hr professionals of greater memphis- vol. 1:1
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HR Professionals of Greater Memphis- Vol. 1:1TRANSCRIPT
www.HRprosMemphis.com
Volume 1 : Issue 1
ProposedNLRB
Election Rules
JUDY BELLAppointed toState Position
NewADARevisions
New Laws
Guns in theWorkplace
Diversity &Leadership
EMPLOYEEPrivacy Claims
SHRM-Memphis 2011Board of Directors
PremiereIssue
001 COVER:Layout 1 8/26/11 1:31 PM Page 1
The largest law firm in the Mid-South that devotes its prac�ce to represen�ng management
in all areas of labor rela�ons, employment law and human resource consul�ng.
Kiesewe�er Wise Kaplan Prather, PLC
3725 Champion Hills Drive • Suite 3000 • Memphis, Tennessee • 38125 • 901-795-6695
www.kiesewe�erwise.comCer�fica�on as a labor and employment specialist is not currently available in Tennessee.
002 KW ad:Layout 1 8/29/11 11:09 AM Page 1
www.HRprosMemphis.com 3
Features4 Letter from the Editor
5 Profile Judy Bell
9 Proposed NLRB Election RulesThe Time to Act is Now!
12 Who’s Who?
14 the HR Scene and Events Calendar
18 Guns in the WorkplaceTennessee’s New Gun Law
Departments6 Leadership
Digger Phelps on Leadership
11 EEOC UpdateNew ADA Regulations
17 Employee RelationsManaging Military Employees
Effectively
20 BenefitsHealth Care Reform Update
21 HR EthicsEthics CEG on Workplace
Romance Policies
25 Employee Privacy Claims
Next IssueEmployment Law
Tennessee SHRM Conference in Chattanooga
Columns13 SHRM-Memphis Bulletin
Letter from President,
Austin Baker
22 Small Biz Best PracticesFrom Hire to Fire
24 DiversityUnderstanding Generational
Differences
Industry News8 Job Postings
13 New & Announcements
16 SHRM Foundation
www.HRprosMemphis.com
Editor
Cynthia Y. Thompson, MBA, SPHR
Publisher
The Thompson Firm LLC
Art Direction
Brantley Bowden & Co.
Contributing Photographers
Skipworth
Contributing Writers
V. Latosha Dexter, SPHR
Charles L. Cavagnaro, Jr
Jonathan C. Hancock
Whitney M. Harmon
Tanja L.Thompson
Board of Advisors
Austin Baker
Jonathan C. Hancock
Ross Harris, CFA, CPA
Diane M. Heyman, SPHR
John E. Megley, III, Ph.D
Terri Murphy
Susan Nieman
Robert Pipkin
Michael R. Ryan, Ph.D
Contact HR Professionals of Greater Memphis:
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.HRprosMemphis.com. We do not accept
unsolicited manuscripts or articles. All manuscripts and photos must
be submitted by email to [email protected]. Editorial
content does not necessarily reflect the opinions of the publisher, nor
can the publisher be held responsible for errors.
HR Professionals Of Greater Memphis Magazine is published every
month, 12 times a year by The Thompson 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 Of Greater Memphis Magazine, its
contributors or advertisers within are not responsible for
misinformation, misprints, omissions or typographical errors.
© 2011 The Thompson Firm
This publication is pledged to the spirit and letter
of Equal Opportunity Law.
stay current
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Contentsthe Premiere Issue
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4 www.HRprosMemphis.com
Welcome to the Premiere Issue of HR Professionals of Greater Memphis.
I am so excited about bringing this first-of-a-kind publication to you! The mission of the magazine is to
serve you, the HR professional, and advance the HR profession in the Greater Memphis area. We are
partners with SHRM-Memphis as the voice of the HR community. I am so proud to be a member of one of
the largest SHRM Chapters in the country, as well as the SHRM international organization with over 250,000
members. As a past president of SHRM-Memphis and founder of the SHRM Executive Roundtable in
Memphis, I am aware of the issues that impact our profession and our community. We will be your advocate
on state and national legislation affecting our workplace and
our profession.
We will also showcase the best of the best in our profession
from Memphis and the surrounding communities with profiles
of a key HR professional in each issue. You will also meet a
member of the SHRM-Memphis Board of Directors each
month. In addition, there will be editorials on topics of
importance to you such as benefits, compensation, employee
relations, HR technology, performance and training. We will
also bring you articles about diversity, ethics, and leadership,
which will inspire you.
It has been an exhilarating month as I have visited many
organizations and attended many group meetings in our
community searching for the current hot buttons that are
keeping you awake at night. I have had the pleasure of meeting
and talking to many business and community leaders who
have both challenged and inspired me. I have never been more
proud to be a member of the human resources profession as
I experienced the sincere respect these leaders have for the
work we do.
I have to agree with Coach “Digger” Phelps, former head basketball coach
at Notre Dame, who said on his recent visit to our city that Memphis is
experiencing a cultural, economic, and social renaissance. I hope you enjoy
this premiere edition and that you too will be challenged and inspired as I
have been. What a wonderful time to be an HR professional in greater
Memphis and to be a part of this renaissance!
Editor’s LetterA new era in Human Resources
Cynthia Y. Thompson, MBA, SPHR
Editor
www.HRprosMemphis.com
Volume 1 : Issue 1
ProposedNLRB
Election Rules
JUDY BELLAppointed toState Position
NewADARevisions
New Laws
Guns in theWorkplace
Diversity &Leadership
EMPLOYEEPrivacy Claims
SHRM-Memphis 2011Board of Directors
PremiereIssue
004 Editors Letter:Layout 1 8/26/11 10:38 AM Page 1
www.HRprosMemphis.com 5
Judy began her recent stint as a Senior Consultant for Inner ActiveConsulting in 2010where she was soon leading personal developmenttraining, facilitating the Phoenix Seminar, and speaking on the topic ofemotional quotient.She has always been involved in SHRM and served as Chair of theState Conference Committee in 1995. She was the recipient of theProfessional Excellence Award in HR for the state of Tennessee in2001, and was elected President of SHRM-Memphis in 2002. Sheserved on the charter committee that founded the SHRM ExecutiveRoundtable in 2006.
Judy Bell is more recently known as the vision behind the SHRM-Memphis' wildly successful Ethics Career Emphasis Group (CEG)which meets quarterly to discuss ethical leadership in business, andleaves the leadership of the group in very capable hands with her rockstar committee. Judy has lead SHRM-Memphis in so many ways andwe are so proud of hermany achievements. Beyond SHRM-Memphis,Judy has earned many other accolades including: CongressionalRecognition for Community Service in 2001, Selected as one of "50Women Who Make a Di�erence" by Memphis Woman Magazine in2002, Named Woman of the Year by �e Leukemia & LymphomaSociety in 2003, and awarded the Smart Award byGirls Inc,Memphisin 2008. Judy has also served in several volunteer roles in stategovernment, among them was Chairperson for the WorkforceEmployer Outreach Committee in Shelby County for the past �veyears. Its mission is to provide a direct link between Tennessee’semployer community and the Commissioner of the Department ofLabor andWorkforce Development.
It should have come as no surprise to Judy when she received the callfrom Commissioner Davis asking her to serve as the Head of HumanResources for theDepartment of Labor andWorkforceDevelopment.
We extend heartfelt congratulations to Judy as she begins her newcareer with the state.We are very proud of her many years of service tothe HR community in Memphis and we know that Judy Bell willcontinue her personal mission of helping others thrive and succeed inthe workplace - on a state level now. ■
Chances are if you are a human resource professional in greaterMemphis, you have been touched by Judy Bell in some way. Judy is aservant leader who has worked in the human resources industry formore than 30 years. But, thenwho is counting? It has been said, “If you
enjoy your work, you willnever work a day in yourlife”. Judy certainly lovesher work, �nding joy inhelping others succeed.
Judy, a past-president ofSHRM-Memphis, hasbeen appointed to thedistinguished position ofAdministrator with theState of TNDepartment ofLabor and WorkforceDevelopment. �ere shewill direct HR for adepartment of more than
2,000 employees. She took her new post on June 1 and serves underfellow Memphian Karla Davis who was hand-picked by GovernorHaslam in January to be the Commissioner.
Judy Bell grew up inMemphis with the expectation that she would bea teacher. A�er all, her dad was principal of Craigmont High Schooland her mom was a teacher. So, she began her journey to HR atMemphis State University, as it was known then, and was studentteaching at Harding by age 19. It did not take her long to �gure outthis was not her calling. She dropped out for “just one year”, and got ajob at Union Planters Bank. She ended up staying there for 17 yearswhere she became manager of Employment Services.
Following her banking tenure, Judy became manager of EmploymentServices at Delta Life and Annuity and was there for 3 ½ years. Shewas then recruited byMATCU in 1997 and was quickly promoted tosupervise all sta�ng and compensation, employee relations,compliance, and training as well as risk management, asset recovery,and liability insurance; rising to the C-Suite as Chief AdministrativeO�cer and second in command to the CEO.
Appointed to State Position
on the cover
JUDYW. BELL
{finding joy} in helping others succeed
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6 www.HRprosMemphis.com
stated that Memphis has always been the
gateway to the South. "Speaking as an
outsider, you don't know the power you have
here. I love coming here because of who you
are andwhat you believe in, and I think you're
poised to be the gateway not just of the South,
but of the United States."
Memphis is experiencing a cultural,
economic and social renaissance according to
Phelps. He cited the recent commitments by
several companies to come to Memphis and
create jobs, the recent success of theGrizzlies,
and President Obama’s visit to Booker T.
WashingtonHigh School as examples. Phelps
said Memphians must work hand-in-hand to
provide stronger educational opportunities
for our young people.
University of Memphis head basketball
coach, Josh Pastner, said. "His message about
mentor ing should be a challenge to all of us to
get involved and make this a better
community." ■
Lipscomb & PittsBreakfast Club
Featured “Digger”Phelps
Before a crowd of some 400 business and
community leaders, Richard “Digger”
Phelps, former head basketball coach at
Nortre Dame, challenged us to work hand-
in-hand to provide stronger educational
opportunities for the young people of
Memphis. "If we can save kids, then I'm not
worried about families. They'll be OK,"
Phelps said. "You've got to come together as a team in Memphis and realize you're a sleeping
giant. Giving your money is fine, but you've also got to give of yourself and mentor these
children.When people give the excuse that they don't have time to volunteer at least an hour a
week to mentor a kid, I say, 'Oh, really? Well guess what? Skip lunch one day if that's what it
takes.Make the time.' "
Coach Phelps believes that Memphis’ potential is as mighty as the Mississippi River, and
Speaker at the recent Lipscomb and Pitts
Breakfast held at the Botanic Gardens. This is
the largest gathering of business leaders and
decision makers in the Memphis community.
LEADERSHIP
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006 Phelps/half:Layout 1 8/26/11 10:45 AM Page 1
8 www.HRprosMemphis.com
Sr. Human Resource Generalist (Compensation)Regional Medical Center at Memphis
Human Resources ManagerGreat American Steamboat Company
Human Resources CoordinatorMitsubishi Electric Power Products, Inc.
Human Resources TrainerTechnicolor
Human Resources RepresentativeTechnicolor
Human Resources ManagerTechnicolor
Compensation AnalystMethodist Le Bonheur Healthcare
Director, Human ResourcesMethodist Le Bonheur Healthcare
Memphis Regional Human Resources ManagerGuardian Community Living, LLC
Human Resources ManagerEvergreen Packaging
Senior Corporate RecruiterStrategetics Technology, Inc.,
Recruiting SpecialistUT Medical Group
SHRM-MemphisJOBPostings
SSeennaattoorr LLaammaarr AAlleexxaannddeerr ––“The NLRB seems determined to make the jobs
picture worse. Encouraging rushed elections will
incentivize employers to send jobs overseas
instead of creating them at home.”
Know where they stand.On the NLRB’s recent proposal to shorten the time it takes to
have union-organizing elections within companies:
ADVOCACY
––SSeennaattoorr BBoobb CCoorrkkeerr“I firmly believe the National Labor Relations Board (NLRB)
has completely overstepped its bounds in recent months, not
only with the rulings regarding so-called “snap” or “quick”
elections and disclosure requirements, but with their well-
publicized actions against Boeing. Tennessee is a proud right-
to-work state, and it is shocking to me that NLRB would
attempt to legally block a company from opening a new facility in a right-to-work state.
For this reason, I have joined with Senator Alexander and others as a co-sponsor of
S.964, the Job Protection Act, which would prevent NLRB from taking this sort of action
against Boeing or any other company. S.964 is currently before the Senate Health,
Education, Labor, and Pensions Committee. In the meantime, NLRB’s complaint against
Boeing is moving through the administrative court system.
More recently, NLRB published new proposed rules that would, as many
have argued, put major elements of the Employee Free Choice Act (EFCA) into place
without Congressional approval. I have opposed EFCA since I was elected to the
Senate, and have both voted against the bill and co-sponsored legislation in direct
opposition to it. Both proposed rules would greatly impede the rights of employers to
effectively and legally communicate with their employees about their workplace.”
RReepprreesseennttaattiivvee MMaarrsshhaa BBllaacckkbbuurrnn ––“The NLRB’s recent proposal to rush union elections
is purely political. What our country needs is
economic growth, not job-crushing proposals that
will push jobs overseas.”
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www.HRprosMemphis.com 9
Content of Proposed Rules –Advanced Technology, But Not The Age of
EnlightenmentSeveral of the Proposed Rules provide for more technologicallyadvanced communication. First, the Proposed Rules provide thatelection petitions may be �led electronically with the Board.
SECRET
BALLOT
The Time to Act is Now!
ProposedNLRB Election Rules
“Make no mistake, the principal purpose for this
radical manipulation of our election process is to
minimize, or rather, to effectively eviscerate an
employer’s legitimate opportunity to express its
views about collective bargaining.”
Employers also must submit a list of the eligible voters, commonlyreferred to as the Excelsior list, in electronic format to the Boardwithintwowork days (currently employers have seven days) from the time theelection is directed. Under today’s law, this voter list must only containthe names and home addresses of eligible voters. But the ProposedRules would require employers to also include employee telephonenumbers and email addresses. Notably, the Proposed Rules do notclarify whether the email addresses are work or personal addresses.While providing work email addresses causes concerns about the e�ectof applicable email usage and no solicitation policies, production ofpersonal email addresses and home telephone numbers is equallyproblematic because it may infringe on employee privacy.
�e Proposed Rules also shorten the time that an employer hasbetween the petition and any pre-election hearing from 14 days to 7days. �e Proposed Rules further require an employer to submit aStatement of Position before the pre-election hearing explaining itsposition on (1) whether the Board has jurisdiction, (2) whether theemployer agrees the proposed unit is appropriate, (3) if the employerdoes not agree to the unit, its contention and description of the mostsimilar unit it concedes is appropriate, (4) individuals’ whose eligibilitythe employer intends to contest and the basis for the contention, (5)any election bar, and (6) the employer’s position regarding the type,date, time, and location of the election. Furthermore, under theProposed Rules, the employer is precluded from raising additionalissues that contest the appropriateness of the unit and/or the eligibilityof individuals not raised in the Statement of Position.
On June 21, 2011, the National Labor Relations Board (NLRB orBoard), proposed new procedural rules (the Proposed Rules) thatwould substantially a�ect employers’ (and correspondingly employees’)substantive rights regarding NLRB secret ballot elections. Althoughthe Board claims the Proposed Rules are simply intended to streamlinethe election process, reduce unnecessary litigation, and utilize moreadvanced communication technology, commentators at the Board’sJuly 18-19, 2011 open forum on the Proposed Rules highlighted thatthe Board’s true purpose is to limit an employer’s role in the electionprocess and increase union representation. Consistent with theconcerns of employers and business groups, sole Republican BoardMember Brian Hayes dissented to the Proposed Rules, andunderscored the majority’s real motivation in proposing these rules.Hayes commented as follows,
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10 www.HRprosMemphis.com
Additionally, the Proposed Rules limit theBoard’s review of RegionalDirector decisions.The Proposed Rules entirely eliminate pre-election review by the Board. Thus, partiesmust seek review of Regional Directordecisions in a single, post-election request.Under the current rules, the parties have aright to request Board review of a RegionalDirector’s pre-election decision within 14days. Although the Board’s review of pre-election decisions is discretionary, the currentrules discourage Regional Directors fromscheduling an election until 25-30 days aftertheir decision was issued where a request forreview has been filed, so that the Board hastime to consider any request. The ProposedRules also give the Board discretion to denyreview of post-election disputes, therebyeliminating any automatic right that theparties previously had to Board review.
The Practical Effect –
The Times They Are A ChangingAlthough the Proposed Rules do notsubstantively restrict an employer’s legal rightto communicate with employees pre-election,the practical consequence of the ProposedRules is that employers will have almost notime to communicate their position. Section8(c) of the National Labor Relations Actprotects an employers’ right to communicatewith employees so long as thecommunications “do not contain a threat ofreprisal or force or promise of benefits.”Although the Proposed Rules are in large partprocedural, their combined effect raises aserious question as to whether the resultingshortened pre-election time deprives
Another significant change in the
Proposed Rules is that employers will
generally not be permitted to litigate pre-
election issues regarding individuals’
eligibility to vote in the election unless the
issues involve 20 percent or more of the
proposed unit. The most significant
practical effect of this change is that
more often during elections there will be
uncertainty as to whether particular
individuals are eligible voters or
supervisors. The failure to identify
statutory supervisors on the front end not
only limits effective communication with
employees, but also creates the
increased potential for unfair labor
practice charges and added post-
election litigation or even rerun elections.
employers of their substantive Section 8(c)rights. As critics of the Proposed Rules havenoted, employers must have the opportunityto speak to be able to effectively exercise theirrights under the Act. The right, without theability to exercise it, eviscerates that right.
There is no doubt that the Board’s ProposedRules, if effectuated, would radically reducethe number of days from petition to election.Today, the median time from petition toelection is around 40 days. Board MemberHayes suspects that the timeframe under theProposed Rules would be 10-21 days. Theseso-called “quickie” elections do little toprotect employee rights and instead are aimedat eliminating employer communicationwithemployees. Make no mistake, labor’spreference is that the employee electorate isnot a fully informed electorate, but rather thatthey hear only the union’s side of the story.That is, of course, the purpose of popularunion neutrality agreements and theproposed Employee Free Choice Act. TheBoard’s Proposed Rules would move us onegiant step closer to that reality of eliminatingemployer communication during a unionorganizing campaign. The bottom line is theProposed Rules are not about protectingemployees’ rights, but are about securing newunion members at the expense of employers’and employees’ rights.
Tanja L. ThompsonPartner, Kiesewetter Wise Kaplan
Prather, PLC
NLRBElection Rules
The Proposed Rules
also shorten the
time that an
employer has
between the
petition and any
pre-election
hearing from
14 days to
7 days.
Preparing for theProposed Changes –
The Time to Act Is NowBecause of the likelihood of drasticallyreduced campaigns, employers are advised to
act now to preserve their union-freeworkplaces. Waiting until an election petitionis filed to take action may be too late.Employees must act now to establish andmaintain positive employee morale.Tolerating unfair treatment, poorcommunication, or lack of appreciation ofemployees (even if in the face of goodproduction or good customer service) likelywill result in union success under theProposed Rules. It also would behooveemployers to analyze potential voter unitissues, and particularly Section 2(11)supervisory status in the workplace. Waitinguntil a petition is filed to determine who theemployer’s “supervisors” and resultingcommunicators will be in a campaignsimilarly will be too late. Indeed, the only surechance of remaining union-free under theProposed Rules will be avoiding the petitionin the first place – by committing to positiveemployee morale and establishing a strongtrust bond with employees. If one of yourbusiness goals is to remain union-free, takeheed and act now. ■
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Businesses face major new compliancechallenges as a result of recently implementedchanges in the Americans withDisability Act(ADA).
�e ADA was amended in 2009 with thegoal of dramatically expanding the populationof employees considered “disabled.” �eregulations implementing the amendmentswent into e�ect on May 24. By the EEOC’sown estimates, an additional 12 to 38.4million employees became “disabled” at thestroke of midnight onMay 23.
�ese new regulations reiterate one pointover and over again: �e purpose of theamended statute and the newly publishedregulations is to make it easier for employeesto establish a disability. Although the basicde�nition of disability is retained, the termsnecessary to determining of whether adisability exists are substantially expanded.�e �nal regulations clearly emphasize that:
• “Substantially limits" is to be construed
broadly, to the maximum extent allowable
under the law.
• "Substantially limits" does not need to
prevent or severely or significantly restrict a
major life activity.
• The determination of whether an
impairment substantially limits a major life
activity should not be extensive and the
individualized assessment to determine if
someone is substantially limited requires a
degree of functional limitation "lower" than
the standard before the enactment of the
ADAAA.
• The ameliorative effect of mitigating
measures, other than ordinary eyeglasses or
contact lenses, should not be considered in
determining whether an impairment
"substantially limits" a major life activity.
• An episodic or in remission impairment
meets the definition of disability if it would
substantially limit a major life activity when
active.
• The effects of an impairment lasting or
expected to last fewer than six months can
be substantially limiting.
In addition to the inclusion of “majorbodily functions” as a “major life activity”, theregulations add activities such as interactingwith others. “Regarded as” has also beenbroadened and requires no showing ofsubstantial limitation by the employee.Further, the regulations state that the“regarded as” prong is the primarymethod forbringing a claim when an accommodationrequest is not at issue.
So what do these changes mean foremployers? Basically now everyone isdisabled. An employer should no longerfocus on whether a disability exists because itlikely does. �e focus now is on the whetherthe disability needs to be reasonablyaccommodated and/or whether the employeris administering employment actions fairly.Below are some tips for the prudent employerto limit their liability:
• Review your job descriptions to ensure
they accurately reflect the “essential” job
functions.
• If you require post-offer medical
examinations, review your processes and
make sure that automatic disqualification
does not occur based on specific medical
conditions.
• Do not spend a lot of time trying to
determine if an employee is “disabled”. You
should reevaluate your procedure for
requesting medical information and make
sure that it is not unduly burdensome for an
employee to establish that she has a
disability. While you may still make inquiries,
do not engage in extensive analysis.
• Understand the reasonable
accommodation process. Because little
time will be spent determining whether a
qualifying disability exists, the employer must
show that it engaged in the interactive
process, including having policies and
procedures in place to notify employees of
accommodation processes, maintaining
communication with employees, and
documenting employer efforts. In the past,
employers were successful in challenging
claims based on whether a “disability”
existed. However, in the future the focus will
likely be on whether an employer has met its
obligation to accommodate.
• Forget about mitigating measures (other
than glasses or contact lenses). The
employee having available medication or a
hearing aid dramatically improving their
hearing is irrelevant.
• Understand the interaction between
FMLA, workers’ compensation and the
ADA. An FMLA “serious health condition” or
workers’ compensation injury now possibly
is also a “disability” under the ADA.
• Review your medical leave/termination
policies and practices. Permitting an
employee one (1) year of leave and then
following up with automatic termination will
become an improper failure to engage in an
individualized assessment or consideration
of reasonable accommodation options.
• Train your front line. Make sure that your
front line supervisors and managers know
that the ADA exists and can recognize
situations that potentially trigger a response
on your part.
In its preliminary regulation impactanalysis, the EEOC estimated that theresulting increase in reasonableaccommodation requests could range from 2million to 6.1 million. As a result of thesechanges, operating costs are almost certain toincrease for most employers with a largeworkforce. However, with sound policies andprocedures in place, employers can limit theirexposure to ADA claims and better defendagainst such claims if they are �led. ■
NEWADAREGULATIONS
Latosha Dexter, SPHR
Attorney,
Rainey Kizer Reviere & Bell, PLC
B Y L A T O S H A D E X T E R
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12 www.HRprosMemphis.com
President
Austin Baker
President of HRO Partners
and Owner, Owen Brennan's
Restaurant
Past President
Deneen Al-Sadi, PHR
Manager of Employment
City of Memphis
Secretary
Charlene Mitchell, PHR
Human Resource Manager
Huey’s Inc.
Not Pictured: Vice President-Communications, Ted Archdeacon, SPHR: Human Resource Manager,Brother Industries (U.S.A.), Inc.
Vice President-
Communications
Rolana Bourland
Human Resource Generalist
Cummins Mid-South
Vice President-Membership
Yvette Brooks, PHR
Director, HR Analytics &
Technology
Methodist Le Bonheur
Healthcare
Vice President-Membership
Audrey Darnell, PHR
Human Resources
Representative
FedEx Trade Networks
Vice President-Programs
Julieanna Walker, PHR
Workforce Development
Consultant
Vice President-Hospitality
Lisa May
Vice President, Marketing
Data Facts, Inc.
Executive Roundtable Chair
Diane Heyman, SPHR
Global Head of
Compensation and Benefits
Hilton Worldwide
memphis
2011 Board of Directors
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www.HRprosMemphis.com 13
Letter from the President2011 PRESIDENT OF SHRM-MEMPHIS
SHRM-MEMPHISBULLETIN
EMPLOYMENT LAW
Tennessee SHRM Conference in Chattanooga
BENEFITS & HEALTH CARE REFORM
Greater Memphis Benefits Council andHR Professionals in Healthcare
COMPENSATION/PERFORMANCE MANAGEMENT
Mid-South Compensation Association andHR Professionals as Compensation Analysts
STAFFING AND RECRUITING
Corporate Recruiters and NWMS SHRMChapter
PAYROLL AND HRIS TECHNOLOGY
HR Professionals as Payroll Managers of Top 10Companies
EMPLOYEE DEVELOPMENT AND TRAINING
Employee Development and Training ManagersNEA SHRM Chapter & American Society ofTraining and Development
DIVERSITY
Diversity Leaders in Greater Memphis and HRProfessionals in the Public Sector
RETIREMENT PLANNING & 401(K)S
HR Consultants & HR Professionals inRetirement Planning
HR IN FINANCE
HR Professionals in Financial Institutions
HR IN EDUCATION
HR Programs in Local Universities and HRProfessionals in Education
LEADERSHIP
HR Professionals in Publicly Traded Companies
ASSESSMENTS & BACKGROUND CHECKS
HR Professionals as Employment Managers
EMPLOYMENT LAW
HR Professionals as Employee RelationsManagers
BENEFITS AND HEALTH CARE REFORM
HR Professionals as Benefits Managers
COMPENSATION/PERFORMANCE MANAGEMENT
HR Professionals as Compensation Analysts
Austin BakerSHRM-Memphis
2011 President
www.shrm-memphis.org
Dear HR Professional,
SHRM-Memphis would like to work with you to help you accomplish your professional and
community improvement goals. I am so happy to have the opportunity to serve as the
president of SHRM-Memphis this year, we are having a great time and we are growing our
footprint in the community through outstanding partnerships with HR professionals and
organizations in the Memphis area. If you are not a member, please reach out so that we can
show you how you can grow with us. If you are a member and want to get more connected,
you could not have picked a better time to do it.
We are one of the largest associations in the Memphis metropolitan area! We see a huge
opportunity to marshal our resources toward some amazing things for you and for our
community. In January we held a Board Vision retreat and I wish you could have been there to
experience the passion that our volunteers have for helping you succeed in HR. That is why we
are all here right; to succeed in our profession, to be among friends who have the same goals
and of course to have a great time doing it.
This year we are setting out on a new course to do three things. First, we want to reconnect to
you! This year is about thanking you for your service and membership. We want to celebrate
your professional successes and even provide an outlet to work on your greatest challenges.
We work every day as volunteers to serve you the member and to advance the profession of
HR. We want you to be engaged in SHRM-Memphis in a powerfully authentic way. After all,
this is your professional home base and you are among friends.
The second thing we want to do is to help make the ground in which we farm more fruitful.
That is the community that we live in and our talent pool from which we recruit. Does this seem
like a tall order? I don’t think it is considering that we are probably the largest metropolitan
organization in existence and we have the support of many organizations that we will be
partnering with us going forward. This goal will require data, strategy, patience, vision and
passion and we are up to the challenge. In 2011 and beyond we are poised to make
substantive changes in the community. We can help our community be better; after all we do
this for our own organizations! Why can’t we do it for a metropolitan area?
The third major goal is to position SHRM-Memphis as the voice of HR in Memphis! That starts
with you speaking out and us listening, but it also comes from us amplifying your voice. You
have the mic at SHRM Memphis and we want you to speak out. Speak out about state and
national legislation that affects our workplaces. Speak out about how we can improve the
community that we live and work, and speak out about HR’s future role in organizations and
where we are headed as a profession. We are forming key alliances with Mayor Wharton and
Mayor Luttrell’s offices as well as the Chambers and many other very important organizations.
Through SHRM-Memphis you have a “seat at the table” and these organizations have a ready
ear to help us move HR in Memphis forward.
We are bringing you more meetings, better speakers, more socials, really cool community
building opportunities and a fun environment to make it happen. So what are you waiting for?
Get connected and attend an event so that you can be a part of something great today!
Sincerely,
GREATER MEMPHIS
NEWS&ANNOUNCEMENTS
AWARDS | PROMOTIONS | NEWS | RECOGNITIONS
Send us your news:
Does your company have news to share? E-mail
employee recognitions, Business Calendar items and
Announcements to [email protected]. Head-
and-shoulders photo submissions are welcomed, but
should be high-resolution quality (300dpi). Calendar
announcements should be submitted three weeks prior
to the date of the event.
For advertising information contact:
HR Professionals of Greater Memphis,
[email protected] content does not necessarily reflect the opinions of the
publisher, nor can the publisher be held responsible for errors.
EDITORIAL CALENDAR
Look for these topicsin future issues.Your Volume of HR Expertise.
013 Pres Baker/announce/buerq:Layout 1 8/26/11 1:38 PM Page 1
Women on the Move Meeting(L-R) Ginna Word with Vaco Resources, Shelley Baur, author of Integrity-Based
Communications; and Lindsey Roberts with Vaco Staffing at the recent women on
the Move meeting at the Crescent Club where Shelley was speaker.
Lipscomb & Pitts Breakfast Club
(L-R) Kathy Tuberville with University of Memphis Office of Academic Internships
and Kevin Gallagher, Ph.D graduate assistant, and David Allen, Ph.D, at the
University of Memphis display outside Hardin Hall at the Botanic Garden.
Hayley R. Isaac, Associate Director of Christian Brothers University's
MBA Program and Julie Hagar, Administrator to MBA Programs at
the Lipscomb & Pitts Breakfast Club Meeting at Botanic Garden.
L-R Attorneys John Simmons and Matthew Gallagher with
Kisewetter Wise & Kaplan hosted HR Bytes in August.
They discussed the hiring process.
Lunch ‘N LearnJohn Duncan, VP of Membership Development for the
Greater Memphis Chamber of Commerce and Pat-Kerr
Tigrett at the Lunch 'N Learn held at the Ron Terry Center
at First Horizon Bank.
the
SCENE
Attorneys Brent Siler and Joann
Coston-Holloway facilitated a recent
Breakfast Briefing on FMLA.
Attorneys Emily Walker & Jay Ebelhar
spoke on Employee Privacy Claims at
a recent Breakfast Briefing.
Baker Donelson Breakfast Briefing
14 www.HRprosMemphis.com
014 HRscene LEFT:Layout 1 8/29/11 11:05 AM Page 1
Barbara Richman and Joel Myers at
the Greater Memphis Chamber of
Commerce Small Business Council
Breakfast at the Racquet Club.
Jeremy Park, Director of Communications with
Lipscomb & Pitts facilitates a recent Female
Business Leaders Luncheon at the Napa Café.
Pam Green, SHRM's Chief U.S.
Membership Officer was the guest
speaker at the August SHRM-Memphis
luncheon meeting at the University of
Memphis Holiday Inn. She spoke on
"The Future of HR - What's next for the
Profession?"
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9.14.11Building Cases For & Against
Social Media (Seminar)8:30a-10:00a at University of
Memphis Theatre
9.14.11Kick-off Meeting for
University of Memphis SHRMStudent Chapter 4:30 PM –
6:00 PM at the Wilson School(Holiday Inn) Classroom
Building Room 129
9.15.11Baker Donelson Breakfast
Briefing at 165 Madison Ave.8:15 AM – 9:30 AM
9.22.11Reception with Richard Sheirer hosted
by Baptist 5:30p-7:30p at the Children’sMuseum of Memphis
9.21-23.11SHRM TN State Conference in
Chattanooga
9.20.11SHRM-Memphis HRO SeniorExecutive Forum with CFOs7 AM – 11AM at The Holiday
Inn at the University ofMemphis
9.22.11Mid-South Compensation Association
11:30 AM – 1:00 PM At The Holiday Innat the University of Memphis
9.25.11Dress for Success with James Davis
8:00a-9:30a at James Davis
9.27.11Leading Tomorrow Lunch Series hostedby U of M 12p-1:30p at the U of M. Nocharge to attend. 10 business leaders
and 10 students talking about leadershipand the job market.
9.28.11SHRM-Memphis Compensation and
Benefits CEG Meeting 7:30 AM – 10:00AM at the Holiday Inn at the University
of Memphis
Northwest MS Chapter Meeting 11:30AM -1:00 PM
At the Baptist Memorial HospitalDeSoto Room
10.6.11
Lisa Lichtertman Leach and Nicole H. Bermel,
facilitated the HR Lunch Bytes seminar on
revisions in ADA regulations.
Recent ChamberMixer inCollierville at the Avenue Crossing
CALENDAR
of EVENTS
L-R Dr. James Posner, Lori-Turner Wilson, Bill Burtch, and
Darrel Uselton at the Greater Memphis Chamber of Commerce
Small Business Council Breakfast at the Racquet Club in
August. Lori spoke on Securing Your Base - Reaching and
Keeping Your Best Customers.
Jennifer Blake with the Centre Group speaks at
a recent SHRM-Memphis Compensation and
Benefits CEG meeting about the results 2011
Memphis Salary and Wage Survey.
www.HRprosMemphis.com 15
015 HRscene right:Layout 1 8/29/11 11:07 AM Page 1
16 www.HRprosMemphis.com
ScholarshipsThe SHRM Foundation awards $170,000
annually in education and certification
scholarships to professional and student
SHRM members, and doctoral students.
Educational resources. The SHRM
Foundation's Effective Practice Guidelines
series makes research findings easily
accessible to HR practitioners. The
Foundation has also created a series of
educational DVDs for SHRM chapter
programming, staff trainings, and executive
education sessions.
The SHRM Foundation is grateful for the
generous support of its major donors, the
HR Certification Institute, the Society for
Human Resource Management (SHRM) and
the J. J. Keller Foundation. To fund its
programs, the SHRMFoundation conducts an
annual fundraising campaign. ■
The SHRM Foundation is a 501(c)(3) nonprofit affiliate of the Society for Human Resource
Management (SHRM). The Foundation is a legally separate organization, and is not funded
by SHRM membership dues. The SHRM Foundation is governed by a volunteer Board of
Directors from the HR profession, including academics, practitioners and representatives
from SHRM.
SHRMFoundation VisionThe SHRM Foundation is the globally recognized, premier source of human capital thought
leadership and research.
SHRMFoundationMissionThe SHRM Foundation advances global human capital knowledge and practice by providing
thought leadership and educational support; and sponsoring, funding and driving the
adoption of cutting edge, actionable, evidence-based research.
TheSHRMFoundation'swork includes:Innovative academic research grants. The SHRM Foundation is a
leading funder of HR research. Over the past three years, the SHRM
Foundation has awarded more than $1.8 million in grants to
fund rigorous, original academic research with practical
implications for HR management practice.
RECOGNIZED FOR OUTSTANDING CONTRIBUTIONS
TO MILITARY EDUCATION AROUND THE WORLD
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�e SHRM Foundation is the globallyrecognized, premiere source of human capital
thought leadership and research.
TheSHRMFoundation
016 Webster/shrm foundation:Layout 1 8/29/11 12:17 PM Page 1
www.HRprosMemphis.com 17
Did you know that youmust comply with the Uniformed ServicesEmployment Rights Act (USERRA) even ifyou are a company of only 2 employees? Aslong as one of you is “the boss” you arecovered under this act and need to knowyour rights as an employer as well as youremployees’ rights if they are uniformedservice members or are members of theNational Guard or Reserves.There are 7 Reserve forces that fall under
USERRA plus the Public Health Service.However, Guardsmen and Reservists dealwith it the most. Most of them areaccountants, truck drivers, managers, policeofficers, welders, and doctors who makeAmerica’s government and economy thestrongest in the world. But, when theyreceive the call, they are soldiers, sailors,airmen and Marines. They are the peoplewho make America’s forces and security thestrongest in the world.
Almost half of the U. S. Military iscomprised ofmen andwomen serving in theGuard andReserve, and 20,000 of them livein Tennessee!
The support of the business communityis needed to maintain the militia traditionthat has kept our country strong. WinstonChurchill once said, “The Reservist is twicethe citizen”.
Tax Credits for
Hiring VeteransAnd did you know that if you hire a
veteran, you are eligible for tax credits? They
range from $1,500 to $8,000 per hire andare a credit against your income taxespayable. You may go to www.vetjobs.comthat provides automated qualification of allavailable tax credits for each veteranapplicant in addition to screening tools tohelp the employer select the best candidates.
SHRM’s Focus on
Military HiringOver 15 months ago, SHRM signed a
statement of Support with the Employer Support of the Guard (ESGR), pledging tofocus special attention on providingresources and training to HR on successfulrecruitment and retention of service-connected employees. At this time morethan 275 SHRM Chapters and 31 StateCouncils have signed their own ESGRStatements of Support helping makeSHRM a key voice in the effort to increaseemployment opportunities for returningveterans and protecting jobs for those calledto active duty.
Once a year in August officials from theESGR sponsor a breakfast for Memphisemployers and present Patriot Awards tothose with outstanding service to the“Statement of Support” program. For moreinformation, please visit www.esgr.org/sos.
ManagingYour Military Employees
EffectivelyEmployee Relations
GENERAL EMPLOYEE PROVIS IONSHere are some of the general provisions of the act that your employees are entitled to.
GENERAL EMPLOYER PROVIS IONSAs the employer, you have rights also:
A leave of absence for the period necessary to perform military service whether that service is
voluntary or involuntary.
Restoration in employment with seniority, status, and rate of pay as if continuously employed.
Persons are not to be discriminated against in hiring, retention of employment, promotions or
other benefits because of present military affiliation or intent to join the military or Reserves.
You have a right to advance notice of an employee’s military duty except in very rare situations.
You have a right to proof of an employee’s military duty.
Dan F. Callahan, III, Tennessee
representative for ESGR; and
Mary Ann Epperson, PHR, ESGR
volunteer, recently facilitated a
presentation for the SHRM-
Memphis Compensation and
Benefits Career Emphasis Group
at the Hyatt Place on Winchester.
017 Military Employees:Layout 1 8/26/11 1:08 PM Page 1
18 www.HRprosMemphis.com
WORKPLACE PROTECTION LAWS
in theWorkplaceGUNS
BY JONATHAN HANCOCK & WH ITNEY HARMON
Legislative actions often closelyfollow sensationalmedia coverage,a phenomenon recently demonstrated by the introduction of "Caylee's Laws" in states across the country. In the employment world, such
reactionary legislation can often be disruptive, especially when enacted legislation dictates major changes to the rules governing the
employer/employee relationship. Following media coverage of a litany of incidents involving workplace violence and the almost constant
coverage of gun violence in today's society is the recent enactment in certain states, including Tennessee, of workplace protection laws.
This article addresses the context in which these laws have been passed, briefly examines the form of this legislation, and comments on
the immediate impact Tennessee's new law has on employers in this state.
TN
�e legislative enactment of workplace protection laws, whichare broadly de�ned as laws that protect an employee's right to bring�rearms onto an employer's premises if they could carry the weaponin other public places within the state, started in Oklahoma with alobbying e�ort from the National Ri�e Association's Institute forLegislative Action. �ese laws also appear to be a legislative reactionto the widespread implementation by employers of workplace violenceand other policies that, among other things, o�en prohibit employeesfrom bringing �rearms on an employer's premises. �ese policies evenextend in some cases to vehicles owned and leased by the employer.Such policies o�en include zero tolerance principles when addressingthings like employee aggression, violence against co-employees, andthe possession of weapons on an employer's premises. In practice,these policies frequently become the justi�cation for disciplinaryactions in instances where the employee's conduct, or their possessionof a weapon, is considered threatening.
Before examining the mechanics of workplace protection laws,employers must understand the risk management concerns presentedby employee violence. First, and most o�en cited, is the fact that
under the Occupational Safety and Health Administration's(OSHA's) "General Duty" clause employers are required to create "aplace of employment which is free from recognized hazards that arecausing or are likely to cause death or serious physical harm to hisemployees." In addition to employees, employers are required underthis clause to provide protection for all vendors, clients, visitors,solicitors, and anyone in the general public who is on the employer'sproperty.
A second consideration is equally daunting, and it encompassesthe civil tort liability that o�en accompanies incidents of employeeviolence. Should the employer have known that the employee maycause harm to others, and if so, did the employer act reasonably underthe circumstances? What if the employer allowed the employee whocaused the harm to work around tools that could be used as weaponswithout �rst conducting a background check or psychological exam?Is that negligent? If so, depending on who is harmed, and perhapscontingent on the application of the state's worker's compensationexclusivity rule or statute, such a claim could have catastrophic civilrami�cations for employers.
018 Guns left:Layout 1 8/26/11 1:12 PM Page 1
Since OSHA can be preempted by state laws, this solves the problemfor employers in Tennessee facing claims that the practice of allowingguns violates OSHA's General Duty clause.
While Tennessee's legislature did clear upmany of the issues arisingunder OSHA's General Duty clause, it does not provide employerimmunity. Conversely, the statute speci�cally states that "nothing inthis section shall be construed to alter, reduce or eliminate any civil orcriminal liability that a property owner or manager may have forinjuries arising on their property." �e state of the law in Tennessee istherefore this – employers may allow guns on their property withoutviolatingOSHA'sGeneral Duty clause, ormay choose to prohibit gunsand comply with the statute's posting requirements, but in either eventthere will not be statutory immunity and employers are therefore le�to their own devices to guard against claims of negligence and/or othercivil claims.
New gun laws like Tennessee's obviously have the tendency to putemployers in a legal conundrum. Compliance with the law allowingguns on the premises puts employers at risk of violating their obligationto protect their employees, while noncompliance with the law couldsubject them to civil and/or criminal liability, and to penalties in somestates. What if an employee works in one state but regularly visits afacility or work site in another state that has a di�erent law addressingguns in the workplace? Does the employer have tomake an exception,and if so, under which law should the exception be made? And whathappens if an incident of violence occurs in Tennessee and the crimesare committed by an employee allowed to have a gun in his or hervehicle? Is the employer now absolved of liability, or do Tennesseeemployers need to add scrutiny to all employees now allowed to carry�rearms to work?
Unfortunately, for now, employers in Tennessee are le� withoutclear answers to the questions above and themany others that are raisedby the enactment of Tennessee's new law. But there are thankfully stilla number of good practices that can help employers avoid liabilitywhile maintaining a legally compliant workplace. Consider some ofthe following suggestions:
www.HRprosMemphis.com 19
Before we explore the new legislation in Tennessee, it is helpful toexamine the state of the law in contiguous states like Mississippi andArkansas. In Mississippi, the legislative pronouncement reads asfollows:
Mississippi Code Annotated § 45-9-55. Private employers inMississippi are allowed under this law to prohibit guns on theworkplace premises, even if locked in a vehicle, so long as the parkinglot or garage is not available to the general public. Public employers arealso o�ered limited immunity underMississippi's workplace protectionlaws. Arkansas employers have less guidance than those operating inMississippi, as there is currently no statute or regulation that governs�rearms on a private employer's premises in Arkansas.
Tennessee recently joined a small number of states by enactingworkplace protection legislation, and Tennessee employers can nowallow handguns on their property under a bill, S.B. 519, signed intolaw by Governor Bill Haslam on March 31, 2011. While Tennesseelaw already allowed employers to permit employees to possess weaponson their property, the new statute speci�es that an employer’s decisionto permit handguns at work does not constitute an occupational safetyand health hazard for Tennessee employees. Tennessee's new lawspeci�cally clari�es that employers who permit employees to carryweapons on their property do not, by that act, create an unsafeworkplace, thus creating an exemption to OSHA's General Dutyclause. While an administrative law judge did recently rule against anemployee who raised a claim that allowing handguns did violateOSHA's General Duty clause, the Tennessee Occupational Safety andHealth Administration had responded to that ruling by announcingthat such decisions would be made on a case-by-case basis.
Under this statute, an employer in Tennessee may prohibit possessionof �rearms on their property so long as notice is posted. Noticelanguage must be substantially similar to the following:
So long as the notice is posted and in English, it becomes a criminalo�ense in Tennessee to possess a weapon in a building or on propertythat is properly posted. In fact, possession of a weapon on postedproperty is a Class BMisdemeanor in Tennessee, and is punishable bya �ne of $500. However, following the enactment of this law, someemployers that opted to allow handguns found themselves facingcomplaints that this allowance violated OSHA's General Duty clause.In response, Tennessee legislature enacted SB0519/HB0283, whichprovides that an employer permitting a person with a handgun carrypermit to carry a handgun on the employer's property does notconstitute an occupational safety and health hazard to other employees.
JonathanHancock
Baker Donelson
Bearman Caldwell &
Berkowitz, PC
WhitneyHarmonBaker Donelson
Bearman Caldwell &
Berkowitz, PC
1. Draft, implement, and revise as necessary a policy that prohibits workplace violence.Make sure all employees understand what this policy prohibits and the consequencesfor violations.
2. Consider security measures that control access to areas like parking lots wherefirearms can be stored. Restrictions to access can be tricky, but having trained securitypersonnel monitoring such areas can greatly limit the likelihood an enraged employeecan make it to his or her car and back to cause harm without notice and an opportunityto avoid the harm.
3. Train HR employers, managers, and supervisors to spot employee conduct thatcould be troubling. Similarly, make sure these "control group" employees know whento keep a watchful eye on employees, i.e., when bad news is being delivered, duringtermination meetings, etc.
4. Don't be too liberal with gun access. Remember that, at most, these laws only allowemployees to bring guns to work for storage in a locked area in the employee's car. Donot expand that right, as allowing a gun to be locked in a locker, etc., may not be coveredas an exception to OSHA's General Duty clause.
5. Involve the authorities at the first sign of a problem. Waiting too late invites criticism thatmore could have been done to avoid the worst scenarios.
(1) Except as otherwise provided in subsection (2) of this section, a public or private employermay not establish, maintain, or enforce any policy or rule that has the effect of prohibiting aperson from transporting or storing a firearm in a locked vehicle in any parking lot, parkinggarage, or other designated parking area.(2) A private employer may prohibit an employee from transporting or storing a firearm in avehicle in a parking lot, parking garage, or other parking area the employer provides foremployees to which access is restricted or limited through the use of a gate, security stationor other means of restricting or limiting general public access onto the property.(3) This section shall not apply to vehicles owned or leased by an employer and used by theemployee in the course of his business.(4) This section does not authorize a person to transport or store a firearm on any premiseswhere the possession of a firearm is prohibited by state or federal law.(5) A public or private employer shall not be liable in a civil action for damages resulting fromor arising out of an occurrence involving the transportation, storage, possession or use of afirearm covered by this section.
Tennessee Code Annotated Section 39-17-1359 (a)(1) states:An Individual, corporation, business entity or [government entity]… is authorized
to prohibit the possession of weapons by any person who is at a meeting conducted by, or onproperty owned, operated, or managed under the control of the individual, corporation, businessentity or government entity.
As authorized by T.C.A. § 39-17-1359, possession of a weapon on posted property or in aposted building is prohibited and is a criminal offense.
019 Guns right:Layout 1 8/26/11 3:29 PM Page 1
20 www.HRprosMemphis.com
federal health care reform law is unconstitutional upholding thedecision of a federal district court in Florida. The decision declaredthat the individual mandate is not authorized under the CommerceClause of theU.S. Constitution, which permits the federal governmentto regulate interstate commerce.
Legal experts predict that the matter of the mandate’sconstitutionality will hit the U.S. Supreme Court in the upcomingterm rather than waiting for all of the federal appeals courts to decidethe cases pending as a result of the August 12 ruling.
SHRM Position: SHRM has traditionally aligned with otheremployer groups and associations on the issue of health care reform.SHRM supports the goal of providing access to health coverage to allAmericans. While SHRM endorses the continuation of an employer-based system, the problem of the uninsured is not a problem solely tobe resolved by employers and payers. SHRM supports legislation to 1.)Improve health care quality through increased use of healthinformation technology; 2.) Provide greater cost and qualityinformation to payers and patients; and 3.) Preserve employerflexibility in offering health care benefits.
Talking Points: SHRM supports health care reform efforts but isconcerned about proposals that limit employer flexibility in designinghealth benefit plans. Health benefit mandates, however well intended,drive up the cost of health care plans for both employers andemployees. Over a hundredmillionAmericans have health, retirementand other valuable benefits voluntarily provided by their employerunder a nationally uniform framework established by the EmployeeRetirement Income Security Act (ERISA). As such, SHRM opposesefforts to erode ERISA and the employer-based system. Congressshould not erode what works to fix what is broken. SHRM stronglysupports efforts to develop standards for a national health informationnetwork.HR professionals understand that electronicmedical recordscan improve patient outcomes and coordination of care while reducingduplication and inefficiencies in the health care system, all of whichcan reduce costs for employers and employees. ■
We welcome opposing view points and invite you to send your thoughts
to [email protected]. We will publish them in the next issue.
ThePatient Protection
&AffordableCareAct,akaHealthCareReformBY CYNTH IA Y. THOMPSON , MBA , SPHR
Let’s begin with a short review. In March 2010 legislationwas passed mandating major changes to health care practices in ourcountry. The followingmandated benefits became effective sixmonthsafter the legislation on all existing health insurance plans:
• Prohibitions on lifetime limits and rescissions
• Restrictions on annual limits
• Limitations on excessive waiting periods
• Requirement to provide coverage for non-dependent children
up to age 26 who do not have an employer offer of coverage
In 2014 group health plans must prohibit pre-existing conditionexclusions and annual limits. Most of us agree that these provisionswere much needed. But wait, there’s more. Here are some of the othermandates:
• Health Care Exchanges
• Employer penalties for not offering coverage and for offering
unaffordable coverage, aswell as penalties for offering low-value plans
• Tax on high-value plans
• No penalty for waiting periods
• Employer-provided free choice vouchers
• Automatic enrollment procedures and long-term-care
enrollment procedures
• Restrictions on cafeteria plans
• Incentives for wellness
Meantime, while employers are trying to figure out how much it isgoing to cost them to comply, 26 states have sued on the basis that theindividual mandate provision of the federal health care reform law isunconstitutional. On August 12, the 11th U.S. Circuit Court ofAppeals in Atlanta ruled that the individual mandate provision of the
While employers
are trying to figure
out how much it is
going to cost them
to comply,
26 states have
sued on the basis
that the individual
mandate provision
of the federal health
care reform law is
unconstitutional.
020 Healthcare Reform:Layout 1 8/29/11 12:14 PM Page 1
www.HRprosMemphis.com 21
JoyceMargulies, Esq., ofMargulies Employment LawConsulting;andDr. Chuck Pierce, Professor ofHumanResourceManagementat the University of Memphis, led a debate on “Managing HumanCapital Issues from a Legal and Ethical Perspective”.
One of the challenging questions discussed was, “Should yourcompany have a workplace romance policy prohibiting co-workersto date? Dr. Pierce has conducted intense research on this topic.His research shows that employees who participate in a lateral (co-worker or peer-peer) workplace romance sometimes experienceincreased levels of job performance, job satisfaction, and to a lesserdegree organizational commitment. �us, Dr. Pierce'srecommendation is that organizations should implementorganizationally-sensible rather than legal-centric workplaceromance policies.
�ose who disagreed with Dr. Pierce felt that allowing co-workersto openly date increases the possibility of sexual harassment chargesand litigation. Everyone agreed that having a policy will not preventco-workers from dating or falling in love.However, having a policyin place will facilitate disciplinary action if the policy is violated.Some companies require employees to disclose if they are dating aco-worker so that one of them can be transferred to a di�erentdepartment or location. In the event, relocation is not possible;one employee would need to �nd another job. If the relationship isnot reported, both may be terminated.
Another option is to have a policy that prohibits dating between asupervisor and a direct report only. �is type of relationship cancause problems with other direct reports who perceive the directreport who is dating the supervisor as receiving special treatment.�is can be very disruptive to productivity in the work group. Also,there is a much higher probability of a sexual harassment charge inthis situation if the relationship goes sour. ■
(L-R) Joyce Margulies, Esquire, Margulies Employment Law Consulting, Dr.
Chuck Pierce, Professor of Human Resource Management, University of
Memphis, Randy Hutchinson, President of the Better Business Bureau of the
Mid-South, Judy W. Bell, Founder of the Ethics CEG.
ETHICSCareerEmphasisGroup Meeting
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021 Mestmer/Ethics:Layout 1 8/26/11 1:41 PM Page 1
22 www.HRprosMemphis.com
These are the facts: the number one type ofcase filed in federal court is criminal, i.e., thefederal government going after drug dealers,corrupt politicians, and the like. The secondmost filed type of case is employment-related.In the last decade there has been a 200%increase in employment law cases filed infederal court. The South leads in ADA casefilings and 75% of all cases filed involvedischarge. Even if you win your case, you stillhave to pay your own attorney fees.
Avoiding Problem EmployeesOne of the best methods to handle anemployment problem is to not hire one in thefirst place. The hiring process begins with agood application, pointed interviewquestioning and ends not with the applicantaccepting the job, but with the probationaryperiod. Make sure that you have a well-prepared application designed to screen outpotential problems, even before they becomeyour employees. The application should bedrafted and reviewed by an employmentlawyer and should stress previous workexperience and future goals. Make sure yourapplication lets the applicant know he is“employed at will”, subject to drug testing, andthat any omissions or false statements on hisapplication may subject him to discharge.
In-depth InterviewingReview the application with the applicant.Press strongly about the applicant’s prior workexperience. Ask hypothetical questions. Thesequestions can really reveal whether you maybe looking at a problem employee.
Effective Use of the
Probationary PeriodDuring the probationary period, managersshould not only evaluate objective criteriasuch as job performance and attendance, butalso evaluate subjective areas like attitude andwillingness to be a team player. Mostemployees are at their best attitude-wise whenthey first begin employment, so if anemployee shows signs of becoming a problemin this initial period, steps should be taken todeal with the situation immediately before itbecomes a bigger problem.
Handling Problem EmployeesThe most important advice in dealing with aproblem employee is to actually deal with theproblem employee – don’t be afraid toconfront a problem employee. Chances arethis person is adversely affecting morale andproduction in the workplace and can causeyou problems down the road.
Handbooks and Progressive
DisciplineI strongly recommend that every employerhave a handbook. It only makes commonsense. Society can only operate effectivelywhen its people understand what is right andwhat is wrong.While there are pros and consof having a handbook, the pros outweigh thecons. A handbook lets employees know theconsequences of their actions. Much morethan that however, a handbook is aninvitation for your company to communicateto employees all the great benefits yourcompany has to offer.
Critical to this entire process is the need forsomeone knowledgeable in human resourcesto administer this plan. The system shouldhave a mechanism for reporting problems,which goes above and beyond simply filing acomplaint with a supervisor. The immediatesupervisor should not have the final call indiscipline. Rather, another manager,preferably human resources, should reviewthis decision. Finally, a handbook shouldcontain a procedure to report claims ofdiscrimination, harassment, and retaliation.
Rule breakers usually do not get sympatheticattention in a business where employees know
From Hireto FIRESmall Business Practices
022 Hire to fire L:Layout 1 8/29/11 11:21 AM Page 1
www.HRprosMemphis.com 23
that the rules are fair and that they areconsistently applied. But there is where therub occurs. The rules must be appliedconsistently. Periodically conduct employeesurveys to determine whether they feel therules are being applied consistently andfairly. Employee perceptions are the realityof the workplace.
Protecting AgainstWrongful
TerminationIf a problem employee slipped past yourscreening procedures, and your investigationof the incident reveals that discharge iswarranted, you must pull the trigger. Icannot tell you howmany times I have beeninvolved in a lawsuit where the supervisorsays, “I should have fired him when I had thechance.” Generally, if an allegation is madewarranting discharge, you should suspendthe employee “pending the outcome of theinvestigation” after you have interviewed theemployee. There should be a specific rule oroffense the employee has violated. Theemployee should be aware that his conductsubjects him to termination because yougave him a handbook and you have a receiptto show it.
If others have committed the same offenseand have not been discharged, you shouldhave documented the mitigating factorspresent in the current situation thatdistinguishes it from other situations whereemployees were not discharged. You shouldhave investigated all the facts thoroughly.Remember that anyone can sue, but noteveryone is protected under the law.
You must be careful when discharging:
a. minorities
b. females
c. those over 40 years of age
d. employees with serious health conditions
or with chronic attendance problems
e. employees with disabilities
f. employees who have complained of illegal
conduct
g. employees with worker’s compensation
injuries
You should also consider whether aseverance agreement and release isappropriate and whether an exit interviewwould be appropriate under thecircumstances. Please be certain to get advicefrom an attorney before preparing a releaseagreement as the laws continue to becomestricter regarding what agreements will be
upheld in court.
Not every termination is the result of a
violation of company rules, but is still difficult
for the employee to accept. Here are some
more tips for successful termination of
employees. When the termination is not the
employee’s fault, but is the fault of a reduction
in force, reorganization, or some similar
problem, try the following approach:
1. Explain the situation that brought about the
termination.
2. Explain what your company has done to try
to avoid the situation.
3. Explain that the decision has been made to
let the employee go.
4. Express confidence in the employee and
praise the employee’s good service as
applicable.
5. Explain what benefits will be offered and
what assistance may be offered as far as
finding a new position.
6. Give the employee time to react and listen
to his reaction. ■
Charles W.Cavagnaro, JrAttorney with
Evans | Petree, P. C.
"You've gotto come
together as ateam in
Memphis andrealize you're
a sleepinggiant...”
-“Digger” Phelps
023 Hire to fire/R/ ad:Layout 1 8/26/11 1:43 PM Page 1
24 www.HRprosMemphis.com
Elizabeth Merrell SellersVP Human Resources,
Wunderlich Securities, Inc.
What’s your Generation?
No matter what generation
you belong, understanding and
discussing generational differences
are a hot workplace diversity issue when
companies are facing not just four, but now five
generations at work. Some of us may be on the edge of one
generation and act more like the other. Others believe they
are in one generation and look at the chart to be surprised to
find they are in another. Regardless, age-diversity in the
workplace affects work practices. Perceptions towards the
different groups and their work styles are very real.
Generational di�erences and the natural tension between the groupshave been noted as one of the top ten trends of major concern in someform for HR Professionals in surveys since 2005 as so noted in theSHRMFebruary 2011Workplace Forecast. Boomers retiring and/orstaying longer than Gen X’ers created a “gray ceiling” on the toppositions. Generational “values” di�er in perspectives on working toretirement and work/life balance. Companies looking ahead have avalid concern in meshing the groups in their complex workforces, aswell as �nding the highly skilled future workforce needed.
�e May 2011 SHRM HRMagazine’s cover articleManaging
the Generations written by AdrienneFox describes each generation in a section
called “Talkin Bout My Generation.” Astereotype is an oversimpli�ed characterization of
each generation. In a learning environment, employees can learnthat stereotypical generational descriptions do not apply to every personand every situation, but can be used to see how values of each generationwere developed. More highly engaged workforce organizations thatinvest in generationdiversity learninghave less tension, better solutions toissues and a greater understanding between generations within workgroups.
As professionals taskedwith�nding and retaining the best of the best andthen creating a highly engaged workforce, you must �rst know thecomplexity of yourworkforce and your organization’s current and futureneeds. �e second challenge is to create a learning environment whereculture solutions are created that embrace needs of the di�erentgenerations . An example may be di�erent communication methods.Traditionalist, Boomers and some Gen X’ers may prefer e-mailcommunicationswhile otherGenX’ers ,Millennials andGenZ ‘ers preferthe newer social media methods. Whatever your challenge, know thecomplexity of your workforce and teach them to know themselves as acritical starting point. ■
The GenerationsYear Born Nicknames 2011 Ages
1925-45 Silent Generation or Traditionals 66-86
1946-64 Baby Boomers 47-65
1965-80 Generation X 31-46
1981-95 Millennials, Me First Generation or Generation Y 16-30
1996 - Generation Z , Generation 2020 or Digital Natives 16 or less
GENERATIONALUnderstanding
DDIIFFFFEERREENNCCEESS
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www.HRprosMemphis.com 25
Relations Board recently backed the case of awoman who was fired by American MedicalResponse of Connecticut Inc. for Facebookpostings that were critical of her supervisor.Under the National Labor Relations Act –“whether it takes place on Facebook or at thewater cooler, it was employees talking jointlyabout working conditions, in this case abouttheir supervisor, and they have a right to dothat". Be aware that although your companyhas no unionworkers, your employees are stillprotected under the NLRA and may engagein protected concerted activities includingdiscussions about salary. Your companyhandbook should not require confidentialityconcerning employees discussing their salarywith other employees.
Personal Use of
Company InternetMany companies have policies prohibiting thepersonal use of the company Internet. Theymay also have a policy regarding an employee’sright to privacy which advises the employeethat the company computers and Internet arenot for personal use and there should be noexpectation of privacy. However, such apolicy does not entitle the employer to viewan employee’s personal emails because theemployee was using the company computerand Internet to access his personal emailaccount from the workplace, unless thecompany specifically included personal emailaccounts in the right to privacy policy. Acompany is not protected in this situationbecause personal email is not consideredemployer client communication. You shouldalways consult an attorney before viewing anemployee’s personal email.
There are many state and federal lawsgoverning employee privacy and employerrights. Among these are theWiretap Act, theElectronic Communications Privacy Act,Public Disclosure of Private Facts, IntrusionUpon Seclusion Act, False Light and FederalTradeCommissionGuidelines to name a few.You should be aware of your employee’s rightsas well as the employer’s rights beforeimplementing disciplinary actions. ■
Whatistheextentofanemployer'srighttomonitoremployeecommunicationsand/or to discipline employees for improper Internet use, Facebook or blog postings, or othercommunications?What legal rights to privacy does an employee have and what claims may anemployee bring against you for invading his or her privacy?
Use of Social MediaThere is a whole new world oftechnology available toemployees today includingFacebook, My Space, LinkedIn,Twitter, blogs, camera phones,instant messaging, and the listgoes on and on. It seems thateveryone is using socialmedia forbusiness as well as for recreation.The use of social media in theworkplace is becomingmore andmore acceptable. But its use stillcauses problems and concerns foremployers. Two of the mostoften asked questions arewhether it is legal for anemployer to check the social
media of applicants? Can you use social media inmaking hiring decisions? The answer to bothquestions is “Yes”. However, employers must be consistent in their practice of reviewing socialmedia of applicants. You should not check My Space only some of the time. If you use socialmedia to screen applicants, youmust be consistent and checkMy Space on every applicant everytime.
Another question that arises is whether to post open positions on Facebook. Many companiesare now using Facebook and Twitter to attract and retain customers. Should they post openpositions on their company Facebook accounts also? The answer again is “Yes”. This practice isperfectly legal as long as you post all positions. If you only post certain positions, it makes yourcompany liable for disparate action claims or unintentional discrimination, which could attractthe attention of the EEOC should a disgruntled applicant file a complaint.
However, employers should not post job openings exclusively to social media becausemany jobapplicants will not have access to computers or the Internet. Chances are that members ofdifferent protected classes will have less access to a computer and/or Internet, thusunintentionally denying access to jobs to members of those protected classes and potentiallygiving rise to claims of disparate impact claims.
Protected Concerted ActivitiesWhat can an employer do about an employee who posts unflattering remarks about hissupervisor on Facebook or other social media sites? Employers should not discipline employeeswho post unfavorable comments about their supervisor on social media. The National Labor
EmployeePRIVACYCLAIMS
...“whether it takes place on
Facebook or at the water
cooler, it was employees
talking jointly about
working conditions,...”
025 employee privacy:Layout 1 8/26/11 1:45 PM Page 1
Distinguish yourself.
NEW AT CBUNEW AT CBUr SHRM® Learning System/Human Resource Certification Exam
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r RN to BSN Program: 18-month BSN program with nursing
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026 CBU:Layout 1 8/29/11 11:23 AM Page 1
There’s no one-size-fits-all solution to labor
and employment issues. That’s why we
partner with clients to understand and help
meet their specific goals. Our team approach
offers a full-service L&E department within a
full-service firm, so our clients get what they
need, when they need it. And we’re proactive,
providing on-the-ground customized training
and education programs to prevent problems
before they occur.
Clients know it’s not only what we do, but
how we do it, that matters most. It’s how
Baker Donelson has helped clients for more
than 120 years.
w w w . b a k e r d o n e l s o n . c o m
E X P A N D Y O U R E X P E C T A T I O N S
The Rules of Professional Conduct of the various states where our offices are located require the following language: THIS IS AN ADVERTISEMENT. Ben Adams is Chairman and CEO of Baker Donelson and is located in our Memphis office, 165 Madison
Avenue, Suite 2000, Memphis, TN 38103. Phone 901.526.2000. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers. FREE BACKGROUND INFORMATION
AVAILABLE UPON REQUEST. © 2011 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
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OUR JOB:
Know
labor and
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law
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Be a valued part of
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Included in Best Lawyers in America® 2011’s
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www.HRprosMemphis.com 27
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