March 2014 issue

Success(ion) Planning: The Learning CommunityCircle of Life

What Do the Cincinnati Bengals andLady Gaga Have in Common?

Highlights from the 2014 MS SHRMLeaders Retreat

SHRM Talent Management

Conference & Exposition in NashvilleApril 28-30

Trish Holliday, M.A., SPHR

Asst Commissioner Chief Learning Officer

TN Dept of Human Resources

Businesses May Lose

Top Talent in 2014

TM

www.HRProfessionalsMagazine.com

Volume 4 : Issue 3

The things employees say when you’re not around can cause legal troubles for you. Fisher & Phillips provides practical solutions to workplace legal problems. This includes helping you find and fix these kinds of employee issues before they make their way from the water cooler to the courthouse.

1715 Aaron Brenner Drive • Suite 312 • Memphis, TN 38120 • 901.526.0431 www.laborlawyers.com

What you don’t hear can still hurt you.

JUST PUT IT ON THE COMPANY

CARD…NOBODY WILL NOTICE.

YOU’RE REALLY SHOWING OFF YOUR BEST ASSETS TODAY.

I NEVER WEAR THE SAFETY GOGGLES. THEY LEAVE A MARK.

THEY’RE WORRIED ABOUT OVERTIME. I’M JUST WORKING

OFF THE CLOCK.

ATLANTA BALTIMORE BOSTON CHARLOTTE CHICAGO CLEVELAND COLUMBIA

PORTLAND SAN ANTONIO SAN DIEGO SAN FRANCISCO TAMPA WASHINGTON, D.C.

NEW ENGLAND NEW JERSEY NEW ORLEANS ORLANDO PHILADELPHIA PHOENIX

IRVINE KANSAS CITY LAS VEGAS LOS ANGELES LOUISVILLE MEMPHIS

COLUMBUS DALLAS DENVER FORT LAUDERDALE GULFPORT HOUSTON

FISH-216 Memphis HR Pro 8.625x11.125.indd 1 10/4/13 10:19 AM

Bringing Human Resources & Management Expertise to You

Features 4 note from the editor

5 Profile: Trish Holliday

9 Data Facts, Inc. Announces Completion of SOC 1 & SOC II Exams

11 What Do the Cincinnatti Bengals and Lady Gaga Have in Common?

16 The Benefits of Hiring an Often Overlooked Candidate

18 A New Take on an Old Process

22 Success(ion) Planning: The Learning Community Circle of Life

30 Businesses May Lose Top Talent in 2014

32 The Perks of Prior Learning

Departments13 FMLA: Vegas Here We Come!

14 Drug Tests: Are Employee Drug Tests Going Up in Smoke?

20 Employment Law: Working Families Flexibility Act

21 Immigration: Employers Have Two Agencies to Worry About

24 NLRB: When VW Workers Say “No Thank You” to Union

26 Davis-Bacon Act: Bringing Home the Bacon: What the Davis-Bacon Act Means for Your Business

28 Wellness: Getting the Picture – For Wellness to Succeed, Employees Must Be in the Know

29 Workplace Violence: Memphis Area Women’s Council Presents Workplace Violence Conference

34 EQ: Emotional Intelligence and the Business Connection

Industry News 4 AR SHRM State Conference April 9-11 in Ft. Smith, AR

4 MS SHRM State Conference May 6-8 in Biloxi, MS

6 Highlights from the MS SHRM Leaders Retreat February 14-15 in Meridian, MS

7 SHRM Talent Management Conference & Expo April 28-30 in Nashville, TN

8 The HR Scene

Next IssueHighlights from the Tennessee Personnel Management Association Annual Conference

Employment Law & Pending Legislation

EditorCynthia Y. Thompson, MBA, SPHR

PublisherThe Thompson HR Firm

HR Consulting and Employee Development

Art DirectionPark Avenue Design

Contributing WritersBruce E. Buchanan

Deborah ClubbCraig A. Cowart

Carol DanehowerHarvey Deutschendorf

Latosha DexterMary C. HammJimmy HintonTrish Holliday

Timothy LindseyMeghan K. McMahonAbtin Mehdizadegan

Robert D. MeyersRicky ReynoldsBlake Rogers

Meghan StuthardRon Wade

Julieanna WalkerJanie Warner

Board of AdvisorsAustin Baker

Jonathan C. HancockRoss Harris

Diane M. Heyman, SPHRJohn E. Megley III, PhD

Terri MurphySusan NiemanRobert Pipkin

Michael R. Ryan, PhD

www.HRProfessionalsMagazine.com

54%of companies

plan to continue expanding in 2014

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 [email protected]. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors.

HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors.

©2011 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.

HTTP://HRProfessionalsMagazine.com /Exclusives

WEB EXCLUSIVES

3www.HRProfessionalsMagazine.com

Talent Management is the focus of our March issue and we are pleased to present quite a few excellent articles on this topic for you. Don’t miss the SHRM Talent Management Conference & Exposition in Nashville at the Gaylord Opryland Hotel in Nashville on April 28-30! This conference is designed specifically

for recruiters and talent management professionals and will give you the tools you need to move your human capital strategies to the next level. Keynote speakers include Marcus Buckingham, Cy Wakeman, and Margaret Heffernam, all best-selling authors. I had the privilege of hearing Cy Wakeman speak at the 2013 AR SHRM Conference last year and she was totally delightful! See page 7 for registration details.

We are excited to have Trish Holliday, Assistant Commissioner and Chief Learning Officer for the Tennessee Human Resource Department, on our cover this month. Trish is also Chair of the 2014 Tennessee Personnel Management Association Conference that will be in Murfreesboro on April 8-11. The theme of this year’s conference is “Building a Bridge to the Future.” Please see the ad on page 27 for registration details. Trish has also written an excellent article, “Success(ion) Planning: The Learning Community Circle of Life,” you won’t want to miss!

If you are a member of AR SHRM, mark your calendars for the 2014 AR SHRM Conference & Expo that will be in Fort Smith on April 9-11. This year’s theme is “HR in the Land of OZ.” Keynote speakers include Steve Gilliland, Margaret Morford, Garrison Wynn, and Lafeme Batte. I am honored to be speaking at a concurrent session this year, and looking forward to seeing our AR SHRM friends again! My topic will be “When Monkeys Fly – Strategies to Reduce Your Compenation Expense.” Go to http://www.hr2014.org/ for details.

If you are a MS SHRM member, mark your calendars for the 2014 MS SHRM Conference & Expo at the Beau Rivage in Biloxi on May 6-8. I will be presenting a pre-conference workshop on May 6 called “Unmask Your Super Power as a Strategic HR Leader in 2014.” There will be three sessions, Session I – Strategies to Increase Your Executive Presence as a Powerful HR Leader, Session II – Powerful Strategic Communication for HR Executives, and Session III – The Power of HR Metrics – Strategies for Aligning HR With Business Results. I am looking forward to seeing my MS SHRM friends at the pre-conference workshop! Go to www.MSSHRM.org for details.

As you can see, there are lots of opportunities to earn HRCI credits this Spring. Don’t forget our monthly webinar sponsored by Data Facts that will be on March 25 at 2 PM. The topic is Strategic Performance Management – 360 Degree Feedback. Be watching for your email invitation. If you are not currently receiving our monthly webinar invitation, just email me and we will be happy to add you to our subscription list.

a note from the Editor

Cynthia Y. Thompson | [email protected]

Cynthia Y. Thompson with Judy Nail at the MS SHRM Leaders Retreat on February 14 at the MSU Riley Center in Meridian.

Cy Wakeman speaking at the 2013 AR SHRM Conference. Cy will be a Keynote Speaker at the SHRM Talent Management Conference & Exposition in Nashville on April 28-30.

4 www.HRProfessionalsMagazine.com

on the cover

TRiSH HoLLidAy, M.A., SPHRAssistant Commissioner/Chief Learning officerTennessee department of Human Resources

Trish Holliday serves as Assistant Commissioner and Chief Learning Officer (CLO) on the executive team for the Department of Human Resources. She provides state appointing authorities with executive coaching in workforce planning and development. Trish drives the overall curriculum focus and development of the statewide leadership programs: LEAD Tennessee, Tennessee Government Executive Institute, Tennessee Government Management Institute, Tennessee Government Leadership Council, and the HR Masters Series, aligning them with the state’s vision for workforce development. Trish builds relationships with internal and external stakeholders by networking with universities/colleges, national and local industry associations, government entities and non-profit organizations.

Trish is passionate about public service and the opportunity to create learning environments that are engaging, experiential and applicable for the participants. She is a relationship builder and people leader, with over 25 years of experience in talent development, executive coaching, curriculum design, and program management. She specializes in leadership creating and sustaining partnerships and workforce development within all levels of an organization. As a learning facilitator, Trish strives to create development opportunities that stretch and push adult learners to look at new perspectives, broader view points and diverse thoughts. She promotes the philosophy it is important to “grow your own” and “strive to continually improve in all you do to become more effective and efficient.”

Trish is an alumna of the Tennessee Government Management Institute (TGMI) and the Tennessee Government Executive Institute (TGEI) from the University of Tennessee, Institute for Public Service, and of the MT/SHRM Leadership Development Program. She is certified both as a Senior Professional in Human Resources (SPHR), and in the Korn/Ferry International Lominger Leadership Architect Suite. She is a trained facilitator for LEAN Government. Trish is proud to be a graduate of the 2012 class of the Tennessee Bureau of Inves-tigation (TBI) Citizens’ Academy and the Department of Safety’s THP Citizens’ Academy. Trish earned an Associate of Science degree and Bachelor of Science degree from Tennessee Technological University and her Master of Arts degree from Scarritt Graduate School. Trish is currently pursuing her Doctorate in Education (Ed.D.) from Lipscomb University.

Trish Holliday

Trish is a national speaker and serves on several speaker bureaus. She is active on the Board of Examiners of the Tennessee Center Performance Excel-lence (TNCPE). She serves as the Professional Development Chair on the Tennessee Society of Human Resource Management (TNSHRM) State Conference Program Committee and the Middle Tennessee Society for Human Resource Management (MTSHRM) Leadership Devel-opment Program Committee. Trish also serves her community as a member of the Board of Directors for Special Olympics Tennessee, and the Board of Directors for Habitat for Humanity of Tennessee.


MSU Riley CenterMeridian, MS

February 14-15Networking Party & Symphony

Members of MS SHRM were invited to a networking cocktail party with heavy appetizers at The Riley Center on Friday, February 14, which was Valentine’s Day. Following the cocktail party, members attended a special performance by the Meridian Symphony Orchestra. It was a very fun evening!

1 2014 MS SHRM State Council. First Row L to R: Greg Payne, Susan Holland, SPHR; Jacquelyn Mack, PHR; Amanda Ford, Judy Nail, PHR; Cynthia Render-Leach, PHR; Shirley Wyatt-McFarland, PHR; Brandi Garrett, PHR Second Row L to R: Kyle Jones, Andy Austin, Lisa Smith Robinson, Jan Farve, PHR; Scott Richardson, SPHR; Wanda Freeland, SPHR; Lori Chester, PHR; Melissa Drennan, PHR; Chris Byrd, SPHR-CA 2 Greg Payne, Penny Payne, Gerry Hoeffner, Mindy Hoeffner, Cynthia Render-Leach, PHR 3 Meridian Symphony Orchestra 4 Scott Richardson, SPHR; and Susan Desmond 5 Sheri Bedwell, Jacquelyn Mack, PHR; and Dr. Laura Marler 6 Lisa Smith Robinson, Shirley Wyatt-McFarland, PHR; Beverly Washington, Gaius Robinson, Shonda Kines, PHR

Saturday Agenda

Leading from the Heart

7 Renee Dawson, Motivational Speaker

Sweet Whispers In Your Ear – Communicating with Your Volunteers

8 Gerry Hoeffner with Personnel Dynamics Consulting

How SHRM Can Help You in Your Volunteer Role

9 Dorothy Knapp, SPHR, is a SHRM Field Services Director for the MS SHRM

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APRIL 28-30, 2014 // GAYLORD OPRYLAND // NASHVILLE, TN

DON’T MISS OUT! REGISTER NOW AT shrm.org/conferences/talent-management/hrpros

TALENT MANAGEMENT CONFERENCE & EXPOSITION

MONDAY // APRIL 28 9:15 a.m.–10:30 a.m. MARCUS BUCKINGHAM Best-selling Author and Founder of TMBC

Find Your Edge: Win at WorkOften when companies try to reproduce what their best performers do differently, the result is just another lifeless policy that ends up constraining people instead of freeing them to do their best work.

Designed specifically for recruiters and talent management professionals, the 2014 SHRM Talent Management Conference & Exposition gives you the tools, resources and solutions you need to move your human capital strategies to the next level.

Featuring KEYNOTE SPEAKERS

These conferences have been pre-approved for credit by the HR Certification Institute.

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HR

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MONDAY // APRIL 28 3:00 p.m.–4:15 p.m.JOHN FOLEY Former lead solo pilot for the famed Blue Angels flight-demonstration squadron

The High Performance ClimbEvery organization depends upon the performance of its people and its teams. There are few examples where this is more dramatically demonstrated than with the Blue Angels. Foley draws upon his experience as Lead Solo of the Blue Angels to show you how to achieve substantially higher levels of performance. He shows how to create buy-in and commitment for a team’s vision and goals, leading to clarity that drives execution decisions and also accounts for more engaged, more committed employees.

TUESDAY // APRIL 29 8:30 a.m.–9:45 a.m.CY WAKEMAN Best-selling Author and Business Consultant

Reality Based Rules of the Workplace: Know What Boosts Your Value, Kills Your Chances, and Will Make You Happier at WorkTough economic times have left employees feeling dejected and undervalued, having to do the same amount of work with less people and resources.

WEDNESDAY // APRIL 30

8:30 a.m.–9:30 a.mMARGARET HEFFERNAN Entrepreneur, CEO, Columnist and Author

The High Cost of Competition: How to Build a Collaboration TeamHaving spent her career working for organizations such as the BBC and A&E, running the trade association IPPA as well as her own company, Heffernan is an expert on how to get the best from people.


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Memphis Talent Inc.

Workforce Wins and the Way Forward

Panel Discussion presented by HRO Partners in partnership with the Lipscomb

Pitts Breakfast Club on January 31

5 Jeremy Park, President of the Lipscomb Pitts Breakfast Club 6 Austin Baker, President of HRO Partners 7 Memphis Talent Inc. Executive Panelists (L-R) Steven J. Bares, PHD, President Memphis Bioworks; Nathan L. Exxes, PhD., President, SWTCC; Roland Rayner, M.A., Director, TCAT; Naomi C. Earp, J.D., Executive Director, WIN; M. David Rudd, PhD, Provost, U of M; Reid Dulberger, CEcD, CEO, EDGE

Littler Breakfast Briefing on February 6

Social Media and Your Company:The Dos, Don’ts, and OMGs!

1 (L-R) Darius Clay, Elizabeth Rudnick with Littler, and Fabayo Powell 2 (L-R) Scott Chambers and Alex Boals with Littler 3 (L-R) Pat Welch and Rachel Booker 4 (L-R) Talma Crawford, Charlene Mitchell, and Lisa Leach with Littler


Data Facts, Inc., provider of background screening and lending solutions, announced today the completion of the

SOC 1 (Statement on Standards for Attestation Engagements No. 16 (“SSAE 16”)) Type 1 examination and a SOC

2 Type 1 examination.

The completion of the SOC 1 Type 1 examination and SOC 2 Type 1 examination typifies Data Facts, Inc.’s continued

dedication to pioneer and maintain the most stringent controls needed to ensure the highest quality and security of

services provided to their customers. Companies who complete annual SOC 1 and SOC 2 examinations are able to

demonstrate a substantially higher level of assurance and operationally visibility than those companies who do not.

“Completing this is testament to our dedication and determination to be the best we can be with regard to data

security and protection of confidential consumer information,” says Daphne Large, Data Facts, Inc. President. “This

positions Data Facts, Inc ahead of most of our competitors in this arena. We have always put a priority on providing

trusted information as well as stringent compliance practices.”

Data Facts, Inc has always been on the forefront of new solutions, advanced technology, and extraordinary compliance

practices. This latest achievement shows the level of commitment to the most secure practices in the industry.

The examinations were performed by 360 Advanced, P.A., a full-service audit and consulting firm that specializes

in integrated compliance solutions, including conducting SOC examinations. SOC examinations, developed by the

American Institute of Certified Public Accountants (“AICPA”), are the most widely recognized authoritative guidance

that provides service organizations a uniform method for disclosing independently assessed information about the

design and operation of internal controls related to their services.

The Service Auditors’ Reports includes a detailed description of Data Facts, Inc.’s controls and an independent

assessment of whether the controls are placed in operation and suitably designed.

“As our industry continues to evolve and change, Data Facts is committed to being a pioneering leader in compliance

and security best practices,” says Johnna Leeds, Vice President of Compliance.

Data Facts, Inc. AnnouncesCompletion of SOC 1 and SOC 2 Examination


Owen Brennan’s….it may not be located in New Orleans, but it is a heck of a lot closer for those of you who need a dose of that famous New Orleans food fix.

Owen Brennan’s, a family owned and operated restaurant, has been a part of Memphis for over 24 years! That’s right. . . for over 24 years Owen Brennan’s has been serving unique New Orleans style recipes, many of which are original New Orleans - Cajun, Creole and French cuisine. Brennan’s has won many culinary awards including Memphis Magazine’s # 1 Best Sunday Brunch for the last 18 years straight. Memphis Magazine’s 2007 edition Restaurant Guide just awarded Brennan’s 4 awards including #1 Gold award for “Best Sunday Brunch; Silver Award

for “Best Bloody Mary’s; #1 Gold award for the “Best Mimosas; and a Silver award for the “Most Happening Happy Hour.” Now that is impressive….4 awards by Memphis Magazine Reader’s Poll. Other awards include Best Power Lunch and “Most Profitable Business Lunch. Brennan’s has also won awards for “Best Patio,” “Best Seafood,” “Best Place for a Rehearsal Dinner” and “Best Ambience & Atmosphere.” Owen Brennan’s won #1 Best Bloody Mary in the entire State of Tennessee for 2013 in a contest sponsored by Absolut vodka.

$6 by the glass and $5 Hurricanes served in the cocktail area only from 4:30 to 6:30 pm. Come to the place to see and be seen.

Unique food and French Quarter ambiance can be found at Owen Brennan’s. Step Out of Memphis and Into New Orleans. . .enjoy Oysters Bienville, Muffuletta Cakes, Turtle Soup, Crawfish Etoufee, Shrimp & Grits, Pasta Jambalaya, Creole “Hand Carved Steaks,” Bananas Foster, or Jackson Square Bread Pudding just to name a few. Come enjoy our new vegetarian and gluten free entrees. Plus there is a long list of New Orleans favorites from which to choose.

Brennan’s is the best place to relax and enjoy a romantic dinner. With many unique menu items and a long list of wines, you can leave the stress behind as

you “Step Out of Memphis and Into New Orleans.”

You don’t have to go all the way to New Orleans for all that great food and fun . . . Owen Brennan’s is located right here in Memphis at 6150 Poplar Avenue “Poplar & Ridgeway” next to Oak Hall in the Regalia shopping center.

Visit www.brennansmemphis.com to find out what Brennan’s is all about. Laissez Les Bonnes Temps Roulez! (LES BONS TEMPS ROULE) (which means “Let the Good Times Roll”)

Memphis Magazine’s says, “Owen Brennan’s has dished out one of the most decadent Sunday Brunches in town.” “Mardi Gras may have Fat Tuesday; but thanks to Owen Brennan’s every Sunday is “Fat Sunday” around here.” The Lannie McMillan Jazz Trio plays its unique blend of jazz music every Sunday from 10 am to 2:30 pm Brunch. New Brunch seating times are from 9:30 am – 2:30 pm.

Do not forget Mardi Gras is Tuesday, March 4th. The party starts at 4 pm til ? We will have Hurricane Drinks for $5 and 3 wines by the glass for $6. Come early to get the best seat. Jazz music from 6-9 pm, beads and more beads.

Bridal luncheons, rehearsal dinners, business meetings, birthdays, anniversaries, gradua-tions, even engagements. . . Owen Brennan’s is the perfect place to celebrate. Or Owen Brennan’s can bring the party to you with their complete catering service.

And we only get better with age. . . Brennan’s has again become the destination spot once again for its widely known and famous “Wednesday cocktail hour.” During the month of March we are offering 3 wines for

Owen Brennan’s family-owned restaurant serves original, unique New Orleans style recipes cajun, creole and French cuisine

By BECKY BAKER-CRUCIFIxIO

Owen Brennan's fabulous Sunday brunch is a delicious tradition for locals and out-of-towners

Austin and Page Baker

Chef Shorty makes custom omelettes for eager diners

Lannie McMillan with sax in hand

Awarded 2013 Best

Bloody Mary in the state

of TN in a contest

sponsored by Absolut

Vodka


After reading the title of this article, you are probably expecting

the punch line to a bad joke. While there is no punch line

(feel free to come up with your own), please continue reading

to learn how your company can avoid getting into the same

situation as the Cincinnati Bengals NFL franchise and Lady

Gaga’s touring company.

Lady Gaga’s former personal assistant filed a lawsuit claiming that she was improperly denied hundreds of thousand of dollars in overtime pay under the Fair Labor Standards Act (“FLSA”) and state law. Just last month, a Cincinnati Bengals cheerleader filed a lawsuit claiming that the cheerleaders are not properly paid for all time worked under the FLSA and state law. The cheerleader’s lawsuit is filed as a collective action and seeks to allow all “Ben-Gals” since the 2011 season to join in as plaintiffs.

While the factual allegations against Lady Gaga’s touring company and the Cincinnati Bengals franchise are different, both cases demonstrate that common wage and hour issues can arise in even the most uncommon jobs. Nevertheless, taking a look at the allegations made in these two lawsuits provides an opportunity to ensure that your company is taking the appropriate steps to avoid joining the list of FLSA defendants with Lady Gaga and the Cincinnati Bengals. Before diving into the specific allegations, let’s take a look at some of the provisions and requirements of the FLSA that likely apply to your company.

Overview of the FLSAThe FLSA is administered by the Wage and Hour Division of the Department of Labor. The FLSA establishes standards for minimum wage, overtime pay, recordkeeping, and child labor.

The FLSA has broad application. It applies to enterprises with employees who engage in interstate commerce, or handle, sell, or work on goods or materials that have been moved in or produced for interstate commerce. For most companies, a minimum of $500,000 in annual dollar volume of business is required for coverage by the FLSA. However, employees of companies that do not

meet the minimum $500,000 annual dollar volume test may be covered in any workweek when they are individually engaged in interstate commerce, the production of goods for interstate commerce, or an activity that is closely related and directly essential to the production of such goods.

Overtime Pay RequirementsAn employer who requires or permits an employee to work overtime is generally required to pay the employee premium pay for such overtime work. Employees covered by the FLSA must receive overtime pay for hours worked in excess of 40 in a workweek. Hours worked over 40 in a workweek must be paid at a rate of one and one-half the employee’s regular rate of pay. The FLSA does not require overtime pay for work on Saturdays, Sundays, holidays, or regular days of rest, unless overtime hours are worked on such days.

FLSA ExemptionsThe FLSA exempts some employees from its overtime pay and minimum wage provisions, and it also exempts some employees from its overtime pay provisions only. Because the exemptions are narrowly applied, your company should carefully apply and check all terms and conditions for each exemption. The ultimate burden of supporting the actual appli-cation of an exemption rests with the employer.

By CRAIG A. COWART

What Do the

Cincinnati Bengals and Lady Gaga

Have in Common?


Exemptions are typically applied on an individual workweek basis. Employees performing exempt and non-exempt duties in the same workweek are normally not exempt in that workweek.

Some of the more commonly used exemptions include executive, adminis-trative, professional and outside sales employees. When all of the conditions for application of those exemptions apply to an employee, the employee is exempt from both the overtime and minimum wage provisions of the FLSA.

With a general overview of some of the provisions of the FLSA in mind, let’s take a look at the allegations against Lady Gaga’s touring company and the Cincinnati Bengals NFL franchise:

Allegations of Lady Gaga’s FormerPersonal Assistant The allegations asserted by Lady Gaga’s former personal assistant are as harsh as the insults hurled at the end of a “Bad Romance.” While the former assistant was treated as an exempt employee under the admin-istrative exemption and paid an annual salary of $75,000, her lawsuit claimed that she was owed $380,000 in back overtime compensation. The former assistant alleged that her position did not require independent discretion and judgment and, therefore, did not qualify for the admin-istrative exemption. Accordingly, she claimed that she should have been paid overtime for all hours over 40 worked in a week. The former assistant claimed that she was on call 24 hours a day and was owed overtime compensation for 7,168 hours that she allegedly worked in Lady Gaga’s home and while touring and traveling with her around the world.

Cincinnati Bengals Cheerleader Dishes Aboutthe Ben-GalsThe cheerleader’s lawsuit alleges that while cheer squad members put in more than 300 hours each season attending mandatory practices and charity events, they are only paid a flat rate of $90 for cheering at each home game. The lawsuit also alleges that Ben-Gals who do not cheer at a game are paid $45 for the day to make private appearances in the stadium’s luxury suites. The cheerleader claims that Ben-Gals are required to attend two 3-hour practices each week during football season and that absences or tardiness is punished by being benched (and not paid for cheering) at games. Doing the math, the lawsuit alleges that the named plaintiff cheer-leader was only paid $2.85 per hour that she worked when the minimum wage in Ohio was $7.85 per hour.

What Does All of this Have to Do WithMy Company?Your company may not employ people to ensure that the needs of a celebrity pop diva are met. Entertaining and “firing up” tens of thousands of people in a crowd may not be in the job descriptions that cross your desk. But, because the FLSA applies to your employees as well, it is advisable to learn from the allegations in these lawsuits and avoid similar problems in your world.

The Administrative ExemptionLady Gaga’s personal assistant was paid a salary and treated as exempt from the overtime requirements of the FLSA under the administrative exemption. The administrative exemption is commonly relied on by employers in categorizing employees as exempt from the requirements of the FLSA. However, care must be exercised to ensure that all of the require-ments for application of the administrative exemption are met.

To qualify for the administrative employee exemption, all

of the following tests must be met:

•Theemployeemustbecompensatedonasalaryor

fee basis (as defined in the regulations) at a rate not

less than $455 per week;

•Theemployee’sprimarydutymustbetheperfor-

mance of office or non-manual work directly related

to the management or general business operations of

the employer or the employer’s customers; and

•Theemployee’sprimarydutyincludestheexercise

of discretion and independent judgment with respect

to matters of significance.

In addition to the requirement that the employee perform office or non-manual work as their primary duty, a key requirement is “the exercise of discretion and independent judgment with respect to matters of significance.” While the question of whether a personal assistant exercises discretion and independent judgment may not arise at your company, it is a critical question for any employees classified as exempt under the admin-istrative exemption. Not every employee with “administrative” in their title qualifies for the administrative exemption. In reviewing and analyzing your classifications, be sure to ask the “exercise of discretion and independent judgment with respect to matters of significance” question.

Ensuring Payment for All Hours WorkedEmployees at your company may not have to come to mandatory practices each week or be required to attend charity events like the Ben-Gals. However, there are some parallels that are common to many employers, and you should definitely keep your eyes open for potential FLSA issues.

Well-meaning managers might have 5 or 10 minute meetings at the beginning of the day or shift. If such meetings are mandatory and involve information related to work, ensure that employees are on the clock and being paid.

Other well-meaning supervisors might ask employees to “stick around” for a few minutes after work or “come in a few minutes early” to learn how to use new equipment or software. Regardless of the good intentions, it is important to ensure that all job related time spent by employees where work is “suffered or permitted” is paid.

Take AwayEmployees at your company may not travel the world with a pop star or cheer for an NFL team in front of tens of thousands of fans. Nevertheless, you are well served to ensure proper application of exemptions under the FLSA and that employees are paid for all compensable time – even if that time is not spent jetting around the world or making appearances at charity events.

Craig A. Cowart, PartnerFisher & Phillips LLP

[email protected]


The Family and Medical Leave Act gives an eligible employee a right to twelve weeks of

protected leave for certain qualifying reasons. One of those qualifying reasons is to care for

the employee's spouse, son, daughter, or parent with a serious health condition, as defined

by the FMLA. At first glance, this seems like an easy enough analysis. However, do we

really understand what “to care for” means? The regulations state that it encompasses both

physical and psychological care. Examples provided by the regulations include situations

where the family member is unable to care for his own medical, safety or other needs or

needs help in being transported to the doctor. The regulations also specifically state that the

term “to care for” includes providing beneficial “psychological comfort and reassurance” to

a family member who is receiving inpatient or home care. But how far does this definition

go? Would it encompass a vacation to Las Vegas with a terminally ill family member?

The Seventh Circuit Court of Appeals was recently confronted with just that question and

reached a surprising conclusion.

Let’s go to VegasIn Ballard v. Chicago Park District, Ballard’s mother was diagnosed with end-stage congestive

heart failure and began receiving hospice care. Ballard lived with her mother and acted as

her primary caregiver. As her mother’s condition progressed, Ballard told the hospice social

worker that she had always wanted to take a family trip to Las Vegas. The social worker

contacted The Fairygodmother Foundation, a charitable organization that grants wishes

to individuals with terminal illnesses, which granted Ballard’s mother a six-day trip to Las

Vegas. Ballard requested FMLA leave so that she could accompany her mother on the trip.

Although the employer denied Ballard’s request for FMLA leave to accompany her mother

on the trip, she went anyway. On the trip they participated in typical tourist activities such

as shopping, dining at restaurants and playing slots. Admittedly, there were no plans for

Ballard’s mother to seek professional care, therapy or treatment while on the trip. Ballard

returned to work on January 28, 2008, and was subsequently terminated for unauthorized

absences in March of that year. And, of course, she filed a lawsuit under the FMLA.

The Court’s DecisionIn defending its actions, the employer argued that “to care for” in the context of an away

from home trip should be limited only to services provided in connection with ongoing

medical treatment. The court rejected this argument stating that the regulations speak in

terms of “care” not “treatment.” The court also saw no basis for distinguishing between care

provided at home and care provided away from home as the FMLA contains no geographic

restrictions on care. Finding that the FMLA defines “care” expansively by including both

physical and psychological care, the court found that the employee’s request for FMLA

should have been approved. The mother’s basic medical and physical needs did not

change while in Las Vegas, and Ballard continued to assist her mother with those needs

while on the trip.

At a time when employees are becoming savvier and FMLA abuse is rampant, the Ballard

decision places employers in a precarious situation. If a trip is not required to be either for

ongoing treatment or for the purposes of receiving treatment, an employee could simply

take any qualifying family member along on a vacation and claim FMLA leave. Employers

will now be required to exercise even more due diligence to ensure that FMLA rights are

not being abused.

Lessons LearnedAlthough this case involved a grant of summary judgment where the court must accept the plaintiff’s version of the facts as true, it is still instructive. The court’s decision reinforces that employers should not reject out of hand an employee’s request for FMLA just because the employer does not think it is covered. The term “to care for” and the FMLA regulations expand the traditional boundaries of FMLA leave. Therefore, employers should carefully consider the leave request and determine whether it fits within the regulations. The medical certification has become even more important and employers should ensure that the certification describes the family member’s serious health condition and clearly indicates that the employee will actually care for the family member while on the requested leave. When in doubt, employers should seek clarification as allowed by the regulations. Employers should also consult with counsel when the route to take is unclear as the regulations contain other language which could be subject to interpretation. For example, in one case an employee was denied leave to go to the hospital to consult with his sister regarding whether his mother should continue on life support. The employer did not consider it leave “to care for” a family member as the mother was non-responsive and because the sister was already at the hospital and available. The court held that the employee should have been granted leave because the regulations encompass situations where an employee needs to make arrangements for changes in care and the fact that the sister was available was irrelevant. Therefore, it is clear that the regulations encompass an expansive view of caring for a family member. Employers should continue to require certifications, determine the primary purpose of the trip, and ensure that they have a clear under-standing of the employee’s caretaking responsibil-ities while on the trip before rejecting a request out of hand.

Latosha Dexter, SPHROf Counsel

Rainey, Kizer, Bell & Reviere [email protected]

www.raineykizer.com

By LATOSHA DExTER

Vegas Here We Come!FMLA leave to “care for”

a family member


On January 1, 2014, the nation’s first marijuana retail stores opened in Colorado. This landmark event came approximately 14 months after Colorado voters approved a constitutional amendment to legalize the recreational use of marijuana in November of 2012. Article XVIII, Section 16, of the Colorado Constitution—popularly

referred to as Amendment 64—was adopted into law on December 10, 2012. Amendment 64 authorizes state entities to regulate and tax marijuana in a manner similar to alcohol. Accord-ingly, individuals aged 21 or older can legally possess, use, and distribute marijuana under state law. Washington State has similarly legalized recreational marijuana, and Washington, D.C. and at least 20 states—including Colorado and Washington—have authorized the use of marijuana for medical purposes. This month, state Representative Sherry Jones (D-Nashville) introduced legislation in Nashville to allow people suffering from certain diseases to use marijuana to treat their symptoms, provided that a doctor states the benefits of using cannabis outweigh its risks in each patient’s particular case.HB1385 is known as the Koozer-Kuhn Cannabis Act. Similar legislation is also pending in eight other states, meaning that medicinal marijuana could soon become the majority rule in the United States.

Colorado’s example marks a dramatic legal and political shift, and the new laws could poten-tially impact employers who promote a drug-free workplace. As state laws have become more accommodating towards marijuana use, discharged employees have begun to challenge common practices such as mandatory drug tests and employee termination. Employers should be aware of these cases as they proceed through the state and federal court system. At present, however, both state and federal law afford companies the right to continue restricting employee drug use.

Federal Controlled Substances ActDespite new state laws liberalizing marijuana use, it is still illegal to possess and use marijuana under the federal Controlled Substances Act. 21 U.S.C. § 811. The Controlled Substances Act lists marijuana as a Schedule I controlled substance, indicating it has high potential for abuse and has not been accepted as a safe form of medical treatment within the United States. The U.S. Attorney General’s office reiterated this designation in response to the ballot initiatives in Colorado and Washington. More recent guidance from the federal government suggests

By ROBERT D. MEYERS and MEGHAN K. MCMAHON

Are EmployeeDrug Tests

Going Upin Smoke?

that the Department of Justice will prioritize the prosecution of marijuana-related crimes of national significance, which excludes many individual recre-ational users; however, the Controlled Substances Act remains unchanged. Employers may therefore take comfort in the fact that both medicinal and recreational marijuana use continue to be prohibited under federal law.

Amendment 64Colorado employers will also be insulated from employee claims of discriminatory practices or privacy violations by the text of the enabling legis-lation, Amendment 64, itself. The Amendment specifically states that employers shall reserve the right to continue drug testing and similar practices:

“Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”

COLO. CONST. art. XVIII, § 16.

The Amendment further provides that employers may restrict the possession, distribution, or use of marijuana on company property.

Because Amendment 64 is still in its infancy, Colorado courts have yet to interpret its provisions. Nevertheless, employers can anticipate that courts will analyze recreational marijuana disputes using a similar framework to that in place for medicinal marijuana use.

Colorado’s Lawful Activities StatuteRecent litigation involving marijuana in the workplace has focused on whether employers in states that have decriminalized medicinal marijuana can restrict its use outside of working hours. Colorado’s Lawful Activities Statute forbids an employer from termi-nating an employee for engaging in a lawful activity off-premises during nonworking hours. COLO. REV. STAT. §24-34-402.5. Despite Colorado’s legal-ization of medical and recreational marijuana, much controversy has centered on whether these uses can be properly described as lawful within the meaning of the Lawful Activities Statute.

The Lawful Activities Statute carves out three explicit exceptions in which an employee’s termination will not be considered discriminatory. Employers have the authority to enforce company policies restricting employees’ lawful activities when the policy relates to an occupational requirement, when the policy


relates to an employee’s particular job responsibilities, or when a conflict of interest may result. If any of the three statutory exceptions apply, employers have firm legal grounds to drug test employees and terminate those with positive tests.

Recent CasesEven when the Lawful Activities Statute’s exceptions are not applicable, both state and federal courts have interpreted its provisions in favor of employers. In Coats v. Dish Network, LLC, 303 P.3d 147 (Colo. Ct. App. 2013), the Colorado Court of Appeals reasoned that to be “lawful” within the meaning of the statute, an activity must comply with federal, as well as state, law. The plaintiff employee in Coats had obtained a license from the State of Colorado to use marijuana for medicinal purposes. Although he alleged that he had never used marijuana at work or been under the influence on company premises, he was still fired after failing a drug test pursuant to company policy. The Coats court explained that in order for an employee to receive the protection of the Lawful Activities Statute, his conduct necessarily cannot be contrary to federal or state law. Although state law permitted the plaintiff to use medical marijuana, federal law still prohibited marijuana use and did not recognize an exception for medical necessity. As a result, the use was not lawful, and the employer did not discriminate in terminating the employee.

Similarly, the U.S. District Court for the District of Colorado agreed that Colorado’s Lawful Activities Statute does not extend to an employee’s firing due to medical marijuana use. In Curry v. MillerCoors, Inc., No. 12-cv-02471-JLK, 2013 WL 4494307 (D. Colo. Aug. 21, 2013), the Court held that employers are entitled to implement and enforce written drug policies, and Colorado’s statute does not shield an employee from the company’s standard practices. Put simply, the plaintiff employee had been terminated because of his misconduct, not because he had a disability.

Since individuals with severe illnesses and disabilities are afforded more protection under the law than healthy people, it is unlikely that courts bound by the precedent of Coats and Curry would afford protection to employees who use marijuana recreationally. We can therefore expect courts to lean just as heavily in favor of employers—if not more so—once disputes arise in the wake of Amendment 64.

Washington and Other JurisdictionsColorado’s growing body of case law serves as a reliable indicator of how other jurisdictions will treat the same or comparable issues. Washington State—which is expected to open its own retail marijuana shops later this year—has similarly dismissed medicinal marijuana users’ claims against employers. The Supreme Court of Washington explained that allowing such actions for wrongful termination directly conflicts with the state’s long-standing at-will employment doctrine. Roe v. Teletech Customer Care Management LLC, 257 P.3d 586 (Wash. 2011). While public policy may in some instances overcome the state’s deference towards employers in termi-nation decisions, the Roe court found that a clear public policy existed against forcing employers to sanction their employees’ illegal activity.

In James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012), The Ninth Circuit Court of Appeals likewise emphasized the federal prohibition on marijuana in denying protection for medicinal marijuana users under the Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq. (“ADA”). Much like the District of Colorado in Curry, the James court deter-mined that while the underlying illness necessitating medicinal marijuana treatment may qualify as a disability for protection under the Americans with Disabilities Act, use of marijuana in itself does not.

Employer Best PracticesIn sum, Colorado’s Amendment 64 has not resulted in the complete legal-

ization of marijuana in Colorado. Employers may still prohibit employees from using marijuana and conduct drug testing in furtherance of corporate policies for the time being; however, the state of the law is not yet well-settled. In early January, the Supreme Court of Colorado granted certiorari to review the dismissal of Coats at the appellate level. Employers should continue to monitor the Colorado case law—as well as legal developments in other states and the District of Columbia—and evaluate their employee policies as the landscape develops.

While other states permitting medicinal marijuana are likely to follow Colorado’s lead, employers should still proceed with caution until they are familiar with the laws of a particular state. Unlike Colorado and Washington, several states have explicitly written employee protection provisions into legislation authorizing medicinal marijuana. Employers should be mindful of the statutory protections for marijuana users in each state in which they conduct business. As a best practice, all employers should reiterate to employees that violations of federal controlled substance laws are still grounds for termination and revise their corporate policies as necessary.

Meghan K. McMahon, AttorneyGlankler Brown

[email protected]

Robert D. Meyers, AttorneyGlankler [email protected]


While achieving the goal of hiring the very best for our company, sometimes the best might be found in an often-overlooked source pool. This source is the under-resourced within the community who haven’t had the opportunities to apply for a good job with a good company.

Oftentimes I have had employers tell me that the best employee they have hired recently has been one that appreciates their job and comes from an unlikely hiring pool. The employee’s appreciation has been seen in hard work, a good attitude and outstanding outcomes in their position.

Who are the Under-Resourced?They are those that cannot get an interview because of their previous incarceration status. They are those individuals who did not finish high school. They are those who have never seen a solid role model in their home and who have never worked before. HopeWorks specializes in helping these individuals find success for themselves and their families.

HopeWorks has successfully helped graduates obtain full and part time employment for over 25 years. Last year was our most successful year with over 100 men and women hired with better than 45 different companies. Most of these hires would not have occurred without the student’s willingness to go through an unpaid 13-week career readiness program complete with mentors, internships with local companies, attendance goals and passing random drug tests.

Alumni meetings improve the chances of low turnover rates with the companies that hire our graduates. These small group meetings provide a self-made support system to work through employee issues outside of the regular work place.

A Win-Win-Win situationIt is a win for the company in the sense that they have an employee who is thrilled to be employed and makes a maximum effort to prove that the company made a good decision taking a chance on him or her. A dedicated employee who appreciates the company’s desire to look beyond past mistakes generates loyalty, which is a dying attribute for many employees today. The cost to train an additional employee is an expense that might be reduced by taking that second look.

It is a win for our community, especially if the new employee had been previously incarcerated. The incarcerated population is much larger than we realize. Did you know that the latest statistics indicate that 1 out of every 99 American adults is incarcerated presently. Equally important is that 95% of all people incarcerated will be released to return to the community. The recidivism rates, those returning to prison once released, are high throughout the county and the country. Lowering the rates of recidivism is a financial benefit to the community. The conservative figure to house a person in prison is approximately $23,000 per year. If he received a $20,000 entry-level job, the positive swing to our community would be $43,000. Do this 12 times, and it makes over a $500,000 contribution to our community. Financially it makes sense for the community to consider employing this overlooked segment of the population.

It is obviously a win for the under-resourced person because now he has the dignity and confidence to provide for himself and for his family. He has the tools and guidance necessary to break the cycle of genera-tional poverty.

Personal ExperienceHaving come from the corporate environment with RR Donnelley prior to taking the Executive Director position at HopeWorks, my corporate hat and previous sales experience affected my hiring vision.

Needing a workforce developer to make business contacts to provide opportunities for our graduates, I looked for someone who looked like me and had the necessary sales background. After all, I felt like I knew the marketplace and knew the decision makers within various businesses. I knew what the sales process was about and how important visibility and credibility are to maintaining continued good relationships. Looking back, I was wrong and limiting in my view of people.

I interviewed at least 5 individuals over the course of about 6 months and never found the right fit. One day a graduate of our program approached me for a volunteer opportunity since she was between jobs. My first impression was that she would not be able to do the job, nor would she have the tenacity that it would take to make significant sales calls to employers to make the sale. Disappointment in the sales process often results in doom and gloom for the representative. Little did I know that the word disappointment and rejection were common in her background having come from generational poverty?

She didn’t look like me; she didn’t talk like me, but she exceeded my expectations in a major way. She asked only for a chance to show what she could do. She worked harder and smarter and with more passion than almost anyone I found in the corporate arena. She is not only responsible for over 100 graduates being hired last year, but she works passionately and takes ownership for her areas of responsibility.

Tara Albright is not the only person that can work with passion and be a tremendous credit to your organization. There are many men and women like her, if only given the chance to shine. They can be that incredible diamond in the rough that if overlooked may be costly to your company.

If I can provide additional information regarding the benefits of taking that second look, please contact me at www.whyhopeworks.org or [email protected].

Ron WadeExecutive Director | HopeWorks, Inc.

[email protected]

By RON WADE

Benefitsof HiringAn Often Overlooked Candidate

Benefitsof HiringAn Often Overlooked Candidate


Ogletree Deakins lawyers in Jackson, Mississippi work closely with Human Resource professionals, business executives, and in-house counsel to anticipate, prevent and resolve legal issues in the workplace. Our experience and knowledge of our clients’ industries and legal challenges enable us to serve their interests effectively and efficiently.

We remain committed to providing our clients with an insider’s view of the workplace issues of the day.

With more than 650 attorneys in more than 40 offices located in the United States and Europe, the firm combines local knowledge and strength with national resources.

Working Together in Mississippi

Jackson office attorneys L-R: Timothy Lindsay, Robin Banck Taylor, Kristi Haskins Johnson, Bert Ehrhardt

100 Renaissance • 1022 Highland Colony Parkway, Suite 200 • Ridgeland, MS 39157 • 601.360.0995www.ogletreedeakins.com

LAW FIRM OF THE YEAR Litigation – Labor & Employment LAW FIRM OF THE YEAR Employment Law - Management

&EMPLOYERSLAWYERS

Remember when you were in HR “school” and you learned the “art” of inter-viewing job applicants? Whatever your training venue, you were probably taught the basics of what to ask and what not to ask. You were likely given the dire consequences of crossing those boundaries of interview etiquette and promised

yourself you would never be the HR professional whose name was in the paper for discrimi-natory hiring practices.

Yep. We’ve all been there. And those lessons are still good. However, the time has come when we, as the Human Resource gurus that we are – and we all are, aren’t we? – need to move beyond the basic interview to something deeper, more meaningful, more insightful and ultimately more successful. If we are to be perceived as contributing to the real mission of our HR department, we have to step up our game.

Let’s take a quick look at a few ways we can improve on screening and interviewing.

SCREENING OF APPLICANTSUsually, we take applications and/or resumes, review them and weed out those who do not meet minimum criteria. Unfortunately, we often weed out those that we believe exceed criteria. Why is that? Typically, the reviewer will shy away from those considered “over qualified.” They will presume that an applicant who is interested in a position which will not allow them to utilize all their skills, knowledge, training and experience, will grow bored quickly. Perhaps the thought is that they are just looking for a stepping stone to that next big job and that they will be hired but gone as quickly as that ideal job comes available. Maybe.

What if our response to this assumptive thinking was “So?” Maybe we will only have them for a short period. If we’re smart, we look at their superior experience and determine if we could bring them on board and use that experience to move us forward. What if that salesperson has sales management experience? Couldn’t we hire this applicant (cheaper than a management consultant) and engage them in ways that we could never engage a person who meets minimum criteria?

It really takes a bit of vision to see beyond “filling the job” to “hiring for the future.” Sometimes those short-term hires can make a much bigger impact in the few months they are with us than if we pass on them to simply fill today’s need.

THE INTERVIEWLet’s not belabor all the stuff we can and cannot ask. We all know those things. We’ve done it, taught the class, made the video and posted it on Facebook. But what about the questions we can ask but don’t? Here are a few questions that deserve a chance.

“Why are you looking for a job change?” If the applicant is currently working, this is a good question to ask. The answer should give you some insight into what’s important to the applicant in a job. That information is useful in

determining if they will be happy or unhappy at your organization. If you know they will have the same issues at your company, pass on them.

If they are not currently working, ask questions about why they left their previous job. Ask how they feel about that parting of ways. Was it amicable? Was it a lay-off? Were they terminated for performance? If so, ask them if they believe that termination was fair. Their answers may surprise you and provide insight into their work style.

“ What is/was the mission of your current/last employer, and what does it mean to you?”

This will take folks by surprise. We all have our mission statements plastered all over the walls, our letterhead and our advertisements. An exceptional applicant will be able to tell you (not necessarily quote it verbatim) why that company exists. Once they do, ask them how that mission applied to them in their position. This is a great way to gain insight into how engaged the employee will be with your organization. We should become concerned about “employee engagement” before they are hired. Start learning about the applicant’s ability to engage in corporate mindset before they ever get a job offer. A savvy applicant will understand that and rise to the challenge.

“ Who was the best and worst boss you ever had – and why?”

Best boss stories are very telling. It will give you information about what type of management and leadership to which this person will respond well. Do they revere the lenient supervisor who was flexible and understanding when they were chroni-cally late? Or did they appreciate the manager who treated everyone tough but fair? A bad boss tale is equally telling. You may hear responses like “he/she treated me like a child and I am NOT a child.” Ask for specifics, because this sometimes means that the employee simply doesn’t like to be managed. In either case, you have clear indications of how well the applicant will fit into your management structure. If you know the management style of the super-visor they will be working for, you can better match applicant to the appropriate manager.

LAST WORdWhile none of these suggestions are ground-breaking, re-examining our recruitment process can be just the jump-start we need to make meaningful changes that will affect the success of our organization – and bring kudos and more value to our HR function. It’s really a win-win.

Janie Warner, MS-HRM, SR HR ConsultantRegions Insurance, Inc.

[email protected]

A NEW Take on an OLd Process

By JANIE WARNER


SETTING YOU ON THE RIGHT PATH FOR SUCCESSFUL BENEFITS MANAGEMENT

Monitoring changes with today’s employee benefit laws can be overwhelming for even the most seasoned HR professionals. And, with more than 50 categories of regulations, nearly every aspect of the employer-employee relationship is impacted.

Regions Insurance is able to assist you each step of the way in navigating today’s benefits rules, while helping you manage and protect your organization’s growth, profitability and people.

WE SEE THE BIG PICTURE.

Tom Hayes Employee Benefits Practice [email protected]

479-684-5259

Katrina McKinney Sales & Marketing [email protected]

Find Regions Insurance offices in these states: Alabama, Arkansas, Georgia, Indiana, Louisiana, Mississippi, South Carolina and Tennessee

Timothy Lindsay, Managing PartnerOgletree Deakins

[email protected]

For quite some time, federal, state and local government employers have enjoyed the freedom of allowing employees to take compensatory time or paid time off (PTO) in lieu of payment of wages for overtime hours worked under the Fair Labor Standards Act (“FLSA”). 29 U.S.C. §207(o). To date, this freedom has not been extended to employers and employees in the private sector. We routinely are put in a position of informing or reminding our non-government clients that a proposed “comp time” policy is not doable for them under the FLSA. While there have been past efforts in Congress to allow private sector employers the opportunity to offer comp time-off, these efforts did not make it very far in the legislative process. Fortunately, efforts to extend the “comp time” practice to private employment continue in the form of a bill introduced on April 9, 2013 and sponsored by Repre-sentative Martha Roby (R-Ala.), the Working Families Flexibility Act of 2013 (H.R.1406). The Working Families Flexibility Act (“WFFA”) would amend the FLSA for the express purpose of permitting private employers to provide employees with the option of accruing paid time off in lieu of receiving monetary wages for hours worked in excess of 40 during a workweek. On May 8, 2013, the bill passed by a slim margin in the House of Representatives. Next stop, the United States Senate, where the legis-lation (now S.1623) was assigned for consideration to the Committee on Health, Education, Labor, and Pensions on October 30, 2013.

As currently written, WFFA would allow a private employer and employee to agree, in writing, that the employee will receive compensatory time off in lieu of payment of monetary wages for hours worked in excess of forty during the workweek. The written agreement must be signed before the work is performed and, at a minimum, reflect that the employee “has chosen” the compensatory time off method over monetary wages and that he/she has “knowingly and voluntarily” entered into the agreement. In other words, an employee may not be forced, intimidated or coerced into waiving his/her right to payment of monetary wages for overtime hours. Before this option may even be extended, WFFA would require that an employee work at least 1,000 hours of continuous employment for the employer during the 12-month period preceding the date of the agreement. Calculation of the amount of compensatory time off earned is the same as if paying monetary overtime wages – i.e., one and one-half hours for each hour worked in excess of forty during a given workweek. Accrual of compensatory time off would be capped at 160 hours. In addition, all accrued and unused compensatory time off from the prior year must be paid in monetary wages not later than January 31 of each calendar year, or not later than 31 days after the end of a different 12-month period designated by the employer. The rate to be paid for each hour of accrued compensatory time off is the employee’s regular rate when the compensatory time was earned or the employee’s final regular rate (or rate at time of payment), whichever is higher.

Proponents of WFFA, including the Society for

Human Resource Management (SHRM), point to the flexibility the

legislation would provide workers with families by allowing them the opportunity to

accumulate paid time off that can used to care for their children or attend to other family or personal

matters when necessary. Put another way, WFFA is intended to and would give workers a better opportunity to balance

work and family obligations. For the private employer, being able to provide comp time in lieu of overtime monetary wages could provide relief for any short-term cash flow issues the company may experience and allow it to avoid the drastic remedial measure of a temporary layoff or reduction in force. Despite what appears to be sensible and logical reasons for WFFA, the White House, along with various special interest groups, is openly opposed to the legislation. An editorial in the Wall Street Journal seems to pinpoint the Administration’s motivation for opposition: “The politics at play here is White House fealty to unions.” Wall Street Journal, War Against Working Women (May 10, 2013).

It is not a secret that union interests have been at the Washington forefront during President Obama’s administration, certainly more so than with any other administration of the recent past. The decline in union membership over the years has prompted union activists to exert much effort toward reversing the trend. Needless to say, the more carrots a union can offer to lure members, the better their chances in winning representation elections and increasing membership. One of the carrots a union may use to entice employees is the union’s ability under the FLSA to negotiate flexible working hours and time off through a collective bargaining agreement. See 29 U.S.C. §207(b). However, WFFA would eat most of that carrot since employees would be allowed to negotiate receipt of compensatory time-off in lieu of monetary overtime wages without the need for a collective bargaining agreement and the resulting monthly payment of dues. Therefore, the unions are opposed to WFFA since it does not directly benefit them as a business and impacts their sales pitch to prospective members.

The proposed Working Families Flexibility Act of 2013 makes a lot of sense whether you are an employer or hourly employee. The common thread is we have families and, consequently, flexibility in the workplace can be a good thing. Unfortunately, the prospects of WFFA being passed and signed into law in its present form, if at all, are not very bright. Indeed, President Obama has threatened to veto the legislation even if it survives the Senate. We’ll just have to wait and see.

The Working Families Flexibility Act of 2013An Opportunity for Private Sector

Employers and Employees

By TiMOThy W. LinDsay


OSC Enforces Anti-Discrimination Provision of the INA - Document Abuse and Citizenship and National Origin Status Discrimination OsC is responsible for enforcing the antidiscrimination provision of the immigration and nationality act (ina), which prohibits citizenship and national origin status discrimination in hiring, firing and recruitment or referral for a fee, as well as document abuse - discriminatory i-9 form and E-Verify practices. if a company becomes overzealous in making sure all employees are authorized to work in the United states under the immigration Reform and Control act (iRCa), by requesting more documentation or certain documentation for non-citizens, it could be in violation of the antidiscrimination provision of the ina.

Office of Special Counsel’s Settlements in 2013 The OsC has been especially active recently in investigating and settling allegations under the antidiscrimination provision of the ina. in 2013, the OsC reached settlements with 20 employers concerning issues of document abuse or citizenship discrimination. The total penalties paid to the U.s. government in these 20 cases were approxi-mately $788,500 with the largest penalty of $250,000, being paid by Centerplate, inc., due to alleged document abuse. in addition to the civil penalties, employers paid approximately $260,000 in back pay to individuals who were alleged to have been discriminated against.

Litigation of OSC Cases before OCAHO The Office of Chief administrative hearing Officer (OCahO) issued eight decisions, which involved alleged document abuse, citizenship or national origin discrimination or retaliation for previously filing an OsC charge. although the OsC investigated each of the charges, it deferred to each Charging Party to file a Complaint against the employer. inter-estingly, only one of the eight Charging Parties won their litigation before OCahO. in that case, Breda v. Kindred Braintree Hospital, a physician proved the hospital retaliated against him as a non-U.s. citizen after he filed an OsC charge.

Example of OSC’s Most Recent Settlement with an Employer in January 2014, OsC reached a settlement with sD staffing LLC (sD staffing), aka atwork Personnel services inc., a Massachusetts company, resolving claims that the staffing company engaged in a violation of the ina. The case began as a referral from the U.s. Citizenship and immigration services (UsCis) based on the company’s use of E-Verify. The investi-gation found that sD staffing required work-authorized non-U.s. citizens to produce specific documents in connection with sD staffing’s use of the E-Verify program. The investigation confirmed sD staffing requested unnecessary documents to work-authorized non-U.s. citizens, but not to similarly-situated U.s. citizens. Under the settlement agreement, sD staffing agreed to identify and provide back pay to individuals who suffered lost wages between september 2011 and January 2014 as a result of the company’s alleged discriminatory documentary practices and pay $10,500 in civil penalties to the United states government.

Employers Have Two Agencies to Worry About for Immigration-Related Penalties

When one thinks of immigration-related penalties, one usually thinks of the penalties assessed by Immigration and Customs Enforcement (ICE) for I-9 form violations. However, a second agency is involved in immigration-related penalties – Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, an agency within the Department of Justice.

Litigation before OCAHO concerning I-9 Form Violations in 2013, there was significantly greater litigation at OCahO involving i-9 form violations. Furthermore, iCE, the prosecutor of the cases, won 29 of the 30 decisions. however, even though iCE won, in part, all of the 29 cases involving the level of penalties, the employers were successful in greatly reducing the level of penalties. in 2013, OCahO reduced penalties sought by iCE by an average of 46.5% - reducing the penalties sought by iCE from $1,091,259.75 to approximately $508,020. The reduction in penalties is similar to 2012 when the reduction averaged 45% although it only involved 11 cases. you may ask - what led to the reduction in the penalties by OCahO? The primary reasons for the reductions were the poor financial condi-tions of the companies and the court’s belief that the iCE penalties sought were “unduly punitive” on small employers. The only case won by an Employer at OCahO involving i-9 form violations was United States v. California Mantle, Inc., where the issue was whether the employer and iCE reached a settlement, whereby the employer would pay $8000 in penalties in exchange for a dismissal of the case. iCE asserted no agreement had been reached because it was seeking a Consent Decree, not a settlement with dismissal of the allegations. OCahO examined the e-mail communications between the two parties and concluded the parties had in fact agreed on such a settlement. Thus, although California Mantle had to pay $8000 in penalties, it got a dismissal of the case.

Example of Recent OCAHO Decision concerning I-9 Form Violations in late January 2014, OCahO issued a decision in U.S. v. Two for Seven LLC d/b/a Black & Blue Restaurant, wherein a new york restaurant was assessed penalties of $88,700 by OCahO for numerous i-9 form violations. however, the good news for the restaurant was it was successful in reducing the penalties from $264,605, which iCE sought for the i-9 form violations.

Settlements of I-9 Form Violation Cases it is unknown how many cases were settled by iCE related to i-9 form violations but i would estimate there were hundreds of such settle-ments. it is known that in fiscal year 2012, there were 495 final orders for payment of i-9 form penalties totaling over $12.4 million.

Takeaway Employers need to be aware of the fact that there are two separate agencies, iCE and OsC, which can investigate them for allegations related to i-9 form violations, where it involves substantive errors on the i-9 forms, or document abuse or citizenship or national origin status discrimination. Both types of investigations can lead to costly penalties and even back pay in some OsC cases.

By Bruce e. Buchanan

Bruce E. Buchanan, attorneysiskind susser P.C.

[email protected]


By TRish hOLLiDay

Success(ion) Planning:

The Learning Community

Circle of Life

Learning Communities: A major emphasis lately is on creating a learning community within an organization in order to prepare for the challenges of the future. Michael J. Marquardt even goes as far as to state, “Unless an organization continuously adapts to the environment via speedy, effective learning, it will die.” Rather blunt words, and such sentiment is even more emphasized when he writes, “Learning inside must be equal to or greater than change occurring outside the organization or the organization dies.” In his opinion, learning within an organization is not simply a nice “add-on” feature, but a necessity. A learning community within an organization does not materialize overnight, nor is it built in a day. Senior leadership has to set the vision, communicate it effectively, support it and continually encourage employees throughout the organization to embrace it. A true learning community infil-trates all levels throughout the organization. As Peter Senge discussed in his book, The Fifth Discipline: The Art and Practice of the Learning Organization, learning with an organization starts with the individual, and it takes the entire organization. As individuals within an organization, learning needs to be seen as a continuous process, not one time events, and taps into the creative possibility each person has within. At the organizational level, all employees are engaged in the learning process, by fostering and enhancing thinking, communicating and cooperating among all levels of employees. The Department of Human Resources for the State of Tennessee embraced the importance of creating a learning community within state government. In order to prepare for a challenging future, clear strategies were needed to develop necessary core skills, attract and retain those skills, and ensure solid leadership is in place over time. A “Circle of Life” for creating sustainable leadership initiatives was developed by the Chief Learning Officer, Trish Holliday, and implemented within Tennessee state government. The Circle of Life contains five stages: Diagnose the Need; Demonstrate the Urgency; Build a Support Structure; Develop the Program; and Evaluate for Continual Improvement. The following explains how the Department of Human Resources created a learning community as part of its succession planning strategy.

Diagnose the Need: Human Resource professionals are constantly being warned of the impending exodus of the Baby Boomer generation from the workplace. This exodus will not only result in many leadership positions becoming vacant, but perhaps more importantly the loss of institutional knowledge and key leaders. Such knowledge about how to really get things done around here is gained through years of experience, and it will simply walk out the door in the very near future unless HR professionals become intentional in establishing knowledge management systems that capture the essential information. If organizations are going to survive the Boomer exodus, workforce planning strategies must be developed and implemented. The need for creating learning communities within organizations is now ever more critical.

Demonstrate the Urgency: Tennessee state government faces this reality and stands

to lose much of its leadership and institutional knowledge through impending retirements. With a heavy Boomer

population – approximately 49% - occupying positions within state agencies, and with a vast number of them eligible to retire in large numbers in the next 5 – 10 years, the ability to continue to effectively and efficiently provide the services to citizens could very well be impeded. HR professionals within state government had to develop strategies to meet this

challenge. It isn’t that there is a need, it is that the need is so urgently staring state government squarely in the

face. The need for creating a sustainable workforce via a learning community is urgent.

Build a Support Structure: An initial, and very strategic, move in creating a learning community was to first gain the support of key stakeholders in state government. Without the support of senior leadership, most initiatives that require change will lose momentum within an organization. The key stakeholders were in the Governor’s office and the Commissioner of the Department of Human Resources. The vision and strategy development was led by a remarkable leader, Rebecca Hunter, Commissioner of the Tennessee Department of Human Resources. Her extensive knowledge in government and extraor-dinary leadership skills gave her the foundation needed to lead Tennessee state government through transformational change. Commissioner Hunter modeled the way through her life-long learning approach to developing sustainable change as she crafted the state’s learning and development vision for the workforce. A support structure that included the highest levels of leadership in state government was built.

Develop the Program: Commissioner Hunter’s first strategy executed was putting in place the appropriate infrastructure to lead transformational learning and devel-opment throughout the state. She created the state’s first Chief Learning Officer role in the summer of 2013, with the vision of repositioning and redefining workforce learning and development. She championed the idea of creating a learning community within state government that would prepare a pool of potential leaders ready to step in and lead state agencies when positions became available. One of Commissioner Hunter’s first moves was to appoint to the new Chief Learning Officer position Trish Holliday, who at the time was serving as Director of the Strategic Learning Solutions Division, the unit within the Department of Human Resources tasked with the responsibility of developing and implementing all state-wide learning and development programs. The Department agreed with Michael Marquardt who said, “Organizations that learn faster will be able to adapt more quickly and thereby achieve significant strategic advantages in the global work of business.” The importance of creating a learning organization has been proposed by Peter Senge who stated that learning organizations are “…organizations where people continually expand their capacity to create the results they truly desire, where new and expansive patterns of thinking are nurtured, where collective aspiration is set free, and where people are continually learning to see the whole together.” (1990:3) Chief Learning Officer Trish Holliday’s learning and development philosophy defines the learning process by emphasizing that organizational leadership and individuals realize learning is a continuous process, not a one-time event and that learning must be acted upon. She calls upon leaders to realize that the intel-lectual capacity of employees is a resource to tap into and leadership must create an environment that fosters and enhances collaborative thinking, communicating and cooperating among employees.


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Trish hollidayassistant Commissioner and

Chief Learning OfficerTennessee Department of human Resources

[email protected]

Chief Learning Officer Holliday teaches how a true learning organi-zation differs from that of a traditional organization in multiple aspects. Perhaps two critical aspects are how learning and growth are viewed and how creativity is embraced. Traditional organizations often limit partici-pation in employee learning and development whereas the learning organi-zation strategically promotes the learning and development of employees. Creativity and diversity are viewed as critical in learning organizations, but may be stifled in a traditional organization. The strategic solution embraced by the Tennessee Department of Human Resources was to build a current pool of employees who have been prepared to step in and assume leadership roles by creating a learning community within the organization. This strategy would fill the imminent leadership gap by developing the needed core skills, attract and retain those needed skills, and ensure that solid leadership is in place over time. The result of this strategy was the creation of LEAD Tennessee, a premier leadership devel-opment initiative for Tennessee state government. The program received international recognition by being awarded the 2010 International Public Management Association HR Excellence Award. Together, Commissioner Hunter and Chief Learning Officer Holliday engage the support of other state executives making LEAD Tennessee a collaborative leadership initiative that is responsive to the needs of state government. LEAD Tennessee is grounded in the learning philosophy of “Learn, Apply, Lead.” The first tenet of all leadership development is to prepare competency based material for participants to learn. The second tenet is that learning must be applicable to the work the employee does. The third tenet is that the participant should be able to make a difference in his or her workplace the very next day. Participants attend full-day summits that focus on competencies chosen by state executive leadership. At each summit, subject matter experts discuss current concepts about the chosen compe-tency. State executives provide insights on how to be an effective leader in state government. Community business leaders share their experiences in being a leader in the private sector. Each participant takes a 360 assessment based on the competencies both before beginning and after completing the year-long program. For focused guidance, each participant is assigned a practicing executive leadership coach who provides personal coaching throughout the duration of the program.

Evaluate for Continual Improvement: This statewide leadership development program is one key strategy that Tennessee state government has implemented to create a learning community that will enable leaders to meet the challenge of the future. The ongoing challenge of the Chief Learning Officer is to maintain an environment in Tennessee state government that is exemplified by a mindset of continual learning, and to ensure leadership development programs such as LEAD Tennessee prepare leaders to meet the upcoming challenges of the future. Through a variety of means, such as participant surveys, focus group studies, etc., the program is constantly being evaluated. Every three years the compe-tencies that determine the curriculum are reevaluated and either maintained, or new competencies chosen, to ensure that state leaders have the knowledge and skills necessary to achieve the mission of state government. Effective succession planning and learning communities require the participation of an entire organization. However, for continuous learning to permeate the culture of an organization, it requires visionary leaders who model the way. Tennessee state government is becoming a learning organi-zation due to the leadership of Commissioner Hunter, who truly models the way of lifelong learning.


Volkswagen employees in Chattanooga recently voted against having the UAW represent them as their union. Looking at the statistics for union membership, this outcome was hardly surprising. In 2013, the national union membership rate for both public and private sector workers was 11.3 percent. In Tennessee, that number was even lower at 6.1 percent. And no foreign-owned automaker with a production facility in the South has a unionized workforce.

Some of the most vocal opponents of the union were Tennessee lawmakers, including Governor Bill Haslam, who claimed that if the UAW represented Volkswagen workers the state would have difficulty attracting suppliers to the area. Senator Bob Corker similarly urged workers to reject the union, stating that Volkswagen would add a new mid-size SUV production line to the Chattanooga plant if there was no union in place.

German-Style Works Council: A New Labor Relations Model?But the outcome of the UAW vote in Chattanooga was somewhat unexpected due to Volkswagen’s role in the process. First, Volkswagen did not oppose union membership and signed a neutrality agreement with the UAW in which it stated its belief that a modified German-style works council was in the common interest of the company and its employees. In fact, Volkswagen began meeting with UAW officials in 2013 to discuss the ways a works council could be established.

Under German law, companies with at least five regular employees must allow their workers to elect a number of special representatives who form the works council. Members of the works councils enjoy special job protections. Works councils have rights to information and “co-determination rights,” which means that before the company makes decisions about certain subjects, including methods of production and restructuring, the works councils are entitled to submit their opinion about the proposed action. Notably, the company finances the works council. Works councils must cooperate in good faith with the employer and with any trade unions that represent the employees.

In the U.S., section 8(a)(2) of the National Labor Relations Act makes it unlawful for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.” 28 U.S.C. § 158(a)(2). Numerous attorneys and law professors have commented that because this section of the Act bans company unions, Volkswagen cannot implement a German-style works council at its Tennessee plant without a union in place.

Were Tennessee Politicians to Blame for the UAW’s Defeat?A week after the election results, the UAW filed objections with the National Labor Relations Board, claiming that several state officials, including the aforementioned politi-cians, “conducted what appears to have been a coordinated and widely-publicized coercive campaign” to prevent Volkswagen’s Chattanooga employees from exercising their right to select the UAW as their representative under the NLRA. A copy of these objections is available at www.uaw.org. The UAW asks the NLRB to set aside the election based on this “third-party misconduct” and characterized Corker’s comments as a “classic ‘fist inside the velvet glove’ threat: if you vote against the Union, you will be rewarded, but if you go the other way you will be punished.” The United States Court of Appeals for the Sixth Circuit

has noted that the NLRB “rarely overturns the results of a representation election because of misconduct not attributable to a party to the election” and that the alleged misconduct must be “‘so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible.’” N.L.R.B. v. V & S Schuler Eng’g, Inc., 309 F.3d 362, 375 (6th Cir. 2002) (citations omitted).

Union Membership May Be Low, But the NLRB’s Interest in Scrutinizing Employment Policies Remains HighFor its part, Volkswagen is reportedly moving forward with its objective to set up a works council that complies with U.S. law. But even if Volkswagen’s efforts never culminate in an American version of a works council, its employees, like most private-sector employees in the U.S., still have protections under the National Labor Relations Act. In addition to their right to form or join a union to represent them, employees must be allowed to engage in protected concerted activity, which means two or more employees — or an employee acting on behalf of a group — discussing, complaining, or taking some sort of action related to the terms and conditions of their employment. For example, two employees discussing their wages would be protected concerted activity. Employees must also be allowed to choose not to engage in protected concerted activity.

The National Labor Relations Board has taken issue with what it views as employer policies that restrict concerted activity. The NLRB has found that policies that broadly restrict employees from discussing workplace issues on social media violated the Act. In another case, the NLRB characterized as “overly broad and ambiguous” a confi-dentiality policy that defined confidential information as including “personnel information and documents.” Although this policy was most likely intended to protect employees from disclosure of information in their personnel files, the NLRB found that it could be read to prohibit discussion of wages and other terms and condi-tions of employment. The NLRB has also scrutinized individual employer policies that, for example, promote civility in the workplace and broadly restrict the messages that employees can display on their clothing, all under the guise that such policies are too broad and limit employees’ right to engage in concerted activity.

Even if you are not anticipating a wide-spread union campaign — complete with state politicians proclaiming how union representation would be devastating for employees and the region as a whole —anytime soon, remember that your employees do not need a union like the UAW to engage in protected concerted activity. Make sure that your employee handbook’s policies are narrowly tailored and do not present a barrier to employees exercising their rights under the National Labor Relations Act.

By MaRy C. haMM

Mary C. hamm, attorneyBurch, Porter & Johnson, PLLC

[email protected]

When Volkswagen Workers Say “No, Thank You” to Union,

UAW Responds With Allegations of Misconduct by

Tennessee’s Politicians


Federal contractors will face unique challenges in 2014 under the current

regulatory climate within the Department of Labor (DOL). Specifically,

contractors can expect to face heightened scrutiny under the Davis-

Bacon Act with respect to prevailing wages as the current administration

pursues its general pay equity and pay gap policy agenda. Given the

regulatory climate at the DOL, you should ensure that your company is

ready for a potential compliance audit that 2014 may have in store.

History and Purpose. Congress enacted the Davis-Bacon act (the act) in 1931 during the Great Depression. at the time of its enactment, the federal government funded 60 percent of new construction in the country. The abundance of cheap labor and the desperation for work during the first years of the Great Depression resulted in a reduction of construction wages by 50 percent. The stated purpose of the act was to protect local contractors and workers from travelling construction workers who would travel into an area in which there was a federal construction project and take those jobs for low wages. if there were no wage floor for government contracts, the effect of awarding government projects to the lowest bidder would be to depress local wages as contractors cut wages to compete and win federal construction work. Thus, the act set prevailing wage rates on federal projects so that competition for this work would not further drive down local wage rates.

The Act. The act applies to contracts in excess of $2,000 to which the United states or the District of Columbia is a party for the construction, alteration or repair of public buildings or public works. such contracts must contain a clause setting forth the minimum wages to be paid to various classes of workers. The secretary of Labor has the authority to establish minimum wages to be paid to the various classes of “laborers” and “mechanics” employed on covered construction projects, which are based on the wages determined by the secretary to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a similar character in the state or other civil subdivision in which the contracted work is to be performed.

The term “prevailing wage” is not defined by the act, however, which has been the subject of significant litigation. The courts are generally in agreement that the legislature intended to delegate the task of defining “prevailing wage” to the DOL, and thus the secretary has authority to define prevailing wage. The DOL, in turn, defines “prevailing wage” for each classi-fication of laborers or mechanics as the wage paid to the majority (more than 50 percent) of the laborers or mechanics in the classification on similar projects in the area during the period in question, or if the same wage is not paid to a majority of those employed in the classification, the average of the wages paid, weighted by the total employed in the classification.

Depending on the circumstances, a wage determination made by the secretary may be generally applicable to all construction of a particular type performed for the government in a specified area (a “general wage deter-mination”), or it may apply only to a specific construction project (a “project wage deter-mination”). The wage determinations made by the secretary may be reviewable, however, under the administrative Procedure act. Once the secretary has made the necessary wage determinations for the various classes of employees expected to perform work on a particular contract, the wage determinations

BRINGING HOMEthe BACON: What The Davis-Bacon Act Means For Your BusinessBy aBTin MEhDizaDEGan


must be included in the advertised specifications for the contract. in addition, the contracting agency must designate specifically in any bid solicitations and contract specifications the work to which the wage determinations will apply. Every contract based on these specifications must contain a stipulation that the contractor or its subcontractor will pay all mechanics and laborers employed directly on the site of the work, unconditionally and not less than once a week, and without subsequent deduction or rebate on any account, the full amount of wages accrued at the time of payment, computed at wage rates not less than those stated in the advertised specifications, regardless of any contractual relationship that may exist between the contractor or subcontractor and the laborers and mechanics.

Implications. Contractors should be aware of Davis-Bacon compliance because the DOL may penalize a contractor by withholding contract payments in amounts sufficient to satisfy liabilities for underpayment of wages and for liquidated damages for overtime violations. in addition, violations of Davis-Bacon contract clauses may be grounds for contract termination, contractor liability for any resulting costs to the government and debarment from future contracts for a period up to three years. Without question, Davis-Bacon violations come with a significant price tag. Davis-Bacon violations are partic-ularly prevalent in the context of misclassification of employees as independent contractors. While DOL Wage Determinations do not apply to independent contractors, liability attaches when employers misclassify laborers or mechanics as independent contractors. additionally, because prime contractors may be held liable for subcon-tractor violations, prime contractors should not rely on subcontractor classifications of employees without further inquiry.

This year, contractors should be particularly focused on Davis-Bacon compliance with respect to employee classification because, under the federal stimulus package, the DOL Wage and hour division hired hundreds of additional auditors to increase its Davis-Bacon enforcement activities. now, Wage and hour auditors are increasing the use of “sweep audits,” in which they randomly and without any notification arrive at worksites and examine everyone on the project, holding prime contractors liable for every tier of subcontractors. Prior to 2013, the DOL averaged about 400 Davis-Bacon investigations per year. The 2013 goal for investigations was 1,100. Likewise, the DOL previously averaged about 30 debarments per year, but increased its goal in 2013 to debarring 90 companies. Because wage and general pay equity issues are high on the current administration’s policy agenda, contractors will only face heightened scrutiny in 2014.

With increased focus on Davis-Bacon audits and investigations, contractors should prioritize compliance efforts. Contractors would particularly benefit from external employee classification audits, conducted confidentially by counsel under the protection of attorney-client privilege and attorney work-product, to ensure compliance with Davis-Bacon’s prevailing wage requirements. an ounce of prevention in ensuring compliance with the act will protect your company against the risk of losing a lucrative government contract and, in the long run, will save you time, money and employee resources.

abtin Mehdizadegan, associateCross, Gunter, Witherspoon & Galchus, P.C.

[email protected]


Y You can offer the best wellness program around, but if your employees don’t know about it, you’re getting a poor return on your benefits investment. That means your workers miss out on the opportunity to improve their health and productivity. And you don’t reap the cost savings you’re banking on. Employers are increasingly looking to wellness programs as a way to deal with the rising costs of employee benefits. In fact, a Government Finance Officers Association survey found wellness-related initiatives were among the top cost-control strategies implemented by employers. Nearly 80 percent say they’ve added wellness initiatives to their benefits programs; and 90 percent of them would recommend this strategy to others. A 2013 Aon Hewitt survey showed wellness programs were also top of mind, with employers ranking increased participation in these programs as the number one outcome they hope to achieve from their health plans. Seventy-six percent of employers said they seek to increase participation in wellness, health improvement and disease management programs. There’s a good reason employers look to wellness programs to save money. The return on investment speaks loudly, regardless of company size. Though estimates on ROI vary, for every dollar invested in wellness programs, companies can save at least $2 in health care costs and absen-teeism, according to the Wellness Council of America. Wellness initiatives also help employers increase productivity, morale and retention, which supports the bottom line. A Virgin HealthMiles survey of more than 89 percent of employees say the range of a company’s health and wellness benefits is important in their choice of an employer. And 51 percent of wellness program participants said these benefits encourage them to work harder and perform better, according to a 2012 Principal Financial Well-Being Index.

Who’s offering wellness programs? The majority of companies today offer some type of wellness program or wellness-related initiatives. According to a 2013 survey of employee benefits by SHRM, 77 percent of employers offer wellness resources and information, and 64 percent offer wellness programs. Companies offer a wide range of preventive and health benefits, from on-site flu vaccines and CPR training to 24-hour nurse lines and on-site fitness centers. Regardless of the number and type of wellness benefits offered, employees must choose to participate in them or they won’t be effective. And that’s where the rub comes in for employers — 58 percent report low engagement as the greatest obstacle to the success of their wellness initiatives, according to Towers Watson.

Lack of awareness affects participation One reason participation lags in many wellness programs is lack of awareness. Employees can’t participate in company wellness programs if they’re not aware of what’s being offered. But employers and employees don’t see eye-to-eye on this issue. According to a 2012 Workforce Management survey, more than 57 percent of employers believe their employees have a good understanding of the health and wellness programs they offer and how they can participate. Yet only 41 percent of employees say their employer does a good job of keeping them informed about the health and wellness services available to them. To combat this awareness problem, employers need to take a closer look at their benefits communi-cation efforts.

A personal approach to benefits communication can improve participation Improving a company’s benefits communication efforts can stimulate employee engagement and participation in its wellness program. Commu-nication activities can take many forms. Some companies adopt wellness “champions” or ambassadors who help spread enthusiasm about the program throughout the organization. Other businesses include regular articles in company newsletters or distribute personal benefits statements that highlight the company’s total compensation package. Some companies turn to outside resources for communications support. Partnering with a reliable benefits carrier that offers a full slate of enrollment services, as well as one-to-one benefits counseling, can help your clients achieve the desired results from its wellness initiatives. Individual, personalized benefits education and consistent wellness messaging go a long way in helping employees understand the importance of wellness and how it can improve their lives. Some companies offer these services at no charge as part of their enrollment process. Surveys of employees who meet individually with benefits counselors during their enrollments prove the effectiveness of the one-to-one method. Virtually all (97 percent) employees surveyed after enrollment by Colonial Life in January 2013 say personal benefits counseling improved their understanding of their benefits, and that this type of communication is important (98 percent). In addition, employee morale can improve as workers begin to feel better about themselves and their employers.

Don’t throw your wellness investment out the window Benefits budgets are tight. Consequently, you’re placing even higher hopes on getting a good return on your employee wellness investment. Don’t throw good money out the window because of poor benefits commu-nication. Partner with a carrier that specializes in one-to-one benefits counseling and drive the participation that will help you maximize your wellness dollars.

Getting the PictureFor wellness programs to succeed,employees must be in the know.

By BLakE ROGERs, JiMMy hinTOn and RiCky REynOLDs

Ricky Reynoldsarkansas/Oklahoma territory sales manager, Colonial Life & accident insurance Company

[email protected] www.coloniallife.com

Jimmy hintonMississippi territory sales manager, Colonial Life & accident insurance [email protected] www.coloniallife.com

Blake Rogers Tennessee territory sales manager,

Colonial Life & accident insurance [email protected]

www.coloniallife.com


One tragic day in November, the front page of The Commercial Appeal bore stories of two women, two teachers, killed by their husbands. Both women were trying to leave these men. They died trying to free themselves from relationships they chose to end. Both women were employed, working every day with educated, observant colleagues. At a conference on April 11, local experts in risk, security, law, human resources and domestic violence will help local employers understand and prepare for the impact of domestic violence in the workplace. Presenters include Shelby County Mayor Mark Luttrell; Dr. Carol Danehower, associate professor of management, Fogelman College of Business & Economics, University of Memphis; attorney Bruce Kramer; First Horizon senior vice president and manager of corporate security Sheila Bramlitt; Memphis Police Col. Mike Ryall; BCBST security and safety manager David Lafontaine; Hilton Hotels human resources manager Patricia Thompson and Susan Picart, Methodist Healthcare EAP counselor.

Recertification Credits Offered Registration is underway now for the conference called “Violence at Home. Victims at Work. Employers Confront Domestic Violence.” Go to memphisareawomen.eventbrite.com. This session should count toward four hours of general re-certification credit for PHR and SPHR. The conference, organized by the Memphis Area Women’s Council, will be held at the Urban Child Institute, 600 Jefferson downtown, beginning with breakfast at 7:30 a.m., sessions from 8 a.m. to noon. Mayor Luttrell will talk about the importance of business leadership as part of a community response to violence and officials with Verizon Wireless will describe their corpora-tion’s outreach to their employees and beyond. Panelists will equip employers, managers and human resource and security professionals to “recognize, respond and refer” when colleagues and employees struggle with violent relationships. They will give real-life examples of how local companies have responded thru human resource and security steps. The conference tool-kit will provide awareness materials for use in the workplace and a resource guide. Employers who tune in to this violence and its potential are worried about employee safety and protection, insurance costs, OSHA fines, liability, productivity, morale and cultural problems. We demonstrate how to listen without judging, how to offer support and information appropriately and without pressure, and how to adjust your workplace culture to be pro-active around this issue whether your enterprise is four persons or 4,000.

Problem’s Scope Tremendous The local challenge is enormous: In 2012, the Memphis Police Department handled 21,375 domestic violence cases. The county’s domestic violence court sees 140-170 cases a day. New research by the Tennessee Economic Council on Women reports that Tennesseans spent or lost at least $886.1 billion in 2012 as a result of domestic violence, human sex trafficking and sexual assault. The estimated cost to Tennessee employers/workplaces for lost productivity and lost wages is $203 million. Our police officers and deputies respond to an average of 60 911 calls a day related to violence at home. Many of those callers and many who do not call for help are employees – workers or managers or professionals who have to deal with violence at home and then try to be productive and focused at work. Help and support from their colleagues and employers could help them and their children escape emotional and physical violence – and possibly save lives. We also know many hundreds of abused persons never call the police out of humiliation, fear or the overwhelming dominance of the batterer. With compassionate guidance from co-workers or employers, we believe more victims will approach the Family Safety Center which has yet to see a number of clients reflective of the community’s violence and need.

By DEBORah M. CLUBB and DR. CaROL DanEhOWER

Memphis Area Women’s Council

Presents

Workplace Violence Conference on April 11

Employees also can be dealing not only with violence or threats of violence against themselves but with how a husband, boyfriend or father is reacting to an elderly live-in mother or a mother-in-law, for example. Elder abuse is part of the pattern of control and domination. Understanding the complexity of domestic violence and its many victims is a key part of the awareness we can bring to local employers – and our abused elders can also benefit from the outreach to connect suffering families to safety and services. Teacher, retailer, banker, business owner, attorney, nurse -- each of us can be prepared to connect friends, family and co-workers to safety and justice.

Impact Is Far-Reaching This is not a “woman’s issue” but a business issue that is played out every day somewhere in our nation and too often locally. Memphis and Shelby County employers can play a crucial part. Take time to learn how. Be prepared to save a life. Already, more than 180 employers and managers attended the two-hour workshops last year. A new series of workshops will begin in May. Long-term, by deepening community under-standing of domestic violence, its impact and the role we can each play in addressing it, Shelby County will see growing numbers of employers and employees sensitized to the need to stop domestic crime, to report and prosecute domestic violence and to assure that systems make victims safe. A new effort to build a local business alliance to stop partner violence will launch at the April 11 conference, giving local business leaders a chance to collaborate to foster events and sustain employer outreach. Sponsors of the conference include Memphis Area Women’s Council; Verizon Wireless; HRO Partners; University of Memphis Society of Human Resource Management student chapter; Splash Creative and United Way of the Mid-South.

The Memphis Area Women's Council is an independent non-profit that acts to influence and change policies for the benefit of Shelby County women in the areas of health, education and economic self-sufficiency. The employer awareness project "Violence at Home. Victims at Work. Employers Confront Domestic Violence" is created, coordinated and presented by executive director Deborah Clubb and University of Memphis Fogelman College of Business & Economics tenured professor Dr. Carol Danehower.

Dr. Carol DanehowerUniversity of Memphis

Fogelman College of Business & Economics

[email protected]

Deborah M. ClubbExecutive DirectorMemphis area Women’s [email protected]


The results are in and this may be the year employers need to open their wallets again. Each year since 2009, PayScale has conducted a survey of compensation best practices to capture what transpired in the previous year from an employer’s perspective and to also predict trends for the upcoming year. PayScale is a compensation data and service provider with more than 3,000 customers across all business sectors and the company conducts an extensive survey of organizations in North America and around the world to create its annual Compensation Best Practices Report. Based on data from more than 4,700 survey respondents representing human resources practitioners, as well as business line and executive managers, the report reveals attitudes about compensation, hiring, and retention as the economy recovers from the recession.

The latest report shows some interesting results reflecting the changing nature of our economy. While there is a general sense of optimism about the economy with many businesses expecting to realize growth in 2014, there is also an increasing concern across businesses of all sizes about their ability to retain top performing employees. These findings reflect the reality of an increasingly competitive talent market also underscores a tension that exists between the desire to expand and the actual ability to achieve aggressive business goals in the coming year. In summary, the findings show– regardless of size and industry – talent retention has become a top priority for most business leaders.

This year’s survey showed companies are growing in size and offering raises to current employees. In 2014, companies expect growth and increased hiring. In 2012, we saw businesses begin to feel optimistic again, and that upward trend continued in 2013. More organizations grew in 2013 than the three previous years and growth is expected to continue across the majority of businesses in 2014. With the more competitive talent economy of 2014, companies will be challenged to balance expansion and growth with smart decisions about how to compensate their best employees.

A return to cautious optimismCompanies are cautiously optimistic about 2014, with 72 percent expecting their financial situation to improve (up from 66 percent in 2013), and only 5 percent expecting it to weaken (down from 7 percent in 2013). Small companies are the most optimistic about their future financial performance

(75 percent of respondents), beating out both large and medium companies, where 66 percent and 72 percent expect improvement in 2014. The infor-mation, Media & Telecommunications Industry is the most optimistic about 2014, with 84 percent of companies in this industry anticipating improved financial performance. Hiring is also up over recent years with 54 percent of companies reporting plans to continue expanding in 2014 Raises returned in 2012 and that trend continued with 83 percent awarding salary increases in 2013, and 88 percent planning to give raises in 2014.

Talent Continues to be a Top Concern in 2014Competition is heating up and it’s becoming increasingly challenging to strike the balance between paying enough to retain top talent and adhering to the compensation budget. Talent retention continues to be the primary concern among businesses. In 2009, only 28 percent of companies listed retention as their top concern, but by 2013 that number more than doubled, increasing to nearly 60 percent.

In addition, the skills gap also continues to be a top concern for many businesses. Half of companies surveyed say they struggle to fill skilled job positions. That rate spikes to nearly two-thirds of companies in the Infor-mation, Media and Telecommunications industry and Manufacturing sector.

While companies are striving to secure talent, they lack sufficient insight about effective compensation to attract and retain the right people.

Nearly 75 percent of this year’s survey respondents reported some degree of dissatisfaction with the compensation data and insights available to them. This underscores a huge need for access to better compensation data reflecting real time market trends.

Key Findings from the 2014 Compensation Best Practices Report include:• Companiesareoptimisticabouttheirbusinessperformancein2014with

72% expecting their financial situation to improve.• Retentionwaslistedasatopbusinessconcernbynearly60%of

companies surveyed.• Theskillsgapcontinuestobeaconcern;halfofcompaniessurveyedsaid

they are having a difficult time filling skilled job positions.• Morebusinessesplantohirein2014thaninpreviousyearswith54%of

companies stating they have plans to expand in 2014.• 88%ofrespondentssaidtheirorganizationsplantogiveraisesthisyear

By TiM LOW

Businesses May Lose Top Talent in 2014


April 8th – 11,th 2014Embassy Suites – Southeast

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with the average expected raise reported to be 4.5%. (note: This is higher than the often quoted 3.0% prediction from large salary survey consul-tants. PayScale believes this prediction is accurate because our survey sample includes more small and medium businesses, not just large enter-prises. Small and medium sized organizations are more bullish, and also more concerned about retention. Small companies may also be playing catch-up since they were the most likely to have not given raises in 2013.)

• Ahugeneedformarket-based,real-timesalarydataexists,as75%reportedsome degree of dissatisfaction with the compensation data available.

• Smallbusinessesaremostoptimisticaboutfinancialperformancein2014with 75 percent expecting improvement compared with 72 percent of medium companies and 66 percent of large companies.

• SomeareinfavorofpassingTheFairMinimumWageAct.Companieshave mixed opinions about raising the minimum wage to $10.10, with 40 percent in favor of it, 30 percent against and another 30 percent unsure.

• They’remakingplanstoattractandretaintalent.Companiesplantorecruit and retain high-performing employees with merit-based pay plans and additional learning and development opportunities.

Pundits and academics agree that the talent market is becoming increasinglycompetitive and employers must take notice if they want to keep top performers:

"The results here suggest that the labor market is finally improving. Retention and appropriate pay levels are therefore going to become hot topics for most all employers," said Peter Cappelli, Professor of Management and Director of theCenter for Human Resources at the Wharton School, University of Pennsylvania.

A Critical Factor: Getting Pay RightAs companies grapple with a more dynamic talent economy in 2014 and employees begin looking for a bigger, better deal, getting pay right for their workforce is becoming even more important than it has ever been. Increas-ingly, companies need insights into market data for their specific geography or skills sets to attract and retain employees that can truly move their business forward in the coming year. Over the last decade, we have learned our economy is volatile and employers can no longer wait for an annual market survey to reflect a single moment in time for their talent market. As retention becomes a bigger concern, employers want up to the minute market insights to determine pay for very specific jobs so they can effectively compete, especially for highly skilled positions. In order to create compensation plans that work for, rather than against, a company’s plans for expansion and growth in 2014, Human Resource professionals are challenged to get away from the “dark art” of sourcing compensation data and to move toward modern day real-time market data and technologies that help get pay right by providing innovative business insights.

The Make or Break Factor: CommunicatingThe art and science of managing compensation come together in communi-cating about it. Only 18% of respondents said they were very confident in their ‘manager’s’ ability to have tough conversations about compensation with employees which clearly shows that managers could use some better infor-mation and probably some training and coaching on the topic of communi-cating compensation to employees.

The not so simple act of communicating clearly to your employees about how they are paid, what market factors drive pay for their current position, what the organization values, and what the employee can do to improve his pay can be magical. Many organizations report that after starting to communicate in more detail about these factors, employee engagement scores rise–that’s without even modifying pay. The act of sharing fact-based information at some level of detail such as ‘you’re at the top end of your range for this position, so an MBA isn’t going to affect your compensation for this job, but would you be open to taking on some supervisory responsibilities? If so, that might put you into a different grade where your current pay is at the low end of the range’ seems to be hugely important in fostering trust and therefore satisfaction.

To learn more about current attitudes and insight into compensation, receive a PayScale’s complimentary copy of PayScale’s Compensation Best Practices Report at http://resources.payscale.com/hr-2014-compensation-practices-report.html.

Tim Low, VP MarketingPayscale

[email protected]


now, with hundreds of colleges and universities offering prior

learning programs, it’s rivaling online courses in terms of how

busy adult learners are obtaining college degrees. human

resources staff is poised to make a difference in their company

by promoting prior learning assessment as a feasible option

for team members looking to return to school and continue

on with the company as a college graduate.

Prior learning assessment (PLa) is a means by which adults

get credit for the experiences they’ve had while gainfully

employed or through military programs (or similar). it turns

years of sales experience, a company-mandated computer

training course, or even a skill mastered over time into college

credit, thus lessening the amount of money a student spends

on college learning.

What is required for a university to begin offering PLA programs?There has been a national push for college attainment. Look

no further than Tennessee Governor Bill haslam’s Drive to

55 campaign, an ambitious plan to equip 55% of Tennessee

adults with a post-secondary degree by 2025. Due to the

efforts of organizations like Graduate Memphis (a member

of the national Graduate network) and Drive to 55, there is

a larger pool of adults returning to school. This has brought

to light the great opportunities afforded by a PLa program,

which largely remained in the background of college activity

(nay-sayers argue that a student can’t earn a college

education outside a college classroom).

The american Council of Education (aCE) has been a huge

proponent of PLa. in fact, they’ve been the major player in

mapping out an adult learning agenda, in conjunction with

the Council for adult and Experiential Learning (CaEL). Critics

might view the aCE and CaEL’s adoption of PLa as encour-

aging universities to lower the bar for a degree, but just as

online education began shaping modern learning, so has a

successful PLa program.

students of PLa work with a university and compile a portfolio

of work including any pertinent certifications, letters of recom-

mendation or aCE-recommended credits and exams used

to verify achievement, the most popular and well-known

of which is CLEP. CLEP, or the College Level Examination

Program, is almost an entrance exam of sorts. Offered in

various subjects, students can take the subject’s compe-

tency test representing the body of knowledge that would

have been gained by taking the course. should the student

pass the exam, he or she receives credit for the course. after

amassing this portfolio, they’ll present it for classes they

feel their experience has given them the same knowledge

as they would have gained from being in the class. Though

the process varies by school (and professor), it’s gaining

momentum among adult learners who are just now having

these options presented to them.

Prior learning assessment has been around for years,

disguising itself in the form of College Level Examination

Program (CELP) tests or military credits, but it’s just now

in recent years that it has burst upon the scene of the

modern college experience.

By MEGhan sTUThaRD and JULiEanna WaLkER, PhR

The Perks of Prior Learning


How does this benefit the student?non-traditional students have myriad reasons for not obtaining a post-secondary education. it’s too costly, it’s too time-consuming, it inter-feres with their established job path. PLa mitigates all of those factors. By earning college credit from the life experiences they’ve already had, hours and hours can be shaved off of the total hours required for a degree. With a solid portfolio, some adult learners could earn up to 40 hours for their prior experiences, equaling over a semester’s worth of work at a typical college or university.

The fewer classes a student has to register for, the less money is required. From an economic standpoint, a semester’s worth of credit adds up after factoring in tuition, books and travel time to campus. in a nation saddled by student loan debt, this is an inviting perk to a non-traditional student looking for a cheaper way to earn a degree.

another major player in PLa is the aforementioned CLEP. This has the potential to award a student with multiple credit hours. Common CLEP exams include general education, like the entry-level math courses. For students who work in a technical field, this could be a quick 3 hours earned. also at a great advantage are bilingual adults. a steadily growing hispanic population in the country means an increase in the number of adults who are fluent in both spanish and English. CLEP tests could offer these bilingual adults the chance to earn all their language requirements (a total of 12 credit hours in most 4-year univer-sities and colleges). schools can be finicky when it comes to trans-ferring prior college credits (perhaps from a student’s failed attempt at college graduation years before), with many math and science credits saddled with an expiration date. CLEP bypasses assists here as well: if the student still can demonstrate mastery in a class credit that does not transfer, there is still a chance to earn that class credit.

How does this benefit the student’s employer?Many companies have begun working with their local colleges and universities to promote PLa programs within their workplace. it is an investment in their employee. it guarantees that, for companies offering tuition assistance or reimbursement, a college-educated employee will stay with the company and lend their expertise to furthering the mission. For companies concerned about their students accruing debt that they can’t easily pay off, it eases this worry with the promised lowered costs of ultimately obtaining a degree.

according to insidehighered.com, hundreds of corporations and government agencies have used the credit evaluation service offered by aCE. Walmart, for example, offers its employees tuition assistance for an undergrad degree, certification and even graduate degrees, agreeing to cover the cost of up to $16,000 over 6 years in some cases. it is to their great benefit to pursue partnerships with local learning insti-tutions to award their employees with as much prior learning credit as they can obtain.

also to the employer’s benefit is the flexibility. With institutions like the Western Governor’s University and University of Phoenix voicing their approval of PLa, a student can now petition these online programs for college credit and finish their degree in an online setting. Working at their own pace and on their own time allows their college attainment to not interfere with a regularly scheduled work day.

Human Resources: What does it mean for you?some roles of a human resources team might include providing direction and guidance to the rest of the staff. human resources may serve as a link to employees’ wellness, benefits, development and motivation. The face of education is changing, and getting in on the ground floor of a quickly emerging adoption of PLa is a vote of support for the employees. By offering them the resources and a viable option for returning to school, hR aligns itself with their team’s wellness. adult learners are juggling jobs and families and might be hesitant that they can undertake the additional stress that is a post-secondary education. But if they are educated on their possibilities and encouraged to return to school (and maybe even assisted financially) by their employer, imagine the security they will feel as an employee. a company’s employees are more than its foundation; they’re an investment.

Graduate Memphis College Resource Center is located in the Benjamin L Hooks Central Library, M-Thur3 - 7 pm, F-Sun 1 - 4 pm, phone 901-415-2774.

Julieanna Walker, PhRGraduate Memphis | Leadership Memphis

[email protected]

Meghan stuthardGraduate Memphis | Leadership [email protected]


When we look at the components that Tom describes, it becomes apparent that this is not typical business talk. What he describes is the emotional make up of an organization in a way that we are not used to hearing. Those who have studied businesses today have concluded there are “serious troubles” out there. An article in Psychology Today reported that up to 40% of employee turnover is related to stress. The estimated cost of this to the American economy is close to 200 million dollars. The Yale School of Management did a study that found up to 24% of the population reported being chronically angry at work. In his research for “Working with Emotional Intelligence” Daniel Goleman found that employers struggle to find the right kind of staff and reported that 40% had problems working with colleagues.

Taking a hard look at “soft skills”It was only recently, since the baby boom generation, that women entered the workforce in large numbers. The rationale for keeping women out of the workplace had been that they were too “emotional.” Emotions were seen as bothersome, a nuisance and organizations did not know how, or want to deal with them. The idea was that one was to check their emotions at the door when one entered the worksite. While this idea seems ridiculously antiquated today, the idea that we can keep emotions out of the workplace is still around. In 1995 a book was published that would drastically alter this perception. The release of Daniel Goleman’s bestselling book, “Emotional Intelligence, Why It Can Matter More Than I.Q.,” organizations began to take a look at the importance of what was called “soft skills” or people skills, more seriously. The impact the book created can be attested to by the fact that Time includes it in its top 25 Management Books. As increasing research came up with compelling evidence that emotional intelligence was related to how effective organizations were, companies turned to E.I. for answers.

Before we put a name to it, there have always been leaders who have intuitively recognized the value of emotional intelligence and used it to build highly effective organizations. Charles Schwab, the first president of U.S. Steel, had a strong sense of what motivated people and used it to build a highly successful corporation. When interviewed by Dale Carnegie he had this to say; “I consider my ability to arouse enthusiasm among my people the greatest asset I possess, and the best way to develop the best that is in a person, is by appreciation and encouragement. There is nothing else that kills the ambitions of a person as much as criticism from superiors. I never criticize anyone. I believe in giving a person incentive to work. So I am anxious to praise but loathe to find fault. If anything, I am hearty in my approbation and lavish in my praise.”

“ If you are working for a company that is not enthusiastic, energetic, clever, curious and just plain fun, you’ve got troubles, serious troubles.” ~ TOM PETERS, MANAGEMENT GURU ~

Companies that have jumped on the EI bandwagon have not done so simply because it was the popular thing to do, or the latest fad. What has received attention in boardrooms are studies that come up with compelling evidence that strong emotional competencies are what distinguishes the star performers from the average ones. In one study of top leadership positions, it was discovered that four-fifths of the difference was due to emotional competence. The differences are not only found in leadership, but throughout all levels of an organization. When L’Oreal began selecting salespeople using emotional competencies as a basis, they did a cross comparison of the staff they hired using this method versus the standard selection procedure. They found that those selected using emotional competence averaged $91,000 more in annual sales. As well they found they had 63% less turnover in that group than those hired using the former method.

Long before emotional intelligence began as a buzzword in business, Southwest Airlines had created a culture that incorporates many of the features of a highly emotionally intelligent organization. For three years in a row they were included on Forbes list of “100 Best Companies to Work for in America.” They have managed to create a work environment that is highly efficient and successful as well as fun, inspiring and family oriented. They believe that employees come first and if they look after their employees, the employees will look after their customers. The whole organizational structure is set up around achieving this purpose. While other organiza-tions talk about workplace culture, Southwest has a Culture Committee whose role it is to encourage employees and their families feel they are part of the organization. When a new employee begins work at Southwest they are assigned a buddy whose role it is to take the time and effort to make sure that they feel welcome. An example of activities that regularly happen, a new staff was surprised by a breakfast colleagues in her work unit had prepared to welcome her to her new job.

Yale School of Management is the latest amongst other top schools that are considering using emotional intel-ligence as criteria for admission. There is a growing acceptance that leadership requires an ability to read people, understand and manage emotions accurately and in today’s work environment adapt quickly to other cultures. Yale and other business schools are very aware that these highly important qualities are not taught in traditional schools and are looking for ways to integrate them into their system.

harvey DeutschendorfEmotional intelligence Expert,

speaker, and author ofThe Other kind of smart

[email protected]

Twitter@theeiguy

By harvey DeutschenDorF

Emotional Intelligenceand the

Business Connection


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