Volume 9 : Issue 9
TM
www.HRProfessionalsMagazine.com
Anniversary Issue
2019 TN SHRM
Conference & Expo September 18-20 in Chattanooga
2019 NC HR Conference
September 25-27 in Hickory
ARSHRM ELLA Conference September 26-27 in Little Rock
Laurie
McIntosh,
SHRM-SCP, CAE
24th Annual
MSSHRM
Conference & Expo September 16-18 in Tupelo
SHRM Field Services Director
Keeping up with changing laws is a full-time job, and you’ve already got one. EMPLOYERS AND LAWYERS, WORKING TOGETHER Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. The firm has more than 850 lawyers located in 53 offices across the United States and in Europe, Canada, and Mexico.
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Over 50% of employers offer some sort of financial wellness program. www.HRProfessionalsMagazine.com Editor
Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher
The Thompson HR Firm, LLC Art Direction
Park Avenue Design
Contributing Writers
Austin Baker Bruce E. Buchanan Laura K. Clayman William Carmichael Matthew Courtner Shane Davison Frank L. Day Harvey Deutschendorf Morgan Pike Epperson Kim Estep Billy S. Fawcett John Hawkins Jimmy Hinton Wes Hudnall Jay Inman Scott Kelly Joe M. Kraska Emily Massey David D. Rowlee Cammie Scott Greg Siskind Joseph R. Ward III Mollie K. Wildmann Board of Advisors
Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR Terri Murphy Susan Nieman Robert Pipkin Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine.com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2019 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.
Features
4 note from the editor 6 Profile: Laurie McIntosh, SHRM-SCP, CAE, SHRM Field Services Director 39 Congratulations to These Certified HR Professionals! 42 A Plan for Planning 48 Book Look – Turn Enemies Into Allies by Judy Ringer
Talent Management
14 Preventing Engagement Erosion 18 Rock Your Seasonal Hiring 24 Know Your Money: Driving Results Through Financial Wellness 33 Compensation HR Software Solutions 37 North Carolina for Military Employment 47 The Human Resources Team
Top Educational Programs for HR Professionals
8 Legal Training for HR Professionals: The Emory Juris Master Degree 9 SHRM Certification 2019 Winter Exam Testing Window 13 MTSU’s Applied Leadership Program 20 WGU Tennessee: Who We Are, Why We are Here, and Where We’re Going 21 WGU Bachelor’s or Master’s Degree Fully Aligned with SHRM’s HR Curriculum 23 ECU MBA Top Ranked Online or On Campus 36 Earn Your Master of Science in Human Resource Management at Roosevelt University 49 Online SHRM Certification Exam Prep Class Begins October 2
Employee Benefits
25 Customized Benefits Solutions for HR Teams and Brokers 28 The ACA Fight Continues! Will Texas v. U.S. Deliver the Knockout Punch? 34 5 Myths About Benefits Enrollment 37 GMEBC September Meeting 39 Fellowship Hall Drug + Alcohol Recovery Center 52 Highlights of Memphis Business Group on Health Conference August 7 53 Living Your Best Life Means Having Life Insurance
Employment Law
12 NLRB Rules Employers May Bar Union Solicitation in Their Facilities 16 How Eugene Scalia Could Impact Employers as the Secretary of Labor 19 2019 Wimberly Lawson Annual Labor & Employment Law Update Conference in Knoxville November 21-22 22 Alabama’s New Pay Equity Law 26 Frequently Asked Questions in Employment Law 30 A Preview of the 2019-2020 U.S. Supreme Court Employment Law Cases 32 Compensability of Overnight Travel Time 38 Cross, Gunter, Witherspoon & Gulchus, P.C. Seminars 40 Further Update Arbitration Agreements in Kentucky 44 Wal-Mart Stores East, LP Will Pay $100.000 to Settle EEOC Disability Discrimination Suit 46 DOL Announces Notice of Proposed Rulemaking to Update Joint Employer Test 50 The House Votes to Remove Green Card Caps
Industry News
6 2019 North Carolina HR Conference in Hickory September 25-27 7 2019 TN SHRM Conference & Expo in Chattanooga September 18-20 10 2019 HR Tampa Conference October 25 27 SHRM-Memphis & ATD Joint Meeting August 20 45 ARSHRM Employment Law & Legislative Affairs Conference in Little Rock September 26-27 53 24th Annual Mississippi HR Conference & Expo in Tupelo September 16-18 55 2019 ALSHRM Strategy in the Sand Conference in Orange Beach October 11
October 2019 issue features Profiles of Chambers and Partners Top Labor and Employment Law Attorneys Employment Law and Employee Benefits Updates plus Highlights of the 24th Annual MSSHRM State Conference in Tupelo, TN SHRM Conference & Expo in Chattanooga, the NCSHRM HR Conference in Hickory, and the ARSHRM Employment Law & Legislative Affairs Conference in Little Rock Deadline to reserve space September 15
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a note from the editor
Anniversary Issue We are celebrating eight fantastic years at HR Professionals Magazine this month! Hat’s off to our sponsors, contributors, and you for making these past eight years so successful! We are honored to be the
At the Excellence Through
official media sponsor for the
Leadership Conference in
SHRM State Conferences in
Peachtree City August 15-16
Alabama, Arkansas, Georgia,
with (L-R) Madelyn Brown,
Kentucky, Mississippi, North
Charles Little, Cynthia, and Carol Ward
Carolina and Tennessee.
We will kick off year eight with four SHRM State Conferences! We will be in Tupelo September 16-18 for the 24th Annual Mississippi HR Conference & Expo followed by the TN SHRM Conference & Expo in Chattanooga September 18-20. From there we will continue our celebration with our first visit to the North Carolina HR Conference in Hickory September 25-27. The ARSHRM Employment Law and Legislative Conference will be in Little Rock September 26-27. We are looking forward to seeing our subscribers and SHRM friends during our month-long celebration tour! It is an honor to have Laurie McIntosh, SHRM-SCP, CAE, on our September cover. Laurie is the SHRM Field Services Director for Kentucky, Tennessee, North Carolina, Virginia, West Virginia,and Maryland. We look forward to seeing Laurie in Louisville, Chattanooga and Hickory during our anniversary tour! I know you will enjoy reading about Laurie’s wonderful career with SHRM. Some of you will have the opportunity to meet Laurie in person during September.
What a pleasure working with the SHRM State Councils and the SHRM volunteers in our distribution footprint! I also want to say a huge thank you to the extraordinary
As you may know, the SHRM Certification Winter Exam Testing Window opens October 18. See Page 9 for details and the link to apply. Our next Online SHRM Certification Exam Prep Class will begin October 2. The last day to register is September 25. Register at www. hrprofessionalsmagazine.com. If you are not a certified HR professional, I encourage you to get certified! It will take your career in human resource management to the next level.
SHRM Public Affairs team
Just a reminder about our complimentary monthly webinar sponsored by Data Facts. We are
who graciously works with
continuing our three-part series on strategic HR management in September. I hope you can join
us to bring you highlights of
us as we discuss the principles of ethical decision making. Watch your email for your invitation.
the SHRM Employment Law and Legislative Conference in March, the SHRM Talent Conference in April, and the Annual SHRM Conference in June each year.
cynthia@hrprosmagazine.com cythomps@twitter
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Register at www.hrtampaconference.org
2019 HR Tampa Conference This informative event will provide developmental and networking opportunities for all business leaders and HR professionals.
Keynote Speakers
Johnny C. Taylor, Jr., SHRM-SCP
Paul Artale
President & Chief Executive Officer SHRM
Speaker & Author at Unleash Your Message
Johnny C. Taylor, Jr., SHRM-SCP, is President and Chief Executive Officer of the Society for Human Resource Management, the world’s largest HR professional society. As a global leader on human capital, culture and leadership, Mr. Taylor is a sought-after voice on all matters affecting work, workers and the workplace. He is frequently asked to testify before Congress on critical workforce issues and authors a weekly column, “Ask HR,” in USA Today.
Paul Artale, Author and speaker. Paul works with organizations to focus on how work-life initiatives and awareness improves employee retention, satisfaction, and performance. Paul has spoken to hundreds of organizations inspiring, educating and sharing his stories and triumphs. He teaches audiences tools and methods to over come obstacles, practical strategies to recruit and retain a diverse workforce and steps to create actions in their daily lives to live the life of your dreams.
#HRTPA19 10
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Laurie on the cover
McIntosh
Laurie McIntosh, SHRM-SCP, CAE Field Services Director, Society for Human Resource Management She received her Master’s degree in Human Resource Management graduating with distinction from Capella University in 2012. Her top five StengthsFinder Signature Themes are Maximizer, Futuristic, Connectedness, Strategic and Learner. Connect with Laurie at: Twitter: @SHRMLaurie and LinkedIn: Laurie McIntosh, SHRM-SCP
Laurie McIntosh, SHRM-SCP, CAE, has worked for SHRM for over 11 years. Based at SHRM headquarters in Alexandria, Virginia, Laurie supports and promotes the value of SHRM membership in a six-state territory with 79 SHRM affiliated chapters and over 38,600 SHRM members. She engages with volunteer leaders and members to strengthen and align the SHRM brand at the local level. She creates and maintains effective, collaborative relationships with stakeholders, and partners with volunteer chapter and state leaders to ensure they are successful. Originally from Iowa, her family moved to Virginia when Laurie accepted a promotion with SHRM eight years ago. As a member of the SHRM Speakers Bureau, she is regularly requested to train and speak on exceptional HR practices including talent acquisition, effective communications and strategic planning at SHRM chapter and state council events. She also is asked to speak at conferences for other organizations including National Grocer’s Association and Verified Credentials. Prior to her current role, Laurie was SHRM’s Director, Membership where she supported SHRM's strategic plan and implementation of membership strategy. She managed member engagement groups, communications and annual training/engagement events for volunteer leaders (120 – 900 participants). She worked on a variety of cross-functional teams and was project lead for development and successful launch of membership related initiatives including new member benefits. Laurie is a member of the American Society of Association Executives (ASAE) for over 11 years. She has experience as a volunteer leader with a membership group. She has been a speaker at both the ASAE Annual Meeting & Exposition as well as their Membership, Marketing and Communications conference on topics related to member engagement, acquisition and retention. She received her Certified Association Executive (CAE) designation in 2014. Prior to joining the SHRM team, Laurie was a Human Resource practitioner in Omaha, Nebraska for over 15 years and has industry experience in health care, consumer packaged goods and banking. Additionally, she was a volunteer leader for SHRM, with the Human Resource Association of the Midlands (over 1,000 members) where she held several roles, including chapter president. She was also an active volunteer at the state level, holding several positions on the state council, including state council director. Her experience as a volunteer leader led to her interest in pursuing a career with SHRM.
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2019 North Carolina HR Conference September 25-27, 2019 Hickory Metro Convention Center | Hickory, North Carolina
Register now for NCSHRM 2019 www.ncshrmconference.com Keynote speakers, interactive breakout sessions, networking opportunities plus vendor expo. Leave energized from your collaborative discussions and have well-crafted ideas. Market to largest gathering of human resource professionals in our state with 800+ attendees expected representing virtually every industry and size of business. SPONSOR AND EXHIBITOR OPPORTUNITIES ARE AVAILABLE Our 2018 Conference
Brought to you by:
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SOCIAL EVENT
A unique social event will be held at Southside Social in Chattanooga’s Southside district . Southside Social is a family-friendly boutique bowling alley that offers 10 lanes in addition to 4 bars. Southside Social offers an exclusive atmosphere which creates an exuberant experience, including: lounge seating with flat-screen televisions, and an indoor gaming area with pool tables, skee ball, ping pong, shuffleboard, giant jenga and more. The outdoor courtyard also offers casual seating, fire pits, ping pongtables, horseshoes, and cornhole.
REGISTER
Attendees, Exhibitors, and Sponsors may visit www.shrmchattanooga.com for registration and hotel information. For additional questions regarding the 2019 conference, please email pastpresident@shrmchattanooga.com.
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Legal Training for HR Professionals: the Emory Juris Master Degree Today’s professionals face growing regulation, intensifying risk and liability concerns, and increasingly complex decision environments. If you are a professional interested in gaining a better grounding in law and regulation to advance your career, Emory Law’s juris master offers the insight and flexibility to help you achieve your goals. This 30-credit-hour master's program can be completed either on-campus (full-time or part-time) or online. What Our Graduates Are Saying Our students leave our program ready to apply their knowledge in their field of work. Betsy Hames, chief human resources officer, Duke University School of Medicine, and a 2014 JM graduate, says, “My professors challenged my thinking and fostered analytical skill development and sound decision-making. One of the most relevant courses I took was Employment Discrimination, which heightened my ability to look at creative options and minimize organizational risks. With a greater understanding and appreciation for seeing situations from a different perspective, the JM program enhanced the contributions I can make as an experienced HR professional.” What Employers Are Saying Employers know the value of legal training for their employees in complementary fields. Steve Sencer, Senior Vice President and General Counsel and Senior Advisor to the President, Emory University, describes the benefits of the JM: “The ability to think analytically, be comfortable with legal concepts, and engage thoughtfully with counsel is an increasingly important advantage, especially in highly regulated industries like higher education and healthcare. The Juris Master degree from Emory Law is an exciting opportunity to develop those skills, while remaining on a complementary career path.”
On-Campus and Online Formats Available The campus-based format offers the broadest flexibility of course offerings, with the option to customize the program to your specific interests. It can be completed full-time in one year or part-time in up to four years. Courses are offered throughout the day, including limited late afternoon, evening, and summer options. For students interested in learning about health care law or business law, Emory Law offers 18-month, online courses of study in Health Care Law, Policy and Regulation; and in Business Law and Regulation. The online program is comprised of 10 sequential 7-week asynchronous courses, with 3 three-day residencies. You can build a curriculum that meets your educational goals, exploring a range of legal topics, such as employment law, business law and regulation, child and family law, environmental and natural resources law, health care law, policy, and regulation; intellectual property law, international business law, and nonprofit and development law. Exemplary Scholars & Teaching More than 60 full-time faculty—expert scholars and talented practitioners alike—along with an accomplished cadre of adjunct faculty, teach at Emory Law. They not only teach you the law, they are also at the forefront of legal scholarship. For more information about the program, contact Assistant Director of Admission Farah Dharamshi at jmadmission@emory.edu or 404.727.0598. Application deadline: Fall: June 30. Spring: November 15. Apply now at law.emory.edu/jm. Scholarships and financial aid are available.
Put the Law to Work for Your Career Legal Training for HR Professionals Online and On-Campus Options “The Emory Law juris master program provided me with the legal knowledge essential for executive level human resources leadership.” Betsy Hames Associate Dean & Chief Human Resources Officer Duke University School of Medicine 2014 JM Graduate
Gain the legal knowledge and skills to navigate complex regulatory environments, make informed decisions, assess risk, and advance your career. Online: Complete the online program in 18 months with three short residencies in one of two concentrations: Health Care Law, Policy, and Regulation or Business Law and Regulation On Campus: Complete the on-campus program with a wide range of concentrations, including employment law, full time in 1 year or part-time in up to 4 years Scholarship: Guaranteed Scholarship for SHRM-Atlanta members: Members admitted to the JM program will receive a minimum scholarship of 15%. Financial aid also available. Application open! 15. Application deadlines: deadline: Fall: June 30. 30. Spring: Spring: now November
Learn more at law.emory.edu/jm | Email us at JMadmission@emory.edu 8
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“ GET THE RECOGNITION YOU DESERVE
“ To demonstrate my commitment
to the field of HR and become the subject matter expert in our company, I needed to obtain my SHRM certification. As a result, I was promoted and given a substantial raise.” – Karen Wennerberg, SHRM-CP
Becoming SHRM-certified demonstrates to your company leadership that you’re committed to excellence. As a result, you’ll increase your chances for career advancement. Don’t miss out on future opportunities. Get SHRM-certified.
Early-Bird Application Deadline OCTOBER 18 2019 Winter Exam Testing Window DECEMBER 1, 2019 – FEBRUARY 15, 2020
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NLRB Rules Employers May Bar Union Solicitation in Their Facilities By FRANK L. DAY JR. and MOLLIE K. WILDMANN
On
June 14, 2019, the National Labor Relations Board (“NLRB” or the “Board”) ruled that employers may prohibit nonemployee union representatives from soliciting or promoting union membership within
common areas of an employer’s business – such as public restaurants and cafeterias – as long as the employer does so in a non-discriminatory manner. This decision provides employers with greater control over the use of their facilities and explicitly overrules decades-old precedent inconsistent with this determination.
Why it Matters: Public spaces in hospitals, restaurants, casinos, and hotels are often targeted by union representatives to solicit membership or organize on employers’ property. During union organizing initiatives or difficult labor negotiations, hospitals, specifically, are increasingly pressured to permit various types of access to their facilities. Whether employers can limit union solicitation, including restricting distribution of union literature and access to the employer’s premises, depends in large part on whether the solicitation is undertaken by non-employees or employees. For almost 40 years, the NLRB allowed solicitation and other promotional activities by non-employee union representatives inside cafeterias, restaurants, and other areas open to the general public so long as the representatives were not “disruptive.” However, under UPMC, employers now can bar union representatives from engaging in solicitation or promotional activity so long as the employer similarly prohibits all forms of solicitation or promotional activity by non-employees in these spaces. 12
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Previous Rulings: Over 60 years ago, the Supreme Court ruled in NLRB v. Babcock, 351 U.S. 105 (1956), that employers may prohibit nonemployee union organizers from promoting their union on company property, as long as the union has other available channels of communication (i.e. the inaccessibility exception) and the employer prohibits similar promotions by other organizations (i.e. the discrimination exception). In the decades that followed, the Babcock standard developed another exception, the “public space” exception at issue in UPMC. The “public space” exception allowed nonemployee union organizers access to a portion of the employer’s private property open to the public, such as a cafeteria or restaurant. Specifically, nonemployee union organizers could not be denied access to employer cafeterias and restaurants open to the public so long as the organizers used the area in a fashion consistent with its intended use and were not disruptive.
The Board’s Decision in UPMC: In UPMC, two nonemployee union representatives sat in the hospital cafeteria with a group of employees and discussed union campaign matters. The union representatives displayed union flyers and pins on the tables where they
were seated. After the union representatives had been in the cafeteria for over an hour, hospital security requested the nonemployee union representatives to leave, as the hospital had an established practice of removing nonemployees engaged in promotional activity in the cafeteria. The union representatives refused to leave and, eventually, six police officers escorted the union representatives out of the cafeteria. The Board found the removal lawful because there was no evidence that the hospital knowingly permitted other solicitation or promotional activity inside the cafeteria. To the contrary, the hospital presented evidence that it had removed other non-employees for engaging in promotional activity in the cafeteria, including removing a spiritual group that was distributing literature and an individual who was soliciting money. Thus, expressly overruling the “public space” exception, the Board ruled:
areas remain critical in avoiding unnecessary legal entanglement, including having to respond to Unfair Labor Practice Charges under the NLRA. If you have any questions regarding the Board’s decision or any other employment issue, please contact the authors of this Article, Frank Day, fday@fordharrison.com, partner in FordHarrison’s Memphis office, or Mollie Wildmann, mwildmann@fordharrison.com, associate in its Memphis office. Of course, you may also contact the FordHarrison attorney with whom you usually work.
an employer does not have a duty to allow the use of its facility by nonemployees for promotional or organizational activity. The fact that a cafeteria located on the employer’s private property is open to the public does not mean that an employer must allow any nonemployee access for any purpose.
Frank L. Day, Partner FordHarrison fday@fordharrison.com www.fordharrison.com
Bottom Line: The Board’s decision in UPMC provides employers with public spaces, such as restaurants and cafeterias, with greater control over their property. However, thoughtful and careful drafting and implementation of employer policies in the solicitation, distribution, and access
Mollie K. Wildman, Associate FordHarrison mwildman@fordharrison.com www.fordharrison.com
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Preventing engagement erosion
during times of external uncertainty
BY DAVID D. ROWLEE, PH.D.
Retaining top talent starts with creating strong attachment points that can weather the inevitable ups and downs of business performance. Recent research backs this conclusion with the finding that employee engagement drivers change over time because they reflect larger macroeconomic or geopolitical trends.1 Zeroing in on three unique points in recent history showcases engagement variations — and strategies for inoculating employees from demotivating forces during stable or unsettling times.
Self-interest is strongest in a good economy The year 2005 was marked by a brisk economy and relatively low unemployment. During this time, the key drivers of workforce enthusiasm and productivity were self-focused — with growth and development opportunities at the center of employees’ radar. Recognition, communication and feedback from individual work units and immediate supervisors contributed the most to a positive experience. When the labor market is strong, career wellbeing support is exceptionally important because employees are more confident and aware of their value. Employers can capitalize on this environment by proactively creating opportunities for growth and rewards to show their workforce commitment and more successfully drive engagement. Structured performance reviews, awards, recognition and training — including leadership development — help keep people energized and immersed. Organizations recently ranked as top performers in managing HR and healthcare costs had a strong tendency to use tactics that promote employee engagement and career growth. Namely, compared to other participants in a 2018 survey, they were far more likely to define clear performance goals, give timely and constructive feedback, identify development needs and create action plans. And more often, they linked employees’ efforts to positive effects on the organization’s strategy, mission, vision and values; supported them in developing and pursuing a career path; and provided interesting and challenging work.2,3 14
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Economic uncertainty draws employee attention to broader priorities During the Great Depression, a study assessed the attitudes of 4,430 employees and, in 1933, researcher Richard Stephen Uhrbrock authored an enlightening follow-up article. He concluded that communication from senior leadership was the most important factor in creating a workforce that feels stable, fulfilled and satisfied — at times when the economy is in turmoil.4 Fast-forward to 2009, when a full-steam subprime mortgage crisis was crippling an already hobbled economy and accelerating job loss. Data collected from multiple 2018 engagement surveys showed a remarkable shift away from employee self-interest alone in 2005, toward inclusion of broader organizational considerations.¹ And, like the period of duress experienced more than 75 years earlier, a critical engagement driver was confidence in senior leaders as well as hearing from them. Communications were a priority in both good and bad times.
THE DYNAMIC NATURE OF ENGAGEMENT DRIVERS (Drivers are shown in order of priority for survey participants)
Support data is drawn from a sample of 600+ organizations in multiple industries and U.S. geographies
What mattered most to employees was being informed of their organization’s performance and the actions leadership was taking to achieve success. They also wanted to know that its products and services could stand the test of time. Their overall sense of security hinged on both the quality of output and their confidence in leadership. There’s a clear message in these consistent findings for organizations striving to maintain a sense of stability and satisfaction in a turbulent environment: communication is their most powerful ally. A disciplined and targeted approach to this priority reinforces a shared understanding of vision, mission and values, and enables employees to feel connected to each other and their employer. Maintaining a regular cadence of communications under stressful circumstances — even in an emergency — simply requires altering and repurposing existing messages to fit the current environment and needs.
Top performing organizations stand out from their peers for communicating in a way that encourages trust and confidence.2,3 No matter what the state of the economy or its influence on employee stress may be, effective communication helps improve engagement outcomes. Without it, there’s an increasing possibility of employee burnout or even resentment that can lead to a toxic work environment. And with it, there’s the invaluable probability of increasing a sense of pride and job satisfaction that could even become contagious.
Today’s environment calls for a comprehensive engagement approach Today’s macroeconomic and political environment is complex. The economy and job market is thriving, but political tensions in the U.S. and abroad are running high. So it’s not surprising that 2018 engagement drivers combine those that were identified in both a stable and prosperous 2005, and a fraught 2009 characterized by an economic slump.1 This duality means that employees’ self-focus now coexists with their concern about outward organizational issues — and employers must cultivate engagement through multiple channels. Especially important is helping the workforce build toward a better, more secure future through career wellbeing opportunities, alongside a comprehensive yet flexible communication approach. Reaching and sustaining the end goal of a productive, satisfied and loyal workforce happens more quickly and smoothly when employees’ perceptions and priorities are consistently measured and monitored. In any situation at any time, employers can determine what motivates and engages their employees to develop or refine an action plan that drives engagement. They’re better equipped to shield their employees from the pressures of external stressors and prepare them for an inevitable economic downturn — while building and reinforcing a more resilient brand of employee goodwill and commitment. Ultimately, that’s how organizations compete more strongly and thrive.
David D. Rowlee, Ph.D. Managing Director & Practice Leader, Engagement Surveys
David oversees a team of highly skilled researchers and ensures the delivery of leading-edge measurement capabilities, advanced empirical analyses and innovative research studies to inform clients’ operations and strategies. ¹ Gallagher engagement survey research, 2018 ² Arthur J. Gallagher & Co., “Best-in-Class Benchmarking Analysis for Large Employers,” April 2019 ³ Arthur J. Gallagher & Co., “Best-in-Class Benchmarking Analysis for Midsize Employers,” April 2019 ⁴The Journal of Social Psychology, “Attitudes of 4430 Employees,” November 1933 Consulting and insurance brokerage services to be provided by Gallagher Benefit Services, Inc. and/or its affiliate Gallagher Benefit Services (Canada) Group Inc. Gallagher Benefit Services, Inc. is a licensed insurance agency that does business in California as “Gallagher Benefit Services of California Insurance Services” and in Massachusetts as “Gallagher Benefit Insurance Services.” Neither Arthur J. Gallagher & Co., nor its affiliates provide accounting, legal or tax advice. This is just one of 19 articles from Gallagher’s 2019 Organizational Wellbeing & Talent Insights. To download the full report, visit ajg.com/owti-2019. © 2019 Arthur J. Gallagher & Co. | 27335Q
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Photo Eugene Scalia by lastampa.it
How Eugene Scalia Could Impact Employers as the Secretary of Labor By BILLY S. FAWCETT
President Trump recently nominated Eugene Scalia for the Secretary of Labor. Scalia still must go through the confirmation process, but his confirmation is likely given his impressive resume. This article examines what Scalia as the Secretary of Labor could mean for employers if he is confirmed by the Senate. I. Eugene Scalia’s Background Son of the late Justice Antonin Scalia, Eugene Scalia has an impeccable educational resume—he attended three prestigious schools, graduated with honors, earned a law degree, again with honors, and then earned an MBA. He went on to work for one of the premier regulatory law firms in the world. Scalia is primarily known for his ability in representing corporations in challenges to federal regulations. Importantly, he previously served as the Solicitor of Labor, where he advised the Secretary of Labor and oversaw the Department of Labor’s 400 lawyers who enforce the numerous regulations that fall under the scope of the Department of Labor. He also worked as a special assistant to Attorney General William Barr in the early 1990s. Further, he spent three years working as an aide to the Education Secretary William Bennett in the mid-1980s. Scalia gained a reputation as one of the better attorneys in the country for his work dealing with challenging federal regulations. In other words, he represented businesses in trying to dismantle regulations that made their operations more difficult and/or less profitable. Unlike a Supreme Court nominee, we do not have a large body of work, such as years of judicial opinions, to look at in determining what Scalia will do as the Secretary of Labor. We can, however, look to his body of work as a lawyer. In one of his more famous cases, Scalia successfully represented Wal-Mart in challenging a state law that required employers with 10,000 or more employees to spend at least 8% of their payroll on healthcare. In another case, he argued, again successfully, that SeaWorld did not violate OSHA’s “general duty” clause when the Department of Labor accused SeaWorld of exposing its workers to a hazardous environment after a killer whale killed its trainer. Scalia argued that a company’s general duty to keep workplaces free from recognized hazards did not apply because it was necessary for SeaWorld’s trainers to work closely with killer whales. He also successfully represented clients in overturning many other Obama-era financial and labor regulations. 16
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We do not actually know Scalia’s personal opinions regarding labor regulations, but we do know that he served his clients who opposed regulations effectively. We also know that he authored an essay, over twenty years ago, questioning why quid pro quo harassment only requires one instance to be actionable while other forms of sexual harassment have a “severe and pervasive” requirement—a decidedly conservative/ management side position. Of course, his actual opinions on sexual harassment do not play much of a factor in running the Department of Labor as the wholly distinct and separate Equal Employment Opportunity Commission oversees sexual harassment issues. Further, in his job as Secretary of Labor he will likely act according to the administration’s wishes in the same manner that he acted according to his client’s wishes in private practice. It is safe to assume that President Trump nominated him because of his extensive track record of representing clients in tearing down regulations. Moreover, he served under a Republican president, George W. Bush, once before, so it is likely, and reasonable to assume, that he will be decidedly pro-management in his policies.
II. The Requirements of the Secretary of Labor Typically, the Secretary of Labor has extensive political or labor and employment law experience, making Eugene Scalia exceptionally qualified in that regard. However, critics may point to the history and mission of the Department of Labor to dispute Scalia’s qualifications. The Department of Labor and the Department of Commerce came into existence together in 1903 as the Department of Commerce and Labor. However, in 1913, they split into separate departments when the progressive movement of the late 19th century got its wish of having a voice for the workers in the cabinet. The Department of Labor was intended to represent the interests of workers, while the Department of Commerce represented the interests of businesses. Specifically, the Department of Labor states that its purpose is “to foster, promote and develop the welfare of working people, to improve their working conditions, and to enhance their opportunities for profitable employment.” Some commenters have aptly noted that Scalia’s experience stands inapposite of the Department of Labor’s goal: he has fought for business and against regulations protecting workers. It seems he might be more suited for the position of Secretary of Commerce than the Secretary of Labor. It remains to be seen whether Eugene Scalia will adopt the spirit of the Department of Labor, or whether he will continue his efforts to challenge regulation. The latter seems likely as President Trump has
placed people into positions of power over departments which they openly disfavor or have spent time fighting against. Highlights of such nominations include nominating Sonny Perdue as the Secretary of Agriculture, Scott Pruitt as the Administrator of the EPA, or most famously, Rick Perry as the Secretary of Energy after he stated that he would abolish the Department of Energy despite being unable to recall its name.
III. The Department of Labor under Alexander Acosta Employers should not expect a major transition under Scalia as the previous Secretary of Labor, Alexander Acosta, was a President Trump nominee and decidedly conservative. Acosta had previously served on the National Labor Relations Board under the George W. Bush administration. He then worked in the Civil Rights Division of the Department of Justice before becoming a federal prosecutor. During his tenure as Secretary of Labor, Acosta proposed a cut of nearly early 80% to the funding of the International Labor Affairs Bureau, which lines up with the current administration’s trade goals and its goal of cutting regulations. The primary job of the International Labor Affairs Bureau is to combat human trafficking, child labor, and forced labor at the international level. This was met with heavy criticism because the ILAB’s duties included combatting child sex trafficking, which was at the center of the controversial plea deal Acosta gave to Jeffrey Epstein. This criticism reminded the media of that plea deal, and the following media firestorm caused him to resign. Acosta was still in the early stages of creating some changes in the Department of Labor. Before his resignation, Acosta created an
apprenticeship program, was beginning an overhaul of visa requirements, and was planning on raising the overtime threshold. However, Acosta was moving slowly in reversing President Obama’s policies in favor of pro-business policies, which is where Scalia might be different from Acosta.
IV. Effects on Employers There is no reason to expect that Scalia will roll back or alter any of Acosta’s recent initiatives or proposed initiatives. Further, it is important to remember that Scalia is replacing a fellow conservative Trump-appointee, so there should be no major or noticeable shifts. The only likely shift, which will not be a dramatic turn in policy, is that Scalia will probably work more aggressively than Acosta did on reversing Obama-era policies. Employers should expect the Department of Labor to continue to reverse course on its Obama-era policies. It is possible that Scalia will be more zealous in overturning these policies, given the cases he undertook in private practice. Importantly, at the time of writing, Scalia has not had his confirmation hearing, which may involve some theatrics regarding his career where he often faced the Department of Labor and regarding his article about sexual harassment.
Billy S. Fawcett, Attorney Martenson Hasbrouck & Simon LLP bfawcett@martensonlaw.com www.martensonlaw.com
Martenson, Hasbrouck & Simon LLP focuses its practice
ADVICE THAT WORKS.
on labor and employment defense and business litigation. Our reputation for excellence has been earned through our dedication to providing innovative solutions to the most difficult problems at an exceptional value. We have forged long-lasting relationships with our clients through our tenacity, skill, and accessibility. Based in Atlanta, in the heart of Buckhead, with two additional offices in California, we have developed a highly flexible representation model that enables us to serve clients of all sizes, across all regions of the country.
Contact Marty Martenson at (404) 909-8100
3379 Peachtree Road, NE Suite 400 Atlanta, GA 30326 martensonlaw.com
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17
ROCK YOUR
Seasonal Hiring By JOHN HAWKINS
It’s that time of year when certain industries start thinking about hiring seasonal employees. Restaurants, retail companies, hotels, ski slopes, and other organizations need more help in the winter months, especially around the holidays.
dangerous to your workplace there are many positions that those with a record could thrive in. Don’t automatically discount people who have records, especially if their crime was a long time ago or isn’t relevant to the jobs.
If you’re an HR Professional needing to hire seasonal employees, buckle your seatbelt and get ready for a wild ride. With the unemployment rate hovering under 4%, it may seem more like the Hunger Games than a hiring process!
Take Advantage of Job Boards. Strategically use technology and keywords to locate your best job candidates. The majority of people look for jobs online and this is a tactical way for you to reach applicants who you may otherwise never connect with.
How can you rock your seasonal hiring and not get stuck with, well, big duds as employees? Read on. First off, set your hiring process up for success by putting everyone involved on notice that this will take their best efforts. This means: Starting Early. The big companies are progressing with their hiring process for seasonal workers earlier than in past years, and you should, too. Identify the areas of business where you’re sure to need help and make an action plan to secure good-quality hires to fill those roles. Every day you wait is a day that other companies snap up seasonal employees, and the talent pool gets smaller. Paying Well. This year won’t be the year people will agree to work for minimum wage. Expect to pay a premium for seasonal workers who are wellqualified and experienced. An extra dollar or two an hour may be just the incentive that entices a seasonal jobseeker to accept your job over all others. Responding Fast. Be ready to make decisions fast and move candidates through the process quickly. Plan on harder-hitting interview questions and less lag time between advertising and hiring. In addition, prepare your background screening vendor that you will be hiring for seasonal workers and make it clear that, while you still want accurate and thorough screening performed, they need to return your reports as fast as possible. Don’t accept your screening partner delaying the process, which would delay you in making the candidates you want an offer. After your team’s in place and ready to roll, plan on where you’re going to look for these seasonal hires. You must: Mine Your Current Employees. Happy employees are great resources for finding other productive workers. Offer attractive incentives when a current team member refers someone to be a seasonal employee, with a bonus if you end up hiring that person. Another great place to look is your previous employee database. Quite often folks who have retired, needed a break, or took jobs that didn’t work out would be more than happy to come back on a temporary basis. Tap into Alternative Talent Pools. Our booming economy may require looking further down the path than your typical applicants. Older workers, for example, are frequently seeking part-time or temporary work to supplement their incomes. Another segment to not pass over are those who have criminal records. While you don’t want to hire someone who could be 18
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Finally, put a succinct process in place that gives you the best chance of snagging those good seasonal hires. Nail the Job Description. You’re not going to have time to mull through mountains of useless resumes of people who don’t have the experience or qualifications the position requires. Clearly describe the nature of the job, the requirements, and even the unattractive components of the job. While being brutally honest may lose some candidates on the front end, it maximizes the chances that the ones you spend valuable time interviewing are seriously interested in the position you can offer. Move Like You’re on Fire. While you’re reading this, there are companies already interviewing seasonal employees that YOU would have loved to hire. Put your plan in motion and move through it deliberately, but rapidly. Seriously, don’t dawdle or you’ll miss out on this season’s highest-qualified people and be understaffed for your big season. Communicate Clearly and Often. One of the biggest things turning today’s candidates off is that they feel out of the loop during the hiring process. Explain the timeline at the first point of contact and keep them informed at every step. Tell them when to expect a decision and let them know if that will be delayed. This way they don’t feel “ghosted” and take another job before you make an offer. Hiring is never a cake walk, and seasonal hiring poses even more challenges. This is especially true in this year’s low unemployment marketplace. By getting your plan together, rallying everyone involved, and communicating clearly with your candidates, you can woo well-qualified people who will perform well. Start today and you’ll set your company up for success during your seasonal boom.
John Hawkins Senior National Account Executive jhawkins@datafacts.com www.datafacts.com
REGISTER NOW! for the Wimberly Lawson
2019 ANNUAL LABOR & EMPLOYMENT LAW UPDATE CONFERENCE November 21 - 22, 2019 Sevierville Convention Center Wilderness at the Smokies, Sevierville TN “Just 30 minutes from downtown Knoxville!”
CONFERENCE TOPICS INCLUDE: Marijuana, CBD Oil, and Drug Testing; LGBTQ+, Religious Liberty, and Title VII; DOL Update - Including Overtime Calculations and Joint Employers; Navigating Complicated Disability Issues and the ADA; 2019 EEOC Update – Panel Discussion with EEOC and THRC Officials; “You’re Fired!” - The Right Way and the Wrong Way; The Rise of Gen-Z in the Workplace; Employment Contracts, Severance Agreements, and Class Action Waivers, Including Non-Compete and ADEA; The Incivility of Civilization and Conflict Resolution; FMLA and Leave Laws; Tips & Traps in Recruiting and Retention; Social Media in the Workplace; Nancy Drew…or Inspector Gadget? Conducting Effective Internal Investigations; The Deceptively Dangerous Fair Credit Reporting Act – Including Background Checks, etc.; FLSA: Wage & Hour Nightmare Scenarios; Immigration, E-Verify and I-9; Cyber-Security … AND MORE! Accreditations: * 8.0 Recertification credit hours for HRCI (PHR, SPHR and GPHR) and SHRM (PDCs) will be requested * 8.0 Attorney CLE credit hours for TN, GA, VA and KY will be requested
Comments from last year: “Always informative, great presentations!” “Topics are spot-on for the workplace today!” “Presenters are knowledgeable and fun!” “This Conference is one of my favorites!”
For more information, or to register: Please email Bernice Houle at bhoule@wimberlylawson.com or visit us online at www.wimberlylawson.com
Knoxville / Cookeville / Nashville / Morristown / Chattanooga www.wimberlylawson.com
WGU TENNESSEE:
Who we are, why we’re here and where we’re going By KIM ESTEP
In 2013, Gov. Bill Haslam launched his visionary Drive to 55 Initiative to equip 55% of Tennesseans with a college degree or certificate by 2025. It remains an innovative plan, and in order to achieve it, Tennessee needs innovative partners and programs. That’s where WGU Tennessee comes in. We launched on July 9, 2013, as part of Drive to 55 to help our state reach that 55% finish line by offering quality, affordable bachelor’s and master’s degrees in business, health care, IT, and education. We were created to improve the lives of Tennesseans and to bolster the economic strength of our state. It’s been six years since our launch, and we’ve seen tremendous results. We currently have enrolled more than 4,400 students and have produced nearly 4,500 graduates, with students and graduates in all 95 counties of our state. In just six years, we’ve become one of the 30 largest institutions of higher learning in a state with more than 180 universities, colleges, and trade schools – and we’re the third-largest private, nonprofit university in Tennessee.
WGU Tennessee isn’t just a university. It’s a movement, and everyone can be a part of it.
We continue to offer higher-education opportunities that meet Tennessee’s increasingly varied workforce needs. But why have we seen such rapid growth and success? What sets WGU Tennessee apart? Let’s talk briefly about three things: competency-based education, online learning, and affordability.
1. Competency-based education: Simply put, students get credit for courses when they demonstrate mastery of the material, regardless of how long it takes. If a student learns faster, they earn their degree faster. As a result, most of our students finish their degrees more quickly than they would in a traditional, credit-hour model.
2. Online learning: WGU Tennessee is 100% online. That’s right – no commutes, no room and board, no rushing across campus to your next class. Students have access to their courses 24/7 and can tailor their educational experience exactly to their lifestyles and career situations. This flexibility is one reason WGU Tennessee attracts everyone from CEOs to soldiers, to nurses, to entrepreneurs, to stay-at-home parents and teachers.
3. Affordability: Our students graduate with less debt, and that starts with low tuition – about $7,000 per year. Our Responsible Borrowing Initiative and other financial literacy resources encourage students to borrow wisely and include a personalized financial aid plan for every new student. As a result of this initiative, in only five years, WGU has reduced student loan debt by 40%, and the average debt at graduation is about $15,000 – less than half the national average. Our students report they see a return on that investment in their increased annual income within a few years of graduation. We’re charging ahead with purpose, and we’re working to expand access even further. For example, this year we’re launching a rural campaign – “Everywhere, TN” – to promote WGU Tennessee to residents in distressed counties in our state. WGU Tennessee has a unique ability to break through so many of the typical barriers faced by students and universities in rural areas. We know that there are hundreds – maybe thousands – of hardworking Tennesseans in these counties who want to earn their degree, and we know we can help make it happen. WGU Tennessee isn’t just a university. It’s a movement, and everyone can be a part of it. Our students are self-starters who buckle down and earn the degree they’ve always wanted – the one that gets them that promotion, that sense of satisfaction, that new career – and we’re with them the whole way. To learn more about WGU Tennessee and to see what programs might be right for you, visit tennessee.wgu.edu today.
Dr. Kimberly K. Estep Chancellor of WGU Tennessee Kimberly.Estep@WGU.edu www.WGU.edu 20
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EDUCATION CHANGES EVERYTHING. Higher education can be game-changing! Earn the credentials you need for the career you want. WGU offers online bachelor’s and master’s degrees designed for busy adults like you: • ACBSP-accredited business degree programs • HR program fully aligned with SHRM curriculum • Flat-rate tuition between $6,450 and $7,600 per year
Online. Nonprofit. Surprisingly affordable.
LEARN MORE tennessee.wgu.edu
Pay Equity Law
Alabama’s New
By MORGAN PIKE EPPERSON and T. SCOTT KELLY
Alabama became the 49th state to adopt equal pay legislation when Governor Kay Ivey signed the Clark Figures Equal Pay Act (CFEPA) on June 11, 2019. The CFEPA, effective September 1, 2019, prohibits an employer from paying an employee less than another employee of a different race or sex for equal work. How does the CFEPA Compare with Existing Federal Law?
The CFEPA tracks existing federal laws such as the federal Equal Pay Act (EPA) and Title VII of the Civil Rights Act, with a few key changes. Prohibition of Discrimination: The EPA prohibits an employer from paying an employee a lower wage rate than an employee of another sex for equal work in the same establishment, where job performance requires “equal skill, effort, and responsibility” and occurs “under similar working conditions.” The CFEPA adopts almost identical language, but adds “education” and “experience” to the list of job performance requirements. Race: The EPA prohibits sex-based wage discrimination, while the CFEPA prohibits both race and sex-based wage discrimination. However, the CFEPA does not provide greater protection than federal law because Title VII prohibits discrimination based on an employee’s race, color, religion, sex, or national origin. Exceptions: Both the CFEPA and the EPA identically provide that there is not violation where the employer bases the wage differential on a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or any factor other than sex or race. Wage History: The CFEPA goes further than the EPA by prohibiting an employer from refusing to “interview, hire, promote, or employ,” or retaliating against an applicant, because the applicant fails to provide wage history. Other states have completely banned wage history requests, but, federal law presently does not. The CFEPA may provide a new path to court for employees claiming discrimination for not providing wage history, and it raises the stakes for pay-history inquiries during the selection process. Pleading Standard: The CFEPA contains a heightened pleading standard for employees. Rather than merely stating a “plausible” claim, as with the EPA, employees must “plead with particularity” that (1) the employer violated the act, and (2) that the alleged wage differential is not due to one of the four permissible exceptions listed above. Alabama courts might interpret this standard to require employees to identify a 22
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comparator of a different race or gender in the complaint. Ultimately, the pleading standard’s impact will develop as litigation progresses through Alabama courts. Penalties: The CFEPA penalties are not as severe as EPA penalties, which impose criminal fines for willful violations. In contrast, an employer violating the CFEPA may be liable to the employee only for the impermissible wage difference, with interest. Notably, while Title VII has damage caps, and the EPA limits the types of damages recoverable, the CFEPA contains no damage caps. No Double Recovery: Under the CFEPA, if an employee files claims under both the EPA and the CFEPA, and recovers damages under both, then the employee must return to the employer the lesser amount recovered under either law. Recordkeeping Requirements: The CFEPA adopts federal recordkeeping requirements already established by the U.S. Department of Labor for the Fair Labor Standards Act (FLSA). Interestingly, the CFEPA does not define “employer,” but a conservative approach would be to presume coverage for all Alabama employers. The FLSA requires employers to keep certain records regarding employee pay for three years, as opposed to one year under Title VII. Statute of Limitations: Like the EPA, the CFEPA has a two-year statute of limitations, but the CFEPA does not have the EPA three-year limit for willful violations. As for Title VII compensation discrimination claims, an employee must file with the EEOC within 180 days. Before the Lily Ledbetter Fair Pay Act of 2009, the last day to file a pay claim was either two years or 180 days after the alleged discrimination for EPA and Title VII claims respectively. The Lily Ledbetter Act significantly expanded the limitations period by counting each paycheck containing discriminatory compensation as a separate violation, regardless of when the discrimination began. The CFEPA is silent on how it relates to the Lily Ledbetter Act, so it is unclear how Alabama courts will interpret the limitations period. Optimistically, Alabama courts may embrace a more conservative approach and find that the limitations period begins when the employee obtains notice of the discrimination. State Court vs Federal Court: The enactment of the CFEPA begs the question: will Alabama state court employment claims increase? A similar question arose upon adoption of the Alabama Age Discrimination in Employment Act, but an uptick in state claims never followed, presumably because of the statute’s ambiguous language. Many attorneys may not want to be the first to test an uncharted statute when the federal path is already paved. Time will tell as the CFEPA goes into effect.
Bypassing Federal Agencies: Federal law currently provides a path straight to court for compensation discrimination claims. EPA claimants can head to court without filing an EEOC charge. Moreover, while Title VII race-based claims require an initial EEOC charge, an employee can bypass the agency by filing a claim under 42 U.S.C. § 1981. Although rare, Section 1981 claims afford employees a route to federal court for race claims where the employee misses the 180-day deadline for filing an EEOC charge. Now, the CFEPA may provide a path straight to state court for race-based pay claims that would be untimely under existing federal law. How Should Alabama Employers Prepare to Comply with the CFEPA?
•C onsider avoiding wage history requests. Given that many states are banning the wage history question, and the CFEPA creates liability for wage-history discrimination, the best practice may be to avoid asking altogether, absent a compelling reason. • Establish clear and defensible compensation policies and pay practices. It is prudent periodically to review compensation policies and practices – at least annually – to ensure they are useful and that minimal deviation occurs. •C learly document compensation policies and decision-making in evaluating pay equity. Compensation decisions are challenging to defend without accurate records documenting the reasons behind compensation decisions. Consider documenting each element used to
establish compensation for a given employee, to the extent possible. Common examples of data points that are useful in explaining compensation include time in position, education level, years of relevant experience, certifications, knowledge and/or skills, and applicant salary requirements/negotiations (when the applicant offers the information). •M aintain written, specific, and current information on job content, skill levels, essential functions, performance requirements, reporting structure, etc. Although not required, job descriptions outlining the position’s required or preferred knowledge, skills, and abilities are useful in establishing and justifying the salary of new and current employees. •C onsider conducting a proactive, privileged and voluntary analysis of compensation as a first step to limit legal risk. But do so with the assistance of an attorney, and an appropriate subject matter expert, such as a labor economist.
Morgan Pike Epperson, Associate Ogletree Deakins Birmingham Morgan.Epperson@ogletreedeakins.com www.oglegtreedeakins.com
T. Scott Kelly, Shareholder Ogletree Deakins Birmingham Scott.Kelly@ogletreedeakins.com www.ogletreedeakins.com
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23
Know Your
Money: Driving Results Through Financial Wellness
By AUSTIN BAKER
According to a recent Prudential report, 75% of employees say they see their employer as a trusted source of help, and approximately 60% say they are more committed and productive at work when their employer demonstrates a commitment to employees’ financial wellness. Over 50% of employers offer some sort of financial wellness program, and both employers and employees report a higher level of satisfaction with their benefit plans when a financial wellness program is offered. It turns out, offering financial wellness programs, along with health and wellness benefits, may help employees to be healthier overall. Financial wellness benefits may be more popular than employers and benefit advisers think. In fact, it’s not inconceivable that employees will come to expect financial wellness benefits the same way they’ve come to expect health insurance and retirement savings accounts. Increasingly your employees are needing a broader set of tools and solutions that aren’t just focused on retirement savings, but also the day-to-day money challenges that get in the way of financial fitness.
The Need A survey of 1,500 401(k) plan participants found that participants under the age of 40 are markedly more concerned about student loan debt. Those between the ages of 30 and 49 are most stressed about saving for retirement, while those 50 and older are most focused on health care expenses. Those with less than $100,000 in investable assets are more likely to cite lack of emergency savings and credit card debt as a financial concern compared to their more affluent peers. Women say their top stressor is retirement savings, and men say it is health care expenses.
Detriments Money stresses, as many benefit managers know, can lead to health problems and a lack of productivity in the workforce. According to the Prudential report, 40% of workers had health issues or lost sleep due to financial stress, leading to an average annual increase in healthcare costs of $400 per employee. Three in ten employees say financial stress impacts their job performance and the average employee spent 3.6 hours per week managing personal finance issues at work. All this creates a deep need for guidance and assistance in coping with financial stress and managing their affairs to minimize the stress. The two times consumers most want financial help or guidance are: • When facing a major financial decision, such as buying a home or determining how to save or invest. • Dealing with a financial crisis, such as debt problems, unexpected expenses, loss of income or employment, and lack of financial liquidity.
Financial Wellness As Emerging Benefit Options Many companies have begun seeing success from offering financial wellness benefits, which educate their employees and use behavioral science to nudge them towards better financial habits. These benefits, which include programs like personalized financial advising and low-cost, easy-to-use 401(k)s, go a long way towards alleviating financial stress and setting employees up for a brighter financial future. Financial wellness programs help decrease healthcare costs , decrease absenteeism, and increase worker productivity and morale. The first step is to figure out how you can leverage the resources you already have — especially in the healthcare and retirement savings areas — into more comprehensive well-being programs. Then, employers can identify the needs of the workforce and determine how to augment and add programs for more targeted financial wellness benefits. Studies noted correlations for success of these programs was directly in line with the employees’ desire to deal with human advisors, but with an important caveat - “access to unbiased counselors.” 27% of the sample has that preference. This was the top answer among Gen Xers (30%) and Baby Boomers (28%), though the leading choice among Millennials (37%) is a student loan repayment benefit. Millennials are concerned that unless a counselor is unaffiliated, their “advice” may just be the entrée to refinancing student debt.
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The Benefits of Financial Wellness Programs Attract & Retain Employees According to a study by MetLife, when financial planning programs are offered, 51% of employees are more likely to accept a job with a new employer, while 53% would be more loyal to their current employer. Improved Engagement According to the Financial Fitness Group, for every 100 employees, your company loses 22.5 workdays per year due to financial distress. Lowered Healthcare Premiums Financial stress increases heart rate and blood pressure, it also can suppress memory, concentration and metabolism. This, in turn, can increase the risk of heart disease, stroke, digestive problems, weight gain, and more. Studies have uncovered companies saving as much as 21.57% on healthcare costs for heavy users of financial wellness programs. Retirement Planning By putting employees in a position to participate in retirement programs such as a 401(k), your company stands to significantly reduce costs. In fact, according to one model, having employees retire in a timely manner can save you $596 per employee in the first year, and more in successive years.
Conclusion Financial stress is a major problem in today’s society. Not only does it significantly hamper your employees’ happiness, but it’s also hurting your company’s bottom line. Which is to say, your employees and your company are in this together. Financial wellness is more than educating plan participants. It is taking financial education to the next level to help plan participants fully meet current and ongoing financial obligations, feel secure in their financial future, and be able to make choices that allow enjoyment of life.
Austin Baker, President HRO-Partners
Austin Baker is the President of HRO Partners, a human resources consulting and benefit administration and enrollment firm as well as a National Enrollment Partner Member representing the largest boutique, full service insurance and enrollment firms in the country. A veteran of more than 16 years in the human resources and insurance & benefits industry, Baker is responsible for managing a multifaceted human resources consulting company with public workforce programs and services focused on companies in the southeastern United States. Austin is a frequent speaker on a variety of leadership and benefit topics representing thought leadership and innovative practices in the HR industry. For more information, call Baker at 1-866-822-0123, visit www.hro-partners.com or connect with the company at www.facebook.com/ hropartners, www.linkedin.com/in/jaustinbaker or twitter.com/jaustinbaker. hro-partners.com company/hro-partners
hropartners @hropartners
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25
From Facebook to FMLA to Furry Friends
— Frequently Asked Questions in Employment Law
BY EMILY MASSEY
The questions we receive as labor and employment attorneys vary based on many factors such as organizational changes a business is experiencing, new laws or regulations that affect employer obligations, and certain trends in society or workplace culture. Some questions, however, are common despite these factors due to unique situations that arise, such as when dealing with ADA or FMLA issues. Here are three of the most common questions that have come up over the past year.
1. Can we discipline or terminate an employee who posted negative comments about the company online? News travels fast, but bad news travels even faster. We often receive calls from clients and potential clients about how to address situations with employees who post negative content on social media. Navigating these situations is, of course, dependent upon the nature of the comment. The key legal requirement that employers must keep top of mind is the National Labor Relations Act ("NLRA"), which protects employees' rights to discuss the terms and conditions of their employment, including wages, benefits, and disciplinary action. The NLRA prohibits employers from retaliating against employees for engaging in this "protected concerted activity," which can include posting online about an employee's, or their coworker's, terms and conditions of employment. Discipline and/or termination from employment based on an employee's use of social media, such as Facebook, may result in a charge being filed with the National Labor Relations Board (the regulatory body that enforces the NLRA). As such, employers should consult legal counsel before taking any type of disciplinary action against an employee related to social media or online posts. Until this type of situation arises, employers can take several steps to stay ahead of the potential problem: • Develop clear policies and appropriate standards on social media use in the workplace. Note that these policies cannot include a broad nondisparagement requirement, which would, by itself, run afoul of the NLRA. Instead, carefully crafted and legally compliant social media policies can help set expectations with employees without infringing on their legal rights. • Educate employees on social media use through new hire or other training. • Train management-level employees on the appropriate steps to take when they hear of unpleasant social media posts. Managers must avoid an immediate reaction, which could result in unlawful action, and instead should immediately contact Human Resources or the appropriate internal resource who will help evaluate the appropriate, legally-compliant action. 26
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2. Can we terminate an employee when he or she does not return from FMLA leave? Employers also are hesitant, and rightfully so, in what actions to take when an employee does not return from FMLA leave when expected. Again, the answer to this question heavily depends on the specific facts related to the employee. Under the Family Medical Leave Act ("FMLA"), qualified employees are eligible for up to 12 weeks of job-protected leave within a 12-month period. If an employee does not return to work once his or her FMLA leave is exhausted, the employer should consider several factors before pursuing termination of employment. At the outset, the employer must determine whether the employee's request to remain out of work is a request for an accommodation under the Americans with Disabilities Act ("ADA"). This will involve outreach to the employee and a request for medical certification so that the employer can determine whether a reasonable accommodation, such as continued leave, is available. Requests for discrete time periods of leave are typically considered reasonable accommodations under the ADA; however, the employer is not required to accommodate the leave under the ADA if it presents an undue hardship, such as when the leave is open-ended with no set duration. This requires a careful analysis, and it is recommended that the employer consults with legal counsel prior to making the decision to grant or deny the requested leave accommodation. Alternatively, if the employee desires to stay out of work beyond approved FMLA and it is not for disability or medical purposes, then the employer must consider whether it has allowed similar types of leave in the past. For example, if an employer has an unpaid leave of absence policy and has previously provided other employees with such leave, the employer must ensure it applies the policy consistently among employees. Otherwise, the employee requesting leave beyond FMLA could allege that he or she is being treated differently based upon membership in a protected class. Of course, other considerations will depend on the particular situation, but the following are a few steps employers can take to stay ahead of this issue: • Develop clear policies for how the employer complies with FMLA and ADA requirements. If the employer chooses to provide paid time off or other leaves of absences, these policies must also be clear and describe how they interact with other types of leave. • Apply the policies as written and consistently among all employees. This includes ensuring that managers are trained to adhere to any approval process the employer has put in place, instead of arbitrarily granting or denying leave requests. • Communicate in writing with employees who take extended leave under the FMLA, ADA, or any leave of absence to ensure both the employer and employee understand expectations, such as payment of benefits and returnto-work timing.
3. What do I do if an employee brings an animal into the workplace? A manager calls Human Resources stating that an employee brought a dog into the office and, while the dog is not bothering anyone at the moment, the manager is unsure what to do. How should Human Resources advise the manager?
First, since the dog was brought into the office, Title I of the ADA permits the manager to ask the employee whether the employee is a service animal or a pet. If the latter, then the employer needs to have a clear policy on whether pets are allowed in the workplace, and apply that policy consistently to all employees. If the former, and the employee states he or she needs a service animal, then the manager must engage in the interactive process under the ADA. As briefly described above, this will involve seeking appropriate medical documentation and evaluating whether the employer can accommodate the request without creating an undue hardship to the employer. Generally speaking, service animals typically will be viewed as a reasonable accommodation under the ADA in the employment context. However, some confuse ADA requirements concerning service animals in the workplace as compared to service animals in places of public accommodation. For example, if the employer operates a place of public accommodation, such as a restaurant, it must train its employees on Title III of the ADA, which allows service animals to come into any such public place. If an employee is unsure whether an animal meets the definition of a service animal, the ADA allows the employee to ask the patron only two questions: (1) Is the animal a service animal required because of a disability? (2) What work or task has the animal been trained to perform? At no time can the employee ask the patron about his or her disability, or require showing of any documentation as proof of the animal's training. In the workplace, however, Title I of the ADA permits and actually requires the employer to engage in the interactive process with the employee to determine whether the animal will enable the employee to perform his or her job duties and whether that accommodation (i.e., allowing the animal to be in the workplace) can be provided without undue hardship to the employer. Best practices in dealing with service animals include: • Develop a clear policy (yes, again!) on whether pets are allowed in the workplace. • Train management-level employees on the appropriate steps to take under the ADA when they learn that an employee requests the use of a service animal. • If the employer operates a place of public accommodation, train all employees on Title III of the ADA and the very limited exceptions of how they can approach a patron with an animal.
SHRM-Memphis | ATD Joint Meeting University of Memphis Holiday Inn August 20
Dr. Kurt Kraiger, professor and Chair of the University of Memphis Department of Management, was the speaker at the SHRMMemphis | ATD Joint Meeting on August 20 at the University of Memphis Holiday Inn. His topic was “The Science of Mentoring: Best Practices for Organizations and Mentoring.”
SHRM-Memphis Board of Directors
Conclusion, with a Caveat My explanations of these three questions do not take into consideration other complications that often factor into an employer's dilemma. For example, what if the employee in those scenarios had recently filed a complaint with Human Resources about harassment? This would likely change the entire analysis. Even though the employer may have the intent to address the issue at hand, such as whether to grant a request for accommodation, the employer's action could instead be considered retaliation in response to the employee's complaint. Therefore, seeking legal counsel in any of these situations is an employer's best first step.
Emily Massey, Attorney Ward and Smith, P.A. egmassey@wardandsmith.com www.WardandSmith.com
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The ACA Fight Continues!
Will Texas v. U.S. Deliver the Knockout Punch? A very important decision rests in the hands of the United States Fifth Circuit Court of Appeal. On July 9, a 3-judge panel heard 90 minutes of oral argument in Texas v. U.S., the Affordable Care Act (ACA) case that could declare the entire ACA unconstitutional! To better understand Texas v. U.S., it’s helpful to take a look back at some of the related match-ups. Round 1 – National Federation of Independent Business v. Sebelius Texas v. U.S. isn’t the ACA’s first step into the constitutionality ring! In 2012, the United States Supreme Court upheld the constitutionality of the individual mandate, the ACA provision requiring Americans to purchase health insurance or pay a tax penalty. States that challenged the ACA argued that the individual mandate was an overreach of Congress’s power to regulate certain economic activity between the states, known as the Commerce Clause. The Court agreed that the individual mandate was not within Congress’s commerce power, but found the individual mandate to be constitutional because the penalty attached to it was a tax, and not a criminal punishment for an illegal action. Thus, the ACA was found to be constitutional under Congress’s power to tax.
mandate is too integrally intertwined with the rest of the ACA to be severed, relying on the fact that Congress called the individual mandate “essential” to the ACA and necessary to cover the cost of U.S. health care. And if the individual mandate is unconstitutional, the entire ACA is unconstitutional! Soon after, the district court issued a stay on the ruling and allowing all provisions of the ACA to remain in place pending the appellate court’s decision. Round 3 goes to the ACA’s opponents! Round 4 – The Fifth Circuit Arguments - the Main Event! Seventeen states have joined Texas, along with two individual Texans and the Department of Justice (DOJ), in the argument to invalidate the entire ACA. There are 21 states led by California and joined by the U. S House of Representatives defending the ACA.
Round 3 – Texas v. U.S. - District Court ruling
It’s worth mentioning that the DOJ is dancing all over the ring in this fight! Prior to Texas vs. U.S., the DOJ’s position was that the ACA is the law of the land and should be upheld. Later, while it supported the Texas plaintiffs at the district court level, it did not advocate striking down the entire ACA as unconstitutional. Instead, the DOJ only requested that the court invalidate the individual mandate and the ACA’s provisions on guaranteed issue, community rating, ban on preexisting condition exclusions, and discrimination based on health status. Prior to appeal, the DOJ feinted again and filed a two-sentence letter stating unequivocally that it now seeks to have the Fifth Circuit affirm the district court’s decision and invalidate the entire ACA. But at the appellate level, the DOJ argued that certain provisions of the law should survive, or even more puzzling, that possibly all provisions should be struck down in only the states that joined the original challenge, but the ACA should intact remain in the states that are defending the law.
On December 14, 2018, a Texas federal district court ruled that the entire ACA is invalid due to the elimination of the individual mandate. The court agreed with the plaintiffs’ arguments that without a tax penalty, the individual mandate is now unconstitutional. Further, the district court found that the individual
The appellate court asked the parties to address three main questions: (1) whether the parties have standing to argue these issues before the court; (2) whether the individual mandate is constitutional without the tax penalty; and (3) if the answer to (2) is ‘no’, whether that makes the entire ACA unconstitutional.
Round 1 goes to the ACA! Round 2 – The Tax Cuts and Jobs Act (TCJA) In December 2017, following numerous unsuccessful attempts to repeal the ACA, the Trump Administration passed the Tax Cuts and Jobs Act (TCJA) and dealt a serious blow to the ACA. The TCJA reduced the tax penalty of the individual mandate to zero dollars beginning January 1, 2019, effectively eliminating the individual mandate provision. Round 2 goes to the ACA’s opponents!
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By LAURA K. CLAYMAN
Will this be a knock out? The Fifth Circuit did not give a clear indication of which way it was leaning during the argument. Instead, the judges asked a great many questions - some relating to the question of standing (did the ACA defenders suffer a concrete injury that a ruling in their favor would redress), whether Congress intended for the ACA to exist without the individual mandate, and whether Congress could remedy this situation by writing a new health law. The Fifth Circuit indicated that a ruling would likely come in early fall. If the court upholds the district court decision, the case will likely go to the Supreme Court. It’s not as clear if the Supreme Court will take up the case if the court overturns the ruling and declares the ACA constitutional. If the ruling is allowed to stand, the consequences are more significant than some realize. The individual mandate and accompanying employer mandates would be eliminated, but the following provisions would also cease to exist: • Requirement for children to be allowed on their parents’ plan up to age 26; • Subsidies in the Health Insurance Marketplaces – and even the Marketplaces themselves; • Federal subsidized Medicaid expansion; • Protections for pre-existing conditions; • Limitations on waiting periods; • Prohibition on annual or lifetime limits of available coverage; and • Required coverage of preventive services with no cost sharing. And of course, eliminating the ACA means that millions of Americans could lose health care coverage. While we waiting for the final bell to ring on Texas v. U.S., the ACA remains in place and the only certainty is that the healthcare fight still rages on.
Laura K. Clayman, JD, SHRM-CP McGriff Insurance Services ERISA & Employee Benefits Compliance Officer
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A Preview of the 2019-2020 U.S. Supreme Court Employment Law Cases By MATTHEW R. COURTNER
The Supreme Court’s new term begins on October 7, 2019. The Supreme Court has already granted certiorari in several employment law cases. In this article, we will briefly review the cases the Supreme Court will consider. Title VII – The meaning of “sex” As you well know, Title VII of the Civil Rights Act of 1964 prohibits discrimination because of, among other things, an individual’s sex. 42 U.S.C. § 2000e-2(a)(1) (2019). In recent years, several federal appellate courts have considered whether the term “sex” includes sexual orientation and have reached differing conclusions. For example, the Seventh Circuit concluded that “sex” includes sexual orientation. See Hively v. Ivy Tech Comm. College of Indiana, 853 F.3d 339 (7th Cir. 2017). In contrast, the Eleventh Circuit concluded that Title VII does not prohibit discrimination based on sexual orientation. See Evans v. Georgia Regional Hosp., 850 F.3d 1248 (11th Cir. 2017). The Supreme Court has previously declined to consider whether the term “sex” prohibited discrimination based on sexual orientation. For example, the Supreme Court denied certiorari in the Evans cases. Evans v. Georgia Regional Hosp., 138 S. Ct. 557 (2017). However, with the split of authority between the Seventh and Eleventh Circuits, on April 22, 2019, the Supreme Court granted certiorari in three cases to determine whether “sex” includes sexual orientation or gender identity. Altitude Exp., Inc. v. Zarda, 139 S. Ct. 1599 (2019); Bostock v. Clayton Cnty., Ga., 139 S. Ct. 1599 (2019); and R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C., 139 S. Ct. 1599 (2019). As of now, this is probably the most significant employment law issue that the Supreme Court will decide in its next term. In Altitude Exp., Inc. v. Zarda, Donald Zarda, “a gay man,” was a skydiving instructor for Altitude Express. Zarda v. Altitude Exp., Inc., 883 F.3d 100, 108 (2d Cir. 2018). After receiving a complaint from a customer that Zarda had inappropriately touched her, Altitude Express terminated Zarda. Id. at 108-09. Zarda then sued alleging that Altitude Express terminated him in violation of Title VII “because he failed to conform to male sex stereotypes by referring to his sexual orientation.” Id. at 107. 30
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In Bostock, the County employed Gerald Bostock, “a gay male,” as the Child Welfare Services Coordinator; Bostock was responsible for the County’s CASA program. Bostock v. Clayton Cnty., 2017 WL 4456898, at *1 (N.D. Ga. July 21, 2017). Bostock joined a “gay recreational softball league” and “actively promoted Clayton County CASA to league members as a good volunteer opportunity.” Id. Persons with influence with the County’s decision-makers allegedly “openly criticized” Bostock because of his sexual orientation. Id. The County later decided to audit the CASA funds that Bostock managed. Id. The County then terminated Bostock “for conduct unbecoming one of its employees.” Id. Bostock alleged that the County discriminated against him in violation of Title VII for failing “to conform to a gender stereotype.” Id. at *2. In R.G. & G.R. Funeral Homes, Aimee Stephens “was born biologically male.” E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 566 (6th Cir. 2018). While presenting as a man, Stephens was the funeral director at R.G. & G.R. Harris Funeral Home. Id. The funeral home terminated Stephens shortly after Stephens told the owner that she “intended to transition from male to female and would represent herself and dress as a woman while at work.” Id. Additionally, the funeral home had a policy of providing clothing to male employees, but not to female employees. Id. Upon learning of this policy, the E.E.O.C. took over Stephens’s case and sued the funeral home, alleging discrimination in violation of Title VII by terminating Stephens “on the basis of her transgender or transitioning status and her refusal to conform to sex-based stereotypes” and “administering a discriminatoryclothing-allowance policy.” Id. at 566-67. The Supreme Court has consolidated the Altitude Exp. and Bostock cases and will hear oral arguments on October 8, 2019. In these consolidated cases, the Court will decide whether Title VII’s ban on employment discrimination because of “sex” applies to discrimination based on
sexual orientation. The Court will also hear oral arguments in the R.G. & G.R. Harris Funeral Homes case on October 8, 2019. The Court will decide whether Title VII’s ban on employment discrimination because of “sex” applies to discrimination based on gender identity. Former Justice Anthony Kennedy was often the swing vote in cases decided along party lines, including cases involving gay rights. However, Justice Kennedy retired in 2018 and was replaced by Justice Brett Kavanaugh, who many legal scholars consider more reliably conservative than Kennedy. It is thus expected that the case will be decided on a 5-4 vote in favor of “sex” not including sexual orientation or gender identity. If that is the outcome, it would then be up to Congress to pass a law amending Title VII to include sexual orientation and gender identity as a protected class.
Age Discrimination in Employment Act Causation Standard for Federal-Sector Claims The ADEA prohibits age discrimination against federal employees. Specifically, under the ADEA, “[a]ll personnel actions affecting [federal] employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a) (2018). In Babb v. Secretary, Department of Veterans Affairs, Noris Babb, a pharmacist at a VA Medical Center in Florida, alleged that her supervisors discriminated against her because of her age. Babb v. Secretary, Department of Veterans Affairs, 743 Fed. App’x 280, 282 (11th Cir. 2018). On June 28, 2019, the Supreme Court granted certiorari to decide the applicable causation standard for a federal-sector age discrimination claim. Babb v. Wilkie, - - S. Ct. - -, 2019 WL 145517 (2019).
The Supreme Court has already decided the causation standard for private-sector employees. Specifically, the Supreme Court concluded that “because of age” in the private-sector statute means “that age was the ‘reason’ that the employer decided to act.” Gross v. FBL Fin. Serv., Inc., 557 U.S. 167, 176 (2009). Therefore, the Court held that the plaintiff “must prove that age was the ‘but-for’ cause of the employer’s adverse decision.” Id. In Babb’s case, the district court and the Eleventh Circuit concluded that the Supreme Court’s decision in Gross precluded an application of a motivating factor standard. Babb, 743 Fed. App’x at 287. However, the language of the federal-sector statute and the private-sector statute are slightly different. Compare 29 U.S.C. § 633a(a) with 29 U.S.C. § 623(a). The Seventh Circuit has observed that “[w]hether the difference in statutory language is enough to distinguish Gross is a close and difficult question.” Reynolds v. Tangherlini, 737 F.3d 1093, 1104 (7th Cir. 2013). The Ninth Circuit has agreed with the Eleventh Circuit that but-for causation is required, but the D.C. Circuit has disagreed, applying a motivating factor analysis. Shelley v. Geren, 666 F.3d 599 (9th Cir. 2012); Ford v. Mabus, 629 F.3d 198 (D.C. 2010). Thus, the Supreme Court will resolve this split of authority and decide whether federal-sector employees must prove that age was the but-for cause of the adverse employment action. Employers should be on the lookout for the Supreme Court’s decision in these cases.
Matthew R. Courtner, Attorney Rainey, Kizer, Reviere & Bell, PLC mcourtner@raineykizer.com www.raineykizer.com
@WLJEmployment
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Compensability of Overnight Travel Time By JOSEPH R. WARD III
T
he Fair Labor Standards Act (FLSA)
has many nuances that can create legal pitfalls for employers who, through no fault of their own, are unfamiliar with each and every one of its intricate
requirements. One such area is the compensability of a non-exempt employee’s time spent traveling to a location that requires an overnight stay away from his or her home. As a general matter, the FLSA requires employers to pay non-exempt employees for their time spent working. While the FLSA does not explicitly define what constitutes “work,” the Portal-to-Portal Act provides that employers do not need to compensate employees for traveling to and from the actual place of work performance and the employee’s home, and FLSA regulations reiterate that normal travel from home to work is not compensable work time. Thus, these standards make clear that compensable work time generally does not include time spent commuting to or from work.
However, compensation for a non-exempt employee’s travel time that requires an overnight stay is subject to a different FLSA regulation that provides an employee’s time spent driving to a location that keeps the employee away from home overnight is compensable when it cuts across the employee's workday or the employee's regular working hours on nonworking days. The Regulation provides as follows: Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee's workday. The employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on nonworking days. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday the travel time during these hours is worktime on Saturday and Sunday as well as on the other days. Regular meal period time is not counted. As an enforcement policy the Divisions will not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile. 29 C.F.R. § 785.39.
Travel away from home is clearly worktime when it cuts across the employee's workday. The employee is simply substituting travel for other duties.
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Imagine that Pete, an hourly employee who regularly works 9 a.m. to 5 p.m., Monday through Friday, leaves work on Friday afternoon at 2 p.m. and drives three hours away from his home community to the location of a training seminar to be held the following day from 9 a.m. to 4 p.m. Immediately following the training seminar, Pete drives the three hours back to his home. Under this scenario, Pete must be compensated for the three hours he spent driving on Friday afternoon and for the one hour he spent driving between 4 p.m. and 5 p.m. on Saturday (whether the time spent at the training seminar is compensable is an issue for another day and the issue is subject to different regulations
focused on not only whether the training was during Pete’s normal hours, but also whether it was job-related, voluntary, and if other work is performed concurrently). What’s more, if Pete had worked a full week leading up to the training seminar, that hour from 4 p.m. to 5 p.m. driving on Saturday would constitute overtime and, therefore, it must be paid at time and one half. While the basic principle is fairly comprehensible, whether travel time should be compensated becomes less clear when the travel time between an employee’s home and the job site is arguably drivable immediately before and after the employee’s shift. For example, it seems objectively reasonable for an employee to drive one hour each way to and from work and less realistic when the travel time is two or more hours each way. In other words, there is room for interpretation as to the threshold amount of time needed to travel away from home to consider it “overnight” travel. The issue becomes even murkier when the non-exempt employee regularly works on jobsites away from their home community for long durations and voluntarily travels to and from his home on his days off rather than staying at the project location. So, if our hypothetical employee Pete is assigned to a worksite three hours away from his home and he travels back and forth on the weekends, there is a possibility that the voluntary travel time would be considered compensable if it occurred during normal work hours. Thus, the employer would be responsible for paying Pete for any hours that he traveled between 9 a.m. and 5 p.m. despite the fact that such travel time was voluntarily undertaken by Pete with no ostensible benefit to his employer.
In determining the issue of whether voluntary overnight travel is compensable, courts analyze whether the employer offered to pay the employee’s living expenses while at remote work sites on nonworking days and whether the employee was aware of that option. If such an option exists and was made known to the employee, then the travel time spent driving to and from remote work sites could only be classified as “voluntary” and, therefore, non-compensable. If, however, the employer did not offer a per diem or stipend to its employees for nonworking days, or if such a policy existed but was never made known to employees, the employee may be entitled to compensation for the “required” travel time home. In practical terms, employers should consider the most effective and efficient means of tracking their employees’ overnight travel time (a practice that in and of itself may present logistical issues) and develop policies that cover such situations including, for example, setting a lower rate of pay for overnight travel time. Of course, any such policies must also comply with minimum wage laws as well as any applicable state laws related to the sufficiency of notice that must be provided to employees prior to changing their rate of compensation.
Joseph R. Ward III, Attorney The Kullman Firm Denver jrw@kullmanlaw.com www.kullmanlaw.com
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5 MYTHS about benefits enrollment Help your employees by busting these benefits myths By SHANE DAVISON, JIMMY HINTON, and WES HUDNALL
The saying “You don’t know what you don’t know” can apply to a lot of things in life — including employee benefits. And when both you and your employees fall into this trap, that can lead to a benefits program that’s not valued, utilized or cost-effective. You can create a stronger benefits program that makes you more competitive by erasing some common myths you might believe. Myth #1: My employees understand the benefits available to them. Reality: Only a third of employees understand their benefits very well, according to a 2019 Colonial Life survey of 1,500 full-time U.S. employees. And employees who don’t understand their benefits don’t value them, or the significant investment their employer makes in them. This can lead to major problems, because lack of engagement with the benefits program leads to lower morale and higher turnover, the survey showed. Employees who spend less than an hour considering their benefits at enrollment time are significantly more likely to: • Feel dissatisfied in their jobs • Think their employer doesn’t care about them • Leave their current jobs within the next six months You know it can cost thousands of dollars to recruit, hire and train a new employee, and you will quickly see the impact on the bottom line when employees don’t understand their benefits.
employee benefits at enrollment time, according the survey. That doesn’t mean they don’t have questions and want help figuring out their needs and benefits options — rather, it means most employees want to talk with a live human being. In fact, more than three-fourths of employees in the survey said they turn to other people, such as their HR department, coworkers, family members and friends, for advice. Yet that strategy may not be effective. The survey showed only 40% of employees named HR professionals as their go-to source to learn about benefits – with older employees more likely to do so than younger employees. While more people turn to HR professionals than any other source, it still means the majority of employees aren’t taking advantage of the most knowledgeable resource. And understaffed, overburdened HR staff may not have the time and expertise to help employees determine their individual needs and understand the types of coverage that best meet those needs. The result is an even wider gap in benefits education for millions of America’s workers. Myth #4: Individual meetings aren’t necessary to communicate my benefits. Reality: Research shows one-to-one sessions are the most effective benefits education technique. According to the survey, virtually all — 93%— of employees who’ve participated in one-to-one benefits counseling sessions found them valuable. Yet only 15% of employees are offered this kind of personalized benefits enrollment experience. The reason why may reveal other myths: It’s too expensive, or my company is too small to benefit from or qualify for this kind of service. The truth is this kind of personal support isn’t available just to large employers with bigger budgets. A top-tier benefits partner will communicate with employees individually in all accounts to ensure they understand all of your benefits — not just those the provider offers — as part of their included services at no direct charge. Myth #5: The core benefits I offer my employees are enough. Reality: If you aren’t offering a comprehensive benefits package that includes core benefits such as major medical as well as voluntary benefits such as dental, vision, life, disability and critical illness coverage, you’re not going to be competitive when it comes to attracting and keeping top talent. A 2018 Willis Towers Watson survey (“2018 Emerging Trends: Voluntary Benefits and Services Survey”) showed the vast majority — 79% — of employers offer voluntary benefits to enrich existing core benefits and offer more personalized options.
Myth 2: My employees take the time needed to research their benefits. Reality: Unfortunately, this isn’t true, either. In fact, 69% of employees spend an hour or less considering their benefits annually, according to the survey. Even worse, a third say they spend less than 30 minutes learning about benefits their employer provides. It’s not enough to simply offer a comprehensive, competitive benefits package. To make that investment pay off, the benefits program must be backed by an equally comprehensive education and communication program. Better education drives greater engagement — and higher participation levels that help your business succeed, too. An effective benefits communication plan will reach employees and allow them to access information when and where they want, and may include group and individual meetings, call centers and online chats, website or portals, and print and digital materials offered over a period of several weeks. Myth #3: My millennial employees prefer to research their benefits online. Reality: Only 10% of millennials turn to the Internet to learn about 34
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What’s not a myth: You don’t have to be an expert in voluntary benefits, communication and enrollment to provide your employees with effective solutions. Take advantage of benefits partners with the expertise you need. Look for a partner that can provide both a wide array of voluntary benefits and the experienced, licensed, knowledgeable benefits counselors to communicate and enroll them.
Shane Davison Tennessee Territory Sales Manager Colonial Life & Accident Insurance Company sdavison@coloniallife.com or 615-696-6670
Jimmy Hinton Mississippi Territory Sales Manager Colonial Life & Accident Insurance Company jhhinton@coloniallife.com or 601-326-2954
Wes Hudnall Arkansas Territory Sales Manager Colonial Life & Accident Insurance Company whudnall@coloniallife.com or 501-246-8979
Committed to our customers — and our communities We offer our insurance benefits to every worker with a family and future to protect. And a helping hand to the communities where we work and live. See what we can offer you.
ColonialLife.com ACCIDENT CANCER CRITICAL ILLNESS DISABILITY DENTAL LIFE HOSPITAL INDEMNITY Insurance plans are underwritten by Colonial Life & Accident Insurance Company, Columbia, SC. ©2018 Colonial Life & Accident Insurance Company. All rights reserved. Colonial Life is a registered trademark and marketing brand of Colonial Life & Accident Insurance Company. 10-18 | AD-104
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Emerge as an expert in HR with a master’s degree from Roosevelt University’s Heller College of Business. Our Master of Science in Human Resource Management program prepares students to develop and implement innovative practices in a variety of roles, whether working in a Fortune 500 company or a small business. Small classes led by Chicago’s leading industry professionals guarantee you the personalized and professional mentorship you need to excel. Ready to make a difference? Your journey starts here. Program Features ✓ Evening Courses ✓ Chicago Campus ✓ Schaumburg Campus ✓ Competitive Tuition Rates
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Congratulations to These Certified HR Professionals!
T. LaShay Crosby, MBA, SHRM-SCP, SPHR, is Corporate Human Resource Manager/Generalist with Rooms to Go in the Greater Atlanta Area. LaShay is a member of Mid-Florida SHRM. LaShay received a B.S. from the University of Southern Mississippi and an MBA from the Keller Graduate School of Management of DeVry University. LaShay is a graduate of both our Online HRCI Certification Exam Prep Class and our Online SHRM Certification Exam Prep Classes. She received her SPHR in December 2018 and her SHRM-SCP in May 2019.
ale Clinton, PHR, is an HR Business Partner with D Arkansas Blue Cross Blue Shield in Little Rock. Dale attended the University of Memphis and is currently President of the Central Arkansas Human Resource Association in Little Rock. Dale is a graduate of our Online Certification Exam Prep Class and received his PHR in August 2018.
Morgan Hicks, PHR, is a Human Resources Solutions Partner at Source Pointe in Birmingham, AL. Morgan received a B.A., Organizational Communication, from the University of Alabama at Birmingham in 2016. Morgan is a graduate of our Online HRCI Certification Exam Prep Class and received her PHR in August 2019.
Kelly Brennan, SHRM-CP, is HR Director at Hilton Knoxville. She received an AAS in Business Administration from Dutchess Community and attended the University of Tennessee-Knoxville. Kelly is a graduate of our Online SHRM Certification Exam Prep Class and received her SHRM-CP in February 2019.
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Our next Online SHRM Certification Exam Prep Class will begin October 2. The deadline to register is September 25. See Page 49 for details. You may register on our website at www.hrprofessionalsmagazine.com
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39
Further Update on Arbitration Agreements in
Kentucky
By JAY INMAN
Kentucky continues to be a site of active litigation regarding the enforceability of arbitration agreements. While employers should hold the course with existing arbitration agreements, it is important for HR professionals to keep a close eye on the enforceability landscape, as more activity unfolds. As readers know, arbitration agreements have been put in place in many workplaces in Kentucky and, more generally, the United States, and the impact of this practice has been hotly disputed. While misinformation about arbitration contends the process to be more employer-friendly that litigation – largely because class-action waivers are enforceable in arbitration agreements – research further contradicts and refutes this myth. In fact, a May 2019 empirical study published by the United States Chamber of Commerce analyzing more than 10,000 employment arbitrations and over 90,000 employment lawsuits concluded that as many disputes resolve by settlement agreement in arbitration as in litigation. The process is quicker (569 days in arbitration on average versus 665 days in litigation), and in arbitration, employers are more likely to prevail and to receive higher monetary awards. Thus, when so many employees and former employees challenge arbitration agreements today, they may well be shooting themselves in the foot, rather than standing up for justice. In Kentucky, earlier this year, the Kentucky legislature recognized the importance of arbitration agreements to the broader business community and passed Senate Bill 7, which the Governor signed into law. That new law amended KRS § 336.070, which the Kentucky Supreme Court held in the fall of 2018 in Northern Kentucky Area Development District v. Snyder to bar at least government employers – and, based on the Court’s broad language, potentially private employers – from conditioning employment on assent to arbitration agreements. The amendments emphasized that employers may condition employment on assent, after all, and included a retroactivity provision designed to make the Snyder decision moot. Additionally, the amendments set out that employees and employers may agree that the applicable statutes of limitation for claims may be reduced by up to 50% -- for example, the five-year statute of limitations for Kentucky Civil Rights Act claims can be reduced to 2.5 years. 40
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Since the amendments to KRS § 336.070 were signed into law, at least two important developments have occurred: • The plaintiffs’ bar in Kentucky has filed multiple constitutional challenges to the newly amended KRS § 336.070, attempting to challenge the retroactivity provision in particular. • On July 17, 2019, the Northern Kentucky Area Development District (NKADD) filed a petition for certiorari with the United States Supreme Court, seeking to vacate Snyder. The case number is 19-99. HR professionals should monitor these developments and be ready to act, if necessary, to partner with in-house or outside legal regarding arbitration agreements. The proper posture requires looking beyond a global yes or no as to enforceability to seek the contours of what transpires and think about any implications for arbitration programs already in place or under consideration. While many of the plaintiffs’ bar challenges to KRS § 336.070 appear to take a “kitchen sink” approach, the most common argument appearing in the “sink” is an ex post facto challenge. Essentially, the theory is that, pursuant to Snyder, employment could not be conditioned on assent to arbitration prior to the amendments to KRS § 336.070 and Kentucky lawmakers cannot go back in time to alter the past. One of many counters is that the prior version of KRS § 336.070, which unlawfully violated the Federal Arbitration Act by targeting arbitration rights, did not afford any substantive rights anyway, so there is no possibly meaningful “back to the future” maneuver at issue. Because Kentucky has so many counties – 120 – and each county has its own Circuit Court, early proceedings will almost certainly be mixed, so HR professionals should especially keep an eye out for decisions from the Kentucky Court of Appeals and Kentucky Supreme Court. Additionally, this is an opportunity to build and rely on networks of HR professionals to share news and updates, as it develops. A decision may appear only to impact one case in one of the 120 counties in Kentucky, but its impact might, ultimately, be broader, and if we share news with each other, we can learn about developments rapidly and have the greatest possible time to think through appropriate next steps.
As to the United States Supreme Court filing, the NKADD asks the Court to vacate Snyder – i.e., confirm Snyder to have been wrongly decided in violation of the Federal Arbitration Act. If the NKADD achieves this result, the plaintiffs’ bar’s constitutional challenges will fall flat before they can advance very far because Snyder will fall. While the odds for Supreme Court review generally are low, the Supreme Court has taken interest previously in addressing state attacks on arbitration – including a 2017 decision in Kindred Nursing Centers LP v. Clark, wherein the Supreme Court said the Kentucky Supreme Court “flouted the FAA’s command to place [arbitration] agreements on an equal footing with all other contracts.” There’s history here, to put it one way, and it will be interesting to see what the Supreme Court does (or does not do) here. If the Supreme Court chooses not to act now, more than likely it will have another chance after years of litigation about the impact of Snyder and the retroactivity of the amendments to KRS § 336.070, so we can only hope the Supreme Court provides much needed definitive law now.
• If the FAA governs, do we have signed arbitration agreements from before the amendments to KRS § 336.070 were signed into law? • How can we most effectively enforce those agreements if the United States Supreme Court does not address the Snyder decision? • If the Supreme Court does not act this term, how can we most effectively enforce those agreements despite the constitutional challenges from the plaintiffs’ bar? • Should we revise and update any part of our arbitration program based on Kentucky’s amended KRS § 336.070? • If we haven’t adopted an arbitration program, should we do so? What are the advantages and disadvantages? With this guiding questions, and more, HR professionals will be prepared and poised to assist their workplaces to handle how the law unfolds.
HR professionals should continue to monitor the arbitration landscape in Kentucky closely as these events unfold. Specific questions to ask include the following:
Jay Inman, Shareholder • Do we have an arbitration program, and are we engaged in interstate commerce such that the FAA governs that program?
Littler Lexington jinman@littler.com www.littler.com
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41
A BY CAMMIE SCOTT
for
Planning
There is an African Proverb that says that “Tomorrow belongs to those who prepare for it today.” It’s a good quote, but when it comes to practicality and application: How do you prepare? What do you do? How do you do it? When do you do it? That’s where planning comes into play.
Planning always has a purpose otherwise it is not planning. It helps organizations improve efficiency, reduce risks and reach their maximum potential. It makes reaching goals easier and faster and helps keep you from doing random activities that don’t contribute to the advancement of the organization.
What’s a plan and what is planning?
In the workplace
Plan is a noun, which you may remember from school is a person, place or thing. The Merriam Webster dictionary defines it as the following: • A method for achieving an end • A detailed formulation of a program of action • An orderly arrangement of parts of an overall design or objective • A detailed program
While there are a variety of different types of plans there are three main types of plans that will be used when working towards company goals: 1) Operational, 2) Tactical, and 3) Strategic. The success of these plans build upon one another. The order of planning: start with Strategic and work to Operational. In terms of success you must have success at the Operational level in order to have success at the Tactical Level, and ultimately at the Strategic level.
Planning is a verb or action word. The dictionary defines planning as: • Arranging the parts • To devise or project the realization or achievement of • To have in mind • To make plans or plan ahead • To have a specified intention
Strategic Plans direct the entire organization. Top level managers, such as CEOs or presidents work together to design and execute strategic plans that depict the long–term goals of the organization. They look ahead to where the organization wants to be in 3, 5, or 10 years. These are the framework for lower level planning. Common long-term goals include strategies for achieving growth, improving productivity, increasing profitability, improving customer service, and finding ways to give back to the community.
The words plan, strategy, and goal are often used together, however, they are different. A goal is what you hope to accomplish, it is where you want to end up, or it is the destination. A strategy is the method you will use to accomplish the goal. It is high level, flexible, and adaptable. Strategy guides how you will use resources to accomplish the task. A plan is the “how”. It is the actions you will need to accomplish in order to achieve your goal. Plans are detailed, concrete in nature, and inflexible. They provide the “goal posts”, “milestones”, or “targets” you must hit along the way to reaching your goal. The goal is the destination, the strategy is the alternate routes, and the plan is the specific route chosen. Planning involves thinking about and breaking down the steps needed to reach a goal. It is plotting the specific course of action to be taken.
Why plan? Whether you are in a leadership position or not planning is important. Planning is about organization. It is about managing resources and priorities in an organized fashion. Planning makes management and leadership easier and improves productivity. Improve your planning and you will improve your managing and leadership skills.
How does planning work in organizations? In organizations, upper management sets the goals for the organization. They determine the mission and the resources that are available. Division presidents, senior vice presidents, managers, or department heads often develop plans for their group to hit the goals associated with their part of reaching the organizational goal. They figure out how to make it all work. 42
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Strategic plans require multilevel involvement. Each level of the organization plays a significant role in achieving the long-term goals. Top level managers develop the organizational objectives so that middle and lower level managers can create compatible plans aligned with those objectives. Tactical Plans support strategic plans. They convert broad strategies into relevant, specific plans for distinct areas of the organization. They are concerned with the responsibility and functionality of departments to fulfill their parts of the strategic plan. After the strategic plan is revealed, middle managers must craft tactical ways the strategic plan may be accomplished. They put together a plan with purposeful actions that take a shorter amount of time and are narrower in scope than the strategic plan, but still help to bring the organization closer to the long–term goals. Operational Plans are focused on the specific procedures and processes that occur within the lowest levels of the organization. This is where you “get into the weeds”. Operational plans focus on the routine tasks of each department using a high level of detail. Operational activities include things like scheduling employees each week; assessing, ordering and stocking inventory; creating a monthly budget; developing a promotional advertisement to increase sales of a certain product; or outlining an employee’s performance goals for the year.
How do you do it in your professional life? In your career or your professional life, begin by reviewing the organization’s mission. Organizations bring in planning consultants and
spend copious amounts of time, effort, and energy on establishing mission statements, vision statements, and values only to have them mentioned at orientation and then pushed aside. It is rare to have someone who isn’t responsible for this area to really know and be able to fully articulate these things. By knowing them, being able to clearly communicate them, and how they relate your position to upper management you will immediately separate yourself from others.
envisioning the results the organization, your department or you personally want to achieve, and determining the steps necessary to arrive.
Next, review the organization’s goals. Think carefully about where it is going and how you fit into the plan. Having a clear understanding of the overall operation and the operational goals is important in helping advance your career. Few people have the ability to see the big picture and understand how all of the pieces fit together.
How does it work personally?
Think about your position. Where do you fit into the plan? What can you do to advance the cause? Are you responsible for others? What resources do you manage? How do you define success with regards to your position within the organization and how does that mesh with the overall plan? Answering these questions helps you know what you need to do and what goals you need to set. From there, planning involves
All organizations large and small have limited resources. Planning helps management make effective decisions about how to allocate resources. Productivity is maximized when resources are not wasted. Remember time is the most valuable resource.
Most of us start out the year with New Year’s resolutions only to have them fade quickly. Research conducted by Strava, the social network for athletes, has discovered that January 12th is the day most people drop their resolutions and that only 8% of people ever reach their New Year’s goals. One of the biggest reasons that goals fail is because they are unrealistic. Start by reviewing your own goals. Are they realistic? Are your timelines realistic? We live in a “get it now” society, however, know you can’t have it all right now! Think about where you want to go and when do you want to be there? What are the timelines? What are your resources? Do you need to delegate? Do you need to recruit help? Set aside some quiet,
uninterrupted time to really think about what you need to do and how you need to do it. Lay out the steps needed to advance. Outline the milestones you need to reach in order to meet the deadlines.
Closing Thoughts Planning is all about efficiency. It is about achieving more with less and reaching greater success in a shorter amount of time. It takes on various forms both in the workplace and in your personal life. No matter the name for it or the format it takes, planning is important. Planning keeps you organized and focused. It provides clarity and direction. It guides action and provides motivation. It helps you move more quickly, decisively and maximizes your mental energy. It helps you create your own journey instead of becoming a part of someone else’s journey.
Cammie Scott, President CK Harp & Associates cscott@ckharp.com www.ckharp.com
Cammie Scott, President CK Harp & Associates cscott@ckharp.com www.ckharp.com
STRATEGIC PLANNING PARTNERS B US I NE S S S O LUT I O N S F O R A C H A N G I N G WO R L D • Hum a n Res o u rc e s A s s i s t a n c e • Tra i n i n g P ro g ra m s • E m p l oye e B e n e f i t Pro g ra m s • Lea d e r s h i p D eve l o p m e n t • Com p l i a n ce
2 816 N . Th o m p s o n S pr i n g dal e, A R 7 276 4 47 9 .7 5 0 .4 411 p 47 9 .7 5 0 .8 9 6 9 f www.c kh ar p.c o m
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Wal-Mart Stores East, LP Will Pay $100,000 To Settle EEOC Disability Discrimination Suit Leading Retailer Failed To Reasonably Accommodate Deaf Employees
The Americans with Disabilities Act (ADA) prohibits workplace discrimination based on an individual’s disability. The ADA requires employers to provide a reasonable accommodation to individuals with disabilities unless it would pose an undue hardship. The EEOC filed suit (EEOC v. Wal-Mart Stores East, LP, Civil Action No. 1:18-cv-2799) in U.S. District Court for the District of Columbia, after first attempting to reach a voluntary, pre-litigation settlement through its conciliation process. In addition to paying $100,000 in monetary relief, the two-year consent decree resolving the suit enjoins Walmart Store No. 5941 from violating the Wal-Mart Stores East, LP will pay
ADA, including engaging in unlawful retaliation. Walmart Store No. 5941
$100,000 and furnish significant
has also agreed to revise its reasonable accommodations Management
equitable relief to resolve a federal
Guidelines, provide live training to management employees on the ADA’s
disability discrimination lawsuit filed by
reasonable accommodations requirements, and address issues related to
the U.S. Equal Employment Oppor¬tunity Commission (EEOC), the federal agency announced August 19. The EEOC charged that Wal-Mart Stores East, LP refused to provide communications accommodations, such as
deaf or hard-of-hearing persons, and provide training to all non-management employees on the ADA and the process for requesting a reasonable accommodation. Walmart Store No. 5941 will also post a notice about the settlement and report to the EEOC about its compliance with the consent decree. “This settlement should encourage all employers to provide reasonable
access to sign language interpreters
accommodations that allow equal access for deaf and hard-of-hearing
and closed-captioned training videos,
employees and applicants to engage fully in the workplace,” said Acting
to two deaf employees who worked at
Washington Field Office District Director Mindy Weinstein.
Walmart Store No. 5941 in Northwest Washington, D.C. The employees were entitled to reasonable accommodations so they could obtain information from, and participate in, meetings, trainings and
44
EEOC Regional Attorney Debra M. Lawrence added, “In addition to the monetary relief, the settlement provides important equitable relief to provide deaf and hard-of-hearing employees and appli¬cants with effective accommo-
other workplace communications, the
dations so they can participate in workplace communications and have equal
EEOC said.
employment opportunities.”
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45
DOL Announces Notice of Proposed Rulemaking to Update Joint Employer Test BY JOE M. KRASKA
On
April 1, 2019, the Department of Labor (DOL) announced a proposed rule to clarify when employers are considered joint employers
where they share or exercise control over workers. This Notice
The Current Rule The NPRM regarding joint employment, as currently written, would revise the current regulations at 29 C.F.R. Part 791. The DOL has not made any meaningful revisions to this regulation since its promul-
of Proposed Rulemaking (NPRM) came on the heels of two
gation in the nineteen fifties. Under this regulation multiple persons
other significant NPRMs from the DOL regarding minimum
can be considered joint employers of an employee or employees if
salary levels for overtime exemptions (March 22, 2019) and the
they are “not completely disassociated” with the employment of the
other regarding types of compensation that must be included in overtime calculations (March 28, 2019). It seems the DOL is pushing to ensure completion of its regulatory agenda in advance of the 2020 election cycle.
employee. However, the regulation falls short of adequately explaining what “not completely disassociated” means in certain potential employer situations. Currently, under the FLSA, to be considered a joint employer, a business must exercise direct operational and supervisory control over another business’s employee. In those situations, both companies will
The Fair Labor Standards Act (FLSA) requires that covered employers pay their employees at least the federal minimum wage for all hours worked and overtime for all hours worked over 40 in a workweek. The term “employee” is defined under the FLSA as “any individual employed by an employer” and “employer” is defend to “include[] any person acting directly
be jointly responsible for the employee’s wages. In general, the most common set of circumstances in which a joint employer situation is likely to arise is in the franchise owners/franchisee context and in situations where businesses utilize temporary staffing agencies to supplement their workforce. This proposed rule would also lay to rest the January 2016 Administrator’s interpretation on joint employment that was withdrawn by the
or indirectly in the interest of an employer in relation to an
Trump administration in June 2017. This Obama-era joint employer
employee.” The term “employ” is also defined under the FLSA
interpretation was quite expansive and could have been interpreted
to mean “to suffer or permit work.” Therefore, in situations
to apply to a wide range of companies based on the nature of their
where there may be two or more potential “employers” who “employ” an “employee” the need to determine who is liable for the payment of employee wages can become crucial. 46
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business and relationships with other companies regardless of whether those relationships were understood to create a joint employment relationship. The proposed rule is aimed at making the joint employer test more aligned with the modern workplace.
The Proposed Rule
Conclusion
The proposed rule creates a four-factor balancing test that replaces the “not completely disassociated” language currently in the regulation that would consider whether the potential joint employer has the power to:
The NPRM was published on April 9, 2019 in the Federal Register and interested parties had sixty days, until June 10, 2019, to submit comments on the DOL’s proposed rulemaking. During the comment period there were approximately 5,700 public comments posted on regulations.gov regarding the proposed rule. If the DOL’s proposed joint employer regulations are adopted it will be a welcome change for many businesses after many years of uncertainty and sometimes conflicting views being expressed by courts and administrative agencies regarding joint employment situations.
• Hire or fire the employee; • Supervise and control the employee’s work schedules or conditions of employment; • Determine the employee’s rate and method of payment; and • Maintain the employee’s employment records. Of these factors, no single factor alone would be dispositive in the determination of whether a joint employment relationship exists, as the analysis will be dependent on the particular facts of each case. The proposed rule will also allow for additional factors to be used to determine joint employer status only if they indicate whether the potential joint employer:
It will likely be sometime before a final rule that employers can rely on is available. In the meantime, employers should continue to monitor the rule’s progress and evaluate their current employment relationships to determine if the joint employment relationships will be a potential issue they need to address.
• Exercises significant control over the terms and conditions of the employee's work; or • Is otherwise acting directly or indirectly in the interest of the employer in relation to the employee.
Joe M. Kraska, Attorney Cross, Gunter, Witherspoon & Galchus Jkraska@cgwg.com www.cgwg.com
Again, the use of additional factors is limited to the circumstances mentioned above. The proposed rule will also clarify that there is no specific business model, business practice, or business agreement that will make the finding of joint employer status any more or less likely. Notably, the proposed rule will identify certain “economic dependence” factors that will not be determinative in the joint employment analysis. Specifically, the proposed rule will identify and provide three examples of “economic dependence” factors that will not be relevant in the joint employment determination. Additional changes to the rule include reiterating that joint employers will be considered jointly and severally liable for employees’ wages due under the FLSA. The proposed rule will also include illustrative examples that apply the newly proposed rule to certain factual scenarios as an effort to explain the new rule better. There will also be a severability provision in the proposed rule, stating that if any portion of the new rule is held invalid or stayed pending agency action, the remaining provisions of the regulation would remain in effect. In the NPRM, the DOL also stated that this newly proposed rule would be helpful in light of recent National Labor Relations Board (NLRB) decisions that have altered the analysis for determining joint employer status under the National Labor Relations Act (NLRA). Similarly, the NLRB has also begun the rulemaking process to better define the joint employer test under the NLRA. The proposed rule will not affect employee earnings and overtime. Employers will still be obligated to comply with the FLSA in all respects. According to the DOL the proposed rule would ensure that employers and user employers clearly understand their responsibilities related to paying employees at least the federal minimum wage for all hours worked and overtime for all hours worked over 40 in a workweek.
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47
Turn Enemies Into Allies –
The Art of Peace in the Workplace By WILLIAM CARMICHAEL
Resolving conflict is never easy. Even the most discerning manager will agree with that statement yet despite what organizational leaders profess, conflict resolution is one of the least trained skills that organizations offer when training new managers. Reasons vary for this but the reality is that trying to get two employees who genuinely don’t like one another to bury their differences and work together can be emotionally draining for everyone involved. The good news is it doesn’t have to be this way. Turn Enemies Into Allies- The Art of Peace in the Workplace: Conflict Resolution for Leaders, Managers, and Anyone Stuck in the Middle by Judy Ringer, is a simple and effective field guide.
Why Is resolving conflict so difficult? Whether you are a leader, manager, or employee suddenly caught up in the middle of a troubling issue involving another employee, having the emotional skills needed to arrive at a consensus is often not at your disposal. For example, traditional conflict management training tends to focus on only the removal of whatever problem exists from the affected managers’ perspective. That manager is there to fix the problem and move on. Sounds familiar doesn’t it? The reality is that many conflicting issues between employees are deeply rooted and when this occurs, negative group morale, loss of productivity, declining efficiency, and selfdestructive behavior is not far behind. 48
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So, what is the answer? What makes Turn Enemies Into Allies so different is a unique approach the author moves us through. Certainly, as an experienced speaker, coach, and seminar leader on conflict resolution, Ringer brings a wealth of experience of what works and what does not. But it is her twenty plus years as a martial arts instructor in Aikido that allows such a completely different tactic when dealing with conflict in the workplace. Readers will likely have the same initial reaction that I had with Ringer’s use of Aikido metaphors when dealing with workplace conflict. For example, we as managers are not really trained to first look within before approaching the conflict, when in fact, understanding our own feelings must first be addressed. This, as it turns out, is the first tactic she applies as a martial artist instructor. It is “becoming centered” as Ringer explains, “and the first step is to manage yourself. True power in conflict problem solving begins with you, whether you’re in the conflict yourself or helping or coaching another in the process. You will only be able to help them if you first enter the arena with a calm, centered, positive outlook.” Ringer takes pains to reassure readers who lack confidence in their conflict-resolution abilities, writing that the skills required are not innate and can be learned. But she also gives us concrete advice, such as about recognizing and overcoming unhelpful managerial mindsets vis-à-vis employees (e.g. “This is not my job”; “They should just rise above it”). However, her real skill is in emphasizing the power of transparent, effective communication to resolve unhelpful, wasteful conflicts. Though good-hearted and thoughtful, this book uses martial arts as helpful metaphor for relationships at the office and at home. The surprising costs of unaddressed conflict As a practical coaching intervention guide for managers, HR professionals, and other leaders designed to help conflicting employees return to a professional, effective working relationship, Turn Enemies Into Allies is surprisingly well researched and supported. For example, in its Introduction I was surprised to learn that based on a 2008 study by CCP, Inc., the publisher of the MyersBriggs Type Indicator and the ThomasKilmann conflict mode instrument found that 85 percent of employees at all levels of surveyed organizations experienced conflict to some degree amounting to a staggering
$359 billion in lost hourly wages! For some organizations this amounts to consuming three hours of productivity each week. Talk about a waste of manpower! Turn Enemies Into Allies offers a better way of working with clashing employees that is deliberate and systematic. Structure and Layout Ringer uses an effective simile throughout this short book that most will easily digest over a weekend. Its eight chapters are purposefully placed into four phases that represent the layers of a martial arts contest that quickly relate at the office; 1) Bowing In, 2) Entering and Blending, 3) Redirecting, and 4) Bowing out. Each relates to and applies to resolving conflict on your terms. Following the author's step-by-step guide, readers will: • Acquire the skills and confidence to coach conflicting employees back to a professional, effective working relationship. • Restore control and peace of mind to the workplace. • Transform problematic relationships. • Increase your leadership presence. Who Will Benefit Most from This Book? Management and organizational leaders, HR and training practitioners, organizational supervisors. ABOUT THE AUTHOR:
Judy Ringer is the founder of Power & Presence Training and is an international speaker, coach, and seminar leader. Judy brings to life essential conflict resolution skills such as self-management under pressure and appreciation of other viewpoints. Her clients include the National Institutes of Health, GE, Sony, Honda, Frito-Lay, Bose, TDBanknorth, Athenahealth, and Wharton Leadership Ventures. Judy lives in Portsmouth, New Hampshire, where she is also the founder of Portsmouth Aikido.
William Carmichael, Ed.D Professor | Strayer University William.carmichael@strayer.edu www.strayer.edu
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Deadline to register is September 25, 2019 Contact cynthia@hrprosmagazine.com OR visit our website at www.hrprofessionalsmagazine.com
About the instructor: Cynthia Y. Thompson is Principal and Founder of The Thompson HR Firm, LLC, a human resources consulting company in Memphis, TN. She is a senior human resources executive with more than twenty years of human resources experience concentrated in publicly traded companies. She is also the Publisher | Editor of HR Professionals Magazine, an HR trade publication distributed to HR professionals in Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, and Tennessee. The mission of the publication is to inform and educate HR professionals. Cynthia has an MBA and is certified as a Senior Professional in Human Resources by SHRM and HRCI. Cynthia is a faculty member at Christian Brothers University in Memphis teaching Human Resource Management. Cynthia also teaches online HR Certification Exam Prep Courses for HRCI and SHRM. She is a sought-after speaker on HR Strategic Leadership. www.HRProfessionalsMagazine.com
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The House Votes to Remove Green Card Caps
On
By GREG SISKIND
July 10th, the US House of Representatives passed HR 1044, the “Fairness for High-Skilled Immigrants Act of 2019”, by a margin of 365-65. The bill’s main purpose is to address the decades-old system of per country quotas that limits distribution of green card numbers in the various employment and family green card categories to no more than 7%. Indian nationals (and to a lesser extent people from China and Vietnam) face waits much longer than other countries because of the quotas. For example, a recent analysis by the Cato Institute shows that Indian nationals can expect to wait 54 years for a green card in the employment-based second or third preference categories. More than 48,000 Indian nationals are expected to die while waiting on the lines. The consequences for people waiting can be severe. When their children turn 21, they are no longer eligible for dependent visas and qualifying for their own visas can be extremely difficult. So many families end up separated or forced to abandon their US green card applications. People waiting on temporary work visas have less negotiating power when it comes to their salaries and work conditions. Those in the green card lines can’t retire until they get their green cards, which can be well after they are in a position to stop working. People wanting to start their own businesses also can’t do so until they finish green card processing.
Despite the overwhelming support in the House, the road to passage in the Senate is less clear. 50
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HR 1044 would phase out per country quotas in the employment-based categories and raise them from 7% to 15% in the family categories. People in line when the law is passed will be processed through to conclusion as if the law wasn’t passed and there is also a three-year transition period that does away with the quotas following that. So the real impact of the bill probably will not be seen until after five or more years. Despite the overwhelming support in the House, the road to passage in the Senate is less clear. The companion bill in the Senate is S. 386. As of the writing of this article, the bill has 35 sponsors, including 20 Republicans and 15 Democrats. Shortly before HR 1044 passed, the
bill was brought up for a unanimous consent motion on the Senate floor but failed after Senator Rand Paul (R-KY) objected. Paul asserted that the bill would hurt the recruitment of foreign nurses (though one of the groups most impacted by the quotas is the estimated 20,000 Indian physicians waiting in the EB-2 category). Paul introduced another bill that would end per country quotas and dramatically hike overall green card numbers. But many see the bill as an attempt to draw away votes from S.386 while not having a serious likelihood of passing anytime soon.
And then there is the question of whether President Trump would sign the bill. FAIR and the Center for Immigration Studies, two prominent anti-immigrant groups, have come out against the bill and the Department of Homeland Security took the unusual step of issuing a statement opposing on the grounds that the bill doesn’t do anything to address the President’s stated goal of moving the employment-based immigration system to one that is more merit-based. The House bill passed by well in excess of a veto-proof margin, but it’s not clear if the Senate has the same percentage of supporters.
Senator Charles Grassley (R-IA) has also proposed an amendment to the bill which would change the H-1B visa program for high-skilled workers. Among the proposed changes are the following:
Should the bill pass and nationality discrimination be eliminated, the employment-based immigration system still faces severe challenges. The quotas that apply today were set in 1990 and are wholly inadequate to meet demand. For the most part, the Indian and Chinese skilled worker population have absorbed the bulk of the inadequate supply but ending discrimination will mean that backlogs will affect every applicant. Thus, advocates will have to focus on raising numbers across the board or the backlogs will end up crippling the system as the US economy and the overall demand for global talent continues to increase.
• The government will create a web site where employers would have to post an H-1B position for 30 days before an H-1B application can be filed. The information in the posting is the same as information already included in the Public Access File but must also include information on how to apply for a position at the employer; • Employers would be barred from including in any advertisements that a position is limited to or prioritizes H-1B workers; • Employers who have previously hired H-1B workers will have to provide, for a specified prior look-back period, W-2 records to verify employees were paid at least what was stated on the filed Department of Labor Condition Application forms; • The Department of Labor will charge a fee for Labor Condition Application fees that will cover average processing and enforcement costs;
Greg Siskind, Attorney Siskind Susser, PC Immigration Lawyers gsiskind@visalaw.com www.visalaw.com
SISKIND SUSSER PC
• The “B-1 in lieu of H-1B” and “B-1 in lieu of H-3” strategies for entering the US will be prohibited;
Tennessee’s Largest Business & Employment
• New protections will be available to H-1B violation whistleblowers; • USCIS will be required to share information with DOL and DOL will be provided new authority to investigate potential H-1B violations;
Immigration Practice
IMMIGRATION LAWYERS
• DOL will be able to deny LCAs when they suspect fraud or misrepresentations and not just when there are obvious errors on the form. DOL will also have new authority open investigations regarding LCA violations if they suspect fraud. Open questions that remain are whether Grassley’s amendment will pass and, if so, will there be changes. The language is similar to language previously supported by some Democrats including Senator Richard Durbin from Illinois. Also, if the bill passes with the H-1B language, how will Zoe Lofgren, the chair of the House Immigration Subcommittee, respond. Both houses would have to negotiate to reach a common version of the bill and then have an additional vote in each House. Lofgren has not yet indicated her position on the Grassley language. And it is not clear whether the Senate leadership is prepared to move the bill forward in any case.
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Highlights of 2019 Wellness & Health Benefit Conference
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1 Cristie Upshaw Travis, CEO of Memphis Business Group on Health, welcomes attendees. 2 Claire Shapiro, President of the Memphis Business Group on Health Board of Directors, presented a preview of the conference. 3 (L-R) Mike Thompson, President & CEO, National Alliance of Healthcare Purchaser Coalitions; Laurie Lee, Executive Director, State of Tennessee Employee Benefit Administration; and Laura Shultz, Director of Behavioral Health-Ambulatory Care, Methodist Healthcare, were the keynote speakers. They discussed, “Erasing the Artificial Line: Integrating Physical + Mental Health.”
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4 Barbara McClanahan, PhD, EdD, Associate Professor, University of Memphis Promotion Program, presented “Healthy Body, Health Mind.” 5 (L-R) Syidah Abdullah, Instructor, Department of Psychiatry, UTHSC; and Candace Billings, President, Sundara Wellness Center, presented “Mind, Body, Whole: An Integrated Care Approach to Wellness.” 6 Greg Graber, mindfulness author and consultant, Head of Middle School at Lausanne Collegiate School, discussed “Creating a Workplace Culture of Mindfulness.” 7 Paul Gionfriddo, President and CEO of Mental Health America (MHA,) was the luncheon keynote speaker. His topic was “For Larissa and Tim: Let’s Act B4Stage4.”
8 (L-R) Martha Flowers, Director of Wellness First for First Horizon National Corporation; and Paige Turner, Population Health Director for the State of Tennessee’s State Group Health Plan, discussed “Building a Whole-Person Workplace Well-Being Program.” 8
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24th Annual Mississippi HR Conference & Expo September 16-18, 2019 BancorpSouth Arena & Conference Center Tupelo, Mississippi
http://bit.ly/2019MSSHRMCONFERENCE
​Our dynamic speakers include:
Steve Gilliland
Renowned author and speaker
Sarah Thomas
Mississippi's own, first female NFL referee
Elizabeth Heiskell Mississippi's own, Debutante Farmer
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SFBLI.COM www.HRProfessionalsMagazine.com
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5 Ways
Emotional Intelligence Helps Us Manage Frustrations at Work By HARVEY DEUTSCHENDORF
“Life is 10% what happens to me and 90% of how I react to it.” ~ John Maxwell All of us have experienced a wide range of emotions at work, both positive and negative. Unless we are totally out of control and become an embarrassment or a detriment to others, it is hard to imagine getting into trouble expressing positive feelings at work. Likely they will be viewed as beneficial by nearly everyone around us. It is the opposite emotion that give us problems. We have all experienced them. Negative emotions at work, that is. Someone who we think is less qualified, but ingratiates themselves to the boss, gets the promotion you worked so hard to earn. A co-worker takes credit for something that you did. The slackers on your team receive equal credit for a successful team project in which you did the majority of the work. After having spent countless hours on submitting a proposal, it gets rejected, or worse criticized. The scenarios that make us angry, frustrated, disappointed, fearful are endless and we have all felt them and gone through them. It’s not the situations themselves that make or break us, it’s how we respond to them. Successful people have found ways to not only cope with negativity, but use the lessons gained from it to move ahead. Here are five ways emotional intelligence helps us work through those negative emotions.
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Keeps Us From Reacting Immediately
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Naming How We Are Feeling
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Share our Feelings With Others Who Will be Supportive But Objective
We feel before we think. When we act from our negative emotions too quickly, this is a reaction and the outcomes are usually never good. When we give ourselves a few seconds to think about it first, this is no response, and we are now taking personal responsibility. We all know of people whose angry outbursts have cost them dearly in terms of promotions, careers and generally held them back in life. Whenever we are having powerful emotions, we need to give ourselves time to think. It may mean we have to temporarily remove ourselves from a situation until we have had time and space to clearly think.
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Put Yourself in the Place of an Outside Observer
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Take a Long Term Perspective
This is not easy to do, but try to look at the situation from someone on the outside who is looking in on the situation and has no stake in the outcome. Make an honest attempt to try and see things from the perspective of everyone involved. Suspend judgement if you can and come up with as many possible explanations as possible for what occurred. The most difficult part will be to try to come up with alternative explanations for the reasons that you tell yourself about those that have offended you. The tough question is, "What was my part in this; the positive and the negative." There will be valuable learning in doing this.
Ask yourself how much this will matter to you one year, five years or ten years from now. Look at your long-term goals and plans and see how this all fits in with where you want to be in the future. Is it a battle worth fighting, or will it serve you better for your future plans to let things go and move on? What will be the likely outcomes of the choices that you make from this point on, and how will they help or hinder you in moving ahead in advancing your goals.
The simple act of being able to name how we are feeling takes away some of the energy that our emotions have over us. It gives us some distance from the emotion and allows us more clarity. It gives us a chance to step back and reflect upon the situation.
The worst thing to do is commiserate with others who are known to hold grievances, and we know will support us in holding on to our negativity. After all, misery loves company. While it may feel good at the time, it isn’t productive and will keep us stuck in a vicious negative cycle. Find someone who is a great listener and who will be able to give an unbiased objective viewpoint of what happened. This is usually someone who has no stake in it one way or another. When sharing what happened, try to only give them the data, not your judgements.
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Harvey Deutschendorf is an emotional intelligence expert, internationally published author and speaker. To take the EI Quiz go to theotherkindofsmart.com. His book THE OTHER KIND OF SMART, Simple Ways to Boost Your Emotional Intelligence for Greater Personal Effectiveness and Success has been published in 4 languages. Harvey writes for FAST COMPANY and has a monthly column with HRPROFESSIONALS MAGAZINE. You can follow him on Twitter @theeiguy.
2019 Strategy In the Sand Save the Date | October 11, 2019
Register at www.strategyinthesand.com SPEAKERS
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Discuss current state of business & workforce in Alabama and the Southeast Share the Future of Alabama business Provide strategies for impacting challenges and opportunities that will arise in the current & future state
Strategic Hiring Objectives: • • •
Identify the problem you to need to solve Establish a problem-solving practice Strategically hire to solve the problem
The Disney Magic of Organizational Culture Objectives: • •
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Identify the power of organizational culture and its relationship to business success Discover how Disney uses organizational culture to positively impact its people, processes, and property Determine ways to implement these ideas in the workplace
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