensation Commission and Mississippi Department of Employment Security.
Tim Palmer is an experienced litigator specializing in both employment litigation and general civil litigation in state and federal courts. His interest in litigation began early in his legal career when as a law student at Vanderbilt University; Mr. Palmer won the Harlan Dodson Moot Court Competition and was appointed to the position of Associate Justice of Vanderbilt’s Moot Court Board. His practice focuses on the defense of employment litigation including discrimination claims, defense of personnel actions, and defense of employee benefit disputes. He has been selected as one of America’s leading business lawyers in labor and employment by Chambers USA. He also listed in Best Lawyers of America.
NASHVILLE OFFICE Elizabeth Washko is the Managing Shareholder of the Nashville office. Ms. Washko represents management in a wide variety of employment litigation matters, including discrimination, harassment, retaliation, FMLA, FLSA, wrongful termination, breach of contract, and covenant not to compete cases. Ms. Washko is a frequent speaker and writer on topics relating to all types of employment issues and works with clients on preventive strategies to avoid discrimination, retaliation and other employment claims. Ms. Washko is a graduate of Rutgers School of Law and joined Ogletree Deakins in 2000. Ms. Washko is a member of the Labor Standards Legislation Subcommittee of the ABA’s Labor and Employment Section. She is a regular contributing editor to the ABA’s FLSA Treatise and annual supplements.
MEMPHIS OFFICE Tom Henderson is the Managing Shareholder of the Memphis office. He has represented management in employment and labor relations matters for over 25 years. He has served as lead counsel in numerous jury trials in state and federal courts across the nation. His trial experience includes defending state and federal discrimination and harassment lawsuits, class actions, FMLA claims, ERISA and benefit claims, trade secret and unfair competition matters, and related state law claims. He also handles NLRB elections and unfair labor practice proceedings. Mr. Henderson is listed in “The Best Lawyers in America” in three areas and “Mid-South Super Lawyers.”
Bud Holmes has over 30 years of experience representing employers in employment-related matters. His experience includes representing both private and public sector employers in a wide variety of employment-related matters. He has extensive litigation experience at both the trial and appellate levels concerning claims of discrimination, harassment, retaliation, wrongful discharge, breach of employment contracts, and other aspects of the employer-employee relationship. In addition, Bud has always worked closely with employers to ensure their compliance with federal and state law governing the employment relationship. Bud has earned the distinction of Best Lawyers in America from 2008 to the present.
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Littler Mendelson, P.C. Littler is the largest global employment and labor law practice, with more than 1,000 attorneys in over 60 offices worldwide. Littler represents management in all aspects of employment and labor law and serves as a single source solution provider to the global employer community. Consistently recognized in the industry as a leading and innovative law practice, Littler has been litigating, mediating and negotiating some of the most influential employment law cases and labor contracts on record for over 70 years. Littler Global is the collective trade name for an international practice, the practicing entities of which are separate and distinct professional firms. For more information, visit: www.littler.com. TENNESSEE Paul E. Prather is a shareholder in Littler’s Memphis office. He represents management exclusively in all areas of employment and labor relations, including state and federal employment litigation and in administrative proceedings before the National Labor Relations Board, the Equal Employment Opportunity Commission and the United States Department of Labor. With more than 30 year of success in defense litigation, including jury trials, he is a frequent lecturer and author for management and legal groups on labor and employment law issues.
Jonathan E. Kaplan is a shareholder in Littler’s Memphis office. He has devoted his entire career to representing management clients exclusively in all areas of labor relations, employment law, and human resources management. His practice spans litigation, training, and consulting, in which he has handled matters in more than 40 states and Canada. Jonathan practices extensively before the NLRB across the country, and also has been admitted specially to practice before the state courts in California, Florida, Illinois, Indiana, Kentucky, Michigan, New York, and Ohio. He also is a frequent speaker before management and legal groups and has published numerous articles on labor and employment issues.
Lisa A. Lichterman is a shareholder in Littler’s Memphis office. She represents management clients in both state and federal employment litigation as well as administrative proceedings before state and federal agencies. Lisa regularly works with employers to determine the legal, as well as the practical, impact of employment decisions and to develop proactive policies and procedures to improve employee morale, strengthen relationships between management and employees, and ensure compliance with employment and labor laws. Lisa also regularly conducts employee and supervisory training programs in various employment law areas.
C. Eric Stevens is a shareholder in Littler’s Nashville office. He has over 30 years of experience representing clients - focusing on healthcare and financial institutions - in labor relations and employment litigation. He represents both union and non-union employers, providing counseling to avoid litigation as well as defending clients in both court and administrative proceedings. Eric regularly speaks to industry groups and business roundtables on new developments in the law and issues that can directly affect their operations. He provides training on discrimination, harassment, wage and hour and related topics for private employers, public employers and governmental entities.
Jennifer B. Robinson is office managing shareholder in Littler’s Nashville office. She has been the lead defense attorney in nearly 40 wage and hour class and/or collective actions involving claims of misclassification, overtime and minimum wage violations, and missed meal and rest breaks. She also counsels, trains and conducts audits for clients to ensure compliance with federal and state wage and hour laws. In addition to her wage and hour practice, Jennifer defends employers in single and multi-plaintiff lawsuits involving claims of discrimination, harassment, failure to accommodate and breach of contract.
KENTUCKY Susan C. Sears is a shareholder in Littler’s Lexington office. She has a local, regional and national employment defense law practice that is exclusively focused on legal issues in connection with the employee-employer relationship. For the past 16 years, she has counseled management on a wide spectrum of day-to-day personnel issues. She also has a strong record of litigation success, defending employers in state and federal court and on the administrative level against claims of alleged discrimination, harassment, retaliation, and wrongful termination, as well as alleged violations of the numerous state and federal statutes governing employers. Practicing before federal and state courts and administrative agencies, Susan has specific experience providing litigation defense.
LaToi D. Mayo is a shareholder in Littler’s Lexington office. She has advised, counseled and defended employers in regard to labor, employment and immigration matters for the past nine years. She has successfully litigated in both state and federal court. LaToi also has expertise in Kentucky’s Workers’ Compensation issues, including benefits claims disputes. Working most frequently with financial institutions and local city governments, LaToi has notable expertise with discrimination issues. LaToi routinely presents at seminars focusing on labor, employment and immigration topics for a variety of professional organizations in Kentucky. She also conducts training for managers, supervisors and the general workforce and provides compliance counseling.
Emily H. Morris is a Littler attorney who advises and represents employers in a broad range of employment matters, appearing in state and federal courts. She regularly handles discrimination, harassment, and retaliation issues. Emily also has experience advising clients in connection with the increasing number of social media issues which employers face in the employment context.
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Littler Mendelson, P.C. (continued)
ARKANSAS Eva C. Madison is a shareholder in Littler’s Fayetteville office. She represents and advises employers of all sizes in all aspects of employment law, with a primary focus on employment litigation, including discrimination and harassment cases, as well as individual and collective wage and hour claims. Additionally, she counsels employers on strategies for minimizing potential litigation and provides advice on personnel matters and practices and the practical and legal implications of everyday employment decisions. She has particular experience advising employers on human resources systems, including selection systems, job analysis and training. She also provides management and employee training.
GEORGIA Lisa "Lee" A. Schreter is chairperson of Littler's Board of Directors and co-chair of the Wage and Hour Practice Group. She focuses on representing employers in complex class and collective actions involving overtime and other wage-related claims and specializes in helping employers to develop forwardthinking compliance measures that reduce wage and hour disputes and other employment-related issues. She also represents and counsels management clients in connection with all other types of labor and employment matters arising under federal and state laws. She regularly appears before federal and state courts, the Department of Labor Wage and Hour Division, and agencies charged with enforcing state law wage and hour requirements.
L. Traywick Duffie is office managing shareholder in Littler’s Atlanta office. He represents corporate clients in a broad range of employment and labor law matters, including employment litigation, union organizing, wage and hour and Employee Retirement Income Security Act matters. He has successfully defended numerous class and collective matters and countered union organizing campaigns in more than 40 states. Traywick has designed and implemented programs on compliance with and the avoidance of employment litigation and union organizing. He regularly speaks before companies, trade associations, business groups and universities. He represents clients in the healthcare, media, transportation and manufacturing industries.
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Tracey T. Barbaree is a shareholder in Littler’s Atlanta office. She represents employers in all aspects of employment and civil rights litigation, with a focus on Rule 23 class actions and defending collective action claims under the Fair Labor Standards Act (FLSA). She also litigates individual employment discrimination claims and represents employers in federal and state court. Tracey is admitted to practice in Georgia and Texas.
J erry C. Newsome is a shareholder in Littler’s Atlanta office. He represents companies in lawsuits and agency proceedings involving all aspects of employment law. He devotes the majority of his practice to litigating non-competition and trade secret disputes, drafting non-competition agreements, and assisting clients with proactive measures to protect their trade secrets and proprietary business information. He is admitted to practice in Georgia.
Daniel E. Turner is a shareholder in Littler’s Atlanta office. He counsels and represents employers in all aspects of litigation in employment law issues, including discrimination, harassment, retaliation, wage and hour, and leaves of absence. He has served as lead counsel in more than 50 class and collective actions throughout the country. Dan has defended clients in over 25 states and regularly provides counseling to help clients navigate legal and practical considerations in all area of employment law, including mechanisms to avoid class and collective actions
Tangled up in new laws? Don’t lose momentum. Contact Littler today.
Littler is a proud supporter of the 2015 Tennessee SHRM Conference & Expo Come see us at booth #228 3725 Champion Hills Drive Memphis, TN 38125 901.795.6695
333 Commerce Street | Suite 1450 Nashville, TN 37201 615.383.3033
littler.com
LITIGATION TRENDS
Highlight the Importance of FCRA Compliance By JOSH C. HARRISON
M
ost employers are aware that the Fair Credit Reporting Act (“FCRA”) imposes specific requirements on employers that obtain a consumer report (i.e. a background check) on an employee or applicant. FCRA obligations generally fall into two categories: (1) notice obligations to obtain a consumer report; and (2) notice obligations prior to making an adverse employment decision based on the consumer report. Recent class-action litigation demonstrates the importance of FCRA compliance.
(2) five years after the date on which the violation occurred. 15 U.S.C. § 1681p. This is an unusually long statute of limitations, particularly in the context of federal employment law (consider, for example, claims under the Fair Labor Standards Act—a two year (or three year, if willful) statute of limitation). Take, for example, an employer that, for the past five years, annually hires 75 employees and for each, obtains a background check. If a plaintiff files a class action alleging a technical violation of FCRA in obtaining the background check, the employer’s potential exposure (assuming willfulness is alleged) equals statutory damages of $375,000 (375 consumer reports times statutory damages of $1,000), plus plaintiffs’ attorney’s fees. This example demonstrates that the combination of a low willfulness standard—which triggers statutory damages without proof of actual damages—and a five year limitations period makes FCRA an attractive statute for the plaintiffs’ bar.
B. S uggested Strategies for Avoiding FCRA Litigation. 1. Do Not include Extraneous Information in the Disclosure. Prior to procuring a consumer report for employment purposes, an employer must make a written disclosure to the applicant or employee that it may obtain a consumer report, and it must obtain the individual’s written authorization. 15 U.S.C. § 1681b(b)(2)(A). While FCRA permits the disclosure and authorization to be on the same page, nothing else may be included with the disclosure or else the employer risks running afoul of the “stand-alone” disclosure requirement. Critically, a non-compliant disclosure will typically impact all applicants and employees about whom an employer obtained a consumer report, which creates a high likelihood of a willful violation. 2. M ake Clear That the Disclosure is A Stand-Alone Document.
A. F CRA’s Statutory Damages for Willful Violations and Lengthy Statute of Limitations Have Attracted Class Actions. FCRA provides a private cause of action against an employer for either “negligently” or “willfully” failing to comply with any of the statute’s requirements. Negligent failure to comply with FCRA can make an employer liable to applicants or employees for actual damages, costs, and attorneys’ fees. 15 U.S.C. § 1681m(a). For willful violations, plaintiffs may seek either actual damages or statutory damages between $100.00 to $1,000.00 per violation with no need to show any actual damages. 15 U.S.C. § 1681n(a)(1)(A). Employers that willfully violate FCRA can also be liable for punitive damages, costs, and attorneys’ fees. 15 U.S.C. § 1681n(a)(2)-(3). Without the obligation to prove actual damages, FCRA attracts class actions (a major issue with employment-related class actions is proving damages on a class basis). For employers that violate FCRA, the only barrier to statutory damages is the meaning of the term “willful,” but unfortunately, the bar for a willful violation is quite low (and the plaintiffs’ bar has taken note). If an employer “repeatedly, systematically, or typically” violates FCRA, then a willful violation occurs. This may seem like strong words, but obtaining a consumer report is typically a standard and repeated procedure. Thus, if the procedure suffers from a technical violation (even one that does not actually cause any damage or harm to the employee/applicant), the violation may be repeated, systematic, or typical, giving rise to a willful finding. The other reason FCRA is attractive to the plaintiffs’ bar is the statute of limitations, which currently is five years. Specifically, a FCRA action must be brought either (1) two years after the date when plaintiff discovers the violation; or 40
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A fairly recent FCRA claim is that the disclosure, although on a single page by itself, is not a “stand-alone” document when presented at the same time as other documents (i.e. applications, on-boarding documents, etc.). The best solution is to provide the FCRA disclosure at a separate time by itself in the hiring process, but this is often impractical. Other solutions include: (1) ensure that the disclosure has a clear title at the top of the page that distinguishes it from other documents; (2) do not paginate with other documents (i.e., the disclosure should not be identified as page three); (3) the disclosure should not refer to any other documents or rely on any definitions from other documents; and (4) if utilizing an online application tool, ensure the FCRA disclosure is accessible via a separate link or tab. 3. E ven If The Employer Obtains The Consumer Report From A Third Party, Confirm FCRA Compliance On All Procedures. Compliance with FCRA is the best deterrent to a FCRA class action. This holds true regardless of how the employer receives the consumer report (i.e., from a third party service, staffing company, or franchisee owner). Accordingly, employers that utilize consumer reports must make sure that the entity obtaining the consumer report did so in a manner compliant with FCRA to avoid entanglement in FCRA class-action litigation.
Josh C. Harrison, Associate The Kullman Firm Birmingham, AL jch@kullmanlaw.com www.kullmanlaw.com
Burch, Porter & Johnson, PLLC For more than a century, those in need of legal services have turned to Burch, Porter & Johnson for exceptional legal counsel and representation. Burch, Porter & Johnson advances client’s interests – far beyond the expected. Our philosophy is simple: provide practical solutions to obtain the best, most efficient results for our clients. Burch, Porter & Johnson engages in a highly diversified practice serving a wide variety of clients and legal needs. From complex transactions for multi-million dollar corporations to sensitive personal legal matters, our attorneys offer specialized expertise, innovative solutions and strategic counsel for virtually every kind of litigation, business and transactional matter. Burch, Porter & Johnson’s attorneys rank among the most accomplished and recognized legal professionals in the region. Drawing on their diverse areas of expertise and decades of experience, members of the firm are able to serve our clients’ needs regarding nearly any legal matter that arises. Our attorneys concentrate on building and maintaining long-term relationships with clients, some of which span more than 60 years and have involved several generations of the firm’s lawyers. Year after year, matter after matter, clients of all sizes count on Burch, Porter & Johnson’s commitment to client service, experience and expertise, and its tradition as a leader in business and community affairs. This tradition of Thinking Forward is ingrained in our culture – as alive today as it has been for more than 100 years. Jef Feibelman received the highest Chambers ranking in the field of general commercial litigation in the recent edition of Chambers USA: America's Leading Lawyers for Business 2015. He was also named as Best Lawyers® 2016 Litigation – Securities "Lawyer of the Year" in the Memphis area. Mr. Feibelman engages principally in the litigation, arbitration or mediation of complex commercial matters. He has litigated substantial claims involving fraud, breach of contract, misappropriation of trade secrets, breach of non-compete and confidentiality agreements, shareholder and partnership disputes, and business dissolution and valuation controversies. He joined Burch, Porter & Johnson as a member in 1977 and served as managing partner from 2007-2010. Jennifer Hagerman was recently named to The Best Lawyers in America© 2016 list in the practice areas of Commercial Litigation, Employment Law – Management, Litigation - Labor and Employment, and Litigation – Land Use and Zoning. Her practice focuses on employment litigation and complex commercial litigation, with a particular emphasis on matters pending in federal court. She has represented clients in cases involving employment discrimination, wage and hour class actions, restrictive covenants, civil rights, healthcare, education, products liability and numerous areas of commercial law. Ms. Hagerman also advises clients on a variety of employment matters including non-solicitation and non-competition agreements, employee handbooks, and employee classification under the FLSA. Lisa Krupicka has been selected by peers for inclusion in the 2016 Edition of The Best Lawyers in America© in the practice areas of Employment Law – Management, and Litigation - Labor and Employment. She joined Burch, Porter & Johnson in 1987, and focuses on advising and representing employers on a variety of employment-related matters, including training, wage and hour issues, labor relations, employee discipline and termination, and compliance with the accessibility requirements of Title III of the Americans with Disabilities Act. Her litigation experience includes claims for race, sex, age, disability, religious and age discrimination, and benefits claims, as well as wage and hour class actions.
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Cross, Gunter, Witherspoon & Galchus, P.C. Chambers USA has once again named Cross, Gunter, Witherspoon & Galchus, P.C. (CGWG) a leading Labor and Employment law firm in the state of Arkansas in their 2015 edition. This marks the eleventh consecutive year the firm has received this "Band 1" ranking - the highest honor in a specific area of practice. Chambers USA also listed four CGWG attorneys among the top-ranked Labor and Employment attorneys in the state. CGWG’s team of attorneys is highly adept in handling a wide range of labor and employment defense matters, including discrimination litigation, collective bargaining, benefits advice, employment contracts, complex immigration matters, development of constructive employee relations, Workers' Compensation, and the development of company employment policies and procedures. Preventive law strategies and exceptional educational programs are hallmarks of CGWG’s services. We offer customized training programs to help employers and HR professionals minimize legal exposure and navigate workplace challenges.
Carolyn B. Witherspoon practices in the areas of labor and employment defense, transportation law and government law in Little Rock. She is a frequent contributor to legal publications on topics involving employment and personnel issues and a frequently requested speaker on the same topcis. Ms. Witherspoon is active in the Arkansas and American Bar Associations; is a member of the prestigious Union Internationale des Avocats, an international society of legal professionals recognized before the United Nations; and also serves as an arbitrator for the Court of Arbitration or Sport. She was appointed by former Arkansas Governor Mike Beebe to the Commission on Uniform State Laws in 2013. Ms. Witherspoon is a 2005 recipient of the Charles L. Carpenter Memorial Award from the Arkansas Bar Association and is listed among the top lawyers in the nation by Best Lawyers in America, Chambers USA, Mid-South Super Lawyers and was named to the Mid-South Super Lawyers Top 50 list of attorneys in Arkansas. She is also a Fellow in the College of Labor and Employment Lawyers.
J. Bruce Cross practices in the areas of labor and employment defense law. His practice, based in Little Rock, includes work before the NLRB, the EEOC, the Wage & Hour and OFCCP Divisions of the Department of Labor, as well as related federal and state court litigation. He is past chair of the American Bar Association’s Committee on the Development of the Law under the National Labor Relations Act. He is listed in Mid-South Super Lawyers, Chambers USA and Best Lawyers in America, and was named to the Mid-South Super Lawyers Top 50 list of attorneys in Arkansas. In 2014, he was named a Fellow in the College of Labor and Employment Lawyers. He currently serves as Chairman of the National Legislative Committee of the Associated Builders and Contractors of America (ABC), and is past Chairman of the Statewide Board of Directors for Junior Achievement of Arkansas and past Chairman of the Board of Directors for the Museum of Discovery. Mr. Cross received his undergraduate degree from the University of Notre Dame and his JD degree from the University of Arkansas School of Law.
Missy McJunkins Duke practices in the areas of labor and employment law and immigration law in the firm’s Little Rock office. She is an active member of the Arkansas and American Bar Associations’ Labor and Employment Sections. She was appointed by former Arkansas Governor Mike Beebe as Commissioner on the Arkansas Early Childhood Commission and as a member of the Arkansas Advisory Committee to the United States Commission on Civil Rights. She is also serving a six-year term on the Arkansas State Board of Law Examiners. Missy is active in the community, currently serving on the Boards of Directors for Fulbright Elementary PTA and VOCALS – Volunteer Organization, Center for Arkansas Legal Services. Missy was named an Arkansas Business 40 Under 40 in 2011 and one of Soirée Magazine’s “Women to Watch” in 2013, and is also listed in Mid-South Super Lawyers, Chambers USA and Best Lawyers in America.
Donna Smith Galchus’ Little Rock practice focuses on employment discrimination litigation, wage and hour, affirmative action compliance and immigration law. She is listed in Best Lawyers in America in Immigration Law; Chambers USA; Mid-South Super Lawyers; and was named to the Mid-South Super Lawyers Top 50 list of attorneys in Arkansas. Ms. Galchus is a member of the Arkansas Association of Women Lawyers; Pulaski County, Arkansas and American Bar Associations; American Immigration Lawyers Association; Mid-South Immigration Lawyers; Fellow, College of Labor and Employment Lawyers; Chair, Eighth Circuit Credentials Committee; American Employment Law Council; and the Arkansas Bar Foundation. She serves on the Boards of Editors of the treatise on the Fair Labor Standards Act and the treatise on Age Discrimination, and has written and published various articles in Labor and Human Resource Trade Journals.
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It’s Time for a Checkup.
Are your employment policies and practices up-to-date with recent changes in the law? Could they be better? If you’re not sure, then 2015 could be an expensive year for you. From hiring to performance reviews to discipline – and things in between – you can’t afford noncompliance. CGWG’s HR Checkup provides a basic review of your company’s health. For $500, set up a one-on-one meeting with CGWG attorneys who will help you identify employment law compliance issues and establish a path to best practices.
*Participating in the HR Checkup establishes an attorney-client relationship only to the extent of the agreed-upon services.
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Wimberly Lawson Wright Daves & Jones, PLLC The focus of our practice at Wimberly Lawson Wright Daves & Jones, PLLC is primarily on Labor & Employment Law for management, together with General Liability and Workers’ Compensation defense, for businesses and professionals, insurers, and governmental entities. We have offices throughout Tennessee, and serve clients both nationally and internationally. The Firm is a successor to the labor and commercial law practice of the Atlanta law firm of Mitchell, Clarke, Pate, Anderson & Wimberly, which was known for its representation of the Mitchell family and their "Gone with the Wind" movie interests. At Wimberly Lawson Wright Daves & Jones, PLLC, we use a number of preventive and cost-effective methods for our clients. As an example, we might review our clients' compliance posture in their employment practice and/or employee benefit programs, in order to maximize employee benefit dollars as well as to avoid costly legal problems. Since major developments can happen quickly in this and in other areas of law, our clients appreciate our personal commitment to their ongoing success and profitability, and our proven philosophy in this regard. The Firm also emphasizes client education, and our attorneys sponsor and present a wide array of conferences and seminars every year. Our biggest event is our annual Labor Relations & Employment Law Update Conference, which is now in its 36th year. Last year, the event drew over 400 attendees, with business owners, managers, and H.R. professional arriving from all over the United States for a day-and-a-half program covering important legal decisions and societal trends affecting employment. Wimberly Lawson Wright Daves & Jones, PLLC been recognized for various coveted rating awards including: 2015 US Top Ranked Law Firms by Fortune Magazine; 2015 Best Law Firms by U.S. News & World Report; and 2015 Martindale Hubbell Peer Review Rated Award by Martindale-Hubbell (the leading independent legalservices rating entity).
MARY DEE ALLEN is a Member in the Cookeville, Tennessee office, which she joined in 2003. Mary Dee received her law degree from the University of Memphis, and has been a practicing trial attorney since 1992. She primarily handles workers' compensation defense and employment discrimination defense in State and Federal courts and administrative agencies. Mary Dee is a member of the Putnam County Bar Association, the Cookeville Chapter of Business and Professional Women, and Kiwanis; and active with the Cub Scouts. Mary Dee is also Legislative Co-Chair of Upper Cumberland SHRM and serves at the Tennessee State level of SHRM. She is rated AV Preeminent® by Martindale-Hubbell.
RONALD G. DAVES is Managing Member for the Firm. His law practice emphasizes labor and employment law, including employment discrimination lawsuits, union/management issues, and EEO/ADA compliance. Ron is also a Rule 31 Listed General Civil Mediator. He served as Chairman of the Labor & Employment Law Section of the Tennessee Bar Association, and as Diversity Co-Chair for the Tennessee Society of Human Resource Management. He received his law degree from the University of Tennessee, where he was awarded the American Jurisprudence Award for excellent achievement in labor law, and the Robert L. McKnight memorial scholarship in labor law. Ron is rated AV Preeminent® by Martindale-Hubbell.
FREDRICK R. BAKER is a Member in the Cookeville, Tennessee office, which he joined in 2001. His law practice emphasizes workers' compensation and employment discrimination, as well as ADA and FMLA compliance. Fred is Editor of the Tennessee Workers’ Compensation Handbook, by M. Lee Smith Publishers, and on the Advisory Board for the Tennessee Workers’ Comp Reporter. He is also Legislative Co-Chair of Upper Cumberland SHRM, and a member of the Mid-South Workers’ Compensation Association. Fred was selected as a Rising Star in 2012, 2013, and 2014 by Super Lawyers. He received his law degree, magna cum laude, from the University of Tennessee, and is rated AV Preeminent® by Martindale-Hubbell.
G. GERARD JABALEY is Managing Member of the Knoxville office. He joined the firm in 1989. His primary practice areas are defense-oriented and include workers' compensation, employment law, and human resources counseling and training. He obtained his law degree from The Cecil C. Humphreys School of Law at the University of Memphis. Gerard is a member of the Knoxville Bar Association and served both on their CLE Committee and as Co-Chair. He is also a member of the Employment Law Sections of the Tennessee and American Bar Associations, and the Litigation Section of the American Bar Association. Gerard has an AV Preeminent® Rating from Martindale-Hubbell.
FREDRICK J. BISSINGER is Regional Managing Member of the Nashville office, which he joined in 1999. His law practice includes employment discrimination and wrongful discharge matters at both the administrative level and in Federal and State court litigation, with an emphasis on ADA and FMLA compliance, and also includes workers' compensation and general liability matters. Fred has served as both Legislative Chair and Legal Advisor for Middle Tennessee SHRM, and is currently serving as the 2015 Diversity and Inclusion Director for Middle Tennessee SHRM. He received his law degree from the Seton Hall University School of Law, and is rated AV Preeminent® by Martindale-Hubbell.
JEFFREY G. JONES is Regional Managing Member of the Cookeville office. His practice includes commercial transactions, governmental law, and creditors' rights, as well as insurance defense. Jeff received his law degree from the University of Tennessee. He is a member of the Putnam County Bar Association as well as both the Tennessee and American Bar Associations. Jeff is a member of the Upper Cumberland Trial Lawyers Association, and the Cookeville Noonday Rotary Club. He is also currently the County Attorney for Putnam County, Tennessee. Jeff has an AV Preeminent® Rating - which is the highest possible rating given by Martindale-Hubbell, the leading independent attorney rating entity.
KELLY A. CAMPBELL is Regional Managing Member of the Morristown office, which she joined in 1994. Her practice includes an emphasis in workers' compensation, employment discrimination and wrongful discharge litigation (defense), as well as ADA and FMLA compliance for employers. She received her law degree from the University Of Tennessee College Of Law. Kelly is active as a Board member for the Pregnancy Crisis Center, Inc. (Board President 2007-2014). She is also an adjunct instructor in the Paralegal/ Legal Assistant Program at Walters State Community College in Morristown, Tennessee, and an adjunct instructor in the Business Department at Lincoln Memorial University in Harrogate, Tennessee. Kelly is rated AV Preeminent® by Martindale-Hubbell.
EDWARD H. TRENT is a Member of the Knoxville office, which he joined in 2011. His practice includes labor and employment law defense litigation and practice before governmental agencies, as well as preventative counseling and training for HR personnel. Ed also works with churches on employment law, child protection, and religious liberty issues. He received his law degree from Duke University School of Law. Ed has an AV Preeminent® Rating from MartindaleHubbell, and since 2011 has also been recognized by his peers for inclusion in The Best Lawyers in America® for Employment Law/Management and Litigation/ Labor & Employment. Ed is Board Certified in Labor & Employment Law by The Florida Bar.
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Baker Donelson Baker Donelson's labor and employment attorneys are in all of the Firm's seven Southeastern offices and Washington, D.C. Backed by more than 650 lawyers and public policy advisors, the attorneys offer litigation defense services for administrative and court proceedings at the federal and state level, advice on pre-litigation strategies to reduce legal risks, policy analysis and drafting, compliance audits, management training and labor negotiation. We are part of a Firm culture that promotes diversity, inclusion and a sincere appreciation for creative approaches to problem-solving, and we apply those same principles to our client relationships. We are proud to have been listed among FORTUNE magazine's "100 Best Companies to Work For" for six consecutive years, something few other law firms have attained. Many of our offices consistently rank as a Best Place to Work in their cities and states, as well. Phyllis Cancienne is managing shareholder of Baker
Donelson's Baton Rouge office. She represents employers in all aspects of employment litigation, including class actions, before state and federal courts throughout the country, as well as governmental agencies including the EEOC and the Department of Labor. Ms. Cancienne has extensive experience drafting employee handbooks, employment contracts, confidentiality/trade secret agreements, and covenants not to compete, as well as rendering advice to employers on all federal and state employment laws, including Title VII, ADA, FMLA, GINA, ADEA, NLRA and the FLSA. Listed in Chambers USA since 2010 as a leading labor and employment lawyer.
Brooks Eason is a shareholder in Baker Donelson's Jackson office, and has served for nearly 25 years as lead outside counsel in employment litigation for a naval shipyard in Pascagoula, the largest employer in Mississippi. He has also represented shipyards in Gulfport, Mississippi, and New Orleans, Louisiana. Mr. Eason has successfully defended employers in class and collective actions and individual suits asserting claims for discrimination on the basis of race, gender, age, religion and disability, for sexual and racial harassment, and for violations of the Fair Labor Standards Act. Listed in Chambers USA: America's Leading Business Lawyers since 2007. David Gevertz is an employment lawyer in Baker Donelson's Atlanta office. He vigorously defends organizations accused of violating discrimination, wage and hour, whistleblowing, privacy and benefits laws. He also litigates employment contract and restrictive covenant disputes, and he routinely leads sensitive internal investigations and reductions in force. Mr. Gevertz also represents financial, housing, testing, and hospitality-based institutions sued for violating public accommodations, fair housing, fair testing and fair lending laws. Listed in Chambers USA: America's Leading Business Lawyers since 2009.
J. Randall Patterson is a shareholder in Baker Donelson's
Jackson, Mississippi office. He represents employers before the EEOC and other administrative agencies, as well as in state and federal court. He also advises employers on policies and procedures, reductions in force, wage and hour issues, employee handbooks and general employment issues. Mr. Patterson is experienced in ERISA litigation, antitrust and white-collar criminal defense. Listed in Chambers USA: America's Leading Business Lawyers since 2007.
M. Kim Vance represents management in every aspect of labor
and employment law out of Baker Donelson's Nashville office. She defends companies in employment litigation; presents in-house management training programs to reduce employment related legal risks; counsels management clients through auditing human resources policies and practices; and develops pre-litigation strategies to improve available defenses. She has represented management clients in State and Federal Courts and in defense of administrative proceedings. Listed since 2008 in Chambers USA: America's Leading Business Lawyers.
Edward R. Young practices in Baker Donelson's Memphis office, but he has a nationwide practice representing public and private management in all phases of labor relations and employment law, including litigation, union avoidance and collective bargaining. He has more than 40 years experience representing clients in state and federal courts on issues dealing with EEOC, NLRB and the U.S. Department of Labor. He has litigated matters in more than 20 states and in Canada. Listed since 2008 in Chambers USA: America’s Leading Business Lawyers.
Steve F. Griffith Jr. is a shareholder in Baker Donelson's New Orleans office. His practice includes vast experience on unique wage and hour issues, and he defends nationwide collective actions brought under the Fair Labor Standards Act. His experience also includes extensive litigation experience on civil rights claims, Title VII, the ADA, FMLA and ADEA. Finally, his practice includes pursuing and defending complex breach of contract, trade secret and unfair trade practice claims. Listed in Chambers USA: America's Leading Business Lawyers since 2010 Jennifer Keller is president and chief operating officer of Baker Donelson. She is a former member of the Firm's Board of Directors and former chair of the Firm's nationally-recognized Labor & Employment Department. As an employment litigator, Ms. Keller advises clients on a wide variety of issues, including discipline and terminations, benefits issues, leave, disability accommodation, policy formulation and enforcement and similar matters. Licensed in Tennessee and North Carolina, she has been listed since 2010 in Chambers USA: America’s Leading Business Lawyers.
Amelia Koch practices in Baker Donelson's New Orleans
office. She has substantial experience in all aspects of employment litigation and counseling, such as the Fair Labor Standards Act, FMLA, ADA, Title VII, the Age Discrimination in Employment Act, covenants not to compete, and employment and severance agreements. She has defended FLSA collective actions and has also represented clients in wage matters before the United States Department of Labor. Listed in Chambers USA: America's Leading Business Lawyers since 2013.
Your Resource for Legal Innovation and Inspiration Customized Management Training Compliance Audits Policy and Strategy Analysis Litigation Defense Global Mobility Labor Negotiation www.bakerdonelson.com THIS IS AN ADVERTISEMENT. Ben Adams is Chairman and CEO of Baker Donelson and is located in our Memphis office, 165 Madison Avenue, Suite 2000, Memphis, TN 38103. Phone 901.526.2000. ©2015 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
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Bass, Berry & Sims The labor and employment law team is known as a strong team of litigators and counselors with particular recent involvement in non-compete work and employment issues relating to the healthcare sector. Defends employers against the full range of discrimination claims and offers traditional labor law expertise, including in union avoidance and contract negotiation. They are experienced in management side labor practice and employment law litigation and counseling, including informational and decertification campaigns, contract negotiations and arbitrations; retaliation, discrimination and whistleblower claims; FLSA DOL investigations and class/collective actions; and a myriad of other issues including FMLA and state law leaves of absence, I-9 compliance, independent contractor classification and non-competes.
Bill Ozier of Bass, Berry & Sims has practiced more than 40-years as a labor and employment attorney and has earned national praise that includes 30 consecutive years of recognition in Best Lawyers in America® for labor and employment and top-tier rankings in Chambers USA for his "well documented and focused process" on labor and employment matters (from Chambers USA 2013). Bill's ability to provide practical employment advice while remaining mindful of the cost/benefit considerations for the business has resulted in numerous long-term client relationships. One such relationship includes the representation of a prominent Tennessee university and academic medical center in the defense of employment discrimination claims, including tenure denial cases, student lawsuits and general labor and employment advice. Bill represents a wide variety of clients – including a number of Fortune 500 companies – from a broad scope of industries, including manufacturing, distribution, retail, education and healthcare.
Tim Garrett of Bass, Berry & Sims helps employers solve complex issues related to all aspects of labor and employment law, providing in depth counseling and developing creative solutions to underlying business issues. He is an experienced trial lawyer, defending employers of all sizes in employment litigation claims across the country. His work has ranged from defending a major university during a significant wage and hour collective action involving thousands of employees to the successful defense of a major healthcare provider in a gender discrimination / retaliation case. In addition, Tim has served as nationwide labor and employment counsel for the largest nonprofit dialysis company in the U.S. Named a top management lawyer in Nashville in 2013, and recognized by both Best Lawyers in America® and Chambers USA for several years, Tim has earned a national reputation for counseling employers through the maze of complex employee issues.
Bob Horton – As chair of Bass, Berry & Sims Labor & Employment Practice Group, Bob Horton represents management in all areas of labor and employment law. Bob's practice consists primarily of counseling clients regarding employment issues and defending companies against all manner of employment claims throughout the U.S. Bob has substantial jury trial experience and has obtained defense verdicts in discrimination and retaliation lawsuits across the country. With a robust non-compete practice, Bob has assisted employers in drafting non-compete agreements on a state by state basis, enforcing non-compete agreements by way of obtaining injunctive relief, and defending the company and new employees against claims of breach of non-compete agreements with prior employers. Bob assists numerous public companies and executives in the negotiation of employment agreements, as well as executive departures and subsequent issues that arise from equity grants in various forms.
PERFECT ALIGNMENT. Relationship. Reliability. Respect. At the center of our Employee Benefits and Labor & Employment practices.
N A S H V I L L E K N O X V I L L E M E M P H I S W A S H I N G T O N D C bassberry.com Blog: bassberrylabortalk.com
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@BassBerryLabor
Michael Moschel of Bass, Berry & Sims provides counsel on complex labor and employment issues to employers from industries as diverse as healthcare, aerospace, automotive and commercial printing. Known as "a good traditional labor practitioner" (from Chambers USA 2013), a significant portion of Michael's practice involves collective bargaining agreement negotiations, labor arbitrations, contract administration, defense of unfair labor practice charges and strike guidance. Much of Michael's traditional labor work is for government service contractors, particularly Department of Defense contractors. He also advises numerous healthcare employers, particularly hospice companies on labor and employment challenges unique to this industry.
August 21, 2015 1:00 – 5:00 pm National Civil Rights Museum Hooks Hyde Hall
CLE: 3.67 credits
RECEPTION TO FOLLOW
Please join the Association for Women Attorneys for an in-depth discussion of current issues in employment law that affect women in the workplace, including pregnancy discrimination, harassment, marriage equality, and an analysis of effective advocacy in federal court under the summary judgment standard.
REGISTER ONLINE AT HTTP://WWW.AWAMEMPHIS.ORG
Schedule: 12:30 – Registration 1:00 - 2:10 – Obergefell: More Than Just Marriage Equality – presented by Maureen Holland, who represented three same-sex couples in Obergefell v. Hodges, the historic U.S. Supreme Court case recognizing same-sex marriage as a fundamental and constitutional right in all states. She will discuss how this decision affects issues in employment.
Legal Challenges are Coming at HR Professionals from Every Direction
AWA 2015 CLE SERIES
2:15 - 3:00 – Pregnancy, Sexual Harassment, and Intergenerational Differences in Employment – presented by Pamela Irons, an experienced management-side employment attorney. She will discuss issues that impact women in the workplace, including pregnancy discrimination and harassment, and intergenerational differences that affect all employees.
Highlights of Association for Women Attorneys 3:00 - 3:45 – Compliance Issues Relating to Employment Discrimination – presented by Colby Morgan, who is Seminar formerly in-house counsel and a current private practitioner. REGISTER ONLINE AT CLE: 3.67 credits August 21, 2015 1:00 –on 5:00 pm HeAugust will speak on compliance issues with respect to 21 HTTP://WWW.AWAMEMPHIS.ORG employment discrimination. National Civil Rights Museum Schedule: At4:00 the National - 5:00 – Reasonable Inferences: Employment Hooks Hyde Hall Discrimination and the Summary Judgment 12:30 – Registration Civil Rights – presented by Judge Bernice Donald, RECEPTION TO FOLLOW Standard 1:00 2:10 – Obergefell: More Than Just Marriage currently serving on the U.S. Court of Appeals for the Museum Hooks Equality – presented by Maureen Holland, who Sixth Circuit. She will provide insight on advocacy Please join the Association for Women Attorneys for with respect to the summary judgment standard in three same-sex couples in Obergefell v. Hodges, Hall represented an in-depth discussion of currentHyde issues in employment cases. employment law that affect women in the workplace,
the historic U.S. Supreme Court case recognizing same-sex
$100 for AWA members / $115 nonmembers +$5 for registration past August 14, 2015 no CLE needed: $10 marriage as a fundamental and constitutional right in all Please mail the bottom portion of thisdiscrimination, form with a check payable to AWA to: AWA Memphis, ATTN: CLE including pregnancy harassment, PO Box 770186, Memphis, TN will 38177 discuss how this decision affects issues in states. She
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That’s Why Rainey Kizer Makes Your Business Our Concern
As the issues facing HR executives
3:00 - 3:45 – Compliance Issues Relating to Employment b e–cpresented o m e mby o rColby e f rMorgan, e q u e n twho , ch Maureen Holland presented “Obergefell: More Than Just Marriage Discrimination is a l l e n g i n g , Equality.” Maureen represented three same-sex couples in Obergefell formerly v. in-house and a each current year, private practitioner. andcounsel complex you need a law Hodges, the historic U.S. Supreme Court case recognizing same-sexHe will speakfirm on compliance issues with advice respect toindividualized that provides marriage as a fundamental and constitutional right in all states. (L-R)employment discrimination. Maureen Holland, Cynthia Thompson, and Colby Morgan.
for your specific needs. This is why you
4:00 - 5:00 – should Reasonable Inferences: Employment attorneys know the employment-law
Discrimination and the Summary Judgment at Rainey, Kizer, Reviere & Bell PLC. Standard – presented by Judge Bernice Donald, currently serving on the U.S. Court of Appeals for the o r will o v eprovide r 3 0insight y e a rons ,advocacy our AV-rated Sixth Circuit.F She m summary h a s a djudgment v i s e d standard b u s i n eins s e s , n o n with respect ftoi rthe employment pcases. rofit organizations, and government
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$100 for AWA members / $115 nonmembers +$5 for registration past August 14, 2015 no CLE needed: $10 l a wto: . TAWA o l e aMemphis, r n m o rATTN: e , p l eCLE ase call. Please mail the bottom portion of this form with a check payable to AWA PO Box 770186, Memphis, TN 38177 Pamela Name:Irons discussed “Pregnancy, Sexual Harassment, and Intergenerational Differences Address: in Employment.”
Phone:
Colby Morgan presented “Compliance Issues Relating to Employment Discrimination.”
Email: Judge Bernice Donald’s topic was “Reasonable Inferences: Employment Discrimination and the Summary Judgment Standard.” Judge Donald is currently serving on the U.S. Court of Appeals for the Sixth Circuit.
Company: City:
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The seminar was followed by a reception sponsored by Lipscomb & Pitts Insurance. Jackson Lewis was also a sponsor of the event. www.HRProfessionalsMagazine.com
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Memphis Business Group on Health 2015 Annual Conference on August 20 University of Memphis University Center
Fueling Breakthrough Performance in Wellness & Health Benefits
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1 MBGH celebrated their 30-year anniversary at the Conference. 2 MBGH CEO Cristie Upshaw Travis welcomed attendees to the Conference. 3 Barbara McClanahan, Associate Professor in Health Sport Sciences at the University of Memphis, spoke on “Cover All the Basics.” 4 Laurel Pickering, President and CEO of the Northeast Business Group on Health, discussed “Are Private Health Insurance Exchanges for You?” 5 Sandy Bradford with LifeSigns Clinics by the Prevention Group was an exhibitor. 6 Cristie Upshaw Travis introduced current and past Board members at the Conference. 7 Scott Conard, MD, President of Converging Health, was a keynote speaker. His topic was “Sustaining High Performance Through Creative Disruption.” 8 Jill Swenson, Health Solutions Chief Executive, Humana, was a concurrent speaker. She spoke on “Leveraging Technology for Employee Engagement.” 9 Bill Kampine, Senior VP of Healthcare Bluebook, discussed “The Value of Price and Quality Transparency Tools.” 10 Christian Moreno, VP with Lockton Companies, was the closing general session keynote speaker. His presentation was, “What’s ROI? Beyond the Platitudes.”
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Lessons Learned from I-9 Violations in the First Half of 2015 By BRUCE E. BUCHANAN
In the first half of 2015, the Office of Chief Administrative Hearing Officer (OCAHO) has issued 10 decisions against employers in I-9 penalty cases and two substantive decisions against employers in OSC-related cases. Previously in 2014 and 2013, OCAHO issued 17 Form I-9 penalty decisions and 30 Form I-9 penalty decisions, respectively, while there were three and six decisions against employers in OSC-related cases under Section 1324b, respectively.
2015 OCAHO Decisions under Section 1324a The following decisions have been issued in 2015 along with penalties sought by ICE and penalties assessed by OCAHO:
Employer’s Name
Penalty Sought By ICE OCAHO’s Decision
Foothill Packing
$168,455
$21,560
Employer Solutions Staffing Group (ESSG II)
$227,252
$227,252
Speedy Gonzalez Construction
$186,860
$97,000
Liberty Packaging
$19,354
$11,700
Horno MSJ, Ltd.
$30,575
$14,600
Kenneth McPeek Racing Stables
$64,795
$35,900
$157,220
$63,850
$5,890
$2,450
PM Packaging, Inc.
$53,762
$27,200
Hartmann Studios
$812,665
$605,250
Niche, Inc. Homestead Metal Recycling
An analysis of the above numbers demonstrates OCAHO lowered ICE’s proposed penalties on average by 36 %, which is lower than the reductions in 2014 and 2013. This is partially due to no reduction in penalties in ESSG II and only a 25% reduction in the largest penalty case – Hartmann Studios. The industries involved in these decisions were manufacturing/food processing – five; hospitality – three; construction – one; and employee staffing – one. These are the most common industries inspected by ICE. Six of the 10 employers involved in the OCAHO decisions were classified as small employers – usually defined as under 100 employees.
Significant Decisions There were several significant holdings in the cases reviewed. In ESSG II, the employer failed to have the individual, who reviewed the original employee documents, sign Section 2; rather, an individual at the corporate office did so. This led to a penalty of over $225,000. In Homestead Metal Recycling Corp., OCAHO found two minor owners were legally considered employees because the individuals did not have any control of the company. In PM Packaging, Inc., OCAHO found common ownership alone was insufficient to pierce the corporate veil, when this was the only connection between the two entities.
In Niche, Inc., the employer violated the Act by continuing to employ workers after their Employment Authorization documents (EADs) had expired and the employer failed to timely re-verify these workers, who, in fact, had timely acquired new EADs.
Common Types of I-9 Form Errors In the 2015 OCAHO decisions, the most common errors were the failure to ensure the completion of Section 1 by the employee, and failure to properly complete Section 2. These errors occurred in eight of the 10 cases. Other common I-9 errors were the employer backdating I-9 forms; failure to prepare or timely present I-9 forms for the employees; failure to provide a document number and/or issuing authority in Section 2; and failure to list documents from Lists A or B and C. In Hartmann Studios, the employer failed to sign the Section 2 certification on 800 occasions. This led to a penalty of over $600,000.
Reduction in Penalties The main reason for the reduction in penalties was OCAHO’s finding that the penalties should be adjusted to the mid-range of penalties and not be disproportionate to the employer’s resources, which occurred in at least six cases. OCAHO also cited the Small Business Regulatory Enforcement Fairness Act as a determining factor in finding the penalties excessive in six cases. On three occasions, OCAHO found the penalties were higher than the company’s ability to pay.
Discrimination Cases under Section 1324b OCAHO issued two substantive decisions involving actions under 8 U.S.C. §1324(b) -immigration-related discrimination – U.S. v. Estopy Farms and GonzalezHernandez v. Arizona Family Health Partnership. In U.S. v. Estopy Farms, OCAHO found the employer discriminated against a qualified U.S. citizen in favor of hiring H-2A workers. This finding was based upon Estopy Farms providing a series of “shifting, inconsistent, and mutually contradictory explanations”, which were pretextual, related to why it failed to hire Romero, a qualified agricultural equipment operator. OCAHO found in Gonzalez-Hernandez v. Arizona Family Health, that a DACA recipient is not a protected individual for citizenship status discrimination.
Takeaways It is important for all employers, large and small, to conduct annual self-audits under the direction of an immigration compliance attorney, and have a written I-9 Compliance Policy. If employers take both of these actions, their chances of knowingly employing undocumented workers and creating substantive errors on the I-9 forms will be significantly reduced.
Bruce E. Buchanan, Attorney Siskind Susser P.C. bbuchanan@visalaw.com www.visalaw.com www.HRProfessionalsMagazine.com
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7 Habits of Leaders
a major breakthrough. Knowing when they eventually will achieve a breakthrough, it will further increase their stamina, resilience and mental toughness.
Choose Those They Associate with Wisely
Who Have Developed Mental Toughness
Mentally tough people hang out with other positive thinking individuals with whom they share common goals and aspirations. They support one another and celebrate each other’s achievements. Negative people are an energy drain. When around negative people, they manage to tune out the negativity and limit their interaction. In this way, they are able to abstain from negative people taking up their valuable time and energy and to refocus pursuing their goals.
Face Their Fears and Do it Anyway When faced with a calculated, necessary risk to reach their objectives, mentally tough people are able to find ways to overcome their fears and go for it. They know any worthwhile achievement involves risk and the possibility of failure. Considering the worst case scenario, they decide they can withstand it and keep going and never let fear stop them. For them failure is not the worst of possibilities, rather the thought that they may have missed out on some potential achievement because they listened to their fears. These are people whose worse case scenario is having regrets at the end of their lives about the things they didn’t attempt.
Maintain Their Boundaries and Say No When Necessary By HARVEY DEUTSCHENDORF
“ The only way of finding the limits of the possible is by going beyond them into the impossible ”
If
~ Arthur C. Clarke ~
we look at the achievements of all the people who have made a difference in our lives, from Edison to Bill Gates, we will find the one trait they all have in common is a high degree of mental toughness. They and others who have continued to keep moving toward their goals; while enduring ridicule from many naysayers and doubters who lacked the ability to appreciate what they are attempting to achieve. Despite this, persevering until accomplishing what they had set out to do. Mental toughness is not something we are born with, as many believe, it is a set of characteristics we can all develop. Here are some habits that mentally tough people have developed.
Ability to Manage Their Emotions Mentally tough people have learned when, and with whom, it is safe to share their feelings. While they are able to share their feelings and be vulnerable, they do this with people they can trust and count on to be supportive. They have developed the ability to control their emotions and impulses in situations where this would be seen as a sign of weakness and could be used against them. Their finely tuned senses allow them to accurately perceive who they can trust and depend on.
Self-Confidence In order to attempt something outside of the scope of what most people do requires a high degree of self-confidence. Mentally tough people are not born with more self-confidence, they acquire this by continuously pushing their boundaries and moving beyond their fears. This expands their capacity to take risks and deal with the inevitable setbacks and failures that always come before 50
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Many people say yes when they don’t want to do something, just to please others. They often regret this after and complain they should have said no. Mentally tough people are able to say no without taking on the burden of feeling guilty about it afterwards. They are able to say no without hedging their answer or making excuses for why they are unable to or willing to do something. This shows others around them they are not pushovers and should not be approached with unreasonable demands on their time and energy.
Self-Disciplined Mentally tough people also have a great deal of self-discipline and adhere to a strict regime regarding their own health and wellness habits. They seldom take the easy way out by not adhering to their exercise, eating and sleeping patterns. Knowing that physical fitness, health and adequate rest are necessary for their overall well-being, they doggedly stay true to the habits and patterns that give them the energy they need.
Independent and Don’t Compare Themselves to Others Those who have developed mental toughness do not pay much attention to what others think of them or compare themselves to others. They have well defined goals in life which motivate and drive them. While they are open to the opinions of others they respect, they ultimately take total responsibility for their decisions and outcomes and do not blame others or circumstances for their failures. Their self-measure of achievement is recognizing if they are a better person now from the person they were before, rather than competing with and comparing their achievements of others. They are forever striving to do better than they did the day before. Harvey Deutschendorf is an emotional intelligence expert, 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 translated into 4 languages including Chinese. You can follow him on Twitter @theeiguy.
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Financial Planning has never been more important than it is today! Changes in the economy, taxes and interest rates have made every financial picture more complex than ever before. We focus on: Financial Needs Analysis Retirement Income Planning Disability Income Protection Life & Health Insurance Long Term Care Insurance Guaranteed College Scholarships College Funding Solutions Executive & Employee Group Benefits Charitable Contribution Strategies
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